Director of Public Prosecutions v Williams
[2012] VCC 1527
•4 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT WODONGA
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIAN DEREK WILLIAMS |
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JUDGE: | HER HONOUR JUDGE HARBISON | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 October 2012 | |
CASE MAY BE CITED AS: | DPP v Williams | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1527 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Moore | |
| For the Accused | Mr Clancy |
HIS HONOUR:
1 Adrian Derek Williams, you have pleaded guilty before me to one count of cultivation of a commercial quantity of cannabis. This offence occurred at Wangaratta between 11 October 2011 and 11 January of this year. The circumstances of your offending were set out in the prosecution opening, which is an exhibit on this plea, and your counsel confirmed to me that the facts set out in that opening are agreed by you to be correct. By your plea of guilty you have admitted your culpability for this offence
2 The circumstances of the offending can be just briefly summarised. The police undertook a search warrant on your home, on 11 January of this year. They found in the rear yard, behind a shed in your property, 18 cannabis plants, with a total weight of 25.24 kilograms, growing in a vegetable patch and which were described being of good quality. The also found, against a shed wall, a stem of cannabis, with a total weight of 84.2 grams, and beside the house they found five small cannabis plants, with a total weight of 64.6. Inside your house there were quantities of dried cannabis.
3 The total quantity of the cannabis which was found by the police was 26.13 kilograms, which is just over the amount defined as a commercial quantity, a commercial quantity being 25 kilograms.
4 You were interviewed by the police a week after the execution of the search warrant and you admitted then that you had cultivated the cannabis.
5 You are on a disability pension, having contracted Reynaud's disease, which I understand to be a disease affecting the hands and neck and in some circumstances, especially in winter, producing extreme pain. You told the police that you had decided to cultivate that cannabis for your personal use, as it relieved the symptoms of that disease. You told the police you were having trouble buying a sufficient quantity of cannabis to relieve your pain and you said that you decided to grow your own in order to save money, so that you had more money from your pension to spend, in particular on your daughter to whom you have regular access.
6 The prosecution accepted, on your plea, that this was the first occasion in which you had cultivated cannabis and that your claim that you grew it for your personal use, arising out of your need for pain relief, was probably true.
7 You have some history of criminal offending dating back to 1996. I characterise your earliest offences as being minor, but in December of 2007 you were convicted of unlawful assault and failing to answer bail and were given a community-based order for 12 months.
8 This offence appears to have been precipitated arising out of the break-up of your relationship with your previous wife, and one of the conditions of the order, I note, was that you were to undergo assessment and treatment for alcohol or drug addiction and submit to psychological treatment. Your counsel tells me that you are self confessed alcoholic and clearly you have had difficulties with alcohol going back to at least 2007.
9 You failed to comply with that order, Mr Williams, and in September of 2008 it was varied. The variation appears to be by reducing the amount of community work which you were to perform. Your counsel has told me that you had great difficulty with community work because of the medical condition to your hands, which I have described.
10 You were again before the court in June of 2009 for a further breach of that order. On that occasion a different disposition was imposed and you were ordered to undertake counselling, or participation in a men's group through a local community health centre, as a condition of the bond which was imposed on that occasion.
11 I note from your criminal record that when the matter finally came back before the court in June of 2010, it appeared that you had fully complied with the order and the matter against you was therefore discharged.
12 You were then before the Wangaratta Magistrates' Court, on 3 October 2011, on a charge of possessing ammunition without a licence. Your counsel has told me that the ammunition was some spent shotgun pellets, and I accept that that was the case, and I note that the matter was adjourned without conviction, which I take as being an indication of the relatively minor nature of the charge which was before the court. Once again, you complied with the terms of that bond and have not re-offended.
13 Mr Williams, you have pleaded guilty to this charge at an early stage. I accept your plea and your cooperation with the police in the record of interview and subsequently as being evidence of your remorse for your involvement in this crime.
14 At the time of the offences you had been living for about two years with your then de facto partner. You deceived her as to the cultivation of the cannabis and, as a result of that deception, it appears that she left you for a short time, but she has recently returned and was present at court during the hearing of your plea.
15 In the past you have worked as a chef. I am told that you can no longer do this work because of the pain in your hands. In the past also you have been a man who has owned his own home, in company with your wife, and I am told that you lost your house when your marriage broke up and are now renting the house that you previously owned.
16 It is clear from what I have said so far that this is your first major offending and I want to make it clear to you that this is indeed major offending. The offence which you have committed is an offence which carries a maximum term of imprisonment of 25 years, and that is a reflection of parliament's view that an offence of this nature is an offence of a significant description against the community as a whole.
17 The evidence appears to be, in your case, that the cannabis was cultivated for your personal use to relieve the symptoms of your pain. There is no evidence of sophisticated paraphernalia, there is no suggestion that you intended to traffic the cannabis which you grew. Nonetheless, the charge to which you have pleaded guilty is a very serious one, as I have said, and in sentencing you I must have significant regard to the principle of general deterrence.
18 Without persons who are prepared to cultivate drugs, as you did, traffickers could not ply their trade and young lives might not be ruined by the tragedy of drug addiction. This is a very important consideration in sentencing you today and can I say to you, Mr Williams, that a sentence of actual imprisonment for the crime which you have committed would in most cases be appropriate.
19 I acknowledge, however, as I have said, that there was no sophistication in your set up, no elaborate devices used to ensure the propagation of the crop, no hydroponic set up for instance, no overriding of the electricity supply, and it is for all these reasons that it appears to me that your offending can be characterised at the lower end of this type of offending.
20 The prosecutor has said that it would only be in exceptional circumstances that anything other than a sentence of imprisonment was warranted, but the prosecutor has conceded that a sentence other than a term of imprisonment may be within the sentencing range in this case, clearly because of the matters to which I have referred.
21 I note also, in rounding off my description of your circumstances and the circumstances of your offending, that although it is clear from the record of interview that you had been in the habit of using cannabis, you have no recent convictions for drug offences, indeed no convictions that I know of in relation to drug offences at all.
22 In sentencing you today, Mr Williams, I must take into account not only the need to deter others from propagating a crop which causes such devastating effects on people's lives, but also the relative seriousness of your offending, your personal circumstances, as your counsel has outlined them, the mitigating factors which he has outlined and your prospects for rehabilitation.
23 I have concluded that, in all of the circumstances, it would not be appropriate to sentence you to a term of imprisonment, because I have another alternative open to me, and that is the imposition of a community corrections order.
24 In the past this type of sentence was not available. The community-based order, which was its predecessor, was not seen as an alternative to a sentence of imprisonment. However, I treat the imposition of this community corrections order on you today as being a sentence which can be used as an alternative to imprisonment in exceptional cases, and I have taken the view that yours is an exceptional case.
25 The order which I will impose upon you has the advantage of enabling me to put conditions on the order, requiring you to obtain treatment and to be supervised. In my view, that is a much more sensible course for me to take in the circumstances that have been outlined to me than to sentence you to a term of imprisonment and then to suspend that term either in whole or in part.
26 Mr Williams, on the count of cultivation of a commercial quantity of a narcotic plant, you are convicted and you are sentenced to undertake a community corrections order. The period of the order will be three years, which is the maximum that I can impose under such an order.
27 There are some standard conditions which apply to the making of a community corrections order and I need to go over these conditions with you, because I need your consent to comply with these conditions before I can impose this order on you, so you must listen carefully.
28 Firstly, you must not during the period of the order commit another offence punishable by imprisonment. Secondly, you must report to and receive visits from a representative of the Secretary during the period of the order.
29 Thirdly, you must report to the Community Corrections Centre at Wangaratta within two clear days of today.
30 Next, you must inform the Secretary of any change in address or employment within two clear working days after they change.
31 You must not leave Victoria except with the permission of the Secretary. I understand that that is a significant issue for people who live on the border and I think that there are particular arrangements which can be made with the Community Correction staff in relation to that.
32 Finally, you must comply with any direction given by the Secretary.
33 Now they are the standard conditions which apply to all community corrections orders.
34 As well as those standard conditions, I will make a condition for you to be under supervision for the duration of the corrections order and for you to undergo assessment and treatment for alcohol use and drug dependency.
35 Mr Williams, if you contravene any of these conditions, which I have outlined, once I have imposed this order upon you, you should expect to return here and for me to impose a term of imprisonment upon you. As I have said, Mr Williams, I can only make that order if you consent to it. Do you consent to me making a community corrections order?
36 OFFENDER: Yes, Your Honour.
37
HER HONOUR: All right. That order now needs to be presented to
Mr Williams so that he can sign it. The order is just being printed out. You can take a seat while it is printed out, Mr Williams, and when it is ready,
Mr Clancy, if you could perhaps take it to your client and explain it to him.
38 MR CLANCY: If Your Honour pleases.
39 HER HONOUR: In the meantime, I indicate that I will make a forensic sample order, that will be an order for the taking of a scraping from the mouth and that I do that because I am satisfied the seriousness of the offence and the public interest requires it.
40 Mr Williams, I am required to inform you that having made this order for a forensic sample, a member of the police force can use reasonable force to enable the procedure to be conducted, which in this case is the taking of a scraping from your mouth.
41 (Community corrections order signed and acknowledged.)
42 (Section 464ZF order signed and acknowledged.)
43 MR CLANCY: I am sorry, Your Honour, ordinarily there should be three copies signed by the defendant which - - -\
44 HER HONOUR: Of the community corrections order?
45 MR CLANCY: Of the community corrections order, yes.
46 HER HONOUR: We can certainly do three.
47 MR CLANCY: Thank you, Your Honour. Ordinarily the client receives one, and Your Honour receives one for the court file and the prosecution.
48 HER HONOUR: Would I not have to sign it first and then you receive the copy? I am happy to sign three if it makes it easier.
49 MR CLANCY: Thank you, Your Honour.
50 HER HONOUR: Yes. Now, Mr Williams, you have now signed that documents.
51 The last thing for me to do is to tell you that if you had not pleaded guilty to this offence then the sentence which I would have imposed upon you would have been an effective term of actual imprisonment of two years, with a non parole period of 14 months, and I will ask that that be noted on the records of the court. Yes, thank you, you can take a seat.
52 Are there any other matters?
53 MR MOORE: No Your Honour.
54 MR CLANCY: No Your Honour.
55 HER HONOUR: Thank you. I will adjourn now until 9.30 tomorrow morning.
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