Director of Public Prosecutions v Pratt

[2024] VCC 411

IN THE COUNTY COURT OF VICTORIA

                 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01855

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEXANDER PRATT

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2024
DATE OF SENTENCE:	5 April 2024
CASE MAY BE CITED AS:	DPP v Pratt
MEDIUM NEUTRAL CITATION:	[2024] VCC 411

REASONS FOR SENTENCE

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Subject:              Criminal Law. Sentence upon plea of guilty.

Catchwords:       Cultivation of a narcotic plant – No criminal history – Plea of guilty made

subsequent to a sentence indication – Detention during Covid-19 –

Good prospects of rehabilitation.

Legislation Cited:

Cases Cited:

Sentence:          Total effective sentence of 552 days imprisonment amounting to time

already served.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Menon	Ms J. Almirante
For the Accused	Mr T. Kassimatis	Mr B. Parker

HIS HONOUR: 

1Alexander Richard Pratt, you have pleaded guilty to one charge of cultivation of a narcotic plant between the first day of August 2016 and the second day of February 2017. The maximum penalty for this offence is 15 years' imprisonment.

2The circumstances of your offending were summarised in a document tendered by the prosecution upon your plea.  I will briefly state these circumstances based on that summary.  In around June 2016 you asked a friend named Simms to rent out a factory for you, in return for forgiving a debt he owed you.  At that time you were in a relationship with a woman called Ms Stevens and the two of you lived together.

3You provided Simms with details of a factory in Mordialloc.  Simms organised the lease of the factory through the managing agents and paid some money to secure the lease.  The money was provided by you, and Stevens, and you drove him to the real estate agency for that purpose. Simms picked up the keys to the factory and gave them to you.  The lease commenced on 3 August for two years.

4During the period, September 2016 to January 2017 you made payments into the estate agent’s account.  On 19 September 2016, however the factory's owner had visited the property, and discovered a hydroponic set up with cannabis growing within.  He reported it to the police. 

5On 2 February 2017 a search warrant was executed by police, they found a sophisticated hydroponic facility for the cultivation of cannabis which included lamps, shades, electrical circuits and a bypass.  Having become aware of this attendance by police who had secured the factory shut, you then provided Simms with a copy of a driver's licence in someone else's name in order for him to create a paper trail so as to create a false sub-lease of the factory.

6You instructed him as to how this false scenario would be documented.  This included giving him about $2,000 in cash as rent for the false sub-lease.  On
3 March 2017, a search warrant was executed at your Bentleigh residence.  Information was extracted from a computer which related to the cultivation, including images as to plant nutrients, photos of a hydroponic setup amongst other items linked to the factory.

7At the factory police found 36 plants weighing 114.34 kilograms, 36 other plants weighing 141.94 kilograms.  Various loose cannabis weighing 2.87, 8.96 and 23.5 kilograms respectively. 

8The charge of cultivation relates to the 72 plants and the smaller loose cannabis amounts, are evidence of acts of cultivation.  You were arrested and remanded on 9 March, and then bailed on 27 March 2017.

9The committal hearing proceeded in September 2018, followed two days later by an initial directions hearing.  However, the next final directions hearing was not held until 5 August 2019, when a trial date was fixed.  The May 2020 trial date was then vacated due to the COVID pandemic.

10The chronology of this matter is included in the prosecution summary and is relevant to understand the delay which has occurred.  The trial did not commence before 2 May 2022, and on 17 May 2022 upon conviction for serious charges relating to cultivation in a commercial quantity and trafficking in a drug of dependence, you were taken into custody until you were sentenced in early August.

11On 31 October 2023 your appeal to the Court of Appeal was allowed and a retrial ordered on the cultivation charge.  You were released from custody on
1 November 2023.

12This chronology in its detail as contained in the summary is very relevant to understand the steps involved in this matter, the consequential delay and its importance in the disposition of this matter.

13On 7 March 2024, a sentence indication was sought and given.  Ms Stevens pleaded guilty to two charges which did not include cultivation, namely trafficking between December 2016 and early March 2017, in relation to
15.69 kilograms of loose or packaged cannabis and dealing with property suspected of being proceeds of crime, being $2,000 in cash.  On appeal she was sentenced to 128 days' imprisonment being time served and a two-year community corrections order. 

14Cultivation of a narcotic plant carries the above-mentioned maximum penalty because it is an offence which falls within those offences which cause significant harm to the community, and its most vulnerable members and represents therefore a substantial evil motivated in most cases by greed.

15In assessing the gravity of the offence and your culpability I take into account the quantity involved, your role in the hierarchy of involvement, the size and sophistication of the enterprise, the length of time involved.  I consider you to have been a principle in this offending which is reflected in higher moral culpability.  You have no criminal history but your prior good character in my view carries less weight as a mitigating factor, as it is not unusual amongst those who choose to engage in this type of offending.  The tasks you performed, the instructions you gave, the relationship with others reflect your important role and complicity in cultivation.

16I take your plea into account, it was made subsequent to a sentence indication.  It has utilitarian value of having avoided a criminal trial.  I accept the plea of itself evidence of remorse and that is also reflected in the material tendered on your behalf.  I accept your plea reflects your desire to take responsibility for your offending and your plea will reduce your sentence.

17You are 36 years old, you were 29 at the time of the offence, in the seven years since your arrest you have spent 552 days more than 18 months in custody.  Before that time for approximately five years you were on bail, but subject to some stringent bail conditions which impacted on your liberty.

18Since your release from reclusion you have taken steps towards rehabilitation.  A significant part of your post-trial reclusion occurred during the COVID pandemic.  This means that the conditions of that detention between August 2022 and October 2023 were also impacted, at times severely by pandemic conditions which particularly in correctional facilities were severely impacted.

19This delay is a powerful mitigating factor, given the outcome of the appeal process, the two limbs which flow from delay are particularly relevant here.  The first which relates to unfairness is concerned to focus on the impact upon you of the process undertaken with the charges then hanging over your head. 

20The second limb concerns whether during that period you made progress towards rehabilitation as well as whether the prospects of ongoing rehabilitations are good.  Remorse is one part of this limb and I have addressed it before.  Evidence of rehabilitation is another.  I accept that in your case I should give full weight to eight limb. 

21In my view you have made significant positive changes in your life to enable the court to mitigate your sentence from this delay.  The focus of delay as mitigation should not only focus on the post-conviction time, but on the circumstances of your bail requirements as well, and the adjournments and delays resulting in the pandemic environment.  This too will be mitigatory and I take all these matters into account.

22You were born into a supportive and stable family environment, your parents and family members have consistently been in court to support you.  You were raised in Tasmania and upon completing year 12 you joined your sister in Melbourne to study at university.  You lived together and your parents then came to Victoria at a later time.

23In 2008 your mother was diagnosed with MS and in 2017 had extensive back surgery.  You assisted your mother at this difficult time with this recovery.  You were her carer in effect also receiving support payments for this role until your imprisonment in May 2022.

24Her letter reflects on your maturity and positive outlook both in prison and thereafter. You are conscious of the impact your offending has had on your family and have endeavoured to engage in pro-social conduct including courses while in custody and work post imprisonment.

25Immediately upon your release in November 2023, you engaged with Second Chance Jobs Program and enrolled for further programs to secure employment in the construction or rail industries.  You then secured employment in that field, in the Metro Tunnel Project.

26I have reviewed the many certificates which demonstrated the courses completely by you, particularly those in civil construction, and I take this progress into account.  I take into account also the letter from your sister, she also speaks of your profound changes in your conduct.  I take into account other references, one from Mr Davison which attests to your rehabilitative efforts.  One from Mr Favola, one from Mr Angelakis, speaks of your supportive group of friends and your pursuit of a career in the fitness industry.  One from
Mr Jetson and the letter from your father Richard.

27Each write of your remorse and regret and your general good character, and your endeavours to make something of your future as a productive member of the community. 

28As was acknowledged by your counsel submissions, there is no denying the seriousness of your offending.  Considerations of general deterrence and denunciation are primary in this disposition.  However due to the way this matter has ultimately resolved in my view specific deterrence has been applied to a large extent by the process itself and can be given less weight.

29Punishment has in my view been applied sufficiently in response to the offence to which you have pleaded guilty and the process which has brought you to this sentence finally.

30The prosecution submitted that I should impose a combination sentence, that is a sentence of imprisonment with a community corrections order.  The community-based order it was said would reflect a further punitive aspect and ongoing supervision.

31In my view such an order would have little if not work to accomplish in your case, and I consider that the time you have spent in custody together with the impact of the restrictions upon your freedom, during your time on bail are sufficient to satisfy the principles which the sentence should reflect.  I find your future prospects for complete rehabilitations are very good.

32On the charge of cultivating a narcotic plant, you are convicted and sentenced to 552 days imprisonment.  But for your plea of guilty I would have sentenced you to 32 months' imprisonment with a non-parole period of 18 months' imprisonment.  I order the disposal of the items attached to the schedule thereto and have signed that order.

33COUNSEL:  As Your Honour pleases.

34HIS HONOUR:  Thank you.  The sentence of the court is effectively a time served sentence.  Mr Pratt, you can leave the dock.

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