Director of Public Prosecutions v Failla
[2023] VCC 2386
•19 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-22-01572
Indictment No. M12071883
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY FAILLA |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 23 November 2023 | |
DATE OF SENTENCE: | 19 December 2023 | |
CASE MAY BE CITED AS: | DPP v Failla | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2386 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of cultivation of a narcotic plant, Cannabis-L, in a commercial quantity – one charge of theft – one charge of knowingly dealing with proceeds of crime – pleas of guilty – Charge 1 is a Category 2 offence – application of s5(2H) of the Sentencing Act 1991 – whether the exception contained in s5(2H)(e) is applicable – various mitigating factors – whether various allegations of “third party hardship” are “exceptional”
Legislation Cited: Drugs Poisons and Controlled Substances Act 1981, s72A; Sentencing Act 1991, s3(1), s52H; Crimes Act 1958, s74(1), s194(2);
Cases Cited:Worboyes v R [2021] VSCA 169; Barbaro v R; Zirilli v R (2012) 226 A Crim R 354; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Markovic v R; Pantelic v R (2010) 30 VR 589; Borg v R [2020] VSCA 191; Director of Public Prosecutions (DPP) v Hill (A Pseudonym) [2023] VSCA 84;R v Panuccio (unreported, Victorian Court of Appeal, dated 4 May 1998, Winneke P and Brooking and Charles JJA); R v Edwards (1996) 90; Fariah v R [2021] VSCA 213; Director of Public Prosecutions (DPP) v Lombardo [2022] VSCA 204; Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 309; Farmer v R [2020] VSCA 140; Director of Public Prosecutions (DPP) (Vic) v O’Neill (2015) 47 VR 395; Buckley v R [2022] VSCA 138; Director of Public Prosecutions (DPP) v Bowen (2021) 65 VR 385; Le v R [2021] VSCA 220; Lieu v R (2016) 263 A Crim R 173; Bugmy v R (2013) 249 CLR 571; Gregory (Pseudonym) v R (2017) 268 A Crim R 1
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr C Mandy SC | Doogue & George |
HIS HONOUR:
1Anthony Failla, on 23 November 2023, you pleaded guilty to the following charges on Indictment No. M12071883:
CHARGE 1 – that you, at Gembrook in Victoria on 1 October 2021, cultivated a narcotic plant, namely Cannabis-L, in a quantity not less than the commercial quantity applicable to that narcotic plant.
The offence of cultivation of a narcotic plant in a commercial quantity is contrary to s72A of the Drugs Poisons and Controlled Substances Act 1981 and carries a maximum penalty of twenty-five years’ imprisonment.
The offence of cultivating a narcotic plant in a commercial quantity is a Category 2 offence, as defined in s3(1) of the Sentencing Act 1991. Accordingly, pursuant to s5(2H) of the Sentencing Act 1991, a court must sentence you to a term of imprisonment (not including a combined sentence involving a community correction order) unless one of the relevant exceptions apply. Your counsel indicated that he relied on the exception set out in paragraph (e) of s5(2H) of the Sentencing Act 1991.
CHARGE 2 – that you, at Gembrook in Victoria on 1 October 2021, stole a quantity of electricity belonging to Ausnet Energy.
The offence of theft is contrary to s74(1) of the Crimes Act 1958, and carries a maximum penalty of ten years’ imprisonment.
CHARGE 3 – that you, at Gembrook in Victoria on 1 October 2021, dealt with $45,600 in cash, knowing it was proceeds of crime.[1]
The offence of knowingly dealing with the proceeds of crime is contrary to s194(2) of the Crimes Act 1958 and carries a maximum penalty of fifteen years’ imprisonment.
[1]Initially this charge alleged that the proceeds of crime amounted to $45,000. On application by counsel for the prosecution, leave was given, without opposition, to amending the charge to “$45,600”.
2Those acting for the prosecution also seek Disposal and Forfeiture Orders which were not opposed.
The circumstances of the offending
3Counsel for the prosecution tendered a document headed “Summary of Prosecution Opening”, dated 31 October 2023 (exhibit 1). I was informed by your counsel that the circumstances outlined in such document were accepted.
4I will not repeat all the contents of such a document, but highlight the following important matters:
· You were born in February 1977 and are presently forty-six years old. At the time of the subject offending, you were forty-four years old and living at premises situated at Buchanan Road, Berwick.
· On 1 October 2021, police attended premises situated at 94 Maisey Road in Gembrook (“the premises) and executed a warrant pursuant to the Drugs Poisons and Controlled Substances Act 1981 and the Crimes Act 1958.
· The premises is owned by EDAC International Pty Ltd, of which you are a director, the secretary and a shareholder. The premises is a farming property, which contained a large disused factory surrounded by overgrown trees and shrubs. The entry to the factory was through a large electric roller door which was locked at the time of the execution of the warrant and no-one was present.
· Police forced entry into the factory and located multiple wooden crates containing soil and vegetable matter consistent with cannabis. There were also boxes which contained fans, LED grow lights, plastic tubing and related material.
· Police then forced entry to an internal secured area, which had been sealed with white refrigeration panelling and a door closed with a padlock.
· Inside this second area was a hydroponic set up for the growing of cannabis plants, with the area divided into a number of rooms lined with refrigeration and freezer insulation panelling.
· Police located blue disposable gloves, a gardening glove and a cap, which were analysed for DNA and showed that you were 100 billion times more likely to be a contributor.[2]
[2]Reference is made to the DNA statement of Louise Brown, dated 7 April 2022.
· Five of the rooms contained cannabis plants in different stages of growth, with two of the rooms used for drying the cannabis material. There was one additional room which showed evidence of a recent harvest of cannabis.
· Police discovered that the electricity had been bypassed and a technician from Ausnet Services attended the premises and noted the following:
§Room 3 – 27 x 1000 watt lamps and ballasts and 6 x 225 watt carbon exhaust fans.
§Room 4 – 27 x 1000 watt lamps and ballasts and 8 x 225 watt carbon exhaust fans.
§Room 5 – 25 x 1000 watt lamps and ballasts and 8 x 225 watt carbon exhaust fans;
§Room 6 – 2 x 225 watt carbon exhaust fans.
§Room 7 – 45 x 1000 watt lamps and ballasts and 12 x 225 watt carbon exhaust fans.
§Room 8 – 45 x 1000 watt lamps and ballasts and 12 x 225 watt carbon exhaust fans.
§Room 9 – 7 x 1000 watt lamps and ballasts and 1 x 225 watt carbon exhaust fans.
· The electrical bypass was connected via a pole at the rear of the premises to powerlines, with irregular wiring and connecting unmetered mains’ cables to five switchboards.
· The timing for the hydroponics in Rooms 3 to 8 was set at twelve hours while the timing for Room 9 was set at eighteen hours per day.
· The estimated use of unmetered electricity was 2282.25 kilowatts per day (Charge 2).
· The cannabis recovered by police at the premises was as follows:
§Room 3 – 27 cannabis plants weighing 71.32 kilograms.
§Room 4 – 27 cannabis plants, weighing 80.56 kilograms.
§Room 5 – 75 cannabis plants, weighing 30.42 kilograms.
§Room 8 – 45 cannabis plants, weighing 75.60 kilograms.
§Room 9 – 146 cannabis plants, weighing 9.01 kilograms.
Police located a bucket of loose cannabis in Room 6 and on drying racks in the same room.
· The total weight of the 320 cannabis plants was 266.91 kilograms, together with the loose dry cannabis, weighing a total of 301.7 kilograms (Charge 1).[3]
· At 1.10pm on the day that the warrant was executed, you arrived at the premises and were arrested. In your pocket was located $2,000 (no allegation is made in relation to this sum of money).
· Your vehicle, an Amarok utility, was also searched and police located $45,600 in the standard glovebox beneath the driver’s seat (Charge 3).
· You were taken to the Pakenham Police Station and participated in a record of interview, during which you made “no comment” responses to the allegations put to you.
· You were remanded in custody from 1 October 2021 and were bailed on 19 October 2021, and your bail has continued until this date.
[3]Pursuant to Part 3 of Schedule Eleven of the Drugs Poisons and Controlled Substances Act 1981. Possession of Cannabis-L is defined as: a small quantity 50.0 g; a commercial quantity 25.0 kilograms or 100 plants; a large commercial quantity 250 kilograms or 1,000 plants and a trafficable quantity 250 grams or ten plants.
5Counsel for the prosecution also set out a simple chronology made up as follows:
CHRONOLOGY
1 October 2021
Filing hearing
19 October 2021
Bail application, granted
10 January 2022
Committal mention
listed for committal on 31 August 2022
31 August 2022
Committal, matter resolved, SHUB with plea listed 4 April 2023
30 November 2022
Variation of bail conditions
8 March 2023
Plea date of 4 April 2023 vacated and adjourned to 23 November 2023
23 November 2023
This plea
6As indicated in the chronology, you indicated you would plead guilty to the subject offences following a committal on 31 March 2022. The committal was run to investigate other people being involved in the offending. Counsel for the prosecution accepted that, in all the circumstances, such a plea was an “early plea”.
7You have no prior convictions and nor have you been charged or convicted of any subsequent offending.
Your personal circumstances and background
8Your counsel tendered the following documents:
(a) a document headed “Defence Outline of Plea Submissions”, dated 20 November 2023 (exhibit “A”);[4]
[4]Counsel for the prosecution also tendered a document headed “Prosecution Submissions on Plea (exhibit 2). In that document, counsel for the prosecution make various submissions in relation to sentence, to which reference will be made later in these Reasons, and also makes submissions in relation to various matters submitted by your counsel in mitigation of sentence.
(b) report of the forensic psychologist, Ms Carla Ferrari, (“the psychologist”), dated 8 November 2023 (exhibit “B”). She assessed you on 2 March 2023 and 18 October 2023. Reference will be made to her report later in these Reasons;
(c) medical report from your general practitioner, Dr Elvera Stow, at the Mount Waverley Clinic, dated 31 October 2023 (exhibit “C”). In her report, Dr Stow records that you attended the Mount Waverley Clinic on 17 October 2022 with symptoms of stress, anxiety, headache, fatigue, shortness of breath on exertion and insomnia. A blood test revealed severe iron deficiency and anaemia, with a haemoglobin of 56 (normal reading is 130-180). You were referred to the Monash Medical Centre Emergency Department and required a blood transfusion and an iron transfusion.
In November 2022, through Monash Health, you had a colonoscopy and gastroscopy to investigate the cause. Ultimately, it was determined that the cause of the anaemia was chronic haemorrhoidal bleeding. Your iron levels continued to drop and you were referred to Monash Health again for another iron infusion on 23 December 2022. You received such infusion on 8 January 2023.
You continued to have bleeding and were seen by the colon rectal surgeon, Dr T Nguyen on 26 June 2023 and haemorrhoid surgery was booked. You underwent elective haemorrhoidal artery ligation and recto-anal repair on 4 August 2023 and the bleeding has finally stopped. Your haemoglobin was finally better, but you have continued to be iron deficient and have recently been referred for another iron infusion, which is pending.
You reported to Dr Stow that you had haemorrhoid surgery in 2018, but three months later the bleeding returned and you continued to put up with it over the next few years, until seen on 17 October 2022. Dr Stow opines that it is likely that you have been iron deficient and anaemic over the last few years and this was impacting on your general wellbeing over that time. Symptoms of low iron include insomnia, restless legs and fatigue.
Dr Stow notes that, while there were no blood tests available from 2021, it is likely that you were affected during the time of your offending. Furthermore, Dr Stow opines that it is quite likely your poor physical health at the time had an effect on your mental health and may have contributed to your poor judgement at the time of offending;
(d) report from your treating psychologist, Dr Charlotte Ho, dated 19 November 2023, (exhibit “D”). In her report, Dr Ho notes that you made a self-referral for psychological support and intervention in October 2022 and, as at the date of her report (19 November 2023), had attended nine sessions and one session at Blossom Consulting.[5] Dr Ho notes that treatment, largely consists of Cognitive Behavioural Therapy to address your presenting issues, which included previous problematic lifestyle, previous substance use, difficult family dynamics, emotional dysregulation, maladaptive coping mechanisms, maladaptive problem solving and self-identity.
[5]You attended at Arrow Health on 11, 18 and 25 October 2022; 29 November 2022, 23 December 2022, 27 January 2023, 10 February 2023, 24 April 2023 and July 2023. You attended Blossom Consulting on 13 October 2023.
As treatment progressed, Dr Ho notes that you were able to identify contributing factors to your offending behaviour at the time – business being in financial difficulties; family pressure (due to longstanding dysfunctional family relationships); emotional dysregulation; limited coping mechanisms and lack of judgement due to limited insight at the time.
Dr Ho states that strategies were given to you to help reduce the level of risk, to change your lifestyle and manage future recidivistic risks. She notes:
“[You] were noted to have adopted all recommendations and [have] since made significant changes in [your] life, indicating that [you have] developed insight into [your] maladaptive behaviour. These changes include re-evaluating [your] life goals, stopping recreational drug use, distancing [yourself] from anti-social acquaintances, connecting with prosocial friends and family members, and undergoing regular psychological treatment to maintain [your] mental health. Most importantly, [you have] been able to maintain these changes.
During the course of treatment, [you were] noted to have developed insight into [your] offending behaviour and how it has affected the general community, [your] family, and [yourself]. [You continue] to show remorse in [your] involvement.”
Dr Ho also noted that you exhibited traits of Attention Deficit Hyperactive Disorder (“ADHD”) and considered that such symptoms likely went undiagnosed when you were young. You were referred by Dr Ho to a psychiatrist and a formal diagnosis of ADHD was confirmed by Dr Neel Das. Dr Ho notes that although ADHD would not be deemed to be a causative factor in your offending behaviour, these symptoms would have played a role in poor decision making at the time. Dr Ho considered that the risk of re-offending was “low”;
(e) report from the consultant psychiatrist, Dr Neel Das, dated 7 November 2023 (exhibit “E”). Dr Das initially saw you on 9 July 2023 and subsequently on 20 August 2023. He notes that you also had an appointment with a psychologist, Ms Angela Scharfenberg, at Pandion Health on 19 July 2023. Ms Scharfenberg conducted specific psychological assessments for a neurodevelopmental disorder, which assisted Dr Das in his diagnosis.
Dr Das noted that you reported longstanding difficulty with sustained attention and restlessness and were unable to focus on one task/job for an entire day, and described yourself as someone who is very active, but said that this can only be sustained in short bursts.
Dr Das diagnosed you to be suffering with ADHD – predominantly inattentive presentation – and it was recommended that you commence on medication and ultimately you were prescribed medication, 20 milligrams a day. Dr Das was also aware you were attending a private psychologist – no doubt Dr Ho;
(f) an undated report from Ms Leticia Woodforde, who describes herself as a holistic counsellor, Reiki Master, trauma specialist and health coach (exhibit “F”). In an interesting report, Ms Woodforde describes how you have undergone six sessions with her, a mix of holistic counselling, energy healings – Reiki, Seichim and Pellowah ꟷ and health coaching, working holistically on your mind, body and spirit. According to Ms Woodforde, she has observed your personal growth during this period and she was struck by your respectful and caring nature. In particular, Ms Woodforde said that awareness is key on any healing “journey” and that you have definitely shifted your awareness about yourself and others in such a positive way, that there was “no turning back”;
(g) bundle of character references (exhibit “G”), consisting of:
(i)reference from Mr John Ternanov, managing director of Samson Industries Australia, dated 20 November 2023;
(ii)a further letter from John and Rebecca Ternanov, dated 20 April 2023;
(iii)reference from Mr David James Clerk, an old school friend, dated 21 October 2023;
(iv)reference from Mrs Irene Failla, your former wife, dated 21 November 2023;
(v)reference from your sister, Ms Christina de Sousa, dated 17 November 2023;
(vi)reference from your wife, Ms Jasmin Davis, dated 15 November 2023;
(vii)reference from Mr Nazrin Shah Bin Kamarudin, dated 31 October 2023. Mr Kamarudin described himself as someone who worked for you in the past and someone you still have contact with, and your business is trying to sponsor Mr Kamarudin on a 482 visa in order that he can become your production manager;
(viii)reference from Ms Lisa Campbell, dated 31 October 2023. Ms Campbell describes herself as someone who has worked for you in an administrative role for the last nine years;
(ix)reference from Mr Ransiri Fernando, dated 9 November 2023. Mr Fernando describes himself as having worked with your company as the quality manager up to December 2021, when he retired due to his health;
(x)reference from Ms Adele Davis, dated 4 November 2023. Ms Davis describes how she met you at a job interview with your company on 14 December 2016, after which she commenced employment on 9 January 2017;
(xi)reference of Mr Fabian Cockle, dated 16 November 2023. Mr Cockle describes himself as an old school friend of yours, first meeting when you and he were in Year 8 at Haileybury College in 1991.
9I have read all such references, which essentially fall into the following groups:
(a) References from people associated with your family ꟷ your present wife, Ms Jasmin Davis, your former wife, Mrs Irene Failla, and your sister, Ms Christine De Sousa (who also talks about the business you have been involved with);
(b) various references from those who are working, or have worked with you over the years – Mr John and Rebecca Ternanov, Mr Nazrin Shah Kamarudin, Ms Lisa Campbell, Mr Ransiri Fernando and Ms Adele Davis;
(c) old friends who have known you for many years – Mr David Clerk and Mr Fabian Cockle.
10In particular, I highlight the following matters:
(a) In her reference, your wife, Ms Jasmin Davis, describes the various turmoils you underwent in relation to conducting the family business and, indeed, dealing with your mother. She highlights that, since being released on bail, you have been dedicated to get your life and business back in order, and it was during this time that you married and she fell pregnant, later giving birth to a daughter, Bobby Grace Failla. She comments that you are “remorseful everyday (sic)” for what you did and how that has affected those around you.
In particular, your wife raises the following concerns if you are incarcerated:
(i)the impact on Bobby’s early emotional development if you are imprisoned;
(ii)your wife notes that she has no family located around her and, if incarcerated, she would have to make a decision about whether to move to Warrnambool to live with either her parents or sister;
(iii)she is worried about the vulnerable age of your two daughters from your first marriage, both of whom have been in your life since they were small. In this respect, your wife says they treat her like their own mum and that you and she have care of them seven days a fortnight. She does not want to lose them from their everyday life, but considers she would find it impossible to manage without you, especially without your support;
(b) in her reference, your former wife, Ms Irene Failla, also raises the following consequences if you are incarcerated:
(i)the impact on your two older children, bearing in mind they are in their formative years. She also asserted that “this will have a rippling consequence on [your] children and [her] that rely on [you]”. In particular, she noted that it would be inappropriate to take young children to prison to visit you. In general terms, she is worried about your children’s mental health;
(ii)she also notes that you are providing child support towards the “care, health and wellbeing of [your] children”, and, as already noted, you, with your present wife and her, are sharing the care and responsibility of your two older girls. She notes that, if you are sentenced to serve a time of imprisonment, it will result in a “significant financial burden on [her]”. In this respect, she notes that presently you assist in the responsibility of taking and collecting the children to school seven trips a fortnight and that she would be required to reduce her hours of work to replace your absence, which, in turn, will impact on her income. In general, she is concerned she will not be able to survive and support the children, given the cost of living is so high;
(c) I refer to the reference of your sister, Christina, wherein she describes, in some detail, various matters that you were exposed to when growing up (particularly your relationship with your mother), and also highlights the strong bond between you and her. She also sets out, again in some detail, your contribution to the ongoing business in which you are involved and your determination to make things succeed. She also highlights that, in this particular year, there have been “many successes in the business”, having expanded, among other things, the export of your various products. At the present time, the business employs over forty staff.
In particular, she asserts the following:
(i)that you are supported and loved deeply by everyone around you;
(ii)she is very worried that, if you are incarcerated, how you will cope with such incarceration. She comments that you found incarceration very difficult when previously remanded for eighteen days, albeit, during the height of the COVID-19 problems. In this respect, she notes that, even when talking to someone you are on the move all the time, and she is concerned about your mental state;
(iii)she notes that you are “intensely remorseful” and now want only to live a peaceful life supporting your family and working with her in the business. Again, she notes how you have “advanced” yourself through your medical, psychiatric and psychological treatment, and that you will have all the support you need to ensure that you never “go down the same track again”;
(iv)She also notes that, if you are incarcerated, the business is at risk and, in this respect, she refers to a pending product to be launched in early 2024 – much of that will depend on whether you are incarcerated and the length of any incarceration. In the same vein, she notes that, if incarcerated, this will impact on you, knowing the detriment you would have caused the business and staff losing jobs.
11I also refer to the references from those who have worked, or are working, for you in your past and present businesses. Many of those people describe you as a person who has worked incredibly hard and who has “driven” your present business forward with your sister. Furthermore, a couple of the people highlight that, if you are incarcerated, it will be “an unfortunate reality that the business will suffer exponentially without [you] given its complexity and demands”.
12Your present wife and baby, your previous wife, your sister, Christina, and other supporters, attended court for your plea hearing on 23 November 2023.
Your personal circumstances and background
13Partly based on some of the documents tendered on your behalf and partly based on various submission made by your counsel, I note the following
· You are the middle child with two older brothers – Frank, who was born in 1961 and Joseph, who was born in 1967 – and two younger sisters – Annemarie, born in 1978 and Christina in 1980. Your brother, Joseph, who was intellectually disabled, died when sixteen from a seizure, which was quite traumatic, as you held him in your arms when he died.
· You informed the psychologist that you had close relationships with your siblings growing up, with the exception of your eldest brother, in part due to the age difference, and also that brother was largely estranged from the family due to disapproval and conflict with your mother as a result of your brother’s choice of partners. In particular, you remain close to your sister, Christina, who is your business partner.
· You informed the psychologist that your parents remain married after sixty-seven years together and have always operated family businesses connected with growing potatoes. You describe your parents as extremely hardworking, and although in their late seventies and mid-eighties, they will not retire, and continue to operate a potato farm, undertaking hard labour. In particular, although you accepted that your parents were good providers, they otherwise lacked emotional connection with their children and, in particular, you made reference to your mother being “quite difficult”, as she is “manipulative, toxic narcissistic, and meddles in everything”. You commented to the psychologist, that your parents were never affectionate or told you or your siblings you were loved, and they were not demonstrable towards each other.
· You did inform the psychologist that your parents emphasised education, pushing you to attend university to obtain a degree and a professional job – although you consider this was more to satisfy their egos, rather than genuinely wanting what was best for you and your siblings.
· You described abandonment issues from your childhood due to your mother’s lack of support and emotional neglect towards you and your siblings, and, at some point, each of you have been estranged from her.
· You remained in the family home until the age of twenty-six, when you married your first wife.
· You attended two primary schools and two secondary schools, repeating Year 8 to be accepted into Haileybury College. You described yourself to the psychologist as being “placid, shy, and a likeable child who was an ‘all-rounder’”. However, you also informed the psychologist that you struggled to learn, explaining that you did not know how to learn, but, instead, would use strategies such as rote learning and memorising information in order to progress. You always needed to be engaged in activity and stimulated, was easily distracted and would often undertake several tasks at once, which you struggled to complete. You described being better at practical tasks, rather than academic, and struggled to apply yourself, explaining that you could not communicate well in written form, and were better able to articulate yourself and your ideas verbally.
· At school, you were able to make friends, but informed the psychologist that you were shy, which made things difficult, and, in particular, stated that you were “never part of the cool crowd, even though [you] wanted to be”. You were bullied for three years by older students, which affected your self-esteem.
· On completing secondary school, you obtained a mark to allow entry to a dual Bachelor of Engineering and Industrial Design degrees at Monash University. However, you informed the psychologist you “hated every minute of it”. On completion of these degrees, you worked for about two years in an office, but “[you] couldn’t cope, it wasn’t [you], it did [your] head in, [you] need to be out and busy and doing things”.
· This resulted in you beginning work in the family business in 2003, and you continued to help your parents grow their business and diversify, which contributed to ongoing difficulties due to the dynamics with your mother. You informed the psychologist that your mother began to “resent” you, as she felt pushed out of the business and no longer able to control within the business and the family, particularly as you and your sister, Christina, were actively working towards growing the business.
· You informed the psychologist that there was significant financial pressure, as you expanded quickly, and in 2010 you purchased a potato-cake manufacturing company, Mountain Harvest Foods, based in Geelong, as a side business, with plans to build a processing factory in their shed. You stated you then began improving and replacing equipment to help streamline processes and production, for which the budget was significantly exceeded and caused further conflict with your parents, who were not technology-savvy and did not like to change.
· You reported that your parents were unwilling to sell properties to repay bank loans, placing additional pressure on you to manage the accumulating debts, which reached $7 million at one stage. You also mentioned contributing a substantial amount of your own individual finances into the business, including your sister having to refinance her home at one point.
· In about August 2010, you reported that one of the factories burnt down only eight days after your new processing plant was finalised. One month later, you purchased another business, Bay Seafood, and by January 2011, you were operating two processing factories in addition to the potato farm which had been relocated to Gembrook.
· You advised the psychologist that your parents eventually agreed to subdivide some of the business and their land to repay some of the debt, but only half of the business debt was paid, as your parents paid out their own debts as well.
· You informed the psychologist that, despite the limited repayment, the burden of the remaining debt and pressure persisted, driven by a sense of responsibility and obligation to safeguard everything your parents had dedicated their lives to building.
· Your brother joined the business at the request of your mother, which caused you ultimately to decide to leave, citing an inability to work effectively with him, and, subsequently, your parents liquidated the business in 2022 and re-established it under Phoenix Foods under Mountain Harvest Foods.
· You and your sister, Christina, commenced Bespoke Foods in 2016, which you continue to operate, with your role being the chief operations manager, although you work in various roles as necessary to maintain the business and are heavily involved in all aspects of the business, particularly around manufacturing and quality control of products. This business employs approximately thirty staff.[6]
[6]I note that, in her reference, your sister Christina, estimated that there are now more than forty staff working for the company that you and your sister run. The discrepancy has most likely occurred because the history given by you to the psychologist was on an earlier date than the reference made by your sister, in circumstances where she has said the business has progressed much in 2023.
· You have continued to grow the family business for your parents, as well as Bespoke Foods, which is the main distributor of sweet potato chips and potato waffle fries to supermarkets and retail stores within the hospitality industry in Australia and New Zealand, with Coles being one of your major contracts.
· You informed the psychologist that there have been significant difficulties with the businesses growing so rapidly and the mounting debt the business had to undertake in order to purchase necessary equipment, some of which resulted in unforeseen costs due to underperforming machines and delays with equipment from overseas.
· You informed the psychologist that you met your first wife in 2000 and, in particular, noted that your parents approved of her and you wanted to please them. You married in 2003, and have two daughters, Isabelle, aged twelve, and Sarah, aged nine.
· You informed the psychologist that there was no particular intimacy between you and your wife as time went on and this had significant impacts on your emotional state and mental health, causing you to turn to alcohol and substances more frequently to cope. In particular, you informed the psychologist that your first wife became aware of the alcohol and substance use and began drug testing you and monitoring your alcohol use, causing the fractured relationship to worsen, and there was a threat to obtain a family violence intervention order.
· You were asked to leave the family home and move into an apartment of your own, which you described increased your financial pressure, as you were now paying rent and separate living expenses, in addition to the mortgage and your wife’s living expenses.
· You attended marriage counselling, which was unsuccessful, and ultimately your first wife separated her finances from you and obtained a Family Violence Intervention Order, although you strongly denied any violence towards her.
· Although you consider your first wife initially was somewhat manipulative in relation to the children, you have been able to resume 50 per cent shared care and have a positive relationship with your two daughters.
· You met your current wife in 2017 and married in December 2021, and informed the psychologist that your relationship with your current wife is “extremely close, positive, supportive, and transparent, and [you] have strong communication”. Your second wife has an excellent relationship with your daughters and, indeed, your second wife gave birth to a daughter in July 2023.
· You informed the psychologist that, other than attending marriage counselling with your first wife, you had never engaged with a psychologist, psychiatrist or mental-health service.
· You did describe to the psychologist a history of depression and anxiety that could be traced back to your childhood and was heightened during periods of stress. You acknowledged that you would self-medicate rather than deal with your emotions and although you disliked the effects of alcohol and substances, you reported a sense of helplessness.
· You described to the psychologist that you have a strong sense of responsibility and obligation to others and explained that you are the support person for “everyone”, and you feel the need to be there for the others and help fix their problems, which places undue pressure on you.
· You have never been on any psychiatric or psychotropic medication previously and there is no history of self-harm or suicidal attempts. Again, there is no family psychiatric history that you are aware of ꟷ however, you did state that your family “doesn’t believe in mental health so they wouldn’t get help even if there was something wrong”.
· Prior to that, you had been a social user in relation to alcohol and cocaine because it reduced your anxiety and restlessness, helped you to think clearly and made you feel more confident in social situations, rather than feeling shy and reserved.
· You informed the psychologist that, during the offending period, you would consume a bottle of spirits three time per week over a twelve-hour period, and approximately 3 grams of cocaine three times per week. At its peak, you were using daily. You denied any cannabis use and stated that your only connection with cannabis is in relation to the cultivation charges, maintaining you have never used it yourself.
· Since being arrested in October 2021, you have not used any further cocaine and assert that your alcohol consumption has returned to social use when out to dinner, although when your second wife was pregnant, your alcohol use was rare. You reported to the psychologist that you had been engaging with the psychologist, Dr Charlotte Ho at Arrow Health since approximately October/November 2022 on a reasonably-frequent basis.
· You confirmed to the psychologist that you have no prior criminal history and when queried about the circumstances of your current offending, the psychologist reported the following:
“[You] described [your] psychosocial circumstances and mental health preceding the offending. [You] reported that [you were] under significant financial stress due to [your] family business experiencing rapid growth over a short period which required substantial financial input to develop infrastructure and equipment to manage this.
[You] provided a long and detailed explanation of all the intricacies of the business and the various challenges it had faced, including ongoing challenges associated with [your] mother’s involvement. This occurred over a period of several years from 2003-2016 in [your] parent’s business after which [you] had achieved exponential growth from only $230K to over $20M annual turnover, however, [your] mother’s control would not allow any of the siblings involved to benefit financially from this growth. Ultimately [you] and [your] sister commenced a new business venture in 2016, though [you] continued to assist [your] parents with their business.
It was at this time that [your] brother returned to the family business after over 10 years of estrangement, and negotiated a deal to end [your] involvement completely as [you] could not work with [your] brother. There was also then pressure from [your] mother as she no longer wanted [you] and [your] sister Christina involved in the business.
[You] instructed [your] marriage was breaking down during this period as well, the business was expanding rapidly, the banks would not extend additional funding to cover [your] growing expenses, [you] were unable to supply [your] suppliers, the business was not profitable. [Your] mental health was poor and it was during this time that [you] had been using alcohol and cocaine to self-medicate. [Your] marriage ended in 2016, which [you] reported [you] ‘did not see coming’ and [you] spiralled further into depression and self-medication, increasing daily alcohol and cocaine use to numb [yourself] and distract [yourself] from [your] distress.
[Your] mother then commenced legal proceedings against [you] and Christina, locking [you] out of their factory which resulted in having to obtain a Supreme Court injunction to be able to return to the business premises, however, [your] mother began ‘playing games’; cutting power so [you] purchased a generator, she allegedly assaulted [you], and eventually [you] agreed to allow [your] parents to resume processing using [their] equipment during the day from 6 am-6 pm, while [you] and Christina would work from 6 pm-6 am. This continued for a two-year period with ongoing conflict, and [you] and Christina made a decision to relocate Bespoke Foods to a new factory, and during this process, the existing factory burned down in February 2020.
The property on which the shed was located was owned by [you] and [your] parents, had not been farmed for some time. The shed on it has been rented out to associates of [yours] initially to store their equipment. [You] became aware that they were using it to grow cannabis, and when [you] found out [were] asked to assist them in exchange for increased rent. In the circumstances of extreme financial stress and declining mental health, [you] did so, and then felt like [you] had become enmeshed in a situation now beyond [your] control.
There was a potato shortage that impacted [you] financially, losing over $100K per month, and Christina had to refinance her home to reinvest into the family factory as [you] were unable to fulfil [your] obligations. COVID-19 resulted in staff losses and shutdowns, delayed delivery of equipment from overseas, and contributed to increasing stress for [you]. [You] described that [you] felt trapped and as though [you were] leading a secret life ‘just to keep these people away from [you] and [your] family, and to try to get [you] out of debt otherwise [you] all would have lost everything, it wasn’t just [you], it was [your] entire family’s life work at stake, and [you] felt enormous responsibility for everyone’. With these significant and mounting stressors, [your] mental health continued to deteriorate.
To [your] credit, [you have] described genuine remorse for [your] offending and took full responsibility, acknowledging [you were] aware of the wrongfulness of [your] behaviour and that being arrested ‘was a relief, a weight off [your] shoulders that it was done, it was over, and [you were] out of it, [you] couldn’t see any other way out, and[you] couldn’t let them near [your] family, [you] didn’t know what they were capable of’.
[You] sought treatment since the offence for [your] mental health and [your] alcohol and substance use, describing it as a life-changing event and that it shocked [you] into action, realizing that [you have] poor coping mechanisms and needed to address [your] underlying issues. [You have] abstained from substance use since this time, and rarely [consume] alcohol other than an occasional social drink. [You have] made significant efforts within the business to stabilize it and continue to improve its processes and trajectory so that in the event [you are] incarcerated, [your] sister and wife will be financially stable so long as the business does not encounter any additional major setbacks.
[You] acknowledged that [you do] continue to hold significant concerns for the burden [your] incarceration will place on [your] sister and that [your] absence may well result in the business failing, however [have] done everything that [you] possibly can to prepare. [You] also expressed tremendous guilt for the impact on [your] wife and [your] family.”[7]
· The psychologist also recorded in her report, under the heading “Reflection on [your] Offending and Imprisonment”, which I repeat hereunder:
“[You] reflected that although [you are] extremely remorseful for the offending and the impact it has had on [your] family, [you] also described some positive outcomes, stating that if [you] had not been arrested [you do] not know how [you] would have managed to get out of the situation and would still be under significant pressure; [you] also would not have sought treatment for [your] mental health and AOD problems; and [you] would not have discovered [you had] been struggling with undiagnosed and untreated ADHD since childhood which has helped [you] understand [yourself] and [your] behaviour better.
[You] reflected on the period preceding the offending and stated, ‘[You] can’t believe [you] thought [you were] doing well mentally at that point and self-medicating, [you] couldn’t see things properly… [You were] so caught up in the cycle’.
[You] acknowledged [your] own concerns and those of [your] sister and wife regarding how imprisonment is likely to impact [you], stating that although [you were] only remanded for 18 days during COVID, it affected [you] more severely than [you] anticipated, describing being ‘mentally disturbed’.
[You] reported being triggered by certain reminders of [your] time in prison, for example, if a particular show comes on TV that [you] watched whilst [you were] remanded, [you become] distressed. [You] also reported returning home after being remanded felt ‘strange, like everything was foreign to [you]’. [You] described [your] home felt like a different environment, not [your] home, and [your] relationship with [your] wife which is usually extremely close, felt very disconnected and it took [you] a significant period to reconnect and reestablish [your] level of emotional and mental connection. [You are] concerned that further imprisonment will again impact [your] relationship and [worry] that now that [you] have a child there will be some resentment that [you have] not been there to support her.
[Your] sister has expressed concern about the impact of imprisonment on [you], particularly as [you have] put significant effort into treatment and working on [yourself] to reform [your] life to an even higher level of stability than [your] premorbid functioning, addressing [your] underlying issues. [You] stated [your] sister is worried that it will take [you] a significant amount of time to rebuild once [you are] released, and that this will be a substantial setback to [you] not only personally, but to the business as well.”[8]
[7]See exhibit “B” – report of the psychologist, dated 8 November 2023 at paragraphs [69]-[78]
[8](Ibid) at paragraphs [100]-[104]
The psychological evidence of the forensic psychologist, Ms Carla Ferrari
14I again refer to the report of the psychologist and note that, when assessed on 2 March 2023 and later on 18 October 2023, she obtained detailed histories, involving your family, educational and occupational background, relationships, mental health and medical history, alcohol and substance use, and your current status.
15Furthermore, she performed a mental-state examination and performed various psychometric testing. On the basis of such information, she made the following diagnoses:
“[You are] a 46-year-old male with a predisposition to mental health issues on account of disrupted attachment to [your] mother due to difficult dynamics which from [your] description may be indicative of personality vulnerabilities which have affected her capacity to emotionally connect and demonstrate warmth, affection, and nurturing. [You] always felt disconnected from [your] parents, and felt an overwhelming need for their acceptance and approval, though this was unachievable and created a sense of overarching obligation and responsibility to satisfy them, leading to negative cognitions of ‘nothing being good enough’, low self-esteem, and feeling rejected by [your] parents, that [you] would never make them proud and contributed to low mood, anxiety and stress.
There is also a history of family trauma with one of [your] older brothers being intellectually disabled and passing away in [your] arms following a seizure in 1993 when [you were] an adolescent. [You were] not supported or given the opportunity to grieve this significant loss and traumatic experience, describing [your] mother as unemotional and stoic.
These early experiences in childhood predisposed [you] to depression and anxiety and appear to have affected [your] emotional development, including impacting [your] ability to identify and tolerate negative emotions and distress, instead being modelled to suppress any negative experiences instead of dealing with them.
[You] also exhibited early markers of attention, learning, and behavioural problems at school which highlight the likelihood of undiagnosed neurodevelopmental deficits, consistent with Attention Deficit Hyperactivity Disorder (ADHD). [You have] attended a psychiatrist following the first assessment in relation to this and [have] been prescribed psychostimulant medication which [you are] currently titrating to achieve an optimal dose for [your] needs.
[You] described ongoing problems with attention, distraction, disruptiveness, impulsivity, restlessness and the need for constant stimulation, time management issues, difficulty finishing tasks, consistent with difficulties in executive functioning consistent with ADHD. These symptoms are exacerbated during periods of heightened stress or when structure and routine are significantly affected as was the case during the offending period.
Behavioural and emotional impulsiveness, mood instability, and low self-control have been proposed as core symptoms of ADHD predisposing to criminal offences. Several studies have also presented evidence of the correlation between ADHD and certain personality traits including risk-taking, sensation-seeking, impulsivity, difficulty in dealing with stress and controlling anger, substance misuse, and/or non-conformity. Many of these patterns of behaviour are consistent with [your] history.
Individuals with ADHD are therefore less likely as a result of their deficits in emotional regulation and behavioural disinhibition to engage in reflective/consequential thinking or have the capacity to respond in a calm, rational manner during times of stress or conflict. This can be considered in the context of [your] offending, as [you] failed to consider the nature and quality of [your] conduct at the moment of the offence, due to the neurological changes in the brain in ADHD which can impact the functioning of the prefrontal cortex, responsible for emotional regulation, executive functioning, and impulse control. [Your] sole focus was to alleviate the significant financial burden on [your] family which put [your] businesses and livelihood at stake, and prevent harm which had been threatened from occurring.
This would have been augmented by [your] self-medication with alcohol and substances during this period, which has potentiating effects on impulsivity and poor decision-making. Those with ADHD are more likely to self-medicate with alcohol and/or substances, typically stimulants or cannabis. Research estimates that approximately 21-28% of individuals with ADHD develop a Substance Use Disorder to self-medicate their symptoms, with some estimates being up to 49%. At the time of offending, [you] would have met criteria for both Stimulant Use Disorder and Alcohol Use Disorder, however, both are no longer applicable as [you have] maintained [your] abstinence since [your] remand and throughout [your] bail.
Self-medication with substances can also impede the normal processing of emotions, which may contribute to longer-term emotional regulation problems, including difficulties tolerating stress as well as high arousal states that motivate continued substance use in the absence of more adaptive and functional coping mechanisms, consistent with [your] experience. Substance use also leads to reduced self-inhibition and cognitive and behavioural self-control, which can manifest as impulsive, reckless, disinhibited behaviour, poor decision-making, and impaired judgement. This would therefore amplify symptoms inherent in [your] ADHD.
At the time of the offending and currently, [you meet] the criteria for Adjustment Disorder (AD) with mixed disturbance of emotions and conduct, whereby [you were] displaying symptoms of depression and anxiety and reckless, impulsive, uncharacteristic behavior, as well as self-medicating these with alcohol and cocaine. The essential feature of AD is the presence of emotional or behavioural symptoms in response to an identifiable stressor. An AD is generally a temporary condition as symptoms arise within three months of the onset of the stressor(s) and last for no longer than six months after the stressor or its consequences have ceased.
Given that [you were] under protracted stress, this condition did not remit throughout the offending period, in fact, likely worsening with the increasing stressors and challenges [you were] facing, and it may be the case that at that time [your] AD had in fact progressed to an episode of Major Depression, though this is difficult to retrospectively determine based on the available information.
[Your] symptoms have not resolved and continue to impact [your] functioning, particularly in relation to [your] sentencing as Court draws nearer and the impact of this on [your] business and [your] family, which is contributing to ongoing mild symptoms of depression and anxiety.
At the time of the offending, there was, therefore, a complex interplay of [your] historic difficulties with coping, evidence of an untreated neurodevelopmental disorder (ADHD) which also impacts emotion regulation, and was under extreme and protracted stress related to ongoing family dynamics with [your] mother, increasing pressure within the family businesses and being responsible for [their] mounting financial debts which posed possibility of [your] entire family losing their livelihood, and the deterioration of [your] first marriage. This contributed to the deterioration of [your] mental health and functioning, which [you] sought to self-medicate with increasing use of alcohol and substances, ultimately exacerbating the symptoms inherent in [your] psychological conditions and impairing [your] insight and judgement.
[You] made no attempts to justify [your] offending and [acknowledge] the wrongfulness and seriousness of [your] actions and the poor decision-making on [your] behalf. [You are] extremely remorseful and [take] full responsibility for [your] actions and [accept] any consequences imposed upon [you].”[9]
(Footnotes omitted.)
(My emphasis.)
[9](Ibid) at paragraphs [141]-[154]
16The psychologist also opined as to your risk of re-offending and, in particular stated:
“[You are] considered a low risk of reoffending; [you have] no priors, [have] stable psychosocial circumstances, support from [your] partner and [your] sister who is also [your] business partner, [have] dissociated from friends whom [you were] abusing substances with, and is more focused on being present for [your] family, that is, [your] partner and [your] four month old daughter, and sharing equal custody of [your] two eldest daughters from [your] first marriage.
[You have] been abstinent from substances since [your] arrest and [have] been consistently engaged in AOD and psychological treatment with Ms Ho from Arrow Health, finding that this has significantly helped [you] to understand [yourself] and develop better strategies to cope with stress and with [your] mental health. [You have] also sought opinion from a psychiatrist and commenced psychostimulant medication for [your] ADHD. There is no evidence of a criminal attitude or antisocial belief system.”[10]
[10](Ibid) at paragraphs [157]-[158]
17Furthermore, the psychologist has opined that:
“Whilst the sentencing disposition is solely a matter for the Court, it is highlighted that imprisonment would likely weigh more heavily on [you] who would be considered a vulnerable individual within the custodial environment as [you have] no history of incarceration other than [your] 18-day remand, and [are] naive to antisocial individuals, placing [you] at a higher risk of threats, intimidation, and exploitation by those with more entrenched patterns of offending.
The volatile nature of the prison environment can be confronting for an individual with no prior antisocial or criminal experience, and there is therefore a significant risk of [your] depression and anxiety symptoms worsening in this environment. This was evident in [your] short remand period, whereby [your] release was fraught with difficulties readjusting to [your] home environment and reconnecting with [your] wife whom [you] usually [have] an extremely close relationship. This took a substantial toll on [you] and on [your] wife, and it is likely that a lengthy period of incarceration is likely to contribute to a worse prognosis, resulting in [you] requiring more intensive and protracted psychological treatment upon release to return to baseline.”[11]
(My emphasis.)
[11](Ibid) at paragraphs [161]-[162]
Matters in mitigation of your sentence
18Although acknowledging that general deterrence and denunciation are the primary sentencing considerations in relation to Charge 1 – that is the cultivation of cannabis in a commercial quantity – it was submitted by your counsel that, for a variety of reasons, an immediate custodial sentence is not warranted and that taking into account all the circumstances of this matter, an appropriate disposition can be achieved by a community correction order with appropriate punitive and rehabilitative conditions, and also with supervision over such period. Of course, as already noted, to avoid a sentence of imprisonment with a non-parole period, it was submitted that the exception set out in paragraph (e) of s5(2H) is engaged.
19In particular, the following matters were put in mitigation of your sentence for the subject offending:
(a) Your plea of guilty
Your counsel submitted that, although the matter was listed for a contested committal, that was in order to explore the evidence concerning the involvement of others in the cultivation of cannabis at the premises. Your counsel submitted that you accepted your culpability, notwithstanding “the principal involvement of others”. In particular, it was also submitted that, following the committal, the pleas of guilty were to lesser charges than what were originally pleaded and, that, in all the circumstances, the plea of guilty should be viewed as an early plea. As I have already recorded, counsel for the prosecution did not quibble with such a description. I accept that, in all the circumstances, your plea can be viewed as an early plea.
Further, it was submitted that such pleas of guilty:
(i)had utilitarian benefit, as it saved the expense and time of a trial;
(ii)such pleas were made in the context of the COVID-19 pandemic. Reference was made to Worboyes v R[12] at paragraph 39, wherein the Court of Appeal (consisting of Priest, Kaye and T Forrest JJA), stated in part:
[12][2021] VSCA 169
“For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”
Counsel for the prosecution accepted that your plea does have utilitarian value and that you are entitled to the discount set out in Worboyes.[13]
[13]Op cit
(b) Remorse
Your counsel submitted that the plea of guilty was also some demonstration of remorse. Again, counsel for the prosecution accept such was the case.
Your counsel further submitted that you have expressed remorse about your offending generally which, it was submitted, is not only a mitigating factor, but also relevant to the prospects of your rehabilitation.
Counsel for the prosecution submitted that such remorse is confined to the effects on yourself, your family and your business, rather than the nature of your crimes, which clearly potentially impact on the community.
After a consideration of the material, I am satisfied that, although you have expressed remorse frequently in respect of yourself, your family and business, you have also demonstrated remorse to a lesser degree of an appreciation of the wrongfulness of your offending and its impact on potential victims, that is, the potential users of cannabis.[14]
[14]See, generally, Barbaro v R; Zirilli v R (2012) 226 A Crim R 354 at [32]
In this respect, I note the following:
(i)treating psychologist, Dr Ho, who has treated you over the period from October 2022 to July 2023 noted the following:
“During the course of treatment, [you were] noted to have developed insight into [your]offending behaviour and how it has affected the general community, [your] family, and [yourself]. [You continue] to show remorse in [your] involvement.”;[15]
[15]See exhibit “D” – report of Dr Charlotte Ho, dated 19 November 2023 at page 2.
(ii)your sister, Christina, in her reference, describes you as “intensely remorseful”;
(iii)in her report, the psychologist notes you have made no attempts to justify your offending and you have acknowledged the “wrongfulness and seriousness of [your] actions” and that you are “extremely remorseful”;
(c) Prior convictions
You have no prior convictions for any drug offending, nor, indeed, any type of criminal activity. Furthermore, seemingly you have not come under the notice of the authorities since you were bailed on 19 October 2021;
(d) Verdins’ principles enlivened
Your counsel submitted that, based on the opinion of the psychologist, the so-called Principles 5 and 6 of the Victorian Court of Appeal decision of R v Verdins; R v Buckley; R v Vo[16] are enlivened. In that decision, Maxwell P and Buchanan and Vincent AJA stated, at paragraph [32]:
[16](2007) 16 VR 269
“Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1.…
2.…
3.…
4.…
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”
In particular, your counsel referred to paragraphs 161 to 162 of her report, which are detailed at paragraph 17 of these Reasons. Of course, it was the opinion of the psychologist that you suffer from ADHD. Furthermore, it is to be noted that a treating psychiatrist, made a similar diagnosis.
Counsel for the prosecution, in his written submissions, initially notes that, in the Defence written submissions, Verdins’ principles are not specifically invoked. So much is correct, but in his oral submissions, your counsel did submit that the above principles are enlivened by the evidence.
Counsel for the prosecution also submitted that the evidence, at its “highest”, would be that “[your] mental condition is ‘likely to deteriorate in custody’ and that “[you] would wear the custody mantle more heavily than others”.
Counsel for the prosecution also submitted that the Court must be satisfied that there is “cogent evidence” to enliven any of the Verdins’ principles and that this task must be “undertaken with rigour” by the sentencing judge. Reference was made to Director of Public Prosecutions (DPP) (Vic) v O’Neill.[17]
[17](2015) 47 VR 395 at paragraphs [77]-[78]
Ultimately, counsel for the prosecution submitted that any moderation of sentence should be “limited”. After careful consideration, and bearing in mind, particularly the evidence of the psychologist, I do accept that Verdins’ Principles 5 and 6 are enlivened and you are entitled to have those matters taken into account in mitigation of your sentence.
(e) Prospects of rehabilitation
Your counsel submitted that your prospects of rehabilitation were “excellent”. In this respect, he referred to the various treatment you have undergone since your offending, that being, of course, treatment from the treating psychologist, Dr Ho; your attendance on the psychiatrist, Dr Das on two occasions; your ongoing attendance on your general practitioner and, indeed, your attendances on the holistic healer, Ms Leticia Woodforde.
I also note that the psychologist was of the opinion you have a low risk of re-offending, given you have no prior convictions, have stable psychosocial circumstances now, support from your partner and your sister and have disassociated from friends with whom you were abusing substances, and seemingly you are more focused on being present with your family, your partner and your new young daughter.
Furthermore, you assert you have been abstinent from substances since your arrest and you have reformed your drinking habits to be within normal limits.
I do accept such opinions and consider that, not only do you have the prospect of returning to work which you enjoy, that is the business which you and your sister conduct, but you also have the support of your wife, your sister and others around you. In such circumstances, I consider that your prospects of rehabilitation are very good;
(f) Third party hardship
Your counsel submitted that, in the event that you are incarcerated, various people would suffer “third party hardship”, which he described as “exceptional”.
No doubt, your counsel was referring to the well-known decision of Markovic v R; Pantelic v R,[18] wherein the Court of Appeal (consisting of Maxwell P and Nettle, Neave, Redlich and Weinberg JJA) restated the established common law position that, unless the third party hardship is shown to be “exceptional” hardship, it is to be disregarded as a sentencing consideration.[19]
[18](2010) 30 VR 589
[19]Such principle was re-affirmed in Borg v R [2020] VSCA 191; and more recently in Director of Public Prosecutions (DPP) v Hill (A Pseudonym) [2023] VSCA 84 at paragraph [16]
In Markovic, the contention advanced by each of the applicants was that, even if the circumstances of family circumstances were not adjudged exceptional, the sentencing judge could nevertheless be called on to exercise – on that ground – what is sought to be characterised as a “residual discretion of mercy”.
Ultimately, the court concluded as follows:
“We have concluded that the established common law position should be reaffirmed. Our reasons may be summarised as follows:
1.Reliance on family hardship — that is, hardship which imprisonment creates for persons other than the offender — is itself an appeal for mercy.
2.Properly understood, therefore, the purpose and effect of the ‘exceptional circumstances’ test is to limit the availability of the court’s discretion to exercise mercy on that ground.
3.Accordingly, there can be no ‘residual discretion’ to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional.
4.The effect on the offender of hardship caused to family members by his/her imprisonment raises different considerations, to which the ‘exceptional circumstances’ test has no application.”[20]
[20](Ibid) at paragraph [5]
For completeness, it should be added that, although many cases involving the concept of third party hardship are limited to family members, the net would appear to be wider. Again, I refer to Markovic,[21] wherein reference was made to the New South Wales Criminal Court decision of R v Edwards,[22] wherein Gleeson CJ stated:
[21]Op cit
[22](1996) 90 A Crim R 510 at [515]
“There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, … it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment.”
(My emphasis.)
I also add the following from Markovic,[23] wherein the court stated:
[23](Op cit) at paragraph [77]
“Whether or not, in any particular case, family hardship gives rise to ‘exceptional circumstances’ must be a question of fact and degree. In answering that question, it is necessary to have regard to the admonition, often stated in the authorities, that such cases will be ‘rare’. A sentencing judge should also have regard to the many examples in the decided cases of undoubted hardship which have, nonetheless, been held by appellate courts to fall short of ‘exceptional circumstances’.”
(My emphasis.)
(Footnote omitted.)
Again, as touched on earlier by the Court of Appeal, the court went on to state, at paragraph 20 of Markovic, that:[24]
[24]Op cit
“The effect on the offender of hardship caused to family members by his/her imprisonment is a quite separate matter. An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor — for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation. These are conventional issues of mitigation, and they are not subject to the ‘exceptional circumstances’ limitation.”
(My emphasis.)
(Footnote omitted.)
Your counsel submitted that, in the event that your are incarcerated, the following parties will suffer “third party hardship” which, in all the circumstances, can be characterised as “exceptional”:
(i)the hardship suffered by your wife, in that it is likely she will have to move to be closer for support (given your absence), the lack of financial support; the difficulties of raising a child alone and the potential emotional damage to the child due to your absence while in prison;
(ii)the hardship suffered by your former wife, in that material support, both by way of weekly funding and the care of your two older daughters would be impacted ꟷ as a result of your incarceration ꟷ which would cause her to have to work less and accordingly earn less. Furthermore, it was submitted that, based on your former wife’s assertions, your daughters would suffer emotionally knowing there father was in prison and the practical inability to have contact with you on a regular basis – or even any basis.
(iii)the impact on the business that you run with your sister which, in turn, would potentially impact on a variety of employees, who are financially dependent of the ongoing success of your business venture.
Those acting for the prosecution, although accepting that there were potential hardships, as described by your counsel, submitted that such hardships cannot be described as “exceptional” in the Markovic[25] sense. Reference was made to the Victorian Court of Appeal decision of R v Panuccio.[26]
After careful consideration, I am of the opinion that the various third party hardships submitted by your counsel, although clearly constituting a degree of hardship in each case, cannot be described as “exceptional” within the Markovic[27] sense.
Your counsel submitted, as I understood the submission, that third party hardship can be established if one takes into account all the hardships in a global manner. I doubt that such a submission is correct, as this particular concept involves the hardship to third parties not to you, the offender. It would be a strange situation that each individual alleged case of hardship, although not exceptional, but in combination with other circumstances which may involve hardship, though not exceptional, can be globally viewed as exceptional hardship. In any event, I do not consider the hardships, globally viewed, as exceptional.
However, I should quickly add, I do accept that, if incarcerated, you will have added hardship as a result of your anguish of being unable to care for and support your wife and baby, provide support for your previous wife, have contact with your older daughters, and be involved with your ongoing business, including the risk that, if the business does not thrive, long-term employees may need to be put off. I take all these matters into account as a mitigating factor.
(g) Specific deterrence
Your counsel submitted that, given your lack of prior criminal conviction for any matter, your positive attitude to your rehabilitation demonstrated by your attendance on experts and, indeed, you being drug free since being bailed, renders you as someone with whom specific deterrence plays no role in the sentencing matrix.
(h) COVID-19 hardship in prison
The Court queried both parties as to whether any weight should be given to the mitigating factor of hardship experienced in prison due to ongoing COVID-19 issues. Both parties submitted that, although conditions have ameliorated in prison related to COVID-19 issues, there are still some ongoing restrictions – particularly so when a prisoner is incarcerated with COVID-19, which causes lockdowns for other prisoners, restrictions on visiting rights, and the like. Ultimately, I take the view that, although conditions are nowhere as bad as they were at the height of the COVID-19 pandemic, some allowance should be made as a mitigating factor as to the hardship that a person who is incarcerated will suffer because of COVID-19 – in particular lockdowns, restrictions on visiting rights and restrictions as to the various courses which can be done in prison.
[25]Op cit
[26](unreported, Victorian Court of Appeal, dated 4 May 1998, Winneke P and Brooking and Charles JJA), referred in Markovic (op cit) at paragraph [10].
[27]Op cit
Other matters submitted by your counsel
20Your counsel also made the following submissions in relation to the factual circumstances surrounding your offending:
(a) that you “rented” the premises to those people who supplied you with cocaine at that time. In particular, it was submitted that, at the time of renting the premises, you had no knowledge that the premises were going to be used for the cultivation of cannabis;
(b) it was submitted that “not long after” (in the written submissions), but in oral submissions, it was submitted that “in months” you became aware that the intended use of the premises was to grow cannabis. Rather than protest, you acquiesced in such activities, partly for financial reward (allegedly receiving increased rent paid to you) and to maintain your steady access to cocaine which, it was submitted, you had become addicted to.[28] During the course of the plea, it was also submitted that you were somewhat fearful of doing anything to this end. It was confirmed that no persons had been identified by you involved in this activity;
(c) consistent with the agreed allegations in the prosecution summary, that DNA analysis showed that blue disposable gloves, a gardening glove and a cap found in the premises had been used by you, it was submitted that you were involved in some of the activities within the shed, and when queried by the Court as to the extent of such a role, your counsel stated “a minor role”;
(d) the sum of $45,600 found in your vehicle when arrested, was said to be by your counsel “delayed rent” of the premises after the profit had been reaped from cannabis sold. There was no material as to whether such “delayed rent” was for any particular period and, for that matter, there was no evidence of any written documents in relation to the rental of the premises.
[28]See exhibit “A”, Defence Outline of Plea Submissions at paragraph [3].
The exception relied on by your counsel under s5(2H) of the Sentencing Act 1991
21As I have already recorded, Charge 1 on the Indictment – cultivating a narcotic plant in a quantity not less than the commercial quantity applicable to that narcotic plant – is a Category 2 offence, as defined in s3(1) of the Sentencing Act 1991. Accordingly, pursuant to s5(2H) of the Sentencing Act 1991, the Court must sentence you to a term of imprisonment (not including a combined sentence involving a community correction order) unless one of the relevant exceptions apply. Again, as I have recorded, your counsel indicated that he relied on the exception set out in paragraph (e) of s5(2H) of the Sentencing Act 1991.
22I set out the relevant parts of s5(2H) of that Act as follows:
“(2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44 unless—
(a) …
(c) …
(d) …
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
…
(2HA) …
(2HB) …
(2HC)In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1) ; and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i) the offender's previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
(2I)In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a) the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
(2J) …
(3) …
(4) …
(4B)…
(4C)…
(5) …
(6) …
(7) …”
23In distinction to the exception set out in paragraph (c)(i) and (c)(ii), there is no onus on you to establish, on the balance of probabilities, the existence of “substantial and compelling circumstances” that are “exceptional and rare”. Rather, it is an evaluative judgment for the Court to make once the relevant underlying facts have been established in accordance with several principles.[29]
[29]See Fariah v R [2021] VSCA 213 at paragraph [24]
24I refer to the relatively recent Court of Appeal decision of Director of Public Prosecutions (DPP) v Lombardo,[30] which was an appeal by the Director of Public Prosecutions in relation to the sentencing of the offender for the offence of dangerous driving causing death, such offence being a “category 2 offence”, requiring that there be a custodial sentence (other than a custodial sentence imposed in addition to community correction other) unless a relevant exception applies.
[30][2022] VSCA 204
25The Court of Appeal (consisting of McLeish, Niall and Kennedy JJA) set out the legislative history of s5(2H)(e) of the Sentencing Act 1991. In particular, I note:
“57.A ‘substantial and compelling circumstances’ exception to a mandatory sentencing provision first entered the Act on 1 July 2013 when the Crimes Amendment (Gross Violence Offences) Act 2013 introduced ss 10 and 10A. These provisions required that a custodial sentence be imposed for certain offences, unless a court found that a special reason existed, including because there were ‘substantial and compelling circumstances’ justifying such a finding. In the relevant second reading speech, it was explained that this ‘substantial and compelling circumstances’ exception was intended to accommodate cases involving ‘rare and unforeseen circumstances where it would be clearly outside the intention of the Parliament’ that a custodial sentence be imposed.
58. In part by reference to this second reading speech, this Court in Director of Public Prosecutions v Hudgson concluded that the ‘substantial and compelling circumstances’ exception in s10A required that the circumstances identified be atypical. The exception, the Court stated, requires ‘powerful circumstances of a kind wholly outside … “run of the mill” factors typically present’ in offending of the relevant kind.
59. On 20 March 2017, mandatory sentencing provisions in respect of category 2 offences were introduced into the Act. The Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 defined a set of ‘category 2 offences’, which did not at first include dangerous driving causing death. It also introduced s5(2H). In its original form, the s5(2H)(e) exception was substantially the same as the s10A exception: it required ‘substantial and compelling circumstances that justify’ not imposing a term of imprisonment.
60. …
61. The narrowing phrase ‘that are exceptional and rare’ was introduced because of a perception, articulated in the relevant second reading speech, that the courts were finding that ‘substantial and compelling’ circumstances existed not merely in rare or atypical circumstances, but in ‘conditions or situations that afflict a large number of Victorians’. The introduction of the ‘exceptional and rare’ requirement can therefore be seen to reflect parliamentary dissatisfaction with the stringency of the existing judicial application of the provision.
62. …
63. More generally, the introduction of the ‘exceptional and rare’ requirement made explicit this Court’s approach to the existing ‘substantial and compelling circumstances’ requirement — namely, that the circumstances must not only be powerful, but also ‘wholly outside’ the ‘run of the mill’ factors seen in offending of the relevant kind.”[31]
(My emphasis.)
[31]Lombardo (op cit), paragraphs [57]-[63]
26Later in the judgment, the Court of Appeal set out the meaning of s5(2H)(e) and stated:
“65.When we turn to the statutory language, it is apparent that the inquiry under s5(2H)(e) has two key steps.
66. First, the court must identify whether there are ‘substantial and compelling circumstances’. In that context, ‘substantial and compelling’ means that the circumstances are weighty and forceful or powerful.[54] The issue is whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence. That is the criterion by which the substance and compulsive force of the circumstances are to be assessed.
67. The second critical step, if the circumstances are substantial and compelling in the sense described above, asks whether they are also ‘exceptional and rare’. In our view, this is to be regarded as a composite phrase imposing a single test, rather than as two discrete tests. That is because the meanings of the two words overlap; in particular, ‘exceptional’ means ‘out of the ordinary course, unusual, special’, which includes that which is ‘rare’. In that situation, a separate test asking whether something that is ‘exceptional’ is also ‘rare’ would be redundant. Instead, the two words operate together and each influences the meaning of the overall phrase.
68. The ‘exceptional and rare’ language is not merely a description of the empirical outcome of applying the law of sentencing to a collection of offences. It is a threshold which must be met before it is open to impose a non-custodial sentence. The question then is the meaning of the language used.
69. In construing the phrase ‘exceptional and rare’, it is relevant that, in the context of deciding whether circumstances are ‘substantial and compelling’, Parliament has stated its intention that imprisonment should ‘ordinarily’ be imposed for a category 2 offence: s5(2I)(a). This statement of intention is expressed in moderate terms, suggesting that the ‘exceptional and rare’ requirement has a meaning closer to ‘out of the ordinary’.
70. On the other hand, the expression ‘out of the ordinary’, while capable of describing something that is ‘exceptional’, as well as something that is ‘rare’, does not fully capture the force of the phrase ‘exceptional and rare’. Both the expression ‘exceptional and rare’ and the legislative object that imprisonment should ‘ordinarily’ be imposed are, however, consistent with earlier case law, such as Hudgson, which described provisions such as the present as requiring circumstances of a kind ‘wholly outside “run of the mill” factors typical of’ the relevant kind of offending.
71. Accordingly, in our view that language properly captures the meaning of the phrase ‘exceptional and rare’ in this context.[57] It refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence, in this case dangerous driving causing death.
72. Applying the two steps of the mandated analysis calls for the sentencing judge to make an ‘evaluative judgment’ once the underlying facts have been established, and unaffected by notions of burden of proof.[58] It is possible that a set of circumstances may engage the exception in combination, even where the constituent circumstances are mainly, or even wholly, ‘relatively common’.
73. …
74. …
75. In making the assessment as to substantial and compelling circumstances, the Act imposes a number of further conditions. First, the judge must regard general deterrence and denunciation of the offender’s conduct as more important than other sentencing purposes in s5(1) of the Act (which include just punishment, specific deterrence, rehabilitation and protection of the community from the offender): s5(2HC)(a).
76. Next, the judge must also give less weight to the offender’s personal circumstances than to the nature and gravity of the offence: s 5(2HC)(b).[
77. Thirdly, the judge must not have regard to the matters in s 5(2HC)(c), which include the offender’s previous good character (other than an absence of convictions), any early guilty plea and prospects of rehabilitation.
78. Fourthly, the judge must have regard to Parliament’s intention that in sentencing an offender for a category 2 offence, only an order for a custodial sentence ‘should ordinarily be made’: s5(2I)(a). We have already referred to this requirement in the context of the ‘exceptional and rare’ criterion.
79. Finally, the judge must have regard to whether the cumulative impact of the circumstances of the case would justify a departure from a custodial sentence: s 5(2I)(b). This last requirement appears to do no more than restate the task under s 5(2HC)(e) itself. It confirms, however, that it is the cumulative effect of the relevant circumstances which is significant.”
(My emphasis.)
27It is to be noted that the exception described in paragraph (e) has been described as a “residual category of limited scope” and that “[o]n any view, it is a very high hurdle that will not often be surmounted”.[32]
[32]See Farmer v R [2020] VSCA 140 at paragraph [51]
28I also refer to the decision of Buckley v R,[33] wherein the Court of Appeal (consisting of Maxwell P and T Forrest JA) stated:
“As we have said, the legislative intention could not be clearer. By adding the words ‘that are exceptional and rare’, the Parliament intended to make the test ‘almost impossible to satisfy’. … .”[34]
[33][2022] VSCA 138 at paragraph [44]
[34]Reference was made to the decision of Director of Public Prosecutions (DPP) v Bowen (2021) 65 VR 385 at paragraph [11]
29Your counsel submitted that the following “circumstances” satisfy the requirements of paragraph (e) of s5(2H) of the Sentencing Act 1991.
(a) some mental health issues to which reference has been made, although not sufficient to be an exception under s5(2H)(c)(i) or s5(2H)(c)(ii) of the Sentencing Act 1991;
(b) that what is submitted to be exceptional third party hardship to be experienced by your present wife, your former wife and employees of your business if you are incarcerated;
(c) Your good employment history;
(d) your lack of prior convictions for any drug offending or, indeed, any criminal offending;
(e) the application of Verdins’ principles to which reference has been made.
30It is to be noted that, pursuant to s5(2H)(c) of the Sentencing Act 1991, regard must not be had to your previous good character (other than an absence of convictions), an early guilty plea or your prospects of rehabilitation. Furthermore, when coming to a view whether paragraph (e) is satisfied, the Court must have regard to Parliament’s intention that, in sentencing an offender for a Category 2 offence, only an order for a custodial sentence “should ordinarily be made” (see s5(2I)(a) of the Sentencing Act 1991.
31After a consideration of all the relevant matters and employing the so-called two key steps as described in Lombardo,[35] I am not satisfied that the circumstances relied on by your counsel either singly or globally are “substantial and compelling circumstances” – that is to say, they are weighty and forceful or powerful. If I be wrong about that, I am not satisfied, in relation to the second step of the process, that such circumstances are ”exceptional and rare”, that is to say, they are “wholly outside the ordinary factors typical of the subject relevant offence”.
[35]Op cit
32In this respect, noting that I do accept your wife, former wife and various employees of your business may suffer potential hardship if you are incarcerated, although not “exceptional” hardship within the meaning of Markovic,[36] and also accepting that you have some degree of mental condition giving rise to the Verdins’ principles, and the risk that your business may suffer by your incarceration, cannot be said to be either singly or globally outside the ordinary factors typical of someone being incarcerated for this type of offence.
[36]Op cit
33Accordingly, I do not find that paragraph (e) has been satisfied and that the only available sentencing disposition in relation to Charge 1 is a period of imprisonment.
34I do note that in Lombardo,[37] it is stated that:
“It should be noted that, whether or not an exception in s 5(2H) applies, nothing in s 5(2H) limits the relevant sentencing considerations or requires particular weight to be accorded to any individual matter. Sections 5(2HC) and 5(2I) are expressly directed to the issue whether substantial and compelling circumstances exist and are silent as to the application of the instinctive sentencing synthesis. Subsections 5(3) and (4) make it plain that, subject to the requirement for a custodial sentence in s 5(2H) (where applicable), ordinary principles of parsimony and proportionality apply. This means that there is no statutory requirement that a sentencing judge, in a case where an exception applies, leans towards a term of imprisonment — quite the opposite.”
[37](Op cit) at paragraph [97]
Conclusion
35You have pleaded guilty to cultivating a narcotic plant – in this case Cannabis-L – in a quantity not less than the commercial quantity applicable to that narcotic plant (Charge 1), stealing a quantity of electricity used in the premises where the cannabis was cultivated (Charge2) and knowingly dealing with the proceeds of crime – that is, dealing with the $45,600 cash found in your vehicle (Charge 3).
36In particular, Charge 1 is a very serious offence. As the Court of Appeal (consisting of Priest and Niall JJA) in Le v R stated:[38]
“… First, the maximum term of imprisonment that the Parliament has prescribed for the offence of cultivating not less than a commercial quantity of cannabis is 25 years. That marks the offence, in unmistakable terms, as a serious offence. Where the amount concerned is a large commercial quantity, the maximum increases to life imprisonment. That gives rise to the second observation that the seriousness of the offence [in that case cultivating not less than a commercial quantity of cannabis] is a function of quantity that does not depend on the court’s assessment of harm. … .”
[38][2021] VSCA 220
37I also refer to the matter of Lieu v R,[39] which involved, in part, an appeal by the applicant in relation to his sentence of cultivating a commercial quantity of cannabis, Kaye JA and T Forrest AJA stated:
“The principles applicable to the offences to which the applicant pleaded guilty are well established, and need not be rehearsed at length. Essentially, the determination of the seriousness of the offending is informed by a range of factors, including the role of the offender, the position of the offender in the drug trafficking (or importing) hierarchy, the nature and extent of the offender’s involvement in the enterprise, the sophistication of the enterprise, and the amount of drugs involved, or intended to be involved, in the enterprise. In describing the role of the offender in the hierarchy, it is important that any shorthand label attaching to that role does not obscure the nature and extent of the actions and involvement of the offender.
In determining the seriousness of the offence, the weight or amount of the drugs involved is a factor of some importance. That circumstance is relevant to determining the dimension of the enterprise in which the offender is involved, and the amount of profit that was expected from the enterprise, which generally constitutes the primary if not sole motive for the offending. The weight or amount of the drugs involved might also indicate that the enterprise, in which the offender has been involved, was far reaching, and sophisticated. On the other hand, that factor, per se, is not necessarily the primary or overriding factor in determining the gravity of the offending under consideration.”
[39](2016) 263 A Crim R 173 at paragraphs [41]-[42]
(Footnotes omitted.)
38In the circumstances of this matter, the amount of cannabis found at the premises when police attended on 1 October 2021 was 301.7 kilograms. As already noted, pursuant to Part 3 of Schedule 11 of the Drugs Poisons and Controlled Substances Act 1981, possession of a commercial quantity of cannabis is defined to be 25 kilograms or more, or, alternatively one hundred plants. The weight found in the premises was approximately twelve times the commercial quantity weight. Furthermore, there were 320 cannabis plants, which is over three times the commercial quantity of such drug.
39The premises situated at 94 Maisey Road, Gembrook was clearly a hydroponic set up for the growing of cannabis plants. The premises was divided into a number of rooms lined with refrigeration and freezer insulation, five of the rooms contained cannabis plants in different stages of growth and two of the rooms were used for drying. There was one additional room which showed evidence of recent harvest of cannabis.
40As is frequently seen with a hydroponic set up, there was an electrical bypass connected to the premises by which electricity was stolen from the supplier, with the estimated use of such unmetered electricity being 2,282.25 kilowatts per day.
41Furthermore, each of the rooms were similarly set up for the cultivation of cannabis with a variety of lamps, ballasts, timing devices and carbon exhaust fans.
42I do consider the premises reflected a reasonably sophisticated set up for the cultivation of cannabis. In particular, the weight of the cannabis is significant.
43On the material available to the Court, it is difficult, as it is in many cases such as this, to identify precisely what your role was in the enterprise. I do accept, as submitted by counsel for the prosecution, that you were not at the top of any hierarchy involved in the cultivation of the cannabis.
44However, these matters must also be taken into account:
(a) the premises where the cannabis was cultivated was situated on a property owned by a company of which you were a director/secretary and shareholder;
(b) although appreciating it is your instructions to your counsel as to how the enterprise commenced, I do accept that you were approached by “friends” to “rent” the premises and that you had no understanding at that time that it was intended to ultimately to be a place where cannabis was cultivated;
(c) however, it is also clear that, on your own admission, you became aware “after some time” – or “a matter of months” – that the premises were being used for the cultivation of cannabis. On finding that out, you acquiesced in the situation, in part because those “renting” the premises were supplying you with cocaine at that stage, together with a promise that the “rent” would be increased and in part because of fear of consequences if you sought to bring it to an end. I consider that there clearly was a financial motivation to acquiesce in the situation, given that you were going to obtain financial reward from the renters. Of course, such situation continued until the execution of the warrant on 1 October 2021;
(d) furthermore, there is no issue that you did have some role in the cultivation, as is made plain by the police locating blue disposable gloves, a gardening glove and cap, which, on DNA analysis, showed that you would be overwhelmingly likely to be a contributor to the DNA found. In this respect, when the Court queried your counsel about this aspect of the matter, it was submitted that your role was a “minor role”.
After careful consideration, I tend to accept such view, bearing in mind that, at the time of your offending. you were not living at the premises but, rather, at 5/42 Buchanan Road, Berwick, and also, as is made clear from a variety of sources, you were very much involved in developing your business with your sister and it appears unlikely you were a regular attender at the premises;
(e) the $45,600 was described by your counsel as delayed rent for the premises after the profit made by the cannabis. Indeed, there was no evidence before the Court as to what that represented in terms of a monthly amount, weekly amount, or whatever, over what period. In this sense, you clearly profited from the cultivation of the cannabis;
(f) I do find that the leasing of the premises was for monetary gain, in circumstances where your commercial interests were pressed for funds.
45It was submitted by counsel for the prosecution, that the objective gravity of the offending in relation to the cultivation of cannabis should be assessed, having regard to the following factors:
(a) size and sophistication of the crop being maintained and cultivated at your premises by you and unidentified co-offenders;
(b) the threshold for commercial cultivation being 100 plants or 25 kilograms;
(c) the maximum penalty of offending being twenty-five years for the cultivation of a commercial quantity, with ten years for theft of electricity and fifteen years of knowingly deal with the proceeds of crime.
I am of the opinion that, in terms of the objective gravity of the offending, it is higher than midrange, but not the most serious example of such offending.
46In relation to your moral culpability, your counsel submitted, with some force, that your moral culpability was reduced, given a combination of circumstances, including:
(a) the expert opinion of the psychologist as to what your psychological state was at and around the time of your offending. In this respect, I have highlighted such opinion at paragraph 15 of these Reasons. In particular, I note the opinion of the psychologist, that ADHD gives rise to behavioural and emotional impulsiveness, mood instability and low self-control, predisposing sufferers of such condition to criminal offences;
(b) Your use of alcohol and cocaine at that time;
(c) The pressure that you were under, both from family matters (difficulties with your marriage and your mother) and difficulties of mounting debt concerns;
(d) The evidence of your general practitioner, Dr Stow – not as compelling as the evidence of the psychologist – but, nonetheless, suggesting that your symptoms of low iron were affecting you at or around the time of the offending and that it was:
“… quite likely that [your] poor physical health at that time had an affect on [your] mental health and may have contributed to [your] poor judgment at the time of [your] offending”.
(sic)
I accept the opinions of the psychologist, Dr Das, Dr Stow and the treating psychologist, Dr Ho. I also note that your counsel disclaimed any reliance on the principles enunciated in Bugmy v R.[40]
[40](2013) 249 CLR 571
47After a consideration of such evidence, I do accept the submission that your moral culpability was reduced in respect to the offending as a result of the above matters. However, it must also be noted that your offending did not consist of one impulsive act, but over a period of time, which, on your version of events was from when it became known to you that the premises was being used for the cultivation of cannabis, after which you acquiesced in such activity until police executed the warrant at the premises.
48In general, I accept the circumstances of your upbringing, the difficulties with your mother, the various mental conditions which you have suffered and the work that you have put in to succeed in your business enterprises. It would appear that, through a combination of problems coming to a head at or around the time of your offending, you have made what may be described as a frightfully stupid mistake acquiescing in the cannabis cultivation.
49Hitherto, you had no record whatsoever and, from all accounts, was making a positive contribution to the community.
50I refer to the decision of Gregory (Pseudonym) v R.[41] This sets out the relevant sentencing principles which includes in particular, general deterrence, denunciation of such crimes and the need to protect the community. All these matters are relevant in coming to a view about an appropriate sentence – although I do accept that, bearing in mind my finding of reduced moral culpability, the weight to be given to each of these matters is reduced.
[41](2017) 268 A Crim R 1 at [101]-[102]
51Furthermore, as I have already found, I accept that you have mitigating factors, consisting of an early plea, genuine remorse, the lack of any prior convictions for any criminal activity, principles 5 and 6 of Verdins enlivened, added hardship in prison as a result of your anguish and concern about your wife and younger daughter, your two older daughters, and your business generally.
52In particular, I do accept that, since your offending and your brief period of imprisonment, which you found difficult, you have made serious and genuine attempts to rehabilitate yourself through attending, in particular, your treating psychologist, your holistic adviser, your treating psychiatrist and, indeed, when necessary, your general practitioner. From all accounts, including opinions from those treaters and, indeed, observations of others, you have made large steps towards rehabilitation by coming off drugs by ceasing cocaine use and moderating your alcohol use. I do consider that, when released from prison, your risks of re-offending are very small. To this end, I do not consider that specific deterrence plays any significant role in the sentencing matrix.
53In relation to Charge 2, although it is made clear that, as a result of the electrical bypass and the estimated use of stolen electricity of 2,282.25 kilowatts per day, I have no evidence before me as to what the monetary value of that is per day, or, indeed, over what period it is said that that electricity was stolen. I also note that you have no prior convictions – certainly no prior convictions for dishonesty offences involving theft and the like. I also accept that there was no evidence that you were directly involved in either arranging or playing any role in setting up the bypass system. However, obviously enough, the bypass system was an integral part of the cultivation of the cannabis.
54In relation to Charge 3, although there is no issue that you received $45,600, said to be for “past rent”, there is no evidence which establishes, if this was rent paid, over what period it covers or at what rate was leased per week or month. In any event, from what your counsel submitted, even in the event that it is said to be rent for the premises, such would appear to be paid after profit was obtained in relation to the cannabis crop. Again, there is no evidence whatsoever that you had any role in the disposition of the crop in any form. The Court is left with the situation that you have pleaded guilty to dealing with proceeds of crime to the amount of $45,600, which has come about from the cultivation of cannabis.
55I do intend to sentence you to periods of imprisonment for each offence with some degree of cumulation, bearing in mind the concepts of totality and proportionality.
56Please be upstanding:
(a) In relation to Charge 1, you are convicted and sentenced forty-two months’ imprisonment;
(b) In relation to Charge 2, you are convicted and sentenced to six months’ imprisonment;
(c) In relation to Charge 3, you are convicted and sentenced to eight months’ imprisonment;
(d) I direct that two months of the sentence in relation to Charge 2 and 4 months of the sentence in relation to Charge 3, be cumulated with the sentence in relation to Charge 1 and each other;
(e) the total effective sentence is four years and I order that the minimum term to be served before being eligible for parole is two years and four months;
(f) I declare that you have been in custody in respect of these offences for a period of nineteen days and that they be reckoned as a period of imprisonment already served under this sentence and which are to be deducted administratively;
(g) I grant the Disposal and Forfeiture Orders sought by the prosecution;
(h) I declare, pursuant to s6AAA of the Sentencing Act 1991 that, save for your pleas of guilty, I would have ordered a total effective sentence of five years’ imprisonment.
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