Director of Public Prosecutions v Morris

[2016] VCC 2087

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01367

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT MORRIS

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 December 2016
DATE OF SENTENCE:	20 December 2016
CASE MAY BE CITED AS:	DPP v Morris
MEDIUM NEUTRAL CITATION:	[2016] VCC 2087

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – cultivate a commercial quantity of cannabis L – possess methamphetamine – cannabis L used for pain management.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr D.Cordy	John Cain, Solicitor for the Director of Public Prosecutions
For the Accused	Mr A. Madden	Harper Buscombe & Madden Lawyers

HER HONOUR:

1Scott Morris, you have pleaded guilty before me to one charge of cultivation of a narcotic plant in a commercial quantity and one charge of possession of a drug of dependence, namely methamphetamines.

2The charges are serious, particularly Charge 1.  The maximum penalty that is prescribed by Parliament is 25 years imprisonment.  In respect to Charge 2, the maximum penalty is one year imprisonment or 30 penalty units.

3I shall proceed to sentence you on the basis of the opening that was read at the plea hearing by the prosecutor and it is marked as an exhibit.

4Essentially what occurred is that the police were executing a warrant under the Drugs Poisons and Controlled Substances Act 1981 at your premises at 307 Providence Gully Road, Sandon, on Tuesday 2 February 2016, when they discovered cannabis plants present and growing at the rear of the house.

5Your cooperation with the police was noted at the time of the execution of the warrant.  Police located several large garden beds containing 59 cannabis plants weighing 120.25 kilograms, growing directly into the soil and you admitted cultivating those plants from seeds.

6A search of your bedroom revealed containers containing 478.7 grams of dried green vegetable matter which you admitted was cannabis that you had harvested from your plants.  You told police you lived alone and did not supply to anyone else. 

7In your bedroom police also found a small clip seal bag with a small amount of white powder beside the bedside table which you admitted was ice and admitted was yours.

8The certificate of analysis dated 8 September 2016 stated the total quantity of substance, including the methylamphetamine was 0.9 grams.

9You were formally interviewed and during that interview you made full admissions in relation to cultivation of the cannabis plants and possession of the methylamphetamine.  You told police that you used the cannabis for pain management. 

10Objectively, this offending is serious.  At first blush, your offending, particularly Charge 1, could be categorised as a serious example of this serious offence.  You were growing 59 cannabis plants, weighing 120.5 kilograms, which is almost five times the commercial quantity.  The commercial quantity being 25 kilograms.

11However, I noted your cooperation with the police at the time of the execution of the search warrant.  You were frank and openly explained to them and it is accepted by the prosecution that you were growing the cannabis for your own personal use, to manage chronic pain.

12You have a lower lumber discal condition.  You have prolapsed discs at L2/3.  You told police that you would manufacture oil from the cannabis grown on the property and use it to make butter and oil and you would ingest that to manage your pain.

13Further, it is accepted that there is no evidence of any commercial profit or trafficking in respect to your offending.  Your case can be distinguished from those where there is a sophisticated hydroponic set up with electricity bypass which is the usual type of this offence.

14You will be sentenced on the basis that the crop was being grown for your own personal use, without any trafficking purposes.  I accept that there is a context to your offending, in addition to the explanation that you provided to the police.  Namely, that you had been using cannabis as a means of managing difficulties, coping with extensive childhood trauma at the hands of your stepfather and wider family, over many years.

15In addition, you have been diagnosed with depression and anxiety in 2012 by your local general practitioner and you had received extensive counselling from Dr Annie Thomas, a psychologist, over 2012 to 2013.

16Ordinarily, given the nature of this offence and the maximum penalty prescribed by Parliament, a custodial sentence would have been appropriate.  However, I accept that there are a unique set of factors that operate in this case so as to militate against the imposition of a gaol term to be served.

17I have noted your personal history and background.  You are now aged 43.  There is no prior criminal history.  You come from a very complex dysfunctional family.  Your parents separated when you were six.  Your mother suffered sexual abuse at the hands of your father.  Your father then re-partnered and married your biological mother's sister which led to conflicts within the family over the years.  Your mother then re-partnered and married a man who is described as a very heavy alcoholic, who sadly went onto physically and sexually abuse you and who also abused your mother. 

18You had a long term partnership with Renee Clements. You first met her in 1997. There are two children born of that relationship and they are
Lilsa Jade aged nine and Araminta Lael aged five.  Tragically, Renee died following your arrest on 26 April 2016.  She died as a consequence of a previously undiagnosed heart condition.

19Renee had earlier left Victoria to establish herself in Queensland and it was intended that you would be reunited with her at some time.  Since her death, you have travelled to Queensland and have taken up the role of sole carer of the two young children.

20I have had regard to your previous working history.  You have got a good work history in terms of having been usefully employed as a carpet cleaner over many years, working as a floor technician and also working in an office.  In addition, you have a real passion for music, which you have encouraged through teaching your daughters. 

21I have had regard to the mitigating factors that were put forward on your behalf by Mr Madden.  I am satisfied that there is a unique combination of features in your case, which leads to the conclusion that a Community Correction Order is an appropriate disposition.  I have had regard to the following – :

1.You are a first time offender.  You have no prior criminal history and there is nothing pending.  You are aged 43 and you are entitled to have your good character taken into account, in your favour, and I do so.  I have also had regard to the reference that was provided by Steve Cooke, which supports you being a person who is of good character.  He is aware of your troubled family history and background, but he states that you have managed to make a courageous change to break the cycle.  He speaks of you as being a wonderful father and he says that you have managed to raise two beautiful intelligent and well-rounded children.

2.    I also have regard to the fact that you entered an early plea of guilty at committal mention on 3 August 2016, once suitable charges were identified.  The prosecution accepts that the plea was entered at the earliest stage and that you are entitled to a full discount on your sentence.  I accept through your plea of guilty, that you have facilitated justice.  You have saved the state the expense and unnecessary inconvenience of a trial. 

3.    I accept that there is remorse evidenced by your early plea of guilty, but also through your cooperation with the police and the fulsome admissions made at the time of your arrest in the formal record of interview.   

4.    I consider you have excellent prospects of rehabilitation.  You no longer use Cannabis L.  Your arrest has had a salutary effect on you and it is unlikely you will reoffend in the future.

5.    I am satisfied that hardship to your family has been established.  It is not normally a mitigating factor, however, I have a discretion to mitigate sentence because of the family hardship where I am satisfied that the case reveals exceptional circumstances.  I consider that this is a case where exceptional circumstances have been made out. You are the sole carer who is responsible for the upbringing and care of two especially vulnerable, dependent young girls.  They are currently settled and doing extremely well at school at Queensland. I have had the benefit of reading the Coolum State School reports concerning both your daughters and that is a tribute to your care.

22I have noted the comments of Julie Cattanach who is the sister of your late partner.  She has known you for over 12 years and she states that you are a loving and caring father to your two daughters and that is evident from your actions since the death of her sister.

23She states you have taken on the sole parenting of your girls and you have been wonderful in providing them with a consistent supportive environment in which to grow and their resilience at this time is a testament to your parenting.

24In all those circumstances, I consider that the hardship requirements as is articulated in the case of Markovic[1] have been made out and that this is a case where the court can exercise its mercy discretion.

[1]Markovic v R [2010] VSCA 105.

25Finally, I have had regard to the fact that there has been an order made in respect to the property at Sandon under the Confiscation Act 1997. An order was made on 30 August 2016, pursuant to s.16, restraining the property. Charge 1 on the indictment is an automatic forfeiture offence. I have taken into account the fact that you have lost that significant asset as a consequence of your criminal acts, pursuant to s.5(2A)(ab) of the Sentencing Act 1991 (Vic).

26I noted that there was a net equity in the property of approximately $145,000 after deducting the mortgage and arrears payments.  Given your current age, the fact that you are not in the workforce, you have no independent means of support and you are now in receipt of government assistance, that is the carer's pension, it is unlikely that you will be able to amass sufficient funds in the future to be able to secure another home and therefore that loss is significant and I have taken that into account.

27Overall, I consider that you have excellent prospects of rehabilitation, having regard to your post-offence conduct which I have outlined in these remarks.

28I have had regard to the guideline sentencing judgment in Boulton and I consider that this is an appropriate case to impose a Community Correction Order, for relatively serious offending that would have previously have attracted a medium term of imprisonment.

29I note that such an order is intrinsically punitive and having regard to the nature of the conditions imposed, I consider that it will provide for you to take personal responsibility for your own self-management and self-control in the future and ensure that you pursue treatment and rehabilitation and refrain from further offending in the future.

30I consider that such an order can provide for general deterrence and specific deterrence and in those circumstances, I consider it is an appropriate disposition.  I am also satisfied that the Community Correction Order will enable all the purposes of punishment to be served simultaneously, in a coherent and balanced way.

31In all the circumstances, I propose to make the following order in respect to the charge of cultivate a narcotic plant in a commercial quantity and the charge of possess a drug of dependence –:  You will be convicted and placed on a Community Correction Order for three years.  Such order to commence from today's date and ending on 19 December 2019.

32I have already explained to you the mandatory conditions and also the additional requirements, that is supervision and treatment and rehabilitation for drug abuse and dependency and also assessment for mental health treatment and you have indicated that you understand the effect and conditions of the order and consent to it being made.

33In addition, I have explained to you the consequences of breach of any conditions and you acknowledge that you understood those.

34I make the Disposal Order sought in relation to the materials that were located at your property at Sandon.

35Finally, I do not propose to make an order with respect to s.464ZF(2) of the Crimes Act 1958, having regard to the particular circumstances of your offending. There was no issue in terms of the police identifying you as the offender, you freely admitted your involvement in the offending therefore I do not consider that there is any basis upon which an order could be made that warrants the making of the order, so that order will be refused.

36MR CORDY:  Does Your Honour propose to make a 6AAA - no?

37HER HONOUR:  No.

38MR CORDY:  Thank you.

39HER HONOUR:  I do not do that where I am imposing a CCO.

40MR CORDY:  Yes I understand that, Your Honour.

41HER HONOUR:  Yes.

42MR CORDY:  I was just making an enquiry.

43HER HONOUR:  No, no, that's all right.  I'm not having a go at you.

44MR MADDEN:  And Your Honour, is there an order in relation to Charge 2?

45HER HONOUR:  Charge 2 is part of the CCO.

46MR MADDEN:  Thank you.

47HER HONOUR:  Yes, you can make one CCO for both.

48MR MADDEN:  I understand that, but is ‑ ‑ ‑

49HER HONOUR:  Yes, I said both.

50MR MADDEN:  I'm sorry, I missed that.

51HER HONOUR:  Yes.  No, that's all right.  That covers everything.  Can you accompany my associate
Mr Madden and get your client to sign the CCO.  Once he's done that we'll get him a copy and then he'll be free to go.  But he'll have to make arrangements with Community Corrections about what happens from here on in.

52It might be a good idea that the matter be the subject of a mention perhaps, just to ensure that the transfer to Queensland takes place.

53MR CORDY:  I beg your pardon, I missed the last part.

54HER HONOUR:  It might be that it's appropriate for a mention to be arranged in Melbourne perhaps, given that it's anticipate it might take until 6 January 2017 for the interstate transfer of the order.

55MR CORDY:  Yes.

56HER HONOUR:  I can make a mention date, just to ensure that that happens.  But in the event that it has happened ‑ ‑ ‑

57MR CORDY:  Yes.

58HER HONOUR:  ‑ ‑ ‑ there'll be no need for the parties to attend.

59MR MADDEN:  Sorry I missed the ‑ ‑ ‑

60HER HONOUR:  Very well.  Corrections Victoria are now going to put in place a request to transfer the order to Corrections Queensland.

61MR MADDEN:  Yes.

62HER HONOUR:  They anticipate that it may take up until 6 January 2017 before that's confirmed.  What I was proposing is that there be a mention in the general list in Melbourne on 6 January 2017, just to ensure that that transfer takes place ‑ ‑ ‑ 

63MR MADDEN:  Yes.

64HER HONOUR:  ‑ ‑ ‑ and that's all confirmed.  In the event that it is, the parties won't be required to attend the mention.

65MR MADDEN:  Yes, I'm just on leave until the 9th, Your Honour, that's my only issue.

66HER HONOUR:  Very well.  Well the 9th is a Monday is it? 

67MR MADDEN:  Yes.

68HER HONOUR:  So we could make the mention on the 9th then.

69MR MADDEN:  Yes, that'll be fine.

70HER HONOUR:  Very well.  What I'll do is I'll ask - is Judge Taft in charge of the General List at that time or is it Judge Morrish? 

71ASSOCIATE:  (Indistinct words).

72HER HONOUR:  Very well.  What I'll do is I'll list it for a mention before His Honour Judge Taft on 9 January 2017 at 9.30 in the General List.  I believe he's the Judge responsible.  Just so as to ensure that we get notification from Bendigo Community Corrections Services that the application for transfer to Corrections Queensland has been completed and is authorised, all right?

73MR MADDEN:  Thank you.

74HER HONOUR:  Yes.

75MR MADDEN:  If that occurs, we don't need to appear?

76HER HONOUR:  Sorry?

77MR MADDEN:  If that's occurred, we don't need to appear?

78HER HONOUR:  And if that is the case, I'll just ask that the associate notify the parties to confirm.  Once that confirmation is received, it will mean that there'll be no need for the mention.

79MR MADDEN:  As Your Honour pleases.

80MR CORDY:  As Your Honour pleases.

81HER HONOUR:  Very well.  I'll make sure that my associate liaises with – is it Patrick Stanton here in Bendigo, CCS?  Just to confirm that that's the arrangement, all right.  That Patrick is to notify Judge Taft's associate once the transfer has taken place.  So has that been signed, the order?  It can be copied and provided to Mr Morris.  Mr Morris can come out of the dock now.  I think that completes the matters for today. 

82(At this stage the court proceeded with another matter.)

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