Director of Public Prosecutions v Lock

[2022] VCC 487

IN THE COUNTY COURT OF VICTORIA

AT SHEPPARTON

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01294

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY SCOTT LOCK

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Shepparton
DATE OF HEARING:	29 March 2023
DATE OF SENTENCE:	31 March 2023
CASE MAY BE CITED AS:	DPP v Lock
MEDIUM NEUTRAL CITATION:	[2022] VCC 487

REASONS FOR SENTENCE
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Subject:Cultivation and trafficking of a narcotic plant

Catchwords:              Guilty plea – 23 cannabis plants growing – possession of 53 1 ounce bags of cannabis

Legislation Cited:      Sentencing Act 1991 (Vic).

Cases Cited:Van Pham v The Queen [2020] VSCA 114; Tyler Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] 249 CLR 571; Williams v The Queen [2018] VSCA 171; R v Shane Doran [2005] VSCA 271.

Sentence:                  18 month community correction order – supervision – drug treatment – mental health treatment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D Mandie	Office of Public Prosecutions
For the Accused	Ms E King	Slater & King

HIS HONOUR:

1Rodney Scott Lock, you have pleaded guilty to:

(a)   one charge of cultivation of a narcotic plant, cannabis L; and

(b)   one charge of trafficking a drug of dependence, cannabis L.

Circumstances of offending

2Your offending occurred on 23 March 2022.[1]

[1] Exhibit A: Summary of Agreed Facts.

3On that day, police arrived at your Shepparton home with a warrant to search for drugs.

4You were at home with your partner and eight-week-old baby.

5You answered the door and let them inside the house. You cooperated with them in their search.

6They found:

(a)   19 cannabis plants growing under bird netting in your rear yard;

(b)   four cannabis plants growing in the driveway;

(c)   a beer carton containing 53 zip-lock bags, which contained 1.46 kg of cannabis, in a spare room inside the house;

(d)   a shopping bag containing 107.6 g of cannabis material on the fridge in the kitchen; and

(e)   in another room, a zip-lock bag containing 13.8 g of cannabis, in a kitchen cupboard.

7Police arrested you and took you into custody.

8When they questioned you, you admitted you had grown the plants found in your yard and driveway.[2]

[2] Transcript of Record of Interview, Question 38.

9You said it gave you something to do.[3]

[3] Ibid Question 162.

10You said the cannabis found in the beer carton was your supply. You said you bagged it into roughly one ounce lots.[4]

[4] Ibid Question 105.

11You said you smoked cannabis every couple of days,[5] and that you tried to make a bag last a fortnight[6] but sometimes you would smoke an ounce within four days[7].

[5] Ibid Question 45.

[6] Ibid Question 121.

[7] Ibid question 123

12You said you sold some of the cannabis to mates.[8] When asked how frequently, you said “A couple might ring each week.”[9] When asked how recently you sold it, you said, “Maybe a few days ago.”[10]

[8] Ibid Question 49.

[9] Ibid Question 54.

[10] Ibid Questions 128–129.

13You said the small bag in the kitchen is what you were using.[11]

[11] Ibid Question 135.

14You said there were useless “crumbs” in the shopping bag.[12]

[12] Ibid Question 137.

15When asked your reason for cultivating cannabis, you said you had smoked cannabis for most of your life to relieve stress and chronic fatigue.[13]

[13] Ibid Question 174.

16When asked your reason for trafficking cannabis, you said, “Helping mates out.”[14]

[14] Ibid Question 187.

17Twenty-three plants is less than the statutory commercial quantity number of plants.[15]

[15] A commercial quantity of cannabis is 100 plants by number, or 25 kg by weight.

18Police charged you with cultivating, trafficking and possessing cannabis.

19You were released from custody, on bail, on the same day.

20A botanist examined the cannabis you had grown. It weighed 31 kg, which exceeds the statutory commercial quantity of cannabis, by weight.[16]  Police then charged you with commercial quantity cultivation and trafficking.

[16] A commercial quality of cannabis is 25 kg or 100 plants.

Chronology of proceedings

21On 19 July 2022, at committal mention, you agreed to plead guilty to those charges.

22The commercial quantity weight of the plants notwithstanding, it is clear enough the prosecution could not prove you intended to cultivate and traffic a commercial quantity of cannabis.

23You changed lawyers.

24The Director of Public Prosecutions subsequently indicted you on charges of cultivation and trafficking simpliciter.

25On 29 March 2023 you pleaded guilty to those two charges before me.

Criminal record

26You have admitted a criminal record.

27Relevantly, you have two prior convictions for cultivating cannabis.

28On 20 August 2012, at Shepparton Magistrates Court, you were convicted of cultivating and possessing a narcotic plant and firearms offences, and fined an aggregate sum of $600. The monetary penalty suggests the objective seriousness of your offending was low.

29On 14 April 2014, at the same Court, you were sentenced to an aggregate term of three months imprisonment, wholly suspended, for cultivating a narcotic plant and possessing an unregistered handgun. Because of the imposition of an aggregate sentence it is not possible to discern the objective seriousness of the cultivation offence.[17]

[17] Your counsel told me both offences involved a small number of plants; in 2014, two plants.

Personal circumstances

30You were born in December 1974.

31You are a disability support pensioner.

32With your partner, you are expecting your second child midyear.[18]

[18] Exhibit 1: Defence submissions.

33Recently, your 14-year-old son from a previous relationship came to live with you at his mother’s request. Apparently, his behaviour had been problematic. I was told that he has enrolled in a local school and settled well at school and in your household.

Drug and alcohol counselling

34In August 2012, your treating doctor provided Centrelink with a medical report in relation to your disability support pension. He confirmed a diagnosis of chronic fatigue syndrome.[19]

[19] Exhibit 3: Medical Report (Disability Support Pension).

35It would appear you have used cannabis for many years to manage your fatigue and depression.

36After your arrest and release on bail you voluntarily engaged in drug counselling at Primary Care Connect.[20]

[20] Exhibit 2: Letter of Joanne Dawson (Clinician) dated 5 October 2022.

37You engaged well in counselling sessions. You said you had not smoked cannabis since the police arrested you. You showed a strong commitment to quit your cannabis use and an understanding you need to make lifestyle changes to remain abstinent. To that end, you have cut ties with your cannabis-smoking associates.[21]

[21] Ibid.

38Because of your successful engagement in sessions, your counsellor was content for you to disengage.

Defence submissions

39Ms King, who appeared on your behalf, submitted, considering:

(a)   firstly, your cultivation was relatively unsophisticated;

(b)   secondly, you were cooperative with police from the outset and made full admissions when questioned;

(c)   thirdly, proof of your trafficking relies largely on your admission of selling to friends;

(d)   fourthly, you indicated your plea of guilty at the first available opportunity, in fact, to more serious charges than you face now;

(e)   fifthly, you are remorseful;

(f)    sixthly, you used cannabis heavily for a long time to manage chronic fatigue and depression;

(g)   seventhly, you have taken steps voluntarily to address your addiction; and

(h)   eighthly, you have the powerful motivation of family responsibilities for your partner and two children to remain drug abstinent—

a CCO is the appropriate disposition for you.

Prosecution submissions.

40Ms Mandie, who appeared for the Director of Public Prosecutions, submitted, in relation to the trafficking, relying on the large number of 1 ounce cannabis bags in your possession, I should be satisfied you intended:

(a)   to smoke some of the cannabis;

(b)   to sell some to mates; and also

(c)   to sell some to others.

41Otherwise, she did not take issue with the submissions Ms King made on your behalf.

42She accepted, in all the circumstances of the case, a CCO is within sentencing range.

Consideration

43As the maximum penalty of 15 years' imprisonment demonstrates, cannabis cultivation in a non-commercial quantity is a serious offence.

44You had 23 plants of varying maturity growing in your driveway and rear yard.

45You also had 53 one-ounce bags of dried cannabis, another bag containing about half an ounce of dried cannabis, and a bag of “crumbs”.

46The weight of the cannabis material was 31 kg. By weight, it was a commercial quantity.

47On your own admission:

(a)   you were a heavy cannabis smoker; and

(b)   you were selling cannabis to “mates”.

48Other than the quantity of cannabis in your possession, there is no other evidence of trafficking.

49I accept you have a long history of chronic fatigue and depression.

50I accept, for many years, you have managed those conditions with cannabis.

51I accept you grew the cannabis substantially for your own use.

52You had grown more cannabis than you could smoke yourself and I am satisfied, to the requisite standard, you intended to sell some of the one-ounce cannabis bags to friends. How much of it, I cannot determine.

53There is no evidence before me of sales or intended sales to anyone else.

54Overall, considering the relatively modest scale of the enterprise and the limited duration of your offending, I assess the objective seriousness to be below mid-range.

55There are mitigating factors which moderate the type of sentence I should impose.

56Firstly, you are entitled to a sentencing discount for your guilty plea which was made at the earliest opportunity. Its utilitarian is even greater while the courts continue to deal with disruptive effects of the COVID-19 pandemic on the administration of criminal justice.[22]

[22] Tyler Worboyes v The Queen [2021] VSCA 169 at [35] and [39].

57Secondly, you were cooperative with police from the outset. I accept you made full and frank admissions at interview. Your admission you sold cannabis to friends, which was information not otherwise known to them, forms the substantial basis of the trafficking charge for which you are now to be sentenced. You are entitled to an additional sentencing benefit for that disclosure.[23]

[23] R v Shane Doran [2005] VSCA 271.

58Thirdly, you have taken voluntary steps to address your addiction. Your time in custody, although brief, appears to had a salutary effect upon you.

59Fourthly, while I must be cautious about your prospects of rehabilitation because of your long-standing addiction and your relevant prior convictions, I accept you are now in settled family circumstances which gives you motivation to remain drug-abstinent and not reoffend. This gives me some optimism for your reformation.

60Your crimes were serious. Often, prison sentences are imposed for the offences you committed.[24]

[24] See, for example DPP v Trieu Hai Nguyen [2020] VCC 977 (Judge Cannon); and see Van Pham v The Queen [2020] VSCA 114.

61Parsimony and proportionality are fundamental sentencing principles. I must impose the least severe sentence necessary to achieve the purposes of sentencing.[25]

[25] Sentencing act 1991 s 5(3).

62Also, I must not impose a prison sentence unless I consider all sentencing objectives cannot be achieved by a CCO.[26]

[26] Sentencing act 1991 s 5(4C). A CCO can meet sentencing objectives, even for serious crimes; see Boulton v The Queen (2014) 46 VR 308.

63A community correction order is a punitive sanction.[27] Apart from the burden of complying with its conditions, a person serving the order is under threat of imprisonment for its contravention, and for resentencing for the relevant offences.[28]

[27] Boulton v The Queen (2014) 46 VR 308, [91].

[28] Ibid, [92]; DPP v Lombardo [2022] VSCA 204, [99].

64Overall, I am satisfied a community corrections order can achieve all sentencing purposes.

65You have been assessed as suitable for an order.

66Ordinarily, I would consider a community work condition as a punitive component to your order. However, given your general health problems and your family responsibilities, I will not impose such a condition in your case.

67I will impose supervision and treatment conditions to assist and promote your rehabilitation.

68Mr Lock, please stand.

69By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.

70Considering the circumstances of your offending, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

(a)   on the charge of cultivate a non-commercial quality of a narcotic plant; and

(b)   on the charge of trafficking drugs of dependence—

you are convicted and sentenced to a community correction order.

71The duration of the order will be 18 months.

72In addition to the core conditions, I impose the following special conditions:

(a)   supervision;

(b)   drug treatment and rehabilitation; and

(c)   mental health treatment and rehabilitation.

73I make an order for the disposal cannabis plants and cannabis material which police seized from your property.

74While there is some artificiality of the process, I declare, but for your guilty plea, I would have imposed an aggregate sentence of 15 months’ imprisonment and fixed a minimum non-parole period of nine months.

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