Director of Public Prosecutions v Parry
[2020] VCC 1394
•3 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02121
CR-19-02547
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COREY PARRY AND DYLAN PSAILA |
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JUDGE: | HIS HONOUR JUDGE MEREDITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 August 2020 | |
DATE OF SENTENCE: | 3 September 2020 | |
CASE MAY BE CITED AS: | DPP v Parry & Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1394 | |
REASONS FOR SENTENCE
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Subject: Cultivate cannabis and other offending
Catchwords: Parry - Commercial quantity
Psaila – Simplicitor aid and assist
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Leigh Harrison | Solicitor for the Office of Public Prosecutions |
| For the Accused Parry | Mr Alex Patton | Theo Magazis & Associates |
| For the Accused Psaila | Ms Julie Buxton | Valos Black & Associates Solicitors |
HIS HONOUR:
1 Corey Parry and Dylan Psaila, you have both pleaded guilty to charges which arise from a police raid at premises in Braybrook which uncovered a hydroponic cannabis growing enterprise.
2 Corey Parry, you have pleaded guilty to Charge 1 of cultivating cannabis in a commercial quantity between 13 March and 5 June 2019, which has a maximum penalty of 25 years’ imprisonment. You have also pleaded guilty to Charge 2 of theft of electricity, again between 13 March and 5 June 2019, and Charge 3 of being a prohibited person possessing a firearm on 6 June 2019. Charges 2 and 3 each have maximum penalties of 10 years’ imprisonment. You have also pleaded guilty to five charges of possession of a drug of dependence; namely, Charge 4 of possession of cannabis, having a maximum penalty of five years' imprisonment; Charge 5, possession of ecstasy; Charge 6, possession of stanozolol; Charge 7, possession of drostanolone; and Charge 8, possession of testosterone. In the case of Charges 5 to 8, the maximum penalty is one year’s imprisonment.
3 You have also pleaded guilty to Summary Charge 9 of possessing a prohibited weapon without exemption or approval, namely a Taser. This has a maximum penalty of two years’ imprisonment, and Summary Charge 12 of possessing ammunition without a licence, having a maximum penalty of 40 penalty units.
4 Dylan Psaila, you have pleaded guilty to one charge of cultivation of cannabis, also between 13 March and 5 June 2019, namely Charge 1. This has a maximum penalty of 15 years’ imprisonment. In addition, you have pleaded guilty to Summary Charge 7 of driving whilst suspended, having a maximum penalty of two years’ imprisonment.
5 A prosecution summary was tendered on the plea hearing and this will remain on the Court file. Having regard to this, I will summarise the circumstances of your respective offending in lesser detail.
6 At the time of your offending, Mr Parry, you were 28 and you are now 30 years of age. Mr Psaila, you were 23 and are now 24. You are both cousins.
7
Mr Parry, you were the lessee of factory premises in Braybrook and on
5 June 2019 in the afternoon, police attended at the factory and, as a result of their search and seizure, cannabis and the plant and equipment necessary for the hydroponic cultivation of it were discovered and seized.
8 Prior to entering the premises police observed a white utility and you, Mr Psaila, leaving the factory and driving away in this vehicle. Police conducted an intercept and discovered that you were in the vehicle with Jordan, the four year old son of your cousin, Mr Parry. Shortly thereafter police entered the factory, using keys which they had obtained from you, Mr Psaila. Mr Parry, you were found within and arrested.
9 The police search of the premises revealed that seven rooms within the factory contained cannabis plants at different stages of growth. They were being grown hydroponically, under artificial lighting and a power bypass was in operation. The details of the growing enterprise are contained within the prosecution opening and I do not need to particularise it for the purposes of these reasons.
10 The total number of plants seized was 660 cannabis plants which weighed 102 kilograms. Botanical analysis estimates the age of the plants in two of the rooms, namely, those in Room 4 as 12 to 14 weeks old and those in Room 7, as 13 to 15 weeks old. Rooms 4 and 7 respectively contained 42 and four cannabis plants.
11 Police also located a red Commodore vehicle parked within the factory and inside it, in a case, was a Taser. This constitutes Summary Charge 9 for you, Mr Parry. The operating electrical bypass constitutes Charge 2 of theft of electricity.
12 When interviewed, Mr Parry, amongst other things, you stated to investigators that you had been trying to find the Taser that police discovered in the vehicle. That you ran the factory and it was solely you, without Dylan Psaila helping you, and that you engaged in all the labour, electrical and plumbing, and everything. That you had undertaken the electrical bypass and you are the one involved in selling the crop. You stated that Dylan Psaila was helping you as you had lost your licence, and his role was limited to driving items to you and driving you around as you had lost your licence.
13 When interviewed, Mr Psaila, you responded, 'No comment', to all questions that were put.
14 In the early afternoon of 6 June, police executed a search warrant on your residence, Mr Parry. During the search of these premises police found the drugs and firearm that you are charged with possessing.
15 Investigators located within the roof of the property, and concealed under an insulation bat, a double-barrel sawn-off shotgun and several shotgun rounds within a plastic bag. This constitutes Charge 3 and Summary Charge 12.
16 Investigators also located 14 tablets of MDMA weighing 6.5 grams, 21 tablets of drostanolone derivative weighing 1.8 grams, 20 tablets of stanozolol weighing 1.8 grams, and three glass vials containing a testosterone derivative weighing 21.8 grams. Respectively, these items constitute Charges 5, 6, 7 and 8.
17 Having regard to the nature of these substances and the circumstances in which they were located, as well as the submissions of your counsel, I am satisfied that you possessed these for a purpose unrelated to trafficking.
18 Police also located a zip-lock bag containing 74.5 grams of chopped cannabis. This constitutes Charge 4. You admitted to police that you grew and intended to sell this. This came from your growing enterprise. There is a factual overlap with Charge 1. Whilst possession is an offence having differing elements to that of cultivation, in imposing sentence for Charge 4 I am conscious of the need to avoid doubly punishing you. This is in circumstances where the prosecution put your cultivation on the basis that you were the principal and in possession of the crop. In these circumstances if follows that there is a close nexus with your later possession of the cannabis which you had already grown.
19 On 11 and 12 June 2019, police searched a storage container linked to both of you, Mr Parry and Mr Psaila, through your mobile telephone numbers. That is, your phone numbers were provided to the lessor as contact numbers regarding the storage facility. During the search, police discovered plant and equipment related to the cultivation of cannabis, detailed in the opening.
20 Analysis of CCTV footage obtained from the factory premises shows you, Mr Psaila, attending these premises on various occasions with Mr Parry. On one of these occasions you are seen to be carrying items into the factory, namely fertilizer, and on another occasion, air filtration pieces. The CCTV footage recovered spans the period 6 December 2018 to 20 January 2019. Thus it predates the charge period of your offending.
21 CCTV footage from the real estate office involved in managing the relevant factory premises also shows you, Mr Psaila, attending on 3 June 2019 to pay rent on the factory premises.
22 Mr Psaila, you have pleaded guilty to cultivating cannabis simpliciter. Mr Parry, you have pleaded guilty to cultivating a commercial quantity of this plant.
23 The prosecution concede that you, Mr Psaila, had knowledge that Mr Parry was cultivating cannabis and that you assisted in the cultivation of the cannabis as set forth in the summary, however, in light of the fact that a matter in aggravation of your sentence must be established beyond reasonable doubt, the prosecution concede that they cannot establish that you were aware of the quantity being cultivated by Mr Parry. Whilst your guilty plea is an acknowledgement of all of the elements of the offence, the prosecution concede that they are unable to prove precisely what your state of knowledge regarding the extent of the cannabis under cultivation was, and concede that it was somewhat lesser than that of a commercial quantity. The prosecution concede that they cannot establish that you had knowledge of the total number of rooms that were utilised for growing, nor the number of plants within each room. It is further conceded that it cannot be established that you had knowledge of the plant and equipment stored in the shipping container.
24 It follows that you, Mr Psaila, are in a very different position to that of you, Mr Parry.
25 Mr Parry, the seriousness with which the law regards the offence of cultivating a commercial quantity of cannabis is demonstrated by it having a high maximum penalty of 25 years’ imprisonment. In addition, legislation mandates that I must impose a sentence of imprisonment pursuant to s.5(2H) of the Sentencing Act.
26 You, Mr Parry, were the principal in the hydroponic cultivation enterprise. You can only have done this in the expectation of a commensurate financial reward. The scope and nature of the enterprise was significant and sophisticated. The charge on indictment covers a period of close to three months. A commercial quantity of cannabis is designated either by 100 plants or 25 kilos in weight of cannabis. Here you cultivated 660 plants, being 6.6 times the commercial quantity, and the plants had a combined weight of 102 kilograms, being four times the commercial quantity by weight. Self-evidently, yours is a significant example of this offence.
27 As I have already noted, Mr Psaila, you face a lesser cultivation charge than that of Mr Parry. The prosecution concede that you had no knowledge of the number of plants being cultivated by Mr Parry, nor is it alleged that you were involved in the setting up or the cultivation of the plants themselves. Your role was to assist Mr Parry in the cultivation enterprise by driving him to collect items necessary to the task. As I have outlined already, you also had keys to the premises in your possession at the time of arrest and had attended to payment of the rent owing on the factory on one occasion. Whilst it is undeniable that you had been within the factory premises, the state of your actual knowledge is somewhat obscure. It is apparent that your culpability is significantly less than that of Mr Parry and the prosecution fairly and sensibly concede this.
28 In sentencing each of you I must have regard to the important principle of parity of sentencing, which rests on the principle of equal justice, requiring that like should be treated as like, and that the difference in treatment of different persons should be rational. Different sentences may reflect differences in culpability or personal circumstances in offenders. In reaching the sentences which I will impose, I have had regard to your respective roles, personal matters as they have been made known to me, and the different charges which you face.
29 As I have already recounted, on interview, Mr Parry, you made substantial and significant admissions. These admissions have assisted the prosecution in proving their case against you. You acknowledged your role as a principal and confirmed your responsibility for the offending. In keeping with your extensive admissions, you pleaded guilty at an early stage.
30 Unlike Mr Parry, you, Mr Psaila, did not make any admissions. You also, however, have pleaded guilty at an early opportunity.
31 In both of your cases your pleas of guilty have saved the community the cost and time of a contested hearing and have resolved any contestable issues in favour of the Crown. Given the indefinite suspension of jury trials in this State arising from the COVID‑19 pandemic, your guilty pleas have considerable value in having facilitated the course of justice.
32 Your pleas of guilty evidence a degree of remorse. In your case, Mr Parry, this is particularly so, as your guilty plea follows on from your extensive admissions which, as I have said, have assisted in proof of the charges against you.
33 Turning to your personal circumstances, Mr Parry. You are now 30 years of age and have admitted relevant prior convictions.
34 In September 2016 you were placed on a Community Correction Order in the Magistrates’ Court for offences which included the cultivation of cannabis. You were growing nine plants hydroponically for your own use. It was accepted that these were for your own use. You breached this order and were given a further opportunity to comply with the Community Correction Order. This order was in force at the time of your offending. These cultivation offences related to police discovering in December 2014 a room at your residential premises containing a hydroponic growing setup with nine cannabis plants. On that occasion you admitted to creating the room and setting up that crop, as well as the electrical bypass which was in operation at that time. Having regard to this prior matter, it elevates the weight to be given to specific deterrence, that is deterring you from offending again. In the sentence which I must impose upon you I must have appropriate regard to this. Having said that, however, your criminal history cannot be given such weight as to lead to a disproportionate sentence for the offending before me. If that were the case it would amount to my imposing a fresh penalty for past offences.
35 Mr Parry, returning to your personal background, you are the eldest of five, and your mother and father separated when you were of a young age. You have never known your natural father. You have had a fractured relationship with your mother since childhood, which culminated in you leaving the family home at age 16. You were exposed to your mother’s cannabis use and domestic violence arising from her various relationships during your childhood.
36 In the context of cannabis use being normalised within your family home, you have been a long-term cannabis user; however, are now abstinent. The disjointed child hood and adolescence that you report have, I accept, left their mark on you, and I will have appropriate regard to this.
37 Your mother formed another relationship when you were in your early teens, and you have formed a close bond to your stepfather.
38 At school you struggled academically and left formal education before completing Year 9. You then undertook a pre‑apprenticeship, and following on from this were employed in various labouring and unskilled roles within the construction industry until about the age of 19. Then you established your own landscaping business, which ultimately collapsed in 2017, and suffered from 2015. Following on from this your employment has been sporadic.
39 You commenced a relationship in 2011 with a woman who was a Thai national. You have a son from that relationship, Jordan, who presently resides with your mother and stepfather. During the course of your relationship you funded the construction in Thailand of a house for your partner’s extended family and two children of hers from a previous relationship. This relationship ended in 2015, and following on from this you rented a house for her and Jordan to reside in. You then had periods of time where you were the sole carer of Jordan due to your former partner’s travels, and ultimately in 2015 you were awarded sole custody of Jordan. You have had no contact with your former partner since then.
40 A psychological evaluation of you undertaken by Mr Ian MacKinnon resulted in him diagnosing you as suffering from mixed anxiety and depression disorder. He does not, however, link this to your offending, nor to your time in custody being more burdensome.
41
You have been held in custody since your arrest on these matters on
6 June 2019. Initially you were able to complete a number of vocational courses and, significantly, have undertaken a number of literacy programs. This has improved your literacy and your facility to write to your son.
42 Due to the current COVID‑19 pandemic I accept that prison is more burdensome for you than otherwise would have been the case. You are currently unable to have any personal visits by family, friends or loved ones, and your ability to take part in educational or rehabilitative programs is restricted. It is impossible to predict with any level of certainty the length of time for which you will be subject to these onerous custody conditions. I accept the pandemic also causes you additional anxiety regarding your concern that you may contract the illness, or that loved ones who are unable to visit you may also fall ill.
43 The motive for your offending lies in financial difficulties that you were experiencing at the relevant time. Your business ultimately failed in 2017 and you then divested yourself of significant assets in order to try and stay afloat. It was in these circumstances that you resorted to cultivating cannabis I was told. Part of your motivation was to provide for your young son. The fact that you were experiencing financial difficulties, whilst relevant, cannot excuse your conduct. You knowingly set about, in effect, devoting the leased premises to a commercial cannabis-growing enterprise. It follows that deterrence and denunciation must be appropriately emphasised in the sentence which I impose upon you.
44 In addition, your possession of the sawn-off shotgun is troubling. Whilst you did not have it on your person or in close proximity to the growing premises, your possession of it arose out of concerns relating to your crop.
45 Notwithstanding these matters, having regard to your prior solid work history, your admissions, plea of guilty, and the close bond which you have with your son, I am satisfied that your rehabilitative prospects are reasonable. I note that this will represent your first sentence of imprisonment, and I accept that you will feel keenly the separation from your young son.
46 A restraining order has been taken over property in which you have an interest at 21 Baker Street, Darley. Cultivation of cannabis in a commercial quantity is a Schedule 2, automatic forfeiture, offence.
47 Whilst this property was not utilised by you in the cultivation of the cannabis, I was told that it remains for you to establish that these premises were not tainted, in the sense in which that term is used in the confiscation legislation, otherwise I was told the property will be forfeited.
48 In R v McLeod (2007) 16 VR 682, the Court considered the relevance to sentencing of automatic forfeiture under the Confiscation Act 1997 of property that had been lawfully acquired by an offender. The issue being governed by s.5 of the Sentencing Act 1991. The Court confirmed that
'At common law, forfeiture of lawfully-acquired property has generally been regarded as a mitigating factor in sentencing, since it places the offender in a worse position than he/she was before the commission of the offence. That is, forfeiture has a punitive or deterrent effect'.
49 At paragraph [64] of McLeod the Court, however, said that:
'The offender who relies on forfeiture as a mitigating circumstance will ordinarily bear the onus of establishing that it should be so regarded'.
50 The Court further stated that it was also for the offender to provide ‘credible material’ identifying the source of the property, so as to permit the sentencing judge to conclude that at least some substantial portion of the property has been lawfully acquired.
51 In order to determine whether or not forfeiture was imminent, and represented not merely the disgorgement of the proceeds of crime, but was of a broader reach than simply that, I allowed further time for your counsel to enable credible material to be placed before the court to resolve this issue, potentially in your favour.
52 Your counsel provided an initial set of submissions indicating material would be placed before the court to address these issues in a manner favourable to you. His next set of submissions, however, amongst other things, contained the following:
'2. …. On advice, Mr. Parry has instructed his representatives that he does not wish to file an affidavit in support of the submissions previously advanced as to the purchase of the property and the service of the loan secured against the Property'.
53 Bear with me. Mr Parry nonetheless maintains his instructions as to the acquisition of the property and the means by which he serviced the loan.
'5. As there is no evidence before the Court as to these matters, it is accepted that the Court may not be satisfied to the requisite standard that the property is lawfully acquired and untainted for the purposes of the confiscation proceeding. To this end, it is accepted that the Court may decline to find that Mr. Parry will suffer additional punishment by virtue of the forfeiture of the property'.
54 I note that there was no application by those representing you to further adjourn the sentencing of your matter, and that your instructing solicitors and counsel regularly represent those charged with criminal offences and are experienced in the criminal law.
55 Notwithstanding the time that I allowed, in regards to the operation of this potentially draconian Confiscation legislation I am left in the position where, in short, there is not an evidentiary basis on which I could assess either the lawfulness of your acquisition of the property, any loss suffered by you, or the punitive effect of any forfeiture order which might result. Nor am I any wiser as to whether you will seek to have the property excluded from forfeiture.
56 It follows that I will not be taking into account your potential loss of your interest in the property in question.
57 Turning to you now, Mr Psaila, you are now 25 years of age and were 23 at the time of your offending. You have a prior conviction for trafficking cannabis; however, this related to half a gram of that drug, and resulted in you receiving an adjourned undertaking. It is not of particular significance to my sentencing exercise.
58 You were educated to Year 9 level and grew up in the western suburbs of Melbourne. You have three brothers and supportive parents. Whilst your parents separated approximately five and a half years ago, you have maintained a close relationship with each of them.
59 Upon leaving school you worked for approximately two years at a vehicle wreckers in Deer Park, and then in fencing and joinery. You also worked for a time in a family friend’s pizza restaurant, and I have noted the positive reference tendered on your behalf from Mr Scerri attesting to your work ethic. You are currently working with AG Trusses as a truck driver, and have held that position since 6 June 2020. You have overtime available to you, and I note the positive reference from your supervisor, Mr Zakharia, in which, amongst other things, he states that he, 'sees a great future', for you. You currently have a licence to drive and it is essential for your work.
60 You have a close relationship with Mr Parry’s young son, Jordan. You have been collecting Jordan every Friday afternoon after work and caring for him over the weekend, returning him to Mr Parry’s parents on a Sunday afternoon. You had previously looked after Jordan in 2018 to 2019 when Mr Parry was his sole carer. You have taken Jordan to swimming lessons, bike riding, and a range of other activities.
61 Your offending has its genesis in your close relationship with Jordan and Mr Parry. You were aware of his financial difficulties, had a close bond with Jordan, and this set the scene for your assistance in the cannabis growing enterprise.
62 Given the fact that you were only 23 at the time of your offending, you were approaching what could only be described as the upper end of the range that may be recognised as youthful. Having regard to this, it is appropriate that, consistently with other sentencing aims, I emphasise your rehabilitation.
63 Having regard to your plea of guilty, work history and close family support, I do assess your rehabilitative prospects as positive. It was in this context that I had you assessed to determine your suitability for a community correction order. You have been found ineligible, as I understand it, as a result of the suspension of work hours due to the COVID-19 pandemic.
64 The author of the assessment report states:
'As Mr Psaila has been assessed as a low risk of general re-offending, minimal order conditions are respectfully recommended by this service. This recommendation is made in line with evidence-based practice which finds that minimising interventions is an effective way of maintaining a person's low risk of recidivism. This will allow Mr Psaila to continue with his otherwise largely pro-social lifestyle. Given the nature of the offending and Mr Psaila's low risk level of re-offending, he would not be considered eligible for participation in the Forensic Intervention Services, that is offender behaviour programs, or requiring supervision'.
'The Court's indication of Community Work is noted. Due to changes implemented in CCS as a part of the Government's current response to COVID-19, community work programs have been suspended for the foreseeable future. Accordingly, the writer respectfully does not recommend community work.
However, if the Court is minded in imposing a community work condition, should it not be completed in time, the order may be returned to court on an application to vary'.
Considering the above, Mr Psaila is found unsuitable for an order due to the inability to implement community work due to the COVID-19 pandemic'.
65 Notwithstanding this, I will impose a Community Correction Order as this pandemic will not last forever. Notwithstanding the prosecution submission to the contrary, I will impose a combined term of imprisonment and Community Correction Order in your case on the charge of cultivation.
66 In fixing the term of imprisonment I have in particular had regard to the fact that the 196 days which you spent in custody on remand is the first time you have spent in the adult prison environment. I accept this has been a salutary experience for you. In light of your limited role in the offending, I am of the view that it is not necessary to require you to be returned to custody, and that your release to undertake a Community Correction Order represents an appropriate balance.
67 I note that the Court of Appeal in the case of Boulton v The Queen (2014) 46 VR 308 stated that:
'A Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment ... The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO ... is capable of satisfying the requirements of ... just punishment, while affording the best prospects for rehabilitation [of an offender]'.
68 As regards to your driving whilst suspended I will impose a financial penalty, having regard to the fact that you are now appropriately licensed to drive. In my view, it would be counter-productive to jeopardise your rehabilitative prospects by interfering with your licence and affecting your capacity to continue in your employment.
69 Dealing with you first then, Mr Psaila, the terms of your Community Correction Order will be that you perform 150 hours of unpaid community work and the order will be of 18 months' duration.
70 I will fine you the sum of $500 on the driving charge.
71 You need to understand that if you breach the Community Correction Order you will be returned to court before me, and amongst a range of options, I can resentence you on the offence of cultivation. I will direct your counsel explain to you the operation of, and consequences of, a breach of this order and I will have my associate transmit the order to you at your instructing solicitor's office for your signature and return, and once that is done I will finalise the orders in your matter.
72 I declare 196 days served as pre-sentence detention in your matter.
73 So far as you are concerned, Mr Parry, yours is obviously a very different position to that of your cousin's, and I have no option other than to impose significant terms of imprisonment on you.
74 These will be: on Charge 1 of cultivating cannabis, four years and three months' imprisonment, which is to be the base sentence; on Charge 2 of theft of electricity, six months' imprisonment; Charge 3, being a prohibited person possessing a firearm, 18 months' imprisonment; Charge 4 of possession of cannabis, four months' imprisonment; Charges 5 to 8, I will fine you the sum of $300 on each; on Summary Charge 9 of possessing a prohibited weapon without exemption or approval, namely the Taser, three months' imprisonment; on Summary Charge 12 of possessing ammunition without a licence, I will fine you $250.
75 I cumulate on the base sentence, which is Charge 1 of four years and three months, and on each other, the following terms: two months of Charge 2; six months of Charge 3; and one month of Summary Charge 9.
76 This makes a total effective sentence of five years' imprisonment and I will fix a non-parole period of two years and nine months.
77 I will declare what I understand to be pre-sentence detention in the amount of 456 days, subject to any correction counsel may wish to make in regard to that term.
78 I will indicate but for your pleas of guilty, Mr Parry, I would have imposed a total effective sentence of seven years' imprisonment and I would have fixed a non-parole period of four years and six months. In your case, Mr Psaila, on the assumption that you agree to the Community Correction Order, I will indicate that I would not have imposed a Community Correction Order and I would have imposed a term of 12 months' imprisonment.
79 Are there any further orders required?
80 MR HARRISON: Yes, Your Honour, I believe there was a forfeiture and disposal order.
81 HIS HONOUR: All right, I'll make those administratively.
82 MR HARRISON: Thank you, Your Honour.
83 HIS HONOUR: All right. So, Ms Buxton, I will have transmitted to your instructor's office the CCO documentation. I would like you, please, to explain to your client the working and operation of the CCO and the potential consequences should there be a breach of it, but if there is nothing further then I will conclude the link.
84 MS BUXTON: Certainly, thank you, Your Honour, I will do that.
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