Director of Public Prosecutions v Geddes

[2023] VCC 1000

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02232

DIRECTOR OF PUBLIC PROSECUTIONS

v

GLENN GEDDES

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2023
DATE OF SENTENCE:	15 June 2023
CASE MAY BE CITED AS:	DPP v Geddes
MEDIUM NEUTRAL CITATION:	[2023] VCC 1000

REASONS FOR RULING & SENTENCE

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Subject:

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. McVean	Office of Public Prosecutions
For the Accused	Ms V. Drago	Pascoe Criminal Law

HIS HONOUR: 

Ruling on applicable maximum penalty

1On the plea the central issue was whether the accused man can satisfy the court under s72B(a) of the Drugs, Poisons and Controlled Substances Act 1981 that his cultivation of cannabis was not for a purpose relating to trafficking. Trafficking is defined very widely and includes preparation for trafficking.

2The accused man is effectively required to prove a negative.  I am required to determine this matter on the balance of probabilities.  The parties were content to have the matter determined on the basis of the depositions including the record of interview without any oral evidence.

The prosecution case

3The prosecution relied on three main arguments that should lead to the conclusion that the accused man has not discharged the evidential and substantive onus on him under s72B.

4The arguments were as follows:

(1) The sheer quantity of cannabis cultivated:  The total weight of the material seized was 105.97 kilograms, which is over four times the commercial quantity of 25 kilograms.  A total of 16 cannabis plants, flowering branches, flowering stems, flowering heads and seeds were seized;

(2) The scale of the cultivation:  It involved plants growing in the backyard, and plants being dried in a shed, and three rooms within the house being used to dry the branches that had been cut from the large bushes;

(3) The length of time of the cultivation, being five months as disclosed in the record of interview.

5The prosecution submission was that when these three matters were considered the inescapable and only inference to be drawn on the balance of probabilities was that the drugs were being grown for a purpose relating to trafficking. The argument was that these matters were a barrier to the contrary conclusion asserted in the record of interview, and thus the onus was not discharged.

6The response by the accused man was that this was for 'personal use'

Consideration

7In the record of interview at Question 30 the accused man volunteers that, 'I do smoke, I smoke marijuana.  I’m actually – have anxiety, depression and it just helps me – actually helps me relax a bit.'

8This explanation is given in a matter of fact manner.  I have had the opportunity to watch the record of interview.  In considering the explanation it is important to note other material that has been submitted on the plea.  The medical report from SIA Medical Centre states that Mr Geddes is 'on medication for his ongoing depression, anxiety, hypertension...'.

9Mr Geddes' sister states in her reference dated 16 May 2023 that her brother became withdrawn after their father passed away.  She states. 'as a result, I feel he has suffered from depression for many years which I believe makes him distant from the family.'

10Dr Barth is of the opinion that Mr Geddes has 'major depressive disorder – with anxious distress – recurrent episodes of moderate severity.'  He further notes that 'Mr Geddes has a long history of psychological problems primarily due to the stress of his relationship problems, social isolation and the memories of the abuse he suffered during his younger years.'  He further notes that Mr Geddes 'uses cannabis to manage his psychological health.' There is no suggestion in the report that he doubts the credibility of the history that he has been provided by Mr Geddes.

11Thus, the assertion in the record of interview by Mr Geddes that he has depression is supported by other material before the court.

12Next, it is necessary to consider his explanation in the record of interview.  He explained that he had been growing cannabis for some years.  He grows some every two years and this gives him enough to get him through.  He dries it for about a month before he chops it up.

The weight of usable cannabis seized and Mr Geddes' statements on consumption and cultivation

13A central matter to consider in the light of the assertions by the accused man in the interview is how much cannabis he was consuming or proposed to consume.

14The botanist’s report in the depositions distinguishes between the total weight of cannabis seized, the estimated weight of leaves and flowering heads of the plant, and the air-dried weight of the leaves and flowering heads for consumption.  The botanist estimates a combined air-dried weight of between approximately 11 kilograms and 18 kilograms, but notes that as some plants were wilted at the time of weighing the air-dried weight is likely to be higher.  This estimate does not include all material covered, with approximately 7 kilograms of plant material seized not included.

15Mr Geddes states that he uses at least a quarter on an ounce (7 grams) of cannabis per day (ROI Q79), in the form of approximately 20 joints per day (ROI Q81), which would translate to at least 2.5 kilograms of cannabis consumed per year.  Mr Geddes also stated that he grows cannabis for a five or six month period every two years and the amount harvested is 'enough to see me through' (ROI Q48 – 52), and that the largest plants seized had been growing for around five months (ROI Q55).  The five to six month growth period correlates with the botanist’s estimate of 24 weeks (six months) growth.  Finally, Mr Geddes states that the size of the plants was unexpected and that he did not realise how big they would grow (ROI Question 186 – 187).

16Based on the estimated dry weight of the cannabis seized and Mr Geddes' statements on the volume of his daily cannabis consumption and that the crop was intended to supply him for two years, the volume of cannabis is not incompatible with being solely for personal use.  Additionally, Mr Geddes’ statements that he did not realise that the plants would grow so large suggests the large amount of cannabis was due to a higher than expected yield, which adds credence to the argument that the plants were intended for personal use.

17One of the photos (number 40) shows an esky full of effectively cannabis stalks and dust which he said was to be thrown out.  This is consistent with the overall appearance of the outside of the property, and within the house itself of chaos and a lack of sophistication.

There is no evidence of commercial enterprise

18Beyond the volume of cannabis seized, there is not a great deal of evidence to support the contention that Mr Geddes sold, or intended to sell or traffic the cannabis.  The photographic evidence provided in Exhibit 12 shows no sign of any equipment (plastic bags, scales, processing machinery) that would likely be involved in the sale of cannabis.  Nor is there any documentary evidence of Mr Geddes selling the cannabis tendered, such as a tick list, despite police being able to access Mr Geddes’ phone (ROI Question 86).  The usual accoutrements of trafficking are just not present.

Statements by Mr Geddes

19Throughout the record of interview, Mr Geddes repeatedly states that the cannabis is for personal use (ROI Q29, Q77, Q172, Q186).  Mr Geddes is cooperative and appears truthful with the police throughout the interview, which goes to his credibility.  Taken together, his cooperation with the police and repeated statements that the cannabis is for personal use add weight to the argument that the cannabis was indeed for personal use.

20In considering his comments in the record of interview, the prosecution is not alleging that the accused man has any prior criminal record.  This itself is is evidence of good character or lack of bad character.  There are also effectively character references from a work colleague, Mr Lenny (Exhibit 8) and from another friend, Ms Hoefer (Exhibit 9).

21The fact that Mr Geddes is a person of good character is relevant to the likelihood of him committing a criminal offence and is also a matter that may be considered in assessing the credibility of his answers in the record of interview.

22As I have indicated, I had the opportunity to watch the record of interview in my chambers.  The demeanour of Mr Geddes in the record of interview supports the credibility of his responses.  While the interviewing police officers do not challenge his answers, there is no dissembling in his responses and they have all the appearance of being frank and honest.

23He explains in the record of interview that he was growing the cannabis for personal use because 'I wouldn’t have to try and access it myself…I didn’t realise how big they are gonna grow…all there is a bit too much out there.'  ROI Q186).

24At the end of the record of interview he thanks the police officers for talking to him and states that he needs some help.  These responses are consistent with the theme of the interview wherein he states he has anxiety and depression, was using cannabis to address that and under questioning by the police he sees that he needs assistance.

The photographic evidence

25It is often said that a photograph is better than a thousand words.  The police photographs support the nature of the cultivation here and the explanation provided.  They show a house and yard in a state of chaos and disrepair.  There is no attempt to hide the plants in the backyard.  At question 173 he explains that he suffers from depression and 'it seems to help me get through the day at times and… sleep at night a bit better.'  The chaotic nature of the house and the arrangements as evidenced in the photos support a conclusion that
Mr Geddes was indeed depressed, was self-medicating with cannabis, and that the plants 'got a bit out of hand.'

26Having considered the competing arguments, I am satisfied for the reason that I have just sought to articulate, that he has discharged his onus under s72B(a) of the Drugs Act that his cultivation of cannabis was not for a purpose relating to trafficking.

Sentence

27Mr Geddes, you have pleaded guilty to one charge of cultivating cannabis. As I indicated earlier, the maximum penalty on a finding by me, with you carrying the onus, that it was for personal use, carries a maximum penalty of 12 months’ imprisonment or 40 penalty units, and I found that you fall within that category.

28You come before the Court, as indicated in your defence submissions, as a man aged 52 without any prior convictions.  I have a comprehensive submission from your counsel which includes a report from Dr Barth, a well-known forensic psychologist, indicating that you suffer from long term depression associated with relationship breakdowns and general family issues.

29You have been self–medicating over many years with cannabis.  In order, on your account which I accept, to avoid having to get into the criminal milieu to access your cannabis, you have been growing it.  It was in those circumstances that you came to the attention of police and the police raided your property in April 2022.  They found eight or nine large cannabis plants in the backyard, in plastic pots and in the garden bed.  Inside they found a number of branches hanging, drying in the rooms within the house.

30The house was – I will not use a term that I would otherwise use – but it was in a mess.  The backyard was in a mess but importantly, there was no attempt by you to hide the growing of the cannabis. It could be seen over the back fence from the next door neighbour and there was easy access along the side of the house

31The accoutrements of trafficking were not there and in the course of the record of interview, as I noted, you admitted that you were depressed, that is confirmed by the report from Dr Barth.  It is also confirmed by your GP and effectively in the record of interview the police were able to draw out from you, an admission that you needed help and that really self–medication on cannabis is not good.

32Since that time it has been a real wake up call.  You have engaged in some telephone counselling with the local Anglicare.  You have stopped using cannabis and your counsel has tendered a number of clean drug screens.  You are really in a position now where you want to move on with your life.

33Significantly, you are a person of good character.  I have taken into account the character references that have been provided.  You have reunited with one of your children.  She is now living with you and has been in court to support you.  The character references indicate that you have been a bit of a loner and withdrawn from your family.

34You say in your record of interview that you are sort of a stay at home person and notwithstanding that you obviously have a fairly compromised mental health state.  You hold down full time employment as a contractor in the plumbing industry.  You have a partner involved in that business doing plumbing and house renovations.  You have been a worthwhile and upright and contributing member of society.  You are entitled to credit for that.  I have taken into account the fact that you are of good character.  When I assessed your comments in the record of interview, I accepted your account.

35This is a case where the criminal justice system is able to put you back on the straight and narrow. That is why I have chosen a rehabilitative disposition, to put you on supervision in a community correction order. I am not proposing that you be supervised by the Office of Corrections but I am proposing that without conviction for the next 12 months you are on a community corrections order that will require you to report to them and to undertake community work.

36It will require you to undertake any mental health treatment or plans that they put you on.  They might recommend that you go back to your GP and get a mental health plan; find a psychologist and engage in some mental health treatment in order to get some self–help; or some therapy that allows you to,  rather than fall back into using cannabis when you feel depressed, move on with your life with a positive attitude. Also, some further counselling, if necessary, in relation to drug treatment – and drug screens as required in order to ensure that this stopping the use of cannabis continues.

37You have also been able to stop smoking which will no doubt be good for your health as well.

38Importantly, part of the standard conditions of the community correction order which you have signed is that you report to the Lilydale Community Corrections Centre within two business days and that they will arrange for you to get inducted into community work.  You have to tell them if you change your address, or go interstate and comply with any directions they give you.  If they say go into a program, then you have got to do that.  If you do not do that, you will breach it and they will bring you back here.  I am going to allow any hours of therapy or counselling that you undertake to be credited against the 100 hours of community work.

39For the 12 months of the community correction order you will be on effectively a good behaviour bond which means if you commit an offence carrying a term of imprisonment, that breaches the community correction order and you can be brought back here to me and be resentenced on the original charge.

40Your counsel strongly urged in the course of the plea that I place you on an adjourned undertaking with conditions.  I have taken the view that the combination of the amount of cannabis that you were growing, albeit I have accepted that it is for personal use, and your need for a supervisory rehabilitative disposition, is such that I should place you on a community correction order rather than the disposition that your counsel has urged upon me.

41I rejected that submission by her but I thank her for her comprehensive submission in any event.  I note that she has explained the terms of the community correction order to you and I thank her for doing that.

42Mr Geddes, you are 52, you have kept out of the criminal justice system for your whole life.  One of the references says you may be suffering from the impact of being an adoptee early in your life.  That is the lot you have been given.  You have been able to address that through self–medication but clearly cannabis is not a good drug to be self–medicating on and there are other drugs available and other treatments available and that is what you have got to get into.  I wish you all the best.

43I thank the prosecutor for her assistance in her submissions.  I thank your counsel for her submissions.  You will be given a copy of this and you are required to attend at the Lilydale Community Correction Centre within two business days.

44The prosecution have sought a disposal order for the cannabis plants and the dried cannabis they seized from you at that property that you are living at and so I have made that order.  Are there any other matters I need to address, Ms McVean?

45MS McVEAN:  Nothing further, Your Honour.

46HIS HONOUR:  All right.  I want to thank you as I said, and I thank you, Ms Drago.

47MS DRAGO:  Thank you, Your Honour.

48HIS HONOUR:  And hand a copy of this to the – I will hand you, Ms McVean, the disposal order, and a copy of my signed community correction order.

49MS McVEAN:  As Your Honour pleases.

50HIS HONOUR:  Adjourn the court sine die.

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