Director of Public Prosecutions v Duggan
[2012] VCC 676
•22 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00835
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LYNDTON DUGGAN |
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JUDGE: | HIS HONOUR JUDGE PARSONS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 22 May 2012 | |
CASE MAY BE CITED AS: | DPP v. Duggan | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 676 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Bhai | OPP |
| For the Accused | Mr P. Skehan |
HIS HONOUR:
1 You, Lyndton Duggan, have pleaded guilty before me to one count of trafficking in a drug of dependence, one count of theft, as well as - I think there is also a summary offence, is there not?
2 MR SKEHAN: There is, Your Honour.
3 HIS HONOUR: Yes, thank you - and one of using a drug of dependence, cannabis, and one of possessing a prohibited weapon, a Samurai sword.
4 These crimes arise out of circumstances which were opened to me yesterday by Mr Nibbs, and he has helpfully set forward the details in Exhibit A, which is the summary of prosecution opening.
5
You and a co-accused, one Zenith Humphries, who will also be sentenced today, rented a residential property in Wesburn on
30 July, and subsequently the police executed a search warrant and there found cannabis growing in the various rooms, typical of a hydroponic plantation set-up, in residential premises, where the electricity had been bypassed. In total, there were 40 cannabis plants found inside the premises, which weighed approximately 107 kilograms in total. It was determined the leaves and flowering heads of the cannabis growing in the various rooms constituted 66.7 kilograms, which would equate to an air dried weight of 16.7 kilograms, and that gives rise to Count 1 to which you have pleaded have guilty.
6 Count 2 concerns the illegal wiring connection located in the roofline, by which the meter was bypassed, and it is estimated the electricity stolen throughout the period amounts to just shy of $3000. That gives rise to Count 2.
7 You were arrested and made partial admissions and you have pleaded guilty to the summary charges of using a drug of dependence and possessing a prohibited weapon, a Samurai sword, the circumstances of which Mr Nibbs explained to you.
8 No victim impact statements have been tendered.
9 As was pointed out by your counsel, Mr Skehan, there are some mitigating factors. You have pleaded guilty, and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial, and I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.
10 Further, I take into account the circumstances in which you intimated your intention to plead guilty, as set out by Mr Skehan on your behalf. You were apprehended in the circumstances described when you voluntarily attended the police office in response to a phone call from them and you made partial admissions, and in the circumstances I accept that in your case your plea does indicate remorse for your actions.
11 I have been told something of your personal history and your circumstances, and most helpfully, Mr Skehan tendered on your behalf a report which had been prepared by Mr McKinnon, and in that Mr McKinnon sets out various matters of relevance which are of assistance in outlining your personal circumstances.
12 He reported you were born in Australia and raised in the Selby environs, which is an outer eastern district, by your biological parents. You have three sisters. You had a happy childhood, although you had difficulty in arguments with your mother, which are otherwise described in the character references. That was a very difficult time for you, when your parents separated for some two, or three years, when you were 13 years of age, and that clearly had a dramatic impact on you.
13 Your parents are committed to environmental conservation, and your mother, I understand, is working as an archaeologist here and overseas, and your father is a botanist, who operates his own bushland management service.
14 Your education was attending Selby Primary School and then to Emerald Secondary School, where you completed Year 11, although that was a relatively troubled time for you, after which you left school and had various jobs before entering the engine reconditioning industry and you eventually qualified as an engine machinist reconditioner in 2011.
15 You began using alcohol and cannabis regularly from the age of 15, and as has been described this morning by Mr Skehan, on your behalf, you attended Mr Lamberti, who is a rehabilitation consultant, for some six months to assist you to come to terms with your addiction to marijuana, and that had been successful up until a minor lapse in very recent times. Indeed, Mr Lamberti confirmed with the author of the report that Mr Ung had attended you regularly for many months and had provided many clean urine samples during that period.
16 The author of the report assessed you as suffering from the major diagnosable psychological disorders of depressed mood disorder and poly substance abuse disorder.
17 You have no prior convictions, and I sentence you as a person of previous good character, and I understand you are 26 years of age.
18 Reports, as I say, were also tendered in addition to the one from which I have read, from a neuropsychological service, Mr Brewer, and that is also tendered by consent, and I have read it and take its contents very much into account, as I do the other material that was put before me on your behalf, and in particular the character references which I found very helpful and insightful.
19 You have been in no further trouble since this matter and I am, on balance, satisfied the chances of your rehabilitation are reasonably good if you continue on the current path that you have embarked on of giving up marijuana which has clearly led you into the commission of a very significant offence.
20
With respect to parity of offending, of course I will take into account the sentence which I intend to impose in the matter of Humphries, your
co-accused, although it seems to me there are significant differences between you. Firstly with respect to the prior convictions of Mr Humphries, which are extensive and relevant in the sense that, both with respect to possession of weapons as well as cultivation or involvement with cannabis. You have sought to use the time that has elapsed since the commission of your offence to effect your rehabilitation in a meaningful and protracted way. I have referred to Mr Lamberti, and you deserve credit for that, and of course also for the anxiety attendant upon the passing of that time, I have no doubt has had a significant impact on you and your family as you face the inevitability of a prison sentence. You have no prior convictions.
21 Of course, as well as those matters personal to you, to which I have referred, including the question of rehabilitation, I must take into account such matters as deterrence, especially general deterrence, which is always of importance in cases such as these. Specific deterrence is of not great significance in the circumstances of this case.
22 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending, which I find to be very modest in your case for the reasons that I have set out, and as I say, you have engaged successfully and meaningfully with persons who can assist you in giving up your dependence on marijuana. The Community Corrections Order which I intend to impose for the period of two years will also provide ongoing counselling support in that regard.
23 I also make the orders sought by Mr Nibbs, on behalf of the DPP, not opposed by yourself, with respect to disposal, compensation and forfeiture, and there is also a s.464ZF which has not been opposed by you, and I make that order.
24 I am satisfied that it is in the interests of justice, given the seriousness of the offending, that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth, and although you have consented, if you change your mind, I must inform you the police may use reasonable force to enable that procedure to take place. Do you understand that, Mr Duggan? And if you would stand for a moment, please.
25 PRISONER: Yes, Your Honour.
26 HIS HONOUR: Mr Duggan, they are without doubt serious offences. In all the circumstances, I have no alternative to the imposition of a custodial sentence. On Count 1, you will be sentenced to 18 months' imprisonment, all of which will be suspended for a period of two years.
27 Having given the matter some thought, I have come to the conclusion that whilst in all the circumstances I consider I do not have any alternative to the imposition of a term of imprisonment, I have decided that a suspended sentence is appropriate in your case.
28 The purpose of imposing a sentence of imprisonment is to indicate how serious the offence is. The purpose of suspending it is to allow you to demonstrate your commitment to your rehabilitation.
29 You must not, during the period of suspension, commit another offence punishable by imprisonment in or out of Victoria. If that occurs, you will be in breach of the terms of the suspended sentence and should expect to be brought back before the court and be ordered to serve the sentence that was suspended. Do you understand the consequences of committing an offence during the period your prison sentence is suspended?
30 PRISONER: Yes, I do, Your Honour.
31 HIS HONOUR: With respect to Count 2, there will be Community Corrections Order. That will be for a period of two years. You must attend at the Ringwood Community Corrections Services in Ringwood within two clear working days.
32 The mandatory terms that apply to all Community Corrections Orders are:
You must not commit another offence for which you could be imprisoned during the time that the order is in force; you must report to and receive visits from a Community Corrections Officer; you must report to the Community Corrections Centre within two clear working days of the orders starting; you must let a Community Corrections Officer know within two clear working days of you changing your address or job; you must not leave Victoria without first getting permission to do so from a Community Corrections Officer; you must obey all lawful instructions from and directions of Community Corrections Officers.
33 In addition to those mandatory terms, you must perform 200 hours of unpaid community work over two years, as directed by the regional manager; you must be under the supervision of a Community Corrections Officer for a period of two years; you must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the regional manager; and you must undergo mental health assessment and treatment including, but not limited to mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility, as directed by the regional manager.
34 Do you understand the effect and conditions of this order and do you consent to it being made?
35 PRISONER: Yes, Your Honour.
36 HIS HONOUR: Mr Skehan, if you could attend on Mr Duggan and ask him to sign that document in the appropriate place with my associate, thank you.
37 MR SKEHAN: If Your Honour pleases.
38 HIS HONOUR: On the use of drug of dependence, $150 fine; and the possess sword, there will be a $500 fine, and I will allow a stay of one month with respect to that.
39 MR SKEHAN: If Your Honour pleases. Are they with conviction, Your Honour?
40 HIS HONOUR: Yes.
41 (Community Corrections Order signed and acknowledged.)
42 HIS HONOUR: Thank you.
43 All right, Mr Duggan, I think - what is the nearest police station that he needs to report to for the 464ZF order, is it Ringwood?
44 PRISONER: The nearest police station to me is probably Belgrave.
45 HIS HONOUR: Belgrave. I just need to check on the list. Is that on the list of places that -
46 MR SKEHAN: Yes.
47 HIS HONOUR: I think that will need to be - - -
48 MR SKEHAN: Ringwood is convenient, Your Honour, if that assists.
49 HIS HONOUR: All right. I think we just might make it Ringwood, and that way he can - there is a Belgrave Police Station at 2 Ena Road. Do you want to - Ringwood or Belgrave?
50 PRISONER: Belgrave would be closer, Your Honour.
51 HIS HONOUR: All right. So I will put "Officer-in-Charge of the Belgrave Police Station located at" - well, you can fill the address in.
52 All right, Mr Duggan, I think that completes your matter. What I guess you understand is that all of this is being recorded, and the reason that - whilst I have spoken rather quickly, I am sure Mr Skehan will explain what it all means. But from your point of view it really means just one very effective thing, which is that if things go wrong in the next two years, then you understand what the consequences are. So this is your chance. And you understand that your co-accused did not take advantage of the chances he was offered. This is your chance, so it is all up to you. We will not be out there in your pocket for the next two years, and you will be making the decisions that will mean how things go. So good luck with your choices, may they be the right ones.
53 PRISONER: Thank you, Your Honour.
54 HIS HONOUR: All right, then, you can step forward, I think, Officer, is that right? Yes, thank you, and we will now move on to the next matter.
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