Director of Public Prosecutions v Palmerston (a pseudonym)
[2025] VCC 890
•26 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY PALMERSTON (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2025, 26 June 2025 | |
DATE OF SENTENCE: | 26 June 2025 | |
CASE MAY BE CITED AS: | DPP v Palmerston (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 890 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Cultivation of a narcotic plant – theft – possess a drug of dependence (MDMA) – Drug and Alcohol Treatment Court – early plea of guilty – mental health – substance use
Legislation Cited: Sentencing Act1991 (Vic)
Cases Cited:Bugmy v The Queen 249 CLR 571;
Sentence: Drug and Alcohol Treatment Order for a period of 20 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Steve Tamburro | Office of Public Prosecutions |
| For the Accused | Mr William Barker | MC Lawyers & Associates |
HER HONOUR:
1Timothy Palmerston,[1] on 20 June 2025 you appeared before me at a Determination Hearing in the Drug and Alcohol Treatment Court in relation to indictment P12632251.1 containing one charge of cultivation of a narcotic plant, namely cannabis, in not less than a commercial quantity; one charge of theft of electricity; and possessing a drug of dependence, namely MDMA.
[1] A pseudonym.
2In the course of the arraignment you admitted one very minor and unrelated prior offence.
Circumstances of offending
3The circumstances of your offending are detailed in the summary of prosecution opening upon plea dated 3 October 2024, which is the agreed basis upon which you are to be sentenced.
4On 11 December 2023 the police drove past a property in Altona Meadows, and observed a white van reverse parked in the driveway. The van was registered in your name. You had rented the property from its owners about two and a half years earlier.
5On 13 December 2023, the police executed a search warrant at the property. Your co-offender, who is also your cousin and friend opened the front door and allowed police to enter the house. You were located by the police in the front bedroom. Upon searching the property, the police found cannabis being grown using hydroponic set-ups in two rooms in the house and in a garage at the rear of the property.
6The first room contained a hydroponic set-up with 54 smaller cannabis plants weighing a total of 5.75 kilograms. The second room housed 24 larger cannabis plants weighing 39.50 kilograms, with a further 27 larger cannabis plants located in the hydroponic set-up in the garage weighing a total of 44.50 kilograms.
7There was a security system set up the enabled monitoring of the premises.
8The police also located and seized two Ziploc bags containing 5.3 grams of dried cannabis and 19 Valium tablets that belonged to your cousin.
9The police also located and seized a Ziploc bag containing 14.4 grams of dried cannabis in a cupboard above the fridge in the kitchen, another Ziploc bag containing 72.4 grams of dried cannabis inside a tub on the floor beside the kitchen bench, and a glass jar with one gram of dried cannabis inside a tub on the floor of the pantry.
10In total, the police seized 105 cannabis plants weighing 89.75 kilograms, which is the subject of Charge 1, cultivation of a narcotic plant in a commercial quantity. The total weight of the dried cannabis found at the property was 93.1 grams.
11An electrician who attended the premises at the request of police identified an illegal electrical bypass connected to an unmetered main, enabling electricity to be stolen. The value of the stolen electricity is not known. This is the subject of Charge 2, the charge of theft.
Nature and gravity of offending
12The offence of cultivation of a narcotic plant in a commercial quantity is an inherently serious offence. Not only is it punishable by a maximum term of imprisonment of 25 years, but Parliament has designated it as a Category 2 offence and usually that means that you must receive a custodial sentence (other than a term of imprisonment in combination with a Community Correction Order). To avoid that kind of sentence in ordinary circumstances, you would need to satisfy that there is a special reason that exist.[2] The consequence of this categorisation however does not interrupt your eligibility for a Drug and Alcohol Treatment Order. It does reflect Parliament's very real concern that people who trade in commercial quantities of drugs should receive condign punishment usually involving significant terms of imprisonment.
[2] Sentencing Act1991 (Vic) s 5(2H).
13The Court of Appeal has consistently stated that the sentencing regime for drug trafficking offences is quantity based and while the quantity involved is not determinative of the court's assessment of the objective gravity of the offence, it will always be of importance. All things being equal, the greater the quantity trafficked, cultivated imported or attempted to be possessed, the more serious the offence. However, there are other important indicators of offence seriousness such as the role of an offender, the duration of the offending and the motivation behind the offending.
14In your case, a total of 89.75 kilograms of cannabis was cultivated from 105 plants. This is 3.5 times the commercial threshold for a commercial quantity. Yours was a sophisticated hydroponic set-up with two rooms in the house and the garage utilised to cultivate the cannabis, all facilitated by an electrical bypass to steal the electricity required for the plants to mature indoors. This was clearly a commercial operation. In addition to the cannabis under cultivation, dried cannabis was also located in Ziploc bags, including one containing 72.4 grams and in a glass jar in the house, although I note this is not the subject of a charge and you do not fall to be sentenced for possession of this cannabis.
15You had rented the property over two years earlier and your van was located there. I accept that your role is somewhat higher than that of your co-offender as a result of you having taken these actions.
16In terms of duration of offending, it is clear that the cannabis had been cultivated over some time, there were larger plants that had been grown in two of the rooms. However, you have been charged with cultivation, theft and possession charges relating to a single day only, that being 13 December 2023. This was the day of police attendance, the search and your arrest. You will be sentenced on this basis.
17Charge 3, possession of a drug of dependence relates to 1.4 grams of MDMA, although this is above a small amount it is below the trafficable quantity applicable to this drug. I understand it to be accepted, that this drug was possessed for your own use.
18Overall, I assess that you played a significant role in the cultivation of the commercial quantity of cannabis. You were the owner of the cannabis and the owner of the set up. You were one of the people who came up with the idea to grow the cannabis and you were involved in at least some of the set up. It would appear your motivation revolved around your involvement in drug use and addiction.
Background
19You were born in May 1991 in Sunshine and you were 32 at the time of the offending. You are now 34.
20You are an only child to the union of your mother and father. However, you have four step-siblings, as a result of your father's new relationship. Your mother suffers from significant health issues and has never worked. You have cared for your mother in an official capacity from the age of 16 and you continue to do so.
21Your father was a mechanic by trade but suffered a major heart attack over ten years ago. You were with him at the time and literally held him in your arms as you waited 50 minutes for an ambulance to arrive. Your father survived this catastrophic event however he sustained a degree of brain damage. As I have mentioned your father has entered a new relationship and you have limited if any contact with him.
22You have been in a stable and significant relationship with your partner for over 6 years. A testimonial was provided by your partner to the court which confirms your relationship is a loving and supportive one.
23In terms of education, your schooling was limited and you left after Year 7 to care for your mother. You have not studied since. You struggled with English and Math and continue to have difficulties reading and writing. You have adapted and are able to function by using different applications on your phone to communicate and read text messages.
24Given your role as a carer for your mother, you have not had consistent paid employment during your adult life. You enjoy working on cars and have skill in this area buying used or damaged cars and motorbikes and fixing them up to on sell. You have been consistent in this activity whilst on bail. In your younger years you did mowing, gardening and maintenance work for your neighbours.
25In 2013, your uncle was shot by police. You saw your uncle in hospital covered in blood from his injuries. This was a significant and devastating experience that has formed part of the basis for your later diagnosis of PTSD.
26During the pandemic you had a very severe case of Covid-19. You spent a period of time in a coma and subsequently you were an inpatient at hospital. Given the strict rules that applied during lock down you were isolated and alone. Post your hospital stay you had to learn to walk again and struggled with daily tasks. This illness and your experience in hospital has had a lasting impact. You also suffer from Type II diabetes and this also has a significant impact on your life.
27After the loss of your uncle and your father’s heart attack, you began to abuse drugs. It began with cannabis and cocaine and led to you growing cannabis in the current matter. Since your arrest you have been referred and have been receiving treatment from Dr Paul Grech. A report from Dr Grech was tendered on your plea.
28Currently, you live with your mother in stable accommodation. You have ongoing carer obligations in relation to your mother. You understand there will likely be some adjustment to using public transport for the early portion of any Drug and Alcohol Treatment Order and that you will be required to give supervised drug screens which may be confronting for you. I understand you to be motivated to become abstinent and improve your overall health and wellbeing, so that you can be a better carer for your mother and a better partner. I hope that you also want to gain something from yourself from undertaking a Drug and Alcohol Treatment Order.
Plea of guilty
29Your plea of guilty was entered at the earliest opportunity, that was at committal mention. I accept that your plea of guilty has significant utilitarian value and that you have facilitated the course of justice. I accept the submission of your counsel that the profound importance of a plea of guilty should not be undervalued and the discount should not be illusory and must be reflected in the actual sentence. I propose to allow a significant discount for your early plea.
Parity
30The principles that govern parity are well established. Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. The prosecution identified the circumstances of the co-offender as being 29 years old, having a lesser role, having no financial interest, being from a dysfunctional background and having been exposed to violence in his early years, also drug abuse, removal from his home by child protection, loss of a grandfather at 13 years of age where his grandfather was his carer and the application of Bugmy principles.[3] I understand you know the co-accused very well. He is a friend and cousin. Notwithstanding these circumstances which raise some differences between you, the prosecution submit that parity remains a relevant consideration in formulating a sentence in the current matter. As best I can, I have weighed these considerations into the sentence I intend to impose noting that there are important differentiating factors in each of your cases that justify a degree of disparity.
[3] Bugmy v The Queen 249 CLR 571.
Background/upbringing
31Although you have suffered deprivation and disadvantage through your childhood I did not understand your counsel to be relying upon the principles in Bugmy.[4] Rather, Mr Barker on your behalf submitted that your circumstances and experience during your childhood and your formative years are relevant to understanding the man to be sentenced by the court. You struggle with literacy and numeracy, you have had limited schooling, you are plagued by low self-esteem and low confidence and you were witness to family violence and other traumatic events during your early life.
[4] Ibid.
32I accept that these factors have relevance in the sentencing synthesis and agree with the submission of your counsel, that these issues in themselves tend to support that intensive treatment that will be provided under a Drug and Alcohol Treatment Order are appropriate for you.
33Your issues with poor mental health are also relevant in the same way. As I understand, you suffer from various mental health difficulties as revealed in the report of Dr Grech dated 14 March 2025. These include severe PTSD, anxiety, and depression. It is clear to me that these issues have plagued you for a long time and have no doubt played a role in your ongoing use of drugs, which has been accepted as a cause for the offending.
Matters relevant to the making of a DATO
34The purposes of a Drug and Alcohol Treatment Order as outlined in the Sentencing Act are to facilitate your rehabilitation, take account of your drug or alcohol dependency, to reduce the level of criminal activity associated with drug or alcohol dependency, and to reduce your health risks associated with drug or alcohol dependency.[5]I must regard your rehabilitation and the protection of the community from you, achieved through your rehabilitation, as having greater importance than the other sentencing purposes such as denunciation and general deterrence.
[5] Sentencing Act1991 (Vic) s18(1).
35Having considered the criteria for the making of a Drug and Alcohol Treatment Order set out in s18Z of the Sentencing Act,[6] and having carefully considered the Clinical Advisor Assessment Report, the Case Manager Assessment Report, the written and oral submissions of both your counsel and the prosecution, I indicated at your determination hearing last week that I was satisfied that it was appropriate in all the circumstances to make a Drug and Alcohol Treatment Order in your case.
[6] Ibid s18Z.
36On the balance of probabilities, I am satisfied that you are dependent on drugs or alcohol, and that your dependency contributed to the commission of the offences now before me.
37My decision to impose a Drug and Alcohol Treatment Order in your case has been informed by the assessment reports provided from the Drug and Alcohol Treatment Court clinical adviser and case manager. All have assessed you as suitable for a Drug and Alcohol Treatment Order.
38In her report dated 21 May 2025, Clinical Advisor Nicky Luo found that your recent drug use involved MDMA, GHB, cannabis and cocaine. You have not previously engaged in treatment for your AOD problems and you are motivated to do so now as you want to make positive changes to your life including building your self-confidence and self-esteem. Ms Luo's report also detailed that you have significant issues with gambling that you are hoping to address through treatment.
39Case manager Louise Henderson detailed in her report dated 25 May 2025 that you did not express concerns about your ability to comply with a Drug and Alcohol Treatment Order. You identified your motivation as wanting to better yourself and needing access to treatment. You are also scared of gaol and fear a term of imprisonment. Ms Henderson noted you had worked as a tiler, mechanic and as a gardener and landscaper. You told Ms Henderson that you currently live with and care for your mother, you have no contact with your father, you have a partner with whom you have been with for six years and you have two close friends who are like brothers to you. Further, you indicated you have an interest in buying cars and motorbikes to repair and on sell.
40Ms Henderson undertook an assessment of your mother's home and considers it is a suitable address. She noted that you have significant carer responsibilities with your mother that involve driving her to appointments, organising her diary, managing medication and helping her to pay bills. Ms Henderson noted you have some concerns around supervised urinalysis. Although she had some reservations, you have been assessed as suitable for the order by her.
41Mr Palmerston, you have admitted current drug use which calls into question whether you should be driving. I understand you have been made aware of the likelihood that a condition of the Drug and Alcohol Treatment Order will be you do not drive. This can be revisited when abstinence is achieved.
Sentence to be imposed
42In relation to all charges, you are convicted and placed upon a Drug and Alcohol Treatment Order (DATO). The DATO will commence today. You will need to go down to Drug Court House today for an orientation.
43Mr Palmerston, a Drug and Alcohol Treatment Order has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts which are as follows.
44The core conditions, which are that:
(a) you must not commit whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;
(b) you must attend Drug Court when required by the Court to do so;
(c) you must report to the Melbourne Drug Court house within two clear working days after the Order is imposed;
(d) you must report to and accept visits from the members of the Drug Court;
(e) you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;
(f) you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;
(g) you are not to leave Victoria without the permission of the Drug Court; and
(h) you are to obey all lawful instructions and directions from the Drug Court team.
45The core conditions will operate for 20 months, or until further Order.
46The program conditions, which are that:
(a) You comply with the Individual Treatment Plan dated 05 February 2025
(b) you must submit to drug and alcohol testing as directed;
(c) you must submit to detoxification or other treatments specified in the Order as directed;
(d) you must attend vocational educational and employment programs as directed;
(e) you must submit to medical, psychiatric and psychological treatment as directed;
(f) you must reside at accommodation as directed by the Drug court team;
(g) you are not to use a drug of dependence without lawful authorisation;
(h) you are to abstain from alcohol;
(i) you are to do or not do anything else that the Drug Court considers necessary or appropriate concerning (i) your drug and alcohol dependency; and (ii) the personal factors that the Drug Court considers contributed to your criminal behaviour;
(j) you are to comply with the curfew that you remain at the address as directed by the DATC Team between the hours of 9:00 PM and 6:00 AM. This curfew is required until further order; and
(k) you are not to drive or operate a motor vehicle until further order of the court.
47These program conditions will operate for two years or until further order.
48The custodial part of the Drug and Alcohol Treatment Order is the term of imprisonment that I would have imposed had I not placed you on a Drug and Alcohol Treatment Order, and that is a term of imprisonment of twenty months. That is made up as follows:
49Charge 1 of cultivate a commercial quantity of a narcotic plant 20 months; Charge 2 of theft, one month and; Charge 3 of possession of drug of dependence you are convicted and discharged. The sentence on Charge 1 is the base sentence and I order the sentence on Charge 2 be served concurrently. This makes a total effective sentence of 20 months.
50Pursuant to section 6AAA of the Sentencing Act1991, had you pleaded not guilty but been found guilty at trial, I would have sentenced you to a total effective sentence of three years and three months and a non-parole period of two years and three months.[7]
[7] Sentencing Act 1991 (Vic) s 6AAA.
51I will take into account that there is two days pre-sentence detention and declare that that will be entered into the records of the court.
52I have got the individual treatment plan which you need to sign, so I will get that handed down and I will get you to sign that. Can I just get you to come out and have a seat, perhaps sort of just near Mr Barker there at the Bar table. I just want to formally welcome you to Drug Court, okay?
53There are two main things that I want you to do. The first is you need to be a hundred per cent honest, okay.
54OFFENDER: Yep.
55HER HONOUR: The second thing, 110 per cent just really give it your all. I know that you have got lots of things on the go, but this is real opportunity for you.
56OFFENDER: Yep.
57HER HONOUR: Okay, all right. Thanks very much to counsel.
58MR BARKER: As Your Honour pleases.
59MR TAMBURRO: As Your Honour pleases.
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