Director of Public Prosecutions v Quinn
[2023] VCC 241
•22 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 22-00246
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Christo Quinn |
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JUDGE: | His Honour Judge Bayles | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2023 | |
DATE OF SENTENCE: | 22 February 2023 | |
CASE MAY BE CITED AS: | DPP v Quinn | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 241 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE.
Catchwords: Trafficking in a drug of dependence, commercial quantity; Cultivate a narcotic plant, commercial quantity; Cannabis; Mercy; No prior convictions; Excellent prospects of rehabilitations; Excellent character; Hardship.
Legislation Cited: Sentencing Act 1991 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Borg v The Queen [2020] VSCA 191; Rossi v The Queen [2021] VSCA 296; R v McLeod [2007] VSCA 183; 16 VR 682.
Sentence: Total effective sentence of two years and nine months with a non-parole period of 14 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Albert | Office of Public Prosecutions |
| For the Accused | Ms S. Stafford | Stary Norton Halphen |
HIS HONOUR:
Introduction
1Christo Quinn, you pleaded guilty to an indictment of two charges. One charge of trafficking in a drug of dependence in a commercial quantity, namely cannabis; and one charge of cultivation of a narcotic plant being cannabis in a commercial quantity.
2In relation to Charge 1, trafficking in a commercial quantity, you are being sentenced on the basis of possession for sale.
3The maximum penalties for each of the charges is 25 years' imprisonment.
4A summary of prosecution opening was filed at your plea hearing and marked for identification P1. Mr Albert, who appeared on behalf of the prosecution, read that document in court. I adopt that summary as part of my reasons for sentence. I will not repeat it here in full, but the main features of your offending are as follows.
Circumstances of offending
5You and your wife Raelene Quinn owned and lived at a rural farm property at Moliagul Drive, Moliagul, since 2013. The property is 60 kilometres west of Bendigo and is surrounded by bushland. The property is a farm that produced vegetables, chickens, and livestock.
6At about 9.20 am Monday 3 May 2021, police executed search warrants at the property. You were present at that time; your wife was interstate visiting family.
7Police found a number of items:
· A total of 66.95 kilograms of dried and drying cannabis, which encapsulates Charge 1 being trafficking in a commercial quantity. In relation to that charge, it is alleged that 25 kilograms of the 66.95 was in your possession for sale and thus constituting the charge of trafficking in a commercial quantity of cannabis. The remaining 41.95 kilograms of cannabis was accepted by the prosecution to be for personal and/or medicinal use.
8In addition to that, police found:
· 160 growing plants weighing a total 256.95 kilograms. By number of plants, that constitutes 1.6 times a commercial quantity; and 0.16 times a large commercial quantity. Those growing plants constitute Charge 2 being cultivation of a narcotic plant in a commercial quantity.
9Throughout the property, the following items were also found:
· The upstairs area was dedicated to the drying of cannabis.
oCannabis was mostly hanging from chains from the ceiling.
oA desk was used for the preparation and harvesting of the buds.
oA set of digital scales was sitting on a desk.
oBuckets and bags were used to package and store cannabis material.
· The downstairs area contained dried cannabis material in a bin.
· In the kitchen area was found 40 cryo-vac bags of dried cannabis in two large duffle bags in a cupboard and underneath the stairs.
· The yards were partially obscured by natural vegetation. A hosing system had been set up along the ground inside the yards. Most of the cannabis plants had been growing for around four to six months (excluding nursery phase).
Defence Submissions
10I turn to the defence submissions in this matter. Ms Stafford, who appeared on your behalf at the plea hearing, filed a comprehensive outline of plea submissions dated 18 January 2023.
11I also received a large number of other documents that were tendered in support of your plea hearing:
· Medication Summary (Raelene Quinn) dated 17 January 2023.
· Certificate of Title as at 1998 – property at Moliagul Drive, Moliagul.
· Carer Outcome letter dated 17 January 2023.
· Report by Carla Lechner dated 7 September 2022.
· Report of Rhonda Dam dated 12 July 2022.
· Letter from Christo Quinn dated 10 September 2022.
· Mental Health Care Plan relating to Christo Quinn.
· Bundle of Medical Documents relating to Raelene Quinn.
· Bundle of 11-character references.
· Mt Moliagul Harvest Farm Plan (December 2020) and Farm Report (May – July 2021).
· Restraining Order dated 28 September 2021.
· Title Search – property at Moliagul Drive, Moliagul.
12Ms Stafford submitted that there is an unusual factual matrix present in this case. That factual matrix includes objective matters relevant to the nature of the offending, and also matters personal to you.
13Ms Stafford submitted that the following matters arise in mitigation:
· First, you pleaded guilty. Whilst your plea of guilty is not early in time, it occurred after some negotiation with the prosecution over complex matters, and your plea of guilty was accepted by the prosecution on a factual basis that had not previously been accepted. Ms Stafford submitted that your plea can be treated as an early plea; that it demonstrates an acceptance of responsibility for the offending; that it has significant utilitarian value, that it was entered during the period of the COVID-19 pandemic, and given the impact of the COVID-19 pandemic on the criminal justice system in the State of Victoria, the principles in Worboyes[1] apply to the reduction in sentence to be attributed to the additional utilitarian value of a plea of guilty during this time.
· Ms Stafford submitted that you are genuinely remorseful for your conduct. You have a demonstrated insight into the harm caused by your actions, and you have experienced profound shame and guilt for the impact that this offending has had on those closest to you.
· You are currently 52 years old. You have no prior convictions of any kind. You are a man of excellent prior good character. You have made very significant previous contributions to the community.
· You spent approximately nine and a half months in custody before being granted bail on 18 February 2022. That period of time was particularly onerous for you. You then spent approximately 12 months on bail in the community. During that time, there has been no further offending of any kind and you have demonstrated or achieved significant rehabilitation through psychological treatment. You have also taken steps to reduce the operational needs of the farm in anticipation of further imprisonment. You have complied with all bail conditions. Ms Stafford submitted that your prospects of rehabilitation can be regarded as excellent, and you are a low risk of reoffending. I pause to note that I agree with those assessments.
· In relation to Charge 1 being trafficking in a commercial quantity of a drug dependence, your plea was accepted by the prosecution on the basis of having 25 kilograms of cannabis in your possession for sale on a single date, being the possession on a single date for the purpose of sale. This is the minimum weight required for the commercial quantity threshold.
· Ms Stafford submitted that falling at the very bottom end of that threshold is relevant to the assessment of the objective gravity of your offending for Charge 1.
· Ms Stafford submitted that you are not part of any larger criminal endeavour. The offending lacked sophistication. You were motivated primarily by a desire to produce cannabis oil to be used as a medicinal treatment, both for your wife's epileptic seizures and for your own personal use. It was submitted that your offending was not motivated primarily for financial gain or profit, and it was submitted that there is no evidence of enrichment.
· The possession of 25 kilograms of cannabis that forms the basis of Charge 1 is part of the 66.95 kilograms of cannabis that were located at the property. As to the remainder of that portion of cannabis being 41.95 kilograms, as I have already stated, the prosecution accepted that this portion was for personal and/or medicinal use.
[1] Worboyes v The Queen [2021] VSCA 169.
Personal circumstances
14I turn to your personal circumstances. You are now a 52-year-old man. You have a 19-year relationship with your wife Raelene Quinn who is now 60 years old. You have a close relationship with your mother Mari Q who is now 79 years of age.
15You worked predominantly as a farmer over the past 30 years and for much of your life you have made important contributions to your family and the wider community.
16Character references tendered on your behalf at the plea hearing describe you as a gentle, kind, patient and respectful man. You are considered to be hardworking, reliable, principled and honest.
17You have volunteered within your community and are considered to be a man with integrity and ethics. Your stepfather, who originally purchased the property in 1988, suffered from Parkinson's disease and passed away in 2016. I was informed that you provided care and support to him during the last years of his life.
18Your wife Raelene suffers from epilepsy characterised by recurrent seizures, absence seizures and migraines. Raelene Quinn was also charged over this offending. She was remanded in custody and spent, as I understand it, the same nine and a half months or thereabouts in custody before being released on bail. I pause here to note that the charges against Raelene Quinn were discontinued at around the time that your matter resolved into a guilty plea.
19I was informed that Ms Quinn's health condition worsened and significantly deteriorated during and since the nine and a half months she spent on remand, where she suffered four major seizures and required hospitalisation. You had very limited contact with her during the time that you were both in custody on remand. You learnt of her seizures and hospitalisation while you were in custody which caused you great worry and distress during this period of separation.
20During the last 12 months whilst you have been on bail, you have been driving your wife to all necessary specialist appointments, counselling sessions and other day-to-day trips. She relies on you for daily care and monitoring, and you are authorised to administer a particular sedative medication in the event that Ms Quinn experiences a prolonged seizure event.
21Ms Stafford submitted that there is a real risk to your wife's health, if she does not have someone who can monitor her. Your imprisonment exposes her to a significant risk to her health, and this is also a cause of great distress to you, which will impact the burden of imprisonment for you.
22Ms Stafford drew my attention to the case of Borg v The Queen [2020] VSCA 191, and urged me to find that the hardship to your wife as a result of your imprisonment satisfies the test of exceptional circumstances. It was also submitted that I should consider the anguish that you experienced when you were separated from, and unable to care for, your wife and elderly mother, who lives on the farm, as a mitigating factor, as it operates to make your experience of imprisonment more burdensome.
23The matter of forfeiture of the property was raised at the plea hearing. This is of course a complex matter dependent on a number of factors that will play out well after this sentencing exercise. Ms Stafford referred me to McLeod v The Queen.[2] I was provided a copy with the Certificate of Title for the property. Ms Stafford submitted that I can be satisfied that the property was lawfully acquired. It was submitted that the possible forfeiture of the property constitutes substantial additional punishment and must be considered in determining the appropriate sentence.
[2] R v McLeod [2007] VSCA 183; 16 VR 682.
24It is now over one year and nine months since you were charged. That period of delay is relevant in two ways. Your life has been in suspense, facing the reality of further imprisonment and the consequences to you, your wife, and to your mother and to your home. These matters have all been a burden for you during this time.
25Further, you have used your time since being granted bail to seek psychological treatment. You have cared for and assisted your wife in obtaining specialist medical treatment and provided care to your elderly mother. You have complied with bail conditions and there has been no further reoffending. You have demonstrated rehabilitation during this time.
26The nine and a half months that you spent on remand were particularly onerous. They were served during the period of the COVID-19 pandemic, and its effects on the operation of the prison system in Victoria. It was your first time in custody; you were separated from your wife who was also in custody during that time, with very limited contact, and significant concern over her health.
27I was informed that your wife, Mrs Quinn, is now prescribed medicinal cannabis for her health condition, and I was provided with a medication summary from her general practitioner.
28Ms Stafford accepted the reality that you must receive a term of imprisonment involving a head sentence and a non-parole period. However, she submitted that having regard to the significant mitigating features in this case and a basis for the adoption of a merciful approach to sentencing, I should sentence you to a term of imprisonment that does not involve an extended further period of imprisonment and allows for the possibility of your release on parole in the near future.
Prosecution Submissions
29I turn to the prosecution submissions. As previously set out, the prosecution accepted that a significant proportion of the dried cannabis in your possession was for personal and/or medicinal use.
30The prosecution accepted that you have shown remorse; that you pleaded guilty; the prosecution did not accept unequivocally that your plea of guilty can be characterised as at the earliest opportunity but did accept that there is some complexity to the circumstances that involved ongoing negotiation about the charges to which you eventually pleaded guilty.
31The prosecution accepted that you have no prior convictions and are otherwise a person of good character and did not quarrel with the submission around your prospects of rehabilitation. In relation to the argument about hardship, the prosecution accepted that there was an onerousness to your time in custody and that the matter of hardship is a matter for the court. The prosecution accepted that there are some unusual aspects involved.
32Despite concessions made by the Crown, the prosecution position was that a term of imprisonment involving a head sentence and non-parole period is appropriate. Mr Albert submitted that there is a significant quantity of cannabis, being a drug of dependence, involved and I accept those last submissions there made by the Crown.
Analysis
33I turn to the analysis of these matters. Despite those concessions made by the Crown in the matter, this is still serious criminal offending. There is a significant quantity of the drug cannabis involved in both growing plant and dried form. Any sentence imposed by a court for offending such as this must contain elements of punishment, denunciation, and general deterrence. The sentence that I impose upon you must convey to the community that people who choose to offend in this or a similar way must expect to receive stern punishment.
34At the same time, I accept that there are some unusual features to the overall circumstances of the offending.
35I have read carefully the personal references that were tendered on your behalf at the plea hearing. It appears that you have been committed to land conservation and habitat restoration for most of your life. You have been involved in community organisations on a volunteer basis. You have assisted and supported others in their volunteer work, such as at the McIntyre Wildlife Shelter, and in the care and rehabilitation of injured wildlife. You have been committed to sustainable farming practices and land care in the development and operation of your own farm.
36Throughout the many references tendered on your behalf, you are consistently spoken of as a kind, caring and respectful person of integrity and honesty. You are hardworking and are dedicated to your family.
37You pleaded guilty to an indictment of two charges. I understand this plea to have been entered after some period of negotiation with the prosecution. It may not strictly speaking be an early plea, however, I do accept that your plea has utilitarian value. It demonstrates an acceptance of responsibility for your offending and a willingness to facilitate the course of justice. I do accept, in combination with all of the matters before me, that you have shown remorse for your offending, and your plea of guilty is reflective of that remorse.
38Your plea of guilty is entered in what might now be characterised as the post-COVID period. However, the impact of the COVID-19 pandemic and associated lockdowns in the State of Victoria on the operation of the criminal justice system and particularly on the backlog of cases before this court remains. It seems to me that the principles discussed by the Court of Appeal in Worboyes still apply to the sentencing process and apply to this case with full force.
39That is to say that your plea of guilty has increased utilitarian value in the context of the COVID-19 pandemic and its effects on the criminal justice system. I have regard to the guidance provided by the Court of Appeal in the case of Worboyes to sentencing courts during the period of the COVID-19 pandemic. There the Court of Appeal gave an extensive survey of the established line of authority regarding the discount to be given to a sentence following a plea of guilty. In addition to the established practice, the Court of Appeal gave strong guidance to sentencing courts about how to treat a plea of guilty during the current period of the COVID-19 pandemic and its impact on the criminal justice system in the State of Victoria, the weight to be afforded to the utilitarian benefit of a plea of guilty and the extent of the reduction in sentence to be attributed to the plea.
40I also note the reinforcement of these principles in cases such as Rossi v The Queen[3] and although sentencing is of course never a mathematical exercise, I have regard to the additional very significant reduction in sentence given by the Court of Appeal and the declaration made pursuant to s6AAA in Rossi.
[3] Rossi v The Queen [2021] VSCA 296.
41I give considerable weight to all aspects of your plea of guilty as I have stated, in particular the utilitarian value of your plea and I want to make it clear that I intend to give a significant reduction in the sentence that I am about to impose as compared with the sentence you would have received had you not pleaded guilty, and but for the application of the principles in Worboyes.
42You are now a 52-year-old man. You have no prior convictions of any kind. You are a person of otherwise excellent good character. You served nine and a half months in custody, followed by approximately 12 months on bail where there has been no further offending. Based on all matters put before me, I am prepared to assess your prospects of rehabilitation as being excellent.
43Whilst I must impose a sentence that denounces this conduct and deters others from offending in this or a similar way, I am of the view that specific deterrence and protection of the community do not loom large as sentencing objectives. I also intend to impose a sentence that is structured in such a way that it acknowledges your prospects of rehabilitation, and both allows for and encourages that rehabilitation.
44I accept that the nine and a half months you spent in custody were onerous for you. It was your first time in custody. Your wife was also in custody, you had minimal contact with her, and you discovered from the position of being in custody that your wife's health was suffering, including hospitalisation. I accept that this significantly increased the burden of imprisonment for you.
45I also accept that your return to prison at this time is particularly burdensome for you as a result of your wife's health condition and the impact that your imprisonment will have on her.
46I was informed that your wife is now in receipt of medicinal cannabis by prescription, which supports a number of matters that were advanced in the course of the plea hearing by Ms Stafford in relation to your wife's health and at least part of the purpose for which the cannabis was being grown.
47I also accept that there is a likelihood that your property will be subject to forfeiture. At the very least, it will be subject to forfeiture proceedings. Of course, the question of forfeiture is conditional upon a future process, and I do not speculate about its result. However, I do accept that this process will be extremely stressful for you, not just as a result of any financial value of potential forfeiture, but flowing from the personal connection you have and your family have with the property. I accept that the worry and anxiety over this matter will be an additional burden for you.
48The sentencing task is of course one which must take place within a framework of legal principle. There are a number of matters relating to the objective seriousness of the offending that I take into account. There are also a number of significant mitigating features in this case that I also take into account. In addition to those, I also accept that in some cases an overall assessment of the particular circumstances of the offending and of the offender's own personal circumstances will lead to the exercise of a level of mercy in the sentencing process.
49I am prepared to take the view that this is such a case. Once again, I must approach the sentencing task from the position that it is serious offending involving significant quantities of a drug dependence. The sentence that I impose must accord with the legal framework for sentencing serious drug offences. However, in my view there is some scope in this case for the sentence to be tempered with an element of mercy.
50Trafficking a drug dependence in a commercial quantity and cultivation of a narcotic plant in a commercial quantity are both Category 2 offences. Section 5(2H) of the Sentencing Act 1991 (Vic) requires that I must impose a term of imprisonment unless certain exceptions are made out. Such exceptions were not advanced on the plea in this matter.
51After being sentenced to a term of imprisonment on Charge 1 or, indeed as I have been informed this morning, on either of the two charges, you fall to be sentenced as a serious drug offender in relation to the other charge. This means that there is a presumption of cumulation as between sentences (pursuant to section 6E of the Sentencing Act 1991 (Vic)) and I must regard protection of the community as the principal purpose for which the sentence is to be imposed (pursuant to section 6D of the Sentencing Act 1991 (Vic)).
52The two charges on the indictment involve separate offending, and there must be a measure of cumulation as between sentences, to reflect the separate and additional criminality. However, I will also apply the totality principle in assessing the totality of your criminality, and arriving at an appropriate overall sentence.
53As I have stated, I intend to impose a sentence that expresses denunciation and general deterrence for this offending. I also intend to impose a sentence and structure the sentence to allow for your prospects of rehabilitation as I have assessed them to be. In my view, the punishment, denunciation, and general deterrence can be expressed through the imposition of a head sentence. I then intend to impose a somewhat lower than usual non-parole period in order to give full effect to the mitigating features of this case, particularly the burden of imprisonment and your prospects of rehabilitation.
54I do this, first of all taking into account that you may be required to serve your entire head sentence. Any release on parole would be dependent upon a decision of the Adult Parole Board and would be conditional upon you being supervised in the community and compliant with any condition that may be seen fit to be imposed upon any parole order. The setting of a non-parole period of course does not guarantee your release from custody, but rather it allows for the possibility of your release and reintegration back into the community should the parole board deem that appropriate.
Sentence
55Christo Quinn, would you now stand please.
56On Charge 1 being trafficking in a drug of dependence in a commercial quantity, you will be sentenced to a term of 20 months' imprisonment.
57On Charge 2 being cultivation of a narcotic plant being cannabis in a commercial quantity, you will be sentenced to two years and three months' imprisonment. Charge 2 will be the base sentence.
58Noting therefore that you fall to be sentenced as a serious drug offender, thus the presumption of cumulation applies and requires me to state the order for concurrency.
59I therefore state that the order for concurrency in relation to Charge 1 will be, 14 months of the sentence imposed on Charge 1 will be served concurrently with the sentence imposed on Charge 2.
60For clarity, I will state that it is my intention that six months of the sentence on Charge 1 be imposed cumulatively upon the sentence imposed on Charge 2. And as I see it, that leads to a total effective sentence of two years and nine months or 33 months' imprisonment.
61For the reasons I have stated already, I order that you must serve a minimum period of 14 months before being eligible for release on parole.
62There is a disposal order in relation to all of the cannabis, digital scales and drug paraphernalia and equipment seized and I will make that order in the terms in which the application has been drafted.
63Can I confirm pre-sentence detention is 292 days?
64MR ALBERT: Yes.
65MS STAFFORD: Yes, Your Honour.
66HIS HONOUR: Yes. I declare that you have served 292 days in custody against this sentence and I order that that number of days be deducted administratively from your sentence.
67Pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these charges but all other matters in mitigation remained the same, I would have imposed a period of four years' imprisonment with a non-parole period of two years.
68Thank you, Mr Quinn. You may be seated now.
69HIS HONOUR: Yes, so in relation to the application under s33(1) of the Confiscation Act for the forfeiture of the Toshiba laptop, that application will be refused largely for the reasons advanced in the course of argument and discussion on the application, essentially being that I am satisfied that the property is jointly owned. It is being used by both Mr and Mrs Quinn including for ordinary and legitimate use of computer. In my view and in all of the circumstances, the forfeiture of the laptop would be particularly onerous and is not justified in all the circumstances and so on that basis the application will be refused.
70MR ALBERT: The court pleases.
71MS STAFFORD: As Your Honour pleases.
72HIS HONOUR: All right. Can I just clarify, are both parties satisfied that the effect of the sentencing order is clear?
73MR ALBERT: Yes, Your Honour.
74MS STAFFORD: Yes, Your Honour.
75HIS HONOUR: All right. Yes, thank you. Thank you both for your assistance in this matter. We'll adjourn the court please.
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