Director of Public Prosecutions v Russell
[2021] VCC 678
•26 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 20-01557
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYRONE RUSSELL |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 May 2021 | |
CASE MAY BE CITED AS: | DPP v Russell | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 678 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991 s 5(2H); Drugs, Poisons and Controlled Substances Act 1981 s 72A; Crimes Act 1958 s s74(1)
Cases Cited:Bugmy v The Queen [2013] HCA 37
Sentence: Total Effective Sentence of 25 months; Non-Parole Period of 16 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Goetz | Office of Public Prosecutions |
| For the Accused | Mr J. Mortley | Haines & Polites Lawyers |
HIS HONOUR:
1Tyrone Russell, you have pleaded guilty to the following offences, which carry the following maximum penalties: Charge 1; cultivate a narcotic plant in not less than a commercial quantity, carries a maximum of 25 years' imprisonment. Charge 2; a charge of theft, carries a maximum of 10 years' imprisonment.
2Charge 1 is a Category 2 offence under s5(2H) of the Sentencing Act.
3You have admitted your prior criminal history. I shall return to that later in these sentencing remarks.
4The Crown tendered a Summary of Prosecution Opening as Exhibit A. A brief summary of your offending is as follows:
5In July 2020, you were serving a 12-month Community Correction Order.
6On 13 July 2020, at approximately 8.45 pm, police executed a search warrant at the house where you were living. You were home at the time. You told police, 'I got plants back there'.
7Police observed numerous cannabis plants supported by hydroponic systems set up in rooms through the property, and specifically;
(a) In Bedrooms 1, 2 and 3, and Room 4; various black plastic pots, each containing a mature cannabis plant. In Bedroom 1, there was black polytube connected to the base of each pot running to a connection fitted to a tap in the adjoining ensuite, providing a watering system for the plants;
(b) In Bedrooms 2 and 3 and Room 4; black polytube connected to the base of each pot running to a black tub containing water and a water pump, providing a watering system for the plants. In Bedroom 2, there were numerous electrical transformers stored on shelves and in wardrobes, connected to each light socket and plugged into master power boards;
(c) Various 500-watt light globes, both below the plants on the floor and above the plants connected to light shrouds fixed to the ceiling;
(d) Large silver foil ducts attached to the ceiling in each of the rooms and fitted to a charcoal filter;
(e) In total, police located 37 mature cannabis plants weighing a total of 137 kg.
8In addition, police found an implement for smoking cannabis (being a bong), a pair of scissors and your wallet. There was 598 grams of cannabis buds located inside a re-sealable plastic bag inside a cupboard above the oven rack, which the Crown agrees was for your own use.
9Electricity was found to have been diverted. The electricity provider, Alinta Energy, confirmed that the quantum of the stolen electricity is $425.82.
10You were interviewed by police on 13 July 2020 and made a number of admissions to the presence of cannabis and the possibility or likelihood of an electricity bypass. You told police that you smoke cannabis, 'all day every day'.
11You were remanded in custody and you have now spent 317 days, excluding today, on remand by way of pre-sentence detention. I will reckon that period as already served.
12
You entered a plea of guilty at an early time; at the Committal Mention on
17 November 2020.
13I will now consider the objective gravity of, and your moral culpability for, your offending.
14It is apparent that the hydroponic system was undoubtedly sophisticated and expertly set up, with the objective of growing high yield commercial crops of cannabis.
15The courts have recognised that there are two relevant clusters of cases involving commercial cultivation. In the first cluster of cases, where offenders are crop sitters or played an ancillary role, there is typically involvement for only a short period of offending, such as your own, and the offenders are often youthful with less likelihood of previous criminality. In those cases, the offenders did not hold a proprietary interest or high financial interest in the crop outcome.
16In this case it is conceded by your counsel, Mr Mortley, and there is evidence that your role was above that of mere crop sitter. The property was leased in your name. You appear to have maintained the crop on a daily basis, or thereabouts, and you seem to have paid the utility services (although I accept not with your own money, as you were on Centrelink benefits at the time), and you were aware at least of the bypass of the electricity meter. It is not submitted by the Crown that you had in any way financed the growing of the crop.
17You told the forensic psychologist, Dr Michael Davis, that you were homeless to the point where you were offered the opportunity to live in a house, and you were able to smoke as much cannabis as you wished. You gave contradictory answers about paying bills with your own money (although, as I have said, I accept that you did not pay bills with your own money), and you told him that there was the prospect of payment of $10,000 for a successful crop. The contradiction in the answers you have given is, as Mr Mortley submitted, that you did not want to name names. I am satisfied that your offending was motivated by those three objectives of providing a home, a ready supply of cannabis to smoke and the possible $10,000.
18I accept that you should be regarded as an employee without a principal role or investment in the crop. Nevertheless, as Parliament has legislated, this offence is indeed a serious one. Your counsel has submitted, quite properly in my view, that there are no exceptional circumstances to the operation of the Category 2 provision under s.5(2H) of the Sentencing Act. Accordingly, you fall to be sentenced under Division 2 of Part 3 of the Sentencing Act to a term of imprisonment.
19Your offending must be met by principles of general deterrence, a measure of specific deterrence, denunciation, just punishment and protection of the community. As I have just said, in all the circumstances, a period of imprisonment with a non-parole period is the only appropriate sentence available to be imposed for your offending.
Personal circumstances
20I turn now to a consideration of your personal circumstances.
21You are 28 years of age, having been born on 6 February 1993. You are one of four siblings with two younger sisters and an older brother.
22To say the least, you had a difficult childhood. Your mother and father were heavy drinkers from your birth and had an 'on and off relationship'. You were exposed to a cycle of recurring family violence, which was exacerbated by your parents heavy drinking. The police and the Department of Human Services were involved with your family. Your parents finally separated when you were about 15 or 16 years old and you continued to live with your mother.
23You had – again, to say the least – a fractured education. You attended five different primary schools. In secondary school you attended four educational institutions including a specialist school in Year 8. You frequently truanted and you were either suspended or expelled from each school. You finished school in Year 10 and formally left shortly after. Although it is said you completed much of Year 10, it may be observed that your completion of this level was more in name than substance.
24You smoked cannabis daily from the age of 15. Upon turning 18, you left home and began drinking. You became dependent on alcohol, consuming four litres of cask wine each day on average. Your daily level of intoxication reached about 30 standard drinks per day by the age of 20 and continued until your arrest. You would suffer from blackouts from drinking from the age of about 19 or 20. The time spent on remand is the longest period of abstinence you can recall. You complimented your alcohol intake with a daily use of cannabis.
25From the age of 18 until about 24, you worked in various jobs. These included a factory which made fishing lures and then in a metal fabrication factory. You stopped employment at about age 24 and did not recommence until you completed a few months' work as a cabinet maker. You were laid off after a few months due to your lateness. You have been unemployed ever since. Your father told Dr Davis that you receive a disability support pension.
26You were homeless for the 12 months prior to your offending. You were living in your car and parking overnight in church carparks.
27You have had one significant partner and that lasted about five years.
28Since you have been on remand you have undertaken courses with 'Alcohol and Me', 'Cannabis and Me', 'Alcohol Related Harm Reduction' and 'Keeping Your Cool'. You have also been working daily in the kitchen, which you consider good for your work ethic and the prospect of future employment.
29You maintain a good relationship with your father and your sisters and you have spoken to them by telephone since your remand.
30You have only had one single visit from your father in the time you have been on remand, due to the COVID-19 restrictions. You wish to obtain employment and reside with your father upon release.
31You have a number of prior criminal convictions, including convictions for personal violence offences and criminal damage. However this is your first conviction for cultivation of a narcotic plant. It is also the first time that you will have been sentenced to a term of imprisonment.
32Your time in custody on this occasion was affected by the COVID-19 pandemic lockdown. The immediate effect was a reduction and suspension of vocational and personal improvement courses, restrictions on your ability to move around the prison and a severe reduction in work available and a suspension of visits. The other more insidious effect of the pandemic and lockdown was the stress and isolation – that is the fear that the pandemic would penetrate into the prison system, and so isolation was used as a strategy to limit close contact. I shall take this into account as a mitigating factor in the sentencing process.
33
I was provided with the psychological report of Dr Michael Davis. I ordered a Forensicare report when Mr Mortley sought an adjournment for a neuropsychological report but was refused funding. This report reflects the high standard and hard work undertaken by the Forensicare team.
Dr Davis is to be commended for the thoroughness and insight of his assessment.
34Although I have already briefly outlined your biographical details, it is worth repeating that Dr Davis reports that from a young age you were exposed to the violence of your mother on your father, constant arguing and the heavy drinking of your parents. It is important to again emphasise the foundation on which your adult life was built, as it forms a core part of Dr Davis' findings and also underpins Mr Mortley's submission that your moral culpability must take into account your chaotic and unstable upbringing, and in that respect I refer to the High Court case of Bugmy.
35Dr Davis noted that you attended multiple primary schools and your childhood was marked by constant police intervention. You knocked out a teacher with a chair and after an episode, or episodes, of stabbing yourself and self-harm, your mother called you a 'fuck up'. In short, just as your upbringing was chaotic and unstable, you had no true parental role models and you have grown up isolated, with few friends, and you have endured sustained periods of homelessness. You now consider your father to be your best friend.
36Dr Davis concludes that you meet the criteria for alcohol use disorder and cannabis use disorder (both now in a controlled environment), ADHD, depressive disorder (dysthymia with intermittent and major depressive episodes, without any current episodes, but with anxiety and distress). You probably also meet the criteria for borderline personality disorder and, secondary to that, anti-social personality disorder, but Dr Davis concludes that the anti-social personality disorder is probably a general and unhelpful label. More specifically, your personality functioning is currently at a severe level of impairment.
37Dr Davis considers that you are a high risk of recidivism and you require comprehensive treatment and management going forward into the future. I have not set out the comprehensive treatment and management he recommends in his report, but I do recommend the report to those charged with your care in custody and any potential parole consideration.
38Mr Mortley – who, as I say, appeared on your behalf – submitted the following factors should operate to mitigate your sentence.
(a)Your early plea of guilty at the committal mention;
(b)Your admissions made to police at initial contact and in the Record of Interview;
(c)You have no prior drug-related offending;
(d)Your difficult childhood and fractured education;
(e)Your alcohol and cannabis dependence;
(f)Your homelessness for the 12 months prior to your offending;
(g)You were only a little more than a ‘crop-sitter’;
(h)Your mental functioning
39As I have just outlined, Mr Mortley submitted that a combination of homelessness and alcohol dependency made the 'job' offer to you highly desirable and that it offered a quick solution to your problems. Further, it was submitted that the financial motivation was to obtain housing and support your ongoing substance abuse, as opposed to supporting an opulent lifestyle.
40Ultimately, Mr Mortley submitted that a term of imprisonment featuring a head sentence with a non-parole period was inevitable and appropriate, but a longer than usual parole period should be made available to you.
41Mr Goetz, who prosecuted the matter for the Crown, submitted that whilst you may properly be viewed as an employee, rather than as a principal or investor, your offending must still attract a period of immediate imprisonment with a non-parole period. As Mr Goetz pointed out, your counsel conceded there was no applicable exception to the operation of s5(2H).
42In the end, I can only assess your prospects of rehabilitation as poor; especially if you do not receive and respond to the type of treatment and management suggested by Dr Davis.
43Nevertheless, I also accept that the experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout their life. It is apparent from Dr Davis' report that your background has compromised your capacity to mature and learn from experience. As the High Court made clear in the case of Bugmy, the effects of profound childhood deprivation do not diminish with the passage of time or repeated offending.
44Nevertheless, I cannot altogether ignore the objective principles of sentencing in this case. The community requires principles of deterrence, just punishment, and – at least in small measure – protection from those who engage in the cultivation of narcotic substances.
45I therefore intend to sentence you to a term of imprisonment, but I will moderate it somewhat to take account of your circumstances and background. I will offer you the opportunity, if you are granted parole, to a longer than perhaps usual period of parole.
46On Charge 1 you are convicted and sentenced to a period of 25 months' imprisonment.
47On Charge 2 you are convicted and sentenced to a term of two months' imprisonment. I order the sentence on Charge 2 to be served concurrently with the sentence on Charge 1.
48I order that you serve a non-parole period of 16 months before you are eligible for parole.
49I declare the period of 317 days pre-sentence detention, excluding today, reckoned as already served.
50The 6AAA declaration is but for the plea of guilty I would have imposed a sentence of 33 months' imprisonment with a minimum period of 23 months to serve.
51I make a disposal order sought by the Crown.
52I make a compensation order in favour of Alinta Energy Retail Sales Pty Ltd in the sum of $425.82.
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