Director of Public Prosecutions v Petherick
[2020] VCC 901
•23 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01391
Indictment No: K10428204
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN JAMES PETHERICK |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 May 2020 | |
DATE OF SENTENCE: | 23 June 2020 | |
CASE MAY BE CITED AS: | DPP v Petherick | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 901 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L. Cameron | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C. Morgan | Kerry Clancy Solicitors |
HER HONOUR:
1 Steven James Petherick, you have pleaded guilty to one charge of cultivation of a narcotic plant, being cannabis L, in a commercial quantity. The maximum penalty applicable to this offence is 25 years’ imprisonment. This crime arises out of events which took place between 1 January 2019 and 14 February 2019 (over approximately six weeks).
2 It is not necessary for me to recount in great detail the facts of this matter, as the matter was opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and your behaviour obviously unacceptable.
3 I turn to a summary of your offending. At the time of it, you were 59 and are 60 at sentence.
4 At approximately 11.15 pm on 14 February 2019, police attended your address in Upotipotpon for an unrelated matter. Whilst at your home, they noticed a strong smell of cannabis coming from a greenhouse approximately 50 metres from your home.
5 Senior Constable Grear saw several large cannabis plants growing inside that greenhouse. You were arrested, taken to Benalla police station and interviewed in relation to cultivation of a drug of dependence.
6 On 15 February 2019 at approximately 9.15 am, detectives from the Benalla Crime Investigation Unit went to your property and executed a search warrant. During the search, they found 57 large cannabis plants growing in the greenhouse on the property. The total weight of the plants was 106.14 kilograms (approximately four times a commercial quantity).
7 During your interview, you were cooperative and made admissions to possession and cultivation of the cannabis plants. You said you grew the plants yourself and intended to sell them with the assistance of another person (Susan Milham). You told police you had a previous relationship with Ms Milham and that it was her idea to sell the cannabis plants, to pay for a cruise for the two of you to New Zealand. You estimated you would make approximately $25,000 from selling the cannabis plants. You were selling the cannabis plants because there was 'not much money on a pension'.
8 You were charged and remanded in custody, and subsequently granted bail on 18 February 2019. You spent three days in custody by way of pre-sentence detention as at the time of this plea hearing.
9
In Exhibit A, the prosecution also provided a more detailed chronology from the time you were granted bail on 18 February 2019. The matter resolved on 11 July 2019, your plea was listed in the Wangaratta circuit to commence
26 August 2019, however, was not reached. It was then adjourned to the circuit commencing 20 January 2020. That circuit was cancelled due to the bushfires and the plea hearing was then further adjourned to the Wangaratta circuit, commencing 20 April 2020, however, that circuit was cancelled due to the COVID-19 pandemic. The matter was then listed for a plea hearing at this court on 6 May 2020.
10 As I discussed with counsel, from August until your plea hearing, the delay in this hearing was neither the ‘fault’ of the prosecution or yourself. Mr Morgan conceded this was not an extra-ordinarily lengthy delay from the time you were arrested and made admissions to this offending. I do note, however, in particular, a delay since August of approximately nine months.
11 You have pleaded guilty to this charge and you are entitled to have that taken into account in your favour, and I do so. The community has, by your plea of guilty, been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. I also take into account you intimated early your intention to plead guilty to this charge, and also admitted your guilt at the time of the interview with police.
12 In the circumstances, I am prepared to accept your plea of guilty indicates remorse for your offending.
13 You do not have any prior criminal history, nor is there anything subsequent or pending. I note, however, in Tsang v DPP (Cth)[1] such is of less weight as a mitigating factor in sentencing drug offenders, although still relevant.
[1](2011) 35 VR 240, 274 [162].
14 Your counsel, Mr Morgan, prepared a written outline of submissions for your plea hearing and addressed them during the course of it (Exhibit 1).
15 You divide your time between living on a boat in Port Adelaide, South Australia and the rural property where this offending occurred in north-eastern Victoria.
16 At age 14, you left school and began learning the job of a shearer. You continued in that work until you had shoulder-related injuries, which forced your retirement in 1999. Thereafter, you managed some part-time shearing until about 2010, however, your injuries then made that work unsustainable.
17 In addition to your shoulder injuries, you instructed you have type 2 diabetes, high blood pressure, high cholesterol, and had contracted pneumonia four times in the past. Mr Morgan also referred to your age and health. I discussed in detail with Mr Morgan the medical report tendered (Exhibit 2) and its limitations regarding your medical history to which I shall shortly refer.
18 You are married with two children.
19 In mitigation of sentence, Mr Morgan relied upon your lack of prior convictions, your plea of guilty at an early stage and full admissions at the time of the record of interview. I have already referred to those matters as being relevant.
20 Mr Morgan submitted your offending lacked sophistication, although I discussed some aspects of that submission which caused me concern. I accept you utilised a grow house building already in existence on the property, i.e. you did not build your own. Mr Morgan urged you were not the one who installed the watering system and nor did you use a timer. Whilst I accept that submission, I also discussed your answers in the record of interview, relevant to watering the plants and fertilising them. You either watered the plants by hand, or on occasions, connected a hose to the pre-existing watering system. Whilst you denied use of fertiliser, I note, as I discussed with counsel, your answer to Question 158. I accept, however, you were not regularly fertilizing the plants.
21 Mr Morgan also urged there was nothing more than a ‘vague’ plan to sell the plants on maturity. It was, however, clear in my opinion, there was a plan, as you indicated in the police interview, that Ms Milham urged you put in ‘a few extra seeds’ and that she might be able to unload (the cannabis) to help pay for the cruise to New Zealand with you.
22
Mr Morgan urged, as I have previously noted, you have a number of what he described as significant health complications. In that regard, at your initial plea hearing, I received the report prepared by GP Dr Thai Luong dated
9 September 2019.
23 Dr Luong referred to you having attended ten standard consultations between 13 December 2015 and 24 July 2019, (over approximately two and a half years). Your medical history included poorly controlled NIDDM with poor compliances, hypercholesterolemia, hypertension, (adequately treated), and mild osteoarthritis in both hips (from 2015) (my underlining added).
24 Reference was also made to a number of medications prescribed to you over that time.
25 Much of your plea hearing involved discussion with Mr Morgan about the limited material before me regarding your medical history/conditions relevant to his ultimate submission pursuant to s.5(2H) Sentence Act 1991, that I did not need to impose a term of imprisonment in your case. The transcript will reveal that discussion.
26 Mr Morgan as a result sought an opportunity to provide further material and sought an adjournment for that purpose. That adjournment not being opposed by the prosecution.
27 Mr Morgan acknowledged the offence before me was a Category 2 offence and therefore s.5(2H) Sentencing Act 1991 applied. He urged, however, there were substantial and compelling circumstances that were exceptional and rare that justified the imposition of a non-custodial sentence in your case. In so submitting, he referred to ‘restrictive practices in place’ in prison including lockdown, restricted visits, and so on as a result of COVID-19. Mr Morgan also submitted potential contact with others was significantly increased in custody, such causing your stress and anxiety. Mr Morgan also sought the adjournment in order to obtain material relevant to that submission, if he wished.
28 Mr Morgan also relied upon your pre-existing medical conditions which, he urged, made you a high risk of contracting and suffering serious complications associated with the COVID-19 virus. That the prospect of contracting the virus weighed heavily on you, given your age and health. I shall return to material recently filed by Mr Morgan and the prosecution on this.
29 At your initial plea hearing, I received a written outline of submissions from the prosecution relevant to sentence dated 5 May 2020, which I discussed with both counsel. The prosecution referred to the cannabis cultivated being approximately 4.25 times the threshold required for a commercial quantity.
30 Your admission to growing the plants yourself, and without the assistance of others, the prosecution submitted, meant you were the principal offender and not a secondary party, such as a 'crop sitter'. I agree.
31 The prosecution submitted it was also relevant to the gravity of your offending that you cultivated this crop with a view to profit, in the order of approximately $25,000, as opposed to cultivating cannabis for personal use. I agree.
32 The prosecution accepted, however, the 'grow house' and the growing of the plants was relatively unsophisticated and to which I have previously referred.
33 The prosecution accepted you co-operated with police from the time of your arrest and that you made full and frank admissions of your offending. I accept that was so. Also, that your plea of guilty was at the earliest opportunity, which I also accept.
34 Turning to sentence, the prosecution submitted general deterrence and denunciation were primary sentencing factors when sentencing you. I agree.
35 Specific deterrence the prosecution conceded, had a lesser role when sentencing in light of the circumstances of your offending and your lack of prior convictions. I agree specific deterrence need not loom large in the sentencing process, however, has some relevance to your offending which occurred over approximately six weeks, involving planting seeds, re-planting them and regularly watering the plants (by the methods to which I have previously referred).
36 The prosecution accept you have good prospects for rehabilitation, noting as I do, your lack of any prior convictions and your health issues, although expressed concern about the lack of detail regarding your health as at the time of your initial plea hearing. I also accept your rehabilitation prospects are good.
37 The prosecution accepted there had been a delay of approximately 15 months from the time your offending, to the date of your plea hearing, due to listing issues and conceded delay was a mitigating factor, in terms of unfairness to you, as you had the charge hanging over your head for some time and you had not committed any further offending. I have already referred to this.
38 The prosecution submitted current sentencing practices were but one factor to take into account when sentencing, albeit not the 'controlling factor'. I agree. All sentencing considerations are relevant.
39 The prosecution referred to the Sentencing Snapshot dated August 2018, (Exhibit C). I was also referred to the decision of Thomas v The Queen.[2]
[2][2019] VSCA 223 (‘Thomas’).
40 Following your initial plea hearing, my Associate forwarded correspondence to both counsel, requesting if they wished, further submissions on Thomas given the circumstances of that appeal. I received subsequent written submissions from the prosecutor (Exhibit D) referable to that decision. The prosecution referred to a number of similarities in that offending to yours (see paragraphs 4(a)-(m) of Exhibit D). There were, the prosecution urged, a number of points of distinction, however. Specifically the applicability in your case of s.5(2H) Sentencing Act 1991. The health issues of Thomas were more significant than yours (paragraph 5(c), Exhibit D). Thomas also had mental health issues. The prosecution submitted your offending was more serious than Thomas and less mitigation of sentence in your case, given your medical issues compared to Thomas, who had more medical issues.
41 Mr Morgan in correspondence dated 18 June 2020, following correspondence from my Associate, stated he did not seek to file any further submissions regarding Thomas and your case and I discussed that with him briefly prior to the handing down sentence today.
42 It is very difficult comparing cases factually as facts vary enormously case to case as do all matters in mitigation and personal to an offender. I am however, assisted by pronouncements in particular of the Court of Appeal, relevant to sentencing considerations in this type of offending, (cultivate a commercial quantity of cannabis).
43 Your offending, the prosecution submitted, involved a Category 2 offence and s.5(2H) Sentencing Act 1991 applied. The only exemption relied upon by you at time of your plea hearing to avoid application of s.5(2H), was that provided by s.5(2H)(e), specifically the current COVID-19 pandemic, including restrictive practices in Victorian prisons, your age and your many health issues.
44 In determining whether there were substantial and compelling circumstances that were 'exceptional and rare' under s.5(2H)(e), relevant also is s.5(2HC). The court must regard general deterrence and denunciation of your conduct as having greater importance, than the other purposes set out in s.5(1). The court must give less weight to personal circumstances of the offender than to other matters, such the nature and gravity of your offending, and the court must not have regard to your previous good character, (other than an absence of previous convictions or findings of guilt), your early guilty plea, your prospects of rehabilitation or parity with other sentences and I note that that is referable to the application of s.5(2H), different principles apply in general sentencing principles.
45 The prosecution referred to DPP v Hudgson[3] in which the court, albeit relevant to s.10A of the Sentencing Act as (s.5(2H) was not then in existence), stated 'compelling' connotes powerful circumstances of a kind wholly outside what might be described as run-of-the-mill factors, typically present in offending of this kind (Hudgson involved intentionally causing serious injury).
[3][2016] VSCA 254 (’Hudgson’).
46 In that case, the court found the features relied upon, in combination, were not 'rare' or 'unforeseen'.
47
Much of the plea, as I have previously stated, involved discussion of the limitations of the medical material and impact of COVID-19 relied upon by
Mr Morgan. As I said, he sought an adjournment, to explore those concerns and to address issues raised in discussion at your initial plea hearing.
48 Mr Morgan, as a result, filed a report from Dr Julian Fidge, GP, Docker Street General Medical Centre, dated 12 June 2020 (Exhibit 3).
49 In Dr Fidge’s opinion, you were a high risk of serious illness and death from coronavirus infection because of your age, smoking history, lung damage from post-pneumonia and diabetes, if incarcerated.
50 You were, he said, susceptible to respiratory infections, like COVID-19. Also tendered was a Discharge Summary dated 20 July 2011, which included reference to your medical history as at that date (Exhibit 4).
51 The prosecution in reply to that material (Exhibit D), addressed COVID-19 and your time in custody, given your health in particular. The prosecution tendered Corrections Victoria information for Courts regarding what Corrections are doing to protect prisoners from contracting COVID-19 and what health/medical services are available to prisoners during this pandemic (Exhibit E). I have discussed with counsel the Corrections website which was updated in May 2020, which in essence confirmed the same methods to protect prisoners from contracting COVID-19 and also how Corrections were addressing a prisoner's medical needs in the COVID-19 environment, as I discussed with the parties.
52 The prosecution appropriately conceded COVID-19 has relevance, when sentencing you, consistent with general sentencing principles. That is, that you will, in essence, be concerned about contracting COVID-19, making your time in custody more onerous than absent COVID-19, then I agree.
53 The prosecution accept, again I agree, you are at increased susceptibility to COVID-19. The prosecution, however, submitted reference by Dr Fidge to the Spanish Flu in prisons more than 100 years ago did not take into account the current action by Corrections, to address the prospects of contraction of COVID-19. I agree.
54 I repeat, however, I accept you will be concerned about your susceptibility in custody, consistent with general sentencing principles.
55 The prosecution submitted you had not demonstrated substantial and compelling circumstances that were exceptional and rare, that justified not making a custodial only order involving a head sentence and a non-parole period (s.5(2H) Sentencing Act 1991). A term of imprisonment was, therefore, Mr Cameron urged, the only available disposition. That your offending required the imposition of a term of imprisonment with a non-parole period.
56 In my opinion, to impose a disposition that did not involve incarceration, with a head sentence and non-parole period, would not adequately or appropriately address all sentencing considerations in your case. But I am mindful, however, when sentencing you of a number of matters, including your early plea of guilty, age, rehabilitation prospects, lack of criminal history, health, your concerns of contracting coronavirus, the fourteen day isolation you will undergo and the delay in this matter being finalised in court, to mention some matters. These matters have resulted in a reduction in the sentence I would have imposed absent their presence and I guess to a degree, makes this an exceptional, for want of a better term, a sentence taking those matters into account in this COVID-19 environment in particular.
57 As well as matters personal to you, to which I have just referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence which is of considerable importance in a case such as this.
58 There is also the need for specific deterrence when sentencing you given your offending did occur over a significant period of time, (approximately six weeks), with you tending that crop on a reasonably regular basis to water it. You also had a plan in relation to the extra cannabis that you grew, and that was to make money. I accept you smoke cannabis occasionally to relieve pain.
59 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am comforted in that regard by your lack of prior offending and nothing subsequent or pending.
60 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
61 Turning to s.5(2H) Sentencing Act 1991, in my opinion, the circumstances relied upon by Mr Morgan (in total) do not amount to substantial and compelling circumstances that are exceptional and rare that would justify the imposition of a non-custodial sentence relevant to that section of the Act.
62 I sentence you as follows. Are you still there Mr Petherick?
63 OFFENDER: Yes, Your Honour.
64 HER HONOUR: On Charge 1, you are convicted and sentenced to 18 months’ imprisonment and I direct you serve a period of 10 months before you are eligible for parole.
65 Pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to this charge and been found guilty of it by a jury, I would have sentenced you to a term of imprisonment of four years and set a non-parole period of three years.
66 Pursuant to s.18(4) Sentencing Act 1991, I declare that you have spent three days in custody up to and including yesterday, 22 June 2020, by way of pre-sentence detention, and I direct that that be entered into the records of the court.
67 The prosecution also made application for a disposal order. Mr Morgan consented to the making of that order on your behalf, and I make the order in the terms sought. So are there any other orders sought Mr Cameron?
68 MR CAMERON: No, Your Honour.
69 HER HONOUR: All right and three days is right is it Mr Cameron?
70 MR CAMERON: Yes, Your Honour.
71 HER HONOUR: Three days right Mr Morgan?
72 MR MORGAN: Yes, Your Honour.
73 HER HONOUR: All right, very well. Do we have police officers at the court?
74 UNIDENTIFIED SPEAKER: Yes, Your Honour.
75 HER HONOUR: All right, thank you. Mr Petherick, I have pronounced sentence as I say, 18 months, but with a non-parole period of 10 months and the three days you have served comes off that 10 months, if I can put it that way, all right?
76 OFFENDER: Okay. Thanks, Your Honour.
77 HER HONOUR: Very well. All right, well thank you for that. Thank you, Mr Morgan.
78 MR MORGAN: Thank you, Your Honour.
79 HER HONOUR: All right, thank you very much Mr Cameron. Yes, all right we can disconnect the link now I think. Thank you.
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