R v Goatcher
[2016] ACTSC 114
•26 May 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Goatcher |
Citation: | [2016] ACTSC 114 |
Hearing Date: | 26 May 2016 |
DecisionDate: | 26 May 2016 |
Before: | Murrell CJ |
Decision: | Sentenced to nine months’ imprisonment, suspended upon entering into an 18-month good behaviour order with conditions. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – cultivate trafficable quantity of cannabis – early guilty plea – lower objective seriousness – strong subjective circumstances – rehabilitation – suspended sentence |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12, 35 Criminal Code 2002 (ACT) s 616(5) |
Cases Cited: | R v Mayberry (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 5 September 2013) R v Quzag [2015] ACTSC 52 |
Parties: | The Queen (Crown) Keiron Goatcher (Offender) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Number: | SCC 133 of 2015 |
MURRELL CJ:
Background
The offender pleaded guilty to the offence that between 30 September and 4 December 2014 at Canberra he cultivated a trafficable quantity of cannabis with the intention that the plants or their products would be sold.
This is an offence against s 616(5) of the Criminal Code 2002 (ACT). It carries a maximum penalty of 10 years' imprisonment.
The offender was committed for trial on the charge of cultivating a commercial quantity of cannabis. Following discussions, five days before the trial was scheduled to commence, the offender pleaded guilty to the lesser charge.
A commercial quantity of cannabis is 100 plants or more. A trafficable quantity is 10 plants or more.
Having regard to the facts to which I will come in a moment, it seems that the offender had good reason to plead not guilty to the original indictment. The Court is informed that, at an early stage, he identified the issue as whether the quantity of cannabis at the premises was the commercial quantity or a lesser quantity, and that this hinged upon whether plant items found at the premises were sufficiently viable to be "plants". At no stage did the offender deny criminal culpability. In these circumstances, the appropriate discount for the plea is 20–25%; such a discount acknowledges the utilitarian value of the plea, the offender’s remorse, the strength of the Crown case and other considerations.
Facts
In August 2014, the offender approached a real estate agent and stated that he wished to rent a four-bedroom house. He agreed to rent the premises in question, which are in the Gungahlin area, for $650 a week from 1 October 2014. From time to time, he paid rent in cash. Rent was paid until 11 December 2014.
A services account for electricity, water and gas was opened in the name of an acquaintance of the offender.
In early October 2014, tradespersons attended the house to install vents in the roof and the offender purchased equipment that was later used to grow cannabis at the house.
Neighbours observed the offender to attend the house on two or three occasions in October and November 2014. Others (whom have not been identified) also attended the house.
On 3 December 2014, police attended the house and observed decaying cannabis, bags of potting mix and fertiliser, pots and spare ventilation equipment in the garage.
Inside the main bedroom, they found 30 mature cannabis plants serviced by an irrigation system (fed from the main bedroom en suite bathroom), lampshades controlled by electrical timers and a ducting system. The walls of the bedroom were lined with silver sheeting and there was a trellis to support plants as they grew larger.
In another bedroom, the police located 60 cannabis off-cuts or seedlings within a small illuminated tent. Photographs of those plants are part of Exhibit 1. The plants were very small. The defence submits that they were very immature and some may not have reached maturity. The Crown concedes that the 60 seedlings were at the early stages of viability and may not have survived to become mature plants. There was also a large HydroGrow brand tent in this second bedroom. It was lined with silver sheeting and contained unused pots and a suspended light and transformer.
Quantities of cannabis leaf and trimmings were found throughout the house, much of which was decayed or mouldy.
At the premises, police located various items linked to the offender, including a receipt for a solarium dated 21 November 2014 in the sum of $2,000 and motorcycle gloves containing the offender's DNA profile.
When the offender was arrested, he was driving a motor vehicle that matched the description of a vehicle that neighbours had seen at the house.
Objective seriousness
The matter has significant objective seriousness, but it is towards the lower end of the spectrum of objective seriousness.
The offence occurred over a two-month period, but there was prior planning for the offence, including the agreement to rent the property and the attendance of tradespersons to install vents.
There were 30 mature plants and 60 smaller plants. Undoubtedly, some of the smaller plants would have become viable, but it is not known how many would have reached maturity. The smaller plants were a second round of cultivation. The cultivation process ceased only because of police intervention.
The offender's motive was financial advantage; the offender informed the author of the pre-sentence report that the offence was designed to obtain money to pay a drug debt. With almost all such offences, the motive of the offender is financial advantage, so the motive of financial advantage does not distinguish this matter from others. The extent of the financial advantage that was to be gained by the offender is not known.
The offender's role and his position within any group involved with the growing operation are not clear. Whether others were involved is not known. The evidence about role and position was described as “opaque”, and I agree with that characterisation. What we do know is that the offender initiated the rental of the premises and took steps to set up the hydroponic cultivation. I agree that the growing arrangement was not as elaborate as arrangements in many other cases. For example, electricity meters are often bypassed.
Subjective circumstances
The offender advances very strong subjective circumstances.
He was 37 years old at the date of the offence and is now 39 years old.
He has no significant prior criminal history. In 2002, he was convicted of possessing methamphetamine, possessing cannabis and possessing a prohibited weapon, but those relatively minor offences occurred more than a decade ago.
The offender’s upbringing was marred by domestic abuse and alcoholism. His father died 10 years ago and he has had no contact with his mother over the past decade. He has little contact with his two sisters.
The offender suffered from a learning disability as a child and he was bulled at school. He attended school until Year 9. Through most of his adult life, he has been employed. For five years he was a bar manager. Last year, he obtained qualifications as a personal trainer. Currently, he is employed six days a week as a personal trainer at a gym, where he is very highly regarded.
The offender has significant debts and is making repayments pursuant to a contract.
The offender's alcohol consumption increased to a hazardous level during his 20s and 30s while he was working in nightclubs and bars. However, since his arrest 18 months ago, the offender has consumed alcohol on only two occasions.
For some years, the offender was a very regular "social" user of illicit substances. He says that, following arrest, he ceased using illicit substances. A recent urine analysis detected no illicit substances.
The offender has changed his peer group and now avoids former peers who abuse illicit substances and alcohol.
The offender welcomed his arrest as a positive intervention that prompted him to change his lifestyle by changing his career, associates and substance consumption. He is committed to improving not only his own health, but also that of others. Character references described him as respectful, considerate and hard working.
As the author of the pre-sentence report noted, the offender has accepted responsibility for the offending behaviour and has made significant and positive changes in his lifestyle. He is assessed as having a low risk of general reoffending, but may still benefit from further intervention in relation to relapse prevention. He has expressed considerable remorse for the offence.
Sentencing purposes
In sentencing the offender, the Court is mindful of the sentencing purposes of punishment, general deterrence, denunciation and accountability. General deterrence is important in relation to offences of this type. Given the offender's past relatively good character, commitment to change and demonstrated capacity to change, rehabilitation is a very important sentencing purpose, and one which also serves the purpose of protecting the community.
Cases
The Court was referred to several cases, including R v Quzag [2015] ACTSC 52 and R v Mayberry (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 5 September 2013) (Mayberry), which were somewhat comparable. However, Mayberry concerned the cultivation of a commercial quantity of cannabis, where a much higher maximum penalty applies.
Only eight matters are recorded on the ACT Sentencing Database. It may be relevant to note that, of the eight matters, three offenders received a sentence of full-time imprisonment, and the others received lesser sentences. In two cases, good behaviour orders were the only sentence.
Sentence
The parties have realistically submitted that a sentence of imprisonment is required, but the Crown has not submitted that it must be a sentence of full-time imprisonment. I agree with this submission. Ordinarily, for an offence of this type, sentencing purposes of punishment and general deterrence would dominate such that the Court would seriously consider a sentence involving at least a short period of full-time imprisonment. However, this offence is of lesser objective seriousness than many such offences. Further, significant weight must be given to the offender's subjective circumstances and the fact that, since the offence, he has turned his life around.
The starting point for the sentence is 12 months' imprisonment, but I have reduced the sentence to nine months’ imprisonment to allow for the 20% plus discount that should be allowed under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
The offender is convicted and sentenced to imprisonment for nine months. Pursuant to s 12 of the Sentencing Act the whole of the sentence of imprisonment is suspended and I make a good behaviour order for a period of 18 months. The good behaviour order includes a condition that the offender submit to the supervision of ACT Corrective Services for as long as they consider necessary, but no more than 18 months, and that the offender report to ACT Corrective Services by 4:00 pm today.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Anneke Bossard Date: 24 June 2016 |