Director of Public Prosecutions v McClelland

[2016] VCC 1467

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01564

DIRECTOR OF PUBLIC PROSECUTIONS

v

TROY MCCLELLAND

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2016
DATE OF SENTENCE:	23 September 2016
CASE MAY BE CITED AS:	DPP v McClelland
MEDIUM NEUTRAL CITATION:	[2016] VCC 1467

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. J. Singh	OPP
For Offender	Mr. M. Gumbleton	Haines & Polites

HIS HONOUR: 

1Troy James McClelland, a jury of 12 found you guilty of the charge of cultivating not less than a commercial quantity of cannabis on 10 August 2016.  The maximum penalty for that charge is 25 years’ imprisonment.  

CIRCUMSTANCES OF OFFENDING

2The jury found that you have cultivated a commercial quantity of cannabis at 77 Kulin Drive in Tarneit between 3 December 2013 and 30 December 2013.  The jury have found that you have cultivated the cannabis crop with the intention that the crop was going to produce not less than 25 kg of cannabis. 

3The jury were satisfied that you cultivated the crop in the period charged, that is, from 3 December 2013 to 30 December 2013, which was the day of the police raid.  On the day of the raid, a total of 61.48 kg of cannabis was found at 77 Kulin Drive, Tarneit.  You were in the house when the police raid took place. 

4The case against you was a circumstantial case.  I find the following sentencing facts beyond reasonable doubt and consistent with the jury verdict:

a)That between 3 December 2013 and 30 December 2013 you were involved in cultivating the cannabis crop at 77 Kulin Drive, Tarneit;

b)That the size of the cannabis crop on the day of the police raid – that is, 30 December 2013 – was 61.48 kg.  This quantity of cannabis is 2.46 times the minimum quantity for a commercial quantity of cannabis. I accept you intended to cultivate a cannabis crop greater than the commercial quantity, based on the number of plants, the size of the plants, and the hydroponic and irrigation system in place in each of the grow rooms in the house;

c)I accept that in the charge period, you attended at the premises on no less than a total of seven occasions to tend to or cultivate the cannabis crop;

d)I accept your evidence that on each occasion you went to the premises, you drove your de facto’s black Ford Territory vehicle, registered number XZH 606;

e)I accept your evidence that you went up the coast around Christmas time, with your children to a caravan park.  That means, basically, that the days between 3 December 2013 and approximately 20 December 2013, you have been at the house on six occasions, in effect on an average of once every three days.  The last occasion was the police raid and your arrest on 30 December 2013.  The frequency of your visits proves your close connection to the cultivation of this cannabis crop;

f)You visited the premises before and after the charge period of 3 December 2013 and 30 December 2013.  I accept the evidence given on this issue beyond reasonable doubt.  This evidence establishes your connection to the crop before the period and after the raid on the premises occurred.

5Your counsel submitted there was no evidence to establish, beyond reasonable doubt, any of the following matters:

a)    The leasing of the property;

b)    The maintenance of the property;

c)    The ownership of the hydroponic or electrical equipment;

d)    The bypass of the electricity meter;

e)    The harvesting of previous crops – and I have noted you are not charged with this;

f)     The sourcing of the nutrients for the crop.

6I accept that to be the case.  Nevertheless, the matters to which I have previously referred to, prove beyond reasonable doubt, your role as a principal in this commercial cannabis crop. Your offending is mid-range offending for this particular charge.

YOUR PERSONAL CIRCUMSTANCES

7I have been told a little of your personal circumstances.  You are now 42 years old.  You have been in a de facto relationship with Fiona Castles for some 20 years.  Ms Castles had two sons before your relationship commenced.  The two of you have two daughters, now aged ten and six years old.  Your partner works as a teacher’s aide for special needs children. 

8Your own parents separated when you were about two years old.  Your mother separated and lived with your stepfather until you were approximately 12-13 years old.  You have one older sister and two older brothers.  

9You were educated at Glengala Park Primary School, and then Sunshine Tech, to Year 9 level.  You left school at 15 years of age.  It was at this time that you commenced using cannabis.  Since leaving school, you have worked consistently in factory work, followed by six years in your brother’s tattoo parlour, and more recently conducted your own home maintenance business.

10You have a long history of drug use.  Predominantly, your prior criminal history indicates a long-term use of cannabis.  There was a period of time in 1994 and 2000 when you were dealt with for possessing heroin.  Mr Cummins, in his report dated 15 September 2016, assesses you as having a long-term dependency on cannabis. 

11In summary, you have good and broad-based family support from your de facto, your brother, your mother and stepfather.  Your criminality arises from your drug addiction. 

SENTENCING CONSIDERATIONS

12The basic purpose for which a court may impose a sentence of imprisonment as just punishment: deterrence, both specific and general; rehabilitation, denunciation of your actions, and the protection of the community.  

13In sentencing you, I must have regard to a range of factors, such as the seriousness of your offence, your culpability for it, and your personal circumstances.  I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community, in seeking to ensure, as far as possible, you, as an offender, are rehabilitated and reintegrated into society. 

14I am mindful of the provisions of the Sentencing Act, which directs a court to consider community corrections orders.  I have reviewed the relevant decisions.  The objective seriousness of your offending disqualifies a community corrections order as an appropriate penalty, either on its own or in combination with a term of imprisonment.  Indeed, your counsel conceded that a community corrections order was not an appropriate in this case.

15As part of the governing principles to be considered in sentencing, I must take into account the current sentencing practices.  That enquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time. 

16I have considered these statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case, as indeed they are from one another. 

17The Prosecution handed up a table of cases relating to sentencing in cultivation of commercial quantity cases between 2013 and 2015.  The majority of the cases referred to in that table were sentences imposed after a plea of guilty.  In Nguyen v R [2013] VSCA 63, a total effective sentence of six years and nine months with a non-parole period of four years and nine months was imposed.  This was after a jury verdict, but related to a more serious level of offending than the case under consideration here. 

18The Court of Appeal remarked that a sentence of five years for one count of cultivate a commercial quantity was lenient. This is a case that was subsequently referred to in shorthand by The Court of Appeal as Nguyen No. 2. 

19The President of the Court of Appeal, Maxwell in Nguyen v R [2010] VSCA 12 – this is Nguyen No.1 – said this about the seriousness of the offence:

“As has been readily pointed out in sentencing decisions, this is an offence for which Parliament has set the highest fixed maximum in the criminal calendar, 25 years’ imprisonment.” 

20Justice of Appeal, Buchanan noted in DPP v Duong [2010] VSCA 250:

“The maximum penalty of 25 years shows unambiguously how seriously the community, through Parliament, views this conduct.” 

21That case was followed by the case of Tuan Doan v R, where Justice Terry Forrest, AJA at that time, stated:

“I consider that the appellant has failed to make good this ground.  The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum of 25 years’ imprisonment.  Whilst there is no doubt that the role played by the appellant was of a menial nature, it was nonetheless necessary for the crop to flourish.  The maximum penalty fixed by Parliament unambiguously demonstrates how seriously the community views this conduct.”    

22Justice Forrest refers to DPP v Duong, and he goes on to say:

“Recently in this court emphasis has been placed upon the importance attached to sentencing, judges having regard to the maximum sentence fixed by Parliament.” 

23He referred to Nguyen v R, and DPP v CPD and stated as follows:

“This court has also emphasised recently that general deterrence is an important consideration in sentencing for this type of offence,” (R v Mason) and that the link between general deterrence and the increasing prevalence of this offence is readily apparent.” 

24In the same case, Nettle JA, as he then was, said:

“I agree, and I wish only to add a brief observation concerning the submission advanced on behalf of the appellant, that the judge had erred in the emphasis which His Honour placed on the importance of general deterrence.  In my view, lest there be any doubt about it, there should be no doubt that in cases involving cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of sentencing considerations. Consequently, as the judge rightly observed, in cases of this kind, there is less room to give weight to considerations such as youth and antecedents that would otherwise be the case. In the result, the judge also correctly found in a case of this kind an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable."

25On the day after your conviction by the jury of 12, the Court of Appeal handed a 108-page decision in Nam Son Nguyen v R [2016] VSCA 198.  This decision is directly relevant to current sentencing practices for cultivating commercial quantities of cannabis.  Whilst this decision was handed down after your conviction, it is binding authority on this court.  Your counsel conceded as much. 

26In Nguyen v R [2016] VSCA 198, Redlich JA stated as follows:

“In response to the appellant’s contention that the sentencing judge was constrained by prevailing sentencing standards to impose an even lower sentence than that fixed by the sentencing judge, the Director of Public Prosecutions (the ‘Director’) submitted that CSP for the mid category of seriousness of cultivating a commercial quantity of cannabis, required correction as it was too narrow and too low.  In my opinion, it is clear that there is a need to correct CSP, though not necessarily for all the reasons the Director initially advanced.  The argument on the substantive appeal showed that like cases for the mid-category of seriousness of the offence of cultivation of commercial quantity of a narcotic plant are not dealt with in a like manner, the objective seriousness of the offence has not been adequately reflected in CSP, and there is a lack of consistency in the application of sentencing principles. Tate and Whelan JJA, whose reasons I have had the benefit of reading in draft, have reached the same conclusion. I regard the present appeal as an appropriate occasion to provide a warning that, in the future, sentencing courts should, by increments, increase the sentences to be imposed for such offending in the mid category of seriousness.”   

27Later in his reasons, Redlich JA stated, at paragraph 56,

“Whether an offender should be characterised as a principal or as discharging functions similar thereto, is ultimately to be assessed on a case-by-case basis.  It will not always be the case that a criminal enterprise will have the hierarchical structure, or that the role played by each participant will be clearly delineated.  Even where it is, a particular role may not possess all of the same characteristics as the other principals within the enterprise.”

28Redlich JA then goes on to set out his reasons relating to consistency in sentencing for this type of offence.  At paragraph 72, he states as follows:

“Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity, is absent between the nature of the offending and the matters personal to the offender, and sentences imposed in the most closely comparable cases. Thus for example, in Dao v R, Nettle JA (as he then was) emphasised that the consistency state in Wong required that the impugned sentence be in step with ‘relevant comparators’."

29At paragraph 73, he then states as follows:

“Cases are likely to be comparable where the objective seriousness of the offender’s conduct is similar to that of the subject offence.  As I said at paragraph 51, appellate courts, including the High Court, may seek to identify the applicable range by characterising the objective seriousness of the offences as falling within the low, mid or the high range of seriousness of the offence.” 

30In the case of Nguyen v R [2016] VSCA 198, Whelan  JA, in his analysis of the current sentencing practices for this offence, stated as follows at paragraph 238,

“The Drug Offences Report identifies two relevant ‘clusters’ of cases of commercial cultivation over the period of 2008-09 to 2012-13.  In the first cluster of 201 cases (‘Cluster 1’), most of the offenders ‘had a house-sitter role or an ancillary role’. For want of a better word, I refer to offenders of that type as ‘functionaries’. They were typically involved for a short period of time, were more likely to be youthful offenders, and were less likely to have prior convictions. The median term of imprisonment for Cluster 1 cases was two years. In the second cluster of 202 cases (‘Cluster 2’) the great majority of offenders had played what the report refers to as a ‘principal/proprietor role’. Typically, the period of offending was longer, the offenders were likely to be older, and the offenders were likely to have a criminal history. The median term of imprisonment for Cluster 2 cases was three years."

31Whelan JA, in his conclusion, sets out, at paragraph 245, as follows:

“As the Law Institute of Victoria and the Criminal Bar Association submitted, analysis of sentences on a statistical basis or by reference to tables with abbreviated details has significant limitations. But in this appeal the tables and the statistics merely confirmed and fortified the conclusion emerging from a consideration of the particular cases to which I referred. 

That is, that the range of sentences being imposed for offences of mid-category seriousness is both too low and too narrow.  Current sentencing practice does not reflect the objective seriousness of the mid-category offending and reveals persistent error in the sentencing of mid-category offenders.  The absence of clear differentiation between principals and functionaries is one consequence of those shortcomings.”  

32A short and succinct summary of Nguyen (Number 3), is that the Court of Appeal has decided that current sentencing practices in respect of the charge of cultivating not less than a commercial quantity of cannabis are inadequate. 

33The next sentencing consideration is delay.  You offended in December 2013.  After this trial in August 2016, you are to be sentenced in September 2016.  The fact of the delay is not attributable to you, but was caused by a combination of matters to do with your co-accused. 

34In the period between 2013 and the present time, there has been no further offending by you.  There are no other outstanding charges to be dealt with by the courts.  The delay in time indicates some moderate mitigation of sentence, and indicates you prospects of rehabilitation are more optimistic. 

35You have 12 prior court appearances.  In six of those court appearances, you were dealt with for drug-related offending, to do with possession of drugs, over a long period of time, from 1993 to 2007.  The other six court appearances were for dishonesty offences, with one exception of a charge of assault. The lengthy history with drug possession and use is a negative factor in your prospects of rehabilitation.  Indeed, Mr Cummins, in his report dated 15 September 2016, notes you were shocked when it was suggested that you give up using cannabis. 

36I assess your prospects of rehabilitation as fair to good.  You have strong and unwavering support from your family.  It was put on your behalf that you will be able to return to work in your business upon your release from custody.  Your biggest problem for rehabilitation will be your drug addiction. 

37I have previously dealt with your role in the offending in these reasons and I will not repeat them here.  You have been found guilty as a principal in the cultivation of a commercial quantity of cannabis.  The only proper sentence is a term of imprisonment.  Would you stand, please?

SENTENCE   

38Charge 1, you are convicted and sentenced to five years’ imprisonment.

39I fix a non-parole period of three years and six months imprisonment. 

40I declare that you have served 44 days of presentence detention, which will be deducted administratively from your sentence. 

41I note that the charge of deal with property, namely Australian currency to the value of $1,035, suspected of being the proceeds of crime, is withdrawn. 

42I have signed a forfeiture order for $1,035 and a disposal order. 

43I make the agreed compensation order $5,115 to Mr Singh. 

44I make a s.464ZF order, which is a forensic sample.  I will just explain that to you. The authorities can take from you a swab from inside your mouth in order to obtain a sample of your DNA.  If you do not comply with their request, they can use reasonable force to obtain one.  Do you understand that?  Yes, thank you.  You can take a seat.  

45

46Sorry, was there anything else?

47MR SINGH:  No, nothing else, Your Honour.

48As I say, I have signed the disposal order, the forfeiture order, and the compensation order, and the 464ZF order, which is a forensic sample, and I will had them down.

49MR SINGH:  If Your Honour pleases. 

50HIS HONOUR:  You can remove the prisoner now, thanks.  I just want to thank counsel and their instructors for their cooperation and assistance in this case.  First of all, in the trial; it ran very smoothly, and I want to thank you both for that, and secondly, in relation to the harder part, which is – when I say “the harder part,” I’m speaking from my point of view – the sentencing aspects.  Thank you both.  

51MR GUMBLETON:  May it please the court.

52MR SINGH:  If Your Honour pleases. 

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