Director of Public Prosecutions v Garcia
[2012] VCC 1520
•4 October 2012
PjOHN G
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-02149
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN GARCIA |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 October 2012 | |
CASE MAY BE CITED AS: | DPP v. Garcia | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1520 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr H. Thomas | OPP |
| For the Accused | Mr M. O'Connell SC | Theo Magazis |
HIS HONOUR:
1
John Garcia, you have pleaded guilty to one charge of cultivating a narcotic plant, namely cannabis, contrary to s.72B of the Drugs, Poisons andControlled Substances Act 1981. The maximum penalty for that offence is
15 years' imprisonment. You have also pleaded guilty to one charge of theft of electricity, contrary to s.72 of the Crimes Act 1958. The maximum penalty for that offence is ten years' imprisonment; and you have further pleaded guilty to one charge of being a prohibited person in possession of an unregistered firearm, contrary to s.5(1A) of the Firearms Act 1996. The maximum penalty for that offence is a fine of 1800 penalty units or imprisonment for 15 years.
2 You offered to plead guilty to the charges now before the court at committal mention on 15 November 2010, and whilst the offer was at that time rejected, I regard your plea of guilty to be an early plea of guilty and I have taken it into account in your favour in mitigation of sentence.
3 You have admitted an extensive criminal history consisting, by my reckoning, of 28 prior convictions or findings of guilt from six separate court appearances. You have two such convictions or findings of guilt for cultivation of cannabis, one prior conviction for trafficking cannabis and one prior conviction for trafficking heroin. You also have four prior convictions or findings of guilt for possession of unregistered firearms or prohibited weapons. Your most recent court appearance on 1 February 2007 in the County Court at Melbourne resulted in you being imprisoned for three years and three months with a
non-parole period of two years and three months in relation to cultivation of cannabis, burglary and two charges of theft. That sentence lapsed on
16 February 2009 and so your offending in this instance occurred less than five months later.
4 Plainly, your criminal history is of considerable significance for sentencing purposes in this instance. You are a mature man, yet you have continued to offend, and in my opinion specific deterrence is an important sentencing consideration in your case, although for the reasons that follow, I have moderated its application in the circumstances of this case.
5 The prosecution opening was read to the court and tendered in evidence, and your offending may be summarised as follows:
6 On 29 October 2009 a number of police officers attended at premises located at 181 Mann Road, Upper Pakenham. Upon arrival at the premises, the police officers heard music playing from the premises and could hear sounds of movement inside the house. One of the police officers knocked on the front door and called out "Police" and then went to enter the premises. Shortly afterwards you were observed to run from the back of the house down a track into nearby bushland carrying a plastic bag. You were pursued by police and observed to dispose of the bag which, upon later examination, contained cannabis. You were not apprehended at this time.
7 Police returned to the house later that day and conducted a search pursuant to a warrant obtained pursuant to the Drugs, Poisons and ControlledSubstances Act. Upon entering the premises, the police observed in the master bedroom 14 cannabis plants and a number of items of hydroponic equipment. In three other bedrooms they found four plants being grown in a further hydroponic system including air pumps, transformers, thermometers and chemical fertilisers. Plant material was also drying in a rumpus room in the premises. In the cupboard adjacent to two of the bedrooms, an electrical bypass had been installed to prevent accurate measurement of electricity being consumed by the hydroponic system, and further, on a laundry shelf, police located a semi-automatic Sterling .22 rifle together with a loaded magazine and 68 rounds of ammunition. You were later identified by footage from a camera located in the house and documents found in a vehicle nearby.
8 On 5 December 2009 you presented to police for interview and, during the course of questioning, declined to answer the questions investigating police put to you. You were charged with these offences and remanded in custody.
9 I am satisfied that the cultivation of the cannabis in this instance was for a commercial purpose. That is not to say that you intended to cultivate a commercial quantity of the substance, and you are not to be sentenced for that offence, but the circumstances of your offending demonstrate that the cannabis was being grown for sale and distribution to others. Accordingly, any sentence that I impose must also be calculated to deter others from offending in the way that you have, but as I have already said, for reasons that will follow, I have moderated the application of the principle of general deterrence in the circumstances of this case.
10 I now turn to your personal circumstances.
11 You were born in Bucharest, Romania on 8 November 1967 and you are 44 years of age. You reside with your partner, Nadia Valencia, and her two children, aged 21 and 23. Your relationship with Ms Valencia is of long standing and she and her children are very supportive of you. You have a good work history, and since your release from prison in February 2008, you have built up a successful welding company known as Gavcon.
12 I heard evidence from Mr Riccardo Valencia, your partner's ex husband, regarding this business, and it is clear from his testimony that you have worked hard and industriously in the business. I accept, as I observed during the course of the plea hearing, that you are a person who is hardworking, intelligent and capable.
13 Your counsel, Mr O'Connell SC, relied on a body of evidence as to your character and I accept that the persons who provided the references for you spoke of you in very positive terms. I also received a body of evidence regarding your physical health, and I accept that in March 2012 you suffered episodes of chest pain caused in all probability by myocarditis, an inflammation of the heart muscle. The medical reports tendered in evidence suggest that your prognosis in relation to this illness is good.
14 I also received in evidence a report of Mr Jeffrey Cummins, a consulting and forensic psychologist, and Mr Cummins gave evidence before me. His report details your personal background, and I will not repeat that history in these reasons.
15 In Mr Cummins' opinion, you suffer from a chronic adjustment disorder with features of depression and anxiety. He also concluded that you may suffer from cyclothymic disorder, which is characterised by numerous periods of hypermanic and depressive symptoms. Although it would appear that a proper diagnosis of your condition has not been made until you were examined by Mr Cummins, he stated in his report that "It does appear that his mental health is now reasonably stable."
16 In Mr Cummins' opinion, you require ongoing support and treatment for your condition and your mental health will deteriorate in the event that you were imprisoned.
17 I accept that the principles in R v. Verdins (2007) 16 VR 269 are engaged in your case. I accept that your judgment was impaired by your depressive illness at the time of your offending, and for that reason, general and specific deterrence should be moderated to some degree in your case. I also accept that your condition may deteriorate in prison and that imprisonment for you will involve a greater degree of hardship than for a person not suffering from your condition.
18 Your offending occurred in 2009 and you have not re-offended since and you have no outstanding charges. I accept that you have made considerable progress in your rehabilitation over that period and that your prospects for rehabilitation may now properly be described as good.
19 I have also taken the delay in this matter coming to court into account in your favour, and I accept that the delay has caused you a degree of anxiety and uncertainty in relation to your future.
20 Your counsel submitted that in all the circumstances it would be open to me to wholly suspend the term of imprisonment that I must impose. The prosecution disputed this and submitted that the term of imprisonment that I impose must involve your actual confinement.
21 Section 27 of the Sentencing Act 1991 provides as follows:
"(1)On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or a part of the sentence if it is satisfied that it is desirable to do so in the circumstances.
(1A)In considering whether it is desirable in the circumstances to make an order suspending a sentence of imprisonment, a court must have regard to -
(a)the need, considering the nature of the offence, its impact on any victim of the offence and any injury, loss or damage resulting directly from the offence to ensure that the sentence -
(i)adequately manifests the denunciation by the court of the type of conduct in which the offender engaged; and
(ii)adequately deters the offender or other persons from committing offences of the same or a similar character; and
(iii) reflects the gravity of the offence; and
(b)any previous suspended sentence of imprisonment imposed on the offender and whether the offender breached the order suspending that sentence; and
(c)without limiting paragraph (b), whether the offence was committed during the operational period of a suspended sentence of imprisonment; and
(d)the degree of risk of the offender committing another offence punishable by imprisonment during the operation of the period of the sentence if it were to be suspended."
22 On two previous occasions you have received suspended sentences of imprisonment for drug-related offending. On 8 February 2000 you were dealt with in the Melbourne Magistrates' Court for breaching a suspended sentence by the offence of trafficking in cannabis, and as I have already observed, you have an extensive criminal history for offences involving drug offending.
23 After careful consideration, I am not satisfied that it is desirable to suspend, either wholly or in part, the sentence of imprisonment that I must impose.
24 As I have said, specific deterrence is an important sentencing consideration in your case, and whilst I have applied the principles of R v. Verdins in my formulation of the appropriate proportionate sentence in your case, in my opinion you nevertheless should be required to serve a term of actual imprisonment.
25 Whilst I accept that your prospects of rehabilitation are good, I do not accept that a relatively short term of imprisonment will irreparably damage the process of rehabilitation that is underway. You have the support of your partner and her family and you will be able to undertake psychological treatment upon your release from imprisonment.
26 In the result, the sentence of the court is as follows:
27 On Charge 1, the charge of cultivating a narcotic plant, namely cannabis, you are convicted and sentenced to be imprisoned for 18 months. On Charge 2, the charge of theft of electricity, you are convicted and sentenced to be imprisoned for six months. On Charge 3, the charge of being a prohibited person in possession of an unregistered firearm, you are convicted and sentenced to be imprisoned for six months.
28 Charge 1 is the base sentence. I order that three months of the sentence on Charge 2 and three months of the sentence on Charge 3 be served cumulatively on each other and cumulatively on the sentence that I have imposed on Charge 1. This makes for a total effective term of imprisonment of two years.
29 I order that you serve nine months' imprisonment before becoming eligible for release on parole.
30 I declare that you have served 14 days imprisonment by way of pre-sentence detention.
31 But for your plea of guilty, I would have sentenced you to a term of imprisonment of three years and imposed a non-parole period of 18 months.
32 By operation of s.242(5) of the Criminal Procedure Act, I remit three summary offences, namely possession of ammunition without a licence, unlicensed storage of a firearm and unlicensed storage of ammunition to the Magistrates' Court for hearing and determination, and I have made the ancillary orders sought in this case by the prosecution.
33 MR THOMAS: If Your Honour pleases.
34 MR O'CONNELL: If Your Honour pleases.
35 HIS HONOUR: Are there any further orders required?
36 MR THOMAS: No, sir.
37 MR O'CONNELL: Your Honour has made a declaration pursuant to s.18?
38 HIS HONOUR: Fourteen days. I have.
39 MR O'CONNELL: If Your Honour pleases.
40 HIS HONOUR: The ancillary orders have been signed. They are with my associate.
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