Director of Public Prosecutions v Emmins, Shane
[2013] VCC 144
•21 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE EMMINS SALLY GIBSON KEVIN NIGHTINGALE |
---
JUDGE: | Her Honour Judge Harbison | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2013 | |
DATE OF SENTENCE: | 21 February 2013 | |
CASE MAY BE CITED AS: | DPP v Emmins, Shane; Gibson, Sally & Nightingale, Kevin | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 144 | |
REASONS FOR SENTENCE
---
Catchwords: cultivating a narcotic plant
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | MR A MOORE | |
| For the Accused Emmins For the Accused Gibson | MR C MORGAN | |
| For the Accused Nightingale | MR D GRAY |
HER HONOUR:
1 Mr Nightingale, Mr Emmins and Ms Gibson I will be addressing my comments to you but you do not have to stand until I tell you to.
2 Kevin William Nightingale, Shane Gilbert Emmins and Sally Anne Gibson, you have each pleaded guilty before me to one charge of cultivating a narcotic plant, namely cannabis.
3 The first charge on the indictment is in respect of you, Kevin William Nightingale and the second charge charges that both you, Shane Gilbert Emmins and you, Sally Anne Gibson cultivated a narcotic plant.
4 The first charge relates to you, Kevin Nightingale, having cultivated cannabis at your home at 93 Masons Gap Road, Chilton.
5 The second charge relates to you, Shane Emmins and Sally Gibson, having cultivated cannabis at your home at 75 Masons Gap Road, Chilton.
6 You, Nightingale, have lived with your wife at 93 Masons Gap Road for many years. On the 6 April 2011 police executed a search warrant at your home simultaneously with doing the same at the property at 75 Masons Gap Road occupied by Emmins and Gibson.
7 You were at home at the time at your property. The police located the following items. Initially, they found four boxes containing cannabis buds. In the dining room of the house they found a further two boxes containing bags of cannabis buds. In one bedroom at the house a washing basket and a zip-lock bag were located, each of which contained cannabis buds.
8 In the chook shed a quantity of cannabis branches and leaves were found. Behind the chook shed the root systems and stalks of four mature cannabis plants were found.
9 In another shed a quantity of cannabis branches and leaves were found. Behind this shed the root systems and stalks of further mature cannabis plants were found. In addition, throughout your property, many containers and bags containing hundreds of cannabis seeds were found. The cannabis seeds from your property were analysed and the total weight seized was just less than 25 kilograms.
10 When you were interviewed by the police you maintained that all of this cannabis was for your personal use. Specifically, you described a medical condition which you took medication and indicated that you also had sciatica in your back.
11 I now turn to the circumstances of the apprehension of you, Emmins and Gibson. As I have said police simultaneously executed a search warrant on your property. Both of you were at home at the time. At your property police located the following -
35 cardboard boxes containing cannabis buds which had been left by a wood heater to dry;
One shopping bag containing cannabis buds which was in a freezer;
A custom built walled enclosure made of Colorbond, approximately three metres tall in which was growing three mature cannabis plants, one about four foot tall and the other two about eight foot tall.
Another smaller custom built wall enclosure was also found containing three mature cannabis plants each about six feet tall.
There was one more mature cannabis plant found about 10 feet tall behind a concrete water tank.
12 Police also found a wheelbarrow and a wheelie bin both located in the shed and both of which contained cannabis leaves.
13 The total weight of cannabis seized from your property, Mr Emmins and Ms Gibson, was 17.445 kilograms.
14 Both of these homes are on the same title. The property is a large farm property at Chilton. Originally, as I understand it, the police suspected that because of the proximity of each of these crops to the other and because you, Emmins and you Nightingale are half brothers that the two locations were in fact one single enterprise of growing cannabis.
15 I was told by the prosecutor on the plea that the prosecution concedes that there is insufficient evidence of such a connection and it was not pressed in this way on the plea before me.
16 Before sentencing you I was required to make a finding under s.72B of the Drugs, Poisons and Controlled Substances Act. That section provides for a penalty of not more than one year's imprisonment or a fine if I am satisfied on the balance of probabilities that the offence was not committed by you for any purpose relating to trafficking in that plant.
17 If I am not so satisfied the section provides a maximum penalty of imprisonment of 15 years or a more substantial fine.
18 I have separately determined that I am not so satisfied. I therefore sentence you today on the basis that the heavier penalty is applicable. Having made that determination under s.72B I now turn to the balance of the sentencing considerations relevant to this plea.
19 I will refer to those considerations which are common to each of you and then refer to each of you separately.
20 First of all each of you has pleaded guilty to this offence, subject of course, to the contested issue which I have now resolved. In so pleading guilty you have saved the community the cost of a trial. I also accept that your plea of guilty has in each case been an indication of your remorse for having been involved in this criminal activity. I therefore propose to give you the full benefit of that plea of guilty in sentencing you today, notwithstanding the fact that there was a contested issue which had to be dealt with by me before this plea could proceed.
21 In making my determination last week I acknowledged that there was no sophistication in the cultivation at either property. I also acknowledged that there is no evidence of enrichment at either property and I take these matters into account in sentencing each of you today.
22 In sentencing each of you I must pay particular attention to the principle of general deterrence. In respect of you, Nightingale and you, Emmins, I am also concerned with the principle of specific deterrence, that is, the need to deter you from re-offending and the reason that I have referred to each of you separately in this context is that each of you has prior convictions in relation to drugs.
23 In light of the matters put forward on the plea the prosecutor submitted to me that each of you, Nightingale and you, Emmins, should receive a term of immediate imprisonment involving a period of actual imprisonment of between three and six months.
24 The prosecutor conceded that you, Gibson, may be eligible to be dealt with by way of a Community Corrections order.
25 There are some specific sentencing considerations which I must take into account in respect of each you.
26 I deal first with you, Kevin William Nightingale. You are 52 years of age. You come from a very large family of six brothers and a sister. One of your brothers has died.
27 You left school at 14 years of age in order to assist supporting your large family. Despite your lack of education you had steady employment in various unskilled occupations, finally obtaining a job in a factory fabricating windows. You worked at that factory for 18 years until you hurt your back badly in 1994. Before that injury you had shown resourcefulness by building your own house at the property at which you were ultimately arrested.
28 The back injury which you suffered was so debilitating that you have not been able to work since that time. You and your wife have continued to live at the property on a pension eking out what your counsel described as a spartan existence since that time. I have been shown some photographs of your house and I agree with that description. You certainly do not live in luxury.
29 Since being apprehended for this offence you have felt unable to leave the property because of your notoriety. The notoriety is as a result of various overblown accounts of your offending which have appeared in your local newspaper. The accounts give the suggestion that you and your co-offenders were apprehended engaged in large scale commercial trafficking and that you had profited handsomely from it. I found no evidence at the plea hearing before me to support this description of your activities.
30 This publicity has had a profound effect on you. I was told that you presently suffer from depression as a result of your physical condition aggravated no doubt by the circumstances which have brought you before the court today. I was told that your life now comprises your family, being your children and your eight grandchildren.
31 You are finding it increasingly difficult to maintain your property because of your physical condition. I was told that your back injury has left you with constant pain and I accept that one of the purposes for which you cultivated the cannabis the subject of this charge was to assist in pain relief.
32 Mr Nightingale, you have several criminal convictions of a drug related nature. These convictions go back to 1984. You appear to have ceased offending in August of 1997, a period of some 13 years after you commenced and a significant period of time in the past.
33 Over that 13 years you had been before the court on four occasions for cultivating a narcotic plant, namely cannabis, possessing a drug of dependence and for trafficking in cannabis.
34 I accept your counsel's submission that the fact that on two of these occasions no conviction was recorded against you but that indicates that those offences were at the very low end of seriousness and I note also that you have now not been convicted of any drug related offence until today for 15 years.
35 I was told by your counsel that you have now completely stopped using cannabis. I was also provided by your counsel with a botanists report which indicated that the useable quantity of the cannabis seized was significantly less than the full weight. I accept that that was so and I accept the indicating from your counsel that you have now stopped using cannabis.
36 I also note that although you have had several convictions in the past you have never been convicted of an offence involving dishonesty or violence and that were I to imprison you today that would be your first term of imprisonment, you never having been in a prison before.
37 I turn now to you, Shane Emmins. Shane Emmins, you are now, I think, 47 years of age. I received several character references on your behalf. Those references attest your community involvement by way of your service in your local fire brigade and your helping out at working bees and other events at your children's school.
38 I received six such references. Each of them speak of you and Sally Gibson in glowing terms. Your employer, for instance, described you as hardworking, reliable, trustworthy and diligent with study and paperwork.
39 I also heard sworn evidence, on your behalf, from Greg Dale. He is a psychologist but he gave evidence on your behalf in his private capacity. He met you through your children's school and has worked with you and Gibson, with Gibson on the school council and with you being involved in activities through the CFA. He told me that it is rare to find people such as you and Gibson who are prepared to volunteer their time and talents to assist their local community.
40 He described how devastated you were when you were stood down from the CFA as a result of being charged with these offences and how difficult this has made it for the local CFA as you were a driver and drivers are scarce and in demand.
41 Both you and Gibson have also been profoundly affected by your notoriety brought about by the press descriptions of your offending. I am told that you, Emmins, are presently employed as a manager with North-East Water and that you are studying to attain the Certificate III in water operations in order to qualify you for further positions of responsibility.
42 However, Mr Emmins, you also have some prior criminal history. You have a conviction for possession and carrying a firearms. This conviction occurred in 1986 and you were fined $50. I propose to disregard that conviction in sentencing you today. You have, however, a relevant conviction for trafficking cannabis and cultivating cannabis. You were so convicted in 1997 at the Wodonga Magistrates Court and fined.
43 I appreciate that this conviction occurred some 15 years ago. I appreciate, also, your evidence before me that you did not understand that the conviction for trafficking was as it was for trafficking, rather than cultivating. This conviction, however, does have some relevance in sentencing you today. Like Nightingale I note that apart from the position of carrying the firearms you have no other convictions which are in any way relating to violence and that you have never before been imprisoned.
44 As with Nightingale, your counsel provided to me a botanist report which indicated that the usable quantity of cannabis found at your property was significantly less than the dried weight which I identified at the start of these sentencing reasons.
45 Sally Anne Gibson, you come before me with no criminal history at all. As I understand it you are engaged in caring for your children and I have received several references, as I have described, attesting to your good character and your community work, principally through your work at your children's school.
46 I also received some documents of a medical nature outlining the medical condition from which you suffer. I accept that one of the significant reasons for your actions in cultivating the cannabis was to enable you to use it for pain relief.
47 It is clear that your medical condition has been with you for many years. Indeed the medical evidence indicates that medical practitioners were attempting to work out a solution to the problem from at least the age of 11. You are presently aged 42 years.
48 There appears to be no precise medical diagnosis for your problem but it is generally described in the medical report which I have as being irritable bowel syndrome.
49 Those are the personal circumstances which were put to me in relation to the plea. Although you, Nightingale and you, Emmins, have significant drug-related convictions I accept that each of you have very good prospects for rehabilitation. I regard it as unlikely in the extreme that you, Gibson, will ever re-offend given the impact that this case and the subsequent publicity has had on you.
50 Given the most publicly humiliating way in which your offending has surfaced I also regard you, Nightingale, and you Emmins as having learned a very valuable lesson and I also find it unlikely, on balance, that either of you will re-offend even taking into account your prior criminal history.
51 However, I regard it as my responsibility to send a message to the community of the severity with which the courts approach the cultivation of drugs.
52 On any view the cannabis cultivated was a significant quantity. The only appropriate sentence, in respect of you Nightingale, and you Emmins is a prison sentence. I will, however, fully suspend the sentences of imprisonment which I will impose upon you today in recognition of the force of the matters advanced on your plea and in particular in recognition of the fact that you have not come to police attention for many years and have never, in the past, served a sentence of imprisonment.
53 Kevin Nightingale, can you stand up please?
54 Kevin Nightingale, on the charge of possessing cannabis, you are convicted and fined $250. On the charge of cultivating a narcotic plant you are convicted and sentenced to be imprisoned for two years.
55 The position is this, Mr Nightingale. I have imposed a sentence of imprisonment upon you but I am not requiring you to serve any part of it immediately in prison.
56 Under the power given to me I am wholly suspending that sentence. If you remain law abiding you will never have to serve this sentence in prison. The period during which you must not commit an offence to avoid being dealt with is three years.
57 I am required to inform you that if during that period of suspension you commit any other offence punishable by imprisonment you will be brought back before this court and probably by me to be dealt with. It doesn't matter whether you are sent to prison for the other offence in Victoria or anywhere else. If you are brought back before me to be dealt with you will almost certainly be ordered to serve the two-year sentence in prison.
58 Do you understand that?
59 PRISONER NIGHTINGALE: Yes, Your Honour.
60 HER HONOUR: Yes. You can sit down. Shane Emmins, can you stand up please?
61 On the charge of possessing cannabis you are convicted and fined $250. On the charge of cultivating a narcotic plant you are convicted and sentenced to be imprisoned for 12 months.
62 Mr Emmins, the position with you, is also as I have outlined to Mr Nightingale. I have imposed a period of imprisonment of 12 months, however, I am not requiring you to serve any part of it immediately in prison. Under a power given to me I am wholly suspending that sentence.
63 That means that you do not have to immediately serve that sentence in prison. If you remain law abiding you will never have to serve the sentence. The period during which you must not commit an offence punishable by imprisonment to avoid being dealt with is three years. I am required to inform you also that if during the period of suspension you commit another offence punishable by imprisonment, either here or outside Victoria, you will be brought back before this court - most likely brought back before me - and you will most probably be ordered to serve the full sentence of 12 months' imprisonment.
64 Now, do you understand what I have just said to you?
65 PRISONER EMMINS: Yes, Your Honour.
66 HER HONOUR: Yes, thank you. You can sit down. Sally Gibson, can you stand up, please?
67 Sally Gibson, on the charge of possessing cannabis you are convicted and fined $250.00. On the charge of cultivating a narcotic plant I have called for a report as to whether you are suitable to be dealt with by way of a Community Corrections order. I had received a report which indicates that you are. I therefore propose to take that course.
68 The period of the Community Corrections Order will be three years. There are some standard conditions which apply to the Community Corrections order. They are as follows. First of all you must not within the period of the order commit any offence punishable by imprisonment, either inside Victoria or outside Victoria. Secondly, you must report to and receive visits from a representative of the secretary during the period of the order. Thirdly, you must report to the Community Corrections Centre specified in the order within two clear working days. I suggest that you go today.
69 Next, you must notify the Secretary of any change of address or employment within two clear working days after that change. And, lastly, you must not leave Victoria except with the permission of the Secretary. Now, I know that that condition creates some problems for people living in border towns and you will need to speak to the officials concerned as to how that applies in your case. The final standard condition is that you must comply with any direction given by the Secretary.
70 I will also make some further conditions to the order. Firstly, I will require you to complete 300 hours of community work over that three years. Secondly, you are required to be under the supervision of a Community Corrections officer for the duration of the order.
71 You are also required to undergo assessment and treatment, including testing for drug dependency and medical treatment as directed by the Secretary. If you contravene any of those conditions you should expect a term of imprisonment.
72 Now, Ms Gibson, I can only make that order if you consent to it. Do you consent to the making of a Community Corrections order?
73 PRISONER GIBSON: I do.
74 HER HONOUR: All right. Well, the document now needs to be taken to you to be signed and you can take a seat.
75 PRISONER GIBSON: Thank you, Your Honour.
76 HER HONOUR: The orders will all need to be confirmed on the computer system and then Mr Morgan, if you could go with my Associate and explain the Community Corrections order.
77 MR MORGAN: Yes. I will do that, Your Honour.
78 HER HONOUR: Just whilst they are being confirmed I will indicate that I have also received a forensic sample applications from the Crown and I have made forensic sample orders in respect of each, Emmins, Gibson and Nightingale. I need to provide my reasons for doing so. I indicate that the circumstances of the offence are serious. It is in the public interest for such an order to be made and in relation to Nightingale and Emmins with prior convictions of each of you have been taken into account in making the order.
79 I am required to inform each of you, Emmins, Gibson and Nightingale, that having made this order, once it is served upon you that a member of the police force may use reasonable force to enable the procedure to be conducted.
80 The prosecution also seeks disposal orders in relation to certain property found at each house and I have signed those orders. I declare that I am satisfied as to the required matters under the sections of the Confiscation Act which allow me to make those orders.
81 I also indicate that had you, Nightingale, not pleaded guilty you would have been convicted and sentenced to three years' imprisonment and I would have ordered that you serve a period of two years' imprisonment before being eligible for parole.
82 Had you, Shane Gilbert Emmins, not pleaded guilty you would have been convicted and sentenced to two years' imprisonment and I would have ordered that you serve a period of 14 months' imprisonment before being eligible for parole.
83 And had you, Sally Anne Gibson, not pleaded guilty you would have been convicted and sentenced to 12 months' imprisonment.
84 And I further direct pursuant to s.6AAA that each of those sentences that would have been imposed but for the plea of guilty be noted in the records of the Court.
85 MR MOORE: If I could just raise one matter, Your Honour?
86 HER HONOUR: Yes?
87 MR MOORE: The related summary offence in each case was actually "use cannabis" and not "possess".
88 HER HONOUR: I am sorry. "Use".
89 MR MOORE: It might have been a slip of the tongue.
90 HER HONOUR: Yes. I am sorry. Rather than on the charge of using cannabis in each case, rather than possessing. Are there any other matters anyone wishes to raise?
91 MR MORGAN: No, Your Honour. Thank you.
92 HER HONOUR: All right. Well, we'll just wait for those documents to be signed.
93 MR MOORE: Your Honour, if I can just approach? If I may?
94 HER HONOUR: Yes. Thank you, Ms Gibson, you have now signed that document and so have I. Your obligations under the Community Corrections order will now take effect. Yes, thank you. There are no other matters?
95 MR MOORE: No other matters, Your Honour.
96 HER HONOUR: Thank you, Mr Morgan and Mr Duncan, for your assistance in this matter and thank you Mr Moore for your assistance in this circuit.
97 MR MOORE: Thank you, Your Honour.
98 HER HONOUR: Adjourn the court sine die, Mr Tipstaff.
99 - - -
0
0
0