Director of Public Prosecutions v Limbourne
[2023] VCC 930
•2 June 2013
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01900
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS JEFFREY LIMBOURNE |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 April 2023 | |
DATE OF SENTENCE: | 2 June 2013 | |
CASE MAY BE CITED AS: | DPP v Limbourne | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 930 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Cultivation of a narcotic plant (simplicitor) – Serious example of the offence – Theft – Financial hardship during pandemic – COVID pandemic – Stable and supportive family – Good employment history –Limited prior criminal history – Adult ADHD diagnosis – General deterrence – Denunciation – Good prospects of rehabilitation – Limited weight to specific deterrence –Combination sentence within range.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 ss 72B, 81 – Crimes Act 1958 ss 74, 461 – Sentencing Act 1991 ss 6AAA, 18.
Cases Cited:Worboyes v The Queen [2021] VSCA 169 – Boulton v The Queen (2014) 46 VR 308.
Sentence: Imprisonment for a period of 6 months with a Community Corrections Order for 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Morris | Office of Public Prosecutions |
| For the Accused | Mr T Antos | Marcevski Lawyers |
HIS HONOUR:
Introduction
1Nicholas Limbourne, you have pleaded guilty to the following charges:
(a) one charge of cultivation of a narcotic plant contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs, Poisons and Controlled Substances Act’), which in this instance carries a maximum penalty of 15 years imprisonment (Charge 1); and
(b) one charge of theft contrary to s 74 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 2).
2You have also admitted your Criminal Record.
Circumstances of offending
3A prosecution opening was tendered on the plea and may be summarised as follows:
4You were 29 years old at the time of offending and resided at an address in Newport. You have one co-accused in this matter, Stephen Wallace, who worked as a truck driver delivering skip bins.
5You are the director of Limbourne Group Pty Ltd, which encompasses companies including Apex Waste Management, Apex Bin Hire and NJ Limbourne Diesel Mechanic.
6Apex Bin Hire and NJ Limbourne Diesel Mechanic have previously operated from 19 Central Avenue, Sunshine, however, Apex Waste Management and Apex Bin Hire now operate at 69 Bunting Road, Brooklyn.
7On the 19 April 2022, the Brimbank Divisional Response Unit of Victoria Police commenced an investigation into the cultivation of cannabis from a factory located at 19 Central Avenue, Sunshine, following members of Victoria Police smelling a pungent smell of cannabis around the factory.
8On 3 May 2022, police executed a search warrant pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act at 19 Central Avenue, Sunshine.
9On inspecting the premises, police located four refrigerated semi-trailers parked inside the factory. In each of the four semi-trailers, police located a hydroponic gardening system equipped with artificial lighting suspended from the ceiling, a self-maintained watering system and a charcoal filter used to eliminate the odour of cannabis. Two trailers appeared to have been previously harvested. The remaining two trailers contained cannabis plants.
10The factory is a small tin shed located on the corner of Second Avenue and Central Avenue, Sunshine. Inside the factory, a small office area occupied approximately a quarter of the floor space. The four refrigerated semi-trailers were positioned in the factory in such a way that there was very little remaining space. A common area with several chairs and rubbish bags were observed to be positioned between a semitrailer and the rear of the office area.
11Inside trailer one, police located a hydroponic gardening system equipped with artificial lighting suspended from the ceiling, a self-maintained watering system and a charcoal filter used to eliminate the odour of cannabis. The semi-trailer was growing a total of 30 cannabis plants, including:
(a) six small plants weighing a total of 2 grams;
(b) 14 plants weighing a total of 20.86 kilograms; and
(c) 10 plants weighing a total of 26.56 kilograms.
12Inside trailer two, police located a hydroponic gardening system equipped with artificial lighting suspended from the ceiling, a self-maintained watering system and a charcoal filter used to eliminate the odour of cannabis. The semi-trailer was growing 19 cannabis plants weighing a total of 20.64 kilograms.
13Inside trailer three, police located a hydroponic gardening system equipped with artificial lighting suspended from the ceiling, a self-maintained watering system and a charcoal filter used to eliminate the odour of cannabis. The semi-trailer was growing five cannabis plants weighing a total of 175.6 grams.
14Inside trailer four, police located a hydroponic gardening system equipped with artificial lighting suspended from the ceiling, a self-maintained watering system and a charcoal filter used to eliminate the odour of cannabis. The semi-trailer was growing 16 cannabis plants weighing a total of 1.43 kilograms.
15Loose Green Vegetable Matter (‘GVM’) was located inside the office area weighing 79.4 grams.
16Loose GVM weighing 59.8 grams was located in a pot beside a semi-trailer where a common area had been set up. Also located in this area were two branched cannabis stems weighing a total of 495.5 grams.
17The total weight of the cannabis plants and loose GVM located and seized was 70.30 kilograms. A total of 70 cannabis plants were located and seized.
18In the common area, a rubbish bag was located. Inside the rubbish bag a large amount of previously trimmed cannabis leaf was located along with Coke cans, beer bottles, blue disposable plastic gloves and a plastic drink container.
19Four 20 litre drums of nutrients used to grow plants were also located in the common area.
20Personal and business mail addressed to you, your company and your partner were observed in the office area.
21Upon further investigation, a Vehicle Identification Plate (‘VIN’) was located on one of the semi-trailers at 19 Central Avenue, Sunshine. The VIN was associated with a 2002 Maxi trans semi-trailer registration 0521S1. The 2002 Maxi trans semi-trailer is currently registered to C&B Ashcroft Transport Pty Ltd.
22The current owner of C&B Ashcroft Transport Pty Ltd is Shane Walters, who stated that the semi-trailer was disposed of during 2021 due to the semi-trailer needing significant repairs. Mr Walters stated the semi-trailer was sold to a ‘Steve’ who utilised the mobile number ending in 3071. ‘Steve’ purchased the semi-trailer with cash and stated it was for spare parts.
23The mobile number ending in 3071 was subsequently linked to the address of 12 Byron Street, Williamstown North, where there was display signage for ‘Wallace Autocare’, with the contact number listed as ******3071.
24Mario Varone, a licensed electrical inspector, attended 19 Central Avenue, Sunshine and removed an illegal electrical bypass which was wired into the electrical system. The illegal electrical bypass installed resulted in the electrical meter giving a false reading of the electricity used. This amount of electricity usage was not recorded by the power meter and was therefore stolen. The illegal electrical bypass was set up in such a way that a portion of power was being paid for by Limbourne Group Pty Ltd.
25A Revenue Protection Investigator from Powercor, Darryl Hamilton, calculated the energy consumption during the period of cultivation, being 23 February 2022 to 3 May 2022. The unmetered energy consumption totalled 40,175 kWhs.
26During the execution of the search warrant at 19 Central Avenue, Sunshine police seized a number of items that are listed in the prosecution opening but included:
· zip lock bags containing loose GVM;
· an illegal electrical bypass; and
· 62 cannabis plants.
27Closed Circuit Television (CCTV) footage was obtained from 27-29 Second Avenue, Sunshine depicting 19 Central Avenue, Sunshine. The footage depicted you and Mr Wallace frequenting the factory at 19 Central Avenue, Sunshine, in the days prior to the search warrant being executed.
28Botanist Emily Sowter from the Victoria Police Forensic Services Centre attended 19 Central Avenue, Sunshine and examined the cannabis plants. The total weight of the cannabis seized from 19 Central Avenue, Sunshine is 70.3 kilograms.
29On 25 May 2022, police executed a search warrant pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act at 12 Byron Street, Williamstown North.
30On inspecting the premises, police located two upstairs storage rooms converted into a hydroponic gardening system equipped with artificial lighting suspended from the ceiling, a self-maintained watering system and a charcoal filter used to eliminate the odour of cannabis.
31The first room was growing six large cannabis plants while the second room contained seven cannabis plants.
32The factory is a small brick building that had previously operated as a business providing vehicle mechanic services.
33Inside the factory several vehicles were observed to be on hoists along with a Hino hook truck (XW34AB) registered to Mr Wallace and two business vehicles belonging to you.
34Personal and business mail addressed to you, Mr Wallace, your company and your partner were observed in the office area.
35Jason Lyttle, a licensed electrical inspector, attended 12 Byron Street, Williamstown North and observed an illegal electrical bypass which was wired into the electrical system. The illegal electrical bypass installed resulted in the electrical meter giving a false reading of the electricity used. The illegal electrical bypass installed was not able to be accessed and removed.
36During the execution of the search warrant at 12 Byron Street, Williamstown North police seized a number of items that are listed in the prosecution opening but included 17 cannabis plants and a CCTV hard drive.
37The CCTV hard drive was unable to be forensically examined due to the hard drive being removed from the unit.
38Botanist Madeline Brenker from the Victoria Police Forensic Services Centre analysed the cannabis on Friday, 11 May 2022. The total weight of the cannabis seized from 12 Byron Street, Williamstown North is 54.4 kilograms.
39On 27 May 2022, you attended Sunshine Police Station. You were arrested and a DVD Record of Interview was conducted in relation to the cultivation of cannabis.
40During the recorded interview, you stated ‘no comment’ to the majority of the questions asked, however, at the conclusion of the interview, you broke down in tears and stated:
(a) you had not benefitted financially for the decision;
(b) that “COVID had been hard on finances”;
(c) that “Courtney knew about one week ago, [you both] Googled ‘traffic cannabis’, [and] didn’t think 12 plants was commercial”;
(d) that “Stephen has fucking killed [you]”; and
(e) that you “made a stupid mistake, [they] have [you] on footage going and all [your] shit is there”.
41On 31 May 2022, police attended your place of business at 69 Bunting Road, Brooklyn. Police located two refrigerated semi-trailers in an area used by you.
42Both of the refrigerated semi-trailers police located contained a hydroponic gardening system equipped with artificial lighting suspended from the ceiling, a self-maintained watering system and a charcoal filter used to eliminate the odour of cannabis, however the cannabis plants had already been harvested.
43A small amount of fresh cannabis leaf left behind indicated the harvesting of the Cannabis had only recently occurred (uncharged act).
44On 1 June 2022, investigators executed a Search Warrant pursuant to s 465 of the Crimes Act at Mr Wallace’s Dockland residence. Police seized an iPhone XS, which was located hidden under a coffee table and contained a Victorian Drivers Licence, Medicare and NAB debit card in Mr Wallace’s name.
45An extraction of the mobile data from the iPhone XS revealed multiple text messages between you and Mr Wallace relating to the cultivation of cannabis at Central Avenue and Byron Street.
Nature and gravity of the offending
46As cultivating cannabis carries a maximum penalty of 15 years imprisonment, it is by its nature, a serious offence.
47In this instance, the total number of plants seized in two locations was 83 plants. The total weight of cannabis found in relation to both locations was 124.7 kilograms. A commercial quantity of cannabis is 25 kilograms or 100 plants. Therefore, while the number of plants is below the commercial threshold, the weight of the cannabis is approximately five times the commercial quantity. However, in this instance you have been only charged with cultivation simplicitor, the prosecution clearly accepting that you did not have the intention to cultivate a commercial quantity.
48When an assessment is undertaken in relation to the nature of the cultivation across both properties, it is clear that in each case, you were involved, together with Mr Wallace, in a sophisticated commercial hydroponic cannabis operation. Each property had an electrical bypass system installed in order to avoid detection, although I note that Charge 2, theft of electricity, relates to the Sunshine crop only.
49Mr Antos, who appeared at the plea on your behalf, submitted that in the circumstances, your role is very much below that of Mr Wallace. It was submitted that given Mr Wallace’s previous criminal history involving very serious drug offending, and his dominant role in this offending, you were somewhat influenced by him which you intimate in your record of interview. However, while the evidence does not disclose any actual financial gain, it is clear on your own admissions at interview, that you were suffering financially as a result of the COVID pandemic and were tempted to become involved albeit at the instigation of Mr Wallace.
50In all the circumstances, I accept the prosecution submission that this is a serious example of the offence of simplicitor cultivation of cannabis.
Personal circumstances
51You are now 30 years old. You were raised in Stawell alongside your three siblings. Your father worked in mines as a diamond driller and your mother worked in aged care. Your parents separated when you were nine. During your childhood you only saw your father over the weekends due to his work. You have maintained a good relationship with your father who now lives in Tasmania.
52You completed Year 9 before obtaining an apprenticeship as a diesel mechanic. You began working as a diesel mechanic in the Stawell and surrounding areas approximately 12 years ago. You have also worked in Western Australia and the Northern Territory completing road works. You relocated to Melbourne approximately 10 years ago to pursue the same line of work.
53In 2012, you opened your own diesel mechanic business in Melbourne’s West. When the pandemic hit, you then began a skip bin and waste removal management company.
54You have not consumed alcohol for the past 10 years. You have tried cannabis twice and in your mid-twenties, you engaged in recreational cocaine use.
55You have a limited prior criminal history consisting of one court appearance in 2012 for unrelated ‘street’ offending for which your received a fine without conviction. In 2022, you were placed on diversion in relation to leaving a fire unattended.
56You have been in a relationship with your partner for the past nine years. You have three children who are all under the age of five years. You live with your partner and children in Melbourne’s West.
57A report prepared by Consultant Psychiatrist, Irina Kolesnikova dated 23 May 2023 was tendered on the plea. Dr Kolesnikova conducted some psychometric tests and clinically assessed you. In her view you presented with symptoms consistent with Adult ADHD and you have begun taking medication, which has assisted you in being able to think more clearly and make better decisions.
58A number of references were tendered from a combination of friends and colleagues. All speak of their surprise upon hearing of your involvement in this conduct. You are otherwise regarded as a man with an excellent reputation in the industry you work in and you are viewed as a man committed to your family and your work.
Sentencing considerations
59I first take into account your plea of guilty. Your plea has saved significant court time and expense and has brought the matter to an early conclusion, thereby facilitating the course of justice. The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]
[1] Worboyes v The Queen [2021] VSCA 169, [39].
60You have a limited prior criminal history, you have a consistent work history and you are in a stable and supportive family environment. You have accepted that you made an error of judgement in becoming involved in this offending when you were in a financially vulnerable situation. In my view, in all the circumstances, your prospects of rehabilitation are very good.
61General deterrence and denunciation of your conduct are relevant sentencing considerations. Others must know that if they contemplate cultivating cannabis at this level, serious consequences will follow. In my view given your limited history and good prospects of rehabilitation, specific deterrence need only carry limited weight in the sentencing equation.
62A crime of this nature would ordinarily warrant a term of imprisonment involving a head sentence and a non-parole period. However it was submitted by the prosecution that in your particular circumstances, an onerous Community Correction Order combined with a term of imprisonment is within range.
63As the Court of Appeal noted in Boulton v The Queen, a Community Correction Order ‘may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.’ [2]
[2] Boulton v The Queen (2014) 46 VR 308 at [131].
64I had you assessed for a Community Correction Order and you have been found suitable.
Sentence
65Mr Limbourne, will you please stand.
66Nicolas Jeffrey Limbourne, on Charge 1, cultivation of a narcotic plant, you are convicted and sentenced to 6 months imprisonment. On Charge 2 theft, you are convicted and sentenced to 2 months imprisonment which is concurrent with the sentence imposed on Charge 1. Thus the total prison component of the combination sentence is 6 months.
67Upon your release you will be placed on a Community Correction Order for a period of 2 years. As a condition of the order you will be required to complete 200 hours of unpaid community work, undergo treatment in relation to your mental health and will be subject to supervision.
68Pursuant to s 18 of the Sentencing Act 1991 (Sentencing Act), I declare that 11 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
69Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 18 months imprisonment with a non-parole period of 12 months.
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