Director of Public Prosecutions v Kelly
[2023] VCC 993
•14 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00928
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IAN KELLY |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Melbourne |
DATE OF TRIAL: | 9 May 2023 - 12 May 2023 |
DATE OF SENTENCE: | 14 June 2023 |
CASE MAY BE CITED AS: | DPP v Kelly |
MEDIUM NEUTRAL CITATION: | [2023] VCC 993 |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: Cultivating commercial quantity of cannabis – Trafficking cannabis – Theft
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, Crimes Act 1958
Cases Cited:Le v The Queen [2021] VSCA 220, Brown v The Queen [2020] VSCA 60
Sentence: 5 years imprisonment, 2 years 9 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Albert | Office of Public Prosecutions |
For the Accused | Mr J. H. M. Miller | Haines & Polites |
HIS HONOUR:
1Ian Kelly, after a short trial you were found guilty of one count of cultivating cannabis in a commercial quantity. You had earlier pleaded guilty to one count of trafficking cannabis, one count of theft of electricity, and a summary charge of possession of cartridge ammunition. The relevant maximum penalties are set out in the prosecution plea submissions.
Circumstances of the offending
2The circumstances of the offending were not in dispute and are outlined in the prosecution opening for trial which I incorporate by reference. Police executed a search warrant at your home in Frankston, which was a rental property, on 5 November 2020.
3When they entered the yard of the premises, they found a shed. Inside the shed there was a nursery-type arrangement with 64 seedlings and semi-mature cannabis plants that were found subsequently to weigh 1.22 kilograms. Inside the shed, there was also a power bypass and several shelves holding transformers and ballasts used to power the rooms in the shed as well as various plant nutrients. There was then a separate room containing nine mature cannabis plants under grow lights and ventilation weighting 11.25 kilograms. There was a second shed and inside it there were six very mature cannabis plants under grow lights and ventilation weighing 19.25 kilograms.
4The police called you up from your work and you attended at the property a short time later. They then conducted a search of the residence itself and in the front bedroom located three boxes containing 67 Winchester shotgun rounds. In the spare bedroom they located a large travel bag containing four vacuum-sealed plastic packages of cannabis buds. That cannabis from the travel bag in the sealed packages weighed 1.79 kilograms.
5The total of the cannabis found at the property was 33.6 kilograms consisting of 1.91 kilograms of packaged dried cannabis and 79 cannabis plants weighing a total of 31.72 kilograms.
6An electrician was called and the bypass was cut off.
Record of interview
7Later that day you participated in a record of interview at the Frankston police station. You made full admissions in relation to the cannabis found by the police. You stated that you were the only person tending the crop. You used ballasts and other equipment to keep the shed operating. You stated that the bypass had been installed by a friend. You further stated that you had been cultivating the crop for a period of about six months and were doing so due to “hardship”. You explained that the bypass had been installed as the bills were “dear enough”.
8In response to the allegation of trafficking you indicated that you give some cannabis to your friends and “move” a bit to cover your costs. You sold
ounce-type quantities a couple of times a week for about $150 each.9In relation to the cryo-packed cannabis, you stated that each pack weighs about a pound which sells for around $2,500 and you would maybe sell four a month if you were lucky. You had not been able to find a buyer for the four packs found by the police.
10In relation to the cartridge ammunition, the cartridges were for your eldest son and they came from a person who had handed his guns in.
Subsequent events
11After the record of interview you were charged with cultivation of cannabis, trafficking cannabis and theft of electricity. At the time of the record of interview the police did not have precise information as to the weight of the cannabis found.Subsequently the cannabis was delivered to the Forensic Science Laboratory which advised that the packaged cannabis weighed 1.919 kilograms, and the 79 cannabis plants found weighed 31.72 kilograms.
12After receipt of the certificate from the botanist, you were charged on summons with trafficking a commercial quantity of cannabis.
13On the voir dire you gave evidence that the police officer who served the certificate and the summons on you said he was surprised that the amount of cannabis amounted to a commercial quantity.
14You had retained solicitors and there were negotiations with the prosecution and an agreement was reached for you to plead guilty to cultivating a commercial quantity over the period 5 May 2020 to 5 November 2020, trafficking simpliciter, theft of electricity, and possession of cartridge ammunition.
15The matter was listed for a filing hearing and a committal mention before the Magistrates' Court on 5 May 2021. At that time the police agreed to drop the charge of trafficking a commercial quantity of cannabis. You agreed to plead guilty to cultivating a commercial quantity, trafficking simpliciter over the period 5 October 2020 to 5 November 2020 and theft of electricity.
16The matter was referred to this court for a plea hearing. When the matter came on for the plea hearing you had changed your solicitors and subsequently sought to change your plea in relation to the charge of cultivating a commercial quantity of cannabis.
17When the matter came on for trial on 9 March 2023, your counsel sought to have evidence of the plea entered before the magistrate excluded. I ruled against you on that point and I have published reasons for my ruling. Before the jury panel you pleaded guilty to the charge of trafficking simpliciter and theft of electricity, and not guilty to the charge of cultivating a commercial quantity of cannabis. The evidence at the trial was very limited consisting only of the evidence of the informant and the botanists from the FSL. The record of interview was played. You did not give evidence. The jury found you guilty after a short period of deliberation.
18The trial focused on the narrow issue as to whether the prosecution had proved beyond reasonable doubt that you intended to cultivate more than a commercial quantity of cannabis. A commercial quantity is either 100 plants or 25 kilograms by weight.
19The cannabis found at your house amounted to 1.3 times a commercial quantity by weight and 0.79 of a commercial quantity by number.
Assessing the seriousness of the offending
20The quantum of cannabis cultivated is an important consideration in assessing the seriousness of this offence. Here the weight was 1.3 times a commercial quantity. The number of plants did not reach the commercial threshold. This was a sophisticated operation. The plants were in various stages of growth, and maturity, and were being propagated by way of cuttings rather than seeds.
21The set up within the sheds was elaborate with exhaust fans and lights, as well as spare globes and stocks of fertiliser.
22There was a leaf shredding machine and the dried cannabis had been vacuum packed. The amount of equipment found by the police shows that you must be taken to have committed a not insignificant amount of money to establish this enterprise.
23While cannabis growing enterprises vary in scope from a few plants in a backyard, to houses and factories packed with equipment and plants, this particular enterprise could be best described as a home-based enterprise. I do not accept the characterisation elicited from the informant at the trial that this was a “hobbyist operation”. I accept that your operation could not be seen as part of an overall large scale criminal enterprise, however, you were able to obtain assistance to install the bypass, and cryo-pack the dried cannabis. On your own admission you were also involved in selling both one ounce lots of cannabis, and larger amounts for $2,500 a pound. Notwithstanding your admissions in relation to your trafficking of cannabis there was no evidence before the court of large-scale betterment as a result of your activities.
24In the record of interview as I have indicated, you gave as your explanation for your offending, 'hardship'.
25In assessing the moral culpability here, it is relevant that you have a direct prior appearance for cultivating cannabis for which you received a non-conviction community-based disposition.
26You chose to contest the mental element of the charge of cultivating a commercial quantity. The case against you on this point was, in my view, strong given the scale of the operation. Although your counsel dealt with the issue in dispute in an expeditious and economical manner, and you are entitled to benefit for that, you cannot be punished for putting the prosecution to its proof but you are not entitled to the full utilitarian benefit of facilitating the course of justice. The fact that you pleaded not guilty to cultivating a commercial quantity is also relevant to the issue of remorse.
27Overall, I accept the submission of your counsel that although your offending should be seen as in the lower mid-range of offending, your prior conviction makes this a case where your offending bears high moral culpability.
In relation to the charge of trafficking cannabis, you made full admissions to this offence. The charged period is only for one month and on your admission you stood to make around $300 per week for the sales of small amounts of cannabis and up to $10,000 for the sale of four 1-pound lots. You were clearly engaged in selling cannabis for financial gain over the relevant charged period.
28The final charge involves theft of electricity. The quantum of electricity is not known. You admitted however that the meter had been bypassed for a period of six months.
29Overall your offending is serious and was for financial gain. As I indicated, you bear a high moral culpability for the offending by reason of your prior conviction and the sustained effort in the installation of the enterprise and then maintaining it over the period of the offending.
Personal circumstances
30I now turn to your personal circumstances. I have already referred to your single prior appearance at the Korumburra Magistrates' Court on 6 September 2012 where, without conviction, on charges of cultivating cannabis and possessing cannabis you were placed on a 12-month community corrections order, including 100 hours' community work. On a charge of possession of an unregistered longarm firearm, you were placed on a similar order.
31The cultivation offence involved 16 plants in a purpose-built room and was described as a sophisticated hydroponic setup with a power bypass. You spent approximately $4,000 to establish the enterprise and said that the cannabis was for your use.
32As I have indicated, I regard your prior conviction as relevant to your moral culpability in this matter.
33I turn now to your specific personal circumstances, which were set out on the plea submission and which I incorporate by reference.
34You are now aged 64. You were born in Warragul and have a brother and sister. Your parents are deceased. You have never been in custody. You have been married to your wife for 43 years and have four adult sons. They and their partners and some friends were present in court to support you on the plea, and you have 10 grandchildren.
35You had been living in a rented property in Frankston which was the site of your offending and the landlord has given a reference of support. Your wife is now being assisted by friends to pay the weekly rent. She is seeking to access social security benefits.
36A major part of your occupational history was running a dairy farm in the country for some 35 years until being foreclosed following a drought, and being forced into bankruptcy.
37Thereafter it appears you moved to the metropolitan area. For the last 12 years, you have been working as a contractor/machine operator in construction and development. A very impressive reference was tendered from your current principal. There was also another reference tendered from another principal in the contracting sector.
38On the plea a number of other personal references were tended indicating that you are very well regarded by family and friends and are prepared to support others in need. Your offending is regarded as being very much out of character.
39In support of the argument that a sentence of imprisonment would be more burdensome your counsel referred to your significant medical history. In 2003 you required surgery for an ongoing hernia with further surgery required in 2010, 2011 and 2014. Further surgery was scheduled in 2022 but due to your obesity, that has not been able to be scheduled. In April 2018 you were hospitalised, near death, for a burst gastric ulcer. This was very traumatic and had a significant financial impact on you that you referred to in your record of interview. You also have a number of other continuing conditions including obstructive pulmonary disorder, hypertension and sleep apnoea, and require a machine to address that. You are on multiple medications.
40The prosecution filed an affidavit from the Director of the Justice Health Unit outlining the health facilities available within the prison system, with the principle that prisoners are entitled to a level of care equivalent to that available in the community.
41Your counsel did not dispute the contents of the affidavit. I am satisfied, however, that for a person of your age with your various conditions a sentence of imprisonment will be significantly more burdensome than a sentence imposed on an able-bodied male in their 20s.
42A further matter in mitigation on the plea was the impact on you of your inability to provide for your wife as a result of your incarceration. Given your long history in employment and as the breadwinner and the fact that your wife is also suffering from significant medical conditions then I accept that the anguish associated with your inability to provide for her is a matter that I am entitled to take into account in your favour.
Prospects of rehabilitation
43I regard your prospects of rehabilitation as very good. This is notwithstanding that you have pleaded not guilty to the charge of cultivating a commercial quantity of cannabis. From the outset you have been prepared to admit your offending and to accept responsibility for both the cultivation simpliciter and trafficking simpliciter. Those are matters that I do take into account in your favour.
44In the period since this offending, you have not come to notice from the police. This delay is to your advantage although most of the delay has been caused by your decision to seek to reverse the plea of guilty that you entered before the magistrate.
45You have family support and this is the first time you have been sentenced to a term of imprisonment.
46You are also entitled to draw on your prior good work record, lack of other convictions and contributions to the community both as going to your prospects of rehabilitation and by way of mitigation.
47For a person of your age and station in life, a sentence of imprisonment will have a significant salutary effect on you.
Comparable cases
48The learned prosecutor referred the court to two cases which may provide evidence as to current sentencing practices. In Le v R [2021] VSCA 220, a sentence of five years' imprisonment for cultivating a commercial quantity of cannabis, and six months' imprisonment for theft of electricity, following a plea of guilty was confirmed by the Court of Appeal. The amount of cannabis involved was 49.5 kilograms from 31 plants. The court emphasised that the offending was for financial gain. Further, the offender in that case, who was aged 55, had two prior convictions for trafficking heroin for which he served terms of imprisonment. The court declared that had the offender not pleaded guilty a sentence of seven years' imprisonment would have been imposed.
49The second case was the case of Brown v R [2020] VSCA 60. In that case the offending involved 226 plants and 17.3 kilograms. On appeal, a total effective sense of four years was imposed with a non-parole period of two years and three months, for offences of cultivating a commercial quantity, trafficking and drug dependence and theft of electricity. The s6AAA declaration was six years with a minimum of four years.
50Your counsel distinguished Brown on the basis that the enterprise involved converting most of the rooms of the house to growing cannabis. Further the offender admitted to making $25,000 from the sale of cannabis. He had pleaded guilty early and was remorseful.
51Your counsel provided the court with the sentencing snapshots from the Sentencing Advisory Council indicating that in the relevant period the median sentence for this offence over that period was two years and two months.
52I do not find the sentencing snapshots as any great assistance given the wide range of circumstances that bring persons before the court for these types of offences, and the differences in their antecedents and whether or not the matter was the subject of a plea of guilty.
53Comparable cases are of assistance. However, each case does differ and the two cases that I have been referred to followed pleas of guilty. In this case you have pleaded not guilty to the charge of cultivating a commercial quantity, but guilty to the other two charges. In addition, as noted by your counsel, the antecedents of Mr Le are significantly different from yours.
Purposes of sentencing
54The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society. I am also required to apply the principle of parsimony.
55In sentencing for drug offences, the Court of Appeal has emphasised in a number of cases the need for general deterrence and indeed the need for sentences for this particular offence to be uplifted overtime.
56In the case of Le, Niall JA said at [13]:
'Second, and importantly, to the extent that the duty of this Court is to take into account the protection of the community through general and specific deterrence, any sentence must recognise and respond to the rewards that those who are minded to engage in this form of offending stand to derive. Sentences must be sufficiently stern as to provide an antidote to the lure of the benefits.'
57Here, this was an enterprise established to make money. Cannabis is a drug that is readily saleable. You gave as your explanation 'hardship'. Given your very serious medical emergency in 2018 that you did refer to in the record of interview there is a significant element of truth in that statement confirmed by the medical records in evidence. However, you are a mature individual and were prepared to take a calculated risk. You had previously taken the same risk for which you were brought before the Korumburra Magistrates' Court.
58Weighing against the need for general deterrence in cases like this is your very significant compromised physical condition and it does lead to the need to accord some lesser weight to this sentencing purpose.
59Denunciation remains a significant consideration, however, and specific deterrence is also something of a sentencing consideration here.
60As indicated in the comments from Niall JA, the sentence of the court must send a signal that economic crime does not pay. Those involved in the illegal drug trade must be made to pay a price to deter others from becoming involved. This is notwithstanding the significant subjective matters that you have put before this court on this plea, including your compromised physical health, your prior contribution to the community and to your family.
Sentence
61The sentence of the court is as follows:
62On Charge 1, cultivating cannabis in a commercial quantity, four years' imprisonment (base sentence).
63On Charge 2, theft, six months' imprisonment.
64On Charge 3, trafficking cannabis, 18 months' imprisonment.
65I order that three months of the sentence on Charge 2, and nine months of the sentence on Charge 3 be served cumulatively on each other and on the base sentence, making a total effective sentence of five years' imprisonment.
66I order that you serve two years and nine months' imprisonment before being eligible for parole.
67On the summary charge of possession of cartridge ammunition, you are convicted and discharged.
68I declare that you have served 33 days' presentence detention.
69I declare that had you not pleaded guilty to Charges 2 and 3, I would have imposed a total effective sentence on all charges of six years' imprisonment with a non-parole period of four years.
70The prosecution have sought forfeiture and disposal orders and I make those orders.
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