Director of Public Prosecutions v Lipsfield
[2013] VCC 1161
•10 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-11-01635
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEORGE LIPSFIELD |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 – 26 April, 25 July 2013 | |
DATE OF SENTENCE: | 10 September 2013 | |
CASE MAY BE CITED AS: | DPP v Lipsfield | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1161 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentence – Drugs – Cultivate narcotic plants commercial quantity – possess drug of dependence – theft of electricity – two premises – forfeiture of properties
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic) - Sentencing Act 1991 (Vic) – Confiscation Act 1997 (Vic) – Crimes Act 1958 (Vic)
Sentence: Total Effective Sentence of 3 ½ years imprisonment with non-parole period of 2 ½ years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Bourke | OPP |
| For the Accused | Mr J Toal | Michael J Gleesons & Associates |
HER HONOUR:
1 George Lipsfield, you have been found guilty by a jury of two charges of cultivating a commercial quantity of a narcotic plant, two charges of theft, and one charge of possession of a drug of dependence. The maximum penalty for the offence of cultivation of a commercial quantity of a narcotic plant is 25 years imprisonment and the maximum penalty for theft is ten years imprisonment.
2 In this case the maximum penalty for Charge 4, possession of a drug of dependence, is one year imprisonment or 30 penalty units. This is because Charge 4 was an alternative charge laid to the charge of trafficking cannabis, Charge 3, and the jury acquitted you of the charge of trafficking. The Crown submitted that s.73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 applies. Your counsel did not disagree with this approach and I will therefore sentence you on Charge 4 on this basis.
3 Your arrest came about following the execution of two search warrants by the police on 3 February 2011 at two properties owned by you. These properties are Unit 1/27 Bedford Street, Box Hill and 30 Sandy Street, Nunawading. The searches conducted at both properties revealed cannabis plants being grown inside the premises by the use of sophisticated hydroponic growing systems.
4 At trial it was revealed that you had been under police surveillance for several weeks prior to your arrest. In relation to Unit 1/27 Bedford Street you were observed attending the property on five occasions. In relation to the property at 30 Sandy Street you were observed attending the address on three occasions.
5 During the search of the property at Unit 1/27 Bedford Street, cannabis plants were located in three rooms and in a cupboard. In total 38 plants were seized which weighed a total of 45.2 kilos. This was the subject of Charge 1.
6 In addition, two clear plastic zip lock bags containing dried female cannabis flowering heads and weighing a total of 746.9 grams were located in the kitchen.
7 In the dining room police located garbage bags containing harvested cannabis stems and leaves weighing 11.02 kilograms. The harvested and dried cannabis was the subject of Charge 4.
8 When the search was conducted a number of other items were also seized. These included a Sudoku puzzle book, a crossword puzzle book, sheets of newspaper, reading glasses, a cigarette butt in a cardboard pot and a ball of four plastic latex gloves. Forensic testing of these items was conducted and revealed fingerprints matching yours in eight locations in the Sudoku puzzle book and five locations in the crossword book. DNA testing was conducted on the cigarette butt and the ball of latex gloves. You were exclude as a source or contributor to the DNA on the cigarette butt and inside two of the gloves. You could not be excluded as a possible contributor to the DNA located in the remaining two gloves.
9 An illegal electrical bypass was located at the premises. The electricity account was in your name. During the search of the property at 30 Sandy Street, cannabis plants were located in two rooms of the house. 12 plants were seized weighing a total of 49.12 kilograms.
10 A number of other items from Sandy Street were also seized and tested. These included a Sodoku puzzle book entitled Diabolical Sodoku, a cryptic crossword book, several sheets of newspaper, two pairs of reading glasses, a plastic cup, a DVD storage case, a shaver and a can of shaving cream. Forensic testing was conducted on these items which revealed fingerprints matching yours in two locations on the Sudoku book and in two locations on a page from the Whitehorse Leader dated 26 January 2011. DNA testing was conducted on the shaver which revealed a complete single source DNA profile that matched your DNA profile with a likelihood ratio of one in 120,000,000.
11 An illegal electrical bypass was also located at Sandy Street. The electricity account was in your name.
12 At trial you denied that you had any knowledge of the cannabis crops or the theft of electricity and other property. You gave evidence that both properties were tenanted at the relevant time to a father and son, Lee and Michael Williams, whom you had met in 2010 at the Alphington Bowls Club, of which you are an active member. You admitted your attendance at the properties on the various occasions you were observed by police but said that in relation to Bedford Street you had been visiting your friend Mrs Francis Bateson who lived in Unit 2 and never entered Unit 1/27 Bedford Street during the relevant period of the cultivation, nor during the term of the tenancy to Mr Lee Williams which began on 1 September 2010.
13 You produced a written tenancy agreement concerning that property. You said that there was no written tenancy agreement in relation to Sandy Street but that you had rented it to Mr Michael Williams, the son of Leigh Williams, some time in late 2010. You said that in January 2011 you attended outside the house to do some general maintenance, but denied entering the house during the period that it was leased to Mr Michael Williams.
14 In relation to the forensic evidence you admitted that the fingerprints located on the various puzzle books and the Whitehorse Leader newspaper sheet were your fingerprints, however you said that you had left the books at Bedford Street at some time in 2005 and at some stage they had been moved to Sandy Street. In relation to the presence of your fingerprints on the Whitehorse Leader, you said that you had collected some loose sheets of paper, together with various bits of junk mail, and put them on the door step of the Sandy Street property. In relation to the presence of your DNA on a shaver located at Sandy Street, you said that you had shaved when you went to the bathroom, when the police executed the search warrant. Finally in respect of the presence of your DNA on the gloves you explained that you had been spraying blackberries at Bedford Street in the garden some time prior to your arrest and had used a pair of latex gloves that you found in the carport.
15 In convicting you the jury were satisfied beyond reasonable doubt of the following:
16 In relation to the two charges of cultivation of a narcotic plant of a commercial quantity at Unit 1/27 Bedford Street, Box Hill, and 30 Sandy Street, Nunawading, that you intentionally cultivated a plant that was a narcotic plant which was not less than a commercial quantity. In relation to the charges of theft, as in the set up of the electrical bypasses at both properties, you appropriated property belonging to another, namely AGL Electricity. That you did so with the intention of permanently depriving AGL of this property and that you did so dishonestly.
17 In acquitting you of the charge of trafficking cannabis but convicting you of the alternative charge of possession in relation to the quantity to dried and harvested cannabis located at Bedford Street, the jury was not satisfied beyond reasonable doubt that you possessed the cannabis for the purpose of sale, but was satisfied beyond reasonable doubt that you had custody or control of the drug and intended to possess it.
18 I turn to your personal circumstances.
19 You have no relevant prior convictions. You were born in Carlton in 1949 and have one younger sibling. You have been steadily employed throughout your adult life, working as a sales clerk of Whirlpool for ten years before moving to Sanyo where you were employed for a further ten years, eventually becoming a regional area manager. When you left Sanyo you started a business repairing office chairs. This was a successful business. Since being charged with these offences you have handed over your interest in the business to your nephew. You are now casually employed as a retail assistant at the Good Guys.
20 Mr Toal submitted that throughout your working life you have always sought to advance yourself by undertaking additional qualifications and he tendered a bundle of certificates relating to this, the majority of which related to First Aid qualifications.
21 Mr Toal also referred to your involvement with the Alphington Bowls Club. You were heavily involved in the establishment of bare foot bowling, which was a successful campaign to attract people to the club. Tendered photographs attested to your presence at the club, which showed your name on the honour boards. Mr Toal said that you assisted in the organisation of a number of charity functions while at the club and were also involved in the blind cricket and golf associations.
22 Several character references tendered on the plea as part of Exhibit D referred to your involvement in a range of sporting and other clubs, including the Blackburn Hotel Pool Club and the Blackburn Cricket Club.
23 Mr Toal also referred to your role as a disability carer with the Whitehorse Council, which you began on 20 April 2006. As a carer you assisted in the preparation of meals and performed other household chores. As a consequence of these charges you have had to resign from this role. Two letters which were tendered on the plea as part of Exhibit D were authored by people whom you cared for as part of your role as a disability carer. They spoke of your kindness and reliability and as someone who regularly went beyond your required duties.
24 You have had a serious cardiac condition requiring medication since suffering a massive heart attack in 2000. In 2012 you suffered minor stroke from which you recovered fully, however in April 2013 you had an episode of atrial fibrillation requiring hospitalisation for rhythm control and commencement of anti clotting medication.
25 In the medical material tendered on your behalf as part of Exhibit B, your treating cardiologist, Dr Kerr, described your condition as at June 2013 as one of "severe left ventricular systolic dysfunction."
26
Your treating general practitioner Dr Blake has reported in a letter dated
15 May 2013that the recent adverse events of 2012 and 2013 have occurred at a stressful time for you and that you worry about the impact of further stress on you if you are imprisoned. Dr Blake noted that your future medical treatment will comprise continued management of your heart failure and the possibility of surgical procedures to stop atrial fibrillation.
27
Your affidavit, tendered on the plea, which was Exhibit C, outlines the onerous financial consequences to you of these proceedings. You asserted that each of the Bedford Street and Sandy Street properties was lawfully acquired by you and have both been confiscated under the Confiscation Act 1997.
Mr Toal submitted that the forfeiture of your properties should be considered as an additional penalty and that I should take this into account in accordance with s.5(2)(a), Subparagraph A(b) of the Sentencing Act 1991. It was not disputed by the prosecution that the properties were lawfully acquired. I note from your affidavit that you stand to lose $153,512.22 from the forfeiture of the Bedford Street property, and $60,129.44 from forfeiture of the Sandy Street property. I have taken this into account in sentencing you.
28 In addition I also note that in the face of rising legal expenses you have cashed in your superannuation in an effort to repay a loan from your sister and brother in law to whom you still owe approximately $250,000.
29 Mr Toal submitted that the burden of debt has exacerbated your stress levels and impacted negatively on your health.
30 There was no evidence concerning your motivation for this offending. Mr Toal submitted that a suspended sentence of imprisonment was the most appropriate disposition, he submitted this in light of the fact that you have no relevant prior convictions, that you have been an active and contributing member of society through your involvement with the bowls club and other community sporting associations, and your role as a disability carer. He said that the likelihood of your re-offending is remote. I accept this.
31 Mr Bourke for the prosecution submitted a range of between three and a half to five and a half years with a non parole period of between two and a half and three and a half years. Mr Bourke submitted that a suspended sentence was not appropriate given the seriousness of the offending, current sentencing practices, the fact that the offending was spread across two properties, and the lack of any remorse on your part.
32 Mr Bourke also sought a number of orders which were not opposed. A compensation order in the sum of $11,805.25 to AGL Retail Energy Electricity, a disposal order in relation to the cannabis and equipment seized by police from each of the properties, and a retention of forensic sample order in relation to a forensic sample taken in 2011 pursuant to a Magistrate's order. I will make those orders below.
33 The basic purposes for which a court may impose a sentence are punishment, deterrence, both general and specific, rehabilitation, denunciation, and protection of the community. When sentencing I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances, and those of the victim, if any. I am required to balance the interest of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
34 It is difficult in the light of your evidence at trial to determine the extent and significance of your role. There were two crop houses. In each crop house police located cannabis which by weight was double the weight which meets the definition of commercial quantity. Absent any other evidence, it would appear that a commercial enterprise was being undertaken by you or with your assistance at each address.
35 The jury's verdict on the cultivation, possession and theft charges, indicate satisfaction that you, at the very least, grew or tended the cannabis grown in each property, stole electricity via the illegal bypass system at each property, and intended to possess the dried and harvested cannabis found at Unit 1/27 Bedford Street.
36 It was your right to plead not guilty and you cannot be criticised for doing so, however in those circumstances you are not entitled to the sentencing discount that attaches to a plea of guilty, or any indication of remorse that such a plea may have demonstrated. Leaving aside the remorse that is said to be intrinsic to a plea of guilty, I note that there has been no other indication of remorse on your part.
37 You are 64 years old and have no relevant prior criminal history. You come from a supportive family and have had a solid career. You have served the community well in your role at the Alphington Bowls Club, other community associations, and in your role as a disability carer at the Whitehorse Council. Your character references spoke very favourably of your commitment to the local community. You have been financially devastated by these proceedings particularly as a consequence of the automatic forfeiture of your lawfully acquired properties to the State.
38 I take into account that as a 64 year old man with a serious cardiac condition you will require medical supervision and treatment in prison and may therefore experience greater hardship than a young healthy adult. Given that you have no relevant prior convictions and given your age and medical condition I consider that you are unlikely to re-offend and that your prospects of rehabilitation are good. Specific deterrence is therefore less relevant.
39 The cultivation of illicit drugs is considered by Parliament as so serious as to warrant a maximum penalty of 25 years imprisonment. General deterrence is of considerable importance in a case such as this. On the authorities cultivation of cannabis in commercial quantities requires the imposition of a custodial sentence. It would only be appropriate to wholly suspend such a sentence in exceptional circumstances, for example if the court were not satisfied that the cultivation was undertaken with the intention of making a profit, thereby. As you gave no explanation for your offending there is no basis upon which I could reach such a conclusion in this case.
40 I am required by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment. This was a sophisticated hydroponic arrangement for the growing of cannabis in two locations and in each location the quantity of the crop was, in terms of weight, double the amount needed to satisfy the definition of commercial quantity. In the circumstances a sentence involving an immediate term of imprisonment is warranted.
41 I acknowledge that the forfeiture of your properties at Unit 1/27 Bedford Street and 30 Sandy Street is a consequence you have already suffered as a result of your criminal conduct in cultivating the crops. However, that penalty is a separate one from that prescribed by the Drugs, Poisons and Controlled Substances Act for the offences and I must still sentence you for the cultivation, theft and possession charges.
42 For the purposes of sentencing in relation to your conviction on Charge 6 of a cultivation of a narcotic plant of a commercial quantity, I declare you to be a serious drug offender in accordance with s.6(C) of the Sentencing Act 1991. In declaring you to be a serious drug offender I must consider whether the main sentencing purpose is the protection of the community and therefore whether a disproportionate sentence is required. I note, however, that the prosecution did not seek such a sentence and I indicate that I do not intend to impose such a sentence.
43 The offences occurring within each crop house were part of the same criminal enterprise, but as the dishonesty offences are of a different character to the cultivation offences I propose to order some cumulation in respect of the sentences on the theft charges.
44 On Charge 1, cultivation of a narcotic plant, commercial quantity, I convict and sentence you to a term of two years and four months imprisonment.
45 On Charge 4, possession of a drug of dependence, I convict and sentence you to a period of four months imprisonment, to be served concurrently with the base sentence referred to below.
46 On Charge 5, theft, I convict and sentence you to a period of three months imprisonment.
47 On Charge 6, cultivation of a narcotic plant, commercial quantity, I convict and sentence you to a term of imprisonment of two years and four months.
48 On Charge 8, theft, I convict and sentence you to a term of imprisonment of three months.
49 The sentence on Charge 1 is the base sentence. I order that 12 months of the sentence on Charge 6 be served cumulatively upon the base sentence. I order that one month of the sentence on Charge 5 and one month of the sentence on Charge 8 be served cumulatively upon the base sentence.
50 The total effective sentence is three years and six months. I direct that you serve a period of two years and six months before becoming eligible for parole. It is my understanding that you have already served 20 days by way of pre-sentence detention, is that still correct?
51 MR TOAL: That is so.
52 HER HONOUR: I direct that 20 days of pre-sentence detention be entered into the records as time already served.
53 In relation to the ancillary orders I note that you do not oppose the making of the orders sought by the prosecution for disposal, compensation, and the retention of a forensic sample and I make the disposal order sought by the prosecution in relation to the items identified in the schedule, if those orders are present to be signed.
54 In relation to the forensic sample I am satisfied that in all the circumstances the retention of the forensic sample is justified because the seriousness of the circumstances of the offending warrant the order, the order is not opposed, and the order is in the public interest. I therefore order that pursuant to s.464ZF(b)(1) of the Crimes Act 1958, the forensic sample, and any related material and information obtained pursuant to an order under s.464T3 made by Magistrate Bakos on 4 February 2001 be retained for placement on the database.
55 In relation to the compensation order, I make the compensation order sought by the prosecution that you pay compensation in the sum of $11,805.25 to AGL retail energy electricity. Mr Toal, is any stay sought in relation to the payment?
56 MR TOAL: Your Honour, I would make a formal application for that.
57 HER HONOUR: Three months?
58 MR TOAL: Three months. That I think might be adequate in order to facilitate the coming to terms with the order.
59 HER HONOUR: So I will order a stay of three months in relation payment of the - - -
60 MR TOAL: Could I have that sum again, Your Honour?
61 HER HONOUR: As far as I know, 1180525.
62 MR TOAL: 805.
63 HER HONOUR: Perhaps that can be confirmed by the prosecution. The only other remaining thing is whether you seek any notations on the orders in relation to custody management. I note that Mr Lipsfield has a cardiac condition. If you might just liaise with my associate and I will put the appropriate formulation on the foot of the order and I will just wait outside and sign the orders.
64 MR TOAL: If Your Honour pleases.
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