Director of Public Prosecutions v Hall

[2016] VCC 703

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00438

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE HALL

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2016
DATE OF SENTENCE:	26 May 2016
CASE MAY BE CITED AS:	DPP v Hall
MEDIUM NEUTRAL CITATION:	[2016] VCC 703

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hersch	Office of Public Prosecutions
For the Accused	Mr J. Taaffe	Doogue O'Brien George

HIS HONOUR: 

1Mr Hall, you can remain seated.  On 12 November 2015, the police executed a search warrant on your home at 750 O'Gradys Road Wandong.  You took them to a large shed on the property, where you had set up a large indoor cannabis cultivation operation.  There were plants in separate internal rooms on a mezzanine floor, all constructed by you for the purposes of cultivation of cannabis.

2The cultivation methods were sophisticated.  There was lighting that was installed to allow the plants to be grown indoors.  Power had been bypassed to allow for higher volumes of electricity to be consumed without detection or cost.  There were filters, transformers, reflectors.  These are all expensive items, indicating that there were significant resources and a determination to grow large quantities of cannabis, ultimately for profit.  I will say more of this topic later.

3Given the considerable efforts and expense setting up this indoor horticultural enterprise, the plants that can be seen from the photographs were strong and healthy.  The yield of usable drugs from this crop was likely to be very high.

4There were plants in various stages of growth, indicating that the harvest would be planned to be regular in the form of crop rotation system, providing ongoing cash-flow.  The weight of the plants was said to be 56 kilograms.  This included some stems of cannabis.

5All the features found in this shed are common with suburban houses or sheds that have been converted into cannabis production properties.  The crime is hard to detect.  The product grown by the cultivators, that is the cannabis, has serious adverse effects on many uses.  The community bears a great cost as entrepreneurial criminals profit significantly.

6You cooperated completely with the police who searched the premises.  This continued when interviewed later on 12 November 2015.  Specifically in your interview, you confessed to cultivating cannabis well before the crop that was seized on 12 November 2015.  This meant that the charge of cultivation was dated from February to November 2015.

7However, by reason as to your answers as to your state of mind, the police and Director of Public Prosecutions have not proceeded with a charge of cultivation of a commercial quantity.  However, as to the gravity of this sort of crime of cultivation, it is heavily reliant on quantity, so this is a very serious example of cultivating simplicita because of the quantity being over 56 kilos and being 34 plants and seven leafy stems.  These quantities relate to the crop that was seized, and not to any earlier crop.  However, the interview makes clear, you started smaller and expanded the operation over time.

8The fully frank and confessional interview added more information unknown to the police, which led to the third charge on the indictment.  That charge is trafficking in cannabis from 1 May to 12 November.  The basis of that charge and the timeframe is taken from your confession that you had harvested earlier crops and sold a total of approximately 15 pounds of cannabis in the course of at least two transactions.  You said that you were paid 2,500 per pound, receiving about $30,000.

9What you said to the police was, you started with a single room in the shed set up for cannabis production.  With the money from the sale, you built two more rooms and purchased more lights and equipment and so on.

10As your counsel, Mr Taaffe, in a comprehensive plea explained, you sold the cannabis to the person from whom you bought the initial supply of hydroponic equipment.  And, as noted, with the money you built more rooms, again buying the necessary equipment from the same person who ran the hydroponic shop in your district.  You only sold cannabis to him, and you say you had reinvested in your operation acting on his advice, rather than pocket or bank the cash.

11You have told police who the person was, in the sense that he operated the hydroponic shop.  Your cooperation with the police was extensive, and must be acknowledged in the sentence I am about to impose.

12Also very important is that the charge of trafficking and the extent of your cultivation only became known because of your admissions.  This is a significant matter in mitigation.

13Before moving on, I note that I must be cautious not to, in effect, doubly punish you for your cultivation over the period of time, and certainly before the cannabis that was seized, and doubly punished in the sense that the trafficking of that earlier cannabis, which saw you receive $30,000 is Charge 3.

14If I make that clear, you grew that cannabis, the earlier cannabis, for sale, and you sold it, which is two crimes that are set out on the indictment, but I cannot overlook that it was the same cannabis.

15The theft of electricity, although not quantified, is significant, given the ultimate amount of electricity required to power the operation when it was discovered, together with the length of time involved in the cultivation.  I make it clear I understand the theft of electricity was not at the same level at the outset, but it escalated as you expanded your operation.

16It was put on your behalf that you became involved in growing and selling cannabis to get out of financial difficulties.  Once started, it was the hydroponic seller who convinced you to expand and reinvest in more equipment supplied by him.  The plan of reinvesting profits to expand a business is well understood as a legitimate business practice.  It cannot be seen as a matter in mitigation that you have little to show at the point of your arrest by way of profit or reduction in your debt.  Your plan was to expand and grow your cannabis, so ultimately profits were much larger.  You were thwarted by the police raid.

17That said, I accept your motive in turning to growing and selling cannabis was to meet your financial obligations, especially your house payments.  You have got yourself into significant debt, with personal loans and the use of credit cards, often to make other debt repayments.

18You keenly felt the need to be the provider.  The house was important to you and your partner.  She worked, but her income was modest.  You had always had a good job since leaving school, a matter which I pause to say is very much to your credit.  You became desperate when you were made redundant in late 2014, and then found it hard to find another job despite your skills and experience in the mechanical, maintenance and electrics fields.

19Your counsel outlined the loans and credit card debts you had.  It appears there was utter mismanagement, and a lot of going into further debt to try and pay off earlier debt.  You were involved in rally car driving with a close friend and neighbour.  It was explained that that was an expensive hobby.

20Committing the crimes so as to get out of your financial plight is an explanation I understand, but it is no excuse.  You are not a complete stranger to this sort of crime.  In 2007 you were fined without conviction by a magistrate for cultivation of cannabis.  I was told that the growing of cannabis at that time was for your own use.  The Magistrates' Court hearing had the effect of stopping you using cannabis.  You should have learnt a more permanent lesson.  That is, growing cannabis is illegal, and will lead to bigger downfalls.  Thus, there needs to be a small measure of deterrence to you in my sentence.

21There are matters put in mitigation that indicate to me that you can reform.  They are:

(1) Your immediate contrition and acceptance of your wrongdoing.

(2) Your cooperation with the police and willingness to say who else was part of your trafficking as the buyer.

(3)Your continued contrite approach by a speedy plea of guilty.  Your plea means the sentence will be palpably less than it otherwise would have been.

(4) Your remorse and regret, as seen by those who know you well and wrote testimonials about your good qualities and your determination to be law-abiding in the future.

(5) The solid support your partner.

(6) The return to the workforce and your prospects with your current employer.

(7)Your involvement in psychological treatment to address unresolved grief, and the loss of both your parents within three years of each other and the estrangement from your only brother.

22It was said in a medio-legal report of Ms Matthews, a psychologist, that your psychological reaction to your predicament, and your depression arising from the loss of your parents and then the loss of your job, meant gaol would be onerous for you.

23I do not ignore or undervalue the problem of depression, but the Court of Appeal has said in DPP v Meyers when discussing the particular individual involved in that case, who had chronic spinal problems and chronic pain and, it was said, depression, the court said this:

"As to the burden of imprisonment, there is no dispute that Mr Meyers' chronic pain or his high dependency on morphine for pain relief, nor would we have any doubt that pain management is more difficult in prison than elsewhere.  On the psychological side, the position is less clear.  Being depressed in gaol is unfortunately very common and understandable, and in the ordinary case, would not justify a reduction in sentence".

24You are now a mature 36-year-old who, apart from this serious offending, have led more or less a lawful, contributing life.  You are likely to continue in that vein, much chastened by this experience of facing the prospect of serious punishment, proportionate to your serious offending.  Thus in the overall mix, there is much to be said for you in your prospects.

25However, all of this must be seen in light of the true gravity of this offending.  Significant cannabis cultivation and trafficking, though in your case not at a level of commercial quantity, must be denounced.  Cannabis is a real problem for the motivation and health, especially the mental health of many users.

26Also, those who are minded to engage in growing and selling cannabis for profit must understand that the courts will meet this criminality with stern punishment, often involving imprisonment.  Those in the business of drugs must be deterred.

27Your counsel understood the importance of these sentencing purposes, but submitted that the sentencing purposes, indeed all sentencing purposes, including your rehabilitation, could be met by punishment in the form of a community corrections order.  The prosecution submission, which I clarified this morning, was that gaol was open, but a long community corrections order was also within range.

28I had you assessed, and not surprisingly you were seen as suitable for a community corrections order.  I have taken into account the assessment report and its recommendations.

29I am well aware that by the amendments to the Sentencing Act as interpreted by our Court of Appeal in the guideline judgment of Boulton v The Queen that the sentencing landscape in this state has dramatically altered in recent times. The plain words of s.5(4)C of the Sentencing Act mean that gaol is truly the sentence of last resort.  As the Court of Appeal in Boulton made clear, a community corrections order can be involved, but punishment and rehabilitation simultaneously.

30That said, I do not consider that you are in need of much, if anything, by way of imposed or mandated treatment or like programs pursuant to a community corrections order.  I expect you will rehabilitate yourself by steadfastly ensuring you do not reoffend, so that you do not have to go through what you have gone through since your arrest.  You will continue with hard work, and you will ensure you do not let your partner down again.

31Boulton stated, and the decisions of the Court of Appeal since have restated that a community corrections order now can be appropriate punishment for serious crimes that in the past were met with midrange terms of imprisonment.  However, in recent times other decisions of the Court of Appeal have pointed out, to use the words of Priest JA:

"The decision in Boulton is not a get out of gaol free card for serious offending.  If the prominent purposes of denunciation, deterrence and just punishment cannot be adequately met by a community corrections order, then hard as it always is, a sentencing judge must imprison those who commit serious crime.  The community concern and intolerance of drug crimes cannot be simply ignored."

32This was a lot of cannabis, grown for profit in a sophisticated setup.  It was the last crop, but there had been other cannabis that had been trafficked for significant amounts of money, and electricity was stolen over an extended period.  You had in the past been warned by a court about growing cannabis.

33It is always a grave step to contemplate imprisoning a man like you, but I have come to the glum conclusion that I have truly no other option.  A term of imprisonment, significantly moderated in length, is required for the sentence to be a just and appropriate one in the sense of meeting all sentencing purposes.

34Obviously I have thought hard about whether a community corrections order alone would be enough, and then if a community corrections order was required in addition to gaol.  In the end, I consider the imposition of gaol will be punishment enough, and nothing much would be gained by a community corrections order with a work component, or programs directed at rehabilitation on release.

35I have, in light of all of that, ensured that the sentence of imprisonment is as moderate as it could possibly be.  You will have the potential for support from the Office of Corrections on release, if and when you are granted parole.

36You may not see, Mr Hall, but the term I am about to announce is moderate.  Not so long back, this level of offending committed by someone like you would have attracted a term of imprisonment well beyond what would now allow for a combined gaol and community corrections order, and most likely longer than would have been allowed for any suspension of the sentence of imprisonment.

37I intend to impose an aggregate term, but in doing so, I have given practical effect to the need to punish for the theft.  I have also kept well in mind that the trafficking is of cannabis that was part of the earlier period of cultivation.  Can you please stand, Mr Hall.

38The sentence of the court is an aggregate term of imprisonment for committing the crimes of cultivation of a narcotic plant, namely cannabis; the theft, being the theft of electricity; and for trafficking of a drug of dependence, namely cannabis, you are sentenced to be imprisoned for 18 months with a minimum non-parole period of nine months.

39Had you pleaded not guilty to these offences and been found guilty of it, in your case the sentence that I would have imposed would have been significantly higher.  Indeed, as high as the reduction for your plea is as long that I have ever given.  That is, 36 months would have been imposed, with a non-parole period of 24 months.

40The prosecution have sought orders of disposal, which I will sign, of all the material, together with an order relating to s.464ZF(2).  I intend to make that order.

41I will sign a document shortly.  In relation to the s.464ZF order, the prosecution have made an application that you provide a forensic sample.  That is, a scraping of a mouth.  I intend to make the order.  The reasons for that are the seriousness of the crime, the prior conviction, and that the granting of the order is in the public interest.

42You have to understand that when the authorities come to take the scraping from your mouth, that they are authorised to use reasonable force in order to get the sample if you do not cooperate.  The way through it is to cooperate.  Yes, take a seat, please.

43While I do this, are there any other matters that arise?

44COUNSEL:  No, Your Honour.

45HIS HONOUR:  Those documents are signed.  Having told me there is nothing else, I just pause to thank counsel for their considerable assistance in this matter.  It was, Mr Taaffe, a comprehensive plea.  Well-prepared, as usual. 

46Mr Hall, this court is not set up to allow for you to spend any time here with those that care for you.  It is unfortunate.  I am sure that you would behave, but there is one rule that I have to apply, because many others would not.  So you have to go with the Office of Corrections staff now, and Mr Taaffe will be able to see you and explain things to those that are here for you.  Thank you.

47We will stand down for the next matter.

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