Director of Public Prosecutions v Pulis

[2024] VCC 7

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00730

DIRECTOR OF PUBLIC PROSECUTIONS

v

Michael Pulis

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2024
DATE OF SENTENCE:	5 August 2024
CASE MAY BE CITED AS:	DPP v Pulis
MEDIUM NEUTRAL CITATION:	[2024] VCC 7

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence – guilty plea

Catchwords:              Sentencing – cultivating cannabis – possessing a schedule 4 poison – 38 years old man at time of offending – substantial number of plants – sizable operation – prior conviction for this offence – repeated offending more serious – offending whilst serving a community correction order – high culpability – significant criminal history – must give weight to specific deterrence – diagnosis of major depressive disorder and adjustment disorder – moderate cannabis use disorder – prison more onerous due to mental condition – guarded prospects of rehabilitation – utilitarian value of guilty plea – not satisfied of genuine remorse

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

Cases Cited:DPP v Caraku [2023] VCC 1469, DPP v Lam [2022] VCC 2182, DPP v Lock [2022] VCC 587, DPP v Nguyen & Ors [2023] VCC 242, DPP v Nguyen [2023] VCC 2259, DPP v Nguyen [2024] VCC 592, DPP v Vo [2022] VCC 206, DPP v Toscano [2022] VCC 1184

Sentence:Total effective sentence 8 months imprisonment plus a community correction order for 18 months; 33 days reckoned as already served; 6AAA – but for plea of guilty, sentence imposed would have been 19 months and non-parole period of 12 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	S. Lee	Office of Public Prosecutions
For Offender	J. Gullaci SC (at plea) J. Bourke (at sentence)	Joseph Burke Law

HIS HONOUR:

1Michael Pulis, you have pleaded guilty to cultivating cannabis and possessing a Schedule 4 poison both on 22 September 2022.

Summary of offending

2The agreed basis for your plea is set out in the prosecution opening dated 24 May 2024.

3In summary, on the morning of 22 September 2022, police came to your home, from where you also conducted your business in Hillside, with a warrant to arrest you and take a sample of your DNA.

4Whilst you were not there, your friend Paula Baini was, and having been told of the warrant she let them in. Upon inspecting the premises police found 221 cannabis plants (six weighing 2.39 kilograms and 215 weighing 817 grams) growing in an upstairs bedroom and an adjoining room (Charge 1, maximum penalty 15 years).

5Among other things they also found 21 boxes containing a total of 170 tablets of Kamagra (sildenafil citrate), a drug for treating erectile dysfunction (summary offence, maximum penalty 10 penalty units).

6On 17 November 2022 police returned again to serve the DNA warrant on you and arrest you for the cultivation. They spoke to employees at the house who said you were not there. However, after searching upstairs police found you in a locked bedroom and arrested you.

Procedural history

7Investigators interviewed you about the crop but you made no comment in response to their questions.

8You remained in custody then until granted bail on 30 November 2022 after 13 days. 

9You conducted a contested committal on 9 May 2023 during which your counsel cross-examined a number of police, primarily about the legality of their entry into your home when they found the crop.

10At the initial directions hearing in this court on 6 June 2023 your counsel indicated that the real issue in the matter at that stage was whether it could be proven that you had an intention to cultivate a commercial quantity.

11On 30 November 2023, however, you sought a pre-trial ruling that the police entry into your property was improper or unlawful and that this rendered any evidence of what they found there inadmissible as evidence against you. The court ruled against you on 11 December 2023.

12Then on 5 March 2024 you made a further application to exclude from evidence details of your prior conviction for cultivation at the same house in 2016. The hearing of that application was adjourned part-heard so that you could provide a defence response outlining the facts in issue in the trial before a ruling could be made.

13During that adjournment you offered to plead guilty to the current charge of cultivation, which the prosecutor accepted.

14Your plea was not early in the proceeding, nevertheless, it amounts to an acceptance of responsibility, a willingness to facilitate the course of justice and it has utilitarian value. I accept that the consequences that would have flowed from being convicted of the commercial quantity offence were very significant indeed.

15At the conclusion of the plea hearing on 16 July 2024, I remanded you again and so in total you have served 33 days of pre-sentence detention, not including today. 

Personal circumstances

16You were 38 years old when this offending occurred. You are now 40.

17You continue to live at the Hillside home near your parents. You have three siblings and enjoy a close relationship with them. You grew up with a loving family, free from violence and other abuse.

18You completed Year 12 and then a plumbing apprenticeship, precursors to your plumbing and building businesses based out of your home. You report having about 20 people working full time for your companies, including project managers, administrators and supervisors, who can manage things when you are absent, I was told.

19I was told that you have been under investigation since 2021 by the Victorian Building Authority about whether you are a fit and proper person to be licensed. This was no doubt a stressful time for you, including the time of this offending. I understand the outcome of the charges before this court will be considered by them as well, but I will not speculate about that and will not take anything about that into account against you.

20You have a somewhat significant criminal history. In 2003, 2007, 2009 and 2012 you were fined for minor and dishonest offending.  In 2016 you were placed on CCOs on two different occasions – first for the previous cannabis cultivation and weapons offences, secondly, for family violence. In 2022 you were gaoled for 65 days' time served, combined with a CCO for stealing an excavator and related offending. The next month you were imprisoned for 30 days’ time served and placed on a CCO for 18 months, requiring you to be supervised and to engage in treatment for drug use and your mental health, as well as to participate in programs to reduce your risk of offending, which order was breached by the matter now before this court.

21I am told you have no other charges outstanding.

22Psychologist, Jeffrey Cummins, has been treating you since 2021 and provided a report about you dated 12 July 2024 (Exhibit 1). He stated that since 2021 you have lived with significant stresses to do with a past relationship, the VBA investigation, as well as the effects of COVID on your businesses. He diagnosed you with a major depressive disorder that has varied from mild to severe depending on stressors. He has observed you to have had mixed mood states over the period from 2021 qualifying as an adjustment disorder.

23Mr Cummins reports that over the years you have self-medicated with a number of substances and in 2022 you would have had a moderate cannabis use disorder.

24You told him that you 'run on adrenaline' and regard yourself as being on-call 24 hours a day in your business, no doubt consistent with Mr Cummins’ view of your adjustment disorder and anxiety. You report, however, never having engaged in mental health treatment and having always been opposed to relevant medication.

25Two long term friends of yours, George Tannous and Steve Delovski, provided character references about you (Exhibit 2). They both say you have expressed regret and shame about your offending and that otherwise you are a hard worker and good friend, one of them commenting that you are calm under pressure.

26You provided a single urine drug screen result from 12 July 2024, which showed you had no illicit substances in your system at that time (Exhibit 3).

Sentencing issues

27The maximum penalty of 15 years for this offence of cultivation is an indicator of how serious Parliament regards this offence.

28The number of plants you were growing was substantial. You are not to be sentenced on the basis of a commercial quantity, but the number of plants reflects a sizable operation and an expectation of proportionate production. This is significant because Parliament has provided that the number of plants and the weight of them are both important features in determining the gravity of a given case.

29You have a prior conviction for this offence and so your knowledge of the nature of what you were doing, its seriousness and its legal consequences, makes your repeat offending more serious. You have admitted that you were solely responsible for the crop. You also grew it while you were serving a community correction order. In all the circumstances, I find your culpability to be high.

30Imposing a stern penalty for drug offences such as cultivation is one of the only ways others can be deterred from doing so. It also reflects the community’s denunciation of such conduct and is required to exact just punishment.

31In your case you have offended like this before and have since been sentenced to a CCO that included support and treatment so that you would not do so again. This approach did not succeed, so I must give weight in sentencing you this time to deterring you from further offending. I have considered whether this can be achieved by way of another CCO in the absence of a term of imprisonment.

32In deciding this issue, I have had regard to your criminal history and your prospects for rehabilitation, which I find to be guarded.

33Your counsel submitted that a CCO alone would reflect all the relevant sentencing principles. The prosecutor submitted that a combination sentence is the minimum necessary sentence, particularly in light of your prior matter, your age and your offending while on a CCO.

34Notwithstanding the character references provided by your friends who you have told that you regret what you did, in the context of the pre-trial matters raised and the conduct of the case as I have outlined, I am not satisfied that your plea is the product of genuine remorse.

35I have given some weight to the fact that you have lived with the spectre of prison hanging over your head since your arrest in November 2022, but I do not find that this period is unduly lengthy.

36I accept the opinion of Mr Cummins that you will find prison more onerous due to your depressive and adjustment disorders and find this to be a matter of mild significance.  I also have attached some weight to the fact that every day in custody you will spend time away from your business knowing that you are unable to assist the business and those whom it employs because of your absence and that this will make every day of your prison sentence more difficult for you.

37I have read and had regard to the comparative cases to which your counsel referred me, including Caraku [2023] VCC 1469, Lam [2022] VCC 2182, Lock [2022] VCC 587, Nguyen & Ors [2023] VCC 242, Nguyen [2023] VCC 2259, Nguyen [2024] VCC 592, Vo [2022] VCC 206 and Toscano [2022] VCC 1184. Each of them, but for one, involved offenders without prior convictions or any relevant history or who were young offenders. The one who was none of those was a disability support pensioner suffering from chronic fatigue and used and grew cannabis to treat this. He had the benefit of an early plea during COVID, attracting the principles in Worboyes v R [2021] VSCA 169.

38Of course, while other cases assist in understanding current sentencing practice, I must sentence according to the facts of your case and am not bound to adopt the same sentence as in others.

39Having regard to all of the relevant matters, I have decided that only a term of imprisonment, albeit one combined with a CCO, is appropriate in your case.

40I have received a CCO assessment outcome report dated 26 July 2024 (Exhibit A) that states you are suitable for such an order and recommends the conditions that I will in fact impose.

41I sentence you on the count of cultivating cannabis to eight months' gaol combined with a CCO for 18 months, with conviction.

42On the summary offence you are convicted and discharged.

43The CCO is with conviction and requires you to be supervised, engage in assessment and, if directed, treatment for drug abuse, mental health and programs to reduce your risk of offending.

44If you do not comply with the CCO and its conditions you may be returned to court and resentenced, including to further gaol time.

45I declare that you have served 33 days pre-sentence detention and direct that this be reckoned as a period already served under the sentence.

46In accordance with s6AAA of the Sentencing Act 1991, but for your guilty plea I would have imposed 19 months and fixed a non-parole period of 12 months.

Ancillary orders

47The prosecutor seeks a disposal order under s78 of the Confiscation Act 1997 relating to items seized, namely cannabis, growth hormones, the Kamagra tablets and printed material about growing cannabis indoors, which you do not oppose. I make that order.

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