Director of Public Prosecutions v Street
[2012] VCC 669
•21 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT WANGARATTA
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| DARREN JAMES STREET |
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JUDGE: | HIS HONOUR JUDGE LECKIE | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 18 May 2012 | |
DATE OF SENTENCE: | 21 May 2012 | |
CASE MAY BE CITED AS: | DPP V Street | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 669 | |
REASONS FOR SENTENCE
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Catchwords: Plea – trafficking in a drug of dependence, namely cannabis L.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Moore | DPP |
| For the Accused | Mr P. Dunn | Dunn & Associates |
HIS HONOUR:
1 Darren James Street, you have pleaded guilty to one count of trafficking in a drug of dependence, namely cannabis L. The maximum penalty for this offence is 15 years' imprisonment.
2 The circumstances of your offending are set out in the agreed prosecution opening, which was Exhibit A.
3 Briefly stated, in March 2011 you were living at 8 Ferris Street, Bearii, a small rural community a little west of Cobram. On 29 March police executed a search warrant and found a quantity of dried cannabis in and around the house and 28 live cannabis plants growing in pots in what appears to me to be a chicken enclosure. You had grown the plants from seed and were providing them with water and liquid fertiliser in an unsophisticated manner.
4 A police officer with expertise in the area estimated that the total yield or weight of cannabis as 15.9312 kilograms. The value of this material depends very much on how it would be sold, but a potential figure of around $100,000 seems to be not unreasonable.
5 When interviewed about the matter, you made full and frank admissions, admitting that you were responsible for sowing, tending and nurturing the plants. You also stated that you intended to sell the cannabis to try to raise some money to buy a new ute. I note, however, that there is no evidence that you actually sold any of the drug, there was also no evidence of enrichment, and your plea as to how you would sell the drug was very basic, "You were going to ask people." (Question 287 in the record of interview).
6 In comparison to many other examples of growing marijuana, for example, hydroponic ventures, this was fairly rudimentary. However, it remains that you grew a crop for the sole purpose of sale and with the potential value of somewhere in the vicinity or the region of $100,000.
7 There are, however, some mitigating factors. You have pleaded guilty and are entitled to have that taken into account in your favour, and I do so. The community has been saved the time and cost of trial and witnesses the ordeal of giving evidence. When arrested, you readily admitted what you had done and cooperated with the police. You have entered a plea of guilty at the earliest opportunity, and there was, as I understand the papers, an uncontested committal. In these circumstances I am prepared to find that you have remorse for your actions.
8 I have been told something of your personal history and circumstances. You are now 43 years of age. You grew up in the Gippsland area and had what was described as a reasonably uneventful upbringing. You achieved Year 9 at school, leaving around the age of 15 years. Thereafter you maintained reasonably steady employment until 2002, when you were first forced to stop because of a disability.
9 In a report dated 28 March 2012, which is Exhibit 1, clinical psychologist, David Jones, stated that you had contracted Ross River Fever, which gave rise to a severe and chronic arthritic condition for which you are taking medication. The condition is such that you were found eligible for a disability pension, which you have been receiving for the last five years.
10 Mr Jones, in his report, further provided these opinions: "Mr Street provided evidence of long-term dependence on cannabis sufficient to meet the criteria of cannabis dependence. Mr Street is significantly socially isolated. He currently lives with his mother. He has not been in an adult relationship for ten years. He said he is the principal carer of his mother and spends most of the time at home. His commitment to care of his mother was notable and apparently sincere. Mr Street was assumed to have a level of cognitive function in the low average range. He reported low levels of literacy and exhibited little interest in new sources. He reported no skills in the use of either computers or mobile phones. His personality orientation was notably introverted."
11
Under "Formulation" the psychologist said, "Mr Street does not indicate serious mental illness. He does experience severe pain and mobility restriction and has been eligible for the disability pension for five years. He meets the clinical criteria of cannabis dependence. Mr Street is socially withdrawn and isolated, he is the principal carer of his mother, he is socially naïve and generally uninformed and ignorant about public affairs. Mr Street presents with low arousal capacity and appears to be generally
non-aggressive. His executive function in relation to planning, decision making and information processing is at low average level at best."
12
In his recommendations, the psychologist said, "Mr Street is likely to experience therapeutic benefit by participation in a cannabis dependent
self-management program and it is respectfully recommended that consideration is given to ensuring that he does so. Mr Street is also likely to experience therapeutic benefit by participation in psychosocial rehabilitation programs such as those run by the Mental Illness Fellowship or similar organisations and it is respectfully recommended that consideration is given to ensuring that he is given this opportunity."
13 I also note that you are currently prescribed morphine to deal with your pain in the form of Norspan patch together with other medications.
14 A number of references were also tendered during the plea which speak highly of your involvement in the small community in which you live. Clearly, you do much to help your mother, who suffers a number of medical conditions. Several elderly citizens from your community stated how helpful you have been to them.
15 Mr Trevor Freeman, who lived in a neighbouring town, also gave evidence confirming the help and support you provide to your mother and other members of the Bearii community.
16 However, you have also admitted to prior convictions. There are seven such convictions in November 2003 from the Magistrates' Court in Shepparton which include traffic cannabis. You received an aggregate sentence of nine months partially suspended for two years, the period to serve being three months. In November 2009 a charge of cultivate cannabis was found proved, but you were placed on a bond for 12 months without conviction.
17 These are particularly relevant to my task of sentencing you and I note that you were on a bond when you commenced this offending. I would note, however, that although the firearm offences are serious, I am not prepared to link them with the drug offences without any evidence and accept your explanation that it was a 22 rifle and silencer for shooting foxes in the area.
18 The question of your rehabilitation is difficult. I accept that you are a simple man. You generally care for your mother and other people in your small rural community. Mr Jones stated that your level of cognitive function was in the low average range. You are socially naïve and generally uninformed and ignorant about public affairs. Your executive function in relation to planning, decision making and information processing is at the low average level at best. This fits in with the rudimentary venture you undertook and the unsophisticated plans you had to sell the drugs. However, it remains that you have been before the courts on previous occasions for dealing in cannabis and must have realised what you were doing was wrong. Despite this, I am prepared to find that you are generally a simple and kind-hearted person and still with reasonable chances of rehabilitation. However, I must, in sentencing you, also take into account deterrence, both general and, in your case, specific. I must also consider the question of protection of members of the community and generally impose a just punishment.
19 The seriousness of your offending, in particular in light of your prior history, leaves no alternative but to a period of imprisonment. Your counsel did not argue otherwise, but submitted that I should consider partially suspending any sentence I impose.
20 Section 27 of the Sentencing Act provides the discretion to take such a course if the court is satisfied that it is desirable to do so in the circumstances. After some reflection, I am satisfied that it is desirable to partly suspend the sentence I propose to impose upon you.
21 The reasons are as follows:
22 (1) Your offending, although not the lowest example of this type of offending, is in the lower order. You had 28 plants in pots in a chook run, with a rudimentary system of caring for them, together with some dried material. There was no evidence of enrichment and your plan for sale was basic. There was no system set up or operating for sale nor was it alleged by the Crown in their opening.
23 (2) Although you have a prior conviction for trafficking and spent three and a half months in custody, this was nine years ago and you did keep out of trouble for the two years for which the balance was suspended. I was not provided with much detail regarding your 2009 bond, but I conclude that it involved growing for your own use, which is most likely, considering Mr Jones' diagnosis of cannabis dependence in his report and the sentence you received.
24 (3) Your executive functioning in relation to planning, decision making and information processing is at low average at best.
25 (4) Although other members of your family will probably step into the breach, you have been responsible for caring for your mother and transporting her around to medical appointments that have been necessary.
26 (5) You provide a supportive role to other aging members of your small rural community.
27 (6) I find that you still have reasonable prospects of rehabilitation despite your prior history.
28 (7) The sentence I impose and its partial suspension will, in my view, be most productive of your reformation, which in turn offers the greatest protection to our society. It will also provide punishment and also a deterrent to you and others and properly reflect, in my view, the seriousness of your offending.
29 Before making the order, I must explain to you the purpose and effect of the proposed order and the consequences that may follow if you commit another offence during the operational period of the sentence.
30 Would you stand up, please?
31 I intend to sentence you to 18 months' imprisonment and order that it be partially suspended and the operational period be three years. The part suspended is 12 months. If at any time during the three year period you are found guilty of another offence punishable by imprisonment, whether in or outside Victoria, you will not only be sentenced by the court for the new offence, but you will be brought back to this court to be sentenced for breach of the order imposing the suspended sentence. If that occurs, the court may fine you for the breach and must restore the sentence held in suspense and order that you serve it. In other words, you would be required to serve the balance of the term of imprisonment imposed today, that is 12 months' imprisonment. This must occur unless exceptional circumstances arose after today which would make it unjust for that to happen. Do you understand?
32 PRISONER: Yes, Your Honour
33 HIS HONOUR: In respect of the count of trafficking in a drug of dependence, you are convicted and sentenced to a term of 18 months' imprisonment. I order that 12 months of that term of imprisonment be suspended for a period of three years. The period to be served is six months.
34 I state that but for your plea of guilty, I would have imposed a sentence of
18 months with a minimum of nine months' imprisonment.
35 Is the order for forfeiture there?
36 Is there anything arising out of those sentencing remarks?
37 MR MOORE: No, not from the Crown's point of view, Your Honour.
38 MR DUNN: No, Your Honour.
39 MR MOORE: Those two items can just be crossed out, Your Honour.
40 HIS HONOUR: There was no money mentioned on the schedule of the orders that I signed. The Nokia phone and charger have been crossed out and I have initialled those corrections.
41 MR MOORE: Thank you, Your Honour.
42 MR DUNN: Thank you, Your Honour.
43 HIS HONOUR: Any other matters arising out of this case?
44 MR MOORE: No, Your Honour.
45 HIS HONOUR: Do you wish to speak to your client before - - -
46 MR DUNN: If I may, yes, Your Honour.
47 HIS HONOUR: I think it is desirable to just make sure he understands. He's been on a suspended before, but just make sure he does understand what the order all means.
48 MR DUNN: Yes, Your Honour.
49 HIS HONOUR: Is that clear to the officers? Is it clear?
50 PRISON OFFICER: (Indistinct) prisoner, Your Honour?
51 HIS HONOUR: Sorry?
52 PRISON OFFICER: Can we take him?
53 HIS HONOUR: Yes, can you give him just a couple of minutes while his barrister talks to him? I want to make sure he understands. I'm pretty confident he does, but I just want make sure he does. So, if his barrister could speak to him just for a few minutes before you remove him, I'd be grateful for that cooperation. Thank you very much. I'll be in chambers if there's any problems. I'll wait in chambers till I hear everything has settled down and gone, all right?
54 MR DUNN: Thank you, Your Honour.
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