Director of Public Prosecutions v Shuttlewoprth
[2024] VCC 673
•14 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00242
Indictment No. N10889243
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN SHUTTLEWORTH |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 May 2024 | |
DATE OF SENTENCE: | 14 May 2024 | |
CASE MAY BE CITED AS: | DPP v SHUTTLEWOPRTH | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 673 | |
REASONS FOR SENTENCE
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Catchwords: cultivation of cannabis (simpliciter) ;theft electricity. July-Sept 2020 Between dates; 148 plants (70 seedlings) weighing 132 KG and 10 kg loose gvm but settled on simpliciter basis. 27 years old at time of offence, 31 years of age at time of sentence. relatively short criminal history – Guilty plea; - Worboyes v The Queen [2021] . remorse; delay; intellectual disability Verdins limb 5 and 6; disadvantaged background Bugmy; parity considerations.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Wilson | Office of Public Prosecutions |
| For the Accused | Mr M. McGrath (at Plea) Mr J. Moutsias (at Sentence) | Ellinghaus and Lindner |
HIS HONOUR:
1 Nathan Shuttleworth, you have pleaded guilty to one charge of cultivation of cannabis (simpliciter or non-commercial quantity basis) and one charge of theft of electricity pertaining to the bypass of the power meter. These are each between dates offences spanning 2 July to 2 September 2020. The summary correctly sets out the offence maximum penalties, being 15 years for the cultivation and 10 years for the charge of theft.
2 You have admitted a relatively short criminal history. That criminal history is dated and does not really inform my task.
3 The prosecutor Mr Wilson opened this matter to me last Tuesday in accordance with a written summary of prosecution opening for plea dated 7 May 2024. That document was marked as Exhibit A. Mr McGrath who then appeared for you made it clear that this was an agreed summary. There is then no point in my setting out all the sentencing facts in these my reasons. The agreed summary does that and I will sentence pursuant to it together with the photographs showing the nature of the set up. No one suggested that there is any need for the photographs to be marked as exhibits on the plea. I raised a couple of other matters from the depositional materials as a matter of fairness to give your counsel the opportunity to address me. For instance, the text messages flying between you and Mr Goder which were referred to in the course of the second police interview. Ultimately though, having considered those matters I do not have regard to those texts in the sentence that I impose.
4 I will give only a very brief summary then so that my reasons and my ultimate sentence might be readily understood by anyone who accesses these remarks when published, as they will be, on I hasten to add that it is important that I sentence in relation to the charges you have pleaded guilty to and on the factual basis which has been agreed. That is important as the large plant number and the weight of the crop at the time of seizure handsomely exceeded the commercial quantity threshold. I am however not dealing with you for commercial quantity cultivation and I must not lose sight of that fact and do not.
5 By way then of very brief summary, you and a man named Michael Goder decided to set up a cannabis crop. The two of you began constructing rooms within a factory in Future Road, Keysborough. You had leased those premises and I was told by your counsel that the rental was about $2,300 per month and that you were paying that rent. You leased that property in December 2018 for 2 years and the two of you would attend the factory in the afternoons to construct the rooms within the factory. Materials used for cultivation were purchased from Bunnings Warehouse. The Crown position which is accepted by your counsel is that you and Goder were acting pursuant to an agreement, arrangement or understanding to cultivate cannabis. Though I have mentioned earlier conduct by you in the setting up of the factory, for whatever reason, that earlier conduct is not rolled into the cultivation charge which relates to the later dates that are specified. It provides the context but also obviously goes to your level of understanding of the size and the scope of the factory ultimately used in the cultivation to which you have pleaded guilty.
6 The scope of this charge laid on a simpliciter basis, that is a non‑commercial quantity basis, is that in the between dates period, 78 large plants weighing 132 kilograms, 70- seedlings as well as about 10 kilograms of green vegetable matter was cultivated. See para 6.a. and b. of the opening. The theft relates to theft in that same period of an unspecified amount of electricity owing to the meter bypass which was operative. You are charged in relation to those items I have just listed which were seized by police upon the search of that factory on 3 September 2020.
7 The police attendance in fact followed a fire equipment services check of those premises earlier that day where the inspector who had attended reported the existence of a strong odour. Police were called and attended and they searched the premises and found what I have summarised. The agreed summary sets out the room by room tally of plants. I have mentioned the importance of sentencing you on the agreed basis. Para 7 of the opening sets out some significant matters germane to my task and I do not at any stage ignore those matters. I sentence pursuant to them. That is to say that despite assisting with the setup of the establishment and being the leaseholder, it is not alleged that you were aware of any cultivation at an earlier time than the between dates period to which you have pleaded. The artificiality of that state of affairs was mentioned by each party in the course of the plea. The fact is you had been involved in the decision to set up a cannabis crop at the factory you had leased and paid rent for. Of course Mr Goder says the cultivations commenced and he has pleaded guilty to that conduct and made a statement against you describing the acts of each of you in periods well before the seizure date. However, for whatever reason, the Crown have settled the matter on this basis including that in the charged period itself, it is not alleged that you attended the factory or had specific knowledge of the weight and number of the plants being cultivated. I will sentence on that basis.
8 The fact is though that in the charged period referable to you, this was a joint exercise, one where you were funding the rental, one where you knew the scale of the factory as you had set it up, this being an exercise where you knew that Goder was involved in the day to day acts required and no doubt with profit the end game.
9 I see no need to set out all the detail of what was found in the individual rooms. The summary does that. This was obviously a highly sophisticated crop which had taken much work and funds to set up, that much is clear enough. Blind Freddy would know that there was a commercial aspect to this venture even though of course I am dealing with a simpliciter charge. That was conceded by your own counsel. You were paying the rent. Quite aside from the sophisticated set up, call charge records disclosed the level of contact between you and Goder. See para 14.
10 Police executed a warrant on your house on 29 October 2020 and found a quantity of lights and cords. You were interviewed and you lied to the police saying that you knew nothing about the cannabis being grown at the factory and had sublet the factory to Goder. That you did not know of the existence of the electrical bypass. Of course none of this was true. You did describe what you saw when you were called in by the rental agent to clean up the property, saying that it was a sophisticated set up. See Question 77 of the first police interview. Question 79 was in these terms; 'So how do you know it was sophisticated like…? Your answer; 'Fuckin’ look at it. It’s fuckin’ huge' - see depositions p 709-710.
11 Police obtained your banking records and they identified numerous purchases on your account at a large variety of Bunnings outlets from December of 2018 to 10 September 2020. So items consistent with cultivation. Again though, I do not lose sight of the between dates that are alleged in the Charge 1 on the indictment. In your first interview you had denied any involvement in any cultivation. In your second interview you maintained those lies but predominantly no commented as was of course your right. Your conduct in answering questions in the way that you did in each of these interviews is in no way a matter of aggravation. It is just that you were not then honest with the police. Had you been honest and forthcoming, no doubt your counsel would have been able to have pointed to that fact in mitigation and of course he could not. That second interview took place in May 2022 at a point in time after Mr Goder had made a statement and pleaded guilty to commercial quantity cultivation. He had given a sworn undertaking to give evidence against you and he did just that at a committal hearing conducted in February 2023.
12 The summary sets out the chronology of the matter before the courts. Your own counsel had placed some detail of that before me including plea offers which had been made. He amended the written outline in relation to the plea offer made on 8 November 2022, telling me that that was not an offer to a between dates period at all. Rather an offer to plead to a single date cultivation and theft. I will discuss the significance of the way the matter settled later in these my reasons.
13 As I say, that chronology involved you offering to plead guilty to a
non-commercial quantity or simpliciter charge, as us lawyers refer to it, though not on a between dates basis. That was rejected. Ultimately it has settled on a between dates theft and the between dates cultivation on a non-commercial quantity basis. It is not for me to reason why the Crown have settled the matter on the basis that they have, including the factual basis contained within the summary. They have done that and that is what is important. It follows then that I am not dealing with you in relation to a commercial quantity cultivation. Mr Goder was dealt with on a between dates commercial quantity basis by Her Honour Judge Syme. She sentenced very much on an acceptance of his signed statement. She made a series of findings as to his reasons for being involved including the forgiveness of a debt owed to you and an aspect of being overborne by you or having some fear of you. She made findings as to his inferior role and his level of vulnerability, the fact that he was not involved in the financial arrangements or in the sharing of profit. She went on to say that it was difficult to overstate the value of his cooperation and the undertaking to give evidence. She was encouraged in this approach by the submissions made by the prosecution on that plea who spoke of the high value attaching to his statement and his undertaking, but who have now settled this case on the basis that I have spelt out before me. That Judge made a number of other findings as to the individual features in mitigation. She is no longer sitting.
14 I said on the plea and say again now, if the Crown had been given a large cash incentive to make my sentencing task as difficult as was humanly possible, they really could not have done any better than they have, given the way that this matter has resolved in relation to two co-offenders or related offenders. I will turn to some of these issues when addressing the concept of parity of sentence, as I must.
15 Though I am not dealing with you for commercial quantity cultivation, this instance of simpliciter cultivation is very obviously a serious example. That must follow given the scale and extent of this venture. I have no doubt at all that large unlawful profit was the end game and that is so, notwithstanding the Crown concession in your case as to ignorance of the precise weight and plant number. Nor do I have any doubt at all that you understood the stakes and the risks. This was unmistakably serious offending. That much was conceded by your counsel.
16 So much then for what is only a brief summary of the agreed summary in this matter. As I have already said, I will sentence pursuant to the more detailed agreed summary dated 7 May 2024.
In mitigation
17 Mr McGrath conducted a very comprehensive plea in mitigation on your behalf and he relied upon a detailed outline of submissions dated 6 May 2024. He relied also upon a lengthy report from a psychologist, Luke Armstrong, and a bundle of letters, one from a police officer, Leading Senior Constable Briggs, in relation to your efforts to assist a young man named Clay, one from the father of another young man who you had employed and one from a friend of yours, Mr Nathan Watson. Mr McGrath summarised a large amount of the material which was available in various files which had been subpoenaed, chief amongst them the DFFH or DHS file, as it would have once been called. Some of the source material which had been detailed in Mr Armstrong's report was actually filed on the plea as a bundle of extracted source documents and marked as Exhibit 4. Finally, there was a brief medical report as to the recent diagnosis that has been made in relation to your son, Calais.
18 Either by reference to the written material or in the oral submissions made to me, I was very adequately informed as to your family, educational, work, drug use, relationship, medical and mental health history. His written submissions extracted material from some of those contemporaneous materials to be found in the Department file which ran to 285 pages and which had been subpoenaed.
19 He made some submissions to the court as to the level of objective gravity of the offending and the relevant sentencing purposes in play in this case. Also, as to the impact upon my sentencing task of the sentence imposed upon your co-offender, Mr Goder. He made some submissions as to your conduct since the date of the offence and your prospects of rehabilitation.
20 It was really an excellent plea that was made on your behalf. That was no doubt because much work had been done in advance of that plea by your legal team. The importance of chasing down contemporaneous background detail such as was chased down here cannot be overstated. Often it is not done. Without it, there is usually no evidentiary foundation for mitigatory matters pressed upon a court.
21 In the thorough plea conducted on your behalf, Mr McGrath relied chiefly upon the following matters in mitigation:
· Your early guilty plea with some heightened benefit owing to the global pandemic backlog, (Worboyes[1]);
[1]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’)
· The presence of some remorse;
· Your disadvantaged early and developmental background (Bugmy[2]);
[2]Bugmy v The Queen [2013] HCA 37 (‘Bugmy’)
·
The application of two of the principles (limbs 5 and 6) from the
well known case of (Verdins[3]);
[3]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (‘Verdins’)
· The delay in this matter;
· An increased burden owing to your separation from your family if you were to be imprisoned;
He conceded that the offending was serious but he argued that a standalone community corrections order would be open to the Court here. That you ought not be sent to prison for a single day for there is no pre-sentence detention in this case. Failing that, a combination type order with a prison term followed by release onto a community corrections order. Failing that, a head sentence and a non-parole period.
Prosecution
22 The prosecution had prepared some detailed sentencing submissions dated 6 May. Those submissions dealt with a variety of matters including the nature and the gravity of the offending and the sentencing principles in play. They were generally quite uncontroversial, and I do not see any need to repeat them all. The Crown reminded me of the factual basis of sentencing here, at paragraphs 12 and 14. They conceded some matters in mitigation including the application of the so-called Bugmyprinciples as well as the application of limbs 5 and 6 from the case of Verdins. They dealt with role and the marked difference in the matter Mr Goder had pleaded to. They stated that Goder ‘played a more significant role…. compared to Mr Shuttleworth’. Mr Wilson corrected that position. In so far as I am dealing with you for the between dates periods, you had different roles. Mr Goder was dealt with on a longer between dates period on a commercial quantity charge but in that period embraced by your charge, he was the person on the scene. He was the person assuming the risk. He was the person involved in the day-to-day activities but doing so by virtue of an agreement reached with you, the person funding the rental. His acts do not detract from the importance of your role or your level of culpability. You were essentially a principal offender, and they seldom sit in the dock. Indeed counsel in many pleas conducted before this court take great effort in trying to persuade the court that the offender on the scene was ‘merely a crop sitter’ or the like and hence, distanced from the pointy end of the hierarchy. You were at the pointy end of what was an organised simpliciter cultivation in your case. The Crown also retreated from the submission that you had demonstrated insight into the offending and the problems with substance misuse. This offence really had nothing at all to do with your use of drugs and there really is no reference to insight in any of the materials in relation to the offending. It is different in terms of the misuse of substances, you have developed insight there. You provided though only false versions to the police and it would seem, quite extraordinarily, no version at all to Mr Armstrong who was tasked with preparing a report for this court case.
23 The Director of Public Prosecutions argued that a term of imprisonment was required in this case but that it would be open in the sound exercise of my sentencing discretion to impose a prison term in combination with a community corrections order. I mentioned before you have served no time in pre-sentence detention and so pursuant to the statutory framework that would permit a sentence of up to 12 months imprisonment to be served in combination with a community corrections order.
24 I am not bound by the submissions as to sentence made by either of the parties. I am exercising a sentencing discretion and I have to reach my own view as to the worth of matters raised before me and as to the appropriate sentence in this case, your case.
25 I will come back later to consider the various submissions made by the parties.
Background
26 Before that though, I will deal with your background. I am going to do that quite briefly as I have no reason not to accept the submissions and the material placed before me as to your personal background. Mr McGrath made it plain that he was relying upon your disadvantaged background in the manner contemplated by the High Court decision of Bugmy[4]. These Bugmy and Herrmann[5] type submissions are now very commonly made before this court. They are almost always based on self-report to counsel, or self-report to a psychologist. Very often there is a most unsatisfactory or shaky evidentiary foundation, if any at all. Then there is the exception to the rule, a case such as the present one, where so much effort has obviously been taken by your legal team to obtain and place before the court these contemporaneous reports and documents from those professionals who had been involved with you in your early years. The evidentiary foundation is very solid in this case.
[4]Bugmy v The Queen [2013] HCA 37 (‘Bugmy’)
[5]DPP v Herrmann [2021] VSCA 160 (‘Herrmann’)
27 Why then do I turn in more detail to your background and to your level of disadvantage in your early years? It was after all, all those years ago and what does it really have to do with my task? Well, the first answer of course is I am sentencing you, the person with that background.
28 Secondly though, an offender’s circumstances and their experience during their childhood and their formative years, must be considered in sentencing, not just out of some historical curiosity but because the effects of social disadvantage do not diminish with time. They are likely to have profound and lasting consequences and they can sometimes explain, but not excuse, the offending. Taking lifelong damage that is the result of childhood exposure to violence, abuse, or neglect into account when sentencing is really just the mark of a humane society.
29Well in this case there is much contemporaneous material in the Department of Human Services (now the DFFH file) and it provides support for the application of these principles in the general way submitted by Mr McGrath.
30I am not going to set out every detail of your personal background or every detail of disadvantage referred to. The outline of written submissions in conjunction with the report of Mr Armstong and the filed source documents descend to that detail and it is pretty compelling in this case.
31You were born in October 1992. You are now 31 years of age.
32It is very obvious to me that your early background was one of significant disadvantage and dysfunction. The aspects of childhood deprivation and interventions required in that setting are set out in great detail in the outline and the expert report and I accept that background, one of disadvantage secondary to poverty, physical and emotional and psychological abuse and neglect. Throw in sexual abuse on two occasions and a mild intellectual disability and the dysfunctional and disadvantaged picture is pretty much complete.
33You were one of a number of children. You told Mr Armstrong that you were the youngest of three children with two older biological siblings and two half siblings from your mother's previous relationship. Departmental records suggest that there were six children of your mother and at times four stepchildren. The precise number is not critical. The records suggest that all children, whatever the number, were removed as a consequence of abuse in the manner of parental rejection. You have little sense now of the movements of some of the other siblings or half or step siblings. See Armstrong's report para 2.a. You were exposed to your father’s violence, witnessing his violence to your mother and one of your sisters. Your mother left him when you were young. The first notification to the Department of Human Services as it then was, took place when you were five. That involvement then stretched to when you were 17 years of age. The notes from that point speak of emotional and physical trauma and the likelihood of injuries at the hands of your stepfather. Without going line by line through the materials, there was neglect, the failure of the adults in your life to accept support, admission to crisis care, threats of suicide from the age of 12, parents relinquishing care when you were 12 with no one else to stand in, respite care, foster care, and a diagnosis of ADHD seemingly later altered to one of a mild intellectual disability. You were in the care of the Department for many years. Schooling was fragmented. There was some conventional schooling, but you were transferred to a special school, and you left at around Year 9. You do not function at a high level. That is not just based on Armstrong’s assessment in 2024. There is reference to far earlier occasions where a mild intellectual disability was disclosed upon testing at that time. The use of the word 'mild' in such a description is not to be taken as suggesting something ‘trifling’ or ‘insubstantial’ as it might be understood if used in relation to a cold or headache. It speaks of significant enough deficits in functioning and capacity and they are spoken of in detail in Mr Armstrong’s report.
34Drugs have been a problem over the years but not for some years now. They really are not implicated in the decision to commit these serious offences despite what you have told the community corrections order assessment officer.
35Despite the fragmented schooling, your disadvantaged background and your cognitive deficits, you have the more than reasonable employment or work history dealt with at page 5 of the outline. Again, I do not see any need to set that all out. The outline does that.
36You are a married man, married to your long-term partner Madison. You have a 10-year-old daughter Teleah who is tracking well and a 6-year-old son, Calais, who has had some issues or disabilities recently diagnosed, being ADHD, sensory difficulties and some behavioural challenges. There is that recent report from Dr Moses that was filed late in the plea, spelling out what is required and providing his support for early childhood intervention.
37You do have a criminal history, but it is a relatively short one. It is obvious that you did not take the chances that were extended to you by Courts back in the day. However, the last prior matter was dealt with in 2014 and there has been nothing for some years. I was told as a matter of completeness of the subsequent matter where you were dealt with for possession of cannabis and I put that aside altogether.
38Well, having mentioned your criminal history, I need to make it plain to you that you do not fall to be sentenced a second time for any of your past crimes. Of course you do not. You received those past sentences. You have served them. Your past criminal history does not in any way aggravate this offending or remove the need for the imposition of proportionate sentences by me.
39I do though have to make judgements as to your prospects of rehabilitation, the extent of the need to deter you, your risk of reoffence and the weight to be given to protection of the community. Having said that, it seems to me that your criminal history really does not inform my task at all given the age and the nature of those matters. Indeed, as I think I said on the plea, given the family and personal background that I know to have existed, that level of disadvantage and dysfunction that I have spoken of, it would not have been at all surprising to see a far lengthier criminal history but of course I do not.
40 Now I have not set out all the detail of your background which has been so ably placed before me by Mr McGrath. There is much greater detail in the written submissions, as well as in Mr Armstrong’s report as well as the filed contemporaneous documents that were placed before me. There is also material touching upon your character in other aspects, including for instance your preparedness to meaningfully contribute as you have for the young boy referred to in Leading Senior Constable Briggs’ letter and for Mr West’s son, Anthony. I have the letter from Nathan Watson which adds to the picture. There are these people who speak of your strengths and your level of contribution. People who speak of your strengths as a father and as a friend. Of course, I do not ignore those matters. You are, as is almost always the case, far more than just the person who has committed these serious crimes.
41 I mentioned a short time ago that Mr McGrath was relying upon the principles derived from the High Court decision of Bugmy. These principles have been restated in many cases since, including the case of Herrmann in the Court of Appeal. Mr McGrath was relying upon these principles in the general fashion described in the case law. I asked him and he was explicit in that regard. The application of these principles does not depend upon proof of any causal connection between the background and the offence. That sort of casual connection is in fact very difficult to establish. Though it was often thought otherwise, these principles do not depend upon proof of profound disadvantage.
42 I am left in no doubt at all that your background was in fact profoundly disadvantaged. There is just no question about that in my mind. The evidence permits no other finding and I must act on the evidence. There was a deep level of dysfunction and instability in your developmental years. You were exposed to violence and seemingly had on the whole, the absence of positive role models in your early years. There was a level of dysfunction and neglect set amidst the other issues including of course the fact that you had a mild intellectual disability.
43 Yours was clearly a most unenviable background. I give it full weight in the way in which that term is employed in the case law including Bugmy, Herrmann and Sabbatucci[6] and as has been discussed in cases such as Newton[7] and Dhal.[8] I take your background into account as far as I am able to including as giving rise to some reduction in your culpability. There can be a softening of the retributive and deterrent purposes of sentencing.
[6]Sabbatucci v The Queen [2021] VSCA 340
[7]Newton (a pseudonym) v The King [2023] VSCA 22
[8]Dhal v The King [2023] VSCA 289
44 The case law though makes it clear enough that social disadvantage will not attract the same weight in every case or in the same way. The weight to be given to disadvantage will depend on the nature and the extent of the disadvantage, the nexus, if any, with the offending, though none is required, but also the nature of the crime or crimes and the relative importance in a particular case of sentencing considerations, including things such as deterrence, community protection and rehabilitation (see the case of Terrick[9]). Our backgrounds obviously leave their mark and yours most certainly has. The fact is no one would choose such a background that you had and of course you had no say in it.
[9]DPP v Terrick [2009] VSCA 220
45 You are now almost 32 and chose to commit these serious and calculated crimes. Community protection and general deterrence necessarily must have a role to play. There are limits to the application of these Bugmy principles. Nonetheless, I apply them to my task.
Guilty plea
46 I turn now to the other matters raised on the plea. Firstly, the fact and stage of your guilty plea. I will treat it as an early plea. Each party addressed me as to the way in which the matter resolved. The offers and counteroffers are spelt out in the various chronologies and were the subject of address in the sentencing submissions, both written and oral. After the first interview in October 2020, you were released uncharged. That altered of course after Mr Goder came forward and made a statement. In February 2022 he pleaded guilty and gave an undertaking. You were charged and released on summons after the second interview in May 2022. There were various committal mentions and then a contested committal in February of last year where Mr Goder was called and cross examined. You were committed to this Court and pleaded not guilty to all the charges. You had already, by that point, made an offer to resolve the matter. That offer was made in October 2022 prior to the committal, but not on the terms upon which the matter ultimately resolved. You were at that early point offering to plead to a single date cultivation with no charge of theft. The Crown rejected that offer and held out for a between dates commercial quantity cultivation and theft. You made an offer after the committal to a single date cultivation and theft. That was made on 8 May 2023 and rejected with the Crown indicating to your legal team on 13 June that they would be prepared to resolve on the basis presently before me. The matter resolved on or around that date in late August, whether it is the 28th or the 30th is academic, with a short form arraignment on 31 August 2023. Having set out that level of detail, I almost wonder why I did, for I do accept your counsel’s submission that this really should be and must be treated as an early plea. The Crown were pointing to the conduct of the committal as somehow having a role to play in the judgement I would be making as to the stage of the plea. See paragraph 17. Well, as to that committal, it was your right to run it and that was done in the face of other charges including one of trafficking and the more serious charge of commercial quantity cultivation which did not proceed. Obviously then, I cannot hold that committal against you or factor that in in making judgements as to the stage of the plea.
47 You have taken then what I will treat as early responsibility for these crimes by pleading guilty when you did.
48 As a result of your guilty plea, the time, cost and effort of a jury trial in this Court has been avoided. No witnesses have been required to give evidence in this Court though of course witnesses were called down below. As I have said though, it was your right to conduct those proceedings and presumably it must have had some role in the way the matter ultimately resolved below the original Crown ‘bottom line’, if I can use that term.
49 What is important is that you have facilitated the course of justice and I must reward you for doing so.
50 The matter settled in late August of last year at a stage when the backlog in this Court was being brought under control. However, that backlog had not then been entirely cleared. The Crown referred to my brother judges sentencing remarks in the case of Chalmers[10] as bearing upon the issue of the extent of any Worboyes discount. I read that case, a decision of Tinney J in the Supreme Court, and I do not believe that case even expresses a concluded view as to the extent to which the Worboyes principles persist. Nothing in Chalmers requires me to find those benefits to be extinguished in this case. They are not.
[10]DPP v Chalmers [2023] VSC 764 (“Chalmers”)
51 I do believe we are close to the point in time now, if not at that point, where surely any future decision to plead guilty will not be met by any heightened sentencing benefit derived from the case of Worboyes and the subsequent cases applying that decision. That is because we have now moved beyond the global pandemic. More significantly, the pandemic backlog in this Court has now actually been cleared. We are operating in this Court at pre-pandemic levels as the Chief Judge announced to the profession in October of last year. However, this case settled before that announcement and I do accept that it is appropriate to give some heightened benefit to your guilty plea in line with the principles derived from that case of Worboyes. So I will treat your guilty plea as worthy of some extra weight for the many reasons set out in that decision.
Remorse
52 Your counsel suggested that I could find some remorse present in this case. He pointed to the character references of Peter West and Nathan Watson. He also pointed to your early guilty plea.
53 I have here the strength of the Crown case. It was in my view a strong one. I want to make clear that nothing I say about the presence or absence of remorse detracts from the value afforded to your guilty plea. I have already spoken of those benefits and they are not dependent upon, or in any way impacted by, my findings on this topic of remorse.
54 Remorse can often enough be implied from the very fact of a guilty plea but that is not always the case. Sometimes remorse can be gleaned from statements made by an accused either to the police upon interview or even to a psychologist or other expert who has been commissioned to provide a report. Well here I had the two interviews with the police a couple of years apart where you plainly were misrepresenting the true position. It was your right to say what you said, and I have said already it was not a matter of aggravation that you were not forthright. I raise it as simply contrasting this case to one where a person chooses to make full and detailed admissions which can then go into the mix when making judgements as to the presence of remorse.
55 I have the complete absence of any statement from you in discussions with Mr Armstrong suggestive of remorse. Very strangely, he seems not to have even asked you about the offending. That is, I must say, very difficult to understand.
56 I have your recent discussions with the community corrections order assessment officer on Tuesday of last week. You said some things on that occasion that raise some issues as to the presence of remorse. He reports that you appeared to deflect responsibility for the offending stating that you initially had no knowledge of the cultivation in the factory. I interpose that may well connect up with the Crown position in this case that you are not fixed with knowledge as to the precise plant number and weight, and for that matter that you were dealt with on this between dates period, not the between dates periods aligning with Mr Goder's summary. More significantly though, you said that you were influenced by the co‑offender, that peer influence was implicated here, and that you were smoking cannabis daily and saw the offending as a means to ‘smoke for free’, to use your words. Your own counsel on the plea was not suggesting that these crimes had anything to do with drug use. He did not suggest and was not suggesting that any vulnerability on your part led to the commission of these crimes and he accepted in the course of the plea that profit was the only motive here given the nature of the factory, your involvement in constructing the rooms with Mr Goder , your lease of it and the joint agreement reached with Mr Goder. Despite your guilty plea, you seem to me to be persisting, to a degree, in misrepresenting the offending and your culpability. If you have said those things to the assessment officer last week, what account of the offending did you really provide to Mr Watson or Mr Best? I have no doubt at all, none, that you are sorry to find yourself in the dock of the Court. That is not remorse. I have no doubt at all that you are very sorry to have placed your family in the invidious position that they have been placed in. However, I am dealing now with remorse or contrition for the commission of your crimes, not feeling sorry for placing your family in this predicament. I am not satisfied on the balance of probabilities that there is much by way of actual remorse in this case. I will however treat your guilty plea as indicative of the presence of some remorse. I take that into account in mitigation.
Rehabilitation
57 I turn then to your prospects of rehabilitation. I have someone who, it seems to me despite a pretty dreadful developmental background, has not accumulated a massive history before the Courts. Far from it actually. There was some lack of response to past Court orders but that must be seen in light of those orders taking effect upon a much younger person and one who was in the throes of a battle with ice. There is much water under the bridge since that last appearance and it seems to me then that those past failures on court orders say very little about your present capacity to comply with a court order or for that matter to rehabilitate.
58 You are a married man with children and these things are said to be protective factors. No doubt they are, but they existed at the time that you embarked upon this serious offending.
59 You have been apprehended and charged and you faced the prospect of this Court case. It has loomed over your head for some years, rather like a dark storm cloud. Your counsel mentioned the issue of delay but he was not pointing to some unduly leisurely approach adopted by the police or the prosecution agency deserving of the censure of the court, and individual recognition in that way. He relied instead upon the fact that you have not accumulated fresh offences in that period. You have stayed out of trouble. You have continued on in your life. You have remained offence free for a further sizeable period. We could add that, he said, to the very large gap already existing in your criminal history. These things bore upon your actual prospects of rehabilitation as they demonstrated that there has already been a process of rehabilitation. That was the nature of the submission being put to me. There was the effect of being charged and the deterrent effect of any sentence to be imposed by this court. Regrettably it does not strike me that you are deeply remorseful, you are still arguing the toss and to a degree misrepresenting your criminality and culpability despite your plea. That is not particularly encouraging. As I have said, this offending had next to nothing to do with your drug use. It was calculated, organised offending designed to reap financial reward. Your own counsel conceded as much and then the next day of course you told the assessment office what you told the assessment officer, linking it to getting free cannabis.
60 It is hard not to be a bit guarded as to your future prospects given the objective seriousness of this offending. I have no doubt at all that you knew how serious it was and the risks involved to you should you be caught. No doubt about that at all. I am satisfied of that beyond reasonable doubt. Yet you chose to offend in this way. At least you seem to have dealt in the past with your serious ice use and there is a strong enough employment history before me. You have some things that many prisoners could only dream of having. A home, so a roof over your head. A job. A wife. Children. Family structure and support including from many who actually took the trouble to attend court the other day, and again today for that matter.
61 I have spoken already of the steps you have taken for others as are referred to in those three references filed before me. So providing support for damaged or disadvantaged or disabled youth as in Clay and Anthony, and for your friend Nathan when he was in his hour of need. I have said already you are far more than just the person who has committed these offences. I have Mr Armstrong’s views as to your future prospects. The things he says you will need to do and the risk into the future. It really is very hard to know what to make of his risk assessment in a setting where he has not asked you for any detail as to the offending. He seems not to have received any account from you or asked you to provide any account to him. That really is quite bizarre.
62 Having considered the various matters placed before me, I am prepared to find that you have relatively positive or favourable future prospects of rehabilitation. I am guarded only owing to the serious nature of this offending. It was not just something that occurred out of the blue as the summary makes very clear. It was obviously quite calculated and took a bit of effort and financial reward is the only explanation.
Armstrong’s report
63 I have mentioned already the report of Mr Armstrong. I do not see the need to work my way through it chapter and verse in these my reasons which are already overly long. It was a very useful repository of information as to your background and his view as to the impact of that background upon you. The report spoke of the nature of the mild intellectual disability, and your strengths and your weaknesses and your deficits. It spoke also of the features of borderline personality disorder. This report was useful when considering the Bugmy submissions. It was also relied upon as to the application of two of the six principles from the case of Verdins. The prosecution did not challenge that those two principles were enlivened in this case.
64 I asked directly and was told explicitly by Mr McGrath, who acted on your behalf, that limb 1 of Verdins was not in any way being relied upon here. Obviously enough Mr McGrath took the view that there was no realistic connection between the conditions spoken of in the report, including the mild intellectual disability and features of borderline personality disorder, and this offending. That is not to say that I do not take into account the cognitive deficit in a non-Verdins fashion. Of course I do.
65 As to the two limbs relied upon, they connect up with the impact of your conditions upon your prison experience. The likelihood of an increased burden of imprisonment (5th limb) and the serious risk of prison having a significant adverse effect on your mental health (6th limb). I suppose there is always a level of speculation when looking to future events. What is possible? What is likely? What may happen? What will happen? There is a level of speculation in the report of Mr Armstrong. Though Mr Armstrong had a particular portion of his report dealing specifically with the impact of imprisonment, Mr McGrath went to other areas within the report dealing with the various deficits which related to the opinion that you had a mild intellectual disability. What it all came down to was an increase in your vulnerability and destabilised mood and anger control. That and the heightened risk of suicide. I have considered the matter afresh since the plea and I am prepared to give some weight to each of these limbs. It is not a massive matter in my sentencing exercise.
66 Prison will be hard enough for one such as you even without the deficits and the features of a borderline personality disorder. You have not been a prisoner before. You are said to be a committed family man. You employ a number of people. You would no doubt worry about the predicament of your wife and children. You would not be on the scene. Your businesses would not have you at the helm and you would feel, I am sure to a degree, helpless and I take that into account as well. In doing this, I am not taking into account third party hardship. For instance, hardship to your wife or the children, or your employees, including Clay and Anthony. For a court to take into account third party hardship, there must be truly exceptional circumstances. The fact is sending a person to prison always leads to hardship, often enough significant hardship for those who are left behind. After all, often enough we have no choice as Judges but to lock up a principal breadwinner. Often enough a prisoner has family and is not in a position to provide emotional, physical or financial support. These things are just commonplace. They are not exceptional. Your counsel concedes that none of the matters raised on the plea, either individually or in combination rise to that high level. That concession was undoubtedly correct. I am though, permitted to take into account the increased burden felt by you, and I do.
Parity
67 I turn now to the principle of parity of sentence. In the broadest sense, parity is the notion that like co-offenders will be dealt with in a like manner. Before going any further I note of course that you fall to be sentenced for a between dates cultivation simpliciter, so on a non-commercial quantity basis, an offence with a 15 year maximum penalty, as well as the charge of theft. Mr Goder was sentenced for a longer between dates period for both the theft and the commercial quantity cultivation, that later offence carrying a 25-year maximum. There was a larger quantity of plants and greater weight as is referred to in the sentencing remarks. There are those differences but plainly you are ‘related offenders’ to which I must apply the principles of parity.
68
Back then to the notion of parity of sentence. Ordinarily if there are no points of distinction between the related offenders or their roles or their backgrounds, then the same or, at least, very similar sentences should be imposed by the court. I should state that that is something of an
over-simplification of the principle, but it suffices for present purposes. It is a principle which makes good sense. The hope is, that by applying this principle, courts will remove or eliminate any justifiable sense of grievance existing as between co-offenders. Well this principle of parity is very easy to state in the hypothetical, as I have just done in a sentence or two. It is a much more difficult principle to deal with when actually passing sentence as a real judge in a real case. That is because there is almost never such a thing as a like offender or like backgrounds. There are far more commonly differences in the individual features of the offenders or in their role or, as is most often the position, in both. Or in this case in the charges themselves.
69 It is harder still when different judges are, at different times called upon to sentence related offenders as is happening here. Judge Syme passed sentence upon Mr Goder in February 2022. She saw Mr Goder. She heard from him as he gave a sworn undertaking before her. Judge Syme had the full plea conducted before her on his behalf and made a number of findings. Well, Judge Syme is no longer sitting. I have done what I can to inform myself as best I can of the sentence already imposed and her reasons for imposing that sentence. That sentence is marked as an exhibit (Exhibit C). I note that it was marked as suppressed but the suppression order has since lapsed. Whilst I do have that sentence and I have read it in detail, I do not have a transcript of the plea. I do not have the evidence called on the plea. I do not have the actual exhibits placed before her.
70 She of course was dealing with Mr Goder not with you. I am dealing with you not Mr Goder.
71
There is a different major charge with a higher maximum and a longer between dates period in his case. Judge Syme made judgments as to the weight to give to the various sentencing purposes. Her Honour no doubt passed what she regarded as the appropriate sentence upon Mr Goder based on the conduct of the plea before her and the findings that she made. On the charge of cultivation of cannabis in a commercial quantity she imposed a combination sentence on that charge alone, that is a six month term of imprisonment followed by a three year community corrections order with various conditions including unpaid work. A
12-month community corrections order was imposed on the charge of theft. If I might say before going any further, I believe Mr Goder was extremely fortunate to receive such an outcome. However, he did. He received that merciful outcome and that was no doubt owing to the many matters of mitigation existing in his case. He was 35 at the time of sentence. He had no particularly relevant criminal history, with a most recent appearance back in in 2011. He was remorseful. He pleaded guilty at a very early opportunity. Indeed, as I have said, he had voluntarily come forward and made a full confessional statement. One which was viewed by the prosecution as being of high value. He disclosed matters not known to the investigators and was entitled to what is described as the additional Doran[11] type discount. He swore an undertaking to give evidence and to assist the authorities in the case against you. No doubt his stance was instrumental in the ultimate resolution of this matter. You had not even been charged until after he had made his statement. He received a very sizeable discount for the sworn undertaking. As Her Honour put it, it was difficult to overstate the value of his statement and undertaking. See paragraph 35. She said it led to an increased risk for Mr Goder, an increased prison burden and conveyed also from him an acceptance of his responsibility. Her Honour found in his case that the principles from Bugmy were enlivened as well as three principles from the case of Verdins, namely limbs 1, 5 and 6. So there was some reduced culpability found to exist owing to his mental health conditions referred to. He had engaged in nine sessions of counselling and had many character referees. Her Honour made judgments as to the reasons for his being involved in the crime that he had committed, an involvement based on his statement. Her Honour found he was not involved in the lease or the financial arrangements and not involved directly in any profit. There was an aspect of his having some permission to grow a small plot of plants for himself. Her Honour found that he had become involved owing to your preparedness to forgive a $7,000 debt in relation to a vehicle. Her Honour described you as the principal, Mr Goder as being a person with some vulnerabilities and who had been acting with some fear of you. Her Honour set out a submission made by Mr Goder’s counsel as the type of sentence ‘normally’ to be imposed after a plea for the sort of offending that Mr Goder had pleaded guilty to on the factual basis put before her; a prison term of around 2 to 3 years, probably more. No doubt that is so when regard is had to statements from the Court of Appeal as to the commonplace nature of sentences at a level of over three and a half years for crop sitters on a plea. See. Nguyen[12] where a sentence of three years and eight months was confirmed in the Court of Appeal, with the Bench comprising Priest JA and Beach JA stating that sentences in that region are entirely unexceptional, even for crop sitters.
[11]R v Doran [2005] VSCA 271 (‘Doran’)
[12]Nguyen v The Queen [2019] VSCA 134 at [65]
72 It makes very puzzling indeed the s6AAA declaration made in Mr Goder’s case. It is very difficult to follow how a guilty verdict after trial in his case could possibly have been rewarded with a sentence anywhere at that level, that is 2 years with a non-parole period of 15 months, but I suppose that is by the by. The s6AAA notional sentence is not part of the sentence imposed and no doubt errors can be made, not in the sentence, but in the notional sentence pronounced. For present purposes what is important is the sentence Her Honour imposed and what Her Honour found on the plea. The sentencing remarks set out all those things. I have mentioned just some of the findings Her Honour made on that plea. She made them on that plea and no doubt was satisfied on those various matters to the requisite degree. I am not making findings on his plea. I have to make findings on your plea.
73 I see no evidence at all that you were in any way subjected to influence by him. There was no suggestion at all that you were in any way in fear of him or vulnerable to suggestion or to peer influence. You leased this factory. You paid for the rental and that was obviously a substantial sum. I am only dealing with you for the between dates cultivation and in a setting where you are not fixed with knowledge as to the precise plant weight or number. Hence it is a non-commercial or simpliciter charge. I have spoken of that at some length earlier in my remarks. But you had, with him, set up the factory. You had expended money and time and effort to do so. You had a decent sense of the nature of the premises as you had joined with Mr Goder in constructing them with a purpose in mind, to cultivate cannabis. Given the guilty plea to Charge 2 of theft, you were plainly aware of the existence of the bypass of the meter in the between dates period notwithstanding that you had not visited the property in that period. I do not accept the written submission made by the Crown, one they retreated from, that 'Goder therefore played a more significant role in the offending compared to Mr Shuttleworth'. See Crown submissions at paragraph 15. See also paragraph 20, which speaks of your limited role compared to Mr Goder. The fact that you did not attend the premises says nothing at all about where you sit in this arrangement. He, in the period of this joint offending, was there on the day-to-day basis tending to the crop. That is not uncommon. You sat off to the side but not because of some slight or fleeting involvement or because of some lack of concern or interest as to what was then happening in the factory. You did not need to attend the premises. Mr Goder was there as part of the criminal arrangement reached between the two of you. His offence was the offence of commercial quantity cultivation with the higher maximum penalty obviously enough. But you were in this up to your neck in the between dates period of your offence. You were engaged jointly with him and plainly were a principal engaged for profit in what was an unmistakably commercial setting, albeit in your case not one attracting the higher penalty for commercial quantity cultivation given that you were not fixed with knowledge of the precise weight or plant number. You have the various matters I have spelt out in mitigation including amongst them the benefit flowing for an early plea and the Bugmy and Verdins allowances that I have made. You have in my judgment only minimal remorse and did not make any admissions. You have no benefit arising from the so-called Doran type discount or from any sworn undertaking. You were not charged until he, Mr Goder provided his statement. You are here now owing to his cooperation and preparedness to give evidence, notwithstanding the strange way this matter has settled. You were after all joint offenders.
74 I cannot ignore the sentence imposed upon him when I come to sentence you. Parity obviously has a role to play here. I have to explain, and that is why I have been saying what I have been saying, to you and to others why it is that I am going to pass the sentence I will soon pass upon you. The differences must be capable of rational explanation.
75 I started this topic by describing how parity stands for the proposition that like offenders will be dealt with in a like fashion.
76 Well, plainly all things are not equal here.
77 There are differences all over the shop here and I have mentioned many of them. Differences going in either direction but in a setting where he was dealt with for a different offence with a longer between dates period and a higher maximum penalty.
78 I must take into account the sentence imposed upon Mr Goder. I have done my best to apply the principle of parity to my task. I have not found it an easy exercise at all given the manner in which his plea proceeded and he was sentenced by another Judge with various findings made in his favour, and then the conflicting terms upon which your matter has then resolved. But that is the setting in which I must sentence you.
79 I want to make it very plain to you and to the Director of Public Prosecutions that I am going to pass a sentence far lower than would otherwise have been the position, owing to the existence of that sentence imposed upon Mr Goder and my application of this important principle. I have felt a sense of significant restraint. If you fell to be sentenced for the same charges as Mr Goder, well plainly you would do a good deal worse than him given the absence in your case of any undertaking or Doran discount and only minimal remorse. But I am not sentencing you on the same charges.
80 Had there been no issue of parity, so for instance a setting where there was no Mr Goder, just you and the simpliciter crop over the two-month period, I would very likely have passed a head sentence and a non-parole period in your case. But again that is not the position.
The Offences
81 The agreed summary describes your offending. I do not see any point repeating all the agreed facts. I have to consider the nature and gravity of the offending. There are these two offences, I will focus mainly on the cultivation of the cannabis charge. That has a 15-year maximum prison sentence. I must take that into account.
82 There is no doubt that hydroponic cultivation of cannabis whether a commercial quantity or not, as in this case, is a prevalent offence. We as Judges see many so called ‘crop sitters’ brought before the Court. People who have, or at least claim to have, a very modest or slight connection to a crop and no real stake in the success of the crop or the profits which might arise. People who are often enough, or say they are, paid a pittance to do the menial, but the necessary day to day tasks and to shoulder the risk. People who also provide something of a buffer for the person who does not go to the scene, who is often enough removed from the day-to-day acts required to bring the crop to maturity. Crop sitters or people claiming to be crop sitters, very often do sit in the dock. It is my experience that principals rarely sit in the dock of a court.
83 Well you were no crop sitter, that much is very very plain. You had entered into this arrangement with Mr Goder to cultivate cannabis in the factory that you had leased and converted. This you then did in the between dates period specified in Charge 1. You were in this for financial reward. You were not some minor or bit player. You were paying the rent. You knew the size of the factory. You had helped set it up. You knew Goder was cultivating there.
84 I am sure that almost every person engaged in this style of crime be it at a commercial quantity or not, is doing it in the hope of financial reward. You were. That much was conceded. You made a choice, a very poor one and the choice was to commit what you must have known was a serious crime. You clearly knew that what you were embarking upon was a serious crime. I entertain no doubt at all on that score. I am satisfied of it beyond reasonable doubt. This was obviously an elaborate enough, organised, planned criminal activity. There can be nothing spontaneous about offending such as this. You had ample time to reflect on what you had agreed to and the risks and the benefits and you determined to take the risk. Financial need, even where it does exist, is never an answer given the cost to establish this sort of venture.
85 You were running a business, a lawful business. Your involvement in this cultivation was really just by way of another business decision that you were making. Plainly, unlike many crop sitters, you had a stake in the success of this crop. Your culpability was high.
86 I am satisfied beyond reasonable doubt that sizeable illegal profit was central to your crime. I cannot know exactly what financial reward you hoped to gain here, but it must have been significant to have you expend funds and then take the risk that you knew you were taking.
87 Sentencing always involves the balancing the number of purposes or principles. I have to take into account your prospects of rehabilitation. I have said already, I believe there are favourable or positive prospects here.
88 I must consider the need for specific deterrence; that is the need to deter you from committing crimes in the future. So too community protection. I must also denounce your conduct. None of those purposes can be ignored. As to specific deterrence and community protection, no doubt each would receive far greater emphasis had you committed crimes such as these in the past or if you had a higher risk of reoffence. But your criminal history is all but irrelevant and my findings that you have a low risk of reoffence and positive prospects into the future must lead to sizeable moderation of these purposes.
89 Punishment is a purpose of sentencing which must be adequately reflected. General deterrence is a significant purpose of sentencing in cases such as this.
90 Those who may be tempted in the future to commit this sort of crime, and there are many of them, must understand there is the real risk of arrest, prosecution, and the imposition of a substantial prison sentence. That need to deter others does not evaporate because I am dealing with you for cultivation of a non-commercial quantity of cannabis.
91 Those who choose to engage in activity, that activity that you engaged in, at whatever level, are always taking a calculated risk, as you were. Future likeminded offenders must understand that the attractive potential reward on offer comes with the significant and tangible risk of detection, prosecution, and then the likelihood of confinement.
Current sentencing practice
92 I pay regard to current sentencing practices. It is not a single controlling factor. It is just one of the matters that I must have regard to.
93 I have looked at the Sentencing Advisory Council online data for the sentences imposed for cultivation. Also, the cases to which I have been referred.
94 I have also looked at the material held at the Judicial College of Victoria Sentencing Manual dealing with non-commercial quantity cultivation sentences dealt with by the Court of Appeal.
95 Statistics have inherent limitations. Statistical material will never identify the range of matters of aggravation and mitigation in a given case. It is no part of my job to sentence as per the median or the average sentences disclosed in the statistical material. Nor is any other case a precedent. There is no such thing as one correct sentence.
96 This is a quantitative based regime set up under the Drugs, Poisons and Controlled Substances Act 1981. Weight and plant number, whilst not the only matters of importance, will always be of real significance. Often, they are the only things distinguishing individual cases.
97 Now of course the crop ultimately seized handsomely exceeded the commercial quantity threshold. You are dealt with though on a simpliciter basis, as you did not know the precise plant number or weight. This was however a cultivation in a factory you had leased and one where you had constructed improvements with Mr Goder to accommodate cultivation of cannabis. You knew the size of the space. You knew of the existence of the bypass. You knew that Mr Goder was within, cultivating cannabis pursuant to your agreement for that to occur in the between dates period referable to your charge. No doubt you hoped to have grown as much cannabis as could be grown. This was a between dates charge and your role was not that of crop sitter.
98 This was a serious instance of cultivation. It is in my judgement miles removed from the lowest levels given the obvious commercial nature of the set up, and the arrangement that existed between you and Mr Goder. The only reduction in your culpability flows from my Bugmy finding but of course you knew exactly what you were doing. This was a serious instance of cultivation.
99 There is also the theft of the electricity. I have scarcely mentioned it. It is itself an inherently serious offence to steal in that way, but here no quantum of loss is available to me. Though nothing is set in stone, the case law suggests there is generally some cumulation to be had where there is a bypass and a charge of theft related to a cultivation.
Totality
100 I have engaged in a last look at the sentences in an endeavour to avoid a sentence that might be crushing upon you and to ensure the overall effect is consistent with your overall criminality.
101 Prison is a disposition of last resort. Your counsel, Mr McGrath who conducted this excellent plea, urged me not to send you to prison at all. He was arguing that a suitably conditioned community corrections order on its own could achieve all the purposes of sentencing. The Director of Public Prosecutions represented by Mr Wilson challenged the availability of such an outcome but did concede that a prison term in combination with a community corrections order would be open in the sound exercise of my discretion.
102 I have said already I am not bound by the sentencing submissions made by either party. I have regard to them as I do to every submission made to me but at the end of the day, what I have to do as a judge in this court is to exercise my own discretion. I have to pass appropriate sentences.
103 I have called for those community corrections order reports and I have received them back and spoken of them earlier in the course of these reasons. Indeed, there was some brief discussion prior to my pronouncing sentence. I should mark I think those formally so they will be marked, they are not a Crown exhibit, but I will mark them as Exhibit D.
104 You are found to suitable be for such an order. You are said, at least by reference to the tool administered, to have a medium risk of re-offending. I must say, I put that risk at a lower level. I made it clear to you and to your family that my calling for the report really should provide no comfort to you. That my calling for that report and extending your bail said nothing as to how this case would ultimately end up. I had your counsel argue in favour of a standalone community corrections order without any prison term. The other options to be considered were a prison term in combination with a community corrections order or for that matter a head sentence and non-parole period. I said last week that I would receive the reports, I would review all the submissions and the materials and make judgements as to the appropriate sentence required in this case. This is what I have done in the time since the plea.
105 The often-cited case of Boulton[13] does not stand for the proposition that every offender for every crime should be admitted to a community corrections order either on its own or even in combination with a prison term.
[13]Boulton v The Queen [2014] VSCA 342
106 As a matter of law though, if a suitably conditioned community corrections order would achieve all the needs or purposes of sentencing in this case, then confinement would not be warranted, and I would proceed in such a way. Section 5(4C) of the Sentencing Act 1991 would require that stance. The fact is a court must never impose a sentence that is more severe than is required to achieve the purposes of sentencing and a term of imprisonment is a sentence of last resort.
107 In the case of Boulton, the Court of Appeal suggested that Judges in my position ask the following question:
'Given that a community corrections order could be imposed for a period of years with conditions attached, which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?’' [14]
[14] Ibid at [121]
108
Regrettably, I must answer that question in the positive in this case. I do not believe that it falls within my sentencing discretion to place you onto a standalone community corrections order for this offending. I look at the nature and the gravity of these crimes, the matters in mitigation and aggravation and the relevant purposes of sentencing, and it is unthinkable that crimes such as these could lead to a disposition not involving a single day in prison. Such an outcome would pay inadequate weight to the various purposes of sentencing, especially general deterrence. What message would such an outcome send to those many others who might consider offending in the manner that you did? Altogether the wrong one, as far as I am concerned. It is plain to me that a stand-alone community corrections order would not achieve the various purposes of sentencing. General deterrence in particular is a significant sentencing purpose for the crime of cultivation. I must send you to prison and you have no
pre-sentence detention to call upon.
109 I am however satisfied that a combination type order is open to me. I make it plain; I would not have been but for the restraining impact of the parity considerations I have mentioned already. I believe it is open to me to impose a prison sentence and have you released at the end of that prison sentence onto a suitably conditioned community corrections order, which of course you would then be serving in the community.
110 Given the unity of the offending and that I am dealing with you by way of a combination type order, it is both open and appropriate for me to impose an aggregate prison sentence. After all that aggregate prison term represents only part of the sentencing disposition imposed by the Court.
Disposal order
111 There is an application for a disposal order that is not opposed. That application is made pursuant to the provisions of s78 of the Confiscations Act for the disposal of the items set out in the schedule, which are the samples of the green vegetable matter that have been maintained. There is no opposition to the making of this order. I have signed it and passed it in abbreviated fashion. I am satisfied the pre-conditions for the making of the order are made out here and that the property nominated in the schedule be held and dealt with in the manner contemplated by the signed order.
112 COUNSEL: As Your Honour pleases.
113 HIS HONOUR: I am sorry to have taken so long to get to this point, but I will have you just stand up briefly, Mr Shuttleworth. I will pass sentence and I will explain it in more detail. I will have you sit down for my later explanation. So let me just deal with the prison component that I will impose in this case.
Sentence
114 On Charges 1 and 2, I convict and sentence you to an aggregate period of 4 months' imprisonment. In addition, subject to your consent to this order, on those same two charges I propose to convict and admit you to a 2 year community corrections order which will take effect upon your release from prison. Grab a seat then, because I have to explain the community corrections order at length.
115 So I will explain this order in some detail. I know you have had them in the past, that was a long time ago and you breached an order in the past. So listen carefully as I explain this proposed order. I can only put you on it if you consent and I will ask in due course whether you do consent. I will give Mr Moutsias the opportunity to come down and have a chat to you.
116 The reason I explain these orders in detail is I do not want anyone ever coming back in breach of an order, claiming they did not know what might happen. You will know because I am telling you.
117 These orders have a range of mandatory terms. Firstly, it runs for two years. It takes effect upon your release from prison. So you will serve out the four month term that I have imposed and rather than having the issue as to whether you can convince the Adult Parole Board to grant an order for parole, which you would have had if there was a head sentence and a non-parole period and all the uncertainties involved in that, you have the certainty of knowing that there is a release. You will know within days what your release date is. So you will be released at the end of this relatively short sentence and you will be released onto a community corrections order, this one that I am now explaining to you.
118 You will need to report within two clear workings day. So you need to get yourself down to the Pakenham Community Corrections Services on the Princes Highway in Pakenham - you will get a copy of this document - and do that within two days of being released.
119 These orders have mandatory terms, they apply to everyone who gets one and they are set out on the order. I will go through some of these terms and one pretty obvious one, you must not commit another offence for which you could be imprisonment during the time that this order is in force. That means what it says and these days virtually every offence under the sun carries with it at least the theoretical possibility of a term of imprisonment. A speeding offence does not but any criminal offence, almost all of them have terms of imprisonment attached to them. So what you have got to do for the two years upon your release is what you have done for many years; stay out of trouble. But if you were to continue using drugs for instance, you have got to possess drugs to use them and possessing drugs is punishable by a term of imprisonment. I do not think any magistrate in their right mind is going to lock someone up for a possession of a tiny quantity of drug, but that charge itself, because it can be punished by a term of imprisonment would breach this order. So you stay out of trouble, all right? That is pretty obvious and you have done that for many years, with the exception of this conduct.
120 You have got to report to and receive visits from the Community Corrections crowd. You have got to let them know within two clear working days of any change of address or job. You let them know where you are. Do not just bob up and say 'I've moved here or moved there'. Let them know.
121 You must not leave Victoria without first getting permission to do so, that is in the period of this order. You must obey all their lawful instructions that they give you. So they are the mandatory terms. They are not that complicated and the main one for you I think is to stay out of strife and make sure that you do what they tell you to do.
122 Then these orders have conditions that are tailored to the needs of the particular case. They can deal with various purposes of sentencing including punishment and rehabilitation. So one of the conditions is unmistakenly punitive. There is already a punitive aspect obviously, a significant one in terms of the four month term of imprisonment that you are receiving.
123 I am going to require though that you must perform 100 hours of unpaid community work over the period of the order. You have got two years to do it. I have kept that sum down significantly and my advice to you is to get that work done and dusted as soon in the order as you can.
124 You are going to be under supervision for the period of this order. So you will receive directions as to how you are to be supervised and you will comply with then.
125 Then the other conditions, they are really focusing more on your treatment and rehabilitation. I mean there is a punitive aspect to all these things because they are conditions that attach to this order.
126 You have got to do things, but these are designed to foster your rehabilitation. So you must undergo assessment and treatment including testing for drug abuse or dependency, as directed.
127 You must undergo assessment and treatment including testing for alcohol abuse or dependency, as directed.
128 You must undergo any mental health assessment and treatment, that includes many things that are mentioned on the order, as directed by the Regional Manager.
129 You must participate in programs or courses addressing factors relating to the offending as directed by the Regional Manager.
130 So they are the tailored conditions. I do not have the slightest idea what directions they will give you in terms of doing the unpaid work or the drug or alcohol testing, or assessment or treatment, or the mental health conditions. Whatever they say though, you do. The work is unmistakably, as I say, a punitive condition. It is not meant to be enjoyable. It stands as a clear punishment. It will bring you into contact with the people who have - potentially with people on a work crew – who have histories before the court. Well, there is always a risk of that and I have considered that, but I have taken the view that it is necessary for you to do some unpaid work. Keep your head down, do the work, stay away from others.
131 Well, they are the full suite of terms and conditions. Some of them sound pretty punitive. Not being allowed to leave Victoria without first getting permission to do so. If you are doing well on this order; if you have got the hours well and truly under control, the unpaid hours; if you have been told to turn up for an assessment and you turn up and they give you some directions in terms of drug or alcohol treatment and you are doing it; if you are doing well on the order it is that sort of thing which would cause them, if you put your head up and said 'look I want to take the family to Surfers' or something like that for a holiday, they would look kindly I am sure on that sort of application. It does not mean you are locked up in Victoria for the period. What it means is you cannot just get in the car and drive, all right. If you are doing well on the order, no doubt they would consider any application made by you to leave the State. I have seen it happen all the time and it is granted, if people are doing very well.
132 As to the work itself, no idea what it will be, just do it. You are not shy of hard work, just get the work done.
133 In terms of the drug issue and the issues with drugs. Relapses are not that unusual. I have got this assessment and treatment and testing requirement for drug or alcohol abuse. I have seen people who duck and weave around that sort of thing. They avoid testing because they have had some sort of relapse and rather than turning up and providing a dirty sample, they think it is better to just duck the whole process, and they could not be more wrong. If you are having any sort of issues with drugs or alcohol, it is better that they know about it. If they know about it then they can give you directions to try and assist you with it. People who duck the testing very quickly find themselves back before court in breach of the order. It is in fact much better to have a dirty sample than a failure to turn up, as I see so often. So do not fall into that trap.
134 They are not going to swing you straight back to court because there is a dirty sample, all right? That is not the way they are going to operate. I will not even know about it. They would know about it and that would give them a sense that perhaps you needed some more assistance in that respect. So they are not going to pick up the phone and ring up the court and list a breach. That is just not the way it works. Whereas if you are ducking testing, if you are ducking programs, that is exactly what they will do. They will breach you on the order.
135 Well I think they are probably the things that I need to explain to you. You have in the past breached an order. The best thing for you to do is to form a decent relationship with the community corrections officer who will be assigned to your case. People go missing, people do not turn up. I am sure some people do not turn up because they have got good reasons not to turn up, but then they do not actually ring up their officer. You will be out and about in not that long from now. You will serve out this prison sentence. You are a person with some obligations in your life. You are a family man, you have got kids. There are some issues in terms of the youngest child. If there is some attendance that is being organised in relation to this order that is going to pose a problem for you, let them know. Do not just not turn up, that is the way people wind up being breached. So just treat them very decently and they will respond accordingly.
136 I have not told you what happens if you breach this order. So you have got this four month prison term. You have then got this two year community corrections order. If you breach this order by committing offences punishable by a term of imprisonment, or by breaching any of the tailored conditions that I have spoken of, that itself is a criminal offence. It is contravening or breaching a community corrections order. That is punishable by a term of three months' imprisonment. There is a very limited range of options open to a court when an order is breached. If it is breached, it comes back to this court, not to the Magistrate, and it comes back in front of this judge. So I will not be going anywhere. We deal with our own breaches. I would bring onto the Bench the notes that I have made in relation to this hearing. I would view the explanation I am giving to you that would be recorded. I would view the audiovisual recording of that. I cannot say exactly what I would do if you breach this order. It would be impossible for me to do that because of course my job would be to make an assessment of the nature of the breach, the nature of your compliance with the order, and then to make judgments exercising a judicial discretion as to what should happen to you. So I cannot set out directly what would happen to you but I tell you there are very limited options open to a court upon dealing with a breach of an order such as this. Do not work on the theory that you will come back and get a second chance on an order. Do not work on that theory. This is your chance, all right?
137 Probably the most likely outcome, or the most common outcome upon a breach of an order is the cancellation of the order. Well that sounds quite attractive; what could be better than having it cancelled? But if I was to cancel the order, I then need to re-sentence you, and if I re‑sentence you I am re-sentencing a person who has had the opportunity to comply with this order, a far more limited prison sentence than otherwise would have been the case but someone who has not complied. So work on the theory that if you breach this order I will send you to back to prison. I would take into account the four months that you have already served, but you should work on the theory that you will be getting a sentence of imprisonment with a head sentence and with a non-parole period.
138 As I say, work on the theory that if you breach this community corrections order there is every prospect that in a re-sentencing task you will be looking down the barrel at a head sentence with a non-parole period. So do not put yourself in that position. Do not put your family in that position either. Serve out this sentence of imprisonment, four months, get out on the CCO and hopefully we will not clap eyes on each other ever again. If I do it will be because you have breached this order and if I find myself in that position, I will listen to anything that is said on your behalf and make judgements at that time, but it is best that you work on the hypothesis that if you are silly enough to breach this order upon your release, you are likely to go back into prison.
139 Let me just see if I have satisfactorily explained all that. Mr Moutsias, are you satisfied I am getting informed consent from your client?
140 MR MOUTSIAS: Yes, Your Honour.
141 HIS HONOUR: Do you want to go down and have a chat to him quickly or not?
142 MR MOUTSIAS: Yes, Your Honour. He understands and consents.
143 HIS HONOUR: I will have the order come down to each of you. Just have a look at it each of you and then I will have my associate go down and get your client's signature on the document. Just each of you look at that. Make sure it mirrors my stated intention.
144 I will just have you remain seated I think for this. So Mr Shuttleworth, do you confirm then that you have signed this document?
145 OFFENDER: I do.
146 HIS HONOUR: Yes, and that you have signed it along the words, 'I understand the effect and the conditions of this order and I consent to it being made'.
147 OFFENDER: Yes, Your Honour.
148 HIS HONOUR: Yes, all right, thank you. We will have a copy of that run off for you and for your legal team and we are almost done.
Section 6AAA.
149 I have told you that I have taken into account your guilty plea and reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to 2 and a half years' imprisonment. I would have fixed a non‑parole period in that setting of 18 months.
150 Let me just see then if there is anything else? Mr Moutsias, are there any sort of custody management directions you want me to give at all or not?
151 MR MOUTSIAS: No, Your Honour, nothing.
152 HIS HONOUR: Well do you want me to mention it is his first time in custody or?
153 MR MOUTSIAS: Yes. Yes, Your Honour, thank you.
154 HIS HONOUR: Let me just have a look at it. Do you want me to, insofar as there is reliance placed on the report of Armstrong in terms of an increased – not just an increased burden but also the risk of deterioration – do you want me to attach the report of Mr Armstrong to the authorities or not? He comments on matters in paragraph 7, on p11, it's probably not paragraph 7 - - -
155 MR MOUTSIAS: Yes, Your Honour.
156 HIS HONOUR: - - - sentence of imprisonment and the impact and he deals with various matters including the understandable concern he is going to have for his family and the like. Do you want me to attach that?
157 MR MOUTSIAS: Yes, thank you Your Honour, that would be of assistance, thank you.
158 HIS HONOUR: On custody management I will indicate it is this man's first time in custody and some concerns have been expressed by psychologist, Luke Armstrong as to how he will fair in custody. (See para 7 on pp11-12 of that report.) Please take all care.
159 MR MOUTSIAS: Excuse me, Your Honour.
160 HIS HONOUR: Anything else?
161 MR MOUTSIAS: Excuse me, Your Honour. Could I have a quick chat?
162 HIS HONOUR: Yes, of course, yes.
163 MR MOUTSIAS: Your Honour, Mr Shuttleworth just raised the issue that he was a victim of a home invasion and he expressed concern about being placed in the same cell as one of those offenders.
164 HIS HONOUR: Well I mean he can raise that himself though, can't he? I mean he'll - - -
165 MR MOUTSIAS: Is that something to be sorted out through - - -
166 HIS HONOUR: Well I think that can be something that can be detailed by you to the authorities, really. I am not sure it's necessary for me to do that in terms of a custody management direction.
167 MR MOUTSIAS: Yes, Your Honour.
168 HIS HONOUR: I mean I will put something broadly there. I am not going to name names or anything like that.
169 MR MOUTSIAS: Sure.
170 HIS HONOUR: I can put something broadly if you want me to, but he can specify that himself very directly, can't he, upon reception.
171 MR MOUTSIAS: Yes, Your Honour.
172 HIS HONOUR: That might be better than having it on a record, but I will do whatever he wants me to do really.
173 MR MOUTSIAS: It might be best that he don't have that on the record and I'll advise him the steps to take that he can at reception.
174 HIS HONOUR: Yes, all right, but he's content enough for me to have the other material there or not?
175 MR MOUTSIAS: Yes, Your Honour. Yes, there's no concerns about that.
176 HIS HONOUR: I will sign that order once it is provided for signature. I have signed those formal orders. So you will go down and see your client Mr Moutsias today, and discuss what has occurred here today and his rights in relation to the sentence that has been imposed. As is my practice, I will revise these reasons once I get them back from VGRS. I typically revise them on the day, it might take a few days until I get it back, but once I get them I will get to work on them so they will be made available in the not too distant future.
177 Nothing else then from your perspective, Mr Wilson?
178 MR WILSON: Nothing further, as Your Honour pleases. Thank you.
179 HIS HONOUR: All right. That completes the matter then. So if Mr Shuttleworth can be removed and Mr Moutsias will come down and have a chat to you, Mr Shuttleworth, soon okay.
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