Director of Public Prosecutions v Papaiacovou
[2024] VCC 307
•15 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-01612
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN PAPAIACOVOU |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 February 2024 |
| DATE OF SENTENCE: | 15 March 2024 |
| CASE MAY BE CITED AS: | DPP v Papaiacovou |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 307 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Charges of cultivating a narcotic plant in a commercial quantity, possession of a drug of dependence and a rolled-up charge of failing to answer bail – early plea of guilty – warrant for arrest at time of offending – prior criminal history – no exception under s 5(2H) – remorse – uncertain prospects of rehabilitation – Renzella time.
Legislation Cited: Sentencing Act 1991 s5(1), s5(2H), s16(3C).
Cases Cited:Nguyen v R [2021] VSCA 211; Worboyes v R [2021] VSCA 169; El-Waly v R [2012] VSCA 184.
Sentence: Total effective sentence of 29 months’ imprisonment. Non-parole period set at 19 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Zurebckyj | Office of Public Prosecutions |
| For the Offender | Mr N. Sood | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1John Papaiacovu, I propose to sentence you to a total sentence of 29 months’ imprisonment and will set a non-parole period of 19 months’ imprisonment. I will declare your 269 days of pre-sentence detention as time served under my sentences.
2You pleaded guilty to a charge of cultivating a narcotic plant in a commercial quantity, possession of a drug of dependence and a rolled-up charge of failing to answer bail.
3The circumstances of your offending are set out in the prosecution opening on plea which is exhibit A. You agree with its contents.
Circumstances
4On 20 June 2023, police searched a residence in Campbellfield where you had lived for about a year. The police found 105 cannabis plants in rooms of the house and the garage:
(a) in what is called 'Room 1' in Exhibit A, 13 plants weighing 19.80 kilograms;
(b) in Room 2, nine plants weighing 28.60 kilograms;
(c) in Room 3, nine cannabis plants weighing 2.55 kilograms;
(d) in Room 4, 15 cannabis plants weighing 43.30 kilograms; and
(e) in the garage, 18 cannabis plants weighing 2.77 kilograms; 38 small cannabis plants weighing 195.8 grams; and three juvenile cannabis plants weighing 10.8 grams.
5You were present at the time of the search and were arrested. You wore a jacket and in one of its pockets there was a zip lock bag containing loose cannabis weighing 16.1 grams.
6The contents of the rooms and the garage constitute the charge of cultivation of a commercial quantity of a narcotic plant and the contents of the zip lock bag, the charge of possession of a drug of dependence. Apart from the contents of the zip lock bag, there were 105 cannabis plants weighing a total of
97.22 kilograms.7At the time of this offending, there were five unexecuted warrants for your arrest, including two for failing to answer bail on the following occasions:
(a) at the Magistrates Court at Broadmeadows on 15 May 2023; and
(b) at the Magistrates Court at Melbourne on 2 March 2023.
8These matters constitute the rolled-up charge of failing to answer bail.
9The house contained a sophisticated hydroponic cultivation system including electrical wiring and an electrical bypass, water containers, scales, chemicals, heaters, pumps, timers and written instructions on the growing of cannabis.
10The police interviewed you. You admitted to only watering the plants. You denied trafficking. This denial was shown to be false by the contents of your mobile phone and transactions in your bank account. Paragraph 10 of Exhibit A sets out the content of 22 short messages and conversations found on your mobile phone. They were sent and received between 26 May and 20 June 2023. The messages often involve you soliciting others to obtain cannabis from you. Where money is mentioned, the amounts are relatively small.
11Among the messages were two screenshots of deposits into your bank account from someone called 'Skye'. Skye is not mentioned in the other messages. The messages containing the screenshots were sent on 26 May and 9 June 2023. They mention $150 and $100 respectively.
Criminal history
12Between 3 November 1997 and 23 May 2022, you have appeared in a criminal court in this State and New South Wales on 16 occasions and have been found guilty or convicted of 68 charges. You have been sentenced to imprisonment on two occasions with your longest sentence being six months. This was imposed on 27 March 2014 to charges of contravening the conditions of an intervention order and failing to answer bail. A significant number of the other charges relate to drugs.
Personal
13You are now 49. You were raised in the northern Melbourne suburb of Reservoir to Greek parents. Your parents are still alive and are in their 80s. You have an older sister, Magdeline, who wrote a letter supporting you.
14You grew up within a large supportive Greek community and your family life was stable. Your formal education was unexceptional with you completing Year 12 in 1990. You started a graphic design course at a TAFE but did not finish for you wanted to work. Since 1990 you have been continuously employed in a variety of occupations with the majority as a truck driver. Your last employment ended with your remand in custody.
15After leaving secondary school, a friend introduced you to cannabis. You have used cannabis since then. You see the drug as having therapeutic benefit for you and after your release you will seek its prescription by a medical practitioner.
16In 1998, you formed a relationship with Renee. There are five children, aged between 14 and 25. The relationship ended in 2010. You believe Renee was unfaithful. You left the home after Renee asked you to do so. However, an intervention order was granted where you were the respondent and it prevented you from contacting her. You went to live with your parents.
17You applied unsuccessfully to a Commonwealth court seeking the custody of your children. Somehow your failure to gain custody has also seen you lose contact with your children. Finally, the cost of the proceeding saw you lose your interest in your home and your savings.
18Although you have a criminal record starting in 1994, significant offending is seen following the breakdown of your relationship. It starts on 28 September 2011 with a suspended sentence of imprisonment for contravening the intervention order. This sentence was suspended for 18 months but only two months later, on the charge of contravening the suspended sentence order, that sentence was restored in full. At the same hearing there were other charges to which you were sentenced to two months’ imprisonment. Apart from violence offences, there was a charge of cultivating a narcotic plant, being cannabis.
19In June 2022 you were told to leave your parents’ home. Thereafter, you spent much of the time living in your car. At the time of these offences, you were otherwise homeless.
Discussion
Purposes
20Section 5(1) of the Sentencing Act sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated
(d) to manifest the denunciation of the type of conduct the offender engaged in;
(e) to protect the community from the offender.
21Each of those sentencing purposes is relevant to your sentencing.
Maximum penalties
22The maximum penalties for the offences are:
(a) cultivation of a narcotic plant in not less than a commercial quantity – 25 years’ imprisonment;
(b) possession of a drug of dependence (for a trafficking purpose) – five years’ imprisonment;
(c) failing to answer bail – a fine of 30 penalty units or three months’ imprisonment.
Nature and gravity of the charges
23You met a person called ‘Alex’ at a hotel. After learning you were homeless, Alex offered to allow you to live at his property in Campbellfield and give you small quantities of cannabis if you cared for his cannabis crop. You were given the key to the house and resided there once or twice a week over about a year. You cared for the crop and also provided small amounts of cannabis to your friends for money.
24When the police arrived at the Campbellfield address, they found a widespread and sophisticated scheme for growing cannabis. Your counsel describes your role as a 'crop sitter'. You admitted to the police you looked after the plants by watering them. You did not set up the scheme or contributed to it financially. You were not paid anything or shared in the proceeds of the sale of the crop. You did receive accommodation and small quantities of cannabis. The cannabis enabled you to supply others with small quantities of cannabis. Your possession of 16.1 grams is indicative of your supply. The evidence does not permit a finding beyond that of a 'crop sitter' except you received quantities of cannabis, which you used yourself and supplied to others. To a limited extent you received 'financial enrichment', as the prosecution puts it. However, apart from that, I would not infer your role was greater than that.
25The quantity of cannabis is ordinarily of critical importance in sentencing[1]. Both the number of plants and their weight exceed the threshold with the weight being four times the threshold. The crop itself was supported by a sophisticated hydroponic set-up in the house and garage including electrical wiring, an electrical bypass, water containers, heaters, foil, insulation, pumps and timers.
[1]Nguyen v R [2021] VSCA 211 at [30].
26Your counsel concedes your possession of the cannabis found on you was for the purposes of trafficking. The weight of 16.1 grams is a relatively modest amount.
27The cultivation offence is a Category 2 offence under the Sentencing Act. This means I must impose a sentence of imprisonment for that charge, unless an exception under s5(2H) of the Sentencing Act exists. No exception is said to exist.
Guilty pleas
28Your intention to plead guilty was made known at the first committal mention hearing on 12 September 2023. In terms of timing, this was at the earliest reasonable opportunity.
29By pleading guilty you have taken responsibility for your offending. Your pleas have the practical effect of assisting the criminal justice system. It creates room for those proceedings which genuinely require a jury trial. It relieves witnesses of the burden of giving evidence in the court.
30Even though the problems caused by the virus to the criminal justice system have greatly lessened, they have not disappeared. The sense of crisis expressed by the court in Worboyes v R[2] has almost disappeared. On 5 May 2023, the World Health Authority declared the virus was no longer a public health emergency. Later in 2023 the Chief Judge of this court announced the backlog of cases created by the pandemic had been overcome. Nevertheless, criminal jury trials are still made difficult by the effects of the virus, affecting witnesses, jurors and other participants. Accordingly, even now a guilty plea deserves a greater discount on sentence than would be the case in normal times.
[2][2021] VSCA 169.
31Overall, your guilty pleas deserve a significant discount on the sentences which would have been imposed in their absence.
Prospects of rehabilitation
32I will treat your guilty pleas as evidence of your remorse. Your sister’s letter speaks of your remorse. I accept you are remorseful.
33You have used your time in custody profitably by completing subjects in a Certificate 2 in Skills for Work and Vocational Pathways, a Certificate 3 in civil construction and programmes called 'Cannabis and Me' and 'Know the score AOD program'.
34I note your desire to seek a prescription for medicinal cannabis following your release. Whether you obtain a prescription remains to be seen but at least your intention is commendable.
35Contrary to your counsel’s submissions, I would not consider your prospects of rehabilitation as strong. Too much has happened since the breakdown of your relationship. Your sister says you are distressed by the breakdown of your family unit. I accept that is so. She says it has had a negative emotional impact on you and I can accept that. But identifying the effect tells me little about whether you have overcome your distress sufficiently to become a law-abiding member of the community. Whether you can translate your remorse into a successful determination not to re-offend is uncertain.
36Your criminal history is littered with drug charges including charges of trafficking cannabis and cultivating cannabis. On 23 May 2022, you were fined $4,000 for charges including possessing cannabis and methylamphetamine. Plainly, you took little notice of that penalty. Your continuous employment sits oddly with your criminal history. Psychologically, I suspect there is much more involved than revealed in the materials placed before me.
37Despite the prosecution’s submission that your prospects are reasonable at best, I am not so confident. Notwithstanding the support of family and friends, I consider they are uncertain. The suggestion of seeking medical prescription for medicinal cannabis is positive but seems half-baked in light of your longstanding addiction to cannabis.
Renzella
38Your counsel raised the total of 160 days you spent on remand where the charges resulted in a non-custodial sentence. This arose between
27 November 2014 and 6 May 2015.39In the case of El-Waly v R, the court said[3]:
'The relationship between s18 of the Sentencing Act 1991 and the principles in Renzella can be summarised as follows:
(a) Section 18 permits the period during which an offender is on remand for more than one set of offences at the same time to be declared as pre-sentence detention when the offender is first sentenced. Although the period spent in remand must relate to the offences for which the offender is being sentenced, it is not necessary, as was previously the case, that the period relate only to those offences;
(b) If an offender is detained on remand for one offence while serving a sentence for another, s18 does not apply for the period during which the offender was on remand;
(c) The Renzella discretion permits a sentencing judge to take account of a period which the offender spent in custody which is unrelated to the offence for which the offender is currently being sentenced, even if that period is not covered by s18;
(d) The Renzella discretion was originally exercised in circumstances where with hindsight the offender should not have spent a period in custody for earlier alleged offences;
(e) Where Renzella applies the court may take account of the whole period during which the offender was in custody, or some lesser period.'
[3][2012] VSCA 184 at [111]-[112].
40I will take the entirety of the period of 160 days into account when sentencing you.
Current sentencing practices
41The prosecution referred to several judgments of the Court of Appeal and to the sentencing snapshot of the Sentencing Advisory Council in relation to
Charge 1.Section 16(3C)
42Section 16(3C) of the Sentencing Act provides:
'Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences, must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term'.
43I will accumulate the sentences on Charges 2 and 3. I see no reason to direct otherwise.
Sentence
44On Charge 1, a charge of cultivating a narcotic plant in not less than a commercial quantity, I sentence you to 24 months’ imprisonment.
45On Charge 2, a charge of possession of a drug of dependence, I sentence you to four months’ imprisonment.
46On the remaining summary charge, a charge of failing to answer your bail, I sentence you to one month imprisonment.
47The sentence on Charge 1 is the base sentence. The sentences on Charges 2 and 3 will be served cumulatively upon themselves and the base sentence. The total sentence is 29 months’ imprisonment and I will set a non-parole period of 19 months’ imprisonment.
48Your counsel submitted I should set a longer than normal non-parole period. I can see no justification for that course.
49You were arrested on 20 June 2023 and have remained in custody since then. Up to and including 14 March 2024, you have been in custody for 269 days. I declare those 269 days of your pre-sentence detention as time served under my sentences today.
Section 6AAA
50If you had not pleaded guilty to these charges but had been found guilty after a trial, I would have sentenced you to a total sentence of 43 months’ imprisonment.
Forfeiture
51I will make the forfeiture order in the terms of the document entitled 'Amended Forfeiture Order'.
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