Director of Public Prosecutions v Peter William Patience
[2018] VCC 93
•9 February 2018
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-01894
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
PETER WILLIAM PATIENCE Defendant
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JUDGE: HIS HONOUR JUDGE MURPHY
DATE OF HEARING: 9 February 2018
DATE OF SENTENCE: 9 February 2018
CASE MAY BE CITED AS: DPP v Patience
MEDIUM NEUTRAL CITATION: [2018] VCC 93
REASONS FOR SENTENCE
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CRIMINAL LAW – Sentence – Cultivate narcotic plant – Theft – Offending whilst on parole for similar offending – Relevant prior convictions – Requirement that sentences incrementally increase – Director of Public Prosecutions v Patience & Patience [2013] VCC 688; Nguyenv The Queen (2016) 311 FLR 289, considered
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APPEARANCES: Counsel Solicitors
For the Crown Mr J Henderson Office of Public Prosecutions
For the Defendant Mr A S McDougall Spina Kyle Waldon Lawyers
HIS HONOUR:
Peter Patience, you have pleaded guilty to one charge of cultivating a narcotic plant, being cannabis, and one charge of theft of electricity. The maximum penalty for the charge of cultivating is 15 years imprisonment, and ten years for theft.
The circumstances of the offending were set out in the prosecution opening, which was read in open court and which I incorporate by reference.
Circumstances of the offending
In essence, police attended at your property in Hastings looking for your drug addicted son and stumbled upon an extensive hydroponic cannabis operation that you were operating in the house.
They found numerous plants in various states of growth, a large volume of dry material, 33 plants and five leafy stems in one room, big bags of potting mix, transformers, charcoal filters, two large cardboard boxes containing dry cannabis and garbage bags containing the cannabis.
The overall total weight of the cannabis found was 27.56 kilograms. A commercial quantity is 25 kilograms, however, you are not charged with cultivating a commercial quantity. Nevertheless, this is an indication of the magnitude of the operation.
In addition, police found, as is usual in cases like this, a power bypass in the ceiling. The particular amount of electricity that was stolen by you has not been quantified by the prosecution.
Police arrested you and took you to the station where you participated in a record of interview. You made full admissions and stated that you were growing the cannabis for personal use, that you smoke a large amount daily to assist with anxiety and depression, and that you were not selling it. You were taken into custody and have been on remand since that time. The matter resolved at a committal mention to a plea of guilty.
Seriousness of the offence
This, as submitted by the learned Crown prosecutor, was a sophisticated hydroponic operation – the sheer scale of the operation indicates this. Although you are charged with cultivating over the period of 6 April 2017 to 4 May 2017, it is clear from the different states of growth of the cannabis that you had been cultivating the cannabis prior to the charge period. It was a sophisticated operation. The quantum of cannabis indicates that it is a serious example of the offence of cultivating, as well as stealing electricity.
Prior convictions
You have admitted relevant prior convictions. Significantly, on 19 June 2006 at the Frankston Magistrates' Court, you were sentenced to three months' imprisonment to be served by way of an intensive corrections order for trafficking cannabis. On 20 June 2013, in this Court, on charges of cultivating cannabis in a commercial quantity, trafficking a commercial quantity of cannabis and theft, you were sentenced to a total effective sentence of six years and four months imprisonment, with a non-parole period of four years.
10.That sentence expired on about 10 April 2017, yet you had started cultivating the cannabis in this case on or about 6 April 2017, and possibly before that. So while you were still under sentence on the earlier sentence,[1] you started reoffending.
[1] Director of Public Prosecutions v Patience & Patience [2013] VCC 688 (Judge Millane).
11.So your two prior convictions for similar offending indicates that you are a recidivist, you have not learnt your lessons. It indicates that specific deterrence has got to be relevant to your sentencing.
Matters in mitigation
12.Your counsel put a comprehensive plea to me. First, he indicated that you pleaded guilty. You are entitled to credit for that. You have facilitated the course of justice. There was no requirement for a committal hearing as it was an early plea. You have saved the community the need for a trial also. This is also some evidence of remorse. Second, your sister wrote a letter to the Court indicating that you were remorseful for your conduct. This does indicate some insight into your offending, as does the report of Mr Mackinnon, forensic psychologist.
Personal circumstances
13.You are now aged 63 – you are far too old to be in the dock on criminal offences. Your personal details are set out in the report of Mr Mackinnon and I incorporate them by reference. You married young, you have two adult children; from whom you are now estranged. You cared for your wife for a significant period of time after she suffered an acquired brain injury, and after your term of imprisonment in 2013, you became estranged from her. You are, however, still on good terms with her. You have two surviving sisters. Your brother passed away. I received a letter of support from one of your sisters who lives in Queensland.
14.She indicates in the reference that following your period of imprisonment, she noticed a change in your personality. Facing the difficulties associated with your drug addicted son and the death of your mother in 2015, according to her, had a significant impact on you. She indicates that she is prepared to provide you with family support upon your release.
15.This raises the question of your prospects of rehabilitation. Judge Millane, in her comprehensive sentencing remarks some four and a half years ago, indicated that you had some prospects of rehabilitation, provided you were had proper support upon your release. Given that you, upon release, immediately relapsed into reoffending, your counsel wisely only put your prospects of rehabilitation as "guarded". That is all I would put them at, given your failure to learn from the earlier significant term of imprisonment imposed by
Her Honour Judge Millane.
16.You need to move out of Victoria and into the arms of your family in Queensland and try, in the twilight years of your life, to turn over a new leaf.
17.Up until you were aged 50 you were a tradesman. You owned a business. It is obvious that you have contributed to the community in the past, but in the last 13 or so years, you have just become a blight on the community, putting into circulation a dangerous drug of dependence.
Sentencing submissions
18.Your counsel referred me to a number of cases to assist in sentencing you, which were said to reflect current sentencing practices, which I am required to have regard to pursuant to s. 5 of the Sentencing Act 1991, but not as a determining consideration. Your counsel also referred to the sentencing snapshot. I regard cases prior to Nguyen v The Queen (the 2016 Court of Appeal decision)[2] as being of little relevance, given the direction of the Court of Appeal in that case that current sentencing practices for cultivation of a commercial of cannabis must be incrementally lifted, and that necessarily includes cultivating simpliciter, which is the offence for which you fall to be sentenced.
[2] Nguyen v The Queen (2016) 311 FLR 289 (Redlich, Tate and Whelan JJA).
19.Your counsel put that this offending was in the low range of seriousness for offences of this type. The learned Crown prosecutor put this offending as at least being in the midrange of seriousness. The learned Crown prosecutor indicated that given the amount of cannabis involved, it was at least a midrange case. In that sense, the sentence must overlap with some of the sentences imposed for cultivating a commercial quantity. The learned Crown prosecutor also referred to your prior convictions. In his submissions, the he reminded the Court that general deterrence is a very important consideration, as well as in your case, specific deterrence.
Purposes of sentencing
20.The basic purposes for which a court may impose a sentence are punishment, deterrence – both specific and general – rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.
21.I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society. All of these considerations are somewhat conflicting. Your age is also a matter to be taken into account.
22.Your counsel put on the basis of the report of Mr Mackinnon that you are suffering from post-traumatic stress disorder (PTSD) and that this led to a reduction in your moral culpability. During argument, your counsel abandoned this point, wisely. This was a calculated exercise and even though you may have been suffering from anxiety and stress associated with your drug addicted son and looking after your ailing mother, I do not accept that this, nor your PTSD, goes to reduce your moral culpability. The PTSD identified retrospectively by Mr Mackinnon does not, in my opinion, go to reducing your moral culpability for this offending.
23.You do, however, have significant physical disabilities and ailments associated with your age, and you are suffering from anxiety and depression for which you are on medication for. I do give this some weight in that, in the prison environment, considerations of institutionalisation are also relevant. You have spent a significant period of your recent life in prison on the Judge Millane sentence, and have been on remand for a significant period of time since you were arrested.
24.Given your age it is necessary to avoid a crushing sentence and this risk of institutionalisation. Also, as your counsel mentioned on the plea, you are now 63 and you are the oldest person in the current prison that you are placed in, and I can take judicial notice that most people in gaol are aged predominately under 30 or 35 years. So that does create a real reduction in social intercourse within the prison system, which makes a sentence of imprisonment, for someone your age, more burdensome.
25.Against all these considerations, this is economic crime. A signal has got to be sent to the community by the sentence that for those minded to engage in economic crime, the rewards are not justified by the risk of a significant term of imprisonment. In addition, in your case, specific deterrence is required.
26.In formulating a sentence I have determined to set a non-parole period that does give you a final opportunity to reintegrate into the community, with the support of your sister, which she is offering in her letter of reference. At this late stage in your life, you have to somehow or other turn over a new leaf and get back to the position you were in under 50 when you were employing men in a business.
27.I regard it as appropriate to set an aggregate sentence as these two offences arose out of a single course of conduct, and the quantum of electricity stolen has not been quantified.
28.I have taken into account all the matters put on your behalf by your counsel in mitigation and exercise as much leniency as I possibly can, given these competing sentencing considerations.
29.I accept the submission that imprisonment will be more burdensome and that you will suffer social isolation within the prison system and I take this into account. I have also taken into account your mental condition, but as I have indicated, I do not give any of the Verdins[3] considerations any weight, except in a minor way as to your finding that imprisonment will be more burdensome.
[3] R v Verdins (2007) 16 VR 269.
30.Taking into account your age, your early plea of guilty and the mitigating and aggravating factors of this offence, and weighing the competing sentencing considerations, I sentence you to an aggregate term of three years and six months imprisonment.
31.I direct that you serve a minimum of two years before you become eligible to apply for parole.
32.I declare 281 days of pre-sentence detention, which is time served on this sentence.
33.I declare, pursuant to s. 6AAA of the Sentencing Act 1991, that had you not pleaded guilty, I would have imposed an aggregate term of five years imprisonment and set a non-parole period of three years.
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