R v Porciello No. DCCRM-99-897

[2001] SADC 169

R v STEFAN PORCIELLO
[2001] SADC 169

Judge Vanstone
Criminal

Stefan Porciello, you have pleaded guilty to producing cannabis, that production having taken place at your home at Hectorville, between 1 June 1999 and 28 June 1999.

Following your plea, a hearing in the nature of a facts dispute took place, and I determined that the extent of the cultivation was 28 plants and that your motive was largely commercial. I refer to my reasons for ruling as I did, which were delivered on 30 November 2001.

This offence was charged as count 2 on an information which also charged you with taking part in production of cannabis, that offence occurring at Netherby.  That was a quite separate matter, which went to trial by jury. You were convicted of that matter. You were sentenced by his Honour Judge Rice in this court on 4 May 2001. That offence was a breach of a bond associated with a suspended sentence of two years and six months, for two counts of receiving and false pretences, for which you were sentenced in this court on 1 April 1996. On 4 May 2001, Judge Rice ordered that you serve that period of two years and six months, and sentenced you to a cumulative term of imprisonment of three years, for taking part in the production of cannabis. The existing non-parole period was extended to three years, to cover both offences. The sentences were backdated to 11 April this year.

In his remarks upon sentence, Judge Rice set out the circumstances of that offending, and something of your prior history and circumstances. I shall not reiterate what he said.  Mr Retalic has placed before me the same materials which were before Judge Rice, namely, medical reports from Dr P.P. Leonello and a reference from Melisi Projects Pty Ltd. I take those matters into account, and I also have regard to all Mr Retalic’s submissions.

Until May this year, you had never been sentenced to an immediate custodial term. Now, you are facing quite a lengthy period in gaol.

The offence before me was committed against the background of the Netherby offence, and that, in turn, was committed against the background of the dishonesty offences and the bond which was then still current. I accept that you were close to the end of that bond. Nonetheless, this sequence of events does you no credit.  Mr Retalic has asked that I fix a sentence for this offence which involves no further extension of your non-parole period.  Because of the seriousness of this offence, standing alone, and because it occurred against the background I have described, I do not consider that that would be appropriate. However, bearing in mind that you face a lengthy term in gaol, I am prepared to fix what might be seen, in other circumstances, as an inadequate penalty for this offence.

For this offence, I impose a sentence of nine months imprisonment. That will be served cumulatively upon the sentences you are now serving. That makes a total head sentence of six years and three months.

I extend your existing non-parole period by six months, giving a total of three years and six months.

The equipment used to grow the cannabis, and the cannabis, itself, will be forfeited to the Crown.