Director of Public Prosecutors v John Ryan Bennett

[2017] VCC 653

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION

Case No. CR-16-01920

DIRECTOR OF PUBLIC PROSECUTIONS  Prosecution

v

JOHN RYAN BENNETT  Defendant

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JUDGE:  His Honour Judge Murphy
WHERE HELD:  Melbourne
DATE OF HEARING:  17 May 2017
DATE OF SENTENCE:  23 May 2017
CASE MAY BE CITED AS:  DPP v Bennett
MEDIUM NEUTRAL CITATION:               [2017] VCC 653

REASONS FOR SENTENCE

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Catchwords:             Criminal law – Sentence – Cultivating a narcotic plant (commercial quantity), storing a firearm and cartridge ammunition whilst unlicensed in an insecure manner – Related summary charges – Guilty plea – Offender attended at rental property over a period of three months to attend crop – Sophisticated hydroponic set up – Relevant prior convictions – Submission that offender a “crop-sitter” – Whether classification appropriate – More appropriate classification that the offender is part of a joint criminal enterprise – Offence classified as being, at least,  in the ‘mid-range’ – Requirement that mid-range sentences incrementally increase – Nguyen v The Queen [2017] VSCA 100; R v Verdins [2007] VSCA 102; (2007) 16 VR 269, discussed – Nguyen v The Queen [2016] VSCA 198 applied

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APPEARANCES:               Counsel  Solicitors

For the Crown  Mr A Buckland  Office of Public Prosecutions

For the Defendant              Ms N Kaddache                  Stary Norton Halphen

HIS HONOUR:

1John Ryan Bennett, you have pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity and one charge of being in possession of a firearm and cartridge ammunition without a licence and storing that firearm and cartridge ammunition in an insecure manner. You have also pleaded guilty to summary charges of dealing with property suspected of being the proceeds of crime, namely the sum of $2,475, being a non-prohibited unlicensed person possessing a Category A long arm and possessing cartridge ammunition without a license or permit.

2The maximum penalties are set out in the Crown opening, which I incorporate by reference.[1]

[1] Exhibit A on the plea.

Circumstances of the offending

3The offending that you have admitted occurred between 29 April and 14 July 2016, where you have admitted cultivating cannabis in a residential property in Glenora Avenue, Croydon (the Croydon property).  At the time of the offending, you were living alone in a rental property in Paisley Avenue, Boronia (the Boronia property).

4The Croydon property was leased to a friend of yours, Joanne Whitaker. The lessor had been having difficulty receiving the rent from Ms Whitaker and Ms Whitaker subsequently advised the owner that you would be occupying the property and paying the rent. This occurred in about July 2015.

5There were several communications between you and the owner over the period until July 2016. During this time, you stored an unregistered Holden Commodore at the Croydon property.

6From about August 2015 until the time you were arrested, a neighbour noticed you visiting the Croydon property on a weekly basis, where you would be seen checking the letterbox and walking around the back of the house.  You were only present for a short period of time, between 45 minutes to an hour, on each occasion.

7In November 2015, you advised the owner of the property that you had purchased a second vehicle and would be storing it at the Croydon property.

8On 8 July 2016, the police executed a search warrant at the Croydon property and found a sophisticated hydroponic set up inside the property. The power had been bypassed and within the property, there were exhaust fans, lights, timing devices and water pumps. There had been internal modifications to the rooms.

9Police located 49 cannabis plants, 29 growing shrouds fitted with globes, 28 electrical ballasts, 7 fans and a series of other items consistent with a sophisticated hydroponic set up.  This constitutes Charge 1 on the indictment, cultivating a commercial quantity of a narcotic plant.  I note that a commercial quantity of Cannabis L is 100 plants, or 25 kilograms.[2]

[2] Drugs, Poisons & Controlled Substances Act 1981 (Vic), Schedule 11.

10In addition to finding these items, police found an electricity bill in the name of Christopher Walker and an access card in the name of Joanne Whittaker.

11Further investigations by police determined that the plants were Cannabis L, which weighed a total of 80.38 kilograms, which is more than three times a commercial quantity.

12At the Croydon property, police located a receipt from K-Mart, for which police were able to obtain the CCTV footage, which showed you, at the K-Mart located in Boronia, purchasing electrical items that were listed on the receipt found.

13Subsequently, on 14 July 2016, police executed a search warrant at the Boronia property where you were arrested. Here, police found a bowl containing chopped up cannabis, $2,475 in cash, three letters addressed to Christopher Walker, and amongst other things, a silver key which gave you access to the Croydon property.  The cash found at the Boronia property constitutes summary Charge 8, dealing with property suspected of being the proceeds of crime.

14You were taken to Croydon Police Station where you were interviewed.  Later that evening, police executed a search warrant at a storage unit in Bayswater where they located three firearms not secured and wrapped in a blanket (one of which was loaded with seven live rounds of ammunition), three boxes of ammunition and two plastic bags containing dried cannabis and other material (weighing approximately a kilogram).

15You have never had a firearms licence and do not have any firearms registered to you.  The firearms and ammunition found here constitute Charge 2 on the indictment (storing a firearm and cartridge ammunition in an insecure manner whilst unlicensed) and summary Charges 10 and 15.  You are not being charged in relation to the dried cannabis found at the storage unit, or at the Boronia property.

Prior convictions

16Before considering the seriousness of the offences, I must note your prior convictions, which are numerous.  You are now aged 56 and you have a criminal record dating back to June 1978. A significant number of your prior convictions are relevant to this sentencing exercise, as they go towards your prospects of rehabilitation and specific deterrence.  Most relevantly, you have a number of convictions for weapons offences and drug possession and trafficking.

17On 29 January 1988, you were sentenced in the Ringwood Magistrates’ Court, on charges of trafficking a drug of dependence and amongst others, various weapons offences to a period of imprisonment.

18In June 1988, you were again sentenced in the Ringwood Magistrates’ Court to a period of seven months' imprisonment on a charge of trafficking a drug of dependence and possession of amphetamine.

19On 19 March 1997, you were presented in this Court on charges of trafficking cannabis, possessing explosives, possessing a drug of dependence and various weapons charges. You were sentenced to a total effective sentence of four years, with a two year non-parole period.  An appeal by you to the Court of Appeal was dismissed.[3]

[3] The Queen v John Maxwell Green (Unreported, Court of Appeal, Winneke P, Charles & Hampel JJA, 14 October 1997). John Maxwell Green is an alias of the defendant.

20On 7 November 2003, you were convicted and sentenced in the Ringwood Magistrates’ Court to a six month community based order, on a charge of handling stolen goods and driving charges.

21You were again sentenced in the Ringwood Magistrates’ Court on two occasions in 2006, where you received a term of two months' imprisonment, which was to be served by way of an intensive corrections order on various driving and minor drugs offences.

22Most relevantly, you were sentenced in the Ringwood Magistrates’ Court on 15 October 2007 to a period of 12 months' imprisonment on almost identical charges for which I am sentencing you, being possessing and trafficking cannabis, dealing with property being suspected of proceeds of crime, weapons offences, and cultivating a narcotic plant (cannabis).

23Most recently, upon your release, you were convicted and fined on charges of possessing and using cannabis in the Ringwood Magistrates’ Court in March 2009.

24Your prior convictions, of which I have not referred to all of them, which include a number of driving offences, indicate that you have been a long-term user of cannabis and other drugs.  They also indicate, however, that you have been prepared to traffic and cultivate cannabis in the past and you have been involved in a number of weapons offences, for which you have received sentences of imprisonment.

25Although your most recent offending is some eight years since your last appearance, given your prior record, considerations of specific deterrence are relevant in this case, given your failure to reform after earlier sentences, including sentences to terms of imprisonment.

Seriousness of the offending

26In sentencing you, it is necessary to characterise the seriousness of the offending.

27First, the weight of the plants is over three times a commercial quantity.  The number, some 49, is nearly half what would be a commercial quantity.

28Second, the plants found were in various stages of cultivation.  This indicates that this was a determined effort by you to cultivate the plants.  The age of the plants is the basis upon which you have been charged with cultivating over a three month period.

29Third, the setup was the usual sophisticated setup, including a power bypass.

30The undisputed evidence was that you attended that property on a weekly basis over a period of three months. You had been visiting the property on a similar basis for some eight or nine months previously.  In addition, you had purchased some electrical items that I am satisfied were intended for the Croydon property and there was also a piece of equipment at the Boronia property, similar to the equipment located at the Croydon property.

31All these matters lead to a conclusion that you were intimately involved in the cultivation of this cannabis over the charge period.  This is in circumstances where you have prior convictions for trafficking, cultivating and possessing cannabis.

32Your Counsel, Ms Kaddache, submitted that you should be dealt with as a “crop-sitter”.  She put that, in fact, you were tending the crop on behalf of another person, Ms Whitaker, who effectively owned the crop and the equipment, and provided the funds to you to pay the rent. Ms Whitaker is apparently interstate.  In your record of interview, you indicated that she had been providing you with money to pay the rent and she also that he had paid you "[a] few thousand at stages."[4]

[4] See Record of Interview of Accused John Ryan Bennett, p. 26 q. 165 (contained at p. 221 of the Depositions).

33In a recent decision of the Court of Appeal, Nguyen v The Queen,[5] the Court said that it is not necessary in sentencing an offender for cultivating a commercial quantity of cannabis to characterise an offender as being necessarily a principal or a crop-sitter.  Rather, the focus should be on what the offender has actually done, as alleged.[6]

[5] [2016] VSCA 198.

[6] Ibid at [56] per Redlich JA.

34In the present case, the best way to characterise your conduct, in the absence of any evidence that you established the set-up, is that you were in a joint criminal enterprise with others to cultivate the cannabis.  Over the charge period you played a key role in that enterprise.  That is obvious from your possession of the key to the property, your possession of correspondence relating to the deceased person, Mr Walker, in whose name the electricity was connected and your own admission that you received funds to pay the rent from Ms Whitaker.  You were also involved in liaising with the lessor. You were intensively involved in the cultivation over the period charged.

35All these matters, I am satisfied, lead to the conclusion that you must carry a high degree of culpability for this offending.  Adding to the culpability is the fact that you have prior convictions for trafficking cannabis and cultivating cannabis.

36Thus, I accept the submission from the learned Crown Prosecutor, Mr Buckland, that this is to be treated, at least, as a mid-range offence.

Charge 2 and the summary charges

37The summary offences and the second charge on the indictment are of lesser seriousness, but your prior convictions indicate that your culpability for that offending is high.  You have a number of prior convictions for firearms offences, and thus, your explanation that you were in possession of firearms for a friend carries little conviction.  Given that you have served terms of imprisonment for possession of explosives and prior convictions for possession of prohibited weapons, you must have known when you accepted possession of the firearms that you were committing a criminal offence.

38The $2,475 in cash that was found in your possession was not satisfactorily explained by you.  You have admitted it is proceeds of crime.  The clear inference is that it was not lawfully obtained, although what particular crime it was the fruit of is a matter of speculation.

Your personal circumstances

39Your personal circumstances were set out on the plea and included in a report from Dr Aaron Cunningham, psychologist.[7]

[7] Report of Dr Aaron Cunningham, Forensic Psychologist, dated 12 May 2017. Exhibit 2 on the plea.

40You are now aged 56 and have had a difficult and dysfunctional upbringing.  You were born in Tasmania and your parents separated when you were very young.  You left home for several months at age 14 and then returned home.  You left school at age 15 and left the family home at age 16.  Your education was limited.  You struggled at school and when you left school you worked in labouring positions and the longest you held a job for about a year.  You have been on the disability support pension for some 15 years and you have also been unemployed for that period.  You do, however, have some trade certificates.  Your mother left Tasmania with your five siblings. She re-partnered and your stepfather did not provide a father figure within the family.

41You commenced a relationship with Ms Whitaker many years ago.  A child was born, but was adopted out. You had another relationship that produced a son, who you have not seen since he was three months old.  In a further relationship, you produced a daughter, now aged 28 for which you have some continuing contact with her.  You had an eight year relationship with Shauna and produced one daughter who is now aged 18. You have no contact with her. You thus have four children, but only limited contact with one of them.  In recent times you have not been in a relationship.

42Your mother has now passed away and you have no family support and rely on the support of two friends in the community, one of whom recently had a serious medical incident, thus providing you with motivation to support her upon your release.

43You have had heart valve replacement seven years ago and this is relevant to the fact that you were on a disability support pension.  For many years, essentially, you have not been a participant in the workforce.

44You have a long history of drug and alcohol use. You have used methylamphetamine in the past and also heroin when you were in a relationship with Shauna, and you have been on the methadone program.

Prospects of rehabilitation

45I regard your prospects of rehabilitation as, at best, guarded. This is so particularly because you continue to use cannabis.  You have been before the courts for cannabis-type offending on a number of occasions.  On the plea, it was suggested that you use cannabis for medication.  This does not provide any excuse. In the light of your relatively long criminal record, notwithstanding your health problems, you cannot now assert that you are not a mature individual, yet you have not responded to prior dispositions. 

Matters in mitigation

46By way of explanation of the offending, your Counsel put that you had been a long-time user of cannabis. Your Counsel referred to your prior convictions for cannabis and referred to a serious car accident that you were involved in some 20 years ago, which provided an explanation as to your reliance upon cannabis for pain relief. The dry cannabis at the Boronia property is consistent with this.

47In addition to that, you have been on a disability support pension and suffer from depression.

Applicability of Verdins

48Your Counsel relied on a report from Dr Aaron Cunningham and in that report he set out your difficult family history, your poor educational and vocational history, as well as your medical history and your drug and alcohol history.  He notes that you have been taking cannabis to help sleep and for back pain and have trouble ceasing use.  You believe that the drug helps you physically and mentally and it should not be illegal.  He further notes you are on the methadone program.

49He notes you have been on antidepressants.  He opines that you present with depressed mood, loss of interest in pleasurable activities, feelings of worthlessness, fatigue and sleep problems. He diagnoses you as having a major depressive disorder and notes you have not engaged in counselling to address that disorder.

50He is of the view that you are predisposed to that condition, due to your lack of emotional connection in your childhood home and you have relied on drug abuse to alleviate the symptoms.  Your offending behaviour occurred in the context of your drug abuse and association with drug using peers.

51He is of the opinion that you would benefit from drug, alcohol and psychological intervention and that incarceration would aggravate your depressed mood.  He suggested that addressing depression and providing help and support for abstinence from drugs would reduce your risk of recidivism.

52Your Counsel relied on this report as relevant to the impact of a sentence of imprisonment and the terms of that sentence.

53Given your age and medical condition, I accept that it does provide some limited support for moderation in sentence.

Sentencing considerations

54The learned Crown Prosecutor referred to the decision of Nguyen v The Queen [2016] VSCA 198. In that case, the Court of Appeal extensively reviewed the sentences for cultivating cannabis and indicated that the sentencing range for mid-range offences must, by increments, increase.

55During the course of the plea, I referred the parties to the recent decision of Nguyen v The Queen [2017] VSCA 100, which involved cultivation of a commercial quantity of a narcotic plant, in a weight similar to that in the present case.

56In that case, the Court dismissed an appeal by a prisoner against a sentence of four years' imprisonment.

57The learned Crown Prosecutor indicated that the sentence imposed in that case, as approved by the Court of Appeal, would be a relevant yardstick for sentencing purposes here.  I was also referred to a now outdated sentencing snapshot and an extract from the sentencing manual.  I have considered all that material.

58Each case must be considered on its own facts, however, I am cognisant of the direction by the Court of Appeal that sentences for mid-range cases are to be lifted incrementally.  In your case, this was a sophisticated hydroponic setup.  It was over a period of 3 months for which you are charged with cultivation.  I do not accept the submission that you were a mere crop-sitter. You have relevant prior convictions. All these matters are relevant to my characterisation of your offending as, at least, an offence in the mid-range of seriousness.

Purposes of sentencing

59The basic purposes for which a court may impose a sentence are punishment, deterrence – both specific and general – rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.

60I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

61Your Counsel initially submitted that a term of imprisonment, combined with a community corrections order, would be an appropriate disposition.

62However, as emerged during the course of the plea, where authorities such as Nguyen (both 2016 and 2017 decisions) were discussed, your Counsel conceded that a term of imprisonment with a non-parole period is required, considering the seriousness of the offending and your relevant prior convictions.

63I have taken into account all the matters put on your behalf, but for the reasons given, I prefer the Crown characterisation of your offending as relatively serious.

64In sentencing, I have taken into account your plea of guilty.  You pleaded guilty at the earliest opportunity and have facilitated the course of justice.  You also cooperated with the police following the execution of the search warrant and in the record of interview, although the bulk of it was no comment.  I give you credit for those matters and find that your plea is some evidence of remorse.

65I give some moderation of sentence on account of your age and your medical conditions.  As indicated, you have been on the disability support pension for a number of years and have had heart surgery and been diagnosed with depression. You have been on medication for that condition for a number of years.  These are matters which make imprisonment more burdensome for you than for a younger, fully fit individual. This is relevant to both the head sentence and to the non-parole period.

66The principal charge carries a maximum penalty of 25 years' imprisonment.  This highlights the seriousness with which Parliament considers this offence.  The issue of prevalence has been referred to by the Court of Appeal.

67General deterrence must play a principal role in sentencing.  This is economic crime and a signal has to be sent to all tempted to engage in such crime that heavy sentences will be imposed.

68In your case, specific deterrence is also relevant.  You have been dealt with for offences involving cannabis on a number of occasions and this sentence must attempt to deter you from repeat conduct.

69The firearms offences are separate offending and so some cumulation is appropriate.  Also relevant is that you have a number of convictions for firearms-type offences.

Sentence

70On Charge 1 on the indictment, the charge of cultivating a narcotic plant in a commercial quantity, you are sentenced to four years' imprisonment.

71On Charge 2, the charge of storing a firearm and cartridge ammunition in an insecure manner without a licence and on the summary charge of possessing a Category A long arm without a licence you are sentenced to an aggregate term of 15 months' imprisonment.

72On summary Charge 8 of dealing with property being suspected of proceeds of crime, you are sentenced to six months' imprisonment.

73On the summary Charge 15 of possessing cartridge ammunition, you are convicted and fined $200. You are granted a stay of two months.

74Charge 1 is the base sentence.  I direct that eight months of the aggregate sentence on Charge 2 and the summary Charge 10 be served cumulatively on the base sentence, making a total effective sentence of four years' and eight months imprisonment.

75I declare that you serve a minimum term of three years before being eligible for parole. 

76The sentence on summary Charge 8 is concurrent with the other sentences.

77I declare 313 days of pre-sentence detention and order that it be entered into the records of the Court. 

78I declare, pursuant to section 6AAA of the Sentencing Act 1991, that had you not pleaded guilty, I would have imposed a head sentence of six years and three months, with a non-parole period of four years and three months.

79The prosecution have sought a forensic sample order, being a mouth swab, to be stored on the database.  Given the seriousness of the offending here, I regard it as appropriate to make such an order and the authorities have the right to use reasonable force to obtain such an order.

80The prosecution have also sought a disposal order for the various pieces of equipment and devices found at the properties and also a forfeiture order on the money found at the Boronia property and the firearms. I make those orders.

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