Director of Public Prosecutions v Jones
[2020] VCC 549
•30 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01621
Indictment No. K10754828
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEANE JONES |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 24 January 2020 and 12 February 2020 | |
DATE OF SENTENCE: | 30 April 2020 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Jones | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 549 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – cultivation of a narcotic plant – Cannabis L in a commercial quantity – a Category 2 offence – whether exceptions set out in s5(2H) of the Sentencing Act 1991 apply; trafficking in a drug of dependence, cannabis L; and possession of a drug of dependence – methylamphetamine, heroin, Oxycodone and buprenorphine; one uplifted summary matter involving possession of a Schedule 4 poison – pleas of guilty
Legislation Cited: Poisons and Controlled Substances Act 1981, s36B(2); s71AC(1), s72A; s73; Sentencing Act 1991; Criminal Procedure Act 2009, s145
Cases Cited:McKee v Brookes (2003) 138 A Crim R 88; R v Ketich (1977) CCA Vic (25-11-1977); R v Redenbach (1991) 52 A Crim R 195; R v Talbot (1992) 59 A Crim R 343; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; R v McLeod [2007] VSCA 138; R v McLeod (2007) 16 VR 662, R v Tabone [2006] VSCA 258; Director of Public Prosecutions (“DPP”) v Hudgson [2016] VSCA 254; Pato v R [2011] VSCA 223; Director of Public Prosecutions (DPP) v Davis [2017] VSCA 341; Sikaloski v R [2012] VSCA 130; DPP v Alexiadis [2019] VCC 1807; DPP v Ly [2018] VCC 1579; Nguyen v R [2016] VSCA 198; Nguyen v R [2017] VSCA 286 Mohtadi v R [2018] VSCA 238; DPP v Morey (a pseudonym) [2020] VCC 320; Phillips v R [2012] VSCA 140; Director of Public Prosecutions (DPP) (Vic) v O’Neill [2015] VSCA 325; R v Brown(aka Davis) [2020] VSCA 60.
Sentence: Total effective sentence of 3 years 2 months imprisonment with a non-parole period of 1 year 10 months; 7 days presentence detention declared to be administratively deducted from the sentence; 6AAA declaration – 4 years 6 months imprisonment with a non-parole period of 3 years 2 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J McGarvie | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr G Chisholm | James Dowsley & Associates Pty Ltd |
HIS HONOUR:
1 Keane Jones, on 20 January 2020, you pleaded guilty to the following offences:
CHARGE 1
– That you at Seaford, Victoria between 1 November 2018 and
22 March 2019 cultivated a narcotic plant, namely Cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant.
The cultivation of a narcotic plant - commercial quantity – is contrary to s72A of the Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 25 years’ imprisonment.
s.3(1) of the Sentencing Act 1991 defines a “Category 2 offence” to include an offence under s72A of the Poisons and Controlled Substances Act 1981.
Any charge constituting a “Category 2 offence” is governed by s5(2A) of the Sentencing Act 1991 that provides, when sentencing an offender for a Category 2 offence, the Court must make an order under Division 2, Part 3 (that is, a custodial order) other than a sentence of imprisonment imposed in addition to making a Community Correction Order in accordance with s44 of the Sentencing Act 1991, unless statutory exceptions apply.
CHARGE 2 – That you at Seaford, Victoria on 22 March 2019 trafficked in a drug of dependence, namely Cannabis L.
Trafficking in a drug of dependence – Cannabis L – is contrary to s71AC(1) of the Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 15 years’ imprisonment.
CHARGE 3 – That you at Seaford, on 22 March 2019 possessed drugs of dependence, namely methylamphetamine, heroin, Oxycodone and buprenorphine.
Possession of a drug of dependence is contrary to s73 of the Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 1 year’s imprisonment (non-trafficking purpose) or a maximum of 6 years’ imprisonment (for trafficking purposes).
SUMMARY CHARGE 8 was transferred to this Court pursuant to s145 of the Criminal Procedure Act 2009. On 20 January 2020 you also pleaded guilty to the uplifted summary charge that you at Seaford on 22 March 2019 possessed a Schedule 4 registered number poison (namely quetiapine) without licence or permit. Such offence is contrary to s36B(2) of the Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 10 penalty units.
The circumstances of the offending
2 During the plea hearing on 24 January 2020 counsel for the prosecution tendered a document headed “Amended Summary of Prosecution Opening” dated 21 January 2020 (exhibit 1) and I was informed by your counsel that you agree with the contents of such document. In particular, I note the following:
·You were born on 27 February 1978 and are 42 years old. You were between 40 and 41 at the time of the subject offending. At the time of the offending, you were residing with your partner and three young daughters at Wedge Street, Seaford.
·On 22 March 2019, police executed a search warrant at your residential address, at which time you were the sole occupant of the premises.
·Several large green houses and gardening sheds were located at the rear of the property. In each of the sheds was a large quantity of cannabis plants with varying quantities and sizes of plants located in each shed.
·
There was a total of seven growing spaces found by police which were a combination of uncovered, semi-covered and fully covered areas.
The covered and semi-covered areas were predominantly set up hydroponically.
·Police found the following items:
(i)Room 1: green Colourbond shed in rear yard
– 59 cannabis seedling plants
– 74 small potted cannabis plants
(ii)Room 2: black tent in yard
– 21 small cannabis plants
(iii)Room 3: outdoor undercover area in rear yard
– 11 large cannabis plants
(iv)Room 4: outdoor undercover area in rear yard
– 11 large cannabis plants
(v)Room 5: outdoor undercover area in rear yard
– 9 medium cannabis plants
(vi)Room 6: shed in far right corner of back yard
– 7 medium cannabis plants
(vii)Room 7: outdoor vegetable garden
– 7 medium cannabis plants.
·Victoria Police forensic botanist, Ms Susan Fiddian, attended the residential address to assist with the analysis and weighing of the cannabis plants. A total of 199 plants were seized from the property with a total weight of 81.76 kilograms. (that is Charge 1 – cultivate cannabis - commercial quantity).
·Later Ms Fiddian provided a further statement in which she expressed the following opinions:
(i)That the 22 cannabis plants that were close to maturity with leaves and flowering heads constituted approximately 39.7 kilograms of the weight. This equates to an air dry weight of approximately 9.4 kilograms.
(ii)It was not possible to accurately estimate the projected weight of the remaining immature plants.
·Police also located the following items in your bedroom:
(i)One Ziploc bag of loose dry cannabis
(ii)Loose cannabis in a jar
(iii)Loose cannabis in a bowl
(iv)Two plastic bottles containing cannabis seeds
(v)One Ziploc bag containing a small amount of methylamphetamine
(vi)White pill bottle containing a small amount of methylamphetamine, 88 Oxycodone pills, a small amount of heroin wrapped in foil and one Subutex (buprenorphine) (that constitutes Charge 3, possessing drugs of dependence).
·Police also found three Seroquel (quetiapine) pills (that constitutes Summary Charge 8, possessing Schedule 4 poison).
·On 26 March 2019, the loose dry cannabis was analysed and weighed at the Victoria Police Forensic Science Laboratory by Ms Fiddian and the total weight of the loose dry cannabis was 408.2 grams.
·Your phone was seized by police and multiple messages relating to cultivation and alleged trafficking of cannabis were located on your phone. A selection of the text messages are as follows.
20 March 2019:
ADA: “Hey bro you got any bud?”
Jones: “Hi mate sure do wot you after”
ADA: “How much for a q?”
Jones: “70”
21-22 March 2019:
ADA: “Bro only been getting good feedback. How much can you do a pound for”
Jones: “Hi mate few more weeks for the pound just bags at the moment can do 4 for 700 he wants to make it last till next lot there is plenty just big one yet”
13 February 2019:
Thaldin: “Hey bro jesse said u where guna send some choof up with it na not in the same bag I'm not riskin it but I'll put some more money in your bank on Thursday for a new envolope and some chof but yea not in the same bag cheers heaps”
15 January 2019 – 17 January 2019:
Jones: “Happy days bro hope all is well with you and the kids want to send some x Mass cards to you”
Thaldin: “Hella yea does that mean it's in the post”
Jones: “In my hot little hand right now with more lined up regular bro anyway on the way to post now”
[sends pictures of express post envelopes]
“I swapped the package cause I payed on card I bought new ones with cash all good still sent on wed just forgot to send the number thought you mite be wanting to check by now ha ha no luck yet”
(That's Charge 2 – trafficking in a drug of dependence)
·On 22 March 2019, you were conveyed to the Frankston Police Station for interview and stated the following:
(a)In relation to the cultivation of cannabis:
(i) That you estimated there to be roughly 80 to 100 plants at the property (A35 – 37)
(ii) That you had been growing the plants since November 2018 (A 255)
(iii) That no one else was involved in the cultivation (A 43)
(iv) That you started growing the plants out of desperation, stating “my back is fucked mate, first and foremost, I need medicine” (A 51)
(v) That once the cannabis is ready for harvest, you either smoke it or makes oil to fix his back (A 69)
(vi) When asked how much bud you were expecting to get off his crop you stated that it’s very hard to tell but there was gunna be a fair bit (A162) and that “it kinda got a bit out of hand” (A 70)
(b)You made admissions to possession of drugs of dependence, stating:
(i) That the room where the drugs were located was the bedroom (A 102)
(ii) That the methylamphetamine was yours (A 239)
(iii) That you had previously been prescribed oxycontin but that the doctor had cut you off (A 84 – 86)
(iv) The Seroquel was not prescribed (A 109 – 110)
(c)In relation to the trafficking of cannabis:
(i) You denied giving cannabis to other people or selling it (A 74, A 132)
(ii) When asked about the material on your phone you stated: “there’s people trying to, yeah, but I’m not really, I’m not really partaking too much” (A 124)
(iii) Later, you stated “I probably would’ve sold some” (A 143) and “I’m not gunna say I wasn’t man” (A 144)
(iv) You denied sending the cannabis in parcels (A 268 – 270).
Prior criminal history
3 You have no relevant criminal history. The Court was informed by your counsel that there was a single Melbourne Children’s Court appearance when you were 17 years old and charged with the possession of cannabis and theft. You received a non-conviction disposition. Both counsel for the prosecution and your counsel accept that such disposition, given that it occurred when you were aged 17 and the time lapse since then, has no relevance to the subject offending.
Ancillary orders
4 The prosecution seeks a disposal order and a forfeiture order.
Pre-sentence detention
5 You spent seven days in custody by way of pre‑sentence detention from 22 March 2019 until 28 March 2019.
6 Counsel for the prosecution notes that the matter was “resolved” prior to evidence being called in a committal hearing on 14 August 2019 which was characterised by the prosecution as an “early plea” – albeit if not at the earliest opportunity.
Your education, employment and general background
7 Your counsel handed up a copy of a document headed “Outline of Plea Submissions dated 22 January 2020”. No doubt through oversight, this document was not tendered. Furthermore, such document also sets out various documents to be exhibited. I will have the document headed “Outline of Plea Submissions dated 22 January 2020” marked as “exhibit 1” and the various other documents listed in the Outline will be also tendered and marked with the various exhibit numbers as follows:
Exhibit 2 – Medico-legal report from the pain specialist – cardiologist, Dr Peter Blombery, dated 10 December 2019.
Exhibit 3
– Report of the general practitioner, Dr Andrew Taylor, dated
12 November 2019.
Exhibit 4 – Report from the treating drug clinician at the Drug and Alcohol Service Peninsula Health, dated 22 January 2020.
Exhibit 5 – Drug screens from April 2019 to October 2019.
Exhibit 6 – Bundle of medical notes from a general practitioner at Atticus Health Chronic Disease Management and Patient Health Summary, various dates.
Exhibit 7 – Report of consulting and clinical psychologist, Mr J Cummins, dated 13 December 2019
Exhibit 8
– Restraining Order made by his Honour Judge Dyer on
3 September 2019
Exhibit 9 – Property Title for Wedge Court, Seaford, Victoria, 3198.
Exhibit 10 – Letter of support from your wife, Tong Jones, dated 18 January 2020.
Exhibit 11 – Letter of support from your brother, Leif Jones, dated 18 January 2020.
Exhibit 12
– Letter of support from your mother, Ms Julie Jones, dated
19 January 2020.
Exhibit 13
– Letter of support from your uncle, Mr Barry Cartledge, dated
19 January 2020.
Exhibit 14
– Letter of support from your cousin, Ms Kayla Cartledge, dated
20 January 2020.
Exhibit 15
– Letter of support from your cousin, Ms Hailey Mills, dated
20 January 2020.
Exhibit 16 – Letter of support from your uncle’s partner, Ms Deborah Mellett, dated 20 January 2020.
Exhibit 17
– Letter of support from a family friend, Mr Brian Conway, dated
20 January 2020.
Exhibit 18 – Letter of support from a friend and neighbour, Ms Catherine Nelsson, dated 21 January 2020.
Exhibit 19 – Letter of support from your stepfather, Mr Michael Geraghty, dated 20 January 2020.
Exhibit 20 – Letter of support from an uncle, Mr Rob Cartledge, dated 21 January 2020.
Exhibit 21 – Corrections Victoria Remand Report, dated 20 January 2020.
8 Partly based on various submissions made by your counsel and some of the material to which reference has just been made, I note the following:
·Your biological parents separated when you were aged 2 or 3, after which your father relocated in Queensland. You were raised by your mother in Rosebud to the age of 14, thereafter you resided with your father in Queensland.
·Your father had been a house painter and died of an overdose of OxyContin when living in Queensland, on 14 April 2004. You informed Mr Cummins that your father had not worked consistently for many years as he was dependent on heroin and opiate analgesics, and also on alcohol. He lived in a de facto relationship with a woman for 15 years and it was with the two children (stepbrothers) from that relationship with whom you were raised.
·Your mother is aged 67 and lives alone in Frankston, being a retired nurse, and you informed Mr Cummins that you were in daily contact with your mother. In earlier years, because your mother, according to what you told Mr Cummins, hated your father, you consequently rarely spoke with her when you were living with your father.
·You have one full brother, Mr Leif Jones (who I note is a referee).
·You informed Mr Cummins that your mother was in a de facto relationship from when you were about 12 to aged 20, and until such time that you moved to Queensland to stay with your father you were subject to physical abuse from your stepfather, although ultimately your difficulties were resolved. You informed Mr Cummins that you had never been subjected to any sexual abuse.
·You attended Rosebud Primary School and then attended Rosebud Secondary College until the age of 14, which you believed to be about Year 9. You then left school to reside with your father in Queensland and attended a State high school there, continuing schooling, but leaving after not passing a repeated Year 10.
·When at high school, you formed a relationship with a woman named Sarah and thereafter you had an on-again-off-again relationship through until you were aged about 29. You informed Mr Cummins that the formal relationship with Sarah ended when you were about 26, under circumstances where you father had died and you had resumed responsibility for your two half-brothers.
·On leaving school, you worked with your father as a housepainter in the Gympie area, but also frequently travelled back to Melbourne. When in Melbourne you had an on-again-off-again relationship with Sarah and continued to work as a housepainter. You then obtained a lot of work in Melbourne as a housepainter and established “Keane Jones Painting”, which was based in Melbourne.
·
You informed Mr Cummins that you essentially ceased work full time as a housepainter approximately five years ago because of chronic back pain, but have worked intermittently as a housepainter since then.
In particular, you told Mr Cummins that subsequent to your arrest on
22 March 2019, you have had some limited work – about three weeks – as a spray painter. You are left-handed and said you can no longer use a brush with your left hand but can now use a spray gun with your left hand.
·With the assistance of Atticus Health, you have applied for – unsuccessfully – a Centrelink benefit and a Disability Support Pension.
·
You informed Mr Cummins that you commenced smoking cannabis when living with your father at the age of 17 and ceased smoking cannabis around the age of 26. However, as a result of your ongoing back pain, you resumed smoking cannabis approximately five to seven years ago and that for a number of years were smoking up to 1 ounce of cannabis per week, and for the two years prior to your arrest on
22 March, you were smoking up to 1 ounce of cannabis daily.
·Furthermore, you were introduced to heroin and OxyContin when living with your father at the age of 17, and that between the age of 17 and 26, you were a frequent abuser of OxyContin and a frequent and often daily smoker of heroin.
·You informed Mr Cummins that you never used any drug intravenously. In particular, you stated that you had never undergone any residential drug detoxification or rehabilitation.
·You informed Mr Cummins that you have your full driver’s licence and have no prior convictions for drink driving or drug driving. You have never had any involvement with gambling.
·You have never undergone any surgery for your lower back problem, although you informed Mr Cummins that you had been treated both by orthopaedic surgeons and a neurosurgeon. You stated that the lower back pain triggers pain in both legs and both arms, with the pain being predominantly in your left leg.
·You have never been hospitalised in any psychiatric hospital ward and have never attempted to take your life. You informed Mr Cummins that approximately two years after your father’s death you attended weekly upon a psychologist in Edithvale for about 12 months.
·You also told Mr Cummins that via a recent mental health care plan provided by Dr Taylor (one of your general practitioners), you have now seen a psychologist at Psychology 4 Change in Frankston. You also said that since being released on bail you have been seeing a social worker who is an alcohol and drug counsellor (Eleanor), who works for Peninsula Health.
·You volunteered to Mr Cummins that:
“Well I'd been on morphine based medication for my back for quite a while. This was prescribed by Atticus Health. I'd been on it for about 2½ years and then about two years ago I was taken off the medication and then I wasn't given any pain relief medication. Then to manage my back pain I got onto heroin and all along I'd been smoking cannabis. Before I got arrested I'd also been dabbling in a bit of Ice and I'd been abusing some medications which I'd been able to get on the black market I haven't used any illicit drug and I haven't abused any prescription medication since I spent the time on remand.”
·Also, later, you informed Mr Cummins, and I quote:
“Well I remained off the heroin until the doctor cancelled the prescription for the Targin and that’s when I got back onto the heroin and some Ice and some Seroquel. I used the Seroquel because it cleared my head. After I went off the Targin - well
I managed to get access to some Oxycontin through the black market. Now I've been seeing Dr Taylor since April 2019 and he's told me my back pain was poorly managed by Atticus Health. He's got me on Suboxone 24mg daily, Seroquel 25mg tablet of a morning and two 25mg tablets of an evening, Valium 5mg tablet of a morning and two 5mg tablets of an evening and the antidepressant Effexor and the anti-inflammatory Mobic 15mg daily as necessary. When I was arrested I weighed about 50kg and within two months I got up to weighing about 90kg because I gained weight from the medications. I've now dropped my weight a bit and I probably now weigh about 80kg."
·You told Mr Cummins that for approximately 12 months leading up to and including the time of your offending, you were not attending upon any general practitioner, and you said that this situation arose because you felt you had been refused treatment by Atticus Health. You said it was over that time you resumed intermittently using heroin, Seroquel and methamphetamine and increased your dependency on cannabis, and sometimes gained access to OxyContin via the black market.
·Your wife, Tong, was born in Thailand and entered Australia on a student visa in 2004. She is a qualified architect and a qualified graphic designer. You married her on 16 May 2008, approximately six months after you commenced to date her. You informed Mr Cummins that over the past five years your wife has been operating a cleaning business and often works ten hours a day, six or seven days a week. On Sundays she teaches the Thai language at the Thai Language School, and that she does not drink alcohol and has never used illicit drugs or abused any prescription medication. You have three daughters from that relationship, who are all healthy, and none of your daughters are aware of your legal situation and the possibility of you being incarcerated.
Matters relevant to the subject offending
9 You informed Mr Cummins that in respect of the offence of trafficking cannabis, you were not selling drugs for money, but occasionally swapped it for other drugs like heroin, Ice, Seroquel or OxyContin. Furthermore, you informed Mr Cummins that you were growing the cannabis for your own use and you were determined to learn how to extract the cannabis for your pain relief.
The evidence in relation to Atticus Health
10 I refer to exhibit 6, which primarily contains your medical records, and chemist records, when you attended at Atticus Health (Station Street, Carrum) and were under the care of primarily Dr Shadab Falahtafti. I have perused all the documents in such exhibit.
11 You initially attended Dr Falahtafti on 21 December 2015, complaining of back pain “for many years”. At that time, you were prescribed Panadol Osteo and Lyrica. You were reviewed on 28 December 2015 and it is noted that you came for “pain management” in relation to your back pain and bilateral hand numbness. At that time, you were prescribed, again, Lyrica, but also Targin, which is a derivative of Oxycodone.
12 In April 2016, you underwent a carpal tunnel release. On 13 October 2016, it is recorded that there would be an attempt to wean you off Targin and commence Mobic. On 8 November 2016, it is recorded that you had been on Targin, Panadol Osteo, Mobic and Endep for lower back pain. On that date, there was a care plan review, resulting in ongoing prescriptions for Targin, and later Endep and Lyrica.
13 Over the ensuing years, you continued to be treated with Targin and Endep for your lower back pain.
14 Dr Falahtafti consulted with you on 6 July 2018, on which date it was noted that you had been on Targin since 2016 and still complaining of pain. Furthermore, you were also taking Endep at that time. Also, at that time, it is recorded that there was a long discussion regarding chronic pain and multidisciplinary care was required. Targin was to be reduced and then stopped, as it had not helped, and you were to continue with Panadol Osteo, Voltaren and Endep.
15 When seen by Dr Falahtafti on 20 July 2018, it is recorded that you advised the doctor that you declined any pain management clinic service.
16 When you then later attended on 22 November 2018 – some four months later – Dr Falahtafti cancelled the Schedule 8 permit for Targin. On 23 November 2018, you resumed attending Dr Falahtafti. At that time, it was recorded on stopping the Targin and Endep, pain and depression had become worse recently, and you were unable to work for the last four months. Also recorded is that you were smoking again and “has been abusing drugs to help with his back pain” but, again, you stated that you did not want to go down that path.
17 On that day, Targin and Endep were formally ceased and you were prescribed Cymbalta for your anxiety and to improve your pain threshold. You were also prescribed Panadol and Voltaren for pain. Dr Falahtafti also referred you to Dr Bruce Shirazi of St John of God in Frankston for opinion and management of your chronic lower back pain. Apparently you did not attend this referral because of financial pressure. On 11 February 2019, you attended the practice to obtain your medical records, which were released.
The evidence of Dr Andrew Taylor
18 Dr Taylor, your current general practitioner, is situated at Frankston Healthcare (see exhibit 3). He states that you initially attended in April 2019, immediately after your arrest and charges being laid. Dr Taylor notes that the reason for your attendance was to seek help to cease your cannabis use and to control other poly-substance (cannabis and opiates) dependence.
19 At that time, you reported to Dr Taylor that you suffer chronic back pain of such severity that it impacted all facets of your life and prevented gainful employment. You had treated your back pain with cannabis and later on Codeine. Furthermore, you had also used other opiates – sourced by way of either prescription or black market. Dr Taylor notes that you have no possible surgical cure for your back pain and that he is now treating you with prescribed opiates, which can be legally taken as treatment for pain, Effexor and Mobic. Furthermore, Dr Taylor has prescribed Diazepam for cannabis dependence, Seroquel for drug withdrawal and Suboxone for opiate addiction. In particular, Dr Taylor states:
“He must learn to live with chronic pain by increasing his general fitness, his muscle strength, and techniques of distraction. He can use anti inflammatories and simple pain killers such as paracetamol. He will do best if he eventually beats his opiate addiction. That may take 10 years or more.”
The evidence of Dr Blombery
20 In his report, dated 10 December 2019 (exhibit 2), Dr Blombery obtained a history that you suffered lower back pain in the course of lifting a heavy motor at work some approximately 15 years ago. Although persisting for about two weeks, such pain gradually improved over a period of time, but later increased, and you were no longer able to do any heavy lifting, causing you to change jobs.
21 In particular, Dr Blombery noted that your local doctor, Dr Falahtafti, had been prescribing opiates since 2015 and decided that there were only very mild changes on the X-ray and that you should therefore cease Targin. Although recommended for a pain management clinic, you could not afford that.
22
Dr Blombery notes that although Dr Falahtafti cancelled all scrips for Targin on 22 November 2018, he also referred you, at that time, to Bruce Shirazi for a pain management program that was private, and you could not afford it.
As noted by Dr Blombery, as a consequence of cessation of Targin,
you sought pain relief through illicit sources.
23 Examination by Dr Blombery did reveal chronic back pain complicated by a pain syndrome, together with bilateral tunnel compression of the median nerves, also complicated by a pain syndrome. Dr Blombery considers that such pain conditions have improved with the use of Suboxone, although you still have significant back pain.
24 In part, Dr Blombery states, and I quote:
“Mr Jones was prescribed Targin to try to control his pain. There would be a high likelihood of him becoming dependent on that drug because of his family history, although not markedly so. Unfortunately, there were few other alternatives available and the problem that occurred is that Targin was ceased without any plan for a replacement medication, resulting in him returning to illicit drugs.”
The evidence of Mr Jeffrey Cummins
25
The consultant clinical and forensic psychologist, Mr Jeffrey Cummins, interviewed you on 9 December 2019 and prepared a report dated
13 December 2019. I should add, Mr Cummins subsequently gave oral evidence on 12 February 2020. He obtained a history and reviewed various documentation from Dr Shadab Falahtafti of Atticus Health and the report of Dr Andrew Taylor.
26 When interviewed, you were accompanied by your wife and three daughters, aged 11, 10 and 9.
27 Mr Cummins performed a mental health examination and found you to be quite an intense person. You did not present as being psychotic or Schizophrenic, and there was no suggestion from your history to indicate that you had ever been psychotic or Schizophrenic. Furthermore, you did not present as having any Personality Disorder and did not present as having a Narcissistic Personality Disorder, nor being paranoid.
28
Mr Cummins considered you presented as being of average intelligence and there was no indication of any Acquired Brain Injury. You had no difficulties with speech, although complained you were having difficulty with long-term memory, which became obvious during the assessment, because you frequently became confused with dates and the sequence of events.
Mr Cummins was of the opinion that you established good rapport during the interview situation and presented as a genuine interviewee, who acknowledged that you had become a poly-substance user, and also acknowledged that you were initially dependent on cannabis, heroin and OxyContin when living with your father as an adolescent.
29 Furthermore, at interview, Mr Cummins considered you as being mildly anxious and moderately depressed, reporting frequent and often daily negative ruminative thinking regarding your legal situation and particularly the fact that pleading guilty to cultivating a commercial quantity of cannabis may lead to a period of imprisonment. You reported to Mr Cummins that you were very attached to your wife and your three daughters.
30 In his opinion, Mr Cummins stated, in part, and I refer to paragraphs [62]-[63]) that, and I quote:
“62.He reported a lengthy history of depression and at interview stated his depressive symptomatology essentially commenced approximately ten years ago corresponding with him being formally diagnosed with a lower back injury. At interview he acknowledged he had been dependent on opiate analgesia over many years. In my opinion he is diagnosed with a Depressive Disorder Due to Another Medical Condition - with the other medical condition being chronic lower back pain.
In my opinion he was suffering from this depressive disorder at the time of offending and he continues to suffer from this disorder. In my opinion the symptoms of this disorder - mainly negative ruminative thinking and a chronic sense of pessimism - will be exacerbated if and when he is incarcerated. Nevertheless, at interview he stated he was currently endeavouring to force himself to accept that it is very probable he will have to spend some time in custody. In this regard he stated he was dreading the prospect of having to inform his daughters about the likelihood of him being incarcerated.
63.In my opinion his assessment of the wrongfulness of his offending - at the time of cultivating the cannabis - was most probably impaired as a result of him suffering from a depressive disorder, coupled with his poly-substance use and intermittent use of Oxycontin.”
31 Mr Cummins noted that you are currently medicated on Diazepam, Effexor, Seroquel and Suboxone (as prescribed by your current general practitioner, Dr Andrew Taylor). Furthermore, you informed Mr Cummins that you have been providing “clean urine analysis results” since being released on bail approximately 13 days after your arrest.
32 Mr Cummins also notes that based on your commitment to being assessed by the pain management specialist – that is, Dr Thomas – and through your clean urine analysis results, he would expect you to be able to cooperate with the standard conditions of a Community Correction Order. Mr Cummins considers that, based on his assessment, your prospects for remaining illicit drug free are favourable.
Report from Peninsula Health
33 I also refer to the report from the psychologist, Ms Eleanor Baptist, who is employed by Peninsula Health as an alcohol and other drugs clinician. In her report, she notes that you have engaged with the Frankston and Mornington Drug and Alcohol Service since 12 July 2019, and to the date of the report - that is, 21 January 2020 - you have attended nine appointments, and during such sessions have engaged openly and presented as motivated to explore and understand the triggers for your substance dependency. During those consultations, you disclosed that you were first introduced to illicit substances in your teenage years by your father, who was a dependent heroin user.
34 Furthermore, although developing your own dependency to heroin, you reported that you would also use cannabis to substitute and manage your heroin dependency. You further admitted to Ms Baptist that your reliance upon cannabis eventually led you to grow your own cannabis plants.
35 In particular, it is also recorded by Ms Baptist, that when you were prescribed a variety of opiates to mitigate your back pain and that was discontinued by your general practitioner, you returned to regular heroin use, reporting that you would exchange your cannabis plants for heroin without monetary gain.
36 Since your connection with Frankston and Mornington Drug and Alcohol Service, you have reported ongoing abstinence from cannabis and heroin, and acknowledge the positive impact your abstinence has had on your relationship with your wife and children. It was also noted that you had stabilised on opiate maintenance therapy for your back pain and co-occurring opiate dependency. It was noted by Ms Baptist that treatment explored relapse prevention extensively, where you were able to identify high risk situations that can lead to relapse and developed a coping plan for when they arose. You were further introduced to psycho-education, emotion and behaviour regulation and developing adaptive coping skills.
37
I do refer to exhibit 5, which are drug screens undertaken by you on 24 April 2019, 27 May 2019, 21 June 2019, 23 July 2019, 27 October 2019 and
28 October 2019. As submitted by your counsel, the screenings undertaken on 24 April 2019 and 28 October 2019 did detect cannabis. I was informed by your counsel that when queried about these results, you could give no explanation as you assert that you were cannabis free over the period since Dr Taylor has commenced to treat you.
Matters relied on by your counsel in mitigation of sentence
38 Your counsel submitted that the following matters are relevant in mitigation of your sentence:
(a) your plea of guilty
The Court was informed that the matter resolved at a contested mention before any witnesses were called. Your counsel submitted that the plea of guilty “can still be viewed as an early plea in the circumstances”. Indeed, as I have already recorded, counsel for the prosecution accepted that such plea was an “early plea”, albeit not at the earliest opportunity. It was submitted that such a plea has utilitarian benefit in that it saved the time and cost of a trial and furthermore the plea of guilty demonstrates some remorse;
(b) prior record
As I have recorded, save for the Melbourne’s Children Court appearance when 17 years of age for cannabis possession and theft (for which no conviction was entered), you have had no involvement with a court and for present purposes I accept you come before the Court as essentially a person with no record;
(c) remorse generally
Your counsel submitted that beyond the plea of guilty which demonstrates remorse, remorse has also been demonstrated by your consideration of the effect of your offending on your family and others, as outlined in the various letters of support from family and friends;
(d) the circumstances of the commission of the offending
– it was submitted that you committed the current offences in the context of the resumption of a serious drug addiction and that you were primarily growing the marijuana for personal consumption, but also traded marijuana for heroin.
– your counsel submitted that although drug addiction is not normally mitigatory, there are a number of substantial exceptions to this rule, including addiction at a tender age, where the aphorism that “self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice” does not apply. Reference was made to McKee v Brookes (2003) 138 A Crim R 88 at paragraphs [12]-[13].
– it was submitted that you started smoking marijuana at 12 years of age and was smoking daily at 14, until the age of 26 years of age. Furthermore, you were exposed to your father’s drug use from a young age and your father introduced you to heroin at approximately 17 years of age.
– from the age of 26 for a period of more than 10 years, you were largely drug free.
– it was submitted that the resumption of your serious drug use and addiction occurred in the context of:
· Significant work injuries to your back and hands, including a disc protrusion and bilateral carpal tunnel issues.
· Being placed on a medication program for two years that included the daily prescription of OxyContin, which acts on the opioid receptors in the brain like heroin (that was during your period with Atticus Health).
Your then doctor ceasing the prescription of such opioids after a considerable time with no real transition plan in place.
· It was submitted that you resorted to marijuana, heroin and other illicit drugs to treat your medical conditions, both physical and mental, leading ultimately to the current offending.
· Your counsel stated, and I quote: “A golden thread runs through these facts that connects … [your] … work injuries to … [your] … current offending.
It was submitted that the report of Mr Cummins supports the Court making a finding that at the time of the offending and currently that you have a mental illness, namely, a depressive disorder due to another medical condition, and the other medical condition being chronic lower back pain, and that the symptoms and effects of your mental illness, including your own assessment of the wrongfulness of your offending, was most probably impaired.
Ultimately, it was submitted that if your drug addiction is a result of attempting to cope with a painful disease, which in turn had led to the commission of the offending and the Court is obliged to treat the drug situation as a mitigating factor (reference was made to R v Ketich (1977) CCA Vic (25-11-1977); R v Redenbach (1991) 52 A Crim R 195; R v Talbot (1992) 59 A Crim R 343). In such circumstances, the Court should make the finding and mitigate your sentence accordingly.
Furthermore, to the extent to which there is a causal connection between your mental illness (caused by your physical injuries) and your offending, it was submitted that the report of Mr Cummins supports the principles set out in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 at paragraph [22]. In particular, it was submitted that:
· Your condition reduces your moral culpability of your conduct as distinct from your legal responsibility. This in turn affects that punishment is just in all the circumstances as general deterrence and denunciation play lesser roles in meeting the sentencing objective.
· The condition may have a bearing on the kind of sentence that is imposed and the condition in which it is used to be served.
Furthermore, it was submitted that at paragraph [62] of the report of
Mr Cummins, he concludes:
· That you have a depressive disorder and that the outward effects of your mental health condition are negative ruminative thinking and a chronic sense of pessimism. Mr Cummins was of the view that such mental health disorder will be exacerbated by prison.
In the circumstances, at the date of sentence and for the duration of your prison term, your sentence will weigh more heavily on you than on a person of normal health and there is a “serious risk of imprisonment having a significant adverse side effect” on your mental health. In such circumstances and bearing in mind the principles enunciated in Verdins, any sentence the Court should otherwise impose should be mitigated for these two reasons;
(e) the burden of prison and confiscation proceedings
There is no issue that at the time of your offending you were living with your wife and three daughters at 4 Wedge Court, Seaford (“the property”), where the cannabis was grown. I refer to exhibit 9, which is the Property Title for the property and wherein both you and your wife are named as joint proprietors.
The State has obtained a restraining order under the Confiscation Act 1997 in respect of that property. Both you and your wife have made separate Exclusion Orders and by order of his Honour Judge Dyer, there is a Restraining Order preventing any person to dispose of or otherwise deal with the property until such time that you have been sentenced (see exhibit 8).
Your counsel submits that although the confiscation proceedings have not been finalised, the potential confiscation of the family home will make your time, if you are incarcerated in prison, more onerous.
The basis of that submission is that after you are imprisoned you will have the anguish and stress and knowing that your actions mean that:
· Your wife is going through civil proceedings and you are limited to be there to offer her comfort, continuing support and love.
· That your wife and children may become homeless in the near future.
· That the confiscation proceedings and their potential outcome are going to cause great upheaval for your wife and children.
Reference was made to R v McLeod [2007] VSCA 138 at paragraphs [24]-[28]. In support of the proposition that the Court can make an assessment of the likely effect of the Forfeiture Order upon, especially, the effect that the potential forfeiture of the house will have on your wife and three young children and this will make your time in custody more onerous;
(f) confiscation proceedings in relation to you
Your counsel submitted that in the normal course of you being convicted in relation to Charge 1 on the Indictment – cultivation of Cannabis L in a commercial quantity – the property where the cannabis was cultivated would be automatically forfeited to the State as Charge 1 on the Indictment is an automatic forfeiture offence (see s35 and Schedule 2 of the Confiscation Act 1997).
Because you and your wife each have separate Exclusion Order Applications under s20 of the Confiscation Act 1997 pending, the property is not automatically forfeited until the finalisation of those Exclusion Order Applications (see s35(1)(a) of the Confiscation Act 1997).
Section 5(2A)(a)(b) of the Sentencing Act 1991 says that a court may have regard to the effect of the automatic forfeiture of lawfully acquired property that was used in connection with the commission of an offence.
Your counsel accepted that the possible future forfeiture presents a particular difficulty in measuring the extra punishment, if any, that may flow from the future forfeiture. But it was submitted that it is proper, having assessed the likely effects of the forfeiture upon the offender, for a court to take future forfeiture into account (reference was made to R v McLeod (2007) 16 VR 662 at paragraph [21], R v Tabone [2006] VSCA 258 at paragraph [12]).
Ultimately it was submitted by your counsel on the basis of the very likely future forfeiture of your half-share of the family house, the Court can find that there has been extra punishment and mitigate any sentence appropriately;
(g) prospects of rehabilitation
Your counsel submitted that although you are still in the early stages of complete rehabilitation you have “good prospects” of rehabilitation. In particular, your counsel referred to the following:
– you have largely ceased drug use and, except for cannabis, you have not had any drugs since (bar prescribed medication), although, curiously, on the anniversary of your father’s death – on 14 April 2019 – you do smoke cannabis.
– you have a large number of letters of support (all of which I have read). Such letters indicate that you have a lot of people who want you to get well and also a large group of family and friends who stand by you to offer support.
– your current employer will keep a position open for you after any period of imprisonment.
– since undertaking a new medical regime, you have mended your relationship with your wife and have strong motivation to remain on a positive path.
– since your release, you have been seen by a drug and alcohol worker, Ms Eleanor Baptist, on nine occasions and also seen a counsellor/psychotherapist three times. You can be seen to be making appropriate efforts to address your addiction.
– both Mr Cummins and Dr Blombery note that treatment can address the rehabilitation of both the physical injuries and mental illness, but also both state that there is work for you to do to address the mental health illness connected to your physical injury.
– it does seem that the treatment and medication prescribed by
Dr Taylor is having a “positive effect”.
Subsequent events
39 During the course of the plea hearing on 24 January 2020, your counsel submitted that one or more of the exceptions set out in s5(2H) of the Sentencing Act 1991 apply and, accordingly, any sentence in relation to Charge 1 on the Indictment is not constrained by s5(2H) of the Sentencing Act 1991.
40 On 24 January 2020, I directed that the parties make written submissions as to the application of s5(2H) of the Sentencing Act 1991. The parties also agreed it would be appropriate to have Mr Cummins attend Court to give further evidence said to be relevant to the resolution of this issue and to be cross-examined on the basis of his report and any further evidence that he gave.
41 Subsequently, your counsel tendered a document dated 21 February 2020, headed “Submission on s5(2H) of the Sentencing Act 1991”. I will have that document marked as exhibit 22. Similarly, counsel for the prosecution tendered a document dated 3 March 2020, headed “Prosecution Submissions on s5(2H) of the Sentencing Act 1991” and I will have that document marked as exhibit 2.
42 Also, at a later time, your counsel provided a further document dated 1 April 2020, headed “Submissions on the COVID-19 Pandemic”, which I direct be tendered and marked as exhibit 23. In response to such document, counsel for the prosecution provided a document dated 6 April 2020, headed “Prosecution Submissions on COVID-19 Pandemic” and I will have that document tendered and marked as exhibit 3.
43 Some of the submissions relating to the COVID-19 Pandemic also impact on the operation of s5(2H) of the Sentencing Act 1991 and I will deal with both issues together.
44 There is no issue that the charge of cultivation of a narcotic plant in a commercial quantity (in this case Cannabis L) is a Category 2 offence, as defined in s3(1) of the Sentencing Act 1991. Furthermore, s5(2H) was introduced to the Sentencing Act 1991 by the Sentencing (Community Correction Order) and other Acts Amendment Act 2016 and came into operation on 20 March 2017 and applies to offences committed after that date.
45 I refer to the provisions which I set out, and with the agreement of the counsel, I will not read, which I have printed here. It is sub-sections 2H, 2H(a), 2H(b), 2H(c), 2L and 2J. So that is printed out in full.
“(2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
(a) the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or
(b)…
(c) the offender proves on the balance of probabilities that—
(i) subject to subsection (2HA), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender's culpability; or
(ii)the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
(d) the court proposes to make a Court Secure Treatment Order or a residential treatment order in respect of the offender; or
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
(2HA) Subsection (2H)(c)(i) does not apply to impaired mental functioning caused solely by self-induced intoxication.
(2HB) In subsections (2GA), (2GC), (2H) and (2HA)—
‘impaired mental functioning’ has the same meaning as in section 10A;
‘self-induced intoxication’ has the same meaning as in section 322T(5) and (6) of the Crimes Act 1958 .
(2HC) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i) the offender's previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
(2I) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a) the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
(2J)In sentencing a young offender aged 16 years or more but under 18 years at the time of the commission of an indictable offence, the Supreme Court or the County Court must have regard to any requirement in this Act that a specified minimum non-parole period of imprisonment be fixed or a specified minimum term of imprisonment be imposed, had the offence been committed by an adult.
… .”
46 It is to be noted that ss(2HB) states that the words “impaired mental functioning”, as used in ss(2H) have the same meaning as in s10A of the Sentencing Act 1991. Section 10A states, in part:
“impaired mental functioning means—
(a) a mental illness within the meaning of the Mental Health Act 2014; or
(b) …
(c) …
(d) …
(e) a neurological impairment, including but not limited to dementia;
… .”
47 Both parties noted that s5(2H) has not been the subject of any Court of Appeal authority, although the subsection has been considered and applied in the following County Court cases relating to the cultivation of cannabis:
(a)DPP v Huong Tran [2019] VCC 569 – per her Honour Judge Wilmoth, who found that the exceptions in 5(2H) do not apply;
(b)DPP v Alexiadis [2019] VCC 1807 – per his Honour Judge Georgiou, who found that the exception in s5(2H)(c)(i) did not apply, but that the exception in s5(2H)(c)(ii) did apply;
(c)DPP v Ly [2018] VCC 1579 – per her Honour Judge Cohen, who found that the exception in s5(2H)(c)(i) did not apply, but that s5(2H)(c)(ii) did apply;
(d)DPP v Cole [2018] VCC 1788 – per her Honour Judge Morrish, who found that the exception in s5(2H)(e) did apply.
48 I do refer to the Court of Appeal decision of Director of Public Prosecutions (DPP) v Hudgson [2016] VSCA 254 (“Hudgson”), wherein the Court of Appeal (consisting of Weinberg, Whelan, Priest JJA) considered the operation of s10(1) and s10A of the Sentencing Act 1991. Section 10(1) of the Sentencing Act 1991 provides that a court must impose:
“… a term of imprisonment and fix under section 11 a non-parole period of not less than 4 years unless the court finds under section 10A that a special reason exists”
…”
(Emphasis added.)
49 Section 10A of the Sentencing Act 1991 states relevantly - and again, this is with agreement of counsel, I will not read what I have dictated there, but I have included 10(2), 2A, 2B, ss3, and that is all:
“…
10(2) For the purposes of section …10 … a court may make a finding that a special reason exists if—
(a)…
…
(c)the offender proves on the balance of probabilities that—
(i) subject to subsection (2A), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender’s culpability; or
(ii)he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
(d) …
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.
(2A)Subsection (2)(c)(i) does not apply to impaired mental functioning caused solely by self-induced intoxication.
(2B)In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court—
(a)must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c)must not have regard to—
(i) the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
(3)In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court must have regard to—
(aa) the Parliament’s intention that a sentence of imprisonment should ordinarily be imposed and that a non-parole period of not less than 10 years should ordinarily be fixed for an offence of manslaughter in circumstances in which section 9B(2) or 9C(2) applies; and
(a) the Parliament’s intention that a sentence of imprisonment should ordinarily be imposed for an offence covered by section 10(1) or, subject to section 10AA(2), for an offence covered by section 10AA(1) and that a non-parole period of not less than the length specified in section 10(1) or 10AA(1) (as the case requires) should ordinarily be fixed in respect of that sentence; and
(ab) the Parliament’s intention that a sentence of imprisonment should ordinarily be imposed for an offence covered by section 10AA(4); and
(ac) the Parliament’s intention that a sentence of imprisonment of not less than 12 months should ordinarily be imposed for an offence covered by section 10AB; and
(ad) the Parliament’s intention that a sentence of imprisonment should ordinarily be imposed and that a non-parole period of not less than 3 years should ordinarily be fixed for an offence covered by section 10AC; and
(ae) the Parliament’s intention that a sentence of imprisonment should ordinarily be imposed and that a non-parole period of not less than 3 years should ordinarily be fixed for an offence covered by section 10AD; and
(a) the Parliament’s intention that a sentence of imprisonment should ordinarily be imposed and that a non-parole period of not less than 2 years should ordinarily be fixed for an offence covered by section 10AE; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non-parole period.
(4) …
(5) … .”
50 When the court in Hudgson (op cit) considered s10A of the Sentencing Act 1991, s10A(2)(e) was limited to the words “there are substantial and compelling circumstances that justify doing so”. It was only later that s10A(2)(e) was amended by inserting the words “that are exceptional and rare and” after the words “circumstances”.
51 At paragraph [108] of Hudgson, the Court of Appeal stated:
“Among the matters raised in argument were the meaning of the term
‘a special reason’, as set out in section 10A(2). The Director submitted that, when read in context, ‘a special reason’ meant a reason that was even more powerful than would be the case if Parliament had chosen to require ‘exceptional circumstances’ as the condition for escaping the operation of s10(1).”
52 Further, at paragraphs [111] to [116] the Court of Appeal stated:
“It must be said that it is difficult, in some ways, to reconcile some of the statements made in the Second Reading Speech, as well as in the Explanatory Memorandum, with the structure and text of the various legislative provisions presently under consideration. However, in our view one thing is clear. It was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s 10 should be a heavy one, and not capable of being lightly discharged.
More specifically, we accept the Director’s submission that the word ‘compelling’ connotes powerful circumstances of a kind wholly outside what might be described as ‘run of the mill’ factors, typically present in offending of this kind.
As regards the first limb of her Honour’s analysis regarding a ‘special reason’, namely impaired mental functioning, it is sufficient for us to observe that Dr Cunningham’s report fell well short, in our view, of establishing that there existed such a condition on the part of the respondent. The report cannot properly be read as demonstrating the existence, at the time of the commission of this offence, of a ‘medical condition’ of the type described in s 4 of the Mental Health Act.
The respondent bore the onus of proof regarding that issue. It was incumbent upon him to establish affirmatively, on the basis of adequate evidence, that such impaired functioning existed, not merely at some indeterminate stage in the past, but at the time of the commission of this offence. It is not sufficient to require a sentencing judge to search for implications of that kind in a report. The evidence must be clear and convincing. Having read the report carefully, we are not persuaded that the respondent suffered from a condition of the kind that would justify the finding, under this particular limb of s 10A, of ‘a special reason’.
In addition, the various matters upon which the respondent relied as giving rise to ‘substantial and compelling circumstances’, and which her Honour found to meet that description, fall well short, in our view, of doing so. There is nothing ‘compelling’ about them in the sense required. Nor can it be said that they are ‘rare’, or ‘unforeseen’ in cases of this type.
It follows that no ‘special reason’ of the kind required to avoid the consequences of s 10 has been demonstrated. It also follows that any sentence that this Court now imposes, as a result of allowing this appeal, must involve a non-parole period of at least four years.” (see paragraphs 111-116)
53 Your counsel relies on the exceptions created by s5(2H)(c)(i) and/or (c)(ii) and/or (e). Counsel for the prosecution submitted that none of the exceptions have any application in the circumstances of this matter.
54
On 12 February 2020, the consultant clinical and forensic psychologist,
Mr Cummins, gave evidence before the Court in addition to that contained in his report dated 13 December 2019 (exhibit 7). In particular, much of his evidence-in-chief flowed from his opinions contained in paragraphs [62] and [63] of that report.
55 During evidence-in-chief, Mr Cummins accepted that when you were examined by him, you had a constellation of factors of physical injury, mental health and a past childhood history of drug addiction, and that at the time of your offending, he did not believe that it was possible in any definitive sense to separate out the role that each of those different factors played in your behaviour.
56
When queried about whether those factors played a role in your offending,
Mr Cummins answered:
“I believe, so, yes, it is my opinion that he had a genuine organic pain disorder or pain syndrome and that in - or as a secondary condition he developed a depressive disorder, ah, in response to that organic pain syndrome and that all occurred against a background of polysubstance use, including usage and, in my opinion, dependency on some illicit drugs and a dependency on some prescription medications.” (see Transcript (“T)3, Lines (“L”)16-23)
57 When queried further as to whether there was a “connection between his mental health” and the offending behaviour – that is, the cultivation of the cannabis, Mr Cummins answered, and I quote:
“Again, in this situation I believe I could form some nexus and I expressed an opinion about that. In my opinion at the time of offending he was self-medicating, ah, and he was self-medicating in relation to symptoms of depression and pain which had been exacerbated as a result of him being, ah, taken off the prescription analgesia.”
(See generally T2,L28-T4, L3)
58 When further queried whether the term “nexus” indicates some sort of causal link between your mental health and the offending, Mr Cummins stated:
“Yes, well, that's what I was referring to, ah, I think rather conservatively and carefully in paragraph 63 where I say there was most probably impaired, ah, as a result of him suffering from a depressive disorder, coupled with his polysubstance use and his intermittent abuse of oxycontin.” (See T4, L10-15)
59 When pressed as to more specific details of that causal link, Mr Cummins stated:
“
Well, in this instance I thought that was, realistically, that was as far as
I was prepared to take it.” (see T4, L20-22)
60 Mr Cummins was then queried whether he had any opinion in relation to your “moral culpability”. Mr Cummins replied:
“… that is an issue which we are required to address and, in my opinion, that's in effect what I am alluding to there in paragraph 63. But in my opinion I did not regard this as a situation where there was, in my terms, an indisputable nexus but I felt that essentially on the balance of probability there was most probably a nexus and, um, Mr Jones himself said to me that his primary reason for cultivating the cannabis was for his own use and ultimately with the goal of extracting, um, cannabis oil to be used for pain management.” (see T4, L27-T5, L6)
61
Mr Cummins informed the Court that you formed or developed a specific depressive disorder in response to suffering from an Organic Pain Syndrome. When queried about the symptoms of this disorder, Mr Cummins referred to his report where he speaks of your “ruminative thinking and chronic sense of pessimism” if and when you are incarcerated. Mr Cummins was asked to elucidate what he meant about that statement in his report, to which
Mr Cummins responded:
“Well, over an extended time, he has been, in my opinion, self-medicating with a multitude of substances. And if and when he is incarcerated, obviously, he will be very restricted indeed in terms of what he is administered. Which, in my opinion, will lead to an exacerbation of his mental health problems. He's currently on an extensive pain management plan which includes a regime of pain management medication.” (See T5, L23-31)
62 Your counsel also asked Mr Cummins about how the burden of imprisonment would affect you and, in particular, the severity of that effect. Mr Cummins stated:
“What I can say is, I'm aware he has three young daughters. Ah, in my opinion, that adds to the onerous nature of spending time in custody. It is also my understanding based upon what he indicated at interview that he was, ah, committed to undergoing urine analysis. I believe he has continued to undergo urine analysis, and when he saw me, he stated he was off illicit drugs. I understand in conversations prior to coming into court this morning that there will have been some indications that he has dabbled in using some cannabis recently. In my view, even allowing for that, if the urine analysis results have been clear for other drugs,
I regard that as him having made a very serious attempt and effort at rehabilitating himself, and if he's incarcerated, then he will be back in an environment where, sadly, illicit drugs are readily available.” (see T8, L28-T9, L13)
63
When queried by the Court as to whether or not the issues raised by
Mr Cummins were principles established by Verdins (op cit) – that is to say, incarceration, if there were to be incarceration, would be more difficult for you, being a person who suffers from a psychological condition, compared to that of a prisoner who does not, and the prospect that that psychological condition would be exacerbated if imprisoned, to which Mr Cummins accepted that was the case. When pressed as to why, he goes further in relation to those two matters, Mr Cummins gave evidence:
Q: “…
A:Well Your Honour, I’d go a little further in that I say, in my opinion, he has shown himself as capable of taking - in my view, significant steps towards rehabilitation.
Q:And again, and if I accept that, that will be reflected in the sentence too. But is the point you’re making that there - you know, here he is, as you would have it, striving for rehabilitation, and then confronted with prison, think ‘Well, what have I being doing all this for? Here I am, I am in prison’?. Is that the sort of point you’re making?---
A:Yes, it is, Your Honour. Yes, and I make that point against a background where, in my opinion, he does have a genuine depressive disorder which - it was relevantly independent to his illicit drug use.” (see T10, L8-22)
64 When your counsel queried Mr Cummins as to whether the negative ruminative thinking that he considered you were suffering, together with your chronic sense of pessimism, would be quite different from a normal person in custody being sad they are in custody, Mr Cummins answered:
Q: “…
A:They are symptoms which I diagnosed as part of his depressive disorder and for a percentage of people who are incarcerated and are diagnosed with depression, they would identify those symptoms or they would display those symptoms, in my opinion, for this man he displays them at a higher level - at a higher magnitude.
Q:So it’s a high level from the general populous but also a higher level from other prisoners who have depressive disorders?---
A: Yes.” (See T11, L4-13)
65
Mr Cummins went on to say that the main reason is that your depressive disorder relates to the Organic Pain Syndrome, whereas many people that
Mr Cummins sees in a similar situation the depressive disorder is relatable slowly to their drug use and their drug-using lifestyle. Furthermore, when queried as to the extent of any exacerbation of your mental condition if incarcerated, Mr Cummins expressed the opinion that “ultimately it's unknown but I would say significantly so because of the attempts he's made at rehabilitating himself”. (See T11, L24-26).
66 Under cross-examination, Mr Cummins accepted that at the time of his interview with you he had diagnosed you with a depressive disorder (see paragraph [62] of his report). When queried whether or not this was a moderate depression that you were suffering, Mr Cummins replied that he did not know whether he actually spelt that out, but to him you presented as being “moderately depressed”.
67
Mr Cummins was taken to paragraph [51] of his report, where he describes you as being “mildly anxious and moderately depressed”, to which
Mr Cummins stated he did not actually qualify the actual depressive disorder which he diagnosed, however, he went on to say that it was possible to qualify that, and to adopt his words “sitting here now”, he would say that you suffer somewhere between “moderate and severe depression”.
68 Mr Cummins accepted that you have had a lengthy history of depression on and off over at least approximately ten years. He also accepted that you had been prescribed Cymbalta – an antidepressant – in November 2018.
69 Mr Cummins confirmed, on his clinical examination of you, that he was of the opinion that you were suffering from a depressive disorder at the time of your offending. Mr Cummins also expressed the opinion that at the time of your offending, you would have been experiencing a disturbance in your mood and that would have been a significant disturbance. Notwithstanding these conditions, Mr Cummins seemingly accepted that you would have been capable of running your cannabis enterprise, swapping cannabis with other people and doing various activities of daily living.
70 When queried by the Court in relation to the opinion of Mr Cummins that there was some causal relationship between your psychological condition and your offending, he accepted it as being “correct” that it is difficult to proffer an opinion as to the extent of that causal relationship (see T18, L14-21).
71 Mr Cummins also stated in cross-examination that you knew well what you were doing was illegal in relation to the cultivation of the cannabis.
72 Mr Cummins also accepted under cross-examination that you may be able to be managed to some degree through a medication regime in prison, which would limit any exacerbation of your symptoms – but Mr Cummins also suggested that, in his experience, the chances of you being offered any ongoing mental health treatment would be close to infinitesimal.
Whether one or more of the “exceptions” apply?
73 Your counsel submitted that the exception set out in s5(2H)(c)(i)) has application given the evidence of Mr Cummins, as set out in both his initial report and later oral evidence. In particular, your counsel highlighted:
·
That your physical injuries and your impaired mental functioning are so intertwined that you cannot separate out the effect of the physical versus the mental in relation to your offending behaviour. However,
Mr Cummins expressed the opinion that your mental health was causally linked to the offending behaviour.
·In this respect the evidence of Mr Cummins was that just because the offending would appear to be self-medicating for physical pain, you cannot dismiss the role of an impaired mental functioning played:
– it was submitted that there is a proper basis to find that you have discharged your onus in establishing the necessary causal link
– it was further submitted that because you cannot separate out the separate roles of physical and mental functioning in your case, your reduction of moral culpability needs to be assessed against the background of your injury being “cut off” from opiate prescription and your descent into drug use to self-medicate pain and mental health issues
– it was submitted, to have such a particular “patient history” as you, would be unusual for an offender committing the subject offence and there would be a proper basis for the Court to find a substantial reduction in moral culpability.
74 Counsel for the prosecution denied that such exception applied. In response to the submissions made by your counsel, she submitted:
·That for s5(2H)(c)(i) to apply, the Court must be satisfied on the balance of probabilities that at the time of the commission of the offence you had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces your culpability.
·The term “impaired mental functioning” is defined in s10A of the Sentencing Act 1991 to include a mental illness within the meaning of the Mental Health Act 2014. Section 4 of the Mental Health Act 2014 defines a mental illness as “a medical condition that is characterised by significant disturbance of thought, mood, perception or memory”.
Counsel for the prosecution submitted that on the basis of the evidence of Mr Cummins that the Court can accept that at the time of your offending you were suffering from a depressive disorder (reference was made to the report of Mr Cummins dated 13 December 2019 at paragraph [62]). Furthermore, Mr Cummins gave evidence that in his opinion your mood and thoughts were “significantly disturbed”. In such circumstances, the prosecution accepted that you suffered from a depressive disorder within the definition of “impaired mental functioning”.
·In relation to the issue of causation, counsel for the prosecution notes the opinion of Mr Cummins was “assessment of the wrongfulness of his offending - at the time of cultivating the cannabis - was most probably impaired as a result of him suffering from a depressive disorder, coupled with his poly-substance use and his intermittent abuse of OxyContin” (again, reference was made to the report of Mr Cummins at paragraph [63]).
·However, during the course of his oral evidence, Mr Cummins stated that he referred to the nexus conservatively and carefully at paragraph [63] of his report, stating “that was realistically, as far as I was prepared to take it” (T4, L16-22).
·He also stated that in his opinion he did not regard this as a case where there was, in his terms, an “indisputable nexus” (T4, L23-31 and T5, L1-6) and that he either could not, or it would be difficult to proffer an opinion, as to the extent of that causal relationship (T18, L14-21).
·It was submitted that the evidence of a causal relationship must be “clear and convincing”. Reference was made to Hudgson (op cit at paragraph [114]). In all the circumstances, it was submitted that the evidence of Mr Cummins does not clearly establish a direct causal connection between your depressive disorder and the offending.
·
In relation to the issue of substantially reducing your culpability, it was submitted by counsel for the prosecution that even if a causal connection between your depressive disorder and the offending can be established, the impairment of mental function must “substantially, reduce your culpability”. In particular, it was submitted the effect of a mental impairment on an offender’s moral culpability is always a matter of degree. Moral culpability may only be reduced to a limited extent where an offender is fully aware of the nature and gravity of what they were doing and that their conduct was wrong. Reference was made to Pato v R [2011] VSCA 223 at paragraph [28], wherein it is said, and
I quote:
“… In my view it was a matter for the judge to determine the appellant’s moral culpability. Accepting that the appellant was suffering from severe depression, alcoholism and anger management problems at the time of the offending, his moral culpability should be regarded as less than that of a hypothetical person without those disadvantages who offended in a similar way. That said, the appellant was plainly aware that what he did was wrong, hence his moral culpability was still high and there was still ample scope for denunciation of his conduct.”
·Planning and management of the offending are also indicative of such knowledge. Reference was made to DM v R [2012] VSCA 227 and in particular to paragraphs [30]-[32], wherein the Court of Appeal (consisting of Neave, Osborn JJA and King AJA) stated that:
“The offending in this matter was not a one-off offence.
The appellant offended on a number of occasions, thus providing him with the opportunity to reflect on his conduct and its likely impact on this daughter. He contrived to provide false explanations and information to demonstrate to his 14-year-old daughter that what he was doing was acceptable and the normal behaviour of a loving parent. This clearly demonstrates his knowledge of the wrongfulness of his actions. When apprehended, he was aware of the criminality of his conduct and he has expressed significant remorse and referred to his shame at treating his child in this manner. It is clear that he is, and was, fully cognisant of the wrongfulness of his actions and the moral culpability of his offending.”
In Sikaloski v The Queen, this Court said that ongoing planning and management are relevant in determinating the application of Verdins. Further, the Court stated that:
‘It is trite to say that the burden of establishing a causal link between the offending and any mental condition rests squarely on the defence. Having considered any medical evidence presented by the defence, a trial judge may be entitled to conclude that the offender’s mental condition did not sufficiently contribute to the offending such as to warrant any mitigation of the sentence otherwise appropriate.’
Moreover, even if it were accepted that the appellant’s depression played some minor part in his offending , I do not consider that having regard to all relevant sentencing factors, any different sentence should be passed.”
(Footnotes omitted.)
·Ultimately, counsel for the prosecution submitted that while your depressive disorder may reduce your culpability to a limited extent, it was submitted that the Court cannot find on the balance of probabilities that it “substantially” reduced your moral culpability for the following reasons:
– you were aware that cultivating cannabis was illegal and that your conduct was wrong (T19, L7-8)
– you made a conscious and rational choice to cultivate cannabis (reference was made to DPP v Alexiadis [2019] VCC 1807)
– the offending was protracted
– you cultivated cannabis for a number of months, demonstrating ability to plan and manage the crop
– you are the principal offender and performed all aspects of cultivation alone
– the set up was extensive and reasonably sophisticated, including seven separate growing spaces with other areas predominantly set up hydroponically.
119 On leaving school, you worked with your father as a housepainter in Queensland, but frequently travelled back to Melbourne, where you had an on-again-off-again relationship with a woman called Sarah, and you continued to work as a housepainter. You obtained a lot of work in Melbourne as a housepainter and established “Keane Jones Painting”, which was based in Melbourne.
120 You had to cease work approximately five years ago because of chronic pain, but have worked intermittently since then. In particular, since your arrest on 22 March, you have done some limited work for about three weeks as a spray painter.
121 You told Mr Cummins that you commenced smoking cannabis when living with your father, at the age of 17, and ceased smoking cannabis around the age of 26. However, as a result of your ongoing back pain, you resumed smoking cannabis approximately five to seven years ago, and for a number of years was smoking up to 1 ounce of cannabis per week and for the years prior to your arrest on 22 March, you were using up to 1 ounce of cannabis daily.
122 Furthermore, you were introduced to heroin and OxyContin when living with your father at the age of 17, and between the age of 17 and 26 you were a frequent abuser of OxyContin and a frequent and often daily smoker of heroin. You assert that you have never used any drug intravenously.
123 In particular, consistent with the medical records tendered from Atticus Health (see exhibit 6), you initially consulted Dr Falahtafti on 21 December 2015 and shortly thereafter was prescribed, for your ongoing lower back pain and bilateral arm pain (in relation to Carpal Tunnel Syndrome), a variety of medications, in particular, constantly Targin, a derivative of Oxycodone, but also frequently Mobic, Endep and on occasion Panadol Osteo. This continued until late 2018, when Dr Falahtafti ceased prescribing Targin and Endep. When you attended at the Atticus Clinic on 22 November 2018 it was noted that your pain and depression had become worse since the cessation of the opiate drugs and that you had been unable to work for the last four months.
124 It was recorded, that you were smoking cannabis again and “has been abusing drugs to help with his back pain”. Although you were referred to by Dr Falahtafti to a Dr Bruce Shirazi for opinion and management of your chronic lower back pain, you did not attend because of financial pressure.
125 You initially attended your current general practitioner, Dr Andrew Taylor, in 2019, and he notes that the reason for your attendance was to seek help to cease your cannabis use and to control other poly-substance (cannabis and opiates) dependence.
126 You informed Dr Taylor that you had treated your back pain with cannabis and later on Codeine, and in the past had used other opiates, both prescription and black market drugs, and heroin.
127
Dr Peter Blombery examined you in late 2019 (see exhibit 2). In his report,
Dr Blombery states in part:
“Mr Jones was prescribed Targin to try to control his pain. There would be a high likelihood of him becoming dependent on that drug because of his family history, although not markedly so. Unfortunately, there were few other alternatives available and the problem that occurred is that Targin was ceased without any plan for a replacement medication, resulting in him resorting to illicit drugs.”
128
You have asserted in various histories to doctors that the use of cannabis leading up to your offending was essentially for pain relief and you hoped that you could develop cannabis oil to also assist you. Furthermore, insofar as trafficking cannabis, you have informed Dr Blombery and more particularly
Mr Cummins that you had traded cannabis for other drugs, such as Seroquel, methylamphetamine and heroin.
129 I am satisfied as a matter of probability that you have had longstanding lower back pain in particular, and to a lesser extent, bilateral pain in your arms. Furthermore, I also accept that you were treated with a particularly heavy dose of opiate-type drugs at Atticus Health, which was abruptly ended, causing you to search out drugs to relieve your pain. I do accept that the development of your cannabis crop was essentially for personal use to alleviate pain – particularly back pain – but also, to some extent, to permit amounts of trafficking of cannabis on a small scale to obtain other drugs to assist in your health.
130 There is no evidence that you entered into the cultivation of cannabis for profit and no evidence to suggest that you were involved in large-scale trafficking of the drug. Accordingly, although I consider that the offending in relation to the cultivation of cannabis is objectively of a serious nature, I accept that your moral culpability is reduced because of the need of the drug for personal pain relief. Such a finding impacts on the length of sentence which I am going to ultimately order.
131 In mitigation of your offending I also take account of the following matters:
(a)I accept that your plea of guilty, although not at the earliest opportunity, was an “early plea”, consistent with the submission of the prosecution. I accept that the plea does have utilitarian effect of saving the time and cost of a trial, as is made clear in R v Phillips [2012] VSCA 140 at paragraph [36].
132 It is always a question for the sentencing judge whether remorse or willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (see again Phillips v R (op cit) at paragraph [96]. I do accept, in the circumstances of this matter, that your pleas of guilty in all the circumstances do demonstrate some willingness to facilitate the course of justice and acceptance of responsibility, notwithstanding when the plea was made;
(b)as I have recorded, save for the Melbourne Children’s Court appearance when 17 years of age for cannabis possession and theft (for which no conviction was entered), you have had no involvement with the court and for present purposes I accept you come before this Court as essentially a person with no record;
(c)your counsel submitted that beyond the plea of guilty which demonstrates remorse, remorse has also been demonstrated by your consideration of the effect of your offending on your family and others, as outlined in the various letters of support from family and friends.
I accept such letters of support from Ms Kayla Cartledge, Ms Hailey Mills, Ms Deborah Mellett, Ms Catherine Nelsson and Mr Rob Cartledge, amongst others, do note that you have been remorseful and saddened by your actions. I do accept that you have demonstrated remorse in respect of your offending;
(d)your counsel submitted you committed the current offences in the context of the resumption of a serious drug addiction and you were primarily growing the cannabis for personal consumption, but also traded cannabis for other drugs.
133 Your counsel submitted, correctly in my view, that although drug addiction is not normally mitigatory, there are a number of exceptions to this rule, including addiction at a tender age with the aphorism that “self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice” does not apply. Your counsel submitted that on the basis of the authorities such as Bugmy (op cit) and McKee (op cit) your drug addiction can be seen as a mitigating factor in your offending.
134 Although I accept that the circumstances of your upbringing were not ideal and you were exposed to drugs at a tender age, I consider that the hardships encountered during that time are far less severe than those described in the well-known case of Bugmy (op cit). Furthermore, although there was an early introduction by you to drug use, that has not been a continuing situation, as your counsel freely conceded that from the age of 26, for a period of approximately 10 years you were largely drug free, and as a mature adult you then resumed your drug habit and became addicted. In the circumstances of this matter, I do not consider that your drug addiction per se is a mitigating factor.
135 Furthermore, although I accept that you have suffered a depressive disorder for many years and that such depressive disorder is intertwined with your organic conditions (particularly your lower back pain), I do not accept that any impaired mental functioning was a cause of your particular offending. I refer to the Court of Appeal decision of Director of Public Prosecutions (DPP) (Vic) v O’Neill [2015] VSCA 325, wherein the Court of Appeal (consisting of Warren CJ, Redlich and Kaye JJA) stated at paragraph [59], and I quote:
“Clearly, there must be an established evidentiary basis for moderating the principles of general deterrence in a particular case. For that to occur, it is not sufficient that the offender suffer from a particular mental impairment. There must be proper, and informed, consideration of how that impairment might have materially diminished the capacity of the offender to reason appropriately at the time of the offence concerning the wrongfulness of his or her offending, or of how the offender’s condition might make the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing.”
136 Considering the available evidence on this particular issue, I am not satisfied that the evidence establishes a proper and informed consideration of how any mental impairment may have diminished your capacity to reason appropriately at the time of the offence occurring;
(e)However, I do accept Principles 5 and 6 as set out in Verdins (op cit) at paragraph [32] are applicable. By this, I do accept that your depressive state may mean that a given sentence will weigh more heavily on you than it would on a person of normal health and, further, that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
137 I accept that both these factors are mitigating matters;
(f)on the evidence before me, your residential premises situated at
4 Wedge Court, Seaford, where the cannabis was grown, is the subject of a restraining order under the Confiscation Act 1997.
I also accept that both you and your wife have made separate exclusion orders which have been effectively stayed by his Honour Judge Dyer until such time after you have been sentenced.
I accept that the almost certain confiscation in relation to your half of the property will occur, and that it constitutes additional punishment and should be taken account in determining an appropriate sentence. Furthermore, I also accept the hardship you will have to bear in prison that your wife will have to go through civil proceedings in order to keep her half share of the property, with the potential that your wife and children may become homeless in the near future. This is also a matter that I take into account.
(g)your counsel submitted that although you are still in the early stages of complete rehabilitation, you have “good prospects of rehabilitation”.
In particular, he referred to the following:
(i)you have largely ceased drug use and except for cannabis use you have not had any drugs since (bar prescribed medication), although, curiously, on the anniversary of your father’s death, you do smoke cannabis. I do note that the urine screenings which has been undertaken does reveal that on two occasions cannabis was recorded, for which you have no explanation;
(ii)you have a large number of letters of support (which I have read) indicating that a lot of people want you to get well and a large group of family and friends who will stand by you to offer support;
(iii)your current employer will keep a position open for you after any period of imprisonment;
(iv)undertaking the new medical regime with your general practitioner, Dr Taylor, you have improved your relationship with your wife and have strong motivation to remain on a positive path;
(v) since your release after a small period of time in prison, you have been seen by a drug and alcohol worker,
Mrs Eleanor Baptist, on nine occasions, and also seen a counsellor/psychotherapist three times. Such represents appropriate efforts to address your addiction;
(vi)both Mr Cummins and Dr Blombery note that treatment can address the rehabilitation of both the physical illness and mental illness, but I also note that there is work for you to do to address the mental-health issues connected to your physical injury;
(vii)that the treatment and medication prescribed by Dr Miller is having a “positive effect”.
138
I consider it is very much early days in your rehabilitation, although
I accept you seemingly are making genuine efforts to get off drugs – particularly cannabis, and your attendances on both Dr Taylor, your treating general practitioner, and your attendance on the drug and alcohol worker, Ms Eleanor Baptist, are all positive signs of your efforts.
139 Although, as I have noted, exhibit 5, which are the drug screens undertaken by you, do detect cannabis in relation to the tests undertaken on 24 April 2019 and 28 October 2019. You can give no explanation for such a finding, but it does raise the question of whether you have completely ceased cannabis, as you assert. I do accept that your various referees are very supportive of you and are confident, given your remorse in relation to your offending, you can overcome your drug problems. I would consider your prospects of rehabilitation to be “guarded” at this point;
(h)I note that submissions were subsequently made by both counsel in relation to the impact, if any, in relation to the COVID-19 Pandemic. Both counsel support that the Pandemic is a relevant matter to be taken into account, adding to the burden of any period of imprisonment. I do accept that the COVID-19 Pandemic has relevance to your sentence.
140
To date, the Court of Appeal has been hesitant to express a general statement of principle in relation to sentencing practices. I refer to R v Brown(aka Davis) [2020] VSCA 60, a decision of Priest and Weinberg JJA on
23 March 2020; R v Sazimanoska [2020] VSCA 66, again a decision of Weinberg and Priest JJA, delivered on 26 March 2020 and R v Nguyen [2020] VSCA 76, a decision of Niall JA and Croucher AJA, dated 1 April 2020.
In particular, the court in Brown (op cit) at paragraph [48] stated:
“With regard to the COVID-19 pandemic, and the submission put forward on behalf of the applicant in that regard, we readily acknowledge that this is a matter that is certain to come before this Court again in the immediate future. In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.”
141 As noted by the Court of Appeal, it is difficult to make a statement of principle, as information continues to evolve, and it cannot be deemed how precisely Corrections will react to that changing situation. Of course, one must not speculate, but in general terms, I do take account of the following:
(a)the treating report from the treating practitioner, Dr Taylor, dated
12 November 2019, notes the recent prescription of an inhaler because of “wheezing/bronchitis”, in other words, a lung condition;
(b)the letter of support from your wife sets out the very close family relationship, together with other letters of support from family showing your close relationship with your brother and mother, bearing in mind that as a result of the COVID-19 Pandemic, Corrections Victoria have made relevant policy announcements of:
(i) 14 days of quarantine on arrival; and
(ii) banning all visits to the prison.
142 In particular, your counsel submits that the Corrections Victoria website makes clear that the quarantine period will consist of 24 hours of lockdown in a single cell.
143 I also refer to the case of DPP v Morey (op cit), in which Judge Lyon accepted that the advent of the virus on the prison community does play some part in mitigating a sentence. I also note generally, that in a prison population, social distancing will be so much harder, and indeed, the limitations already in place or visitation rights for any particular prisoner (as noted by Judge Lyon). In all the circumstances, I consider that the hardship that you will experience as a result of the COVID-19 Pandemic, if imprisoned, and bearing in mind the matters I have taken into account, is a factor to be taken into account in mitigation of your sentence.
Your sentence
144 As I have made clear, I do not consider the so-called “exceptions” to s5(2H) are applicable in relation to the first charge on the Indictment. In such circumstances, I am obliged to sentence you to a period of imprisonment.
145 I am conscious that in Nguyen v R [2016] VSCA 198, the Court of Appeal makes clear that sentencing practices in relation to offences of cultivating a narcotic plant in not less than a commercial quantity should be increased, particularly the mid-level offences which, of course, would lead to an increase in the more significant examples of that offence.
146
Furthermore, that decision spoke about two clusters of different offenders – one being the type of offender which can be characterised as someone akin to a crop sitter, and the second more serious cluster involving people who have more important roles in the cultivation of cannabis.
For present purposes, bearing in mind that the crop of cannabis was your own venture, you are more appropriately defined within the second cluster of offenders.
147 That decision also sets out details of a number of cases, as indeed does the subsequent Nguyen decision – Nugyen v R [2017] VSCA 286. Although these cases provide some assistance in ascertaining current sentencing practices, such practices are simply one matter for consideration in the sentencing synthesis.
148 As I have made clear earlier in these reasons, I consider that your cultivation of cannabis was essentially for your self-use to help alleviate the chronic lower back pain you had been suffering for many years after the abrupt ending of your regime of prescribed medication, particularly involving Targin. Also, so far as the trafficking offence is concerned, I consider this is not the most serious form of trafficking, given the limited period over which it occurred and the reason why it occurred, that is to say, exchanging cannabis for other drugs to help relieve the pain.
149 In a similar way, the drugs constituting Charge 3, namely methylamphetamine, heroin, Oxycodone and buprenorphine, I accept have been largely used for pain relief, as has quetiapine, which constitutes the uplifted summary charge.
150 I intend to convict you of each offence with sentences of imprisonment in relation to Charges 1, 2 and 3 and fine you in relation to the uplifted matter.
151 As has been pointed out, general deterrence is a significant factor in relation to Charge 1 and, indeed, in relation to Charges 2 and 3. Beyond general deterrence, denunciation of such crimes are important, as is just punishment. Again, as I have made clear during these reasons, although I consider Charge 1 to be of mid-level objective seriousness, your moral culpability is reduced generally in relation to the offending, and that impacts on any particular sentence, as does, of course, the various mitigating factors which I have accepted.
152 Please be upstanding:
(a) in relation to Charge 1 on the Indictment, you are convicted and sentenced to 2 years’, 10 months’ imprisonment; This is the base sentence;
(b) in relation to Charge 2 on the Indictment, you are convicted and sentenced to 6 months’ imprisonment;
(c) in relation to Charge 3 on the Indictment, you are convicted and sentenced to 2 months’ imprisonment;
(d) in relation to the uplifted summary charge, you are convicted and sentenced to a fine of $250;
(e) I order that 3 months of the sentence in relation to Charge 2 and
1 month of the sentence in relation to Charge 3 be served cumulatively upon each other and upon the sentence imposed in relation to Charge 1. The total effective sentence is 3 years, 2 months and I order there be a non-parole period of 1 year, 10 months;
(f) I declare that you have served seven days’ pre-sentence detention in relation to the subject offending and such period is to be administratively deducted from your sentence;
(g) I grant the orders sought for disposal and forfeiture;
(h) I declare that save for your pleas of guilty in relation to the offending on the Indictment, I would have ordered a period of imprisonment of
4½ years with a non-parole period of 3 years 2 months.
153 Yes, anything arising out of that?
154 COUNSEL: No, Your Honour.
155 MR CHISHOLM: Your Honour, before Mr Jones is taken down, may I just hand him a copy of his health summary sheet so he can give that to custody?
156 HIS HONOUR: Yes, and I will allow just very briefly his wife to come to him, if she wants to say anything to him.
157 MR CHISHOLM: Yes, very well. Take the prisoner.
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