Director of Public Prosecutions v Marek
[2021] VCC 841
•28 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00163
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN MAREK |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 28 May 2021 |
CASE MAY BE CITED AS: | DPP v Marek |
MEDIUM NEUTRAL CITATION: | [2021] VCC 841 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Rutherford | Ms L. Anderson |
For the Accused | Ms K. Temperley | Victoria Legal Aid |
HIS HONOUR:
1Steven Marek, on 12 March 2020 the police attended your premises in Ultima for the purposes of executing a search warrant. What they found was 20 cannabis plants growing in pots in your back yard. Some were mature and nearly two metres high. Others were a good deal smaller. The weight of those plants was 85.2 kilograms. The later forensic analysis the air-dried weight of the plants would have been approximately 12.4-15.9 kilograms. Though much less, obviously, than the 85 kilograms, these dried weights are still significant. Further, the police found 606.5 grams of harvested cannabis in your house.
2You were charged with cultivation and possession of cannabis. However, the nature of your cultivation sets your offending apart from the usual entrepreneurial cultivation of cannabis that unfortunately the courts see so often. The plants outside were spread around other garden plants and pots. The cultivation system was straightforward, being hand-watering and some fertiliser. In other words, there were none of the common commercial cultivation systems of an indoor hydroponic system with powerful lighting to allow the cultivation to occur indoors and out of sight. Further, there were no dangerous electrical bypasses. While this cultivation was not a completely ramshackled affair, it was basic and, relative to the usual criminal cultivations, it was unsophisticated.
3You were arrested and taken to the Swan Hill Police Station where you participated in a record of interview. You were frank and cooperative. You told the police that you grew the cannabis plants from seed and that the plants were about two-and-a-half months old. You said that you used the cannabis to help with your injuries and that you do not smoke it; rather, you put a handful in an omelette a few times a week. As you said to the police, your current cannabis use was to manage pain in your hip and shoulders which followed from two car accidents in 2000 and 2003. You also suffer from an anal fistula due to an abscess which causes significant pain. You have, in the past, had to take significant amounts of opioid medication. To avoid the risk of addiction to those prescription drugs, you used cannabis. Since your arrest, I note that you have taken steps to engage with an official cannabis clinic and now have a prescription for medicinal cannabis which means you will no longer have to grow, use or require cannabis illegally.
4In my assessment of the seriousness of your cultivation, I am firmly of the view that there was no entrepreneurial or commercial aspect to your cultivation. There is nothing in this case that leads to the view that the cultivation was for wider distribution. The way the cannabis was grown and the circumstances of you using cannabis to manage your pain, makes all this clear. Ultimately, the prosecution did not argue to the contrary. Indeed, the prosecution did not proceed with the charge of cultivation in not less than a commercial quantity, notwithstanding, that the weight of the plants was over three times the commercial quantity.
5Further, on the charge of cultivation simpliciter, the prosecution do not contend that the cultivation was for the purposes of trafficking. In effect, it is accepted that the cultivation was for your personal use. That has an important legal ramification, as cultivation of a narcotic plant carries a maximum penalty of 12 months' imprisonment if the court is satisfied on the balance of probabilities that the plants were not intended for trafficking purposes. In all other cases, the maximum term of imprisonment if 15 years.
6All the evidence, including the photographs, your record of interview and your medical material provided by your lawyers and the concession of the prosecution, taking all these matters together, I am satisfied on the balance of probabilities that your cultivation of cannabis was not intended for trafficking purposes, but was for your personal use to manage your pain and collateral mental health problems. Thus, the lower maximum term applies. Overall, in my view, the seriousness of your offending is very significantly less than would ordinarily be the case for cultivation of cannabis at this volume and weight.
7As to your personal circumstances, you are now 47. You have three children but your contact with them is limited at present because of a conflict with their mother and there are ongoing family law matters. Your own mother is sadly very unwell, suffering from Alzheimer's. You were born in Springvale. Your parents separated when you were young, but your mother remarried and you developed a close relationship with your stepfather with whom you still enjoy a close and supportive connection. You struggled with dyslexia at school and were bullied because of your weight. You have also struggled with a mild learning disability, but I do note, beyond this, a neuropsychological assessment done by Dr Judy Tran in 2018, placed your full-scale intelligence quotient in the extremely low range, being at 64 which is low.
8After leaving school, you worked in various roles, including as factory processor, assisting in a panel beating business and furniture removal. But these and other jobs were relatively short-lived and you struggled to maintain longer-term employment. In July 2000, you were involved in a serious motor vehicle accident which resulted in chronic pain in your knees, back and hips. In 2003, you were involved in a second motor vehicle accident, injuring your shoulders and elbow. A report at the time diagnosed you with depression and post-traumatic stress disorder. Although you occasionally used cannabis as a teenager, it seems in 2014 you began to take cannabis to manage your chronic pain and this became a daily occurrence.
9Although, in my view, there is a basis to conclude that your current involvement with cannabis was to deal with your pain, that has not always been the case. You and your then partner were arrested and ultimately sentenced in the County Court on 16 July 2018 for cultivation and trafficking in cannabis. The sentence imposed on you was six months' imprisonment, together with a two-year Community Corrections Order. This is the most concerning matter from your past, though I note you have had in the past another sentence of imprisonment and a significant number of Community Corrections Orders, most, but not all, successfully. I do take into account your prior criminal history but you do not fall to be repunished for those crimes. It seems that your partner at the time was an important organiser in the trafficking operation but you should have learnt from that a lesson not to engage in unlawful cultivation, no matter what the ultimate purpose that you had for the cannabis that you grew in your backyard.
10You have long ended that relationship and moved to northern Victoria. As I say, there are family law issues, meaning you have little contact with your three children. You wish to repair this in the future. You are in a new relationship and have been for the past year. As I said, you contribute to the care of your mother with her advanced Alzheimer's disease.
11As to your prospects, it seems to me, now that you are connected to a legitimate medicinal cannabis program, there are more solid reasons to think you will stay away from cultivating your own plants. You do need to deal with your addiction and underlying mental health problems. Your physical ailments are most likely long-term, though pain relief should be more legitimately managed from here on in.
12Your counsel submitted that, given the much lower maximum term, your early and valuable plea of guilty and personal matters that would make jail particularly onerous. That, notwithstanding the very large amount of cannabis and your prior conviction, that a Community Corrections Order was the most appropriate penalty.
13The prosecution contended that, due to the large volumes and the serious prior conviction, there ought to be a period of actually or immediately incarceration in combination with a Community Corrections Order. I had you assessed for a Community Corrections Order. The assessment, done by the Community Corrections Officer, found that you were suitable for a corrections order but also assessed you as being at a high risk of reoffending. You have attempted 16 prior community-based dispositions and successfully completed all of them bar two. The assessment report recommended that a mental health condition be mandated on any Community Corrections Order. During your assessment, you expressed your motivation to undergo a Community Corrections Order to better equip yourself with far minimisation strategies and a focus on counselling.
14It seems to me that the sentencing principles outlined in Bolton v The Queen are particularly relevant to this sentencing task.[1] The Community Corrections Order can be simultaneously both punishment and rehabilitative. Imprisonment is the punishment of last resort. I can only impose that penalty if I conclude that all sentencing purposes cannot be met by a Community Corrections Order alone. In my view, denunciation, deterrence and your rehabilitation can be properly met by an onerous Community Corrections Order. As will become obvious in practical terms, I have given significant weight to your plea of guilty. It is a sign of remorse.
[1] [2014] VSCA 342.
15Thus, for the cultivation of the narcotic plant and possession of a drug of dependence, I sentence you to an aggregate sentence as follows:
16Community Corrections Order for a period of two years.
17You will be under supervision.
18You will have to be treated and assessed for mental health problems.
19You will have to be treated and assessed for drug addiction.
20You will have to undergo other programs, as directed by the Office of Corrections.
21I contemplated the unpaid work component. In the end, taking into account your health problems, which will have to be assessed, I consider that there should be a short amount of a minimal amount of unpaid work. That will be 75 hours. But I also order that each hour that you spend in respect of mental health treatments, drug addiction and other programs, can be deducted from the 75 hours. I note that in 2019 that you did complete a work only Community Corrections Order.
22For the summary offence of use cannabis, that matter is proven and you are discharged.
23Had you pleaded not guilty to these offences and then been found guilty of them, I would have imposed a sentence of eight months, with a 12-month Community Corrections Order to follow.
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HIS HONOUR: Are there any further orders required before I return back to running through the Community Corrections Order with Mr Marek?
MS RUTHERFORD: Just a disposal order was sought by the prosecution,
Your Honour.
HIS HONOUR: Certainly. There'll be a disposal order on the application of the prosecution for the items set out in the schedule. That's all?
MS RUTHERFORD: Yes, Your Honour.
HIS HONOUR: Thank you, all right. So, Mr Marek, I need to run through the Community Corrections Order and, in this virtual hearing, you'll just give your oral consent to it. It goes for two years. There are a number of programs that I'll get to that are unique to you, but in respect of every Community Corrections Order, there are some standard conditions; you should be well familiar with them. The most important of which is the first that I'll outline. You must not commit an offence that's punishable by imprisonment within the next 24 months. Should that occur, then you'll breach this order and come back before me. I can assure you that the mercy shown here won't be repeated. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: The remaining aspects that are standard conditions are really about cooperation. So you've got to cooperate with the Office of Corrections in terms of sentencing regulations. They are about getting your photograph taken or other things that can identify you as the person so they can keep that on file. So you've got to cooperate with all that. You've got to tell them if you change your address or your job. You must do that within two clear working days. You've got to tell them if you seek to go interstate. Now, that's an issue with people on the border but they've got a lot of systems that they have to allow for quick trips across the border and back, but you need to discuss that with them and they've got to be well in the picture of you do seek to head over the border. You've got to tell them if you change employment. Whether that's a thing for you is - but nonetheless, that's a standard order. You've got to be in touch with them at the Swan Hill Community Corrections Order within 48 hours of this order. That'll be by telephone in the current circumstances but you've got to be in touch with them to take up the arrangements for induction and so on and so forth. Do you understand all that?
OFFENDER: Yes, I do.
HIS HONOUR: Now, the next set of things are really unique to you. You have to be under their supervision for two years. That'll involve you being, either by phone or attending at their premises, reporting to them about a range of things. It's supervision. It's punishment in the community, if I can call it that. You have to be treated and assessed for your mental health problems. You've shown some motivation towards that, towards counselling and the like. Likewise, a treatment and assessment for the drug addiction and any other programs that they consider is appropriate to you. Unpaid work is what I put forward at that level as part of the punishment. You've just got to go through the process of ensuring that there is appropriate safe work for you and there might be medical requirements surrounding all that. But whatever you do in terms of the programs, that can be deducted off. They know how to do all that. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: Do you consent to doing that Community Corrections Order?
OFFENDER: Yes, I do.
HIS HONOUR: All right, that will be noted on the order that I sign, that you gave your oral consent in this virtual hearing. All right, don't commit offences. Remember, possession of cannabis is an offence punishable by imprisonment. Should you be found in possession of cannabis, as opposed to your medicinal tablets, then that'll breach this order and we'll go back to square one. Do you understand?
OFFENDER: Yes, Your Honour.
HIS HONOUR: Thank you. There's nothing further. I'll end this matter.
Ms Temperley, you can contact your client, I think, outside this, just to go through and explain all that again.
MS TEMPERLEY: Thank you, Your Honour.
HIS HONOUR: Thank you very much for your assistance and likewise yours,
Ms Rutherford. Thank you.
MS RUTHERFORD: As the court pleases.
HIS HONOUR: Thank you.
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