Director of Public Prosecutions v Tangey

[2019] VCC 2131

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01119

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEE TANGEY

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2019
DATE OF SENTENCE:	16 December 2019
CASE MAY BE CITED AS:	DPP v Tangey
MEDIUM NEUTRAL CITATION:	[2019] VCC 2131

EX TEMPORE REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland
For the Accused	Ms K. Ljubrcic

HIS HONOUR:

1Lee Tangey, you have pleaded guilty to one charge of cultivating a large commercial quantity of a narcotic plant, namely cannabis, which carries with it a maximum penalty of life imprisonment and a second charge of theft, which carries with it a maximum penalty of 10 years' imprisonment.

2The circumstances surrounding your offending are as follows:

3You, at the time of the offending, were 51 years of age and now are 53.  You resided as a tenant at 113 Broad Gully Road, Diamond Creek.  That premises was owned by your estranged wife, although the utilities that were connected to that address were in your name.

4On 13 September 2017, police commenced an investigation into the cultivation of cannabis and theft of electricity at that address.  At approximately
8.35 pm, police attended the premises and from the boundary fence of the property, they could smell the odour of cannabis emanating from the premises.

5On 1 November 2017 at approximately 8 pm, police again attended at the property in the immediate vicinity of the premises and from the boundary fence could again smell the odour of cannabis emanating from the premises and could hear a loud electrical whirring noise.

6On 9 November 2017 at approximately 5 am, police again attended the premises and smelt the odour of cannabis, and shortly thereafter, at 8 pm, they attended with a search warrant.  You were present at the time.

7The search of the premises located three internal rooms and a double garage being used for cultivating cannabis.  The quantity of hydroponic equipment used in the cultivation was located, which included heat lights, watering system, fertilising system and a bottle of carbon dioxide.

8In Room 1, there were 40 plants which weighed about 489.4 grams.  In
Room 2, there were seven plants which weighed 50.85 kilograms.  In Room 3, there were six plants which weighed 50.25 kilograms and in Room 4, there were 25 plants which weighed 189.4 kilograms.

9Within the kitchen living area, police also located five small cannabis plants and three large barrels in the living room kitchen area, which were connected to plumbing that led to an electrical controller and into the walls.  The total number of cannabis plants located within the four rooms was 83.  The total combined weights of these 83 plants was 290.99 kilograms.

10A large commercial quantity of plants is 1,000 plants and by weight,
250 kilograms or more.  Thus, the quantity here was approximately 41 kilograms over the threshold weight for a large commercial quantity.

11During the search of the premises, the police also located a bag containing
69.3 grams of dried cannabis, three glass jars containing 273.4 grams of dried cannabis, an iPhone and letters and documents in your name.

12A representative of AusNet services and an electrician attended the premises and located an electrical bypass at the front of the premises, which was supplying unmetered electricity to the hydronic set up within the premises. 

13You were arrested and conveyed to the Mill Park Police Station.  You participated in a record of interview with the police and you made a full and detailed admissions to cultivating cannabis and the theft of the electricity.  Indeed, your record of interview was wholly confessional.

14Exhibit 2 is a set of some 69 photographs, both externally and internally, principally internally.  It shows the extent of the cultivation for crops that you engaged in.  It is fair to say that a good proportion of the premises was devoted to this cultivation enterprise by you.

15Before I turn to the record of interview, your prior criminal history involves three court appearances, the first in November 1985 where you were dealt with for smoking Indian hemp and possession of Indian hemp.  That matter is only of moment in demonstrating your long use of cannabis.

16Your second court appearance was a year later in May 1986 and involved violence offences and driving in a manner dangerous, such matters of no moments to me in this matter.

17Finally, in May 1999, you were relevantly charged with cultivating a narcotic plant, use cannabis and another unrelated matter.  You were sentenced to an aggregate fine of $2000.  That of course is now a matter some 10 years old and the nature of the disposition, namely the aggregate fine of $2000, suggests that the cultivation was not of any particular moment. 

18Again, so far as I am concerned, it is simply evidence of your association with cannabis.

19I have made reference to your record of interview which I have described as being fully confessional, as indeed it was.  You answered every question asked of you and elaborated upon various matters concerning the crop.

20During the course of it, you described how you installed the bypass yourself, at questions 175 to 179, how you set up the hydroponic arrangements, at questions 186 to 188, your installation of carbon filters, at question 328, and the fact that the set up cost you in the vicinity of $10,000.

21You also made a number of other assertions concerning your purposes in cultivating this crop.  One of those assertions involved you putting forward the notion that you would seek to get contract from a firm, the company called Auscann, who you said would be the first people in Australia who got a contract for growing medical marijuana, which you expected to be a really big thing.  See questions 234 to 235.

22You had only returned to this topic in questions 372 to 379 which read, Question: 'From what you're saying so the end game was to produce a product that you were able to sell?'  Answer:  'No, no, no, no, no, I was never gunna - I was never - not at all, there was no way I was ever gunna sell it.'  Question:  'O.K. So if you – if you produced a product that was in your opinion of a medical grade - - -‘ Answer:  'Yes.'  Question:  '- - - would you produce that product as – as a way to say, "I can do this for you," sort of thing? As – as in you would approach a company and say, "I have the abilities to" - - -'  Answer:  'Well, that was my next plan on it, it was actually, I was - that's what I was gunna do.' Question:  'Yep.'  Answer:  'I wanted – like, that's what I wanted to do, I wanted to try and get a contract through Auscann - - -'  Question:  'Yep.'  Answer:  '- - - or when the government was actually doing their contracts through Auscann.' 
Question:  'Yep.'  Answer:  'And that was - was my plan to do that.'  Question:  'Yep.'  'And I was gunna say to them, “Look this is - how do you think of that?” And I was hoping to get a contract by that.'  Question:  'Yep.'  Answer:  'But there's no way now.'

23In earlier questions, you describe your purposes in this way.  Question 257:  'All right.'  Answer:  'So it was actually defeating the purpose of doing it.' 
Question:  'Yeah.'  Answer:  'So I was learning.  Well, that was - that was going I was never doing that again - - -'  Question:  'Yeah.'  Answer:  '- - - ‘cause it didn't work for me 'cause the - the – the girth of them was too big and the centre would heat up like wheat, yeah.'  Question:  O.K.'  Answer:  'And it would all mould up and again you can't sell it.  You can't - you can't sell it to the medical thing it's not going to happen.' Question:  'Yeah, yeah, yeah.'  Answer:  'Mm. So it was more of a trial run sort of thing, you know, I'm trying - trying to perfect it.'  Answer:  O.K.'  Another police officer then asks, Question:  'Sorry, when you say trial run how many cycles have you done before this?'  Answer:  'I - I done the bypass in - put the bypass - put the bypass in in September.'  Question:  'Yeah.'  Answer:  'So what's it now,  September, October, November and that was me first one and I was gunna do another one because I wanted to see if I can get it right so I was gunna do it again.' Question:  O.K.'  Answer:  'But obviously I'm not going to now ‘cause it's over but - - -'  Question:  'Yeah.'  Answer:  'Yeah.'  Question:  'And how were you going to get rid of these ones?'  Answer:  'I was just gunna cut them out and throw them out and start again 'cause I was, - I was trying to get this right - - -' Question:  'Yeah.'  Answer:  '- - - and then get - try to get a contract with the government but there's no way I'll get one because I'm gunna have a record I'm stuffed.  It's finished but that was the risk I took and now I'm paying the consequences for it, you know, yeah – so.' 

24Still later in the interview towards the end at Questions 395, Question:  'Just one last thing from me.  You were going to dispose of the cannabis?' 
Answer:  'I would have - what I would have done is just cut it all down, put it into garbage bags - - -'  Question:  'Yep.'  Answer:  '- - - and take it down to the Brooklyn tip and just throw it out in the tip and then - - -'.  Question:  'Is Brooklyn tip the one near Maribyrnong or wherever it is or - - -'  Answer:  'No., Brooklyn's actually near Altona - Brooklyn, it's behind the - I don't know if you know the Guiding Star Hotel? You probably don't, it's the western suburbs.' Question:  'Mm.'  Answer:  'I was just going to take it there, throw it down the tip.'  Question:  'And why there?'  Answer:  'Because they don't - it's mostly new tips - they don't call them “tips” any more, they call them recycling - - -'  Question:  'Yep, yes, yep.’  Answer:  '- - - places they call them now - they have to itemise what you throw out.'  Question:  'Yep.'  Answer:  'So you've got plastics over here and whatnot over there. With the Sunshine tip or Brooklyn it is now, it's called Brooklyn, everything just goes there and they – and they do it themselves.'  Question:  'Yep.'  Answer:  'That's the reason I do it, it's just easier.' 
Question:  'Yep, O.K.'  Answer:  'But I - I would have sealed it all anyway and make sure it was - nothing was showing, I would have sealed it up in bags or whatever and chucked it out, done it all safe.' 

25This process of throwing away the product arose because of a difficulty that you said you were having with the crop.  Thus, at Questions 282, you were asked, 'You were going to do it a different way?'  Answer:  'I was gunna try to kind of work out how to get rid of these insects.'  Question:  'Yeah.'  Answer:  'And - and I had to do more research on it to find out how to get rid of them and I don’t know how to do it right that one. You know, it's like anything you - you do something the first time it's never gunna to come out a hundred per cent is it.' Question:  'Yeah.'  Answer:  'You're always gunna have to - - -'  Question:  'Yeah, yeah.'  Answer:  '- - - work on it.'  Question:  'Yeah.'  Answer:  'And I was determined to get it right and I thought I - - -'.  Question:  'Yeah.'  '- - - I thought I - I worked it out the second time and I thought maybe I need to seal the room better or keep the insects coming in or - so then I looked - actually looked up on the - on the Internet whatever you call it and like it talked about the – the best way to do it was with predators, natural.’ Question:  'Okay.'  Answer:  'Instead of trying to spray them with all this foliage spray and whatnot just use predators, so the next thing I was trying to do I was trying to learn how to do it with - with predators naturally and they eat – obviously - - -'

26What I can gleam from these questions or these answers is that you had trouble with insects.  You had done some research in relation to your difficulties with these insects and you wanted to perfect means by which you would not have these difficulties, thus producing a quality crop, thereby gaining skills which you could then offer to a commercial company in the event that medical cannabis was legalised in Victoria. 

27It was therefore put by your counsel that you did not have a commercial purpose in your cultivation of this crop and in those circumstances, your legal and moral culpability is reduced. 

28Your candour in answering the police questions about the crop and how you set it up at first blush gives some very similitude to these assertions.  But in the result, they make absolutely no sense.  The suggestion that you would in the future, having gained these skills, approach a company with a proposition for them employing you under some contract strikes me as being fanciful in the extreme. Further, the suggestion that the crop was ruined because of insects and that you intended to dispose of the crop also is, in my view, untrue. 

29I am satisfied given the sophistication of this hydroponic set up which you installed, together with the electrical bypass and the extent the use of the house for this cultivation and its size bore to all point unerringly to your purpose of cultivating this crop to maturity.  You may have had other ideas for the future that existed in your imagination, but I am satisfied, and in this case beyond reasonable doubt, that your purpose was, as I have said, to cultivate this crop to maturity.

30I emphasise that the charge here is a single date cultivation, but of course, that is a single date cultivation which must be seen in the setting that you were the occupant and you constructed this whole hydroponic set up.  You are not to be sentenced for cultivation prior to 9 November 2017, nor for any commerciality in terms of your disposition and disposal of the crop upon its maturity.

31So having dismissed this argument it is necessary to turn my mind to the overall objective gravity of the offending.  Here, Parliament has set life imprisonment as the maximum penalty.  The quantity of cannabis seized was towards the lower end by weight of a large commercial quantity.  It was you who installed the bypass, see questions 175 to 179, the hydroponic set up, see questions 186 to 188; the carbon filters, see question 328, as I have already stated.

32The cost was borne by you of some $10,000.  You used your own rental accommodation for this enterprise.  You were the principal.  This was your crop.  This was your cultivation.  Your aim, as I have said, was to cultivate these plants to eventual maturity, though I bear steadily in mind the single date of cultivation alleged on the indictment.

33In conclusion, I am satisfied that your offending is towards the lower end of the offending in relation to cultivation of a large commercial quantity, cannabis. 

34I have received a large number of references which speak all with one voice.  Sadly the first of those references is from your mother, since deceased.  It was apparently prepared for the purpose of your bail application.  She writes of you in this way, in Exhibit LT2.  This is dated 16 January 2018.

'Unfortunately Lee's father was an abusive paedophile and his ongoing lack of support and evil ways grew me closer to my children, which I believe created a special bond between us, as we always had each other no matter how bad the situation was.  I understand the actions of their father impacted dramatically on the kids, specifically Lee.  I often wonder if he ever actually dealt with the traumatic experiences he was left to deal with as he reached adulthood.

35Later, she continued:

'He has always been a wonderful son, who has always been there for me when I need him and is always looking for ways to help either myself of his sister, Debbie in everyday life.'

36A George Devescovi in his letter which became Exhibit LT3 wrote,

'At fifteen Lee was forced to leave school by his father.  His good nature and willingness to work saw him immediately employed and he stayed employed constantly throughout his life.'

37Kon Konstantaras also wrote along similar lines, saying in Exhibit LT4:

'Lee wasn't as fortunate as most young kids due to his father's upbringing,  I believe it affected lee greatly in the choices he has made in life.  Lee is a pleasant warm person and I'm fortunate to have him as a friend.'

38You, too, have written a letter.  It became Exhibit LT1, dated 6 June 2018 and it is a revealing letter.  In it, you wrote:

'I now recognise that I had a major problem with a substance that many still argue is not addictive.  However, since my arrest on the 9^th of November 2017, I've had a great deal of time to contemplate the consequences of my actions.

I thought that smoking marijuana was helping me cope with the stresses of life.  Instead, it was only partially covering up those issues and creating new ones in the process.  I suffered a brain aneurysm which landed me in hospital and placed in a coma.  When I woke and was actually able to make any sense of what had happened, I was advised that I was one of only a small percentage of people who actually survived the ambulance ride to the hospital.  It took months and months of rehabilitation.  It was over a year before I looked, sounded and felt anything close to normal.'

39You then go on to describe your rehabilitation, which had devastated you.  You then continue:

'I've been working as a Forklift Driver for two months now and the difference is night and day.  Holding down a steady job has had an incredible improvement on my quality of life that is hard to properly describe.  I can see this as clearly as ever and apart from tobacco and a couple of beers on the weekend, I am completely drug free and no desire and inclination to ever do it again. My view has shifted dramatically on the crimes I have committed.  I no longer view it as a ‘victimless’ crime, but one with the real potential to negatively impact both individuals and the community.  I don't want to be responsible for putting anyone in that situation. These realisations have had a huge impact on me.  Feelings and emotions have resurfaced that I should’ve dealt with a long time ago.  Mostly shame and remorse.  Before my arrest, I had none of these feelings.  With a much clearer mind, fresh experiences, knowledge and sounder judgment, Isee things very differently. Concealing my actions from my family, should've been my first (indistinct).  My family who has helped me get back on my feet and rehabilitate me into a positive, productive member of society despite the effect this ordeal has had on them compounds the shame even further. As the court may be aware, my mother recently passed away and it was her dying wish that I abandon my old ways and sort out my life.  I (indistinct) to fulfil her wish.  Truthfully, I would never wish to feel as embarrassed and ashamed or remorseful as I do now, ever again.'

40Your partner of some 11 months writes of you, Exhibit LT5:

'He keeps himself busy working hard in an attempt to keep his mind active so as to not become distressed.  He suffers with headaches and lack of sleep because of the uncertainty of his future. 

I believe Lee has learnt his lesson from his mistake and am confident he will not contemplate reoffending again.'

41Sharyn McKee writes:

'Lee also took on the role of looking after his elderly mother for the last 3 years who has just recently passed away.  Lee is always up to lending a helping hand to his friends and family. 

Lee completely regrets the offence he has committed and is intent on taking responsibility for his actions.  I understand that Lee has obtained a new job within the community to show that he can be responsible within the workforce.'

42Others have also written highly of you, including Robert Maggs who has known you for some 30 years, and in the penultimate paragraph wrote of you:

'I am absolutely confident that whatever sentence is imposed on Lee, he will comply exactly with all requirements that are placed on him and that he will behave in the best manner at all times, as he has done in the past 18 months when charges were initially laid against him.  He will not cause any problems or bring unwanted attention upon himself or do anything that may have any negative impact on the judgment of the courts.  I have no doubt that he will do everything within his power to minimize his punishment and return to normal society as a model citizen as soon as he possibly can.'

43Perhaps once of the most striking character references was of that provided by Alec February who was the warehouse manager with John S Hayes & Associates, his letter becoming Exhibit LT9.  He writes:

'In reference to Mr Lee Tangey, I met him about 16 months ago when he came calling at my office looking for employment.  As I did not have any positions available he offered his time to do some volunteer work around our factory.  He explained to me his situation he found himself in and also that no one was prepared to give him an opportunity. 

He offered to clean up our gardens and also cleaning up around the place for which I was very appreciative and he also accepted it was purely on a volunteer basis. As time progressed he even got involved when my staff had to unload containers to the point where he now comes in all the time when I have containers in.  At times when we are inundated with work he offers to come in and do our containers by himself.  He also comes in over weekends to do so.

In the time I've known Lee (+ 16 months ) he has proven to be reliable, trustworthy and dependable when it comes to assisting us when needed and doing this voluntarily.  I don't know about his past life (only what he has told me)  but if an opportunity arises in our organisation I would have no hesitation in hiring him because of the above mentioned qualities I have come to realise about him.'

44That opportunity has materialised and full-time employment as a fork lift driver has materialised, and that work now has involved you over a period of some two years.

45Thus, you come before me with a strong work ethic.  You have a loyalty to family and friends.  You have helped nurse your mother until her death.  You have struggled with your own problems, which include you having been the subject of sexual abuse by your father, a matter that you never disclosed until recent times and a matter which has only recently been addressed with counselling.  It is well understood that sexual abuse of any kind, particularly of children, haunts them for the rest of their lives.

46You turned to cannabis in order to assist yourself in dealing with your multifarious problems.  This use became your addiction.  It became your obsession.  It is why you are now before this court.

47I accept your pleas of guilty as demonstrating not only the further evidence of remorse, but of complete insight into your offending as revealed in your letter.  Furthermore, your pleas of guilty have the utility of avoiding trial which would have been of some duration and facilitating the course of justice.

48You come now to be sentenced a little over two years after this offending.  You have demonstrated during that two year period your determination to reset your life, to reconsider your use and abuse of cannabis and the wider implications for cannabis use in our community.  You have used this time not only to do that, but also to assist your mother, nurse her and do what you needed to do with your sister prior to her death, she having lung cancer.

49You have obtained work and you have shown a determination in doing so, as demonstrated by Mr February's letter.  In short, together with your new relationship, you have demonstrated a determination to rehabilitate yourself and I am satisfied in the circumstances of this case, given your insight, given your remorse, given your abstinence from any use of cannabis, that your prospects of rehabilitation are indeed excellent.

50This also has the consequence that deterring you or specific deterrence is to be given less weight in the circumstances of this offending.  You were candid to the police when reflecting on what you had done as demonstrated in question 354.  Question:  'Yep, hindsight's a great thing.'  Answer:  'Yes, it is now.  I know I've done the wrong thing guys,  I mean, youse are only doing your job and – and, like, I - I respect you guys, you know, youse do a good job whatever youse – when youse – what youse do and and I deserve what I get, it's as simple as that, you know - - -'

51Then a little later in answers to question 359 and 360, you were asked, 'Well, not punishment but - - -'  Answer:  'No, no, look, I deserve everything I get.'  Question:  'Yep.'  Answer:  'I have n - I'm not sitting here, “Why me?” boo hoo.  I done the wrong thing, I deserve what I get and it's as simple as that, I understand that.'

52General deterrence, deterring others from similar offending is the principal sentencing factor I must take into account.  Parliament has set the highest maximum penalty of life imprisonment for this offending involving cultivation of a large commercial quantity of cannabis.  There is also a need to ensure that the sentences that I impose reflect the need for just punishment and denunciation of your behaviour.

53On Chare 1, the charge of cultivating a large commercial quantity, I sentence you to be imprisoned for a period of three years.

54On the Charge 2, the charge of theft, I sentence you to be imprisoned for a period of six months.

55I direct that two months of the sentence imposed on Charge 2 be served cumulatively with the sentence on Charge 1, producing the total effective sentence of three years and two months.

56I set a minimum non-parole period of 22 months.

57I declare that but for your pleas of guilty, I would have sentenced you to five years with a minimum of three years before eligibility for parole.

58I declare that pre-sentence detention excluding today is 75 days, which will be administratively deducted.

59I declare pursuant to s.89DI of the Sentencing Act that you are a serious drug offender.

60Take a seat.  Is there anything to be said about the forfeiture orders or disposal orders?

61MR BUCKLAND:  There is one matter I might draw your attention to, Your Honour.  In relation to the forfeiture order, there are two items on the draft order which are items 4 and 5, the Apple iPhone at six and the $622 Australian currency to be deleted.

62HIS HONOUR:  Four and give?

63MR BUCKLAND:  Yes.

64HIS HONOUR:  I will initial that.

65MS LJUBRCIC:  Otherwise by consent.

66HIS HONOUR:  Thank you and the disposal order?

67MS LJUBRCIC:  By consent, Your Honour.

68HIS HONOUR:  Thank you.  Any other matters, Mr Buckland?

69MR BUCKLAND:  I do not believe so, no, Your Honour.

70HIS HONOUR:  Yes, you may remove Mr Tangey.

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