Director of Public Prosecutions v Papalia

[2021] VCC 13

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00285

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEFFREY PAPALIA

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2021
DATE OF SENTENCE:	18 January 2021
CASE MAY BE CITED AS:	DPP v Papalia
MEDIUM NEUTRAL CITATION:	[2021] VCC 13

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Crouch	Office of Public Prosecutions
For the Accused	Mr D. McGlone	Adrian Paull Criminal Lawyers

HIS HONOUR: 

1Jeffery Papalia, on 6 November 2020 I granted your application made pursuant to ss.207 and 208 of the Criminal Procedure Act in which you sought a sentence indication.  I indicated that on a guilty plea to the charge of cultivation of a commercial quantity of cannabis and two firearm offences,
I would not impose an immediate imprisonment.

2Cultivation of a commercial quantity of cannabis is a Category 2 offence.  As a Category 2 offence, imprisonment is required unless the court is satisfied that an exempting criteria is established.  As noted in the reasons for granting the sentence indication application, the only criteria said to be relevant here was that set out in s.5(2H)(e), which relevantly reads:

'In sentencing an offender for a Category 2 offence, the court must make an order imposing imprisonment unless there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order of imprisonment.'

3Importantly, the statute goes on to say in determining whether there are substantial and compelling circumstances under sub-s.2H(e), the court
(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than any other purpose set out in s.1; and (b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and (c) must not have regard to the offender's previous good character other than the absence of previous convictions or findings of guilty or an early plea of guilty or prospects of rehabilitation or parity with other sentences.

4Further, the statute makes clear that in determining whether there are substantial and compelling circumstances, the court must have regard to Parliament's intention that in sentencing an offender for a Category 2 offence, only an order of imprisonment should ordinarily be made and whether the cumulative impact of the circumstances of the case justify the departure from such a sentence.

5As I made clear in the sentence indication decision, my reasons for finding that there were substantial and compelling circumstances that were exceptional and rare relied upon the guidance provided by the Court of Appeal decision in Farmer v Director of Public Prosecutions.  I will not repeat at length those matters here but briefly state that what is important is that the relevant matters are not merely run of the mill sentencing factors.  Thus, the lower level or the low level of moral culpability and any unique subjective factors can in combination satisfy the very high criteria for escaping the immediate imprisonment that Parliament intended for this serious drug offence.

6What stands out about this case are that so many if not all the important sentencing facts and circumstances of this example of the offence are quite uncommon and different from how and why this offence of cultivation of a commercial quantity of cannabis is usually committed.  As I said in the sentence indication reasons, and now I repeat, the usual scenario for this offence is a commercial operation set up or funded for entrepreneurial cannabis cultivation.  Ordinary domestic houses, sheds or factories are converted into high tech cannabis production operations.  Significant sums are expended in hydroponic systems and indoor high powered lighting equipment allowing rapid and strong growth all out of sight and thereby hard to detect.  Often the high amounts of power needed to allow the lighting sufficient to grow plants indoors is stolen by high risk and organised power bypass systems.

7These entrepreneurial cannabis cultivators usually stay at arm's length and employ vulnerable crop sitters to tend to the crop and absorb the punishment if the crop is detected and raided by the police.  What can be inferred is that the intent of these cultivators is to grow as much cannabis as is possible so as to maximise profits.  The plain obvious intent of those cultivators is to sell or to traffic the cultivated cannabis.  It is from beginning to end a commercial operation run by drug entrepreneurs.  This common scenario is prevalent and a scourge.  Sentences of imprisonment for all involved at all levels were almost inevitable even without the statutory requirements now established by the designation of this crime as a Category 2 offence.

8What I have described above are all the too common and indeed run of the mill features of the crime of cultivation of a commercial quantity of cannabis.  The critical features that determine the seriousness and the moral culpability of commercial drug crimes is the entrepreneurial purposes and the role of the offender in the commercial operations.  So much as been clearly established by the important drug sentencing decisions of the Court of Appeal in
Gregory v The Queen, Lytras v The Queen and Condo v The Queen.

9In my assessment of the seriousness of your cultivation, I am firmly of the view that there was no entrepreneurial or commercial aspect to your cultivation.  The scourge I spoke of arises when large amounts of harmful hydroponically grown cannabis is grown for distribution into the wider community where it does cause considerable harm.  There is nothing in this case that leads to the view that the cultivation was for wider distribution. The way the cannabis was grown in the circumstances of you being a long term cannabis user to manage your pain makes this plain.  Ultimately, the prosecution did not argue to the contrary, conceding that yours was one of those truly rare and exceptional cases where a non-custodial sentence was just and appropriate.

10As I said in the sentence indication reasons, you are a long term cannabis user.  Your current use is to manage enduring pain caused by serious degenerative deterioration in your spine and also pain caused by workplace accidents.  Your current treating clinicians including your long term general practitioner are aware of your use of cannabis to cope with your pain.   Your general practitioner supports you moving into a program of medically supervised cannabis which is now legal in this state.  It is hoped that you are able to move that program in due course.

11Over the years, in order to meet the need for cannabis without the excessive costs charged by entrepreneurial drug traffickers, you have grown cannabis in the backyard for your personal use.  Your set up is a hydroponic system but plainly there are no lights, nothing indoor or anything like what is common as I have described.  On all the evidence including the photographs, your record of interview and your medical material provided by your lawyers and also given the concession of the prosecution, I am satisfied to the criminal standard that your cultivation of cannabis is for your personal use and to manage your pain, medical problems and the collateral mental health issues.

12On 5 April 2019, the day the police raided your property, it happened to be at a time when two of your plants were at a very advanced point, the total weight of these two plants pushed the crop well beyond the 25 kilogram threshold for the cultivation of a commercial quantity of cannabis.  There were other plants and harvested cannabis, all of which confirm this was a ramshackle backyard affair where cannabis was grown for personal use to deal with pain.  As I said, the photographs of the crops make the above clear the above proposition.

13The total amount of cannabis seized was, as I best discern it, approximately 40 kilograms with about four kilograms of harvested cannabis within the house.  But as noted, far and away the bulk of the weight was within two massive plants and in turn, most of the weight of those plants was or would likely to have been very substantial stems and branches, if not properly described as trunks, rather than the usual portions of those plants.  You stated in your record of interview that you grew the plants for your own use in the backyard greenhouses and sheds.

14As to your personal circumstances, you are now 53 years old.  You have been in a relationship with your partner for many years, since 1986, when you were about 20, though there was a separation from 2008 to 2014.  Your relationship is important and you are provided significant support by your partner and also your children.

15Early in the relationship, when you were about 22, you were accidentally shot in the face by your partner's younger brother.  This event had an ongoing impact on you mainly with respect to anxiety and depression.  There was also significant craniofacial surgery over the years.

16You were raised in the Keilor area in a loving family.  After school, you completed your apprenticeship in carpentry and worked in that profession until you were the victim of the unfortunate shooting accident.  You had some carpentry work thereafter but struggled to continue long term in the industry that you were trained for.  You moved to the Leopold address in 1994. 
You worked again between 2001 and 2008.  You again gained some employment in the building industry in 2014 to 2016, however you suffered significant workplace injuries to your back in 2014 and another to your elbow in 2016.  Your employment was terminated.  You have been unable to find suitable work since.

17Shortly after the shooting incident, you took to smoking cannabis.  You have been using the drug ever since.  Your other workplace injuries have left you with serious debilitating chronic spinal pain.  Of importance is your general practitioner and your long term physiotherapist both know of your cannabis use to deal with your pain in preference to high level pain killers that you otherwise have taken and require to manage your pain.

18Your involvement in cannabis saw you in 1999 charged with trafficking in cannabis and possession and cultivation.  You received a six month suspended gaol term.  This is relevant to my sentencing considerations but it is now a dated prior matter.  What it exposes is your involvement with cannabis has been long term.  You maintain that the trafficking charge arose from the significant amount you had at your premises at the time which you say was for personal use. 

19You have had financial stressors most of your adult life, having never received compensation for the shooting or for any of the workplace injuries and you have had only intermittent work.

20The assessment done by Mr Cummins, a psychologist, led him to the opinion that you probably have complex Post-Traumatic Stress Disorder arising from your physical traumas.  He considered you need some mental health treatment and pain management.  Your general practitioner is well aware of those issues. 

21A letter from your long term general practitioner outlines his knowledge of your long term use of cannabis to manage pain and considers that you would be a suitable candidate for a medical cannabis prescription.

22Your medical problems limit the options available for punishment given that I have made clear imprisonment is not going to be imposed.  You are not someone who can do much in terms of unpaid community work.  I can require you to be under supervision which as the Court of Appeal in the important decision of Boulton made clear that supervision has a dimension of punishment.

23The assessment and report done by the Community Corrections Officer was not straightforward.  You maintain the view that growing cannabis for personal use with the knowledge of your medical practitioners ought not lead to criminal punishment.  That said, you consented to participate in a community corrections order and have pleaded guilty.  The report considers you are not suitable for drug rehabilitation, given your hopes of moving to medicinal cannabis.  It was considered that with intensive case management, if you need particular assistance, this can be arranged.

24Likewise, your mental health problems are thought to be best dealt with within the health system rather than be mandated by the Office of Corrections. 
That said, your counsel today having discussed things with you since the community corrections assessment indicated that you yourself acknowledge that you need some help with your mental health.  I consider that that is appropriate to add to the programs for your community corrections order.

25The key issue in the assessment report is the need for intensive management especially to help you engage with the NDIS system or at least the
Disability Pension system.  With your strong family support, all this would aid your overall rehabilitation.

26I have not mentioned the firearms offences that you have pleaded guilty to. 
I do not believe the ammunition or the firearms in your premises was anything other than old poorly managed remnants of earlier times when you engaged in lawful shooting activities.  The appropriate punishment for those offences can be contained or absorbed within the overall community corrections order that
I intend to impose.

27The crime of cultivation of a commercial quantity of cannabis would usually, as I have plainly said, lead to substantial terms of imprisonment.  That is to deter and to denounce that crime.  Those matters are still important as it is made clear in those references to the statute that I have read out both in the sentence indication hearing and today.  I have taken into account all those matters, but this is a rare and exceptional case where a non-custodial penalty is appropriate.

28Thus for the crime of cultivation of a commercial quantity of cannabis,
I sentence you as follows to a community corrections order for two years.  You will be under supervision, you will have to be treated and assessed for mental health problems and you will have to undergo other programs as directed by the Office of Corrections.

29For the crime of being a non-prohibited person in possession of unregistered firearms, you are sentenced to the two year community corrections order and for the crime of possession of ammunition, likewise, you are sentenced to a community corrections order, the single community corrections order that
I have announced.

30Had you pleaded not guilty to these offences and been found guilty of them,
I would have imposed a sentence of 14 months with a non-parole period of eight months.

31Now, there are two orders requiring disposal or items and I intend to make those two orders relating to the cannabis and the firearms.  Is there anything else required?

32MR McGLONE:  No, Your Honour, not as far as the defence is concerned.

33MR CROUCH:  No, Your Honour, nothing further is required.

34HIS HONOUR:  All right.  So Mr Papalia, the documents that usually are produced with respect to those who go on a community corrections order, when I say documents, you would get them, you would see them, you would sign them.  So I am just going to go through what they are.  You are on a community corrections order now for two years.  That is a lengthy period of time but that reflects the seriousness of this crime, which ordinarily would see you imprisoned and it is only because it is rare exceptional but a two year community corrections order.

35Now, there are conditions that apply to every community corrections order and they apply to you and I will just go through those.  They are, and most importantly, you must not commit any further offences for which you could be imprisoned during the course of this community corrections order.  So you cannot commit any offences which includes cultivation of cannabis, it just simply cannot occur.  Now, the other matters that I am now going to list for you are really about cooperation.  You have got to advise the Office of Corrections, inform them of any change of address, any change of employment should you get any employment.  You have got to report to the Office of Corrections, that is by phone, to the office at Geelong where you will have a phone number provided to you.  You have got to do that within two clear working days.

36You cannot leave Victoria without getting permission from the Office of Corrections to seek that permission.  You cannot leave Victoria without getting permission.  You must also comply with any of the requirements under the Sentencing Regulations.  They may require you to undergo or to provide photographs or to be photographed so that they know who you are for the programs and you also have to accept visits from the Office of Corrections and abide by all lawful instructions and directions from the Office of Corrections.

37So that is all about cooperation and it is important.  But critical amongst this, you cannot commit any further offences.  If you do, then you will breach the order and come back to me.

38Now in addition to those standard conditions, there are three conditions that are program conditions.  The first is that you are to be under the supervision of the Office of Corrections.  That will be to assist you, to manage you but to assist you in respect of many aspects of your life including assistance with disability matters.

39Now, you are to undergo any programs as directed by the Office of Corrections.  It may be there might be particular programs that might assist you.  They will know that and they will apply that.  The other matter is that
I direct that you be assessed and treated for mental health problems. 
That principally will be through your general practitioner or dovetail but there will be an oversight from the Office of Corrections.

40Do you understand those conditions, Mr Papalia?

41OFFENDER:  Yes, I do.

42HIS HONOUR:  Yes.  Do you consent to that?  In other words, in lieu of you signing a document, I will just put on that document there was oral consent at the virtual hearing.

43OFFENDER:  Yes.

44HIS HONOUR:  You do, thank you very much.  That will be signed.

45OFFENDER:  Your Honour.  Your Honour, may I say something? 
The address that you read out, 47 Allanvale, where the police raided isn't my address, I live in Simons Road.

46HIS HONOUR:  All right.  It is connected and make sure we get the right address.

47OFFENDER:  Yeah.

48HIS HONOUR:  All right, thank you very much.

49OFFENDER:  No worries.

50HIS HONOUR:  Is there anything else, Mr Crouch?

51MR CROUCH:  No, Your Honour.

52HIS HONOUR:  Mr McGlone?  No.  All right, I will sign those various documents and disposal orders, that brings this matter to an end as I see it.

53MR McGLONE:  As Your Honour pleases.

54OFFENDER:  Thank you, Your Honour.

55HIS HONOUR:  If you could just telephone Mr Papalia in due course.  If you go offline and then I will talk to my staff about other matters that we have to deal with.

56MR McGLONE:  If I may be excused then, Your Honour.

57HIS HONOUR:  Thank you very much.

58OFFENDER:  Thank you, Your Honour, thank you.

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