DPP v Bernath
[2014] VCC 589
•02 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication) |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01927
CR-13-01914
CR-13-01920
| DPP |
| v |
| Aaron Bernath Callan Brown Darren Gauci |
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JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2014 16 April 2014 | |
DATE OF SENTENCE: | 02 May 2014 | |
CASE MAY BE CITED AS: | DPP v. Bernath DPP v. Brown DPP v. Gauci | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 589 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Devlin | |
| For the Accused | Mr Wedsley Mr Magazis Ms Turnbull |
HIS HONOUR:
1
Each of you have pleaded guilty to an indictment charging you,
Aaron Bernath, with an offence of cultivating a narcotic plant, namely Cannabis L between 22 October 2012 and 20 November 2012 at Melton and divers other places. Those divers other places, of course, include the Strathmerton property to which reference has been made.
2 On Charge 2 you, Callan Brown and you, Darren Gauci have pleaded guilty to a similar offence between 13 November 2012 and 29 January 2013 in relation to the Strathmerton property. You, Darren Gauci have also pleaded guilty in Charge 3 to an offence of possessing equipment, namely lights, light shrouds, charcoal filters, growing chemical and electrical transformers with the intention of using the said equipment for the purpose of cultivating a drug of dependence, namely Cannabis L. That arose from equipment found at your home address when the police executed a search warrant.
3 You are also charged, in Charge 4, with an offence of theft of electricity said to have occurred on 29 January 2013. I take it that the prosecution are not alleging that the offence necessarily occurred precisely on that date but it occurred on a date when you were engaged in experimenting with the bypass equipment that was found at your premises.
4 You have also pleaded guilty to a summary offence arising from ammunition found at your premises which had been incorrectly stored and you have asked the court to take that into account today in imposing sentence.
5 You, Bernath have no prior convictions. You Callan Brown do have a prior conviction at the Sunshine Magistrates' Court on 29 September 2004 for trafficking in cannabis, for theft, cultivating a narcotic plant, possession of cannabis and use of cannabis for which you were sentenced to an aggregate sentence of six months imprisonment suspended for a period of 12 months. You, Darren Gauci have admitted to one court appearance, that being at the Werribee Magistrates' Court on 7 November 1990 for possession and use of cannabis for which you were placed on an adjourned bond and I do not regard that offence as being of any significance in the sentencing exercise that we are engaged in today.
6 The prosecution tendered, relied upon and read on previous occasions the prosecution plea summary which is Exhibit A and I am not going to read that again in full. The summary sets out the facts in relation to each of the offences, save as I indicated today, that it was perhaps a little light on in relation to the offence of theft, the subject of Charge 4. That has been clarified and supplements the material contained in the prosecution plea summary. As I understand it, no issue is taken with the facts set out in the summary and I proceed to sentence you based on that information.
7 It is clear that in relation to both the hydroponic setup at the Melton property and at the Strathmerton that the equipment and the establishment of the hydroponic system was designed for the purposes of cultivation of cannabis on a substantial scale for financial gain. It must have been plain to each of you that the criminal venture or criminal ventures to which you were attaching yourselves was or were being established for very substantial profit from the illicit drug trade. I am satisfied beyond reasonable doubt that each of you entered into your role for financial reward.
8 The extent of that financial reward is not possible to ascertain. It is, I think, not possible, to demonstrate on the material before me or to conclude on the evidence before me that you had a financial interest in the overall venture in the sense of being principal operators and principal beneficiaries. However, I have no doubt as I have indicated that each of you expected to be rewarded financially for your participation in this venture. Commonsense would not admit of any other conclusion.
9 These offences are very serious offences. They are prevalent and as I think is conceded on behalf of each of you, general deterrence must play a significant part in the sentencing considerations.
10 Turning to matters personal to each of you. You, Aaron Bernath are 24 years of age. You have no prior convictions. You have pleaded guilty on an aiding and abetting basis. It is not suggested that you were personally the target of the operation. It seems clear that you were engaged to help set up the hydroponic systems in each instance. This apparently arose from your acquaintanceship or friendship with Mr Tabone who is acknowledged as the principal behind these criminal enterprises and the principal beneficiary.
11 You pleaded guilty at the earliest reasonable opportunity and therefore you are entitled to a maximum discount for your plea of guilty. It is submitted that that is an expression of remorse. I accept that it is consistent with remorse. Although I am not necessarily accepting of the proposition that it is evidence of remorse, I am prepared to accept that you are remorseful for your conduct and I will approach sentencing on that basis.
12 You, it seems, have a trade and an ability to work hard. I was supplied with references which are Exhibit B which suggest that you are a person of integrity and ordinarily a person who is hardworking and dedicated and I accept that that is the case. It is also, as I understand it, the case that you were a very promising hockey player although you retired from that at the age of 18 years of age.
13 I was supplied also by your counsel with a report from Dr Paul Grech, a clinical psychologist. That report sets out a deal about your background and your schooling and work history which indicates that you are a person, I think, with good prospects of rehabilitation. You have no prior convictions and I think that you are capable of putting this behind you and leading an honest life. I note the contents of the report although I do not think it is suggested that the report engages the Verdins principles. As your counsel puts it to me, it is necessary for me to balance the need for general deterrence and indeed individual deterrence and punishment against the question of parity with the offending of those with whom you were engaged in these criminal ventures, your role, that being at the lowest end of the scale of involvement in these criminal ventures and the benefit obtained.
14 It is not suggested that you had proprietary interest in these ventures. It is suggested that you gained no benefit. Whether you gained or not, I have no doubt as I have indicated that you entered into the venture in the expectation of reward. It is very much, of course, to be taken into account that you are a person still of a young age with a hitherto good character and a good work record.
15 Turning to you, Mr Brown. Your counsel provided me with an outline of plea submissions which is Exhibit BR1, some certificates which indicate that you made good use of the time that you spent on remand, that is Exhibit BR2 and a letter from Simon Calleja dated 9 April 2014 which is Exhibit BR3 which indicates that you have been working for him in the building of house frames for a major builder in the Melbourne area for about six years and that you are hardworking and reliable. He suggests that you are capable of running a successful business in the housing industry.
16 You do have a relevant prior conviction albeit that that was ten years ago and it was for similar conduct to this. I do not know more about the facts of that previous matter but it is noteworthy that you did not learn or learn sufficiently from that conviction and the suspended sentence you received. You committed these offences in spite of you being convicted of those matters. Nevertheless the letter from Mr Calleja suggests that you have every prospect of putting these matters behind you and leading an honest life and I think your prospects of rehabilitation are good. You too have pleaded guilty at the earliest reasonable opportunity and you are entitled to full credit for that plea. You are 33 years of age.
17 Turning to you, Gauci. Your counsel provided me with a folder containing a substantial body of material and I have read that and read the full detail of it. Your parents have a Maltese background. You were born in Williamstown in 1967 and you are presently 46 years of age, 47 in August of this year. You were educated in Australia although you have returned to Malta from time to time. It is clear that you have built up a substantial and successful concreting business although that has been scaled back somewhat. It seems that you and your partner have plans perhaps to go into some alternative business together, perhaps recognising that your hip problems are such that it makes your life as a concreter difficult to manage even though, of course, you have been employing other people substantially to carry out the work in more recent years.
18 Nevertheless you have had a very successful business it seems and a good income and were engaged in a major project at Moama up until the period very shortly before the commission of these offences. You had your own home at Boronia Drive, Hillside. You have a daughter now aged four and a half and you were hoping to have more children although I understand that you have had some difficulties in that regard. Your wife seems to be a capable person also and is obviously supportive. You had been, it seems, going through some marital difficulties because of the efforts that you were making to have another child and the difficulties that you encountered in that regard. You have had some counselling to assist you to deal with the emotions that were involved in all of that. It may well be that at the end Moama project you were somewhat rundown and tired and perhaps suffering from the effects of the pain associated with your arthritis. So that forms, at least in brief outline, some of the context in which you engaged in this offending conduct.
19 Mr Cummins was called to give evidence on your behalf, that is Mr Geoffrey Cummins, and he supplied a report dated 15 April 2014. He expressed some opinions based upon a history that you gave him, not just of your physical and emotional issues but of how you became involved in these criminal offences. He was cross-examined and he was asked a number of questions by me also. Exhibit B, which is the bundle of transcripts of telephone conversations intercepted by the police as part of this investigation, was tendered during the course of the cross-examination by the learned prosecutor. I indicated my own scepticism of the account which you gave of how you became involved in this offending conduct and the history that you have given Mr Cummins.
20 I must say that, after careful consideration, I reject the history that you provided to Mr Cummins. I do not believe it. I find it very surprising that Mr Cummins apparently accepted it as being truthful, although during the course of cross-examination after he was taken to the telephone transcripts to which I have referred, he conceded that at least there must be some doubt about some aspects of the history that you gave. That is perhaps putting it mildly.
21 I note at the beginning of Mr Cummins' report that he says you essentially gave a no comment record of interview to police. It does not seem to be that that is correct either, because it is plain that you did give a number of answers to police which were patently false, as is clear from Paragraph 29 of the prosecution opening. I do note though that Mr Cummins acknowledged that you yourself acknowledged that you had not told the whole truth to the police. But nevertheless that ought, in my opinion, have alerted Mr Cummins to the prospect that you might not be telling him the truth. I am quite convinced that you did not tell Mr Cummins the truth. I find that the whole basis upon which he has expressed his opinions, based as it was very substantially upon the history you gave him, to be completely unreliable and I am not prepared to accept it or act upon it.
22 I am also supplied under Tab 6 of the folder of materials relied on by your counsel with a report from Michelle Morris, a psychologist and family therapist, who had apparently been counselling you and providing you therapy in relation to anxiety arising from your relationship difficulties which in turn were associated with the difficulties you were having with you trying to get a second child. She apparently counselled you and you consulted with her on a number of occasions during the early part of this year in connection with these matters. She says that you attended for five counselling sessions in relation to your family difficulties, if I can put it that way, and more recently you had consultations with her on 5, 8, 19 February, 4, 5, 25 March. She says you appeared to be open, self effacing and emotional.
23 You apparently had attended her, accordingly to her conclusions, for a psychological evaluation in the context of County Court proceedings to address issues relating to cultivation of cannabis, possession of equipment for the purpose of cultivating a drug of dependence and theft of electricity. "Mr Gauci was punctual for appointments and presented as insightful and serious in understanding the emotions which led to the events that are now before the court. It is my opinion that the therapy has been effective and that he is unlikely to re-offend. This is further borne out by Mr Gauci's view of himself as a law abiding person. He is extremely ashamed and repentant at the situation in which he now finds himself."
24 She goes on a little further below that saying that test results indicated that you suffered from "Generalised anxiety disorder which was comorbid with major depressive episode. This condition together with lack of psychological wellbeing (extreme levels of anxiety and stress, severe level of depression) together with the impairments described above that may have been present at the time of the incident would explain the deficiency in his character. I believe these events demonstrated a cry for help and that they were in response to personal professional events in his life overwhelming him and greatly reduced or eliminated his capacity to cope with them during this period".
25 She does not, it seems, set out the basis upon which those opinions are expressed nor the history that she was given upon which those opinions are expressed. I cannot find any process of reasoning that would enable me to rely upon those opinions as being either helpful or accurate. There is no doubt that you have suffered from pain as a result of your hip condition and continue to receive medication and suffer pain as a result of that condition. About that I think there can be no dispute.
26 In the folder at Tab 10 were a series of references and they undoubtedly do show that you are a person who has a good reputation. You are a good worker and a reliable person and a good family person and that you have many good qualities that show a different side to you from that which is shown by your offending conduct. I really do not know why you became involved in this offending conduct. You did not need the money and although you had, it seems, quite a longstanding relationship with Mr Tabone I reject the notion that you were in fear of him and I reject the notion that you permitted him to use those premises at Strathmerton on the basis of anything other than an expectation of financial reward. It seems to me that any conclusion to the contrary flies in the face of any sensible view of the objective facts.
27 Nevertheless, you too have pleaded guilty and that is to your credit. I accept that you are remorseful now and I think that is to be taken into account in your favour. I accept that your physical condition, your health and the pain that you suffer from will make time in custody harder and will have made time in custody harder and I take that into account also. I do not regard any of the Verdins principles as applying in your case for the reasons I have already indicated. It would, of course, have been open to you or open to your counsel to have called you to give evidence or to have led evidence from others in support, particularly since it was very clear that neither the prosecution nor indeed I, as clearly indicated during the course of the plea hearing, were inclined to accept the history that you had provided Mr Cummins.
28 Now it is my duty, taking all those things into account in respect of all three of you, to try and balance as best I can the need to punish each of you. The need to denounce the criminal conduct in which you engaged, the need to deter each of you from committing further offences and, in particular, the need to deter others from committing offences of this kind in the future. All that I must do bearing in mind the need to facilitate your rehabilitation, as best I can, having regard to those sentencing principles.
29 I was urged on behalf of each of you to give you a non custodial sentence. Either because you had already done time and that time was sufficient or because the overall circumstances would permit that notwithstanding the need in particular for the court to deter others from committing offences of this kind. These offences do not involve, of course, cultivating a commercial quantity of cannabis but they do involve a cultivating venture which was at the very high end of the scale of cultivating simpliciter. The courts have made clear that ventures of that kind towards the top end attract sentences that are not far short of, at least the low end of the scale, of sentences appropriate for commercial cultivations.
30 I do not sentence you on the basis of these being commercial cultivations. I sentence you on the basis that none of you had the state of mind that you were becoming involved in offences of cultivation on a commercial scale. Nevertheless there was to be clearly a very substantial financial reward to be obtained from cultivation on the scale in which you engaged yourselves.
31 I have formed the view that the only sentence that I can properly pass in those circumstances is one of immediate custodial sentence and I propose to pass sentence accordingly. Would you stand, Mr Bernath.
32 On Charge 1 for the offence of cultivating Cannabis L, I sentence you to 18 months imprisonment and convict you and I order that you serve a period of nine months before you become eligible for parole. I mention this. That even though you were lower on the scale than Mr Mamo in relation to the first of the cultivations, that being at the Melton property, you engaged yourselves in two ventures even though those were not, of course, commercial ventures so far as you were concerned. If you had not pleaded guilty to these offences I would have sentenced you to 24 months imprisonment with a non parole period of 18 months.
33 Now what is the current pre-sentence detention? I think it might be 59 days but I could be wrong. I think it was 42 but that was up to - - -
34 MR DEVLIN: Yes Your Honour. My calculations are 42 days - - -
35 HIS HONOUR: Plus?
36 MR DEVLIN: Plus 16 days since 16 April 2014. So that's 58 days.
37 HIS HONOUR: Yes, 58 days. I declare 58 days of pre-sentence detention to be reckoned as time served on the sentence that I have imposed and deducted administratively from the sentence you will actually have to serve and I order that that be noted in the records of the court.
38 I order in your case, as I will in relation to the others, that you undergo a forensic procedure to provide a sample of your DNA and you will be requested by an authorised officer to provide that sample and that will be taken by a scraping from the mouth. If you fail or refuse to provide a sample by that means the officer will be authorised to take a blood sample and may use reasonable force to do that. I am quite sure you will not put them to that trouble. All right, you can sit down for the time being.
39 You Mr Brown, on Charge 2 of cultivating cannabis, bearing in mind that you are older than Mr Bernath and you have a prior conviction that is highly relevant even though ten years ago. On Charge 2, I convict you and sentence you to imprisonment for a period of 33 months and order that you serve a period of 22 months before becoming eligible for parole. But for your plea of guilty I would have sentenced you to 44 months imprisonment with a non parole period of 30 months. In your case, I think, pre-sentence detention of 65 days.
40 MR DEVLIN: Yes Your Honour.
41 HIS HONOUR: Is to be reckoned as time served under the sentence that I have imposed and that will be deducted administratively from the time you will actually have to serve and I order that that fact be noted in the records of the court. Likewise the prosecution have applied for and I understand there is no opposition to you providing a sample by way of a scraping from the inside of your mouth and a similar request will be made of you and, of course, I am sure that you will comply with that. But nevertheless I have to warn you that the officer would be authorised to take a blood sample if you failed to or refused to provide the scraping from the inside of your mouth. All right, take a seat.
42 You Mr Gauci, on Charge 2, I convict you and sentence you to imprisonment for a period of 24 months. On Charge 3, of possessing the items for the purposes of cultivation, I sentence you to imprisonment for a period of 12 months and convict you. On Charge 4, of theft of electricity I convict you and discharge you. For failing to store ammunition correctly I convict you and discharge you. The sentence on Charge 2 is the base sentence and I order that three months of the sentence on Charge 3 be cumulative upon the sentence on Charge 2 making a total effective sentence of 27 months imprisonment and I order that you serve a period of 18 months before you become eligible for parole. But for your pleas of guilty I would have sentenced you to 36 months imprisonment with a non parole period of 24 months. I think in your case it is a total of 17 days, is that right, pre-sentence detention?
43 MR DEVLIN: Yes, Your Honour.
44 HIS HONOUR: I declare 17 days of pre-sentence detention as time served on the sentences that I have imposed and that period will be deducted from the time you will actually have to serve and that fact will be noted in the records of the court. In your case similarly, I order that you be the subject of the provision of a forensic sample and that will be provided by the scraping from the inside of the mouth, just as I have indicated to the other two accused, the other two offenders. Again if you comply with that request there will be no problem. If not then the officer would be authorised to take a blood sample using reasonable force.
45 I have also been supplied with draft forfeiture orders and a draft disposal order and I understand there is no opposition to the making of those orders and accordingly I make those orders in the terms of the drafts. Are there any other orders that I need make, gentlemen?
46 MR WEDSLEY: No Your Honour.
47 MR DEVLIN: No Your Honour. As Your Honour pleases.
48 HIS HONOUR: Thank you. All right, thank you.
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