Director of Public Prosecutions v Serra
[2018] VCC 270
•14 March 2018
un
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-17-01182
Indictment No: G1171101
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Alan John SERRA |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2018 | |
DATE OF SENTENCE: | 14 March 2018 | |
CASE MAY BE CITED AS: | DPP v Serra | |
MEDIUM NEUTRAL CITATION: | VCC [2018] 270 | |
REASONS FOR SENTENCE
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Subject: Cultivation of commercial quantity cannabis
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Mr D. Dann QC | Melinda Walker |
:
HIS HONOUR:
1 ALAN JOHN SERRA, you have pleaded guilty to one charge of cultivation of a commercial quantity of cannabis. The maximum penalty, as you heard, for this offence is 25 years’ imprisonment.
2 You are now 44 years of age. You turned 44 the day after the plea was conducted in February. You have a relevant criminal history.
3
This matter was opened to me on 23 February by Mr Pickering, who appeared then on behalf of the Director of Public Prosecutions. A written opening, which was dated 11 August 2017, was tendered on the plea and marked as an Exhibit on the plea, that is Exhibit A. There were also some photographs that were placed before me and tendered and marked as Exhibit B on the plea.
Your counsel, Mr Dann, told me that this was an agreed summary. Obviously enough though, those portions of the summary that dealt with a clandestine laboratory found within the shed and Mr Mazziota’s engagement in that concern, well that had no relevance at all to my sentencing task. You do not fall to be sentenced for that matter nor he for your matter.
4 I do not intend to descend to the full factual basis in this case. It is set out in the agreed summary and what I will do is not stray beyond the agreed facts here.
5 Very briefly though, as you know, you cultivated cannabis at 325 Little Yarra Road, Yarra Junction on 23 June 2016. You had rented a cool room from earlier in that same year. You were paying $250 per week rent. Police executed a warrant on those premises on that date, 23 June, and you were caught pretty much red handed. Again let me make clear, I ignore the summary in so far as it descends to the details of the clandestine laboratory as you are not charged with that conduct. That was alleged against Mazziota and, really, was only in the summary as, it seems, at one point his plea was going to be heard at the same time as yours. You are though plainly not co-accused.
The summary describes the nature of the crop that you were cultivating in four rooms within the cool room. The photographs also demonstrate the nature of the set-up. This was clearly a relatively sophisticated hydroponic cannabis setup. There were 113 plants, 59 shrouds, 72 globes, air-conditioners, a water pump, heating fans and growth hormones. Commercial quantity was achieved in this case both by plant number and also by weight. As I have said 113 plants, and all up a weight of about 44 kilograms. The dry cannabis referred to in the summary is included in this charge of cultivation. You had all the essential equipment for this enterprise. That is what it was, it was an enterprise and it was your enterprise. This was clearly a professional and a commercial undertaking as the summary and the photographs make very plain. Unlike many such crops which come to the attention of the police and then the Court, crops with lowly paid crop sitters installed who have, really, no stake at all in the end result, you were owner of this crop. You were the principal and your counsel conceded that fact.
6
You were arrested on 23 June 2016, you were in custody until being bailed on 6 July 2016. Bail had, in fact, been granted on 4 July but you had to wait for a bed to become available at a rehabilitation facility. You spent time at two such facilities but went back into custody on 30 August 2016 and you have been there continuously from that point of time, though 92 days is referrable to a prison sentence that was imposed on 17 January 2017 for which a
pre-sentence declaration was also made.
7 At the time of your arrest on 23 June 2016, you declined to comment when interviewed by the police, as was your right. You pleaded guilty and at the earliest stage.
In MItigation
8 Mr Dann conducted a thorough plea on your behalf. He took me to your background. He placed before me a large range of materials including but not limited to a large collection of personal references, some course and program certificates, a neuropsychological report and a psychological report as well. There were also some urine screens and a discharge summary relating to the undoubtedly very serious injuries that you sustained in a motor vehicle accident in the year 2000. Mr Dann was relying chiefly upon the following mitigatory matters:-
· Your guilty plea;
· The early stage of that plea;
· The presence of some remorse;
· The fact that this was your first time in custody, the impact already of that experience to date and your efforts at rehabilitation both before going into custody and since;
· He argued that you had some prospects of rehabilitation;
9 He made some submissions as to the offence seriousness and the weight to be given to various sentencing purposes and argued that you might be sentenced to a combination type disposition with a term of imprisonment with release onto a community corrections order. He corrected the portion of his written outline which suggested the availability as a matter of law of a term of up to two years in combination with a community corrections order. The law had changed in that respect. Still though he argued in favour of a combination type disposition, a course open he said owing principally to the ability of the court not to declare your pre-sentence detention. Failing that, he made submissions about the head sentence and the non-parole period. He was, as I am sure you know, conceding the inevitability of further imprisonment beyond your pre-sentence detention but he argued that you should be eligible for release in the not too distant future.
Prosecution
10 Mr Pickering, who appeared on behalf of the Director of Public Prosecutions of this State, made submissions as to the seriousness of the commercial cultivation offence. It was your crop, it was well organised. The criminality was high and there was no reduction in culpability he argued and a serious question mark, so the prosecutor said, as to the extent of remorse given some of the comments reported in the report of Dr Borg. The Director submitted through Mr Pickering, that the only appropriate disposition was a term of imprisonment with a non-parole period being fixed.
Background
I turn now to your background and do so quite briefly as I have no reason to doubt what I was told of your personal and family background. I accept what
I have been told. There is no point restating it now to you. That background is also conveniently set out in Mr Dann’s written submissions Exhibit 1 and in the expert reports to some extent.
Briefly, You were born on 24 February 1974 up in New South Wales and raised in Gosford in that State. Your parent separated when you were very young and that, as
I see it, was the end of your contact with your biological father. You stayed with your mother and she re-partnered. You have a younger brother and two
step-siblings. The family moved to Melbourne when you were about ten and you went up as far as Year 10 at the local high school before commencing an apprenticeship as a motor mechanic. You had a bit of a break from that apprenticeship at one point but then the apprenticeship was ultimately completed a few years later upon your return back to Melbourne. You started your own business as a motor mechanic. At that point your life seemed to be travelling pretty well although I note that there had been some history before the Courts even to that point. Your life was most unfortunately altered though when you had a very serious motor bike accident in 2000. That was when you were about 26. Many of the references from friends and family and for that matter, the expert materials speak of the consequences to you of that accident. You suffered extremely serious injuries, no question about that, and at the time it looked like you may not survive. You did survive but that accident undoubtedly altered many aspects of your life. You did recommence work but you have been on a disability support pension for many years now. The rate of the pension has depended on the extent of your paid employment at any given moment. You worked, as I understand it, as a mechanic from home and did some part time work at a blind company, there is a reference from that company as well. As I understand it, there was a TAC lump sum paid to you arising from the accident and you used that to buy a house. You have had a long term, as it was described, “on-off” relationship with Kellie Freeman. You have one child together, 14 year old son, Jack, but Ms Freeman also had brought one child to that relationship, a daughter Teana. Other aspects of your background relate to your unfortunate use of drugs over a significant period of time. You started using drugs when you were about 15, cannabis, later ecstasy then speed, then ice. It has been a long term problem, and as I said not just post-dating your accident. Part of your background also is unfortunately a criminal history which includes two prior convictions for cultivation of cannabis. True enough though they are fairly dated and also it seems readily apparent they must have been crimes pitched at a very, very different scale indeed by the looks of the penalties Your counsel submits as much and I accept that submission. Your counsel described your having a troubling prior criminal history. I am not sure I would put it that high actually. It is true that you are no stranger to the Courts. It is true that you have those appearances that jump off the page but as I say, those cultivations are a long time ago and obviously at a totally different level. It is also true though that you have not taken your chances. It is also true that you had committed a range of offences on various dates. They are the matters dealt with in the consolidation heard at the Magistrates' Court on 17 January 2017 for which you received that 92 day term of imprisonment, and your counsel took me to the matters listed in the Supercase which was a printout from the Magistrates' Court, (Exhibit 8) and told me which of those matters proceeded, which were withdrawn and the offence date of those matters which did proceed.
To complete the picture, and it must be completed, it would seem that this offending that I have to deal with and probably that other offending that was dealt with in the Magistrates' Court, occurred in something of a downturn or slump in your life. There has been a big downturn no doubt flowing from the 2000 accident and your rehabilitation from that, no question about that. I am speaking now more of the immediate circumstances and that is the on-off relationship with your partner, Kellie was ‘off’ at the time. There was at some point, an intervention order, and there was the strain of not being together, of not working and, of course, your continued addiction to drugs. To complete the background, upon arrest you spent 13 days in custody, you were then bailed to Dayhab rehabilitation but it did not go smoothly there, you were exited within days. You went to the Raymond Hader clinic inpatient centre from 14 July to 29 August 2016. It was a longer period but again was not entirely successful and you were discharged after some form of altercation there. Your counsel made plain enough that he was not relying upon a recent line of authority, the Akoka line of authority given the limited time involved in a rehabilitation facility and the difficulties that you presented but at least it demonstrated, he argued, that you had family support and that you would again.
You have been in custody continuously now since
29 August 2016. It is a very significant period of time. It is well over 550 days as at the time of the plea, though that period, as I have made plain, includes 92 days imposed by way of sentence for the consolidation of charges referred to in Exhibit 8. You have done a large number of courses, programs and certificates whilst in custody. This can only be a good thing. There are some clean samples, a number of them. So it seems apparent to me at least that you have made meaningful efforts in custody and that is the position irrespective of the dirty sample that I was told about by your counsel, Mr Dann who as a matter of completeness, having tendered the various clean samples, felt it was incumbent, and it was, to tell the court about his knowledge of the existence of a dirty urine sample that had been recorded a few weeks prior to the plea. These things happen and that does not cause me to disregard the other evidence placed before me as to your efforts in custody.
There was some live issue at the date of the plea as to your being on bail at the time of the offence for which I must pass sentence. I raised that and I wanted to know whether you had been on bail or had not been and at the time of the plea your counsel conceded that it seemed likely that you had been on bail. But, look, enquiries have been made by your instructor and an email has been sent to the court, copied into the prosecution and the position is plainly that you were not on bail at the time of this offending. That is the end position that I adopt.
Guilty plea
I turn then to the matters that have been raised in mitigation. The first of those is your guilty plea. I was taken to the chronology in some details and the Crown and your counsel submit it is appropriate to treat the plea as being one entered at the earliest stage. That is owing to the existence of other charges in relation to the clandestine laboratory which had been laid against you but which did not proceed against you. I accept that joint submission. You have pleaded guilty and at what I will treat as the earliest stage in these proceedings. That is a significant matter. I reward you for your guilty plea and the stage at which that plea was entered. In that manner, you have facilitated the course of justice. You have taken responsibility for your crime and at the earliest stage. Witnesses have also been spared the experience of coming to court altogether. The community has been saved the time, cost and effort associated with a contested hearing, either up in this court or a committal in the court below.
I take those matters into account in your favour.
Remorse
17 Your counsel argued that there was some remorse here. He really did not put it higher than that and he could not. He recognised the difficulties thrown up by the report of Dr Borg and he was right to recognise those matters. There are some sentiments expressed in that report which bring into doubt the existence of genuine remorse in this case. There is reference to your regret as to being caught. Regret for not doing it smarter. Regret for not growing a smaller number. There is remorse but expressed in the setting of your feelings for your family and your absence from them. Those things are not remorse. Nor remorse for the actual commission of this crime. You are quoted as saying in October 2017 the following: “I think it is ridiculous getting locked up for what I have done but I got carried away. I could be a lot more useful in the community”. I do not doubt that final sentence. I am sure you could be more useful in the community. So could many people who have committed crimes that required them to be locked up. Dr Borg was asked to comment on the existence or otherwise of remorse. She concluded that it is otherwise. She says that her professional opinion is that you expressed regret and remorse only for the consequences of your offences in being caught and locked up and the impact upon your family as opposed to remorse for the commission of the offence itself. Your counsel suggested that it was not an easy business making these judgments. There were those comments that had been made but in relation to an offence that might be thought not to connect up to a particular victim. That your comments had to be seen in light of that. He submitted that you had some remorse, it was not as fulsome as sometimes existed but that I should at least find that there was some.
18 I accept it is not a simple business. You do feel a degree of self pity, I am sure of that but it is not only self pity. You also, I am confident, feel for the plight of your family. Those matters, self pity and concern for your family, they are not remorse but they are perfectly understandable. I am not criticising you for feeling those things. A guilty plea is often indicative of some degree of remorse. Your guilty plea was entered at the earliest opportunity. There is also some reference to remorse in some of the written material placed before me.
19 I am prepared to find, as your counsel suggests I should, that you do have some level of remorse for the commission of the crime and I take that into account in mitigation. I think it is pretty limited but it is something and I do pay regard to it. It is hardly surprising that you also have a level of self pity as well as a concern for your family. It would be very strange indeed if you did not.
Rehabilitation
20
I move now then to your prospects of rehabilitation. Here, your counsel argued that you have some prospects in the future. I do not believe he applied any particular adjective to describe them. Well it is hard for me to say at this point. It is hard not to be guarded. You had family support and yet you offended in this very serious way. But, as I have said already, you had at that point been distanced from your wife at the time. There was something of a slump in your circumstances. This though was not some spur of the moment offending.
It was serious calculated offending. You had many opportunities to reflect on the seriousness of the steps that you were taking. Yet you took them.
You have a history before the courts including for matters of some relevance. But it is far from being a lengthy history and it certainly does not signal to me any suggestion that you are lost for all time. Nowhere near it. You also committed the array of offending dealt with at the Magistrates Court consolidation back in January 2017. You did attend in accordance with bail conditions for some rehabilitation prior to going into custody. You have taken the meaningful steps in custody that I have described with courses, programs and mostly clean urines. It has been a lengthy period already that you have been in custody and that cannot be ignored, you have not found it easy. You have for the first time had to deal with that issue, being locked up, with your concern as to absence from your partner and young son’s life. I do take that into account as well. It is not easy for you to serve a sentence in a setting such as that, especially your first sentence.
21 You have been arrested, charged and you have been brought before the courts. You pleaded guilty at the earliest opportunity and as I have said you do exhibit some level of remorse. There are also a number of strong references placed before me. I am not going to descend to the full detail of them. They were placed before me really as a bundle, (Exhibit 5) but I have read them all again since the day of the plea, including last night. In fact when I read those it is plain enough that you actually have a fair bit going for you. You did have family support. Maybe you did not feel that you did but you did and you do have family support still and you know that now. It seems to me when I look at your past career and past efforts and the existence of a reference speaking specifically as to job availability that upon your ultimate release a job will be likely available for you. When I look at all these things I am certainly not going to write you off and say you have no prospects of rehabilitation. If you can remain drug free I think, in fact, you have in that setting quite decent prospects of rehabilitation upon your ultimate release from prison. However one must recognise that this is no easy thing for you to remain drug free given the duration of your use of drugs over the years. In the circumstances I judge your prospects as being quite reasonable, quite realistic, but with that caveat as to the need to cease drug use. If you continue to use drugs, well I do not think you need me to tell you that your prosects in the future will dip very sharply.
Expert reports
22
I have taken into account the reports of Dr Borg and Ms Matthews as well as the report from the rehabilitation facility that dealt with the impact of the motorbike accident. Mr Dann made very clear he was not relying upon any of the principles from the case you heard discussed, of Verdins v R. The reasons for that are spelt out in the reports themselves, especially that of Dr Borg.
Ms Matthews report was a much older one and that was obtained in relation to the issue of bail. Still that is of value as indeed is Dr Borg’s. Together they deal with your level of functioning and the likely existence of an acquired brain injury. The reports of those family members who know you better than any other people suggest that there have been significant changes since that motor vehicle accident. Dr Borg posits that there are multiple contributors to your current cognitive profile. The changes flowing from the head injury are contributed to by ongoing cannabis and alcohol abuse since that point. There has though been no tendency for disinhibition. You are able to regulate your behaviours. You display adequate insight and you are well able to recognise when a situation has negative consequences. Your ability to make calm reasoned and informed choices was within functional range. You have no deficits that may have caused or significantly contributed to the offending. As I have said already, I take into account those reports. Indeed I should say I take into account all of the materials placed before me and the submissions that have been made by each of the parties.
Custodial experience
23 I mentioned already the fact that this is your first time in custody, it has not been easy. It never is. You do worry about your wife and son’s predicament and no doubt that does to an extent increases your burden. I take that into account not as there being some third party impact that I can take into account, there was no suggestion of that here, but as to your concern about their predicament increasing your own burden and I think I can take into account in that way. It cannot be a large mitigatory matter and it is not.
General remarks
24 As I said earlier in these reasons, unlike so many cases which come before the courts, you were not some lowly crop sitter. You had set it up. You had rented the premises, you were paying rent, you had accumulated the various equipment. You are the person responsible for this crop and you were the person to benefit financially from it. You are the principal. That is all conceded by Mr Dann.
25
No doubt your decision to engage in this enterprise was a financial one.
It almost always is in this domain. You were taking a very large risk but you were doing so for the hope of some sizeable reward. I do accept that your life had taken a downward turn with separation from your wife. You must have used significant amounts of money and/or effort to set up this crop. You were, as far as I can determine, the only person standing to benefit.
26 Financial gain then is, as I say, a very common motivation for people engaged in this sort crime at whatever level.
27 I am not able to conclude here that there is any significant reduction in your moral culpability at all. You were not for instance acting in a situation of threat or pressure falling just shy of a duress type defence. I was not made aware of any enormous financial pressures though I do accept there was a period of separation as well as the incapacity of your partner which is spoken of in a report from Dr Crosser, (Exhibit 10) and those things no doubt led to some degree of financial pressure probably upon her and probably also you.
28 But not every person who wants or needs money embarks upon the commission of serious criminal conduct. Of course you did. It was your decision. It was a very bad one, you do not need me to tell you that. But that is what it was. It was a choice and a choice which you made.
29 As far as I can determine, you were doing what virtually every person engaged in such activities does. Taking a sizeable calculated risk. You hoped not to be caught. But you must have weighed up the risks and the benefits.
30
I have to take into account the nature and the gravity of the offence. Even
crop-sitters who are but marginally connected to crops and who have no financial stake in the end harvest, they commit serious crimes when they tend a crop. That is because they are critical players in the end success of the cultivation or they would not be so engaged. Well you are altogether on a different level I am afraid. You were the owner of this venture, the principal. Commercial quantity is reached both by plant number and by weight. Your crop was not just some miniscule amount over the weight threshold of 25 kilograms. As your counsel put it, he conceded that it did not just “trickle over the commercial quantity threshold. It was about 44 kilograms so pushing up towards 19 kilograms over the commercial quantity by weight. Still the next threshold though is large commercial quantity and that is achieved by 1000 plants or 250 kilograms and you are a mile away from that. What it amounts to is this. There are many commercial quantity crops that are larger if not much larger than yours and many that are smaller.
31
As I have said in many other cases, I say now in yours, this crop, and its ultimate success, well has been interrupted by the execution of the warrant by the police. You clearly knew that you were embarking upon a serious crime. There is just nothing in any of the expert materials suggesting otherwise. Nor was it suggested otherwise by your counsel. So I am satisfied of that beyond reasonable doubt. You knew that you were committing a serious crime.
This was clearly an elaborate, organised criminal activity. It took much by way of preparation. Your hope of profit was central to the event. Profit to you, not profit to be derived by someone above you in some hierarchy. There was no one above you. You were the only principal.
32 You hoped to grow a crop to maturity to harvest and then to sell, to find a market to make a large illegal profit. Now you are not charged with trafficking, I do not sentence you for trafficking but this cultivation is unmistakeably commercial, as your counsel Mr Dann conceded on the plea on your behalf.
33
There is no valuation statement in this case as to the worth of this crop.
The court does not need a valuation statement to appreciate the inherent value of this drug. It is why you and so many others incur the costs and take on the risks in growing this drug.
34 This was an unmistakeably commercial venture and it was yours.
35
I must manifest this court’s denunciation of your criminal conduct and I do.
I must also punish you. I have got to do that justly and proportionately. I am required also to deter or dissuade you and others from committing this sort of offence. That latter notion is the notion of general deterrence and that is a significant matter here.
36 This crime carries a maximum term of 25 years’ imprisonment.
37 I must pay regard to the maximum penalty.
38 The Court of Appeal of this State has spoken often enough of the prevalence of cultivation of cannabis and the inherent seriousness of commercial quantity cultivation.
39 It is my observation that hydroponic cultivation perhaps 25 or 30 years ago was something of a real rarity. This sort of cultivation is now very commonplace indeed. You have chosen to cultivate a commercial quantity of cannabis. It is a serious crime, you knew it was and I have no doubt about that at all.
40 Sentencing always involves the balancing of a number of purposes or principles. I have mentioned some of them already. I have to take into account your prospects of rehabilitation. As I have said already, I think they are quite reasonable. Quite realistic. I think you still have a lot to live for and many who will assist you upon your ultimate release from prison.
41 As I have said I must consider the need to deter you, that is specific deterrence, deterring you from committing crimes in the future. You have pleaded at the earliest stage, you have some remorse, you have been in custody for a significant period already, that is your first taste of that experience and it has not been pleasant. You have the relevant criminal history I have spoken of and undoubtedly serious offending that I must deal with. So I must give at least some weight to specific deterrence. It is in my assessment in this case that it is not the predominant purpose of sentencing here. It can in fact be moderated to a degree.
42 I take the same view of Community protection. It is no doubt a relevant purpose but it too can be moderated to a degree here for the same reasons.
43 But those who choose to engage in this activity, at whatever level, as I have said, are virtually always taking a gamble, it is a calculated risk. A risk that is taken on because of the hope of financial reward, as it most clearly was in your case. Well, those who might be considering taking the risk must be persuaded to rethink. They must understand that with that potential reward comes a very sizeable and tangible risk of detection, prosecution and then the likelihood of the imposition of a very significant term of imprisonment.
44 This court must send a message loud and clear to others in the community who are minded to commit this sort of serious offence. There are evidently very many that are so minded. This is a prevalent crime as the authorities make very clear. General deterrence is, in my judgment, the principle purpose of sentencing in this case.
Current sentencing practice
45 I pay regard to current sentencing practices, as I am required to. I have looked at the cases to which I was referred which are spelt out in the judgment summaries exhibit, that is Exhibit 9. Each case and each offender though are very different. Other sentences passed on other offenders for other crimes, they are not precedents binding upon this court. What I will have to do is to pass an appropriate sentence in your case. The Court of Appeal of this State has spoken often enough of the prevalence of this crime and of its inherent seriousness. They have also commented often enough on the low sentencing practices and even of the inadequacy of sentencing practices, most recently in the case of Nguyen, [2016] VSCA 198, a decision from August 2016. The case of Nguyen was not directed at low level crop sitters. It was more directed at medium level cultivations and beyond. It is conceded by your counsel that the case has application to my sentencing task given that you fall into the second cluster spoken of in that case. Comfortably so in my view. I am sure it does apply to your case and to my task. You are not a lowly crop sitter. There was also in that case incidentally much by way of statement of principle as to the seriousness of the crime of commercial cultivation generally and the weight to be given to punishment and general deterrence. That is a common theme in all of the cases. That this is an offence that generally requires substantial punishment and significant weight to be given to the principle of general deterrence. See the case of DPP v Duong [2006] VSCA 78.
46 Your counsel made plain that there are no Verdins considerations pressed in this case and again he was right to make that concession. So no reduction in culpability at all. A calculated decision. A calculated risk. The time has come say the Court of Appeal for sentences to adequately mark out the true seriousness of the offence. To reflect the high maximum penalty and the highly calculated nature of the offending. Spur of the moment offending it most certainly is not. The Court of Appeal in Nguyen states that the current sentencing regime has persisted for far too long and has wrongly informed community thinking and left misconceptions unaltered in some parts of the community about the seriousness of such conduct. That case which does clearly apply to my task suggests that there must be a process of incremental uplift not some steep and alarming immediate response. I apply that case, the observations in that case and in other cases that deal with the concept of incremental uplift to my sentencing task.
Combination Disposition
47 Your counsel suggested that it was open to impose a combination-type order here but only by utilising the device of not declaring your pre-sentence detention.
48 There are some crimes where the purposes of sentencing cannot be given adequate weight by the use of a community corrections order, even one imposed in combination with a prison term.
49 It is just no part of my job as a judge sitting in this court to strive to use ploys, devices or contrivances in an endeavour to keep open the community corrections order disposition. The Court of Appeal on occasion has contended that this is exactly what has happened often enough in the past in this court and that that approach has led to undue compression of sentences in some cases (see Basic). It is not part of my job as a judge to jump ahead and to select an outcome, a sentencing disposition, even one with some advantages such as conferred by a community corrections order and then somehow try to work my way to reach that outcome. What I have to do is to pass an appropriate sentence.
50 One thing remains a constant in this case and in fact in every case dealt with by a court. Confining any person is a matter of last resort for any court. Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement, unless the court concludes that the purposes of sentence cannot be achieved by a suitably conditioned community corrections order.
51 It is accepted by your counsel that a community corrections order, on its own, simply cannot meet all the needs of sentencing. Mr Dann was conceding that a further term of imprisonment over and above your pre-sentence detention is required and I agree. He argued though that I should impose a prison term requiring further time in custody and provide for your certain and defined release in due course on a community corrections order.
52
I do not agree. I do not believe that such a disposition is open to me here.
That style of disposition would not achieve all the purposes of sentencing, including the need to punish, to denounce and to deter. As I have said a number of times, general deterrence is a very powerful factor in this sort of case. It is not my task to fix upon the combination of prison and later release on a community corrections order as the end disposition and then somehow plot a course or path to reach that outcome and to engage in ploys and contrivances to that point. It is, in my view, a disposition that is simply not available to me and that is owing to the nature of your crime, this crime, your role, your past criminal history and my need to impose an appropriate sentence. It would not achieve the purposes of sentencing, in my judgment. Past current sentencing practices have wrongly informed the community as to the seriousness of this style of conduct. You will still have a significant period to serve before being eligible for possible release. The Adult Parole Board will be in the best position to make a judgement at that time though of course that is their decision. I must proceed on the footing that you will serve every day of the head sentence which I will soon pronounce. That is because I have no power over the Adult Parole Board and no ability to take into account actions that they may or may not take. They and only they will decide if you will be released prior to the end of the head sentence that I announce.
Disposal
53 Application is made for a disposal order in relation to the various items of equipment set out in the lengthy schedule attached to the disposal order. There is no issue in terms of that order being made and made pursuant to s.78 of the Confiscation Act and I make that order and order the forfeiture to the state of the property referred to in that schedule. I direct that it be placed into the custody of the Chief Commissioner of Police and dealt with by him in the manner directed by this signed order.
Forfeiture
54 There is also a forfeiture order in relation to an amount of currency listed in the schedule again. As I understand it there is no issue taken with the making of that order either. That is made pursuant to s.33(1) of the Confiscation Act. I have signed that order. I am satisfied that pursuant to s.33 of the Confiscation Act the property referred to in the schedule be forfeited to the Minister.
464ZF
55 Finally there is a 464ZF application. That is an application for you to undergo a forensic procedure to obtain a forensic sample. There is no issue taken with the granting of that order. I am satisfied that it is appropriate for me to make that order and that is the order is justified owing to the seriousness of the circumstances of the offence, the prior convictions that you possess and the fact that it is not opposed and that I judge it to be in the public interest. I direct then that you undergo a forensic procedure for the taking of a scraping from your mouth. That is what I am authorising in accordance with sub-division 30A of Part 3 of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. So we are talking about the running of a swab around the inside of your mouth. It is not a particular invasive process. I need to inform you though that if, at the time, you do not consent to the taking of that scraping then the authorities may use reasonable force to enable that procedure to be conducted. No doubt if they experience difficulties in that regard they will be back before me applying for a blood sample, which to this point I have not authorised.
Totality
56 I take into account also the fact that you have been continuously in custody since August 2016, that you have spent a very significant time in custody, already upwards of some 580 days. Now of course as you know I will be declaring less than the full figure as formal pre-sentence detention in this case as you were undergoing the 92 day sentence imposed on 17 January 2017. But even that period has relevance. It is a period that you served and so you have been continuously in custody and I do take into account that 92 days in a broad fashion. I have looked at the sentence that I am about to impose to guard against imposing a crushing outcome and to ensure that it is commensurate with the overall gravity of your crime.
Sentence
57 On the charge of cultivation of cannabis in a commercial quantity, I convict and sentence you to 46 months or three years and ten months' imprisonment.
Non-parole period
58 I fix a period of 27 months or two years and three months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
59 You have already served 481 days of this sentence, by way of pre-sentence detention and that declaration is to be entered in the records of the court.
Section 6AAA
60 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of this offence by a jury, I would have convicted and sentenced you to five years and eight months imprisonment. I would have fixed a non-parole period of four years in those circumstances and that statement is also to be entered in the records of the court.
61 Grab a seat, Mr Serra. All right, are there any other matters at all or not?
62 MR PICKERING: No, Your Honour.
63 MR DANN: No, Your Honour.
64
HIS HONOUR: All right. You'll go down to see your client downstairs,
Mr Dann?
65 MR DANN: Yes.
66 HIS HONOUR: Yes, all right. I'm sorry to have taken so long delivering those reasons. Now he's come here as a person in custody, there's no reason for me to make any sort of custody management directions or anything like that?
67 MR DANN: No there's not. There's no pressing issues.
68 HIS HONOUR: Yes all right thanks very much then. All right well I'll sign that formal order in a moment but Mr Serra can be removed. Mr Dann will come down and see you, Mr Serra. Look, I'll sign that order in a moment. I've got other matters. I think I'll let you head in your different directions. I'll head down to chambers and come back on to the Bench fairly shortly for the remainder of my list.
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