Director of Public Prosecutions v Willard (a pseudonym)
[2024] VCC 1950
•29 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-24-00498
Indictment No: P11549556
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDRE WILLARD (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 12 September and 11 October 2024 | |
DATE OF SENTENCE: | 29 November 2024 | |
CASE MAY BE CITED AS: | DPP v Willard (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1950 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of cultivating a narcotic plant, Cannabis L, in a quantity not less than a commercial quantity; one charge of possessing a drug of dependence, methylamphetamine; one charge of theft of electricity; one charge of trafficking in a drug of dependence, Cannabis L – in addition two summary charges of failing to obey a police direction to provide a PIN or password to a mobile phone and dealing with property suspected of being the proceeds of crime – 55-year-old offender with no prior convictions – early plea – good prospects of rehabilitation – consideration of applicability of s5(2H)(a).
Legislation Cited: Sentencing Act1991
Cases Cited:Worboyes v R [2021] VSCA 169; DPP v Hillman [2024] VSC 100; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Haamid (a Pseudonym) v The Queen [2018] VSCA 330; Farmer v The Queen [2020] VSCA 40; Bugmy v The Queen [2013] 249 CLR 571.
Sentence: Total Effective Sentence is 3 years’ imprisonment with a non-parole period of 1 year.
S6AAA: 5 years’ imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B Goding | Solicitor for Public Prosecutions |
| For the Offender | Ms M Walker | Melinda Walker |
HER HONOUR:
1Andre Willard,[1] you have pleaded guilty to the following charges on Indictment number P11549556: one charge of cultivating a narcotic plant, Cannabis L, in a quantity that was not less than a commercial quantity, which carries a maximum sentence of 25 years’ imprisonment; one charge of possessing a drug of dependence, methylamphetamine, which, when the court is satisfied on the balance of probabilities was not for trafficking purposes, carries a maximum penalty of 12 months’ imprisonment; one charge of theft of electricity, which carries a maximum penalty of 10 years’ imprisonment; and one charge of trafficking in a drug of dependence, Cannabis L, which carries a maximum penalty of 15 years’ imprisonment.
[1] A pseudonym.
2In addition to these indictable charges, you have consented to two summary charges being uplifted from the Magistrates’ Court, to be heard in the County Court, and have pleaded guilty to those charges. They comprise Charge 1, failing to obey a police direction to provide a PIN or password to a mobile phone, and Charge 2, dealing with two Apple iPhones, property suspected of being the proceeds of crime. Each of these summary charges carries a maximum penalty of two years’ imprisonment.
3The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea.[2]
[2]Exhibit “A”.
4On 19 July 2023, police executed a search warrant at a premises in Port Melbourne (“the property”), where they suspected that cannabis was being cultivated. An energy account in your name had been opened for that address over 18 months earlier, on 6 January 2022. Also, a Holden Commodore Utility had been registered in your name with that address on 23 June 2022. Micah Dadic[3] and Stuart Snyder[4] were the registered owners of the property.
[3] A pseudonym.
[4] A pseudonym.
5The property was a two-storey residence. Upon executing the search warrant, police detected that half of the ground level and the entire upper storey were devoted to a sophisticated hydroponic cultivation of cannabis. The back half of the ground floor contained a living room, bedroom and kitchen, where you were living. Spread over seven rooms, were 132 cannabis plants in various stages of growth, which had a total weight of 152.35 kilograms. Thus, the crop satisfies the definition of being in excess of a commercial quantity by virtue of both the number of plants (being in excess of 100) and the weight of the plants (being in excess of 25 kilograms). You were intercepted and arrested by police as you attempted to drive out of the garage at the property. These matters comprise your offending on Charge 1, cultivating cannabis in not less than a commercial quantity on 19 July 2023, namely, the date of execution of the search warrant.
6In the vehicle which you were driving, police found a small Ziplock bag containing 0.6 grams of methylamphetamine. The prosecution concede that this cannot be proven beyond reasonable doubt to be possessed for the purposes of trafficking. This is the conduct compromising Charge 2 on the indictment.
7Police located an electrical bypass, which had been installed in the upper wall of the building. You were aware of the bypass and have been charged with theft of $43.86 worth of electricity, being for one day, the date of your arrest, as calculated by the energy supplier. This is the conduct comprising Charge 3 on the indictment, theft of electricity.
8Police located an iPhone on you at the time of your arrest. Analysis of this phone showed messages relating to various contacts and the sale of cannabis. These demonstrate that you were arranging for contacts to collect cannabis from you and, also, offering to deliver it. The messages refer to quantities and prices. A note was found in the Notes App of the phone listing sales and prices to “Morgan”.[5] The earliest messages relating to the sale of cannabis went back to 23 September 2022, almost 10 months earlier. This is conduct, along with the seizure of 5 bags of cannabis and at the property weighing 1.302 kg, which compromises Charge 4 on the indictment, trafficking in a drug of dependence, Cannabis L.
[5] A pseudonym.
9When police arrested you and seized your iPhone, they asked you to provide to them the PIN or password for it. You refused to do so. This is the conduct comprising Summary Charge 1, failing to comply with a police direction to provide a PIN or password to a mobile phone.
10A second iPhone was found in the living room at the premises. This contained photographs taken by you of the cannabis plants at the property. Your possession of the two Apple iPhones is the conduct comprising Summary Charge 2, dealing with property suspected of being the proceeds of crime.
11You were arrested on 19 July 2023 and taken to Prahran Police Station. When interviewed by police, you gave “no comment” answers to their questions, as is your legal entitlement. You were remanded in custody, but made a successful application for bail on 23 August 2023. On 11 October 2023, your charges were listed for a committal mention, which was adjourned due to you having retained new solicitors. Apparently, discussions were held between your legal representatives and prosecution on 30 November 2023 and 12 January 2024, with a view to resolution, and the matter finally resolved at a further committal mention held on 20 March 2024. On that date, you indicated your intention to plead guilty to the charges to which you have pleaded guilty before me.
12You are presently aged 56 years, only one day off your 57th birthday, having been born in 1967. You come before the court with one prior court appearance in 1990, which is not relevant to the charges for which you must be sentenced.
13In a plea on your behalf, your counsel, Ms Walker, stated that you had been born in New Zealand, and were the youngest of four siblings. Your father died when you were four years of age and your mother re-partnered when you were five or six years old. Your stepfather was said to be physically and psychologically abusive towards your mother in the presence of all the children, who would, at times, intervene to try to protect your mother. This aspect was touched on briefly by your sister, who gave evidence via video link from New Zealand. She stated that you had “a lot of trauma” from childhood. She said that, as the youngest, you were “shoved in the corner and forgotten about and that is why you were a quiet boy and became a quiet man”. She did not elaborate on the trauma or mention any violence to which you were exposed. However, you had given a history to Mr Arthur Tsonis, a forensic clinician at the Australian Community Support Organisation (“ACSO”), that you had had a conflictual relationship with your stepfather, whom you described as an alcoholic, who perpetrated domestic violence, physical abuse and psychological abuse, and you disclosed feeling neglected in an environment of instability and in a state of “hypervigilance” due to your stepfather’s unpredictable behaviour.[6] You also mentioned to Mr Chia-Ming (Kendrick) Hsu, a psychologist whom you attended for six counselling sessions between October 2023 and May 2024, that you and your siblings had witnessed your stepfather being physically violent towards your mother and were only able to start defending her when you grew older.[7]
[6]Exhibit “2”, report dated 13 September 2023.
[7]Exhibit “3”, report dated 10 September 2024.
14According to written submissions filed by your counsel, you completed Year 11 in New Zealand and commenced employment in the construction industry, which was to remain your ongoing occupation. [8] However, in oral submissions, Ms Walker stated that you came to Australia at age 16 years, which is perhaps more consistent with the history contained in the report from Mr Tsonis from ACSO, which is that you relocated to Australia with your mother, stepfather and sister at a young age and completed Year 11 in Australia.[9] Nevertheless, you have lived in Australia for a lengthy period. From approximately 25 years of age, you were in a long and stable relationship with your partner, who is the mother of your three children. They are now adults, aged 34, 29 and 26 years respectively. Ms Walker stated that, in 2008, after 16 years together, the relationship broke down and you travelled to Darwin, where you began to use methylamphetamine, which became problematic for you at the age of 42 years.
[8] Exhibit “MFI-1”, p. 5 [22].
[9] Exhibit “2”, page 3, [an unpaginated report].
15Somewhat surprisingly, notwithstanding your alleged descent into problematic use of methylamphetamine, Ms Walker stated that you continued to work in construction in the mines in Darwin, and, later, when you returned to Melbourne in 2019, in the construction industry. Further, in that same year, 2019, you met Ms Linda Spokes,[10] with whom you quickly formed an intimate relationship, which became a de facto relationship within a number of weeks or months.
[10] A pseudonym.
16Ms Spokes provided a written reference on your behalf[11] and, also, gave oral evidence at the plea hearing. She was somewhat unclear on dates. She stated that, when she met you, and even later when you moved into her home with her children, she was not aware that you were using drugs. At some point, which may have been 9, 10, 11 or 12 months after you began living with her and her children, (which may have been in early 2019, or perhaps May 2019), she and the children arrived home and one of the children found that a friend who had been with you at the house had dropped a glasses case containing “ice” at the front door. She stated that you initially denied knowing anything about it, but some 24 to 48 hours later, told her that you had a drug problem and “had been using ice for quite a while”.
[11]Exhibit “8”.
17Ms Spokes stated that, thereafter, you went “cold turkey” in the house, and only she and her family and your family knew about your drug problem. You were off work and isolated for about five weeks, during which, you had participated in counselling sessions via zoom twice per week for a period of five weeks. You paid for such sessions, but she was unable to provide the name of the counsellor. I here interpolate that no counselling for drug-related problems was ever mentioned to the authors of reports from CISP, ACSO or Mr Hsu, the psychologist, which were tendered at the plea hearing. Ms Spokes stated that, by week five, you successfully applied for a job in construction with your current employer. You began that employment immediately, working on a commercial building site in the city. You worked from 7.30am to 3.00pm on five days each week. At times, you would also do overtime from 7.00am to 1.00pm on Saturdays.
18Ms Spokes stated that you remained abstinent for “some time” up to around September 2021, by which stage she had noticed that the intimacy between you and her had deteriorated. She stated that, “around this time”, she discovered an ice pipe amongst some of your belongings. Up until this time, she had never noticed anything untoward about your behaviour from the time you went back to work. She had not observed any changes in your appearance, you did not exhibit any aggression and there was no alteration to your regular attendance at work. She directed you to leave her home. She stated that you slept on the couch for one week and then went straight to your “dealer”, whose house in Footscray you had pointed out to her “at some stage”. Thereafter, she saw you on only about four occasions, until she received a call after you had been remanded in custody in July 2023. She stated that, on the occasions that she saw you prior to this call, she observed that both your physical appearance and your ability to converse had declined, which indicated to her, although you did not say it, that you were “delving deeply into drugs”. She stated that she remains supportive of you and told the court that you and she had resumed being partners about two or two and a half months ago, albeit that you are not living in the same household.
19Ms Walker submitted on your behalf that your prejudicial childhood experiences enlivened the principles in Bugmy v R.[12] She submitted that your exposure to violence, alcohol and abuse at a young age was likely to have profound and lasting consequences, which the Court should take into account in lessening your moral culpability for this offending.
[12](2013) 249 CLR 571, pages 594 - 595.
20In discussion, I queried whether there was any evidentiary nexus between any childhood trauma and your offending, particularly given that the offending for which I must sentence does not involve violence or alcohol. You have no criminal history of note which might reflect the impact of childhood trauma. You were able to form a stable relationship for a lengthy period of 16 years with your partner; and have demonstrated a solid work history, both before and after that relationship broke up. Also, you were apparently an accomplished Rugby League player. A reference from Mr Simon Aumua,[13] dated 10 December 2024, stated that, from 1990 through to 2002, he had played Rugby League with you, and that you had been club captain for the majority of that time. Indeed, he described you as being a great role model.[14] Another reference from Mr James Royal,[15] dated 9 September 2024, also spoke of the respect which he had for you as a leader in Rugby League.[16]
[13] A pseudonym.
[14]Exhibit “7”.
[15] A pseudonym.
[16] Exhinit “6”.
21According to the relatively detailed report from Mr Arthur Tsonis at ACSO, you had acknowledged a direct association between your substance use and high-risk behaviours and had maintained that you commenced using methylamphetamine following the loss of your long-term intimate relationship and separation from your children. You identified that use as “concerning in recent times”, and disclosed that your introduction to methylamphetamine was through negative peer associations.[17] In his report, Mr Tsonis stated:
“… It is hypothesised (my emphasis), [your] initial substance use may have been precipitated due to experimentation, curiosity, boredom, the absence of a paternal influence [I hear interpolate that you were apparently 40 years of age when you reported that the loss of your 16-year relationship was the trigger to your methylamphetamine use which over time had developed into a ‘coping mechanism], loss of a long-term intimate relationship, separation from children, housing issues, instability, loneliness, financial stressors and the development of negative peer associations. General enjoyment, developing dependence, the absence of alternative coping strategies, continued association with negative peers, disconnection from family and friends and the absence of meaningful activities may [my emphasis] have perpetuated [your] methyl-amphetamine use.”
[17]Exhibit “2”, page 1.
22The report from Mr Hsu, whom you saw for six counselling sessions between October 2023 and May 2024, mentions that your father was physically violent towards your mother and, because of that childhood experience, you endorsed strong family values and were determined to be a good father to your children. You told him that the main purpose of your drug use was to cope with the emotional pain resulting from the family separation after 16 years with your partner. You described feeling empty and helpless and moved to Darwin, away from all your family and friends, where you first encountered illicit drugs.
23After a discussion relating to the matters to which I have just referred, your counsel abandoned her submission urging that the full weight of the principles in Bugmy related to your specific childhood trauma should be applied and, instead, submitted that the Court should take into account your childhood disadvantage in a general way as part of your personal circumstances. Given the state of the evidence before the Court in this case, that appears to me to be an appropriate submission.
24The submission of your counsel that you had begun amphetamine use after you travelled to Darwin following the break-up of your long-term relationship in 2008 and that this became problematic at the age of 42 years[18] is somewhat at odds with evidence which was given by your sister. Your sister stated that she had been well aware that you had an addiction to methylamphetamine prior to you leaving Melbourne to go to live in Darwin. Indeed, your drug addiction was the reason that you had moved to Darwin, because your mother and brother were living there and had brought you up to Darwin to try to care for you.
[18]Exhibit “MFI-1”, [24].
25Your sister stated that, after you were released from custody in August 2023, you came to live with her daughter, who is living in Melbourne. At that stage, she was, also, at her daughter’s house, where she remained for the following year until she returned to her home in New Zealand on 3 August 2024. As she is well-versed in the practice of ancient Maori healing paths, she was able to help you with body healing. She described this practice as being like a massage, but also spiritual, so that it is holistic in nature. She referred to assisting you with a number of the treatments which involved “making space” for you and “cleansing”. She gave evidence that she had also been living in Melbourne at an earlier time, when you returned here from Darwin in 2019. She stated that, back then, you were experiencing, “traumatic stuff” and waking up at night angry, and she knew that you were taking drugs. I here interpolate that this appears to be around about the time that you met your partner, Ms Spokes, who stated that she was unaware that you were taking any drugs. In any event, your sister stated that, in 2019, she had assisted you with a traditional treatment called “Puré”, which involved taking you to the sea. It involved a combination of cleansing of water and incantation by prayer. The aim of the treatment was to cleanse you of negative energy or demons that were making you unwell. She did not believe that it made you drug-free, but “gave you some space”, given your childhood trauma. Currently, with the assistance of her more recent treatments in 2023 and 2024, she believes that you are on the cusp of realising your potential or “Mana” as it is known in the Maori Culture, but require further work to be put in by yourself before you can achieve it. Under cross-examination, your sister conceded that the “Puré” ceremony in 2019 was not specifically designed to address your drug-use, although the drug-use would have added to “the negative energy”. She conceded that, in fact, your drug-use was not actually discussed in the “Puré” ceremony.
26Mr Willard, whilst I accept that you were a user of methylamphetamine, this factor, itself, is not mitigatory. Moreover, there are some unusual factors in your case which I find difficult to reconcile with your claimed very heavy methylamphetamine use over a lengthy period of time. The first factor is your apparent capacity to continue working in construction whilst you were using methylamphetamine. After the relationship with the mother of your children broke up in 2008, you apparently began to use methylamphetamine, but you continued to work full-time after you moved to Darwin and once you returned to Melbourne some years later. Even at the time of offending here in Melbourne, you were working on building sites earning $1,000 to $2,000 per week, according to your counsel. Indeed, your current employer provided a written reference, dated 18 March 2024, stating that you had been working for him full-time, for 3 years. He described you as a well-respected employee who, in all the time that he has known you “has been a decent, hardworking, and trustworthy person”.[19] I find it difficult to accept that a person working at heights, would even be allowed on a building site with any traces of drugs in his system. The second factor is that, notwithstanding your use of methylamphetamine when you returned to Melbourne in 2019, you soon began a relationship with Ms Spokes and moved in with her family, but she appeared to have no idea that you were using methylamphetamine until someone leaving your house whilst she had not been home had dropped an ice pipe which was discovered by one of the children. The third factor is that, if your methylamphetamine habit was a very significant one, I find it difficult to accept that you recovered from it in a period of four weeks and, by week 5, had obtained work, albeit apparently with a different employer, and resumed working full-time the next week.
[19]Exhibit “10”.
27After being released from custody and placed on supervised bail by the Court Integrated Services Program (“CISP”) the final progress report of CISP, dated 3 June 2024, details that you completed 41 weeks (nine months) of support. The author of the report, Brendan Hollis, describes this as “potentially one of the best attendance records the writer has observed over my time with CISP”[20] (which time is not identified). However, the writer understood you to have a 15 year history of “consistent” use. Notwithstanding such lengthy history, you completed only one episode of standard counselling in November 2023, with exceptional feedback from your clinician and, then, “a second episode” of counselling over March/April 2024. By late April the clinician had noted that you had engaged meaningfully in counselling and also engaged in group recovery programs with Narcotics Anonymous and Smart Recovery.
[20]Exhibit “1”, page 4.
28Further, I note from the report from ACSO by Arthur Tsonis that, only two months after you were arrested for this offending and shortly after you were granted bail, you were well presented and oriented to time and place and displayed excellent memory recall and insight into your substance use, acknowledging a direct association between your substance use and high risk behaviours, including your offending.
29Of note is that Mr Tsonis stated “Mr [Willard] reported a history of methylamphetamine use, which he identified as concerning in recent times (my emphasis), he disclosed his introduction to substances was through negative peer associations” albeit that you did disclose that your initial use of methylamphetamine followed the loss of your long term relationship and separation from your children. Later in the report, the author noted that, whilst you had commenced use of methylamphetamine at 40 years of age and it had escalated to daily and problematic use at 42 years of age, prior to your arrest you were smoking 0.5 grams via a pipe daily. The author stated that, given your history of substance use and the correlation between methylamphetamine use and risk behaviours you may benefit from a referral for treatment. This was on 13 September 2023, by which time, you were back at work. Further, the final progress report from CISP noted that, by November 2023, you no longer felt the need to attend group recovery programs with Narcotics Anonymous and Smart Recovery. Thus, although you may have used methylamphetamine over a lengthy period, I am not satisfied on the balance of probabilities that you suffered a very significant addiction to it over some 15 years as claimed. It seems far more likely that, as you told Mr Tsonis, it had become concerning only in recent times leading up to the offending and was in the context of negative peer associations.
30True it is that you did attend six sessions of counselling between October 2023 and May 2024 as detailed in the report of Mr Hsu, psychologist, from South Eastern Counselling and Psychology, dated 10 September 2024.[21] These sessions were for the treatment of depression and anxiety, but apparently your treatment goals were deemed to be met after these six sessions. Nevertheless, it is to your credit that you have apparently remained free of illicit drugs since being arrested, and 25 reports of urinalysis obtained by you through your general practitioner, Dr Amna Asif, from specimens collected from 3 February to 30 August 2024, were tendered at the plea hearing.[22]
[21]Exhibit “3”.
[22]Exhibit “4”.
31The contents of the various reports dealing with your rehabilitation, as well as a number of character references tendered on your behalf, speak of your struggle with mental health and abuse of illicit substances and the guilt that you feel about it and that you are a fundamentally a gentle, kind and loving person. These attributes come through particularly in the references from your partner Ms Linda Spokes[23] and her daughter, Riley Spokes.[24] Your partner speaks of seeing you transform “from a helpless broken man into a passionate upstanding human being”, who is helping his niece with her son (who has special needs) and giving back to the community. All of these factors, together with your lack of relevant prior criminal history, bode well for your rehabilitation.
[23]Exhibit “A”.
[24]Exhibit “5”.
32It is evident from the references filed on your behalf that you have quite a number of people who believe in you and support you. A number of those people were present at the plea hearing including your partner, Ms Linda Spokes, her two sons, your son and daughter, and your sister, via a zoom link from New Zealand.
33Charge 1 on the indictment, cultivation of not less than a commercial quantity of cannabis, is a Category 2 offence. Pursuant to s5(2H) of the Sentencing Act, in sentencing a Court must impose a sentence of imprisonment other than one in addition to making a Community Correction Order, unless one of the exceptions in sub-paragraphs (a) to (e) apply. Initially, your counsel, Ms Walker, relied upon a combination of circumstances as satisfying the exception in sub-paragraph (e), namely, substantial and compelling circumstances that are exceptional and rare. She ultimately abandoned reliance upon that sub-section. However, she submitted that the exception in sub-paragraph (a) had application because you had assisted law enforcement authorities by making a statement to police on 9 January 2024[25]. Ms Walker submitted that this factor, along with your plea of guilty, former good character and good prospects of rehabilitation should cause the Court to impose a sentence which did not involve a term of imprisonment exceeding the 35 days which you had served in custody between the date of your arrest and being granted bail, together with a Community Correction Order.0421389840
[25] Exhibit “11”.
34Ms Goding, for the prosecution, conceded that the fact that you had made a statement to police enlivened sub-paragraph (a) of s5(2H) This was because informant had answered Ms Walker’s email enquiring as to the level or value of assistance provided by the statement in an email dated 11 January 2024, stating that “it has provided us with an additional avenue of enquiry” albeit that she could not yet comment on the value.[26] However, the prosecution informed the court that, on 15 March 2024, the informant had stated that your statement was of no additional value and “at this stage the statement has not provided any significant value to police”. Ms Goding submitted that, given this factor, this is a case where the clearly expressed intention of the legislature should be given application and a term of imprisonment with a head sentence and a non-parole period was appropriate.
[26]Exhibit “12”.
35I have read the statement made by you to police on 9 January 2024. In it, you speak of a friend “Morgan” introducing you in 2023 to an older man whom you came to know as “Uncle” and “Micah”, and his last name started with a “D”.[27] There is no dispute that the property is owned by Micah Dadic and Stuart Snyder, as is mentioned in the Summary of Prosecution Opening.[28] In your statement, you claim that, in January 2023, “Morgan” (who was a friend with whom you were living in Footscray in September 2022) approached you and said that Micah wanted to talk to you about moving into a house and had some plants and it would be rent free and that you spoke with Micah and agreed to move into the property at Port Melbourne. You do not state when you moved in, but claim that the agreed rent was $3,500 per month and Micah gave you $1,750 each month in cash to deposit in your bank account, and you would then electronically transfer the full amount as per the agreed rent. (Your affidavit was silent upon how the balance of the rent was comprised.)
[27]Exhibit “11”, [5].
[28]Exhibit “A”, [4].
36You refer to there being only 21 plants when you moved in, all small and located in various rooms and the windows being covered with thick plastic and that grow lights had been installed and water pipes were everywhere. You stated “I’d never seen anything like that before, however, I didn’t give it much thought as rent was paid for …”.[29] I find this statement incredible, particularly given that you later state that Micah would “make sure I was keeping the plants alive”[30] and that you collected items such as bags of food and soil for the cultivation[31]. Also, you have pleaded guilty to trafficking in cannabis for almost 10 months prior to the date of your arrest. As previously mentioned, the evidence relating to this charge comprises 5 bags of dried cannabis weighing a total of 1.302 kg, which police seized at the property, and messages on your phone as well as the contents of the ‘Notes’ application on the phone together with as a notebook containing prices of weights and calculations (also located at the property). In addition, photographs of the crop taken by you were on the iPhone found in the living room. Moreover, your claiming to have met Micah in January 2023 and presumably moved into the property at some time subsequent to that, is at odds with the energy account for the property being in your name since 6 January 2022, which was part of the agreed facts in the Summary of Prosecution Opening.[32]
[29] Exhibit “11”, [16].
[30] Ibid, [19].
[31] Ibid, [20].
[32]Exhibit “A”, [3].
37When I pointed this out to your counsel, Ms Walker, she stated that you had got the date of January 2023 wrong. When I asked whether you had also got the date of September 2022 wrong, as to when you were living in Footscray with your friend Morgan,[33] Ms Walker stated that she could call you to amend the statement (notwithstanding that you had sworn that it was true and correct on 9 January 2024, and made it in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury). Ms Walker did subsequently call you to give evidence and you swore to tell the truth. You gave evidence that you had made the statement. You were asked by Ms Walker whether you wanted to make any changes to the statement and you answered, “No”. In these circumstances, your statement to police is at odds with the agreed Summary of Facts in the Prosecution Opening.
[33]Exhibit “11”, [3].
38Quite apart from this, the prosecution were well aware that Micah Dadic was the owner of the property. Indeed, your counsel advised the Court that police had interviewed Micah Dadic on 9 October 2023, prior to you making the statement to police, but had determined that there was insufficient material to merit a prosecution of him on the charge of cultivation. As previously stated, as at 15 March 2024, the informant determined that your statement was of no additional value with the words “at this stage the statement has not provided any significant value to police”.
39By providing a statement to police on 9 January 2024, you have assisted law enforcement authorities by making a statement within the meaning of s5(2H)(a). It is well established that providing assistance to law enforcement authorities may be a powerful mitigating factor in sentencing, as it is in the public interest to encourage offenders to cooperate with law enforcement authorities. However, it is necessary for a court to evaluate the extent to which assistance might moderate a sentence. Factors involved in such an evaluation include the nature and gravity of the crime, the benefit to authorities, the risk posed to the offender, and the extent to which the offender will require protective measures in prison making incarceration more onerous.[34]
[34]See Haamid (a Pseudonym) v The Queen [2018] VSCA 330; Farmer v The Queen [2020] VSCA 40.
40It is well established that the weight accorded to assistance to law enforcement authorities can vary very greatly and that it is not necessarily dependent upon an offender’s motive. Here, the informant has stated that your statement has not provided any significant value to police. Whilst it is not necessary to establish that assistance to police will result in a law enforcement outcome, I accept the submission of the prosecutor Ms Goding that your statement does not really go further than providing a name and links with Micah which were already known to police. The quality and reliability of your assistance (especially concerning when you went to live at the property) is low. It is self-evident that information given to police about a co-offender very soon after arrest is likely to be more valuable, particularly if an offender gives a full and frank account, which yours is not. Nor is there any evidence concerning any particular risk posed to you, such as threats or fear due to debts owed by you to a co-offender. There has been no material put before the court concerning any protective measures which may be required in custody, (above and beyond any occasioned by the generic risk that fellow prisoners who might become aware that a prisoner is an informer may be inclined to treat that prisoner with disdain).
41Ms Walker on your behalf submitted that, “should any other information come into police possession”, then your statement may be of assistance. This is a vague and speculative concept. In any event, Ms Walker made it clear, ultimately, that you were not prepared to give an undertaking to give evidence should there be any prosecution against Micah. In all of these circumstances, I consider that little weight can be afforded to your statement to police and I agree with the prosecution that it is not of such moment as to merit departure from Parliament’s clear intention that a sentence of imprisonment other than one combined with a Community Correction Order be imposed for Charge 1 on the indictment.
42In sentencing you, although the prosecution are unable to prove that you funded or set up the cultivation enterprise, you have an association with the property by having the utility bills for it in your name for almost 18 months prior to your being arrested and had used that address for the purpose of registering your motor vehicle over a year prior to your arrest. You were apparently living at the property and, on your own admission were fully aware of what plants were growing at the property (including knowledge of new “cloned seedlings” allegedly planted by “Micah”, which increased the number of plants at the property[35]). You played a role in caring for the plants by keeping the water topped up overnight,[36] collecting soil and nutrients for them and disposing of debris after harvesting, whilst living there rent-free pursuant to what you admit to be a bogus lease agreement to make the rental “appear legitimate”.[37] As I have previously stated, it is noteworthy that police found photos of the Cannabis crop on the mobile phone in the living room. In all the circumstances, I find that you were engaged in this enterprise for some form of financial gain, particularly given that the evidence before the court is that at the time of offending, you were working full-time, earning up to $2,000 per week as a construction worker. However, I am unable to quantify the extent of that financial gain on the material before me.
[35]Exhibit “11”, [23] – [26].
[36]Ibid, [19] – [22], [24] – [25].
[37] Ibid, [10] and [14].
43Although you are charged with cultivation on one day only, the day that police arrested you, there must be context given to that charge given your association with that property for almost 18 months prior to that day and your presence there, knowledge of the plants and the electrical bypass. It was a sophisticated hydroponic set up and the amount of cannabis under cultivation was over six times the commercial quantity by weight (25 kilograms). As a quantity-based offence, the amount of cannabis cultivated is a significant factor. It was a substantial and valuable crop and, had police not intervened, a substantial amount of cannabis would have been distributed into the community. I have already referred to your role and association with the property well prior to the date of offending. No two cases are ever precisely the same, but I consider your role to be somewhat above that of the often-impoverished crop-sitter, who is given a roof over his head, particularly as you were in full time employment.
44For almost ten months prior to your arrest you had been trafficking in cannabis as evidenced by the messages found on your mobile phone, along with a note of listed sales and purchases to “Morgan” in the “Notes App” of your phone. Inside the premises were five bags of dried cannabis with a total weight of 1.302 kilograms. This is the cannabis comprising Charge 4, trafficking in a drug of dependence. It is 52 times the traffickable quantity of 25 grams.
45I have previously referred to the quantity of methylamphetamine relating to Charge 2 (0.6 grams) found by police in your vehicle, which is conceded by the prosecution not to be capable of being proved to be possessed for the purpose of trafficking. I have also referred to Charge 3 on the Indictment, theft of electricity, being confined to one day only, namely the date of your arrest. There was no suggestion that you set up the bypass of electricity, albeit you were aware of it.
46Your offending on Summary Charge 1, failing to obey a police direction by providing a PIN or password to your mobile phone, does you no credit. It was on this phone that police ultimately located messages which implicated you in trafficking, as well as a list of purchases and prices. A second Apple iPhone, which police located in the living room of the property, is the subject of Summary Charge 4, dealing with property suspected of being the proceeds of crime, along with your other Apple iPhone to which I have already referred.
47In sentencing you, particularly on Charge 1 and Charge 4 on the Indictment, the predominant sentencing principles must be denunciation of your conduct, general deterrence, protection of the community and just punishment. General deterrence means that, in sentencing you, a message must be sent to others in the community who might be minded to involve themselves in the illicit cultivation of cannabis that it will not be worth their while. Illicit drugs cause terrible harm in our community to those who use them. They impair relationships of drug users with family and friends, as well as their capacity to function normally in such areas as their work. Persons who have a dependence on illicit drugs very regularly commit crimes to support their habit. Illicit drugs are responsible for a huge financial toll on the community by way of health and rehabilitation costs for those who suffer substance-abuse problems, police resources to detect and charge those responsible for cultivation or trafficking in drugs, court resources and prison resources. Although you have pleaded guilty to the charge at a relatively early stage and shown some remorse and insight into your own drug use and have taken steps towards rehabilitating yourself, your regret for your offending seems to mainly be articulated as you being sorry for the deceit that you practised in relation to your partner, and her family and your family and shame about having been involved in the criminal justice system, rather than articulating your concern about the harm and financial toll that illicit drugs cause to the whole community. Nevertheless, in sentencing you, your early plea with some remorse and significant utilitarian value entitles you to a tangible discount on the sentence which would otherwise have been imposed, although I reject your counsel’s commission that, at the time of your plea, you had an entitlement to any additional discount on your sentence pursuant to the principles in Worboyes v R,[38] as it postdates the end of the COVID-19 pandemic backlog in trials in the County Court.[39]
[38][2021] VSCA 169.
[39]See DPP v Hillman [2024] VSC 100, [75].
48Although there are no considerations pursuant to R v Verdins’[40], I do take into account, as part of your personal circumstances, your background of disadvantage and trauma in your childhood in New Zealand and the fact you have made some steps towards helping you come to terms with this by attending counselling, as well as steps towards drug rehabilitation. As mentioned previously, I consider your prospects of rehabilitation to be good. They are enhanced by the support you have from your partner and her family, as well as your family, together with your good work history and prior good character with no relevant criminal history at the age of 56 years. I have also made some allowance, albeit modest, for your assistance to police. The principle of totality should be applied to achieve an overall just sentence reflecting your criminality.
[40]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
49Although the seriousness of Charge 1 and, also, Charge 4 on the indictment lead me to conclude that there is no sentence appropriate other than a term of imprisonment, which must comprise a head sentence and a non-parole period, the factors in mitigation to which I have referred cause me to conclude that it is appropriate to set a relatively low non-parole period.
50On Charge 1, cultivation of a commercial quantity of cannabis, you are convicted and sentenced to be imprisoned for a period of 2 years and 6 months.
51On Charge 2, possessing a drug of dependence, you are convicted and fined $500.
52On Charge 3, theft of electricity, you are convicted and fined $200.
53On Charge 4, trafficking in cannabis, you are convicted and sentenced to be imprisoned for a period of 10 months.
54On Summary Charge 1, failing to obey a police direction to provide a PIN or password, you are convicted and fined the sum of $500.
55On Summary Charge 4, dealing with property suspected of being the proceeds of crime, you are convicted and fined the sum of $500.
56The base sentence is that of 2 years and 6 months on Charge 1 on the Indictment. I direct that 6 months of the sentence imposed on Charge 4 of the Indictment be served cumulatively upon the sentence imposed on Charge 1. The total effective sentence is thus 3 years imprisonment. I direct that you serve a period of one year imprisonment before becoming eligible for parole. I declare a period of pre-sentence detention of 84 days to be time reckoned as already served under the sentence imposed this day.
57Pursuant to s6AAA of the Sentencing Act1991, I state that, had it not been for your pleas of guilty, the total effective sentence imposed on Charge 1 and Charge 4 on the Indictment would have been 5 years’ imprisonment, with a non-parole period of 3 years.
58Upon convicting you on Charge 1, cultivation of a narcotic plant in not less than a commercial quantity, I order, pursuant to s.33(c) Confiscation Act 1977, that the property referred to in the schedule be forfeited to the Minister. The property is one set of keys and two hospital prescription pads. On that same Charge, I order, pursuant to s78(1) Confiscation Act 1977, that there be forfeiture to the State of the property referred to in the Schedule, and, I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date on the conclusion of any appeal proceedings, where it may be tested and/or analysed and then destroyed. The property is an electrical bypass, one ziplock bag containing a crystal substance and botanical samples from plants of dried cannabis.
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