Director of Public Prosecutions v Wilson

[2015] VCC 97

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 14-00305

DIRECTOR OF PUBLIC PROSECUTIONS

v

RONALD WILSON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	6 February 2015
DATE OF SENTENCE:	6 February 2015
CASE MAY BE CITED AS:	DPP v Wilson
MEDIUM NEUTRAL CITATION:	[2015] VCC 97

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 K. Doyle	Office of Public Prosecutions
For the Offender	Ms S. McCrickard	Victoria Legal Aid

Pages 1 - 6

 

 

1HIS HONOUR:  Ronald Wilson, you have pleaded guilty to one charge of cultivating a narcotic plant, namely cannabis, in a quantity not less a commercial quantity applicable to that narcotic plant.  That crime carries a maximum penalty of 25 years' imprisonment.

2You have also pleaded guilty to one charge of use cannabis and one charge of possess fireworks, my understanding being that those charges carry monetary penalties only and in this overall situation you are convicted and discharged in relation to each of those.

3You are 52 years of age.  You have pleaded guilty and you must get the utilitarian benefit of that plea of guilty.  It saves the need for a trial and people should be encouraged to do that.

4Insofar as remorse is concerned, your reason for cultivating was for the suppression of chronic pain and clearly I take that into account.

5Insofar as your prior history is concerned at the age of 52, it is indeed a long one and stretches back to the 1980s in the Northern Territory.  Significantly there is one prior for cultivation in Victoria which goes back now some 20 years and there is one from the Northern Territory nearly 30 years ago.  Those matters are of little significance here other than you have a significant number of use and possess cannabis charges which simply, in my view, support the proposition that you have been a long‑term chronic user and that the crop that I am about to describe was grown for the personal use of both yourself and your co‑accused who has already pleaded guilty.

6The summary of the Crown opening is, that in September of 2012 people at the Yallourn power station discovered what they believed to be a cannabis plant on part of the property.

7On 14 November 2012 police attended and found three small crops or smaller crops each comprising cannabis plants separated by small wire fencing.  There were two wheelie bins filled with water and fitted with taps positioned near the crop made up of the larger plants.  At that point there were an estimated 150 plants and nearby there were 70 punnets of what appeared to be cannabis seedlings.

8On 11 December police returned to the crop and the seedlings had been planted and a fence constructed.  Police installed a motion sensitive digital camera.

9On 17 December they returned and retrieved the camera and discovered a number of images which had been taken between 7.30 pm and 7.55 pm I believe on 12 December.  You were captured in those pictures, as was Mr Patterson, your co‑accused.

10On 7 February police again conducted surveillance and two males were seen at the crop and tubs were loaded into a car, they being tubs of water.

11On 26 March police again attended the crop and observed that it had been harvested with all plants removed. 

12On the 27th search warrants were issued for both yourself and Mr Patterson and you were placed under arrest.  During the search of your premises police located, or indeed as I understand it you gave them, approximately 5.39 kilograms of dried cannabis and I accept for these purposes that that cannabis was the proceeds, if that be the correct term, of the crop that had been harvested.

13Additionally, as I have indicated, fireworks were found and you admitted to using cannabis yourself.  You otherwise made no comment in regard to Hernes Oak, which is where the crop was growing, but having read the material you were quite clearly in dispute with the police about them having seized $800 that had nothing to do with drugs and I accept that there was a degree of unpleasantness about it all.

14In any event, you have pleaded guilty in the end which is what really matters.

15Insofar as that summary is concerned it is also important to look at the statement of Mr Patterson, your co‑accused.  Mr Patterson was 42 years of age and had no prior convictions, however he was part and parcel of this crop and said that he and you were growing it for your own personal use.  He also, as I will refer to in a moment, suffered chronic pain and used it for the relief of that.

16He said that you and he agreed to grow a crop and go halves in everything for your own personal use.  The plants were set up.  He said that neither of you had any idea what you were doing and just went from what a book he was reading said to do.  He said he had heard different stories but just followed the book.  As I understand it that book was found at his premises.

17The pair of you would go to the crop together and in summer were going every day to water it.  You would drive up there and then essentially look after them.  He said that when they found three plants missing, presumably taken by the police, he decided harvest the crop and cut down around about 150 or so.

18In terms of parity, he then took the plants back to his house and dried them in his spare room and they were then divided up on his scales, so it seems to me that insofar as involvement in this is concerned it would be unfair to single you out now.  The difference between you is that you do have the prior convictions which in my view are very much out-dated in any event and simply confirm what you told the psychologist.

19I make an order pursuant to s.464ZF of the Crimes Act that you provide a saliva sample for DNA purposes.  That order is made and handed down.  Your counsel will explain to you what to do.  I simply tell you that if you refuse to provide such a sample police may use reasonable force to take it from you.

20Mr Patterson, the co‑accused, received a, as I think I have indicated, a nine month sentence wholly suspended for 18.  On the factual basis of the actual crop, I see no reason to differentiate between you.

21In terms of matters personal, I then look at reports that were tendered on your behalf.  Firstly, a report from the High Street medical centre in Bunyip which I will simply quote from:  "Mr Wilson first attended me on the 20th of April 2014 to commence a methadone maintenance program to treat his co‑morbid chronic pain and opiate dependence.  Mr Wilson is still currently on this program.  Mr Wilson told me his pain was related to a motor vehicle accident he was involved in in 2000.  Mr Wilson also suffers from prostate cancer which is being managed by the Peter MacCallum hospital and pain in the left inguinal region after a recent hernia repair which has been complicated by a nerve being entrapped in the scar tissue which in turn is causing quite a significant degree of disability."

22He says that you suffer several significant health issues and I note that you are now using the methadone insofar as the chronic pain is concerned.  He says, and I accept, that your medical conditions would make a custodial sentence more onerous for you than for the average person.

23I then look to the report of Mr David Ball from Central Melbourne Psychology.  He outlines your history in that you were the second of four siblings; that your stepfather travelled a lot and your mother re‑partnered.  He said that your stepfather was violent and a heavy drinker.  The family moved frequently and lived in a caravan for over ten years following the mining industry.  You left home at the age of 15 when you bought a caravan.  It is clear from your prior history that you have spent time in the Territory and indeed you have a prior conviction from the Tennant Creek Magistrates' Court which I don't think I have seen before.

24In any event, you attended numerous schools ultimately completing Year 10 in the Territory.  You got into fights at school and you subsequently had a good work record completing an apprenticeship as a diesel mechanic and as a panel beater.  However, you were involved in a motor vehicle accident in 2000, have been unable to work since that time, and are in receipt of a disability support pension.

25It is the chronic pain arising from that motor vehicle collision which gives rise to your, for the last decade or so at least, using cannabis for extended periods of time to help deal with it.  As Mr Ball said, your medical reports confirm treatment for chronic pain.

26You have effectively used cannabis in these circumstances for self-medication, whether that be the past or way back to your mid‑teens, I don't know, but you are certainly a chronic user and there is no suggestion in this particular matter of trafficking at all.  I make it very clear that I am satisfied to the requisite degree, particularly having read the statement of Mr Patterson, that this crop was being grown solely for personal purposes, solely because you were on a disability pension and the crop itself was to last you for a year, which on my understanding of cannabis is probably about right.

27Importantly, Mr Ball goes on to say, "In my view imprisonment for Mr Wilson would be more onerous for him than would be the case for other prisoners.  As stated in his medical records, he suffers a raft of severe and debilitating illnesses, including prostate cancer.  His condition will continue to require close medical observation and surgical intervention.  Mr Wilson would not be able to access his current medical and ancillary health professionals who are helping him to manage his condition and rebuild his life, reducing his recourse to cannabis".

28In all those circumstances I think that certainly the later principles in Verdins are enlivened and you should get the benefit from them.  Where it is totally for personal use and involves pain relief I think that to actively incarcerate you would serve no useful purpose whatsoever.

29Obviously general deterrence has to play a part in all this and I think a custodial sentence is appropriate, though in these circumstances it is one that can be, in my view, easily wholly suspended for a period of time.

30The prospects of your rehabilitation and your reoffending are entirely up to you.  You are 52.  You know the risk you run and it is ultimately a matter for you.

31I am also very much aware of the recent decision of Boulton in terms of sentences of last resort and the like which insofar as custody was concerned was always the position, but in any event I indicate that in this particular circumstance had a wholly suspended sentence not been available to me I would have given you a CCO, I would not have actively incarcerated you for all the reasons I have outlined.

326AAA, because I have wholly suspended it I don't need to do.  So what we are doing is this:  sentence of 12 months suspended for two years.

33Just stand for me, Mr Wilson.  I don't know if you have had these before or not but wholly suspended sentence for two years.  If you breach it you have got to show exceptional circumstances why you don't go in.  Now, it is up to you but if you breach it for cultivating cannabis you are going in, all right.  There is going to be no way around it, your exceptional circumstances have been used up, I can't do much about that, it's a matter for you.  You are old enough now to know what the world involves. 

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