Director of Public Prosecutions v Hammett

[2017] VCC 1714

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01221

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAURICE IAN HAMMETT

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JUDGE:	HIS HONOUR JUDGE M. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 October 2017
CASE MAY BE CITED AS:	DPP v Hammett
MEDIUM NEUTRAL CITATION:	[2017] VCC 1714

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar
For the Accused	Ms N. Menegas

HIS HONOUR:

1Maurice Hammett, you are to be sentenced for two charges of cultivation of a narcotic plant, cannabis, and two charges of theft.

2The maximum sentence for cultivation of cannabis is 15 years' imprisonment, unless I am satisfied on the balance of probabilities that it was not committed for any purpose related to trafficking the drug.  In that case, the maximum sentence is 12 months' imprisonment.  The maximum sentence for theft is ten years' imprisonment.

3You are also to be sentenced for the summary offence of possessing a prohibited weapon.  The maximum sentence is two years' imprisonment.

4You pleaded guilty to these offences before me on 10 October 2017.  You admitted cultivation of both crops at an early time, speaking to police on
1 February 2017 when they raided your home at Taylors Hill.  In interview on the same day, you again admitted the offending, volunteering considerable detail.  For example, you admitted that you had grown cannabis at Taylors Hill for about two years.  This is the sole basis of the indictment charging  that period.  You stated that the crop was for your own use.  Your admissions about another smaller crop at Glenhope East,  near Puckapunyal,  led to a second police raid there on 2 February.  You declined interview, exercising your right to silence.  On 16 June 2017, committal went by hand-up brief, after which you entered a plea of guilty to these offences.  You had been charged with the offence of trafficking.  This was withdrawn at committal.  The matter was then listed for plea hearing in this court. 

5You receive the benefit of your pleas of guilty and a high-level of cooperation, both from an early stage.  You have facilitated the interests of justice.

6At your plea hearing, which ran on 10 October, Ms Fallar for the Crown tendered a written Crown opening and photographs of the two sites.  They are also contained at pp.66-201 of the depositions.  Mr Farrington for you tendered the psychological report of Gina Cidoni, dated 28 September 2017, and your record of interview of 1 February 2017.   He also tendered a mental health treatment plan and the "Student Support and Management Plan" of Caroline Springs Catholic College.  Both are related to your son, Michael Hammett.   This morning there was tendered at my request the forensic psychological report of Jeffrey Cummins,  dated 7 November 2010, and a police summary,  dated June 2010, related to a subsequent sentence to which I shall refer.

7Both Ms Fallar and Mr Farrington provided written plea submissions.  Those of Ms Fallar were contained in the Crown opening.  Also provided to me were the sentencing reasons of Judge Nixon,  dated 19 May 2000, and Judge Neesham, dated 5 April 2004. 

8Both counsel made oral submissions.

9The circumstances of your offending are set out in the tendered Crown opening, which is Exhibit A. 

10In making relevant findings of fact, I have also considered the depositional materials, materials tendered and provided at the plea hearing as just earlier identified by me,   counsel's submissions and the principles stated in R v Storey and like cases; particularly as to the question of which maximum sentence applies to the cultivation charges. I have applied s.72B of the Drugs, Poisons and Controlled Substances Act.  For you to receive the benefit of the lesser maximum penalty, I must be satisfied on the balance of probabilities that the cultivations were not for any purpose related to trafficking. 

11This question was the subject of a good deal of submission by both counsel at the plea hearing. 

12On 1 February 2017, police executed a warrant at your home in Taylors Hill.  The search revealed a hydroponically-grown cannabis crop, concealed in what is described as an underground concrete bunker within the large double garage.  It was a sophisticated setup, featuring such aspects as reflective tents, strong electrical lighting, fans, filters, pumps for a watering and fertiliser system, and electrical transformers.

13You explained to police, consistent with what was found, a rotating cultivation process. 

14There were clones, cuttings, small and mature plants.  A total of 60 plants at various stages were seized.  In six plastic bags was harvested cannabis.  The total so-called "wet weight" was about 16 kilograms.  Mr Farrington for you made the point that the drug, or useable weight, would have been very considerably less.

15As stated earlier, you made admissions to police, including about other plants at your family's farm property in Glenhope East.  You were remanded on 1 February. 

16On 20 February, police went to that property and found a second similar hydroponic setup in the locked garage there, of smaller scale.  There were two plants and harvested cannabis found in two buckets within a freezer.  Total weight was about 3.5 kilograms.

17Notes were found at both properties, consistent with cultivation;   not, I was told, sale.  At both properties was a typical electrical bypass system.  These are the  basis of the two theft charges.

18In record of interview, you stated that you grew the cannabis, concealed from your family, for your own use.  You cited long-term back and sciatic pain caused by a serious motor vehicle collision when 13.  You are now 58. 

19As I have said, a major focus of the plea hearing was upon what I should decide under s.72B of the Drugs, Poisons and Controlled Substances Act. I have previously identified the evidence and material tendered and provided. No evidence was called before me; and I note that the apparent or implicit burden under s.72B relies upon an accused.

20However, I also bear in mind the remarks of the majority judgment in the case of Storey.  Storey was a court of five judges. The citation is [1998] 1 VR 359. I quote from p.371, line 30 and following:

"We have spoken of proof.  Ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea.  Judges have always relied heavily on what is asserted from the Bar table, and we see no reason why that practice should not continue.  We are not to be taken as suggesting any departure from current practices on sentencing hearings.  As we have said, judges can, and commonly do, act in such hearings on matters that are not proved by evidence but would be admissible at trial.

"There will however be cases, we venture to suggest relatively few cases, in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence.  But that is to stop well short of adopting a procedure by way of so-called 'Newton hearing' that has been adopted in England and Wales.  The procedures for hearing pleas in this state have not shown to be wanting".

21At plea hearing, the implicitly agreed position seemed to be that I should decide the question upon the basis of the depositional and other material I have identified.  I have decided that I am able to do so, albeit there is a need for care on what weight should be given certain of that material.

22The Crown position essentially is that I should reject the explanation you gave in record of interview as not likely. That is you have failed to satisfy the burden set by s.72B. This relies mainly upon the size of the crops, their concealment, the sophistication of them, and of the construction of the cellar or bunker at Taylors Hill. There was considerable cost, effort and time in that, as in fact volunteered and explained by you in police interview. I accept that your occupation in the trade or industry of landscaping assisted you.

23Ms Fallar has raised the fact that the crops well exceed the trafficable quantity threshold set out in the Drugs, Poisons and Controlled Substances Act.  I see that as part of a general proposition about the quantity and circumstances of the crops.  It does not invoke the prima facie provision of s.74, which relates to the different offences of possession and trafficking.  This seems to me consistent with appellate court authority distinguishing those offences and that of cultivation.  The Crown has not proceeded with the charge of trafficking.

24The size and sophistication of particularly the Taylors Hill crop are relevant and important factors.  However, there are also a number of considerations which tend to support your explanation of personal use. 

25In a relatively lengthy and also challenging interview, you gave consistent and detailed explanations of the Taylors Hill crop and your circumstances.  There was at least apparent candour on your part, for example, about the periods of cultivation, your financial circumstances, what you volunteered about construction of the bunker, and about the crop at Glenhope East.  You seem to have significantly overstated the number of plants at the farm property.  I accept the proposition that there likely exists the kind of cultivator who grows cannabis for own use in surprisingly high quantities and in a sophisticated way.  Mr Farrington put that you had become, over time, infatuated with the product.  I have assessed the plausibility of your account to police in such context.  Beyond that, despite remarks made by me in exchange with counsel, I have decided that the issue must be decided on the basis of the evidence material relevant to this case.

26As I have said, there are aspects of that which tend to support your explanation to police, and Mr Farrington's submission.  Further, there is a lack of matters usually associated with cultivation for trafficking;  For example, scales, packaging, relevant notation and/or evidence of relevant mobile phone usage.  The crop is at your home or homes, although concealed.  As pointed out by Mr Farrington, there was storage of harvested cannabis in a freezer at Glenhope East.  I agree with his argument that that is not consistent with the purpose of trafficking.

27I have been careful about what significance should be given to the evidence before me of prior offending;  that is, on the issue of s.72b.  In the past, you have been convicted for trafficking cannabis, and for involvement in cultivation related to that.  There is also a 2011 conviction for cultivation of a similarly-sized hydroponic crop, as to which, as I was told, you were sentenced on the basis of personal use. 

28I bear in mind the burden s.72B apparently or implicitly states, but also the lesser standard.

29Ultimately, whilst not emphatically or conclusively persuaded, I find it more likely than not that you grew these crops for the purpose you stated; and quite vigorously maintained to police in interview.  As I have said, that interview was challenging.  At times it took the form of cross-examination. 

30Accordingly, the lesser maximum sentence applies to the cultivation charges. 

31The summary offence relates to possession of a samurai sword located by police at your Taylors Hill home.  I accept your explanation in interview.  There should be a relatively minor fine. 

32As stated, you are a 58-year-old man presently awaiting this sentence in remand custody.  You were born, raised and educated in New Zealand, coming to this country at age 17.  You have an older brother with whom there is little contact.  Your parents have both died.   In Australia, you have lived mainly in the Melbourne and outer area.  You have worked in a variety of employments; for example in a butcher's shop, as a security guard, machine operator and, notably, in a hydroponics business.  In more recent times, you seem to have worked for yourself selling fertilisers, in courier work  and, at time of offending, in concreting, deck construction and landscaping.

33You seem to have been married twice, the first time when young, and have had other serious relationships.  A number have been affected by trauma and sadness.  You married your present wife in 2000, and have a teenage son.  Your wife has a daughter in her early 30s.  Both children were at your Taylors Hill home at time of the police raid. 

34Your son has coped badly since your arrest and refuses to see you.

35The psychological evidence, most recently that of Ms Cidoni, states symptoms of depression,  reactive to your present predicament, and also a post-traumatic stress disorder arising from multiple traumas throughout your life.  You told Ms Cidoni of a sexual assault when a child.  There was the motor vehicle accident at 13.  Pathology in 2010 indicated serious damage, including severe disc degeneration in the mid to lower back.  There was the suicide of your teenage stepdaughter in the mid-1980s.  You came home to discover that she had shot herself.  There was another more recent stabbing incident witnessed in prison.

36Ms Cidoni also diagnoses chronic anxiety with obsessive traits and a chronic pain condition arising out of your back problem, which has caused heavy reliance upon cannabis  and,  to an extent, alcohol use.

37You present as an intelligent man, the estimate of being at least between average and high-average range. 

38You have a significant and relevant criminal record.  Between August 1989 and February 2011, there are six court appearances.  Three are in 2000, 2004 and 2011.  Offences related to cannabis are predominate.  There are two convictions for trafficking cannabis, and also two for cultivation.  You were imprisoned in 1996 for trafficking cannabis.  In 2010, you stated to forensic psychologist Jeffrey Cummins that the convictions of 1996, 2000, and 2004 were related to trafficking.  I accept that the 2011 conviction for cultivation, to which I have earlier referred, was not.   You received a sentence of eight months, but to be served by intensive corrections order.  As stated, I have been provided with the sentences of Judge Nixon  in 2000, and Judge Neesham,  in 2004, and have read them.

39Your offending and prior convictions make particularly relevant the sentencing purposes of general and specific deterrence.  A sentence of imprisonment is the necessary and proportionate punishment.  The moral culpability of your offending is lessened by my finding as to the personal and not trafficking-related purpose.  I accept that your now chronic back pain has played a role in that use and this offending.   However, I also see you as having become over your life embedded in the culture of cannabis, its cultivation and use.  You have shown no real capacity to desist, and specific deterrence becomes particularly important.

40There are moderating factors.  They include the following.

41(1)  Your plea of guilty and a high level of cooperation.  However, I do not see you as remorseful.

42(2)  Your personal circumstances.  That includes the evidence of your psychological symptoms.

43(3)    There is also the matter of your circumstances in custody.  This relates to the situation of your son.  As stated, he has reacted badly to your arrest and remand.  The tendered documents, a mental health treatment plan and student support management plan at his school, evidence his difficulties related to depression, self-harm, suicidal ideation and disconnection.   Your arrest and this criminal proceeding has been harmful to him.  I accept that your realisation of this and of his reaction to your situation has made custody more difficult for you.  I should imagine you feel responsibility for it.   As also raised related to this is the risk of deportation to New Zealand.  I find that it has limited relevance.  No action has yet been taken, and it is not clear what my sentence will mean as to your status in Australia.  Discussion about this at the plea hearing was ultimately speculative; and I agree with Ms Fallar's submissions on that.  I do find that your concern for your son is partly informed by this perceived risk.  It has of course been brought upon you and him by your choice to offend again.

44I bear in mind the lesser maximum sentence for cultivation, given my earlier finding.

45There should be an application of the principle of totality.  For example, I see the theft of electricity as a relevant component or feature of sophistication in the cultivations.

46After considering what I see as the relevant matters, I sentence you as follows.  Stand up, please.

47On Charge 1, you are sentenced to eight months' imprisonment;

48On Charge 2, you are sentenced to three months' imprisonment;

49On Charge 3, you are sentenced to six months' imprisonment;

50On Charge 4, you are sentenced to three months' imprisonment.

51I direct that two months of the sentence for Charge 3 be served cumulatively on the sentence for Charge 1.  That is a total effective sentence of ten months' imprisonment.

52I declare under s.18 268 days of presentence detention.  On the summary offence, that is, possession of a prohibited weapon, you are convicted and fined $150.  Take a seat please.

53Now, there were those further orders that you seek?

54MS FALLAR:  Yes Your Honour.

55HIS HONOUR:  If you'd hand them up?

56MS FALLAR:  Can I perhaps just clarify with my learned friend the position about the fine, whether that is with a stay?

57HIS HONOUR:  With a ?

58MS FALLAR:  Stay.  With a ‑ ‑ ‑

59HIS HONOUR:  Well ‑ ‑ ‑

60MS MENEGAS:  We do not seek a stay, Your Honour.

61HIS HONOUR:  I think - I mean - maybe, he might serve some time in prison to eradicate it or not, I do not know.  I listen to a stay, what do you ‑ ‑ ‑

62MS MENEGAS:  We do not seek a stay, Your Honour>

63HIS HONOUR:  All right, yes?

64MS FALLAR:  And s.6AAA of course.

65HIS HONOUR:  Yes. 

66MS FALLAR:  Thank you.  Sorry to interrupt, Your Honour.  I note the order still has Mr Chris Farrington for the respondent.

67HIS HONOUR:  Do not worry about that.

68MS FALLAR:  All right, thank you.

69HIS HONOUR:  Thank you.

70MS MENEGAS:  Excuse me, Your Honour, I seek leave for my instructor to approach Mr Hammett, he does not always hear quite well, he might be assisted by an explanation?

71HIS HONOUR:  Yes, or I could read it out again.  He did not hear the sentence?

72DEFENCE INSTRUCTOR:  I am just speculating myself, Your Honour.

73HIS HONOUR:  You can go down and tell him.  Had you not pleaded guilty, I would have imposed a total sentence of 16 months, with a minimum term of ten months.  I note, though, for the purpose of comparison, that ten months would have been the minimum term.  There would have been no guarantee of parole release at that time.

74MS FALLAR:  As the court pleases.

75HIS HONOUR:  Now, I am going to sign the orders for disposal and forfeiture.

76MS FALLAR:  Thank you Your Honour.

77HIS HONOUR:  I will hand them back down now.

78MS FALLAR:  Thank you.

79HIS HONOUR:  And is there another order here, is there?  Yes, there is an order for compensation in the sum of $32,559.94.  That was raised before I commenced my formal sentencing reasons.  It is a figure that is consented to?

80MS MENEGAS:  That is correct, Your Honour.

81MS FALLAR:  Thanks very much.

82HIS HONOUR:  And relates to Charge 2.  I will sign that now.  All right.  Good, is there anything else I need to do, Ms Fallar, Ms Menegas?

83COUNSEL:  No Your Honour.

84HIS HONOUR:  Good, thank you for your assistance, both today and the other day.

85COUNSEL:  As Your Honour pleases.

86HIS HONOUR:  Mr Hammett can be taken into custody now.  All right, you can both leave the Bar Table.

87COUNSEL:  Thank you.

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