Director of Public Prosecutions v Mitchell, Gavin
[2012] VCC 2019
•11 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00968
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GAVIN MITCHELL |
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JUDGE: | HER HONOUR JUDGE COTTERELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October 2012 | |
DATE OF SENTENCE: | 11 October 2012 | |
CASE MAY BE CITED AS: | DPP v Mitchell, Gavin | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2019 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. P. Pickering | Office of Public Prosecutions |
| For the Accused | Mr G. Henderson | George Henderson |
HER HONOUR:
1 Gavin Mitchell, you have pleaded guilty before me to one charge of cultivating a commercial quantity of cannabis. The maximum penalty for that offence is 25 years imprisonment. You further pleaded guilty to one charge of theft of electricity. The maximum penalty for that offence is 10 years imprisonment. Finally, you also pleaded guilty to one charge of criminal damage, and the maximum penalty for that offence is 10 years imprisonment.
2 The facts of the matter were opened by the prosecution and a summary of the prosecution opening was tendered as Exhibit A. The background to the matter is that, you rented a property, which was an industrial property at 25 Hanrahan Street in Thomastown, for an annual rent of $25,000 a year plus GST. You were the sole tenant at that property from 14 February 2011 and during that time, there was a police operation underway called Operation Methanol and they executed a search warrant at the property on 12 April 2012.
3 At the time of the execution of the warrant, there was no-one present. Inside the property, a sophisticated hydroponic system for the growth of cannabis was located, including watering system, high powered lighting, chemicals, stands and filters was set up in three purpose built internal rooms and the building was, in fact, used solely for the purpose of cultivation of cannabis. A number of items were seized which will all be forfeited and they included the plants themselves, which weighed 171.7 kilograms, 66 in total, and photographs reveal they were mature plants. The electrical transformers, lighting, shades, globes, air filters, plastic tanks and a clear liquid was contained in those tanks.
4 Also, it was discovered that the property had been damaged as part of the setting up of the hydroponic system. It is alleged that the damage was some $23,000. That amount of damage cannot be proved at this stage, so there is not a claim for damages in relation to that, or for you to repair it, but that is the subject of the charge of criminal damage.
5 The electrical supply had been bypassed to the property, and there has been an estimated loss of $13,258.24 which is attributed to AGL and I note the account was connected in the name of your wife. All the items were seized. You later in the day, contacted police, and attended at Epping Police Station and underwent a record of interview which you did without having any legal advice, and you acknowledged what had happened. You said that you had heard that the factory was raided, so you gave yourself up. You said you had built two rooms inside the property and that you had started growing the cannabis about four months previously. You also said that you had sourced the equipment from people you had met, that you had purchased the other equipment, the lights and transformers at hydroponic shops and you said you bypassed the electricity meter yourself. Those are all matters which I do not know whether they are true or not, but certainly you did not allege that there was anyone else involved in this activity.
6 Your background is that you are aged 49, born on 4 December, 1962. You work as a truck driver and you live with your family at a property in Lalor. I have heard something of your background and I know that you left school at the age of 12 and you have been a very hardworking man and have worked ever since. I know that you have a truck driving business and that you, in fact, have in the last two weeks, purchased another truck which means you have incurred a further debt of some $76,000 and certainly you serving a sentence is going to render your life, and in particular, the life of your family, extremely difficult. I note you have other trucks and two other drivers and it will be left to your wife to try and run that business and keep it going, and it is to be hoped that she can.
7 This matter has been dealt with very quickly. You immediately indicated an intention to plead guilty. You deserve a substantial discount on your sentence for that plea, and you will receive it. I note that you are not a person who has any drug habit, you have not been involved in drugs before, although you do have a prior criminal history which relates mainly to driving matters and some dishonesty matters, theft of a motor vehicle, some indecent language, burglary, these go back to 1988, and therefore you have had your scraps with the law and you have in fact served one or two short periods of imprisonment. You have remained in custody. You did not make a bail application immediately, and I note that you have served 26 days before you were released on bail, and you are to be given credit for those days. I have a number of letters which have been tendered on behalf of you, as Exhibit 1 on the plea, and they attest to a person who is devoted to his wife and family, extremely hard working, obviously very much loved by your family and friends, and describing you as normally a very placid person who is just occupied with your own family, and clearly you are person who is respected and loved amongst those who know you.
8 I take all those matters into account and your working record, as well as the difficulties you had in growing up in a tough school. I appreciate that you have immediately pleaded guilty and you are prepared to take what is coming to you, although one cannot help but think that there is something else behind this, however I cannot give you benefit for that. You have chosen not to reveal any information and so I have to sentence you on what has occurred here.
9 I do take into account the parlous financial situation that you are in, and the difficulties that your family is going to have. I have also considered the submissions made by counsel for the Director of Public Prosecutions. I also am required to consider the following principles- firstly, general deterrence. Others who would think to embark on a commercial enterprise of such a size and magnitude and sophistication, must understand that there are serious consequences at the end, even though they do not have a big drug history or serious criminal history.
10 Secondly, there is your own specific deterrence. I do not believe that is a huge problem in this case, because I am sure that the effects that this is going to have on your life will be sufficient to deter you from embarking on such an operation again in the future. I am required to denounce your conduct on behalf of the community and I do so absolutely. The cultivation of cannabis and your involvement in the drug trade, as it were, is something that is absolutely not condoned in any way by the community. It contributes to half of the ills of the society; people selling, buying, thieving to support their habits, and although you may say it is only cannabis, it is still part of that big wheel of drug manufacture that has such a pernicious effect in this community.
11 Taking all those matters into account, I am required to impose just punishment in all the circumstances, and I also, of course, take into account the matters that have been put on your behalf and the effect that this term of imprisonment is going to have, notably, on your family. I note that you have one child who is only 17 and obviously still dependent and at home. However, this is, as I said the other day, just the wreckage. Every time someone goes into prison, they leave a train of wreckage behind and I hope that your family is strong enough to pull that wreckage together.
12 Taking all those matters into account, it's obvious that the only appropriate disposition is one of a term of imprisonment, so I am now going to sentence you and I will ask for you to stand.
13 On Charge 1, cultivation of narcotic plants in a commercial quantity, you are convicted and sentenced to three years imprisonment.
14 Charge 2, you are convicted and sentenced to 12 months imprisonment, that is the theft, and three months of that is cumulative on the sentence that I ordered in Charge 1.
15 In relation to the damage to the property, you are convicted and sentenced to 12 months and six months of that is also cumulative on the sentence already imposed on charge 1.
16 That is in my calculation, a total effective of three years and nine months. I order that you serve a period of 21 months imprisonment before being eligible for parole.
17 I declare the 26 days pre-sentence detention be deemed time served, and that will be taken into account. Pursuant to s.6AAA, but for the plea of guilty, the sentence I would have otherwise imposed would have been 4 and a half years imprisonment with 34 months to serve before being eligible for parole.
18 I am further required to make orders which are not opposed. There is a disposal order in relation to all of the items that were seized, the plants and all the materials and I am also required to make an order pursuant to s.464ZF of the Crimes Act and that is that you undergo a forensic procedure for the taking of the scraping from the mouth in order to be placed on the data base. I am satisfied that the making of the order is justified because of the seriousness of the circumstances of your offending, the order is not opposed and the granting of the order is in the public interest. I have to inform you that when someone makes a request for the taking of the mouth scraping, if you were to resist, even though you are doing this virtually by consent, a member of the police force may use reasonable force to ensure that it is done.
19 I will also make the Compensation Order which is not opposed and that is, that you pay to AGL Energy Ltd, compensation in the sum of $13,258.24. You will be provided with advice about how or when it is to be paid. Those are the orders. Thank you.
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