Director of Public Prosecutions v West

[2015] VCC 1167

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00161

DIRECTOR OF PUBLIC PROSECUTIONS

V

JINKY  PARRAZO WEST

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2015
DATE OF SENTENCE:	24 August 2015
CASE MAY BE CITED AS:	DPP v West
MEDIUM NEUTRAL CITATION:	[2015] VCC 1167

REASONS FOR SENTENCE
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Subject: Criminal Law - sentence       

Catchwords: Plea of guilty to one charge of cultivating a narcotic plant in a commercial quantity – crop-sitter in own home – home now subject to confiscation order - accused suffering depression and desperate for funds after surgery and resulting inability to work – Verdins – very good prospects for rehabilitation already demonstrated – CCO provided adequate punishment and deterrence in circumstances. 

Cases Cited:Verdins v R [2007] VSCA 102, Boulton v R [2014] VSCA 342

Sentence: 3 year CCO                       ---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. A. Godleman	OPP
For the Accused	Ms M Mykytowyz Ms. S. Gaunt (for sentence)	Valos Black

HER HONOUR:

1Jinky Parrazo West, you have pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity between 1 July and 1 October 2014.  This is a serious charge for which the maximum penalty is 25 years imprisonment. 

2The circumstances were that you agreed to allow a man whom you knew as “Steave”, to grow a marijuana crop in your house, in return for a monthly payment of $5000.  You took on the role of a crop sitter.  You did this because you were badly in need of money as you had not worked for some time following surgery some months earlier.  Your boyfriend at the time, Chris Antic, had suggested this plan and put you in touch with “Steave” and an associate of his. 

3Under this agreement, 16 plants were installed in the three bedrooms of the house under shrouds and lights connected to electrical transformers.  Watering systems and fans were installed and the walls of the rooms were lined.  An electrical bypass had been installed so that the power supply was not recorded through the meter.  Your role was to monitor the temperature gauge and to clean up empty chemical bottles, but generally you did not water the plants and you only did other tasks when requested by text message.  Steave and his accomplice had their own set of keys to the house and you would generally leave the house when they came. 

4The arrangement was to last for three months, to be finalised by Christmas as you had cousins coming to stay.  You received two payments of $5000 each and used the money to pay bills.  On 1 October 2014, Sheriff's officers from the Department of Justice went to your home to execute a warrant of possession because you had defaulted on the mortgage.  You escorted them into the house to collect some of your belongings before being evicted and they observed that duct tape was being used to seal off a doorway leading to the bedrooms.  You told them that the bedrooms contained marijuana and the officers immediately called the police.  When the police went to the house, they found the plants as described, which were one metre high.  You told the police how the cultivation had occurred.

5On analysis the plants were found to be cannabis weighing a total of 63.55 kilograms.  I note that an additional small plant weighing 6.3 grams was found in the bathroom.  The weight is more than twice the amount defined as a commercial quantity which is 25 kilograms or 100 plants as the case may be.

6You were arrested and you made full admissions as well as offering assistance to the police in the form of descriptions of the men who organised the crop and their mobile telephone numbers, and descriptions of others of whom you had some knowledge.  This information did not lead to anyone being charged, but as a matter of public policy, such readiness to assist deserves credit and should be reflected in the sentence imposed.  I take it into account as a mitigating factor in this case.  Indeed, there are a number of mitigating factors which call for considerable leniency such as to make a prison sentence unwarranted in this case. 

7An important consideration is your psychological state at the time of the offending.  You were aged 36 and you have no prior convictions, having been a law-abiding and contributing member of society until this time.  You grew up in Sydney, the only child of parents whose dysfunctional relationship was the foundation for a childhood marked by tension and emotional difficulties.  You have remained distant from your mother in particular.  You completed Year 12 but had little self-confidence. 

8You had a series of menial jobs and uncompleted TAFE courses until you obtained office work with companies contracted to Telstra which offered better opportunities.  Your work with one of these companies enabled you to move to Melbourne in 2005, but you were made redundant in 2008.  Meanwhile you had commenced a course with the National Dog Trainers' Federation, which you did not complete because of your work commitments but which equipped you to start your own dog grooming business in 2008, paying $60,000 for the franchise.  You operated the business successfully until 2013 and paid your weekly mortgage payments of about $275.  You had bought a house in 2006 using a deposit of $50,000 provided by your parents. 

9In August, 2013, you were diagnosed with a Bartholin's cyst, a gynaecological condition which required surgery and unfortunately, your recovery took much longer than would usually be expected.  You were in a lot of pain and had to attend the doctor almost daily for several weeks.  You were unable to work and consequently, lost the business.  By May 2014, you had defaulted on your mortgage and were behind with your car payments and had other bills to pay, such as vet bills for one of your three dogs. 

10In August 2014, during the period of the offending, you learned of the death by suicide of your closest friend in Sydney.  Since February 2014, you had been seeing a psychologist for treatment in relation to depression and anxiety which you believe you had suffered since your secondary school days.  Having tried using prescribed medication when diagnosed several years earlier, you preferred not to continue with it, as you did not like the side-effects of causing dullness.  You have used cannabis periodically since you were aged 20, smoking up to a gram a day. 

11It was in this context of depression, financial desperation and a dysfunctional relationship with Mr Antic, that you agreed to the cultivation in your house, even though you knew it was wrong.  Accordingly, the principles in the case of Verdin's apply in this case because your criminal culpability is reduced somewhat by your depressive state.  It follows that the sentence I impose should be sensibly moderated to reflect that fact.  I also take into account pursuant to the principles in Verdin's, the likely worsening effect on your mental state which a term of imprisonment would cause. 

12After being released on bail, you stayed at a friend's house and later moved to a semi-rural setting, where you now pay rent to the owner of the house and have made friends with local people. In December, you obtained work as a dog groomer, working five days a week. That income has enabled you to consolidate your debts through a company with the result that you now pay $100 a week towards a total sum to be discharged, of $26,000. Your house is subject to a confiscation order under the Confiscation Act 1997. Initially you opposed the making of that order, but later withdrew your application for relief. It is settled law that forfeiture of a lawfully acquired property has a punitive or deterrent effect and is regarded as a mitigating factor since the offender is placed in a worse position than before the offence. The residual equity automatically forfeited was $28,520.89. For seven years you had paid the mortgage payments of $275 a week amounting to approximately $100,000.

13While it is true that you were already facing the loss of your house through defaulting on the mortgage, the fact is that it was forfeited by means of confiscation rather than forced sale and I take that into account as a mitigating factor. 

14You pleaded guilty at an early stage and were very cooperative with the police.  You had admitted to the Sheriff's officers initially that the rooms contained cannabis plants, and have never sought to avoid responsibility. 

15Whilst your counsel has urged me to impose a Community Corrections Order, the prosecution position is that a term of imprisonment is warranted as the crime is a serious one and usually attracts a prison term.  However, leniency is due in cases such as yours, a first time offender whose excellent prospects for rehabilitation have already been demonstrated by the steps you have taken to bring your life back under control. 

16Notwithstanding the need for leniency, the need for general deterrence in relation to crop sitting warrants a punitive sentence.  The decision in the case of Boulton has established that the punitive characteristics of a Community Corrections Order may be adequate in many cases of serious crime, to provide for the requisite purposes of sentencing.  It has the potential to be what the Court of Appeal described as highly punitive and capable of deterring others and in terms of specific deterrence, a powerful disincentive for offending. 

17I am satisfied that appropriate and just punishment will be furnished by a CCO when the loss of your house and other mitigating factors are taken into account, and particularly given your excellent prospects of rehabilitation.  As to those prospects, I have read references supplied by people who know you well, who speak well of you and confirm your remorse and determination to move on. 

18Please stand, Ms West.

19You have been assessed as suitable for a Community Correction Order which will commence today and last for three years. 

20

You will be under supervision and you must perform 100 hours of unpaid community work over six months.   You must submit to treatment for drug use and for psychological treatment as you are already doing.  Those obligations over a lengthy period of time will amount to appropriate punishment for you, knowing that any non-compliance or further offending of any sort may result in a breach of the order and the need for re-sentencing.  You must attend the Community Corrections office at 83 to 85 Unitt Street, Melton, by 4 pm on

26 August.  That  is in two days' time. 

21If you had pleaded not guilty to this charge, I would have sentenced you to a five year CCO with 180 hours of work to perform.  

22The prosecution seeks orders for the forfeiture and disposal of items seized and for a forensic sample of saliva to be obtained under s.464ZF of the Crimes Act.  Through your counsel, you have consented to those orders, and I make those orders.  I must advise you that the police have the power to use reasonable force to obtain the sample of saliva but I trust that will not be necessary. 

23Are there any other matters, Mr Godleman?.

24MR GODLEMAN:  Just one matter, Your Honour.  Regarding the forensic sample, I previously provided it without the police station filled in.

25HER HONOUR:  That is right.  Thank you.  Yes, that has been attended to.

26MR GODLEMAN:  Thank you.

27HER HONOUR:  Ms Gaunt?

28MS GAUNT:  No, Your Honour.

29HER HONOUR:  Do you want to have a look at the order before your client signs it? 

30MS GAUNT:  Yes.  Can I just approach my client, Your Honour?

31HER HONOUR:  Certainly.

32MS GAUNT:  Thank Your Honour.

33HER HONOUR:  Thank you.

34(CCO signed and acknowledged.)

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