DPP v Patience
[2013] VCC 688
•20 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-11-01913
CR-11-01912
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER WILLIAM PATIENCE and JOYCE CAROL PATIENCE |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 30 May 2013 | |
DATE OF SENTENCE: | 20 June 2013 | |
CASE MAY BE CITED AS: | DPP v Patience and Patience | |
MEDIUM NEUTRAL CITATION: | [20193] VCC 688 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – plea – sentence – cultivation of Cannabis L in a commercial quantity – trafficking in Cannabis L in a commercial quantity - theft of electricity – cultivation of Cannabis L simpliciter.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Lewis with Ms D. Tang | Office of Public Prosecutions |
| For the Accused (Peter William Patience) | Mr S. Gillespie-Jones | Jessop & Komesaroff Pty |
| For the Accused (Joyce Carol Patience) | Ms E. McKinnon | Jessop & Komesaroff Pty |
HER HONOUR:
Introduction
1 Peter Patience, you have pleaded guilty to having, between 4 October 2010 and 13 December 2010, cultivated a narcotic plant, namely Cannabis L in a quantity that was not less than the commercial quantity applicable to that plant and to having, on 13 December 2010, trafficked in a drug of dependence, namely Cannabis L in a quantity that was not less than the commercial quantity applicable to that drug. The maximum penalty for each of these charges is 25 years' imprisonment.
2
You have also pleaded guilty to a third charge, namely theft of electricity belonging to AGL Retail Energy Ltd between 4 October 2010 and
13 December 2010, the maximum penalty for which is 10 years' imprisonment.
3 The value of the electricity stolen was $7276.64. You have consented to the making of an order for payment of compensation in the sum claimed. I have signed that order today.
4 At 58 years of age you have a limited but, nonetheless, relevant criminal record involving one count of cultivating marijuana for which in March 1990 you were fined $1500 and one count of trafficking cannabis, for which, in June 2006, you were sentenced to three months’ imprisonment to be served by way of an Intensive Correction Order.
5 On conviction and sentence to a term of imprisonment for the cultivation offence I am required on the additional “relevant offence”, namely, the trafficking offence, to sentence you as a serious drug offender in respect to Charge 2 and, pursuant to section 6D of the Sentencing Act, to regard the protection of the community from you as the principal purpose for which the further sentence is imposed.
6 To achieve that purpose a sentence may be imposed longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. The prosecution did not seek the imposition of a disproportionate sentence on this charge. Allowing for this concession and the circumstances of this case, I have been able to impose a sentence that protects the community without resorting to a disproportionate sentence.
7 Section 6E of the Sentencing Act also requires that unless I otherwise direct, the sentence I impose with respect to Charge 2 is to be served cumulatively on any term of imprisonment imposed today. In my view it is appropriate to only impose the degree of cumulation to which I refer shortly, which allows for the different offending. To do otherwise could produce an unjust outcome.
8 Joyce Patience, you have pleaded guilty to having, between 4 October 2010 and 13 December 2010, cultivated a narcotic plant, namely Cannabis L. As will become apparent from my discussion of your sentence in due course, you have satisfied me that this offence was not committed by you for any purpose related to trafficking in cannabis. Accordingly, you are sentenced today on the basis that the maximum penalty applicable to this offence is one year's imprisonment or not more than 20 penalty units or both.
9 At 57 years of age you present with no criminal antecedents and no pending charges.
The offending
10 The prosecution's plea opening was tendered as an agreed summary of the facts.
11 You are a married couple with two adult children born in 1976 and 1984 respectively. For some 20 years or more until its recent sale, you jointly owned and resided in the main house situated on a rural property in Bittern. It appears that the earlier cultivation offence, involving 252 seedlings, and the later trafficking offending had also been committed whilst you were living at the Bittern property. Indeed, I was told that the prosecution summary for the trafficking offence indicated that, when in January 2006, police executed a warrant at the Bittern property a hydroponic setup and the remains of a large crop were found. On that occasion police seized 24 kg of cannabis.
12 The bundle of photographs annotated and tendered by the prosecution and the Google aerial map, among other things, depict the location of the buildings and sheds comprising the Bittern property, when on 13 December 2010, police executed a warrant pursuant to the Drugs Poisons and Controlled Substances Act 1981.
13 At the time your daughter, her husband and their children also resided at the Bittern property, but in a separate dwelling near the front. It has not been suggested that either your daughter or her husband had any knowledge of the crop or involvement in this offending.
14 During their search police found cannabis and a hydroponic set up in each of three small sheds incorporated in a large shed located in the backyard, near the main house. The first small shed contained 47 cannabis plants weighing 8.78 kg. The second contained 721 plants weighing 2.39 kg and the third contained 127 plants weighing 11.66 kg.
15 A further, larger shed was located on the opposite side of the backyard. This shed was constructed over an underground concrete water tank. This tank was 13m in diameter and its entrance had been concealed behind a sheet of metal. The tank contained 208 cannabis plants weighing 11.43 kg.
16 In total, there were 1103 plants weighing 32.26 kg, which a botanist estimated were cultivated from seedlings or propagated from cuttings from between four to 10 weeks prior to the execution of the warrant. These matters constitute the cultivation offending.
17 At the entrance to the underground tank police also located two large blue barrels containing 35.92 kg of dry, harvested cannabis. These matters constitute the trafficking charge. It was common ground that this charge was put on the basis that the cannabis was possessed for sale by Mr Patience.
18 I note that for each of the offences of cultivating and trafficking, the commercial quantity of cannabis is specified in Part 2 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 as being either 25 kilograms or 100 plants. The threshold for a large commercial quantity is 250 kilograms or 1000 plants. Accordingly, in respect to the cultivation offence there was more than 11 times the commercial quantity of cannabis plants, which, as it happened, also exceeded the threshold nominated for a large commercial quantity.
19 It was common ground that you, Mr Patience had prime responsibility for the acquisition, propagation and cultivation of the cannabis plants, with your wife playing a secondary role.
20 The matters relating to bypassing of the power supply to avoid metering the electricity used in cultivating cannabis, constitute the theft charge on your indictment Mr Patience.
21 You were both interviewed by police. In your case Mr Patience you made partial admissions and, as was your right, you declined to comment on many of the questions asked. Where you did respond, among other things, you stated that you were in possession of the cannabis for your own use, that the cannabis found in the three smaller sheds was yours, that you were the only person responsible for what was found in those sheds, that you had installed the electrical bypass found by police and that some seeds found concealed in your shared bedroom also belonged to you. You repeatedly denied and have continued to deny your wife’s involvement in this operation.
22 Since your arrest you have been held in remand. Whilst, this circumstance limits your access to the all of the rehabilitative programs and courses available to other prisoners, I note from various reports made by you that, you have participated in computer skills and First Aid courses and that you have worked and continue to work as a prison billet. The consequences of injury suffered after falling from a bunk in January 2011, for which knee surgery is pending, no doubt impose further limitations on your activities.
23 During your record of interview Mrs Patience you denied knowledge of the plants seized and any involvement in the operation of what you referred to as your husband's “business”. Indeed, among other things, you told police that you had never been in the shed containing the three smaller sheds, although you conceded that you had used the stable end of the larger shed; that is the shed that also housed the underground water tank, whilst attending to your horses. Moreover, as was your right, you declined to comment when asked whether you knew that your husband was growing cannabis.
24 Based on the materials tendered, including the matters agreed in the opening and the responses provided during your record of interview, I was satisfied as to the existence of a number of matters, namely that:
· you knew that your husband was a user of cannabis;
· you knew that he had a prior criminal record for cultivating and trafficking cannabis;
· during the period alleged, you knew that he grew cannabis and, in keeping with the opening, this was an activity you had allowed at the Bittern property;
· in the months preceding the execution of the warrant, you had noted the installation of an electrical bypass in the carport and had been told by your husband that this installation was to "jump" the power, by which statement you understood him to mean that he had bypassed the power supply;
· whilst you denied knowledge of the extent of this operation, your answers to Questions 294 to 299 and 309 to 314 of the record of interview nonetheless indicated that, having noted what you called the ”light” smell of cannabis when you entered the larger shed in connection with the operation of your horse training business, you knew that your husband had plants in this shed, although you denied seeing the plants or looking in the tank;
· at the time of the commission of this offence you were suffering from - the other fact that I have noted is that at the time of the commission of this offence you were suffering from a documented nasal/sinus condition, which had likely compromised, but had not eliminated your ability to detect, as you acknowledged you had, the odour of cannabis in the larger shed.
25 At some stage following your arrest and interview you were granted bail. Having, in February 2013, ceased employment as a stable hand, you are now living with your daughter and her family at a different location where you help in the care of your grandchildren.
The guilty pleas
26 It was common ground that you are both entitled to sentencing discounts for your pleas of guilty. The extent of the discount was, nonetheless, disputed.
27 For the purpose of each sentence I have accepted that the pleas entered indicated your acceptance of responsibility for the crimes alleged. The discount given reflects this matter as well as the utilitarian value of the pleas of guilty, as a consequence of which witnesses were spared the inconvenience of a contested trial and the community was spared the cost of what could have been a lengthy and expensive trial.
28 However, during the plea hearing the prosecution contested the submissions made to the effect that the pleas of guilty to the charges on the respective indictments, offered by each of you and accepted by the prosecution during September 2012, should also be treated as having been entered at the earliest reasonable opportunity.
29 In summary, I was told that you were both charged with the cultivation and trafficking of cannabis in a quantity that was not less than a large commercial quantity and with the theft offence. These were the primary charges, which were reframed in response to concerns expressed by the Magistrate who heard the contested committal hearing in October 2011. The trial was subsequently fixed to commence in early October 2012.
30 By April 2011, you Mr Patience had already expressed a willingness to plead guilty to the original charges. This offer, however, was conditional on the withdrawal of all charges against your wife and, until resolved by the entry of pleas of guilty during September 2012 all negotiations were predicated on withdrawal of any charges against your wife.
31 The case against you, particularly with respect to the cultivation charge, was a strong case, although the concession eventually made by the prosecution in accepting the offer to plead to the lesser charges demonstrated the difficulty confronting the prosecution in proving your knowledge of the number of plants involved. Of course today you are only sentenced in respect to the Charges relating to in a commercial quantity, not a large commercial quantity.
32 Mrs Patience you took a different approach. As I understood the various submissions made, the offer to plead to the cultivation simpliciter charge in September 2012 was the first indication that you intended to plead guilty to any offence.
33 It appears that other factors also contributed to the delay in resolving these matters. For instance, I was told that investigations by experts, including the forensic accountants appointed by the prosecution, also took time to complete and, in the lead up to the date fixed for trial, you both tried to resolve forfeiture of property issues as part of your negotiations with the prosecution. This approach was rejected by the prosecution. Indeed, I was told that exclusion applications relating the confiscation of the Bittern property and other jointly owned property are unresolved.
34 Accordingly, I have preceded on the basis that multiple and overlapping factors affecting each offender as well as the pursuit of expert evidence, contributed to the delay in resolving negotiations where, somewhat unusually Mr Patience you had at first only sought a concession in respect to your wife, to which the prosecution never acceded.
35 I was taken to the decision of the Court of Appeal in Graziosi v The DPP (Cth)[1] where the Court found that:
"the sentencing judge erred in according lesser weight to the plea because it was made shortly before trial. As his Honour accepted, the plea was made when an agreement was concluded after lengthy negotiation. It is not suggested that there was delay in pleading guilty after agreement was concluded or that the appellant or his advisors were responsible for the length of the negotiations or that the negotiations did not lead to significant concessions from the Crown.”
[1] [2011] VSCA 418 [15]
36 In the present case, all parties appear to have contributed to the delay in reaching positions acceptable to the prosecution and the concessions ultimately made by the prosecution in respect to each offender, particularly in relation to Mrs Patience, were significant. In these circumstances the pleas of guilty are properly treated as having been entered at the earliest reasonable opportunity after the resolution of the charges. It follows from this finding, and the other matters in relation to the entry of the plea of guilty, that the discounts allowed in each case today have been substantial.
Forfeiture of property
37 It is convenient at this juncture to deal with the further submission made on your behalf, Mr Patience, seeking mitigation of your sentence due to the potential forfeiture of property.
38 Section 5(2A) of the Sentencing Act 1991 permits a sentencing court to take into account the circumstance of automatic forfeiture of property. Your counsel submitted, among other things, that you intended to consent to forfeiture of your interest in the Bittern property.
39 For the following reasons, I did not, however, also allow for this circumstance.
40 Firstly, despite the indication given by your counsel, I was also told that an exclusion application (or applications) made by you in respect this and other property is unresolved and, secondly, from the limited material before me, you have not satisfied me of the extent to which, if any, forfeiture of the proceeds of a property in which I was told third parties have notified their interest, would impact on you.
41 Your consent to the making of an order to pay the compensation sought by the electricity company is a different matter. This has some bearing on my assessment of particularly remorse in respect to Charge 3 on the indictment. I will say more about remorse as a sentencing consideration shortly.
Personal Circumstances - Peter Patience
42
I will deal with your personal circumstances separately and start with you
Mr Patience.
43 Your circumstances were generally described in counsel's submissions, the report of forensic and consultant psychologist, Mr MacKinnon, by whom you were assessed at the Metropolitan Remand Centre on 9 November 2012 and in the three-page statement prepared and submitted by you on the second day of the plea hearing. Leaving to one side particularly the representations made about the extent of your wife’s knowledge of the cultivation operation, the statement tendered largely repeats and expands on the personal history either summarised in Mr MacKinnon’s report or in the report of clinical neuropsychologist, Dr Gibb. The latter’s report, following his assessment of your wife on 29 October 2012, was tendered as part of her plea in mitigation of sentence.
44 You and four siblings were born and raised on the Mornington Peninsular. You describe a very unhappy childhood and adolescence, characterised by conflict in the home and episodes of significant corporal punishment inflicted by your parents and the nuns at your local primary school.
45 You were schooled to Year 8 and, subsequently completed a brick laying apprenticeship. You have since established a successful business as a licensed builder in Victoria and as a developer and builder in Queensland. I was told that you have recently applied to renew your building licence in Queensland, your intention being to return to this work on your release from custody.
46 You first met your wife when you were 18 and she 17 years of age. Tragically, you lost two children, one miscarried and another was stillborn prior to the births of your son, now aged 27 and your daughter, now aged 24. There are three grandchildren. The impression I gained from the material before me was that your son previously had a drug problem, and has not been in contact with the rest of the family for some time.
47 It appears that your family faced further adversity when, in December 2006, your wife suffered a severe head injury in a horse riding accident.
48 Accordingly, some preliminary discussion of her circumstances before and since this injury is appropriate at this stage.
49 To start with, I note that, for some years prior to selling this business in 2000 your wife had operated her own business, a clothing store that is, she had been an accomplished horse woman, who was actively involved in the administration of her local horse club and she was a book-keeper for your business.
50 By her account, over the four year period following her injury your wife returned to some of her previous activities, including horse riding and, when this offending occurred she had been running another business training horses and giving riding lessons. However, following your arrest and, until recently relocating to live with your daughter and her family, your wife lived alone at the Bittern property and supported herself by working as a stable hand.
51 This and other evidence explaining your wife’s mental capacity, functioning and behaviour subsequent to her injury helped satisfy me that, both at the time of the offending and sentencing, ongoing neuropsychological impairment, involving moderate deficits in cognitive functioning, in the main affecting her memory, attention and performance speed, was probably not severe and had not led to gross dependency on you or others. However, this is not to deny, firstly, the evidence of your wife’s pre-existing dependant personality traits, secondly, post-injury her likely greater emotional dependence on particularly you and your daughter and, lastly, the evidence of your wife’s ongoing treatment for symptoms of anxiety and depression, primarily in the form of medication prescribed by her general practitioner.
52 The point I seek to make at this juncture in relation to your circumstances, is that, despite some level of dependency, whether this was due to personality traits or the aftermath of an ABI, I could not be satisfied that you were, as you claimed, her carer or, that in the period shortly before and during this offending, your wife had required a high level of care and support due to any inability to cope with the normal demands of everyday life.
53 I note that in addition to any concern about your wife’s wellbeing, you and your family are currently dealing with significant medical issues affecting a sister, your mother and your daughter. Your daughter apparently has a history of ill-health. In formulating your sentence your own health concerns and your concern about the health and wellbeing of other family members are relevant considerations, in as much as I accept that, by reason of these matters your experience of prison will likely be more burdensome.
54 You told Mr MacKinnon that from age 15, you habitually smoked cannabis as a form of self medication against what he characterised as chronic internal distress, including anxiety and depression, originating in your unhappy childhood. This drug abuse appears to have continued, despite likely treatment interventions under the Intensive Correction Order imposed for the earlier offending in 2006.
55 In this psychologist's opinion when you reoffended you were suffering from symptoms that met the clinical criteria for a Substance Abuse Disorder involving chronic abuse of cannabis, a condition he felt was largely driven by an underlying Mixed Anxiety and Depressive Disorder, for which you are now prescribed antidepressant medication.
56 In November 2012, Mr MacKinnon said that this condition, namely the Anxiety and Depressive Disorder, was moderate to severe.
57 You impressed him as being genuinely distressed by the harm your actions had caused other family members and by the prospect of estrangement from your family in the future, particularly should the sentence imposed today require a further significant period in custody.
58 Consistent with the results of drug screening tendered on your behalf, you probably have, as claimed, abstained from cannabis use while in custody, although, having regard to your criminal record and substance abuse history, I agree with the psychologist’s warning that you remain vulnerable to further relapse when released from the confines of a custodial environment.
59 In Mr MacKinnon’s opinion, following release, you may require ongoing antidepressant medication and psychological therapy to avoid relapse and to help you establish an appropriate lifestyle. Mr MacKinnon also felt that a long period under a structured parole order would be beneficial to your rehabilitative prospects.
60 In as much as your longstanding addiction and daily drug habit, so described, had its origins in the reported psychological and physical abuse suffered during your formative years, the addiction probably did contribute to any decision to grow cannabis for your own use. However, the cultivation offence on this occasion far exceeded that required for your own use, such that any mitigation of punishment in respect to Charge 1 on the indictment, due to your addiction, is minimal.[2]
[2] See Rv Lacey [2007] VSCA 196 [12] to [18]
61 You have, however, also sought to further mitigate your sentence by invoking the principles reformulated and restated by the Court of Appeal in Rv Verdins[3]
[3] [2007] VSCA 102
62 On the second day of the plea hearing there was some debate about the circumstances in which impaired mental functioning may reduce an offender's moral culpability. For this reason it is appropriate that I indicate the bases upon which I have accepted or rejected the various submissions made about the application of these principles to both sentences.
63 In Verdins, the Court of Appeal articulated the reformulated principles when it stated that:
"Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depending on the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentencing or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition of the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.[4]"
[4] Ibid [32]
64 The Court in Verdins also provided a non-prescriptive list of the circumstances under which impaired mental functioning at the time of offending may reduce an offender's moral culpability if it had the effect of:
a) "impairing the offender's ability to exercise appropriate judgement;
b) impairing the offender's ability to make calm and rational choices, or to think clearly;
c) making the offender disinhibited;
d) impairing the offender's ability to appreciate the wrongfulness of the conduct;
e) obscuring the intent to commit the offence; or
f) contributing (causally) to the commission of the offence."[5]
[5] Ibid [26]
65 The list so described clearly contemplates that a causal contribution to the offence is not the only circumstance in which impaired mental functioning may reduce an offender's blameworthiness.
66 As you are aware, during the plea hearing I was handed a copy of Tran v The Queen,[6] a decision delivered by the Court of Appeal in 2012. In Tran the Court:
· Firstly specifically rejected the contention that the decision of the High Court in Muldrock[7] had altered any of the principles summarised in Verdins.[8] At the same time the Court explained the distinction between cases where the causal relationship between mental illness and the commission of an offence arose and other cases, where, for example, a lack of capacity to reason due to mental retardation substantially lessened an offender's moral culpability;[9]
· Secondly in that case the Court of Appeal confirmed that, in each case, a sentencing judge must examine what the evidence shows about the particular condition and how it affected the offender's mental functioning at the time of offending and/or at the time of sentencing.[10]
[6] [2012] VSCA 110
[7] (2011) 244 CLR 120
[8]Op. cit. [16]
[9] Ibid [16]
[10] Ibid [22]
67 More recently, in two cases decided in March 2013, DPPvSokaluk[11] and Latifv The Queen (and others),[12] two differently constituted courts also rejected the submission that Muldrock had altered the law in Victoria and cited with approval the reasons expressed by the court in Tran. In particular, in Latif the Court of Appeal stated that the sentencing judge had erred in concluding that, absent any causal link between the offender's dysthymic disorder, moral culpability should not be reduced. This error occurred in circumstances where there was unchallenged evidence from a psychologist to the effect that the condition would have affected the offender at the time of this offending.[13]
[11] [2013] VSCA 48
[12] [2013] VSCA 51
[13] Ibid [81]
68 In your case, Mr Patience, it was submitted that impaired mental functioning contributed to the offending and that Verdins should be applied both to reduce your moral culpability for the offending (Verdins 1) and to allow for the likely greater burden of imprisonment where, as I have already said, you have been diagnosed as suffering from a moderate to severe anxiety and depressive disorder (Verdins 5).
69 In short, Mr MacKinnon opined that your psychological disorders had probably contributed to your offending, and I am quoting from his report where he said: "to some degree”. The submission seeking to reduce your moral culpability for this offending relied in the main on Mr MacKinnon's attempt to explain how the conditions had affected you, namely his statement that:[14]
[14]Exhibit PP 1 at page 6
"… longstanding abuse of cannabis is likely to have engendered in
Mr Patience a somewhat blaze (sic) attitude to its use and effects and his judgement may have been somewhat distorted by his long-term use of cannabis. In other words, he had for so long been using cannabis himself, and mixing with other adults who willingly used it with him, that the use of cannabis has become as 'normal' as consuming alcohol for Mr Patience and its cultivation acceptable in this context."
70 On the basis of this psychologist's evidence, at best, any reduction in your culpability was confined to the cultivation offence.
71 The prosecution contested the application of the Verdins principles in mitigation of your sentence. In particular, it was submitted that the statement made by the psychologist lacked precision. I agree with the prosecution’s submission. This is not to deny that your long-standing substance abuse and drug-related lifestyle, where you probably mixed with like-minded drug users, may have allowed you to rationalise the ongoing use of this illicit drug as well as to minimise the criminality of your conduct.
72 However, when regard is also had to your criminal history and the probability that financial reward was the primary motivation for establishing and operating this significant enterprise over the period alleged, I was not satisfied by particularly the psychologist’s evidence, that Verdins was enlivened to further mitigate your sentence by reducing your culpability for any of the offending.
73 As to the likely impact of prison on you and the application of the fifth of the Verdins principles, it appears that you have contained your substance abuse disorder and, with your use of appropriate medication, the symptoms of any underlying mental disorder are well managed, and are likely to be well managed if you continue in the future to take that medication. In these circumstances, you have not satisfied me that impaired mental functioning now or for the foreseeable future may mean that your custodial sentence will weigh more heavily on you than on a prisoner in normal mental health.
74 This brings me to my discussion of the issue of remorse and my assessment of your prospects of rehabilitation.
75 Generally speaking, where there is evidence of genuine remorse, it enhances an offender's prospects of rehabilitation and reduces the need for specific deterrence as one of the many sentencing considerations appropriate to the formulation of a just and balanced sentence.
76 As the Court of Appeal explained in Barbarov The Queen,[15] to obtain a discount over and above that which is granted on the basis of the utility of the plea of guilty, you, and this also applies to your wife, were required to satisfy me through appropriate evidence that you have an accurate appreciation of the wrongfulness of your offending and of its impact on particularly the community and that you desire to do what reasonably can be done to repair the damage and to clear your conscience.
[15][2012] VSCA 288, [36] to [41]
77 Your plea of guilty was one indicator of a level of remorse, as was your evident distress due to you having come to appreciate the harm your criminal activity had caused members of your immediate family and the very real prospect of long-term estrangement from them. In this regard I accept that you are probably very sorry for the predicament in which you have placed yourself and your family. However, from the material before me, I was not also satisfied that you have reached the point where you have appreciated the wrongfulness of your offending and its impact on the wider community, that is the impact of illegal cultivation and distribution of cannabis for profit, and associated offending on the wider community.
78 Let us be very clear about this Mr Patience, the escalation of your offending within a few years of a court sentencing you to a term of imprisonment for trafficking in cannabis, albeit a sentence that was designed to help promote your rehabilitation while living in the community, was driven by greed.
79 In formulating your sentence I have made allowance for your improved prospects of rehabilitation, particularly should the sorts of interventions recommended by the psychologist be made available to you on your release from custody. However, bearing in mind the matters already summarised and your offending history, the risk of reoffending is real and, for this reason, specific deterrence remains a relevant sentencing consideration.
Personal circumstances - Joyce Patience
80 Now I will turn to my summary of your personal circumstances, Mrs Patience. These were described in some detail in Dr Gibbs's report.
81 I have also taken into account the multiple medical reports provided by your treating general practitioner, Dr Cato and a written testimonial submitted by Cheryl Pintoy, a friend and fellow member of the Peninsular Quarter Horse Association Club since 1986. Among other things, her evidence indicated that:
· Firstly in the 10 years prior to your unfortunate accident in 2006 you made a valuable contribution to the administration and running of this club in a voluntary capacity;
· Next that following the horse riding accident your injuries had prevented you from returning to the duties previously performed by you for the club;
· Lastly since the accident she had observed changes in your behaviour that I note were consistent with the medical evidence of ongoing problems with particularly your memory and mood.
82 You are the third of six children born in the United Kingdom. It seems that your father's untimely death when you were just eight years old prompted your mother to relocate to the Mornington Peninsular, where she raised you and your siblings as a sole parent.
83 You left school at age 15 to take up a job as a machinist. I was told that this was due to economic need rather than any behavioural or learning difficulties.
84 In any event, I was told that whilst currently you help with the care of your grandchildren, in view of your changed financial circumstances you still contemplate a return to the workforce in the future.
85 Other than you admitting that you tried marijuana once as an 18 year old, you have no history of illegal substance use or of substance abuse.
86 You describe a close early relationship with your mother and siblings and a close relationship with your daughter and her family.
87 Your medical history indicates a number of factors. One of which is that in 2003 diabetes insipidus was diagnosed and you were operated on trans-nasally to remove a pituitary cyst on your brain. Since then you have used a nasal spray, the side-effects of which evidently include nasal congestion and rhinitis. Dr Cato's notes show that on 3 December 2010, that is 10 days prior to the execution of the warrant at the Bittern property, you were treated for what was probably a nasal infection. In view of these circumstances, as previously mentioned, I have accepted that over the period of the offending your nasal/sinus condition to varying degrees probably had compromised, but not eliminated your ability to detect the odour of cannabis.
88 I have already mentioned in passing the circumstances of the head injury suffered in late 2011. The reports submitted by Dr Cato indicated, among other things, that;
· Firstly following the accident you were treated for Post Traumatic Stress Disorder, the symptoms of which he said included depression, anxiety, panic disorder and social phobia.
· Your treatment had consisted of counselling by your general practitioner and prescription medication.
· You continue to be treated with medication for particularly anxiety.
· Lastly the accident had affected your self-confidence and you had become more dependent on your husband and daughter.
89 At hearing I was told that currently your daily medication consists of one tablet of the antidepressant, Zoloft, three tablets of an anti-anxiety medication, Kalma and medication to aid sleep.
90 I note from the various matters recorded by Dr Gibbs that, in the past, rather than live alone you had preferred to remain in what had been, or what you have described as an emotionally difficult marriage. Evidently, you have also expressed some uncertainty about any future relationship with your husband.
91 On assessment on 29 October 2012, Dr Gibbs concluded as follows, that:
· Firstly, you suffered ongoing cognitive dysfunction included impairment of verbal and spatial memory, attention and performance speed.
· Any neurological impairment was of "a moderate nature" and particularly related to your memory function, but was not such as to warrant constant care due to gross disorder.
· You were vulnerable due to your cognitive limitations.
· The dependence described by you was more likely of an emotional kind.
· You were an unsophisticated and emotionally vulnerable woman.
· This emotional vulnerability was due to dependent personality traits, which likely had their origins in your background where you had experienced the early death of a parent and had been raised by in a sole parent household.
· The dependent personality traits, had worsened after the ABI. I am talking about the 2006 incident.
· Your emotional dependency and limited cognition had the potential in his view to impact your judgment with respect to the circumstances of the offending, your capacity to fully appreciate the nature of the circumstances in which you found yourself and your ability to take appropriate steps to handle or separate yourself from the situation.
· He also commented on depressive symptoms stating that they likely also impacted your capacity to proactively consider or remove yourself from the circumstances in which you found yourself.
· Finally Dr Gibbs said that any incarceration would likely adversely impact both the depressive and anxiety disorder as he called it, and your cognitive functioning. Moreover in view of your lack of sophistication and dependent personality traits, he said that incarceration could also expose you to negative influences.
92 Your husband has repeatedly attempted to distance you from any responsibility for the offending. You have, however, pleaded guilty to the cultivation simpliciter charge. Through your plea to this charge you have acknowledged that you knew that cannabis was cultivated at the Bittern property over the period alleged. However, you have satisfied me that, when this offending occurred you probably were not, as claimed, aware of the extent of the further cultivation operation established by your husband at the Bittern property.
93 Based on particularly Dr Gibbs' evidence, I was satisfied that in your case Verdins was enlivened. In other words, when the offending occurred the cognitive deficits so described and/or persistent symptoms of depression or anxiety probably had, to some extent, compromised your ability to exercise appropriate judgement, to fully appreciate the circumstances in which you found yourself and to deal with the circumstances in which your found yourself.
94 So far as the formulation of your sentence is concerned at the very least:
· you are less blameworthy than might otherwise have been the case and some moderation of your culpability for the cultivation offence is justified.
· you are a less appropriate vehicle for deterring others from this type of offending and some moderation of general deterrence as a sentencing consideration is also warranted both at the time of the offending and sentencing.
· Lastly your ongoing impaired mental functioning has bearing on the kind of sentence imposed.
95 I was not, however, satisfied that the evidence had established that there was also a serious risk of imprisonment having a significant adverse effect on your mental health.
96 You are a 57 year old woman of hitherto very good character whose involvement in this criminal activity probably had a lot to do with your inability to better manage your circumstances other than any proven, overt criminality on your part. Based on all the evidence I was satisfied that you have demonstrated genuine remorse for your role, albeit a minor one in the cultivation of cannabis at this property, I consider the risk of reoffending to be negligible and, in circumstances where you are in process of re-building your life away from the influence of your husband, I consider your prospects of rehabilitation to be excellent. In the circumstances described, I could see no realistic role for specific deterrence as a sentencing consideration.
Sentencing – Joyce Patience
97 Subject to any mitigatory factors the sentence imposed on you today must act to denounce the cultivation of illicit narcotic plants and, to the extent that this is possible deter others from this type of offending in the future.
98 It was submitted on your behalf that, pursuant to s.75 of the Sentencing Act 1991 I should release you without conviction on the condition that you be of good behaviour for a specified period. The prosecution, nonetheless, urged the recording of a conviction, but not the imposition of an immediate custodial sentence.
99 The circumstances of your involvement in the cultivation of the cannabis at the property are quite unusual. At best you had a nominal role in the period over which your offending is alleged to have occurred. I was satisfied that on this occasion all relevant sentencing considerations were best met by your immediate release on adjournment without conviction. It is convenient to finalise your sentence before I dispose of your husband's sentence.
100 Please stand Mrs Patience.
101 On one charge of cultivating Cannabis L, I propose to impose an adjourned undertaking without conviction for a period of 12 months. Mr Patience you may take your seat. I will say that again. I propose to impose an adjourned undertaking without conviction for a period of 12 months. That is sometimes referred to as a good behaviour bond. The undertaking starts today and it lasts for a period of 12 months from today. The conditions of that undertaking are that:
· you must be of good behaviour during the period of the undertaking; and
· you must attend before the court if called upon to do so during the period of the adjournment.
102 If your circumstances materially alter or if it appears that you are no longer willing to comply with the conditions of the adjourned undertaking, then either you, the Director of Public Prosecutions or the police may vary or cancel the undertaking, that is the conditions of the undertaking. If such an application is made, I recommend that you obtain legal advice.
103 I warn you that if you breach any condition of this undertaking, that is, to be of good behaviour, you - or indeed to return when you are - if you are asked to return to court, you will again be brought back before me and re-sentenced on the original charge and dealt with for the breach, and you could be punished for the breach as well as being dealt with for the offence.
104 Do you understand the consequence of breaching an adjourned undertaking and do you consent to the making - give that undertaking?
105 OFFENDER: Yes.
106 HER HONOUR: Thank you. Now before I get you to sign that you have also consented to the prosecutions application to the taking of a forensic sample. Does the prosecution still wish to proceed with that application today?
107 MR LEWIS: My instructions are to proceed at this stage Your Honour, yes.
108 HER HONOUR: Thank you, in view of the consent given I have signed that order. I need to caution you that the police may use reasonable force to enable this procedure to be conducted.
109 Thank you, you mean leave the dock and approach the Bar table and your counsel, and you will be given the undertaking to sign.
Sentencing – Peter Patience
110 All right, now I will continue with your sentence and ask you stand shortly Mr Patience. Firstly I need to say something about the formulation of the sentence. Courts have repeatedly emphasised the importance of general deterrence in sentencing for the offences of cultivating and trafficking cannabis in a commercial quantity.
111 Mr Patience, the scale and sophistication of the cultivation operation over a period of more than nine weeks and the quantity of the drug cultivated establish this as a very serious instance of this type of offending. The theft of electricity to the value of $7276.64 over the same period represented a significant example of this type of related offending. The trafficking offence, which involved having on 13 December 2010 possessed for sale, I think it was nearly 10 or 11 kilograms more than the commercial quantity of cannabis, also represented a significant example of this type of offending.
112 It was common ground that the offending warranted the imposition of an immediate and a substantial custodial sentence, structured to allow some concurrency between each of the charges. As I have already mentioned the prosecution did not call for the imposition of a disproportionate sentence in respect to the trafficking offence. Or for that matter total cumulation of that offence, the sentence for that offence.
113 As to the appropriate sentencing range, the prosecution submitted that the range fell between six to eight years’ imprisonment with a non-parole period of between four to six years’ imprisonment. It was acknowledged that, when regard was had to current sentencing practices a sentence within this range represented a high sentence.
114 The range submitted both as to the head and minimum terms was contested by your counsel. Firstly, it was submitted that the disparity between the head sentence and minimum sentence should be greater and, secondly, that both the head and minimum sentences should be reduced to reflect the mitigatory impact of Verdins. In view of my earlier findings regarding the application of Verdins, neither a reduction in the non-parole period nor in the overall sentence could be justified on this basis.
115 As to the head sentence, your counsel relied on the current Sentencing Snapshot for cultivating a commercial quantity of narcotic plants published in August 2012 for the period 2006 to 2011.
116 For the principal sentence, imprisonment terms ranged from six months to six years (five years after adjusting for appeals). While the median sentence of imprisonment was two years, three months and 15 days, the most common length of imprisonment imposed was two years to less than three years and the average length of imprisonment imposed was from two years and one month to two years and seven months.
117 Where eligible to have a non-parole period fixed, the Snapshot indicates that the median length of the non-parole period was one year and six months and (after adjusting for appeals, the median non-parole period was slightly reduced to one year and four months) and the most common non-parole period imposed was one year to less than two years.
118 It is well understood that each case is unique and must be decided according to its particular circumstances. The statistical information as summarised assisted in my understanding of sentencing trends in cultivation cases. However, as the prosecution submitted, most of the recently decided cases have involved lesser commercial quantities of cultivated cannabis.
119 Perusal of the published Overview of Cases decided on appeal from 2007 to June 2013 demonstrated the accuracy of this submission. There were, however, two decisions to which my attention was drawn by the prosecution.
120 The first was the decision in The Queen v Mason.[16] At first instance, the 69 year old offender, whose role was that of principal, was sentenced to terms of five years and three years’ imprisonment respectively on one count of trafficking and one count of cultivating a commercial quantity of cannabis, namely 385 plants over a period of approximately 18 months. He was also sentenced to six months' imprisonment on each of two counts of theft of electricity. Allowing for cumulation the total effective sentence was six years and six months' imprisonment with a minimum of four years.
[16][2006] VSCA 55
121 On appeal the conviction on the trafficking count was set aside. On resentencing allowance was made for factors such as the scale of the enterprise, which had been conducted solely for profit, the offender's age and health, the loss associated with the forfeiture of his property, his plea of guilty, albeit at a late stage in the proceedings and his prior conviction and imprisonment for the offence of cultivating a commercial quantity of cannabis. The Court of Appeal nevertheless, imposed a term of five years' imprisonment for the cultivation offence. On each of the theft counts the offender was sentenced to a term of six months' imprisonment. With cumulation the total effective sentence imposed was five years and four months' imprisonment, with a minimum of three years' imprisonment.
122 Clearly, the scale of your enterprise, albeit one not solely operated for profit, was considerably greater than that uncovered in Mason.
123 The second decision to which I was referred was Nguyenv The Queen. [17] In this case the offender was found guilty at trial on four charges of having over a three-month period cultivated cannabis in a commercial quantity, that is no less than 1150 plants, there are some reports that it was 1276 but it was no less that 1150 plants, on one charge of trafficking cannabis, namely 9.5 kg of harvested heads and on four charges of theft of electricity resulting in losses of approximately $19,000. The 60-year-old offender was a principal offender involved in a commercial enterprise with his wife and another person.
[17][2013] VSCA 63
124 The enterprise was conducted at four locations including the offender's family home. At first instance, Nguyen was sentenced to a term of five years' imprisonment on each of the cultivation charges, three years and six months' imprisonment on the charge of trafficking in a drug of dependence and to a term of one year and nine months' imprisonment on each of the four theft charges. The only cumulation ordered was for five months of three of the theft sentences and six months of the other theft sentence to be served cumulatively upon each other theft sentence to be served cumulatively upon each other, and upon the base sentence. The total effective sentence imposed was a term of six years and nine months' imprisonment with a minimum of four years and nine months.
125 Factors raised in mitigation of the sentence included the absence of any relevant previous convictions, his age, the three-year delay between his arrest and conviction and the likelihood that he would find imprisonment more difficult due to his knowledge of the circumstances of his children who had been left to fend for themselves.
126 On appeal, the court observed, among other things, that the overall sentence on the four charges for cultivation of a commercial quantity of cannabis was lenient. The sentence for the trafficking offence, where the maximum penalty was in that case 15 years' imprisonment, was found to be within range. Moreover, despite accepting the description of the sentences imposed in respect to each theft offence as "stern", the Court upheld the sentences on each of these charges. In doing so, the Court of Appeal made the following relevant observations, and they are relevant in the sense that they are relevant to your case as well.[18]
"… the theft involved the employment of sophisticated means. It was premeditated, for the purposes of undertaking an enterprise, the motive of which was greed. In such a case,… the principles of denunciation and general deterrence are of significance. In particular, such offending not only increases the profitability of the illicit enterprise which is being undertaken, but it is also designed to conceal that enterprise from detection.… While the theft of the electricity was part and parcel of the cultivation of the narcotic plants, it was an additional factor which,… not only made the cultivation more profitable, but also was important in concealing the enterprise. As such, it added to the offences of cultivation and trafficking, which were the subject of the first five charges. In those circumstances,…, the orders for cumulation, totalling 21 months, were not manifestly excessive. Nor did they result in a total effective sentence which was manifestly excessive"
[18]Ibid [23] and [24]
127 Allowing for the matters mentioned and the large amount of Cannabis L plants involved, the Court of Appeal upheld the sentence in Nguyen.
128 In my view, after making adjustments, up or down, for factors peculiar to your case, as, for example, the substantial discount available to you to reflect the entry and timing of your plea of guilty and the impact of your prior relevant convictions on the cultivation and trafficking offences, the sentence upheld and the observations made by the Court of Appeal in Nguyen lend some support to the prosecution's submission as to range.
129 However, without repeating each of these, having considered the factors relevant to the formulation of your sentence, which include the more significant trafficking charge, your criminal history, the discount for the plea of guilty and the need for some level of cumulation to reflect the different offending involved, I formed the view that your overall sentence should be cast toward the lower end of the range submitted. Moreover, in my view, the gap between the non-parole period imposed and the sentence provides an adequate opportunity for a long period of supervision of your rehabilitation in the community as contemplated by Mr McKinnon.
130 Please stand Mr Patience.
131 On one charge of cultivating Cannabis L in not less than the commercial quantity applicable to that plant, your are convicted and sentenced to five years and two months’ imprisonment. For the purpose of your sentence I treat this as the base sentence.
132 On one charge of trafficking in not less than the commercial quantity of Cannabis L you are convicted and sentenced to four years and three months’ imprisonment.
133 I direct that pursuant to section 6F of the Sentencing Act there be entered into the records of the court that I have sentenced you in respect to this trafficking charge, Charge 2 on the indictment, as a serious drug offender within the meaning of that Act.
134 On one charge of theft you are convicted and sentenced to ten months’ imprisonment.
135 I direct that ten months of the sentence imposed on the second charge and four months of the sentence imposed on the third charge be served cumulatively on each other and on the sentence imposed on the first charge. The sentences are otherwise concurrent.
136 The total effective sentence is, and I am in counsels hands to ensure that I have calculated this correctly, six years and four months’ imprisonment, with a non-parole period. Now is the six years and four months imprisonment correct?
137 MR GILLESPIE-JONES: I'm sorry, if Your Honour just tell me what the cumulation on Count 2 is?
138 HER HONOUR: Ten months of the second charge, and four months of the sentence imposed on the third charge as served cumulatively on each other and on the sentence imposed on the first charge.
139 MR LEWIS: It gives me six years and two months Your Honour. It's five years plus 14 months as I understand it, which would be six years and two months.
140 HER HONOUR: Do counsel agree?
141 MR GILLESPIE-JONES: You are right Your Honour.
142 HER HONOUR: Yes, Mr Lewis I am being told that I am right about the four months, because the cumulation is on each other as well, is that the point?
143 MR GILLESPIE-JONES: Yes Your Honour.
144 HER HONOUR: Thank you. You may speak Ms Tang, you are sitting at the Bar table, I know Mr Lewis is remote, but that is how you have calculated it too is it not?
145 MS TANG: That's correct Your Honour, I think the prosecutor was mistaken as to Your Honour's sentence to Charge 1, which was five years and two months, and not five years, and that's where (indistinct) - - -
146 MR LEWIS: I see, yes, if that's the case then yes I agree with Your Honour's figures.
147 HER HONOUR: Thank you, six years and four months, I am always happy to give people time to do the additions because sometimes it gets lost in translation. So the total effective sentence is six years and four months’ imprisonment, with a non parole period of four years imprisonment.
148 Pursuant to s18(4) of the Sentencing Act I will make a declaration about presentence detention when that is agreed.
149 MR GILLESPIE-JONES: It's 920 days Your Honour.
150 HER HONOUR: Is that agreed?
151 MS TANG: Yes Your Honour.
152 HER HONOUR: I declare that the period of 920 days is to be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be recorded in the records of the Court.
153 Pursuant to s6AAA of the Sentencing Act I indicate that but for your plea of guilty a sentence of eight years' imprisonment with a non-parole period of five years and four months’ imprisonment would have been imposed.
154 At the plea hearing, pursuant to s.464ZF of the Crimes Act 1958, the prosecution also sought an order for the taking of a forensic sample. I acceded to that application. In doing so the matters that were taken into account were the seriousness of the circumstances of the offending, your prior convictions, the fact that the application was by consent, and the interest the public has in obtaining such a sample.
155 As I indicated to your wife I must also caution you that a member of the police force may use reasonable force to enable this procedure to be conducted.
156 A disposal order was also sought at the hearing. That application was consented to and I have signed that order. As well as I indicated I signed the consent order in relation to the compensation for the stolen electricity, which was a matter that I also took into account in relation to remorse, so far as that sentence was concerned.
157 Counsel have I covered all of the matters I needed to cover in relation to the sentence, are there any matters that require clarification?
158 MR GILLESPIE-JONES: I don't believe so Your Honour.
159 HER HONOUR: Mr Lewis?
160 MR LEWIS: No Your Honour.
161 HER HONOUR: All right, thank you for your assistance today and your attendance, can you please remove Mr Patience.
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