Director of Public Prosecutions v Steven

[2018] VCC 1084

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-18-00711

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN MAREK

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	16 July 2018
CASE MAY BE CITED AS:	DPP v Steven
MEDIUM NEUTRAL CITATION:	[2018] VCC 1084

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr T. Christin	Victoria Legal Aid

HIS HONOUR:

1Steven Patrick Marek, you have pleaded guilty to one charge of cultivation of a narcotic plant, being cannabis and one charge of trafficking in a drug of dependence, being cannabis.  In this particular situation where the trafficking's involved each of those crimes carries a maximum penalty of 15 years' imprisonment.

2You are now 44 years of age.  You pleaded guilty at the earliest reasonable opportunity.  I accept that your plea of guilty is accompanied by remorse and you must also of course get the utilitarian benefit of that plea of guilty.

3You do have prior convictions, including one for cultivating cannabis, but that conviction is now in excess of 20 years old and in any event was just part of a $200 aggregate fine.  So it cannot have been of great consequence.  You have now been in custody for a total of 285 days, of which 120 days was for other offending.  Accordingly, you have 165 days pre-sentence detention for this matter and in general terms 120 days of what might be described as renzella time.  Your submission is for, essentially, gaol time plus a CCO and I have had you assessed for that and you have been found acceptable.

4The circumstances of the offending are that you were living in a house with your then partner, a Ms Spencer, who I understand has not as yet been dealt with.  Police executed a search warrant and found 98 cannabis plants, which weighed a total of 2.09 kilograms.  They also found a total weight of dry cannabis and seeds weighing 7.3 kilograms.  The 2.09 kilograms is the cultivating and the second is the trafficking, together with some text messages that were apparently on your phone between you and your partner.

5In any event, the text messages indicate that there is trafficking going on with at least a couple of other people over a significant period of time.  But it is a dangerous practice to go too far with that because it does not give me any indication of the degree of trafficking that was taking place.

6Be that as it may 7 kilos as a trafficable quantity is still significant and in my view, bearing in mind that a significant sum of cash was found, which I note is to be defended as proceeds of crime, that has to be regarded as a serious example of this offending.   It calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.

7You have now been in custody for a significant period of time.  It is my view there has to be an active custodial element for this.  Though, of course, as indicated during the course of the plea trafficking and cultivation simpliciter rarely before this court.  Though I note that insofar as commercial quantities concerned you only snuck in by two plants.  So I can well understand why it is in fact in this jurisdiction.

8In terms of a sentence to be imposed I look at matters personal to you and tendered on your behalf were concise and very helpful submissions by your counsel.  You, as he says, are now 44.  You have three children, you have had no contact with them since your arrest, because at the time of this offending you were in conflict with their mother.  You had been in a significant relationship with her, in terms of time at least and you had played an active part in the brining up of your children. 

9Your mother suffers from Alzheimer's and she has not been told of this.  Your stepfather, who you get on well with, has indicated that upon your release you will be able to go and live with him in Blind Bight and you are eager for that to occur and to support your mother.

10Insofar as your own circumstances are concerned, you have been involved previously in a serious motor vehicle collision or accident and have a post-traumatic stress disorder, as well as suffered significant physical injuries.  You have had significant surgery in relation to weight loss and I take it that you are not a perfectly fit man by man by any means and indeed you suffered a heart attack in custody at the Fulham Correctional Centre.

11You started to use drugs and alcohol in your late teens.  About four years ago you started using cannabis again on a much more heavy basis because it relieved your pain.  It is clear to me that the cultivation was used both for the purposes of trafficking and for the resolution of your own pain syndrome and I sentence on that basis.

12The testing of you indicates that you fall in the extremely low range, insofar as intelligence quotients is concerned, that being one of 64.  I am well aware of the authorities in relation to that and I take into account, insofar as Verdins is concerned, I accept that your time in gaol, may well have been exacerbated by your low intellect, as well as your psychological conditions.

13The prospects of your rehabilitation are really up to you.  The risk of your re-offending; moderate.  And I think in all circumstances, that now you have been in custody for some 285 days, enough is pretty much enough.  What I am going to give you is a bit of extra gaol to get your head around being released and to get things in place so that when you are released you are not just walking out a door, you have places to go and programs to commence.

14Accordingly, on the charge of cultivate and on the charge of trafficking, I give an aggregate sentence of six months.  I direct that 165 days be reckoned as having been served under that sentence.  On both those charges upon your release you will be released on a community corrections order, with the conditions that have already been outlined in the report and in court.  That will be an order of two years duration.

15I say, pursuant to s.6AAA, which I think I have to do now, I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of 15 months, with a minimum term of nine.

16Are there any other orders I have to make?  No, all right.  Closest correction's going to be Cranbourne, I think.

17MR CHRISTIN:  Yes, Your Honour.

18HIS HONOUR:  Will always get shifted if it's not.

19MR CHRISTIN:  Thank you, Your Honour.

20HIS HONOUR:  All right, you know what's going to happen if you do this again with a CCO floating around, you'll get more than you got this time, that's for sure.

21OFFENDER:  Yes, Your Honour.

22HIS HONOUR:   All right, that's order.  All right, yes, you can go now, thank you.

23OFFENDER:  Thank you.

24HIS HONOUR:  Drove through Cranbourne the other day, Meteorite Park's gone.  I almost made a living out of that, all the drunks coming out of the settlement used to punch on over in the park over the road and when I was ‑ ‑ ‑

25MR O'DOHERTY:  It's gone.

26HIS HONOUR:  ‑ ‑ ‑ a barrister I used to get regular work out of there.  It was a sad thing to ‑ ‑ ‑

27MR O'DOHERTY:  They'll find another place.

28HIS HONOUR:  I'm sure there's a new one.

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