Director of Public Prosecutions v Montelli
[2021] VCC 522
•3 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-21-00075
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN MONTELLI |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April 2021 | |
DATE OF SENTENCE: | 3 May 2021 | |
CASE MAY BE CITED AS: | DPP v Montelli | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 522 | |
REASONS FOR SENTENCE
Subject: CRIMINAL LAW - Sentence
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr S. Davison | Office of Public Prosecutions |
| For the Accused | Mr T. Hancock | HL Legal |
HIS HONOUR:
Introduction
1 Benjamin Montelli, you have pleaded guilty to an indictment containing a single charge of cultivation of a narcotic plant, namely Cannabis L, in a quantity that was not less than a commercial quantity. The maximum penalty for that offence is 25 years’ imprisonment.[1] In addition, you have also consented to this court hearing and pleaded guilty to a related summary charge of deal with property suspected to be proceeds of crime, for which the maximum penalty is 2 years’ imprisonment.[2]
[1] Indictment L12428133, charge 1.
[2] Notice of related summary offences dated 26 February 2021, charge 5.
2 The details of that offending are set out in the typed prosecution opening, to which I have had regard when determining the appropriate sentence in this case.[3]
Circumstances of the offending
[3] Dated 31 March (Exhibit A).
3 By way of background, I note that in April and August 2020, the Victoria Police Airwing detected a large heat source emanating from a residence at 11 Turitable Way in Caroline Springs. On checking with Powercor, police learned that a large amount of electricity was being used at those premises and that there was illegal wiring in place. Police then commenced an investigation.
4 When, on 13 October 2020, police executed a search warrant, you answered the front door and allowed them to enter. They noticed that the downstairs area was sparsely furnished and suggested that you were mostly living in the master bedroom.
5 In the subsequent search, police located a hydroponic crop of nine cannabis plants which had a combined weight of 50.55 kilograms. Two upstairs bedrooms were being used for that purpose. I note that this represents just over twice the statutory threshold by weight for a commercial quantity of cannabis.[4]
[4] A commercial quantity is legislatively defined as 100 plants or 25 kilograms.
6 In the master bedroom, police located a mobile phone on a bedside table, $3400 cash in an envelope hidden in a pile of clothing on the floor, and various personal documents (including utility bills and medical prescriptions) in your name addressed to the subject premises. The cash and the circumstances in which it was found forms the factual basis for the related summary offence of deal with property suspected to be proceeds of crime.
7 In the front bedroom, police located an illegal electrical bypass.
Arrest and interview
8 You were arrested at the premises and then interviewed back at the Caroline Springs police station.
9 During that interview, you told police that you had originally moved to Melbourne in order to look after your paternal grandparents. You had been asked to care for the plants in exchange for being able to stay at the house and have your bills paid. More particularly, you provided the plants with the necessary water and chemical nutrients to keep them healthy. You had received some instructions and guidance in that regard. You appeared to be familiar with the setup and the number of plants being grown hydroponically. You indicated that the plants had been growing at the property for about two months but declined to provide the details of the person who had recruited you or anyone else involved in the cultivation enterprise. You said that you had not been aware of the electricity and gas bills being in your name until they started to arrive. You denied being aware of the illegal electricity bypass at the premises. As for the $3400 in cash, you told police that you had obtained it from your father as a loan.
Pre-sentence detention
10 You have remained in custody since you were arrested on 13 October 2020. You had spent 196 days in pre-sentence detention by the time this matter came on for plea on 27 April. Accordingly, the relevant period to be declared as at, but not including today’s date, is 202 days.
Cooperation and plea
11 I note that you cooperated with the investigating police during the execution of the search warrant and later, when interviewed. By way of admissions, you told them more than they were likely to have known at that time.
12 Your cooperation was followed by a willingness to facilitate an early resolution of this matter. It resolved at what I consider to be the earliest reasonable opportunity, namely at the committal mention hearing on 18 January 2021.
13 You will receive a commensurate sentencing discount for taking that course as and when you did. It has facilitated the course of justice and saved the community from the cost and time of a trial. It is also indicative of your remorse.
Previous good character
14 You have no prior or subsequent findings of guilt or convictions whatsoever. Accordingly, you fall to be sentenced as a person of previous good character.
Personal circumstances
15 I now turn to your personal circumstances, Mr Montelli. The details of your background are briefly but helpfully outlined by your counsel in his written submissions[5] and in more detail in the report of the psychologist Ms Alison Mynard.[6] She assessed you on 25 and 27 March 2021.
[5] Exhibit 1.
[6] Dated 9 April 2021 (Exhibit 2).
16 I commence by noting that you had turned 38 years of age a short time prior to this offending. You turn 39 later this year, having been born on 25 August 1982. You are a single child of parents who separated while you were an infant. Thereafter you spent significant time with your mother and maternal grandparents in Altona. When those grandparents both passed away in 2000, it had a significant effect on you. Whilst you also spent some time with your father, it was a difficult and tumultuous relationship. He often left you alone or in the care of his parents (your paternal grandparents).
17 Your mother re-married when you were still quite young. Her new husband’s work in the Air Force necessitated many moves for the family and a period of significant instability and insecurity for you. You had to move schools on many occasions. As a result, you found it difficult to make friends and were subjected to bullying by other students. Ultimately, you left school part way through Year 11.
18 You have a strong work history in the construction industry. Unfortunately, however, you suffered a workplace accident in which you sustained a serious ankle injury. You had to undergo three surgeries, which only brought about a limited improvement. You have managed to maintain at least some level of employment since.
19 You married in 2013. You and your wife each have a daughter from a previous relationship[7] but no children together from the marriage. The four of you lived together as a family unit in Canberra.
[7] Now aged 13 and 10, respectively.
20 In 2019, your father asked you to come to Melbourne to help look after your paternal grandparents, both of whom are aged in their 80s. You now suspect that he may have had a different or at least an additional reason for making that request of you. In any event, you agreed to do so. During the Covid-19 restrictions in 2020, however, your father shifted all of the responsibility for his parents’ care onto your shoulders. As a result, you became more stressed and ended up moving out of his house and into the subject Caroline Springs property, which you believed was owned by a friend of your father’s.[8] Later, due to the Covid-19 restrictions, you found it difficult to return home to Canberra in September of last year.
[8] You later learned that it was in fact owned by your father.
21 You are not aware of everyone who may have been involved in this cannabis growing enterprise and your safety concerns are the reason for you not naming those who you do know had some involvement.
22 I note that this was not the first occasion that you have acted as a carer for your paternal grandparents as you have been significantly involved since 2016.
23 As the clinical psychologist, Ms Mynard, notes, you have been a very anxious individual since childhood, experiencing panic attacks and often engaging in repetitive type behaviours in order to self-sooth and reduce anxiety. In her view, you suffer from Generalised Anxiety Disorder, panic symptoms and social anxiety. She notes that your mental health issues have presented as quite severe and that your anxiety has caused you to display paranoia symptoms which can be triggered by feeling demeaned by others, especially your father. The relationship with your father has contributed to your anxiety disorders and explains your passivity and inability to be assertive.
24 In Ms Mynard’s opinion, this offending was out of character and inconsistent with your long term aversion to drug use. Such offending is, in her view, to be explained by your problematic drinking at the time and by the high levels of anxiety you were experiencing on account of the difficulties you had while looking after your grandparents, dealing with your father, and trying to get back home to Canberra. As a result, your judgement was impaired, you were less inhibited and tended to justify your offending.
25 Ms Mynard made a number of relevant observations in relation to the period that you have spent in prison while on remand for this matter. Unsurprisingly, you have found the custodial experience very anxiety provoking and you continue to feel unsafe when outside your unit. On a positive note, you believe that you have been able to help yourself more during that period than at any previous time in your life. Ms Mynard notes that you have developed insight about your own mental health and engaged in various individual and group treatments. In her opinion, your mental health would significantly improve if you were in the community and engaging with practical strategies to implement in your everyday life.
26 Importantly, Ms Mynard opines that with further treatment and rehabilitation, your anxiety disorders and depressive symptoms will reduce, with a consequent reduction in the risk of you relapsing into problematic drinking and into further offending. Accordingly, Ms Mynard recommends that you engage with mental health services upon your release from custody. In particular, she notes that focusing on the following goals would be particularly beneficial:
· cognitive behavioural therapy to manage anxiety disorders;
· schema therapy to shift underlying core beliefs that underpin anxiety and depressive symptoms;
· assertiveness training to facilitate skill development so as to promote clear and assertive communication and reduce anxiety; and
· AOD counselling to identify triggers to problematic drinking behaviours and assist with developing more adaptive ways to cope with anxiety.
Matters in mitigation
27 As made clear by Mr Montelli’s counsel, there are a number of matters in mitigation in this case.
28 Mr Montelli co-operated with the investigating police from the very outset and made a number of significant admissions regarding his involvement in this criminal enterprise.
29 He followed up on that co-operation by pleading guilty at the earliest reasonable opportunity and at a time when this court is having to try and deal with a large backlog of trials and the inevitable and significant delays that the Covid pandemic has created. In such circumstances, a very significant discount is both warranted and justified.
30 I am well satisfied that he is genuinely remorseful for this offending.
31 For a significant part of his time spent on remand, there have been Covid-19 based restrictions on prisoners receiving personal visits, and on their movements within the prisons and ability to undertake employment and courses. In the early stages in particular, concern existed as to the potentially increased risk of contracting the virus in custody.
32 For those and other reasons, I readily accept that Mr Montelli’s time in custody to date has been very onerous. It has been made more onerous for him than for prisoners of sound mental health due to his anxiety and depression. Clearly, principles 5 and 6 of Verdins case have been engaged and must be given appropriate weight. And, it must also be noted that this is his first experience of adult imprisonment, indeed, with the criminal justice system itself. I have no doubt that it has been a frightening and salutary experience for him. Finally, it must also be recognised that contact family visits for him are made more difficult on account of the fact that family members live many hours away in Canberra.
33 Another important sentencing consideration is the fact that Mr Montelli falls to be sentenced as a first time offender at the age of 38. His previous good character over many years leading up to this offending is a significant factor.
34 During those years, he appears to have been a hardworking and family focused individual with a number of positive character traits. His preparedness to look after his elderly relatives and offer assistance to friends who are in need are among them. The character references from his mother and step-father attest to those qualities as well as to his regret and remorse for this offending which they firmly believe was out of character. As his mother notes, he has been trying to make the best of his time in custody by working as a cleaner, undertaking meditation classes and completing a number of courses. Certificates in respect of a number of those courses were tendered on the plea.[9] As she also notes, he wants to become involved in assisting other offenders in custody in Canberra by using the lessons that he has learned out of his current predicament. Most of all, however, he wants to return home to Canberra to re-unite with and care for his wife and family.
[9] Exhibit 5.
35 Quite clearly, he enjoys strong family support and will benefit from being surrounded by his immediate family and by his mother on his return to Canberra. He is keen to return there and to have a child together with his wife.
36 I consider his current prospects of rehabilitation to be very good indeed and excellent in the event that he engages in the type of focused professional mental health treatment that Ms Mynard identifies in her report.
Gravity of the offending
37 Of course, this court must have regard to a number of other factors in addition to those personal to the offender. One of those factors is the objective gravity of the offending.
38 The offence of commercial cultivation is an intrinsically serious one as amply demonstrated by the very high maximum penalty that the legislature has chosen to ascribe to it, namely 25 years’ imprisonment.
39 However, within that general rubric of inherent seriousness, there are a variety of circumstances in which this type of offence can be committed. Relevant considerations in assessing the relative seriousness of this offending include the following matters:
· The charge is put on a single date basis, being the date on which police discovered the crop and arrested Mr Montelli;
· The cannabis being cultivated was a little more than double the statutory threshold for a commercial quantity, which equates to just over 20% of a large commercial quantity by weight;
· Mr Montelli was not the architect of or a prime mover in this criminal venture and he had no financial stake in the profits to be derived from the cultivation and sale of the cannabis being cultivated;
· He appears to have been prevailed upon and recruited rather than coming up with the idea himself;
· The role he performed in watering and feeding the plants was a lower level one albeit one that was essential to the viability and health of the crop;
· For agreeing to provide his assistance, he expected to receive a financial benefit in the form of having his living expenses paid for; and
· The enterprise that he knowingly assisted appears to have been a relatively sophisticated one, albeit that he was unaware of the utilisation of an illegal electrical bypass.
40 Whilst it is clear that Mr Montelli had some knowledge of and involvement with the crop from an earlier time than the date on which it was discovered, he is not to be sentenced for this offence on any other basis than a single date one. His prior involvement does, however, prevent it being said on his behalf that this was truly a fleeting and spontaneous involvement restricted to that single date.
41 Based on the relevant aspects of this offending, I consider this to be a case that falls towards the lower end of seriousness for offences of this type.
42 As for the related summary charge, I consider that offence to be more than trivial or insignificant given the amount of money involved, but well short of being a serious example of its type. In my view, a short and wholly concurrent sentence would be an appropriate sentence for this offence in all the circumstances.
Relevant sentencing considerations
43 In respect of commercial cultivation offending, general deterrence and denunciation must play an important role in the sentencing task. Such offending is prevalent and difficult to detect. Almost always, the purpose behind such offending is to profit from growing an illegal drug which is destined to be put on the streets and into the hands of drug users. By the sentences imposed, courts must endeavour to discourage offenders who are minded to engage in this type of criminal conduct from proceeding and, on behalf of the community, denounce such conduct in unmistakable terms.
44 Specific deterrence is much less relevant here, albeit not to be ignored altogether. Whilst I accept that this offending was out of character and that you have already been deterred to an extent by your arrest and prosecution, you are yet to engage in the professional treatment recommended by Ms Mynard, including the AOD counselling for your problematic drinking.
45 For similar reasons, there is less need to impose a sentence designed to provide protection to the community.
46 This court must punish you for this offending in a manner and to an extent that is just in all the circumstances. Those circumstances include matters relevant to the offending itself as well as to you personally.
47 This court must also have regard to your age and prospects for rehabilitation. As I have already noted, you are a mature aged man for whom this represents your first and only foray into the criminal world. It was a very serious error of judgement on your part but one from which I accept that you have learnt a valuable if painful lesson. For both you and your family, there is a considerable incentive for you to engage in the recommended treatment referred to in Ms Mynard’s report. In the event that you do, your already very good prospects would be noticeably enhanced.
Section 5(2H) of the Sentencing Act 1991
48 It was common ground on the plea that the commercial cultivation offence is a category 2 offence for the purposes of engaging the mandatory sentencing provision in section 5(2H) of the Sentencing Act 1991. As your counsel did not seek to come within any of the limited exceptions set out in subsections (a)–(e), this court is mandated to impose a custodial sentence for that offence, being a sentence of immediate imprisonment other than one which forms part of a combination sentence.
Professed comparable cases
49 In the course of their submissions, the prosecution identified DPP v Hiep Nguyen [2017] VCC 595 as a comparable case to the present.
50 For their part, the defence identified five other cases as being similarly broadly comparable.[10] They were:
[10] A chart identifying features of each case was tendered as exhibit 7 on the plea.
· DPP v Tran [2015] VCC 1011;
· DPP v Van Le [2017] VCC 65;
· DPP v Cuong Tran [2018] VCC 595;
· DPP v Thang Hoang [2018] VCC 684; and
· DPP v Le [2018] VCC 1653.
51 I have read and considered each of those cases in the manner recently suggested and explained by both the Court of Appeal and the High Court. Of course there are limits to such an exercise. Rarely if ever is any other case identical or on all fours with the case at hand. In any event, such comparable cases as there may be do not present as precedents to be followed unless distinguished. At all times, it is important to keep firmly in mind what the salient features of the current case are, both in respect of the offending and the offender. Ultimately, it is individualised justice that must be brought to bear in this case having regard to those features and the relevant sentencing principles that fall for consideration.
Sentencing statistics
52 In addition, I have had regard to the most recent sentencing statistics for the offence of cultivation of a commercial quantity of a narcotic plant.[11]
[11] The Sentence Advisory Council’s Sentencing Snapshot No. 247 for the period 2014-15 to 2018-19 published in August 2020.
53 During the relevant period, 367 of the 397 people sentenced for this offence in the higher courts received a principal sentence of imprisonment. Of those, 336 received a non-aggregate sentence, while 35 received a combination sentence. The length of sentence for those who received a non-aggregate sentence varied in length from 1 month to 6 ½ years. The median length of imprisonment was 2 years.
54 Such statistics, while appropriate to consider in the context of having regard to current sentencing practice, can only ever be of limited assistance for the reasons so often spelt out by the Court of Appeal, including the fact that many salient facts are not provided in such bare statistics and that the extremities of dispositions imposed previously do not mark out the limits or permissible boundaries for sentencing purposes.
Sentencing submissions
55 In light of the acknowledged application of section 5(2H) and the seriousness with which the offence of commercial cultivation has been viewed by the courts, including the Court of Appeal, your counsel acknowledged that this court would be bound to impose a head sentence with a non-parole period. The focus of his sentencing submissions really centred on identifying the reasons for keeping any such sentence to the minimum and on the justification for fixing a shorter non-parole period in this case.
56 For their part, the prosecution did not quibble with the defence submissions. As the learned prosecutor put it, a head sentence with a non-parole period was necessary in order to reflect the objective gravity of this offending and so as to appropriately recognise such sentencing considerations as general deterrence, denunciation and just punishment. But, as he very fairly acknowledged, it would be open to the court to fix a shorter non-parole period in this case given the many matters in mitigation present.
Analysis
57 I have been much assisted by those submissions. Each counsel engaged in an appropriate analysis of the relevant factors to be considered in this case and presented their arguments in a thoughtful and measured manner.
58 In the end, I have come to the same ultimate conclusion as they have.
59 In particular, I am satisfied that it is appropriate to fix a somewhat disparate non-parole period as compared to the head sentence. That is justified in order to reflect and give added emphasis to the many matters in mitigation and in order to foster and facilitate Mr Montelli’s rehabilitation. Facilitating his rehabilitation would in turn reduce his already low chances of re-offending and thereby provide a level of protection to the community.
Sentence
60 After having considered, balanced and weighed the relevant sentencing considerations as best I can, I have decided to impose the following sentences on Mr Montelli.
61 For the indictable offence of cultivation of a narcotic plant in a quantity that was not less than a commercial quantity, he will be convicted and sentenced to a term of 2 years’ imprisonment.
62 For the related summary offence of deal with property suspected to be proceeds of crime, he will be convicted and sentenced to a term of 7 days’ imprisonment, to be served concurrently.
63 The total effective sentence is therefore one of 2 years’ imprisonment.
64 In respect of that head sentence, I fix a non-parole period of 10 months.
Pre-sentence detention
65 Pursuant to s.18 of the Sentencing Act 1991, I declare that Mr Montelli has served a total of 202 days' pre-sentence detention, not including today’s date, in respect of the sentence that I have imposed on him today. I order that such period is to be reckoned as already served under that sentence, and I further order that the declaration and its details be entered in the records of this court.
Section 6 AAA indication
66 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for his plea of guilty to these offences, I would have sentenced Mr Montelli to a total effective sentence of 3 years with a non-parole period of 2 years.
Ancillary orders
67 I note that the defence did not oppose the ancillary orders sought by the prosecution in this case. In the exercise of my discretion, I am prepared to make each of the orders sought.
68 First, I make a disposal order in the terms sought by the prosecution, pursuant to s.78 (1) of the Confiscation Act 1997.[12]
[12] The schedule lists the relevant property as being the electrical bypass and the cannabis samples.
69 And, second, I make a forfeiture order in the terms sought by the prosecution, pursuant to s.33 (1) of that same act.[13]
Other matters
[13] The schedule lists the relevant property as being $3400 in cash (the same money that was the subject of the related summary charge).
70 Counsel, are there any matters that either of you wish to raise at this stage in relation to either the sentence or the sentencing reasons?
71 MR DAVISON: No your Honour, nothing further.
72 MR HANCOCK: Nothing further, your Honour.
73 HIS HONOUR: Mr Hancock, do you wish to have the opportunity of speaking to your client briefly on the video link shortly after I leave the Bench?
74 MR HANCOCK: I would appreciate that greatly, Your Honour. Thank you.
75 HIS HONOUR: Yes, all right. Well, I will grant that request, obviously with the understanding that it cannot be in total confidentiality as my staff will need to be here facilitate that link continuing.
76 MR HANCOCK: Of course. Thank you, Your Honour.
77 HIS HONOUR: Yes, thank you, counsel. I will now have the court adjourned, or rather I will stand down until the next matter is ready to proceed at 3.30.
78 MR DAVISON: As Your Honour pleases.
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