Director of Public Prosecutions v Wagener

[2021] VCC 665

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-01183

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE GRANT WAGENER

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2021
DATE OF SENTENCE:	19 May 2021
CASE MAY BE CITED AS:	DPP v WAGENER
MEDIUM NEUTRAL CITATION:	[2021] VCC 665

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Cultivation of a Narcotic Plant – Commercial Quantity –Plea of Guilty – substantial and compelling reasons – skin cancer

Legislation Cited:      Sentencing Act 1991 s. 5(2H).

Cases Cited:N/A

Sentence:                  Community Correction Order for a period of 4 years, Disposal Order.

Section 6AAA declaration: 12 months imprisonment, with a CCO of 2 years.

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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 S. Joosten	Nelson Brown Legal

HER HONOUR:

1Shane Wagener, you have pleaded guilty to a cultivation of a commercial quantity of cannabis.

2On 8 March 2019 at 10.44 am, police executed a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act 1981 at your home in Corinella, Victoria.

3They found:

(a)   102 cannabis plants growing in the ground at the rear of the property; and

(b)   32 smaller plants growing in a hydroponic set-up in the double garage.

4Also found was a Ziploc bag containing cannabis, (approximately 53.9 grams) and brown bottle/vial with a dropper, which contained liquid believed to be cannabis oil.  Both those items do not form part of the charge.

5The cannabis plants and cannabis material were examined by a Victorian Police Forensic Botanist, on site.  There were 134 cannabis plants, with a total weight of 213.43 kilograms.  There was no evidence indicating that you were involved in selling cannabis to anyone.

6On 8 March 2019, you were interviewed at Wonthaggi police station.  I will set out what you said in some detail, as your explanation for growing the cannabis is one of the central aspects of your plea submissions.

7You admitted growing the cannabis located on your property.  You explained that you grew the cannabis for personal use, because you are a cancer sufferer and your cancer had rapidly gotten worse over the last couple of years.  You accepted that your view of cannabis as a medicinal plant was not in accordance with the law, but said that you thought cannabis was the safest alternative option for treatment of your skin cancers.

8You said you made the cannabis oil for your own use, to treat your skin cancer and that the advice you were following was that you effectively had to 'Bathe' in it.  You claimed you had gotten that advice from a doctor, 'Off the record'.[1]  You took it orally, you rubbed it on your skin six times a day, so you went through a large amount of oil.  The dried cannabis, and the bottle of oil in the kitchen had been purchased, but it was expensive to purchase the oil, you said, so you felt you had to make your own.

[1]          Record of Interview (“ROI”)  A107

9You said you also used the cannabis in cooking, and smoked copious amounts a day.[2]  You were concerned to avoid having toxic chemicals in the cannabis you used and for that reason, in addition to the expense, you preferred to grow it yourself.  You said you did not sell it to anyone, that you were growing it all for personal use.  This was the first crop you had grown.  You sowed the seeds for the plants in the ground around three months before, which is reflected in the charge period, and the hydroponic set-up in the shed had been in place for around eight weeks.

Circumstances of Offender

[2]          ROI Q&A127-133

Personal history, incl family school health etc

10You are now 49 years old.  You grew up in the western suburbs of Melbourne, with two older and one younger sibling.  Your father had an alcohol abuse problem and was controlling and domineering, with a short temper.  He was physically abusive to your mother and towards you and your siblings.  This caused you to be anxious, undermined your sense of self-worth and caused you to hide yourself from father.  You had a good relationship with your mother, who was emotionally supportive of you.

11Your mother was diagnosed with a rare skin cancer in 2007, leading to extended periods of hospitalisation.  You were very close to her and visited her often whilst she was in hospital under treatment.  This was very distressing for you and upon her passing in 2014, you experienced profound grief and sense of loss.  Since then, you have maintained only minimal contact with your father.

12Your schooling was inhibited by trouble concentrating, which Dr Barth connected to the effects of your father’s abusive behaviours.  You were bullied and harassed and felt isolated and lonely.  You finished Year 11 and then took up an apprentice as a plasterer, a career which you followed for some years, including having your own business. 

13You and your wife ran a small organic produce business for a time, which was stressful to the point that you and she sold the business and moved to the country in 2014.  You still live on the farm you purchased then, which focuses on livestock and organic and biodynamic farming. 

14You have been married for around 20 years.  Your marriage has had its problems, but both of you persisted.  After difficulty conceiving, you now have a daughter who is nearly five years old, with whom you are very close.  You are fortunate that your wife has remained supportive of you throughout these criminal proceedings.

Medical Reports

15Six reports from doctors have been provided regarding your physical health, and two reports from Dr Barth about your mental health.  The reports indicate that you first started to find basal cell carcinomas ('BCC') on your body in 2002.  Since that time, you have had around 100 carcinomas removed from your body, including five in the week before the plea hearing.  Photos were provided of a number of these.  It is apparent from the photos that the cancers range from small spots to quite large areas that have to be excised and the area stitched.  The photos show many scars and healing wounds from these removals.

16In 2017, after concerning pathology results, you were referred to the
Peter MacCallum Cancer Centre for consideration of radiotherapy.  The doctors at Peter Mac were concerned that there might be a genetic contribution to the skin cancers, which would make radiotherapy inappropriate.  Ultimately, you were tested, and it appears that you do not have the genetic issue they raised.  Another potential treatment called, 'Hedgehog inhibitors' was considered by the various doctors you have seen, but due to the significant toxicity of that treatment, and thus the potential side effects, you have not pursued it at this time.

17A report from a Medical Oncologist in August 2020, noted your history of the first appearance of a BCC in 2002, with a rapid increase in number over the previous two years.  He noted that in the last 12 months before his report, more than 40 had been removed, with eight removed by your GP in the four weeks before his report.  He considered that your situation will deteriorate, to the point that the cancers will not be able to be removed surgically.  At that point, it will be necessary to look at a, 'Hedgehog inhibitor' treatment.  He concluded:[3]

'Due to the frequent and rapid progression of his basal cell carcinomas, Shane requires frequent monitoring by a surgeon/dermatologist and his referral and commencement of systemic therapy by a medical oncologist will be sooner rather than later.  Such complicated reviews by multimodality clinicians, as in a general practitioner, plastic surgeon, radiation oncologist and medical oncologist will be particularly burdensome to both the healthcare system and the patient whilst imprisoned'.

[3]          Associate Professor Parente, 10 August 2020, Exhibit D8.

18Two reports were provided by your GP, setting out the history of your skin cancers. Dr Lim noted that in March 2019, a week before the police searched your property, you raised the use of alternate therapies and mentioned cannabis oil.  He advised that he had not heard of that as a possible therapy and he could not professionally recommend it.[4] He recorded that in October 2019, you also sought a referral for psychiatric assistance, related to your distress about the skin cancers which you believed were causing you to be depressed, leading to you making poor decisions, such as the cultivation of cannabis.

[4]          Dr Lim 6 August 2020, Exhibit D3

19Dr Barth noted that there has been some division between your treaters about the manner in which your skin cancers should be treated, which added to the anxiety you were feeling and feel about this health issue.  You have become, he says, disillusioned about the medical treatment, and that your anxiety and distress cause you to avoid making decisions about your treatment.  You have a long-term interest in alternative therapies, and you explored alternate therapies for your skin cancer.  You told him that you began rubbing cannabis oil on your skin believing this reduced the size of the carcinomas.  You increased your use of the oil and started adding it to your food.  All this was very expensive, so you began growing cannabis to make the oil yourself.

20Dr Barth reports that you told him that once you had been charged for this matter, you ceased to utilise the cannabis oil and that you remain distressed and anxious about your medical condition.

Psychologist’s Assessment

21You were assessed by Dr Mathew Barth, who is a psychologist, in September 2020, over the course of two interviews.  The history given to him indicated that the anxiety and distress which plagued your childhood, continued to affect you in adulthood.  You reported a long history of low mood, feeling empty and of anxiety and stress.  Your mental health deteriorated upon you being diagnosed with BCC, and you reported a 'Marked depression' since then.  Dr Barth noted:[5]

'Perhaps unsurprisingly, he has found it extremely difficult to make the transition to managing his condition and has resorted to more dysfunctional behaviour to compensate.

In addition to Mr Wagener’s persisting depressive symptoms, his sleep has become disturbed and he noted that he experienced episodes of agitation and distress.  On his report, these episodes became both more frequent and more intense due to the progression of his condition.  Regrettably,

Mr Wagener has not sought the assistance of any mental-health professionals for emotional support.

Mr Wagener has reportedly experienced a worsening of his moods after his arrest for these matters.  He told me that his legal matters have exacerbated feelings of self-loathing, sadness and pessimism about his life'.

[5]          Dr Barth, 1 October 2020, Exhibit D6, paragraphs [34]-[36]

22Dr Barth’s diagnosis was, 'Major Depressive Disorder – with anxious distress – recurrent episodes of moderate severity'.[6]  He described in some detail your significant distress, low mood, low self-esteem, and pessimism.  He considered that you are a significant risk of further deterioration in your mental health, and that you need psychological treatment and close support.[7] 

[6]          ibid,  [46]

[7]          ibid, [41]-[46]

23In light of Dr Barth’s opinion, I accept a term of imprisonment would weigh more heavily upon you, than a person not suffering from your mental health issues, and that there is a risk that imprisonment would have a significant negative effect on your mental health.

24I note the more recent brief assessment carried out by the forensic nurse for Mental Health Advice and Response Service, for the CCO assessment.  She considered that you presented with symptoms of depression and anxiety. 

Cannabis Use

25You commenced smoking cannabis in your late 20s, which escalated to daily use.  You told Dr Barth it assisted you to escape your life and reduced your depression and anxiety.  As time went on, however, it had the opposite effect and you became even more depressed.  You told Dr Barth you continue to smoke cannabis, to deal with your emotional distress, although you also reported ceasing to smoke that drug for several weeks, with the aim of becoming abstinent from it.  I was told, in the course of the plea hearing, that you have not smoked cannabis since last year.

26Based on your history, Dr Barth arrived at a diagnosis of 'Cannabis-use disorder' at a severe level.[8]  He reported that you did not have a clear understanding of the risks of drug use on your mental and physical health, and that you had limited insight into what was needed to cease using cannabis.  He, rightly, notes that continued use of cannabis is the major risk factor for you committing further offences and he strongly recommended you engage in drug related counselling, with a focus on education and relapse prevention.[9]

[8]          ibid, [48]

[9]          Ibid, [48]-[51]

27The CCO assessor noted also that you reported being mostly abstinent from using cannabis for the last six months. 

Gravity of the Offending

28Cultivation of cannabis in not less than a commercial quantity is an inherently serious offence, as your barrister properly acknowledged.  The maximum penalty is 25 years imprisonment, and Parliament has made it a Category 2 offence, so that I am required, by the Sentencing Act, to impose a period of imprisonment, other than a sentence of imprisonment combined with a CCO, unless one of the exceptions in the Act is established by you. 

29You grew 134 plants, with a total weight of 213.43 kilograms.  The commercial quantity thresholds are 100 plants or 25 kilograms.  Your cultivation exceeded the number threshold by 34 plants and was around 8.5 times the weight threshold.  Whilst the weight or number of plants is an important factor in assessing the seriousness of the offending, there are other matters which must also be taken into account:

(a)   First, you were a sole operator, not part of a large syndicate;

(b)   Secondly, there is no evidence that you were growing the plants for the purposes of sale or putting the drug into the wider community; and

(c)   Thirdly, I accept that your motivation for growing the cannabis was to use the drug not only to smoke, but also to use as an alternative therapy for your skin cancers.

30I note that your GP recorded you asking about cannabis as an alternative therapy a week before your property was searched.  You provided this explanation to police when interviewed.  This explanation is consistent with your medical history, and your experience of watching your mother suffer from cancer and its treatment.  The fact that using cannabis oil as a topical treatment is not medically accepted, does not detract from that being your subjective, misguided, belief and motivation.

Plea of Guilty  

31You indicated that you would plead guilty to this charge at the committal mention, and in mid-2019, the matter was booked in for a plea hearing at the Latrobe Valley County Court.  When the matter came before the court in October 2019, you had received different legal advice and indicated that you now wished to contest the charge.  At that time, your barrister had only the limited brief that was prepared, in view of the early resolution of the matter.  In mid-2020, during the COVID-19 pandemic, the matter came before me for case management.  The prosecution filed further evidence including numerous photographs and other material. 

32A Sentencing Indication Hearing was conducted before me, and in March 2021, pursuant to s207 of the Criminal Procedure Act 2009, I indicated that if you were to plead guilty to the charge, I would not be likely to impose a sentence of imprisonment that commences immediately.

33It appeared to me that your initial change of plea was based upon legal advice.  Whilst it led to a number of additional hearings leading to the resolution of the matter, you ultimately did decide to plead guilty.  Your plea has utilitarian value, although not to the same extent as if you had maintained your plea from the outset.  That is, however, more than balanced out by the practical benefits that follow from not having the matter proceed as a trial in the present circumstances, where the COVID-19 pandemic has had a significant effect upon the operations of the court.

Remorse

34I accept that you regret your conduct.  In your letter to the court, you said you are embarrassed and ashamed of your actions and horrified by the consequences visited upon your family. 

Character

35It was submitted on your behalf that you were of prior good character, and four references, including one from your mother-in-law, were provided that spoke of your kindness, trustworthiness, love of your family, and your work ethic.  These people referred to your struggles with dealing with your skin cancer and your interest in natural therapies.

36You have relevant, but dated, prior convictions.  In September 1998, you were sentenced for the offences of trafficking, cultivation, possession and using cannabis, to a fine of $1,500 with conviction. 

Physical Health and Imprisonment

37In light of the reports from the doctors involved in treating your skin cancers, I consider that imprisonment would be considerably more onerous for you, than for a person without such health issues.  Whilst I accept that you would receive appropriate medical treatment in custody, I do not anticipate that you would be able to continue to attend the same practitioners you have been consulting.  Furthermore, the frequency of examinations may be compromised, and the likely regular surgeries would be more difficult to endure in a custodial setting.

Section 5(2H)

38Cultivation of cannabis in not less than a commercial quantity, is a Category 2 offence, and, as I have already noted, I am required by the Sentencing Act to impose a period of imprisonment, other than a sentence of imprisonment combined with a CCO, unless one of the exceptions in the Act are established by you. Your counsel relied on the exception set out in s5(2H)(e), that is, that there are substantial and compelling circumstances that are exceptional and rare which justify not imposing a sentence of imprisonment which is not combined with a community corrections order.

39The following matters were relied upon in combination:

(i)Your history of multiple basal cell carcinomas as evidenced by the extensive medical material provided to the court;

(ii)The diagnosis of Major Depressive Disorder (with anxiety);

(iii)The diagnosis of severe cannabis use disorder;

(iv)Your personal background, with particular reference to your young child and supportive family;

(v)The need for you to receive intensive ongoing treatment for your health issues; and

(vi)The adverse effect of incarceration on your health.

40In considering this issue, I am required to regard general deterrence and denunciation of the conduct, as having greater importance than other sentencing considerations.  I must give less weight to your personal circumstances than to matters such as the gravity of the offending.  I must not have regard to an early plea of guilty or your prospects of rehabilitation.  I must also take into account that it is Parliament’s intention that a term of imprisonment with a non-parole period should ordinarily be imposed, and decide whether the cumulative impact of the circumstances of the case would justify not imposing such a sentence.

41The prosecution submitted that the combination of circumstances did not meet the high level required by the Act.  The large amount of cannabis by weight, was noted in particular, and that it was clearly a well-cared for crop.  It was submitted that the claims by you about using the oil and the amount you planned to use were unparticularised and unverified, and that given the very large crop, it was unlikely that you would use it all, 'All of it', as you said.  Furthermore, your planned use of the oil was unsupported by any medical evidence, and that you had now abandoned using cannabis as a treatment. 

42I acknowledge the high bar which is set by the legislation in considering this issue.  In making this assessment, I take into account that whilst the weight of the plants was many multiples of the threshold amount, on the other hand, your motivation for the offending was only to use the cannabis yourself, to smoke, and more importantly, to treat your skin cancer.  Whilst I am required to give less weight to personal circumstances, here, the nature and gravity of offending, is not so powerful as to tip the balance away from exceptional and rare substantial and compelling circumstances.  Your abandonment of using the oil as a treatment does not mean that that was not your motivation at the time.  I have noted earlier your indication that you planned to use very large amounts of the oil on your skin.

43As I said during the plea hearing, I was able to find only a limited number of other cases where the accused had submitted that the use to which the cannabis was put, was for treatment of a physical condition such as cancer.[10]  Each case turns on its own facts, but relevant points of distinction are that you were receiving conventional treatments, you were a sole operator, and your illness is serious and difficult to treat.  The low number of cases of this type, in an offence which is regularly before the courts, supports my view, that your circumstances are exceptional and rare.  Rare and exceptional does not mean unique.

[10]         In the course of the plea I said there were three cases.  In fact, there were five: DPP v Williamson [2019] VCC 615; DPP v Deak [2015] VCC 995; DPP v Cole [2018] VSCA 1788; DPP v Devlin [2016] VCC 1814; and Hendricks v The Queen [2014] VSCA 185

44Taking into account your motivation for the offending, in particular, as well as your ongoing need for frequent assessment and surgery, I consider that the combination of circumstances are 'powerful circumstances of a kind wholly outside what might be described as ‘run of the mill’ factors, typically present in offending of this kind'.[11] I therefore find that the exception created by s5(2H)(e) is enlivened.

[11]         DPP v Hudgson [2016] VSCA 254 [112]; Farmer v The Queen [2020] VSCA 140 [51],

45General deterrence, denunciation, and just punishment are relevant factors, as are your personal circumstances and the need for some specific deterrence, as well as promoting your rehabilitation. 

46The Court of Appeal has made it very clear that even in the case of a relatively serious offence, it may be appropriate to impose a community corrections order. If the legislative requirements of s5(2H) are removed, the sentencing discretion is exercised in the usual way. In your case, I do not think that your offending is so serious that only a sentence of imprisonment is necessary to satisfy the relevant sentencing principles. For the reasons I have already set out, your health condition and the associated motive for the offending are such that, even taking into account the weight of the plants, a term of imprisonment is not the only appropriate disposition.

47On Charge 1, cultivation of cannabis in not less than a commercial quantity, you are sentenced, with conviction, to a community corrections order with the following conditions:

(a)   The period of the order is four years;

(b)   You are to perform 500 hours of unpaid community work;

(c)   You are to undergo assessment, treatment and rehabilitation in respect to your mental health, and drug abuse issues;

(d)   Up to 100 hours of time spent on treatment and rehabilitation can be counted as hours of unpaid community work, pursuant to s48CA of the Sentencing Act;

(e)   You are to be subject to the supervision of a Corrections officer for two years. 

48Mr Wagener, will you consent to the making of that order?  Do you consent to the making of that community corrections order in those terms?

49OFFENDER:  Yes, Your Honour.

50HER HONOUR:  All right.  I have got a draft order here, I would like you to get your client to sign it now, if you would not mind?

51MR BROWN:  Yes, Your Honour.

52HER HONOUR:  Can Mr Wagener please come out of the dock and if you can just come up and take a seat behind Mr Brown.  Can you just double check the conditions?

53MR BROWN:  I will go through the conditions with Mr Wagener. 

54HER HONOUR:  Yes.

55MR BROWN:  Thank you, Your Honour.

56HER HONOUR:  You can just lean on the Bar table if that is easier.  Thank you, if you can just get that back to my associate.  Mr Wagener, I am happy for him just to wait - to sit there.  Thank you.  Mr Wagener, if you could just stand up again for a moment.

57The community corrections order that I have just made can be breached if you do not comply with it in terms of the conditions or if you reoffend during the period of the order.  If you breach the order in any of those ways, you would then come back before me for a contravention hearing, and that would require me to sentence you, not only for the breach, but also again, for the charge which I have just sentenced you upon.  And I should tell you, that the charge of breaching a community corrections order itself can carry a sentence of imprisonment of up to three months, all right?  Have a seat.

58OFFENDER:  Yep.

59HER HONOUR:  The order says that you should report to the relevant Corrections office.  You call beforehand, to make sure whether he needs to make a phone appointment or in person appointment - - -

60[discussion regarding CCO reporting omitted]

61HER HONOUR: All right, thank you. Pursuant to s6AAA Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to 12 months imprisonment with a CCO of two years.  Were there any orders or disposal orders or anything of that nature Ms Birkin?

62MS BIRKIN:  There was a disposal order, Your Honour, for the cannabis, the oil and the cannabis in the Ziploc bags, Your Honour.

63HER HONOUR:  I do not imagine there is any opposition to that?

64MR BROWN:  No, Your Honour.

65HER HONOUR:  No.  All right, well I will make those orders.  Can you make sure that they are sent through to my associate, if they have not already been.

66MS BIRKIN:  They have been e-lodged, but I can email them to Your Honour's associate.

67HER HONOUR:  That would be helpful.  We will get those done after I adjourn.  Is there anything else that I need to raise?

68MS BIRKIN:  No, Your Honour.

69HER HONOUR:  Thank you, Ms Birkin.

70MR BROWN:  No, Your Honour.  As Your Honour pleases.

71HER HONOUR:  Thank you.  All right, the matter is adjourned.  Thank you.

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