Director of Public Prosecutions v Falzon
[2016] VCC 1039
•21 July 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-01242
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROMANO DOMONIC FALZON |
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| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Melbourne |
| DATE OF PLEA HEARING: | 29 June 2016 |
| DATE OF SENTENCE: | 21 July 2016 |
| CASE MAY BE CITED AS: | DPP v Falzon |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1039 |
REASONS FOR SENTENCE
---Subject: Criminal law – sentence.
Catchwords: Cultivation of a commercial quantity of cannabis – Trafficking a non-commercial quantity of cannabis.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic) – Crimes Act 1958 (Vic) – Sentencing Act 1991 (Vic).
Cases Cited:R v Verdins [2007] VSCA 102; Giretti v R (1986) 24 A Crim R 112.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Y. Hardjadibrata | |
| For the Accused | Mr N. McGrath |
HIS HONOUR:
1Romano Falzon, you have been convicted by a jury of:
·Cultivating a narcotic plant, namely Cannabis L, in a commercial quantity; and
·Trafficking a drug of dependence, namely Cannabis L.
2The circumstances of your offending are as follows.
3On 17 December 2013 police, acting pursuant to search warrants, discovered cannabis plants growing at:
· 10A and 10B Mansfield Avenue, Sunshine North; and
· 8 Bryson Court, Sydenham.
4The two properties at Mansfield Avenue were owned by one Max Corbell and his wife. Max Corbell was an associate of yours. There were two single storey dwellings there. Police surveillance from July 2013 disclosed your attendance on occasions at the property.
5On 17 December 2013 police searched the two dwellings and located and seized the following.
At 10A Mansfield Avenue:
· 37 cannabis plants with varying maturity and sizes growing in four rooms, weighing a total of approximately 17.72 kilograms;
· An electricity bypass in the roof space;
· 15 shrouds, 28 globes, 12 electrical transformers, one carbon filter, three power boards, two shrouds with globes in boxes, six shrouds containing built-in electrical transformers, and one box containing a grow tent;
· A wall chart timetable and copies of a feed program relating to cultivation of cannabis.
6On the same date, at 10B Mansfield Avenue, police located and seized the following:
· 55 cannabis plants of varying maturity and sizes growing in three rooms and another 36 plants growing in another room, weighing a total of 17.039 kilograms;
· An electricity bypass in the roof space;
· A number of shrouds, globes, transformers, electrical timers, a carbon filter and wall charts relating to the growing of cannabis;
· Assorted vacuum sealed bags, a set of scales and a sealer device;
· A tray containing dried cannabis weighing 28.5 grams, and a vacuum-sealed bag containing dried cannabis weighing 21.1 grams.
7The total number of plants at the two premises at Mansfield Avenue was 92, weighing a total of 34.781 kilograms, with an additional 49.6 grams of dried cannabis. This is a commercial quantity of cannabis in accordance with the definition of that term, the total weight being more than 25 kilograms.
8On the same date police searched the premises at 8 Bryson Court, Sydenham. This property had been purchased jointly by you and Charlie Gusman in early 2013. You and he cultivated cannabis at that house. Upon searching the property on that date, police located and seized:
· Ten immature cannabis plants weighing 1.76 kilograms;
· Eight harvested cannabis plant stumps weighing 657.9 grams;
· An electricity bypass;
· A number of light shrouds, light globes, electrical transformers, power boards, charcoal filters, together with feed program charts setting out the timetable for nutrients to be fed to cannabis plants;
· Two plastic bags containing a mixture of dried cannabis and unidentified plant material weighing a total of 4.1 grams;
· A zip lock bag containing dried cannabis weighing 3.3 grams.
9On the same date, police executed a search warrant at your home at 5 Kendall Street, Essendon. There were a number of items seized from those premises, but I have for the purpose of sentencing you ignored those items and will sentence you on the basis of what was found at the Sydenham property and at the two premises at Sunshine North.
10You were arrested on 17 December 2013 and took part in a record of interview with police in which you made a number of admissions, namely that:
· You smoked cannabis which you grew for yourself;
· You and Charlie Gusman had purchased the property at Sydenham about a year earlier;
· You had grown 19 plants at the Sydenham property, of which nine had been harvested;
· You visited the property and tended the cannabis plants there and you had been cultivating cannabis there for about six months.
11Notwithstanding your denials the jury found you guilty of cultivating a commercial quantity of cannabis at the Mansfield Avenue premises in Sunshine North but not guilty of trafficking cannabis at that address.
12The jury found you guilty of trafficking cannabis at the Sydenham property in a quantity less than a commercial quantity. The basis upon which the Crown had put the trafficking charge was that you were in possession of cannabis there for the purpose of trafficking.
Background
13By way of background, you are aged 47. At the time of your arrest for these offences you were aged 45.
14You were born and raised in Melbourne and educated here up to Year 10. I was informed that you had learning difficulties and I was informed that you have a very limited literacy.
15You have a good employment record. Although you were unemployed for a time after leaving school, from about the age of 21 you have been regularly employed in a number of different jobs, including cabinet making, as a form worker, as a builder's labourer, in the steel fabrication industry, as a delivery driver and as a trades assistant. For a time you operated your own handyman business.
16You are married and have been in a relationship with your wife since 1998. You have a stepson now aged about 18 and a daughter of your own aged 14.
17I was advised by your counsel that you have used cannabis daily from about the age of 16. You ceased such use upon your arrest for these offences in December 2013 and I was told that you had not used that substance since, notwithstanding your release on bail soon after.
18The documents that I was handed this morning indicate that urine tests conducted on 8 July and 11 July 2016 at the Metropolitan Remand Centre indicate you are negative for the drugs they screened you for, including cannabis, which confirms to a large extent what your counsel informed me.
19Over the last two and a half years whilst on bail you have been in full-time employment.
Prior Convictions
20You have a number of prior convictions relating to dishonesty and violence. These include theft of a car, going equipped to steal, obtaining property by deception, possessing an unregistered firearm, insurance fraud and recklessly causing injury.
21However you do not appear to have prior convictions relating to the charges that I am to sentence you for. Your prior convictions appear to me to have little relevance to the sentence that I am to hand down.
Mitigating Factors
22Your counsel submitted that there were factors supporting mitigation of your sentence.
·Firstly, you have previously been diagnosed with depression, for which you were prescribed Valium, although this medication has now been ceased. While I accept this, it was not submitted to me that this condition was a cause of or contributed to your offending conduct, or that it would be relevant to the effect of any sentence passed upon you. Your counsel, in my view, correctly submitted that the principles of the case of Verdins had no application here.
·Secondly, there were character references tendered on your behalf. Such references from your wife, your sister-in-law, your sister-in-law's partner, and friends, all of whom have known you for many years. You are, I think it is fair to summarise, regarded by them as a hardworking, generous family man. They think highly of you, although I do note that Mr Macleod states that he was "shocked and dumbfounded" upon learning of the charges that you were facing. It may well be that he did not know you as well as he thought he did.
·Fourthly, there has been a delay in your charges coming before the court for trial. It is now more than two and a half years since your offending occurred. I note that your plea of not guilty to these charges has contributed of course to that delay, but I accept that you pleaded not guilty to the trafficking of a commercial quantity of cannabis, a charge on which you were acquitted by the jury.
·You have had these matters hanging over your head for two and a half years or more and I take that into account whilst sentencing you. During that two and a half year period when you were on bail you were in full-time employment. I note that you have not re-offended in that time and I consider that some indication that your prospects of rehabilitation are relatively good.
23I take into account that the charges for which I am to sentence you relate only to one date, namely 17 December 2013. These are not charges based in principles enunciated in the case of Giretti. Nevertheless I consider that your offending has to be viewed in some context and I note your admissions to police that you had been cultivating cannabis at the Sydenham premises for some six months before your arrest. Likewise I note that the hydroponic system in place at Sunshine North in particular was an elaborate and sophisticated one, which had obviously been in place for some time. This is not a case where you were unlucky enough to be caught in possession of the cannabis on the very day that you planted it.
24I accept that you have no prior convictions for similar offending and there are no pending matters.
25I accept that your childhood may have been a somewhat troubled one. I was informed that your father had drunk heavily, both parents demonstrated volatile moods. Your family was of very modest means. Nevertheless, I do not consider that your upbringing could be regarded as any excuse for your offending behaviour.
26At the commencement of your trial you pleaded not guilty to these charges although you did indicate to the jury right from the start that you were guilty of cultivating cannabis at Sydenham in less than a commercial quantity.
27You denied trafficking cannabis in Sydenham and denied any involvement in the cultivation of cannabis at Sunshine North. The jury, however, found you guilty of both of those offences. I am unable to conclude that you have shown any significant remorse for your offending conduct.
Sentencing Principles
28The purposes for which a court may impose a sentence in respect of any offence is set out in the Sentencing Act 1991 (Vic). Those purposes include to punish you in a manner that is just in all the circumstances; the denunciation of your offending conduct to deter you and others in the community from committing such offences in the future; the protection of the community from the offender; to take into account the seriousness of the offence; your culpability for it; your character; any prior convictions or offences; any matters relating to your personal circumstances; and to establish conditions within which it is considered by the court that your rehabilitation may be facilitated.
29I take into account sub-s.(2) of s.5 of the Act which requires me to take into account a number of matters, namely the maximum penalties for the offences in question (which I will come to in a moment), current sentencing practices of the courts, the nature and gravity of the offences, your previous character and any other aggravating or mitigating factors.
30I take into account that the maximum sentence for cultivation of a commercial quantity of a narcotic plant is 25 years' imprisonment.
31The maximum penalty for the offence of trafficking in a non-commercial quantity of drugs is 15 years.
Sentence
32I have had regard to a number of documents entitled "Sentencing Snapshots" published as recently as June 2016, in particular relating to the offence of cultivating a commercial quantity of narcotic plant and also relating to the offence of trafficking in a non-commercial quantity of drugs.
33These relate to sentences handed down by this and other courts over the past five years.
34Those “Snapshots” should of course be viewed with some caution because all of the circumstances of the offending conduct, the identity and quantity of the drug in question and the details of the offender's plea are all unknown.
35Nevertheless, it can be seen that sentences for cultivating a commercial quantity of a narcotic plant are in the vast majority of cases dealt with by an immediate term of imprisonment, averaging, it seems, between two and two and a half years. Average non-parole periods varied between 15 and 17 months. Individual sentences for that offence ranged up to six years and nine months with a non-parole period of four years and nine months.
36With regard to sentences imposed for the offence of trafficking in a non-commercial quantity of drugs the snapshot showed that over the five year period 66 per cent of all persons convicted of that offence were sentenced to an immediate term of imprisonment averaging between 31 and 34 months, with non-parole periods averaging between 19 and 24 months. Individual sentences ranged up to in excess of seven years imprisonment.
37Counsel has also provided me with details of a number of sentences handed down by judges of this court and judgments of the Victorian Court of Appeal relating to similar offences and I have taken all of those into account.
38Both counsel made submissions concerning the sentence imposed on Max Corbell to whom I referred to earlier, by a judge of this court in January of 2015. Mr Corbell had pleaded guilty to cultivation of cannabis in a commercial quantity at the Sunshine North premises. He was sentenced to 12 months' imprisonment for that offence. He was also sentenced for theft of electricity, a charge that you are not facing and are not to be sentenced for today. The total effective sentence imposed on Max Corbell was 14 months with a non-parole period of eight months.
39I consider there were a number of significant differences between Mr Corbell’s case and your own.
·Firstly, he entered an early plea to the offences for which he was charged, and accordingly he was entitled to a discount in his sentence. But for that plea the judge stated that he would have ordered a total effective sentence of three years with a non-parole period of two years.
·Secondly, Mr Corbell had, following his arrest, been of assistance to police inculpating co-offenders.
·Thirdly, the judge found that Mr Corbell's pleas indicated true remorse on his part. In contrast I am not satisfied that you have demonstrated any significant remorse for your offending.
·Fourthly, Mr Corbell was aged 70 at the time. He had a four year old son, matters that the sentencing judge took into account.
·Fifthly, Mr Corbell had suffered a stroke in September of 2013, suffered from asthma and high blood pressure in addition to a chronic adjustment disorder with mixed anxiety and depression.
·The principles of Verdins case were considered by the judge to be applicable to Mr Corbell such as to moderate the principles of general and specific deterrence in his case. All of those matters when viewed as a whole would result, in my view, for Mr Corbell to appropriately receive a significantly lighter sentence than you.
40In respect of Charge 3, that is the trafficking of cannabis at Sydenham, I accept the submission of your counsel that because Mr Gusman had pleaded guilty to cultivating cannabis there and had been acquitted by a jury of trafficking cannabis there, it followed that the jury was likely to have accepted that at least some of the cannabis found at that address was cultivated for Gusman's personal use, and that not all of the cannabis found there was in your possession for the purpose of trafficking.
41I come to the conclusion that a sentence not involving your immediate imprisonment would not satisfy the purposes for which I am obliged to sentence you. Your counsel submitted that a total effective sentence not exceeding two years could appropriately be combined with a community correction order. Because of the seriousness of these offences and your lack of remorse for them I am unable to accept that submission.
42Taking into account all of the circumstances and the circumstances of your offending I sentence you as follows. On Charge 2, that is the cultivation of a commercial quantity of a narcotic plant, you are convicted and sentenced to two and a half years' imprisonment.
43On Charge 3, trafficking of a non-commercial quantity of cannabis, you are convicted and sentenced to two and a half years' imprisonment. Although this offence was occurring at the same time as the offence constituting Charge 2, it was a separate offence in my view carried out at separate premises with different people, Mr Gusman on one hand and Mr Corbell on the other.
44Accordingly I do not consider there should be a full concurrency of sentences. I direct that 15 months of the sentence on Charge 3 be served concurrently with the sentence imposed on Charge 2. It follows that the total effective sentence imposed upon you is three years and nine months.
45I direct that you shall not be eligible for parole for two and a half years.
Mr Prosecutor, on my calculations there are 84 days pre-sentence detention.46MR HARDJADIBRATA: Yes, on our calculations he is 83 days, not including today.
47HIS HONOUR: Maybe that is where I am differing from you. Do you say anything about that, Mr McGrath?
48MR McGRATH: I agree with my learned friend.
49HIS HONOUR: I declare that 83 days pre-sentence detention, not including today, be reckoned as having been served under that sentence and I direct that a declaration to that effect be recorded on the records of the court.
50HIS HONOUR: In terms of ancillary orders there is the disposal order that we discussed briefly.
51MR HARDJADIBRATA: Yes, Your Honour.
52HIS HONOUR: And is an order under s.464ZF of the Crimes Act also sought?
53MR HARDJADIBRATA: Yes, Your Honour. If I could hand up firstly the disposal orders and the forensic sample order?
54HIS HONOUR: I take it, Mr McGrath, that the disposal order is made by consent, subject of course to the remarks that you made earlier?
55MR McGRATH: Yes, Your Honour, yes.
56HIS HONOUR: And the sample order, the s.464ZF, by consent?
57MR McGRATH: I don't know if we had this discussion last time, Your Honour.
58HIS HONOUR: I vaguely recall it last time but I thought they were by consent. I didn't make the orders.
59MR McGRATH: I think it was, Your Honour. Let me just check it.
60HIS HONOUR: Yes.
61MR McGRATH: No opposition to that order.
62HIS HONOUR: Thank you. Mr Falzon, I do order that you undergo a forensic procedure for the taking of a scraping from your mouth or a blood sample or both in accordance with Part 3 of the Crimes Act 1958 and until a sample of sufficient standard is obtained for placement on the database. I am satisfied that the making of such order is justified because of the seriousness of your offending and I note further that you have consented to it.
63I should warn you that, notwithstanding your consent, if you do not permit a sample to be taken police are entitled to use reasonable force to obtain such a sample or blood sample from you. Do you understand that?
64I shall also make the disposal orders sought relating to the material seized from the properties in question.
65MR McGRATH: Your Honour, just with respect to the sentence, if I understand the sentence correctly, with regards to the cumulation is it 15 months of Charge 3 to be served concurrently or have I got it the wrong way round?
66HIS HONOUR: I will just go back to my notes. Yes, I directed that 15 months of the 30 months (two and a half years) should be served concurrently with the charge imposed on Charge 2. Is my mathematics correct with that total effective sentence?
67MR McGRATH: So Charge 2 was two and a half years?
68HIS HONOUR: Yes.
69MR McGRATH: Charge 3 was two and a half years?
70HIS HONOUR: Yes, 45 months.
71MR McGRATH: So that is 45 months.
72HIS HONOUR: Which is three years and nine months, is it not?
73MR McGRATH: Yes, Your Honour is correct.
74HIS HONOUR: Thank you.
75MR McGRATH: The only thing, Your Honour, is with those urine samples if I could ask that Your Honour's associate make a copy of those?
76HIS HONOUR: You would like them back?
77MR McGRATH: If I could have them back or if they are ‑ ‑ ‑
78HIS HONOUR: We will make a copy of them and keep them on file.
79MR McGRATH: Thank you, Your Honour.
80HIS HONOUR: Any other matters that counsel want to bring to my attention?
81MR McGRATH: No, Your Honour.
82MR HARDJADIBRATA: No, Your Honour.
83HIS HONOUR: Thank you. Adjourn sine die.
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