Director of Public Prosecutions v Wings

[2016] VCC 1809

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

AT BENDIGO
CRIMINAL JURISDICTION

CR -16-01176

DIRECTOR OF PUBLIC PROSECUTIONS

v

HENDRICK WINGS

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Bendigo
DATE OF HEARING:	23 November 2016
DATE OF SENTENCE:	23 November 2016
CASE MAY BE CITED AS:	DPP v Wings
MEDIUM NEUTRAL CITATION:	[2016] VCC 1809

REASONS FOR SENTENCE
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Catchwords:  Criminal law – cultivating a narcotic plant – possess drug of dependence (cannabis L) – Community Correction Order imposed.

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APPEARANCES:	Counsel	Solicitors
For the Accused	In Person
For the Director of Public Prosecutions	Mr D. Cordy	John Cain, Solicitor for Public Prosecutions

HER HONOUR:

1Hendrick Wings, you have pleaded guilty before me to Charge 1, cultivating a narcotic plant on 15 January 2016 contrary to s.72B of the Drugs, Poisons and Controlled Substances Act 1981 and Charge 2, possess drug of dependence namely cannabis L on 15 January 2016 contrary to s.73 of that Act.

2In addition a summary charge, Charge 4, use drug of dependence, cannabis L, has been transferred to this court pursuant to s.145 of the Criminal Procedure Act 2009 for use was between 14 January 2016 and 15 January 2016 to which charge you pleaded guilty.

3I have already announced the sentence in respect to Charge 1 and 2 and I will repeat that.  You are convicted and you will be placed on a community corrections order for 12 months with supervision and a further condition in respect to you undergoing assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager.  I do not propose to order community work because of your chronic health conditions.

4In respect to the summary charge, use drug of dependence, you will be convicted and discharged.

5I make the disposal order sought in respect to the items that were located by the police at the time of your arrest. 

6An application has been made pursuant to s.464ZF to the Crimes Act 1958 for the taking of a forensic sample.  I have not specifically asked you your attitude to this but in the circumstance I do not propose to make an order in the manner sought.  At the time of your arrest there was no issue with your identification, you were fully cooperative with the police and in those circumstance I do not consider that such an order is warranted.

7I will now move to my reasons for sentence.  Mr Wings, your offending was detected following the police executing a warrant under the Drugs, Poisons and Controlled Substances Act at your property at Amherst on 15 January 2016. 
At that time you were present with your wife and a daughter, who is aged 15.  You were cooperative with the police and showed them where you had stored some dry leaf cannabis in your house and you also showed them where some plants were located in your property.  All up there was 188.3 grams of plant leaf and 22 plants located.  Four of the plants were in the car boot and they were said to be male plants that were being disposed of.  The total weight of the plants was 3.1619 kilograms.

8You were taken to the police station and formally interviewed.  You were fully cooperative and made fulsome admissions.  As a consequence the police laid the charges the subject of the indictment and the summary charge. 

9The prosecution accepts that the cannabis that was located was for personal use and there was no suggestion that you had cultivated cannabis in order to sell it.  When searching your premises police did not locate any of the usual paraphernalia connected with cultivation for a profit such as weighing scales, lists of customers or a large hoarde of cash.  Therefore I propose to sentence you on the basis that the cannabis located at your property was for your own personal use.

10Nevertheless, Mr Wings, this is still serious offending and that is reflected in the maximum penalties; they are 15 years' imprisonment for Charge 1, cultivation.  Five years' imprisonment for possess drug of dependence and five penalty units for use drug of dependence.

11The sentence to be imposed must reflect just punishment and emphasis general and specific deterrence.  You have prior criminal history, including dishonesty and other offences and relevantly, previous convictions for drug related offending.  They are somewhat dated and many years have now lapsed since you were last dealt with by the courts.

12There are three occasions where you have been dealt with drug related offending, the first being Coburg Magistrates' Court on
3 December 1983; Prahran Magistrates' Court on 8 July 1992 and Broadmeadows Magistrates' Court on 28 May 1993. On each of those occasions you were charged with possess, use and cultivate cannabis. You were fined on the first two occasions and on the last occasion a three month sentence was suspended for 12 months pursuant to s.27 of the Sentencing Act.

13You have provided an explanation for your offending as set out in the record of interview.  In brief, you say you have been using marijuana for 45 years daily for medicinal purposes and that you grew the marijuana for that purpose.  You have a number of chronic health issues and you state that cannabis alleviates your pain.  You did not provide the court with any secondary evidence to support this proposition but the Crown did not challenge this assertion when you told the court that information.

14In respect to your chronic health issues, from about age 16 you have had low back pain off and on.  About 35 years ago you were in a single vehicle collision where your car left the roadway and struck a power pole.  That led to serious facial injuries for which you had to have facial reconstructive surgery at the PANCH Hospital.  About five years ago you had operative treatment for a fractured ankle.  Your ankle was plated and screwed.  You have had toes shortened and lengthened at Ballarat Base Hospital and as a consequence walking for you, any distances, means that you suffer pain.  You have also recently had bilateral carpal tunnel condition.

15There is a body of research that does support the use of medicinal marijuana and its effectiveness for chronic pain and that is reflected in the recent Victorian legislation that has been introduced to enable medicinal cannabis to be provided to defined groups of patients and I refer to the Access to Medicinal Cannabis Act 2016 passed by the Victoria parliament on 12 April 2016.

16It is always the case that recreational use of cannabis is illegal and will remain illegal and nothing in the new scheme that is being proposed changes this status.  I understand that you consider that you have a logical reason for the use of cannabis that provides an explanation for your offending. However, having regard to your past criminal convictions for this sort of offending it really does not excuse your offending.

17You have had access to a long term general practitioner who wrote a letter to the court in which he makes no assertions about having supported your quest to use marijuana for the alleviation of pain.

18You have been aware, from your past dealings with the courts, that using marijuana in these circumstance is illegal and that always will continue to be the case unless parliament passes legislation.  You need to be deterred from further ongoing offending in the future. 

19I have noted from the materials that have been provided to the court that you are now pursuing information about ways of dealing with your chronic pain through the use of medication and psychological treatment. It has been recommended that you attend the Barbara Walker Centre at St Vincent's Hospital, which is a well-known and respected pain management clinic.  That recommendation has been made to your long term general practitioner, Dr de Villiers and hopefully, having regard to the outcome of this matter, you can now pursue legitimate means of dealing with your chronic pain.

20In mitigation, I have taken into account your full cooperation with police, your fulsome admissions, your early plea of guilty entered at the earliest opportunity.  There is utility in your plea and you have facilitated justice and you are entitled a discount on sentence that is real and not illusory. 

21I have had regard to your personal circumstance.  You are now 62 and continue to live at Amherst with your wife of many years and two younger children.  That is a small hamlet located partway between Bendigo and Ararat and is northwest of Talbot in the Shire of the Central Goldfields.  You described your occupation as being retired, albeit that you are on Newstart allowance.  You have some olive trees that you growing and you are hoping to be able to make some oil next year.

22Overall, I have come to the conclusion that the appropriate sentencing disposition is the community corrections order with respect to the charges on the indictment.  I have been guided by the Court of Appeal decision of Boulton v R and note that it is now accepted in Victoria that a Community Correction Order is punitive as well it can be used and have important weight in terms of general deterrence and specific deterrence and also in providing for your rehabilitation.

23The CCO that I have announced will encourage you and further your rehabilitation by supporting you in dealing with your addiction to cannabis L through providing the special condition that you undergo assessment and treatment for drug abuse including testing.  That are my reasons for decision.  Thank you.

24MR CORDY:  I'll just hand up, Your Honour, the draft orders for the disposal ‑ ‑ ‑ 

25HER HONOUR:  For the disposal?

26MR CORDY:  Yes.

27HER HONOUR:  Yes. 

28MR CORDY:  Is Your Honour proposing to make a s.6AAA declaration?

29HER HONOUR:  I don't believe it's necessary where a CCO has been imposed.

30MR CORDY:  I think that's right, Your Honour. 

31HER HONOUR:  Yes.

32MR CORDY:  Technically.

33HER HONOUR:  So I don't propose to.

34MR CORDY:  All right.  Yes, thank you.

35HER HONOUR:  There's no gaol.  I know some people do but my reading of the legislation is that it's not necessary. 

36MR CORDY:  As Your Honour pleases.

37HER HONOUR:  There's the disposal order.  Can you provide a copy to Mr Wings and once he gets that, he's free to go.  All right, Mr Wings, you are free to go once my Associate provides you with a copy of your Community Correction Order.  Hopefully for the next 12 months you will be guided by what your doctor says in terms ‑ ‑ ‑ 

38OFFENDER:  Thank you, Your Honour.

39HER HONOUR:  ‑ ‑ ‑ pain management rather than managing it yourself ‑ ‑ ‑ 

40OFFENDER:  Thank you, Your Honour.

41HER HONOUR:  ‑ ‑ ‑ with consequences of further offending.

42OFFENDER:  I understand.

43HER HONOUR:  All right thank you.

44OFFENDER:  Thank you.

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