Director of Public Prosecutions v Kennedy

[2018] VCC 1054

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00123

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILIP KENNEDY

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 June 2018
DATE OF SENTENCE:	9 July 2018
CASE MAY BE CITED AS:	DPP v Kennedy
MEDIUM NEUTRAL CITATION:	[2018] VCC 1054

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Sentence – Cultivation of a narcotic plant (1 charge) – Theft (1 charge) – Trafficking in a drug of dependence (1 charge) – Dependent family members – Whether exceptional circumstances
Legislation Cited:	Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Criminal Procedure Act 2009
Cases Cited:	R v Tsolacos (1995) 81 A Crim R 434; Quaresima v The Queen [2017] VSCA 306; Markovic, Zoran v R [2010] VSCA 105; R v Panuccio [1998] VSC 300; R vPidoto & O'Dea [2006] VSCA 185; Nguyen v R [2011] 31 VR 673; R vNguyen and Pham (2010) 205 A Crim R 106; NS Nguyen v The Queen [2016] VSCA 198
Sentence:	Convicted and sentenced to 5 years’ imprisonment with a minimum term to be served before being eligible for parole of 3 years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Upton	Office of Public Prosecutions
For the Accused	Mr J. O'Sullivan	O’Sullivan and Ruffilli Barristers and Solicitors

HIS HONOUR: 

1Philip Kennedy comes before the Court having pleaded guilty to the charges on this indictment and in addition to a summary charge.  Mr Kennedy is aged 73, having been born on the 3rd day of October 1944.  He retired in 1965.

2Ms Upton appeared for the Director, as she does today.  On the first day of the plea, Ms Walker appeared, that is 1 June of 2018. The Court was asked to reassemble for a further plea, at which Mr O'Sullivan appeared, that is on the 27th day of June of 2018, and today Mr O'Sullivan appears again.

3Indictment No.H12835987 included three charges. The first and most serious of those is the charge of cultivate a narcotic plant. That is an offence under s.72B of the Drugs, Poisons and Controlled Substances Act.  The narcotic plant involved is cannabis L.  In Exhibit A, which was the summary of facts, the particular circumstances of this cultivation, and indeed all of the crimes involved was set out, and accepted by counsel as the facts upon which I am to sentence Mr Kennedy.

4Insofar as the cultivation is concerned, the period of cultivation is from 29 September 2015 to 26 September 2017, a period of two years.  As was agreed, he is to be sentenced under subsection (b) of that section, which has a maximum sentence of 15 years prescribed by Parliament given that the accepted purpose of this cultivation was trafficking.

5As has been discussed this morning, the discussion during the original plea was as to the agreement between the parties for this plea.  The matter was put to me on the basis that the quantity cultivated by weight, that is of the plants themselves, is such as to be a commercial quantity, as has been confirmed by the Crown instructor this morning. I am told this morning that the real reason for the deal being done was the issue as to the proof of mens rea in regard to the higher figure, and in those circumstances the Crown accepted the lesser plea.

6The issue is, ultimately a legal issue, the statement made in the letter of Christina Teague, which I will attach as Exhibit D, being the proposition from the prosecution that the quantity cultivated is prima facie a commercial quantity.  That comes about from an analysis of Schedule II, Part 2 of the Act, which prescribes that a commercial quantity for the cultivation of cannabis is 25 kilograms or 100 plants.

7In this instance there were 35 plants, which weighed 35 kilos, hence the proposition put by the prosecution of being prima facie a commercial quantity.  In addition, there was in total 2.48 kilograms of processed cannabis found.  The matter was debated this morning and, I have taken a different view to the respectful submission put by Ms Upton that the prima facie proposition operated in this case.  In my view, an appropriate assessment of the schedule is such that the 35 plants represent approximately one-third of the threshold amount that takes you into the commercial quantity, and the 2.4 kilograms found represents approximately one-tenth of the threshold amount necessary to take you into the commercial level.

8Obviously in a quantity-based regime, it is important to clarify where the amount cultivated sits, and I take the view that that is where it sits.  The end result for Mr Kennedy does not make all that much difference insofar as the charge, because it does not alter him being charged under 72B; however, it does make a difference in the sense of, when one looks at just quantity,  it sits, in my view, as I have indicated.

9I also make the point, despite the submission of the Crown that the weight of the plants is prima facie a commercial quantity, that Mr Kennedy does not come to be sentenced under the more harsher regime which is set out in 72A, and must only be sentenced for the crime to which he has pleaded.

10I accept the submissions from Ms Walker, and in particular from Mr O'Sullivan, that this is a valuable plea made by Mr Kennedy in the sense that it was his voluntary statements in the record of interview which enabled the ascertainment of the period of cultivation that he had been cultivating cannabis for two years, that from each mature plant he obtained seven ounces of cannabis and that as a result thereof he sold the cannabis for particular amounts based on weight.

11On the day the warrant was executed there were 15 mature plants, 20 smaller plants, and bags of loose cannabis weighing 1.9 kilograms found at the factory.  The figure that I earlier spoke about of the 2.48 is made up by adding the amount found at the home.

12The details of the warrant, the setup, both at home and at the factory, are set out in graphic detail in Exhibit B and C, the photos.  Clearly, this operation was particularly sophisticated.  It was a large-scale, the factory had been leased for this very operation, and there had been an extensive system of bypass of electricity undertaken to facilitate the operation.

13On Mr Kennedy's own admission, he had been undertaking this cultivation for a lengthy period and the purpose was as detailed, for financial reward.  That is, he was seeking by way of this operation to support not only his own family, but his son who was in some difficult financial position at the time.  It is also necessary to take into account that Mr Kennedy has relevant priors.  Again, I make the point he does not come up before this Court to be resentenced for those priors; however, when you have relevant priors as he does, such limit the scope that a Court has.

14The background of Mr Kennedy is such that he appears, and has been for some long period, to be connected with the drug milieu, at least for a period it would appear of some 15 years.  In July of 2003 he was convicted of using cannabis, again utilizing electricity, cultivating a narcotic plant and trafficking, for which he got an aggregate sentence of four months' imprisonment, which fortunately he was allowed to serve by way of intensive correction order.  Given the circumstances of that, one would have thought that would have been the end of such criminality; however, that is not so.

15In December of 2006 he was convicted of possessing cannabis and theft and was fined, and then again in August of 2008 he was convicted of trafficking cannabis and sentenced to seven months' gaol, again, fortuitously for him, he was given an intensive correction order.  Taking account of the objective criminality in this matter, the offending in the totality of the circumstances is serious offending.

16Mr Kennedy comes before this Court to be sentenced as a principal organiser. He is the only person concerned with the cultivation. The Court of Appeal have made it clear on many, many occasions that those who transgress this legislation, whatever their role, much less in your role, Mr Kennedy, of being the principal organiser, must face condign punishment.  As I say, you are to be regarded as the principal, being the organiser of the cultivation, the leasing of this factory, and the person who had the financial interest in this crop. The objective criminality is therefore serious.

17The scheme under which you come to be sentenced, and indeed in regards to the trafficking, as set by Parliament, prescribes a hierarchy of seriousness defined by the quantity of the narcotic plant which has been cultivated.  Accepting for the moment the proposition by the prosecutor as to where that quantity fits, it is clear that had there not been a compromise based upon the prosecution's view as to the difficulty of proving mens rea, you may well have been before this Court facing a sentence of 25 years, but as I said, you are not.

18As to the issue of trafficking alone, which you also are charged, Tsolacos (1995) 81 A Crim R 434, the Court of Appeal, as it was then composed, said this:

"For the purpose of identifying the gravity of an offence and thus of ascertaining the appropriate sentence, the legislation places emphasis on quantities of drugs cultivated and not on values.”

As has been recited a number of times in this Court, the quantity based system referred to is a system detailed for the Court by the Court of Appeal in Pidoto & O'Dea [2006] VSCA 185. That is, we are, and do, have as a result of Parliament's prescription a quantity based sentencing scheme. Of course, quantity as such has no arithmetical relationship to a sentence, but along with the maximum sentence prescribed by Parliament, which I stress in this case is still 15 years, is a very significant aspect in sentencing for these crimes.

19I take into account by way of general principles the determination of the Court of Appeal in this State in Nguyen v R [2011] 31 VR 673, [34] and [35] where the Court of Appeal reviewed the appropriate factors that come into play in sentencing of this type of crime, further the general principles, again while not exactly the same offence, as were detailed by the Court of Appeal in New South Wales in Nguyen and Pham (2010) 205 A Crim R 106, [72], and I refer again to the general principles and the reference by the Court of Appeal for the need for a gradual increase in these types of sentences in NS Nguyen v The Queen [2016] VSCA 198, [63], [89], [140] and [142]". It must be, of course, remarked that in that particular case the Court was concerned with a commercial quantity, and I refer only to the general principles.

20The second charge in the indictment is obviously the theft charge which relates to the bypassed electricity.  That pursuant to the Crimes Act under s.74 encompasses a crime which brings with it a maximum penalty of ten years.  The period agreed to which you have pleaded in which the electricity was bypassed is from 22 August 2017 through to 26 September 2017.  The total amount accepted as by way of loss due to this theft is the figure of $3772.

21Charge 3 is a charge of traffic simpliciter.  It is accepted that you were trafficking for that purpose and that makes you then subject to a maximum penalty of ten years.  That is an offence under s.71A(c) of the Act.  The period of trafficking is between 12 and 18 months, and you were selling bags of 28 grams for between $180 and $200.

22I have been asked to also take into account, pursuant to s.145 of the Criminal Procedure Act, the charge of deal in the proceeds of crime. The maximum penalty that could be imposed for that given that it is a summary offence is a period of imprisonment of two years.  The sum which was found at your home was a cash amount of $9770. 

23The plea originally conducted by Ms Walker was tendered by way of written submission, Exhibit 1, dated 30 May 2018.  There was an acceptance that the Court was dealing with serious offending and that usually for such serious offending immediate imprisonment is the only alternative. However, the submission made by Ms Walker was that a community corrections order would be available and should be utilised, that is by way of a combination period of imprisonment and community corrections order.  In particular was stressed your plea of guilty, the utilitarian benefit of that, and the service of justice by that plea, the fact that such plea meant that the authorities did not have to prepare and go to the cost of having a trial.

24Your age was stressed, and not only your age but the fact that you have a dependent wife and a young child, and in fact an elder child of your wife or partner who is 18 and still a student.  It was submitted that you are a person who could be expected to rehabilitate.  I do not know whether I accept that.  You have shown consistent criminality in regard to drugs and I think any conclusion that you are likely to be rehabilitated, must be guarded.  However, that was the proposition put by Ms Walker and it was put that in order to facilitate your rehabilitation and therefore protect the community, a combined community corrections order and criminal order should be indicated.

25Given at the time my acceptance of the proposition put by the defence as to where the quantity was, and associated with all the other factors, I indicated clearly to Ms Walker that a year’s imprisonment was totally inappropriate in the circumstances, Ms Walker handed to me a case of Quaresima [2017] VSCA 306, a sentence of Judge Hicks of this Court where in the circumstances of that case, albeit a similar amount by way of plants and weight of plants, again I make the point which was taken not by way of commercial quantity, but was a 72B charge, a combined sentence of nine months' gaol with an 18-month community corrections order was passed.

26However, I make the point that the totality of the criminality in that matter was only seven weeks, and albeit that the person in that case had a prior, they were not the number of priors that you have.

27Ms Walkers submission was made in response to the submission by Ms Upton that the only appropriate sentence was an immediate sentence, which in the circumstances would exclude a combined community corrections order and that there should be an appropriate period of parole.

28There was a psychological report tendered by Ms Walker, a report dated 22 May 2018 by Ms Ferrari.  There are no psychological issues raised insofar as you are concerned which relate to the criminality except for the comment that you made at [48] in such consultation, that the only motive was financial and you undertook such criminality to support your family and son.  It was noted, of course, the anxiety with which you were concerned about a period of imprisonment, and I accept that.  Also tendered were excellent references on your behalf by Mr Taylor and a Mr O'Reilly. 

29As I say, the Court reconvened at the request of your solicitors, for a further plea which was conducted on your behalf by Mr O'Sullivan.  Mr O'Sullivan tendered as Exhibit 4 additional references.  Firstly, your wife or partner, Rowena Kennedy, your daughter-in-law, your daughter, and your granddaughter.  Those members of your family have been in Court, and I note are in Court again today to support you.  I am not too sure whether any of your family were aware that you were facing Court or the risk of gaol, but certainly once the order was made by me for you to be remanded they became aware.

30Mr O'Sullivan advised me that during your remand the issue as to your pension has been finalised, it has been confirmed that it is now no longer payable.  In those circumstances, he stressed to me the family consequences as a result of your criminality, that is that your wife, albeit she does work as a cleaner, was restricted in that work because you could no longer drive her, and there were limits as to your family being able to take her; that you had had issues with your blood pressure since being in prison, and Mr O'Sullivan further took me through your financial history, the various businesses that you have conducted and enterprises that you went into with your son.  I will not go through the details of those except to say that as you finally said in your record of interview, because of those disappointments, and businesses that have not succeeded, you got to a situation where you could not do anything else.  Can I just say it is very dangerous in that situation to undertake criminality of this sort.  But there we are, that is the position.

31In response to Mr O'Sullivan's plea, the prosecutor indicated that the DPP had not changed its view that these were crimes which called for a sentence of immediate imprisonment and parole.  By that submission, the prosecution's view was that you should not receive, because of the limitations involved in the period of imprisonment that can be imposed, a community corrections order.

32Further, on the principles of Markovic [2010] VSCA 105, the prosecutor submitted that the circumstances put to the Court by Mr O'Sullivan were not exceptional. In reply, Mr O'Sullivan made a submission to the Court that the circumstances were indeed exceptional. He submitted that the Court had before it a circumstance where your wife was left in a position with no income, where she was being supported by the rest of your family, but there must obviously be limits as to that support, that she had a young son, and in those circumstances he submitted that it was very much, as detailed by the letters from your family, a matter that should be accepted by this Court as being exceptional such as to allow for a Court to pass a lesser sentence, than would normally be passed because of those exceptional circumstances.

33Where people commit serious criminality such as this, obviously it impacts on their families.  To allow the results of your criminality, by way of impact on your family, to reduce an appropriate sentence must of itself be seen as only possible in exceptional circumstances. In R v. Panuccio the then Victorian Court of Appeal, [1998] VSC 300, in what could hardly be a stronger Court, comprised of Winneke P and Brooking and Charles JJA, said at [7] of the judgment:

"Although the court is not, both as a matter of compassion and common sense, impervious to the consequences of a sentence upon other members of a family or of a person in prison, such factors will need to be exceptional or extreme before the court will tailor its sentence in order to relieve the plight of those other family member.  Such a principle is clearly an obvious one because the court's primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced.  There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon the spouse, children, or other family members who are dependent in one form or another upon the person imprisoned, thus it has often been stated that as a general principle of sentencing the court should usually disregard the impact that the sentence will have upon the members of a family unless exceptional circumstances have been demonstrated".

34That is the fundamental principle that relates to these matters.  Insofar as the matters put to me, in particular set out in the various letters from the family, I note the proposition as to the plight that your partner or wife has been left in.  However, I also note that she works as a cleaner.  There is no evidence that has been put to me as to her current position, her capacity to earn further income in that job, nor is it clarified why she cannot have someone else drive her to those jobs.  It is clearly set out in Chelsea's letter that there has been such assistance given, and I find, there is no reason why the family could not continue to assist your wife in that regard.

35Further, there is no reason why your wife could not get further work.  As your granddaughter, Mr Kennedy, said, "We are a close family" and I see no reason why that family will not continue to support your family as it has done.  As your granddaughter has said, "We will continue to give all the support necessary," and as I view the matter I find no exceptional circumstances established.

36I do, of course, as set out in the case of Markovic, [20], take into account as a matter that is appropriate to your sentencing that you yourself will no doubt, as you serve your sentence, suffer additional trauma when you consider the impact that you have made on your own family, and that discount is a simple matter of humanity that the Court takes into account.

37Mr Kennedy, if you would stand please.  I have considered all the matters, put to me, I have found that your criminality is at a high level, I will not simply repeat all of the circumstances.  However, as I originally indicated to Ms Walker, and to Mr O'Sullivan, I do find, given the totality of your criminality, that an appropriate sentence cannot be passed which encompasses a community corrections order.

38Therefore, on the first count of cultivating a narcotic plant, you will be sentenced to a period of imprisonment of four years.  In regard to the theft charge, a period of imprisonment of one year, and in regard to the traffic cannabis simpliciter, a period of imprisonment of one year.  I order that insofar as the four years imposed on the first charge, six months of the sentence imposed on both Charges 2 and 3 be served cumulatively with each other and upon the sentenced imposed on Charge 1, making a total aggregate sentence imposed on you of a period of five years.  I order that the minimum period that you should serve before being eligible for parole is three years. 

39In regard to the summary charge, I impose a period of imprisonment of six months.  I make no order as to cumulation in that matter.  That will therefore be served concurrently.  The aggregate sentence that you must therefore serve for the totality of your criminality, Mr Kennedy, is five years, and the period that you must serve before being eligible for parole is a period of three years.

40Can I indicate to you that had you not pleaded guilty it is important for me to tell you, and Parliament wants you to understand, that had you not pleaded guilty the period of imprisonment imposed upon you would not have been five years with a minimum of three years to serve, but a period of six and a half years with a minimum of four years.

41Madam Prosecutor, the s.18 days?

42MS UPTON:  Yes, there is 38.

43HIS HONOUR:  The 38 days that you have served to date I declare to be service of this sentence and I also order that a copy of such declaration be recorded in the records of this court.

44Madam Associate, have I signed those orders, which was I think a disposal order.

45MS UPTON:  Yes, disposal orders.  Your Honour has signed all the orders that are required.

46HIS HONOUR:  The disposal order and what else?

47MS UPTON:  There's a compensation order in relation to the electricity.

48HIS HONOUR:  Compensation order in regard to the money, forfeiture order, and a disposal order.

49MS UPTON:  Yes, that sounds correct.

50HIS HONOUR:  Mr O'Sullivan, any issues?

51MR O'SULLIVAN: No, Your Honour.

52HIS HONOUR:  Despite my comments, given your age, Mr Kennedy, I am sure when you do serve your sentence you will not want to come back, all right?  Good luck.  Take the prisoner away.

53OFFENDER:  Thank you.

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