Director of Public Prosecutions v McKenzie
[2023] VCC 621
•4 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-01372
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLINT McKENZIE |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 30 March 2023 | |
DATE OF SENTENCE: | 4 April 2023 | |
CASE MAY BE CITED AS: | DPP v McKenzie | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 621 | |
REASONS FOR SENTENCE
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Subject:Cultivation of a commercial quantity of a narcotic plant; trafficking cannabis
Catchwords: Guilty plea – cultivation of 296 cannabis plants and possession for sale (trafficking) of 2.7 kg of cannabis in a rural property – limited criminal history – cannabis addiction – confiscation of farm property – solid work record – varying from strong family support – very good prospects of rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic), ss 5(2I)(a) and 5(2)(ab)
Cases Cited:R v Biba [2021] VSC 327; R v Madex [2020] VSC 145; Nguyen v The Queen [2021] VSCA 211; Brown v The Queen [2020] VSCA 60; Jones v The Queen [2021] VSCA 114; Selaci v The Queen [2020] VSCA 276; R v McKee and Brooks [2003] VSCA 16; Postiglione v The Queen (1987) 145 ALR 408; Tyler Worboyes v The Queen [2021] VSCA 169; Nguyen v The Queen [2016] VSCA 198
Sentence: Total effective sentence of three years’ imprisonment and minimum non-parole period of one year and six months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D Mandie | Office of the Director of Public Prosecutions |
| For the Offender | Mr D Portelli | Balmer & Associates |
HIS HONOUR:
1Clint McKenzie, you have pleaded guilty to:
(a) one charge of cultivation of a commercial quality of a narcotic plant, cannabis (Charge 1);
(b) one charge of trafficking a drug of dependence, cannabis (Charge 2); and
(c) one charge of possession of a drug of dependence, methylamphetamine and lysergic acid diethylamide (LSD) (Charge 3).
2You have also pleaded guilty to the related summary offences of:
(a) possession of a prohibited weapon, namely, a pair of knuckle dusters, a Taser, a butterfly knife, an extendable baton, three throwing knives and a set of nunchakus (Summary Charge 7);
(b) possess ammunition (Summary Charge 12); and
(c) possess a schedule 4 poison without a prescription, namely, Nolvadex[1] and Sildenafil (Summary Charge 17).
[1] An oestrogen blocker.
Circumstances of offending
3Your offending occurred on 3 February 2022.
4On that day, police came to your rural property, at Sugarloaf Creek, where you were living with your partner with a warrant to search for drugs.[2]
[2] Exhibit A: Summary of Prosecution Opening.
5You admitted you had cannabis plants growing on the property and told them where they were.
6They found, growing in the ground:
(a) 32 plants, in a garden bed, near water tanks;
(b) 149 plants, in another garden bed;
(c) 70 plants, near a rear fence;
(d) 26 plants, near a creek;
(e) eight plants, in the creek bed; and
(f) three loose plants in the rear yard.
7Police also found eight plants growing hydroponically in pots in a room built within a shed.
8In all, there were 296 cannabis plants, which weighed 258 kg, growing on your property.
9By your guilty plea to the cultivation charge you admit you had grown them (Charge 1 – cultivation of a commercial quality of a narcotic plant).
10You had a smoking room in the shed. In two plastic bags, there was 915 g of cannabis powder. In other bags, there was cannabis, which weighed 1.82 kg.
11By your guilty plea to the trafficking charge, you acknowledged you intended to sell at least some of the bagged cannabis, which weighed 2.7 kg in total (Charge 2 – trafficking a drug of dependency less than a commercial quality).
Arrest and interview
12Police arrested you and took you into custody.
13I have read the transcript of police questioning.
14You admitted you had grown the cannabis plants found at your property. You said you thought there were about 100 plants growing in garden beds outside (91).[3]
[3] Transcript of Record of Interview, line 91.
15You said initially you grew plants from seeds in pots, and, when they were not growing, you cleaned out the veggie garden and planted them in the ground.[4]
[4] Ibid lines 99–104.
16You said you smoked “a bit of pot” yourself, about a quarter of an ounce a day,[5] and you planned to store the cannabis you grew for your own use instead of having to travel to Melbourne to buy it.[6]
[5] Ibid lines 50–57.
[6] Ibid lines 106–112.
17You said you were looking at getting “two or three years’ worth of pot”.[7]
[7] Ibid line 144.
18You said you built the hydroponic setup, where there were eight small plants growing in pots, as a “rainy day thing”.[8] You said it was concealed so your “kids couldn’t find it”.[9]
[8] Ibid line 277.
[9] Ibid line 285.
19You said you ground cannabis “head,” in a coffee grinder, and smoked it in a joint.[10]
[10] Ibid lines 345–354.
20You agreed you had about a gram of “ice” which you smoked in a glass pipe as “a bit of a stress reliever”.[11]
[11] Ibid lines 375–385.
21In the hidden room, you had some LSD tabs in a box in a cupboard. You described them as “old acid trips”.[12]
[12] Ibid lines 394–398 and 407.
22Also in the box, there were Sildenafil[13] and a packet of Nolvadex, an oestrogen blocker, in the box. You said you bought both in Thailand without a prescription, years before.[14]
[13] Quantity unknown.
[14] Transcript of Record of Interview, lines 408–428.
23You said the items in the box had been there for 10 years or more.[15]
[15] Ibid line 430.
24In the same room, you had some weapons, including a little knuckle duster and some knives in a cupboard. You described one of the knives as an “old broken butterfly knife.” You said you had some of these things since you were a child and they been in the cupboard for “probably 20 years”.[16]
[16] Ibid lines 436–450.
Chronology of proceedings
25After questioning, police charged you and remanded you in custody
26After a committal mention you indicated your intention to plead guilty to the charges on the indictment.
27On 2 August 2022, at a committal listing, you entered your guilty plea.
Criminal record
28You have admitted a limited criminal record.
29Relevantly, on 23 March 2006, for the offences of cultivating a narcotic plant, possessing and using cannabis, and two assaults you were convicted and fined an aggregate sum of $600. The monetary penalty suggests your offending was not objectively serious.
Personal circumstances
30You were born in September 1975. You were 46 when you offended. You are now aged 47 years.
31Your personal circumstances are set out in the psychological report of Naomi Cameron who assessed you on 2 November 2022.[17]
[17] Exhibit 2: Psychological Report dated 29 December 2022.
32You are the oldest of three children. You describe your family as loving and caring and your childhood as “good”.
33Unfortunately, when you were nine years old, you suffered serious injuries when a car hit you as you were running across the road toward your grandfather. You were hospitalised for three months and missed six months from school.
34The motorist was a family friend. A consequence of your family falling out with him was relentless bullying from his children, who were older than you. You struggled when you return to school and your parents moved you to another where more bullying got you into fights. You started missing school and using cannabis to manage the trauma of the bullying.
35You told Ms Cameron, since your early 20s, you have smoked cannabis, up to one quarter ounce, daily.
36You also told her you experimented with “party drugs” such as LSD and ecstasy during your 20s at nightclubs with friends and when you travelled overseas. You said you injected anabolic steroids in your late 20s and, since your late 30s, you had smoked methamphetamine sporadically with friends.
37When you were at school you did some martial arts training and maintained an interest in the sport. You told Ms Cameron you had collected weapons overseas, years ago, and kept them as souvenirs.
38At 15, you left school and completed a carpentry apprenticeship with your father. You worked for a commercial plastering company for 20 years until a disagreement over work hours. In 2017, you started work with another company in Melbourne. Regrettably, you lost your driver’s licence in 2021 and were forced to quit your employment.
39Your first employer, Jeff Patterson, wrote he “was unhappy when (you) left because (you were) a hard worker and very smart”. He described you as “trustworthy and reliable and a person (he) would depend on”.[18]
[18] Exhibit 6: Reference dated 12 December 2022.
40Your second employer wrote you had “been a valuable employee on every project”. He confirmed your last work day was 24 March 2021 “due to the fact (you) lost (your) license”. He concluded, “If Clint was able to work, I would employ him at any time”.[19]
[19] Exhibit 5: Reference dated 18 January 2023.
41You have been with your fiancé for seven years. Together, you have a four-year-old son.
42In your absence, she relies on your parents and her mother, who lives overseas, to support her and your son.
43As a result of your crimes, you will lose your farm, which has been their home.
44Your concern for them has weighed heavily on you.
45You suffer symptoms of low mood, pessimism, hopelessness, and helplessness, among others.
46The results of your psychometric testing indicate extremely severe levels of depression, mild levels of anxiety and normal levels of stress.
47Ms Cameron also diagnosed you with cannabis use disorder.
48In her opinion, “(your) adverse childhood experiences predisposed (you) to cannabis use as a form of self-medication, and (you have) since developed a tolerance and dependence on cannabis.”
49She also diagnosed you with an adjustment disorder, with depressed mood, which, in her opinion, has exhibited itself since your arrest.
50She recommends mental health treatment to address your adjustment disorder and unresolved childhood trauma, as well as alcohol and drug counselling to address relapse prevention.
51In her opinion, “imprisonment would likely weigh more heavily on (you) than a person without (your) mental health vulnerabilities” and “… the volatile nature of the prison environment could lead to an exacerbation of (your) depressive symptoms.”
52Your partner, mother, grandmother, and other family members supported you in court. They keep contact with you as best they can while you are in prison.
53You are held at Fulham where you have work as a gym billet. While your access to programs has been limited you have completed “Cannabis & Me” and “Ice & Me” programs.[20]
[20] Exhibit 3: Certificates of Achievement.
54You have also endured the isolation of covid related quarantine and lockdowns.
55Your mother wrote a reference for you.[21]
[21] Exhibit 4: Letter of Corale McKenzie.
56She described you as a “good son” who is “a hard-working family man, good partner and father to his four-year-old son.”
57Your father and mother talk to you regularly. Your mother wrote you are “very remorseful”. She continued, “Clint has been using his time in custody to reflect on what he has done and is looking forward to coming home and working hard to rebuild his life with his family.”
58According to her, you were particularly close to an uncle. When he suffered serious injuries in a motor car accident in 2010 and struggled to pay the mortgage over the Sugarloaf Creek farm, which he then owned, you took over the loan. Sadly, in 2020 he died. You inherited the farm which you will now lose in consequence of confiscation proceedings.
59Your mother also wrote, “The hardship that his imprisonment and arrest had on his partner Adriana is enormous. She has been left to bring up their son on her own with no Centrelink payments as she is Colombian and has not been living in Australia long enough to be eligible. She now relies on us and her mother who lives overseas to send her money so she can provide for their son.”
Defence submissions
60In comprehensive submissions, your counsel Mr Portelli acknowledged only a prison term is appropriate for your offending.
61He submitted because you decided to grow the cannabis for personal use, you had grown it outdoors where it was likely to be detected, that you had not profited from it, and that you were not part of any criminal syndicate, your offending was a less serious example of cultivation.
62He also submitted there were compelling mitigating factors which should moderate your sentence, namely:
(a) firstly, your guilty plea
(i)for its high utilitarian value utilitarian value; including
(ii)the additional Worboyes consideration;
(b) secondly, your remorse;
(c) thirdly, the extra-curial punishment of forfeiture of your farm;
(d) fourthly, your cannabis use disorder, originating from childhood trauma, which influenced your decision to grow cannabis;
(e) fifthly, the additional hardship of prison conditions during the public-health pandemic;
(f) and sixthly, your poor mental health, which engages Verdins limbs 5 and 6.
63He submitted because you have:
(i)a limited criminal history
(ii)an excellent work record; and
(iii)a supportive family—
I should conclude you have very good prospects of rehabilitation.
64Overall, he submitted I should impose a sentence with a shorter than usual non-parole period to give you the opportunity to advance your rehabilitation under supervision in the community.
Prosecution submissions
65Ms Mandie, who appeared for the prosecution, in written and oral submissions,[22] submitted, because of the amount of cannabis you had cultivated and, in her submission, the sophistication of the setup, your cultivation is at the upper end of gravity and seriousness.
[22] Exhibit E: Crime Scene Photos.
66She referred me to several appellate decisions which emphasise the importance of general deterrence and denunciation because of the social evil of illicit drugs.[23]
[23] See, for example, Nguyen v The Queen [2016] VSCA 198.
67In her submission, a head sentence of imprisonment with a non-parole period fixed is the only appropriate sentence in your case.
68She acknowledged:
(a) your assistance to authorities;
(b) your guilty plea;
(c) your remorse; and
(d) the confiscation of your farm—
are significant mitigating factors.
69She also acknowledged your psychological condition engages Verdins limbs 5 and 6 to moderate your sentence.
70She submitted, considering your limited criminal history, good work record and family support, your prospects of rehabilitation are fair.
Consideration
71As the maximum penalty of 25 years’ imprisonment demonstrates, cultivation of a commercial quantity of cannabis is a serious offence.
72As a Category 2 offence, Parliament mandates a term of imprisonment.[24]
[24] Sentencing Act 1991 (Vic), s 5(2I)(a).
73Your counsel did not seek to argue the existence of any statutory exception.
74I must make an assessment of the objective seriousness of your offending.
75In Nguyen v The Queen (‘Nguyen’),[25] the Court of Appeal said the offender’s role and the scale, sophistication and duration of the cultivation activity are relevant to assessing the seriousness of the offence. And “[b]ecause the offence is quantity-based, the quantity cultivated will ordinarily be a factor of critical importance.”[26]
[25] [2021] VSCA 211.
[26] Ibid [30].
76You have admitted growing 296 cannabis plants, weighing nearly 258 kg.
77A commercial number of cannabis plants is 100 plants.
78A commercial quantity of cannabis, by weight, is 25 kg.
79On the basis of the number of plants you had grown nearly three times the commercial quantity of cannabis plants. On the basis of the weight of those plants, the figure is nearly ten times the commercial quantity.
80The cultivation setup was extensive and well crafted; your carpentry skills are obvious in the construction of garden beds and the grow room.[27]
[27] Exhibit E: Crime Scene Photos.
81You are to be sentenced for cultivating and trafficking cannabis on a single day.
82It was your project. There is no evidence others were involved. You were not part of any crime syndicate.
83I accept you grew the plants substantially to meet your own heavy addiction.
84However, you grew far more cannabis than you could smoke.
85There is no evidence before me you had profited from the cultivation. You had none of the usual accessories of commercial trafficking, like scales, customer and order records, or cash. You did have at least some of the bagged cannabis for sale.
86While your cultivation by number of plants and weight was substantial, I accept, in relative terms, there was a lack of commerciality to your offending.
87Overall, I assess the seriousness of your cultivation offence to be mid-range, and your trafficking to be below mid-range.
88I have used a number of appellate decisions, making adjustments for similarities and dissimilarities in offending and the offender’s personal circumstances, for guidance.
89In Brown v The Queen,[28] the Court resentenced the offender to two years’ and six months’ imprisonment for cultivating 226 cannabis plants.
[28] [2020] VSCA 60.
90In Jones v The Queen,[29] the Court considered a sentence of two years’ and 10 months’ imprisonment for cultivation of 199 plants to be unexceptionable.[30]
[29] [2021] VSCA 114.
[30] The sentencing judge had accepted the offender’s cannabis cultivation was essentially for personal use to alleviate chronic back pain.
91In Selaci v The Queen,[31] the Court described as “moderate” a sentence of three years’ and 10 months’ imprisonment for cultivation of a quantity of a little over three times a commercial quantity.
[31] [2020] VSCA 276.
92And in Nguyen v The Queen,[32] the Court described a sentence of five years’ and six months’ imprisonment for cultivation of 405 plants as moderate.
[32] [2021] VSCA 211.
93It is clear your cultivation crime must attract a sentence of imprisonment which requires me to fix a non-parole.
94There are a number of compelling mitigating factors which must temper the sentence I impose.
95They include:
(a) firstly, your guilty plea, which has high utilitarian value.[33]
(b) secondly, your remorse evidenced by:
(i)your cooperation with police when they searched your property and when they questioned you;
(ii)you guilty plea; and
(iii)your expression of contrition to others;
[33] Augmented by the Worboyes consideration.
(c) thirdly, the increased burden of prison, due to the removal of prison visits, reduction in programs and increased isolation during the public health pandemic;[34]
(d) fourthly, your psychological conditions, which are largely reactive to the plight of your partner and child, because imprisonment will weigh more heavily on your person in normal health and also there is a risk imprisonment would exacerbate your depressive symptoms; and
(e) fifthly, the additional, considerable punishment of the forfeiture of your family home which you had lawfully acquired and is your only substantial asset.[35]
[34] R v Biba [2021] VSC 327; R v Madex [2020] VSC 145, [51].
[35] Sentencing Act, s 5(2)(ab).
96Additionally, I accept your cannabis addiction was the substantial contributing factor to your offending. I also accept, because your childhood bullying was the catalyst for that addiction, your moral culpability is reduced to a modest degree.[36]
[36] R v McKee and Brooks [2003] VSCA 16, [13].
97I also accept, considering:
(a) your limited criminal record;
(b) your excellent work history;
(c) strong family support; and
(d) motivation to look after and provide your fiancé and young son when you are released—
you are unlikely to reoffend.
98I accept your prospects of rehabilitation are very good.
99While Mr Portelli submitted delay in prosecution is a mitigating factor I do not regard a delay of 14 months as substantially mitigating. I do accept you have been anxious as you await the outcome of these proceedings. And I take that into account.
100Parsimony and proportionality are fundamental sentencing principles. I must impose the least severe sentence necessary to achieve the purposes of sentencing.
101And, because you are to be sentenced for more than one offence, I must also have regard to the totality principle to ensure your sentence properly reflects your overall criminality.[37]
[37] Postiglione v The Queen (1987) 145 ALR 408, 416–417, and 442–443.
102Mr McKenzie, by the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
103Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:
(a) on the charge of cultivating a commercial quantity of a narcotic plant, you are convicted and sentenced to three years’ imprisonment. This is your base sentence;
(b) on the charge of trafficking a drug of dependence, you are convicted and sentenced to nine months’ imprisonment.
104Taking into account totality principle and the overlap between the two offences, and the fact you had not profited from your offending, I direct the sentence I have imposed on the trafficking charge be served concurrently with your base sentence.
105Your total effective sentence is three years’ imprisonment.
106To mitigate your punishment and promote your rehabilitation, I fix a minimum non-parole period of one year and six months.
107I declare you have already served 424 days of your sentence by way of presentence detention.
108The drug possession charge relates to a very small quantity of two drugs.
109On that charge, you are convicted and fined $200.
110You told police you had purchased the prescription drugs, which were in very small quantities, overseas, years before. You said the weapons were keepsakes accumulated since your childhood.
111There is no evidence you had the prescription drugs, the weapons or the ammunition for any criminal purpose.
112On the summary charge of possess Schedule 4 poisons, you are convicted and discharged.
113On the summary charges of possess prohibited weapons and ammunition you are convicted and fined an aggregate sum of $400.
114While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to four years and four months imprisonment and fixed a minimum non-parole period of two years and six months.
115I also make orders for disposal of the drugs and poisons seized from your property, and for forfeiture of the ammunition and weapons also taken from the same property.
116Ms Mandie, are there any matters arising from the reasons?
MS MANDIE:
117Just, your Honour—I believe my friend submitted that 425 days of PSD as of today, and I have done the calculation—I agree with that.
HIS HONOUR:
118425?
MS MANDIE:
119Yes.
HIS HONOUR:
120Alright, thank you. I’ll make that amendment. Mr McKenzie, I declare you have served 425 days by way of pre-sentence detention.
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