Director of Public Prosecutions v Simcock
[2015] VCC 180
•20 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-01537
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAY SIMCOCK |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 September 2014 |
| DATE OF SENTENCE: | 20 February 2015 |
| CASE MAY BE CITED AS: | DPP v Simcock |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 180 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Millur | O.P.P |
| For the Offender | Ms E. Turnbull | Turnbull Lawyers |
HIS HONOUR:
1Jay Simcock. On 16 September 2014 you pleaded guilty to four charges. Charge 1 was cultivating a narcotic plant (cannabis L). I am satisfied the appropriate penalty for that particular offending set out in s.72B(2) which is 15 years' maximum term of imprisonment. Charge 2 (theft); maximum penalty is ten years' imprisonment. Charge 3 (possession of drug of dependence, methylamphetamine); the appropriate penalty maximum is set out in s.73(1c) which is one year imprisonment or 30 penalty units for that charge. And Charge 4 (possession of drug of dependence, anabolic steroids); the appropriate penalty maximum is set out in s.73(1c). Again, it is one year imprisonment or 30 penalty units.
2I now turn to the offending. At approximately 10.30 pm on Friday 21 February 2014, police attended at 3 Lloyd Avenue in Narre Warren to execute a search warrant pursuant to s.81 of the Drugs, Poisons and Controlled Substances Act. You presented yourself at the front door of the premises.
3Police located a sophisticated hydroponic setup inside the premises which was being utilised to cultivate cannabis. The premises had been modified and set up for the sole purpose of growing cannabis. Two separate rooms within the main dwelling had been set up for the primary function as grow rooms for the cannabis. Both of those rooms contained cannabis plants with piping, water pumps and recirculation watering systems had been constructed. A third room had been purposely built inside a garage or shed which is at the rear of the property which had been utilised for the growing of cannabis seedlings.
4Police also located a complex ventilation system which had been suspended from the ceiling in each of the grow rooms. The system comprised of fans and charcoal filters which were used for the purpose of masking the smell of cannabis. Windows in all the rooms used for the growing of cannabis had been blacked out. Lights were also connected to an electrical timer system and had been utilised to give the appearance from the outside that people were inside the house.
5Each grow room also contained lights and shades which were mounted to the roof by way of a rope pulley system to enable the height of the lights to be altered depending on the stage of growth of the plant.
6I viewed the photographs of the crime scene which was Exhibit B and note that this grow house is a sophisticated and organised setup that would have required considerable capital expenditure to put it in place.
7Investigators carried out a thorough search of the premises and located the following items. I will list them. (a) seventy cannabis plants at various stages of growth with a combined weight of 34.8 kilograms; (b) one Easy Vac vacuum seal machine; (c) FoodSaver vacuum seal bags; (d) one Salter electronic scales; (e) various items of documentation in your name; (f) one LG mobile phone; (g) one electrical wiring bypass; (h) one power metre; (i) 30 grow light shades; (j) 30 light globes; (k) 44 carbon air filters; and (l) one container of Nutrifield fertiliser. These are the facts which are the basis of Charge 1.
8After the search of the premises commenced, an electrician and an electrical inspection officer attended at the premises and conducted an assessment of the electrical system which has been installed to assist with the cultivation of cannabis from within the premises. During the course of the assessment, the electrician located an electrical bypass which had been installed inside the roof cavity of the premises. This bypass had been installed and was being used to bypass the electrical metre at the premises. That is the charge of theft, Charge 2 on the indictment.
9Investigators also located within a supplementary container stored in the pantry, a zip lock bag containing a small amount of methylamphetamine. That is Charge 3 in your case, the possession of methylamphetamine.
10Investigators also located within the fridge of the kitchen area one 250 millilitre bottle of Rhino brand nandrolone decanoate, two 250 milligram bottles of Rhino brand testosterone entanthate and one vile of Gentropin. That is Charge 4 which is the possession of anabolic steroids.
11Investigators also located in the kitchen area zip lock bags with some amounts of methylamphetamine in it. That is part of Charge 3.
12You were arrested and conveyed to the Narre Warren Police Station for the purpose of conducting the interview. At the Narre Warren Police Station on 21 February a record of interview was conducted with DVD facilities. During the interview, you made full admissions to being the owner of all the items located within the premises. You stated that you were the only person that resided at that address. You answered no comment in relation to the questions put to you regarding how long you had rented the property for and who you had rented the property through. You answered no comment in relation to questions put to you regarding the vacuum seal bags and the seal bag machine. You answered no comment in relation to questions put to you regarding human growth hormones and amphetamines located within the premises. You stated that you installed the electrical bypass along with the rest of the electrical wiring. You stated that you were not a qualified electrician.
13I accept that you made full admissions to the police about being the owner of the equipment at the premises and installing the electrical bypass. I have difficulty reconciling the amount of money required to set up this grow house with your parlous financial position that motivated you to be involved in this criminal behaviour to pay for your drug habit to your ice dealer. That said, I am required to sentence you on the basis of the facts set out in the prosecution summary Exhibit A.
14I now turn to your personal circumstances. I have been told a little of your background and personal circumstances. Much of the submission on your plea were directed to your immediate past efforts to rehabilitate yourself from your drug addiction. You are 34 years old. Your mother Colleen passed away in July 2013 after a three year battle with cancer. Your father John was in court to support you on the plea. You have an older sister Nicole. She gave evidence about the significant change in you since being engaged in rehabilitation. I understand it is early days, but your sister is prepared to accept you into her home on visits now. She was matter of fact about not having anything to do with you when you were on drugs.
15Your early life was reasonably happy and stable. You completed primary school at St Peters and then moved to Hoppers Crossing Secondary College. You finished school at about year 10 and took up an apprenticeship as a plumber. You are a qualified plumber.
16Your sport is boxing. You commenced as an amateur boxer at the age of 15. You competed for the Australian title for Australian junior middleweight division in 2007. Between the ages of 18 and 24, you remained in the amateur ranks. At 24, you changed to professional boxing until the age of 27. You used amphetamines in that part of your life, that is between 18 and 27. At 27, you left the old friends - the old friends being the drug friends - and moved away to Airlie Beach, Hamilton Island area and then Cairns, Darwin, Perth and the Pilbara in an attempt to separate yourself from them. You returned to Melbourne when your mother was diagnosed with cancer. You also returned to drug use, unfortunately, which included ice. You continued your drug-riddled life up until the time of your arrest for these charges.
17Your efforts to rehabilitate yourself from drug addiction by the time of your plea in November last year were significant. Your starting position was a person who had abused alcohol, amphetamines, methylamphetamines, cannabis and cocaine. You completed a 90 day intensive rehabilitation program at the Raymond Hader Clinic between 11 August 2014 and 10 November 2014. I was provided with a report dated 16 November 2014 by Sam Sansor, a counsellor at the Raymond Hader Clinic. That was Exhibit 1 on the plea.
18I also heard evidence from Jackson Opie, a director of Raymond Hader Clinic. Whilst in the Raymond Hader Clinic, you were tested twice weekly. You have been drug free for that period. Mr Opie impressed me as a no nonsense operator of a drug rehabilitation facility that is aware of all the risks of relapse to drug use. He professed a willingness to assist you if placed on a CCO, that is a Community Corrections Order, even though at the time of his evidence you had moved - downstream to Quin House. He also gave evidence that you had made arrangements to access some of your superannuation funds to pay for this part of your rehabilitation. This is a clear indication to me that you are genuinely invested in your own rehabilitation.
19I also had a report dated 20 November 2014 from Quin House case manager Trang Tran. You were a resident at this facility from the time of leaving the Raymond Hader Clinic until the day of your plea. At that time, the Quin House part of your rehabilitation was to continue until 15 February 2015. You were a voluntary patient at that facility. In that report, it was stated you were a highly motivated person, seeking to live an illicit substance-free life.
20I deferred sentencing in your case to allow you to complete the Quin House program. I also had you assessed for a community corrections order, as you know. At that time, you were assessed as suitable for a sentence to be served in the community. Since 21 November 2014, you were at Quin House for a short time and then had to leave. I was told you had to leave Quin House because of a personality conflict and you thought better to leave that rather than end up in a conflict.
21This morning a reference has been tendered from a Gail Clements dated 18 February 2014 (Exhibit 4). She is your housemate. She is someone who has known you for some time. She deposes that you have a stable living situation and a strong support group. I accept that you are living in an environment that will promote your rehabilitation.
22I also was handed a reference from a Matt Smith, director of Matt Smith Plumbing and Drainage. That was Exhibit 6. Mr Smith has known you for ten years and has employed you as a subcontract plumber in the past. He states he would engage you as a plumber in the future on a subcontract basis. Not a job, but prospect of work. The chance of you getting back to employment fulltime is a good sign to enhance your chances of rehabilitation.
23Also tendered this morning are three references from people connected with and attending Narcotics Anonymous. Carlo La Marchisina - I have difficulty with his name - dated 19 February 2015, Darren Harland and Beth McDonnell. Those references were part of Exhibit 5. They all attest to your drug free status and your continued commitment to attend at Narcotics Anonymous and in particular the Port Melbourne group. I accept that this is a genuine effort by you to overcome your drug problem which is at the core of your criminal activity. If you are able to be drug free, you will be crime free.
Proceedings
24The first court hearing was a mention at Dandenong Court on 14 May 2014. By then, the weight of the cannabis was known to the prosecution and these charges were then transferred to the committal stream. On 18 August 2014, you offered to plead to the charges you have ultimately pleaded to in this court. The prosecution initially proceeded on a commercial quantity of cannabis basis, but this resolved to a plea on the indictment in this case. You pleaded guilty at your arraignment on 16 September 2014. The plea hearing was listed, as I say, for 21 November 2014. I adjourned the sentence for further plea and sentence to this day, 20 February 2015. In short, you have cooperated with the authorities after your arrest.
25I now turn to sentencing considerations. The first consideration is that you have pleaded guilty to these charges at the earliest time. The plea was indicated before the actual committal proceedings. Your plea of guilty has utilitarian value allowing the orderly and effective administration of justice. It gives a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of the court and police resources to deal with other matters. Your plea vindicates public confidence in the legal process set up to protect the community. The plea of guilty to these charges indicates and demonstrates your remorse. I accept that you are remorseful. Your plea is a clear acknowledgement by you that you accept your responsibility for your criminal behaviour in this case. Your plea also recognises that you are willing to facilitate the course of justice in the community.
26The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence (both specific and general), rehabilitation, denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offence, your culpability for it and your personal circumstances. I am required to balance the interest of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure as far as possible you as an offender are rehabilitated and reintegrated into society.
27You have a prior court appearance on 27 June 2002 at Werribee Magistrates Court for cultivate cannabis and theft. You were fined without conviction. I accept that your offending on that occasion was growing cannabis for your own use. The offences were directly relevant to the offences here in this case. Nevertheless, I accept that your prior offending is not significant in assessing the appropriate sentence in this particular instance.
28The prosecutor submitted that in cases of cultivate cannabis, the principles of general and specific deterrence are paramount. At the completion of the plea by Ms Turnbull, the prosecutor conceded that a community based sentence was within the range of sentences in this case. I find that general deterrence is a very significant matter in offences involving cannabis crops grown with this level of sophistication and size.
29I have been impressed by the proven determination by you to turn your life around. You have fully engaged in your own rehabilitation during a now lengthy period of bail extending to almost a full year from the time of your arrest. You have in part funded your own rehabilitation. I accept that this approach by you is an important mitigatory factor in your favour. If the rehabilitation from drug use is successful, then the protection of the community in the future is enhanced because your need to reoffend has been removed. You can get on with your life, work as a plumber and become a person your parents planned you to be, just like your sister.
30Consideration of just punishment can be satisfied by a period of unpaid community work. In short, as an unpaid plumber there can be a community benefit and a personal punishment, that is, you have to work for nothing.
31In relation to the two charges of possession of drug of dependence, I accept those drugs were for your own personal use. The financial penalty is appropriate.
32Would you stand, please.
33On Charge 1 and 2, you are convicted and placed on a community corrections order for a period of two years commencing today. The conditions of that community corrections order are as follows: (1) 300 hours of unpaid community work; (2) that you undergo drug and alcohol treatment and testing, and part of that will be your continuation at Narcotics Anonymous; (3) supervision by the Secretary of the Department of Corrections and; (4) that you report to the Carlton Community Corrections Centre at 444 Swanston Street, Carlton within 48 hours. That will be by Monday, I suspect. Monday at 4 pm. Yes, 24 February at 4 pm.
34In relation to those matters, s.6AAA, if you had been found guilty by a jury after a trial, I would have sentenced you to two years' imprisonment with an 18 month non-parole period.
35On Charges 3 and 4, you are convicted and fined an aggregate fine of $1,000. I will give you a stay of three months to pay that fine. Ms Turnbull will be able to give you some advice about if you cannot do it in that time, but I am giving you an initial stay of three months. Do your best in that three month period to pay some of it.
36Finally, I think there was a disposal order which I have not got a copy of.
37MS TURNBULL: Your Honour, I believe it has been forwarded to your associate this morning.
38HIS HONOUR: All right.
39MS TURNBULL: There was also a forensic sample order sought.
40HIS HONOUR: Yes. Thank you, I'll make both the disposal order and the forensic sample order. Is the forensic sample order a retention order or obtaining ‑ ‑ ‑
41MS TURNBULL: No, to obtain the sample, Your Honour.
42HIS HONOUR: Yes.
43MS TURNBULL: I have noted this morning that the police station we had put on the order was Werribee. That may need to be changed, given Mr Simcock is not in the area.
44HIS HONOUR: Yes, that's why I asked his address.
45MS TURNBULL: I'm not sure if your associate is able to change that on the computer.
46HIS HONOUR: Yes.
47MS TURNBULL: Thank you.
48HIS HONOUR: Can the prosecution tell me which would be the appropriate station for him to attend?
49MS MILLUR: Melbourne East is I think the closest 24 hours ‑ ‑ ‑
50HIS HONOUR: Melbourne East.
51MS MILLUR: Melbourne East.
52HIS HONOUR: Yes. I'll just explain it to you. That order that I'm making, Mr Simcock, is that you have to attend at the police station at a certain time. You'll get it in writing here in a moment. I'm authorising the police to take a sample from you, a DNA sample, basically. It is really done by taking a swab from inside your mouth. If you do not comply, they can use reasonable force to get a sample from you. Do you understand that?
53OFFENDER: Yep.
54HIS HONOUR: Does that cover all the issues?
55MS MILLUR: Yes, Your Honour.
56HIS HONOUR: Ms Turnbull, does that cover everything for you?
57MS TURNBULL: I believe so. Thank you, sir.
58HIS HONOUR: Yes. My job sentencing you has been finished, Mr Simcock. Your job is just starting. You have to take this opportunity and you have been doing very well, as you know better than I do. It is one day into drugs and ten days to get out of it. That is how long you have got in front of you. You can take a seat.
59You will be sick of me preaching to you, Mr Simcock. You have signed this order here. What that means is if you breach it, you come back before me, and you have heard what I have had to say about how seriously I see these charges. If you breach it, no more plumbing, no more running around outside. Thank you and good luck.
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