Director of Public Prosecutions v Del Re, Anthony
[2012] VCC 2037
•19 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00337
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY DEL RE |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF TRIAL HEARING: | 21, 22, 23, 26 November 2012 | |
DATE OF PLEA HEARING: | 27 November 2012 | |
DATE OF SENTENCE: | 19 December 2012 | |
CASE MAY BE CITED AS: | DPP v Del Re, Anthony | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2037 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - sentence following trial – cultivation of a commercial quantity of cannabis, theft of electricity and possession of cannabis – sophisticated hydroponic crop of 34 plants weighing 122 kgs and theft of electricity worth $13,458 – offender a long-term cannabis user with prior convictions for cultivating and possessing cannabis and dishonesty –– sentenced to TES 3 years 9 months’ imprisonment with a minimum of 2 years 9 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr B Stougiannos (trial and plea) Ms J Cavka (sentence) | Office of Public Prosecutions |
| For the Accused/Offender | Mr A Jackson | Balmer & Associates |
HIS HONOUR:
1 Anthony Del Re, following a four day trial you have been convicted of cultivating a commercial quantity of cannabis (charge 1); theft of electricity (charge 2); and possession of cannabis (charge 3). The maximum penalties for the first two charges are 25 years and 10 years’ imprisonment, and the agreed maximum for the third is 12 months’ imprisonment and/or 30 penalty units. Additionally, you have pleaded guilty to a summary offence of using cannabis, the maximum penalty being five penalty units.
Circumstances of offending
2 The circumstances of your offending can be shortly stated. On 19 September 2011, police attended at your rented premises in Caroline Springs where they executed a search warrant. They located a large cannabis crop which was being cultivated by you using a sophisticated hydroponic setup and an electrical by-pass. A total of 34 plants weighing 122 kilograms (excluding the roots) were found in three rooms. Each room was sealed and lined with white plastic. Inside were large globes, lampshades, industrial sized exhaust fans with carbon filters and other growing paraphernalia. Outside in a hallway there was a complex watering system, which provided nutrients to the plants, involving temperature gauges and timers. The plants were all healthy, mature, bushy female plants ready for harvest. They stood 1.2 to 1.4 metres high and had been growing for about five months (charge 1). It was obvious that a large amount of time and money had been spent on establishing and nurturing the crop with police evidence suggesting up to $15,000 could have been spent on the main components. About half your house was devoted to this venture. All this was captured in graphic police film and photographs.
3 An electrical bypass had been installed to provide unmetered power, with a motherboard and other fittings installed. There is an agreed compensation order for $13, 458 to cover the theft of the electricity (charge 2). Police also found approximately 152 grams of cannabis which it is agreed was being used by you for personal use (charge 3). The summary offence involves you using loose cannabis at your home between June and September 2011.
4 A commercial quantity of cannabis is not less than 25 kilograms or 100 plants. A trafficable quantity is not less than 250 grams and 10 plants, and a large commercial quantity is not less than 250 kilograms or 1,000 plants.
5 At trial you pleaded guilty to charges 2 and 3 and not guilty to the cultivating charge. You gave evidence and said that you had planted and cultivated the crop. You claimed that you did this because you were a long time cannabis user and wanted to grow the drug for your personal use. You claimed you researched the project on the internet alone, that you purchased a fair bit of the equipment second-hand for about $4000-5000, and did all the electrical work yourself without any slip ups. You claimed you had no idea that you were cultivating a commercial quantity of the drug and that you had no intention to do so and that your wild success could all be put down to mere good fortune. On your own estimate, you were using about one and a half kilograms of cannabis per year. In all the circumstances, particularly given the sophistication involved and the size of the crop, it was hardly surprising that the jury disbelieved this flimsy defence and convicted you on charge 1.
6 Following your arrest and police interview, you were charged and released on bail. You were committed in March this year by a straight hand-up brief when you pleaded not guilty to the drugs charges and guilty to the theft. I revoked bail on 26 November last when the verdicts were returned and there is 23 days' pre-sentence detention up to, but not including, today.
Background and personal circumstances
7 I will turn to your background and personal circumstances. You are now 36. You have an older brother and sister. Unfortunately your mother died in 2001. Your father is a disability pensioner with medical difficulties. You are the product of a loving and close family environment and have had the strong support of family members and friends throughout the case.
8 You grew up in Melbourne and were educated to Year 8. At 15 you started as an apprentice cabinetmaker, but you did not finish that course. From 16 to 19 you worked with your uncle in a smallgoods factory. Then you completed an apprenticeship and qualified as a boilermaker and have worked fully and productively for the last 16 years, mainly as a welder. Your employer for the past four years provided a glowing reference that you were an outstanding employee, punctual and responsible and always willing to help others. He guaranteed future employment and said that your offending was out of character.
9 You have had a relationship with your partner for the past three years. She was living on and off at your home when you were arrested. You are engaged and want to get married as soon as you can. You have a 12 month year old daughter together. Your partner’s letter stated you were a devoted father and very caring caring of her, particularly as she suffers from migraines. Your former brother-in-law’s letter spoke of your deep commitment to family and your concern for others. Another reference came from your partner’s sister-in-law whom you first met whilst tirelessly assisting bushfire victims for two weeks in 2009. She described you as a good and decent man and spoke also of your assistance to neighbours and high regard in the community.
10 Unfortunately you have been a long time user of cannabis. As your counsel said, it has ruined your life. Indeed, in September 2001, you were convicted and fined for cultivating and possessing cannabis. Apparently this involved you growing three cannabis plants and possessing 95 grams of the drug for personal consumption. But you did not learn your lesson, as in 2008 you were again convicted of possessing cannabis and also amphetamine, for which you were fined. There were also some driving offences at that time, including one for driving a vehicle whilst impaired by cannabis. By this time you were 31 but obviously still did not learn the lesson. Your last conviction was in 2009 for handling stolen goods, which is a relevant act of dishonesty.
Mitigating circumstances
11 The mitigating circumstances in your favour are that you come from a good family background. You qualified for a trade and have been in full and productive employment all your adult life. You established a meaningful relationship with your partner and I accept that you are devoted and caring to her and your young child. More generally, you have demonstrated significant commitment and assistance to your family and the community, as explained.
12 It is to your credit that you pleaded guilty to charges 2 and 3. Those pleas had a utilitarian benefit in that the prosecution was not required to prove those matters and there should be a discount on sentence for that reason alone. However, you were caught red-handed and, sensibly, in light of your approach at trial; your counsel did not suggest that there was any element of remorse.
13 Upon your recent incarceration, you have apparently resolved not to have anything further to do with cannabis. That is commendable, but your counsel correctly said that you have a serious addiction that needs long term drug treatment. Given your lengthy history of cannabis use and prior convictions, I could not say that your prospects for rehabilitation are good. However, you are willing to undertake a drug rehabilitation program and will have the support of your family whilst in prison and upon your release, so the position should be more positive then.
14 Of course, you have never been in prison before and it is likely that it will be a salutary experience for you. Your incarceration also means that you can no longer be the breadwinner and there will be hardship for your family. Today, your counsel provided a further letter from your partner indicating how hard she is struggling on a single mothers’ pension and generally with financial matters.
Other sentencing considerations
15 There are, of course, other important sentencing considerations. I must have regard to the maximum sentences which provide a guide to the seriousness with which a particular offence should be viewed. By far the most serious is the cultivation offence with a maximum of 25 years’ imprisonment.
16 The sentencing regime is quantity based.[1] The amount of cannabis you cultivated was just on five times the threshold for a commercial quantity and massively greater than you ever needed for personal use. You persisted with the offending scheme for about five months. You are not to be punished for any harvesting or trafficking activity, but I cannot ignore the fact that the cultivation of large crops of this kind has the essential commercial purpose of putting the drug into the community, whether you were to get some of the product or not.[2] Given the weight of the drug, there was potential for significant and deep penetration into the community.[3] No wholesale or street value was provided by the prosecution but on any calculation, it was worth a great deal of money.
[1]Pidoto (2006) 14 VR 269
[2]The yield weight of the crop was estimated to be around 23 kgs.
[3]Cf. R v Wong [2007] VSCA 278, [21], per Buchanan JA.
17 The Court of Appeal has said, “… drugs of dependence represent a significant social evil: they damage lives, families and society as a whole”.[4] In another case, the Court noted the prevalence of cannabis crops and the great harm which cannabis grown by modern methods can inflict upon our society and it indicated that generally the offence will merit substantial punishment.[5]
[4]DPP v McInnes [2009] VSCA 144, [34], per the Court (Maxwell P, Buchanan and Ashley JJA)
[5]DPP v Duong [2006] VSCA 78, [13] per Buchanan JA, cited with approval in Nguyen v R [2010] VSCA 127, [30], per Maxwell P.
18 In Nguyen v R [6] Maxwell P, with whom Buchanan JA agreed, highlighted the significant disparity between current sentencing practice for cultivation of a commercial quantity of cannabis and the statutory maximum of 25 years. I did the same in discussion with counsel during the plea. His Honour noted that between 2002-03 to 2006-07, out of 102 people, the most common sentence for this offence was 2 years imprisonment, while the median was 2 and a half years with an upper cap of 6 years. Given these figures presumably included some cases of the more serious kind, his Honour said the community would be entitled to ask why sentences for this offence have been consistently under or well under one-fifth of the maximum.[7] Not surprisingly, his Honour said the question of the adequacy of current sentencing practices for this offence was a matter of “first importance” and that responsibility for pursuing the issue rests squarely with the Director of Public Prosecutions.[8] But that must be done in the first instance before the sentencing judge.[9]
[6][2010] VSCA 127. The Court comprised Maxwell P and Buchanan JA.
[7][29]-[31].
[8][38] – [40].
[9]Duong [17]-[19], per the Chief Justice.
19 It was surprising then, that as you had pleaded not guilty to charge 1; the prosecution failed to argue that the Court should be unconstrained by current sentencing practice. When I queried this today, the new prosecutor said that, unlike the former Director’s “global” policy, the Director has no present policy to challenge any current sentencing practice for any particular offence, but the matter is under review. Just yesterday, in Hogarth v The Queen[10] the Court of Appeal decided that current sentencing practice for confrontational aggravated burglary, fails to reflect the objective seriousness of this form of the offence, which carries the same maximum, as here, of 25 years.[11] This followed the DPP making a submission to this effect at first instance and then on appeal. As expressed by the sentencing judge concerning aggravated burglary in Hogarth[12], in light of the observations of the Court in Nguyen, I consider it would be of great assistance to judges of this Court for the Court of Appeal to provide guidance in relation to sentencing for cultivating a commercial quantity of cannabis, in the way it did in Hogarth for that particular species of aggravated burglary. Whether it does this depends in the first place upon the prosecution making an appropriate submission. In my respectful opinion, the issue is still one of first importance. In this circumstance, I must confine myself to current sentence practice but, while I have considered sentencing statistics and some other cases involving cultivation of commercial quantities of cannabis, this material is of limited assistance as cases differ and in the end, every case must turn on its own facts and circumstances. [13] For instance, most of the sentence cases involve offenders who have pleaded guilty, whereas you did the opposite. Not all had a prior conviction for cultivating cannabis, nor for possessing cannabis and amphetamine on another occasion, and not all cultivated almost five times more than the commercial quantity threshold.
[10][2012] VSCA 302, Maxwell P, Neave JA and Coghlan AJA.
[11][6], [58].
[12][43].
[13]See exhibits A, B and 5. The latest SAC Snapshot, August 2012, No.133 “Cultivating a commercial quantity of narcotic plants”, which covers sentencing trends in the higher courts of Victoria from 2006-07 to 2010-11, reveals that, for 320 offenders, imprisonment terms for the offence alone covered 6 months to 5 years (adjusted by appeals), while the median sentence was 2 years 3 months and 15 days - an even shorter period than that of 2½ years noted five years ago in Nguyen [29].
20 Whilst the theft of electricity often accompanies such cultivation, this is a separate act of criminality which adds to the sophistication and effort of the scheme, while avoiding cost and suspicion. The parties agree there should be some cumulation for this charge. Of course, you have a prior conviction for dishonesty. The prosecution concedes that any penalty on the possession charge should be made wholly concurrent and this is reasonable.
21 In fixing sentence, I must have regard to the principles of totality and proportionality and avoid the imposition of a crushing sentence upon you. But, even allowing for the mitigating factors and the importance of rehabilitation, the principles of general deterrence, denunciation, protection of the community and just punishment apply here with force. Specific deterrence is also an important factor having regard to your maturity, your prior criminal history for cultivating and possessing cannabis and dishonesty, and your lack of remorse.
22 In all, I consider your offending on charge 1 to constitute a very serious example of a serious offence. The prosecution submitted that the appropriate range of penalty was a total effective sentence of three and a half to five years’ imprisonment with a minimum of two and a half to three and a half years’ imprisonment. Your counsel submitted that this range, at least its upper reaches, was clearly outside the range of sentence for like matters. He conceded that while you would be sentenced to a term of immediate imprisonment, I should impose a relatively shorter than normal minimum sentence so that you could have the benefit of lengthy parole.
23 I accept that the Crown’s upper range is outside current sentencing practice. This submission, too, is surprising given the prosecution did not mount an argument as to the inadequacy of current sentence practice on the offence in charge 1. However, I am not satisfied that in light of your criminal history, the significant size of the cultivation and your lack of remorse that I should impose any so–called shorter than normal minimum sentence. I have no doubt that you went into the exercise with your eyes wide open and you – and, for that matter, any like-minded others - need to understand that involvement with this insidious drug in such a way, will lead to the imposition of serious sentences.
24 On behalf of the community, I strongly denounce your conduct.
Sentence
25 Mr Del Re, please stand up. You will be convicted and sentenced as follows: On charge 1, to three years six months’ imprisonment. On charge 2, to six months’ imprisonment. On charge 3, to one months’ imprisonment.
26 The sentence on charge 1 is the base sentence. I order that three months of the sentence on charge 2 be served cumulatively upon charge 1. There will be no order for cumulation in respect of charge 3.
27 The total effective sentence is three years and nine months’ imprisonment. I order that you serve a period of two years and nine months’ imprisonment before which you shall not be eligible for release on parole.
28 I declare that 23 days pre-sentence detention be reckoned as already served on that sentence and that that declaration be entered in the records of the Court.
29 But for your pleas of guilty on charges 2 and 3, the sentences would have been, respectively, nine months and six weeks’ imprisonment.
30 On the summary offence, you will be fined $300 with a stay of three months.
31 I will make the forensic sample order which is agreed, given the seriousness of the offence on charge 1, your prior convictions, the order is by consent and the granting of the order is in the public interest. Accordingly, I order that you provide a scraping from your mouth and/or a blood sample, in accordance with subdivision 30A, part 3 of the Crimes Act 1958, until a sample of sufficient standard is obtained for placement on the database. Notwithstanding your present consent, I should tell you that police may use reasonable force, if necessary, to enable the procedure to be conducted. I will sign the order which has been provided to me by the prosecution. Just sit down for a moment please, Mr Del Re.
32 I will make the disposal and forfeiture orders which are sought and agreed to. I also make the agreed order that you pay compensation to AGL Retail Energy Ltd in the sum of $13,458.05 for the stolen electricity.
33 I hand down those signed orders, thanks. I ask counsel, are there any mechanical difficulties with the sentences or orders which I have imposed?
34 MS CAVKA: No, your Honour.
35 MR JACKSON: No, your Honour. In my submission it covers all the ancillary matters covered in the hearing and your Honour’s mathematics are spot on.
36 HIS HONOUR: Mr Del Re, you need to go with the prison officers now, thank you. Please remove the offender. [Offender removed]
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