Director of Public Prosecutions v Leggett and Leggett
[2012] VCC 703
•25 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00154
CR-11-00155
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CORAL LEGGETT RONALD LEGGETT |
---
JUDGE: | His Honour Judge Gullaci | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 25 May 2012 | |
CASE MAY BE CITED AS: | DPP v. Leggett and Leggett | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 703 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K. Swadesir | |
| For the Accused | Mr P.A.S. Skehan |
HIS HONOUR:
1 Ronald and Coral Leggett, you have pleaded guilty to Charge 1, cultivate a narcotic plant namely cannabis, not less than a commercial quantity. Maximum penalty is 25 years imprisonment. Charge 2 traffic in a drug of addiction being cannabis. Maximum penalty 15 years imprisonment.
2 Each of you have also pleaded guilty to a summary charge relating to possession of property suspected of being the proceeds of crime where the maximum penalty is two years imprisonment.
3 The circumstances of your offending are set out in what has been referred to as the amended prosecution summary on this plea and I propose to refer to some of that material although I make it clear that you are to be sentenced on the basis of the contents of that summary which has not been challenged by counsel.
4 You have been charged from circumstances surrounding the hydroponic cannabis crop on a property owned by you and situated at lot 2, Derrinal‑Crosbie Road, Toolleen. You each have also pleaded to trafficking and associated summary charges I have just set out.
5 On 23 September 2009 police executed a search warrant at those premises. No person was present at that time.
6 On 29 September police again attended and executed a further warrant. You were both present when the warrant was executed. You, Ronald Leggett, advised the police that you were cultivating cannabis and proceeded to show them where.
7 You took police to various shedding on the property and you also indicated a large shipping container that had been buried underground. At the entrance to the container were two boxes containing mouldy material weighing about 3.28 kilograms. The entrance to the container was a ladder access via a trap door entrance as can be seen in Photographs 20 to 25.
8 Upon entering police located heat lamps, shrouds, transformers, fans and other items. Not far from the entrance of the container was a large yellow generator that had been used to power the heat lamps. The extract to the container had been carefully hidden in the yard by the placing of an old truck cab over the vent.
9 The main body of the shed held one mature cannabis plant and there were also 68 seedlings or cuttings that were growing in pots under heat lamps. The main body of the shed also contained 69 harvested plant stems. See Photographs 37 to 39.
10 A room at the end of the shed had another room set up to cultivate cannabis and contained heat lamps, shrouds, transformers and fans. No plants were being cultivated at that time, but the room was being used as a drying room as cannabis heads were found drying on a rack. See Photographs 54 and 88. The weight of this dried cannabis was 719.1 grams. Located in a freezer in the main area of the shed was a quantity of green unidentified matter weighing 1.73 kilograms.
11 At the rear of the shed were two large greenhouses covered and floored with plastic. Gas bottles with heating elements to warm the atmosphere were placed within the houses. Within these two shade houses were 87 mature cannabis plants weighing a total of 54.55 kilograms. See Photographs 60 to 70 and 96 to 101. You, Mr Leggett, advised police that these cannabis plants had been moved from the container into the greenhouses to mature. Both the greenhouses were concealed by a 10 foot high metal fence constructed from sheeting and adjoined to the shed.
12 When the police returned to the shed you, Mr Leggett, showed them a wooden cupboard which contained a metal toolbox padlocked to a bench. The wooden cupboard contained 122 snaplock bags with one ounce of cannabis ready for sale weighing a total of 3.38 kilograms and the toolbox contained 60 locked bags with one ounce of cannabis ready for sale weighing 1.75 kilograms. See Photographs 48 and 49. Beside the toolbox was a preparation area with scales, snaplock bags, pots, nutrients and an old freezer containing cannabis clippings.
13 In a second growing room police were shown a cupboard box containing a further 26 snaplock bags with one ounce of cannabis ready for sale weighing 727.1 grams. See Photographs 55 to 57. Other snaplock bags were located inside the premises.
14 In the office area of the house a 120-page exercise book containing cash amounts and quantities demonstrating the sales of the one ounce snaplock bags of cannabis for $200 a bag.
15 The search of the property located transformers, shrouds, lights, fans and air filters used for cultivating cannabis. The full list is contained in the summary, I do not propose to repeat it.
16 The weight of the cannabis seized was as follows: plants by 155, 55.493 kilograms; harvested cannabis 7.077 kilograms; leafy stems by eight, 1.9 grams and mixed or identified material, 5 kilograms.
17 You were each interviewed at length in records of interviews and they have been summarised in the summary provided by the Crown. I do not propose to repeat those summaries in my sentencing remarks.
18 By way of summary Charge 1 relates to the cultivation of all the cannabis found at the property other than that referred to in Charge 2, that cannabis had a total weight of 61.7 kilograms. Charge 2 relates to trafficking activities by the two of you from 1 October 2008 to 29 September 2010 as evidenced by the 2010 bags of cannabis found on the property ready for sale with a total weight of 5.87 kilograms, the admissions contained in each of the records of interviews and the entries in the exercise book found in the office area of the house.
19 The summary charge relates to the $150 cash found in the blue safe and an Olympian diesel powered generator valued at $8500.
20 I turn to matters personal to you, Ronald Leggett. You are currently 63 years of age. You were brought up in the Sunshine area and attended both primary and secondary school in that area. You left school at the age of 13 and worked as a wool classer for a short period of time then trained and worked as a bricklayer with your father. It was in that employment you came into contact with asbestos. You also have an interest in training horses. You have attempted many business ventures outside bricklaying during your working life, but were spectacularly unsuccessful.
21 You have been married to the co-accused since 1968 and have been a good and supportive parent to your children. You have worked as a bricklayer for most of your working life and assisted and trained numerous young men in that trade including your own son.
22 You were diagnosed with an asbestos-related lung disease in 1997. You now have significant health problems which have greatly reduced your mobility. Your wife is your primary carer including personal hygiene. You are also morbidly obese, currently weighing about 175 kilograms. You have been under medical care for many years and take various medications.
23 A report from a psychologist Mr Newton was tendered on your behalf. Mr Newton concluded inter alia:
(1) that you openly acknowledge your guilt and express regret for your actions;
(2) that you have significant medical problems which cause you profound difficulties in your capacity to carry out your normal daily activities;
(3) that you suffered from significant levels of anxiety and distress;
(4) that you fear the outcome of these court proceedings;
(5) that you require supervision to ensure you do not self-harm if incarcerated;
(6) that you do not suffer from any psychosis or formal thought disorder;
(7) that you are well able to appreciate the nature and quality of your actions;
(8) that you meet the diagnostic criteria for adjustment disorder which is reactive in nature;
(9) that you would have significant difficulties coping with any custodial sentence and as such any sentence would be more onerous on you.
24 A number of medical reports have been tendered on your behalf including reports by Dr Coster, Dr Russell and a report from Ms McDonald. These reports set out the history of your medical difficulties, your current medication regime, your assessment from your asbestos lung disease and its likely impact on your life expectancy.
25 These reports establish the following in my view:
(1) that you have significant and ongoing medical problems that impact on your daily capacity to live on a day to day basis;
(2) that you are reliant on your wife as your primary carer and that you are effectively incapable of looking after yourself;
(3) that your mobility is significantly compromised and you rely on a walking stick to move for a few metres and otherwise on a motorised scooter;
(4) that as a result of your various ailments you have an estimated life expectancy of two to 10 years.
26 On the second day of the plea hearing evidence was led by your counsel from Mr Munny who is the director of the Corrections branch, who gave evidence as to the facilities that exist to cope with a prisoner with your needs. Mr Money stated that you could be accommodated at St John's Hospital which is based at Port Phillip and that there are adequate medical staff to meet all of your needs. The hospital is a 20-bed hospital that is staffed by nursing and medical officers 24 hours a day. You will also have access to physiotherapy and other professionals as required.
27 Mr Money stated that there are facilities within the hospital for you to have access to a walking stick and a motorised scooter, further he stated that you would have access to alarm buttons or a transmitter in case of a fall and there were also facilities for visits and for any exercise that you're able to participate in.
28 I turn to factors to be taken into account in your favour.
(1) Your plea of guilty entitles you to a sentencing discount.
(2) You have no relevant prior convictions and should be treated as a first offender.
(3) You have struggled to provide for your family and this criminal conduct has resulted in you facing a term of imprisonment for the first time in your life.
(4) You have a number of serious health issues as set out above and your life expectancy is compromised.
(5) You have made a contribution to your community in your chosen trade as a bricklayer and also as a horse trainer.
(6) A term of imprisonment will be more onerous on you than other members of the community in good mental health.
(7) You will be isolated and likely to be restricted to a hospital and will not have the benefit of your wife as your constant companion and primary carer.
(8) There is no evidence that you made significant profits from your criminal offending.
(9) You face automatic forfeiture of your interest in the property where your criminal activities took place.
(10) Whilst the value of the property is modest it is the only home that you and the co-accused have and its loss will significantly impact on both of you for the rest of your lives.
(11) You demonstrate some remorse.
(12) There has been a delay since these matters first arose and you have not offended during that delay period.
29 I turn to submissions of your counsel. Your counsel submitted that the circumstances of your offending warrant the imposition of a term of imprisonment however he submitted any such term should be wholly suspended. He relied on the matters listed above as matters to be taken in to account in your favour and in addition submitted:
(1) that a term of imprisonment, even of short duration, may mean that you will die in prison either from the progressive illness or an infection as you are more prone to infections than other people in good health;
(2) that this adds to the onerous nature of any term of imprisonment to be immediately served;
(3) that if the court determined to impose a term of imprisonment then the court should impose a longer than usual parole period.
30 I turn to submissions of the Crown prosecutor. The learned Crown prosecutor submitted the circumstances of your offending warrant the imposition of a term of imprisonment to be immediately served in the range of three and a half to five years with a minimum term of two to three and a half years and that the court in setting the term of imprisonment should consider the following matters:
(1) that you have no prior convictions;
(2) that there was an early plea;
(3) that you made admissions;
(4) your age and medical condition;
(5) the automatic forfeiture provisions apply;
(6) the duration, the sophisticated nature of the set up and the trafficking involved in your offending;
(7) that you were the primary mover and that your wife was subservient to you.
31 I turn to matters of significance. These are matters which I regard as of significance.
(1) The matters personal to you including your medical condition.
(2) Any sentence of imprisonment is much more onerous on you than anybody else in the community.
(3) That you have a reduced life expectancy.
(4) That your medical state is precarious and you are subject and prone to infections.
(5) The duration of the period of cultivation and trafficking.
(6) That this was a sophisticated set up designed specifically to grow cannabis for sale and profit.
(7) That you have trafficked significant amounts of cannabis and had a significant number, over 200 bags, of one ounce bags ready for sale.
(8) That your criminal conduct was ongoing and in my view motivated by greed as conceded by your counsel.
(9) That you have forfeited your interest in your home.
32 Relevant sentencing considerations for crimes such as these involve a combination of factors; the seriousness of the offences, your culpability for their commission, your personal history and circumstances, mitigating factors that exist in your case and your prospects for rehabilitation.
33 In my view you have good prospects of rehabilitation. You have no relevant prior convictions. You are 63 years of age, have significant and profound medical problems and any sentence of imprisonment will be of a great deterrence to you and in my view you are unlikely to commit such serious crimes again in the future.
34 General deterrence is a significant and primary matter for the court to consider. The matters that you are able to rely upon, as I have listed above, are such as to moderate the impact of general deterrence because, in particular, of your medical condition, health issues, as set out above, in the reports tendered and references to the contents of the reports tendered on your behalf.
35 However general deterrence is still a proper matter for the court to consider and take into account. Those who are motivated by greed to grow substantial amounts of cannabis and then engage in trafficking as you did must expect the courts will denounce and punish those who are detected and also impose sentences that deter others.
36 In my view it is not of much assistance to you to say that you cultivated and trafficked cannabis on this scale because of a desire to amass funds to leave to your dependants. You were determined to proceed with your criminal conduct. You prevailed on your wife to do, according to what has been presented to me, all the physical work involved in this, in setting up this extremely large and sophisticated set up.
37 In my view your moral culpability is high. You set out to grow as much cannabis as you could over the period of time with the sole purpose of making as much money as you could.
38 I have considered how the sentences to be imposed relate to each other and have determined there should be some cumulation for the following reasons:
(1) the offences are discrete;
(2) each of the offences on the Indictment are serious examples of that type of offending to come before the court;
(3) the total effective sentence should reflect your total criminality.
39 I have also considered the part of the sentence that you should be required to serve immediately and have fixed that keeping in mind all the matters listed above as matters of significance and also matters listed as matters to be taken into account in your favour, in particular your medical condition and other matters as I have listed above.
40 I now turn to you, Coral Leggett. You are 61 years of age and, as I just referred on a number of occasions, you are the primary carer for your husband the co-accused. You also grew up in Sunshine. Your father was a drunk and violent. You attended the local schools until Year 11 and married at the age of 17. You have three children and each of have been involved in the family bricklaying business.
41 For a period of time the family lived in Queensland whilst your husband worked in Victoria as a bricklayer. You have struggled financially and it appears each time you managed to purchase a property for various reasons you managed to lose it. You purchased your current property out of proceeds from your husband's payout in 2007; that payout related to his medical condition.
42 You and your husband have been married for 43 years and you have stuck with Ronald through thick and thin, no matter what the circumstances. You were initially reluctant to engage in this criminal offending, but once you decided to get involved you were a willing and significant participant.
43 I look at the photographs of this enterprise and I wonder how a woman of your age could have built the structures. I am told that you are good with your hands and that you did it all by yourself. It defies common sense in my view.
44 You were an active trafficker of cannabis. You were running a business of cannabis trafficking and that can be seen from the circumstances from your admissions and from your records that you kept meticulously of your criminal drug trafficking activities.
45 A report from a psychologist Ms Matthews was tendered on your behalf. Ms Matthews reported inter alia:
(1) that you had tried to talk Ron out of the cultivation of cannabis, but decided to help him because you knew he was going to do it anyway;
(2) that you say that you are sorry for what you have done and presented with insight;
(3) that you have symptoms of depression reactive to your current circumstances;
(4) that you were the subservient partner in your marriage;
(5) that you are likely to experience prison as being more onerous than most in the community as I understand her report.
46 I turn to factors to be taken into account in your favour.
(1) You have no prior convictions.
(2) You were cooperative with the police, made admissions, your plea of guilty was entered after appropriate negotiations and entitles you to a sentencing discount; the same as for the co-accused.
(3) You did not initiate the criminal offending, but, as has been agreed between the parties, you were prevailed upon by your husband to engage in the criminal conduct.
(4) You have also made a contribution to your community. You have brought up a family under financial stress and are devoted to your husband of over 40 years.
(5) As I have stated on a number of occasions you are the main carer for your husband and he is significantly dependent on you in every facet of his life.
(6) You fear separation from your husband and have concerns for his welfare, as well you fear the separation from your family which, in my view, will make any term of imprisonment to be immediately served more onerous on you than any other members of the community.
(7) The automatic forfeiture provisions apply and it means that you and your husband, as I have stated above, will face the prospect in the future of living away from the home that you have been residing in for some years.
(8) Again in your case there was no evidence that you amassed significant profits from your criminal offending despite the size of the set up and the extent of your trafficking over the charge period.
(9) Separation from your husband will have a significant deterrent effect and impact on you in my view.
(10) There are good reasons why your counsel's submission as to parity should be rejected by the court. In my view a different sentence should be imposed on you than the one to be imposed on your husband for the following reasons:
(1) it was not your idea to engage in this criminal offending;
(2) the bond between you and your husband meant that you would be prepared to assist him no matter what he decided to do;
(3) that whilst your role was significant, as I have set out above, you were influenced by your husband as well as the clear desire to make money.
47 I turn to submissions of your counsel. Your counsel conceded the circumstances of your offending warranted the imposition of a term of imprisonment however he also submitted that should be wholly suspended. Mr Skehan relied on the matters listed above as matters to be taken in to account in your favour in support of his submission. He further submitted:
(1) that you should receive the same sentence as your husband as his medical condition was cancelled out by the fact that you were prevailed upon by him to engage in the criminal offending;
(2) that both specific and general deterrence could be met by a wholly suspended sentence;
(3) in oral submissions he submitted that there should be total concurrency between any sentences imposed however in written submissions he submitted that any sentences imposed should be largely concurrent because the sole purpose of each offence was to profit from the cultivation of cannabis. I reject this submission. Although it is clear in my view that you were motivated to offend at significant levels with the expectation of making money, the offences are discrete and in my view are serious examples of this type of offending to come before the court. However keeping in mind that the offences occurred in the one course of conduct and were clearly intertwined I propose to order only some cumulation between the sentences to be imposed on Charges 1 and 2.
48 I turn to consider specifically your role in this offending. As I stated above I am satisfied beyond reasonable doubt that it was Mr Leggett who initiated the growing of cannabis; that you were initially reluctant but agreed to help him. However in my view this enterprise would never have got started if it was not for the role that you played.
49 Despite my misgivings about you having completed all these works by yourself that is what has been put to me by all parties. The photographs tendered demonstrate the significant structures that had to be built to enable this set up to operate. According to your admissions in your record of interview and what was put to me on your behalf you did all this work yourself. You did all the physical work involved in the cultivation and you were an active trafficker of cannabis over the charge period as demonstrated by the book of accounting that you kept.
50 You engaged in large scale cultivation of cannabis and significant trafficking. In that book it is reflected that the transactions in that book totalled $34,000. When you add to that the number of snaplock bags of cannabis which had been bagged ready for sale at $200 each that indicates in my view the level and the nature of your drug trafficking activities. You also have admissions as to other sales by you during the Giretti count as laid against you and your husband.
51 The learned Crown prosecutor submitted that the Crown accepted the parity argument put by Mr Skehan and that the same sentence should be imposed on each of you.
52 The Crown conceded that you were influenced by your husband, but relied on your good health and your personal circumstances and submitted that your husband's medical condition was to be taken into account however that was cancelled out by the fact that you were prevailed upon by your husband to join this enterprise. For the reasons I have set out above I reject both the defence submission and the Crown submission on that issue.
53 Relevant sentencing considerations are the same for you as for your husband. I do not propose to repeat them but adopt. In my view you have good prospects for rehabilitation and are unlikely to engage in this type of offending again in the future.
54 I have considered the primary submission of your counsel and have determined to reject for the following reasons:
(1) the size of the hydroponic set up operated by you and the co-accused for the purposes of ongoing cannabis cultivation;
(2) the duration of the period of cultivation;
(3) the extent and nature of the trafficking;
(4) that you played a pivotal role both in the cultivation and the trafficking of the cannabis.
55 I have considered the sentence to be imposed on each of the offences and have determined there should be some cumulation for the following reasons:
(1) the offences are discrete;
(2) each of the Indictment offences are serious examples of this type of offending to come before the courts;
(3) the total effective sentence must reflect your total criminality.
56 I have considered the period you will be required to serve immediately and have fixed that period keeping in mind:
(1) the matters personal to you;
(2) that the impact of the separation from your husband of 40 years and from your family, the impact of that on you;
(3) that in the circumstances where both you and your husband are to be sentenced to a term of imprisonment there are good reasons why I should impose a lesser term of imprisonment to be immediately served on you than your husband.
57 In my view it will be of great assistance to both you and Mr Leggett in endeavouring to pick up the pieces of your life after this sentence is served if you are able to visit him while he is still in prison for at least part of the time that he is required to serve in prison. Because of the close bonded position you occupy in his life I have decided to impose a merciful sentence on you so as to facilitate you and Mr Leggett returning to the community and to your family after serving the sentences that I am about to impose.
58 I now turn to the formal orders of the court. You can both remain seated while I do that. I will firstly deal with you, Ronald Leggett.
59 The formal order of the court is as follows: Charge 1, cultivate cannabis not less than a commercial quantity, you are sentenced to two years and four months imprisonment. On Charge 2, trafficking cannabis, you are sentenced to 14 months imprisonment. On the summary charge, proceeds of crime, you are sentenced to four months imprisonment.
60 I order four months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. The total effective sentence is two years and 10 months.
61 I order that two years of that sentence be suspended for a period of three years. I inform you that if you breach the order of the court, partially suspending the sentence imposed by this court, by committing any offence which carries with it the potential for the imposition of a term of imprisonment during the operational period of three years that will breach the order of the court, bring you back before this court, most likely before me. Unless you can then demonstrate exceptional circumstances you will be required to serve the sentence that I have partly suspended. Do you understand what that means?
62 PRISONER R. LEGGETT: Yep.
63 HIS HONOUR: I just want to make sure you do. It does not have to be a drug offence that would breach the order of the court partially suspending the sentence. It could be a driving offence, it could be the theft of a can of soft drink out of a shop; any offence which carries with it the potential for the imposition of a term of imprisonment would breach the order of the court.
64 I propose to make a disposal order and a forfeiture order by consent.
65 The Crown has made an application for an intimate sample pursuant to s.464ZF of the Crimes Act. I propose to make an order for the taking of a sample of your saliva for the following reasons:
(1) the circumstances of your offending;
(2) that the order is not opposed or consented to;
(3) that the making of the order is in the public interest.
I inform you the police may use reasonable force to enable that sample to be taken.
66 I make a pecuniary penalty order in the sum of $34,600 by consent.
67 Pursuant to s.6AAA of the Sentencing Act I am required to inform you what sentence I would have imposed if you had pleaded not guilty and been found guilty by a jury. I would have imposed a head sentence of four years and six months and fixed a minimum term of 24 months. I hasten to add that is not the sentence of the court. The purpose of giving you that indication is so that you can better appreciate the value of your plea of guilty.
68 I turn now to you, Coral Leggett. The formal order of the court with conviction - and it is conviction for both accused - Charge 1, cultivate cannabis not less than a commercial quantity, you are sentenced to 18 months imprisonment. On Charge 2, trafficking cannabis, you are sentenced to 12 months imprisonment. On the summary offence you are sentenced to two months imprisonment.
69 I order four months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. The total effective sentence in your case is 22 months.
70 I order that 18 months of that sentence be suspended for a period of two and a half years. Again, in your case, you have just heard me explain to your husband a partially suspended sentence means. I will repeat it to you in a summary way. If you breach the order of the court by the commission of any offence during the operational period which carries with it the potential for a term of imprisonment that breaches the order of the court, brings you back before me. Unless you can then demonstrate exceptional circumstances you will be required to serve the part of the sentence that I have suspended.
71 Again in your case I make a disposal order and forfeiture order by consent.
72 I propose to make an order for the taking of a sample of your saliva, as for the co-accused for the same reasons. I also in your case inform you that the police may use reasonable force to enable that sample to be taken.
73 I also make a pecuniary penalty order in the sum of $34,600.
74 Pursuant to s.6AAA of the Sentencing Act I am required to inform you what sentence I would have imposed had you pleaded not guilty and been found guilty by a jury. I would have imposed a head sentence of three years and fixed a minimum term of 15 months. Again I hasten to add that is not the sentence of the court. The sentence of the court is the earlier sentence that I announced.
75 That completes my remarks. Any matters that counsel want to raise?
76 MR SKEHAN: No, Your Honour.
77 MS SWADESIR: No thank you. Your Honour pleases.
78 HIS HONOUR: No, all right. Yes, Mr and Mrs Leggett are now excused. The clear medical conditions should be taken heed of. The orders are signed.
79 MS SWADESIR: Thank you, Your Honour.
80 HIS HONOUR: I will stand down for a couple of minutes until the other matter is ready to proceed.
---
0