Director of Public Prosecutions v Shaw

[2014] VCC 422

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-02233

DIRECTOR OF PUBLIC PROSECUTIONS

v

WAYNE SHAW

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 March 2014
CASE MAY BE CITED AS:	DPP v Shaw
MEDIUM NEUTRAL CITATION:	[2014] VCC 422

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek
For the Accused	Mr J. Torney

HIS HONOUR: 

1You have pleaded guilty to one charge of theft, two charges of trafficking in a drug of dependence and one charge of cultivation of cannabis.  You have also pleaded to uplifted charges of use cannabis, possess the proceeds of crime, possess a prohibited weapon and use amphetamine.  The charge of theft carries a maximum penalty of ten years; trafficking, 15 years; cultivation, 15 years; possession of the proceeds of crime, two years; and prohibited weapon, two years.  Use cannabis is a monetary penalty only and use amphetamine is one year.

2Because of the nature of the overall sentence I am going to impose upon you, the sentence for the use cannabis and use amphetamine will simply be that you be convicted and discharged.  There will obviously be a custodial sentence on each of the other matters.  We do not want you coming back.  I am trying to get rid of a fine.

3The situation is that you are now 44 years of age.  You pleaded guilty at the earliest reasonable opportunity and I accept and was always being told that you displayed the appropriate remorse.  You must also of course get the benefit of the utilitarian aspects of your plea of guilty.  In your particular situation, that plea of guilty and the confession, which is what it was, to the police of the trafficking in the cannabis and the technical trafficking in the amphetamines is of real importance.  It seems to me the Crown would have had a great deal of trouble getting a conviction against you for a trafficking of certainly that duration and that quantity without your admissions.  I am well aware of the authorities in relation to that and that is a significant matter in your particular sentencing process. 

4You do have prior convictions.  You do have a couple of convictions for drug use.  They are now old and were only small monetary fines in any event.  You do have Children's Court matters, but obviously I do not take those into account in this sentencing process, as they are now barred by time.  You have been in gaol for extended periods of time, but importantly in my view you have no relevant prior offending for the last 20 years.  That is of real significance in terms of your prospects of rehabilitation, though one has to take into account that this offending occurred over at least a couple of years.

5But be that as it may, first, pursuant to s.464 of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I just advise you that, should you refuse to provide such a sample, police may use reasonable force to take it from you.  That order is made and handed down.

6The circumstances of the offending were that in about March 2010 you moved into a rental house in Lalor.  You lived there alone until 2 July 2013.  Shortly moving into those premises - I note that the offending starts from May 2011 - you set up a hydroponic system for the purpose of cultivating cannabis.  You sold cannabis and manufactured, on the evidence before me, a relatively small amount of methamphetamine.  On 2 July police executed a search warrant at your address.  You were present and opened the door to them.  Upon searching the premises, police located a total of 35 cannabis plants growing hydroponically inside three areas of the house.

7The system included a reticulated watering system, high-powered lighting suspended from the ceiling, transformers, lights, shrouds and globes, power board, chemicals and cultivating tools.  It was clearly no amateur effort.  An illegal electrical bypass was discovered in the roof cavity of the house which diverted power around the meter box.  The plants were subsequently examined by a botanist.  There were nine plants in the hallway, weighing 1.8 kilograms; there were 12 plants in room two, weighing a total of 18.75 kilograms; and in room three, 14 plants weighing a total of 3.82 kilograms.  There was also a quantity of dry cannabis found which weighted approximately half a kilogram.  Obviously they are wet weights and would not have provided anywhere near that much cannabis for actual use.

8The total amount of cannabis located in the premises was 24.19 kilograms, which is just shy of a commercial quantity insofar as cultivation is concerned.  Police also found a non-functioning laboratory consisting of glassware, chemicals and the like.  You told police later that you had made a relatively small amount of amphetamine and used it for yourself and the Crown accept that that is the case.  They also located a plastic zip-lock bag with $2500 and that is the property suspected of being proceeds of crime.  There was a Samurai sword located, which is described as a prohibited weapon and which you have said you had for self-defence.

9You were taken to Epping police complex where you were interviewed.  You made, as I have indicated, very full and frank admissions - indeed, a confession.  You told the police where you got the materials from, how much you had grown over an extended period of time, and it does work out to a fairly considerable amount that you had actually trafficked during that period of time.  As I have indicated, that is based on your admissions and no other source of information. 

10It is important to note in your particular circumstances that there is no evidence of enrichment at all.  Your counsel pointed out to me that the premises were rented and that you did not even own a motor vehicle.  I accept that certainly the primary purpose of the growing of it was perhaps to sell a significant amount of it, that amount being sold was then being used to fund amphetamine use and ice use and, it would seem, other drug use.  You had grown previously, you told police, six crops and the calculations work out the trafficking in about 100 pounds over a couple of years.

11You were detained in custody after your record of interview for a period of 11 days and were then released.  The circumstances of the offending have to be regarded as serious.  You do have prior involvement with the criminal law and, in a situation such as this, general deterrents demand I think that there be an active custodial sentence.  This is a situation where, for a number of reasons as I outlined during the plea, it is a difficult sentencing process.  Had you been simply before me on any of those charges individually other than the trafficking cannabis, I probably would not have imposed a custodial sentence, but the totality of it all renders any other disposition inappropriate or impossible or however you want to look at it.

12The trafficking in cannabis is the most serious, I think, by some distance, but again that is based very much upon your admissions to police.  With that in mind, I look to matters personal to you.  There is a report from Carla Lechner, which I have read and take into account.  There is also a CISP report about you having been on bail for an extended period after you were released and you did well there, attended regularly and showed a lot of commonsense.  You have also been dealing with some behavioural change people and that would seem to have benefitted you, too.  You have significantly reduced your alcohol intake and your drug intake and that also augurs well for the future.

13You are now 44.  In situations like that, what happened in your childhood often does not matter a lot.  With you it is the sad case, which is so familiar to me after many years, of being in a family which you were unable to survive with.  You were made a ward at the age of 14; your first prior findings of guilt were in the Children's Court when you were about 12 or so.  You were placed in Turana as a ward, together with sentenced trainees, as they used to be called.  I have no doubt that that would have had a very deleterious effect on you, as it indeed has had upon many others.  Your formative years were spent with children who ether had very dysfunctional backgrounds or were criminally inclined.

14Having eventually graduated from Turana, you received a very significant gaol sentence in 1989 for manslaughter, which you served.  I do not know whether you were held in remand in Pentridge prior to that, but certainly the sentence that was imposed was served in an adult goal.  That would not happen now and I am sure that would not have given you much future either.  After that you were out for a while and then again received a period of imprisonment.  As I said, since that time, for somebody with your background, you have done pretty well.

15You commenced using cannabis and alcohol at around about the age of 12 or 13 and, in your teenage years, you were experimenting with amphetamine.  In more recent times you have started to use the drug ice, which I have no doubt, you will be fully aware, will kill you if you keep doing it. 

16The offending, as I have indicated, was brought about by you funding your own drug use.  The prospects of your rehabilitation are dependent upon you not using.  If you can get out of gaol and not use and obey parole, hopefully which you will get, the risk of you re-offending should be fairly slight.  You have now gone 20 years with nothing similar; there is no reason why you could not go another 20 years if you stop using ice.  In any event, it is a situation where, as I indicated to counsel, from my own experience of the criminal world, I have a degree of sympathy, which I have to be a bit careful of, for people who have been through the system like you have; but this has to be gaol.

17I have reduced it significantly because of your cooperation with the police and I think you fully understand that.  In any event, on Charge 1, three months; on Charge 2, 18 months; on Charge 3, 12 months; and on Charge 4, three months.  On summary Charge 2, one month; one the summary Charge 3, one month.  I direct that one month of the sentence be imposed on Charge 1 of the indictment, four months of the sentence imposed on Charge 3 and one month of the sentence imposed on Charge 4 be served cumulatively upon each other and upon the sentence imposed on Charge 2.  That gives an effective head sentence of two years and I direct that you serve a minimum term of 12 months before becoming eligible for parole.

18I direct that 11 days be reckoned as having been served under this sentence.  This figure is a bit meaningless in this situation because of the confession that you made to police, but I say that but for your plea of guilty you would have been sentenced to three with a two, just so you know the benefit of having put your hand up. 

19I have made the disposal order.  Are there any other orders that need to be made?

20MR BALLEK:  No, Your Honour.

21HIS HONOUR:  No, all right.  All right, up to you, Mr Shaw.  All right.

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