Director of Public Prosecutions v Max Symons
[2020] VCC 1927
•11 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
Case No. CR-20-00883
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAX SYMONS |
---
JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October and 4 December 2020 | |
DATE OF SENTENCE: | 11 December 2020 | |
CASE MAY BE CITED AS: | DPP v Max Symons | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1927 | |
REASONS FOR SENTENCE
---
Subject:Cultivation of a narcotic plant – commercial quantity; deal with property suspected proceed of crime
Cases Cited:Doan v The Queen [2010] VSCA 250; Nam Son Nguyen v The Queen [2016] VSCA 198.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Harrold | Abbey Hogan Solicitor for Public Prosecutions |
| For the Accused | Mr J. Lowy | Docherty Legal |
HER HONOUR:
1 Max Peter Symons, you have pleaded guilty before me to one charge of cultivation of a narcotic plant - commercial quantity. The maximum penalty for this offence is 25 years' imprisonment.
2 You also consented to this court dealing with the summary offence of dealing with property suspected of being proceeds of crime. The maximum penalty for this offence is two years' imprisonment.
3 At the time of the offending you lived in a residence situated at 266 Logan-Bealiba Road, Cochranes Creek in the State of Victoria. Your father, Peter Symons (Peter), also resided at the same property but in a separate residence located approximately 150 metres away. In the six to seven months leading up to the offending, you would not let Peter into your house or into the shed behind your house.
4 In the evening of 15 December 2019 you became involved in an argument with Peter, during which you threatened to kill him. Peter fled the property in fear and drove to his brother's house for assistance. He contacted police the following morning.
5 After speaking with police, Peter returned to the property and found that you had significantly damaged his house. Peter advised police and left again.
6 Police attended the property a short time later and arrested you. You were transported to the Maryborough Police Station for interview. A number of police officers remained behind to process the scene and noticed a strong smell of cannabis emanating from a shed on the property. A search warrant was obtained and the property was searched.
7 Police entered your property and discovered the following:
a. Cannabis drying on the floor in a bedroom;
b. Cannabis growing in a second room, in a hydroponic set up;
c. $125,850 located inside the oven, in a backpack. The cash was bundled with sticky tape; (Summary Charge 12:Dealing with property suspected to be the proceeds of crime).
d. Four containers filled with loose cannabis.
8 A number of cannabis plants were also located at the front of Peter's property, having been pulled out of a nearby vegetable patch. You had previously grown the plants in the vegetable patch until Peter told you to remove them. When you did not remove them, Peter began to pull them out until you told him to stop.
9 A search was then conducted of the shed behind your house. A second hydroponic setup was located inside the shed with a large crop of cannabis plants growing within. A second hydroponic setup was located inside the shed.
10 A total of 78 cannabis plants were located on the property (within your house and the shed) weighing 79.47 kilograms. The loose cannabis also located on the property weighed a combined total of 3.146 kilograms. The total amount of cannabis cultivated by you was 82.616 kilograms. (Charge 1 – Cultivation of a narcotic plant in a commercial quantity).
11
Following your arrest, you were interviewed by the police on
16 December 2019. During the interview you stated to the police, unprompted, that 'everything and anything cannabis related is mine'. However, when you were shown photographs of the cannabis crops located on the property and questioned about them, you made no comment. You also made no comment about the $125,850 cash found in your house.
12 The facts in this case are very serious.
13 As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated early your intention to plead guilty to these charges. In the circumstance, I accept that your plea indicates some remorse for your offending.
14 I have been told something of your personal history and your circumstances. You were born on 28 June 1989 and are 31 years old. At the time of the offence you were 30 years old.
15 You grew up in Seaford with both parents and your older sister, Catherine (now 33). Your father is a welder and your mother stayed at home. Your father left the family when you were about 10 years old. You did not see your father for another three years.
16 When you were five years old, you realised that your father was always drunk. He was not a violent drunk, just a sad man who was rarely present. Your mother struggled with her mental health throughout your childhood. You have memories of your mother not leaving her bed for days on end, disengaging from the family and leaving the children to fend for themselves.
17 For much of your childhood, you and your sister would be responsible for your own care in circumstances where your father was drunk, and your mother crippled by her mental illness. You and your sister had a government allowance that ensured that you would buy lunch at school, but otherwise the two of you would prepare your own meals at home and be responsible for the household and domestic duties.
18 Your mother left the family home when you were 14 years old. Your grandmother allowed you and your sister to live in the house, although you had to pay the bills. There was little positivity in your childhood, particularly with regard to your family. Although there was some support from your paternal grandmother, this was limited.
19 In about 2002 or 2003 your mother decided to return to the workforce. When she was in her 40s, your mother completed her VCE through TAFE and was then accepted into Law at Monash University. Whilst completing her degree, her mental health significantly deteriorated in 2004. A CAT Team was called, and your mother was hospitalised for the first time. The impact upon the family was dire. It was around this time that you began smoking cannabis heavily. Your mother did not complete her law degree and went on to the disability support pension. You remember that your mother was hospitalised a further four or five times.
20 Your mother had an addiction to benzodiazepines (Xanax and Valium) and would doctor shop. Your mother was also prescribed Seroquel and the anti-depressant Effexor.
21 You remained in the Seaford property with your mother and sister. In 2014 your mother moved in with a man named Peter and then would only call to see you once every few months. You and your sister remained in the Seaford property for a further two years.
22 You then moved in with your father in a property in Hampton Park owned by your grandmother. When your grandmother passed away in 2016, your father received an inheritance of $250,000. Your father retired and claimed his superannuation entitlement. You suggested to your father that he buy some property. Your father bought a property in the Bendigo area. You and your father then lived together until the time you were arrested.
23 Your relationship with your parents has always been difficult and you are not close to your sister. Your sister has in the past struggled with a heroin addiction but is now working as a receptionist in a medical clinic.
Education and employment
24 You attended primary school at Seaford Park and then Patterson Secondary College until Year 10. You found school pretty boring and were more interested in sport. You were a talented football player and by the age of 17 you weighed 90 kilograms and played centre for the Seaford Football Club where the average age of a senior was 21. You loved it, but your chronic drug use brought about the end of your days on the football field.
25 When you left school, you undertook a mechanics course but then became a welder/fabricator when you were 18 years old. You worked for a company called Synectix Enclosures, fabricating freight trains for four and a half years. Your income was $60,000 a year. You lost your job as your drug use worsened. When you were 25 years old, you were briefly employed for a period of eight months building truck bodies and then for a period of 12 months in concreting in 2017 to 2018.
Drug use
26 You first used cannabis when you were 13 years old; however, your heavy use became two years later around the time your mother was first hospitalised.
27 When you lost your job, you began smoking ice and were a heavy user from 2013 to 2015. Unemployed, using ice and with your circle of friends also using, you were at rock bottom. You moved in with your father to gain some stability and shortly thereafter, the two of you made the tree-change to Bendigo. Your ice consumption ceased following the move.
28 At the time of your arrest, you estimate that you were smoking around 3 ounces of cannabis a week, or around 12 grams a day. The 12 months that you have been on remand marks your first appearance of abstinence since you were 13 years old and your first time in custody.
29 You tore your left anterior cruciate ligament (ACL) in 2012 when riding a motorbike, and then your right ACL shortly before being remanded. You had been abstinent from drugs for 18 months up until an operation in 2012. The ceasing of pain medication contributed to your relapse into smoking cannabis.
30 You have admitted before me to prior convictions. There are five such convictions, involving two court appearances between 2014 and 2015. Your counsel submitted that you do not have a relevant prior criminal history. Although your criminal history includes prior convictions for possession of cannabis, there are no priors for cultivation or for dealing with suspected proceeds of crime. This is your first time in custody.
31 A number of additional charges arising out of the same investigation as the present matter are listed for a summary plea of guilty in the Bendigo Magistrates' Court on 18 December 2020. Those charges are 2 charges of make threat to kill, two charges of criminal damage and one charge of possess cartridge ammunition.
32 I have read the report dated 17 October 2020 by Warren Simmons (Simmons), psychologist.[1] In Simmons' opinion:
'Mr Symons's [sic] childhood would have left him vulnerable to substance use, particularly as his parents modelled excessive alcohol consumption and cannabis use as normative behaviour. Mr Symons was introduced to cannabis by peers in his early teens and found the drug helped him with his emotional state and in forgetting about the difficulties in his life. He has subsequently experimented with other drugs including a four year period where he was using methamphetamines quite heavily. However, he has returned to using cannabis which has continued until the present time. However, it was noted that there have been two periods when he was substance free.'[2]
[1] Exhibit 2.
[2] Exhibit 2, [24].
33 Your counsel submitted that whilst not as serious as the matters raised in Bugmy v The Queen[3] (Bugmy), your childhood was nevertheless one of significant deprivation leading to years of drug use. You grew up in a house where you and your sister took on the responsibilities that were the duties of adults. This was the case as your parents were either drunk or unavailable. I take your background of social advantage into account in mitigation of sentence.
[3] (2013) 249 CLR 571.
Rehabilitation
34 Whilst on remand you have been working in the poly-concrete factory at Marngoneet. You had applied for a six month engineering course offered at the prison; however, this has not gone ahead due to the pandemic. You have been rising early to train in the gym in the morning and you then work a five and a half hour day. With a clear head for the first time since you were 13 years old, you are determined to re-enter the workforce and get your life back on track.
35 Your counsel submitted that you immediately undertook a mechanics course upon leaving school. You became skilled and entered the workforce in circumstances where your childhood was lacking in fundamental areas. Your counsel submitted that your attempt to retrain whilst on remand and desire to re-enter the workforce place you in good stead to make a new life for yourself. Your counsel submitted that if you remain drug free, your prospects of rehabilitation are positive. You have demonstrated in the past that you are able to abstain from drug use.
36 In my view, your prospects for rehabilitation remain guarded. Your prospects for rehabilitation will depend on your ability to abstain from using drugs when you are released from custody.
37 The defence submits remand in a period of COVID-19 confinement has placed a further burden on you because you have been denied the opportunity to undertake the engineering course.
38 The prosecution submits that the Coronavirus pandemic is of some limited relevance, noting the lack of access to treatment programs available at present.
39 The impact of the COVID-19 pandemic is a matter I take into account in your favour in mitigation of sentence.
40 As well as the matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act 1991 (Sentencing Act) to manifest the community's denunciation of your conduct and generally to impose a just punishment.
Sentencing submissions
41 Your counsel submitted that you purchased parts of a second hand hydroponic setup at an auction and did some research on the internet. You realised that you also liked growing it and were able to grow a significant quantity. Your counsel submitted that the set up for the plants grown inside was not very sophisticated. The plants are sitting on milk crates under a tarp or a tent with no air conditioning or temperature regulation, save for cheap ordinary bladed fans. Other plants were grown outside in the garden.
42 Your counsel submitted that you were not trafficking these plants and the cultivation is not connected to any hierarchical syndicate seeking to benefit economically from the cultivation of these plants. Your counsel submitted that you were not part of a syndicate and that the offending lacks the aggravating economic feature or organised crime aspect involved in that type of offending.
43 You instructed your counsel that the cash found on the premises is not connected to the cannabis. Your counsel submitted that there is no evidence to support that it is. However, the amount of cash located by the police was substantial, and you have pleaded guilty to dealing with property suspected of being proceeds of crime and have consented to the forfeiture of that money.
44 Your counsel referred to DPP v Petherick [4]. The facts in that case are different from the facts in this case. Mr Petherick was 60 years old at the date of sentence and had no prior convictions.[5] He was suffering from diabetes and other pre-existing medical conditions.[6]
[4] [2020] VCC 901.
[5] [2020] VCC 901,[3],[13].
[6] [2020] VCC 901, [17].
45 In Doan v The Queen[7], the Court of Appeal stated that cultivation of a narcotic plant is a prevalent offence, indicating a need for sentences to reflect the principles of general deterrence and denunciation.
[7] [2010] VSCA 250, [11].
46 In Nguyen v The Queen[8], the Court of Appeal stated that the sentencing exercise in respect of cultivation of a commercial quantity of a narcotic plant is a 'quantity-based sentencing regime.' At paragraph 19 of that decision, Maxwell P stated:
'Although quantity will not bear an arithmetical relationship to sentence, the quantity involved is a very significant matter in sentencing for these offences.'
[8] [2010] VSCA 127.
47 The commercial quantity in this case is based on the weight of the cannabis found. A total of 82.616 kilograms of cannabis was located in this case, which is over three times the commercial quantity. Accordingly, this is a serious example of the offence. It was a substantial crop, well in excess of what you would require for your own personal use.
48 There is no evidence to indicate the involvement of any other offenders in the cultivation of the cannabis, and you have taken full responsibility for ownership of the crop. Accordingly, your role and moral culpability is high.
49 The prosecution concedes that the hydroponic setups located within the residence lacked sophistication; however, the prosecution notes that the crop was contained in multiple locations throughout the property. The prosecution submitted that this is a serious example of the offence. The prosecution submitted that Charge 1 falls to be assessed in the 'mid-range' for this type of offending.
50 The prosecutor referred to the following observations of the Court of Appeal in Nguyen v The Queen[9], that the sentencing range for mid-range offending for cultivation of cannabis L should be uplifted:
'The current sentencing regime has persisted for far too long. It has wrongly informed community thinking and left misconceptions unaltered in some parts of the community about the seriousness of such conduct.
For the immediate future, sentencing courts must, by increments, increase the sentences for mid category offending so that the range of sentences is uplifted and substantially expanded. To enable the identification of the correct sentence for particular offending conduct, CSP for that category of seriousness of the offending must be sufficiently broad to encompass a wide range of criminal conduct within that category of the offence. The corrected range should include sentences that have previously been reserved for offending which fell at the lower level of the upper category of seriousness. The uplifted range should not include sentences that have previously been reserved for less culpable offenders such as crop sitters falling toward the upper end of the lowest category.'[10]
[9] [2016] VSCA 198, [151]
[10] [2016] VSCA 198, [151]-[152].
Mandatory Sentencing Provisions
51 An offence against this section is a category 2 offence under the Sentencing Act. Sub-section (2H) of s.5 of that Act provides that a term of imprisonment must be imposed for Charge 1 unless you satisfy any of the criteria set out in s.5(2H)(a) to (e). The defence has conceded that none of the criteria in s.5(2H)(a) to (e) apply. Accordingly, a term of imprisonment is the only available option open to the court in sentencing you for Charge 1.
52 Your counsel submitted that as a user, you will benefit from a sentence that includes a Community Correction Order which the court can impose in respect of Charge 2. When you are released from custody you will have little family support. There are intervention orders in place which prevent communication with both your mother and father.
53 However s.44 of the Sentencing Act provides that a court may make a community correction order in addition to imposing a sentence of imprisonment only if the period of imprisonment (after deducting the time served) is one year or less. In my judgment, the imposition of a sentence of imprisonment on Charge 1, to be followed by the imposition of a community correction order on Charge 2 would not give sufficient effect to the principles of general deterrence, the community's denunciation of your conduct and the need to impose a just punishment. This is without doubt a serious offence. The maximum penalties for the offences demonstrate the seriousness with which this conduct is to be viewed.
54 In all the circumstances I have no alternative to the imposition of a custodial sentence. I propose to record convictions and sentence you to be imprisoned as follows:
Charge 1 – cultivation of commercial quantity of narcotic plant- to a term of imprisonment of three years and six months.
Summary Charge 12 – deal property suspected proceed of crime – to a term of imprisonment of nine months.
55 I direct that six months of the sentence imposed on Summary Charge 12 be served cumulatively upon the sentence imposed on Charge 1. That results in a total effective sentence of four years. I direct that you serve a minimum term of two years and eight months before becoming eligible for parole.
56 As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have already spent in custody is 361 days. I direct that such be noted in the records of the court.
57
I order that the property referred to in the schedule of the Disposal Order which I have signed this day be forfeited to the Minister. I further direct that the property referred to in the Schedule be placed in the custody of the
Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings and then destroyed.
58 Pursuant to s.34(1) of the Confiscation Act 1997, I order that the property referred to in the schedule to the Forfeiture Order, which I have signed this day, be forfeited to the Minister.
59 Section 6AAA of the Sentencing Act requires me to state the sentence and non-parole period that I would have imposed but for the plea of guilty. Your plea has saved time, expense and the need for witnesses to give evidence. But for your plea of guilty, I would have sentenced you to a term of imprisonment of six years on Charge 1 and 15 months on Summary Charge 12. I would have ordered that nine months imposed on Summary Charge 12 be served cumulatively on Charge 1, making a total effective sentence of six years and nine months. I would have directed that you serve a period of four years and four months before being eligible for parole. Are there any further matters?
60 COUNSEL: No, Your Honour.
61 HER HONOUR: Yes, thank you.
- - -
5
0