Director of Public Prosecutions v Gasparis
[2013] VCC 1147
•24 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-01358
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LOUIS GASPARIS |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2013 | |
DATE OF SENTENCE: | 24 June 2013 | |
CASE MAY BE CITED AS: | DPP v Gasparis | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1147 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Guilty Plea – Cultivate commercial quantity of cannabis – Theft of electricity – Major depressive disorder at time of offending – Role greater than crop sitting
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Clancy | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Ms J. Dixon | James Harris Lawyers |
HER HONOUR:
1 Louis Gasparis, you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis between 24 May 2010 and 14 July 2011 and you have also pleaded guilty to one charge of theft of electricity between 24 May 2010 and 14 July 2011. Cultivation of a commercial quantity of cannabis has a maximum penalty of 25 years’ imprisonment, whilst theft has a maximum penalty of 10 years’ imprisonment. These maximum penalties – in particular for commercial cultivation, reflect the seriousness with which Parliament regards such offending.
2 The learned prosecutor opened the matters as follows:
3 I was told that you were 27 to 28 years of age at the time of the offending.
4 On 24 May 2010, you commenced renting a two storey warehouse in Coburg, agreeing to pay $2,600 per month in rent. The landlord, a Mr Lambros, had known you for about 10 years. He gave you a key to the premises and kept one for himself. You had previously asked Mr Lambros if he had any factories available for lease. After he purchased these premises in Coburg in April 2010, he contacted you and the arrangement was made for you to lease these.
5 At some stage, you put padlocks on the front door of the warehouse such that when Mr Lambros wished to access it, in order to store some building materials there, he was unable to enter without you being present.
6 Between 13 May 2011 and 30 May 2011, you had telephone conversations with another male. The male has not been identified in the proceedings before me. The calls were intercepted by police and recorded. During these calls, you and the other male were discussing tasks involved in cultivating cannabis, such as steps to dry plants after harvesting. An example of this was referred to in the opening. On 26 May 2011, you said in one of the phone calls, "Now there are some that are nice, that are good. They’ve come up nice, and I don’t want them to grow any bigger. Is it better that I turn off the light?”
7 You went on to say that you wanted to: "put them out tomorrow … because the smell in here has fucked me up”.
8 On 14 July 2011 police executed a search warrant at the warehouse.
9 They found that the ground floor was mostly open space whereas upstairs contained a number of offices.
10 On the ground floor police found a sandwich bag containing cannabis which was resting on the arm of a couch. They also found nearby a black carry bag containing cannabis, sandwich bags and a set of digital scales. These quantities of cannabis are not alleged as part of the cultivation charge but were led by way of context only.
11 In the upstairs area, police found a hydroponic growing system which had been set up. The offices had been used to grow cannabis and the system was complex – said to be made up of many parts, including fans, electrical cables, complex wiring, fertilisers and lights to grow cannabis.
12 Police seized a total of 55 cannabis plants from the office rooms upstairs. The combined weight of the plants was just over 90 kilograms-more than 3 and a half times the threshold for commercial quantity.
13 In one of the rooms upstairs police found a bag with gloves in it which were forensically tested and found to contain your DNA. Your fingerprints were also found on one of the light shades in the upstairs area.
14 On 18 July 2011, you attended Faulkner Police Station where you were arrested. Police obtained a search warrant for your flat. Under your bed they found a book about growing hydroponic plants.
15 The hydroponic system involved the use of an electrical bypass which gives rise to the theft of electricity which, by agreement, amounted to a loss of $18,064.66. This figure was arrived at on the basis of a six-month period with the electricity being used 12 hours per day over the period. The reason for this was that it was accepted by you that there were two crops harvested during the offending period and a six-month allowance was made in respect of the duration through which electricity was used.
16 You took part in the record of interview on 18 July 2011 but exercised your right to make “no comment” answers.
17
You pleaded guilty to the charges at a directions hearing listed on
1 March 2013. The matter had been listed for trial following a contested committal hearing.
18 Mr Gasparis, your offending is most serious in view of the fact that you were actively involved in setting up the cannabis crop. You were actively involved in the cultivation, playing a major role in it. Your offending endured for a period of about 13 months. The 90 kilograms of cannabis found, which was the wet weight of the plants, as I have said, is three and a half times the threshold for commercial quantity of cannabis by weight. Whilst I factor in that you cultivated cannabis for 13 months, I do not speculate in relation to the quantity of cannabis cultivated in addition to the 90 kilograms of plants found by the police.
19 You have a limited criminal history comprising one court appearance at the Heidelberg Magistrates’ Court on 11 April 2001 for burglary and theft. You received an adjourned undertaking on that occasion. In view of the age and nature of these offences, I place little weight on them. However, of more concern is the fact that whilst on bail for the offences before me, and at a time when you were apparently progressing well in terms of your business and personal well-being, you chose to traffic cannabis and were in possession of other drugs for which you were arrested on 12 July 2012.
20 You pleaded guilty to trafficking cannabis and a possession charge concerning the other drugs, and you were fined an aggregate of $2,000. I was told that police had searched your premises and found three pounds of cannabis and some pills which resulted in you being charged with possession of drugs and trafficking over a one day period. I was told that, notwithstanding that you had broken your addiction to drugs as at this time, you had cannabis left over from the first crop which you had harvested and, in a bid to quickly resolve financial issues with you business, you committed the trafficking offence.
21 Your counsel, in a most eloquent and rather candid plea, referred to your offending before me and the subsequent offending as “stupid”. Ms Dixon of Senior Counsel told me that the possession charge related to police finding a small blue tablet and some powder in the bungalow at your parents’ premises where you were living.
22 Mr Gasparis, it causes me great concern that, notwithstanding your arrest and being charged and bailed in respect of the serious matters before me, and despite apparently getting your life back on track, you were prepared to engage in illegal drug activity not long after. I must take this into account when assessing your prospects of rehabilitation, the weight which I attach to specific deterrence and the need to protect the community from you. Further, it gives me concern as to your level of insight and remorse in relation to the offences for which I now sentence you – at least, at that time, you were not showing anything much in the nature of these qualities or sentiments.
23 I take into account your plea of guilty and the stage at which it was entered. You first pleaded guilty to these offences at a mention in this court, having run a contested committal hearing in the Magistrates’ Court. Of course, it is your right to contest matters at the committal hearing and you are not to be punished for doing so. However, the discount which flows from this will not be as great as it would have been had you pleaded guilty to the offences from the outset. Notwithstanding this, I allow for a fairly significant discount in the sentence which you would otherwise receive as you have saved the witnesses the time and trouble of giving evidence at trial and you have saved the community the time and expense of running a trial.
24 I take into account your background and the events which led to this offending. Ms Dixon of Senior Counsel told me that at the time you offended you were working as a plumber, starting your own business. She pointed to some phone calls in the depositions which indicated that you were still learning how to cultivate cannabis from an unidentified male. You had leased the factory because of your plumbing business, however, Ms Dixon frankly and most properly conceded that this was with a view to setting up the premises as a front for cannabis cultivation. The growing of the cannabis commenced in 2011 and it is the second cycle of that cultivation for which you were arrested. In relation to the first crop, I was told that you ended up with three pounds which was what you were attempting to sell in 2012, giving rise to the Magistrates’ Court offence. The first crop was rather unsuccessful as you had burnt the plants with the light setup, although some was salvageable.
25 I was told that when you were setting up the cultivation at the factory, you were already in a rather difficult financial state and saw cultivation of cannabis as an easier solution. As I understand it, you were not alone in this venture and rent and some other expenses were paid by another party. When arrested for the offences before me, you were living in a rented apartment in Collingwood so that you could use drugs without your family’s knowledge. However, you also lived in a bungalow which you had built at your parents’ home, from time to time.
26 You are 30 years old – although still a fairly young man, you are old enough to have known better. I was told that you committed these offences in the context of the breakup of your family life. You had grown up in a loving and supportive family of Greek origin. You completed secondary school education, and you always wanted to be a tradesman. You were offered an apprenticeship in 2000 by an Arthur Tsiligiannis (Si-Lij-ee-a-nis). You worked for him for some time and he gave evidence in support of your fine professional skills and work ethic. He was one of a number of witnesses who gave evidence in support of your otherwise good character.
27 You were also a fine sportsman and it appears that your parents were very proud of you and your ambition was to increase their sense of pride as you made your way in the world. You completed your apprenticeship in 2004, becoming a qualified plumber. As you were working for a commercial plumbing company, you were required to be on call around the clock and were regarded as a most reliable and respected employee. Younger employees looked up to you and you played something of a supervisory role in this company.
28 After a three month holiday with a close friend, who also gave evidence in support of you, you met a young woman and subsequently commenced a relationship with her. Although you saw a good deal of each other, and she often stayed over, you continued to live at your home and she at her mother’s home for a time. As at this stage you occasionally smoked marijuana and used speed and consumed alcohol.
29 In 2008 your partner, Sharon, became pregnant and your child was born in March 2009. When your situation changed there was a good deal of pressure for you to cohabit, which coincided with the time that you were about to start your own business. Insofar as the latter was concerned, you were naïve about what was involved and, although a good tradesman, you had no advice or idea as to running a business. You borrowed $20,000 from the bank with which you bought a ute and trade equipment. You employed some subcontractors and commenced working as a commercial plumber in your own business. The business actually went quite well. I was told however, that your private life was disastrous.
30 After your child was born, your partner wanted to live near her mother in Croydon. In a bid to accommodate this, you moved to a unit in Blackburn. Your relationship deteriorated however due to the length of time you spent away from your family due to the demands of your business. You were working long hours, including weekends, in order to build up the business as well as having to meet rental payments and staff wages. You had employed a bookkeeper but were unable to pay her after only one month. Things were out of control and unhappiness at home led to your partner leaving you from time to time. Finally, in August/September 2010, your partner left for good, taking a number of items from the unit.
31 It appears that during this time you became depressed at the loss of your relationship and the lost of your child in particular, and in the context of the demands of your business, I was told that you became tempted to find an easier way of getting out of your problems, which led to you setting up the cannabis crop. However, as the learned prosecutor pointed out, you had actually commenced the cultivation in May 2010, some months before your relationship with Sharon ended, although it would appear that it was in difficulty for some time before she finally moved out.
32 Whilst it would appear that when your relationship ended, you turned to daily use of methamphetamine or ‘ice’, this must have been at a stage when you had already commenced the commercial cultivation. However, I am prepared to accept that there were business pressures operating on you, as well as personal ones before this, which impacted on your decision to make money from commercial cultivation. In this regard, I was told that you had felt unable to tell Sharon how precarious your business was. On the other hand, as the learned prosecutor pointed out, the documents which you provided to the court, suggested that the business was travelling rather well in this period-although, whilst records were provided in respect of sales, I have not received documentation in relation to outgoings during that time.
33 In the end, I am prepared to find that you commenced the commercial cultivation in circumstances where you felt pressure from your family situation, the expectations of your parents, and the pressures of commencing a new business. Somehow, with all of these pressures, you went to the trouble and found the time, apparently in league with another or others, to devote to an elaborate crop house.
34 In October 2010 you moved from the unit in Blackburn, notwithstanding that the lease was due to expire the following year. As at this time you were smoking ice daily. You told Dr Sullivan that you were smoking one gram per day. The expense of this habit meant that a good deal of money was going into the purchase of drugs for you rather than into the business. You were also having difficulty in recovering payment from some customers. At some stage, this meant that your business was effectively paralysed because your plumbing supplier would not extend you credit for items which you needed to run the business. You felt unable to speak to your parents, or anyone else really, about your situation and effectively buried your head in the sand, turning to drugs in order to cope. You told Dr Sullivan that you used ice very heavily for three months in order to relieve you of your pain and emotional distress following separation from your partner. You apparently became incapable of working and your business deteriorated significantly - this would appear to have been your situation towards the end of 2010. Notwithstanding this, you were apparently able to continue with the commercial cultivation which you had commenced in May of that year.
35 Your family and others became concerned about you. Also, you were experiencing some difficulty in having contact visits with your child. Ms Dixon said that you were chasing your tail, hoping that the cultivation would end perceived financial problems and that you were avoiding contact with your family. However, after you were arrested for these matters in July 2011, you moved home and tried to turn your life around. To your credit, by early 2011 you had broken your addiction to drugs and you were trying to get back on your feet as a plumber. I am unsure as to your explanation then for having been in possession of various substances in July 2012, but I shall put that to one side.
36 In relation to your subsequent offending, I was told that when you were arrested in 2011 all of your accounts, business records, computers and phones were seized by police and they were only returned two months ago, so this made running the business most difficult. It was in these circumstances that you resorted to a quick fix solution in 2012. Your subsequent offending was not impacted by your need for drugs, as was some of the period of the offending for which I now sentence you.
37 In relation to the subsequent matters, you spent three days in the cells at Heidelberg which was a most salutary experience for you. I was told that in view of all that has now taken place, you have really learnt your lesson. Hopefully the experience in the cells, which you found “awful”, has had some deterrent effect upon you. I am prepared to find that it has.
38 Even though you have contributed to the delay by contesting proceedings, I take into account that you have had the anxiety of these proceedings hanging over your head. Unfortunately, you have not placed yourself in a position where that time has been used to rehabilitate yourself overall. However, you have addressed your drug problems and are far better placed to work in a productive way in the future.
39 On the other hand, as well as resisting the temptation to return to drugs, you must also resist any urge to resort to illegal ways of solving financial problems which might arise upon your release from gaol. You have your family for support and the prospect of being a positive role model for your child in the future, which will hopefully inspire you to conduct yourself well when released from prison.
40 Also, it is clear that you have a solid friendship base to assist you in your rehabilitation. It is clear that you have some skill and ability as a plumber and you have a good work ethic which will stand you in good stead in the future. It appears that in more recent times you have expressed remorse for your offending to your close friend, Mr Chamouzas. I take into account the character evidence that he gave in support of you, as well as the evidence of your former employer, Mr Tsiligiannis (Si-Lij-ee-a-nis), as well as the other material tendered which attests to your otherwise good character.
41 In all the circumstances, although I do have concerns for you relapsing into drug use or quick fix solutions to financial problems, I find that your prospects of rehabilitation are fairly good.
42 I take into account Dr Sullivan’s diagnosis that you were suffering from a major depressive disorder at the time of your offending. In light of his findings, I am prepared to find that your moral culpability is marginally reduced. This impacts to a marginal degree on the weight which I would otherwise give to general deterrence and I will marginally reduce the weight that I would otherwise apply to specific deterrence, to which I would have otherwise attributed fairly moderate weight. Your offending calls for just punishment in all of the circumstances, including the circumstance of marginally reduced moral culpability. Your criminal conduct also must be denounced. Further, I must place quite significant weight on the principle of general deterrence, albeit marginally reduced – that is, in sentencing you, I must seek to deter others in the community from offending in the way that you have.
43 I also take into account, in a general way, Dr Sullivan’s findings concerning your psychological condition at the time and now.
44 I take into account that this will be your first time in gaol, leaving aside those days in the cells, and will probably result in the loss of your business. This will impact on your brother who has been looking out for you and who was your apprentice. Of course it will also impact on you. It was not put that there was exceptional hardship to your brother or any other family member in your case. I also take into account that it will be difficult for you whilst in jail as you will be separated from your family, especially your young child.
45 I have considered the submissions in relation to an appropriate sentence in your case, by both the learned prosecutor and your counsel. I have had regard to the various decisions to which your counsel referred me and to which the prosecution referred me, in support of the current sentencing practice which is one thing I must take into account in sentencing you. I have also had regard to the sentencing snapshot, although this has limited utility. I also considered recent cases of the Court of Appeal in relation to cultivation of commercial quantity of cannabis.
46 No two cases are identical but, when trying to determine current sentencing practice, your role exceeds that of a crop-sitter, which was the role played by a number of offenders in the decisions to which I have been referred. I must also have regard to the duration of your offending and the quantity of cannabis involved, amongst other things. Further, the theft of electricity in your case endured for a fairly significant period. Of course there are other factors which separate you in a positive way from other offenders, as well as factors which go against you as compared to others.
47 The Crown submitted that a sentence in the range of three to four years head sentence with a non-parole period of two to three years was appropriate in your case. Your counsel submitted that a sentence which enabled you to serve an immediate term of less than 12 months imprisonment was appropriate.
48 Having considered all of the matters relevant to your case, including current sentencing practice, I am of the view that your counsel’s submission cannot be sustained in light of the seriousness of your offending, notwithstanding mitigating factors. The Crown range is appropriate, although to the lower end of that submitted in my view. In a bid to encourage you to continue on a path of rehabilitation, upon your release I have determined that I will impose a non-parole period which is slightly less than that contended for by the Crown.
49 Would you please stand up Mr Gasparis.
Ancillary orders
50 First of all I make an order for retention of the forensic sample previously obtained from you. I make the order because of the seriousness of your offending, because it is not opposed by you and because it is in the public interest to make the order.
51 Further, I make the Disposal and Forfeiture Orders which are sought by the Crown and not opposed by you.
52 I make a Compensation Order in the sum of $18,064.66 as set out in the orders provided by the Crown – again, this is not opposed by you.
53 In relation to Charge 1, you are convicted and sentenced to three years’ imprisonment.
54 In relation to Charge 2, you are convicted and sentenced to seven months’ imprisonment.
55 I direct that two months of the sentence on Charge 2 be served cumulatively with the sentence on Charge 1, producing a total effective sentence of three years, two months. You are to serve 22 months before becoming eligible for parole.
56 In determining your sentence I have factored in the days spent in custody in the cells in relation to the subsequent matters, but in relation to the matters before me there is no pre-sentence detention.
57 If not for your pleas of guilty I would have sentenced you to four years, with a non-parole period of two years eight months. Would you take a seat for a moment please Mr Gasparis.
58 Is there anything arising from that?
59 MS CLANCY: No Your Honour.
60 HER HONOUR: Thank you, if you could remove Mr Gasparis, thank you. We will now adjourn the court.
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