Director of Public Prosecutions v Haddad

[2019] VCC 1280

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-19-00466

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL EDWARD HADDAD

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	LaTrobe Valley
DATE OF HEARING:	14 August 2019
DATE OF SENTENCE:	14 August 2019
CASE MAY BE CITED AS:	DPP v HADDAD
MEDIUM NEUTRAL CITATION:	[2019] VCC 1280

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr A. Purcell	Victoria Legal Aid

HIS HONOUR:

1Daniel Edward Haddad, you have pleaded guilty to one charge of cultivation of a narcotic plant being cannabis, in not less than a commercial quantity between 6 August 2018 and 30 August 2018.  You also pleaded guilty to four summary matters and in respect of each of those, I simply sentence you to be imprisoned for a period of one month on each to be served concurrently.

2The maximum penalty for a commercial quantity of cannabis in this situation is 25 years.  You are now 34 years of age.  You pleaded guilty at the earliest reasonable opportunity and must get the benefit of that.  I accept that you had expressed remorse to the psychologist Ms Lechner and obviously you must get the utilitarian benefit of that plea of guilty.  You have no prior convictions of any significance in this matter and you do have, it would appear at last, strong family support.

3The circumstances of the offending are that you have a co-accused, a
Mr Hughes.  He apparently has a committal starting later this week I think and I will not make any findings obviously in relation to him.  I am not aware of what his defence is, but I can suspect it is going to be that this was all yours.  But in any event, Mr Hughes bought a property in Icy Creek.  Prior to buying that property by about a week or so, he had bought a $40,000 generator.  He had paid cash for it.  In October of 2017, the police started investigating that
Icy Creek property.  A flyover indicated that there was a large recently excavated area and there were four newly erected large tin sheds.  There was a large tin fence in front of the new sheds.  Clearly whatever Mr Hughes was doing at that stage was preparation for what you are subsequently charged with.

4In June of 2018, a telephone registered to your name was used to make enquiries about the generator that had been purchased by Mr Hughes.  So clearly in some way, shape or form, you were involved at that stage.  The evidence specifically against you is that on 6 August, the police conducted surveillance at the Icy Creek property and saw you walking from inside the property into the shed.  Within ten minutes of you walking into the shed, a large area of ground surrounding the shed started to heat up, which indicated a significant heat source.

5On 7 August 2018, investigators conducted further surveillance. Smoke was emanating from the ground. They observed you again walk out of the property which I assume to be the residence and collect a shovel, placing soil over the area from where the smoke was emanating.  On 30 August, the police executed a search warrant.  You were found in the residential premises.  I am unaware of what other surveillance may have occurred.  None was brought to my attention by the Crown.  That is understandable where there will be a significant trial pending and no other surveillance material was brought to my attention by your counsel.

6When police attended there were four sheds observed on the property.  One was locked.  Entry was forced and a large steel plate covered a manhole.  That manhole led to a series of underground storage containers consisting of the main hallway, with doors to further rooms.  Those containers were being used as sophisticated cannabis growing rooms.  A total of twenty-five 20 foot storage containers were located underground, connected by a main hallway, with a manhole.

7In those circumstances, two of the rooms that police went into contained large industrial generators which were used to power the underground growing rooms.  Located above ground, connected to the two generators, was a poly water tank with diesel fuel.  Plants were found and what can only be described as a very elaborate and sophisticated setup. There were 453 plants, weighing 399 kilograms and there was as well as 53 kilograms of drying cannabis.  In other words, the commercial quantity here is something in excess of, on my calculation, around about 450 kilograms, obviously for the purpose of the offence whether it is wet or dry, it makes no difference.

8You were clearly living there. In your bedroom, police located the sawn-off barrel of a firearm, the butt of a firearm, a taser and $300 in cash.  They are the summary matters that I have already sentenced you for.  They also found a silver Commodore parked in the driveway.  There was a leather wallet in it in your name and there was a small fuel trailer attached to that silver Commodore.

9You were arrested, and as is your right, maintained silence in that record of interview.  Mr Hughes was arrested on 30 August 2018 at his home in Narre Warren.  He was taken to Dandenong police station where he also maintained his right to silence.  The sheer weight of the cannabis found has to place at the higher - well highest probably, end of not less than a commercial quantity.  I will be careful not to sentence you for a large commercial quantity which of course carries a different and much larger potential maximum penalty.

10The only evidence before me is that obviously Mr Hughes purchased the property and Mr Hughes purchased one of the generators.  The only person present during that 24 days and that police conducted surveillance was you.  It is conceded by your counsel that you are not to be sentenced as a crop sitter and I could simply not do that.  Clearly I do not sentence you on the basis that you financed all this.  There must have been hundreds and thousands of dollars involved in this.  There is no way you could have afforded that, but you are clearly higher than a crop sitter and on the material before me, you were the person who was actually growing the plants and operating from the - now that I have seen the photographs, quite sophisticated machinery.

11The circumstances of this of having 25 shipping containers buried underground with tunnels and all sorts of things is a very very significant business enterprise indeed.  I do not sentence you on the basis of any involvement longer than the time that you were there, could not do that, but clearly, it must have been obvious to you the sheer size of this enterprise and the circumstances of it, whether it was as a joint enterprise or simply acting as an employee, I will never know. You were very much involved and unfortunately for you, have to pay the consequences of that.

12I have looked at the sentencing comparative sentences from 2016 to 2018 and a couple have been mentioned by your counsel.  I must concede that over the years that struck me as being somewhat low, but there is no Court of Appeal authority that says they have to be increased, so I do take into account sentencing practices in that sense.

13You clearly get a significant benefit from your plea of guilty. The circumstances are that a report was filed on your behalf from Ms Carla Lechner and I have taken that into account. Your counsel has provided very helpful sentencing submissions. There is also a reference from your father. Before I do those sentencing submissions, if I have not already done so, pursuant to s.464Z of the Crimes Act, you are to provide a saliva sample for DNA purposes.  That order having been made, you must provide a sample and should you refuse, the police may use reasonable force to take it from you.

14In these circumstances, there is no real explanation before me as to how you became to be involved in all this.  Your counsel points out that you are now 34 years of age.  Your parents divorced when you were about seven years of age.  You had a strained relationship with your father.  You were diagnosed with ADHD in Year 8 and were briefly prescribed Ritalin.  You got to about halfway through Year 12 when you left school, after some dispute apparently whether you were to do VCAL or VCE. 

15On leaving school you worked with your mother, assisting her in a before and after school program.  At the age of 20 you moved to your father's home and you had employment with DHS as it would have been at that stage as a disability development support officer.  That involved direct client care.  I accept that that was a pretty challenging task for one of your years and there were multiple violent incidents.

16It is clear from Ms Lechner's report that you were left with some symptoms at least of a post-traumatic stress disorder and really did not want to go to work at all.  You became hypervigilant and were told to use the Employment Assistant Program.  It is not put that that enlivens the principles in Verdins.  You have one child who you have now not seen for about three years as I understand it.  That came about because of the lifestyle that you had been leading.

17You have now regained contact with the mother of that child and you hope that in the future you will be able to regain contact with the child and have a proper relationship.  Just towards the end of 2015, was when you started to use methamphetamine as I understand it or certainly at least amphetamine.  You went and lived in Paynesville, after that you went back to live with your mother.

18You ceased the use of amphetamine in mid-2016, but apparently at that stage, you increased your use of cannabis and your use of alcohol.  I accept that around about 2015, 2016, you were obviously in a state of emotional disrepair.  You are depressed and she points that out, though I note that at the time of her interview, you were not on any prescription medication.

19Since you have been in custody, you have done a number of courses which your counsel has pointed out to me.  These certificates have been tendered and it is very much to your credit that you have done so.  I take into account that you have done that, as I understand it at Fulham, and to be able to do so many courses when on remand, as opposed to being a sentenced prisoner goes to your credit.  It is indicated you have re-connected with your family to a large extent who are going to endeavour to support you upon your ultimate release. 

20Ms Lechner says that with all those things, your prospects of rehabilitation should be reasonable, as has your counsel has put and I accept that.  She says that your desire to get back on your feet in monetary terms, and to your credit admitted this was done for money.  That your judgment and decision making skills were undermined by a level of depression.  That is all very well in a one-off offence, but this was a calculated involvement in a obviously serious criminal enterprise from somebody who has been around, it is not as if you are a child and you must have known the potential consequences of all this.

21The risk of you reoffending, I really have no idea.  It will depend totally I think on your prospects of rehabilitation which should be reasonable.  I take all those matters into account.  In these circumstances, you are not sentenced as a crop sitter, you are sentenced as a person with a greater involvement than that, in what is a serious crime, but with matters of mitigation which give hope for the future.

22Accordingly, on the charge of cultivation not less than a commercial quantity, you are sentenced to be imprisoned for a period of four and a half years.  Because of your prospects for rehabilitation, I have given you a longer opportunity for parole than might otherwise be the case.  So the minimum term will be three years.  So you understand the benefit of your having pleaded guilty and save the community the cost of a trial, pursuant to s.6AAA, I say that had you pleaded - sorry, but for your plea of guilty, you would have been sentenced to be imprisoned for a period of six years and three months, with a minimum term of four years and six months.

23I note in that respect it is the artificiality of a 6AAA because I suspect deeply, had this matter gone to trial, you may have been charged more serious offending, but just so that you and your family understand, the benefits that you obtained from pleading guilty to all this, that is the set of circumstances.  On each of the summary charges, one month, all concurrent.  There is no other orders I have to make or anything like that?

24MR PURCELL:  No, Your Honour.

25MR O'DOHERTY:  Yes, the pre-sentence detention.

26HIS HONOUR:  The pre-sentence detention is 349 days, that is it.  Yes, all right.  Yes thank you, you can take him now.  Thank you. 

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