Director of Public Prosecutions v Mawhirt
[2022] VCC 2272
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00937
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE MAWHIRT |
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JUDGE: | GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 October 2022 | |
DATE OF SENTENCE: | 14 October 2022 | |
CASE MAY BE CITED AS: | DPP v Mawhirt | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2272 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Cultivate a drug of dependence in not less than a commercial quantity,
possess a drug of dependence
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R vVerdins & Ors [2007] 16 VR 269.
Sentence: 18 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. McVean | Office of Public Prosecutions |
| For the Accused | Mr S. Russo (sentence) | Gallant Law |
HER HONOUR:
1Shane Mawhirt, you have pleaded guilty on indictment to a charge of cultivating a narcotic plant, namely cannabis, in not less than a commercial quantity and to possession of a drug of dependence, namely Psilocybin. This offending occurred on 21 January 2022.
2In sentencing you for your crimes, I must have regard to the maximum penalty for the offence you have committed. Cultivating cannabis in not less than a commercial quantity carries a maximum penalty of 25 years' imprisonment.
3Cultivation of a commercial quantity of a narcotic plant is a Category 2 offence under the Sentencing Act [1991] and, therefore, pursuant to s5(2H), I am required to impose a sentence of imprisonment which cannot be in combination with a Community Corrections Order, unless one or more of the exceptions in that section apply. Your counsel concedes that no such exception applies in your case.
4For the charge of possess a drug of dependence, the maximum penalty, where I am not satisfied on the balance of probabilities that your possession of the drug was for any purpose relating to trafficking, is one of one years' imprisonment. The maximum penalty is otherwise five years' imprisonment.
5These penalties reflects the seriousness with which Parliament regards each of these offences.
The offending
6The circumstances of your offending were set out in a document entitled Summary of Prosecution Opening for Plea dated 5 October 2022. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
7
In short compass, on 21 January 2022, police executed a search warrant at your address in Albion Street, Caulfield South. This residence is a boarding house and had two levels. You and your partner, Taz Hauser, resided upstairs. There was a sign at the bottom of the stairs which read, 'Warning, don't come up these fuckin' stairs unless you've been invited by the persons living upstairs.' Brothers,
Brodie Murray and Scott Murray, resided downstairs. They had observed you filling up watering cans and carrying them upstairs.
8Upon search police located:
(a) 10 cannabis plants in your bedroom upstairs weighing 10.6 grams;
(b) 32 cannabis plants in the upstairs bathroom shared by you and Ms Hauser weighing 17.4 grams;
(c)
109 cannabis plants on the boarding house roof weighing approximately
9.8 kilograms; and
(d)
26 cannabis plants in a garage at the rear of the property weighing
18.6 grams.
9In total, there were 177 plants weighing 9.9 kilograms.
10A commercial quantity of cannabis is quantified as 100 cannabis plants or 25 kilograms of cannabis.
11Police also located, relevant to Charge 2 (possess drug of dependence), three clear tablets containing Psilocybin located in a plastic resealable bag on the TV cabinet in your bedroom.
12
You were arrested and taken to the Moorabbin police station for interview. You made substantial admissions - other than denying any connection to the cannabis plants located by police on the roof. You have remained in custody since
21 January 2022.
13I note that Ms Hauser was also charged and, after some five months' in custody, was placed on an adjourned undertaking by the Magistrates Court for a charge of cultivating cannabis. Her charge apparently related to the 32 cannabis plants in the bathroom. You are therefore jointly responsible for those plants on the facts before me. There seems, however, to be limited need to give weight to the parity principle in the circumstances.
Offence gravity
14I accept that for Charge 2, that I could not be satisfied your possession of that drug was for purposes related to trafficking. Accordingly, the maximum penalty is one of one years' imprisonment.
15Charge 1 (cultivating a drug of dependence), namely cannabis, in not less than a commercial quantity is obviously the more serious charge. I note that the charge covers a single date.
16General deterrence and denunciation are primary consideration for offending of this type.
17The use of cannabis wreaks havoc in our community, impacting on users in terms of mental health ramifications and resort to criminal behaviour. Indeed, as a direct consequence of your relationship with cannabis and other drugs, you have not worked since you were 25 years old. You have been before the courts on numerous occasions and have now spent some 269 days in custody. Your partner, Ms Hauser, apparently spent some five months in custody, to which I have already referred.
18There were 177 plants; a considerable endeavour on any view in what is a quantitative based sentencing regime. It would appear that you took personal responsibility for these plants. The plants were spread out through the upstairs area of the boarding house and were at various stages of very immature growth. I accept the Crown submission that, despite the number of plants and the weight - some 9.9 kilos - and the circumstance overall, puts your offending at the lower end of seriousness for an offence of its type.
19You were clear in your record of interview with police that the cannabis you were growing was for your own use. It is submitted on your behalf that, despite the number of plants located, that they were for your own use. The Crown do not seek to challenge this submission.
20In the context of your longstanding addiction to cannabis and your relationship with someone whom also uses that drug, I accept on the balance of probabilities that you are to be sentenced on the basis that you did not cultivate cannabis in a commercial quantity for sale but rather, that you did so for your own use and probably that of your partner and co-accused. This finding also reflects the lack of the usual paraphernalia of a drug business such as tick lists, a sophisticated hydroponic set up, lighting, bypass of electricity and the like. You were
hand-watering what amounted to stand alone potted plants.21Whilst cultivating for your own use is not a legal excuse, it does remove this from the class of cases in which the cultivation of a commercial quantity of a prohibited substance was accompanied by all the trappings of a commercial operation in which the cultivated substances were sold for profit. This also lessens the impact on the community.
Plea of guilty
22In terms of your plea of guilty, the Sentencing Act [1991] obliges me to take into account the stage at which you entered your guilty plea. Your matter resolved at the committal mention stage. Yours is conceded to be a plea at an early opportunity and I accept that this is so.
23Whilst remorse is a little bit harder to discern, you have taken responsibility for your offending. There is clear value in saving witnesses of the need to give evidence and in saving the community the time and expense of contested proceedings.
24Your decision to plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and trial dates, some in any event, remain as yet unfixed.
25These factors will all be taken into account in your favour.
Personal circumstances
26In terms of your personal circumstances, they give much to explain the context of your offending, not, of course, to excuse it.
27You are currently aged 38 years and were born and raised in Dandenong with your father, mother, and elder sister. Your father was particularly strict and would exact corporal punishment for not adhering to his rules. Your father worked as an interstate truck driver and was frequently absent. You had a poor relationship with your father in those circumstances. Your closer relationship was that with your mother. She periodically worked in local supermarkets. Your parents currently reside in New South Wales and have done so for some 12 years. You do not have a close relationship with your sister
28You did not complete a year 10 education. You instruct that, once you entered secondary school, you fell in with the wrong crowd. You would engage in low-level criminal behaviour, would skip classes and became involved in drug use.
29On leaving school, you initially obtained employment in car detailing and completed a traineeship for approximately one year. You then worked in factories for a couple of years. When aged 20, you commenced a baking apprenticeship which you completed. You in fact enjoyed this work but developed severe asthma, learning that you were allergic to bread flour. You have not worked since you were 25 years of age.
30You have had three significant personal relationships. The last in time is one of four years' duration with Ms Hauser. You intend returning to this relationship upon your release from custody.
31In terms of your drug use, you initially tried cannabis when aged 12 or 13 years and injected heroin from the age of 14 years. Whilst you have used other drugs, it would appear that both cannabis and heroin are your drugs of choice and have been part of your daily life since your teenage years. They were both part of your daily life at the time of the offending, the subject of the indictment. You have never been interested in deviating from this path.
32Tendered on your behalf was a psychological assessment of you conducted by
Dr Alana Harridge, psychologist. In her opinion, you suffer from both cannabis use disorder and opiate use disorder in the severe range. Both of these are in early remission due to your incarceration. Otherwise, you do have a history of depression, anxiety, panic attacks and possible substance induced hallucinations and paranoia. You are not medicated for any mental health conditions. In
Dr Harridge's opinion, there was no indication that your mental health required urgent intervention.33Your counsel does not call into your aid the principles of R vVerdins & Ors [2007] 16 VR 269.
34To Dr Harridge you demonstrated insight into your substance use and mental health and the association between your use and the offending which is currently before the court. Given your drug use from a young age, your primary means of coping and of social engagement was reliant on that use and criminal behaviour to support your habit. Your drug use is your chosen means to maintain social and emotional equilibrium.
35Dr Harridge opined that your risk of reoffending is considered moderate to high and that protective factors are presently limited. You are not yet interested in rehabilitative programs and are in, what is described as the pre-contemplative stage towards change. This, of course, does have relevance to your prospects for rehabilitation, as does your prior criminal history, to which I will now turn.
Prior criminal history
36Your prior criminal history commences in 2003 and reflects some 12 court appearances. It reflects charges of damaging property, drug possession, driving offences, dishonesty and failing to abide by court orders, including sentencing orders and bail orders.
37There was a five-year gap between the years 2005-2010.
38It would appear that you have only been ordered to serve an immediate term of imprisonment on one occasion. On 19 October 2017, the Dandenong Magistrates' Court convicted and sentenced you to one month imprisonment for a single charge of unlawful assault. This decision was appealed to the Melbourne County Court and dealt with on 7 February 2018, at which time your appeal was allowed and you were placed on a Community Corrections Order for a period of six months.
39Your criminal history, in the main, is for relatively minor offending and essentially reflects your long-standing drug addiction, coupled with periods of homelessness.
40On 10 January 2022, you appeared at the Moorabbin Magistrates' Court for a charge of cultivate a narcotic plant. You were convicted and fined the amount of $500.
41Obviously, your offending before this court occurred in relatively short compass to that appearance, indeed, some 11 days later, and would reflect that you quickly returned to the cultivation of cannabis after your appearance at Moorabbin Magistrates' Court. This chronology and circumstance supports the need for specific deterrence in the sentencing exercise.
42You are not to be punished for your criminal history a second time. Its role is in the assessment I need to undertake as to the weight to attach in sentencing to specific deterrence, denunciation and protection of the community. It is also a means in which to assess your prospects for rehabilitation.
Rehabilitation
43In terms of those prospects, I take into account that you have now spent some
269 days in custody. This has been your first exposure to the custodial system.44This period has been during the Corrections response to the COVID-19 pandemic where I accept, in general terms, that there has been less access to freedom of movement within the prison system, less access to educational and rehabilitative programs and less access to contact visits from friends and family. New inmates were required to quarantine for 14 days on each occasion of a prisoner movement. This does make any remanded or sentenced prisoner experience more burdensome than it would otherwise be and I take this into account in a general sense. You did manage to complete a Cannabis and Me program.
45I would hope that there has been some sanction and deterrence in the time you have already spent in custody.
46It would appear from your assessment with Dr Harridge and instructions to counsel, that you are not yet ready to remove the use of illegal drugs from your life and this obviously places limits on your prospects for rehabilitation. You did tell Dr Harridge that you do not intend to grow cannabis plants again and that you do not want to end up in prison again. These two sentiments, of course, go hand in hand.
Sentencing
47In terms of sentencing, I do make the ancillary order as sought for the disposal of scheduled items.
48In terms of the basic purposes for which a court may impose a sentence, they include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.
49I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, where possible, that offenders are rehabilitated and reintegrated into society.
50I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case. I have taken into account the current sentencing practices for the offences to which you have pleaded guilty, as well as the principles of totality and proportionality.
51In relation to Charge 2, possess a drug of dependence, you are convicted and discharged.
52On Charge 1, cultivate a drug of dependence in not less than a commercial quantity, you are convicted and sentence to 18 months' imprisonment and I fix a period of 10 months before you are eligible for parole. 269 days are reckoned as having already been served.
53Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 26 months with a minimum of 18 months before being eligible for parole.
54Does that deal with everything from your end, Ms McVean?
55MS McVEAN: Yes, Your Honour.
56HER HONOUR: And from your end, Mr Russo?
57MR RUSSO: Yes, Your Honour.
58HER HONOUR: Well, I shall do as indicated. I'll stand down until whatever time it is tomorrow and I'll give you the opportunity to speak privately with your client.
59MR RUSSO: As Your Honour pleases. Thank you.
60HER HONOUR: Thank you.
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