Director of Public Prosecutions v Gusman
[2016] VCC 1038
•26 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01241
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARLIE ROBERT GUSMAN |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 17 June 2016 | |
DATE OF SENTENCE: | 26 July 2016 | |
CASE MAY BE CITED AS: | DPP v Gusman | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1038 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentence.
Catchwords: Cultivation of Cannabis L at two separate addresses.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic) – Crimes Act 1958 (Vic) – Sentencing Act 1991 (Vic).
Cases Cited: Boulton v The Queen [2014] VSCA 342.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Y.Hardjadibrata | OPP |
| For the Accused | J Westmore | Galbally & O’Bryan |
HIS HONOUR:
1 Charlie Robert Gusman, you have pleaded guilty to one charge of cultivating a narcotic plant, namely Cannabis L, at your home in Williamstown and at premises in Sydenham which you jointly owned with one Romano Falzon.
2 The circumstances of your offending are as follows.
3 In early 2013, you and Falzon jointly purchased the property known as 8 Bryson Court, Sydenham. On 17 December 2013, police entered and searched the house at that property pursuant to a search warrant.
4 The property had been under intermittent surveillance by police from early September that year. You were observed attending at the address and motor vehicles registered in your name were observed at the premises on other occasions.
5 In the house, police discovered a sophisticated hydroponic cultivation system. Police found the following items at the property:
·Ten immature cannabis plants, weighing 1.76 kilograms;
·Eight harvested cannabis plant stumps, weighing 657.9 grams;
·An electricity bypass;
·A number of light shrouds, light globes, 19 electrical transformers, five power boards, charcoal filters and a feed program chart setting out a timetable for nutrients to be fed to cannabis plants;
·Two plastic bags containing a mixture of dried cannabis and unidentified plant material weighing a total of 4.1 grams;
·A zip-lock bag containing dried cannabis weighing 3.3 grams.
6 You were arrested on that date and agreed to participate in a record of interview with police. In the course of that interview, you made admissions that you had been involved in growing cannabis at the Sydenham premises from about September or October that year. You said you had grown cannabis for your own personal use and also to give to people in exchange for favours such as the fixing of your car.
7 Police also searched your Williamstown home pursuant to a search warrant on the same date. There, police located or found:
· A room within the garage at the premises that appears to have been purpose built for the cultivation of cannabis;
· A sophisticated hydroponic cultivation system in that room;
· Six cannabis plants weighing 35.3 grams;
· A clear plastic bag containing 117 grams of dried cannabis;
· A further container of dried cannabis mixed with other material weighing 4.9 grams;
· Six snap lock bags containing 151.6 grams of dried cannabis;
· A plastic bag containing 8.2 grams of cannabis.
Background
8 By way of background, you are currently aged 55. At the time of your arrest, you were aged 53.
9 You were raised in Melbourne and educated up to Year 10. I do not consider that there is anything concerning your upbringing that has significant relevance to your sentence.
10 You were in a de facto relationship and have one child from it. You have been separated since about 2006 and have not seen your child for some years.
11 Since leaving school you have worked at times in unskilled labouring positions. You were unemployed at the time of your arrest and have not worked since being released on bail. Nevertheless you were apparently able to invest some $55,000 to purchase, jointly with Mr Falzon, the premises in Sydenham in late 2012 with the assistance of a joint bank loan.
12 A report from Mr Patrick Newton, psychologist, dated 17 June 2016 was tendered on your behalf. He saw you on one occasion in June of this year and reported that you had suffered from depression since your early years.
13 According to the history taken by him from you, by 2006 your symptoms of depression had become too severe for you to hold down a job. You were prescribed anti-depressant medication by your general practitioner but chose not to take it.
14 In 2010 you briefly consulted a psychologist but did not persist with such treatment.
15 You reported to Mr Newton a long history of problematic drug and alcohol abuse.
16 Since the late 1980s you have been a relatively heavy user of cannabis. You reported financial problems as a consequence of your drug use. That, I should add, makes your ability to invest in the Sydenham property even more difficult to understand.
17 You have apparently received no treatment for your drug use other than, briefly, treatment during and relating to conditions of Court Orders which you only attended on a handful of occasions. Not surprisingly, you derived little benefit from such limited treatment.
Prior convictions
18 You do have relevant prior convictions.
· In October 1990, you were convicted of possession of cannabis and of cultivating cannabis; for those offences you were fined.
· In January 1992, you were convicted of possession of cannabis and fined again.
· In May 1992, you were convicted of possession and use of a drug of dependence and fined. On the same date you were convicted of possession of a drug of dependence and sentenced to four months’ imprisonment, wholly suspended. Your counsel informed me that the drug of dependence in those cases was amphetamine.
· In September 1995, you were convicted of recklessly causing serious injury and sentenced to six months’ imprisonment, again, wholly suspended.
· In September 2007, you were convicted of breaching an intervention order and making a threat to kill, for which you were sentenced to an aggregate of three days’ imprisonment.
· In February 2010, you were convicted of possessing cannabis, possessing a drug of dependence and dealing with property suspected of being the proceeds of crime and sentenced to a community-based order for 12 months. Conditions of this Community Based Order included that you perform 50 hours of unpaid community work, undergo assessment and treatment for alcohol and drug addiction, and submit to medical, psychological and psychiatric assessment and treatment. Notwithstanding Mr Newton’s comments that you only attended treatment relating to drug use on a handful of occasions, you do not appear to have been charged with any breach of that Community Based Order.
· I should say on the same date, in February 2010, you were convicted of cultivation of cannabis and sentenced to three months’ imprisonment, again, wholly suspended.
Mitigating factors
19 Your counsel submitted to me that there are a number of factors which go to mitigation of your sentence.
20 In March 2014 you made a written offer to plead guilty to this charge in relation to both of the Sydenham and Williamstown properties. At the commencement of the trial, you pleaded guilty to that charge in the presence of the jury panel. Accordingly it can be considered as an early plea and I consider that you are entitled to a discount of your sentence by reason of it.
21 Further, there has been some two and a half years from the date of your offending behaviour and finalisation of the matter. That delay was not your fault. I accept that the prospect of imprisonment and other penalties has weighed heavily upon you over that period. In the interim you have not been convicted or charged with any additional offence. Nevertheless I note from a history obtained from you by Mr Newton that you have, whilst on bail awaiting your trial, and presumably during and since that trial, continued to smoke cannabis on a regular basis. It could not be said that you have not committed any offences over the delay period.
22 Your counsel submitted that the gravity of your offence was towards the lower end of cultivation simpliciter. Whilst I accept that cultivation of a non-commercial quantity is a lesser offence than cultivation of a large commercial quantity, a commercial quantity, or a traffickable quantity as those terms are defined in the Drugs, Poisons and Controlled Substances Act 1981 (Vic), I am not of the view that your offending is at the lower end of cultivation simpliciter. It appears to me that 14 plants (not including the stumps found at Sydenham) weighing more than 2 kg would be a traffickable quantity, but for reasons not explained to me, you were not charged with cultivation of a traffickable quantity and I am not to sentence you as if you had been.
23 I do accept that the charge against you relates to cultivation only on the one date, namely 17 December 2013. However, the activity on that date cannot be looked at in isolation. The evidence was clear that none of the plants in question had been planted on that date. All had been planted on various dates beforehand.
24 Your counsel has not directly submitted that your prospects of rehabilitation are good – however, he submits those prospects are best served by a sentence by way of a community corrections order with suitable conditions. Mr Newton noted that you are continuing to consume “very large amounts of cannabis” at the time of his consultation with you in June of this year. His diagnosis is one of Severe Cannabis Use Disorder and a Persistent Depressive Disorder which is currently mild. Although you continue to consume cannabis in an attempt to self-medicate your depression, Mr Newton is of the view that, rather than assist, your consumption of cannabis has actually contributed to it.
25 Mr Newton is of the view that your depression will best be treated with anti-depressant medication over an extended period of time.
26 I was informed that there are confiscation proceedings afoot concerning the Sydenham property. You have made application for your interest to be excluded from any such confiscation order. Your counsel submitted that, at its highest, there is a possibility of your interest being confiscated as a consequence of your conviction. I take that into account.
27 Finally, it was submitted that there should be some parity between your sentence and the sentence imposed upon one Benjamin Spalding who was charged and convicted for cultivation of cannabis over a three month period and whose offending was brought to light as a consequence of the same police investigation as revealed your own offending. He was convicted of cultivation of a narcotic plant and theft of electricity for which he was sentenced on an aggregate basis to a 12 month community corrections order. I note that he had no prior convictions. There were few details provided by way of any sentencing remarks and I consider his sentence is of little assistance to me regarding your sentence.
Sentencing Principles
28 I have taken into account the matters set out in s.5 of the Sentencing Act 1991 (Vic), especially sub-ss. (1), (2) and (4). With regard to your sentence, I consider that the significant factors to be taken into account are specific and general deterrence and the need to assist you in rehabilitation especially by way of treatment for what appears to be an addiction of some significance.
29 I take into account s.72B of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) which prescribes the maximum penalty for this offence set by Parliament.
30 The section provides that where the trial judge is satisfied, on the balance of probabilities, that the offence is not committed by the person for any purpose related to trafficking, the maximum penalty is imprisonment for one year or a fine of up to 20 penalty units, or both. Otherwise, the maximum is 15 years imprisonment. Counsel were in agreement that the onus of establishing that matter is on the person convicted. That is, the onus was on you to satisfy me, on the balance of probabilities, that your cultivating activities were not committed for any purpose related to trafficking.
31 In your case I do not consider that you have discharged that onus. The charge relates to two separate premises; you made a significant monetary investment to purchase the Sydenham house; a purpose built room within the garage of your Williamstown house had been constructed. These factors together with the sophisticated hydroponic equipment and system at both houses point, in my opinion, to something more than mere cultivation at the two premises for your own personal use. You did not give evidence at the trial. You have not given any explanation on oath during the plea hearing as to this issue.
32 In those circumstances I am unable to be satisfied, on the balance of probabilities, that you have discharged the onus upon you – that is, of satisfying me that your offending was not committed for any purpose related to trafficking.
33 Nevertheless, I take into account that you were charged with, and acquitted by a jury of, trafficking at the Sydenham premises. The jury was not satisfied beyond reasonable doubt that you were guilty of that offence.
34 Accordingly, I will sentence you on the basis that s.72B(a) is inapplicable and that sub-s.(b) is applicable.
35 I take into account the prior convictions to which I have previously referred. It cannot be said that your offending behaviour is without precedent in your case. You have previously been convicted of the same or similar offences although I note the convictions for those offences relating to drugs occurred some considerable time ago in 1990, 1992, and 2006.
Sentence
36 There would be many in this community who would be of the view that the purposes for which I am to sentence you cannot be achieved by a sentence that does not involve a period of imprisonment. Indeed you have in the past been given wholly suspended gaol sentences and a community based order for cultivating and possessing drugs including cannabis and a further community based order for possessing cannabis.
37 It could not be said, in your case, that second and further chances have not been extended to you in the past.
38 However, I have determined, after much consideration, to extend a further opportunity to you. I accept the views of Mr Newton that you have had extremely limited professional attention with respect to your cannabis addiction and your depressive disorder. It is my view that, without extended treatment for those conditions, you have little prospect of resolving or even reducing these issues.
39I have come to the conclusion that the most appropriate sentence, taking all of the circumstances into account, is to sentence you to a three year community corrections order with a number of conditions attached to it.
40I am in possession of a report from Corrections Victoria, dated 4 July 2016, indicating that you are considered suitable for a community correction order with certain conditions.
41I note that the prosecutor in his submissions regarding sentence stated to me that such a community corrections order was within the range of appropriate sentences in your case.
42However, I may only sentence you in that manner if you were to consent to such a community correction order with the conditions I consider suitable. Before I ask you whether or not you do consent to such an order, I will tell you about the conditions that I intend to impose.
43Firstly, there are a number of mandatory conditions which apply to all community correction orders. They are:
·Firstly, that you must not commit during the term of the order, that is the three year term of the order, whether in or outside Victoria, an offence punishable by imprisonment.
·Secondly, you must comply with the obligations or requirements provided by any regulations.
·Thirdly, you must report to and receive visits from the Secretary of the Department of Justice, or his or her nominee, as directed, during the period of the order.
·Fourthly, you must report to the Community Correctional Services office at 87 Synnot Street Werribee within two working days – that is, by 4.00pm on Thursday 28 July 2016, this Thursday.
·Fifthly, you must notify the Secretary of any change of address or employment within two clear working days after such a change. What that means, Mr Gusman, is that if you change your job, if you get a job, if you go back to an old job, you must notify the Secretary, in effect, Corrections Victoria. If you change the place where you are living for any reason, you must notify the Secretary by going to Corrections Victoria and advising them.
·Sixthly, you must not leave Victoria except with the permission of the Secretary. Leaving Victoria might mean simply going to Albury, Cobram or somewhere over the Murray River. If you step over the border, you have left Victoria and you would be in breach of these conditions. You must not do so except with the permission of the Secretary.
·Finally, you must comply with any direction given by the Secretary that is necessary in order to ensure that you comply with this community correction order.
44Now, in addition to those mandatory conditions, I intend to impose a number of other conditions pursuant to ss.48, 48C, 48D and 48E of the Sentencing Act 1991 (Vic) and they are as follows:
·Firstly, you must perform 200 hours of unpaid community work during the three year period of the order.
·Secondly, you must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager, including if considered necessary, assessment or treatment at a residential facility.
·Thirdly, you must undergo any mental health assessment and treatment considered necessary for you.
·Fourthly, you must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the regional manager, including if necessary, assessment and treatment at a residential facility.
·Fifthly, you must participate in programs that address factors relating to your offending behaviour.
·Finally, you are to be supervised, monitored and managed, as directed by the Secretary or his or her nominee for the period of the community corrections order.
45That last condition effectively means that when the Secretary or his nominee at Corrections Victoria wants to see you he'll direct that you attend at the relevant office and you will be obliged to attend there and effectively engage with the person as to what you have been up to and what you have not.
46I have had regard in proposing those conditions and orders to the information, matters and recommendations made in the reports from Corrections Victoria and the report from Mr Newton to which I have previously referred.
47Mr Gusman, I will give you the opportunity of discussing those conditions with your counsel should you wish to do so before I ask you whether you consent to a community corrections order in those terms being made.
48MR WESTMORE: May I approach?
49HIS HONOUR: Do you want a moment with your - do you want me to leave the Bench just for a moment.
50MR WESTMORE: I think I just need to approach my client. Yes, he consents to those conditions, Your Honour.
51HIS HONOUR: Thank you, Mr Westmore.
52Mr Gusman, you have had the opportunity of discussing those matters with your counsel. I take it that was not the first time you have considered the possibility of a community correction order being imposed. Do you consent to a community correction order with those terms and conditions as outlined by me, being made in your case?
53OFFENDER: Yes, Your Honour.
54HIS HONOUR: Thank you.
55With respect to the charge of cultivating a drug of dependence, namely Cannabis L, at Sydenham and at Williamstown on 17 December 2013, you are convicted and sentenced to a community correction order subject to the conditions that I read out a short time ago.
56In determining that sentence, I have taken into account the comments of the Court of Appeal in the matter of Boulton v The Queen [2014] VSCA 342 with regard to community correction orders. It is clear from the judgement that a community correction order is not to be considered as a light penalty only for minor offences. I quote from the judgement of the Court of Appeal: "A community correction order is not and should not be viewed as a mere slap of the wrist. It is a significant punishment, capable of having a substantial deterrent effect, both specific and general."
57Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty to this charge, I would have sentenced you to imprisonment for a term of two years with a minimum non-parole period of 12 months.
58Now, Mr Hardjadibrata, by way of ancillary orders?
59MR HARDJADIBRATA: Yes have sought a forensic sample order.
60HIS HONOUR: Yes.
61MR HARDJADIBRATA: Which I understand is by consent.
62HIS HONOUR: Have you got that there or do you think I've got it?
63MR HARDJADIBRATA: Yes I'll hand them up now.
64HIS HONOUR: Thank you. There's also a disposal order sought?
65MR HARDJADIBRATA: That's correct, Your Honour. There's just a few issues in relation to that. Your Honour may recall making a disposal order in
Mr Falzon's sentence last week66HIS HONOUR: Yes.
67MR HARDJADIBRATA: There are pending criminal proceedings against Susan Falzon which also involve the - her alleged involvement in the Sydenham property and following that there are confiscation proceedings in respect of the Sydenham property and other properties. So in view of those matters,
Your Honour, if I could give the same undertaking that I gave in relation to
Mr Falzon's disposal order.68That is, with this disposal order in relation to Mr Gusman there are various documents in his name and I suspect that they're the same document that were seized from Kendall Street. In any event with those documents, I'll see if - I'll ensure that the police provide Mr Gusman with those documents and one other matter is three sets of keys here. I understand Mr Gusman wants them returned and again I'll make a note that if they are of no relevance that they are to be - in any of the proceedings, they are to be returned. But I don't want a situation where, as it was with, I think, the keys to Melbourne Road, they were returned to Mr Gusman and as a result of that we didn't have a set of keys to compare with the keys that were seized from Romano Falzon.
69But in any event none of this property will be - I'll ensure that the police do not dispose any of the property set out in the disposal order, be disposed of until all the criminal - all the proceedings, the criminal proceedings, against Mrs Falzon and the confiscation proceedings are concluded. So perhaps with that I - - -
70HIS HONOUR: Mr Westmore, does that sound appropriate?
71MR WESTMORE: Well it's a little difficult to respond to the disposal order in that my learned friend doesn't seem to know what the keys relate to and where the documents were found. I'm content with a copy of the documents being provided to Mr Gusman, the originals to remain with police for the moment. But in terms of the keys, I don't know where they're from. If they are the keys that were taken from Melbourne Road then my client would want them back. If there are other sets, if there are other keys they may not relate to my client at all.
72HIS HONOUR: Well my guess is they're the keys that were found at
Mr Falzon's home that were - - -73MR WESTMORE: Yes, if they're the ones that Mr Falzon - - -
74HIS HONOUR: Sorry, Mr and Mrs Falzon's home which were to your client's premises in Williamstown.
75MR WESTMORE: Well we wouldn't be seeking those back because they weren't our keys.
76HIS HONOUR: Well what other keys could they be? I mean they're not his own he said, obviously, because he had his own set of keys and he's been living there for the last two and a half years.
77MR WESTMORE: The only other keys that they could be would be keys found at his house but perhaps if Your Honour just allows me to spend time with
him - - -78HIS HONOUR: Yes. He'll presumably have figured out the last two and half years if the police took any other keys, wouldn't he?
79MR WESTMORE: Yes. If I could just approach?
80HIS HONOUR: Yes, by all means approach your client. Of this, do I need three sets of a disposal orders?
81MR HARDJADIBRATA: Yes, Your Honour, we'll hand these up.
82HIS HONOUR: I've only got the one at the moment.
83MR WESTMORE: Yes, Your Honour, that's clarified that the position - he's not missing any keys so I've got no issue with the proposal by Mr Hardjadibrata which is that, in terms of the documents, copies be provided to Mr Gusman but otherwise the matters - those items can be disposed of.
84HIS HONOUR: Yes, all right. I will make those orders accordingly. Just let me sign something here.
85Yes, I am not sure whether this has already been explained to you, Mr Gusman, but an order has been sought and consented to pursuant to s.464ZF(2) of the Crimes Act, that you undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample in accordance with Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. Notwithstanding your consent was given by your counsel, I should tell you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that?
86OFFENDER: Yes I do, Your Honour.
87HIS HONOUR: Thank you. I will make the s.464 order and I do so because of the seriousness of the circumstances of the offending and note also that the order is made by consent.
88I will also make the disposal order that was sent.
89Now there is a document relating to the community correction order that you are required to sign, Mr Gusman. I will hand that down to your counsel. You can have a look at it and perhaps then my Associate can obtain your signature.
90It is important, Mr Gusman, that you understand fully that if you were to breach any of the conditions of that community correction order, that breach is an offence in itself punishable by up to three months' imprisonment but perhaps more importantly in your case, you would be brought back here to be re-sentenced for the offence that you pleaded guilty to here. So it would be a start again and whether it came before me or any other judge of this Court, if you were to come back for re-sentencing then you might think that it is extremely unlikely that a further opportunity would be extended.
91Yes, anything else, gentlemen?
92MR HARDJADIBRATA: No, Your Honour.
93MR WESTMORE: No, Your Honour.
94HIS HONOUR: Thank you. We will adjourn temporarily.
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