DPP v Cole
[2018] VCC 1788
•13 November 2018
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-18-01504
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT COLE |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Geelong | |
DATE OF PLEA HEARING: | 26 and 30 October 2018 | |
DATE OF SENTENCE: | 13 November 2018 | |
CASE MAY BE CITED AS: | DPP v Cole | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1788 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentencing – Cultivate a narcotic plant in a commercial quantity – Offender grew 12 plants weighing an aggregate total of 54.81 kg for personal use – Whether family hardship constitutes exceptional circumstances – Whether combination of factors justify departure from mandatory sentence requiring the imposition of an immediate term of imprisonment
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991 sections 5(2H), 5(2HC) and 5(2I)
Cases Cited:DPP (Vic) v Hudgson [2016] VSCA 254, Re Ceylan [2018] VSC 361, Hendricks v The Queen [2014] VSCA 185, DPP v Gaw [2006] VSCA 51, The Queen v Esposito [2009] VSCA 277, The Queen v Mitchell [1974] VR 625, The Queen v Moffa (No 2) (1977) 16 SASR 155, The Queen v Panuccio (unreported) Supreme Court of Victoria Court of Appeal 4 May 1998, Markovic v R; Pantelic v R (2010) 30 VR 589, R v Davidson; R v Konestabo [2008] VSCA 188, The Queen v NAD [2008] VSCA 192
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M Sharpley | Office of Public Prosecutions |
| For the Offender | Mr P J Flynn | Peter J Flynn Solicitor |
HER HONOUR:
1 Brett Cole, you are to be sentenced on one charge of cultivating a narcotic plant in a commercial quantity as alleged in Indictment J11006564.1, contrary to s72A of the Drugs, Poisons and Controlled Substances Act 1981.
2 The maximum applicable penalty is 25 years’ imprisonment.
3 You are also to be sentenced on a related summary charge of using a drug of dependence (Cannabis), contrary to s.75 Drugs, Poisons and Controlled Substances Act. The maximum applicable penalty is 5 penalty units.
4 You pleaded guilty to both charges when arraigned before me on 26 October 2018.
Circumstances of offending
5 The circumstances of offending are set out in the summary of prosecution opening tendered as Exhibit A. I shall annex a copy of that document as Attachment A to these reasons for sentence. You accept that the summary is accurate.
6 By way of summary, on Thursday 5 April 2018 acting on information received, members of the Colac Criminal Investigation Unit executed a warrant issued under the Drugs, Poisons and Controlled Substances Act at your home in Riccarton Road Warrion. Police searched the house looking for Cannabis. In the hallway cupboard they found 13 various jars containing varying amounts of green vegetable matter together with 28 cannabis seeds in packaging. In the lounge room police found two bags, two jars, a tin and a container also containing green vegetable matter. Police also found a set of scales and your mobile telephone. In a bedroom, police located a further three jars containing green vegetable matter and five full zip lock bags containing green vegetable matter. This bedroom also contained fans and lights operating with dried green vegetable matter hanging by pegs.
7 Once outside the premises you directed police to an area of the garden covered by shade cloth. There police found six large cannabis plants growing under the shade cloth. Access to the plants was gained after unlocking a padlock. It appeared that a home-made watering system had been established.
8 You were arrested at the scene.
9 Later that day police executed a second warrant in respect of a disused dairy farm at Finns Road, Warrion. As police entered the premises, they saw a further three padlocks on a door inside the dairy. They unlocked the door using the keys seized from your home at Riccarton Road.
10 Inside the property, police located dried green vegetable matter hanging from the ceiling. Police located another internal padlocked door and gained entry using keys from the Riccarton Road address.
11 Police found six large cannabis plants growing under a shade cloth in the yard. They also noticed a home-made watering system had been established.
12 You were taken to the Colac police station where you were interviewed. In the record of interview you mostly responded to questions with “No Comment,” although it appears that you became emotional towards the end of the interview:
Q 51: Are you right, mate?
A:Yes.
Q 52:Do you want me to get – – –
A:No, it’s all right.
Q 53:Do you want some tissues or a hankie?
A:It’s all right.
Q 54:We’ve got some tissues right here, Brett.
A:Right, thanks. Life is not easy. Life is so hard.
Q 55:… Are you right to keep going with [the interview]?
A:Yeah.
Q 56:Righto. We’ll wait till you get yourself all good. Righto, mate. So at this stage you will be charged with the drug offences, all right, which is cultivate, traffic, possess and use cannabis.
A [56–58]:I wasn’t trafficking. The scales were just kitchen scales ... I just got them the other day from Target, it says on the receipt ... They only measure, like, heavy things. I don’t know that you could even use them for what youse are saying they’re supposed to be for. They’re brand-new, just got them out of the box. I don’t see how something I’ve just opened out of the packet can be used – – –
13 After the record of interview you were charged and released on bail.
14 In all, 12 plants were seized with a total weight of 54.81 kg, more than twice the commercial quantity of cannabis, which is 25 kg or 100 plants.[1] The remaining green vegetable matter located inside the premises, presumed to be cannabis, was not examined and does not form part of the charge.
[1]Drugs, Poisons and Controlled Substances Act s70(1) and Part 2 of Schedule Eleven
Gravity of the offence of cultivating in a narcotic plant
15 The offence contained in the indictment is a very serious charge. So much can be determined from the maximum applicable penalty. In addition, there are mandatory sentencing provisions that inform of the inherent gravity of the offence and govern the sentencing task. Section 3(1) of the Sentencing Act 1991, defines the offence of cultivation of narcotic plants in a commercial quantity as a “category 2 offence” when committed by a person who is 18 years of age or more. When imposing a sentence for a category 2 offence, the court is compelled to sentence the offender to a term of imprisonment to be served immediately unless a statutory exception is established.
16 The learned prosecutor, Mr Sharpley, submitted that there are no substantial and compelling circumstances to warrant a departure from the requirement that you be ordered to serve an immediate term of imprisonment.
17 On the other hand, your counsel, Mr Flynn submitted that there are substantial and compelling circumstances that justify releasing you on a non-custodial order. In particular, he submitted that I should release you on a community corrections order, with conditions addressing treatment, but with no work component.
Plea in mitigation
18 In a succinct plea made on your behalf, your counsel, Mr Flynn, identified a number of factors which he submitted justify taking the unusual course of releasing you on a community correction order. I now turn to those factors.
Personal history
19 You are 32 years of age, and have never been in trouble with the law before. You were educated at Alvie Primary School and then Colac High School, where you completed Year 12. You then went to Colac Technical School, undertaking a mechanic’s course, which you completed successfully in four years. You are now a qualified mechanic. You later commenced further education, undertaking computer studies at a TAFE college in Geelong. You then participated in a “work for the dole” program for two years. You also attended the Colac Men’s Shed group for two years.
20 Your father owns two farming properties. The properties have been in the family for generations. Your father, who is now in his early seventies, has run a successful dairy farm on the properties for many years. Recently, however, due to drought and your father’s poor health, the business has become unviable. He is in the process of transitioning from running a dairy farm to a beef enterprise. You have been helping him to run the farm.
Your health
21 You mother states that you have ongoing chronic pain due to a back injury and a foot problem. You grew the cannabis in order to self-medicate, but since apprehension, you have been taking pain-alleviating medication that is available lawfully.
Reason for offending
22 As I have just mentioned, you commenced growing cannabis for personal use as a painkiller. According to your counsel, you started growing cannabis at the family property in February 2017. Your counsel submits that the soil on the farm property is rich in nutrients and is extremely fertile.
23 You purchased cannabis seeds over the internet, and, after planting them, they “grew like Topsy”. At the time of your arrest, each of the twelve plants was over 2 metres tall, with an aggregate weight of 54.8 kilograms.
24 The prosecution does not allege that there is any commercial aspect to this cultivation, nor is there any evidence of sales or suspect transactions.
Family circumstances
25 Your counsel submits that there are exceptional circumstances to justify taking into account the impact a term of imprisonment will have on your parents. Your father has been diagnosed with prostate cancer. In January 2018, he underwent surgery, but this has not been altogether successful. In May, he had further scans, and unfortunately the results showed that the cancer has metastasised to his bones. Your father is receiving radiation treatment and chemotherapy, all of which impact on his capacity to work on the farm or lead a normal family life.
26 Your mother, who gave sworn evidence before me, is aged 70. She works as a business administration manager at a school, working 38 hours per week. She assists your father in running the farm when she can.
27 Your parents have relied on you to help out with the farm. They pay you $274.50 to perform 15 hours of work per week, but, as your mother testified, you actually work between 38–40 hours per week on the farm.
28 As I mentioned earlier, the farm business has not been doing all that well because of the decline in your father’s health and because of the drought. You are the only male child in the family who can be called upon to help save the farm. This time of year is particularly busy, as there is hay-cutting to be done. The value of hay is at a premium because of the drought. Hay-baling is integral to the subsistence of the farm, especially at this time of year. Your father is not always able to drive the tractor because of his declining health, and this is a task you have helped him with. The farm comprises over 300 acres of land, and there are currently 130 head of cattle to be fed and cared for.
29 Although in theory, a farmhand could be engaged to assist on the farm, your parents can barely afford to pay you for 15 hours of work, which is well below what is required to maintain the farm. If you are incarcerated, your mother will have to fill the void left by you, and this could mean that, between her work commitments at the school and her additional duties on the farm, she would have to work over 70 hours per week. Your mother testified that without your assistance, your father cannot run the farm. Your counsel submitted that it is most likely that the farm will have to be sold. That would be a devastating result for your parents. Your father is desperate to keep the farm, which has been in the family since 1915. I can only imagine how the additional stress of financial worries, losing the farm, and the imprisonment of his son, would impact on your father's health.
Plea of guilty
30 You pleaded guilty at the first opportunity. Although in isolation, this is not a factor that I can take into account when determining whether there are substantial and compelling circumstances under s.5(2H)(e)[2] of the Sentencing Act to not impose a term of imprisonment. It is a factor that must be taken into account when determining the length of any sentence of imprisonment. In this regard I note:
[2]Section 5(2HC)(c)(ii)
(i) you are entitled to a statutory discount because of your plea;
(ii) the Crown case against you was overwhelming, as you were caught “red‑handed”;
(iii) I accept that your plea is indicative of your true remorse;
(iv) you have avoided the cost and inconvenience of a trial; and
(v) there is social utility involved in your guilty plea.
Remorse and prospects for rehabilitation
31 Your mother testified that you are truly sorry for what you have done, and that you will never reoffend in like manner. As mentioned, you no longer use cannabis to self-medicate; rather, you take prescription or over-the-counter painkillers.
32 I accept that you are remorseful and that your prospects for rehabilitation are very good.
Mandatory sentencing provisions
33 Because the charge on indictment constitutes a category 2 offence, s.5(2H) of the Sentencing Act 1991 applies. That section provides:
"In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 [i.e. a custodial order] (other than a sentence of imprisonment imposed in addition to making a community corrections order in accordance with section 44) unless—
….
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify not making a [custodial order] ..."
34 There are other provisions contained in s.5 of the Sentencing Act that apply:
(2HC)In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i)the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(ii)an early guilty plea; or
(iii)prospects of rehabilitation; or
(iv)parity with other sentences.
(2 I)In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a) the Parliament’s intention that in sentencing an offender for a category 2 offence, only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order, in accordance with section 44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
(3)Subject to subsection ... (2H), a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.
35 Your counsel submits that the cumulative impact of the circumstances of the case justify a departure from the requirement to impose an immediate term of imprisonment.[3] In particular, he relied upon these factors:
[3]Section 5(2I)(b)
(i) your prior good character;
(ii) your early plea of guilty;
(iii) the cannabis was for your personal use and not for a purpose related to trafficking;
(iv) there were only twelve plants, that grew to an exceptional size because of the favourable growing conditions;
(v) you are genuinely remorseful;
(vi) you are unlikely to reoffend; and
(vii) the devastating impact a term of imprisonment imposed upon you would have on your parents.
36 On the other hand, the learned prosecutor submitted that, even in combination, these factors fall short of the statutory requirements that might otherwise justify a non-custodial disposition.
Analysis
37 The mandatory sentencing provisions set out earlier have not yet been considered by the Court of Appeal; however, similar provisions have been.
38 In DPP (Vic) v Hudgson[4] the Court of Appeal had to consider the impact of s.10(1) and s.10A of the Sentencing Act. In that case, the offender had committed an offence under s.15A of the Crimes Act 1958 (causing injury intentionally in circumstances of gross violence). Under s.10(1) of the Sentencing Act, a sentencing court was required to impose a non-parole period of not less than four years, unless a special reason could be established. The court set out the relevant provisions:
[4][2016] VSCA 254
7. Section 10(1) of the Sentencing Act, which was introduced into that Act at the same time as the offence under s.15A was created, provides the key to the mandatory non-parole period. Section 10(1) is in the following terms:
In sentencing an offender for an offence against Section 15A … of the Crimes Act 1958 (whether on appeal or otherwise), a court must impose a term of imprisonment and fix under Section 11 a non-parole period of not less than four years unless the court finds under Section 10A that a special reason exists.
8. Section 10A, which was also introduced into the Sentencing Act at that same time is headed ‘Special reasons relevant to imposing minimum non-parole periods’. Section 10A relevantly provides:
...
(2) … [A] court may make a finding that a special reason exists if—…
…
(e)there are substantial and compelling circumstances that justify doing so.
…
(3) In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court must have regard to—
…
(a)the Parliament’s intention that a sentence of imprisonment should ordinarily be imposed for an offence covered by Section 10(1) or, subject to Section 10AA(2), for an offence covered by Section 10AA(1) and that a non-parole period of not less than the length specified in Section 10(1) or 10AA(1) (as the case requires) should ordinarily be fixed in respect of that sentence; and
…
(b)whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non-parole period.
...
11. It can be seen therefore that Parliament has enacted a complex legislative scheme which, when regard is had to all of the relevant provisions, governs the circumstances under which an offender can escape the reach of a mandatory four year non-parole period.
39 The court observed that the Sentencing Judge had found that the principle of parity, in combination with other factors in mitigation, was sufficient to avoid the statutory requirement that a four-year minimum non-parole period be imposed. Her Honour had imposed a sentence of 23 months’ imprisonment, combined with a two-year community corrections order. In upholding the Director’s appeal, the Court of Appeal found that:
112. ... the word ‘compelling’ connotes powerful circumstances of a kind wholly outside what might be described as ‘run of the mill’ factors, typically present in offending of this kind.
...
115. In addition, the various matters upon which the respondent relied as giving rise to ‘substantial and compelling circumstances’, and which Her Honour found to meet that description, fall well short, in our view, of doing so. There is nothing ‘compelling’ about them in the sense required. Nor can it be said that they are ‘rare’, or ‘unforeseen’ in cases of this type.
116. It follows that no ‘special reason’ of the kind required to avoid the consequences of s.10 have been demonstrated. It also follows that any sentence that this court now imposes, as a result of allowing this appeal, must involve a non-parole period of at least four years.
40 In Re Ceylan,[5] Beach JA had to interpret a statutory provision requiring bail to be refused unless the applicant “show[ed] compelling reasons why [his] detention in custody [was] not justified.”[6] His Honour referred to Hudgson and to a number of other cases where the terms ‘compelling reasons’ and ‘compelling circumstances’ were considered:
[5][2018] VSC 361
[6]Bail Act 1977 s4(4)
37. In Paduano v Minister for Immigration & Multicultural & Indigenous Affairs,[7] Crennan J was required to consider the meaning of the words ‘compelling reasons’ in the phrase ‘compelling reasons for the absence [from Australia for five years or more]’ in a clause of a schedule to a regulation made under the Migration Act 1958 (Cth). In construing ‘compelling reasons for the absence’, Her Honour made the following points:
[7](2005) 143 FCR 204 (‘Paduano’).
(1) ‘Compel’ and ‘compelling’ are words of ordinary meaning.[8]
[8]Ibid 211 [31].
(2) A perusal of commonly used dictionaries indicated that the words ‘compel’ and ‘compelling’ are ordinary English words which have not one, but several connotations. What they had in common was, as Her Honour put it, ‘a semantic debt to the Latin pello/pellere —“to force”, “to drive”, “to stimulate”, “to rouse”‘ and it was clear ‘that the idea of “force”, common to many of the dictionary entries [was] not confined to physical or legal force but includes moral force and the “force” of mental stimuli such as from a “compelling argument”.’[9]
[9]Ibid 211 [32].
38. After surveying dictionary definitions and other authority, Crennan J accepted that ‘compelling’, in the provision she was considering, meant ‘forceful and therefore convincing’.[10]
[10]Ibid 213 [37]–[39].
39. In Babicci v Minister for Immigration & Multicultural & Indigenous Affairs,[11] the Full Court of the Federal Court considered the meaning of the word ‘compelling’ in the phrase ‘compelling circumstances’ in reg 1.20J of the Migration Regulations 1994 (Cth). In that case, while acknowledging that there were ‘shades of differences between the various dictionary definitions of “compelling”‘,[12] the court concluded that there was no error in construing ‘compelling circumstances’ to mean ‘circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense’, to a particular conclusion.[13] The court concluded that ‘compelling circumstances’ were those which ‘forced or drove’ or ‘compelled’ a particular result.[14]
[11](2005) 141 FCR 285 (‘Babicci’).
[12]Ibid 289 [24].
[13]Ibid 289 [21].
[14]Ibid 289 [23].
40. In Plaintiff M64/2015 v Minister for Immigration & Border Protection,[15] the High Court considered the meaning of the expression ‘compelling reasons’ in cl 202.222(2) of Schedule 2 of the Migration Regulations. Relevantly, the clause provided for the grant of a visa, if the Minister was satisfied that there were compelling reasons for giving special consideration to granting a visa, having regard to specified matters. The plurality[16] said that the state of mind required of the Minister:
[15](2015) 258 CLR 173 (‘Plaintiff M64/2015’).
[16]French CJ, Bell, Keane and Gordon JJ.
must be reached by reference to ‘reasons’ that are ‘compelling’; that is, those reasons must ‘force or drive the decision-maker’ ‘irresistibly’, to be satisfied that ‘special consideration’ should be given to granting the particular application.[17]
[17]Plaintiff M64/2015 (2015) 258 CLR 173, 187–8 [31] (citations omitted).
41. In a separate concurring judgment, Gageler J said:
A statutory requirement that a decision-maker be satisfied that there are ‘compelling reasons’ for taking particular action, is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible.[18]
[18]Ibid 197 [64] (citation omitted).
42. The phrases ‘substantial and compelling reasons’ and ‘substantial and compelling circumstances’ appear respectively in s.16 of the Jury Directions Act 2015 and s.10A(2)(e) of the Sentencing Act 1991. The meaning of the phrase in s.16 of the Jury Directions Act was considered by this court in Gul v The Queen;[19] and the meaning of the phrase in s.10A(2)(e) of the Sentencing Act was considered by this court in DPP v Hudgson.[20]
[19][2017] VSCA 153 (‘Gul’).
[20][2016] VSCA 254 (‘Hudgson’).
43. In Gul, Ashley and Priest JJA said:
Although one must be careful of substituting for the statutory language, reasons will not be substantial and compelling unless they are of considerable importance and strongly persuasive in the context of the issues in the trial.[21]
44. In Hudgson, the court[22] said:
It was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s.10 should be a heavy one, and not capable of being lightly discharged.
More specifically, we accept the Director’s submission that the word ‘compelling’ connotes powerful circumstances of a kind wholly outside what might be described as ‘run of the mill’ factors, typically present in offending of this kind.[23]
45. In construing the expression ‘compelling reason’ in s.4(4), one must be careful to ensure that the words are construed in the context in which they occur and having regard to the legislative purpose of the provisions of the Act. ... While the expressions ‘exceptional circumstances’ and ‘compelling reason’ direct attention to matters that might necessarily be thought to fall on the one spectrum,[24] plainly the ‘exceptional circumstances’ test in the Act is intended to be one that is more difficult to satisfy than is the ‘compelling reason’ test. ...
46. It is well established that exceptional circumstances within the meaning of s.4(2)(a) of the Act may, in an appropriate case, consist of a combination of a number of circumstances ... When one takes account of all of the matters required to be taken into account in a particular application, the question becomes whether there is compelling reason why the particular applicant’s detention is not justified. For an applicant required to show ‘compelling reason’, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified.[25]
47. While one must be careful not to substitute other expressions for the language used in the Act, compelling reason would likely be shown if there existed forceful, and therefore convincing reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified.[26] It is not, however, necessary for an applicant required to show compelling reason, to show a reason which is irresistible or exceptional. Such a requirement would place the bar at too high a level in a scheme, where the exceptional circumstances test exists as the most onerous test under the Act. While the word ‘irresistible’ was used with reference to ‘compelling reasons’ in Plaintiff M64/2015,[27] that was in the particular context of the statutory scheme then under consideration – a scheme which did not contain another test that was intended to be more onerous in different circumstances. While again one should guard against substituting the statutory language, in terms of resistibility, ‘compelling reason’ in s.4(4) of the Act might appropriately be described as reason which is difficult to resist.
48. In concluding that compelling reason in s.4(4) of the Act means reason which is forceful and therefore convincing, I have not overlooked what was said in Gul[28] and Hudgson.[29] Those decisions, however, concerned the composite expression ‘substantial and compelling’. What was said about the word ‘compelling’ in those cases (involving, as they did, different statutes) is, at least to some extent, coloured by the fact that the statutory provisions there under consideration included the word ‘substantial’.
[21]Gul [2017] VSCA 153 [48].
[22]Weinberg, Whelan and Priest JJA.
[23]Hudgson [2016] VSCA 254 [111]–[112].
[24]One test concentrating on frequency or rarity of circumstances, the other on the quality of reasons for a particular decision.
[25]Cf s 37(c) of the Interpretation of Legislation Act 1984.
[26]See Paduano (2005) 143 FCR 204, 213 [37]-[39]; Plaintiff M64/2015 (2015) 258 CLR 173, 187 [31].
[27]See Plaintiff M64/2015 (2015) 258 CLR 173, 188 [31] and 197 [64].
[28][2017] VSCA 153 [48].
[29][2016] VSCA 254 [111]-[112].
41 In the Second Reading Speech of the Sentencing (Community Corrections Order) and Other Acts Amendment Bill 2016, the Attorney-General, Mr Pakula, stated:
The government agrees that community corrections orders are a valuable sentencing tool ...
In particular, the government is concerned about the use of community corrections orders in relation to serious offending, where a term of imprisonment would be a more appropriate sentence, given the gravity of the offence and culpability of the offender.
The bill will restrict the availability of community corrections orders and other non-custodial orders for the most serious offences, and ensure that the availability of community corrections orders is more consistent with community expectations. ...
Sentencing reform
The government considers that it is appropriate that a custodial sentence should be imposed for the most serious criminal offences on the Victorian statute book. For other serious offences, the courts may only impose a non-custodial order in very limited circumstances. This sends a strong message to perpetrators that the government takes criminal offending seriously and such behaviour will be met with time in gaol.
...
Category 2 offences
‘Category 2 offences’ are other serious criminal offences and include manslaughter, child homicide, causing serious injury intentionally, kidnapping, arson causing death, trafficking or cultivating a drug of dependence (commercial quantity), and providing documents or information facilitating terrorist acts.
The bill will provide that a court must impose a custodial order (other than a combined order) when sentencing a person for a ‘category 2 offence’, unless the court finds that one of the special reasons provided for in the bill exists. This will mean that if the court finds that a special reason exists, it will retain full sentencing discretion and may impose a community correction order, combined order, or other lesser non-custodial order.
The special reasons provided for in the bill will mirror existing Section 10A of the Sentencing Act 1991, which provides the special reasons that a court must find in order to depart from the statutory minimum sentence for particular offences, such as gross violence offences. The special reasons are an important legislative safeguard, which will exempt a court in limited circumstances from imposing a custodial sentence for a ‘category 2 offence’ where justified by the particular facts of the case or circumstances of the offender.
Special reasons include if the offender has assisted or undertaken to assist in the investigation or prosecution of an offence. Special reasons may also exist where the offender can prove impaired mental functioning or where the offender is between 18 and 21 years at the time of the offence, and can prove a particular psychosocial immaturity, or where there are substantial and compelling reasons that justify not imposing a custodial order.
...
Conclusion
The government has examined sentencing practices for the most serious offences under Victorian law following the previous government’s reforms in 2014. The sentencing reforms in this bill take account of the harm caused to victims and the culpability of persons that commit these terrible crimes. The government has targeted these reforms at our most serious offences. They reflect the community expectation that for some of these cases imprisonment is the only option.
42 Ordinarily, in cases such as these, a term of imprisonment to be served immediately must be imposed. An examination of the sentencing statistics reveals that in recent times, even before the introduction of the mandatory sentencing provisions for category 2 offences, in the majority of cases terms of immediate imprisonment were ordered, sometimes combined with a community corrections order.[30] The snapshot must be read in light of the fact that for part of the period covered, suspended sentences were available as a sentencing option.
[30]Sentencing Advisory Council Sentencing Snapshot No 222: Cultivating a commercial quantity of narcotic plants
43 It is difficult to find a case that directly correlates with the facts in your case; however, in what might be regarded as a highly unusual case, in
Hendricks v The Queen,[31] the Court of Appeal imposed a sentence of eight months’ imprisonment on an offender who had cultivated a commercial quantity of cannabis (47.1 kilograms), for personal medicinal use. The operation was not sophisticated, and was conducted openly. The offender had prior convictions relating to trafficking, cultivation, and use of cannabis, and specific deterrence became a relevant sentencing factor. Also, the offender’s property was the subject of a forfeiture order. There were psychological issues which arose following the death of the offender’s mother, who died from pancreatic cancer at age 74. Material before the Sentencing Judge revealed that the offender had an almost obsessional belief that cannabis had a palliative effect on pancreatic cancer and that cannabis use could prevent its occurrence. The court noted:
"We will add only this. The circumstances presented by this case are most unusual, as the learned Crown prosecutor, in her submissions to the court, very fairly acknowledged.
Having regard to his prior convictions, the applicant may consider himself fortunate to have been dealt with somewhat leniently by this court.
The sentence we have fixed should not be regarded as indicative of the type of sentence that will normally be imposed for offending that involves the cultivation of this quantity of cannabis".[32]
[31][2014] VSCA 185
[32]Hendricks v The Queen [2014] VSCA 185, paragraphs [28]–[30] per Redlich and Weinberg JJA
44 As the Court of Appeal has cautioned on numerous occasions, no two sentencing cases are identical, and the sentence to be imposed in each case must depend on the individual facts and circumstances.
45 Your counsel places much reliance on the hardship that will be suffered by your parents if you are imprisoned. Hardship to third parties is not normally a mitigating factor. It is only if exceptional circumstances can be demonstrated, that the court may take such a factor into account.[33] These cases will be rare.[34] In DPP v Gaw,[35] Callaway JA observed:
"Hardship, even exceptional hardship, to children or other dependants is not a passport to freedom. It is simply a factor to be taken into account. In some cases it is entitled to great weight, in others to hardly any weight at all".[36]
[33]Markovic v R; Pantelic v R (2010) 30 VR 589
[34]Ibid, paragraph [77]
[35][2006] VSCA 51
[36]Ibid, paragraph [21]
46 In The Queen v Esposito,[37] Nettle JA (as his Honour then was) stated:
"In order to establish exceptional circumstances, there must be cogent evidence that a prisoner’s imprisonment would impose exceptional hardship upon his family, one which is considerably more severe than normal for a family, where the father is imprisoned, and the situation must be so highly exceptional that ‘it would be, in effect inhuman to refuse to do so".[38]
[37][2009] VSCA 277
[38]Ibid, paragraph [14]
47 The circumstances of hardship in a particular case may even be considered to be “tragic”, yet not qualify as exceptional.[39]
[39]R v Davidson; R v Konestabo [2008] VSCA 188
48 The impact that hardship on an offender’s family will have on the actual sentence to be imposed will also depend upon the circumstances. In some cases, it may justify the imposition of a different type of sentence than that ordinarily imposed, or it may result in the reduction of the length of the term of imprisonment to be served.[40]
[40]The Queen v NAD [2008] VSCA 192 at paragraph [54]
49 In considering whether exceptional circumstances exist to justify taking into account the impact a term of imprisonment imposed upon you will have upon your parents, I have examined a number of cases in which the circumstances of hardship were considered to be exceptional. I have also had regard to other cases where no exceptional circumstances were found, including:
(i) The Queen v Mitchell,[41] where the offender’s wife’s pregnancy miscarried and she was still ill at the time of sentencing;
[41][1974] VR 625
(ii) The Queen v Moffa (No 2),[42] where three of the offender’s children were living with an aunt, and the family’s assets were depleted for the children’s maintenance and support;[43]
[42](1977) 16 SASR 155
[43]Ibid, pages 157–8
(iii) The Queen v Panuccio,[44] where the offender was responsible for the care of his elderly and disabled parents. In that case, Winneke P noted that counsel for the appellant:
[44](Unreported) Supreme Court of Victoria Court of Appeal, 4 May 1998; BC9801713
"... submitted on the applicant’s behalf that the learned Judge, in imposing the sentence which he did, has failed to give proper weight and expression to the impact which the sentence would have had upon the applicant’s elderly and disabled parents, as well as the impact which gaol will have upon the applicant by reason of his recognition that he will no longer be able to care for his parents during the course of his incarceration. [Counsel for the appellant] submitted that the circumstances which obtained within the family, were so exceptional that His Honour should have been influenced to reduce the sentence that would otherwise have been imposed to enable the parents’ plight to be alleviated. ..."
His Honour observed:
"Although the court is not, both as a matter of compassion and common sense, impervious to the consequences of a sentence upon other members of the family of a person in prison, such factors will need to be "exceptional" or "extreme" before the court will tailor its sentence in order to relieve the plight of those other family members. Such a principle is clearly an obvious one, because the court’s primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced. There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon the spouse, children or other close family members who are dependent in one form or another upon the person imprisoned.
Thus, it has been often stated that it is a general principle of sentencing that the court should usually disregard the impact which the sentence will have upon the members of a prisoner’s family, unless exceptional circumstances have been demonstrated. The principle has been so often stated that it does not need repeating, but I refer to, amongst other cases, R v Matthews (1996) 130 FLR 230 at 233; R v Lynch and Ratcliffe (Court of Appeal, unreported, 18 April 1996), particularly the judgment of Charles JA at 5; R v Yaldiz (Court of Appeal, unreported, 4 December 1996), particularly per Hayne JA at 12; R v Yates (Court of Appeal, unreported, 17 February 1998); R v Kim (Court of Appeal, unreported, 18 March 1998). It goes without saying, I think, that the graver the crime for which the prisoner is being sentenced, the more difficult it will be to find exceptional circumstances, because the relief usually sought and generally necessary to alleviate the plight of the relevant family members affected will require absolution from incarceration.
Whilst I have sympathy for the plight of the applicant’s mother and father in this case, I cannot accept that the learned Judge failed to give sufficient weight to their circumstances in imposing the sentences which he did. Although it is apparent from the evidence before him, that the applicant is the one upon whom the parents are mainly dependent, there are other members of the family who can, and apparently do, share the burden of caring for the parents. Indeed, it would seem to me that it was the parents’ circumstances which in all probability led His Honour to fix a shorter than normal non-parole period.[45]
[45]BC9801713 at pages 5–8
50 In assessing whether hardship to your parents constitutes exceptional circumstances in your case, I take account of the matters I have already mentioned. On the other hand, it must be noted that:
(i) you are not a personal carer of either of your parents;
(ii) you have a sister who is a nurse. I was told very little about her availability to help out your parents;
(iii) your mother testified that although not providing complete cover in your absence, a farm hand could be engaged to assume 15 hours of the 40 hours of work that you undertake; and
(iv) regardless of your assistance on the farm, given the tenuous state of your father’s health and your mother’s chosen career in education and her inability to run the farm on her own, the sale of the farm may well be on the cards in any event.
51 I have given anxious consideration to the question of whether the circumstances of hardship to your parents can properly be regarded as “exceptional”, so as to justify taking them into account in mitigation of penalty and, if so, whether those circumstances, together with the cumulative effect of the other factors raised in mitigation on your behalf, provide “substantial and compelling circumstances that are exceptional and rare and that justify not” imposing an immediate term of imprisonment.[46] The bar is a very high one. It can only be overcome if the court is satisfied that a statutory exception has been established. In my judgment, the circumstances of family hardship, even when combined with the other factors relied upon by your counsel, fall short of what is required to avoid the consequences of the mandatory sentencing provisions. They are, however, factors that I take into account when determining the length of the term of imprisonment.
[46]Section 5(2H)(e)
Sentences to be imposed
52 In addition to the mandatory sentencing provisions to which I have referred, I also take into account all of the matters personal to you. I must also take into account matters such as deterrence, especially general deterrence, which, as I have already noted, is of great importance in a case such as this. I am required to take into account the question of the protection of members of the community from you, and bear in mind the likelihood of your reoffending. I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
53 Brett Cole, on the charge of cultivating a narcotic plant in a commercial quantity as alleged in the indictment, I have no alternative but to impose a term of imprisonment. I would have come to the same conclusion even if the mandatory sentencing provisions were not in force.
54 Your counsel urged a community corrections order with no work component. A work component condition is directed at punishment. Your counsel did not specify what other conditions could be imposed to punish you for your offence. Nor was it explained why any therapeutic aspects of such a disposition were required in view of your remorse and the unlikelihood of your reoffending. A community corrections order with or without a work component is not an appropriate sentencing disposition in this case.
55 You are convicted and sentenced to nine months’ imprisonment.
56 On the related summary charge of using a drug of dependence, cannabis, you are convicted and sentenced to pay a fine in the amount of $100.
Statement under s.6AAA Sentencing Act
57 I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offence the subject of the indictment, but for your plea of guilty. Pursuant to s.6AAA, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea, the sentence I would have imposed is twelve months’ imprisonment.
58 I direct that the sentence that would have been imposed, but for your plea of guilty, be noted in the court’s records.
Ancillary orders
Forensic sample order
59 Pursuant to s.464ZF(2) of the Crimes Act 1958 I order that you, Brett Cole, undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Subdivision 30A of Part 3 of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. This order relates to Charge 1 on Indictment No J11006564.1. Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied that in all the circumstances, the making of the order is justified for the following reasons:
· The seriousness of the circumstances of the offending warrant the order;
· The order is not opposed; and
· The granting of the order is in the public interest.
60 Brett Cole, I must inform you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted.
61 HER HONOUR: Do you understand?
62 OFFENDER: Yes
Disposal order
63 I propose to make the disposal order in the form submitted for my signature. The order is not opposed, is that correct Mr Flynn?
64 MR FLYNN: That's correct, Your Honour.
65 HER HONOUR: Thank you. Anything further?
66 MR SHARPLEY: No, Your Honour.
67 MR FLYNN: No, Your Honour.
68 HER HONOUR: You can remove the prisoner please.
- - -
Attachment “A”
Summary of Prosecution Opening dated 9 August 2018
Introduction
The accused, Brett Cole has pleaded guilty to one indictable charge of Cultivation of a narcotic plant – commercial quantity and one summary charge of Use a drug of dependence.
The maximum penalty for each of these offences is as follows:
·Cultivation of a narcotic plant – commercial quantity – 25 years imprisonment
·Use drug of dependence – 5 penalty units
The accused was born on the 12th April 1986 and is currently 32 years old. At the time of the offences he was 31 years old.
The accused does not have any previous convictions.
The accused resides at 5 Riccarton Road in Warrion and had access to a disused dairy located at 115 Finns Road Warrion which is owned by the accused’s father.[47]
[47] Statement of Doug Cole p.15 HUB
Summary of the offending
5 Riccarton Road Warrion
On Thursday the 5th of April 2018, at approximately 7:30am members of the Colac Criminal Investigation Unit attended at 5 Riccarton Road Warrion to execute a Drugs, Poisons and Controlled Substances Act (DPCSA) 1981 warrant.
The accused Brett Cole answered the door and A/D/Sgt John Digby executed the warrant and explained to Cole that police had received information regarding the possible growing of Cannabis at the address. Police subsequently entered the house and commenced a search of the premises and in a cupboard in the hallway located 13 various jars containing various amounts of green vegetable matter (GVM) and 28 cannabis seeds in packaging. [48]
[48] Statement of S/C Joshua Goonan p.18 HUB/Photographs 1 & 2 p.39 & 40 Police HUB
Cole was then arrested and provided with a formal caution and explanation of rights.
Police continued the search of the premises and in the lounge room located two bags, two jars, a tin and a container containing GVM as well as a set of scales and mobile phone belonging to Cole.[49]
[49] Statement of S/C Joshua Goonan p.18 HUB/Photographs 3-7 p.41-45 Police HUB
10.In a bedroom police located a further 3 jars containing (GVM) and 5 full zip lock bags containing GVM. This bedroom also contained fans and lights operating with dried (GVM) hanging by pegs.[50]
[50] Statement of S/C Joshua Goonan p.18 HUB/Photographs 8-11 p.46-49 Police HUB
11.A search of the external of the premises commenced and Cole directed police to an area of the garden covered by shaded cloth. Police observed what appeared to be Cannabis plants growing under the shade cloth. Access was gained via a paddock behind the plants and police observed 6 large cannabis plants underneath the shade cloth. Police also observed what appeared to be a homemade water system [51] Charge 1 - Cultivation of a narcotic plant – commercial quantity & summary charge 11 – Use a drug of dependence
[51] Statement of S/C Joshua Goonan p.18 HUB/Photograph 12 p.50 Police HUB
115 Finns Road Warrion.
12.At approximately 9.10am on 5th April 2018 a second DPCSA warrant was executed at 115 Finns Road Warrion.
13.The accused was present and police observed a padlocked gate leading up to an old dairy. Police unlocked the gate using keys previously seized from 5 Riccarton Road in Warrion. As police entered the dairy they observed a further 3 padlocks on a door inside the dairy. The door was unlocked using the keys seized from 5 Riccarton Road in Warrion.
14.Once entry was gained police observed dried (GVM) hanging from the ceiling.[52] Police located another internal padlocked door and gained entry using keys from the Riccarton address.
[52] Statement of S/C Joshua Goonan p,18 HUB/Photograph 7 p.110.
15.An additional 6 large Cannabis plants were located growing under a shade cloth as well as what appeared to be a homemade watering set up.[53]
[53] Statement of S/C Joshua Goonan p,18 HUB/Photographs 13-17 p.116-120
16.The accused was subsequently transported back to the Colac Police Station and interviewed.
17.The accused made a ‘No Comment” interview and was subsequently charged and released to appear on bail at the Magistrates’ Court at Colac on the 4th June 2018.
18.The 6 Cannabis plants seized from 5 Riccarton Road and the 6 Cannabis plants seized from 115 Finns Road Warrion were subsequently examined by Botanist, Susan Fiddian who found the 12 plants to weigh a total of 54.81 kilograms.[54] A commercial quantity of Cannabis is 25 kg or 100 plants. [55] Charge 1 - Cultivation of a narcotic plant – commercial quantity & summary charge 11 – Use a drug of dependence
[54] Statement of Susan Fiddian p.17 HUB
[55] Schedule 11 Part 2 Drugs, Poisons and Controlled Substances Act 1981
19.The other items of Cannabis were not examined.
Ancillary Matters
Chronology
·5th April 2018 offence date, charged and released on bail to appear at a filing hearing at the Magistrates’ Court at Colac on 4th June 2018.
·4th June 2018 matter adjourned to Committal Mention at the Magistrates’ Court at Geelong on 20th July 2018.
·3rd July 2018 plea offer made to Office of Public Prosecutions.
·19th July 2018 plea offer accepted by Office of Public Prosecutions.
·20th July accused pleaded guilty at Magistrates’ Court at Geelong and matter proceeded by way SHUB
Category 2 offence – Section 5(2H) Sentencing Act 1991
The offence of Cultivation of narcotic plants – commercial quantity is a category 2 offence and s.5 (2H) of the Sentencing Act 1991 applies.
6AAA – Sentence discount for guilty plea
6AAA – Sentencing Act 1991 applies.
Pre-Sentence Detention
There is nil Pre-Sentence Detention. The accused has remained on bail since the date of charge.
Forensic Sample Application
Application will be made for a forensic sample.
Disposal order
Application will be made for a disposal order.
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