Director of Public Prosecutions v McCarthy
[2020] VCC 1250
•17 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01697
CR-20-00095
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS McCARTHY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 June 2020, 8 July 2020, 17 August 2020 | |
DATE OF SENTENCE: | 17 August 2020 | |
CASE MAY BE CITED AS: | DPP v McCarthy | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1250 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Goodenough | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr M. Habib | Docherty Legal |
HER HONOUR:
1 Thomas McCarthy, you have pleaded guilty on Indictment No.K10852100B to one charge of cultivating a narcotic plant, namely cannabis, the maximum penalty is 15 years’ imprisonment; a charge of trafficking in a drug of dependence, namely cannabis, the maximum penalty being 15 years’ imprisonment; one charge of possessing an unregistered general category handgun, the maximum penalty for a first offence, being 600 penalty units or 7 years’ imprisonment; and being an unlicensed person storing a firearm in an unsecure manner, the maximum penalty 240 penalty units or 4 years’ imprisonment.
2 You have also agreed to me hearing and have pleaded guilty to four summary charges: Summary Charge 6, being a non-prohibited person possessing a Category A longarm without a licence, the maximum penalty 120 penalty units or 2 years' imprisonment; Summary Charge 7, being a non-prohibited person possessing a Category B longarm without a licence, the maximum penalty 120 penalty units or 2 years imprisonment; Summary Charge 10, possessing a silencer without a permit, maximum penalty 120 penalty units or 2 years' imprisonment; and Summary Charge 12, possessing cartridge ammunition without a permit, the maximum penalty 40 penalty units.
3 It is not necessary to recount in great detail the facts of this matter, as the matter was opened in detail by the learned prosecutor, consistent with Exhibit A. I sentence you on the basis of that opening and as discussed during the course of your plea hearing. It is sufficient for present purposes to say your offending in my opinion is serious and concerning. I turn to a summary of it.
4 On Tuesday, 2 April 2019 at approximately 12.43 pm police executed a search warrant at your address in Langdon Road, Laanecoorie, where you lived with your wife and three children. A greenhouse was located on the property surrounded by a six foot high Colourbond fence. The green house was approximately 5 metres x 20 metres and full of very large cannabis plants.
5 The plants were around 10 feet tall, nearly 2 metres in diameter, check that it is in feet, not metric, two metres in diameter and were “healthy and mature and extremely close to being harvested with a large amount of budding present”. There was a watering system installed in the greenhouse and in total 17 large plants were in the greenhouse (Charge 1). The photographs provided a visual description of this well-developed crop (Exhibit B).
6 In a shed on the property, a large blue mesh cage was seen hanging up containing a quantity of cannabis buds that appeared to be set out to dry. In a portable shed area, a large quantity of cannabis buds were laid out on the mesh beds and several large industrial style driers set up with mesh bags of cannabis drying (Charge 2). As I understood the trafficking charge related to the dried cannabis. You instructed you used some and also gave to friends.
7 You had Facebook open on your laptop and the conversation you were having with Paul O’Brien was photographed:
Paul O'Brien: 'It will be a great year mate, fuk knows you deserve it with all the time, money and effort you have put in.'
Thomas McCarthy: 'Fingers crossed mate. See how it pans out... Hopefully a great year for everyone… as I said it's how it drys that counts… i.e. heavy or light.'
8 Two firearms were located in an unlocked pantry cupboard in the kitchen, along with ammunition, the firearms identified as an open single shot shotgun (Summary Charge 6) and a Winchester calibre lever-action repeating rifle (Summary Charge 7). The shotgun was loaded with a cartridge in the chamber and the Winchester rifle was not loaded, but had live ammunition strapped to the butt of the rifle.
9 After locating those two firearms, DSC Bianca Cola asked if there was anything else you wanted to tell them about and you responded:
'I'm already in a heap of shit, in a toolbox under my bed is a hand gun and silencer.'
10 Police located a black box under your bed that contained a .22 Ruger pistol, a silencer, extended magazine and ammunition. The handgun examined by a ballistics expert was found to be a shortened .22 long rifle calibre, Sturm Ruger brand, 10/22 model, semi-automatic rifle. Five magazines containing cartridges that were compatible with the rifle were also located in the box (Charge 3 and Summary Charges 10 and 12).
11 You do not hold a Victorian firearms licence. Investigations into the firearms located at your address revealed that the 410 shotgun was stolen during a burglary in Kangaroo Flat. The 30-30 was an unregistered firearm. I note the prosecution were not suggesting you were responsible for/involved in the previously referred to burglary.
12 You were taken to Bendigo police station for interview, on 2 April 2019 and answered 'no comment' in response to the allegations. To answer that way was of course your right.
13 The 17 cannabis plants weighed 226.19 kilograms excluding roots. Leaves and flowering heads constituted between 101.4 kilograms and 138.3 kilograms of the weight of the plants, which equated to an air dried weight of approximately 25.4 – 34.6 kilograms. However, the expert noted some of the plants were in a wilted condition and she expected their leaves and flowering heads would have lost three-quarters of their weight on drying, resulting in an air-dried weigh in excess of the 25.4 – 34.6 kilogram estimate. In addition, as some of the plants were immature, they would have increased in weight had they grown to maturity resulting in an increased yield of leaves and flowering heads.
14 The total weight of the dried cannabis was 1.06 kilograms.
15 You have spent 143 days in custody by way of pre-sentence detention, having been remanded on 2 April 2019, then granted bail on 22 August 2019.
16 The prosecution opening also included a chronology. I note from 5 August 2019, those representing you and the prosecution have been in discussions in an attempt to resolve your offending to appropriate charges.
17 On 22 October 2019, given the state of the discussions at that stage, a trial was listed for 29 June 2020. On 18 November 2019, a further defence offer was made, rejected by the prosecution on 12 December 2019. On
23 January 2020, the main issue it would appear from the chronology, was related to ‘commercial’ quantity, ultimately resolving on 3 June 2020 into the indictment currently before me and for which you have entered your pleas of guilty.
18 I accept your pleas of guilty to the charges before me were entered at the earliest opportunity. I note much of the delay regarding resolution involved the allegation in Charge 1 ‘intent relevant to commercial’ quantity, now not pursued by the prosecution.
19 You have pleaded guilty to these charges and such is relevant in mitigation of your sentence. By your pleas of guilty you have saved the community the time and cost of a trial and witnesses have not been required to give evidence at a trial, nor, I note, was there a contested committal.
20
An amended criminal record was filed subsequent to the initial plea hearing which included interstate criminal offending. You admitted that today. As
I said, you admitted all offending in your updated prior criminal history and
I note no prior offences for drug cultivation/use/possess.
21 Your first offending was in 1985 involving dishonesty offences and thereafter appearances in court in Victoria and Queensland. I turn to some of those Court appearances.
22 You appeared at court in 1987 on charges including dishonesty and possessing a firearm without a licence, I was told an air rifle. Then in August 1988, dishonesty offences and were sentenced to a community based order subsequently breached in 1990. In 1992 assault with a weapon amongst other charges. In 1993 possession of a dangerous article and in 1997 carrying a dangerous article.
23 Concerningly your offending now before me includes firearm offences (including one being loaded).
24 You last appeared at court on 6 May 2008 on driving offences, including exceed prescribed concentration of alcohol and were sentenced to a three month intensive corrections order, I note completed without breach.
25 Your counsel, Mr Habib, prepared a written outline of submissions for your initial plea hearing and addressed them during the course of it (Exhibit 1).
I discussed aspects of his written submissions with him, in particular deficits in the material, in my opinion, specifically addressing your medical condition should you be incarcerated. Mr Habib appropriately sought an adjournment to obtain further material. The prosecutor did not object to an adjournment and a further plea hearing was listed for 8 July 2020. I shall return to material subsequently filed later in these sentencing remarks.
26 You are 52 years of age at sentence.
27 I turn to your background and history. You were born in Walhalla, eastern Victoria. From ages 2 to 16, you spent time in institutional homes. Your mother died when you were 4 years of age. She had issues with alcohol and drugs. Your father passed away in 1999. You spent some of your adult life living with him.
28 You have no contact with relatives/family other than your partner and children.
29 Your counsel referred to abuse of you in institutional settings and Mr Simmons conclusion that as a result you met the criteria for post-traumatic stress disorder (PTSD).
30 You are currently in receipt of support from DHHS and were previously assisted by Open Place Services run by Berry Street (Exhibit 10).
31 You have an ongoing claim against DHHS and the Christian Brothers in relation to abuse and trauma suffered by you, managed by solicitors other than those representing you at this plea hearing.
32 You did not commence high school. Not surprisingly your employment history was scattered and limited. You had worked in a variety of jobs in the past and had been on a disability support pension for the past 10 years.
33 Your counsel referred to your substantial history of drug and alcohol abuse, your primary addiction, alcohol. The majority of your past offending you said was in the context of alcohol abuse and I note your prior court appearance involving exceeding PCA.
34 You instructed you had greatly reduced your alcohol intake in the past 10 years in your relationship with your current partner and following a motorcycle collision. Cannabis, you said, replaced your use of alcohol, cannabis use the gateway to the offences (Charges 1 and 2) before me.
35 You live with your partner, Heather, and your three sons, 17 and 14 and 9 years of age.
36 Regarding your time in custody to date of 143 days, whilst in custody on 30 June 2019, you were transported to the emergency department of hospital due to reported chest pain and found to have unstable angina. In July also whilst in custody you were transported to St Vincent’s Hospital for stress, ECT and testing, then referred to the cardiology clinic with a suspected stroke and cardiac trauma. Material subpoenaed from Justice Health confirmed those attendances.
37 A number of documents were tendered at your initial plea hearing, including the report from Warren Simmons, psychologist, dated 2 March 2020. He interviewed you on 27 February 2020 and referred to material then available to him, including a Bendigo Health Discharge Summary dated 6 February 2020.
38 A history was taken from you and described within his report. That is, from 2 to 16, you were in various institutional settings including Allambie, Gordon Holmes, Baltara, St Augustine’s Boys Home and St Vincent’s Boys Home. You described your mother as cruel and manipulative, your father an alcoholic who suffered a heart attack.
39 Your parents separated when you were young. You have a younger brother 49 years of age. He had also previously been placed into care, however, was subsequently adopted.
40 At Gordon Holmes you lived with cottage parents. You described your cottage mother as physically and psychologically abusive to you (paragraph 3, Exhibit 2).
41 At age 7 you described being sexually assaulted by a person about 10 years older than you (paragraph 4, Exhibit 2).
42 When you were 10 you were placed into Baltara. You recalled your room mate drowned in a dam at Macedon and when you were told of that, there was no support offered to you. You escaped from Baltara on several occasions.
43 You described being at St Augustine’s Boys Home for approximately six weeks and that the older boys were physically abusive and bullied you. You also described escaping on a number of occasions. As a consequence, you were moved to St Vincent’s Boys Home, which you described as 'terrible', and of being sexually abused by one of the brothers (paragraph 6, Exhibit 2).
44 You, as I have previously noted, not surprisingly described erratic employment and education, given that background. You said you may have completed Grade 5 when attending St Vincent’s Boys Home. You could read but could not spell.
45
After being released from care, you remained with your father and
step-mother for approximately eight months.
46 Employment wise, you worked as a panel beater’s assistant for a year, before going to Queensland. Thereafter you worked around Australia, including picking beans and ginger. At age 17 you spent three months in Pentridge, following which you were unemployed for one or two years.
47
Thereafter you worked in warehouses, returning to Queensland at age 30, then spending approximately a year in Rockhampton jail. Your admitted prison sentences in Pentridge and Rockhampton, as mentioned in
Mr Simmons’ Report. The prosecution sought to file an updated criminal record and your counsel agreed to that, such occurred today.
48 After being back in the community for a year, you returned to Victoria and worked as a bus driver’s assistant, then went to Shepparton, worked for three months, before ‘going bush’ for 12 months (paragraph 11, Exhibit 2).
49 You described your relationship with Heather in positive terms.
50 Turning to your drug and alcohol history, at age 18 you were introduced to heroin, which you used for approximately 12 months.
51 Your alcohol consumption commenced when age 18, drinking daily. At times you experienced alcohol poisoning and seizures. Following an ultimatum from Heather 10 years ago regarding your excessive drinking, you said you now consumed a can of alcohol about once a month.
52 Your use of cannabis commenced in your twenties, with you smoking more regularly from approximately two years ago to the present. You instructed your cannabis use increased as your alcohol use decreased, that cannabis helped you sleep. Since August 2019 you said you had ceased cannabis use.
53 Turning to your medical and psychiatric history, you were in a motorbike accident approximately 10 years ago and received a number of injuries. Surgery was not required, although you spent some time in hospital.
54 You thought you had been diagnosed with a brain tumour when at Fulham Correctional Centre and had been taken to Sale hospital. Your medical issues were discussed during your plea hearings.
55 Medical records, according to Mr Simmons, also indicated issues with your thyroid gland. You also have diabetes. You said although you had been attending hospital, there had been no clear decision made about whether surgery would be undertaken. I will refer to this later on.
56 You presented to Mr Simmons with a list of medications then prescribed (paragraph 20, Exhibit 2), for a variety of conditions, including your mental state, cardiac condition and problems arising from a pituitary tumour.
57 You described ‘some’ involvement with mental health professionals in the past 'on and off', although it was unclear to Mr Simmons if there had been any formal diagnosis.
58 You described a low mood and intrusive thoughts most days of the abuse you suffered as a child. In the opinion of Mr Simmons, based on your self-report, you met the criteria for post-traumatic stress disorder.
59 In the opinion of Mr Simmons, your childhood was chaotic and without significant adult bonds. You also had a long history of physical, emotional and sexual abuse.
60 Your childhood, he opined, would have left you vulnerable to substance use and he noted you very quickly commenced using drugs in your younger years, your more significant problem being with alcohol. In the opinion of Mr Simmons, this had been a form of self-medication for your PTSD and the emotional difficulties you experienced earlier.
61 You presented with symptoms of a personality disorder, with both avoidant borderline and some anti-social traits. During your twenties, he noted you often spent a lot of time ‘in the bush’ returning to the community for only short periods of time.
62 Mr Habib filed further submissions (Exhibit 13) dated 16 June 2020, in which he addressed the significance of your disadvantaged background when sentencing you. I am aware of relevant authorities including Bugmy v
The Queen.[1] All citations will be provided, counsel. I accept, consistent with general sentencing principles, your background and its link to cannabis use has some application in reduction of your moral culpability and the weight to be given to general deterrence.
[1](2013) 249 CLR 571 (‘Bugmy’).
63 In the opinion of Mr Simmons, a significant factor in your current circumstances at the date of his report, was your pituitary tumour. No surgery had then been scheduled, although occurring in the future when some of your other conditions, specifically thyroid and adrenal function, were better controlled. Mr Simmons also noted you had low immune function and that you needed to be recently hospitalised until your levels could be increased.
64
In the opinion of Mr Simmons, it was unlikely that the correctional system would be in a position to adequately manage your health conditions.
I discussed this assertion by Mr Simmons, to which Mr Habib, in particular, the basis on which he formed that conclusion given published statements from Corrections Victoria regarding prisoner health and treatment in this COVID-19 environment. I discussed with both counsel that document “Novel Coronavirus (COVID-19) – Information for Courts regarding Corrections Victoria operations (April 2020)”. Both counsel, I understood, had seen and read that material previously. In addition, I referred counsel to the Corrections Victoria website and update to that document in May 2020. I also note you have previously received appropriate medical/hospital treatment when required whilst on remand for these offences.
65 Medical reports were also tendered at your initial plea hearing. From Bendigo Health, referable to your attendance on 17 January 2020 (after bail), within the material (Exhibit 3). The principal diagnosis then being global weakness, paranesthesia, headaches and an incidental finding of 1.8 centimetre macroadenoma. A discharge plan was contained within that report (page 3).
66
In addition, I was provided with your medication profile (Exhibit 4) dated
6 February 2020.
67 There was also a document from Bendigo Health dated 4 February 2020, outlining appointments made for you on 19 February 2020 and 26 February 2020 for physiotherapy and with an exercise physiologist (Exhibit 5).
68 There was a patient discharge information form relevant to an admission on 23 January 2020 (Exhibit 6), and documentation referable to appointments made for you at St Vincent’s specialist clinics on 25 February 2020 (Exhibit 7).
69 There was correspondence from Dr Kim, neurosurgery registrar St Vincent’s Hospital, dated 25 February 2020 (Exhibit 8), who reviewed you regarding your pituitary macroadenoma. In his opinion, the tumour was very unlikely to be cancerous, although he opined possible, it is rare. There were no plans at that stage for an operation, although you might need surgery in the future. There would be a further review of you by doctors at St Vincent’s Hospital in approximately four weeks from the date of that report. An updated report from Dr Kim, dated 10 June 2020, confirmed ‘possible’ future surgery.
70 There was also correspondence dated 31 January 2020 from Dr Cornthwaite (Exhibit 9).
71 A number of references were also tendered at your initial plea hearing. Two from your partner, Heather McCarthy, dated 5 August 2019 and 15 June 2020. She described you as a loving husband and father; that you helped homeless people in the community setting up a Biker Charity Support Group (BCSG) in which you worked to raise money for those who needed it; that you worked extremely hard to register the group as a charity, not wanting it to be a 'bikie club'. She described your history in boys’ homes and of being abused by those you trusted. Ever since she had known you, you had insomnia and your decision to grow cannabis was to help you sleep.
72 Regarding gun possession, you lived on a farm, she said. A couple of months prior to being arrested, you started going to church with her (the Enjoy Church in Kangaroo Flat).
73 She was concerned for your health, being advised on one occasion when on remand, you had had a heart attack and stroke and had been taken to hospital. Since being bailed she described numerous medical appointments you had attended. She also said it was difficult raising three boys on her own.
74 Your counsel, Mr Habib, was not relying upon exceptional circumstances relative to family hardship and that, in my opinion, was an appropriate concession on the material before me. I do however accept you would have been concerned about how your wife was coping with the children, should you be incarcerated, consistent with general sentencing principles.
75 There were also a number of references apparently prepared for your bail application.
76 A reference from Charles Bovalino, dated 5 August 2019, who had known you for several years. He met you through your charitable work with the homeless. You had been a major supporter of his charity which involved assisting children in paediatric rehabilitation at Bendigo Health. He described you as a good family man.
77 A reference from Coral Davies, dated 2 August 2019. She had known you for approximately 16 years. You and her family had been involved in the Maryborough and district Baptist Church, your assistance mainly in the meal program. The help of your bikie group was also appreciated. You were described as a caring, conscientious and loving father who always put your family first. You were hardworking and reliable. She was aware of your traumatic childhood.
78 A reference from Rose Briscoe, dated 5 August 2019. She had known you for approximately 10 years and met you and your family through her work at Tarnagulla primary school. She described you as supportive and caring father and friend. She described your involvement in the 'Biker Group'.
79 A reference from Leigh Mellberg, dated 5 August 2019, principal at Tarnagulla primary school. He had known you and your family over the past eight years. He described you as supportive of the school, of your community mindedness, extending to occasions where you assisted the school community, also wider community, including the local Biker Charity Support Group (“BCSG”).
80 A reference from Jennifer Stewart, dated 5 August 2019, who has known you for approximately 11 years. She described you as having a good heart; that you cared about your family. She has seen you and your wife at the Baptist Church and had been to your home on numerous occasions. You were always polite and respectful.
81 A reference from John and Maryann Pool, dated 5 August 2019. They are senior ministers at Full Throttle Ministries. They first met you in 2015 at a fund raiser organised and supported by the BCSG. You were involved in fund raising whilst with that organisation. They found you friendly, motivated and generous. They were aware of your difficult upbringing and abuse in boys’ homes.
82 Returning to Mr Habib’s written submissions (Exhibit 1), your counsel appropriately conceded offending of this type would require general and specific deterrence and community protection. He is correct. Mr Habib conceded a term of imprisonment was within range of appropriate sentences for this offending, however submitted in your case a combination sentence of imprisonment (time served) with a Corrections Order was the appropriate disposition.
83 Your counsel urged there had been some delay through no fault of yours to this hearing and that in that time, you had not committed any further offences whilst on bail. I am aware of that.
84 Mr Habib appropriately conceded a number of aggravating features of your offending, in that a firearm was loaded and the way the plants were prepared and kept. I add the photographs tendered show a well-developed and healthy crop. He urged however your offending in relation to Charges 1 and 2 was not highly planned or organised level of cultivation, such as part of a structured organisation. Nor he submitted were the weapons in your possession in conjunction with your cannabis offending. I shall turn to the prosecution submission on that shortly.
85 Regarding the impact of COVID‑19, whilst conceding each case was to be assessed on an individual basis, Mr Habib submitted there would be some hardship to you if returned to custody with a lack of face-to-face visitations and lack of courses and services available. I accept that is so.
86 Your counsel appropriately conceded the principles in R v Verdins & Ors[2] were not being relied upon, however, referred to the report of Mr Warren Simmons and your post-traumatic stress disorder, history of physical, emotional and sexual abuse, self-medication in relation to the PTSD and your medical and physical issues to which many of the documents refer, and urged that any further period of imprisonment would be more burdensome for you than for a person in normal mental/physical health and the sentence should be reduced to reflect that. I note the prosecution agree, as do I.
[2](2007) 16 VR 269.
87 In particular your counsel referred to your lowered immune function which placed you at a significant risk compared to other offenders, should there be a COVID‑19 outbreak in custody. Mr Habib urged the medical material placed before me supported your description of being ‘at risk’ vis-à-vis COVID‑19.
88 Your counsel relied upon the decision of Boulton & Ors v R[3] submitting that the time you had spent in custody to date dealt with the punitive aspect of your offending and the need for deterrence. Mr Habib urged protection of the community and your rehabilitation would then be addressed by a Community Corrections Order; that you would benefit from such an Order by engaging in drug and alcohol treatment and programs.
[3](2014) 46 VR 308.
89 Your counsel referred to DPP v Marek[4] and DPP v Canavan.[5] I have read those cases. It is always difficult comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation and personal to an offender. Ultimately, I am assisted by principles referred to when sentencing for offending of this type by pronouncements of the Court of Appeal in particular.
[4][2018] VCC 1084 (‘Marek’).
[5][2016] VCC 1112 (‘Canavan’).
90 Mr Goodenough, on behalf of the prosecution, filed written submissions on sentence and addressed them during the course of your plea hearing
(Exhibit C). The prosecution submitted a 'high end' combination sentence would be within range, that submission clarified in oral submissions.
91 The prosecution submitted a number of matters were relevant to the seriousness of your offending. It was a sophisticated set-up, with the plants well cared for. The weight was significant. There was processing of the plants by drying at the same premises. The weight of the cannabis was significant. The location of multiple firearms, including one which was loaded, also a trafficking charge in respect of the cannabis. Mr Goodenough submitted the cannabis, the subject of the trafficking charge, was linked with the cultivation being part of the same production and an extension of it.
I agree with these descriptions of your offending.
92 Sentencing snapshots as at August 2018 were tendered which showed a wide range of dispositions available for cultivating a non-commercial quantity of narcotic plants (Exhibit D).
93 Turning to your health referred to in the various documents tendered, the prosecution accepted they pointed to a number of health issues and noted, as do I, medication you are prescribed. The prosecution conceded, appropriately your health issues were relevant when sentencing, however submitted your health was not determinative of sentence; that there was a need for just punishment, general and specific deterrence as primary sentencing considerations for your offending.
94 Mr Goodenough conceded the principles in Bugmy may have some application in your case, referring to your disadvantaged background at various homes and various forms of abuse suffered. I note this written submission prompted Mr Habib’s reply (Exhibit 13).
95 Turning to the two authorities referred to by Mr Habib, the prosecutor, urged there were distinguishing features those cases to yours. In Marek the quantities were significantly lower (98 plants weighing 2.09 kilograms, dried cannabis 7.3 kilograms (paragraph 4)). In Canavan the prosecution accepted there was no intention to cultivate commercially. There were 50 plants with a weight of 37.95 kilograms, the court noting that cultivation was 'a serious example' of it.
96 The prosecution referred to Pham v R,[6] an appeal against a sentence of two years’ imprisonment on a charge of cultivating a narcotic plant related to 18 cannabis plants weighing a total of 31.35 kilograms. The appellant was 52 years of age at the time of the offending, had no prior convictions. That appeal was dismissed.
[6][2020] VSCA 114.
97 Comparing cases factually, as I have said, is difficult and of limited assistance, as I have previously stated.
98 It was submitted by the prosecution that in your case the quantity and nature of the cultivation placed it at the higher end of such offending.
99 Regarding the firearms offences, the prosecution noted three were located; one loaded, another located with a silencer and further ammunition. The prosecution submitted the nature of the items, location and the number, demonstrated a use beyond animal control (at the farm). In my opinion on the evidence before me, I cannot conclude that the presence of the firearms was relevant directly to the cannabis crop and/or trafficking. The presence of the loaded firearm and firearm with ammunition attached to is however concerning.
100 I discussed with both counsel whether an aggregate sentence could be imposed on all of the charges before me. Both counsel in subsequently received correspondence and in discussion agreed I should not impose an aggregate sentence (Exhibit E).
101 Subsequent to your initial plea hearing I received further medical material.
102 From Dr Thomas Faulkner, GP, Marong Medical Practice, Inglewood (Exhibit 14), dated 1 July 2020. He had been involved in your care since 3 June 2020 ('three clinical encounters'). From his report, he relied upon correspondence on file from Bendigo Hospital and your treating specialist, Dr Jeddi.
103 You had been admitted to hospital in January 2020 as a result of a number of symptoms worsening over 12 months as described by Dr Faulkner. At subsequent neurological review that there was at the time, no recommendation at that stage for surgical intervention.
104 Your diagnosis remained unclear. Dr Faulkner noted Dr Jeddi’s attempts to arrange further treatment for you.
105 Since you left hospital in 2020, you have continued to have many medical conditions, weight increase, rising cholesterol, and your hormone levels remained deranged. You continued to experience headaches.
106 You had several largely unexplained symptoms and significant side effects from medication. In Dr Faulkner’s opinion your current mental state was unstable. In his opinion you were a higher risk of contracting COVID-19 due to your medical conditions, including chronic lung disease.
107 Dr Faulkner and Dr Jeddi agreed your ‘issues’ would be quite challenging in a custodial setting. Should you not receive the medical care as recommended there was a high likelihood of continued deterioration of your health and quality of life.
108 Your current medication was listed.
109 I note your instructing solicitors requested a report from Dr Jeddi regarding your hospitalisation from 17 January 2020 to 6 February 2020 and care post discharge.
110 The further hearing of this matter was adjourned to enable receipt of further medical material, and as I discussed with counsel, for information to address your ability to complete Community work as part of a Community Corrections Order and I discussed that in some detail with counsel prior to sentencing today and that will be on the transcript.
111 I received a report from Dr Jeddi, dated 12 August 2020 (Exhibit 15), a letter from St Vincent’s hospital, dated 11 August 2020 (Exhibit 16), and further written submissions as to sentence from Mr Habib, dated 14 August 2020 (Exhibit 17).
112 The recent medical material confirms your hospitalisation in January 2020 and detection at that time of a pituitary tumour. You are currently on a wait list relevant to that surgery. The reports detailed your current ‘unstable’ medical issues, including medication prescribed at this time.
113 The reports, to various degrees, refer to the perceived medical difficulties for you in a custodial sentencing, in part the result of COVID-19 and your already ‘compromised’ health.
114 Mr Habib in his further written submissions, referred to your health, if incarcerated and impact of COVID-19 on prisoners generally and you in particular.
115 The prosecution in email correspondence dated 14 August 2020 (Exhibit F) having received this material prior to today’s hearing (17 August 2020), stated:
'In light of the additional medical material provided on Mr McCarthy’s behalf, the Crown’s position is that a combination sentence is open and that no further period of imprisonment is required.'
116 This was, in my opinion, a generous concession, but no doubt so determined after careful consideration of all the material in this matter.
117 I arranged to have you assessed for a Community Corrections Order and received a report from Alexandra Osborne. You have been assessed as suitable for such an Order and a number of conditions of the Order were recommended. I note you have previously successfully completed two community-based orders and one intensive corrections order. I am not sure it was two, but I will check that. You expressed a desire to incorporate your attendance with Open Place as part of the Order. Judicial monitoring was not recommended.
118 As well as matters personal to you to which I have referred, which include your prospects of rehabilitation, which I find to be good, I must also take into account the need for general deterrence, which is of importance in a case such as this.
119 There is also the need for specific deterrence when sentencing you, as you have an extensive criminal history, concerningly the use of weapons, (I note not firearms). Whilst you do not have any prior offending relevant to the offence of cultivate and/or trafficking cannabis, this crop had certainly been growing at your property for some time and was in various stages of development and it involved you tending the crop on a regular basis.
120 I must also consider the need to protect the community from you and that causes me some concern, although I note your most recent health issues and that you have not offended since being released on bail.
121 There is also the need for just punishment and deterrence.
122 I have determined that the sentence I impose today - and I will go a bit slower, so is counsel with me? Yes. Yes, I have not lost you?
123 MR GOODENOUGH: Yes, Your Honour.
124 HER HONOUR: Mr Habib, you are still with us?
125 MR HABIB: I am.
126 HER HONOUR: Yes. And, Mr McCarthy, are you still with me?
127 OFFENDER: Yes, Your Honour.
128 HER HONOUR: Right. Keep listening.
129 I have determined that the sentence I impose today should incorporate a Community Corrections Order. I said 'incorporate', but I need to explain to you, Mr McCarthy, the conditions and ramifications or what will happen if you breach that Order, before I actually make that Order and I will ask you if you consent to the Corrections Order being made, mindful of the conditions and ramification of breach.
130 What I intend, is that I sentence you to a term of imprisonment consistent with the 143 days you have served as pre-sentence detention and then place you on a Community Corrections Order for a period of two years and six months.
131 Before I ask if you to consent to that Community Corrections Order being made, I must tell you about the Order, so you know what it entails.
132 A number of core conditions apply to all Community Corrections Orders and also therefore to yours:
·You must not commit, whether in or outside Victoria, during the period of the Order, which is two years and six months, an offence punishable by imprisonment;
·You must report to and receive visits from the Secretary to the Department of Justice, that means, a Community Corrections worker, during the period of the Order;
·
You must report to the Community Correction Centre at Bendigo CCS (3 William Vahland Street, Bendigo) within two clear days, i.e. by
4:00 pm, 19 August 2020;
·You must notify the Secretary, or his or her nominee, that is, a Corrections worker, of any change of address or employment within two clear working days after that change;
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee, i.e., a Corrections worker;
·You must comply with any direction given to you by the Secretary, or the CCS worker, same thing in your case, to give to ensure you comply with the Order.
133 Now they are core conditions that apply to everyone and to you, but in your case, there are going to be some other conditions added to that Order and these will apply to you as well:
· You must perform 200 hours of unpaid community work over a period of 24 months. I know the Order is for two and a half years, but you have to do that work within two years of that Order, as directed (s.48C). One hundred hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition (s.48CA);
· You must be under the supervision of a Community Corrections officer for a period of two years and six months;
· You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager, that is, a Community Corrections worker (s.48D(3)(a));
· You must undergo any medical assessment and treatment that may include a general or specialist medical treatment or treatment in a hospital or residential facility, as directed by the Regional Manager, i.e., Corrections worker (s.48D(3)(d));
· You must undergo mental health assessment and treatment, including (but not limited to) mental health assessment and treatment, including psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager, that is, a Community Corrections worker (s.48D(3)(e));
· You must undergo programs or courses aimed at addressing factors relating to offending, as directed by the Regional Manager, i.e. Community Corrections worker (s.48D(3)(f)).
134 Now, I can only impose a Community Corrections Order if you agree to such an Order being imposed, so I have to tell you a bit more about it.
135 If you contravene or breach that Order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for the breach (s.83A(d)).
136 You can also be re-sentenced for the offences that are before me (Charges 1 and 2). One of the options available includes a further term of imprisonment (s.83A(s)).
137 So you have got to be extra careful for the next two years and six months. No committing any further offences that might incur a term of imprisonment, and that does not just mean drug offences, you have got to be extra careful. It could include driving offences, you will be back before the court if you do, you will be re-sentenced on these charges before me and you have to be extra careful.
138 I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is that Community Corrections worker as part of this Order, you can also receive a substantial fine. (s.83A(e) and A(f)).
139 Now, are you still with me, Mr McCarthy?
140 OFFENDER: Yes, Your Honour.
141 HER HONOUR: The CCO of course, I have said 'charges' only related to Charge 1, but that will become clear in a moment, so my apologies for any confusion. Now, so you are aware of all of that?
142 Do you consent, Mr McCarthy, to a Community Corrections Order with the conditions to which I have referred, being aware of what is likely to happen if you breach the Community Corrections Order?
143 OFFENDER: I understand, Your Honour.
144 HER HONOUR: Do you consent to the Order being made with all those conditions attached?
145 OFFENDER: I consent, Your Honour.
146 HER HONOUR: All right. And you are aware what will happen, most likely you will go jail if you breach any of those conditions?
147 OFFENDER: I understand, Your Honour.
148 HER HONOUR: Still consent to the Order?
149 OFFENDER: Yes, Your Honour.
150 HER HONOUR: Right. I turn to formal sentence then. I sentence you as follows:
151 On Charge 1, you are convicted and sentenced to 90 days' imprisonment and then subject to a Community Corrections Order for two years and six months. All right?
152 On Charge 2, you are convicted and sentenced to seven months' imprisonment.
153 On Charge 3, convicted and fined $700.
154 On Charge 4, convicted and fined $500.
155 On Summary Charge 6, convicted and fined $300.
156 On Summary Charge 7, convicted and fined $300.
157 On Summary Charge 10, convicted and fined $200.
158 On Summary Charge 12, convicted and fined $50.
159 Charge 1 is the base sentence and I direct that 53 days of that sentence on Charge 2 be served cumulatively upon Charge 1.
160 Now we have got to check the maths.
161 That results in a total effective sentence of 143 days, followed by a Community Corrections Order of two years and six months.
162 There should be therefore a total amount of fines of $2,050, with a stay of three months in relation to all the fines.
163 The conditions of the Community Corrections Order will be those to which I have previously referred and to which you have consented and the Community Corrections Order will be a conviction recorded.
164 I will come back to all that, counsel, just give me a minute.
165 A forfeiture and a disposal Order were sought for various items and counsel on your behalf consented to the orders being made. I make the orders in the terms sought.
166 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 143 days in custody by way of pre‑sentence detention and I direct that that be entered into the records of the court.
167 Pursuant s.6AAA of the Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of five years, with a non-parole period of three years and eight months.
168 Now, there are two things - we let us clarify - now does the sentence add up, counsel?
169 MR HABIB: Your Honour, can I confirm the length of time for Charge 2?
170 HER HONOUR: It was seven months, I think.
171 MR HABIB: I think my learned friend and I agree that seven months does not quite add up the way that Your Honour seems to have - - -
172 HER HONOUR: No, no, it is the cumulation is of 53 days of that charge. Charge 1 - - -
173 MR HABIB: Perhaps I'm doing - - -
174 HER HONOUR: - - - is 90 days.
175 MR HABIB: Seven months is 210 days, take - - -
176 HER HONOUR: All right, no, look, I will make it that 143 days is - so, hold on. Fifty-three days I will make that. Does that add up? We are not - do not panic about this discussion, Mr McCarthy, we are - the sentence will not change as such, but I am just clarifying that.
177 MR HABIB: I am - what's Your Honour's - sorry, Your Honour, my maths is terrible sometimes.
178 HER HONOUR: Ninety plus - - -
179 MR HABIB: I didn't - - -
180 HER HONOUR: Ninety plus 53 was going to be served cumulatively. So that is the 90 plus the 53.
181 MR HABIB: Yes, Your Honour.
182 HER HONOUR: And that should come up to 143?
183 MR GOODENOUGH: Yes, Your Honour.
184 MR HABIB: Yes, Your Honour, that's right.
185 HER HONOUR: Is that wrong then?
186 MR HABIB: Well then, in that case, is Your Honour imposing on Charge 2, 143 days and simply noting that 53 days is cumulative, or - because 143 days is a little bit more than four and a half months.
187 HER HONOUR: All right, well, Mr Goodenough, what do you say about Charge 2, 50 - 143 days?
188 MR GOODENOUGH: As I understood - I may have misunderstood what Your Honour said subsequently, was that the sentence on Charge 2 was 53 days. And then that was to be cumulative on Charge 1. I may have misunderstood Your Honour in respect of that.
189 HER HONOUR: No, well, look, I am happy to do that.
190 So on Charge 2, convicted and sentenced to 53 days and that 53 days is to be served cumulatively upon Charge 1.
191 MR HABIB: Yes, Your Honour.
192 HER HONOUR: So does that accord with the correct figure?
193 MR HABIB: Yes, Your Honour.
194 MR GOODENOUGH: Yes.
195 Do you agree with that, Mr Habib?
196 MR HABIB: Yes, Your Honour.
197 HER HONOUR: So it is pretty light on for sentencing all round, but that is not the point. The Crown have conceded that and I think it is appropriate, given all the material and that is ultimately my decision.
198 So Charge 2 will be convicted and sentenced 53 days' imprisonment and that is to be served cumulatively upon Charge 1, that total amount of 53.
199 Now is that clear to you, Mr Habib?
200 MR HABIB: Yes, Your Honour. Thank you, Your Honour.
201 HER HONOUR: So 90 plus 53, in case my maths is totally skewwhiff, makes 143, which is the total number of days he has already spent, correct?
202 MR HABIB: Correct.
203 HER HONOUR: Which means he should move from now to the Community Corrections Order by attending this two days' time by 4 pm, do you agree that is consistent with my Order - my sentence?
204 MR HABIB: Yes, Your Honour.
205 HER HONOUR: Do you agree with that, Mr Goodenough?
206 MR GOODENOUGH: Yes, Your Honour.
207 HER HONOUR: Excellent. Now, the next thing is, I might have said somewhere, 10 feet. I do not know how that came into it for these - - -
208 MR GOODENOUGH: Ten feet comes from the - that is a direct quote from the brief, Your Honour, it's the way that the police officer described it.
209 HER HONOUR: All right.
210 MR GOODENOUGH: So it was taken verbatim.
211 HER HONOUR: All right, so 10 feet is right, even though it says nearly two metres in diameter? It is a minor point, but you know, I do like to get it right. So it does say '10 feet'?
212 MR GOODENOUGH: That is - yes, Your Honour.
213 HER HONOUR: Great.
214 MR GOODENOUGH: But Your Honour would note Footnote 1 does then refer to the statement of Emily Souter as being between two metres and three metres.
215 HER HONOUR: Right. All right.
216 MR GOODENOUGH: In terms of the height.
217 HER HONOUR: All right. You follow that, Mr Habib, nothing to say I assume.
218 MR HABIB: No, Your Honour.
219 HER HONOUR: All right, I think somewhere I referred to him having been on previously two CCOs that he completed satisfactorily. I am not sure about that but I will remove that for clarity. He certainly previously completed an intensive corrections order so that will be amended accordingly. Did he complete a - I thought he did not complete it.
220 MR HABIB: I think he's had two - Your Honour, it's not pulling up directly. I think he's had two CBOs, completed one, failed one and then completed an ICO.
221 HER HONOUR: I think that sounds right, that is why I had a question about it. So I am prepared to - - -
222 MR HABIB: Yes, Your Honour.
223 HER HONOUR: I am prepared to proceed on that basis. Any objection to that, Mr Goodenough?
224 MR GOODENOUGH: No, Your Honour.
225 HER HONOUR: Okay, now so what are we doing? Is there any other - have you sorted out your disposal and forfeiture Order?
226 MR GOODENOUGH: My instructor is liaising with Your Honour's associate in respect of that.
227 HER HONOUR: Excellent. It looks like that has happened, has it, Ms - yes, I can see it. I have just got a forfeiture Order, was there a disposal Order as well or just forfeiture?
228 MR GOODENOUGH: Your Honour, I thought there were both but I may be wrong on that, Your Honour.
229 HER HONOUR: I think there is one according to my associate. We shall just follow that up. Now is there anything you are unclear about in the sentence, Mr Habib?
230 MR HABIB: No, Your Honour.
231 HER HONOUR: Because he has to sign some paperwork.
232 MR HABIB: Yes, Your Honour.
233 HER HONOUR: Is there anything you are not sure about with this, Mr Goodenough - - -
234 MR GOODENOUGH: No, Your Honour.
235 HER HONOUR: - - - anything you want to seek clarification on? Excellent.
236 MR GOODENOUGH: No, Your Honour.
237 HER HONOUR: Need to clarify in case it is not clear, the CCO only relates to Charge 1, you follow that, do you not both, counsel? I might have said charges on the indictment, I meant charge, Charge 1, okay, should he breach. So that takes care of that. Now where's Mr McCarthy right this minute?
238 MR HABIB: Your Honour, my client is in my instructor's office. I am advised that there is a solicitor there that can assist him in the signing of that corrections Order.
239 HER HONOUR: So the plan is - - -
240 MR HABIB: I might liaise - - -
241 HER HONOUR: Sorry?
242 MR HABIB: Your Honour, I was going to ask, I might liaise with Your Honour's associate electronically and provide an email that the - or a fax number that that corrections Order can be sent to so that Mr McCarthy can sign it immediately.
243 HER HONOUR: That is the plan. I would advise he not leave the solicitor's office and remind him of the conditions would you please, Mr Habib, and he needs to report and I except he will do some community work of some sort even if it is sitting at home doing something, I do not know.
244 MR HABIB: Yes, Your Honour.
245 HER HONOUR: I think at this stage what I'm going to do, subject to both counsel telling me I can or cannot, is I will leave the Bench, finalise the matter. Mr McCarthy, can you still hear me?
246 OFFENDER: Yes, Your Honour.
247 HER HONOUR: Some documents are going to come your way which is the Community Correction Order. You have been on it before so you will probably know what they look like. It is just getting you to sign, acknowledging that you will complete the Order or that you consent rather to being on the Order. If you do not want to sign it well that is a matter for you but you have consented to the Order so I have made it anyway so we are just wanting for you to acknowledge that in the paperwork that will come through to your solicitor's office very shortly, so if you could wait around for that. It will then be sent back to my associate for me to sign. Is there anything you are not clear about, Mr McCarthy?
248 OFFENDER: I understand, Your Honour.
249 HER HONOUR: Okay. Before I disconnect the link with counsel, anything else, Mr Goodenough?
250 MR GOODENOUGH: No, Your Honour.
251 HER HONOUR: Anything else, Mr Habib?
252 MR HABIB: No, Your Honour.
253 HER HONOUR: Can I thank you both for your assistance in this matter to date and hopefully in the future. All right, thanks for that.
254 MR HABIB: Thank you, Your Honour.
255 MR GOODENOUGH: Thank you.
256 HER HONOUR: We're going to disconnect the links now, thank you very much.
257 MR HABIB: Your Honour, if I could ask prior to - if I could have a moment with my client prior to that part being disconnected just so I can ensure that I speak to the solicitor who's at the office?
258 HER HONOUR: Is that doable if I leave the Bench? Yes, everyone in here is going to be listening, which is my Tipstaff, my associate, I am not sure if there is any media listening. Can you just keep it to the relevant because it is all too hard to disconnect things.
259 MR HABIB: Yes, Your Honour.
260 HER HONOUR: I think the media are still there so just be - so you want to have a word? We might disconnect them.
261 MR HABIB: It's - - -
262 HER HONOUR: That is gone.
263 MR HABIB: Yes, Your Honour.
264 HER HONOUR: I think it's my associate, Mr Goodenough is there, so are you going to keep it brief? Otherwise you will have to do it some other way.
265 MR HABIB: It'll be very brief, Your Honour.
266 HER HONOUR: Well keep that in mind what I have just said - - -
267 MR HABIB: Yes, Your Honour.
268 HER HONOUR: - - - about - and then we will disconnect everything.
269 MR HABIB: Thanks, Your Honour.
270 HER HONOUR: Thanks very much.
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