Director of Public Prosecutions v Wilson

[2016] VCC 1107

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00410

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER WILSON

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2016
DATE OF SENTENCE:	21 October 2016
CASE MAY BE CITED AS:	DPP v Wilson
MEDIUM NEUTRAL CITATION:	[2016] VCC 1107

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sim	Office of Public Prosecutions
For the Offender	Mr M. Kozlowski	Unite Legal

HIS HONOUR:  

1Peter Charles Wilson, following a trial that occupied four sitting days in this court, you were found guilty by the jury of one charge of cultivating a commercial quantity of a narcotic plant, namely cannabis, contrary to s.72A of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is 25 years' imprisonment.

2You also pleaded guilty to one charge of theft of electricity contrary to s.74(1) of the Crimes Act 1958. The maximum penalty for that offence is 10 years' imprisonment.

3A previous trial that occupied three sitting days in the court miscarried.

4Following your conviction, you admitted a criminal history which is now 30 years old, following your conviction for culpable driving in 1986 when you were imprisoned for two years with a non‑parole period of 12 months. 

5Your convictions in this instance arise from the following circumstances: 

6On 21 August 2013 the MFB attended a fire at a bakery owned by you in Hadfield.  After you initially refused to permit the fire officers to enter the premises, they gained entry and, in the course of extinguishing the fire, located, on a mezzanine floor, a large cannabis crop.  The fire had been caused by an electrical fault caused by the system used to provide lighting for the cannabis plants. 

7The hydroponic system to cultivate the plants was a sophisticated one.  Thirty mature female cannabis plants were located, totalling 75.15 kilograms wet weight.  An electrical bypass had been installed.  The usable dry quantity of the cannabis was 11.7 kilograms with a wholesale value of approximately $72,800.

8The only issue in the trial was whether you had intended to cultivate a commercial quantity, namely not less than 25 kilograms.

9You gave evidence in your defence that the cannabis was for your personal use and you had not turned your mind to the weight of the plants that you were cultivating.

10The sentencing principles that I am required to apply in this case are well established and have recently been restated by the Court of Appeal in Nguyen v. The Queen [2016] VSCA 198.

11The sentence that I impose must be calculated to deter you and others from offending in this way and you must also be punished for your offending.

12I accept that in this case it is not possible to identify precisely the role you carried out however in this offending.  The crop was cultivated by you on your own premises but it would appear that at least one other person was concerned in the activity as well.

13I accept that you intended to use a quantity of the cannabis yourself but you also had a commercial purpose in relation to it its cultivation.

14By reason of the fact that the cannabis was cultivated on your premises, that building is regarded as tainted property and pursuant to the provisions of the Confiscation Act 1997, it will be forfeited by you.

15Your counsel informed me that the premises are valued at approximately $500,000 and this will be a very substantial financial loss that you will incur.  You have owned those premises since 1997 and it was from them that you generated your livelihood as a baker.

16You were born in Melbourne on 4 December 1956 and are now aged 59.  You will soon turn 60.

17Your prior criminal history is of little significance in this case.

18You have never married and have no children and for most of your life resided with your mother, prior to her death in 2011.

19I accept that you have lived, for the most part, an isolated and lonely life.

20I have received in evidence a psychological report of Mr Simon Nudds and a psychological report of Mr Matthew Santos.   I accept that you suffer from long standing clinical depression and anxiety which has had a significant impact on your wellbeing.  Your poor psychological health was further impaired in 2005 when you were diagnosed with throat cancer and underwent surgery and other treatment in relation to it.

21In my opinion the principles enunciated by the Court of Appeal in R v. Verdins (2007) 16 VR 269 are engaged in your case such that the principle of general deterrence is to be moderated in this instance. Furthermore, your moral culpability is to be moderated by reason of your psychological condition.

22I also accept that imprisonment will be more onerous for you due to your psychological ill health.

23Specific deterrence is not a prominent consideration in this case and your prospects for rehabilitation may properly be described as good.

24You also suffer from significant physical ill health, including hypertension, diabetes and renal impairment.

25For a man of your years with your physical and mental health issues, prison will be especially onerous for you and the non‑parole period that I propose to fix in this case will reflect this fact.

26I also accept that your future financial situation is uncertain and you were forced to sell your home as you could not meet the repayments on a loan incurred to purchase your sister's share in it.

27Finally, this matter is now over three years old and you have not reoffended whilst on bail for these offences.

28In the result, the sentence of the court is as follows: 

On Charge 1, the charge of cultivating a commercial quantity of a narcotic plant, namely cannabis, you are convicted and sentenced to be imprisoned for one year and nine months.

On Charge 2, the charge of theft, you are convicted and sentenced to be imprisoned for six months.

I order that three months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1.

This makes for a total effective term of imprisonment of two years.

I order that you serve eight months' imprisonment before becoming eligible for release on parole.

I declare that you have served 28 days by way of pre‑sentence detention.

But for your plea of guilty in relation to Charge 2 I would have sentenced you to a term of imprisonment of nine months.

I have made the s.464ZF and disposals orders sought on behalf of the prosecution.

That means that you will be due for release, Mr Wilson, in approximately seven months.

Any further orders necessary? 

MS BATE:  I don't believe so, Your Honour. 

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