Director of Public Prosecutions v Laidlaw

[2022] VCC 156

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-01295

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER LAIDLAW

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2022
DATE OF SENTENCE:	21 February 2022
CASE MAY BE CITED AS:	DPP v Laidlaw
MEDIUM NEUTRAL CITATION:	[2022] VCC 156

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:            Theft - cultivation of cannabis plants commercial quantity - trafficking cannabis - deal property suspected of being proceeds of crime - fail to comply with direction without reasonable excuse

Legislation Cited:     Sentencing Act 1991

Cases Cited:DPP v Selaci [2020] VSCA 276

Sentence:                 38 months' imprisonment, 24 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Ms H. Edwards Mr S. Davison	Office of Public Prosecutions
For the Accused	Ms E. Clark	James Dowsley & Associates

HIS HONOUR:

1Peter Anthony Laidlaw, you have pleaded guilty to an indictment charging you with an offence of theft, for which the maximum penalty is imprisonment for
10 years, an offence of cultivation of a cannabis plant in a commercial quantity, for which the maximum sentence is imprisonment for 25 years, and an offence of trafficking in cannabis for which the maximum penalty is imprisonment for
15 years. 

2You have also pleaded guilty to two related summary offences, namely, an offence of dealing in $32,090 in cash suspected of being the proceeds of crime (Summary Charge 6) and an offence involving a refusal to comply with a direction by police to provide the PIN for your mobile phone (Summary Charge 7), for each of which the maximum penalty is imprisonment for two years.

3You have also admitted your prior criminal history, which included three separate convictions between 1994 and 2001 for cultivating cannabis and a conviction in 1994 for trafficking in cannabis.

4The prosecution tendered and read to the court a Summary of Prosecution Opening dated 9 February 2022 (Exhibit A).

5The offending charged in the indictment occurred at your home in Pakenham which you had occupied with your partner, and now wife, for about two years.  The property comprised a single-storey dwelling house and a two-storey shed divided into five separate rooms.

6On 14 July 2020 at about 7 am police executed a search warrant at the property.  Upon their arrival you emerged from the shed and immediately directed them to its contents.

7Police found a sophisticated hydroponic system with heat lamps, timing devices and irrigation equipment set up throughout the shed.  They also found 99 unharvested cannabis plants growing at various stages of maturity weighing a total of 32 kilograms and eight tubs containing a total of 27.12 kilograms of freshly cut cannabis plants.  The combined weight of cannabis plants from those two sources, namely 59.12 kilograms, is the foundation of Charge 2 on the indictment.  That total is more than twice the legislative threshold for a commercial quantity.

8Police also found a total of 7.33 kilograms of dried loose cannabis.  That amount is the foundation for Charge 3, trafficking in cannabis. 

9An electricity bypass device was concealed behind the electricity meter in the shed.  The device was found to be connected and operating.  Enquiries reveal that the bypass device had been installed on 18 May 2020.  You used it between that day and 14 July 2020 to steal $4432.33 worth of electricity.  That is the foundation for Charge 1 on the indictment.

10Police found a total of $32,090 in cash at the property, which is the subject of related Summary Charge 6.  They also seized the mobile phone that you produced from your trouser pocket.

11You were arrested and interviewed at the Pakenham police station.  Apart from admitting that a car parked at your property belonged to you, you made no comment to all questions concerning your offending.  When directed by police to provide the PIN for your mobile phone, you refused.  That refusal is reflected in related Summary Charge 7.

12Turning to matters personal to you.  Your counsel tendered a written outline of plea submissions (Exhibit 1) and a letter concerning the health of your wife, including reference to her stresses arising from the predicted consequences of your offending (Exhibit 2).  I was provided with letters addressing many fine personal qualities you have demonstrated consistently during your life and the extreme remorse you feel for the impact your offending conduct has had on your family and friends.  Those documents are collectively Exhibit 3.

13Your wife's letter is particularly instructive of those fine personal qualities and of the difficulties you have had in overcoming the effect of your father's physical and emotional abuse of you throughout your childhood and of his serious criminal conduct towards your daughter.

14I was also provided with a bundle of documents gathered by the GP clinic you attended which catalogue various physical injuries and the treatments you received, which have apparently only been partially successful.  It is apparent that you continue to suffer from significant pain for which you have received various medications over time.  Those documents are collectively Exhibit 4.

15They were supplemented by a letter from a Dr Hammond dated 16 February 2022 which summarised the essence of clinical notes kept by a professional colleague evidencing the fact that from January 2021 you had been prescribed (in lay terms) 'medicinal cannabis oil' for your pain at a rate of 0.5ml twice daily (Exhibit 5).  I note that the letter suggests that on a follow-up appointment on 21 May 2021 you told the treating doctor that you had entered 'semi-retirement', that you no longer used the initially prescribed dose of cannabis oil and were using 'around 0.5ml maybe twice a week'.  However I was told by your counsel at the plea hearing that you had, I assume from a date subsequent to 21 May 2021, been working six days a week to make financial provision for the needs of your wife in anticipation of your being sentenced to imprisonment for these offences.

16After a difficult upbringing, you have apparently been gainfully employed throughout your life, mostly as a bricklayer.  You have a history of cannabis use going back to the mid-1990s.  You had a serious motorcycle accident when you were aged 20 which has left you with ongoing leg pain.  You have also had surgery for bilateral carpal tunnel syndrome and continue to suffer from arthritis and high blood pressure.  You are naturally anxious and distressed at the impact your inevitable incarceration for these offences will have on your family.

17Your criminal history, particularly prior convictions for cultivating cannabis plants, is relevant although relatively ancient.  I accept that the sentences you received for the offences in 1996 and 2001 support the conclusion that the cultivation of cannabis in those cases was to support your own use.  I also accept that your continuing use of cannabis and cannabis oil during that period was motivated, at least in part, by your efforts to manage your ongoing pain without resort to prescribed opioids.

18I intend to give you a substantial discount of sentence as a result of your pleas of guilty, particularly in these COVID times.  I accept that you have expressed deep remorse for the effects upon your family and friends of the consequences of your offending.  I also take into account the continuing harsher than usual conditions of incarceration in the current prison environment and that your ongoing medical conditions will impose additional burdens upon you whilst serving sentence.  Your wife's medical and psychological conditions will no doubt play on your mind and further increase that burden. 

19I conclude that all these factors will reduce the risk of you offending again and I regard your prospects of rehabilitation as good.

20In all the circumstances, I intend to impose a substantially more lenient sentence than I would otherwise consider appropriate for offending conduct of the kind to which you have pleaded guilty. 

21That said, you were the principal in this criminal enterprise.  You clearly stood to gain significant financial reward.  This was a truly commercial activity.  Although Charges 2 and 3 on the indictment allege offending on the day of your arrest only, the infrastructure in the shed did not materialise overnight.  The hydroponic systems used in the cultivation of cannabis plants required careful selection and planning.  The installation and use of an electricity bypass between 18 May and 14 July 2020 left you more than ample opportunity to consider, reconsider and reconsider again the nature and consequences of your criminal conduct.  You must have been acutely aware of the consequences of detection, not just for yourself but for your wife and family.

22I can only conclude that greed overcame any pangs of conscience or sense of responsibility to your family prior to your arrest on 14 July 2020.  The weight of cannabis plants the subject of Charge 2 is more than twice the threshold for a commercial quantity, although well short of the threshold for a large commercial quantity.  The offending as a whole requires the court to impose sentences that adequately denounce your offending and serve to deter others from giving way to similar temptation.

23I accept that there is some overlap in the offending covered by the charges in the indictment and related Summary Charge 6.  But there is no such overlap in the offending in relation to Summary Charge 7.

24I am conscious of the need for parsimony and to observe the totality principle in sentencing you.  The degree to which I order cumulation of sentence is intended to reflect those sentencing principles as well as to ensure adequate punishment for what I regard as serious episodes of offending.

25I have received assistance from both counsel in identifying current sentencing practice.  I have also considered the judgment of the Court of Appeal in DPP v Selaci [2020] VSCA 276, although I note that that decision was concerned with sentencing orders that preceded the COVID-19 pandemic. Many of the precedents to which I was referred by counsel involved offenders who were either crop-sitters, had roles in the offending below the level of principal or whose enterprise was less sophisticated or was directed to less significant financial reward.

26It is conceded pursuant to s5(2H) of the Sentencing Act that I am required to impose a term of imprisonment.  However it is apparent that even without that legislative requirement, nothing less than a substantial term of imprisonment is warranted.

27Peter Anthony Laidlaw, I now proceed to sentence you.

28On Charge 1 you are convicted and sentenced to imprisonment for one month.

29On Charge 2 you are convicted and sentenced to imprisonment for 33 months.

30On Charge 3 you are convicted and sentenced to imprisonment for six months.

31On related Summary Charge 6 of dealing in cash suspected of being the proceeds of crime, you are convicted and sentenced to imprisonment for four months.

32On related Summary Charge 7 of failing to comply with a direction to provide the PIN for your mobile phone, you are convicted and sentenced to imprisonment for three months.

33The sentence of 33 months imposed on Charge 2 on the indictment is the base.  I order that two months of the sentence imposed on Charge 3 on the indictment, one month of the sentence imposed on Summary Charge 6 and two months of the sentence imposed on Summary Charge 7 be served cumulatively upon one another and upon the sentence of 33 months' imprisonment imposed on Charge 2 on the indictment.

34The total effective sentence is therefore imprisonment for 38 months.

35I fix a non-parole period of 24 months.

36Pursuant to s6AAA of the Sentencing Act I declare that but for your pleas of guilty, I would have sentenced you to imprisonment for 54 months with a non-parole period of 36 months.

37I make the orders for forfeiture and disposal sought by the prosecution.

38Are there any other matters, counsel?

39COUNSEL:  No, Your Honour.

40HIS HONOUR:  Is there any need, Ms Clark, for me to mention anything in the sentencing orders about custody issues?

41MS CLARK:  No, Your Honour, he has medical documentation that he will take with him.

42HIS HONOUR:  All right, thank you.  Remove the prisoner please.  Adjourn the court.

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