Director of Public Prosecutions v Sharp

[2021] VCC 358

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01545

DIRECTOR OF PUBLIC PROSECUTIONS

v

DWAYNE ADAM SHARP

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2021
DATE OF SENTENCE:	30 March 2021
CASE MAY BE CITED AS:	DPP v Sharp
MEDIUM NEUTRAL CITATION:	[2021] VCC 358

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              One charge of cultivating a narcotic plant in a commercial quantity – police executed a search warrant at a premises and discovered 112 kilograms comprising 120 cannabis plants as well as dried cannabis heads – evidence of involvement in enterprise for several months – charged with offending on one day only – Court unable to make precise finding as to role in the enterprise, although the offender’s role is beyond that of the lowest level crop sitter – some co-operation with police and very early pleas of guilty – good work history and other ongoing prosocial supports – likely to have reasonably good prospects of rehabilitation

Legislation Cited:      Drugs Poisons and Controlled Substances Act 1981; Sentencing Act 1991; Confiscation Act 1997

Cases Cited:

Sentence: 3 years and 6 months’ imprisonment with a non-parole period of 2 years. s.6AAA declaration: 5 years’ imprisonment with a non-parole period of 3 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E Fargher	Solicitor for Public Prosecutions
For the Accused	Mr T Antos	Victoria Legal Aid

HER HONOUR:

1Dwayne Adam Sharp, you have pleaded guilty to one charge of cultivation of a narcotic plant, cannabis L, in a commercial quantity.  This offence carries a maximum penalty of 25 years’ imprisonment.

2The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea Hearing (Exhibit “A”).

3On 22 August 2020, police obtained a search warrant for a residential property at 54 Huskisson Avenue, Lalor, which was where you had been living from about 1 April 2020, after having signed a rental agreement with the owner of the property, Mr Halabi, to pay a bond of $2,500 and monthly rent of $2,500. 

4The property consisted of two sub-divided apartments, and you rented the entirety of it.  When police entered, they observed various items of drug paraphernalia and a large quantity of sealed fertiliser bags in the kitchen.  You then directed police to a wooden cabinet against the wall in the rear hallway area.  Behind the cabinet was a 1.2 metre x 1.2 metre hole in the wall which allowed access to the other apartment.  In that apartment, there was a sophisticated set-up of hydroponic cultivation of numerous mature cannabis plants in four separate rooms.  The hydroponic system in each room comprised electricity cables, heat lamps, exhaust fans and water pumps.  In addition, installed across each of the four rooms were a total of 53 lamps of 600 wattage each, together with ballasts, all of which were connected to a timing device set up for 12 hours of operation each day.  A fifth room in the apartment was functioning as a drying room for cannabis plants.  There were a large number of cannabis buds on the drying rack and hanging from the walls.

5Police arranged for a meter investigation coordinator and electrical inspector, Mr Hartshorn, to attend the property and he identified an illegal wiring connection which acted as an electrical bypass to divert electricity around the meter in order to supply electricity to the various hydroponic systems in the four separate grow rooms.  The cost of unmetered electricity used at the property for the period 1 April 2020 to 22 August 2020 was calculated to be $19,735.96.  You have not been charged with theft of electricity, but the prosecution relied upon these matters as indicating the magnitude of the cultivation enterprise. 

6During the execution of the search warrant, police seized a total of 120 cannabis plants which had a total weight of 112.03 kilograms.  A commercial quantity of cannabis is defined as 100 plants or 25 kilograms.[1]  This comprises the entirety of plants found in each of the four rooms in which cannabis was growing, the drying room, and two bags of dried loose cannabis leaf found in a purple plastic container under the bed in one of the bedrooms at the property.

[1]Definition in s70 of the Drugs Poisons and Controlled Substances Act 1981, together with Schedule 11, Part 2, Column 2

7Whilst at the property, you told police that you knew the plants were cannabis but you lived at the property rent-free and were just helping with the plants, and that the property was owned by a man whom you had met whilst working at the Coles Distribution Centre, and that he was the person who had set up the crop.  You described him as being Turkish, called “Jarns”, and provided police with a mobile phone number for him.  After being placed under arrest, you told police that the Turkish man’s name was “Gehan”, and that you had moved into the property about three or four months ago on a rent-free basis.  You stated that you were required to tend to and care for the cannabis crop inside the premises and would water the crop every two or three days, along with two or three other men who would attend the property to assist.  You stated that you were to receive a couple of thousand dollars for your work.

8When formally interviewed by police on 22 August 2020, you claimed that you had had to move out of your accommodation and had nowhere else to go, and came across “a mate” who said he had somewhere you could go.  You said that you knew him from working with Coles when you had both been driving a forklift.  When police asked for his name, you replied, “Like, Jihan or Ji, I don’t even know if that’s his real name. He’s a Turkish guy”.[2] 

[2]Q&A 28 of the record of interview, depositions page 88

9You initially said that you had lived at the property for “probably not even three months”,[3] but later said you had moved in “After April, I’m not sure.”[4]  Later still, you stated that it had been during “March, April, yeah … somewhere around then, yep”.[5]  You claimed that it was only after you had moved in that the “Turkish guy” indicated that they were going to be growing plants next door, and you could “live there rent-free and just have to answer the door when they’d come”, and you would “get a percentage when it’s ready”, which you said “would be in the thousands, like a couple of thousand, but didn’t know how much”.[6]  You claimed that when the Turkish man came with the lease papers that he first told you “we’re gonna be putting plants next door” and “we’ll give you a cut when it’s ready”, and that you did not have to pay any rent but could stay there rent-free.[7]  You claimed it was “a couple of days after that when they started bringing the pots and everything…”[8]  You stated that the wall was just a plain wall when you moved in, without the hole in it[9] and that you had been present when the cannabis plants were planted and, at that time, they were “little baby plants”.[10]  You claimed that the Turkish man and others with him, “always two or three guys”,[11] were the ones who brought buckets of dirt and the little baby plants and set up the crop.  Also the electricity was put in your name and the first you heard about it was when you got a letter in the mail to that effect.[12]

[3]Q&A 37 of the record of interview, Ibid page 5

[4]        Q&A 38 of the record of interview

[5]Q&A 51 & 52 of the record of interview, Ibid page 6

[6]Q&A 53-59 of the record of interview, Ibid pages 6-7

[7]Q&A 70-78 of the record of interview

[8]        Q&A 96 of the record of interview

[9]        Q&A 92-101 of the record of interview

[10]Q&A 86-90 and 121-123 of the record of interview, depositions page 94 and 98

[11]        Q&A 102-104 of the record of interview

[12]        Q&A 149-152 of the record of interview

10You confirmed in the interview that you knew the plants were marijuana.  You stated that you had last been in the rooms where the cannabis was growing about three and a half to four weeks prior to the execution of the search warrant and, at that time, had seen that the plants were growing and “starting to … get the buds on them”.[13]  You claimed that you had smoked marijuana yourself daily for 25 years.[14]

[13]Q&A 118-119 of the record of interview, depositions page 97

[14]Q&A 128

11You are presently aged 47 years, having been born on 24 November 1973.  You come before the court with a criminal history dating back to 2007, when you were given a without conviction bond for obtaining property by deception.  At that stage you were 23 years old and you did not come before a court again until eight years later in 2015.  Between May 2015 and June 2018, you appeared before courts on a number of occasions, in particular, on three charges of driving whilst authorisation was suspended, one charge of using an unregistered motor vehicle, two charges of unlawful assault, and one charge of contravening a Family Violence Intervention Order. 

12Although these charges are not of the same type as the one for which I must sentence you, your criminal history shows that you were given multiple opportunities to address your offending behaviour by way of Community Correction Orders, which you breached and, even when the unpaid community work component was varied to enable you to pay a fine, you breached that as well. 

13The last occasion upon which you were before a court was an appeal heard in the County Court at Melbourne on 6 June 2018, relating to contravening a Community Correction Order and being resentenced on charges for which you had originally been sentenced on 9 March 2016.  The appeal was allowed and you were placed on another Community Correction Order for a period of 12 months with conditions of supervision, assessment and treatment, and unpaid community work.  It would appear that you successfully completed that order, which would have expired on 5 June 2019.  Prior to that, all of your appearances from 22 November 2016 relate to contravention of Community Correction Orders or variations of them, which were also breached.  Hence, you have shown a disregard for court orders albeit that your criminal history shows that you have not committed any other offences since in or about early 2016.

14In a plea on your behalf by Mr Antos, the court was told that you grew up in a close family and have two younger sisters.  Your father died at the age of 70 years, some three years ago.  On 24 November 2020, your mother died at age 63 from cancer.  You continue to have a close relationship with your sisters, one of whom, Ms Jade Sharp, was in court to support you notwithstanding that she has grave health issues of both breast cancer and bone cancer. 

15Also in court to support you was your former long-term partner, Ms Shannon Walker.  You had apparently been in a de facto relationship for some 20 years, but had separated five years prior to the time of offending.  You and Ms Walker have an 11 year old daughter to whom you are very close and with whom you have had regular contact since you and her mother separated.  After being bailed for this offending, Ms Walker has provided accommodation for you at her home, where she lives with your young daughter.

16You grew up in the Preston area and attended Preston Technical College to Year 10 level and then joined the workforce.  Your counsel stated that, over the years, you have held numerous positions, including those of powder coater, forklift driver and painter but, at the time of offending, you had been out of work for approximately a year and in receipt of a Centrelink Newstart Allowance.

17Mr Antos stated that, prior to the offending, you were in a difficult financial situation and had been removed from private rental accommodation in Coolaroo as the owner had wanted to live there himself.  Mr Antos invited the court to find that the hydroponic cultivation had been set up only after you moved in, and that your participation was “situationally motivated”.

18At the plea hearing, through your counsel, you maintained your version of events given to police, namely, that you had been made an offer to live at the property rent-free by a Turkish man with whom you had worked at Coles some five or six years earlier.  You claim that he had brought around a lease for you to sign, and it was only after you moved into the property that you had become aware that cannabis cultivation was to take place there and that, within a couple of days, the Turkish man and two or three others planted the crop. Further, your role was confined to opening the door to them when they wanted to tend the crop or otherwise watering the plants 2 to 3 days per week.

19Mr Antos acknowledged that the information that you had given to police concerning the alleged mastermind behind the cultivation enterprise had not led to any other person being identified or charged.  Indeed, police had interviewed the owner of the property, Mr Halabi, who stated that he was extremely shocked to learn from police that cannabis was being cultivated there.  He stated that he had initially run a milkbar at the premises, with an adjoining residential apartment, and he had known you as a customer of the milkbar.  Mr Halabi stated that he ceased running the milkbar in order to renovate the property into two sub-divided apartments and, whilst he was carrying out the renovations, you had expressed interest in renting the property.  He stated that this led to you entering into a private rental agreement with him on 1 April 2020, and a copy of that agreement was provided to police. 

20He further stated that on 1 April 2020 you signed the rental agreement and paid the first month’s rent and a bond, by giving him $5,000 cash.  He stated that he had come to the property at the beginning of May, June and July and, on each occasion, you had paid $2,500 rent in cash but, in August 2020, you had told him that you were unable to pay that month’s rent due to financial issues, and agreed to pay rental of two months in September 2020.  He stated that he had not inspected the property whilst you were there as you had not yet been there for six months. 

21Mr Halabi had also told police that you had contacted him in January 2020, stating that you would need a place to rent from March as you had nowhere to live.  He had told you that it would be available for you to move in, and you had stated that you would live in the shop side front of the property and rent out the other side to students.  He stated that you had asked if you could add some wood to the top of the brick front fence of the property and he agreed.  He stated that, later, when he went around to the property, he was surprised to find the wooden portion was very high and had no front gate.  When he queried you about this, you stated that you wanted the students to walk through the shop front area in order to get to their door.[15]  Your counsel conceded that there was no evidence that you had ever advertised or made any attempts to obtain students to sub-let the other apartment. 

[15]        Statement of Yayha Halabi to police, dated 4 September 2020, depositions pages 24-25

22It is plain that you made a number of false statements to police, and there has been a dearth of material put before the court concerning your employment history and the impecunious situation in which you say you found yourself prior to moving into the property where the cannabis was cultivated.  Many of your answers to police were vague and your ostensible cooperation in terms of the alleged principal of the cultivation enterprise was less than enlightening and did not lead to police charging any person, including Mr Halabi.

23As is so often the case with offences of this type, it is difficult to precisely define the role of an offender.  The prosecution has conceded that it is unable to prove beyond reasonable doubt that you had the means to set up this sophisticated hydroponic cultivation enterprise.  Nor did it submit that the court could be satisfied beyond reasonable doubt that you were the only person involved in this illegal offending or the principal of several offenders.  However, Ms Fargher submitted that the Court should be guarded about any finding concerning the involvement of others, whether the ostensible owner or architect of the enterprise, or three men who came to the house to plant and tend the crop. 

24Certainly, there has not been produced to the court any evidence of enrichment on your part but, of course, the police executed the search warrant prior to this crop, the bulk of which was nearing maturity, having been harvested.  The prosecution case is that the totality of the weight of the plants and dried buds were from one crop only.

25Although I consider it highly likely that you knew of the proposed cultivation prior to moving into the property, I find that I cannot be satisfied beyond reasonable doubt of that fact, or that you were the only offender.  However, nor can I be satisfied on the balance of probabilities of your version of events that there were at least three others involved. 

26I must sentence you on the basis of the charge that on one day, 22 August 2020, you cultivated a commercial quantity of cannabis plants.  There is always an artificiality about sentencing on the basis of one day only, in that a court cannot sentence in a vacuum and must take into account the context.  Obviously, the prosecution are able to prove that on 22 August 2020 there was a commercial cultivation operation in existence at the premises where evidence shows that you were the sole tenant and, indeed, the person whose name was on a lease of the property which had been signed on 1 April 2020.  You had lived at the property since about March or April 2020 and, on your own version of events, the crop was set up at those premises almost immediately after you moved in in a manner which was obviously clandestine, as indicated by the hole in the wall with the wardrobe hiding it. 

27It is apparent that, whilst you were living at the premises, modifications to the property were made in order to set up the various grow rooms and drying rooms, and you have admitted to watering the plants two to three times per week whilst you were there.  I must say that I cannot accept on the balance of probabilities that you had not been into the rooms where the plants were growing for some 3½ or 4 weeks prior to police arriving at the property on 22 August 2020.  This makes no sense if your role was to water the plants and many of them were reaching a critical stage of maturity during this time.   In all of the circumstances, I cannot be satisfied that your role was like that of the lowliest of crop sitters, who often take on that role in order to support their own drug dependence.  Indeed, your counsel made it clear that your position is that you did not participate in the cultivation of this crop in order to support your own cannabis habit.  Thus, I must conclude that your motivation for this offending is that of profit albeit that I cannot be satisfied as to the extent of any such profit.  I do find that you have minimised your offending, as indicated by a number of false statements to police.  Although I cannot be satisfied beyond reasonable doubt that you had either the capital or expertise to set up this cultivation enterprise, your role in living at the property enabled you to safeguard the crop and, at least, to water it to contribute to it flourishing.  I cannot be satisfied on the balance of probabilities that all you stood to gain from this criminal enterprise was free rental and perhaps a couple of thousand dollars once the crop was harvested, although you were vague in your answer to police about the latter.

28The seriousness of this offending is reflected in the maximum penalty of 25 years’ imprisonment that applies to it.  In this case, both the number of plants and the weight of those plants was well in excess of a commercial quantity.  Indeed, the total weight of 112.03 kilograms is almost four and a half times the commercial quantity of 25 kilograms.  A large penalty applies for this offending because illicit drugs do so much harm in our community and our law enforcement officers must make every attempt to nip this potential harm in the bud by ensuring that commercial quantities of cannabis, like that being cultivated in this case, do not find their way into the community.  Moreover, the nature of the way in which these crops are grown in private residential areas makes the crime of cultivating cannabis a prevalent one and one which is often difficult to detect.  Had police not executed the search warrant on 22 August 2020, there was a real risk that this commercial quantity of 112 kilograms of cannabis would find its way to drug users, with the attendant deleterious effects which are well-known.  Thus, in sentencing you, the court must denounce your conduct and place emphasis upon general deterrence.  That means that I must send a message out to others who might think about taking the risk of being involved in the illegal cultivation of cannabis, that it will not be worth their while because they will be given appropriate punishment.

29This offence is a Category 2 offence pursuant to s3(1) of the Sentencing Act 1991. Thus, pursuant to s5(2H) in sentencing for it, I must impose a term of imprisonment (other than a sentence of imprisonment imposed in addition to making a Community Correction Order) unless one of the exceptions set out in that sub-section apply. Your counsel has conceded that there is no special reason which can be put before the court on your behalf. Thus, the only appropriate sentence is a term of imprisonment.

30In sentencing you, I take into account that when the police arrived at the property on 22 August 2020, you co-operated with them by directing them to the hole in the wall behind the wardrobe so that they could gain access to where the crop was growing.  You also provided the P.I.N. to your mobile phone and made admissions to being involved in the cultivation.  Also, you pleaded guilty to this offence at the earliest possible opportunity.  Having been arrested on 22 August 2020, you had indicated your intention to plead guilty to the charge by a committal mention date held on 16 November 2020.  This is the earliest possible plea of guilty.  By it, you have accepted responsibility for your offending and facilitated the course of justice, and saved the time and expense of a criminal trial.  The utilitarian value of the plea is all the greater for the fact that it was entered during a period of restrictions imposed by the COVID-19 pandemic, when it was not possible to run criminal trials.  Although it is possible that there is some remorse attached to your plea of guilty, I find it difficult to be satisfied that you have what is often referred to as “true remorse” due to your maintaining at the plea hearing a version of events which did not sit at all well with the Prosecution Opening.  Nevertheless, you are entitled to a significant and meaningful discount on the sentence which otherwise would have been imposed.

31There is very little that the court knows about you that might explain this serious offending.  Although Mr Antos stated that you have concerns that, having smoked up to a gram of marijuana per day for two and a half decades, has adversely affected your cognitive ability, there was no psychological or neuropsychological material put before the court.  It is also difficult to assess the calibre of your work history given the very vague assertions about it from the Bar table. 

32However, a careful analysis of your criminal history shows that, although you have been irresponsible in driving whilst your authorisation to do so was suspended, and have on many occasions failed to comply with Community Correction Orders, you had not been involved in any other offending for some four years prior to this and had never before been involved in any apparent drug-related offending.

33You come from a decent family background and continue to enjoy a close relationship with each of your sisters.  Although your long-term relationship with Ms Walker had come to an end well prior to this offending, she has provided accommodation whilst you have been on bail at her home, where your 11 year old daughter lives and was in court to support you at the plea hearing.  You have apparently maintained a close and loving relationship with your daughter during the period of the five years separation, and I have no doubt that you will feel her absence keenly whilst serving a term of imprisonment.

34I accept that as I remanded you in custody during the COVID-19 pandemic, you would have been required to isolate for the first 14 days of your sentence, which is challenging when adjusting to prison life, where you have only been once before for a period of 42 days back in 2018.  Further, I am aware that there is still a prohibition on contact visits from family and friends, and only limited rehabilitative programs available, as well as restricted out of cell hours in most prisons in order to facilitate social distancing.  Whilst one might hope that such restrictions will gradually ease as things improve in the State of Victoria, I nevertheless take into account, insofar as I am able to do so, that while they exist they cause a term of imprisonment to be more onerous.

35In all the circumstances, the only appropriate sentence is one of imprisonment comprising a head sentence and a non-parole period. 

36As far as your prospects of rehabilitation are concerned, I have noted the lack of any prior similar offending, an apparent prosocial attitude to work in the past, and the ongoing support of your ex-partner and sisters and your devotion to your 11 year old daughter.  Although you stated that your motivation for offending was not to obtain a supply of cannabis to support your daily habit of smoking 1 gram over some two and a half decades, I consider that your cannabis use may have contributed to you making a very bad decision to become involved in this criminal activity.  In the event that you were able to abstain from your long-term habit of daily cannabis use, your prospects of rehabilitation are likely to be reasonably good.  It is very much to your credit that you pleaded guilty to the offence at the earliest possible stage, only three months after being charged with the offence.  You are now 47 years old, and it may well be that being charged with this serious offence has taught you a lesson that criminal offending is simply not worthwhile.

37On one charge of cultivating a narcotic plant in a commercial quantity, you are convicted and sentenced to be imprisoned for a period of three and a half years.

38I direct that you serve a period of two years’ imprisonment before becoming eligible for parole.

39I declare a period of eight days pre-sentence detention to be reckoned as time already served under the sentence imposed this day.

40Pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the property referred to in the schedule of the order, and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date, or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.

41Pursuant to s6AAA of the Sentencing Act I state that, had it not been for your plea of guilty, the total effective sentence imposed would have been five years’ imprisonment with a non-parole period of three and a half years.

42Mr Sharp, the Court wishes you well with your rehabilitation and hopes that, when you are released, you can make use of your better attributes, like a capacity for hard work, and your good family supports to start life afresh.  Whether you are granted parole is, of course, a decision for the Adult Parole Board, not this Court.

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