Director of Public Prosecutions v Proudfoot

[2016] VCC 1941

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01203

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRAHAM PROUDFOOT

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 December 2016
CASE MAY BE CITED AS:	DPP v PROUDFOOT
MEDIUM NEUTRAL CITATION:	[2016] VCC 1941

REASONS FOR SENTENCE
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Subject:
Catchwords: Cultivation of commercial quantity of Cannabis not for financial gain.
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MR J. SINGH	Office of Public Prosecutions
For the Accused	MR P. SMALLWOOD	James Dowsley & Associates

HIS HONOUR:

1Graham Leonard Proudfoot, you have pleaded guilty to one charge of cultivation of a commercial quantity of cannabis.  It is a between dates charge.  You were 37 at the time you committed the offence and you are now 38 years of age.  You have one prior court appearance and that is undoubtedly relevant to my task as your counsel, Mr Smallwood, correctly concedes.

2The maximum penalty for cultivation of cannabis in a commercial quantity is 25 years' imprisonment.  It is a serious criminal offence as that maximum should surely make clear.  Indeed you will recall your counsel describing the offence, he was speaking generally, as being an inherently serious offence. It is.

3So this matter has been opened to me earlier today, this morning in fact, by the prosecutor, Mr Singh, who appeared on behalf of the Director of Public Prosecutions of this State.  He opened in accordance with a written opening, dated the 5th December, you have heard that read aloud, which was tendered on the plea and has been marked as Exhibit A.  There were some photographs that were also tendered and a key to those photographs was also part of that exhibit.  Exhibit B comprises two statements from a botanist describing the crop and its make-up of plants, male and female, and the description of those plants and there is a second statement that describes the likely age of the crop, hence the between dates period on the Indictment.

4Mr Smallwood told me that this was an agreed statement of facts and in those circumstances I do not regard it as unnecessary to restate now the full factual basis of sentencing.  I am not going to go beyond the agreed facts that are set out in that document other than by reference of course to any of the evidence placed before me. You were called as a witness.

5Briefly though, as you know, that summary describes the nature of the crop that you were cultivating at your own house at 6 Dalpura Drive in Bayswater.  It was unusual in a number of features.  Firstly, it was not a hydroponic cultivation.  
It was just out in the garden.  Mostly they are these days hydroponic cultivations.  The other unusual feature is that it was at your own home.  It was not a rental property.  It was your own house. A house in your name.

6The crop involved 54 plants growing around the front and backyard of your property and the plants weighed a touch over 57 kg.  Warrants were executed upon that property on the 9th of February.  You weren’t there and arrangements were made the next day for you to be interviewed.  You presented yourself to the Croydon Police Station just after 6 pm the following day.

7You were charged with cultivation of a commercial quality of cannabis.  Commercial quantity can be achieved in two ways, either by weight or by plant number.  To be a commercial quantity by way of plant number there has to be 100 plants or more. There obviously wasn’t here. But the other measure by which commercial quantity can be achieved is by way of weight where the threshold is 25 kg and you have handsomely reached that amount here.  As I say it was a touch over 57 kg.

8As I said a moment ago, you were interviewed by the police.  You made a no comment interview to the police as was your right and you cannot be penalised for that, though I do accept that you turned up under your own steam to the police station the following day, this is on the 20th of February, and you also gave your fingerprints so there is cooperation to that extent.

9Mr Smallwood has conducted a plea before me earlier today and I think you will not necessarily appreciate the amount of work that goes into these things because so much of what he has done is in written material that is placed before me.  There are very lengthy and detailed written submissions that do him great credit.  The only discredit was he did not get them to the court in time but we got beyond that, I have read them all and you have heard him speak to those matters as well.  So I would be surprised if you did not recognise that it was an excellent and an obviously very well prepared plea on your behalf and, as I say, he relied upon some very detailed written submissions.

10I am not going to refer to everything that he has raised in those written submissions.  There were some other documents that he provided to the court including some results of some urine screens that were conducted on three occasions that were negative.  There were also some documents touching upon the issue of the restraining order and the potential forfeiture of your home.  They were all in a folder placed before me. There were also some cases dealt with in the Court of Appeal in that same volume.  I simply marked the whole bundle of material as Exhibit 1 on the plea.

11He relied primarily upon:

·your guilty plea and its early stage;

·the risk of forfeiture of your property and the way that that has weighed upon you.

·He spent a significant amount of his time both in the written material and in the oral submissions dealing with the context of this cultivation as, he argued, not involving a commercial setting.  It involved a commercial quantity but was not in a commercial setting where financial gain was the motivation. 

·He conceded the importance of general deterrence and specific deterrence and accepted that an immediate term of confinement was the inevitable conclusion here, but he argued that this was not a sophisticated enterprise.  It lacked many of the features of aggravation that are so often present in hydroponic cultivations that are seen by the court; and

·He relied upon the evidence that you gave on the plea as to the purpose, your purpose, behind this cultivation and it not having a commercial or financial setting.

12He made submissions as to the way in which your conduct then could be quite readily distinguished from the application of the Court of Appeal decision in the case of Nguyen[1].  That was a decision that dealt with the need for an incremental uplift in sentencing practices in relation to some categories of offending and he argued that there could be distinctions drawn that would either not have that decision apply or apply in a moderated fashion.

[1] [2016] VSCA 198

13He argued that given some of the unusual features of this case, that it would be open then to sentence you to a term of imprisonment, one that you had to serve obviously, but also to admit you to a suitably conditioned community corrections order. That such a combination type could pay adequate regard, to all the relevant sentencing purchases; and to achieve those purposes.

14Mr Singh, who appeared on behalf of the prosecution, submitted on behalf of the Director of Public Prosecutions that a combination-type disposition would be open within my sentencing discretion because of some of the unusual or non-typical features of this case.

Background

15I do not see any great need to deal in great detail with your personal background.  I will deal with it very briefly and the reason I am not going to descend to it in detail is you know what it is and your counsel has spelt it out more than adequately in both his oral submissions and in the written submission that has been filed in this case and I have no reason to doubt the personal background that has been placed before me so I act on the strength of that background and I accept it.

16You are 38 years of age.  You were born on the 23rd of 23 February 1978, so as I have said at the outset of these reasons you were 37 at the time of the commission of this serious crime.

17You have two younger siblings.  Your father was present earlier this morning.  He is still present here in court now as I pass sentence upon you.

18You left school in Year 10.  There were some issues, I think, in terms of potentially ADHD at school.  You did some courses and some certificates.  You worked briefly as a panel beater.  I think there was reference also to a pre- apprenticeship course at one point but I am not going to set out your full employment history.  It is in the document.  You have had a pretty decent employment record over the years with 8 years at one employer.

19You married in 2011.  You have one past criminal appearance at the Ringwood Magistrates' Court and that was in July of 2008 for cultivation of a narcotic plant, use of that drug and possession of that drug as well as some firearms and ammunition-type offences.

20Your counsel has gone into the background of that offending.  He, in particular, explained the nature of the cultivation.  It is obviously a totally different scale, far smaller.  It was not a commercial quantity obviously, it was dealt with in the Melbourne Magistrates' Court.  It was 8 plants.

21As to the firearm matters, they have been explained.  They relate to you finding a firearm in the clearing out of your grandfather's property, as I understand it, and I do not regard the firearms matters as having any relevance at all to my task.  I put those matters aside altogether but obviously not so the drug prior matters. Of course they are relevant.

22As I say, on that occasion you cultivated 8 plants.  You were dealt with by a court so you were arrested, you were charged, you were taken before a court, you were sentenced, and that related to 8 plants.  On this occasion for which I have to pass sentence, you cultivated 54, so a very significant expansion.

23This cultivation, that I have to deal with, was an unusual crop in that it had none of the sophistication that is so often seen in the elaborate hydroponic set- ups that come before the court quite frequently.  Where the set-up alone, when one looks at the photographs not of your crop but of most of the crops that a court sees, the set-up along, in terms of the equipment and the infrastructure, simply compels the view of there being an unmistakeable commercial or financial setting involved.

24Well, that is what normally we see but that is not what I see here and I am not satisfied to the required degree that your decision to involve yourself in the cultivation of this illegal drug was motivated, in your case, by the prospect of monetary gain.  So I make that plain.

25However, on the other side of the equation, unlike so many cases which come before the court where we have people sitting in the dock who speaking of a very bare connection to the plants or a limited connection by way of timing and duration, in this case you were not a mere crop sitter. This is your crop.  This was entirely your doing.

Guilty Plea

26All right, well turning then to - and I have already turned to some of those matters that were being raised by your counsel, in particular the issue of your purpose behind the crop but I have already indicated my conclusions there. 
I will say more about that in due course.

27Turning to the other matters raised on your behalf, well you have pleaded guilty to this offence and you have done that at a very early stage.  It settled on the day of the committal.  You did not cross-examine any witnesses.  Your wife went ahead and ran a contested committal. You did not.  I suppose there are some pleas that are earlier but yours is still a very early plea so I take that into account.

28I reward you for your guilty plea and the early stage at which it was entered.  You have taken responsibility for your crime.  You have facilitated the course of justice and you must be rewarded for that stance.  Witnesses have been spared the experience of coming to this court on your behalf.  They have been spared the experience of giving evidence in relation to your matter in the Magistrates' Court. As I say it settled prior to the commencement of the committal.  So you have to be given a significant benefit for that.

29You, by adopting that stance, have taken responsibility, you have facilitated the course of justice and the community has been saved the time, the cost and the effort associated with the conduct of a contested hearing either in the Magistrates' Court or up in this court.  But for your guilty plea, I would have imposed a far more significant sentence upon you and as I commented on earlier, you have also been cooperative to this degree in attending upon the police for interview and consenting to your fingerprinting so I take that into account as well.

Remorse

30I turn to the issue of remorse.  It was flagged very directly in the written outline of your counsel as being something I should have regard to though that changed in the course of the plea.  You gave evidence before me and you used the word "remorse" to describe your feelings but it became apparent that when you were using that word, and I am not being critical of you here, you were actually speaking of the impact upon your wife and the potential loss of your own home.

31Now, I do not doubt that those things have significantly affected you so as I say I am not being critical but it is just a matter of the terminology and whether a court can find the presence of remorse in your case.  Remorse is remorse or contrition for the actual commission of the crime and what you have described is very different to what the law would describe as remorse and ultimately I think your counsel accepted that proposition. He withdrew his submission as to the presence of remorse.

32A guilty plea is usually evidence of some remorse.  I am prepared to find only that level of remorse; that is, as expressed or implied in your guilty plea in this case.  I am not directed to any other expressions of remorse in the materials but I take into account the remorse as implied by your guilty plea.

Rehabilitation

33Your counsel made some submissions as to your prospects of rehabilitation.  I do not recall him necessarily employing an adjective in describing what they were.  You have a relevant prior criminal history but of course it is not a long one.  It is the one court appearance a number of years ago and you are 38 years of age.

34You are a long term user of cannabis.  You have been using, I am told, since about 2008 and it would seem though that you have been taking some steps since not to use; that is, since apprehension in relation to these matters.  There are those clean urine tests that I have referred to and I take those into account, those three occasions.

35You have undoubtedly made a bad choice in committing this crime.  You know that.  You do not need me to tell you that.  But unfortunately you have made the same style of choice in the past that led you to the Ringwood Magistrates' Court back in 2008, though obviously on a far more minor scale, I make that plain enough.  I do not doubt that you have felt the impact of being interviewed by the police and then charged by them and then committed to this court and waiting in the wings to have this matter finalised.  It cannot be an easy business for anyone and I have the sense that it has weighed actually quite heavily on you.  I have seen you give evidence before me.

Risk of Forfeiture

36I do not doubt that you are worried about the predicament of your wife, who has also been charged, and who awaits her own trial and she has a diagnosed anxiety condition.  You would no doubt be very worried by that and the impact upon your wife and also of course as to the potential issues of forfeiture of your home.  It is a home you purchased when you were 22 or thereabouts.  There is no suggestion that it is the product of any sort of ill-gotten gains or anything like that and yet you stand at risk of forfeiture of that property. Well at least that is flagged to you in the documents before me.

37You told me in your evidence in response to questions from your counsel that you really just had not thought through this conduct.  It had not occurred to you that you could be running the risk of forfeiting your house.  So all of those things that I have mentioned, the apprehension and interview and being charged and going to the Magistrates' Court and coming up to this court and the impact upon your wife, the worry about the risk of forfeiture of your own house, all of those things would have an impact upon you and would go some distance to dissuade you from putting yourself in this position again and so too will the sentence that I will soon pronounce.  So there will be a real role to play in those areas by things that already occurred and things that will occur as a result of the sentence which I am sure will go a distance in deterring you from offending in the future. 

38You, and it might be one of those cases where it is actually very useful to see you, cut an unusual figure down in the dock and in the witness box.  You do not strike me in any shape or form as being a hardened criminal and that is because you are not.  Unfortunately you have leapt in at the deep end and committed a serious crime, you know that, but I was struck by the way you appeared in your evidence and there was a certain naiveté to what you were saying which I suspect also infected what you did and it goes to reduce, to some extent, your culpability.

39There was some reference to having had a motor vehicle accident a number of years ago and to some level of slurring of your words since that event.  It has never really been explained.  I saw signs of that when you were being arraigned and when you were giving evidence before me but your counsel did not suggest that I could have any regard to that in a Verdins'[2]-type fashion.  Anyway, ultimately in terms of your rehabilitation I am prepared to accept submissions as to there being favourable prospects here.  I think your prospects are likely good if you can abstain from using drugs and that is pretty important.  If you cannot, then you will get yourself back into strife.

[2] (2007) 16 VR 269

40Your counsel raised the risk of forfeiture of your house and I take into account in the way submitted by your counsel. That that risk of the loss of your home, it is very difficult for me sitting up here now to quantify the risk and that is because your wife has applied for an exclusion order and she is no doubt asserting a lack of involvement in or knowledge of any of the criminal activity at the premises and she is also of course asserting an interest in the property and no doubt she has an interest.  I have been told about her payment of the mortgage and the occasions where you were not working.

41Her trial awaits.  I really cannot make any judgments as to the likely outcome of her criminal trial, of her exclusion application, which would take place after that criminal trial, or ultimately the risk of loss of your home.  It is just impossible for me to quantify the risk or make judgments as to what is going to happen down the track.

42However, it is undoubtedly a risk.  There is no question about that.  You have got the restraining order.  It is an automatic forfeiture offence and so I certainly conclude that that risk does exist and as importantly, if not more importantly, one that I am sure has weighed heavily upon you.  As I described earlier, you probably did not even appreciate that that sort of thing could arise as a result of your conduct and then you get charged and everything then snowballs from there and before you know it there is a restraining order in relation to your largest asset so I have got absolutely no doubt that that has weighed heavily upon you and I take it into account.  So I take it into account in the manner suggested by your counsel.  It is not the biggest matter on the plea obviously.  He describes it as being a relatively minor matter and I take it into account in the way suggested by your counsel.

General remarks

43I want to turn then to some general remarks.  So much of the plea was taken up in considering the nature of the crop and your role and, more significantly, your reasons for cultivation.  Mr Smallwood asserted, and it was a bare assertion made in the written submissions and then in his oral submissions, as to your cultivation for your own use.

44Now, there was a difference between the two.  In the written submissions it was for your own use, and Mr Smallwood expanded upon that in his oral submissions and asserted that you were growing the cannabis for your own use, for the use of your wife and also to provide cannabis to a friend who was a long term chronic user, I think was the word either he or you described.  So it went then beyond the personal use spoken of in the written outline.  The thrust of all of this was that it was not taking place in a commercial setting and by that I mean with a mind to some future financial gain.

45Well, as a matter of fairness I raised with your counsel, really the complete absence of any such account available to me.  I had no interview from you where you described why you were doing what you were doing.  You made a no comment interview.  I had no report from psychologist of why you were doing what you have been charged with because there was no such report.  So I raised with your counsel my difficulties, as they then were, in accepting such an account given the number of plants involved and he called you to give evidence.

46You described growing as many plants as you did as you had done it in the past and you had the experience of suffering a number of deaths or losses of plants along the way.  You said that this particular season, where you were growing this crop, was a very good season.  You had not suffered any sort of losses, the growth was successful and you did not wish to pull up the plants once they had grown.

47You were cross-examined by the prosecutor.  Having seen you give evidence, I think I have already pronounced this, I am certainly not satisfied beyond reasonable doubt that you were in this for money or for financial gain.  In fact, on the balance of probabilities I am prepared to accept the account that you have provided in your evidence to me.  So I do not conclude against you any intention to gain financially and I accept that the drug was being grown not just for yourself but for yourself, your wife and another person and my conclusion, in this area, is shaped also and fortified by the unusual aspects of this crop.

48It was not hydroponic and hence did not have those significant costs associated with that style of set-up.  In addition, it was at your own house, not a rental, but at a property in your name and that is a most unusual feature as I perceive it. It is quite unusual for all the reasons that you are seeing in terms of the forfeiture application.  There is no great sophistication here at all as compared to many cases coming before the courts and Mr Smallwood addresses those aspects in his written and oral submissions.

49As I said, on the other hand of course, this was your crop.  It is not a matter of being some hired underling or some participant with little link to it. It is a crop that you established, a crop that you nurtured, you are the architect of it and it was yours.  I suppose as with most commercial quantity cultivators, whether in a commercial setting or not and in this case I say not, you were taking a calculated risk.  Every person who grows a crop is and of course it has backfired very badly for you.

50The crop and its ultimate success has been interrupted by the execution of the warrant by the police.  I have said that there was no great sophistication here and the police that attended previously could actually smell cannabis but of course you were not growing it to be discovered. You were hoping that you would not be discovered but you were and the success of the crop has been interrupted by the events of the 9th of February when the police turned up.

51Even though I have reached this finding of the absence of any financial motive in your case, and that is an unusual position, of course you still knew that what you were doing was illegal and serious.  It was not some sort of minor concern underway.  Cultivation generally is a prevalent offence and with the prevalence of this conduct comes an increasing need to reflect the principles of general deterrence in any sentence imposed by the court.

52I am required to manifest this courts denunciation of your criminal conduct, and I do that.  I must also punish you.  I have got to do that justly and proportionately and I am also required to seek to dissuade, or to deter if you will, both you and others from committing this sort of offence in the future.

53As I said, unlike most cases coming before the court where we have paid crop sitters with no financial stake in the crop or involvement in the set-up, you of course were the architect of this scheme.  It was your own crop.  This crime carries a maximum term of 25 years’ imprisonment and the Court of Appeal of this State has spoken often of the prevalence of this crime, of its seriousness and has on numerous occasions leading up to the decision of Nguyen this year, queried the adequacy of sentencing practices.  Recently the Court of Appeal, as I say in that case of Nguyen in August of this year, have spoken quite authoritatively in this area.

54Well, you have chosen to cultivate a commercial quantity of cannabis.  It was over two times the commercial quantity by weight and this is a quantitative based regime and those who choose to engage in this activity, at whatever level and for whatever reason, are virtually always taking some form of calculated risk.  That risk is usually embraced by people because of the hope or expectation of some financial reward and that was not the position in your case and that is an unusual feature of this case and will explain the form of sentence ultimately that I am going to adopt.  What you hoped to obtain was an amount of cannabis for yourself and a couple of others.

55Well, sentencing always involves the balancing of a number of purposes or principles and I mention some of them.  I have to also take into account your prospects of rehabilitation, and I think they are good, but your offending leaves the court really with only one alternative and your counsel concedes that you must be imprisoned so serious is your offending.

56Given your criminal record, that is the nature of it, and the seriousness of this current offence, it is conceded that I must give regard to specific deterrence, that is to your being deterred.  Well, that makes sense.  You have cultivated cannabis in the past at a smaller level and here you are doing it again at a much larger level.

57A court generally has to give some consideration to the weight to be given to community protection.  I think that can be very significantly modified in this case given my favourable conclusions as to your prospects and the motivation behind the cultivation in this case.

58I must punish you, as I have said, and it has got to be just and proportionate but the offence is one that generally requires substantial punishment and that is made plain enough in the authorities including the case of Duong[3].  As I have said, I must denounce your crime.  General deterrence is a significant purpose here as is conceded by your counsel.  That is, sending a message to others who might be, for whatever reason, minded to cultivate cannabis.  There are seemingly very many out there who do need to be deterred.  They are seemingly not being deterred by the sentences passed by the court.  So the message needs to be made very clear.  This is inherently a serious crime; that is, the crime of cultivation in a commercial quantity.

[3] [2006] VSCA 78

59However, a court is required to engage in an assessment of the nature and the gravity of the particular instance of the crime before the court.  It is not one size fits all.  Every crime is different and so too is every offender.

Current sentencing practice

60I have to pay regard to current sentencing practices.  I have looked at the Sentencing Snapshot No.197 of 2016 that you heard discussed.  That is from the Sentencing Advisory Council.   I have looked also at the repository of material held at the Judicial College of Victoria sentencing site, including an overview of commercial cultivation sentences in the Court of Appeal to which I have been referred.  I ignore any decisions dealing with any large commercial quantity. Of course that is not what you are charged with, it has got a higher maximum so I put those aside altogether.

61There are real limitations in a court making any sort of judgment based on statistical material, as the Court of Appeal have told me over the years and it makes good sense.  They are statistics.  They do not tell me anything about the individual crime or the individual offender.

62I have been taken to some other cases and they are referred to in your counsel's outline.  You have heard some of them discussed as well in submissions made.  But again, there are many limitations in looking at other cases.  None of those other cases are authorities or precedents as to the sentence called for in your case and nor is your counsel suggesting they are by the way.

63One thing that is very clear from the many cases in this area, and this is conceded by your counsel, is that cultivation in a commercial quantity is undoubtedly a serious crime.Well it is, and the Sentencing Snapshot that I have referred to bears that out.  The most common prison sentence in that timeframe covered by that snapshot was two years to less than three years, with a median of two years meaning half were more and half was less.  Of course many of those statistics found in that resource are derived from cases decided before the case of Boulton[4] v R which was a decision of the Court of Appeal in December of 2014 from memory.

[4] (2014) VSCA 342

64What is made plain by all the authorities in this area though is the fact that this is a prevalent crime in the community and general deterrence is, and for that matter must be, at the forefront of any sentence imposed by the court.  See the case of Pham[5].  See also the recent case of McGrath[6].  That is a post-Boulton decision, that case of McGrath in 2015, and it confirms the seriousness of this crime though I accept immediately that the offending in that case is more serious than yours.

[5] [2007] VSCA 234

[6] [2015] VSCA 176

65There has been much discussion in the course of the plea by your counsel about a decision of Nguyen and that was a decision delivered on the 11th of August of 2016.  It is a lengthy decision and really it had the Court of Appeal going chapter and verse into a whole variety of sentencing statistics and data available in relation to the crime of cultivation of a commercial quantity and also it had the Court of Appeal examining various reports and also other cases. The Court of Appeal in that decision concluded that there had been no adequate distinction drawn in sentencing practice between the lowest category of seriousness reserved for offenders such as crop sitters who generally had no financial interest, and those who were principal offenders.

66So the Court of Appeal in this decision, and this is I am sure simplifying it greatly but I see the need to, it spans 83 pages, the Court of Appeal endorsed the incremental uplift for mid-category offending but seemingly spelt out that that uplift would not operate as against some of the lower category instances of seriousness.  Only time will tell how this decision operates in practice.  It will always depend on an assessment though of the gravity of the offending before the court.

67Your counsel made a couple of submissions in this respect: firstly, he submitted that the decision of Nguyen had less application to you because you had pleaded guilty at the committal prior to the reasons being announced in that case.  I do not accept that contention that it has lesser application because of the timing of your guilty plea.  The fact is you were on notice prior to today, as was your counsel, as the decision was delivered in August of 2016 and it is not to the point that you have pleaded guilty at the committal prior to that, so I do not accept that contention.

68In the end though, even if I am wrong in that respect, it is academic because I believe there are some key differences at play here.  Though you are a principal, that is the architect of this cultivation and hence entirely responsible for it, there is then the absence altogether of the commercial setting and the absence of financial gain driving the enterprise, it is that fact that convinces me that the case of Nguyen ought not be applied to my task in terms of any suggested uplift and really what I am saying, probably clumsily, is that I will not place you in the mid-category of offence seriousness despite your being the principal because of the matters that are raised as to the lack of sophistication and of course the lack of commerciality in this particular act of cultivation.

69I pay regard to the Court of Appeal decision of Boulton and your counsel argued that I could impose a combination sentence.  That is, a term of imprisonment together with a community corrections order.  I have had you assessed and unsurprisingly you are judged to be suitable for such an order and of course implicit in the submission of your counsel is that a community corrections order on its own cannot achieve the various purposes of sentencing.  Well,  in that respect of course I agree but a combination-type sentence, he argues, can achieve the purposes; that is, a term of imprisonment in combination with a community corrections order.  Again, I agree with that submission.

70I think in proceeding in the way that I propose to, I can then significantly limit your exposure to prison, whilst providing for your treatment and your rehabilitation and for that matter your punishment, in a less punitive setting upon your release.  This type of combined effect, this type of combination sentence, therefore will have you serve at least, relatively speaking, a short prison sentence before being released on the lengthier community corrections order.

71I do not accept that a community corrections order on its own can pay sufficient weight to the need to punish and to denounce and to deter and that is significant, it is especially the aspect of deterrence that is important here and for that matter your counsel is not suggesting that a community corrections order on its own can achieve the purposes of sentencing.

72The term of imprisonment that I intend to pass in conjunction with the suitably conditioned community corrections order can achieve these various ends.  So let me just deal then with the formality of the orders.

73Mr Singh, did you hand up 464ZF orders, or?

74MR SINGH:  I don't think we got to that yet, Your Honour, but I do have them here.  There's disposal orders and the 464 order, Your Honour.

75HIS HONOUR:  Yes, so just hand up the custodial version of them and ‑ ‑ ‑

76MR SINGH:  Yes, that's what we're doing.

77HIS HONOUR:  How did you go with the disposal?  Was that ‑ ‑ ‑

78MR SINGH:  We've resolved it, Your Honour.

79HIS HONOUR:  That's sorted out.  So is that in the form in which that's coming up?

80MR SINGH:  Yes.

81HIS HONOUR:  Mr Smallwood, is there any issue in terms of that or not?

82MR SMALLWOOD:  No, Your Honour.  Mr Proudfoot consents to both orders, in the form that has been handed up to Your Honour, being made.

83HIS HONOUR:  The contentious aspect was a computer, was it?

84MR SMALLWOOD:  A computer.

85HIS HONOUR:  And that's no longer ‑ ‑ ‑

86MR SMALLWOOD:  That's no longer in the order.

87HIS HONOUR:  All right, that's fine.

88MR SMALLWOOD:  The order does include two USB sticks and there's no opposition to those items being included in the final order.

89HIS HONOUR:  All right.  Look, I think I'll come back to those.  Yes, I'll come back to those orders.  If I look to be straying away from those, just remind me would you, both of you.

90MR SINGH:  Yes, sir.

91HIS HONOUR:  All right.  All right, well I think I'll just have you stand up briefly, Mr Proudfoot, and then I'll get you sitting down again in a second.

Sentence

92On Charge 1, cultivation of a commercial quantity of cannabis; I am going to convict and sentence you to 4 months' imprisonment.

93In addition I am going to release you on a two year community corrections order.  I am going to need to explain that order to you because at the end of the day you need to consent to that.  I need to know that you understand what I am saying and that you consent to it.  But that explanation is going to take a little bit of time so I think rather than having you stand up, I will get you to sit down again, okay.  Grab a seat and just listen carefully and I will give you the chance to speak to you counsel at the end of this explanation.

94You have not had one of these orders.  I have explained these orders to people who have had 10 of them and their eyes glaze over.  You have not had one so you need to understand the effect of this order.  So it's a 4 month term of imprisonment.  Then you will be released on a community corrections order.  You will come out and you will be on that order.  You get a copy of this too before you leave today.

95So just stay seated down there.  Let me just explain the order then.  So it is a two year order when you get out and when you get out you will need to attend at the Ringwood Community Corrections Services, Level 1-2 Bond Street, Ringwood, and you have to do that within two clear working days of being released. So regrettably you are going to prison.  Your counsel concedes you have to and he is correct.

96But unlike many people who are dealt with for this style of offence where they have no guaranteed release, they have a non-parole period where they may or may not be released by the Adult Parole Board, you will be released.  It is not a matter of getting parole.  You serve the four months and you get out, but when you get out you have then got this community corrections order.  You have got to report within the two clear working days and if you do not, then you breach it already and I am sure you will not.

Mandatory terms

97These orders have mandatory terms that apply to every person who gets one and they have conditions that can be tailored to the particular person.  Let me deal with the mandatory terms.  They apply to every order and they apply to you.  You must not commit another offence for which you could be imprisoned during the time the order is in force.  That is pretty straight forward.  If you commit any offence punishable by imprisonment, and these days virtually every offence is, then you will breach this order.  So if you were to grow plants or even potentially possess a drug, it can be punishable by imprisonment.  You have just got to stay out of trouble.  That is pretty straight forward.  If you do not, then you breach the order.

98There is a condition there that says you have got to comply with the obligation or requirement under Regulation 17 of the Sentencing Regulations.  What does all that mean?  It means you have got to turn up totally unaffected by alcohol or drugs and on time and also you will need to make yourself available for a photograph to be taken for record keeping purposes.

99You must report to and receive visits from the Community Corrections Officer.  You have got to report to them within two clear working days of the order starting, so that is immediately upon your release, within two working days you have got to get down to Ringwood.  You have got to let them know within two clear working days of changing your address or your job, all right.  Not saying you cannot change your address, not saying you cannot change your job, but just let them know and you are not allowed to leave Victoria without first getting permission to do so.

100If you up and leave without permission, then you are in breach.  I am not saying they would stop you from leaving if you apply to get permission to go for a holiday or something like that, they probably would give it to you but if you just get up and leave then you would be in breach and you have to obey all their lawful instructions.  So they are the mandatory terms.  If you breach any of those, you breach the order, all right.

Conditions

101Then there are the tailored conditions that are based on your needs and for that matter the needs of sentencing so it is not just a matter of your needs, it is also an aspect of punishment here as well.  Firstly, you will be under supervision of a Community Corrections Officer for a period of two years, for the full period of the order.  Then there are conditions dealing with your need for treatment.  Hopefully, conditions that will prevent you from breaching this order and will stop us from seeing each other in the future.  So you must undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the Regional Manager and you must undergo any  mental health assessment and treatment that may include psychological, neuropsychological, psychiatric treatment in a hospital or residential facility as directed by the Regional Manager.  There is a fair bit in all of that.

102I do not know what they are going to direct you to do by way of assessment or treatment or testing for drug abuse or any sort of issues in terms of mental health.  What I do know is whatever they tell you to do, you have to do, all right.  And there is a bit of unpaid work and I am going to keep the total of that down to a quite manageable level.  It is unmistakably punitive, there is no question about that, but there is an aspect of punishment obviously in being imprisoned as well so I am moderating the number of hours.  I do not want you to get out and to be totally overwhelmed by an enormous number of hours over your head over two years so I am going to trim it back, it is going to be 100 hours.  You must perform 100 hours of unpaid community work and that is over a period of 12 months and what I am doing is I am making that an intensive compliance period, that is you must complete that condition, the 100 hours, in the first 12 months of the order.  You will get it out of the way, all right.

103You will see also on the document when you sign it that it says: "If you fail to comply with that aspect of the order, the unpaid work, the Secretary to the Department of Justice may give you a direction to perform additional hours of unpaid community work in accordance with some obscure provision of the Sentencing Act".  I wish that was not on the document.  It is. I have got no choice over it.  I do not want you to see that and think that the worst that will happen is if you do not turn up for work they will tell you to do some more.

104They can give you such a direction but work on the theory that if you fail to comply with any of these conditions you will brought back in breach.  All right, that is the safest thing.  So they are the full suite of terms and conditions that apply to you.  So as I say, regrettably you are off to prison but you are off to prison for a relatively short period of time and then you will be released back into the community at the end of that four month term, on that order.

Breach

105What I have not explained, but I am sure the author has but I am going to anyway, is that if you breach any of this then you come back to court.  Let me give you the benefit of my experience: I have been sitting as a judge for a number of years but prior to that I was down at the Bar table, down each end of the Bar table, for many many years. Of course there are people who breach these orders by committing offences.

106Well, I do not think you will do that but the lion's share of people breach them just by falling out of contact with their Community Corrections Officer or they fall into the trap of thinking "Well, the court case is finished and that's what I got" and then they really forget about the importance and the significance of the order.  More difficult even for you because you are going to prison for four months.

107You are not going out the door to your right, you are going out the door to your left and you will not enter into this order until four months from now.  If you then tend to put this appearance in the past, so it is all over, you will breach this order because it is not all over.  You are on this order for two years from the date of your release.  It is amazing how people breach these orders.

108I have seen every manner of breach, I think, known to man including people who have not even turned up for the induction appointment.  I have seen people who have failed to turn up at work, they have failed to turn up at supervision, they have gone interstate, they have left an address, they have not reported the details they need to report.  You will be assigned a Community Corrections Officer.  Communicate with them, that is my advice to you.  If you do that, you will not go too wrong and they are not going to be silly about it.

109If you have got some particular reason for not being able to turn up at a particular assigned time, whether it is supervision or assessment or treatment, let them know.  Let them know in advance and no doubt they will reschedule and even if it is on the day, let them know but if you do what most people do, that is say nothing and then when the breach is brought back to court have some explanations that you want to give to a court, they almost never pass muster. So communicate with your Communicate Corrections Officer.

110They will not be silly but nor are they fools. So if you play around with them, we will see each other again.  If you communicate with them appropriately, as I suspect you will, then we will not see each other again because you would be correctly implying, from what I am saying, if you breach this order you are brought back to court.  Not to the Magistrates' Court, not just to any court in this building, but in front of me because the judge who places the person on the order deals with the breach in this court.

111I cannot tell you what I would do upon any breach.  One thing I can tell you is I would be required to pay regard to anything that was raised on your behalf and I would need to make an assessment of the nature of the breach: was it a breach by offence or a breach by non-compliance?  Had you made genuine efforts to comply?  Had you treated the order as a joke?  I mean, I have no idea.

112I hope I never see you again but what I am obliged to do is listen to anything that is said on your behalf on the breach but I think you are best to work on this theory: you heard me talking and you heard all of us, I think, talking about the median terms of imprisonment and the most common lengths of imprisonment as disclosed in the statistical material, being two years to less than three years.  You are receiving a four month term of imprisonment plus a community corrections order.

113Work on this theory that of course I would listen to anything that was said on your behalf if you come back, but I think the most commonly exercised power by a judge upon a person coming back in breach, firstly breaching one of these orders is itself a criminal offence punishable, I think, by three months' imprisonment but that is not the real sting.  The sting is this: if you breach it, you expose yourself to the risk of cancellation of the order and that is the most commonly exercised power by a court and if a court cancels the order, then they have to resentence and you do not want that, all right.

114There has been uncertainty in your life coming to court here today.  You would not have known what would be happening.  I think you would have had a fair sense that you were going to prison but you did not know how long that would be for.  Would it be months, would it be years?  Well, you know the answer now.  It is four months.  It is a short, sharp sentence.  It will not be pleasant.  It probably will not feel short or sharp but do not expose yourself to the risk of cancellation of this order and you will if you breach it.

115Work on the theory that if you breach this order and come back, it is likely that the order will be cancelled and you will be exposed to a far lengthier term of imprisonment with a non-parole period actually being fixed.  All right, so not months.  Anyway, as I say I would listen to anything that was said on your behalf.  Let me just see if I have adequately explained that order.  Mr Smallwood, do you want to go down to speak to your client if you could?  Anything else I need to discuss with him at all or not?

116MR SMALLWOOD:  I don't believe so, Your Honour, but if I can approach Mr Proudfoot?

117HIS HONOUR:  Yes of course you can, yes.

118(Mr Smallwood approaches dock.)

119HIS HONOUR:  Sorry, yes?

120MR SMALLWOOD:  Your Honour, I am satisfied that Mr Proudfoot understands the terms of the community corrections order to be imposed.

121HIS HONOUR:  Yes, thank you.

122(His Honour reads.)

123Yes, all right.  Well, I'll have that order come down to the Bar table.  If you'd just both look at it and then if it accords with my stated intentions, I will have it go down to be signed by your client.  You can go down while it's being signed as well, Mr Smallwood.

124MR SMALLWOOD:  As the court pleases.

125(Mr Smallwood reads.)

126MR SMALLWOOD:  It seems in order, Your Honour.

127HIS HONOUR:  Yes, all right, I will have that go down.  You go down as well, Mr Smallwood, and ‑ ‑ ‑

128(Mr Smallwood approaches dock.)

129MR SINGH:  And if I may, Your Honour, I might remind the court of the provisions of 6AAA, with respect.

130HIS HONOUR:  I am coming to that.

131MR SINGH:  Sorry.  Nearly there.

132MR SMALLWOOD:  Mr Proudfoot has signed that order, Your Honour.

133HIS HONOUR:  Thank you.  I will get that copied in a moment.  Mr Proudfoot, can you just stand up again please.  Do you consent to entry into this community corrections order?

134OFFENDER:  Yes, Your Honour.

135HIS HONOUR:  All right, and do you confirm that you have signed it under the words "I understand the effect and the conditions of this order and consent to it being made"?

136OFFENDER:  Yes, Your Honour.

137HIS HONOUR:  And that's the position?

138OFFENDER:  Yes, Your Honour.

139HIS HONOUR:  Yes, all right.  I will have a copy of that run off for you.  Grab a seat then.  Sorry, Mr Singh, so the disposal order has been adapted by hand to avoid - I mean, the things to be disposed of, they are not going to be disposed of prior to the other trial?

140MR SINGH:  Correct.

141HIS HONOUR:  All right.

142MR SINGH:  Most likely there will be exhibits in the other trial as well, Your Honour.

143HIS HONOUR:  Yes, all right.  All right, look I will make that order then.  Grab a seat then, thank you.

144MR SINGH:  Thank you, Your Honour.

Disposal

145HIS HONOUR:  I am satisfied of the - well, obviously Mr Proudfoot has been convicted of the relevant offence, that is cultivation of a narcotic plant in a commercial quantity.  I am satisfied that the property referred to in the schedule meets the criteria under the provisions of the Confiscation Act for disposal.

146I order, pursuant to s.78 of the Confiscation Act, the forfeiture to the State of the property referred to in the schedule, I direct it be placed into the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceeding or the proceedings of the co- accused, Leonie Proudfoot, where it may be tested or analysed and then destroyed.  I have signed those orders.

Section 464ZF

147I have also signed the 464ZF - just remain seated, Mr Proudfoot.  That is a forensic sample order. The Crown are applying for a forensic procedure for the taking of a scraping from your mouth.  They were asking for a blood sample as well.  I have not authorised that.  It is just the scraping from your mouth.  It is not an invasive procedure and there is no opposition taken by your counsel to that application so in the circumstances I am satisfied that the making of the order is justified owing to the seriousness of the offending, the fact that it is not opposed, and that I judge it to be in the public interest.

148What will happen is the authorities will come to you to take a mouth swab basically.  It is not an invasive procedure.  It is not difficult.  No-one is sticking a needle into your arm or anything like that.  They can use reasonable force to engage in that procedure.  They should not need to but if it was problematic, no doubt the authorities would be back then applying for a blood sample so there is no reason for that to occur.  All right, well I have signed that and pronounced that order as well.

Section 6AAA

149Finally, Mr Proudfoot, I have told you that I take into account your guilty plea, and I do. Had you pleaded not guilty and been found guilty by a jury following a contested trial, I would have imposed a more significant term upon you. There would have been no question in my mind then of a combination-type sentence. I would have convicted and sentenced you to 4½ years' imprisonment with a 2 year 9 month non-parole period. That statement is made pursuant to the provisions of s.6AAA of the Sentencing Act and is to be entered in the records of the court.

150Now, Mr Singh, are there any matters that I have overlooked at all or not?

151MR SINGH:  No thank you, Your Honour.  That covers it.

152HIS HONOUR:  All right, Mr Smallwood?  Any matters that I need to - well firstly, that I have overlooked at all or not?

153MR SMALLWOOD:  No, Your Honour.,

154HIS HONOUR:  Now, your client is going into custody and he is going into custody for the first time.  Do you want me to make any sort of directions on the orders at all or not?

155MR SMALLWOOD:  No, I don't believe in the circumstances it would be necessary to note any custody matters are in issue, Your Honour.

156HIS HONOUR:  All right.  Are you - will you be able to get down and see him this afternoon or not?

157MR SMALLWOOD:  I hope to do so.  Yes, Your Honour.

158HIS HONOUR:  All right.  So anyway, no other orders that I need to make?

159MR SMALLWOOD:  No, Your Honour.

160HIS HONOUR:  All right.  I'm sorry to have sat so long into the day. 

161MR SINGH:  One last thing, Your Honour, if I may.  Compliments for the season.

162HIS HONOUR:  Yes, well same to all of you.  All right.  Well, Mr Proudfoot, that concludes the matter.  Your counsel is going to try and get down and see you downstairs, all right.  It sometimes happens, I hope it doesn't, but there might be a bit of a rush to get people onto the van.  If that happens, don't panic.  Someone will get out to see you at prison, all right, but if he can get down and see you downstairs that's what he'll do, all right.  In the meantime, I'm sure he'll give your father advice about how your dad will be able to get out and visit you and those sorts of things, all right.

163So anyway that concludes the matter and you've got that community corrections order in place once you emerge from prison in four months from now – so treat it very seriously when you do and if that's the way you approach it we won't see each other again.  If we see each other again then obviously I will need to deal with you on the breach, all right, but best of luck in the future.

164OFFENDER:  Thank you, Judge.

165HIS HONOUR:  Yes, all right.

166OFFENDER:  I hope not to see you again.

167HIS HONOUR:  Yes, all right.

168MR SMALLWOOD:  As the court pleases.

169HIS HONOUR:  All right, well Mr Proudfoot can be removed, thank you.

170(Offender removed.)

171HIS HONOUR:  Yes, well I thank each of you for your assistance. 
10.30 tomorrow.

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