Director of Public Prosecutions v Kenny

[2019] VCC 784

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02610

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN KENNY

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2019
DATE OF SENTENCE:	29 May 2019
CASE MAY BE CITED AS:	DPP v Kenny
MEDIUM NEUTRAL CITATION:	[2019] VCC 784

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Cultivate commercial quantity of cannabis – Theft – Summary offences – Non-prohibited person possess Category A longarm – Possess cartridge ammunition without licence or permit – Cultivation arrangement elaborate and sophisticated – No criminal record - Commercial enterprise conducted for profit – Role as principal sole operator in cultivation – Co-operation with authorities

Sentence:Convicted and sentenced to Total Effective Sentence of 4 years’ imprisonment with a non-parole period of 18 months’ imprisonment – Fine with stay in relation to Summary Charge 6 – Pre-sentence declaration of 94 days having already been served – s.6AAA Sentencing Act 1991 declaration – Ancillary orders Disposal, Forfeiture and Forensic Sample Orders made

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sprague Ms V. Worrell	Solicitor for Public Prosecutions
For the Accused	Mr R. Barton	James Dowsley & Associates

HER HONOUR:

1Stephen Kenny, you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis, which has a maximum penalty of 25 years' imprisonment, and one charge of theft of electricity.  Theft has a maximum penalty of 10 years' imprisonment. I must take the maximum penalties into account when sentencing you, as these reflect the seriousness with which Parliament regards these offences.

2You have also pleaded guilty to the summary offences of being a non-prohibited person in possession of a registered Category A longarm, which has a maximum penalty of two years' imprisonment, and possessing cartridge ammunition without a licence or permit, which has a maximum penalty of 40 penalty units.

3You were 59 years old at the time of the offending and you are now aged 60.

4At the time of the offending you resided at a property in Nar Nar Goon, being a decommissioned dairy farm on 27 acres of land, with one dwelling and two sheds.  You lived at the premises with your wife, Heather Kenny, and I understand that some of your adult children also live there.

Circumstances of the Offending

5On 24 September 2018 members from the Victoria Police Dandenong Frontline Tactical Unit executed a search warrant under the Drugs, Poisons and Controlled Substances Act (1981) in relation to your property.

6Whilst en route to the property police saw you driving on a road near your house and intercepted you. You made admissions to having cannabis plants at your property and you were placed under arrest.

7You were escorted back to your property and police executed the search warrant.

8Police found cannabis plants being grown hydroponically inside two sheds on the property.  In Shed 1, located directly behind the main house, cannabis plants were found in two makeshift growing rooms.  In Shed 2, which was located to the east of the house, cannabis plants were found in five makeshift grow rooms, and dried cannabis was found in a drying room.[1]

[1] Statement of Detective Senior Constable Darcy SPENCE; Exhibit 11 – Photograph Book A

9The cannabis plants being grown in the sheds ranged in size and maturity.  The grow rooms contained functioning hydroponic equipment used for the growing of plants, including high wattage lamps, ballasts, exhaust fans and a reticulated watering system.[2]

[2] Statement of Detective Senior Constable SPENCE; Statement of Detective Acting Sergeant HOBBS; Statement of Rohan CARRIG

10The drying room in Shed 2 was equipped with six drying racks each, with eight shelves, which contained drying cannabis buds.  Also in the room were fans, column heaters, scales, a calculator, a ‘FoodSaver’ vacuum sealing appliance, and vacuum seal bags.[3]

[3] Statement of Detective Acting Sergeant HOBBS; Statement of Rohan CARRIG; Exhibit 11 – Photograph Book A

11With the help of a police K9 unit, in a horse float near Shed 2 police also found a rubbish bag containing four vacuum sealed bags, each containing a quantity of cannabis bud.

12In total,  255 plants were located and seized from the growing rooms, with a total weight of 61.67 kilograms.[4]

[4] Certificate of Botanist – Kylie SLATTERY

13The remaining cannabis, being the dried cannabis from the drying room in Shed 2 and the dried cannabis from the horse float, weighed 10.67 kilograms.[5]

[5] Certificate of Botanist – Kylie SLATTERY

14The total weight of cannabis seized was 72.34 kilograms.

15A commercial quantity of Cannabis L. is not less than 25 kilograms or 100 plants, therefore, the number of plants well exceeded the relevant threshold, as did the total weight of cannabis.  This gives rise to Charge 1 on the indictment, the cultivation of a commercial quantity of a narcotic plant.

16An AusNet Services electrician inspected the property at the request of police and found an electrical bypass behind the meter panel servicing the house and Shed 1, and another electrical bypass in the free standing meter enclosure at the neighbouring property which serviced Shed 2.  The additional circuits supplied electricity to the hydroponic rooms in the sheds to bypass the AusNet Services metering equipment and to disguise consumption rates.[6]

[6] Statement of Rohan CARRIG

17Based on the connected equipment and timers, it was calculated that the equipment would use approximately 435.752 know hours per day.[7]  The total value of the unmetered energy usage is not available. This gives rise to Charge 2 on the indictment, theft.

[7] Statement of Rohan CARRIG

18In Shed 1 police also found a Stirling .22 Magnum rifle on the floor of the shed wrapped in denim material,[8] and two containers of .22 calibre ammunition located in two disused freezers.[9]  One container of ammunition had a loaded clip, or magazine, attached, and the other contained seven rounds.

[8] Exhibit 12 – Photograph Book B, photos 5-8

[9] Exhibit 12 – Photograph Book B, photos 9-14

19You did not hold a firearms licence, and were  not authorised to possess, carry or use cartridge ammunition.[10]  This gives rise to the summary charges to which I have previously referred.

[10] Exhibit 10: s141 Firearms Act 1996 Statement of Senior Sergeant David PINNER

Interview

20You were interviewed the same day and gave, “No Comment”, answers to the questions you were asked in relation to the cannabis crops and electrical bypass. This is your right and I make no adverse finding against you in that regard.

21You said that you were working as a maintenance worker and received rent from a neighbour renting a property.

22In relation to the firearm and ammunition, you said:

a.the firearm would have been used on the farm at some stage over the years on injured or dying animals; (Q93-97)

b.the firearm probably would not have been found unless you had cooperated; (Q94)

c.you had used the firearm over the years but you did not know how many times.  It could have been six or 10 times (Q99), but not in the last five or six years; (Q114)

d.you had had the firearm for a long time, could have been 10, 20 years (Q101-102), and it might have been passed on with the farm, it had always been there; (Q104)

e.and you also said the ammunition came with the firearm, or a friend got some for you. (Q114).

23Mr Kenny, your offending is serious and warrants a punishment which is just in all of the circumstances, and your conduct must be denounced. In sentencing you, I do so on the basis that you have admitted to cultivating a commercial crop on one day only, and you have pleaded guilty to stealing electricity from 15 February to 24 September 2018. I sentence you on this basis, albeit that I have taken into account the surrounding circumstances, but I cannot sentence you in respect of cultivating the crop on more than the one day to which you have pleaded guilty.

24In any event, the quantity of cannabis that you cultivated was significant, being 2.89 times over the weight threshold for commercial quantity, and the number of plants found was 2.55 times the relevant threshold for these. The crop set-up was elaborate and sophisticated, and it is clear to me that although you used cannabis yourself, this was a commercial enterprise that was being conducted by you for profit. Your role was that of a principal in the cultivation.  You were no mere crop sitter, albeit that such a role of crop sitter is serious enough. On the other hand, there is no evidence that you were anything other than a sole operator rather than the head of some hierarchy.

25I was told that you embarked on this enterprise in the context of ten years of drought which hit your property, to the point where the dairy stopped operating in 2012 or 2013. You told your Counsel that you should have sold the property then, but you held on to it and leased some of it to a neighbour. I was also told that you had started drinking to excess, then started using cannabis some time before the offending. You then decided to see if you could grow your own crop as an experimental exercise, but that the whole thing got out of control. However, you accept that the crops were tended to by you, and as I have previously found, you engaged in this enterprise largely for profit. This is evident from the scale and nature of the crop growing set up, the quantity of the cannabis found, the presence of equipment such as the scales and a vacuum sealer device and vacuum seal bags.

26As the learned prosecutor said, cannabis is no soft drug.  It is a most harmful drug in itself and a gateway to other illicit substances. It is part of the scourge that drugs have on our community, leading to all sorts of social problems, including criminal offending and mental health issues. Strong weight must attach to general deterrence in a bid to deter others from offending as you have.

27In your favour, you have no criminal history. Also, on the day that the police raided your property you helped them to an extent by making early admissions to having cannabis plants, albeit that they would have found these anyway. However, you also helped them with finding the firearm.  In relation to the firearm and ammunition charges, I accept that these were part and parcel of the farm, rather than having any more sinister purpose. However, it is of concern that such lethal items were apparently readily accessible within the shed.

28I take into account the background matters which were put to me by your Counsel, Mr Barton.

29I was told that the farm had been in your family since the 1930s, and that as you were the oldest male in the family, the property was taken over by you. You have five siblings and had a strict upbringing, with your parents expecting that you would all work hard and succeed in life.

30As a result of confiscation proceedings, you stand to lose your interest in the farm, although I was told that your wife will retain hers.  I was told that you had been readying the property for sale during the period that you had been on bail.  As the property was acquired by you in a legitimate way, I take into account that you stand to lose your share of it due to your offending.

31In terms of your education and work history, I was told that you went to primary and secondary school in the local area of your farm, then worked in unskilled positions in a number of different industries after leaving school halfway through Year 11. I understand that you eventually returned to the farm and worked there for a significant period. Your family and the dairy farm that you used to run were very well regarded in the local community, which exacerbates your sense of shame and fall from grace.

32You married when you were 30 years old and have four adult children, three of whom live at the farm. Sadly, your youngest daughter has some mental health issues.

33One of your other daughters is engaged to be married, and there is a prospect of postponement of the wedding to enable you to attend, but there is still some uncertainty about this.

34I accept that you have a solid work history and are of otherwise good character, as the character material bears out.

35You are very well supported in the community by your wife and family, including your siblings and extended family, who will support you while you are in prison by visiting you there and they will continue to support you upon your release.

36This is your first time in gaol and I accept that time in gaol will be harder for you because of this, and because of your concern for your family in your absence.  In particular, your concern for your youngest daughter.

37Further, you suffer from Type 2 diabetes, which has caused some difficulties with your eyesight, macular oedema, and you also suffer from a rotator cuff injury. These ailments will also make time in gaol more difficult than it otherwise might be, and I have taken these matters into account.

38You have no mental health issues, other than suffering from a lowered mood in the wake of the offending, and a sense of shame.

39In all of the circumstances, I find that your prospects of rehabilitation are very good and I need only place minimal weight on specific deterrence.

40The Prosecution submitted that the only appropriate sentence in your case is immediate imprisonment which involved a head sentence and non-parole period. Your Counsel conceded, most properly, that this was appropriate in your case and that there were no special reasons which could be relied upon in order to avoid this. However, he submitted that a lengthy period on parole was also appropriate, and the Prosecution did not demur from this submission.

41I was provided with a number of cases in respect of current sentencing practice, which is but one matter which I must take into account in sentencing you. These cases were discussed at some length at the plea hearing and I do not propose to recite the details, but I have borne these cases in mind insofar as current sentencing practice is concerned.

42In the end, I have arrived at a sentence which, in my view, does justice to all relevant sentencing considerations and principles in your case, including the loss of your interest in the family farming property.

43Would you please stand up?

44You are convicted of each of the offences, both on the indictment and the summary offences.

Ancillary Orders

45Before I proceed to the forensic sample order I should have asked, is there any difficulty with that order being made?

46MR BARTON:  No.  If Your Honour is making enquiries, no.

47HER HONOUR:  All right.  Then I make an order for forfeiture and disposal, which are not opposed by you, in accordance with the documents provided to me by the Crown.

48I also make an order for a forensic sample to be taken by way of a buccal swab from the mouth.  I make the order:  because of the seriousness of the offending; because the order is not opposed; and because I regard it as being in the public interest to make the order.  If you do not cooperate in the taking of the sample, reasonable force may be used by the authorised officer or officers to take the sample.

49You are sentenced to the following periods of imprisonment:

Charge 1, four years;

Charge 2, eight months;

Charge 5 summary offence in relation to the firearm, two months;

Charge 6 summary offence in relation to the ammunition offence you are fined $200 and I grant you a stay of six months in order to pay that fine.

50I direct that the sentences that I have just imposed be served wholly concurrently with each other, producing a total effective sentence of four years, and I direct that you serve 18 months’ imprisonment before becoming eligible for parole.

51If not for your pleas of guilty I would have sentenced you to a total effective sentence of six years' imprisonment with a non-parole period of four years’ imprisonment.

52I declare that you have already served 94 days by way of
pre-sentence detention.

53Take a seat for a moment, please, sir.

54Is there anything arising from those remarks?

55COUNSEL:  No, Your Honour.

56HER HONOUR:  All right, yes, thank you.  Mr Barton, did you need to have a word with your client before he is removed?

57MR BARTON:  No, I will see him downstairs later today.

58HER HONOUR:  All right, yes, thank you.  Yes, if you could please remove Mr Kenny.  Thank you, we will now adjourn.

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