Director of Public Prosecutions v McGILLIEN
[2019] VCC 1715
•21 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 18-02362
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBIN McGILLIEN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 14 August 2019, 28 September 2019 and 21 October 2019 | |
DATE OF SENTENCE: | 21 October 2019 | |
CASE MAY BE CITED AS: | DPP v McGILLIEN | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1715 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – cultivation of a narcotic plant – commercial quantity and theft of electricity, together with an unrelated summary charge transferred pursuant to s145 of the Criminal Procedure Act 2009, being Charge 7, without approval of appropriate authority store an unauthorised explosive – pleas of guilty – cultivation a narcotic plant not less than a commercial quantity is a Category 2 offence pursuant to the Sentencing Act 1991, therefore s5(2H) applies – consideration of substantial and compelling circumstances – term of imprisonment to be imposed.
Legislation Cited: Criminal Procedure Act 2009; Dangerous Goods Act 1985; Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991
Cases Cited: DPP (Vic) v Hudgson [2016] VSCA 254
Sentence: 2 years and 3 months’ imprisonment with non-parole period of 9 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Upton (Plea) Mr J. Dickie (Plea) Ms A. Keath (Sentence) | John Cain, Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr P. Randles | Randles Cooper Lawyers |
HER HONOUR:
1 Robin McGillien, you have pleaded guilty to one charge of cultivation of a narcotic plant not less than a commercial quantity, and one charge of theft on indictment. The cultivation relates to a period between 2 May 2018 and 18 July 2018.
2 In addition, you pleaded guilty to one summary charge of storing unauthorised explosive namely, fireworks without permission.
3
The maximum penalties imposed in relation to the offences reflect the seriousness with which Parliament considers these offences. For Charge 1, the cultivation of a narcotic plant, not less than a commercial quantity, that is
25 years’ imprisonment and Charge 2, theft, that is 10 years’ imprisonment and pursuant to s.54(5) of the Dangerous Goods Act 1985, not more than 100 penalty units is the maximum penalty with respect to the summary charge.
4 I shall proceed to sentence you on the basis that you come before the with no prior criminal history and there are no matters outstanding.
5 At the time of the offending, you were aged 61 and you are now 63. You were living at 7 Tennyson Close, Berwick, with your partner, Sharon Fisher.
6 On 18 July 2018, police executed a warrant at that address, pursuant to the Drugs, Poisons and Controlled Substances Act 1981.
7 Police discovered an elaborate hydroponic set up located at the rear of the home, which encompassed six rooms. There were carbon filters, exhaust fans, water pumps for irrigation and timing devices.
8 In total, 141 plants were found within those six rooms and they weighed a total of 24.18 kilograms. Subsequent analysis revealed the plants to be Cannabis-L and the growth period was aged from approximately two to four weeks and up to eight to 11 weeks approximately and that is as set out in paragraph 8 of the Crown opening (Charge 1 – cultivation of a narcotic plant not less than a commercial quantity).
9 Police also discovered an electrical bypass and that constitutes Charge 2, theft of electricity.
10 A Compensation Order in the sum of $7,123.21 in favour of Energy Australia, is sought with respect to the lost revenue from the electrical bypass and that order is not opposed.
11 Two firecrackers were found in the drawer of a filing cabinet in your study, and that constitutes Summary Charge 7.
12 Following your arrest you were formally interviewed and during the course of that interview you admitted growing cannabis and stated your motivation for growing was to help people with medical issues. You made full admissions in relation to cultivating the cannabis, the theft of electricity and possession of the firecrackers.
13 You disclosed to police that you had previously grown cannabis and that you would use the plants to make cannabis oil. You said that you had paid approximately $8,000 to someone to install the electrical bypass and the set up cost you between $22,000 and $25,000. You would propagate clones from the mother plants.
14 You were remanded in custody on 18 July 2018 and eventually granted bail on 24 July 2018.
15 At a committal hearing on 16 November 2018 your matter resolved and pleas of guilty were entered in relation to the charges. It is accepted that you entered a plea of guilty at an early stage of the proceedings.
16 Mr Randles on your behalf outlined your personal history and background. You currently work as a proprietor of a small Tattslotto agency. The premises, the subject of the execution of the search warrant, is owned by you and your partner, Sharon Fisher. She was arrested at the time of the execution of the warrant, but later released without charge.
17 A forfeiture order has been sought in respect to the property. Cultivate narcotic plant in a commercial quantity is an automatic forfeiture offence. You have formally abandoned your half interest in the lawfully acquired property and the value of your half share is estimated to be approximately $400,000.
18
Cultivate a narcotic plant, in not less than a commercial quantity, is a
Schedule 2 offence, and unless there are substantial and compelling circumstances that justify not making an order under Division 2 of Part 3, the court must impose a custodial sentence. This section came into operation on 20 March 2017.
19 Mr Randles submitted on your behalf that this was a most unusual case. He said that your circumstances were such that you had satisfied the substantial and compelling circumstances threshold therefore a Community Correction Order was an appropriate disposition.
20 He relied upon the following mitigatory factors,
(i) your plea of guilty.
It is accepted that your plea of guilty was entered at the earliest stage and the plea has real utility. You have spared the state the expense and inconvenience of a trial. Through your plea you have facilitated justice and your sentence will be discounted accordingly. I am further satisfied that it is evidence of genuine remorse;
(ii)from the time of the execution of the warrant you were fully cooperative with police and openly acknowledged your guilt;
(iii)during the course of the formal record of interview you made a number of admissions against interests;
(iv)your stated motivation for the offending was not for profit. You grew the cannabis for your own use for personal medicinal reasons, and in addition, you wanted to be able to provide cannabis oil to others to be taken for medical conditions. I noted that you stated in the record of interview that you sold the cannabis to cover your establishment costs and that you gave some of the crop away to friends;
(v)Having regard to the sophisticated nature of the setup and its extent, that is six rooms of your home utilised to grow the crop, and the extensive expenses incurred in establishing the hydroponic crop and the electrical bypass, I consider that this was a commercial operation. Whilst accepting that you were altruistic with respect to you intended distribution of the cannabis oil, nonetheless, there was a degree of commerciality to your venture and this is not a case of spontaneous offending. The offending was well planned and executed.
(vi)the absence of any prior criminal history and no matters pending;
(vii)the number of plants is just over the commercial quantity, namely 100. Mr Randles submitted that therefore the offending was at the very bottom of the scale of seriousness for this sort of offending;
(viii)one dramatic consequence of the conviction for the charged offence is the automatic forfeiture of your equity in the unencumbered home. The loss of your equity in the home is a substantial penalty and will be taken into account.
(ix)and finally, your prior good character. You are aged 63 and you have never been convicted of any criminal offence. I accept that prior to the charges you were a law-abiding person who made significant contributions to the community through your various employment and also there was evidence given at the plea hearing to support this. Evidence was given by Gayle Carroll, a book keeper, who has known you for some 32 years. She attested to your chronic back problems and stated that you undertook this criminal activity to help others and not for profit. She said that you were very disappointed in yourself. Your son, Bradley McGillien, also gave evidence where he confirmed he was shocked by your behaviour and said this was contrary to the way in which he was brought up as a child. He stated you were very remorseful for your actions. Your son, Daniele, also provided a statutory declaration which stated in his opinion the offending was out of character.
21 Mr McGillien, your background is unremarkable. You left school and took up a fitter-and-turner apprenticeship and then worked at Kodak as a maintenance fitter for some 14 years. You were married at age 20 and there are three children of the marriage, each of whom are in their thirties. They are all employed and are productive citizens.
22 When you were aged about 30, you set up a Mr Antenna franchise. The business was not successful and you went bankrupt. Thereafter, you suffered an injury to your back as a result of falling off a ladder. Because of the complications flowing from the loss of your business, and difficulties coping with your back injury your marriage broke down and that led to a divorce.
23 You commenced your relationship with Ms Fisher in 2002. Together you have established various businesses, including a hotel. You operated a hotel leased together in Omeo, which you ran for four years, but because of the heavy nature of the work involved that exacerbated your back condition, and ultimately you had to give up that business because you were not coping and you sold the lease. Thereafter you established your small TattsLotto agency with your partner. That is still in operation. The business entails you working long hours, up to 60 hours per week, with only very modest returns that is reflected in the profit and loss statements that were provided to the court.
24 I noted that in 2016 you had a laminectomy at the L5, S1 level to address your back pain. However, you have had ongoing chronic back pain and pain has come to dominate your life.
25 Reports from Dr Van Rede GP dated 29 March 2019 and 20 August 2019 confirm that you suffer chronic back and neck pain, and that has been the situation over many years with concomitant depression and anxiety, for which you have been self-medicating with cannabis. You were diagnosed with adjustment disorder and depression in August 2018 although it is not apparent that you have had any active treatment for those conditions. Although, I did note that in Ms Pamela Matthews' report that your doctor has prescribed the opiate analgesic Palexia SR and that you are not on any other medications, including antidepressants.
26 I have had regard to the contents of the report provided to the court by Ms Pamela Matthews, forensic psychologist, dated 18 December 2019. After her interview with you and assessment she confirms that you present with a diagnosis of somatoform disorder, in that pain has come to dominate your life through your own experience and experience of others and that has been very disruptive of your daily life. You no longer participate in outdoor recreational activities and you have disproportionate and persistent thoughts about the seriousness of your symptoms and that has come to dominate your life.
27 Secondly, she said that your presentation in interview and the SPECTRA assessment indicates you present with a diagnosis of general personality disorder and that you present with enduring patterns of inner experience and behaviour that deviates markedly from the expectations of society, as manifested in cognition, ways of perceiving and interpreting self and others, other people and events. For example, your “Robinhood” style rationalisation for your commercial cannabis crop.
28 Thirdly, she said you present with major depressive disorder that has come on since being charged and you are depressed most days, nearly every day, characterised by a sense of hopelessness and expressed as irritability, insomnia and diminished pleasure in usual activities. She states that you would be very physically vulnerable in gaol, be more likely to have falls and also it may make your mental condition worse. It is her recommendation that the relevant authorities are notified of your high potential for a further suicide attempt. She sets out in her report an incident that occurred recently that involved you jumping off a pier.
29 She further states that should your depression be persistent after appropriate treatment you would, in her view, experience any time in custody with difficulty. She recommended treatment by way of physiotherapy and psychological teratment for your chronic pain, as well as medical assessment and treatment via an appropriate pharmacological package and recommended a major pain clinic for future treatment.
30 Having regard to your current condition and also the circumstances set out in hearing your plea I consider that the offending was out of character and that you do have reasonable prospects of rehabilitation.
31 Mr Randles relied upon a combination of features to establish that you discharged the onus resting upon you to establish that there are substantial and compelling circumstances that justify a non-custodial disposition being imposed.
32 I have been guided by the decision of the Court of Appeal in DPP (Vic) v Hudgson [2016] VSCA 254, to interpret the meaning of the words 'substantial and compelling circumstances'. That case dealt with a different type of offence, namely cause serious injury intentionally in circumstances of gross violence, but the dicta does apply.
33 In that case the Director of Public Prosecutions submitted in relation to the terms 'substantial and compelling', that both words have to be given appropriate meaning and make it plain that the onus resting upon an offender to establish such circumstances was extremely onerous and certainly not to be discharged by routine or commonplace matters.
34 It was submitted that the word 'compelling' suggested something, almost akin to irresistible. The Court of Appeal accepted the Director's submission that the word 'compelling' connoted powerful circumstances of a kind wholly outside what might be described as ‘run of the mill’ factors typically present in offending of this kind. Furthermore, the court stated that it was difficult in some ways to reconcile some of the statements made in the Second Reading Speech, as well as the Explanatory Memoranda with the structure and text of the various legislative provisions that they had to consider.
35 However, they stated in their view one thing is clear. It was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s.10 should be a heavy one and not capable of lightly being discharged.
36 Applying that reasoning to s.5(2H) and adopting those meanings, this would mean that the burden imposed upon you is a heavy one and not capable of being lightly discharged and that the word compelling connotes powerful circumstances of a kind wholly outside what might be described as run of the mill factors typically present in offending of this kind.
37 In Hudgson, the Court of Appeal emphasised the evidence must be clear and convincing.
38 Mr Randles referred the court to the absence of previous convictions, which he submitted is significant, having regard to your age and the loss of your substantial interest in your property as well as the motivation for your offending being to help others, not for pure profit and the fact that you were self-medicating using cannabis oil to cope with your chronic back pain.
39 The prosecutor, Ms Upton, at the initial plea hearing did not take issue with the apparent altruistic motive that has been put forward on your behalf and she accepted that the offending did represent a class of offences that is at the lower end of the scale of seriousness for offences of a commercial nature having regard to the fact there were 141 plants and the legislation deems 100 plants to be a commercial quantity.
40 At the deferred hearing Mr Dickie, who was then acting as prosecutor, agreed in part that your motivation was altruistic, but nonetheless emphasised the commercial nature of the crop. He submitted in relation to this matter that a custodial sentence was necessary and that you had not discharged your burden of proof.
41 On the basis of the material relied upon I am not satisfied that the onus of proof has been discharged. I am not satisfied that the cumulative impact of the circumstances justifies a departure from Parliament's intention, that only a term of imprisonment ought ordinarily be made.
42 In sentencing you I must impose just punishment and s.5(2) of the Sentencing Act dictates that the court must regard general deterrence and denunciation of the offenders conduct as having greater importance than other purposes set out in s.5(1).
43 I accept that you are a person of otherwise good character and that is not insignificant, particularly given your age.
44 I accept by virtue of the forfeiture of your interest in the property that that is a substantial and devastating effect for a man of your age and is a considerable financial burden. It is unlikely that in the remaining years of your working life that you would be in a position to accumulate monies to enable you to own your property again and you no longer have that security for the future. I have taken that into account in accordance with s.5(2)(A)(ab) of the Sentencing Act, your quantifiable loss is a mitigatory factor warranting the imposition of a lesser sentence.
45 Your offending has in part been motivated by your desire to produce cannabis oil to alleviate your chronic back pain and the pain of others. Nonetheless, as stated earlier, there was a commercial element to this enterprise which cannot be ignored.
46 You expended a large sum of money to establish the crop and your own estimate is between $22,000 to $25,000, plus you incurred approximately $8,000 for the establishment of the electrical bypass. Further, you had the ability to nurture the crop to fruition and a good understand of growing cannabis and making cannabis oil.
47 This was, in part, a commercial enterprise. It can, however, be distinguished from the more serious cases where there is evidence of a chain of distribution and a greater amount of cannabis has been located.
48 Nonetheless, I accept the offending is serious and does warrant the imposition of a term of imprisonment to emphasise general deterrence and also denunciation of the offending.
49 Given Ms Matthews' finding I accept that principles five and six of Verdins have been enlivened. I accept that imprisonment may make your psychiatric condition worse and that you will find imprisonment more burdensome than others who do not suffer the psychiatric conditions you suffer and also the physical disabilities that you suffer. I have had regard to those factors in formulating both the head sentence and the non-parole period.
50 I will now make the formal court orders, I do not require you to stand, Mr McGillien, in the circumstances.
51 The formal court orders are as follows:
52 Charge 1, cultivation of a narcotic plant not less than a commercial quantity – you will be convicted and sentenced to two years' imprisonment.
53 Charge 2, theft, you will be convicted and sentenced to nine months' imprisonment and I direct that three months of that sentence be cumulative upon Charge 1, making a total effective sentence of two years and three months.
54 On the summary charge of storing unauthorised explosive, fireworks without permission you will be convicted and discharged.
55 I fix a non-parole period of nine months.
56 I make the Forfeiture Orders sought and the Disposal Orders sought and note that they were not opposed.
57 I make the Compensation Order sought in respect to the theft of the electricity in respect to Energy Australia for the sum of $7,123.21.
58 Finally, I make Forensic Sample Order pursuant to s.464ZF. I note that that was consented to. That will involve the taking of a forensic sample from you whilst you are in custody and provided that you comply with the request that is all that is required. What that means is that a little cotton bud will be given to you to put in your mouth, Mr McGillien, and to rub against your cheek. Provided that you do that that complies with the order, but if not I have to tell you that the police can take the sample by way of a blood sample.
59 Seven days pre-sentence detention is to be declared and I direct that that be noted in the records of the court.
60 Finally, I make a s.6AAA declaration, but for your plea of guilty I would have imposed a term of imprisonment of four years' imprisonment to serve three years.
61 I think that concludes my sentencing remarks.
62 MS KEATH: Yes, Your Honour.
63 HER HONOUR: Thank you. I will ask, Mr Randles, in the circumstances for a notation to be made on the Return of Prisoners in relation to your client that the authorities should have him medically assessed upon him being receipted into prison and I shall refer them to Ms Matthews' report.
64 MR RANDLES: Thank you, Your Honour.
65 HER HONOUR: In relation to the diagnosis and also her concerns. Thank you. All right, we can adjourn.
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