Director of Public Prosecutions v Ryan
[2020] VCC 1047
•16 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-20-00036
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRAYDEN LUKE RYAN |
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JUDGE: | HIS HONOUR JUDGE C J RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 July 2020 | |
DATE OF SENTENCE: | 16 July 2020 | |
CASE MAY BE CITED AS: | DPP v Ryan | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1047 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Cultivate a narcotic plant in not less than a commercial quantity – theft – excellent prospects of rehabilitation – general deterrence – admissions – COVID-19 – early guilty plea
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Ryan v R (2001) 206 CLR 267
Sentence: 25 months’ imprisonment with 10 months’ imprisonment before you will become eligible for parole – s6AAA: three years’ and six months’ imprisonment, with a minimum term of two years’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. McCarthy | Solicitor for Office of Public Prosecutions |
| For the Offender | Mr A Imrie with Mr M. Murphy (For Sentence) | Balmer & Associates |
HIS HONOUR:
1 Brayden Ryan, on 7 July 2020, you pleaded guilty to Indictment K12745811 containing four charges being:
Charge 1 – cultivating a narcotic plant, namely cannabis L, in a quantity not less than the commercial quantity applicable to that narcotic plant;
Charge 2 – theft of electricity;
Charge 3 – possession of a drug of dependence, namely ecstasy; and
Charge 4 – handling stolen goods, namely a registration number plate.
2 The maximum penalty for cultivate a narcotic plant in not less than a commercial quantity is 25 years’ imprisonment. The maximum penalty for theft is 10 years’ imprisonment. The maximum penalty for handling stolen goods is 15 years’ imprisonment. In your case, the maximum penalty for possession of a drug of dependence is one year’ imprisonment or 30 penalty units.
3 You are 21 years of age and without prior conviction.
4 Tendered as Exhibit A and read aloud in Court was the Summary of Prosecution Opening for Plea.
5 On 22 October 2019, police executed a search warrant at an address in Point Cook. You were the only person present at the address, and when police searched the premises, they found located in three rooms on the second storey of the building:
·114 plants of small and medium size weighing 322.2 grams in Room 1;
·10 plants weighing 72.2 kilograms in Room 2; and
·8 plants weighing 55.8 kilograms in Room 3.
6 In total, 132 cannabis plants were located at the premises with a combined weight of 128.32 kilograms (Charge 1).
7 An illegal electrical bypass was also located by police (Charge 2). Police also located two ecstasy pills (Charge 3), as well as a registration plate, WRQ-135, on a kitchen bench, the registration plate having been previously stolen (Charge 4).
8 You were arrested and interviewed under caution and, in summary, you made the following admissions:
(i)the cannabis plants were yours and it was your hydroponic setup;
(ii)that you fed the plants with water and food whenever they needed it;
(iii)that you used cuttings dipped in Clonex to grow new plants;
(iv)that you installed the electrical bypass to avoid detection;
(v)that you had been cultivating the cannabis for approximately two months;
(vi)that the ecstasy was for your personal use; and
(vii)the 18 large plants had been growing for a period of four or five weeks.
9 You were remanded in custody on the day of your arrest and granted bail on 10 December 2019. Accordingly, at the time of your plea, you had spent 49 days by way of pre-sentence detention.
10 You entered pleas of guilty at the first committal mention, which was the earliest opportunity for you to enter your plea, and, accordingly, you are entitled to the benefits that flow to you from your plea, being that it has utilitarian benefit and that it is some evidence of your remorse.
11
Mr Imrie of counsel, together with Mr Murphy of counsel, appeared on your behalf and tendered a number of exhibits, being a written outline of submissions on plea (Exhibit 1), reports of Dr Steven Chau, psychiatrist dated 22 May 2020 and 3 July 2020, together with the report of Bruce Laidlaw, a drug counsellor, dated 30 January 2020 (Exhibit 2), a bundle of references (Exhibit 3), a Court Integrated Services Program (“CISP”) report dated
30 January 2020 (Exhibit 4), and a report from ACSO dated 14 January 2020 (Exhibit 5).
12 Your father, Michael Ryan, gave evidence on your behalf. Your father confirmed that you suffered from learning and behavioural difficulties at primary, secondary and trade school. These difficulties presented themselves in your inability to concentrate, a refusal to do homework and disruptive behaviour in the classroom and schoolyard. Your father swore that he was obliged to attend your primary and secondary schools often to speak to school staff concerning your behaviour.
13 Your father’s evidence provided a history that is consistent with the diagnosis made by Dr Chau, that you suffer from ADHD. Since being released on bail you have been medicated for this disorder and this appears to have been successful.
14 Your mental state has improved from being a young person unable to hold down jobs obtained for you by your father when undiagnosed and untreated, to a young man, who since release on bail, having been diagnosed and treated has worked for two employers on a part-time basis, one of whom describes you as “more focused” and “reliable”, whilst the other, an arborist, describes you as “an extremely competent leading hand”. You have developed from a teenager who was easily distracted and uninterested in his work, to a 21 year old young man who while still immature is regarded highly by his employers. In addition, you have full-time work available to you upon your release from prison (see Exhibit 3).
15 Your father described how after leaving trade school and still living at home, you were uninterested in the work that he had found for you and that your behaviour at home became unacceptable and, to use his words, “we tried tough love” and you were “kicked out of home” when you were 18 years old.
16 Your behaviour at home, in part, seems to have been attributable to your drug abuse, principally of cannabis, but also of cocaine and ecstasy.
17 According to your father, you were mostly unemployed from the time you left home until you were arrested. At the time of your arrest, you were living in a three-bedroom unit, leased by Ms Lin Nguyen, the partner of your maternal uncle. This accommodation had been provided to you for a period of 12 months or so, and in addition, Ms Nguyen, provided some money to you so that you could make ends meet.
18 Upon interview, you made full admissions and, but for your admissions, the evidence available to the police would have been limited to you being present in the grow house on 22 October 2019, the day of the execution of the search warrant. By your admissions, you fall to be sentenced as a principal and not merely a crop sitter. You admitted that you were growing cannabis for the purpose of sale.
19 In Ryan v R (2001) 206 CLR 267 at 295, Kirby J opined:
“… Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions. It should certainly not discourage them. Encouraging a full confession may also be an important first step in securing help for, and counselling of, the offender. This is, likewise, one of the objectives of criminal punishment and thus of judicial sentencing.”
20 Since being released on bail, you have sought to secure help and counselling. You contacted your general practitioner and you were referred to Dr Chau, psychiatrist, with whom you continue to consult. You have been treated successfully with medication for your ADHD and this has had a positive result insofar as your conduct is concerned. You live at home with your family and your father swore that he has “his old son back again”.
21 In addition, you consulted Mr Bruce Laidlaw, drug counsellor, and underwent ten 90-minute sessions with him. You were obliged to undergo urine screens, all of which returned negative results (see Exhibit 2).
22 Further, as part of your bail conditions, you were subject to the CISP program and a report dated 13 January 2020 (Exhibit 4) sets out the additional counselling and treatment sessions that you completed as part of your bail requirements. The author, Ms Miller, reported in respect of you:
“The author believes that Mr Ryan's engagement is genuine, and that he presents as an individual who has recognised the poor lifestyle he was leading prior to his remand. He has consistently reported a motivation to make positive changes in his life and begin addressing relevant underlying mental health and substance use issues. His attendance at appointments is always in a timely manner, and he has never presented in a manner that would suggest he is substance affected (consistent with his negative urinalysis results) … .”
23 Later, Ms Miller reported:
“Mr Ryan has only been engaged with CISP for little over a month, however he has already begun to make significant changes, and shown strong engagement. He has returned eight negative urinalysis results, attended eight sessions with his AOD clinician, attended his required three times weekly sign-on, and complied with his CISP engagement … .”
24
You have been drug free since you went into custody on 22 October 2019. More importantly, you have been drug free while on bail since
10 December 2019 and done everything in your power to overcome your addiction to cannabis and to set your life on a new and productive path.
25 You are a youthful offender. You made full and frank admissions to the police during your Record of Interview. The admissions that you made have at least two effects; one, they placed you in a more serious position than you might otherwise have been absent the admissions. Secondly, your admissions demonstrate honesty on your behalf and a genuine desire on your part to be truthful to the police in respect to your criminality. You are entitled to a discount of the sentence that you might otherwise have received absent your frankness.
26 You are a youthful offender that since release on bail has done everything that could be expected of you to commence the process of rehabilitation. I assess your prospects for rehabilitation as excellent.
27 An important purpose of sentencing is the fostering of the rehabilitation of youthful offenders and by the sentence that I must impose on you I must attempt to achieve that purpose. You entered your pleas at the earliest possible opportunity and are entitled to the benefits that flow to you from those pleas. I am satisfied that you are remorseful. You have returned to live with your parents. You have obtained employment and will have employment upon your release from prison. By returning you to prison I will interrupt your continuing psychiatric treatment. In prison you will not be permitted to take the amphetamine based medication currently prescribed to you. Unless a suitable substitute medication can be found the symptoms of your ADHD will return. In many respects returning you to prison will negatively impact upon the process of rehabilitation that you have embarked upon despite your rehabilitation being in the public interest. Further when your return to prison, you will be subject to the restrictions that apply to prisoners as a result of the COVID-19 pandemic. These matters, in my view, combine to warrant a merciful sentence being imposed upon you.
28 However, your offending was serious. Cultivating a commercial quantity of cannabis carries a maximum penalty of 25 years’ imprisonment. You had cultivated, by weight, some five times the commercial quantity. You intended to sell the cannabis that you cultivated. You bypassed the electrical connection to the house in order to avoid detection. Additionally, you were found in possession of ecstasy tablets and a stolen motor vehicle registration plate. Your offending is serious, your conduct must be publicly denounced, and you must be justly punished.
29 Doing the best I can, taking into account your offending and its effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
On Charge 1, two years’ imprisonment.
On Charge 2, three months’ imprisonment.
On Charge 3, you are convicted and fined $250.
On Charge 4, you are convicted and fined $250.
30 I order that one month of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1 and this results in a total effective sentence of 25 months’ imprisonment. I fix a period of 10 months’ imprisonment as the period you must serve before you will become eligible for parole.
31 I declare that you have spent 57 days by way of pre-sentence detention not including today.
32 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to three years’ and six months’ imprisonment, with a minimum term of two years’ imprisonment.
33 Is there anything that arises out of the sentence?
34 MR McCARTHY: No, Your Honour.
35 HIS HONOUR: I hand down the disposal order in respect of the drug paraphernalia. I want to thank counsel for their assistance and we will stand down now till 10.30 Friday morning please.
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