Director of Public Prosecutions v Scerri
[2018] VCC 1711
•22 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00536
Indictment No H11047680
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LESLIE ANTHONY SCERRI |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 July 2018 | |
DATE OF SENTENCE: | 22 October 2018 | |
CASE MAY BE CITED AS: | DPP v Scerri | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1711 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Cultivate commercial quantity of cannabis – Theft – Family violence and bail summary offences – Significant role over four months – Selectively bred female plants – 127 plants weighing 9.3 kg – $9,806.70 of electricity stolen – 38 year old offender – Early pleas of guilty – Prospects of rehabilitation guarded
Legislation Cited: Sentencing Act 1991 (Vic) s 16(1A)(3)
Cases Cited:DPP v Dalgliesh (a Pseudonym) (2017) 91 ALJR 1063 – Doan v The Queen [2010] VSCA 250 – Nguyen v R (2010) 208 A Crim R 464
Sentence: Total effective sentence of 33 months’ and 53 days’ imprisonment, non-parole period of 3 years’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Goodenough (plea) Ms M Doyle (sentence) | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms M Walker | Melinda Walker Solicitors |
HIS HONOUR:
1 Leslie Anthony Scerri, you have pleaded guilty to an indictment containing one charge of cultivate a commercial quantity of cannabis and one charge of theft.
2 You have also consented to have this court deal with one transferred related summary offence, pursuant to s 145 of the Criminal Procedure Act2009, a charge of commit an indictable offence whilst on bail (charge 9) and you have pleaded guilty to that charge.
3 You have further consented to have this court deal with four unrelated summary offences, pursuant to s 243 of the Criminal Procedure Act2009. Those charges comprise: contravene family violence intervention order (charge 4); unlawful assault of Isabella Spirovski (charge 5); unlawful assault of Alexandra Fenwick (charge 8); and contravene conduct condition of bail (charge 10).
4 The maximum penalties for these offences are as follows:
· Cultivate a commercial quantity of cannabis, 25 years’ imprisonment
· Theft, 10 years’ imprisonment
· Contravene family violence intervention order, 2 years’ imprisonment
· Unlawful assault, 3 months’ imprisonment
· Commit indictable offence on bail, 3 months’ imprisonment, and
· Contravene a bail condition, 3 months’ imprisonment.
5 The prosecution has filed an amended summary of prosecution opening dated 16 July 2018,[1] which I have been told by your counsel I can treat as a statement of agreed facts.
[1]Exhibit P1.
The Facts
Alexandra Fenwick, 28 December 2016
6 Alexandra Fenwick went shopping in Rye at around 5.30pm on 28 December 2016 with Darian Brazier. She had a minor motor vehicle collision with a car driven by Isabella Spirovski, who at the time was in a relationship with you.
7 It appeared to Fenwick that Spirovski was trying to drive away from the scene of the collision. She approached Spirovski while Spirovski was in her car and waiting to leave the car park. Fenwick asked Spirovski for her driver licence, which she refused.
8 Fenwick called her father, while Spirovski called you. Spirovski spoke to you on the phone, and then said to Fenwick, “He’s going to come down here and punch somebody”. You then spoke to Fenwick and said, “Who do you think you are not letting her leave?”, and “I’m going to come down there and show you that you can’t leave”. Fenwick explained to you that she needed Spiroski’s details for insurance, to which you replied that she had better not be there when you arrived. Details were ultimately obtained from Spirovski.
9 Fenwick’s car was undriveable, and she could not open the driver’s door. She remained on the phone to you, at which time you were yelling aggressively as you crossed the car park towards her. By this time you had arrived at the car park and were approaching Fenwick. When you arrived, you yelled at Fenwick, “Where the fuck was the accident?”. You tried to take the phone from Fenwick, who was yelling at you, “Get off me.” She yelled this over and over again. Fenwick held the phone close to her chest, and you grabbed her hand and bent it trying to get the phone. She was screaming at you, and was terrified. You then grabbed her by the shoulders and pushed her backwards, and yelled at her, “Where was the accident?” These facts constitute the circumstances giving rise to unrelated summary offence 8.
10 You then walked to Fenwick’s car and pulled at the damaged right panel. You then returned to Fenwick in an aggressive manner. Fenwick ran into a nearby store. You pursued her and chased her around a service desk, screaming, “I’m going to rip your fucking head off.” Staff members removed you from the store, but you came back and again aggressively approached Fenwick. At this stage a number of people present at the store created a physical barrier between you and Fenwick. You said, “I’m not afraid to hit a woman. I only got out of jail three days ago”.
11 Fenwick was taken away by store staff, and waited half an hour before leaving. She reported the incident immediately to police.
12 Fenwick did not file a victim impact statement; however, it is accepted as part of the prosecution summary that she suffered an anxiety attack and a sore right hand as a result of this incident. She also had to cancel holiday plans that she had in place at the time.
Isabella Spirovski, 14 April 2017
13 Spirovski had been living at an address in Rye with you for a number of weeks. You and she had been in a physical relationship for some time, which she wanted to end. She had taken out an intervention order against you which was made on 29 August 2016.
14 At midnight on 14 April 2017, Spirovski went to bed while you watched television. It appears that, despite the intervention order, Spirovski and you continued to cohabit. Spirovski was lying on the bed texting her mother when you came into the room and asked her to show you the phone. You pushed her shoulder and took the phone. She described this as a “strong reaction” by you. I take this to mean that a degree of force was applied to Spirovski by you for the purpose of taking her phone. You said, “Oh, you want me to get in trouble with your mum. You want your mum to get the police.” You called Spirovski, among other things, a “lying piece of shit”, and said “You deserve nothing but to get spit on.”
15 In an effort to calm you down, Spirovski walked towards you and apologised. While still holding the phone, you grabbed her forearms and pushed her hard enough that she fell through a doorway and hit the wall at the end. Spirovski’s head hit the wall, causing a hole in the wall, and causing her to fall down. These facts give rise to unrelated summary offences 4 and 5.
16 You walked up to Spirovski while she was on the ground with her hands held up in a manner so as to protect her head. You eventually calmed down, and went and lay on the bed, and put Spirovski’s phone next to you on the bed.
17 Spirovski knew that you were tired, and waited for you to fall asleep before she retrieved the phone. She then called police, and they attended the premises at about 4.25am. Spirovski sought medical attention and was treated with analgesics.
Cannabis crop, 14 April 2017
18 As a result of the attendance by police on 14 April 2017 in relation to the assault on Spirovski, they noticed a strong smell of cannabis. Upon investigation, police located a cannabis crop. There was also an electrical bypass in place in the roof cavity. The crop was set up at the rear of the house in two rooms. It had hydroponic lighting, fans, and cannabis plants in pots.
19 Items located in the two “grow” rooms were: 21 lights, 21 transformers, 3 water pumps, 1 exhaust fan charcoal, and 1 pedestal fan. In total, there were 127 cannabis plants with a weight of 9.3kg. These facts give rise to charge 1 on the indictment.
20 As a consequence of the electrical bypass, electricity was stolen from United Energy between 14 December 2016 and 14 April 2017, which is the period of the cultivation charge. It is agreed that the total value of electricity stolen is $9,806.70. These facts give rise to charge 2 on the indictment.
Bail offences
21 You were placed on appeal bail by the Magistrates’ Court at Melbourne on 22 March 2017 in relation to matters involving an assault on Ms Spirovski and a breach of the same intervention order that is the subject of unrelated summary charge 4. This relates to an earlier incident which is not before me in this hearing. However, the commission of the offence of cultivate a commercial quantity of cannabis constitutes a breach of that bail. (Related summary offence 9)
22 Moreover, as a condition of that bail you were required to reside at 35 Government Road, Rye, and you breached that condition by not residing at that address, but residing at the address of 17 Richardson Street in Rye where the incident involving Ms Spirovski rook place. (Unrelated summary offence 10)
Record of interview
23 You were interviewed by police on 14 April 2017 and made a partial “no comment” interview. However, you did acknowledge the following matters:
(i) There was an intervention order in place against you.
(ii) You knew you were not allowed to assault Ms Spirovski or perpetrate any violence against her.
(iii) You were of the opinion that she was “happy” with you.
(iv) In your view Ms Spirovski panics a lot and is a hypochondriac.
(v) You “cracked the shits” because she was texting a guy.
(vi) After you checked her phone, you called her a “fucking whore”.
(vii) You made no comment to the assault allegations, but asserted that Ms Spirovski exaggerates.
(viii) You made no comment in regards to the cannabis crop.
(ix) You were of the view that Ms Spirovski’s mother had convinced her that you were crazy.
(x) You admitted going to the motor vehicle collision incident and “losing it”, but you did not admit to assaulting anyone.
(xi) You pushed some guys who kept jumping in front of you.
(xii) You were “fuming”.
(xiii) Ms Fenwick was crying from you yelling at her.
Victim impact
24 A victim impact statement from Isabella Spirovski, declared 31 May 2018, has been filed in this matter.[2] It is clear that whilst the victim impact statement contains inadmissible material in terms of supposed psychological diagnoses, it is nonetheless clear that the offences involving Ms Spirovski have had a significant impact on her. They have made her anxious. She has had difficulty sleeping, suffers from nightmares, and there has been some effect on her ability to conduct her occupation as a hairdresser. She also is hypervigilant.
[2]Exhibit P2.
Offence seriousness
25 Cultivating a commercial quantity of cannabis is a serious criminal offence, as indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum sentence in the criminal calendar. The maximum penalty “shows unambiguously how seriously the community, through the Parliament, views this conduct”.[3] You fall to be sentenced for a continuing offence committed over a period of four months. Moreover, you played a significant role in the commission of these offences, in that you were the instigator and prime mover of the cultivation at the home in which you were living, and you were the one who was to gain the benefit of the sale of that crop.
[3]Nguyen v R (2010) 208 A Crim R 464, 468 [18] (Maxwell P and Buchanan JA agreeing).
26 Nonetheless, I have to take into account the quantity that was in fact cultivated, which was well below the commercial quantity by weight, and only marginally over the commercial quantity by number of plants. Accordingly, I assess your offence as being towards the upper end of lower-range offending for offences of this type.
27 It is clear from the photographs of the plants[4] that this was a significant enough crop, which was grown using a sophisticated hydroponic cultivation system.
[4]Exhibit P3.
28 Cannabis cultivation is a nefarious trade which wreaks havoc on our youth in particular, and causes enormous damage to the community at large. As, the Victorian Court of Appeal observed in Doan v The Queen:[5]
The maximum penalty fixed by parliament unambiguously demonstrates how seriously the community views this conduct. Recently in this Court emphasis has been placed upon the importance attached to sentencing judges having regard to the maximum sentence fixed by Parliament. This court has also emphasised recently that general deterrence is an important consideration in sentencing for this type of offence and that the link between general deterrence and the increasing prevalence of this offence is readily apparent.
[5][2010] VSCA 250 [11] (T Forrest AJA, Harper and Nettle JJA agreeing).
29 In the same case, Nettle JA added:[6]
In my view lest there be any doubt about it, there should be no doubt that in cases involving cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of sentencing considerations. Consequently, as the judge rightly observed, in cases of this kind there is less room to give weight to considerations of such as youth and antecedents that would otherwise be the case. In the result the judge also correctly found in a case of this kind an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.
[6]Ibid [17].
30 You played a crucial role in a highly planned and sophisticated criminal enterprise. Your motive for your crimes was purely financial. You told Ms Gina Cidoni, a consultant psychologist who was engaged by your representatives to provide a psychological report, that at the time of committing the offences the subject of the indictment you were using methylamphetamine daily, and that you grew the cannabis in the hope that you could sell it to fund your methylamphetamine addiction and pay debts to dealers.
31 I was provided with a statement of Kylie Jane Slattery, acknowledged 12 July 2018.[7] Ms Slattery is a forensic scientist employed at the Victoria Police Forensic Services Centre, and has the delegated powers of the Chief Botanist of Victoria.
[7]Exhibit P4.
32 The first item she examined, Item 1A, consisted of 34 plants measuring approximately 45–78 cms in height. They were “slender females” that were mature and weighed just over 6 kgs excluding the roots. Leaves and flowering heads were found to constitute between 67–70 per cent of the weight of some of these plants. Item 1B consisted of 24 plants measuring approximately 48–100 cms in height. They also were “slender females” that were immature and weighed 2.48 kgs excluding the roots.
33 It is clear from this that you had selectively bred female plants to maximise your return from the crop. This indicates the degree of sophistication and effort you put into this criminal enterprise, and the likely returns you expected to reap, had it not been for the police detecting your crimes and seizing the crop.
34 Accordingly, I assess your moral culpability is being very high. Clearly, general deterrence, denunciation, and just punishment are significant sentencing considerations in your case.
Personal circumstances
35 You are aged thirty-eight years,[8] and you were aged thirty-seven years at the time of committing the offences contained in the indictment and all of the related and unrelated summary offences other than charge 8, at which time you were aged thirty-six.
[8]Date of birth 6 May 1980.
36 You were born in Melbourne and raised in Meadow Heights. Your family spent some years moving to and from Malta. Your parents, who are of Maltese origins, separated when you were aged fifteen. Tragically, your father committed suicide in 2012. Your mother is a nurse, and you currently have a good relationship with her and her partner of three years. You have two siblings, a brother aged thirty-six and a sister aged thirty-three.
37 When your parents’ marriage ended, you lived with your father. At the time your parents separated you were in a relationship with your wife, Katrina Scerri, from whom you are now separated. You have two daughters by that relationship, and another child by an earlier relationship. The relationship with your wife lasted 22 years, with periods of separation throughout the marriage. The relationship finally ended when you commenced having an affair with Ms Spirovski.
38 You are now in regular contact with your wife, and she visits you in prison. She provided a letter of support dated 14 December 2017, the contents of which I have taken into account in your favour.[9] Your eldest daughter, Claudia, now aged twenty-one, also visits you in prison, and you maintain contact with your other daughter and siblings. You were supported in court during the plea hearing by your estranged wife, two daughters, your mother and her partner.
[9]Exhibit D5.
39 You attended a number of primary schools in Malta and Australia. You went on to complete Year 8 at Gladstone Park Secondary College. You reported learning difficulties whilst at school, and received additional tuition on account of this.
40 You then completed a metal engineering apprenticeship in Tullamarine. You worked for two years before starting your own factory workshop in Somerton, which operated until 2008 when you closed it down. Following short employment at the Altona Gate Shopping Centre you commenced a property-maintenance business, which you conducted from your garage on and off for a period of eight years, until you were remanded in custody.
41 You are in general good health; however, you have been bingeing on alcohol over a period of some years.
42 So far as your history of drug abuse is concerned, I was told by your counsel that you commenced using drugs in 2008 after losing your business and your consequent bankruptcy. Apparently you were guarantor for your uncle.
43 You received treatment for depression and stopped using illicit drugs in 2011. However, you told Ms Cidoni that you used cannabis in your teenage years, but you stopped this when your then-partner became pregnant with your first child.
44 Your counsel told me that you recommenced using drugs in 2012 after the tragic death of your father from suicide. Apparently, you discovered your father dead in his lounge room and you were unable to revive him. This is consistent with what you told Ms Cidoni, that you commenced using methylamphetamine at the age of twenty-eight (in 2008), and developed a daily habit from 2012 to 2016.
45 Your counsel told me your addiction to methylamphetamine led to your offending in 2013 and 2014, resulting in a brief period of remand in custody and later release on bail. However, the treatment you were received whilst on bail for that offending did not cure you of your drug addiction. Your counsel told me you were using ‘Ice’ at the time of committing the present offences. She accepted this was not mitigatory.
46 You also told Ms Cidoni that in the past you have used ecstasy, smoked heroin, and ‘tried’ GHB.
Mental health
47 Ms Cidoni conducted psychological testing on you, the results of which are contained in a psychological report dated 9 July 2018.[10] She conducted a number of tests, including the Wechsler Adult Intelligence Scale – Fourth Edition, the Minnesota Multiphasic Personality Inventory – Second Edition (“MMPI-II”), and the Violence Risk Appraisal Guide. There were some limitations in testing your intelligence, by reason of the fact that the appraisal was conducted via a video-conference link. Nonetheless, Ms Cidoni reports your verbal comprehension as being borderline at 74, and your working memory as average at 95.
[10]Exhibit D2.
48 A number of matters are commented upon by Ms Cidoni in relation to the MMPI‑II results, none of which give rise to Verdins considerations. Personality testing revealed moderate psychological disturbance, with signs of fluctuating mood with mild mania and a sociopathic trend reflecting past anti‑social practices and substance abuse. Your risk of violent reoffending was assessed as being in the medium range, with ongoing drug use being a major risk factor. Protective factors include your family supports, employability, absence of a major mental health problem, willingness to seek help, and a determination to abstain.
49 Ms Cidoni notes that you appreciate that you must continue with treatment which you have commenced in prison to help you to remain abstinent from drug abuse on your release. Ms Cidoni found “no evidence of a personality disorder or other major psychological illness”. Consequently, no Verdins principles are engaged in your case. Your counsel did not suggest otherwise.
Criminal history
50 You have a relevant prior criminal history, commencing in July 1998, when you were fined without conviction in respect of theft from a motor vehicle.
51 You were next before the Broadmeadows Magistrates’ Court on 15 December 2011 when you were convicted of trafficking methylamphetamine, use methylamphetamine, possess methylamphetamine, and possess a Schedule 4 poison. You were released on a community based order for 12 months with rehabilitative conditions, and you were without conviction fined an aggregate of $3,000.
52 You were next before the Sunshine Magistrates’ Court on 14 April 2015 charged with six counts of burglary, three counts of attempted burglary, two counts of theft, and other dishonesty offences. Other charges dealt with at that time included possess and use methylamphetamine, and some driving offences. You received an aggregate sentence of six months’ imprisonment wholly suspended for an operational period of two years, and an aggregate fine of $800.
53 Finally, at the Sunshine Magistrates’ Court on 30 July 2015, you were charged with two charges of unlicensed driving and possess methylamphetamine, and with conviction you were fined an aggregate of $300.
Subsequent criminal proceedings
54 I was advised by your counsel that you were arrested and remanded in respect of the present matters on 14 April 2017.
55 You were sentenced on 22 March 2017 to a three-month term of imprisonment, to be followed by a community correction order for 12 months, for a number of offences committed against Ms Spirovski, involving violence and indecent language, and also for driving offences. These offences are not prior convictions, but they are relevant to manner in which I approach the totality principle in your case. These offences were committed by you whilst subject to the suspended sentence which was imposed on 14 April 2015, to which I have previously referred. That sentence was restored, and you were ordered to serve the aggregate sentence of six months’ imprisonment concurrently with the other sentences imposed on that day.
56 You appealed against the imposition of these sentences, and entered into appeal bail. Accordingly, you were not serving those sentences at the time of your arrest in relation to these matters on 14 April 2017. However, on 21 April 2017 you abandoned your appeal to this court, and commenced serving the six-month term of imprisonment which had been imposed in the Magistrates’ Court.
57 This sentence was completed on 20 October 2017, at which time you remained on remand for the present matters. The time in custody from 14 April 2017 until 20 April 2017 inclusive, being a period of seven days, is properly to be included as pre-sentence detention in relation to the current matters, as also is the period from the 21 October 2017 until today, being a period of 366 days, making a total pre-sentence detention to be declared of 374 days (not including this day).
58 Significantly, as noted earlier, at the time of the commission of the indictment charges and unrelated summary offences 4, 5 and 10 you were subject to the appeal bail entered into on 22 March 2017. Whilst this would ordinarily be a circumstance of aggravation, you have been charged with committing an indictable offence whilst on bail, namely cultivating cannabis (summary charge 9), and there is a need to avoid doubly punishing you on that cultivate cannabis charge.
59 However, s 16(1A)(e) of the Sentencing Act 1991 is engaged so that the prima facie presumption of concurrency between sentences does not apply. Nonetheless, I will make orders for partial concurrency in your case to give effect to the totality principle.
Mitigating Circumstances
60 Your counsel filed a ‘Brief Outline of Submissions on Plea’[11] and made oral submissions in which she relied on a number of mitigating circumstances.
[11]Exhibit D1.
61 I accept that your pleas of guilty in relation to the charges on the indictment, related summary charge 9 and unrelated summary charges 8 and 10 were entered at the earliest reasonable opportunity. I also accept that, whilst your pleas of guilty to unrelated summary charges 4 and 5 were not entered at the earliest reasonable opportunity, they were entered immediately prior to a listed committal hearing commencing and without the need for the prosecution to call any witnesses.
62 Your pleas have utilitarian benefit in saving the time and cost of a trial. You have also saved Ms Fenwick the undoubted trauma of having to give evidence.[12] Your pleas indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice. Your estranged wife in her letter[13] writes: ‘from speaking with Leslie over the past 8 months whilst being in prison he has expressed great remorse and shame for his actions’. Whilst courts are required to adopt a robust approach to findings of remorse,[14] I am prepared to accept that you demonstrate a degree of true contrition and remorse for your offending beyond what is reflected in your pleas.
[12] I observe that Ms Spirovski did not make a statement, was uncooperative with police and would not have given evidence against you.
[13]Exhibit D5.
[14]See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
63 Your counsel submitted that you have ‘good’ prospects of rehabilitation. She said you have demonstrated a willingness to engage in treatment whilst in custody given that you have completed a significant number of courses as well as remaining drug free. She tendered eight certificates relating to rehabilitative programs you have completed.[15] You have obtained a licence to perform high risk work from WorkSafe Victoria and have undertaken educational courses with Bendigo TAFE and Box Hill TAFE.[16]
[15]Tendered as a bundle in Exhibit D3.
[16]Ibid.
64 You have undergone counselling and treatment for your alcohol and drug addiction.[17] I note the contents of the letter dated 20 June 2018 from Ms Jessica Martino, a psychologist with Caraniche, who conducted a 24 hour Drug and Alcohol Treatment Program which you successfully completed while on remand in Marngoneet Correctional Centre.[18] Importantly, I note your four negative urine drug screens during the period 28 December 2017 to 26 February 2018.[19] Your estranged wife in her letter[20] refers to her belief that you have remained drug free whilst in custody.
[17]Ibid.
[18]Ibid.
[19]Exhibit D4.
[20]Exhibit D5.
65 I also note the contents of an undated letter from you addressed to “To whom it may concern” received in my chambers this morning at 7.22 am[21] and also a further letter from Ms Martino dated 19 October 2018, also received in my chambers this morning at 7.22 am,[22] which speaks about the 18 sessions of drug and alcohol counselling you have participated in whilst in custody.
[21]Exhibit D7.
[22]Exhibit D8.
66 Noting Ms Cidoni’s opinion that your risk of violent reoffending is in the medium range with ongoing drug use being a major risk factor, your counsel submitted your ‘risk of relapse into criminal involvement is dependent upon [you] maintaining abstinence from illicit drug use, a conscious change in [your] behaviour, [and] a focus on psychological treatment and meaningful employment’. I agree with this assessment.
67 You are to be commended for remaining drug free whilst you are in custody, however, you are currently in a controlled environment and the real test for you remaining abstinent from illicit drugs will come upon your release from prison. It is for this reason that I have formed the view that your prospects of rehabilitation are guarded in that they are dependent on your continuing the positive rehabilitative efforts you have made whilst in custody. I accept protective measures in your case include the strong family support you have, particularly from your estranged wife and daughters.
68 Your counsel ultimately submitted that I should impose a disposition which would involve appropriate rehabilitation and supervision when released from custody to address your drug and behavioural issues, which would be to your benefit and that of the community. She submitted this could be achieved by a ‘sentence which allows a longer than normal parole period does not ignore the importance of denunciation, deterrence and punishment in the sentencing process and balances those considerations against the need to impose a just sentence in all the circumstances on an offender that enhances and encourages rehabilitation for the benefit of the community’.
Application of sentencing principles
69 I have had regard to current sentencing practices in relation to cultivate commercial quantity of cannabis, the most serious charge before me, in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[23] It is difficult to gauge more than a very general yardstick from so called ‘comparable cases’, given the wide range of offending conduct which can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. For the reasons given earlier, I am of the view that your offending on this charge is upper low-range offending. To the extent that I have been able to gain any assistance from comparable cases, for this and the other offences before me, I have sought to do so in your case.
[23] (2017) 91 ALJR 1063.
70 The basic purposes for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, the effect on any victim and your personal circumstances.
71 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.
72 Given the serious nature of the commercial cultivate offence, general deterrence, denunciation and just punishment must be accorded significant weight in sentencing you. In your case I consider that in light of your antecedents and your medium risk of reoffending, specific deterrence and protection of the community need to be given some weight. I must adopt a cautious approach to your prospects of rehabilitation for the reasons previously given.
73 I consider that a sentence of immediate imprisonment is the only appropriate sentence which will achieve the purposes for which these sentences are imposed.[24] However, I do accept your counsel’s submission that a longer period of parole supervision than I might otherwise have imposed is appropriate in your case.
[24]See Sentencing Act 1991 s 5(4).
Stand up Mr Scerri
On charge 1 on the indictment, cultivate a commercial quantity of cannabis, you are convicted and sentenced to 30 months’ imprisonment.
On charge 2 on the indictment, theft, you are convicted and sentenced to 4 months’ imprisonment.
On related summary charge 9, commit an indictable offence whilst on bail, you are convicted and sentenced to 1 months’ imprisonment.
On unrelated summary charge 4, contravene family violence intervention order, you are convicted and sentenced to 2 months’ imprisonment.
On unrelated summary charge 5, the unlawful assault of Ms Spirovski, you are convicted and sentenced to 1 months’ imprisonment.
On unrelated summary charge 8, the unlawful assault of Ms Fenwick, you are convicted and sentenced to 1 months’ imprisonment.
On unrelated summary charge 10, contravene certain conduct conditions of bail, you are convicted and sentenced to 7 days’ imprisonment.
I order 2 months of the sentence imposed on charge 2, 14 days of the sentence imposed on related summary charge 9, 1 month of the sentence imposed on unrelated summary charge 4, 14 days of the sentence imposed on unrelated summary charge 5, 21 days of the sentence imposed on unrelated summary charge 8, and 4 days of the sentence imposed on unrelated summary charge 10 be served cumulatively on the sentence imposed on charge 1 and on each other. This makes a total effective sentence of imprisonment for 33 months and 53 days. I order that you serve a minimum term of 18 months’ imprisonment before becoming eligible for parole.
I declare the period of 374 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that the fact that declaration was made and its details be noted in the records of the court.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years’ imprisonment.
Remove the prisoner
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