Director of Public Prosecutions v Merange

[2021] VCC 601

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00221

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEONE MERANGE

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 May 2021
CASE MAY BE CITED AS:	DPP v Merange
MEDIUM NEUTRAL CITATION:	[2021] VCC 601

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr C. Pearson	Vassis & Co.

HIS HONOUR: 

1Leone Merange, you have pleaded guilty to one charge of cultivation of cannabis simpliciter and one charge of theft of electricity.

2The circumstances of the offending are that in late 2019, a strong smell of cannabis was found to be emanating from your property, which no-one else appears to have noticed, over an extended period of time. 

3But in any event, the police attended, smelt that odour themselves, arranged for a search warrant, went to the address and discovered the cannabis.  They also got in an electrician who discovered an illegal electrical bypass in the roof cavity of the house which I would have some doubts as to whether you did that, but that is not why you are here.

4In any event, they estimated, and it can only be an estimation obviously, that the amount of electricity used was something in the order of $20,000 worth.  That estimate is made totally upon your admissions as to how long it had been since the bypass took place, and I take that, as I have indicated, into account.

5A systematic search was conducted.  In all there was some dry cannabis found and 108 cannabis plants.  Insofar as those plants were concerned, there were three plants of approximately one to two weeks of age, 101 plants which were approximately three to six weeks and one plant approximately 6 to 9 weeks. 

6The charge is of cultivation between dates over a 12 month period.  It is clear from the materials that that admission was made in your record of interview and without that admission, you almost certainly could not have been charged with a period of time of more than a few weeks. 

7It is clear that up until two weeks prior there would have been nothing even remotely approaching a commercial quantity and the 101 plants that give rise to the commercial quantity, weighed 1.7 kilograms in total.

8The circumstances surrounding all this are that you are now 74 years of age.  You have pleaded guilty at a reasonably early time to a settled indictment, and you have always indicated your preparedness to plead. 

9You made fulsome submissions to police in regard to all this, and in fact, were on a tiered time frame which takes this from a simpliciter over a very short period, to a much more extended period of time. 

10You must get the utilitarian benefit of that.  Insofar as remorse is concerned, your plea of guilty indicates that there is appropriate remorse and I will simply work on that basis. 

11The offending has to be regarded as serious.  It carries 15 years.  In the normal course of events, this calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.

12In this jurisdiction, gaol is the usual sentence imposed, though I note over the last six or seven years sometimes the non-custodial rate is as high as 35 per cent.

13So, whilst it is the usual sentence, it is certainly not the only one. 

14In my view, having regard to the submissions put on your behalf, the seriousness of the nature of the offence and the submission put by the Crown, a community corrections order is well within range.  Insofar as it is concerned, there is no sign of enrichment, and as I said, the admissions are fulsome. 

15Insofar as your personal circumstances are concerned, as I think I have indicated, you were 74 years of age.  You have not offended over the balance of your life, and you must be able to call that into aid at this particular time.

16You have had a life where you have always worked, where you have been married a couple of times, you have children who you obviously still have contact with.  You have contact with grandchildren, and I notice you take your nine year old granddaughter to netball. You were in the Army for two years doing National Service and did that in Albury.

17You have, over the years, built your own home, you have got qualifications as a lithographic printer, you worked very hard for a long period of time.  Yet, as I say, and I will not go into the details of your marriages, but each of those seems to have ended.  You  have, with your last spouse, purchased an investment property in which she now resides and you live in this house, having sold the first home that you made. 

18As indicated, there is no sign of enrichment.  You basically appear to have been, since 1956 when you had a heart attack, living on a disability retirement benefit, and there is no sign of that in so far as trafficking is concerned, that has not been the case. 

19You have been a member and volunteer of the Chelsea Football Club for 40 years.  Since you have retired, you have taken up further volunteering for the club.  You are also a service member of the Chelsea RSL and have been so for around 20 years.  

20You spend a lot of time with the footy club and you have got a large circle of people around Chelsea where you have lived pretty much all your life and I understand, I have not even bothered to read them out, you have character references from those people including neighbours which is always a good sign.  You still have contact with your children. 

21The prospects of your rehabilitation should be excellent.  I think the risks of you reoffending in this way would be zero.  If you were to reoffend in this way, you would be well aware of what would happen and at your age it would be a very unpleasant time to be going into custody. 

22I am well aware of all the matters pointed out in Boulton, and all the subsequent cases, Bradshaw, cases such as that, as to what a community corrections order is aimed to achieve.  It has been described in Parliament as a substitute or a replacement for suspended sentences.  It acts as a general deterrent, acts as a specific deterrence, is clearly a form of punishment and even though I am going to be giving work hours, it is a significant form of punishment where somebody of your age is on most weekends going to be required to go and do community service of some description.  I will leave it up to them as to what they do.   

23When I take all those matters into account, I think that it is the appropriate disposition and I would simply say that even if on totally objective material that was wrong, I would exercise mercy in any event. 

24It is a situation where I think probably just over - I think one reading this understands the significance of your health circumstances.  Whilst it seems to me that there is nothing in it that could not be dealt with in a gaol, gaol would be extremely unpleasant and you would be of no assistance to you. 

25The list of your medical conditions goes on for two pages and there is basically everything that can happen to somebody.  There is osteoarthritis, there is a heart attack, there is diverticulosis, there is coronary heart disease, there is a family history of prostate cancer, there is a knee injury, there is a knee replacement, and whole raft of other things. 

26On my count, you are on about 15 different medications and it is clear that you do suffer from ill-health and you are doing pretty well in the way you have been able to deal with your life and get on with it.

27As I say, in all those circumstances I am prepared to give a community corrections order, because of the nature of the offending, it will have to be with conviction.  There is no suggestion it would be otherwise.

28I will order that you serve 200 hours community work and I will make it a two year period of time.  If something goes wrong with that, or if ill-health intervenes, of course application can always be made to vary it. 

29You have got to understand Mr Merange, I know you cannot hear me, but I have got to say it, because someone else will be reading it.  But you can explain ‑ ‑ ‑ 

30MR PEARSON:  Of course, yes. 

31HIS HONOUR:  Mr Pearson, you can explain to him after this. 

32MR PEARSON:  Yes.

33HIS HONOUR:  If you mess it up, if you do this again, I am going to lock you up.  All right?  Simple as that, and if you mess up this CCO by doing this, I will lock you up. 

34Now, you have reached an age where that is very, very unfortunate, but you cannot do it.  You are now well aware you cannot do it, so for everybody's point of view, please do not.  Yes, all right.  Were there any other orders gents?

35MR O'DOHERTY:  Disposal.

36HIS HONOUR:  Yes. 

37MR PEARSON:  That is agreed to, Your Honour.

38HIS HONOUR:  Did I just sign that?  I just think I did.  Yes, I have signed that, yes that is made.  6AAA I suppose I have got to do?  No, I do not. 

39MR PEARSON:  No, because Your Honour has only imposed a community correct.  I am just wondering what ‑ ‑ ‑ 

40HIS HONOUR:  Not more than two years. 

41MR PEARSON:  Yes. So I'm just wondering whether the closest community corrections is Moorabbin or Frankston.  Probably Frankston. 

42HIS HONOUR:  Whichever one they can send him to the other one.

43MR PEARSON:  Yes.  So make it Frankston, Your Honour I think Your Honour. 

44HIS HONOUR:  You can go and explain what is happening.

45MR PEARSON:  Yes, I was going to say, can I do that,  Your Honour, just to allay whatever concerns Mr Merange may have. 

46HIS HONOUR:  All right. 

47MR PEARSON:  Yes, thank Your Honour.

48HIS HONOUR:  Yes, take it down Mr Pearson, so you can explain to him what he is signing. 

49MR PEARSON:  Yes, thank you, Your Honour.  Mr Merange has ‑ ‑ ‑ 

50HIS HONOUR:  He obviously agrees to that.  Yes, understand.

51MR PEARSON:  ‑ ‑ ‑ it is agreed - he agrees to be bound by that order, Your Honour, yes.  He signed it. 

52HIS HONOUR:  Yes, thank you.  All right, that order is made and I have warned him, and you have told him what I said about what is going to happen if he breaches it? 

53MR PEARSON:  Yes.

54HIS HONOUR:  So ‑ ‑ ‑ 

55MR PEARSON:  Yes.  Mr Vassis and I will speak with him outside and just reinforce those points, Your Honour. 

56HIS HONOUR:  Yes.  All right, thanks Mr O'Doherty.

57MR O'DOHERTY:  Thank you, Your Honour.

58HIS HONOUR:  Thanks Mr Pearson. 

59MR PEARSON:  Thank you, Your Honour. 

60HIS HONOUR:  Thought you would wait for the next one, Mr O'Doherty.  He went a bloke with a knife and the bloke went inside and came out with his chainsaw going.  The assault stopped. 

‑ ‑ ‑