Director of Public Prosecutions v Gill

[2021] VCC 1883

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-01795

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY GILL

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JUDGE:	HIS HONOUR JUDGE HOLDING
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2021
DATE OF SENTENCE:	22 November 2021
CASE MAY BE CITED AS:	DPP v Gill
MEDIUM NEUTRAL CITATION:	[2021] VCC 1883

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence.

Catchwords:             Plea of guilty following sentence indication of no immediate imprisonment – cultivation of a commercial quantity of a narcotic plant – no prior criminal record - twelve plants – personal use – Covid-19 circumstances taken into account - no evidence of commerciality – rehabilitation – community correction order – fine. 

Legislation Cited:     Drugs, Poisons and Controlled Substances Act1981 (Vic); Criminal Procedure Act2009 (Vic); Sentencing Act1991 (Vic); Confiscation Act 1997 (Vic); Firearms Act 1996 (Vic).

Cases Cited:            Worboyes v The Queen [2021] VSCA 169.

Sentence: Convicted and sentenced to a Community Correction Order of 14 months duration, and a fine of $4,000 with a stay of three months.  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Teo	Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Mr J. Barreiro	Michael Brugman Barristers & Solicitors

HIS HONOUR: 

1Bradley James Gill, you have pleaded guilty to the following offence: 

·     Cultivate a narcotic plant, being cannabis, in a quantity that was not less than the commercial quantity applicable to that narcotic plant, contrary to s 72A of the Drugs, Poisons and Controlled Substances Act1981 (Vic).

2That offence carries a maximum penalty of 25 years imprisonment. The circumstances of your offending are outlined in a prosecution opening that is not in dispute and that was exhibited on your plea.[1] I act upon the facts as outlined in the opening, which were not disputed by you. I will briefly summarise those circumstances.

[1] Exhibit A on the Plea.

3On the afternoon of 17 March 2020, police attended at your residence, being 46 Waitara-Grosvenor Lane.  At the time, you leased those premises and you were living there with your cousin, Brett Gill. Your cousin answered the front door to the police, you were contacted by telephone, and shortly thereafter, attended at the premises. The police executed a search warrant issued under the Drugs, Poisons and Controlled Substances Act1981 (Vic). They found twelve large cannabis plants growing in the backyard of the residence that measured between 1.5 and 2.5 metres tall. Inside the house, police located stalks of dry green vegetable matter and they also found stalks of drying green vegetable matter in the garage and in the living room. In your bedroom, they located two black ziplock bags containing cannabis seeds and dried green vegetable matter inside a brown paper bag.

4A botanist subsequently attended at the premises and it was determined that the twelve cannabis plants weighed 131.05 kilograms. The other amounts of cannabis found weighed about 630.9 grams with a further mixture of cannabis and unidentified plant material weighing 568.8 grams. An inspection of your mobile telephone revealed a browser history that showed you had been accessing internet sites with information about how to grow and tend to cannabis.  There was also a video on your phone that showed you watering small cannabis plants and then another video that showed you tending to plants when they were more mature.

5You were co-operative with police when you were interviewed in relation to the cannabis that had been found. You explained to the police that you had lived in the residence for over four and a half years with your cousin Brett.  You grew the plants for your personal use. You had planted them the previous October and you fertilised them with a common commercially-obtained fertiliser.  You told the police that you had not expected the plants to grow that big and that, because they had grown that big, you anticipated that they would supply you with your personal needs for two or three years. 

6You explained that you and your cousin smoke cannabis, usually daily, with more being consumed on the weekends.  You said your motivation for growing the plants was so that you did not have to look around and buy cannabis from drug dealers.  You explained that you had installed stakes and wire mesh on the bottom of the plants to stop them falling over.  In relation to the branches that were found in the bedroom, you explained that you had chopped them off the plants about two or three weeks previously so that you could smoke the produce. You told the cousin that the plants were your responsibility.

7Your counsel has submitted that your personal circumstances are unremarkable. You are 48 years old and you were born in Colac, and until recently, you have lived in south-west Victoria all your life. You have two younger siblings, a brother and sister, with whom you stay in touch, and you are close to your mother who still lives in Colac. Your father has passed away. 

8You have a solid work history. After finishing school, you worked in construction and concreting as a pump operator.  You have never been out of work, other than for very short periods.  You have smoked cannabis regularly for much of your adult life, having done so mainly by possessing small quantities of cannabis and, despite this addiction, you have managed to maintain responsible employment.  You are an avid gardener, and when the police located the cannabis plants in your back yard, there was also a healthy vegetable patch growing alongside the plants. 

9You have no prior convictions of any sort and it is not in dispute that you are a person of good character.  Since the police located these plants, and with the appreciation of the seriousness of your charges, you have made some significant changes in your life. You have moved to Temora, a small town in southern New South Wales, and you have obtained employment as a plant operator with the Temora Shire Council.  You have a new partner and I have been told by your counsel that you have not used cannabis for the last 20 months, that is, since the police search of your Norlane premises back in March 2020.

10The procedural history of this matter involved you awaiting trial of the charges in the Geelong circuit of the County Court. On 29 October 2021, the prosecution consented to you applying before me for a sentence indication hearing. Such a hearing is conducted pursuant to s 207 of the Criminal Procedure Act2009 (Vic) and allows the court to indicate, if you pleaded guilty to the charge, whether the court would be likely to impose upon you a sentence of imprisonment that commences immediately.

11At the sentence indication hearing, there were quite detailed submissions as to the operation of s 5(2H) of the Sentencing Act1991 (Vic). The effect of that section is that the charge of cultivation of a commercial quantity is a category 2 offence under the Sentencing Act1991 (Vic). That categorisation of the charge requires the imposition of a sentence of imprisonment which would be immediately served, unless there are substantial and compelling circumstances that are exceptional and rare and that justify not imposing such a sentence.

12On 29 October 2021, I gave a sentence indication that there were such substantial and compelling circumstances that were exceptional and rare, and did justify my indicating that, should you plead guilty, the court would not be likely to impose a sentence of imprisonment that commenced immediately.  Briefly stated, those circumstances were a combination of matters.  First, the offence of cultivating a commercial quantity of cannabis is almost in all situations a commercial enterprise. 

13A commercial quantity of cannabis is defined in the Drugs, Poisons and Controlled Substances Act1981 (Vic) as being either not less than 25 kilograms of cannabis, or alternatively not less than 100 plants. The weight of the cannabis was significantly more than 25 kilograms; however, I accept that when you originally planted the cannabis, you did not anticipate how much the plants would ultimately weigh. You had grown the plants for your own use in a normal, suburban backyard, and the plants had grown very well due to an unusually warm summer that was conducive to their maturation.

14The more typical scenario in charges of cultivating a commercial quantity of cannabis is the establishment and operation of a secretive and sophisticated hydroponic setup. At the very least, this charge usually involves criminal offending conducted for financial gain. The prosecution conceded that there was a complete absence of any of the indicia associated with the commercial trading of cannabis. 

15One only has to examine the provisions of the Drugs, Poisons and Controlled Substances Act1981 (Vic) to see the significant emphasis placed upon commerciality as an indicator of the seriousness of the offending. For example, when a person is charged with cultivating cannabis simpliciter,[2] where it is not alleged that a commercial quantity is involved, if the court is satisfied that the cultivation is not in any way related to trafficking, the penalty is reduced from 15 years' imprisonment to a maximum of one year's imprisonment. In other words, the provisions of the Act relating to the cultivation of cannabis indicate strongly that the policy behind more severe punishment for these offences is very much related to the court's assessment of the commerciality of the enterprise. 

[2]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 72B.

16I am satisfied, on the balance of probabilities, that this cannabis was for your own personal use. I also accept your counsel's submission that the weight of the plants was determined as a fresh quantity, where one can see from the photos the plants' very thick stems and branches, that would account for a large percentage of the weight.  Such parts of the plant are unlikely to be used or to have any inherent value.

17The second factor of significance was that you have pleaded guilty in the context of the continued problems associated with the global Covid-19 pandemic.  It is the case that the pandemic has made it difficult to conduct jury trials in this Court, with the result that the backlog of trials has increased significantly. In these circumstances, your plea of guilty assists in relieving that backlog and the strain on the justice system, and warrants a ‘palpable amelioration of sentence'.[3] It is also not in dispute that periods of imprisonment during the pandemic are more harsh than a period of imprisonment in normal circumstances. Although this might have been regarded as a strong Crown case, given the weight of the cannabis, there was still in my view a possible defence relating to your intention in cultivating the plants. Your plea of guilty does warrant a significant discount. At the sentence indication hearing, the prosecutor pointed to the fact that s 5(2HC)(c)(ii) of the Sentencing Act 1991 (Vic) precluded me from taking into account 'an early guilty plea' in determining whether there were substantial and compelling reasons that had been made out; however, in my view the Court of Appeal has indicated that a plea during the pandemic warrants special mitigation apart from whether or not it is regarded as an early plea.

[3]Worboyes v The Queen [2021] VSCA 169.

18The third factor was your absence of criminal conduct either before or subsequent to this offending. Although s 5(2HC)(c) prevents me considering circumstances such as your prospects of rehabilitation or your previous good character in determining whether there are exceptional, compelling circumstances, I am entitled to have regard to the absence of previous convictions. I determined at the sentence indication hearing that the circumstances, in combination, were sufficient to overcome the very high hurdle constituted by s 5(2H).

19Having given that previous sentence indication, the fact that you have now pleaded guilty prevents me from imposing a sentence of imprisonment that would commence immediately. In any event, taking into account all of the relevant circumstances, I am of the view that such a sentence would not be appropriate in this case.  Having made that determination, I also have regard to the subsequent letters attesting to your good character, which state that you have learned the error of your ways and reflected on that error, and will not reoffend. 

20My view has, to some extent, been fortified by a pre-sentence report I ordered, to assess your suitability for a Community Correction Order. That assessment states you are willing to comply with such an order and confirms that you regret this offending and that you appreciate the error you made in growing these plants. It states that you are currently leading a prosocial lifestyle and have remained abstinent from using cannabis. You are assessed as being a low risk of reoffending and that you require 'minimal intervention'. Ultimately, you were found by the Office of Corrections as not being suitable for community correction for purely practical reasons: you now live in New South Wales, and the report states that a work condition that I considered imposing as a punitive aspect of the sentence cannot be moved to an interstate authority.

21Section 5(2) of the Sentencing Act 1991 (Vic) provides the purposes for which a sentence may be imposed. One of those purposes is to manifest the denunciation by the court of the type of conduct in which the offender engaged. Another is to punish the offender to an extent and in a manner that is just in all the circumstances of the offence. I expressed my concern during the plea hearing that, despite your intention to use this cannabis for personal use, the fact that such a large and valuable quantity of cannabis was growing in a normal, suburban back yard, was of concern in terms of the risks involved in promoting criminal endeavours to steal the drugs and have it distributed into the community. It is necessary to denounce your conduct in committing this offence and have some regard to the need for general deterrence. I accept that specific deterrence is of less significance, given the assessment that you have ceased your relationship with cannabis.

22Having considered further submissions by both the prosecutor and defence today, I have been persuaded that, despite Corrections assessing you as being inappropriate for a correction order, a large part of that assessment is based on the fact that they cannot transfer unpaid community work interstate.  I can see no practical reason why they should not be able to still monitor you remotely, so to speak, particularly as that has been occurring over the last period during the Covid pandemic. The benefit of imposing a community correction order upon you is that it places an obligation that you maintain the abstinent lifestyle that you have been leading since this offence was detected. 

23I have been persuaded that, instead of being able to impose community work, I can alternatively impose a punitive aspect of the sentence by convicting and fining you. I should indicate that there has been some discussion as to one of the core conditions of the community correction order being that you must seek permission to reside interstate. The learned prosecutor has submitted to me that it would be likely that Corrections would take a sensible and pragmatic view. Given that when you were assessed you were living interstate, and that is your current plan, Corrections  would be likely  upon you reporting (remotely within the two days of the order being imposed) , grant you permission, on an ongoing basis, to remain residing in Temora. Hopefully this will enable you to  maintain  your current employment. There was also some discussion about what might be an appropriate condition to impose on the community correction order. I am going to impose a condition, under Section  48D(3)(a), that you abide by assessment and treatment including testing for drug abuse and dependency. It will be a matter for the Office of Corrections as to how they administer that condition. It may be that they will be satisfied that you have remained  abstinent from using cannabis  by your communication with them online, or perhaps every few months by communication in person, depending on what Corrections decide is appropriate. It may be that they will require you to perform a urine analysis from time to time. That will be a matter for Corrections. I intend to make the period of the community correction order 14 months. 

24The other standard conditions or core conditions will apply, and it is important that you understand those. There will be arrangements made at the conclusion of these remarks for you to be provided with a copy of the Corrections Order and for you  to indicate your consent to being placed upon such an order and  that you understand these conditions. It should be said that a core condition of the community correction order is that you be of good behaviour and that you not reoffend.  That is the obligation upon you, to remain abstinent for the period of the order. I also intend to convict and fine you an amount of $4,000. You  can reach an agreement with the court as to how you might be able to go about paying that amount by instalments, or to seek a stay in relation to that payment so that you can work out your financial affairs.  I take into account that it may be the case that you are dismissed from your employment, but I have been persuaded by your defence counsel that you are a man of resources who has been out of work for a little period of time.  It may take you quite a period of time to pay off the $4,000; nevertheless, I regard it as a necessary punitive aspect of the sentence.

25Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I indicate that had you not pleaded guilty to the charge, I would have sentenced you to a period of 12 months imprisonment with a period of six months to be served before being eligible for parole. That in itself, would be an unusually lenient sentence for cultivating a commercial quantity of Cannabis. However, there is some artificiality in me indicating what sentence would be imposed, in circumstances where you pleaded not guilty but I was satisfied that the cannabis was grown for your own personal use.

26I further order, pursuant to s 78(1) of the Confiscation Act 1997 (Vic), disposal of the six items of cannabis in accordance with the disposal order dated 15 October 2021, lodged with the court. You have also been found guilty of an indictable offence that has the effect that you become a prohibited person under the Firearms Act 1996 (Vic), and I order – and I understand this is by consent – pursuant to s 151 of that Act, the forfeiture of 28 shotgun cartridges.

27Are there any other orders that I need to make?  Mr Barreiro, do you seek a stay in relation to the $4,000 initially or is it a matter where he will negotiate that with the Registrar?  I mean, if you wish, I can grant an initial stay of three months and he can make appropriate arrangements.

28MR BARREIRO: I think that is appropriate, Your Honour. A bit of time for Mr Gill to get in touch with the people he needs to, to sort out an appropriate arrangement.

29HIS HONOUR: Yes. I will order in relation to the conviction and fine that there be a stay on the operation of that order, of three months.

30MR BARREIRO:  May it please the court.

31HIS HONOUR: I will adjourn the court now. Thank you very much.

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