Director of Public Prosecutions v Thomas

[2019] VCC 215

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01969

DIRECTOR OF PUBLIC PROSECUTIONS

v

BAYDEN THOMAS

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2019
DATE OF SENTENCE:	25 February 2019
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2019] VCC 215

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Cultivate Narcotic Plant – Commercial Quantity. 

Legislation Cited:  Sentencing Act 1991

Cases Cited:DPP v Duong [2006] VSCA 78, Doan v The Queen [2010] VSCA 250, Nguyen v The Queen [2016] VSCA 198.

Sentence:Total effective sentence of three years imprisonment with a non-parole period of 18 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Cameron	Director of Public Prosecutions
For the Accused	Mr G. Vassis	Vassis & Co

HIS HONOUR:

1Bayden Thomas, on 25 February 2019, you pleaded guilty to the following charge on indictment number H11859524: 

Charge 1, cultivate a narcotic plant in not less than a commercial quantity.  This charge has a maximum penalty of 25 years' imprisonment.

Circumstances of your offending 

2The prosecution tendered an Amended Summary of Prosecution Opening which was Exhibit “A” and a booklet of photographs which was Exhibit “B”.  The opening set out the circumstances of your detection and offending as follows:

3You, Bayden Thomas, were aged 68 at the time of the offending and you are currently 70 years old.  At the time of the offending you lived with your daughter and you were at that time in receipt of a fortnightly pension.  On 23 December 2015, you leased a factory at 1 Archer Road, Truganina.

4On 15 April 2017, at approximately 8 am police members attended the factory leased by you.  This was in response to a 000 call from a neighbour, Ramo Monanoro, who stated that four people were trying to enter the factory at
1 Archer Road, Truganina.

5When police attended at that scene they spoke to Mr Monanoro who pointed out a black Jeep vehicle parked outside the factory.  A police member spoke to two occupants of that vehicle and who were subsequently arrested for dishonesty and weapons offences.

6Police then sought to locate the remaining two offenders who Mr Monanoro indicated were still inside your factory.  Whilst waiting for further police members to attend, a strong smell of cannabis was detected.  When further police members attended to execute a search warrant for the remaining offenders, the police entered the building and located three further offenders, charging them with burglary related offences.

7A search was conducted and a hydroponic crop was discovered by investigators in three rooms which were constructed within the factory.  A large amount of cannabis was located inside a number of boxes and a doona cover.  It was apparent that the cannabis had been harvested by the burglars.

8Cannabis plants had been growing in three rooms and a fourth room contained numerous baby cannabis in plants, in effect the nursery.  A short time later you attended the location of the factory and indicated to the police that you had leased the factory and that there was cannabis inside the building.

9You were subsequently arrested and taken to the Melton police station for interview.  Investigators seized at the scene the following items: 

1.        39 cannabis plants;

2.        Three boxes and a doona cover containing cannabis;

3.         31 globes;

4.        16 transformers; and

5.        31 shrouds and four lights.

10The cannabis that was seized during the investigation was examined by a botanist, Emily Souter, who gave her opinion that the total weight of the cannabis was 41.75 kilograms.  The commercial quantity for cannabis is 25 kilograms. 

11You were cooperative with the police and you made full and frank admissions to your offending.  In particular, you stated as follows: 

1. That you had been renting the factory for about 12 months;

2. That there was cannabis in the factory consisting of 38 trees;

3. That there could have been 20 baby plants in the factory as well;

4. That there were three rooms and a tent set up with 12, 20 and six plants in them respectively;

5. The plants took three months to mature;

6. That it took you three to four months to get everything built and you did everything by yourself;

7. That you were growing it to make money as you had not been able to live on the pension which was you said was $400 a week;

8. You admitted to harvesting one room and used the proceeds which amounted to $10,000 to pay for the rent on the factory;

9. You did not use marijuana yourself;

10. That one of the rooms was ready to harvest and you were going to cut it the following day; and  

11. You explained that you would cut the tree and hang it upside down for four to five days.

12On 21 June 2017, you were charged.  The matter was resolved to a plea of guilty at committal mention stage on 27 September 2017.  Your plea is at the earliest time.  During 2018 there were three court dates and I now note a total of four court dates, that were listed for plea but you were unable to proceed.  The delay between the settlement of the charges and today are no fault of the prosecution.

Personal Circumstances

13At the time of the offending you were 68 years old. You are now 70 years old.  You have no prior convictions.  Both of your parents and older brother have passed away.  You have no contact with your two surviving sisters.  You have been married twice.  From your first marriage you had three children.  Your son, Bayden, died of a heroin overdose in 1994.  You have two surviving children, both of whom are seated here in court, a son aged 48 and a daughter who you live with who is 46.

14You grew up in Sunshine.  You reported to Ms Lechner that you were terrified of your father.  You were subjected to domestic violence yourself, both as a victim and as a witness to it.  You were educated to Grade 6 at Albion Primary School.  You completed Year 12 at Sunshine West High School.

15At that school you were house captain, a tennis captain and a football captain.  In your words to Ms Lechner you were "king of the kids".  You commenced work as a government clerk after school and remained in that role for some six months or so.

16You then conducted a “milk round” business for 32 years.  That work involved having as many as five trucks and a number of employees.  I note in Ms Lechner's report you also said that you had been a bookmaker at the night trots for five to six years.

17You had developed an alcohol dependency and your first marriage broke down.  After your son died you moved to Wangaratta in 1996 and you bought the Railway Hotel up there.  You became involved in a further relationship but that broke down as well.  You reported to Ms Lechner that you had paid a settlement of $700,000 to your second wife but you had managed to keep the hotel business.

18Your health deteriorated and in early 2004/2005 you had a stroke.  You have the following medical conditions:  

a) Heart problems;

b) High blood pressure;

c) High cholesterol;

d) A tumour on your kidney, that tumour being benign;

e) Type 2 diabetes; and

f) Suffer from sleep apnoea.

19Carla Lechner, whose report is Exhibit “2” on the plea, had diagnosed you as suffering from moderate major depression and anxiety.  You had withdrawn from social contact with others and state you are not emotionally close to anyone.

20You live with your daughter and a grandson I am told and you are an aged pensioner.  In the course of the plea a large number of medical reports were tendered on your behalf.  Exhibit “3” were the medical records from your general practitioner, Dr Abu Mustafa, from Manor Lakes Medical Centre, and progress notes set out your constellation of medical conditions.

21You clearly do not enjoy good health and are required to take a large assortment of medications for your medical conditions.  The reports from
Dr Galanos, who is an endocrinologist, which was Exhibit “4” and set out the degree of your diabetic condition and the medications. Dr Galanos described your diet as horrendous for a diabetic. 

22Associate Professor Grummet, your urologist, whose report is Exhibit “5”, stated the tumour in your right kidney is benign but it required monitoring. A report dated 3 October 2018 from the Wyndham Private Medical Centre, which was Exhibit “6” recommends aggressive cardiovascular risk profile for your heart condition. A recommendation was made for a dietician. 

23The report from your urologist, Mr Jason Ooi, sets out the treatment you received for your obstructive voiding symptoms.  He did not recommend surgery for your kidney tumour. 

24In a report dated 3 May 2017, from Kate Hawkins which was Exhibit “9”, podiatrist, sets out your requirements for specialised footwear to limit further ulceration of your feet due to diabetes.

25A report from Christine Tangas, is dated 18 August 2014, is Exhibit “10”.  She is your ophthalmic surgeon and sets out that you successfully had left cataract surgery in March 2014. 

26All of these medical conditions were present and affected you at the time of your offending in this case. Nevertheless, you were able to single handily perform all the work necessary to construct and set up the equipment shown in the Victoria Police photographs which were Exhibit “2”.

Sentencing Considerations

27The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation of you, the offender, and denunciation of your actions and the protection of the community.

28I have to have regard to the seriousness of the offence, your culpability for it and your personal circumstances.  I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible offenders such as yourself are rehabilitated and reintegrated into society.

29I have taken into account your plea of guilty.  Your plea of guilty is at the earliest stage.  Your plea of guilty to this charge has the utilitarian value to the community.  Your plea of guilty has saved the community the expense of court proceedings including a committal and a trial.  Your plea of guilty has given the certainty of outcome for this case and your plea of guilty is evidence of your remorse.

30I accept that you are remorseful for your offending.  Your plea also demonstrates that you are willing to facilitate the course of justice in the community and indicates that you accept your responsibility for this criminal conduct as you did with the police on the day in question.

31As part of the governing principles to be considered in sentencing I must take into account the current sentencing practices.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in culpable cases.

32I have considered the statistics in relation to those sentences and the current sentencing practices.  I am mindful that each case must be considered in light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another. Nevertheless, current sentencing practices is just one of the sentencing considerations I must take into account. 

33Mr Vassis, counsel on your behalf, submitted that the appropriate disposition for this offending was a community corrections order.  Mr Vassis relied on your plea of guilty, your remorse, your serious health conditions, your age and your previous good character to support that submission.

34The prosecution's ultimate submission on disposition and penalty was as follows:  

"Balancing all relevant sentencing considerations and noting in particular the unusual constellation of factors in this matter, including
Mr Thomas' significant health issues, his older age, his lack of any prior convictions, his cooperation with prosecuting authorities and the low risk of reoffending the prosecution respectfully submit that it is open to the court to impose a non-custodial sentence".

35The provisions of the Sentencing Act, in particular s.5 (4C) which directs the court or a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed. I have reviewed the case of Bolton in considering if a community corrections order would be appropriate in your case.

36As you know I have had you assessed for a community corrections order.  You have been assessed as suitable.  That is not the end of the matter.  The Court of Appeal has made a number of pronouncements on the seriousness of the charge of cultivating a commercial quantity of cannabis.

37President Maxwell in the Court of Appeal in the case of R v Nguyen [2010] VSCA 12 said this about the seriousness of the offence:

"As has been readily pointed out in sentencing decisions this is an offence which Parliament has set the highest fixed maximum in the criminal calendar, 25 years' imprisonment".

38In the later case of DPP v Duong [2006] VSCA 78 Buchanan JA noted as follows:

"The maximum penalty of 25 years shows unambiguously how seriously the community through Parliament view this conduct."

39The case of Duong followed in the case of R v Tuan Dohn where Terry Forrest who was an acting justice of appeal at that time stated as follows:

"I consider that the appellant has failed to make good this ground.  The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum of 25 years' imprisonment.  Whilst there is no doubt that the role played by the appellant was of a menial nature it was nonetheless necessary for the crop to flourish.  The maximum penalty fixed by Parliament unambiguously demonstrates how seriously the community views this conduct."

40He referred to the case of Duong and then said as follows:

"Recently in this court emphasis has been placed upon the importance attached to sentencing judges having to have regard to the maximum sentences fixed by Parliament."

41He then stated as follows:

"This court has also emphasised recently that general deterrence is an important consideration in this type of offence and that the link between general deterrence and the increasing prevalence of this offence is readily apparent."

42In the case of Dohn Nettle JA as he then was said as follows.  He agreed with Forrest J and then says:

"I wish only to add a brief observation concerning the submission advanced on behalf of the appellant that the judge had erred in the emphasis which His Honour placed on the importance of general deterrence.  In my view let there be any doubt about it there should be no doubt that in cases involving the cultivation of a narcotic plant in not less than a commercial quantity general deterrence is at the forefront of sentencing considerations."

43Consequently as the judge rightly observed in cases of this kind there is less room to give weight to considerations such as youth and the antecedence that would otherwise be the case.  In the result the judge also correctly found in the case of this kind an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.

44More recently in a case of Nguyen v The Queen [2016] VSCA 198 the Court of Appeal found that the current sentencing practices for this offence did not reflect the objective seriousness of the mid-range offending. In that case Redlich JA as he then was said as follows:

"Sentences imposed upon offenders who fall within the mid category of seriousness do not reflect consistency in the application of principle.  There has been inadequate emphasis given to general and specific deterrence and denunciation.  Consequently the standards set do not adequately reflect the objective seriousness of the offending or the offender's moral culpability for engaging in such criminal conduct for profit that is no harmful to the community."

45Redlich JA then went on to say as follows:

"For the immediate future sentencing courts must by increments increase the sentences for mid category offending so that the range of sentence is uplifted and substantially expanded to enable the identification of the correct sentence for particular offending conduct the current sentencing practices for that category of seriousness of offending must be sufficiently broad to encompass a wide range of criminal conduct within the category of the offence.  The corrected range should include sentences that have previously been reserved for offending which fell at the lower level of the upper category of seriousness.  The uplifted range should not include sentences that have previously been reserved for less culpable offenders such as crop sitters falling towards the upper end of the lower category."

46Your offending is not a crop sitter.  Your offending involves continuous activity over a three month period.  The cannabis crop you grew was 1.67 times the commercial quantity by weight.  In a quantity based offending regime you were growing a sufficient number of plants to be 1.67 times the commercial quantity and you will be sentenced on that basis. It is and was a substantial crop. 

47Your offending involved a level of sophistication on your part as the principal offender.  Your role is marked by the following factors:

a) You sourced and rented the factory where the cannabis crop was to be grown;

b) You built and set up the hydroponic equipment to grow the crop.  Whilst it is a little bit untidy on the photographs it was a sophisticated system that you had in place;

c) You grew the cannabis crop for the profit of to supplement your pension of $400 a week;

d) You admitted to harvesting one of the three rooms and receiving $10,000 of the proceeds from that sale.  You spent that money on rent for the factory;

e) The operation was purely for personal gain from known illegal activity.  You were the sole operator.

48You are now 70 years old. You have poor physical health.  You suffered a stroke in the early 2000s.  You have a heart condition, high blood pressure, high cholesterol levels and an unstable diabetic condition.  You have had two toes amputated. It was stated that you had a benign tumour on one of your kidneys and because of your other comorbidities you are not a candidate for surgery.  You take a multitude of medications to maintain your health. 

49You have been assessed by Carla Lechner, clinical psychologist, as suffering from a moderate range major depressive disorder and a moderate level of anxiety.

50The combination of your age, your poor physical health and psychological condition will make your time in custody more burdensome than a prisoner in normal health.  I take this factor into account when sentencing you and fixing the final sentence.

51You have no prior convictions.  You have lived a productive life conducting businesses and supporting dependents to the age of your retirement.  In your history to Ms Lechner you stated as follows: 

"I got the factory in December 2016 but didn't grow anything until September 2017.  I don't want to go bankrupt because I don't want to go to gaol.  I owe the money.  I don't want to die knowing I was bankrupt.  It was a sign of failure".

52There are two ironies in your case.  The first is that your offending was detected because others were breaking into your factory to steal your cannabis crop.  The second irony is that you will go to gaol for this offending but you would not have been sent to gaol for simply going bankrupt over credit card debts.

53I assess your prospects of rehabilitation as good taking into account your age, your previous good character, your cooperation with the police and your remorse for this offending.  I accept that you are the proprietor and operator of this cannabis crop and find that you are at the low end of the mid-range offending in that you have no prior criminal history and that this offending is your only involvement in the growing of a cannabis crop.

54The principles of sentencing of general deterrence, denunciation and protection of the community are the most important considerations in your case.  A term of imprisonment is the only appropriate sentence.

55There has been a delay between September 2017, when you indicated your intention of an early plea and today the finalisation of these matters. A year of that period has been due to difficulties you had in obtaining the relevant medical evidence and materials to respond to the matters raised that apply in s.5 (2H) of the Sentencing Act. In effect the delay has allowed you the benefit of the prosecution's submission that a disposition other than a custodial sentence is open to the court.

56Your criminal activity was driven by your pursuit of money from the cultivation of narcotic plants.  The mitigating factors of ill health and age, good character in the past and remorse for this offending do not overcome the need for a custodial sentence to reflect general deterrence and denunciation of your offending and protection of the community generally.

57Would you stand please? 

58Charge 1, you are convicted and sentenced to three years' imprisonment. That is a total effective sentence of three years. I fix a non-parole period of 18 months' imprisonment. Pursuant to s.6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to four years and three months with a minimum period of three years.

59I have signed a disposal order that was sought by the prosecution and agreed to by your counsel.  Is there anything else?

60MR CAMERON:  No, Your Honour.

61HIS HONOUR:  I will just note on the order that the medical conditions and the reports will be provided to Corrections so they know exactly what conditions your client suffers from.

62MR VASSIS:  Thank you, Your Honour.

63HIS HONOUR:  Does your client have his medications with him?

64MR CAMERON:  I'm not sure, Your Honour.

65MR VASSIS:  Yes, he has them.

66MR CAMERON:  My friend's indicated he does.

67HIS HONOUR:  Someone else can organise that but just to make sure he has got them so they will be constant.  Thank you.  You can remove the prisoner, thanks.

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