Director of Public Prosecutions v Stammers
[2013] VCC 1512
•17 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WANGARATTA
CRIMINAL DIVISION
Case No. CR-13-01512
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES STAMMERS |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 October 2013 | |
CASE MAY BE CITED AS: | DPP v Stammers | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1512 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Bessell | Office of Public Prosecutions |
| For the Accused | Mr Casey |
HIS HONOUR:
1 James Barry Stammers, you are to be sentenced for one charge of cultivating a narcotic plant, cannabis, in a large commercial quantity. The maximum sentence for that offence is imprisonment for life.
2 You have pleaded guilty before me on 24 September 2013. When interviewed by police on 18 March 2013, you made a full and detailed confession. Committal went by hand-up brief on 8 August, after which you entered a plea of guilty. The matter has been quickly listed for plea hearing in this court. It is now less than seven months since the police raid seizing the cannabis crop you cultivated. You receive the benefit of your plea of guilty and a high level of cooperation with authorities, both from an early time.
3 At the plea hearing, which ran on 24 and 30 September, Mr Bessell for the Crown tendered a written summary of Crown opening, photographs of the crop, the premises and property on which it was grown, and other machinery, objects and materials relevant to it. Mr Casey, for you, tendered the psychological report of Patricia Jacobs-Robertson dated 27 September 2013.
4 The circumstances of your offending are described in the tendered Crown opening, which is Exhibit A.
5 In September 2013, your co-offender Alan Noor moved into a vineyard property at Cheshunt in Northeast Victoria. He signed the lease. You moved into the property in October. You had met Noor picking fruit in New South Wales. Between October and the police raid on 18 March 2013, a very large cannabis crop was grown there.
6 On the March 2013 raid, police located and seized 6880 cannabis plants of mature age, ready for harvest. They weighed a total of 2794.44 kilograms. The threshold quantity and weight for cultivation in a large commercial quantity is 1000 plants and 250 kilograms.
7 The plants were secreted within the rows of grapevines. For example, exterior parts of the rows of vines were strategically not planted with cannabis to avoid detection of the crop. Large amounts of pellet fertiliser were placed to mask the smell of the cannabis. There were typical watering and fertilising systems.
8 On the same day, you made a remarkably inculpatory police interview. Your admissions included that the crop was your idea. The cost of fertiliser and watering system was $50,000. That, you said, was financed by you from savings when picking fruit. You had obtained 10,000 cannabis seeds and had planted them by hand yourself over a six week period. Noor manually turned on the drip watering system three times a week. Your plan was to harvest the crop, bag and truck it to Griffith; and dry it there. You would hide it and find buyers. Proceeds were to be money for your retirement. You had to talk Noor into the arrangement. He was going to be paid $100,000. I repeat, this is what you told the police in interview. I shall return to that later.
9 On the first day of the plea hearing, you confirmed those matters through Mr Casey. It seemed a remarkable version, inconsistent with the usual involvement of the main entrepreneurs in such enterprises and, as I have stated, exceptionally forthcoming as to a major role. Mr Casey, myself and even the prosecutor, to some extent, expressed scepticism.
10 On 24 September, the plea hearing was adjourned to 30 September. The primary reason for that was to enable Mr Casey to tender a psychological report. It is relevant to note that the psychologist Ms Jacobs-Robertson had interviewed you the day previously, 23 September, at the Wangaratta police cells. However, her report was pending.
11 On 30 September, Mr Casey tendered the psychological report. He also put a number of changed instructions as to your role in the crop. The history given to Ms Jacobs-Robertson was largely consistent with your stated position in interview and on 24 September. Of course, as I have pointed out, her interview of you took place prior to the first day of the hearing on 24 September.
12 On 30 September, Mr Casey put on your behalf the following. You were jointly involved with Noor in the crop. You were each to be paid $100,000. You were not involved in the financing, leasing of the property or setting up of the crop. You were involved in the planting, watering and, one presumes, fertilising of it; Noor was at the property about one month prior to you. When you arrived at the property, the seed, fertiliser, equipment and provisions within the house were all there. You paid no bills, for example for food, electricity, equipment, et cetera. As to the credibility of your earlier account to police, Mr Casey, amongst other matters, made the point that you seem to state in the record of interview that you had obtained the 10,000 seeds from one, perhaps two, cannabis plants. You did not give evidence on 30 September in support of these changed instructions. Mr Casey's explanation, a self-preserving reluctance to implicate others, is plausible.
13 I shall return to the question of what findings about your role can properly be made.
14 You are a 66 year old man who has no prior convictions. You are presently in remand custody. You have lived and worked most of your life in New South Wales. You were born and raised in western Sydney. Your father died when you were six years and, after that, your mother cared for you and your sister alone. You left school when 14 and do not read or write well. Mr Casey described you as illiterate. You worked in horse racing stables and since have worked in various jobs mainly in Sydney and throughout rural New South Wales. You seem to have been relatively consistently employed. You have kept contact with your sister, living with her off and on. You have never been in a significant relationship and have no children. You present as a man who has lived an isolated life. Over the last five or six years until moving to north east Victoria and committing this offence, you have worked picking fruit in the Griffith area.
15 I have found significant parts and opinions expressed in the tendered psychological report to be compromised by reliance upon a history or role of offending which is no longer put to me as fully correct. Further, opinions or diagnoses in it are also somewhat uncertain. Beyond a very tentative diagnosis of what is called "unspecified personality disorder" and personality testing which scores highly in "social withdrawal", you are not presented as a person with identified significant psychiatric or psychological conditions. You do not present as particularly remorseful; but as accepting of the consequences of this offending.
16 No formal intelligence testing was conducted, but it is said that you are likely to be in the average or low average range of cognitive function. It was my impression that Ms Jacobs-Robertson's tended to the view that you were in the low-average range.
17 You have used cannabis over time but not heavily or in a way that has badly affected, for example, your working life. As stated, you have no criminal record. Alcohol has not been a problem. You do not drink at all now. You take medication for your blood-pressure. Mr Casey described you as an unsophisticated man who was a loner. You have no visitors in prison. Your sister does not know about these proceedings.
18 I have listened to your police interview on 18 March 2013, assisted of course by transcript. Having listened to it, I quite simply do not believe much of the explanation of your role given to police in that interview. It is clear to me that the interviewing police did not believe you either. That explanation to police in March of this year is the basis of the Crown opening. On matters of your role in devising, controlling and managing the enterprise of growing this very large cannabis crop, I should say this, that ultimately it was put by the prosecutor that I should act on that version in police interview and therefore in Crown opening.
19 I find that it is on those matters of your role in devising, controlling and managing the enterprise of growing the crop, that you are not credible in interview. There are a number of parts which do not stand up as feasible. You state that you saved $50,000 to set up the crop over three years whilst picking fruit in New South Wales. When challenged on that high cost, you point mainly to the cost of fertiliser, which you used at a cost of $50 per week over six months. The difference in figures is clear. You estimated expected proceeds of sale of $200,000; then, when queried, $800,000. The police estimated and put to you ten to 12 million or more, given the size of the crop at 10,000 plants and police knowledge of market values. I bear in mind that the actual yield of your crop was about 7000 plants; however the difference is still very great indeed. You told police that your plan to sell was to hide, by burying, the harvested crop in the Griffith area and to look for buyers. You obtained, you said, 10,000 cannabis seeds off one or two cannabis plants.
20 These are examples. The tone and flavour of the interview are also factors in my assessment.
21 I recognise that there is no evidence or material beyond what was put by Mr Casey from the Bar table which provides an alternative version to your interview. However, I have ultimately decided that I should not sentence on the basis of those aggravating matters I do not accept. To do so, in my view, would be contrary to justice.
22 Of course, there are circumstances of your involvement which are clearly proven and which make this a very serious case of the offence. You contributed to the enterprise by planting, caring for and protecting a very large crop in the way you have described those aspects to police. It was prolonged over six months. The overall enterprise and method of cultivation and protection of the crop was sophisticated. You are not to be sentenced as the entrepreneur, manager or controller of the enterprise; but you contributed in an important way to a very large crop which had expectations of very high profit to the controllers. I find that you did so for substantial monetary reward.
23 Accordingly, this is, as stated, a very serious example of the offence. It is an offence that carries a maximum penalty of imprisonment for life, which must be reflected in the sentence. There must be a substantial period of imprisonment to meet the relevant sentencing considerations, those of deterrence, particularly general deterrence, denunciation of the offending, your moral culpability, and the need for proportionate punishment.
24 There are factors that should go to moderate the length of that sentence. They include your plea of guilty and cooperation and your otherwise good character. You have no prior convictions. I also take into account to some appropriate extent your personal background and circumstances. I agree with Mr Casey that you present as an unsophisticated man. Your record of interview is strongly consistent with that. You are now 66 years of age and have some health problems. I refer to your blood pressure condition. I find that imprisonment will likely be harder for you than others because of your age. As earlier stated, you have no personal support in prisoner. These mitigating factors may be reflected in both your head sentence, but particularly in my view in your minimum term.
25 I sentence you as follows. Stand up please.
26 On one charge of cultivation of a narcotic plant in a large commercial quantity, you are sentenced to seven years imprisonment. I set a minimum term before eligibility for parole of four years.
27 Under s.18 of the Sentencing Act, I declare pre-sentence detention of 214 days.
28 I state under s.6AAA of the Sentencing Act and had you not pleaded guilty, I would have imposed a sentence of ten years with a minimum term of seven years. Are there other matters that I need to deal with?
29 MR BESSELL: Is there a 464, Your Honour?
30 HIS HONOUR: Yes. Do you have the documents? I will sign them now. Well, I can do it later but I need to tell him. It is clear that he would not be on any database. He has never been in trouble before.
31 I am going to make the order that Mr Stammers supply a sample of his saliva under that section. That is because of the great seriousness of this offending. Forensic samples like this enable and assist investigation of offending such as this. It is in the public interest that I make the order. Now, that means this, that at a time to be arranged in the prison, you will required to supply a sample of your saliva by placing a cotton swab inside your mouth. If you cooperate in that, that is the end of it. If you do not, a sample of blood may be taken by injection and reasonable force used to do that. Just take a seat now please.
32 Is there anything else for me to do?
33 MR BESSELL: No, Your Honour.,
34 HIS HONOUR: No? All right, good. Mr Stammers is to be taken into custody now.
35 MR BESSELL: May I speak to him just briefly?
36 HIS HONOUR: Yes, well I will leave the Bench.
37 MR BESSELL: Thank you, Your Honour.
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