Director of Public Prosecutions v Philp

[2023] VCC 1248

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BENDIGO

CRIMINAL JURISDICTION

CR 21-02616

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL PHILP

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Bendigo
DATE OF HEARING:	17 February 2022
DATE OF SENTENCE:	18 February 2022
CASE MAY BE CITED AS:	DPP v Philp
MEDIUM NEUTRAL CITATION:	[2022] VCC 1248

REASONS FOR SENTENCE

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Subject: Cultivation of a narcotic plant.

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr Hooper	TIMOTHY JOHN HANCOCK & MICHELLE LOUISE LOTHIAN

HER HONOUR: 

1Michael John Philp, you have pleaded guilty to one charge of cultivation of a narcotic plant.  The maximum penalty for the offence is 15 years' imprisonment or one year if established the offence was not committed for a trafficking purpose, pursuant to s72B of the Drugs, Poisons Controlled Substances Act 1981.

2The prosecution did not dispute that the latter maximum was applicable.

3The circumstances of the offending are set out in the summary of prosecution opening dated 19 January 2022 (Exhibit A) and can be summarised as follows.

4On Thursday 18 February 2021 police attended at your property at which you are the sole owner in Laanecoorie.

5Upon arrival police observed you in the rear unfenced garden tending to plants.  They detected a strong smell of cannabis and observed a large cannabis plant inside a shade cloth, fenced-off area of the garden.  Police located 10 mature cannabis plants in the garden and then you directed police to where you kept dry cannabis in a tin.

6When interviewed by police you made full admissions.  You stated the cannabis was for personal use and that you were growing enough cannabis to last you, due to your ailing health. 

7You stated you did not provide any cannabis to anyone else and did not get any income from growing the plants. That you had 10 plants and you were unsure how much you would be able to harvest over time due to your diminishing physical capacity.

8You stated you had 10 plants because you thought there was a limit and that you should not have more than that because otherwise it would be considered (indistinct).

9The total confirmed weight of cannabis seized from the property was in regard to the 10 cannabis plants 63.62 kilograms and in relation to the loose cannabis in the tin 115.9 grams.

10I received a report from Carla Ferrari, forensic psychologist dated 1 February 2022 (Exhibit 2) and from Dr Richard Hadkins, Strathdale Medical Centre dated 6 January 2022 (Exhibit 3).  I take that material into account.

11You are currently aged 55 and have no prior convictions. 

12Your upbringing was affected when your father was involved in an accident which resulted in the deterioration of his level of functioning and addiction.  Your father committed suicide when you were 19.

13The event impacted your relationship with both your brother and your mother.  I was informed those relationships have both healed since the birth of your own children.

14You were married for five years and have two children from that relationship aged 29 and 31.  Your daughter lives with you and your son lives in Melbourne.  You report a good relationship with both of them.

15You have had limited employment since you left school, principally as a consequence of your involvement in a significant car accident in 1998.  Since then you have managed to complete a degree in creative writing, but you have also been on a Disability Pension for a number of years.

16You have had significant medical and mental health issues. You suffer from bi-polar disorder and have had a number of hospital admissions since 2007.  You are currently on a medication regimen treated and managed by your general practitioner. 

17As a consequence of the car you required two shoulder reconstructions and a nerve decompression.  You have been prescribed medication for chronic pain.  You suffer from chronic pain involving both of your arms and with a degree of pain on a daily basis.

18At the time of this offending you had been titrating down the prescription medication that you had been on for a number of years.  Your pain specialist suggested a reduction of that medication to Endone.  You did not cope with the change and your mental state deteriorated.  You turned to cannabis to assist with the withdrawal symptoms and to manage your chronic pain. 

19I note it was conceded by the prosecution there was no evidence to connect your cultivation of cannabis to trafficking.

20You GP of the past 18 years reports you are currently on a better analgesic for the long term, with side effects, and the changeover has been successful.  He also reported your other conditions and current related medication regimen.

21I take into account your plea of guilty; it was made at the earliest opportunity and you have made admissions to police.  You were cooperative with police. 

22Your plea has facilitated the course of justice and is more valuable in this COVID time with court delays and the significant impact on the system.

23Your plea is also consistent with remorse.

24I regard your rehabilitation prospects as good, given you have no prior convictions and you have remained a law-abiding citizen for 50-odd years, the contextual nature of this offending, related as it was to your medical and mental condition, and steps taken by you in being treated appropriate for your issues.

25Your plea of guilty and acceptance of responsibility for this offence and Ms Ferrari's opinion that when you are adequately treated on a medication regime, that you are a low risk of reoffending.

26This offence is committed in a wide range of circumstances.  The concession by the prosecution there is no evidence of trafficking, or the existence of a business connected to the cultivation was fairly made.  You had no security at your property, nor did you utilise any sophisticated methods for growing the cannabis.  I accept your offending is an example at the lower end of what can be a very serious offence.

27In sentencing you I accept as submitted by your counsel that specific and general deterrence have more limited application as to other sentencing considerations such as punishment and denunciation, given the matters personal to you.

28Your counsel submitted I should impose a community corrections order with a condition regarded your continued mental health issues.  The prosecution did not oppose me adoption such a course.

29You were assessed by Corrections as appropriate for such an order and that is the course that I propose to adopt.

30Mr Philp, do you understand the terms and conditions of a community corrections order with the condition regarding mental health treatment?

31OFFENDER:  Yes, I do.

32HER HONOUR:  All right.  What I propose to do is to make an order just with the condition regarding mental health and treatment.  The order will be for a period of 12 months.  If you breach this order you will come back to me and I will have to resentence you for this matter, but I am hopeful given all the material put on your behalf, that we will not see you again.  Thank you very much.

33MR CORDY:  Just one matter, Your Honour.  Is that with or without conviction, that CCO?

34HER HONOUR:  Sorry.  With conviction.  Thank you.

35MR CORDY:  Thank you, Your Honour.  And the 6, the 6 ‑ ‑ ‑

36HER HONOUR:  Pursuant to 6AAA of the Sentencing Act, if you had not pleaded guilty to this matter I would have imposed a community corrections order for a longer period of time with more convictions.  Thank you.

37MR HOOPER:  Your Honour, before we proceed any further may I just be heard on the matter of conviction?

38HER HONOUR:  No.  Thank you.  Actually, you can say what you want, Mr Hooper, but I am minded at this stage to impose a conviction.  Why shouldn't I?

39MR HOOPER:  Thank you for that opportunity, Your Honour.  In my respectful submission given the matters that Your Honour has accepted in imposing sentence and the fact that this is Mr Philp's first time appearing before the court and that the offending was clearly related to his mental and physical condition at the time, and given that there appears to be a confluence of opinion in respect of his very low risk of engaging in conduct of this kind in the future, and that this as Your Honour has quite appropriately found is offending at the lower end of the scale, in my submission a conviction overstates the significance of the offending.

40HER HONOUR:  Mr Cordy, did you want to say anything about that?

41MR CORDY:  A matter for Your Honour.

42HER HONOUR:  No, I'm going to record a conviction, thank you.

43MR HOOPER:  May it please the court.

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