Director of Public Prosecutions v Wallace
[2023] VCC 525
•31 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 22-01829
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN WALLACE |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 March 2023 | |
DATE OF SENTENCE: | 31 March 2023 | |
CASE MAY BE CITED AS: | DPP v Wallace | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 525 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Cultivation of narcotic plants in a commercial quantity – Theft – Breaching a prescribed term or condition of parole without reasonable excuse – Principle of totality considered in context of accused serving out remainder of a previously imposed term of imprisonment – Guarded prospects of rehabilitation – COVID-19 pandemic.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 ss 72A, 81; Crimes Act 1958 ss 74(1), 465; Corrections Act 1986 s 78A; Sentencing Act 1991 ss 5(2H), 6AAA, 6D, 6E, 16(3B), 16(3BA).
Cases Cited:Director of Public Prosecutions v Weybury [2018] VSCA 120; Worboyes v The Queen [2021] VSCA 169; Director of Public Prosecutions v Bowen (2021) 65 VR 385; McCartney v The Queen (2012) 38 VR 1; Waugh v The Queen (2013) 38 VR 66.
Sentence: Imprisonment for a period of 3 years and 3 months with a non parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Fallar | Office of Public Prosecutions |
| For the Accused | Ms S Joosten (Plea) Mr D De Witt (Sentence) | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Steven Wallace, you have pleaded guilty to the following charges:
(a) one rolled up charge of cultivation of narcotic plants in a commercial quantity contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs, Poisons and Controlled Substances Act’), which carries a maximum penalty of 25 years imprisonment (Charge 1); and
(b) one charge of theft contrary to s 74(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 2).
2You have also pleaded guilty to the related summary offence of breaching a prescribed term or condition of parole without reasonable excuse, contrary to s 78A of the Corrections Act 1986, which carries a maximum penalty of 3 months imprisonment (Summary Charge 4).
3You have also admitted your prior criminal history.
Circumstances of offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5You were 58 years old at the time of offending and resided at an address in Docklands. You have one co-accused in this matter, Nicholas Limbourne who was the director of Limbourne Group Pty Ltd, encompassing companies including Apex Waste Management, Apex Bin Hire and NJ Limbourne Diesel Mechanic. You worked for Mr Limbourne as a truck driver delivering skip bins.
6Apex Bin Hire and NJ Limbourne Diesel Mechanic have previously operated from 19 Central Avenue, Sunshine, however, Apex Waste Management and Apex Bin Hire now operate at 69 Bunting Road, Brooklyn.
7On 19 April 2022, the Brimbank Divisional Response Unit of Victoria Police commenced an investigation into the cultivation of cannabis from a factory located at 19 Central Avenue, Sunshine, following members of Victoria Police smelling a pungent smell of cannabis around the factory.
8On 3 May 2022, police executed a search warrant pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act at 19 Central Avenue, Sunshine.
9On inspecting the premises, police located four refrigerated semi-trailers parked inside the factory. In each of the four semi-trailers, police located a hydroponic gardening system equipped with artificial lighting suspended from the ceiling, a self-maintained watering system and a charcoal filter used to eliminate the odour of cannabis. Two trailers appeared to have been previously harvested. The remaining two trailers contained cannabis plants.
10The factory is a small tin shed located on the corner of Second Avenue and Central Avenue, Sunshine. Inside the factory, a small office area occupied approximately a quarter of the floor space. The four refrigerated semi-trailers were positioned in the factory in such a way that there was very little remaining space. A common area with several chairs and rubbish bags were observed to be positioned between a semitrailer and the rear of the office area.
11Inside trailer one, police located a hydroponic gardening system equipped with artificial lighting suspended from the ceiling, a self-maintained watering system and a charcoal filter used to eliminate the odour of cannabis. The semi-trailer was growing a total of 30 cannabis plants, including:
(a) six small plants weighing a total of 2 grams;
(b) 14 plants weighing a total of 20.86 kilograms; and
(c) 10 plants weighing a total of 26.56 kilograms.
12Inside trailer two, police located a hydroponic gardening system equipped with artificial lighting suspended from the ceiling, a self-maintained watering system and a charcoal filter used to eliminate the odour of cannabis. The semi-trailer was growing 19 cannabis plants weighing a total of 20.64 kilograms.
13Inside trailer three, police located a hydroponic gardening system equipped with artificial lighting suspended from the ceiling, a self-maintained watering system and a charcoal filter used to eliminate the odour of cannabis. The semi-trailer was growing five cannabis plants weighing a total of 175.6 grams.
14Inside trailer four, police located a hydroponic gardening system equipped with artificial lighting suspended from the ceiling, a self-maintained watering system and a charcoal filter used to eliminate the odour of cannabis. The semi-trailer was growing 16 cannabis plants weighing a total of 1.43 kilograms.
15Loose Green Vegetable Matter (‘GVM’) was located inside the office area weighing 79.4 grams.
16Loose GVM weighing 59.8 grams was located in a pot beside a semi-trailer where a common area had been set up. Also located in this area were two branched cannabis stems weighing a total of 495.5 grams.
17The total weight of the cannabis plants and loose GVM located and seized was 70.30 kilograms. A total of 70 cannabis plants were located and seized.
18In the common area, a rubbish bag was located. Inside the rubbish bag a large amount of previously trimmed cannabis leaf was located along with Coke cans, beer bottles, blue disposable plastic gloves and a plastic drink container.
19Four 20 litre drums of nutrients used to grow plants were also located in the common area.
20Personal and business mail addressed to Mr Limbourne, his company and his partner were observed in the office area.
21Upon further investigation, a Vehicle Identification Plate (‘VIN’) was located on one of the semi-trailers at 19 Central Avenue, Sunshine. The VIN was associated with a 2002 Maxi trans semi-trailer registration 0521S1. The 2002 Maxi trans semi-trailer is currently registered to C&B Ashcroft Transport Pty Ltd.
22The current owner of C&B Ashcroft Transport Pty Ltd is Shane Walters, who stated that the semi-trailer was disposed of during 2021 due to the semi-trailer needing significant repairs. Mr Walters stated the semi-trailer was sold to a ‘Steve’ who utilised the mobile number ******3071. ‘Steve’ purchased the semi-trailer with cash and stated it was for spare parts.
23The mobile number ******3071 was subsequently linked to the address of 12 Byron Street, Williamstown North, where there was display signage for ‘Wallace Autocare’ with the contact number listed as ******3071.
24Mario Varone, a licensed electrical inspector, attended 19 Central Avenue, Sunshine and removed an illegal electrical bypass which was wired into the electrical system. The illegal electrical bypass installed resulted in the electrical meter giving a false reading of the electricity used. This amount of electricity usage was not recorded by the power meter and was therefore stolen. The illegal electrical bypass was set up in such a way that a portion of power was being paid for by Limbourne Group Pty Ltd.
25A Revenue Protection Investigator from Powercor, Darryl Hamilton, calculated the energy consumption during the period of cultivation, being 23 February 2022 to 3 May 2022. The unmetered energy consumption totalled 40,175 kWhs.
26CCTV footage was obtained from 27-29 Second Avenue, Sunshine depicting 19 Central Avenue, Sunshine. The footage depicted you and Mr Limbourne frequenting the factory at 19 Central Avenue, Sunshine, in the days prior to the search warrant being executed.
27Botanist Emily Sowter from the Victoria Police Forensic Services Centre attended 19 Central Avenue, Sunshine and examined the cannabis plants. The total weight of the cannabis seized from 19 Central Avenue, Sunshine is 70.3 kilograms.
28On 25 May 2022, police executed a search warrant pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act at 12 Byron Street, Williamstown North.
29On inspecting the premises, police located two upstairs storage rooms converted into a hydroponic gardening system equipped with artificial lighting suspended from the ceiling, a self-maintained watering system and a charcoal filter used to eliminate the odour of cannabis.
30The first room was growing six large cannabis plants while the second room contained seven cannabis plants.
31The factory is a small brick building that had previously operated as a business providing vehicle mechanic services.
32Inside the factory several vehicles were observed to be on hoists along with a Hino hook truck registered under your name and two business vehicles belonging to Mr Limbourne.
33Personal and business mail addressed to you, and to Mr Limbourne, his company, and his partner were observed in the office area.
34Jason Lyttle, a licensed electrical inspector, attended 12 Byron Street, Williamstown North and observed an illegal electrical bypass which was wired into the electrical system. The illegal electrical bypass installed resulted in the electrical meter giving a false reading of the electricity used. The illegal electrical bypass installed was not able to be accessed and removed.
35Botanist Madeline Brenker from the Victoria Police Forensic Services Centre analysed the cannabis on Friday the 11 May 2022. The total weight of the cannabis seized from 12 Byron Street, Williamstown North is 54.4 kilograms.
36On 1 June 2022, police attended at your residential address in Docklands. You were arrested and conveyed to Sunshine Police Station where a DVD Record of Interview was conducted in relation to cultivating a commercial quantity of cannabis.
37During the recorded interview, you explained the following:
(a) you initially stated ‘no comment’ when asked about 19 Central Avenue, Sunshine;
(b) when shown CCTV stills of 19 Central Avenue, Sunshine, you admitted the vehicles observed at the factory was yours;
(c) in relation to a female observed at the factory and whether she was involved in the cultivation, you stated ‘No rather not say, she is just a worker’, ‘She does my books’, ‘She works for me and does sales’, and ‘I rang her to meet me there’;
(d) you admitted to cultivating cannabis at 12 Byron Street, Williamstown North;
(e) you stated there was 13 cannabis plants growing upstairs that were grown by you and they were approximately 8 weeks old;
(f) you stated you built the rooms for interstate truck drivers;
(g) in relation to the cannabis exceeding a commercial quantity, you stated ‘no way is it that much’ when told the weight exceeded 50 kilograms;
(h) you stated you aimed for ‘a pound a tree’;
(i) you stated the reason you cultivate as ‘I got in some trouble for some bills, that’s why I did it’; and
(j) you stated ‘Nick was involved but he was lazy and left his shit laying around’.
38On 1 June 2022, investigators executed a Search Warrant pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act at the residential premises of 158 West Street, Hadfield.
39During the execution of the search warrant at 158 West Street, Hadfield police seized a number of items including loose green vegetable matter, a Hafvo Woodmaster Machine, and a Progrow Machine. The two machines are used to remove cannabis leaf material from cannabis plants.
40On 1 June 2022, investigators executed a Search Warrant pursuant to s 465 of the Crimes Act at your Docklands residence. Police seized an iPhone XS, which was located hidden under a coffee table and contained a Victorian Drivers Licence, Medicare and NAB debit card in your name.
41An extraction of the mobile data from the iPhone XS revealed multiple text messages between you and Mr Limbourne relating to the cultivation of cannabis at Central Avenue and Byron Street.
Nature and gravity of the offending
42As cultivating a commercial quantity of cannabis carries a maximum penalty of 25 years imprisonment, it is by its nature, a serious offence. It is also classified as a Category 2 offence requiring that a custodial sentence be imposed unless an exception pursuant to s 5(2H) of the Sentencing Act 1991 (‘Sentencing Act’) can be established.
43In this instance, the total number of plants seized in two locations was 83 plants. The total weight of cannabis found in relation to both locations was 124.7 kilograms. A commercial quantity of cannabis is 25 kilograms or 100 plants. Therefore, while the number of plants is below the commercial threshold, the weight of the cannabis is approximately five times the commercial quantity.
44Further, when an assessment is undertaken in relation to the nature of the cultivation across both properties, it is clear that in each case, you were involved in a sophisticated commercial hydroponic cannabis operation. Further, each property had an electrical bypass system, installed in order to avoid detection (although I note that Charge 2 only relates to the Sunshine crop).
45Ms Joosten, who appeared at the plea on your behalf, submitted that in the circumstances your offending falls in the mid-range of seriousness. Ms Fallar, who appeared on behalf of the Director of Public Prosecutions, submitted that the offending falls in the mid to high range. While such terms are submitted in order to assist the court, as was noted by the Court of Appeal in Director of Public Prosecutions v Weybury,[1] such terms may be problematic when assessing where offending sits within a range. What can be said is that while the amount of cannabis and the nature of the cultivation may be considered to be a relatively serious example of the offence, the seriousness of your offending is heightened by the fact that you committed this offence whilst on parole for offending of a similar, but more serious nature.
[1] DPP v Weybury [2018] VSCA 120, [54].
Personal circumstances
46You are now 59 years of age. You were raised in East Keilor alongside your three brothers. Your father worked in an ordinance factory and your mother was a full-time homemaker. Throughout your teenage years, two of your brothers struggled with drug addiction, and this caused some strain in the family. In 1992, one of your brothers, David, died by suicide.
47Your father was treated for cancer from 1982, when you were 19 years old. His cancer returned ten years later, in 1992, shortly after the death of your brother. Your father then passed away within months of the cancer returning. Your mother passed away more recently in 2019, when you were serving a previous sentence.
48When you were 19 years old, you met your first long term partner and you were together for about five years. You have an adult daughter from that relationship who you are not currently in contact with, although you remain in touch with her.
49You later met Christine Wallace, who you married in 1988 and with whom you have two sons. You separated from Ms Wallace in 2014 after you were arrested and remanded for previous offending.
50Your daughter was residing with you and Ms Wallace in 2013 when her 18 month old daughter, your granddaughter, tragically drowned in the swimming pool. Following your granddaughter’s death, your relationship with your daughter became strained and you lost contact with her and other family members. While serving a prison sentence for prior offending, your daughter filed a lawsuit against you in relation to the drowning. That matter remains unsettled at this stage. Prior to this current offending, you had agreed to pay your daughter compensation. You have stated that this current offending was motivated by a need to obtain money for legal fees for the lawsuit and to pay your daughter.
51After being remanded in relation to this current offending, you have resumed a relationship with your children and now have an amicable relationship with your daughter and your ex-wife.
52While serving the aforementioned prior prison sentence, you rekindled a romantic relationship with your current partner, who remains supportive of you and has spoken to you regularly during your time on remand.
53You have a strong employment record despite your offending and the time you have spent in custody. You left school after Year 9 to pursue work opportunities, working in the transport industry. This included working with a tow-truck company which progressed to mechanical work. You soon became proficient in servicing trucks and diesel engines, and in 1980 relocated to the Northern Territory to work at a uranium mine, operating earth-moving equipment and other heavy machinery.
54You returned to Victoria in 1982 following your father’s cancer diagnosis and obtained further work in the earth moving industry. In 1987, you started your own transport business. At the time when you were in remanded in 2014 in relation to prior offending, you employed 22 people and controlled several vehicles.
55While serving your previous sentence, you worked in a range of areas including in metal work, as a billet and as a spray painter. You also held the role of a unit mentor for prisoners with disabilities and brain injuries.
56You were granted parole in 2020 and obtained a job in warehousing for a milk manufacturer. You worked in that role for a year before being made redundant in mid-2021. This was during the COVID-19 pandemic and you struggled to find another job. In about September 2021, you commenced working for your co-accused Mr Limbourne as a truck driver and mechanic.
57Since being remanded on this offending, you have been working in a factory setting. Despite having diabetes, you remain in good health and manage your condition well. In 2014, immediately after being remanded, you were diagnosed with bladder cancer, but you have since undergone successful treatment and are now in remission.
58I note you do not currently have any mental health diagnoses and do not have any issues, past or present, with drugs and alcohol.
59You have a relevant but limited prior criminal history. The only Victorian prior matter is the matter for which you were on parole when this current offending was committed. You pleaded guilty to trafficking in a large commercial quantity of cannabis and theft of electricity. The offending related to cannabis crops in a number of factory properties. You were sentenced on that matter in 2015 to a sentence of 9 years with a non parole period of 6 years. You otherwise have very minor matters in other states dating back many years.
60A reference was tendered from a close friend and ex-employee of yours, Kylie Eaton. Ms Eaton speaks of your otherwise good character and how you gave her an opportunity to work for you when she was struggling to support a young family.
Sentencing considerations
61I first take into account your plea of guilty. The matter proceeded to this court by way of straight hand-up brief and no witnesses have been cross-examined. As such your plea has saved significant court time and expense and therefore has facilitated the course of justice. The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[2]
[2] Worboyes v The Queen [2021] VSCA 169, [39].
62You do not have any issues to contend with such as drugs or alcohol, and at 59 years of age with a limited prior criminal history on one view, your prospects of rehabilitation could be assessed positively. However, you committed this offending whilst on parole for similar serious offending, and that fact alone casts a shadow over your prospects of rehabilitation. In the circumstances your prospects of rehabilitation can only be assessed as guarded.
63Deterrence, both general and specific, and denunciation of your conduct are relevant sentencing considerations. Others must know that if they contemplate cultivating cannabis at this level, serious consequences will follow. Further, in the circumstances where your offending occurred whilst on parole for similar conduct, specific deterrence must take a prominent role in the sentencing calculus.
64You fall to be sentenced as a serious drug offender on Charge 1. In those circumstances, pursuant to s 6D(a) of the Sentencing Act, the Court must regard protection of the community as the principle sentencing purpose and may order a disproportionate sentence pursuant to s 6D(b). Further, that the presumption of concurrency is reversed by s 6E. As to s 6E, given the application of s 16(3B) (which I will address below), cumulation is presumed in relation to Charge 1, unless exceptional circumstances are able to be established. The prosecution submits that a disproportionate sentence should be imposed. In my view, while I take these provisions into account, they must be balanced with other relevant sentencing considerations, including the principle of totality.
65The primary submission made on your behalf was in relation to totality. After being remanded on these offences, your parole was cancelled and you are therefore now serving the remainder of the 2015 sentence. I was informed at the plea hearing that your current earliest release date is 20 May 2025; thus, you have 2 years and 11 months remaining on the original sentence.
66As your offending in this instance was committed while you were on parole, s 16(3B) of the Sentencing Act applies. Section 16(3B) requires that every term of imprisonment imposed on a person for an offence committed under a parole order must, unless because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment required to be served on cancellation of parole. In this case no exceptional circumstances have been identified to displace the presumption of cumulation. Further, in relation to the related summary offence, which is an offence against s 78A of the Corrections Act 1986, s 16(3BA) also requires that any term of imprisonment imposed in relation to a breach of s 78A, must be served cumulatively on any period of imprisonment required to be served on cancellation of parole and on any period of imprisonment imposed for an offence committed on parole. Again, exceptional circumstances must be established to displace these presumptions.
67The application of the principle of totality in the particular circumstances that present here, was dealt with in the recent decision of Director of Public Prosecutions v Bowen.[3] That is, cases where the offending before the sentencing court breached the parole which the offender was undergoing at the time, resulting in a cancellation of parole and a return to custody.[4] The Court departed from its previous decisions of McCartney v The Queen[5] and Waugh v The Queen,[6] where regard could only be given to the reclaimed period when applying the principle of totality, holding that the courts need to consider the totality of both sentences.
[3] (2021) 65 VR 385.
[4] Ibid [1]-[2].
[5] (2012) 38 VR 1.
[6] (2013) 38 VR 66.
68In Bowen the Court went on to say:
The principle of totality is, essentially, a principle of proportionality. Put another way, totality is a particular expression of the foundational sentencing principle that a sentence should be proportionate to the criminal conduct for which it is imposed.In the ordinary case where sentence is to be imposed for multiple offences, the principle of totality requires the court to ask itself whether the proposed total effective sentence is proportionate to the aggregate criminality involved in all of the offending.
In a case like the present, where a breach of parole is involved, totality requires the sentencing judge to consider two sentences: the sentence to be imposed for the breach offending and the original sentence imposed for the prior offending. The court needs to satisfy itself that the combined effect of those two sentences will not be disproportionate to the aggregate criminality involved in the breach offending and the prior offending.[7]
[7] Bowen [7]-[8].
69The principles enunciated in Bowen clearly have direct application in this instance.
70Finally, I take into account that while prisons have begun to revert to normal operations following the restricted regime as a result of the pandemic, some services remain limited and prisoners may be required to face periods of isolation or quarantine.
Sentence
71Mr Wallace, will you please stand.
72Steven Damien Wallace, on Charge 1, cultivation of narcotic plants in a commercial quantity, you are convicted and sentenced to 3 years imprisonment. On Charge 2 theft, you are convicted and sentenced to 6 months imprisonment. On related Summary Charge 4, breach a prescribed term or condition of parole, you are convicted and sentenced to 1 month imprisonment.
73I direct that 2 months of the sentence on Charge 2 be served cumulatively on the sentence imposed on Charge 1. Further, as noted above, pursuant to s 16(3BA) of the Sentencing Act, the sentence imposed on related Summary Charge 4 must be served cumulatively. Thus, the total effective sentence will be 3 years and 3 months. I direct that you serve 2 years before becoming eligible for parole. As you are serving the remaining period of your previous sentence, the intention is that the non parole period I have just set will commence upon you completing that sentence.
74Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 4 years and 6 months imprisonment with a non-parole period of 3 years.
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