DPP v Salih
[2012] VCC 1128
•19 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-00343
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEREN SALIH |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 June 2012 | |
DATE OF SENTENCE: | 19 June 2012 | |
CASE MAY BE CITED AS: | DPP v. Salih | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1128 | |
REASONS FOR SENTENCE
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Catchwords: Cultivation of a narcotic plant – Theft of electricity – Trafficking in a drug of dependence – Possess unregistered category A longarm – 57 cannabis plants – elaborate hydroponic
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. O'Halloran | Office of Public Prosecutions |
| For the Accused | Mr R. O'Neill | Robert Stary & Associates |
HER HONOUR:
The offences
1 Deren Salih, you have pleaded guilty to one count of cultivation of a narcotic plant; namely cannabis, one count of theft, one count of trafficking in a drug of dependence; methamphetamine or MDMA and one count of possess an unregistered Category A longarm.
2 The maximum penalty for each of these offences is as follows: for Count 1, cultivate a narcotic plant, and Count 3, trafficking in a drug of dependence it is 15 years imprisonment; for Count 2 of theft it is 10 years and for Count 14, it was on the Presentment, possession of an unregistered Category A longarm it is two years imprisonment.
Circumstances of offending
3 The circumstances of your offending are that on 22 April 2009 the police attended at your parent's property in Beattys Road, Plumpton to conduct some inquires. While they were there, they observed a shed approximately 200 metres from the main residence which appeared to be under video surveillance with the door being heavily secured. They detected a strong smell of chemical emanating from the shed and observed piping protruding from the shed which led them to infer that a clandestine laboratory may be in operation.
4 The police left the property and arranged for a search warrant. At approximately 2.15pm, on 22 April 2009, the police returned to the property and executed the warrant.
5 The charge of cultivation of a narcotic plant relates to the fact that when the police investigated the shed they found 57 small cannabis plants growing within an incubator. The cannabis plants varied from seedlings to what appeared to be mature plants with flowering heads. The total weight was 26 grams. They also found 1.5 kilos of dried cannabis in a red esky.
6 The following day police found 12 larger plants being grown hydroponically within a secured shipping container north of the shed. You had installed an electrical bypass to power the hydroponically grown plants. Powercor investigators have determined that the value of the electrical power stolen was $4667.70 and this theft relates to Count 2.
7 The relevant facts relating to Count 3, trafficking in a drug of dependence, are that within the shed the police discovered an operating clandestine laboratory which was being used by you to manufacture MDMA. Numerous exhibits relating to the laboratory were seized throughout the shed including precursor chemicals, glassware and other equipment used in the manufacture. Literature and documents relating to the chemicals and processes for the manufacture of MDMA were also found.
8 A short distance from the shed the police discovered a concealed manhole cover which on further inspection revealed an underground bunker which was accessible only via a small manhole. The bunker was made of a converted shipping container. An inspection of the contents revealed further items and equipment relating to the manufacturing of MDMA, including further precursor chemicals, iodine, glassware and other manufacturing equipment.
9 The prosecution tendered a table setting out the expected quantities of MDMA which could be produced by you based on the quantity of precursor chemicals and this table will be attached to the sentence. While the amount of pseudoephedrine, which is an essential element or ingredient in producing MDMA, was less than 10 grams you admitted to having performed 15 to 20 cooks were you had produced the drug.
10 Count 14, as I have already indicated, relates to the shot gun which was found in the shed.
11 At approximately 2 p.m. on 23 April 2009 while the police were processing the scene you attended and handed yourself into the police. You were subsequently arrested and conveyed to the Melbourne Police Station for a tape-recorded interview. You participated in the taped record of interview; you were cooperative with police; you took responsibility for the items seized; stated that you had set up the laboratory to manufacture MDMA to support your own drug habit and to deal with your symptoms of depression. You also admitted to setting up the hydroponic cannabis crops, installing the electrical bypass and being aware that the shotgun seized was unregistered.
Personal circumstances
12 Moving on to your personal circumstances, you were born on 29 May 1980; you are aged 32. Your parents were born in Cyprus and arrived in Australia in the late 1960s. You have a brother who works as a carpenter and a younger sister with two children.
13 You completed year 10 and then half of year 11 at Ardeer High School. You then did an apprenticeship as an electrician. However you have had no substantial employment and you have not worked for the last eight or nine years.
14 You have had a long relationship with Amanda which ceased after your offending and there are two sons from this relationship; Zaiden, aged two and a half, and Taya, almost 12 months.
15 At the time of the offending you were living with your parents, grandfather and your brother at the property in Plumpton.
Psychologist and psychiatrist reports
16 In February 2010 your GP referred you to Dr Grech, psychologist, for an opinion on your mental state and in his report of 16 January 2010 Dr Grech assessed you as presenting with a history of obvious and persuasive signs of adult attention deficit hyperactive disorder, ADHD.
17 Dr Grech referred you to a psychiatrist, Dr Farnbach, who in his report dated 26 February 2012 was of the opinion that he had enough information to make a diagnosis of severe attention hyperactivity deficit disorder. However in his evidence at your plea hearing Dr Farnbach diagnosed you in essence as "probably, but not definitely suffering from ADHD and depression". In his experience some people with this disorder found that speed relieved their symptoms and he accepted your claim that you had been self-medicating by using the MDMA that you had manufactured.
Defence submissions
18 At your plea hearing, you claimed that you were manufacturing the drug for your personal use and I accepted that you were self-medicating for your condition. However given the amount of precursor chemicals; the set-up on the property at Plumpton, including security measures taken by you I was not satisfied on the balance of probabilities that the MDMA was manufactured solely for your own use.
19 In the light of this ruling your counsel submitted on your behalf that the following considerations should be taken into account when sentencing you:
(1) that there was no evidence that the MDMA or cannabis had been passed on to another person and that this was a case where there was potential for harm rather than actual harm;
(2) that given there was no evidence that anything was sold or income gained by you the offending was at the lower end of the trafficking scale;
(3) that the court could take into account that the primary purpose of manufacturing was for self medication; and
(4) that any time in custody would be harder for you than for someone who did not suffer from depression and attention deficit hyperactivity disorder and in this respect your counsel relied both on Dr Farnbach's evidence and the principles in Verdins case.
20 In addition to these matters, your counsel relied on the fact that you pleaded guilty to the charges; you had made admissions in your record of interview; you were a first offender with no prior matters and at your plea hearing he also submitted that there were no subsequent matters whether pending or finalised; that the offending had taken place more than three years ago; you had not committed any further offences and had begun a course of medication to address your underlying concerns.
21 Your counsel relied on two aspects of the three year delay; firstly with respect to rehabilitation and, secondly, that you had had a sentence or a potential sentence hanging over your head for this three year period.
22 On the basis of these mitigating factors it was submitted that the most effective way of dealing with you is to leave you in the community and to impose a community corrections order in conjunction with a suspended sentence on Charge 3. It was submitted that such a sentence would promote your rehabilitation and address the issues of deterrence, punishment and denunciation as well as protection of the community.
23 Also it was submitted that you had not had proper treatment for your problems in the past and that this could be corrected.
Prosecution submissions
24 The prosecutor, on the other hand, submitted that both specific and general deterrence were important in cases involving the manufacture of drugs and that the appropriate sentence was one of imprisonment of two and a half to four years with a non-parole period of 18 months.
Community Corrections Report
25 While it is correct that you have no priors, in having you assessed for a Community Corrections Order, the court became aware that on 13/9/11 at Sunshine Magistrates' Court you were convicted and sentenced for offences of burglary, theft and go equipped to steal. You were placed on a Community Based Order for three months with the condition that you perform 50 hours of unpaid community work.
26 The author of the community corrections report that I ordered also revealed that the order had been breached, it was alleged that you had completed 24 hours of the 50 hours and that you had failed to perform unpaid community work on 10 occasions. Therefore it was with some reservation that he assessed you as suitable for a community corrections order.
27 In written submissions, your counsel informed the court that your offending had involved breaking into an unoccupied hotel room and stealing property valued at $920. In addition it was submitted that you were not on medication for your attention deficit hyperactivity disorder at the time.
28 It was submitted that the most appropriate way to achieve rehabilitation was still through a Community Corrections Order. However, on reflection, I do not think that a Community Corrections Order is an appropriate disposition in this case. You obviously went to a lot of trouble to set up the lab and the system for cultivation of narcotic plants. You admitted to up to 15 to 20 cooks where you had produced MDMA and I have not accepted that it was solely for your own use.
Sentencing remarks
29 I accept the prosecution submission that specific and general deterrence are important in cases such as this and that a sentence of imprisonment is appropriate. In making this decision I have taken into account that your subsequent offending took place when you were on bail for these offences and that it is alleged that you have breached your community corrections order.
30 However, and I stress, the main reason for your sentence is the elaborate set‑up at the Plumpton property which I find to be inconsistent with your claims that you manufactured MDMA purely for your own use.
31 In sentencing you I have also taken into account all the mitigating factors mentioned by your counsel and I have given you a discount for your plea of guilty. Given the mitigating factors in your case, including your diagnosis of ADHD, the importance of rehabilitation and treatment for your condition and also the fact that this will be your first time in custody I have decided to suspend part of the sentence I am about to give you.
Sentence
32 On Count 1, cultivation of narcotic plants, you are sentenced to one years' imprisonment.
On Count 2 of theft you are sentenced to six months imprisonment.
On Count 3, traffic a drug of dependence, you are sentenced to two years imprisonment.
On Count 4 of possess and unregistered Category A longarm you are fined the sum of $300.
33 The head sentence is the sentence of two years on the charge of trafficking on Count 3 and I accumulate six months of the sentence on Count 1 and three months of the sentence on Count 2 on the sentence of two years. This gives a head sentence of two years and nine months.
34 You are to serve nine months of the sentence with the balance of 24 months suspended for a period of two years. This gives you a real incentive to clean up your act because when you are released from custody you will have a two year sentence remaining hanging over your head for two years and if you were to breach the suspended sentence you would return to gaol to serve the balance.
35 I announce that a 6AAA figure would be five years, to serve three, so if you had pleaded not guilty it would have been five years, to serve three.
36 MR O'NEILL: May it please Your Honour. Your Honour, there's just one error with respect, although not one that I suggest should make any difference to Your Honour's sentence, and that is that it's methylamphetamine and not MDMA which is the drug in question. Your Honour referred to MDMA on a couple of occasions.
37 HER HONOUR: Yes, I have abbreviated it incorrectly, but of course I'm well aware that it was methamphetamine and I do apologise for using the wrong abbreviation. What I've done is simply taken, as I said, the wrong abbreviation and I apologise for that. Yes, is there anything else?
38 MR O'HALLORAN: When the filed Crown opening was read to the court there was reference to further ancillary orders ‑ ‑ ‑
39 HER HONOUR: You haven't handed up any copies of anything.
40 MR O'HALLORAN: Copies (indistinct) Your Honour. Can I inquire whether the courts minded to make an announcement of orders in the absence of the paperwork?
41 HER HONOUR: Yes, you can. What are the orders that you were seeking?
42 MR O'HALLORAN: A 464ZF order, Your Honour ‑ ‑ ‑
43 HER HONOUR: Is that consented to?
44 MR O'NEILL: Yes.
45 HER HONOUR: I should inform you that the police can take a scraping from your mouth. If you were to object to that procedure they could use necessary force to take it from you. Given you have consented I don't see that as being a problem. I'll make that order because of the serious nature of the offending and because it's by consent.
46 MR O'HALLORAN: A further order sought is a disposal order, Your Honour, with regards to the drug and other items seized.
47 HER HONOUR: Is that consented to?
48 MR O'NEILL: Yes, Your Honour.
49 HER HONOUR: I will make a disposal order in relation to the drugs and other items that were seized on the property.
50 MR O'HALLORAN: Thank you, Your Honour. The final order sought is a compensation order in the favour of Origin Energy and that is annexed to the theft charge and sought to be in the quantum of $4667.70.
51 HER HONOUR: I'll make an order ‑ ‑ ‑
52 MR O'NEILL: I'm sorry, Your Honour, if I can just be heard on that briefly. There's no objection in principle to that order, but I'm instructed that in fact that amount has already been paid, so I'd seek simply that 14 days be given for us to provide evidence of that failing which there would be consent to that order.
53 HER HONOUR: Yes, I've got no objection to that, if it's all right. Within 14 days the accused's solicitors are to provide evidence to the prosecution of payment of that amount and in failure of that proof being provided there will be an order for compensation made on the paperwork.
54 MR O'NEILL: If it please Your Honour.
55 HER HONOUR: Now, is there anything else that is outstanding from this matter? You'll explain again to your client the situation with the suspended sentence when he's released from custody ‑ ‑ ‑
56 MR O'NEILL: Yes, Your Honour.
57 HER HONOUR: ‑ ‑ ‑ and make sure that he has his attention deficit hyperactivity disorder medication with him when he goes inside.
58 MR O'NEILL: Yes, Your Honour.
59 HER HONOUR: All right, there being no other matters I'll stand the court down.
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