DPP v Ellul
[2020] VCC 1720
•27 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-20-00976
Indictment No. K13206732
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Paul ELLUL |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2020 | |
DATE OF SENTENCE: | 27 October 2020 | |
CASE MAY BE CITED AS: | DPP v ELLUL | |
MEDIUM NEUTRAL CITATION: | [202] VCC 1720 | |
REASONS FOR SENTENCE
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Subject: Cultivation of commercial quantity of cannabis; theft of electricity; 34 year old principal offender with sophisticated hydroponic crop in leased factory. 45 plants, 92 KG; early guilty plea.
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Mr S. Davison (at Plea) Ms L. Hunter (at Sentence) | Office of Public Prosecutions |
| For the Accused | Ms Z. Garde-Wilson | Garde Wilson Lawyers |
HIS HONOUR:
Paul Ellul, you were arraigned before me yesterday and pleaded guilty to one charge of cultivation of a commercial quantity of cannabis and one charge of theft of electricity.
The prosecution summary correctly sets out the maximum penalties and as you have heard, the cultivation charge has a 25 year maximum prison term.
You are 34 years of age and have only a very limited history before the courts.
This matter was opened to me yesterday by the prosecutor Mr Davison. He opened in accordance with a written summary dated 28 September 2020. Ms Garde-Wilson who appeared for you made it clear both in her written and her oral submissions that this was an agreed summary. There were also some photographs contained within the depositional materials which show the nature of this set up. Also the lease documents which are referred to in the summary.
I see no need to go into the full sentencing facts in these my sentencing reasons as I will sentence on the basis of that agreed summary.
I will still say something only very briefly as to the facts so that anyone reading these sentencing remarks will have at least a broad understanding as to the nature of your crimes.
The agreed summary, which was marked as Exhibit A, describes the nature of the crop that you were cultivating at a leased factory in Maida Avenue Sunshine. The crop was discovered owing to a fire that was observed on the afternoon of 30 November 2019. A neighbouring property owner saw some flames and called 000. The fire was at the point where the electrical wiring entered the factory. The Metropolitan Fire Brigade turned out. Then the police. Entry was forced once the police were called in, as by that point, there were some suspicions held as to the factory having some association with drugs. Those suspicions of course proved correct.
As the photographs and summary disclose, there was a sophisticated hydroponic cannabis set-up within the factory, with five steel framed ‘Jungle Room’ tents set up as rooms within the structure. Also there were steel frames, plumbing and duct outlets. There were 45 plants weighing in at 92.75 kilograms.
This is a quantitative based regime. You had well over three times the commercial quantity by weight. There were some bits and pieces such as chairs, a saw, and secateurs and scissors as well as some soft drink cans and gloves. Also, a take-away food container with the name ‘Paul’ written in texta on the lid.
There was an electrical bypass in place, hence the theft charge. There was the ‘usual’ array of equipment for this sort of concern such as lights, fans, reflective materials and watering equipment.
Some of the items were forensically examined and there was very strong DNA evidence linking you to a number of the cans and gloves.
The owner and landlord attended and provided the police with a copy of the lease. A lease had been entered by you and another in August 2017 for a period of two years. That was then assigned by the other man to you on 5 October 2018 and renewed by you for a two-year period on 5 June 2019. You exercised your option under the lease. The rent when you entered the original lease was in the vicinity of $21,900 per annum, which would be somewhere in the vicinity of $1,800 per calendar month.
On the day of execution of the warrant, you attended upon the police station to hand yourself in and 'do the right thing' as you put it, but for whatever reason, an appointment was made for you to come back at a later stage for interview. That interview was on 4 December 2019 and you made a no comment interview as was your right.
You have been on bail since then and pleaded guilty at a committal mention on
10 August 2020. The commercial quantity charge was in fact laid well after your arrest. The chronology of the matter before the court is set out in the written submissions and plainly, it is a very early plea.
In Mitigation
Ms Garde-Wilson conducted the plea on your behalf. She had prepared a written outline of submissions dated 23 October which was marked as Exhibit 1.
She took me to your background including the lack of any relevant prior appearances before the courts. She made submissions as to why you became involved in this serious offending and as to how it might be viewed in terms of offence seriousness. She relied upon references from your father, from your former wife as well as from your current employer. I say current, but of course I remanded you into custody yesterday. Those various letters were marked as Exhibit 3. Ms Garde-Wilson placed before the court a report from Mr Armstrong (Exhibit 2) and took me to a couple of past sentences imposed for similar crimes (Falzon[1] and Brown[2]).
[1]Falzon v The Queen [2018] VSCA 179
[2]Brown v The Queen [2020] VSCA 60
Your counsel raised a number of matters in mitigation.
Principally they were the following:
· Your early guilty plea;
· The presence of remorse;
· The absence of any relevant prior criminal history and what she argued were your good, if not very good, prospects of rehabilitation;
· The increased custodial burden owing to the COVID-19 Virus and the response to the virus by the prison authorities.
In truth, there were not that many matters in mitigation.
The commercial cultivation offence is what is referred to in the Sentencing Act1991 as a ‘Category 2 offence’ and your counsel was in no way suggesting that there was any basis to consider a combination-type disposition here. That explicit concession was undoubtedly correct and as such, I will say nothing more about the exceptions to the operation of s.5(2H), as plainly they have no application here.
Your counsel conceded the inevitability of a term of imprisonment and one requiring the fixing of a non-parole period.
Prosecution
Mr Davison who appeared on behalf of the Director of Public Prosecutions made some brief oral sentencing submissions. There were some more detailed written submissions which had been filed and marked as part of Exhibit A. The submissions he did make were generally uncontroversial and focussed on the matters of seriousness in this case. These were premises that you had leased with more than three times the commercial quantity in a sophisticated set-up. You were the only person charged and were conducting this venture for profit. The prosecution did not accept your counsel’s submission that this offending fell at the lower end of the scale. They submitted that your culpability was high and that this was a medium level offence. They also referred me to a case that had a comparable plant weight, the case of Nguyen v The Queen [2017] VSCA 100.
The Director of Public Prosecutions was calling for an immediate term of imprisonment with a non-parole period but of course, your own counsel had conceded the inevitability of such an outcome here.
Background
I will turn only briefly to your background as I have no reason to doubt what I was told about your family background. I see no need to restate it all in my reasons. It is referred to in the written outline as well as in far greater detail in the report of
Mr Armstrong. It was not a perfect background, but I am really not sure such a thing actually exists. In fact, as you well know, yours was a long way removed from being the worst background. Your family background does not actually explain this offending in any way. I will provide but a brief thumbnail sketch.
You were born on 27 November 1985. You are now 34 years of age, turning 35 in a few weeks from now. You grew up with your parents who had emigrated from Malta to this country as adolescents. You suggested to Mr Armstrong that your relationship with your father was unremarkable. Further detail that you provided suggests it was to some extent a problematic relationship at some points with some significant level of physical discipline from your father when you were young. Whatever may be said of it, you still have his support as his letter makes clear. There was some bullying at school and by Year 7 you were drifting towards the wrong crowd and had already at that stage started to use cannabis. The drug use increased over time. You left school at the end of Year 9 and after working for a while in a part time job, you secured an apprenticeship with your uncle as a bricklayer. That was not particularly smooth sailing but you completed the apprenticeship and then ran your own business.
As a young man, you changed trades and became a rigger or 'dogman' taking after your father in that regard. You became a crane driver and had some long-term employment with one company before being made redundant after seven years. That was the most stable time of your life, a time in which you married, had three children and bought a house. You continued to work as a crane driver with other companies. You started to use cocaine in 2018 and it then became your drug of choice. It reduced all your worries, or so you felt, but of course, all it was doing was adding to the marital stress and possibly even raising financial issues. The marriage failed in March 2018. You have also had issues with gambling.
You chose not to return to crane driving. That is a lucrative enough job but you feared drug testing and the resultant potential loss of your licence. It is incredible in that setting that you would not have actually taken aggressive steps to actually obtain treatment and counselling and yet you did not. Even loss of your ‘ticket’ would have been vastly preferable to becoming involved as you did in serious criminal offending. You attempted employment as a concreter for a period. As I understand it, you stopped work in about October 2018.
2019 was not a great year for you either, with your drug use waxing and waning. No doubt you were coming to grips with the breakdown of your marriage and all that that meant to you.
The fact of the matter is that you made the decision to cultivate these drugs. It was a commercial decision and it was a dreadful one as is conceded by Ms Garde-Wilson.
You have told Mr Armstrong that you stopped using all drugs two months before your arrest last year. I am told that you have been and are drug free. Well, there are no drug screens before me to confirm your abstinence.
You have formed a new relationship as I understand it. You have obtained the shared care of your three children. They are all primary school age, two boys aged ten and eight, and a seven year old girl.
In March of this year you returned to work as a crane operator. There is a reference from your employer. He speaks of your work capacities and performance as well as your preparedness to donate work hours for a fundraising effort for bushfire victims. There are also the letters that I referred to from your father and also from your former wife. I should say, I am not sure if you noticed, but your former wife is actually joining this Webex of the sentencing remarks. She speaks of your qualities as a father, as provider and also as a worker. You have been proactively involved in the lives of the children. She speaks of the out of character nature of this conduct and your level of regret for involving yourself in this conduct. She has witnessed positive changes over the last 11 months and supports you. It is actually a very valuable letter. So is the letter from your father. He was shocked to learn of the nature of the allegations. He spoke of the problems that had been mounting up in your life including of course separation from your wife, of the way these things impacted upon you. He also describes the gains you have made this year.
You have no criminal history of any relevance to my task. Just some old driving matters. You had a bit of a passion for street cars and track meets. Whilst the criminal history you have admitted impedes Ms Garde-Wilson from submitting that this is your first time before the courts, I put aside the history altogether. It does not inform my task at all. Indeed, probably the absence of any serious offending in the past is far more important.
Since arrest, as I said, you have been on bail and I remanded you into custody yesterday.
The report
I have referred already to the report of Mr Armstrong. It is lengthy and I do not intend to insert slabs of that into my reasons which will already be quite long enough. The reliance on the report was actually quite limited. Your counsel made it very clear that there was no reliance upon any of the six principles from the well-known case of Verdins, including the expanded operation of that decision to personality disorders flowing from the recent case of Daylia Brown[3].
[3]Daylia Brown v The Queen [2020] VSCA 212
The report sets out your background in detail as I have said. It sets out your current mindset and the gaining of some level of insight. The author comments on protective factors amongst them being your desire to be part of your children’s lives. There is some testing which has been carried out and referred to. There is nothing in the report leading to any reduction in your culpability. Nor was your counsel suggesting any reduction in culpability in this case.
You have some understandable anxiety as you confront this day and that is hardly surprising.
You have some features of a borderline personality disorder. You have long term addiction issues. Your self-report of abstinence is obviously factored to some extent into the opinions offered by Mr Armstrong. The author recognises the limitations as there was no proof of abstinence placed before him or me for that matter.
The report comments on the presence of some remorse and the gaining of some insight. Of the desire to provide a better example for your children than this offending provides.
There is a form or risk assessment which is conditional upon a number of things occurring in the future obviously.
According to Mr Armstrong, you have no deeply entrenched criminal belief system. On the materials before me, there has been in the past that stability of employment and relationships that I have spoken of. You are now reconciled to the marriage having ended. As I have said, I view your former wife’s letter as being of real value to you, you should be grateful that it has been provided. It speaks also of the fact that you have worked through such issues that often arise in this setting and are in a better headspace.
There are various treatment recommendations which to a degree I am sure must inform the opinion of low risk and who knows if those things will be undertaken by you into the future. So much will depend on your abstaining from drugs, something that has been very difficult for you for 20 years.
I take into account the report in the ways urged upon me by Ms Garde-Wilson.
Guilty plea
I will turn now briefly to some of the matters raised on your behalf, firstly to your guilty plea. I am not going to set out the chronology. You have pleaded guilty at what I will treat as the earliest stage. You have taken responsibility for these crimes. Witnesses have been spared the experience of coming to court either in the Magistrates’ Court for a committal hearing or up in this court for trial. If follows then that the community has been saved the time, the cost and the effort associated with any contested hearing. You have in these way facilitated the course of justice. Your guilty plea also took place in the setting of the interrupted operations of the court brought about by the COVID-19 virus. Any trial would have been significantly delayed. I take all these matters into account in mitigation in the ways urged upon me. Also, the fact that you attended in person upon the police station on the day of arrest and then re-presented voluntarily for interview on a later date. You did not have to do those things, you just did.
Remorse
Your counsel argues that you are remorseful and she points to you early guilty plea and to your account to Mr Armstrong. Also to the views expressed on that topic by your former wife and by your father.
A guilty plea is often enough indicative of some remorse. That is not always the position though. The case against you was of course an overwhelming one. That in no way impacts upon the weight I have given to your guilty plea. That weight is totally unaffected by the strength or otherwise of the case or whether I find that there is remorse or not.
However, the strength of the case may make less strong the claimed inference of remorse flowing from the fact of a guilty plea. What realistic choice did you have here? It was your lease. Your factory. Your DNA. You made a no comment interview as was your right but as a result, unlike some cases where there may be an expression of remorse found in the interview, here there is no such thing. I have Mr Armstrong’s view as to remorse and insight. I have his quotations from you. I also have the mention of your regret in your ex-wife’s and father’s letter and the positive changes that they have witnessed.
This was a deliberate and calculated criminal exercise and a serious one at that. No doubt you wished you had not been caught but you were and then I suppose it is easy enough for anyone to then profess regret. But regret for what? For your own position? For letting down your family? Well those things would be understandable but they are not remorse.
However, having reread all of the materials, including the two letters that I have referred to, I am prepared to find the presence of some actual remorse in this case. It is not merely the fact of and stage of the guilty plea here. I also have your discussions with Mr Armstrong and your dealings with your ex-wife and father. I take the existence of some remorse into account in mitigation in this case. I am satisfied you know you have made a shocking decision and one that of course you must pay for and I am prepared to find that you do regret that and that you are expressing a level of remorse.
I turn now then to the submissions made as to the impact on the COVID-19 virus.
COVID-19
As I said at one point in discussion yesterday, there is probably no such thing as a good time for a person to be sent to prison. I am sure that is true. Well, this is a particularly bad time to be sent there. The COVID-19 virus and the response to it by those running the prisons has changed prison life. It will increase your prison burden. Prison is currently a more stressful environment.
Prisoners cannot make a decision to self-isolate. Social distancing is not easy in a prison. No doubt there is worry about catching the virus in such a setting where there is no level of autonomy.
It is very difficult for me to know precisely how the virus or the response to it by those running the prisons will actually impact upon you in the future. There have been some lockdowns but they do not exist across all prisons, or even all prisoners at a given prison. I certainly cannot conclude that they would necessarily apply to you in the future. Visits have already been suspended and so have some courses and programs. I cannot really know how long those things will persist.
It is impossible for me to forecast the impact of this virus either on those in the community or those in prison. There had been fears of a massive spread of this virus in a prison setting and thankfully that has not come to pass. There have actually been very few cases and they have been very well contained. We have been riding something of a roller-coaster out in the community, as you well know, with movement into, out of and then back into lockdown. We are seemingly now coming out the other side. Currently things have looked up a great deal with lowering of daily infections and a gradual opening up of businesses with further relaxations announced yesterday, after in fact I heard the plea, some to take effect at midnight tonight and others to come into force on 8 November. These are big positives, but they still do not suggest to me that there will be any prospect in the short term of the prison conditions being returned to the pre-COVID-19 setting. The fact is the virus will not go away and it would surprise me if prisons did not take a cautious approach. We are adjusting to a 'new COVID normal', which will be anything but normal.
So prison life is tougher for those who are sent there with the prospect of less time out of cells, less access to programs and courses and importantly no access to in-person visits. Also a 14 day isolation when first received as you have been. None of this is easy and you are a first time prisoner, and not just that but one with family members who you will not be able to see in person, including young children.
Things are being done to try to compensate for the lack of in person visits with access to video visits but they are just not the same. Your counsel focussed on that aspect of increased burden and that argument of course is made good.
I take into account in your favour the increased burden arising from these various matters that I have raised.
Rehabilitation
I turn now then to your prospects of rehabilitation.
Your counsel argues that you have favourable prospects of rehabilitation. She said good if not very good prospects. You are 34 years old with no relevant past history before the courts. That is more than a decent starting point. You have a very solid work history. You had got back into full time employment earlier this year. You are in a new relationship and you have now come to grips with the loss of your marriage. There is no suggestion from Mr Armstrong’s report that you hold deeply entrenched criminal views or mindset. He comments on a level of insight and remorse. There are as I have said already, the positive statements from your father and your former wife as to the gains you have made and as to the out of character nature of these crimes and the recognition that you have made a big mistake.
As against those matters of course, I have the nature of this offending. This was serious criminal conduct committed by a mature adult, not some silly teenager. You have also had a long term issue with drugs and that sort of thing always casts something of a cloud over a person’s future prospects.
You have been arrested, charged and then brought before the courts. You have pleaded guilty at the earliest opportunity and as I have said, there is some remorse here.
You will have to serve the sentence that I will shortly pronounce. This whole exposure to being charged and then exposed to the criminal justice system and now, to prison for the first time, will surely serve to deter you to some degree into the future.
Given the nature of your crimes, it is a bit hard not to be just a little bit guarded here. None of the things I know about you would have suggested that it was likely you would ever turn to crime and serious crime at that, and yet of course, you did. I have
Mr Armstrong’s risk assessment which is predicated to some extent on some things taking place in the future as well as on various protective factors that he speaks of. I take into account his view.
It is really never that easy to make these assessments of a person’s future prospects. As far as I can determine though, I believe that you have more than reasonable prospects of rehabilitation and a relatively low risk of engaging in this sort of conduct ever again. Surely you will have learnt a valuable and salutary lesson here. You are after all, forfeiting your liberty and for a sizeable enough period. It will be a very tough experience for you to be separated from your young children in the way that you will be and of course I take that into account as well. You will not forget that in a hurry.
If you continue to use drugs in the future, well your future prospects will plummet as surely you must know. I view your future prospects favourably and if pressed to apply an adjective, I would describe them as, at the least, good.
General remarks
I will now make some general remarks about the principles of sentencing, as to the matters that I have must take into account including the nature and gravity of your crimes. Let me start with that last matter. This was serious offending. Plainly the cultivation of a commercial quantity is the most serious of the two offences by far. It is an inherently serious crime and as you have heard, it is punishable by a 25 year maximum term of imprisonment. I must pay regard to the maximum penalty.
Your counsel suggested in paragraph 17 of her written submissions that your offending fell at the lower end of the scale. That was, frankly, a puzzling submission and one which I did not and still do not accept. She drew comfort though should not have, from the number of plants and the weight, from the fact that there were no charges of trafficking or firearms or proceeds of crime offences, from the fact that you were not part of some larger syndicate and that your crime was committed for financial gain in the context of drug addiction. So those matters set out in paragraphs 17(a) to (d).
It is conceded that you were not some low-level crop sitter or some minor player with little stake in the success of the venture. We as judges see enough of those players, indeed they make up a large enough share of people brought to this court on indictment. Even a cursory examination of the very many decisions including very many Court of Appeal decisions will confirm that is so.
This on the other hand was your venture. Given the nature of this set up, the rent payable on the leased premises and all that I see in the photographs and the summary, you must have had the expectation of making a significant enough amount of money. I am satisfied of that beyond reasonable doubt. You had given up your paid work and as your counsel conceded, that legitimate work had a sizeable salary.
The commercial quantity cultivation that I am dealing with is just not consistent with supporting your drug habit. Maybe some of the proceeds would have been applied to your addiction but it cannot have driven your decision to commit that serious crime. Your addiction to drugs is not of any significant mitigation. Your counsel submitted it is really only part of the context and she is right.
I am sentencing you for cultivation and theft on the single date, being the date the crop came to the attention of the police, but as is obviously conceded, your level of culpability can be assessed from the overall context here. This crop did not just spring to life. Nor did the set up. However I must not convert the single date into a between dates charge and make assumptions as to unlawful activity being committed throughout the period of the lease. Your counsel submitted that you had lawful reasons for entering into the original lease with a need to store cars and you may well have. She told me those cars were sold and she made plain that you then made a dreadful decision to cultivate and to use the factory for those purposes.
This was an unmistakably sophisticated set-up with a large array of equipment and obvious expense incurred. You are not able to point to some minimal connection to the crop or to being some poorly paid underling taking all the risks and for little reward. This was all yours and profit was your motivation.
I am sure you were taking a calculated risk. You must have weighed up the pros and the cons and considered those risks. You hoped that you would not be caught. You knew it was a serious crime to do what you did, there can be just no doubt about that. I am satisfied of that beyond reasonable doubt.
Monetary reward is at the heart of virtually every cultivation, even those by lowly crop sitters, which you most certainly are not. You were in this for sizeable monetary reward. There is just no other explanation for this style offending.
There is no suggestion of any real financial need here. Finding employment has never been a problem for you. You had chosen to stop work.
There was no evidence of any disastrous financial situation that might in some way lessen your culpability. No evidence of for instance a failed business or the need to provide for some critical surgery for a loved one or to fund aged care for an elderly parent or something like that. Nothing that might at least explain in human terms your decision to offend in this way. Even if there had been financial need in that sort of way, it would not be greatly mitigatory, but that is not the setting here at all. Your counsel pointed to the combination of profit and your addiction to drugs. Your addiction to drugs, as I have said already is not greatly mitigatory. I do accept you were in a difficult phase of your life dealing with the reality of separation. There is however no real reduction in your culpability in this case. Your culpability is actually very high.
I have lost count of the number of commercial quantity cannabis cultivations that I have dealt with over the years as a judge. Scores, and I am only one judge of many sitting in this court. It is a prevalent offence. It is not that uncommon to have it as the only charge on the indictment before the court so the point made at 17(b) in the written submissions is of little note. Really, it goes to the absence of a matter of aggravation or of additional charges. But I am not dealing with you for trafficking or other offences. I must deal with you for what you have actually done.
As I have said in countless other cases, I say now in yours; this crop and its ultimate success has been interrupted by the chance discovery of the crop and the execution of the warrant by the police on this day in question. This was an elaborate, planned, organised, criminal activity. There is nothing spontaneous on display here.
Sentencing always involves the balancing of a number of purposes or principles. One of the purposes relates to your rehabilitation. That is often over looked in the popular media, but it is one of the purposes of sentencing and I cannot overlook it. I have to take into account your prospects of rehabilitation. As I said a short time ago, I view those prospects favourably. You are far more than just the person who has committed these serious but out of character crimes as the references placed before me make very plain.
I am required to manifest this court's denunciation of your criminal conduct and I do. That is an important purpose of sentencing in this sort of case.
I am required to punish you justly and proportionately. Punishment is also an important purpose in this sort of case.
I must seek to deter you as well as others from committing this sort of offence.
As I announced earlier, I believe you have a relatively low risk of re-offending in this way again. In fact, I would be quite surprised if you did so. I think you have at least good prospects into the future. For these reasons, I believe it is open to reduce the weight to be given to specific deterrence which is the need to deter you as well as to community protection. If you had a relevant criminal history and had not been deterred by past court orders or had less favourable prospects of rehabilitation and a higher risk of re-offending, it would be a very different proposition indeed. In such a setting, more weight, if not far more weight, would be given to these purposes, but that is not the position here. So, whilst undoubtedly still relevant to my task, I believe that there can be some moderation of the weight to be given to community protection and to specific deterrence in this case.
General deterrence is a different matter altogether. By that I mean the need to deter others. It is a very significant purpose of sentencing in this sort of case. The case law makes that very clear. Those who choose to engage in this activity at whatever level are almost always taking a calculated risk, as you were. It is virtually always taken on because of the hope of financial gain. People must understand that this is a serious crime and that though there is the potential for financial reward, it comes with a real risk. It may not be as easy as it looks. The risk is of detection, prosecution and then the likelihood of the imposition of a significant term of imprisonment.
This court must send that message loud and clear to others in the community who might be minded to commit this sort of serious and prevalent offence. There are plainly enough of those people out there, as is demonstrated by the sheer weight of numbers of people brought before the court for commercial quantity cultivations.
Current sentencing practice
I pay regard to current sentencing practices. It is not a single, controlling factor but is one of the matters a court must have regard to. I have looked at the Sentencing Snapshot No.247 of August 2020. The statistics disclose that in the period covered by the data, that is 2014-15 to 2018-19, where prison was selected, sentences ranged from a period of a little over a month to 6 and a half years, with the most common sentence falling in the band of two to less than three years.
I have also looked at material held at the Judicial College of Victoria new sentencing manual which includes an overview of commercial cultivation sentences dealt with in the Court of Appeal. See 7.6.1. Also some recent Court of Appeal cases at 7.6.3 as well as a large number of decisions of single judges of this court at 7.6.2. I put aside any cases dealing with large commercial quantity as there is a higher maximum penalty at play for that offence.
There have been a large number of cases over the years querying the adequacy of sentencing practices for this crime. The case of Nguyen[4] sets out a number of those cases at paragraphs [139] - [142]. That case spoke of the inadequacy of sentencing practices for this crime when committed at certain levels. The Court of Appeal was critical of the fact that the current sentencing practice had seemingly remained the same, notwithstanding the many occasions that it had been questioned in the Court of Appeal. Not just the same but also very narrow with a merging of more serious cases into the lowest band. There is much by way of statement of principle within that case that is clearly relevant to my task. That case contains statements as to the seriousness of the crime of commercial quantity cultivation of cannabis and the weight to be given to punishment and general deterrence.
[4]Nguyen v The Queen [2016] VSCA 198
That case (Nguyen[5]) was not focussing on low-level players and was more directed at what are described as medium-level cultivators. The Court of Appeal spoke of the compression of sentences that seems to have taken place over the years. That is in fact very much on display in the sentencing snapshot that I have just referred to where a crime punishable by a 25 year maximum period had only two offenders sentenced to greater than six years over the period covered by the statistics. (2014-15 to 2018-19.). The court spoke of the need for an increase in sentences at least in relation to mid-level players so that the range of sentences are uplifted and substantially expanded. There must be some caution exhibited then when looking at sentences that predate that decision or for that matter, statistical material based on those earlier sentences.
[5] Ibid
On no view of this case could you be described as a low level player.
The Court of Appeal has spoken often enough as to the danger of applying adjectives or labels to describe a person's role. Those sorts of things can actually obscure a person's conduct. Focussing on the actions and conduct is what is important, not the label that is applied. As the Court of Appeal said recently in a different case of Nguyen:
'A sentencing judge is required to sentence an offender … by reference to all of the facts of the case (including all of those able to be gleaned about the offender's role and involvement) and not by reference to whether the offender can be given some particular appellation'.[6]
[6]Nguyen v The Queen [2019] VSCA 134 at paragraph [59]
I do not need to speculate about what you were doing or try to draw inferences as to your role. What was it that you were doing in this cultivation? Everything. It was your enterprise. That much is conceded. It is probably then a misnomer or not in any way useful to then describe you as a ‘principal’ as that word might be better used to describe the most important person in an organisational structure. I am not dealing with a hierarchy here. You were doing what you were doing in the expectation of sizeable financial gain and this was all yours. It was your venture.
Your culpability therefore was very high. It can be contrasted with low-level players, even those low-level crop-sitters who may be connected up with a much larger criminal hierarchy. People such as that take no key decisions. They have no financial stake. They do what they do, often enough for a very small payment and they take on all of the risk.
Well, this was your venture. You comfortably fall into the mid-level in terms of offence seriousness.
I have mentioned the sentencing statistics and also some other cases which I have looked at. Statistics have inherent limitations. They will never tell much of the real story. They are just numbers. When a sentence is imposed, a court is required to take into account a whole range of matters of aggravation and mitigation. The sorts of things I am going through now. Those sorts of things are never disclosed in the bare numbers. I am not going to sentence you according to what has been the most common previous sentencing outcome as disclosed in the statistics. Or the median or the average sentence for that matter. They are just statistical terms, I am not a statistician. Every crime is different and so too is every offender.
I have been taken by each party to other instances of other sentences imposed on other offenders. The prosecutor referred to the case of Nguyen [2017] VSCA 100.
Ms Garde-Wilson referred to the two cases I mentioned earlier (Brown and Falzon).
Other cases, even though they disclose the sentences imposed upon other offenders, are not precedents. There is also, by the way, no such thing as one correct sentence.
I had read the decisions to which I was referred before I had even come onto the Bench yesterday. There is always an aspect of cherry picking in this exercise of placing cases before the court and I must say, as I said yesterday, I regard the practice which has developed of being taken chapter and verse through other sentencing decisions of other judges for other offenders for other crimes as being greatly overvalued.
There really is nothing in any of the cases to which I was referred dictating a particular outcome in your case. Plainly Nguyen[7] was the most comparable with almost the same weight of plant. I note in that case there was a more limited but still integral role but with an absence of any finding that he was a principal.
[7]Nguyen v The Queen [2017] VSCA 100
I note in yet another decision of Nguyen[8], that the sentences of three years and eight months were confirmed in the Court of Appeal. I note also the statements of that Bench of the Court of Appeal (JA’s Priest and Beach) that sentences in that region are entirely unexceptional, even for crop sitters. See paragraph [65]. You are not a crop sitter.
[8]Nguyen v The Queen [2019] VSCA 134
It is clear from the many cases in this area that cultivation in a commercial quantity of this drug is a serious and prevalent crime where a term of imprisonment is almost always unavoidable.
Statements of principle are, as far as I am concerned, of far greater value than past individual sentencing outcomes.
It is equally clear from the many decisions that general deterrence must be at the forefront of any sentence imposed by the court.
As I have said already, yours was not some low-level venture. You were not some low-level or bit player here.
I am not to make judgements as to the relative harmfulness of the given drug. This is a quantitative based regime. Commercial quantity for cannabis is 25 kilograms or above, or 100 plants. You had over 92 kilograms so well over three and a half times the commercial quantity. Your counsel’s submission focussed on the plant number and the fact that it fell below the commercial quantity on that measure. Well it did. One could have a 100 plants of very small size weighing only a few kilograms. She clarified her submission by saying that your crop was by any measure a long way removed from large commercial quantity and of course that is true. I am not dealing with you for that crime.
The fact is you had a decent enough number of plants. The weight here comfortably exceeds commercial quantity. Then there is the whole nature of the set-up. It was a sophisticated and professional arrangement. A series of tent like rooms set up within a leased factory. A factory you were leasing. Essentially a cannabis factory.
It was essentially a cannabis factory. Your cannabis factory. There was an electrical bypass. This was a quite serious example of a serious crime and it was your venture. On reflection, it probably would be more serious if you were the head of a large criminal hierarchy for in such a setting as that, you would be engaging or recruiting other players into serious offending in your enterprise. That is not what I am dealing with. What you were doing though was quite serious enough.
The theft of electricity is obviously far less serious and has a lower maximum. The case law in this area demonstrates that ordinarily some cumulation is warranted. Here the quantum is not established or even estimated and the theft relates to that single day.
I have given consideration to the overall effect of the sentences imposed by me. I have engaged in a last look at the overall effect of the sentences in endeavouring to avoid a sentence that might be crushing upon you and to ensure that the overall effect is consistent with your overall actual criminality. Regrettably though, your criminality was high here.
Disposal
There is a disposal order in this case, it is not objected to. It relates to the various items, the bits and pieces, including the plants and other equipment that was found. There is no objection to the signing of that order, I will sign that order and I see no need to further pronounce it. The items referred to in the schedule will be treated in the manner referred to in the signed order.
Sentence
So I am sorry to have taken so long to get to this point, Mr Ellul and I will have you remain seated. I now move then to pass the actual sentence upon you.
On Charge 1, which is the charge of cultivation of a commercial quantity of cannabis, you are convicted and sentenced to four years' imprisonment. That will be the base sentence.
Charge 2, a charge of theft, you are convicted and sentenced to seven days' imprisonment.
No cumulation
Whilst satisfied that a prison term is warranted in relation to Charge 2 given the mechanism of the theft, there is just no material before me as to quantum and as I said, it relates only to that single day. In those circumstances, I am going to depart from the usual order of cumulating part of the sentence. It is a small enough sentence in any event. There are enough authorities suggesting that some level of cumulation is usually warranted and that is exactly what I would do if for instance I was dealing with a between-dates charge relating to a high value theft. But that is not the setting and I believe that total concurrency is therefore open and in fact preferable here.
Total effective sentence
It means then that the total effective sentence is therefore the sentence of four years' imprisonment that I have pronounced on Charge 1.
Non-parole period
Given the dimensions of that head sentence, I am required as a matter of law to fix a non-parole period. It is not for me to speculate as to whether you will be released on parole or not. In fact I am prohibited from considering that matter. That will be entirely in the hands of the Adult Parole Board. It really will be between you and them and has nothing to do with me.
But as I say, I am required to fix a non-parole period. I fix a period of 28 months or two years and four months, during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
You have already served one day of that sentence by way of pre-sentence detention and that is to be entered into the records of the court pursuant to s.18 of the
Sentencing Act.
Section 6AAA
I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these two offences by a jury, I would have in those circumstances sent you to prison for six years. I would have fixed a non-parole period of four and a half years in such a setting as that.
Let me just see if there are any other matters that I need to deal with. Any other matters from you, Ms Hunter? Sorry, any other - - -
MS HUNTER: No other orders, Your Honour.
HIS HONOUR: Ms Garde-Wilson, any matters from you at all?
MS GARDE-WILSON: No, Your Honour.
HIS HONOUR: All right. You will make arrangements obviously to have some sort of video link with your client in due course for you to discuss what has occurred here today.
MS GARDE-WILSON: I will try. I'm not sure whether your associate's able to leave us on the link for a minute. It's very difficult with the 14 day lockdown to have any form of communication for the next 14 days.
HIS HONOUR: I am happy to do that. Are there any other matters? Are you wanting me to do anything in terms of custody management or anything like that at all?
MS GARDE-WILSON: No, Your Honour.
HIS HONOUR: 10 am, Thursday then please.
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