Director of Public Prosecutions v Nisi

[2020] VCC 1337

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00107

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN NISI

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 August 2020
CASE MAY BE CITED AS:	DPP v Nisi
MEDIUM NEUTRAL CITATION:	[2020] VCC 1337

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Davison
For the Accused	Ms E. Clark

HIS HONOUR: 

1John Nisi, you pleaded guilty to one charge of cultivating a large commercial quantity of a narcotic plant, that being cannabis, one charge of criminal damage a house belonging to others, one charge of theft of a quantity of electricity and negligently dealing in proceeds of crimes, that being $44,740 in cash.

2The circumstances of your offending were summarised in the prosecution opening which was exhibited.  I will refer to these agreed facts.

3In August 2019, police investigated an address in Chelsea Heights in relation to a cultivation of cannabis.  You lived in Carrum Downs, a nearby suburb.  You had been the tenant of that address for some six years.  Your vehicle was seen parked in the driveway of the premises and you were observed there also.  You were a registered customer at AGL Energy for that address from 2014.

4In late September 2019, in the early morning, police executed a search warrant.  Your trailer was parked in the driveway but no person was present.  Police located a large crop of cannabis.  The plants were growing under an overhead lighting system.  An electrical bypass was located in the roof space, which included an illegal meter bypass. The bypass was powering the electrical equipment being used in the cultivation.

5An audit of the illegal use of electricity from March 2019 to September 2019 estimated a value of energy at $47,575.28 lost to AGL Energy.

6Police searched the house and photographed its contents.  A sophisticated hydroponic system was set up in four rooms, Rooms 1, 2, 4 and 5.  In these rooms, lighting had been set up to facilitate growth together with carbon fibres, commercial sized air conditioning units, high wattage lamps and ventilation vents.  The windows and doors were sealed to assist with light leaking and retention and heat insulation.  Heat lamps were affixed to the ceilings and each plant was individually potted with a reticulated watering system.  Transformers led back to the primary switchboard connected in turn to the mains power in effect, bypassing the metering system to effect theft of electricity.  Room 3 contained small cannabis plants in individual pots with overhead plants.

7In a shed at the rear of the property, a commercial size grinding machine with a bin full of mature cannabis heads was found.  A hundred and fifty plants were seized from the address, distributed among the five growth rooms.

8The plants were confirmed to be cannabis by a botanist and weight at 291 kilograms.  In her statement, the botanist who attended at Chelsea Heights details what was found.  In her opinion, the plants ranged in age from approximately two to three weeks to at least 16 weeks.

9DNA and fingerprint swabs were taken. The fingerprints were identified as yours.

10At about the same time as the search, police came to your Carrum Downs residence.  Your mother and yourself were present there.  Police located keys and remote control to the Chelsea Heights house in your car which was parked at the Carrum Downs house.  You were arrested and then when asked about the house, you admitted growing weed at that house.

11Your house at Carrum Downs was also searched.  A resealable bag containing 129.4 grams of cannabis was found in a wardrobe, an expensive Tag Heuer watch inside a box and $44,600 in Australian currency in your bedroom which you told police about before it was found.

12That day, you were interviewed at the Frankston police station, during which you made full admissions.  You said you used cannabis usually once a week, sometimes twice. You had grown the cannabis in a small bag found at Carrum Downs.  You had been cultivating cannabis there between six months to a year.  Although you had rented the Carrum Downs property since 2012, you had not cultivated the whole time, you said.  You lived at that address from 2012 to 2013 but moved out of it between three to six months before and it felt like you had not really moved out of Chelsea Heights at all and you were there practically every day.

13You told police in the interview that you had started growing in 2012 while you lived there but unsuccessfully, Question 38 and following.  You said you paid $1,800 per month in cash for rent.  You told police you were looking to give this activity up and 'starting to live an honest life.'  You said you were qualified as a plasterer and no one had helped you set the place up.  You had done all the electrical work and apart from knowing it was illegal, you knew it was very dangerous to have done so.  But then you said 'until today, it hasn't dawned on me how crazy that is that I got to that point.'  This answer appears at the very least to be disingenuous or at least difficult to accept.

14You told police you obtained information from the internet and books and you started dabbling by turning the storage under your mother's house into the first attempts at growing.  You said you added nutrients to the water.  You told police you had harvested once before and that's where the cash that had been seized came from and that you had been using the received money to live.

15The plants which were found were in the process of being harvested and which was evidenced by the buds in the bin located by the police.  You told police you financed the equipment required from plastering work and some personal items which you sold.  You said you bought the equipment from different places, 'I did it in a way that I wanted to be low key so I didn't just go all out in once place.'

16You said you had 100 transformers each which cost you $100 each but you did not keep track of all the expenditure.  You handed police your phone and its PIN.  You said you started your plastering business in 2012, when you were just plodding along, barely earning anything and 'that's kind of what triggered it.'

17Towards the end of the interview, you said your motivation was anxiety, which you explained as fear of debt and that you wanted to a point where you would have enough money to be okay and be able to help everyone.  The reason was to obtain money.

18Charge 1 of cultivation of a large commercial quantity of a narcotic plant is a Category 1 offence, pursuant to s.3(1)(k) of the Sentencing Act 1991 and carries a maximum penalty of life imprisonment.

19Pursuant to s.5(2G) a term of imprisonment must be imposed and it was accepted in your plea that a head sentence and a non-parole period is the only available disposition to the court. The primary principles of general deterrence, denunciation and just punishment loom large in this sentence. These are relevant because of the prevalence of such cultivation offences and the impact this criminality has on the community. Serious offending must be reflected in just punishment. Parliament clearly views this cultivation offence as extremely serious, as a reflection of community standards. This view is expressed by the maximum penalty applicable being the highest in the criminal calendar.

20It hardly needs stating that you were the sole cultivator in this enterprise. 
You financed the operation, obtained the know-how, built the infrastructure required, obtained the equipment, tended to the plants and you were to be the only beneficiary of the of the role is preeminent.

21In this case, it is unnecessary as it is unnecessary in most cases to use labels to obscure the nature and extent of your involvement.  This was your criminal enterprise.  A dimension of the cultivation was not enormous by comparison to other commercial or large commercial activities but the weight was well beyond the large commercial quantity.

22This weight is a relevant and important factor in assessing the dimension of the enterprise.  It involved detailed planning, a sustained effort over six months, the diversion of power which made detection more difficult, regular attendance at the premises.  In my view, although generally the theft of electricity and the cultivation are interconnected as arising from the same enterprise, an order for some cumulation is appropriate to recognise the discreet nature of the theft.

23The theft no doubt increased the profitability of the illicit project and was designed to conceal the enterprise from detection.

24It is again superfluous but nevertheless worth stating that modern sentencing practice should reflect the view that cannabis grown by modern methods can inflict and does inflict grave harm to the community.  The maximum enacted by the legislature is more than a mere formality but provides a yardstick which requires attention in the necessary evaluation of the gravity of the offence in general and its gravity in the instant before the court.

25Reference was made in the depositional material and as I have noted, to a previous crop.  It is not just by inevitable inference but by your own answer that the providence of the cash found in your bedroom was connected to an earlier crop harvest.  I should make clear that I will be sentencing you for the charged offence on the indictment.  However, as was the case in
Spiteri v The Queen [2011] VSCA 33, this observation is no more than a statement that the conduct the subject of the cultivation count was not isolated and the admissions as to the previous crop are relevant to your culpability on the count upon which you are to be sentenced. See paragraph 39 of the report.

26This is a count which thankfully only comes before the court rarely.  That also means that I have had recourse to only a few cases and not too many recent examples.  I note DPP v S (No.2) [2009] VSCA 127, Spiteri, which I have just mentioned, Hanks [2011] VSCA 7, and DPP v Vu [2018] VCC 260.

27Some general guidance can further be gleaned from commercial quantity cultivations as to general principles.  In Spiteri, the court recognised the  median term of imprisonment was in the vicinity of six and a half years which the Court noted did not adequately reflect the seriousness of these offences, paragraph 72.

28The Court however also noted in the same breath that circumstances of each offender are unique and that sentencing considerations must be applied in the light of the facts of each case.

29In 2018, His Honour Judge Smallwood, a very experienced criminal judge of this court, in Vu at paragraph 7 of his sentence, sentencing a 29 year old with no priors, noted 'Nothing that could be described as a current sentencing practice is available to him.'

30What is notable in your case is the conscious decision to embark on a course of conduct over a considerable period of time and effort.  Although I do not have an estimate of street value, I can at least infer the monetary benefit was not going to be insubstantial.  This was your self-confessed avowed aim, to pursue a new educational opportunity and career.  Irrespective of your motive to in a sense emancipate yourself from the past and its burdens and the psychological impacts these burdens had taken upon you, you chose to pursue a criminal pathway of which risks you were aware, of which illegality you were conscious and the consequences of which you must have weighed in the balance when pursuing this enterprise.

31Despite what I shall describe in a moment as your state of mind and its causes, in my view, your moral culpability is high and your culpability generally is of a high order.  The easy way out, the shortcut to security and financial security has been catastrophic for you and although you have not stepped into the world of organised criminality, your one man operation stepped into a criminal offence considered of a very high order indeed.

32The theft charge carries a 10 year maximum, as does the criminal damage charge.  In my view, the criminal damage charge is inherently tied to the cultivation, not in a sense that it affected the - but in the sense that it affected the property of a third person and there will be slight cumulation to reflect that impact.  Similarly, the charge that pertains to the proceeds of crime will carry a measure of cumulation, again small, reflecting its separate nature from the cultivation, Charge 1.

33I take your plea into account, Mr Nisi.  The plea has a utilitarian benefit of having avoided a criminal trial and committal hearing. It was made at the earliest opportunity and I accept that you are remorseful for this conduct.  Your plea and cooperation are clearly stated acceptance of responsibility for your conduct and that will reduce your sentence.

34You have been in custody since 19 September 2019 and you have accrued 343 days, excluding today, in reclusion. These will be declared as
pre-sentence detention and will be administratively taken into account in deduction of your period of incarceration and will be noted in the records of the court.

35Apart from your sentence, you will be ordered to pay compensation for the theft of electricity value. I will order the disposal of the cannabis upon forfeiture to the State for its destruction and that property further listed in the forfeiture order be forfeited to the State.

36I take your personal circumstances into account. You are now 31 years of age.  You have no prior convictions and so I take into account your previous good character. When you were about six years of age, your parents separated for a short period.  You were the youngest of four children and you have been raised on a farm. There were frequent arguments between your parents, with your mother being aggressive and drinking alcohol to excess due to her own traumatic history of abuse. You and your brother were removed from your mother's care at some point and placed in foster homes several times and also different schools. Your separation from your brother was difficult and some of the foster families were unfortunately abusive.

37You father died in 2005, but you have had unresolved grief issues since then.  Your relationship with your mother and siblings has improved over time and you now describe it as close.  Due to the instability of your early life, you found school at difficult experienced, marked by anxiety.  This stabilised when your parents reconciled but your mother's problematic drinking continued to be a source of insecurity.

38You left school in Year 11 to help your brother who had taken over your father's plastering business and was depressed and needed help to manage what was seen to be the family business and its main source of income.

39All profits went to your mother and debt repayment.  You were employed as an apprentice by your brother but the demands of the business meant that you did not complete the educational component of the apprenticeship.  However you felt you had to remain in the role to support your brother. 
You did not want to pursue a career in plastering but you felt it was incumbent upon you to sustain the family and during this period, you have a very creditable work history which is to your credit.

40However, you found this distressing. You told Carla Ferrari, a forensic psychologist, who provided the court with a report dated 17 July 2020 that this distress affected your social life, meant you worked long hours and you withdrew from friends into isolation.  At this point, you started to use cannabis to manage your emotions.  Your brother left the business, which left you to run it but your lack of business experience meant it soon floundered.  You felt you failed your family. You commenced a course of study at TAFE in July 2019 into video gaming but required funding to continue.

41In 2016, a two year relationship broke down and you sought psychological support.  You reported to Ms Ferrari a history of depression and trauma. You outlined some traumatic events to her, including the death of a young cousin and the death of your father.

42You suffer from tinnitus and chronic pain in your hip and knees. Apart from some experimentation with hallucinogenic socially, cannabis was your drug of choice, which at the time of arrest, you'd reduced to once a week over a six month period.

43After your father's death, you became addicted to gaming as an escape from reality. You told Ms Ferrari that the cultivation was your idea and that you researched how to grow cannabis and having spent a significant amount of money setting it up and initially failing, you realised you needed to make the exercise one you could profit from. You expected 35 kilos or so of dried material from the relevant crop.

44You felt the pressure of unpaid family debts. Your sister's own limited income, your mother who was on a disability pension and the weight of obligation to help your family all contributed. You described your mental state as extremely depressed during the relevant time of the offending. This and the financial stress which escalated your fear of death you have experienced from childhood including debilitating panic attacks contributed at the time to your state of mind.  Making money this way was seen by you to be your way out.

45You expressed remorse to her and that you had considered the risk of discovery. You enrolled in the TAFE course and needed money to pay for that enrolment. You continued on with the enterprise even though you know this was, 'dirty money.'

46You express disappointment and shame in your discussions with her. 
She made an assessment of your mental state which is reported at pp.6-8 of her report.  She writes that you present with symptoms consistent with major depressive disorder, preceding, during and post offending. The symptoms have improved in custody, particularly due to antidepressant medication. 
Ms Ferrari wrote that you have developed a Post-Traumatic Stress Disorder due to past trauma with symptoms of thought intrusion, mood alteration and hyper arousal. There is also cannabis use disorder of compulsive
self-medication in early remission which has continued in the environment in reclusion you now find yourself in.

47Ms Ferrari emphasises that effective states can alter an individual's behaviour, impulse control and affect decision making. I accept that this was a factor in your poor judgment. Without doubt, your sense of subjugation of your own plans and desires to that or what you perceived was family expectations by way of self-sacrifice.

48I refer in particular to the well-articulated descriptions in paragraphs 90 to 94 of her report. She writes that protective factors such as a developing level of insight have developed since being in custody and reflection on the background of your offending with a need to address your mental health issues post release.

49I accept that these matters enliven the fifth and sixth limbs of Verdins principles and that I should take into consideration those in arriving at an appropriate disposition because your time in custody will be more onerous as a result of these disorders, that there is a risk that your mental health may decline on account of this time.

50Although the time so far spent in custody may have been salutary, the sentence will be much more significant in its duration than the time you have already spent and I take this important factor into account.

51You are currently working as a peer support worker in custody and this has given you some positive experiences. You have also been placed in a therapeutic unit while in custody being a section for first time prisoners and you have found this helpful and you remained there for longer than usual.  You have engaged with a psychiatric nurse and have been prescribed Zoloft which has managed your anxiety. I accept that your prospects of rehabilitation are very good.

52You have completed the Cannabis and Me program which has given you some insight and valuable education as to the real impact of that drug. In relation to a risk assessment as to future offending, I have stated that your prospects are very good and that judgment is confirmed by Ms Ferrari who finds that on the assessable risk evaluation, you are considered to be a low risk. You have a supportive family and no general antisocial or criminal peer group. You have developing insight and a willingness to improve your outlook.  You are amendable to ongoing treatment. However, I am cognisant that someone with a Post-Traumatic Stress Disorder with a tendency to approval seek may be more vulnerable to exploitation in a prison environment.

53At this time, I take into account the effect of the pandemic on this disposition.  Your plea has additional value as it is offered at a time when the pandemic has placed unforeseen pressures on the criminal justice system and on correctional functions.

54Additionally, the COVID-19 situation has and will impact on conditions of reclusion by constraints of visiting rights, means and frequency of communication, limits on work and program opportunities, the imposition of lockdowns and restrictions of movement, the concern over personal safety and that of others outside in your family in the community.  These increase the hardship of incarceration generally and in your case, specifically, and I take this factor into account.

55I take into account also the certificates and letters of reference received into evidence.  A letter from Jack Robb, a clinician from the Geo Group Complex Needs Team at Ravenhall has outlined the therapeutic programs you have undertaken so far in a letter dated 25 June of this year.  Another certificate related to a program about coping in prison. 

56A number of personal references were received and I take those into account from Wayne Alcott, Damien Nisi, your eldest brother, your sister-in-law, Alisha, your sister-in-law, Erin, her mother Robyn, whom you have assisted in the past, Adriano, your brother, Thomas Osman, a friend, your sister, Rosalba, your mother's friend, Manuel Castro and your mother, Marianne. 
All speak of you in impressive terms as to your good character, generosity and helpfulness. They are frank and candid in their recounting that you told them of the offending and attest to your remorse.

57I take this body of evidence into account in your favour.  You have also written of the dishonest and irresponsible behaviour in which you engaged which can contribute to more crime and damage to the community in your words. 
You mention work as a cleaning billet and peer support as your attempt to atone for your conduct and good order of the prison. I take this into account.  I have a letter from Geo Group, which describes the peer listener position that you have and have received also prison urine essay results showing negative results for a variety of illicit substances on 14 May 2020.

58Both the circumstances of the offending and your own make for a difficult sentencing exercise. I am conscious of the provisions of s.5 of the Sentencing Act and the components for the purpose of sentence and the balancing of considerations, particularly general deterrence and in your case, rehabilitation.

59I also have regard to parsimony and the principle of totality and that in the circumstances of this case, as I have already noted, specific deterrence in consideration of your prospects for rehabilitation and your low risk of reoffending can be ameliorated and be given somewhat less weight in the synthesis of factors and arrive at the end at a reasonably merciful disposition.

60On the first charge, that of cultivating a large commercial quantity of a narcotic drug, you are convicted and sentenced to five and a half years' imprisonment.  For criminal damage, you are convicted and sentenced to six months' imprisonment. On theft, you are convicted and sentenced to 10 months' imprisonment. On the proceeds of crime charge, you are convicted and sentenced to six months' imprisonment. I order that one month on the criminal damage, four months on the theft and one month on the proceeds of crime be cumulative on Count 1. The total effective sentence is of six years. 
I order a non-parole period of four years and I have already made clear that I will declare your period of pre-sentence detention at 343 days excluding today and I will have that number recorded in the records of the court.

61But for your plea, I would have sentenced you to eight and a half years with six years non-parole period.

62I will sign the ancillary orders, that being the disposal order and the forfeiture orders.

63Mr Davison, were there any other ancillary orders that were required?

64MR DAVISON:  Your Honour, it was just whether or not Your Honour was going to order compensation for the theft of the electricity.  My instructor has just advised that a draft order had not been filed along with the other two orders but can be with the court within a very short time.

65HIS HONOUR: I announced during the sentence that I would order a compensation and if you send my associate that order, I will sign it and return it to you.  What is the amount of that compensation?

66MR DAVISON:  As Your Honour pleases.  The amount was $47,575.28.

67HIS HONOUR:  That is the amount that I read out during the sentence. So when the order is received, I will sign it.

68MR DAVISON:  As Your Honour pleases.

69HIS HONOUR:  Yes, thank you.  Thank you, Ms Clark.  Thank you,
Mr Davison.

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