Director of Public Prosecutions v Perry

[2015] VCC 1475

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

CR -15-01178

DIRECTOR OF PUBLIC PROSECUTIONS

v

HENRY GORDON PERRY

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	14 October 2015
CASE MAY BE CITED AS:	DPP v Perry
MEDIUM NEUTRAL CITATION:	[2015] VCC 1475

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D.R. Cordy	Office of public Prosecutions
For the Offender	Mr R. De Vietri

HER HONOUR:

1Henry Gordon Perry, you have pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity.  You have also pleaded guilty to an uplifted summary offence of using cannabis.  The maximum penalty for cultivation of a narcotic plant in a commercial quantity is 25 years' imprisonment.  The maximum penalty for use of cannabis is 5 penalty units. 

2The prosecution made an application for the taking of a forensic sample; that is a saliva sample for your DNA.  Do you consent to that?

3OFFENDER:  No, no, I've got no problems with it.  I'm not a criminal so - it's not a problem.

4HER HONOUR:  Apart from the policy, Mr Cordy, is there any other reason you could point to?

5MR CORDY:  There is the issue of recidivism, Your Honour, as Your Honour has observed.  He was on a good behaviour bond at the time but the point is taken as to what Mr Perry says and I think he is talking about criminal in the moral sense that Your Honour identified as something different to the legal sense earlier.  I won't say any more about it, it's a matter for Your Honour's discretion.

6HER HONOUR: Thank you. The prosecutor made application for the taking of a forensic sample from you pursuant to s.464ZF of the Crimes Act 1958. You have consented to the making of that order but I do not propose to make such an order. I do not consider that the order is justified in the circumstances. Your offending is serious but you have made no attempt to hide your offending. I think there is a risk that you might offend again in the future but again I do not expect that you will make any attempt to hide that. There is no utility in my view to there being a record of your DNA for the purposes of detecting any future offending or for the purposes of deterring you from future offending, I decline to make that order for those reasons.

7The circumstances of your offending are set out in the Summary Of Prosecution Opening which was tendered as Exhibit A.  In January 2015 the police received information that you were growing cannabis at your property in rural Victoria.  Police searched and found 12 large cannabis plants.  They also found a further six large cannabis plants, a quantity of dried leaf matter was found in the Ford Transit van that you had apparently been sleeping in. 

8The material was analysed.  The total weight of cannabis found was 74.34 kilograms. 

9You were arrested on 6 February 2015 and interviewed.  You made admissions that you had planted and cultivated the cannabis on your property.  You said there were 18 plants and that they were for your own use.  You said that you used cannabis by way of cannabis oil or smoking cannabis because of your problems with your health and in particular your back pain.  You said that you had permission from your doctor and that he would support you in your cannabis use. 

10In respect of the using a drug of dependence you admitted that you had used cannabis to put with butter to make biscuits.  You also said that you smoked cannabis as joints and smoked around 6 to 7 joints per day if you did not have to drive.  Again, you referred to the use of cannabis oil and said that it took a large number of plants to make a small amount of oil.  You said that the cannabis located at the property would have lasted you for about a year. 

11In sentencing you I have taken into account your personal circumstances.  You were initially represented by counsel but then represented yourself during the plea hearing.  I received a folder of material from you which was tendered as Exhibit 1 which contained an amount of medical material that you have also provided a reference.  Your general practitioner came to court and gave evidence on your behalf in support of what he had said in his reports.  It is clear from the material and from what you have said that you have suffered with chronic back pain for many years.  You have had two, what I will describe as, heart attacks in more recent times.  You have been at times on very large amounts of medication in order to attempt to control your pain.  As your general practitioner described in the material, there are difficulties with you taking particular types of anti-inflammatory medication because of your heart problems.  It is in that context, I accept, that you started and continued to use cannabis.  It is quite clear from what your general practitioner says that he believe that you genuinely have back pain and that you genuinely use the cannabis to deal with that pain.  It appears that as a result of your cannabis use you have been able to quite dramatically reduce the need for painkillers such as morphine.  Your general practitioner, as I understood it, is of the opinion that that is a better result for your health than the use of very high amounts of opiate based painkillers.  It is those matters which are the most relevant aspects of your personal history and personal circumstances for me to take into account. 

12I understand from the reference provided by Mr Moyles that you do have a partner.  So it appears that you have some support.  It also appears that Mr Moyles has been supportive of you and is prepared to assist you in your campaign to try to obtain some form of medical exemption for the use of marijuana.

13It is of course of relevance that you appeared in the Maryborough Magistrates Court in May last year and were placed an adjourned undertaking in respect of very similar charges. 

14This offending occurred during the period of that undertaking, so it appears that you decided to continue to grow and use cannabis.

15OFFENDER:  Yes, Your Honour.

16HER HONOUR:  Both from what your general practitioner said and from
I Moyles says, it appears that you have very many positive, personal qualities but that you have had significant issues with your back pain.  I accept that your situation with back pain is genuine and that it is very severe. 

17Whilst this type of offending is serious, as indicated by the penalty, I consider that there is room for compassion in this case.  Your circumstances are extremely unusual, as I have said.  I accept that you have effectively been between a rock and a hard place.  You have had to decide between continuing cannabis use which appears is better for your health and your general life or being law abiding and taking large amounts of medication which are harmful to you. 

18While it is to be hoped that over time you will be able to either legally access cannabis or find an alternative, it appears from what your general practitioner said that there are, as it stands, no practical alternatives but to take large amounts of legal medication which may not be good for you.  In that context, I accept your engaging in illegal behaviour our has been because you considered that that was for you the lesser of two evils and the right thing to do morally, even if it meant breaking the law. 

19As I said earlier, the law must be obeyed.  It is not a matter for individuals to be able to decide when the law will apply and when it will not apply.  If an individual breaks the law, the law has to impose some consequences.  In this case I consider that it is appropriate to significantly modify the sentence I would have otherwise imposed in order to extend some compassion and recognition of the difficult situation you have been.

20You are entitled to a discount for your plea of guilty.  That plea was made late but it has saved the expense and inconvenience of a trial.  I accept that your plea was made late because of your particular circumstances rather than any desire to cause any difficulty for anybody.  It cannot be said that your plea of guilty is an expression of remorse in that you regret that your use of cannabis was illegal but you did not regret having used it for obvious reasons.

21OFFENDER:  I can't.

22HER HONOUR:  I have accepted that you are not an appropriate vehicle for general deterrence.  As I said at the start of this hearing, I am concerned that treating you leniently might send the wrong message to the community.  I do not want anyone in the community to think that they merely have to come to court and say they needed the marijuana for back pain or any other sort of pain in order to receive lenient treatment.  That is not the case.  Your circumstances are particularly exceptional.  It is not, I have to say, a common event for a general practitioner to come and provide the kind of support that your doctor was able to provide in this case.

23I consider that with the degree of moderation is appropriate, an appropriate sentence is a Community Correction Order.  I think that sentence is sufficient to provide for just punishment and denunciation of law breaking which is what you have done. 

24I propose to place you on a Community Correction Order for 18 months.  The core conditions of the order I believe have been explained to you by the Corrections Officer such as you cannot leave I without permission, that sort of thing.  That has all been explained to you?

25OFFENDER:  Yes, Your Honour, yep.

26HER HONOUR:  Right.  So the only special conditions that I intend to impose are supervision which really just means that they will effectively case manage you.

27OFFENDER:  Yep.

28HER HONOUR:  And treatment and rehabilitation for drug addiction or drug issues.

29OFFENDER:  Yep.

30HER HONOUR:  That may end up not being very useful but I think it should be included as a condition so that you can be assessed to see if that can provide any assistance.  Those are the only two special conditions I intend to make.  This order will be made with conviction because you broke the last order of an undertaking to be of good behaviour without conviction, I consider a conviction to be appropriate so there will be a conviction.

31OFFENDER:  Yes, Your Honour.

32HER HONOUR:  If you break this order by not doing what they tell you or by re-offending you are going to be brought back before me on a breach of that order and as I have said, I can re-sentence you on this and I can impose new sentences on any other offending.  Do you consent to the order being made

33OFFENDER:  Yes, Your Honour.

34So in respect of Charge 1, which is the cultivation of a narcotic plant in not less than a commercial quantity you are convicted and sentenced to serve a Community Correction Order for a period of 18 months with the conditions that I have already explained.

35OFFENDER:  Yes, Your Honour.

36HER HONOUR:  In respect of the uplifted summary charge, uplifted summary Charge 3 you are convicted and discharged.   So that means you have got a conviction but there is no additional penalty attached to that.

37MR CORDY:  As Your Honour pleases.

38OFFENDER:  Yes, Your Honour.

39HER HONOUR:  There is no requirement for me to give you an indication of a discount for your plea of guilty in view of that sentence but I will give it in any case.  But for your plea of guilty I would have sentenced to a term of imprisonment of two and a half years with a non-parole period of 18 months.

40OFFENDER:  That's right.

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