Director of Public Prosecutions v O'Neill
[2012] VCC 471
•19 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00101
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN RICHARD O'NEILL |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 19 April 2012 | |
CASE MAY BE CITED AS: | DPP v O'Neill | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 471 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Counsel | |
| For the Accused | Counsel |
HER HONOUR:
1 John Richard O’Neill, you have pleaded guilty before me on one charge of cultivating a commercial quantity of a narcotic plant, namely cannabis, and one charge of trafficking in a drug of dependence, namely cannabis. The facts underlying your offending are as follows.
2 At the time of this offending you were 64 years old and operating a cleaning business and renting a factory at Mentone. On 15 September 2011, officers from the Crime Scene Services section attended the factory in relation to a burglary that had occurred at the factory premises, specifically on your factory, No.8..
3 There jemmy marks were seen around the lock area on the door and where the lower inner hinge had been ripped from the frame and the upper door hinge removed.
4 The officers conducted an internal search and saw that a rear corner of the factory had been sectioned off and within it was a hydroponic set-up with cannabis plants growing under lights. Further examination revealed that the hydroponic set-up had three sections containing a quantity of potted cannabis plants at different stages of growth, there was a total of forty four empty pot plants that appeared to have been stolen during the burglary. A business card with your name and mobile number was located. Some time later you arrived at the factory and admitted to police that the hydroponic set-up was yours. You were arrested and cautioned. The hydroponic set-up was then dismantled and 91 cannabis plants were seized. Adding the forty four empty pot plants earlier located, it appears there were a total of 135 cannabis plants being grown by you at the factory.
5 Police also located a bag of loose green leaf with a total weight of 339.6 grams, which you told police were bagged to be thrown out after stripping it from plants. Your possession of this marijuana is not relied on by the prosecution but is led by way of contextual background only.
6 You participated in a record of interview in which you were most co-operative and made a number of admissions, stating that you had been renting the factory for about fifteen months while you were operating a franchising business and that you established a marijuana hydroponic set-up to enable you to make a living and that you constructed it yourself. You said essentially you would plant seeds and it would take about eight weeks for the plants to grow to an appropriate height. You would then take clones from that crop, put them straight back in and run them for another eight weeks. You told police there were four frames at the back that you used for harvest and they were on different lights. You explained to police that a red book recovered from the scene contained handwritten drawings which were projections of production of what could be done within certain time frames, and you told police this was what you called your ideas book.
7 You said you attended the factory sometimes daily or every couple of days to water the plants. You told police that about six weeks previously the factory had been burgled through the back door and that you had prepared about one hundred bags of packed marijuana, stating “The marijuana was packed in the sandwich bags, one ounce, one hundred bags, about fifteen thousand dollars.”
8 You told police about your procedure of preparation which included taking a plant, trimming buds off and drying. Once the buds were dry, you would weigh them by ounce per bag, then wrapped them and packed them in Gladwrap bags. You told police you intended to sell them those bags. You said you did not get to sell them because they were stolen. You told police “That was my first big operation. I’ve only just recovered from that when you arrived.” The admission in relation to the 100 bags of packed marijuana for sale comprises the fact scenario underlying Charge 2, trafficking in marijuana.
9 You told police that you were not making enough money from legitimate employment and that retirement was coming up and you were broke. You said “I had two choices. I am living on an absolute knife edge, which way am I going to go? Live or die? That’s the way I saw that.” You told police it cost you fifty thousand dollars to set up the operation and that you may have made about ten thousand dollars from it. You said it had been up and running for about thirteen months with numerous trial and error, sometimes the plants being burned or drowned in water and the current harvest would have been your second successful harvest. The prosecution does not rely on this thirteen months of operation in relation to Charge 1, but only to the eight week cycle that produced the 135 plants.
10 You said you were heavily in debt, which is why, after you were robbed in relation to your first harvest you did not immediately shut down the hydroponic centre.
11 I turn now to your personal circumstances.
12 As I have said, you are sixty four years of age and were born in Ireland. Your parents, who are now deceased, ran hardware and butcher’s businesses and you were in the middle of a constellation of five children. Your brothers and sisters remain in Ireland.
13 You left school after Year 12 and worked as a commercial artist in advertising. You married at the age of twenty and left for Australia within days of the wedding. You and your wife rented a house in Melbourne and you got a job working for Patterson’s, a large advertising company, and your wife worked as a bookkeeper.
14 In 1974 you took out a bank loan and began a printing business. From this you made a reasonably good living. You and your wife had three children, a daughter born in 1976, a son born in 1977 and a second son born in 1978. Your daughter, who resides in Perth, has two children. Your older son works for the National Australia Bank and your younger son works in management in a food company. They have never been in any trouble with police and indeed, I note you have no prior convictions.
15 You and your wife bought a house in the Dandenongs and then invested in a meat exporting business which was a big financial failure. You sold your printing business to repay the money you had borrowed to make that investment.
16 You and your family then moved to Surfers’ Paradise in 1980 where you bought a pancake kitchen and restaurant. At that same time, you learned the art of glass blowing and became involved in the business of making ornaments for the tourist trade. You built a machine which sped up the process and your business was a great success. Once that market had been exhausted, you moved to Perth in 1982 and continued that business in a successful manner there.
17 You and your family returned to Melbourne in 1985, renting a house in Kew and then bought a house in Melbourne later that year. At this time of your life you were clearly very financially successful. Your children were sent to private schools, your sons to Brighton Grammar and your daughter to Merton Hall.
18 Then in the mid-1990s the market collapsed due to an influx of cheap imports from China. There were, however, other stressors in your life. Your wife had been a victim of sexual abuse when much younger in Ireland. The perpetrator was charged and gaoled, but she was required to go to Ireland to give evidence against him in the mid-1990s which put strain on your marriage and eventually you and she divorced in 1997, two weeks after your fiftieth birthday, however you remain on good terms.
19 You bought a house in Cheltenham, the children living with their mother but remaining close to you. Over the next couple of years you holidayed in Bali where you met your second wife, to whom you have been married for about ten years. During these years you tried to sell off a huge amount of stock that you still had from your glass blowing business, although this was apparently a slow and mostly unsuccessful enterprise.
20 Your wife is Indonesian and 44 years of age. You married her in 2002 and she moved here. Eventually you sold your house and invested that money in the stock market but those investments failed.
21 In 2003 you and your wife moved to Wonthaggi in Gippsland. Your wife had always worked in market gardens and it was hoped she could get work there. You, at that stage, went on Centrelink payments for the first time in your life. In 2004 the two of you moved back to Melbourne and took over the management of a video shop. You managed it and your wife worked there, but the business did not do well.
22 In 2005 you obtained a Certificate III in Aged Care and drove taxis. However, you have long suffered back problems which first began after an injury in rugby when you were 15. You have apparently suffered pain ever since and were unable to work in that area.
23 From about 1986 you attended on a chiropractor and were periodically treated by him until the late 80s. You then changed practitioners and have been attending on another chiropractor, Dr Lanie Kaan, of the Bayside and District Family Chiropractic Centre in Hampton since 2000. In her report dated 5 March 2012, Dr Kaan said that she has seen you for treatment approximately every three to four weeks in the past twelve years. She referred to an earlier report from Dr Neil Davies, the chiropractor upon whom you attended from 1986 to the late 1990s, who noted that your condition had deteriorated to a point in 1999 where you had severe and debilitating problems involving neck pain, headaches and particularly lower thoracic pain, with periodic exacerbation.
24 Dr Kaan said that you regularly received treatment for those multiple symptoms but also need care for ongoing low back pain that has been an issue ever since you began treatment with her. She stated, “Over the past twelve years since John has been seeing me for treatment, he has attempted multiple occupations but has been unable to find a job that will allow him to work without aggravating his symptoms.”
25 Three or four years ago you borrowed twenty five thousand dollars from your first wife, with whom you remain on good terms, and bought a cleaning franchise which brought with it a guaranteed monthly income. You had a contract with a shopping centre in Springvale and you worked with your wife. That contract, however, was not renewed and you developed shoulder pain, believing you had developed arthritis in that area. In fact, you had incurred serious ligament damage to your shoulder. The income from the cleaning business decreased steadily and you were heavily in debt by 2010. Eventually you were living on credit cards. It was in that context that you made what I accept was an extreme decision to grow cannabis. The idea was to make money to repay your debts and then stop.
26 You were renting the factory in order to store equipment from your cleaning business there, but converted it to use in this criminal enterprise. You had no previous knowledge of how to grow marijuana and it would appear, from your extremely candid record of interview, that you were largely unsuccessful at first and that the enterprise was in many ways an amateurish one.
27 Your counsel agreed that you had in fact rented the factory both to store cleaning equipment and to set up the crops, but in renting the property you were able to free up a room in your house and let it to a lodger. You also were entertaining the idea of resurrecting your glass blowing business and using the factory for this. Eventually you had a successful crop, resulting in the one hundred bags, the subject of Charge 2, the trafficking charge, which were, in fact, stolen. You then proceeded to the second crop, which was again the subject of a burglary.
28 By this stage, you had debts on your credit cards to the amount of about sixty thousand dollars. You were released on bail and resumed work as a cleaner, and it appears, ironically, that your business has improved. You told me in Court that this was because you were getting more support from the franchisor and your income is now up to about $6400 a month.
29 Your counsel told me that you made the decision to cultivate marijuana as a sort of panic reaction to your continuously faltering financial position, together with concern over your physical condition and the problems with your shoulder. You believed that you had about two years left to make a living.
30 In Court, you informed me from the dock that in the past twelve months you had got more clients in your cleaning business through the franchisor, the whole company apparently having gone through a downturn two years before that. You are also renting out a room in your home for one thousand dollars per month.
31 Your wife speaks limited English and is most dependent upon you. She works as a picker in market gardens nearby where you live.
32 Your counsel informed me you are deeply ashamed of what you have done and have not informed your brothers and sisters or indeed, your wife. I did receive a reference from your first wife, Therese O’Neill. She said that you and she remained friends and that you have maintained a good ongoing relationship with your children. She has met your wife and said she is clearly dependent upon you.
33 She stated, “I believe him to be a very fine man with high morals and ethics. His capacity for hard work, his dedication to his children and friends is admirably high.” She said she was totally shocked when you told her of the criminal activity you had been involved in, stating that it was totally out of character. She said, “I would never have dreamt him contemplating such a venture. He explained his dire financial situation and declining health were reasons for this.” She said she would continue to support you emotionally and financially, and that you had shown great remorse and regret for your actions.
34 Dr Kaan said that your physical degeneration had not improved over the years and she stated, “We have simply helped John keep his pain symptoms at a manageable level through regular chiropractic adjustments.” In the intervening period between the plea and the handing down of this sentence, you apparently suffered a “transient ischaemic attack” and I received a medical certificate from Dr Peter Pereira dated 21 March 2012 noting that you had a mini-stroke, which is in fact what a transient ischaemic attack is. No further submissions were sought to be made by the defence on your behalf, but I note that you presented complaining of incoordination of the right side of the body, leaning towards the right, and staggering gait. The symptoms lasted all day but you managed to work, although you bumped into things. You were treated with medications and sent home.
35 Mr O'Neill this is a most unusual sentencing exercise for this court. Ordinarily persons such as yourself who engage in cultivating marijuana in a commercial quantity, that is more than 100 plants, who engage in trafficking marijuana, who are frankly engaging in serious criminal behaviour regarding drugs as a pure financial enterprise can expect only to be dealt with by a court by way of a sentence of imprisonment to be immediately served.
36 You need to understand how damaging this drug is, that cannabis is not a benign drug and that particularly the product of hydroponic crops is especially potent and liable to cause psychiatric conditions, particularly in young people which might otherwise have remained dormant to become active and to effectively sentence those young people to lives of extreme instability and loss thereafter.
37 During the plea hearing I spoke to you of this syndrome and I say to you again, the courts have seen this time and time again, that is the presentation of promising young people whose lives have been ruined by abuse of hydroponically grown cannabis that has been a direct cause of long term psychiatric illness, in particular such as schizophrenia. You were engaging in an activity, whether you were fully aware of it or not which was dangerous and harmful to other people, especially young people in their late teens and early 20s who are most vulnerable and who may have a susceptibility towards psychiatric illness that might not otherwise have been activated.
38 At the same time, you present very differently to other persons who have come before this Court charged with similar offending. To begin with, you are sixty four years old and have no prior convictions. You have been a successful businessman, you have been a productive member of society. You have raised three successful children. You have continued to try to make an living in the face of financial hardship and physical disability. You continue to be a hardworking person who has sought to make his way in the world. I accept that you became involved in an activity such as this only because of the extremity of your dire financial circumstances and debilitated physical condition, together with a sense of responsibility for a dependent wife. This in no way excuses your actions but does provide some explanation for them which is less condemnatory than is often the case. There is no doubt that you were extremely inept in this criminal enterprise, as well as unfortunate. You told police in your remarkably frank record of interview of your failures to successfully produce a crop, and then, once that was achieved, that you were burgled. So frank was your record of interview, that police were able to charge you with the trafficking charge based solely on your admissions.
39 You have not subsequently offended and indeed have returned to gainful employment which appears to be progressing well. In my view, there is virtually no likelihood that you will re-offend. I accept that you are remorseful for your actions. I accept that this offending is totally out of character for you. You have made no financial gain in any meaningful sense from this enterprise. In my view, there is no need to deal with you on the basis of specific deterrence, that is, on the basis that you need to be deterred from behaving in such a way in the future. If it were not for the seriousness of the drug which you sought to cultivate and to traffick, this entire incident could almost be described as a comedy of errors and indeed it is one which has left you considerably out of pocket. But that is not to say that you were not determined on pursuing a course which you hoped would bring you substantial financial rewards, although as I have said, I accept that this was done by you in order to resolve a powerless financial situation.
40 I am not satisfied as I must be, notwithstanding the seriousness of these charges, that a sentence of imprisonment to be immediately served is the only way I can deal with you, although this was a course urged upon me by the prosecution. It is my view that the imposition of a suspended sentence as well as a community corrections order will answer the competing demands of the sentencing exercise before me, that is, a stern response to what is serious criminal offending which at the same time recognises that you are a man of senior years who has been hitherto of unblemished character and who has been a most successful and productive man in his day. It also recognises the mitigatory circumstances surrounding your offending, your remorse, and the excellent prospects of rehabilitation that I have found exist in your case. I therefore sentence you as follows. Stand up please.
41 On the charge of cultivating a commercial quantity of cannabis, I sentence you to three years imprisonment, which sentence is to be wholly suspended for a period of three years.
42 On the charge of trafficking a drug of dependence, I propose placing you on a community corrections order for a period of two years and in that time order that you undertake unpaid community work of 250 hours. Now I can only place you on a community corrections order if you consent to being placed on one and I need to tell you what the core conditions of such an order are.
43 The order, which will last for two years means that during that time you must not commit another offence for which you could be imprisoned during the time that the order is in force. That does not mean you have to be imprisoned, that means if you for example steal something small from a supermarket theoretically you could be imprisoned and that would bring you back before me on a breach. You must report to and receive visits from a community corrections officer. You must report to the community corrections centre within two clear working days of the order starting, that is by Monday. You must let a community corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first getting permission to do so from a community corrections officer. You must obey all lawful instructions from and directions of community corrections officers and I have ordered that you are to serve 250 hours of unpaid community work over the period of two years. Are you prepared to enter this order?
44 OFFENDER: Yes Your Honour.
45 HER HONOUR: The order will also be a conviction. Yes thank you. Now I need to tell you that if you commit any offence in the next three years you will be brought back before me for breach of a suspended sentence, all right because you are on it - so that means you have got three years' gaol hanging over your head for the next three years. If you are brought back before me on breach of suspended sentence, parliament says that unless there are exceptional circumstances attached to that further offending. I have no - and I often say this to people, it basically means you have to have been committing an offence in order to save the western world from nuclear war, do you understand me? All right? You will be going to gaol - you'll be doing part of or probably all of that three years, is that perfectly clear?
46 OFFENDER: Yes.
47 HER HONOUR: Yes thank you, you can come out of the dock. Yes now what are the other orders that I needed to sign?
48 PROSECUTOR: Your Honour you've already signed a disposal order?
49 HER HONOUR: Did I?
50 MR PRIEST: That was actually signed on the last occasion.
51 HER HONOUR: All right and also pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of three years and order you serve a minimum term of 18 months.
52 PROSECUTOR: Your Honour the informant also seeks a forensic sample order. No sample has been obtained. The informant - - -
53 HER HONOUR: No. Yes, all right I think the seriousness of the offending - - -
54 DEFENCE: It's not opposed Your Honour.
55 HER HONOUR: All right have you got the forms for that?
56 PROSECUTOR: I've got the orders in triplicate Your Honour.
57 HER HONOUR: Can you stand up please Mr O'Neill? what that means is that I have ordered that police may take a forensic sample from you which will be swab from your mouth. You'll be receiving a form which will tell you about attending at the police station for that. I need to tell you that if you resist the police taking this sample they are entitled to use reasonable force in order to obtain it, all right? That's to go on their DNA database, all right.
58 OFFENCE: OK Your Honour.
59 HER HONOUR: Thank you. Have a seat. Yes thank you. That's it?
60 PROSECUTOR: Yes Your Honour, thank you.
61 DEFENCE: Yes Your Honour.
62 HER HONOUR: Yes, thank you counsel are excused.
63 DEFENCE: Thank you Your Honour.
64 PROSECUTOR: Thank you Your Honour.
65 HER HONOUR: Thank you very much. Mr O'Neill, you just sit there, we'll get you a copy. Yes thank you. Yes thank you counsel are excused. Thank you.
66 PROSECUTOR: Thank you Your Honour.
67 HER HONOUR: Thank you. You can go Mr O'Neill. Thank you very much.
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