Director of Public Prosecutions v Price

[2024] VCC 229

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00660

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM PRICE

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2024
DATE OF SENTENCE:	4 March 2024
CASE MAY BE CITED AS:	DPP v Price
MEDIUM NEUTRAL CITATION:	[2024] VCC 229

REASONS FOR SENTENCE

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Subject:Criminal Law – sentence – guilty plea

Catchwords:              Sentencing – cultivate a commercial quantity of cannabis – multiple locations – 60 kilograms of cannabis – very limited criminal history – little weight given to specific deterrence or community protection – moderately severe major depressive disorder – chronic pain resulting from psoriatic arthritis – depression reduces culpability but not substantially and materially – weight given to general deterrence reduced to a degree – increased burden of imprisonment due to depression and chronic pain – likely confiscation of an interest in property – lack of substantial and compelling circumstances that are exceptional and rare – full confession at interview – utilitarian value of early plea – demonstrated progress on rehabilitation

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Verdins v R (2007) 16 VR 269

Sentence:Total effective sentence 20 months imprisonment with a non-parole period of 10 months; 10 days reckoned as already served; 6AAA: 2 years 6 months imprisonment with a non-parole period of 1 year 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	E. George	Office of Public Prosecutions
For Offender	S. Lacy SC	Lewenberg & Lewenberg

HIS HONOUR:

1Adam Price, you have pleaded guilty to cultivating a commercial quantity of cannabis on 1 April 2022.

Summary of offending

2The agreed basis for your guilty plea is set out in the prosecution opening dated 25 July 2023.

3In summary, on 1 April 2022 police executed two search warrants simultaneously at addresses connected to you.

4At your address on Longwarry-Modella Road, Modella, they found a cannabis plant and cannabis infused foods. You were there and police arrested you. However, these items form no part of the charge against you and I will have no regard to them in sentencing you.

5At an address connected to you on Ballarto Road, Pakenham South, police found cannabis in various forms inside sheds at the rear of the property with a combined weight of 49 kilograms. They also found eight cannabis plants growing behind the sheds with a combined weight of five kilograms.

6A significant proportion of the cannabis found inside the shed had been processed into 41 sealed one-pound bags. They were stored in a large freezer to ensure they did not deteriorate. Other significant proportions were dried or in the process of drying.

7Police interviewed you at Warragul police station and you admitted that the cannabis found all belonged to you. You also disclosed that you were growing cannabis at the Bunyip State Park near Gentle Annie. During a break in the interview, you showed police to that location.

8There police found another 57 cannabis plants with a combined weight of 15 kilograms.

9During a continuation of the interview later that day, you made full admissions to cultivating a commercial quantity.

10When asked about the process you were going to follow after drying and packaging the cannabis, you said that was not something you had a direction for at the time. You commented that there was about $100,000 worth of saleable cannabis in the shed. You agreed you were planning on selling at least some of it. You said you had previously sold some from a previous, albeit mostly unsuccessful, crop.

11I hasten to add that you have not been charged with trafficking cannabis, the definition of which includes possessing it for sale, and I will not sentence you on such a basis. I simply note these parts of the interview due to their relevance to findings I must make about your purpose for cultivating given the submissions made by your counsel.

Procedural history

12You were charged following interview on 1 April 2022 and granted bail.

13A year later, on 28 April 2023, the day of your contested committal hearing, before any witnesses were cross-examined, you agreed to plead guilty to this offence. You were bailed to appear in this court in August 2023, but your case was adjourned twice because of your then counsel's unavailability.

14I accept that your plea indicates your acceptance of responsibility and willingness to facilitate the course of justice. It also has utilitarian value by avoiding the cost and inconvenience of a trial.

15I also accept that your plea demonstrates remorse.

Personal circumstances

16You are now 48 years old. Your upbringing was free of abuse or neglect, and you successfully completed schooling to Year 12. You have since then enjoyed a stable relationship for 28 or more years, had two daughters and a profitable career as a taxidermist.

17For 10 years or more, however, you have sought treatment for psoriatic arthritis and other physical health ailments resulting in chronic pain for you. You have lived with chronic pain for which conventional medicine, particularly methotrexate, has provided incomplete relief. Your recent commencement on medicinal cannabis use has been a real boon.

18Prior to this, for some years you had been using cannabis in chews and baked food, through illicit channels, to relieve that pain.

19You have a very limited criminal history. In 2000 you were found guilty, without conviction, of carrying and discharging a firearm on private property and you were placed on a bond, and I find that this has little, if any, relevance to the sentence that I should impose in this case.

20Your regular GP, Dr Marr of Koo Wee Rup, provided a letter dated 5 January 2024 (Exhibit 5) stating that you were diagnosed with depression in 2020 for which you had since tried a few different medications, but not tolerated them. In June 2022, after you were charged, on your request she referred you to someone to access medicinal cannabis. She made no mention of any earlier like requests.

21You have also consulted Dr Masoudi from Highett, who provided a report based on your records from January 2018 to May 2023.  In those records you are shown to have been monitored and treated by that practice for a range of physical health ailments, including ones that have resulted in chronic pain, in particular your psoriatic arthritis. 

22Clinical and forensic psychologist, Patrick Newton, provided a report dated 21 August 2023 (Exhibit 1) and gave evidence during your plea hearing. He conducted testing of your personality traits, but your responses revealed significant exaggeration and symptom distortion. He re-applied the test the day before the plea hearing and the results were also invalid due to inconsistencies. In evidence, Mr Newton said that he did not believe these results to be a result of dishonesty but rather what he called a 'cry for help' – an attempt to make sure others understood your subjective experience of pain and other difficulties.

23He stated that you clearly suffer from a moderately severe major depressive disorder, directly related to your chronic pain. You reported your mental state to have steadily declined over the past four to five years, consistent with your GP's reports. COVID and all its consequences, including on your business, exacerbated this. This, he said, had effects on your judgment, clarity, and speed of thinking and increased confusion. He also describes you as being a perfectionist and rigid when it comes to treatment, describing you as being 'old-school', that is, you preferred not to talk about your problems. These were all likely to have had a significant effect on you in 2022 at the time of your offending, he said.

24I note you have recently started to see a counsellor which you report to have helped in managing your anxiety and depression. Mr Newton recommends this be ongoing. He expressed some optimism if you maintain these changes.

25He expressed the view that treatment of your chronic pain will be limited in custody, and your distress, pain and other problems would significantly increase the burden of imprisonment on you. This opinion was unchallenged, and I accept it.

26Your friends and family, namely, Geoffrey Maggs, Joe Amoroso, Andrew Lambert, Rachel Law, Karl Von de Winkler, Hannah Clayton, Tracey Johnson, Wayne Bongers, Holly McArthur, Darren John Sandy, provided character references about you (Exhibit 3). They uniformly state that you are a diligent, if not a perfectionist worker, a devoted family man and a contributor to the community, amongst other things through volunteering your expertise and experience in hunting. They speak of your shame and embarrassment over your offending. I accept that it is out of character.

27You also tendered documents relating to a Confiscation Act proceeding against your interest in your home at Modella. I note that the entirety of your home has been restrained subject to a decision of this court in relation to whether part or all of it should be excluded from confiscation.  Those documents are Exhibit 4.

28I was told that you have about a 50 per cent interest in the home and that you have filed an application to exclude that interest from the operation of any confiscation, as has your wife who holds the other interest.

29During the plea hearing, I indicated a willingness to adjourn the plea to permit that matter to be progressed or settled so that any loss you sustain might become clear, but you have declined.  I make no criticism about that.

Sentencing issues

30The maximum penalty for this offence is 25 years' imprisonment. It is also a Category 2 offence under the Sentencing Act and under s5(2H) of that Act I must impose a term of imprisonment upon you and not one combined with a community correction order, unless one of very few limited exceptions applies.

31As to the gravity of your offending, you were responsible for growing significant quantities of cannabis which were found at two locations. The multiple locations and the overall quantity, 69 kilograms being nearly three times what the law regards as a commercial quantity, makes your offending more grave.

32It is noteworthy in your case, however, that you made a full confession to police upon your arrest. You also provided police with information about the Bunyip plot, of which they were unaware. This aspect will attract significant leniency in sentencing.

33I note, however, that 54 of the 69 kilograms alleged in the charge, well above the threshold for a commercial quantity, relate to the Pakenham location, of which police were aware.

34Due to your offending, you face the likely loss of your interest in your home, if not the whole home, under the automatic forfeiture provisions of the Confiscation Act in accordance with the restraining order already made by this court. I find that the prospect of this occurring is an understandably significant stress to you, particularly as it is your family home and a place that you have built yourself over the years.

35Your family and friends set out in detail your shame and embarrassment for offending and that it is out of character for you, which I accept.

36The timing of your plea, coming during the tail end of the COVID pandemic, at a time when there was still a backlog of cases before this court, attracts greater than usual weight and will result in a readily discernible reduction in sentence.

37You have taken significant steps towards your rehabilitation by commencing authorised treatment with medicinal cannabis, engaging with a psychologist for ongoing counselling, working, and avoiding any other offending since 2022. All this also underscores your remorse for your offending.

38It has now been almost two years since, and while I do not find this to be an extended or very substantial delay, you have, nevertheless, demonstrated over that time your commitment to a pro-social lifestyle. Of course, the fact that you have reached your late 40s without any significant criminal history is a matter that is relevant to how you should be sentenced.

39As to whether you can avoid the mandatory imposition of a term of imprisonment, your counsel submitted, firstly, that your depression and chronic pain at the time resulted in impairments to your mental functioning that substantially and materially reduced your culpability according to s5(2H)(c)(i).

40Secondly, it was submitted that there were substantial and compelling circumstances that are exceptional and rare that justify a non-custodial or combined sentence according to s5(2H)(e). 

41As to the first, while I accept that your major depressive disorder, according to the opinion of Mr Newton, was a real contributor to your decision to cultivate cannabis initially, I do not find that it substantially and materially reduced your culpability for cultivating a commercial quantity of the drug. You admitted to police that your purpose for the cannabis was for sale, at least in part, you were not set up for, or in the business of reducing the cannabis to an oil usable for medical treatment such as to support your counsel’s contention that this was the primary or substantial purpose. The set-up, both at the Bunyip site and the Pakenham shed, reveals the significant efforts made, the investment in equipment and the planning necessary to achieve the quantity of drug discovered.

42As to the second exception, the threshold in s5(2H)(e) is a high one indeed. While not impossible to meet, your circumstances in this case, I find, do not do so. In considering this, I was bound to disregard all the matters in 5(2H)(c) and give less weight to your personal circumstances. I have given as much weight as I can to all the matters I have set out above, including your initial purpose for growing the cannabis, the role that your depression played in it, your progress in actual (not merely prospective) rehabilitation, the likely confiscation of an interest in your home, if not the whole home, and the hardship you will experience in custody, including the increased stress to you in knowing your conduct has made things harder for your loved ones. I am, however, not satisfied that they are substantial and compelling, exceptional, and rare.

43Having determined the matters arising under s5(2H) and to impose a term of imprisonment, I am no longer limited, however, in the matters I can consider when arriving at a proportionate length of sentence.

44As submitted by your counsel, I am satisfied that your impaired mental functioning in 2022 reduced your moral culpability and therefore the weight to be given to general deterrence should be reduced to some degree. I also accept that your time in custody will be more onerous due to your depression and chronic pain. The first, third and fifth limbs of the case of Verdins apply.[1]

[1] Verdins v R (2007) 16 VR 269.

45Nevertheless, deterring others from cultivating, particularly in such a large quantity, remains a sentencing purpose in your case, sensibly moderated. So too is the need to denounce your conduct publicly and impose just punishment for such a serious infringement of the illicit drug laws.

46Your lack of relevant criminal history means that I do not give any great weight to specific deterrence or community protection in sentencing you. I find that you have good prospects of rehabilitation.

47On the charge of cultivating a commercial quantity of cannabis, I sentence you to imprisonment for 20 months.

48I fix a non-parole period of 10 months.

49I declare that you have served 10 days and direct that this be reckoned as a period already served under this sentence.

50In accordance with s6AAA of the Sentencing Act 1991, but for your guilty plea, I would have imposed two years and six months and fixed a non-parole period of one year and six months.

Ancillary orders

51The prosecutor seeks an order for disposal of the plants and other green vegetable matter seized during the investigation. You do not oppose that order and I make it in the terms sought.

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