Director of Public Prosecutions v Walker

[2014] VCC 1304

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

AT GEELONG
CRIMINAL JURISDICTION

CR-14-00324

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLINTON CHARLES WALKER

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Geelong
DATE OF HEARING:	30 May 2014
DATE OF SENTENCE:	30 May 2014
CASE MAY BE CITED AS:	DPP v Walker
MEDIUM NEUTRAL CITATION:	[2014] VCC 1304

REASONS FOR SENTENCE
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Subject: Cultivate not less than a commercial quantity of cannabis – theft of electricity
Catchwords: Cannabis - cultivation
Legislation Cited:
Cases Cited:
Sentence: 5 years and 6 months imprisonment, with a non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B.D. Nibbs	Ms P. Long
For the Accused	Ms M. O'Brien

1HER HONOUR: 

CHARGES

2Clifton Walker, you have pleaded guilty to one charge of cultivating commercial quantity of cannabis and one charge of theft of electricity.  The maximum penalty for cultivate commercial quantity of cannabis is 25 years; and the maximum penalty for theft of electricity, is ten years.

BACKGROUND

3The prosecutor provided a detailed background to this matter and I will not repeat it all here.  It will suffice to say for the purposes of this sentence that in December 2012, the Victoria Police Drug Task Force commenced an investigation into the sale and distribution of large quantities of hydroponic equipment.

4As a result of the investigation, you and Michael Pickersgill were observed attending at a retail hydroponic outlet in Sunshine, purchasing a significant quantity of hydrponic equipment on various dates and times in early 2013.

5You obtained a commercial lease for a factory situated in Geelong, stating that you wanted to, and planned to, repair custom trailers at that property.  However, in fact, you used this property to house a sophisticated and well maintained hydroponic cannabis crop set up.

6On Friday 8 November 2013, investigators attended at this factory and executed a warrant.  They found that the hydroponic cannabis set up encompassed approximately two-thirds of the factory floor space.  There were four separate rooms with separate doors made from heavy duty chipboard.  The structure was insulated on the roof and walls and had a number of permanent fittings, such as high powered lights, power transformers, charcoal filters, watering systems, air filtration units and ducting.

7A total of 86 cannabis plants were seized with a combined weight of 205 kilograms.  Investigators also located a large quantity of hydroponic equipment, the approximate value of which was $41,460.

8With respect to the charge of theft of electricity, during the search Powercor investigators attended at the factory and located an electrical bypass.  As a result of the theft of electricity, the financial loss suffered by the power company has been agreed at being approximately $50,000.

9On the day the police attended at the factory at approximately 3.34 pm, you drove past.  When the police directed you to stop, you accelerated and then fled the scene.  Optus call charge records indicate that at 3.35 pm, you made a voice call to Michael Pickersgill which lasted for some 17 seconds.

10At approximately 4.15, you attended at the Corio Police Station and you were arrested a short time after. 

11On 8 November 2013, investigators attended at your home address in Norlane and executed a search warrant.  They found $2,000 in cash in $100 denominations.  Two Barry Plant rental receipts for the factory, and a laptop computer.

12On 8 November 2013, you were interviewed at the Corio Police Station and made full admissions to the offence of cultivating a commercial quantity of cannabis.  You claimed that you were solely responsible for the hydroponic cannabis crop at the factory and that you had undertaken every aspect of construction of the hydroponic set-up on your own without any assistance.  This included intricate work related to the electrical bypass, the construction of the internal sub-structure, and all the maintenance of the plant and material.

13You also said that you had been in northern New South Wales in the weeks prior to your arrest and that during this time neither person had access to the factory.

14You stated that your reason for cultivating the cannabis crop was that you were hoping to grow 40,000 to 50,000 dollars worth of cannabis to help you establish a trailer business, and you said that you had accumulated the hydroponic equipment over time from a store in Sunshine.

15You claimed that after driving past the factory on 8 November 2013, you had not spoken to anyone before handing yourself into police, however the Optus call charge records indicate that at 3.35 you made that voice call to Michael Pickersgill which lasted for some 17 seconds.

PERSONAL DETAILS

16Your counsel provided the court with your personal details.  Further details were contained in two reports from Chris McKay, a clinical psychologist, whom you were referred to by your general practitioner for psychological therapy.

17You were born in Moree in rural New South Wales, on the 8th of April 1969.  You have a younger half brother and sister.  Your family moved to Brisbane and your parents separated.  Your mother re-partnered and you moved back to Moree to live with your grandparents when you were about nine owing to a conflict with her third husband.

18You lived with your grandparents until you left home aged 16.  You then moved to Sydney for some 18 months and subsequently to Geelong.

19After leaving school after Year 10, you had an apprenticeship as a toolmaker for some two years before that scheme was phased out.  You then worked in a variety of jobs, including maintenance work, lawnmowing, in a bakery, as a crowd controller, and in the Army Reserves.

20In November 1991 you were employed as a full-time soldier and about to be posted to Timor when you injured your back during a cross-country training run.  You blame this injury and the long-term pain you have suffered since then, for most of your problems.

21You have two sons from a ten year relationship with the boys' mother, whom you married after you were injured.  You blame your injury, at least in part, for your marriage break-up in approximately 2003 when you moved back, at least initially to live with your parents.

22In his report of 13 February 2007, Mr McKay diagnosed you as suffering from a chronic major depressive disorder, largely due to chronic pain following the back injury in November 1999.

23In his report of the 15th of the 9th 2011, he said, "Throughout Mr Walker's treatment phase at this practice, he consistently presented as a gentle-able and likeable man who did not demonstrate aggressive tendencies and who appeared to struggle on a daily basis with chronic pain, anxiety and depression, seemingly strongly associated with his Army injury and the impact of that on his employment potential."

24You underwent a vocational training course for conservation and land management, but left after six months as you were unable to cope with the physical demands of the course.

25In early 2009, you obtained work with Alert Security in Geelong but left after only four months as you found the physical demands too great.

26In his report dated 30 April 2014, Dr Chris Yeoman, your GP, referred to your pursuit of treatment in order to control pain.  He said that it had been an ongoing struggle for you with many attempted treatments with various specialists and specialities.

27In his reported dated 29 July 2009, Max Werne, consultant orthopaedic surgeon, outlined the history of your injury and the treatment you'd received.  Included a fusion at the affected level of your spine in 2005, carried out by Mr Damian Jansen, neurosurgeon.  Unfortunately, however, this procedure gave you little relief.

28On 14 June 2005, Mr Rob Carey, another orthopaedic surgeon, performed a revision fusion procedure on your back at St Vincent's Private Hospital.  Although there was some reduction in your back pain, it still continued to cause you distress and you were treated with Mersynol Forte and Oxycontin.

29You have five prior court appearances.  The most relevant for the purposes of this sentence is your conviction at Moree Court on the 20th of the 9th 2011, for supply cannabis a commercial quantity, for which you received an 18 month sentence with a non-parole period of 12 months.

MITIGATING CIRCUMSTANCES

30In her plea on your behalf, your counsel referred to the following mitigating circumstances.  You had handed yourself into the police on the 8th of November 2013, and made admissions. 

31You had entered a plea of guilty at the earliest opportunity.  You had good prospects for rehabilitation with support from family and friends, including your former wife and sons and girlfriend, Heidi Bourke-Watson.

32You had a good work ethic.  You had demonstrated an application to self-improvement, whilst in custody by doing a number of courses.  You would suffer in prison due to your chronic back injury.  You had done an alcohol and drug course in gaol and after doing these courses you had realised how bad drugs were and what the negative impact was on the community.

33The prosecutor, on the other hand, submitted that although you had handed yourself to the police, you had failed to stop when they observed you outside the factory.  In addition, that while you had made admissions as to your involvement in the enterprise, you had not admitted to anyone else being involved.

SENTENCING REMARKS

34In sentencing you, I accept that since your injury in November 1999, you have suffered from pain and chronic depression and that you have been frustrated by your inability to hold down a permanent job.

35I have read the six references tendered on your behalf, and it is apparent from these references that your injuries has caused you ongoing pain and suffering over the years, physically, emotionally and financially.

36Most importantly I accept that you regret your actions and that by taking the drug course in prison you now have an awareness of the devastating impact drugs have on our community.  I accept all the mitigating factors put forward by your counsel and I have given you a discount for your plea of guilty and taken into account that prison will be more onerous for you due to your back.

37However, in sentencing you, I must also take into account both general and specific deterrence, and the great harm that drugs do to our community.  This was not a small hydroponic set-up, but one of considerable size and sophistication, and it involved considerable cash outlay to set it up.

38It is unlikely from the sophistication and size of the set-up, and also from the observations made by the investigators, that you were alone in this enterprise.

39As you have been sentenced to a term of imprisonment for a previous drug offence, you are to be sentenced as a serious drug offender and this will be entered on the records.

40When sentencing you, in determining the length of your sentence, I must regard the protection of the community as the principal purpose for the sentence.  In doing this I may impose a sentence longer than that which would be justified by proportionality, however, I do not consider that this is necessary in this case and the prosecution has not submitted otherwise.

SENTENCE

41Would you please stand up.

42On the charge of cultivate cannabis in a quantity not less than a commercial quantity applicable to that plant, you are sentenced to five years' and three months'.

43On the charge of theft of electricity, you are sentenced to nine months.

44I cumulate three months of the sentence of Count 2 on Count 1.  The head sentence is therefore a sentence of five years' and six months'.  I fix a non-parole period of three years.

45But for your plea of guilty you would have been sentenced to eight years', to serve five.

46I make orders sought by the prosecution in relation to the obtaining of a sample.  I have signed those orders, they are by consent, and they are in the interests of the community and the seriousness of the offending warrants the making of those orders.

47There's also a forfeiture order that was sought by the prosecution.  I will make that order as well.  Are there any other orders sought?

48MR NIBBS:  There was a disposal order as well.

49HER HONOUR:  And the disposal order.  Have I signed that disposal order?

50MR NIBBS:  I do not believe so.

51HIS HONOUR:  That has not been produced.

52MR NIBBS:  No, it is in accordance with the exhibits that were seized, but it needs to be physically typed, and that is in the process of being typed.

53HER HONOUR:  That can be handed to me, I can make that in Chambers, I do not believe there is any issue with that.  Are there any other matters arising from this?

54MR NIBBS:  PSD, Your Honour.

55HER HONOUR:  Pre-sentence detention?

56MR NIBBS:  Yes, Your Honour.  It is 203 days, not including today.

57MS O'BRIEN:  I thought we agreed it was the even 200 on Monday, Your Honour.

58MR NIBBS:  That was inclusive of the day.

59HER HONOUR:  Which makes it ‑ ‑ ‑

60MS O'BRIEN:  204 today.

61MR NIBBS:  204.

62HER HONOUR:  Pre-sentence detention will be marked on the record as 204 days as already served, reckoned as already served.

63(Prisoner removed.)

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