Director of Public Prosecutions v Strachan

[2020] VCC 1864

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00018

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANGELA STRACHAN

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September and 13 November 2020
DATE OF SENTENCE:	23 November 2020
CASE MAY BE CITED AS:	DPP v Strachan
MEDIUM NEUTRAL CITATION:	[2020] VCC 1864

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: s 5(2H)(e) Sentencing Act

Cases Cited:Nguyen v The Queen [2016] VSCA 198; Farmer [2020] VSCA 140; Roach v R [2020] VSCA 205

Sentence:1 year 10 months imprisonment; 11 months non-parole period; s 6AAA: 3 years imprisonment, 2 year non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon Mr R. Pirrie	Ms C. Dunn
For the Accused	Mr H. Rattray	Mr N. Marcevski

HIS HONOUR:

1Angela Strachan, you have pleaded guilty to one charge of cultivation of not less than a commercial quantity of cannabis.  The maximum penalty for this offence is 25 years' imprisonment.

2You have also pleaded guilty to the theft of electricity.  The maximum penalty for this offence is 10 years' imprisonment.

3Your co-offender Adam Fergusson pleaded guilty to the same charges on the same day as you.  As you are aware, I ordered a presentence report in relation to you.  The report was not ready until early November.  Both the prosecutor and your counsel agreed it was appropriate to sentence you separately and I intend to do so now.

4The offence of cultivation of a commercial quantity of a drug dependence is a category two offence.  As such, the court must sentence you to a term of imprisonment which does not include a combination sentence unless certain circumstances are established.  I shall return to these provisions later in my sentencing remarks.

5You have no prior criminal history.

Summary of Offending

6The prosecution tendered a summary of prosecution opening on plea as
Exhibit A.  A brief summary of your offending is as follows.

7Together, Mr Fergusson and yourself rented property in Browallia Drive, Corio from about the end of August 2018.  You were both living there at the time of your offending.

8The police executed a search warrant at the property on 30 May 2019.  You were both present.  In the garage and three rooms of the house police found 66 cannabis plants.  35 were either cuttings or immature plants with a total weight of just over 600 grams. 31 plants distributed between two rooms had a total combined weight of 109.45 kilograms.

9The plants were cultivated in a sophisticated hydroponic setup.  The plants grew under specially fitted and dedicated light, air and irrigation systems and timers.  Mature plants were supported by webbing to keep their branches from hanging down.  Police located a preparation room which contained chemicals, timers, typed notes for the hydroponic cycle, handwritten notes and notes on a whiteboard in relation to plant nutrition.

10The photographs in the depositions readily depict the sophistication of the growing rooms and the preparation room.  It is apparent that this set up required considerable electrical expertise, set up knowledge and financial input.  I can only conclude that the expectation was for high returns.

11The electricity was supplied by an electrical bypass.  I was not provided with an estimated value of the stolen electricity.

12The indictment charges cultivation and theft on a single day, that is
30 May 2019.

13You were arrested and participated in a record of interview.  You made comprehensive admissions to your offending.  You told police that:

·there were a lot of marijuana plants over the four rooms;

·it started when you moved in in September 2018;

·you were not working at the time;

·you did most of the 'daily stuff', that is checking on the plants, watering them and adding nutrients, taking delight in tending the plants, as you would in a veggie garden;

·you were aware of the electrical bypass but you did not know how it worked; and finally

·that you were not involved in selling the cannabis.

14I consider the answers you gave in your record of interview were candid and displayed some insight into your offending.

15You have now spent 63 days (excluding today) on remand by way of presentence detention, as you only went into custody on the date of the plea hearing on 21 September.  That period will be reckoned as already served.

16The matter was originally listed for a trial to commence on 25 May 2020.  On 23 July 2020 the matter came before me as an emergency case management hearing.  After discussions between the parties, you resolved your matter to a plea of guilty on 10 August 2020.

Objective Seriousness of Offending

17I now turn now to consider the objective seriousness of and your moral culpability for your offending.

18The seriousness of this offence is first marked by the maximum penalty of
25 years' imprisonment.  Moreover, the fact that Parliament has categorised this offence as a category two offence means that you face a period of imprisonment.  It was submitted by your counsel that you can establish criteria which would exempt you from this punishment, and that instead, a combination sentence ought to be imposed.

19I consider this to be a serious example of this type of offending, noting that:

·First, the mature plants weighed over four times the threshold commercial quantity of 25 kilograms;

·second, the botanist Brenker estimated this would yield a dry weight quantity for sale of approximately 21 kilograms; and

·third, this operation was, as I have already observed in detail, marked by technical sophistication and the electrical bypass.

20When I consider cases such as Nguyen [2016] VSCA 198 and its reference to clusters of cases, I consider that you are best characterised as falling within the first cluster – that is, that you were essentially an intensive crop sitter. Although your partner/co-offender Adam Fergusson was clearly demonstrated on the evidence to hold a proprietary/financial interest in the crop, and was integral to the setup, harvest and sale of the marijuana, I am not persuaded that you were an equal partner in this venture. I shall say more about this when I examine your moral culpability for this offending, after I have considered your personal circumstances.

Personal Circumstances

21I turn now to your personal circumstances.

22You were born on 19 June 1974 and are 46 years of age.

23You were born in the United Kingdom and you have one younger sister, Tracey.

24You reported that during your childhood you were sexually abused by your grandfather.  Although I was not provided with anything but your instructions on this point, and references in the psychological material, it appears that your grandfather was convicted of sexual offences against others and he died in prison.

25You have no relationship with your parents or your sister currently, although your children do have some small contact with their grandparents.  I was told you believe this estrangement is due to you isolating yourself following childhood traumas.

26In 1990 your family moved to Australia, where you initially struggled to adjust.  You developed anxiety and depression.  Upon arriving in Australia you attended high school for around six months before dropping out at age 16.  You completed a hairdressing apprenticeship at Box Hill TAFE and commenced work, working as a hairdresser until your daughter Chloe was born.

27In 1993 you met Daniel Prior.  You and Mr Prior had three children together (now aged between 20 and 24).  You did not return to work as a hairdresser after the birth of your first child.  Around 2001 your relationship with Mr Prior began to deteriorate following a number of stressors, including Mr Prior’s father being diagnosed with cancer, and police in the UK contacting you regarding the alleged offending by your grandfather.  Following this, your relationship with
Mr Prior ended in 2002.  Mr Prior remains a close and supportive friend to you.

28The report of Ms Sugathan suggests that you were subjected to domestic violence in your relationship with Mr Prior.  Through your counsel, you expressly denied this to be true and you consider Mr Prior to be your best friend.

29Following the end of the relationship you moved with your children to Werribee, while Mr Prior moved interstate for a few years (although he has now returned to Victoria).  You worked as an exotic dancer, continuing in this work until 2007.  From around 2011 until shortly prior to this offending you worked as a cleaner.

30In 2007 you met Mr Fergusson.  Within six months the two of you moved in together, and in the early period of this relationship it appears that you,
Mr Fergusson and the children (that is, both your own and his) had positive relationships.  Between 2009 and 2011 you moved to Queensland with
Mr Fergusson.  I was told that after moving back from Queensland at the end of 2011 the relationship with Mr Fergusson deteriorated.  You speak of mental, emotional and economic abuse, as well as some physical abuse, indicating to Ms Sugathan that Mr Fergusson was ‘confusing (you) with mind games’.  
Mr Fergusson moved out a number of times but came back.

31On 13 January 2014, you were named as the protected person in a Family Violence Final Intervention Order taken out by police against Mr Fergusson.  The IVO was tendered as an exhibit, and I accept it as substantiation of the matters raised on your behalf that your relationship with your co-offender was a long standing abusive relationship, and that he was dominant over you during the currency of the relationship.

32The relationship nevertheless persisted, and in early August 2018 you moved into a house in Corio with Mr Fergusson, where the offending occurred.  The move was a final attempt to save the relationship.  That relationship has since ended following your arrest on this offending.

33The report of Ms Sugathan, an accredited mental health social worker, was recognised by your counsel as having limited value in this proceeding.  Bearing this in mind, I draw the following from the report.

34Ms Sugathan reported she had seen you nine times up to August 2020.  It is apparent that she started seeing you sometime late last year.

35Ms Sugathan reports that you had no reported perceptual disturbances and your thought processes were coherent.  Nevertheless she reported you as anxious.  Ms Sugathan reported that you experience severe anxiety and depressive episodes after complex childhood trauma.  You have developed fearful personality traits and an apparent diagnosis of post-traumatic stress disorder which Ms Sugathan stated ‘has not been formally tested’.

36Ms Sugathan reports that you told her you have lived much of your life in crisis.  You are afraid of the consequences of these charges and you were in fear of Mr Fergusson.

37I obtained a presentence report from Forensicare psychologist Dr Kiara Bird.  Dr Bird noted that the inherent limitations of a video link assessment meant that your mental health was not formally assessed using psychometric or structured interview assessments.

38Dr Bird considers your early childhood sexual abuse (from the age of about five) is likely to have shaped your self-perception, that you now tolerate abusive behaviour, and it increased your vulnerability to further victimisation within relationships.  She reported that since 2011, your relationship with
Mr Fergusson was characterised by increasing levels of intimidation, isolation, deprivation, exploitation and regulation.

39Dr Bird considered that you presented with significant symptoms of post-traumatic stress disorder (PTSD), which Dr Bird considered was likely to have been chronic and present throughout the period of the offending.  Dr Bird concluded that your decision to offend was not causally linked to your PTSD.  Rather, she considered that it may have adversely affected your decision-making ability in that you lacked the assertiveness to decline to participate in the offending or to terminate the relationship.

40Dr Bird concluded you present as a low risk of reoffending and you have excellent prospects for your rehabilitation.

41Although you have very limited prosocial supports and your mental health is likely to present you with considerable challenges into the future, I consider that in light of the fact that you have no prior convictions, and for the fact that this offending occurred within the context of your relationship with Mr Fergusson, now ended, you do have very good prospects for your rehabilitation.  I do not expect you to commit any further criminal offending in the future.

Moral Culpability

42I return now to the question of your moral culpability for your offending.  I consider your moral culpability must be viewed in light of your mental health issues, the dominance of Mr Fergusson in your domestic relationship, and your actual role in the cultivation of the plants.

43After reading Dr Bird’s report carefully, it seems that your entry into this venture is best seen as having occurred as part of the relationship with Mr Fergusson; a relationship in which he played the dominant role.  There is no suggestion that you were coerced or otherwise forced into this scheme but I am firm in my view that but for Mr Fergusson’s decision to become involved, you would not have initiated or implemented this criminal venture.  Rather, you followed him into it.

44Furthermore, I do not consider that greed or financial gain was a dominant motivation for you to become involved.  Rather, I note Dr Bird’s observation that you reported to her the rather unusual tendency you exhibited to ‘escape’ into the nurture and tending of the plants, which was described to Dr Bird as like tending a veggie garden.

45Taking account of these factors, I consider your moral culpability for this offending is considerably less than that of your co-offender Mr Fergusson.

46The courts have repeatedly stated that in cases involving the cultivation of a commercial quantity of narcotic plants, the sentencing principle of general deterrence is at the forefront of sentencing considerations.  To this should be added principles of denunciation, just punishment and a measure of protection of the community.  These objective factors must, ordinarily, dominate the sentencing consideration in cases of this nature.

Cancellation of visa

47I turn then to the question of the cancellation of your visa.

48Although you have lived in Australia continuously since you were 15 years of age, you are not an Australian citizen and you remain here as a permanent visa holder.

49The report of immigration lawyer Joel McComber of Sentry Law dated
11 November 2020 sets out the panorama of possibilities you face moving forward.

50Should you be sentenced to a period of imprisonment of 12 months or more, to be served on a full-time basis at a correctional facility, then your permanent visa must be cancelled and you will become an unlawful noncitizen, and held in an immigration detention facility until the mandatory cancellation decision is either revoked or you are removed from Australia.

51Mr McComber outlines that the decision whether to revoke the mandatory cancellation will take into account, amongst other things, the nature and seriousness of your offending (and whether you are a repeat criminal offender), your risk of reoffending, and the strength, nature and duration of your ties to Australia including the length of your residence in Australia, together with your social and family ties.  Mr McComber considers that you would have reasonably strong prospects of requesting a revocation of your mandatory cancellation and, in any event, you would have a right of appeal if it was not revoked.

52Mr Rattray outlined the emotional turmoil that you face at the prospect of receiving a sentence in excess of 12 months and the mandatory cancellation process.  It is apparent that, although you have little to do with your parents and sister, your children and your ex-husband Mr Prior, together with your time in Australia, represents the whole of your life now.  You have never left Australia and you have never applied for a passport of your own.  You travelled here on your mother’s passport, so you have never been a passport holder.

53I accept that this acts as a considerable burden on your time in custody.

54I also accept that your time in custody has been made more difficult by the fact that you have no prior convictions and so this (obviously) represents your first time in custody.  You went into custody during the second Victorian lockdown due to the COVID-19 pandemic.  After reception into custody on 21 September you went into a 14 day isolation.  Since then, movements around the correctional facility have been restricted. To your credit, you have already completed courses and done the best to make your time in custody constructive.  Fortunately, by the time you went into custody, the fear of spread of the virus amongst the prison population had decreased, but I accept it nevertheless provided some additional fear and concern for you.  I accept that you are unable to receive personal visits, and your ability to work and to undertake therapeutic courses has been somewhat limited.  It is to be hoped that conditions are now easing.

55Having said all of this, I do not lose sight of the fact (as I have said) that this is your first time in custody after a lifetime without committing a criminal offence.

56Mr Rattray submitted the following factors should mitigate the sentence I impose upon you:

·first, your plea of guilty (although it came relatively late) still carries a utilitarian benefit;

·second, the plea was made on the strength of substantial admissions in the course of the record of interview;

·third, you endured a traumatic childhood, you were previously of good character and you have very good prospects for your rehabilitation;

·fourth, you have exhibited remorse for your offending; and

·finally, Mr Rattray relied upon what he called 'the unusual interplay between the offending and ongoing chronic domestic violence'.

57It ought to be clear from my remarks so far that I accept that each of these factors should have some part to play in mitigating the sentence imposed upon you (so far as I may give these matters any weight).

58I have already stated that the law provides that the offence of cultivating a commercial quantity of cannabis is a category two offence.  In sentencing for a category two offence, the court must impose a sentence of imprisonment and cannot impose, for example, a combination sentence of imprisonment with a community corrections order unless you prove on the balance of probabilities that there are substantial and compelling circumstances that are exceptional and rare[1] that justify imposing such an order.

[1] The words ‘exceptional and rare’ were added and came into force from 28 October 2018.

59Mr Rattray submitted on your behalf that the combination of:

·your mental health and its connection to your offending;

·that your offending occurred within and was contributed to by the dominance of Mr Fergusson in your relationship and the presence of ongoing physical, emotional and economic abuse; and

·the psychological burden imposed by the prospect of your mandatory visa cancellation and the prospect of deportation;

are sufficient to enliven s.5(2H)(e) Sentencing Act.  Put simply, Mr Rattray submitted that, together, these factors did prove there were substantial and compelling reasons that are exceptional and rare that justify imposing a combination sentence (and implicitly, it seems, a custodial sentence of less than 12 months).

60The Crown opposed that submission, and instead submitted that a head sentence with a non-parole period was appropriate in your case.

61The Court of Appeal case of Hudgson [2016] VSCA 254 held that the phrase ‘substantial and compelling’ connotes powerful circumstances of a kind wholly outside what might be described as ‘run of the mill’ factors typically present in offending of this kind.

62In the case of Farmer [2020] VSCA 140[2] the Court stated

Within the context of s.5(2H), paragraph (e) is a residual category of limited scope.  On any view, it is a very high hurdle that will not often be surmounted.  The legislative norm is that category 2 offences will attract an immediate term of imprisonment...  Importantly, community correction orders (‘CCOs’) or a combined CCO and term of imprisonment under s.44 are not available.

In many cases, given the type of offences within category 2, a term of imprisonment will be inevitable.  In some cases, the operation of s.5(2H) will be harsh.

[2] See also Roach v R [2020] VSCA 205.

63Moreover, in determining whether there are substantial and compelling circumstances under s.5(2H)(e), I must regard general deterrence and denunciation of your conduct as having greater importance than other sentencing purposes; I must give less weight to your personal circumstances and to matters such as the nature and gravity of your offending; and I must not have regard to your previous good character or to your prospects for rehabilitation (I note there are other considerations that are not particularly relevant to this).

64In the end, I do not consider that substantial and compelling circumstances which are exceptional and rare have been established in this case.  The nature and gravity of your offending remains serious.  Moreover, as I have already referred to, Dr Bird concluded that there was no causal connection between your mental health issues and the offending.  Having said that, I accept that the circumstances of ongoing emotional and economic abuse within the relationship almost certainly compromised your judgement.  I can use these and the factors personal to you to mitigate the sentence.  Overall however your offending remains still too serious to contemplate a sentence below 12 months imprisonment, even when combined with a community corrections order.

65I have already stated that I consider your role and moral culpability for this offending is less than that of your co-offender, and should lead to a lesser sentence than what I imposed on him.  Given that I consider your roles put you in different clusters (using the words of Nguyen), notions of parity are less relevant in this sentencing consideration.  Furthermore, the factors outlined by Mr Rattray – that is your mental health, the abusive relationship, and the prospect of your visa cancellation, together with your lack of prior convictions and your prospects for rehabilitation, enable me to consider that you should be provided with the opportunity to serve a longer than usual parole period.  If you are offered the opportunity of parole (and I recognise that the visa cancellation may operate as a blocker), it will provide a support and structure for your return to the community upon release from prison.

66On the charge of cultivate a commercial quantity of cannabis, you are convicted and sentenced to a term of imprisonment of 22 months.

67On the charge of theft of electricity, you are convicted and sentenced to a term of one month imprisonment to be served concurrently.

68You are therefore sentenced to a total effective sentence of 22 months' imprisonment.

69I order that you serve a minimum term of 11 months before you are eligible for parole.

70Pre-sentence detention is 63 days, excluding today, and is reckoned as already served.

71The 6AAA declaration is but for your plea of guilty I would have imposed a sentence of three years' imprisonment with two years to serve.

72Ms Dunn, are there any other orders that I need to make?

73MS DUNN:  No, Your Honour, they were dealt with, with the co-accused.

74HIS HONOUR:  Good, thank you very much.

75All right, so with that adjourn.

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