Director of Public Prosecutions v Dimos
[2020] VCC 849
•11 June 2020
pp
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02478
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW DIMOS |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 May 2020 | |
DATE OF SENTENCE: | 11 June 2020 | |
CASE MAY BE CITED AS: | DPP v Dimos | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 849 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of cultivation of a narcotic plant, cannabis L, in not less than a commercial quantity – Category 2 offence requiring a term of imprisonment unless offender establishes an exception on the balance of probabilities – Substantial and compelling circumstances not proven
Legislation Cited: Drugs Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic) s. 5(2H),
Sentence: Total Effective Sentence: 3 years and 6 months’ imprisonment, with a non-parole period of 1 year and 9 months. s6AAA statement: 4 years and 6 months’ imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Stougiannos | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms D Caruso | Kozarov Lawyers |
HER HONOUR:
1 Matthew Dimos, you have pleaded guilty to one charge of cultivation of a narcotic plant, cannabis L, in not less than a commercial quantity. This offence carries a maximum penalty of 25 years’ imprisonment.
2 The charge to which you have pleaded guilty alleges that your offending took place between 28 and 30 May 2018. The circumstances of your offending are outlined in the Summary of Prosecution Opening for Plea (Exhibit “A”).
3 On 30 May 2018, police arrived to execute a search warrant issued under the Drugs Poisons and Controlled Substances Act at 26 Narina Way, Epping (“the property”). Police attempted to gain entry through the front door using force. The door was secured from the inside by some eight different bolts, locks and latches, including deadlocks.[1] Police ceased using force when you unlocked the door to allow them access, as you were present inside the premises.
[1]Photographs 3, 4 and 5 from the Depositions, part of Exhibit “B”
4 Police located a sophisticated system of hydroponic cultivation of cannabis which was being conducted in three rooms within the property. This included the use of timed heat lights and timed water and fertiliser pumps. In one room there were eight cannabis plants (“Room 1”). In a second room there were four cannabis plants (“Room 2”) and in a third room there were a further four cannabis plants (“Room 3”). The total weight of the 16 cannabis plants was 101.5 kilograms. In addition, 5.4 kilograms of dried cannabis was located in the bedroom. A commercial quantity of cannabis comprises 25 kilograms by weight. Hence, the cannabis located at the property where you were present was over four times the commercial quantity.
5 In addition, an electrical meter bypass was located in the roof of the property, however, it is not suggested that you were involved in setting up such bypass.
6 It was apparent that you were living at the property at the time the police arrived. Numerous letters and documents in your name were found on the kitchen bench, as well as what appears to be a substantial array of dozens of pairs of runners or shoes neatly lined up on racks and, also, clothing hanging in the bedroom.[2]
[2]Photographs 9 and 11 of Exhibit “B”
7 There was a CCTV camera located outside the property and inside the property. Police seized a computer tower from inside the property, from which they recovered files of CCTV footage at the property. The footage was time stamped on 28, 29 and 30 May 2018. This showed you arriving at the property at 7.44pm on 28 May 2018 and taking things to and from a car in the driveway before finally entering the premises and closing the door at 7.46pm. The footage shows that on the following day, 29 May 2018, you left through the front door of the property, which you locked, at approximately 4.10pm. You later returned to the property at 5.23pm on that same day. It also showed that police arrived at 7.40am on 30 May 2018 and, as previously mentioned, you were inside the premises at that time. You told police that you were there to look after the house and were scared of the people who had told you to be there and declined to give their names to the police. Police have not been able to ascertain by whom the property was rented.
8 The prosecution case is that your presence at the property involved cultivating the cannabis. Although the process was significantly automated, your counsel conceded that there was a need for fertiliser for the plants to be manually topped up. It is plain from the CCTV footage that you had been entrusted with a key to the property. By 30 May 2018, although the plants in Room 1 were immature and weighed only 16.76 kilograms (excluding roots), the plants in Rooms 2 and 3 were in a bushy, mature stage of growth reaching well up towards the ceiling of the rooms where they were attached to overhead wires.[3] The expert evidence of a forensic botanist, Ms Sowter, was that, in Room 2, the plants were 160 to 190 centimetres in height and weighed 42 kilograms (excluding roots). Those in Room 3 were 140 to 180 centimetres in height and weighed 42.74 kilograms (excluding roots). She stated that, had the leaves and flowering heads of the plants in Rooms 2 and 3 been air dried, they would have yielded 17.2 kilograms of cannabis.[4] It is a reasonable inference from the heavily secured front door of the property and the advanced stage of growth of the plants in Rooms 2 and 3 that the owners of the crop would have been keen to ensure that no unauthorised people obtained access to it. I am satisfied that your role in being present at the property formed part of the requisite security for this purpose, as well as attending to fertilisation of the plants to which I have previously referred.
[3]Photographs 9 and 11 of Exhibit “B”
[4]Statement of Emily Kate Sowter sworn 22 January 2020, Exhibit “C”
9 You were arrested on 30 May 2018 and taken to Mill Park Police Station, where you made a “no comment” record of interview, as is your entitlement.
10 The matter was listed before me for trial commencing on 3 February 2020. On that day a number of pretrial issues were argued on your behalf by your counsel, Ms Caruso. These included endeavouring to exclude evidence of the eight bolts, locks or latches on the door. It was not conceded that you were living at the address and your counsel announced that the trial would be run on the basis that, apart from being at the premises, there was no evidence that you had played any role in the cultivation or had any intention to cultivate a commercial quantity of the cannabis plants. The matter was adjourned to the following day at which time the prosecutor, Mr Stougiannos, announced that, overnight, the informant, on slowing down the fast rate of speed of the CCTV footage, had identified you as attending the premises on 28 and 29 May. Still images, taken from the footage, were produced. Up until that point, the indictment had specified only the date of 30 May (that is the date of execution of the search warrant) as the date of the offence.
11 I asked your counsel whether it was admitted that you were shown in the photographs which had been produced from the CCTV footage. There appeared to be some reluctance to make such admission and I stood the matter down, following which Ms Caruso indicated that you did admit that it was you. However, Ms Caruso maintained an ongoing objection on your behalf relating to files which police had noted being deleted on the computer at the property when they entered, as well as issues about the admissibility of evidence of the 5.4 grams of dried cannabis located in the bedroom and an extendable baton located under the bed. The matter was adjourned to 5 February on which date Ms Caruso complained, at length, about late service of the CCTV footage in a viewable form. The matter was adjourned until 7 February 2020 to enable Ms Caruso an opportunity to consider the CCTV footage and to obtain instructions. On that date, the Court was told that the matter had resolved and you pleaded guilty to the charge of cultivating a commercial quantity of cannabis between the dates which I have previously mentioned. A summary charge of possession of an extendable baton was withdrawn.
12 The prosecution acknowledge that the CCTV footage in a viewable form was served late upon the defence and resulted in an amendment to the dates of the offending on the indictment, however, you knew when you had been at the property and the fact that you were captured on such footage would have come as no surprise to you. It was clear from the multiple pretrial issues raised on your behalf (most of which were unmeritorious in my view), that no stone was to be left unturned in defending this charge. Clearly, any person charged with a criminal offence is entitled to put the prosecution to proof of that offence, but your plea of guilty was a late one. Although it still has utilitarian value, I am not satisfied that you have true remorse for your offending. Statements that you are remorseful made by you to a psychiatrist, Associate Professor Andrew Carroll,[5] and to various character witnesses,[6] in my view, have little weight, particularly as the focus of such comments is upon the impact of your offending upon yourself and family. There is no mention in any one of those statements of the potential deleterious effect on the community had the commercial quantity of cannabis from the crop been distributed.
[5]Report dated 20 May 2020 Exhibit “1”
[6]Exhibit “5”
13 You are presently aged 29 years, having been born on 11 October 1990. You come before the Court with a limited criminal history, relating to driving offences and an offence of unlawful assault and theft. These were between 2009 and 2015. I do not consider them to be of any real relevance in sentencing you for the current charge. Your counsel stated that you have no subsequent criminal history and no matters pending.
14 In a plea on your behalf, Ms Caruso told the Court that you had suffered anxiety and depression for a long time and had abused both alcohol and drugs in the context of having fragile mental health. She stated that you had incurred a drug debt and that the owners of the crop had indicated that you could work it off by being at the house to ensure that nothing went wrong with the crop and this included periodically attending to the requisite fertilisation of the plants. She urged that there was no evidence of enrichment and that in the circumstances your offending was at the “lower end of seriousness for this offence.” She stated that, although you did not know that the weight of the plants was actually over 25 kilograms, by your plea you have conceded that you were reckless as to whether they comprised a commercial quantity, that is, you were aware of the likelihood or a significant or real chance that they comprised a commercial quantity.
15 There was no information given to the Court as to the quantum of your alleged drug debt and no explanation given as to why you sought to expiate it by engaging in this criminal offending, rather than by seeking help from your parents, with whom you were ostensibly living and who are extremely supportive of you. They were present at the plea hearing and your counsel stated that they funded your legal representation and, also, some recent drug rehabilitation.
16 It is plain from the report of Associate Professor Andrew Carroll that you acknowledge a longstanding problem with alcohol, having first engaged in binge drinking at the age of 13 and, at times, drunk alcohol on a daily basis starting in the mornings. You told Associate Professor Carroll that you had used cannabis in the past, but never been a regular user. However, from the age of 18 you had used stimulants, including cocaine and other illicit drugs, such as ecstasy. From your mid-twenties, you had engaged in smoking methylamphetamine, up to 1 ½ grams daily for nearly two years and also heavily used GHB in quantities of 50ml per day for some eight months. You told him that you also gambled. You indicated that your use of methamphetamine and GHB was such that you accrued debts to drug dealers which ultimately led to your involvement in this offending.
17 I must say that, if you were so heavily addicted to illicit drugs and owed the owners of the crop a significant debt, I find it surprising that such owners would have entrusted the task of safeguarding the crop to you, given that the plants in Rooms 2 and 3 were very close to being harvested to yield many kilograms of potentially valuable cannabis. You had apparently not worked since a motorcycle accident in 2014, but there was much that remained unexplained about your financial circumstances since then. In this regard, I note that there was evidence at the property of you having applied to the Australian Government for an A.B.N. in order to start your own business, with such registration effective from 30 November 2016.[7] No material was placed before the Court as to how you proposed to fund such business, which was apparently in computers/graphic design. There was also evidence that you had purchased a Yamaha Motorcycle on 28 December 2016 for $34,000.[8] You had a driver’s licence and appear from the CCTV footage to be capable of having been able to drive a car and go to and from the property to do what was required of you.
[7]Depositions, pp 104-105
[8]Depositions, p 107
18 As I have said, the extent of your asserted debt was never clarified. Although apparently you were a user of illicit drugs, I cannot be satisfied on the balance of probabilities that the only reason you committed this offence was because you were somehow frightened into doing so in order to pay off a drug debt. However, nor is there any evidence before the Court of other gains that you hoped to make from your involvement.
19 I have already stated that I am satisfied that your role at the house was one of securing the crop, as well as attending to the periodic fertilisation of the plants. It is akin to a “crop sitter” role. The higher courts have repeatedly emphasised that roles played by people such as you are necessary to enable those who set up the crop to ensure that it comes to fruition. Were it not for crop sitters, the criminals who set up the crop would not prosper. The prevalence of this offence makes denunciation of your conduct and general deterrence important sentencing considerations such that an immediate term of imprisonment is generally regarded as inevitable, particularly given the seriousness of the offence as indicated by the maximum penalty of 25 years’ imprisonment. This means that, in sentencing you for this offence, courts must send a message to others who are minded to assist in illegal cultivation that it is not worth taking that risk because they will be given appropriate punishment.
20 Ms Caruso told the Court that you are from a loving, decent family and are the older of two children. You completed Year 12 at school and then undertook three years of an electrical apprenticeship, but did not complete it. Following that, you took on some other manual work. However, in 2014, you suffered a serious injury to your right knee in the previously mentioned motorcycle accident, after having already undergone a right knee reconstruction some 10 years earlier.
21 A report from Mr Russell Miller, orthopaedic surgeon, dated 20 April 2018 (Exhibit “3”) states that in the accident on 27 April 2014 you suffered an anterior cruciate ligament injury to the right knee. This was operated upon and a graft and repair was undertaken. However, you subsequently suffered a rupture of the graft and an undisplaced fracture of part of the medial tibial plateau with significant tears to the lateral and medial meniscus causing substantial swelling. You underwent further surgery on 20 August 2014 by way of reconstruction of the anterior cruciate ligament, using the middle third of the patella tendon, and the lateral meniscus tear was resected arthroscopically. You suffered a further injury requiring an arthroscopy on 1 October 2015 to repair yet another tear of the medial meniscus and a partial rupture of the anterior cruciate ligament reconstruction.
22 The following year on 12 May 2016 you underwent an arthroscopic debridement of the knee, with removal of the metal hardware. Still further surgery was undertaken on 29 September 2016 by way of reconstructive surgery, which required donor tissue being harvested from your left leg. You continued to suffer problems and required the use of a knee brace. Your knee was ultimately found in varus malalignment and was unstable, so on 17 January 2018 you underwent a tibial osteotomy. Mr Miller stated that the problems with your right knee were severe and you were at significant risk of progressive degenerative disease and the prognosis for your knee was fair to poor. Your counsel stated that subsequent to Mr Miller’s report in January this year, you have undergone further surgery by way of a high tibial osteotomy to the right knee and it is apparent that Mr Miller considers that you will ultimately require a total knee replacement in the medium to long term.
23 Ms Caruso stated that, following the motorcycle accident in 2014, you developed a dependence upon the prescription analgesic Tramadol and you admitted to Associate Professor Carroll that you began to abuse other opioid analgesics, including Endone. Associate Professor Carroll noted that, although you had been using illicit drugs prior to the accident, they became more of a problem for you afterwards. In addition, you had suffered problems with anxiety and depression in your teens, which resulted in your general practitioner having first prescribed antidepressants when you were about 15 years of age.
24 A report from your general practitioner, Dr Alexander, dated 8 May 2020 (Exhibit “2”) stated that you had been suffering anxiety and depression on a background of anger control problems since at least 2011 and had been diagnosed with Behavioural Adjustment Disorder by at least two psychiatrists in January 2011. He noted that in 2013 you had seen a psychiatrist for mood swings and anger problems and impulsive and aggressive outbursts and been diagnosed with depression. The following year you saw another psychiatrist who diagnosed you with depression, but also noted that you suffered from anxiety and Behavioural Adjustment Disorder, as well.
25 Dr Alexander noted a strong family history of mental illness. He considered that the chronic pain following the April 2014 motorcycle accident most likely contributed to your anxiety and depression for which you were prescribed Prozac and Mirtazapine, however, you admitted drinking a lot of alcohol and using ice and marijuana and that you had previously overdosed on your medications in late 2013 and February 2014. He also noted that you were using your Seroquel in doses higher than prescribed.
26 On the face of Dr Alexander’s report, it seems that, after 2014, you did not see him for a period of some years until after you were charged with present offence. He noted that, from 2018 onwards, you had been seeing Dr David Mitchell, psychiatrist, who had prescribed Mirtazapine 30 milligrams, Fluoxetine 40 milligrams, Epilim 500 milligrams twice a day, Diazepam, Quetiapine 25 to 50 milligrams to control your severe anxiety and depression. Unfortunately no report was available form Dr Mitchell as he apparently left Victoria for the Northern Territory earlier this year and Ms Caruso stated that he has been unable to located by your legal representatives.
27 Tendered as Exhibit “4” was a report from Dr Laxmi Balaraman, psychiatric registrar at North Park Hospital, dated 3 March 2020 along with a discharge summary from that hospital. The report stated that you had been admitted from 23 February to 3 March 2020 “for rationalisation of (your) medication regime and to receive psychotherapy in a supportive and structured environment.” However, it went on to state that at the time of discharge, “there were no acute psychiatric risks identified.”
28 In his report, Associate Professor Carroll considered that you suffered a Persistent Depressive Disorder with anxious distress, which had fluctuated in severity over the years. He noted that, at times, it had reached the severity of a Major Depressive Episode, but he did not believe that you were currently at that level of severity, although he considered your Persistent Depressive Disorder to be a permanent condition. He stated that it has been further complicated by Alcohol Use Disorder and Methamphetamine, Opiate (Tramadol) and GHB Use Disorders, both of which are now in remission. He stated that he could not exclude the possibility that there were also some underlying personality problems, but he did not have sufficient information to formally diagnose a personality disorder.
29 Associate Professor Carroll noted that, following discharge from North Park Hospital, you did not take up the option of follow-up there but continued to see your general practitioner. You told him that you had never really kept up psychological treatment and, at most, had attended on the same psychologist perhaps three times in total and that was six years ago. You described your mood to Associate Professor Carroll as having been “terrible” and worse than ever previously as the seriousness of your legal situation “started to sink in”. You acknowledged that you had an anxious preoccupation about your court case and the possibility of imprisonment. Associate Professor Carroll stated that, at the time of offending, you appear to have been depressed in mood consistent with your Persistent Depressive Disorder, but your condition was likely exacerbated by dependency on Tramadol, methamphetamine and GHB. He said that your use of such substances may, in part, have been attributable to your problems with anxiety and that there was some evidence suggestive of an indirect link between your psychiatric condition and your offending, mediated by way of your substance misuse.
30 Although I accept that for many years you have suffered from depression and anxiety, which became worse following your motorcycle accident, I do not consider that there is sufficient evidence to link your psychological condition with your abuse of illicit drugs in a direct way such as to attract the principles of R v Verdins.[9] Moreover, having been diagnosed as suffering from mental illness since at least 2011 and being prescribed medication for your depression and anxiety, it appears from the report of your general practitioner, Dr Alexander, that there was a gap in attending him for treatment for quite some time prior to the commission of the offence in May 2018. This gap (which according to Dr Alexander’s report) appears to be between some time in 2014 and June 2018 (which also seems consistent with the chronology in Associate Professor Carroll’s report). Ms Caruso claimed that you had attended a general practitioner in August 2016 and obtained a mental health care plan in November 2016 and had been an inpatient at Northern Health because of an overdose. However, there is no material before me confirming any of these assertions. In any event, it would appear that there has been a less than diligent attention by you to your mental health and, having seen psychiatrists in 2012 and 2013, you did not again engage with regular psychiatric care until you started seeing Dr Mitchell after your offending in 2018. When one is aware of a need for psychiatric or psychological care and one not only neglects that but embarks upon increasing use of prescribed medication and illicit drugs, as well as abuse of alcohol, it is difficult to see how this Court could be satisfied on the balance of probabilities that impaired mental functioning substantially reduced your culpability. Indeed, Ms Caruso did not urge that the Court should be so satisfied.
[9](2007) 16 VR 269
31 Notwithstanding my finding above, your anxiety and depression, which, at times, have been accompanied by suicidal ideation and overdoses of medication, are part of your personal circumstances which I do take into account. The picture is somewhat complicated by your anger control problems and the fact that you had been diagnosed with a Behavioural Adjustment Disorder well prior to the motorcycle accident. Further, Associate Professor Carroll was unable to exclude the possibility that there are also some underlying personality problems. Nevertheless, I accept that your anxiety and depression are important sentencing considerations albeit that your worsened psychological state this year is significantly reactive to your legal predicament.
32 I note that you are currently on a significant regime of medication for anxiety and depression, which seems to have been put in place following your discharge from North Park Hospital in March this year. I accept and take into account the views expressed by both Dr Alexander and Associate Professor Carroll that imprisonment is likely to adversely affect your coping ability, given your psychiatric condition and separation from your supportive parents, as well as likely withdrawal of Diazepam and Quetiapine (both of which are apparently rarely prescribed in prisons), together with the fact that you are a first time prisoner. I particularly note that Associate Professor Carroll expressed significant concern about the possible risk of self-harm and suicide in the early stages of imprisonment, although he considered that with appropriate management your ability to cope may well improve.
33 The offence to which you have pleaded guilty is a Category 2 offence pursuant to paragraph (g) of the definition of Category 2 offence in s3(1) of the Sentencing Act. According to s5(2H) of that Act in force at the time of your offending, a Court must make an order for a sentence of imprisonment (other than a sentence of imprisonment imposed in addition to making a Community Correction Order) unless the offender comes within the exceptions specified in sub-paragraphs (a) to (e). On your behalf, Ms Caruso submitted that the Court should find that the exceptions in (c)(ii) or (e) applied.
1) Section 5(2H)(c)(ii) requires that the offender prove on the balance of probabilities that he has impaired mental functioning that would result in him being subject to significantly more than the ordinary burden or risks of imprisonment.
a. I have already referred to the evidence of both Dr Alexander and Associate Professor Carroll relating to their concern about your fragile mental health and risk of self-harm or suicide. However, Associate Professor Carroll also mentioned that his concern was for your early stages of imprisonment and he stated that depending how and where you are managed, your ability to cope may well improve.
b. It is important to note that the level of the severity of your mental state has fluctuated over time. When Associate Professor Carroll assessed you on 12 May 2020, he considered that, although at times in the past your condition had reached the severity of a Major Depressive Episode, he did not believe that you were currently at that level of severity. Your anxiety about your legal situation and the very real prospect of imprisonment were major contributors to your decline in mental health leading up to the sentencing hearing.
c. As already stated, you underwent a period of inpatient treatment at North Park Private Hospital from 23 February to 3 March 2020 in order to rationalise your medication regime and the report of Dr Balaraman (Exhibit “4”) stated that at the time of discharge there were no acute psychiatric risks identified. Further, it is plain from the report of Ms Amanda Brown dated 25 May 2020 (Exhibit “6”) that you had been attending her for regular counselling since 3 December 2019 and she had taken steps to assist with that admission. Thereafter, you continued to attend appointments with her. She described you being crippled with anxiety and remaining in your room at home and she again arranged a 14 day mental health residential rehabilitation admission. She noted that, upon returning home, you reverted to the same patterns of behaviour and fell into deep depression, but considered that she had developed a successful and therapeutic relationship with you and that you reported increased insight into your condition and demonstrated a commitment to recovery and reflected upon where your drug life had taken you and that you were grateful to be rehabilitating and slowly reclaiming your life. She considered that it was a positive indication of such commitment that you had remained drug-free while still enduring anxiety and depression whilst on bail, but you had removed yourself from past drug associates and returned to your family and had begun the process of recovery from both substance abuse and mental illness.
d. While I do not doubt that suffering from anxiety and depression does increase the burden of imprisonment and the risk that it may adversely impact upon your mental health, I am not satisfied on the balance of probabilities that you would be subject to significantly more (my emphasis) than the ordinary burden or risks of imprisonment.
2) Section 5(2H)(e) requires that there be substantial and compelling circumstances that justify not making an order of imprisonment under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a Community Correction Order).
a. Section 5(2I) makes it clear that, in determining whether there are substantial and compelling circumstances, the court must have regard to (a) Parliament’s intention that, in sentencing an offender for a Category 2 offence, a term of imprisonment under Division 2 of Part 3 should ordinarily be made and (b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
b. Your counsel argued that the cumulative impact of your circumstances did justify a departure from such a sentence. She submitted that the factors which in combination amounted to substantial and compelling circumstances were: your longstanding mental health condition; your current fragile mental health; the permanence of your Persistent Depressive Disorder with anxious distress; that imprisonment was likely to place a greater burden upon you because of your impaired mental functioning and carried a strong likelihood of worsening of that condition; the COVID‑19 restrictions which would impact upon you beyond the impact upon a prisoner without your conditions; your injury to your knee which has led to substantial pain; the link between your mental health condition, drug use and offending; your lack of relevant prior convictions; your good prospects of rehabilitation; and the low objective gravity of your offending.
c. I have already indicated that I am not satisfied on the balance of probabilities of a link between your mental health condition, drug use and offending. I have also found that the deterioration in your mental health this year is significantly related to your legal situation. Although I acknowledge the greater burden of imprisonment because of your mental health condition and the risk that it may worsen, I do not find that the COVID-19 restrictions are likely to elevate that burden or risk to a substantial and compelling circumstance.
d. You have been subjected to isolation for the first 14 days of your remand in custody because of the COVID‑19 pandemic. As a first time prisoner, you will undoubtedly suffer a period of adjustment and perhaps initially decreased mood. Also, there are currently restrictions on personal visits, although facilities for telephone contact and videolink or Skype visits are available. Further, in major prisons, there is a half-day restrictive regime to facilitate social distancing, as well as reduced availability of programs. However, some drug and alcohol rehabilitative services are still available, as is mental health monitoring and support for vulnerable prisoners. There are no COVID-19 cases currently known in the prison population and, as is the case in the general community, it is anticipated that current restrictions will be eased in time. Should there be a need for prisoners to be placed in extended lockdown, I understand that Emergency Management Days under section 58E of the Corrections Act are likely to be considered by way of deduction from a prisoner’s sentence.
e. As far as your knee injury is concerned, you told the Court that you are currently managing your pain by usually taking one paracetamol tablet per day.
f. As far as the objective gravity of your offending is concerned, I acknowledge that it lacks a number of aggravating features that one sees in commercial cultivation cases. However, you had a role in securing the crop as it grew close to the time when half of it could be harvested, as well as ensuring that it was sufficiently fertilised. As I have said, the higher courts have made it very clear that crop sitters are enablers of this prevalent offence which does so much harm to the community and considerations of general deterrence mean that crop sitters must generally expect a term of imprisonment.
g. I am not satisfied that your mental health condition either on its own or in combination with the other factors mentioned by Ms Caruso meet the high threshold of substantial and compelling circumstances in the face of a clear expression of Parliamentary intention that a term of imprisonment (not one imposed in addition to making a Community Correction Order) must generally be made.
34 The fact that I do not find substantial and compelling circumstances for not imposing a term of imprisonment (other than one imposed in addition to making a Community Correction Order) does not meant that there are not important mitigating factors in your case. I have already referred to the utilitarian value of your plea of guilty and I have accepted that both your mental health and physical knee injury are important personal factors of disadvantage. Moreover, I have had the benefit of reading a number of references tendered on your behalf as Exhibit “5”. They are from your mother, a cousin, an aunt and your mother’s employer. The themes that emerge from these references are that you are from a very decent, hardworking, loving and respectable family. You are described as an intelligent boy, who excelled at school and applied yourself well to work and other tasks upon which you embarked. However, you have been dogged by poor mental health, which was exacerbated by the tragic suicide of a cousin to whom you were close, the breakup of a significant relationship that you had in or about 2013, and, then, the impact of your motorcycle accident in 2014. It is clear that you have struggled with mental health and attempted suicide by overdoses on more than one occasion, but also you have tried to get back into the workforce by starting your own business in computing and graphic design. You are described as being kind, compassionate and respectful, having helped young relatives with school work, visited your grandfather in a nursing home and shown yourself to be a loyal family member.
35 My impression from the references is that, despite a caring and decent upbringing, you are an immature person who has lost your way through a combination of mental health and physical injury issues and behavioural issues, which include long-term substance abuse. It is to your credit that you have apparently remained free of illicit drugs since December last year when Ms Brown began counselling you. I accept that that is no mean achievement whilst you have been very depressed and anxious, particularly about your legal predicament. I am satisfied that you have a significant body of support from your family and wider community and that you have now gained some insight into both your mental health needs and the adverse impact of illicit drug taking on your mental health such that you have removed yourself from drug associations and reunited with your family. Although it is early days in the context of a longstanding substance abuse problem, in recent times you have demonstrated a commitment to rehabilitate yourself and forged links with a counsellor with whom you have a good rapport to help you maintain a positive trajectory for recovery. This factor, together with your lack of relevant prior offending, causes me to take the view that there is no great need for emphasis upon specific deterrence in sentencing you. Your prospects of rehabilitation ultimately will depend upon the extent to which you remain committed to obtaining effective treatment for your mental health and behavioural issues as well as for your substance abuse. However, the need to denounce your conduct and to give emphasis to general deterrence and just punishment mean that no sentence is appropriate other than a term of imprisonment, albeit that the mitigatory factors to which I have referred have caused me to conclude that a relatively long parole period is appropriate in your case.
36 Would you stand up, please.
37 On Charge 1, you are convicted and sentenced to be imprisoned for a period of 3 ½ years.
38 I direct that you serve a period of 21 months’ imprisonment before becoming eligible for parole.
39 I declare a period of 17 days to be time reckoned as already served under the sentence imposed this day.
40 Pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the property referred to in the Schedule to this order, namely 16 cannabis plants, one container of dried cannabis, one zip lock bag containing amphetamine, 21 boxes of Tramadol, one extendable baton, one electrical meter bypass, two toothbrushes and one black MZXT computer tower. I further direct that such property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or and then destroyed.
41 Pursuant to s6AAA, I declare that, had it not been for your plea of guilty, the total effective sentence would have been 4½ years’ imprisonment with a non-parole period of 3 years.
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