Director of Public Prosecutions v Faro

[2016] VCC 1460

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00324

DIRECTOR OF PUBLIC PROSECUTIONS

v

SALVATORE FARO
JOHN RUEDIN

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 October 2016
CASE MAY BE CITED AS:	DPP v Faro
MEDIUM NEUTRAL CITATION:	[2016] VCC 1460

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Batten
For Accused Faro	Mr D. Georgiou
For Accused Ruedin	Mr G. Morgan

HER HONOUR:

1Salvatore Faro, you were found guilty by a jury of the following offences:  cultivation of cannabis in an amount of not less than a commercial quantity between 1 September 2007 and 28 March 2013 at Laverton, or Triholm; cultivation of cannabis between 4 December 2009 and 28 March 2013 at Sunshine West or Enterprise Way; possession of substances and equipment for the purposes of trafficking on 2 April 2014 at Laverton North or Weddell Court; possession of a drug of dependence at Point Cook on 2 April 2014, or Boardwalk Boulevard.

2The maximum penalty for each of these offences is as follows;  Charge 1, cultivation of cannabis in an amount not less than a commercial quantity, 25 years; Charge 2, cultivation of cannabis, 15 years; Charge 3, possession of substances and equipment for the purposes of trafficking, 10 years; Charge 4, possession of a drug of dependence, the amount being a small quantity, five penalty units.

3Additionally, you have consented to the following summary matters being dealt with by me:  Charge 12, possession of prohibited weapon with the maximum penalty of 240 penalty units and/or two years; Charge 13, possession of a controlled weapon with a maximum penalty 120 units and/or one year; Charge 14, possession of a firearm under long arm licence for Category A or B, which was not stored in a secure manner, 60 penalty units and/or 12 months; Charge 15, non-prohibited person in possession of a silencer without a permit, maximum penalty 120 penalty units and/or two years.

4John Ruedin, you have pleaded guilty to one charge of cultivation of cannabis in an amount not less than a commercial quantity between 1 August 2009 and 18 March 2013 at Laverton and Sunshine West, or Triholm and Enterprise Way.  As noted above, this offence carries a maximum of 25 years.  A commercial quantity is defined as 100 plants or 25 kilograms.

5The circumstances of your offending are set out in the plea opening dated 15 September 2015 (Exhibit JRA).  Your involvement at Triholm related to the period 1 August 2009 until mid-2010, when you ceased active involvement there.

6You became involved at Enterprise Way in late 2009, and that continued until 28 March 2013.  The aggregate amount of cannabis grown at those places during those periods was a commercial quantity at the upper end of the range.

7The circumstances regarding both of your involvement can be summarised as follows.  As to the background, on 28 March 2013, police executed search warrants at adjoining factories at 77-79 Triholm Avenue, Laverton.  A large cannabis crop was located growing in both factories.  A total of 131 cannabis plants were seized, with a combined weight of approximately 196 kilograms. 

8The crops were secreted inside purpose-built growing areas or rooms that were constructed using insulated panels.  The growing areas and plants were segregated to accommodate various stages in the growth cycles of the plants. 

9By 28 March 2013, neither of you were regularly present at Triholm.  Ronald Oakford, Shaun McGrath, Reed Paterson and Shane Day were all arrested, and each of them had, at that time, different roles in relation to the cannabis cultivation business at Triholm.  The latter three were also involved in other activities relating to cannabis cultivation that are not the subject of any of the matters before me.

10A drug taskforce investigation named "Operation Throwaway" commenced with a view to scrutinising others who were involved in this cultivation of cannabis business.  In January 2014, Oakford made a statement which included details implicating you both in the cannabis business at Triholm.  The information he provided was supported by various documentary and other evidence that had been discovered in the investigation.  Oakford gave evidence in the trial of you, Faro. 

11In April 2014, you were both arrested along with Jeffrey Paterson, the father of Reed Paterson, and Maurizio Luccitti.

1277 and 79 Triholm Avenue, Laverton were adjoining factories that shared a common internal wall.  Neither of them had insulation or interior rooms when the factories were leased to companies associated with you, Faro, in 2002 and 2004.  From late 2007, work commenced within Triholm to ensure a viable setup for the business of cultivation of cannabis.  A hole had been cut in the adjoining wall to allow unfettered access between the factories.  The date range for you Faro recognises the preparatory work in setting up the factories for the cannabis business, and the creation of an account with Smart Water for irrigation supplies. 

13By 1 August 2009, when the date range for your offending, Ruedin, commenced, you assisted Faro in the cultivation of cannabis at Triholm.  Triholm was set up with five separate insulation rooms, or "grow rooms" for plants in the bloom or flowering phase of growth, and separate rooms for each of the following:  plants in the younger vegetation phase; mother plants used for cutting to grow new plants in small tubs on shelving adapted for that purpose; for drying cannabis; for office purposes; and for storage of materials.  All the rooms were each individually secured by padlocks.  Each grow room was maintained by artificial lighting systems, an automatic feeding system, fans, and carbon filters.  The feeding system was supplied from rows of 1000-litre tanks lined up outside grow rooms.

14The crops were orchestrated to ensure a cycle of harvests and a regular supply of cannabis.  Each grow room could be harvested every 11 weeks or 77 days.  There were thus potentially four cycles per room per year, or 20 harvests.  Once harvested, the cannabis would be dried, weighed and packaged into heat-sealed plastic bags, then sold.  The grow room would be cleaned and repopulated with 15 immature plants drawn from the vegetation room and ready to begin the bloom phase of growth.

15The date range in the charge relating to you, Ruedin, commences on 1 August 2009, being the notional start of the crops that were later harvested in November 2009.  Documents located by police on an Apple computer at your house, Faro, revealed that in November 2009, crops were harvested from two separate grow rooms, which yielded a total of 54 pounds or 24.5 kilograms of dry cannabis, with wholesale cultivation revenue of $140,400 (see Tab 13, p.336 of the financial documents).

16This amount equates to $2,600 per pound, or $5,730 per kilogram.  In that same document, you, Ruedin, are recorded as receiving $9,000, and you, Faro, are recorded as receiving $11,000, with the remainder of the money going to Luccitti, costs associated with Enterprise Way, and other expenses.

17On or about 1 November 2009, you, Faro, handed the day-to-day operation of Triholm to Jeffrey Paterson, on the basis of a payment by him to you of a $29,000 monthly franchise fee.  Paterson did not receive any of the funds from the November crop. 

18In about mid-2010, Oakford began working at Triholm for Paterson.  When Oakford began, you still attended the factory occasionally, but Ruedin stopped coming about a week after Oakford began.  Paterson, and to a lesser extent Ruedin, gave Oakford training and instructions, including how to implement procedures described on checklists on the walls, and advice as to the appropriate clothing to wear in the factories. 

19You, Faro, continued to give guidance and support to those who were running the cannabis business at Triholm.  This related to many aspects of the business, including advice on growing techniques that you had observed overseas, provision of updated instructions regarding the growing techniques that should be adopted, the supply of hydroponic materials, chemicals and nutrients, and the provision of a means for them to obtain expensive specialist and unique equipment, such as chillers and humidifiers, to improve yields.

20On 24 May 2011, you, Faro, subleased the factories to Oakford, who began a partnership with Paterson in the cultivation of cannabis at Triholm, still subject to the payment of a monthly franchise fee.  Paterson or Oakford paid the fee in cash for the benefit of you, Faro, at least in substantial part.  The partnership between Oakford and Paterson was still operating at the time that police attended at Triholm.  Paterson sold the cannabis, harvested, and was responsible for staffing the crop.   He utilised a network of paid workers to assist with the operation and harvesting of the cannabis crop, including McGrath, Reed Paterson, and Day.

21As to Enterprise Way, that was purchased on 2 November 2009 by a company associated with a superannuation fund that had been established in 2008.  That fund had you, Faro, Luccitti, and your respective wives as the four trustees and beneficiaries.  The ostensible purpose of the Enterprise Way factory was as an investment for the superannuation fund, and for use by Synthetic Solutions Pty Ltd in the business of installation of synthetic grass.  Some legitimate business was conducted by Synthetic Solutions by family members, with occasional turf installation being carried out.

22However you, Faro, and Luccitti were equal partners in the ownership, control and activities of Synthetic Solutions, including the use of the company to launder money for the cultivation of cannabis. 

23In late 2009 and early 2010 you both, along with Luccitti, installed a mezzanine floor and three grow rooms at Enterprise Way and set up the premises for cannabis cultivation, working on the same model already established by you, Faro, at Triholm.  Similar equipment and systems were used.  In 2011, you, Ruedin, assisted in adding to the existing insulation or grow rooms at Enterprise Way.

24A document located on your mini iPad at your home, Faro, in the form of a spreadsheet, indicates the first harvest in May 2010 (see Tab 14, p.338, financial documents).  Other documents located reveal that in 2011-2012, expensive and unusual equipment, including water chillers and humidifiers, were purchased by you, Faro, from interstate and overseas, and were installed to minimise the risk of lost crops, and to maximise yields.  Some of this kind of equipment was also used at Triholm.

25In February 2012, a 12-month lease was signed by you, Ruedin, as the tenant of Enterprise Way, and you, Faro, as guarantor.  Although the lease existed, you, Ruedin, never had exclusive occupation of the premises.  Rental revenue was also paid to the superannuation fund in the sum of $3,400 per month.  Financial records for Synthetic Solutions, located with Luccitti for the relevant time, reveal wage payments, superannuation, and significant cash invoices and deposits, as well as purchases from assorted suppliers consistent with the running of a cultivation of cannabis business.

26On 1 November 2012, you, Ruedin, began leasing the factory at 23/4 Waddell Court, Laverton North, at a monthly rental of $1,250.  This was agreed between you both and Luccitti, and rent was paid by revenue from the cannabis cultivation at Enterprise Way.  The premises were used at least partly for the storage of equipment acquired by you, Faro, for use in cannabis cultivation.

27Following the execution of warrants at Triholm, you, Faro, decided to close down the operation at Enterprise Way.  Luccitti and you, Ruedin, then later, Faro, all took some part in the dismantling of the crop, the disposal of unwanted materials, including twenty 1,000-litre water tanks, and the removal of valuable equipment to Waddell Court.  By September 2013, you, Faro, with Luccitti had listed, for sale, Enterprise Way via a real estate agent.  By the time the premises was put on the market, the crop and most of the chattels had been removed, however the makeshift grow areas fabricated from insulated panels and still-framed mezzanine floors remained in situ. 

28Settlement of the sale of the Enterprise Way factory occurred in January 2014.  When police attended at Enterprise Way, there was no longer your business in cannabis cultivation operating.  There was not, as was the case at Triholm, a definite amount of cannabis to be weighed. 

29The charge in respect of Enterprise Way for you, Faro, is limited to an amount less than a commercial quantity. For you Ruedin, the amount is incorporated in the amount at Triholm, an amount not less than a commercial quantity, given the 196 kilograms at Triholm.

30In the spreadsheet referred to above, the figures covered the period May 2010 to November 2012, and reveal a yield of $1,409,100 “for all”, with a total of 640.5 pounds, or 290 kilograms.  Such calculations suggest an amount of $2,200 per pound, or $4,859 per kilogram.  Taking the amount of 24 kilograms, that is an amount less than a commercial quantity, it would have had a value of approximately $120,000.

31In the course of lawfully intercepted telephone conversations in November and December 2013, you both discussed the whereabouts of various items of equipment, such as chillers and humidifiers previously used at work, or Enterprise Way.  Both of you displayed a detailed familiarity with the cultivation setup at Enterprise Way, and you both also expressed shared concern about the uncertain status of Oakford's criminal charges when they were pending.

32On 3 February 2014, Ruedin, you were paid $76,450, ostensibly for the construction of the mezzanine and insulation rooms in the earlier years at Enterprise Way.  The following day, you, Ruedin, paid $49,500 of this money to Faro.  Ruedin was also liable to pay $6,950 in GST.

33In early April 2014, search warrants were executed at your various residential premises and at Waddell Court.  No such warrant was executed at Enterprise Way, as those premises by that stage been sold.  At Waddell Court, a large volume of cultivation equipment, which had previously been in use at Enterprise Way, was found. 

34On 2 April 2014, police executed a search warrant at your residential address, Faro, at Boardwalk Boulevard.  As a result of the search, the following items, the subject of Charge 4 and the summary matters were seized:  a small amount of cannabis secreted in a wardrobe (Charge 4); a bayonet and dagger found in a gun safe (Summary Charge 12); a security guard-type baton found in a gun safe (Summary Charge 13); a firearm in a leather case in a wardrobe not secured (Summary Charge 14).  In addition, a silencer was found in a gun safe at Waddell Court (Summary Charge 15). 

35Other items located at your home, Faro, included an Apple Mac computer, a mini iPad, and an Apple laptop computer.  These devices were forensically examined and various files were discovered relating to the cultivation of cannabis business, including voluminous documents and photographs, and other related material.

36Additionally, some business records were also located that related to yields at both Triholm and Enterprise Way. 

37Police arrested and interviewed you, Faro, and you made a no-comment interview. 

38On 2 April 2014, police executed a search warrant at your residential address in Moonee Ponds, Ruedin.  Items seized include:  documentation regarding the purchase of Bondor panels for Enterprise Way; the collection of humidifiers on behalf of Faro from South Korea, and; a key which unlocked the padlocks to the grow rooms at Triholm.  Police arrested and interviewed you, Ruedin, and you denied any involvement in or knowledge of cultivation of cannabis at Triholm and Enterprise way.

39You admitted a long-term friendship with Faro and said you had worked at Triholm, but you denied ever seeing the insulation or grow rooms set up.  You admitted building the mezzanine floor and insulation rooms at Enterprise Way, and ordering insulation panels in 2011, but claimed that Luccitti had sublet the factory to other people.

40You admitted removing the 1000-litre tanks from Enterprise Way prior to sale of the factory, and moving other equipment from Enterprise Way to Waddell Court.  You admitted the payment made to you following the sale of Enterprise Way and subsequent payment by you to Faro.

41As to each of your personal circumstances, Mr Faro, you are currently aged 53, having been born in December, 1962.  You are the eldest of four children and remain close to your mother and your siblings.  Your father, when he came to Australian from Sicily, started a shop-fitting business, and you commenced working with him after you left school in Year 11.  Your father died when you were 21, and you and your brother continued in the business, though it soon shut down.

42In 1984, you started your own security firm, and were successful in that endeavour until about 1996.  After that, you commenced a business in self-storage, which you ran for about four years, and then the business was bought out by Storage King. 

43You were first married when you were age 24, and had three children from that marriage.  You also have grandchildren.  You married your second wife 17 years ago, and have another two children from that union.  You remain close to all your children and extended family.

44You worked with your brother on the Sanctuary Lakes project, assisting with various jobs, including fencing and landscaping.  You conducted a sand and soil business in Werribee, which you continued through until 2008, though this closed due to lack of demand.  After this, you did some works with your brother involving landscaping and synthetic grass.  In 2012, you spent a significant time in Poland and worked there. 

45It is apparent from the phone intercept material that you were having difficulty finding any work or having any source of income once this cultivation of cannabis business ceased during 2013. 

46I heard character evidence Wayne Ellis, a retired police officer, and I received a number of character references, which I take into account.  You have no relevant prior convictions and have no matters outstanding.

47Your counsel submitted that given your age and the impact of your convictions and the custodial sentence which I will impose, that you are unlikely to reoffend.  The prosecution submitted I should be more cautious in assessing your rehabilitation prospects, given your apparent lack of remorse for this offending, and your continued participation with other premises, the subject of Charge 3, even after police had been involved at Triholm.

48I accept that upon your release your rehabilitation prospects are fair, given your previous good character and your family support. 

49Mr Ruedin, you are currently age 68.  You have been married for 45 years, though you are currently separated from your wife.  You have a daughter age 30 who remains supportive of you.  She provided a reference to the court, and I take that into account. 

50You left school in Year 10 and completed a carpentry apprenticeship in 1961.  You worked in the building industry for about five years.  You then had various roles in the transport industry as a driver and manager with different transport companies for approximately the next 17 years.  You have started different businesses, including in 1994 The Authentic Aussie Fence Company.  This fencing business did work at the Sanctuary Lakes project. 

51In 2007, you fell from a ladder at home, and you were restricted to a wheelchair for a period of about three months.  You were unable to work for the next eight months.  You continue to suffer from painful rheumatoid arthritis in your feet and wrists, and are currently on medication for that condition.

52In October 2008 you had synthetic eye implants, and as a result, you were unable to engage in welding required for the fencing business.  From 2009 until your arrest, you had occasional work in fencing, and also bought and sold antiques and vintage car parts.

53I accept that at the time of your involvement in this offending, you were struggling financially.  You had significant credit card debts and debts to friends, including Faro.  You were ineligible for Centrelink payments, and living in rental accommodation.  I accept your counsel's submission that your involvement in this offending stemmed from a financial need and a sense of obligation by you to repay debts that you had incurred.  You have completed a certificate course in cleaning and obtained your taxi driver's licence, though each of these required a working with children check, which was cancelled on your arrest in April 2014.  In 2014 you also filed for voluntary bankruptcy.

54In addition to your issues with rheumatoid arthritis, you have ongoing issues which require testing and attendance with a urologist.  You suffer from eczema and asthma, and have relevant medications for both these conditions.  You have no prior convictions, and no matters outstanding.

55Your counsel submitted, given you age, health and history, that you are unlikely to reoffend.  I accept, given these matters, your rehabilitation prospects are good.

56I take into account your plea of guilty to this offence.  Although it was a late plea coming before the commencement of the trial and after a ruling I made, your plea shows a willingness to facilitate the course of justice.  Additionally, there is a utilitarian benefit in the plea, and you have saved the community the extra time and cost of a joint trial, which would have been more complicated.

57There are a number of aggravating features that apply to both of you in respect of Charge 1.  The maximum penalty for Charge 1, as previously mentioned, is 25 years, and reflects the inherent seriousness of this kind of offending.  The amount of cannabis actually located at Triholm was almost eight times the threshold plant weight of a commercial quantity, the threshold being 25 kilograms, and the amount discovered 196 kilograms.  The total amount harvested over the relevant period would have far exceeded this amount, though it cannot be quantified with any precision.  Both your counsel conceded that this offending was at the higher range for this offence.  I am mindful that neither of you are to be sentenced on the basis that the actual cultivation was at a level above that with which you are charged.

58The setup at Triholm was sophisticated and involved planning.  There were purpose-built rooms, reticulated hydroponic watering and feed systems involving 100-litre tanks.  Some water was accessed from a fire hydrant.  There was extensive use of hydroponic lighting, cooling and exhaust systems, and a partial electricity bypass was set up.  The expensive and unusual equipment was used to ensure the most profitable and effective cultivation.

59Techniques were adopted to avoid detection, including heat-sealing with packaging for the cannabis, and clothing to prevent or disguise smell associated with the cultivation.

60In respect of you, Faro, you had control of the properties at Triholm.  You set it all up and remained involved for the duration of the period charged, six and a half years.  From November 2009, the business had become such that you were able to franchise it and receive fees in relation to the business being conducted there.  Multiple offenders were involved, with managers Paterson and Oakford, and crop-sitters, McGrath, Reed Paterson and Day, working at Triholm.  You continued to gain and share your knowledge throughout the period.  You updated instructions and provided access to more sophisticated, specialised and expensive equipment, which you imported for use in the cultivation business.

61You supplied general hydroponic materials, chemicals and nutrients for cultivation.  Your offending was motivated by significant financial reward.  You benefitted financially from the operations at Triholm from both the cultivation and the franchise fee.  There was significant cash contributions to your superannuation fund, and the acquisition of Enterprise Way was funded in part by the profits derived from Triholm.  You were able to lead a lifestyle that involved extended periods overseas and holidaying interstate.

62It is not apparent that during any of this period that you had any other source of income.  There does not appear to be any explanation for you becoming involved in this offending other than a desire for you to make a significant amount of money.  In the circumstances, your moral culpability for this offending is high.  You had no intention of desisting in your conduct until police became involved at Triholm.

63In respect of Charge 2, Enterprise Way, or Ruedin's involvement in that property, you were both involved in the construction and setting up of this operation.  You were both involved for three years and four months, though it is accepted in relation to you, Ruedin, that your role was not continuous or on a daily basis, assisting with various constructions and dismantling the operation over this period.

64No plants were seized or weighed, however, given the documents the expected yield was significant, even under the commercial threshold, with a conservative estimate of $2,000 per pound, with 24 kilograms, it is still a significant amount at $140,000 value.

65In respect of you, Faro, and Enterprise Way, you and Luccitti were joint principals and the joint beneficial owners of the property through the superannuation fund.  There was a similar level of sophistication and method adopted as that which occurred at Triholm.  You personally oversaw the construction within Enterprise Way to facilitate the cultivation and establish the crop.  You provided the knowledge and skill to ensure a successful crop, and continued to increase your expertise in the field, with trips overseas and importing of more specialised equipment.

66This was an expansion of the business that you set up at Triholm, and you remained motivated by significant financial reward.  You benefitted financially from the operations at Enterprise Way, with significant cash contributions to your superannuation fund, and in the accounts of Synthetic Solutions.  You made a significant capital profit on the sale of Enterprise Way.

67In respect of Charge 3, Faro, you continued your involvement though police were investigating Triholm, ensuring that your equipment was secreted and secure.

68As to the issue of parity, there are significant differences between you, apart from your personal circumstances, including Faro, you are to be sentenced for more offences.  Faro, you do not receive the significant discount or benefit for a plea of guilty.  Faro's period of involvement in respect of cultivation of cannabis in an amount not less than a commercial quantity was continuous over a six and a half year period.  Ruedin, your period of involvement was significantly shorter, and it was accepted by the prosecution, not continuous.

69You had different roles at both Triholm and Enterprise Way.  Ruedin's plea was on the basis that he aided and abetted you, Faro, as the principal.  Ruedin, in respect of Triholm, assisted in the cultivation of the crop.  Faro, you leased the property, set up and conducted the business, received the franchise fee, provided continuing advice regarding the crop.  Ruedin, in respect of Enterprise Way, you installed the grow rooms and mezzanine floor in 2009 and 2011.  You leased the factory at Waddell Court for storage of materials and equipment from Enterprise Way, and you dismantled the crop and structures at Enterprise Way.

70Faro, in respect of Enterprise Way, it was an entity associated with you that owned the property.  You oversaw the structures and setup to be similar to those of Triholm.  You provided the knowledge and skill regarding cultivation methods, including detailed grow instructions.  You were the importer and purchaser of specialised equipment from interstate and overseas.

71I was provided with copies of the sentences imposed by His Honour Judge Gamble on the other offenders, to whom I have made reference, which are also relevant for the purposes of parity.  Each of these offenders pleaded guilty.  Jeffrey Paterson pleaded guilty to cultivation of cannabis in not less than a commercial quantity over a two-year period in respect of two locations, Triholm and another factory in Macaulay Street, Williamstown North.  The amount of cannabis that was seized by police at both of those premises was approximately 211 kilograms.  This amount was well over the commercial threshold, but also there was a significant amount of cannabis that had previously been harvested from Triholm.  The amount was at the high end of commercial quantity.

72Jeffrey Paterson was motivated by money, standing to gain significant share in profits as manager of Triholm, even paying the franchise fee.  In respect of the other property, this was in the process of being established by him, again with the expectation of profit, but no franchise fee was to be paid.  Jeffrey Paterson received a sentence of 4 years and 6 months with a non-parole period of 2 years and 6 months.

73Maurizio Luccitti pleaded guilty to cultivation of cannabis simpliciter over a period of six months at Enterprise Way.  In his matter, the prosecution conceded the particular and rather unusually circumstances of his offending.  He was sentenced to a three-year community correction order, with a requirement for 300 hours of unpaid work.

74Ronald Oakford pleaded guilty to cultivation of cannabis in not less than a commercial quantity and theft of electricity, both relating to Triholm over a four-month period.  The amount of cannabis was that discovered by police in March 2013, 196 kilograms.  His role in the business was as has been described earlier.  He was employed initially by Jeffrey Paterson, and later became his partner in the Triholm business.  As indicated, he gave evidence in your trial, Faro.  He was sentenced to a total effective sentence of two years, two months, which was wholly suspended.

75Reed Paterson, Jeffrey Paterson's son, pleaded guilty to cultivation of cannabis in not less than a commercial quantity at Triholm and Macaulay Street over a period of seven and a half months.  It was for an amount of 211 kilograms.  He was a crop sitter and attended to the crop, and was employed by his father.  He gained limited financial benefit, and received at two year, four-month sentence, wholly suspended.

76Shaun Day pleaded guilty to cultivation of cannabis in not less than a commercial quantity at Triholm.  Again, the amount was 196 kilograms.  He had a similar role to Reed Paterson, and also benefitted a limited amount of $3,000.  He was sentenced to a period of 15 months' imprisonment with a non-parole period of eight months.

77Shaun McGrath pleaded guilty to cultivation of cannabis in an amount not less than a commercial quantity at Triholm and Macaulay Street.  Additionally, he had grown some cannabis at home.  The total amount was 212 kilograms.  He also pleaded guilty to other related offences.  His period of offending was seven and a half months, and he was paid $6,000 for his assistance at Triholm.  His role was limited at Triholm, but the growing of cannabis at his home was his own creation and not solely for his personal use.  In respect of Macaulay Street, he was characterised as playing a significant role in making the factory available for Jeffrey Paterson to grow cannabis.  It was accepted he became involved because of debts and an associated drug habit. Shaun McGrath was sentenced to 2 years and 8 months with a non-parole period of 16 months.

78In respect to you, Faro, it was not suggested by your counsel that parity considerations required you to be sentenced on an equal or lesser footing as any of your co-offenders, nor could it have been, in my view.  There are marked differences in the nature and seriousness of your offending, your proprietorial interest and control in respect of each property, your profits and expectations of reward, your differing personal circumstances, and significantly, that you cannot claim any sentencing discount for a plea.  These differences are such as to justify you being sentenced in a different and more severe manner than any of the other individuals who were involved.

79Also of relevance in consideration of parity issues are current sentencing practices for this offence.  Mr Tovey QC provided me with the sentencing snapshot for the cultivation offences.  The Court of Appeal recently considered current sentencing practices for the offence of cultivation in an amount not less than a commercial quantity in Nguyen v The Queen [2016) VSCA 198.  The Court determined that current sentencing practices for this offence did not adequately reflect the objective seriousness of the offence, and that there had been a lack of consistency in the application of sentencing principles.  This decision was handed down after all the others involved in this offending had been sentenced, and after you, Ruedin, were arraigned on 11 August 2016.

80At 152, Redlich JA remarked:

"For the immediate future, sentencing courts must, by increments, increase sentences for mid-category offending so that the range of sentences is uplifted and substantially expanded."

81Mr Tovey submitted on your behalf, Mr Faro, that it would be unfair if I sentenced you on that basis, given that none of the others involved in the same offending were.  It was also submitted that the decision was limited in its application to offending that could be classified as mid-range, and was thus not applicable to you.

82The prosecution submitted that though Nguyen related to offending classified as mid-range, that it would inevitably serve to increase sentences for offending in the upper range, given the increment in the sentences for mid-range offending.  Such was recognised by Whelan JA at 230.

83The prosecution submitted that Nguyen and current sentencing practices were relevant to the sentencing task in respect of you, Faro, but that this needed to be considered with principles of parity and an appropriate differentiation between you and your circumstances and the sentences of those that have been imposed on others who have pleaded to lesser involvement.  I accept that submission.

84Any shift in current sentencing practices needs to be within the principles of parity.  Given the features of your offending previously noted, including your control, role, ownership, duration and motivation, you clearly come well above any of the other offenders who were involved, and your conduct warrants a greater sentence than others.

85In respect of you, Ruedin, you counsel submitted that parity considerations required you to be sentenced on a lesser footing than Jeffrey Paterson, and on an equal footing to Shaun McGrath.  In respect of Jeff Paterson, your roles at Triholm differed.  Paterson took over the management of Triholm and was then in partnership with Oakford.  He was involved there for a period of two years, and you were involved for ten months.  Paterson was motivated by profit.  You are to be sentenced for a lesser amount of cannabis, though you were both involved in a commercial quantity at the high end.  I accept that, given the differences I have outlined, you should be sentenced on a lesser basis than him.

86In respect of Shaun McGrath, your roles at Triholm were similar, though you were involved for a longer period.  He was involved for seven and a half months, you at Triholm for ten months.  You both assisted in the cannabis cultivation at Triholm, but you additionally had an important role in the setting up or the internal construction, and later, addition of grow rooms, and deconstruct of the business at Enterprise Way.  You received a greater financial benefit than McGrath, and although you did not have a direct stake in profits, you provided assistance or worked in the knowledge that you would be paid for works that were for an unlawful operation.

87The differences between you and McGrath are such as to warrant you to be treated more severely. 

88Reference was also made by counsel for Ruedin to the sentence imposed on Luccitti, however there are significant differences in respect of the offence to which he pleaded, duration and personal issues that justify different treatment.

89I have considered and taken into account the principle of parity in respect of each of the offenders, including those to whom specific reference was made by counsel in determining an appropriate sentence for each of you. 

90The sentence imposed must reflect the gravity of the offence and the offending conduct, but also have regard to matters personal to you and other mitigating circumstances, and other relevant sentencing principles.

91Whilst of lesser importance to you, Ruedin, specific deterrence has a role to play in the sentencing task.  You both made a deliberate choice to commit what you must have understood was serious offending.  The nature and seriousness of the offending means any sentence that this court imposes must go somewhere towards discouraging either of you engaging in similar or other criminal conduct again.

92Given the nature and seriousness of this offence, general deterrence and denunciation are primary sentencing considerations.  Offending of this nature requires the imposition of a significant term of imprisonment if people are to be justly punished, and those sentencing objectives are to be accorded sufficient weight. 

93By the sentence imposed, this court must seek to deter others who are minded to cultivate cannabis, or to be involved in such a business from doing so.  This is particularly so when the operation is sophisticated, the quantum of product produced is voluminous, and the actual and expectation for profit is high.  If and when people involved in running such a business are caught, serious consequences in the form of a substantial custodial sentence can be expected.  The community justifiably expects the court to treat those who engage in this conduct on such a high scale with stern punishment.

94Just punishment requires consideration of your serious criminal conduct, but also your personal circumstances and matters in mitigation which you can rely on, including for you Ruedin, your plea of guilty.  Ruedin, your counsel submitted that all relevant sentencing purposes could be achieved by the imposition of a combined term of imprisonment and a community correction order.  Alternatively, it was submitted I should impose a term of imprisonment with a shorter than usual non-parole period.  The prosecution submitted that a combined sentence was outside the range of dispositions available to me.

95Mr Faro, your counsel conceded a term of imprisonment was the only sentencing option available to me, but submitted that given you were unlikely to reoffend, that I should impose a shorter than usual non-parole period.

96Having carefully considered the circumstances of your offending, issues of parity, and bearing in mind your personal circumstances and the matters in mitigation upon which you can rely, I have ultimately concluded that only a term of imprisonment is open in both of your cases.  If you could both please stand?

97Mr Faro, in respect of Charge 1, you are convicted and sentenced to a period of imprisonment of six and a half years. 

98In respect of Charge 2, you are convicted and sentenced to a period of imprisonment of three years. 

99In respect of Charge 3, you are convicted and sentenced to a period of one year. 

100In respect of Charge 4, you are convicted and fined $200. 

101In respect of Summary Charge 12, you are convicted and fined $1,000. 

102In respect of Summary Charge 13, you are convicted and fined $500.

103In respect of Summary Charge 14, you are convicted and fined $500.

104In respect of Summary Charge 15, you are convicted and fined $1,000.

105One year of the sentence imposed on Charge 2 will be served cumulatively on the sentence imposed on Charge 1, which gives a total effective sentence of seven and a half year, and I set a non-parole period of five years.

106Mr Ruedin, in respect of your charge, you are convicted and sentenced to a period of imprisonment of three and a half years with a non-parole period of two years.

107Presentence detention please, Mr Batten?

108MR BATTEN:  Twenty-two days for Mr Ruedin, Your Honour.

109HER HONOUR:  And Mr Faro's?

110MR BATTEN:  Eighteen for Mr Faro.

111HER HONOUR:  That cannot be right.  Did Mr Ruedin have some before?  He had six days before?

112MR BATTEN:  Yes, six days before.

113HER HONOUR:  All right.  Pursuant to s.6AAA, Mr Ruedin, if you had not pleaded guilty to this matter, I would have imposed a sentence of five and a half years with a minimum term of four years.  There are three ancillary orders, is that correct?  In respect of each accused?

114MR BATTEN:  There is - I understand there is the order for the taking of a sample in each case.

115HER HONOUR:  Yes.

116MR BATTEN:  There is disposal orders in - I think, each charge.  Forfeiture orders in respect of Mr Faro, a separate firearms forfeiture order.

117HER HONOUR:  Right, have you got those orders?  Thank you.  I know that when I was reading the remarks that I had not included Jeffrey Paterson or Shaun McGrath's sentences.  I will include those in the revised reasons.  Have we got the s.464ZFs?

118MR BATTEN:  Your Honour, I do not have a hard copy at hand.  I understand they were forwarded to the court, but ‑ ‑ ‑

119HER HONOUR:  Look, we can chase that up, or alternatively your instructor can provide another to us, thank you.

120MR BATTEN:  Yes.  Yes.

121HER HONOUR:  There are the disposal orders.  Are there any other matters?

122COUNSEL:  No, Your Honour.

123HER HONOUR:  No?  Thank you, you can remove the prisoners and the parties are excused, thank you.

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