DPP v Brown [2018] VCC 1904

3 In November 1993, you served a two-month gaol term that was part of a

12-month sentence imposed in respect to multiple convictions for burglary, theft and other charges.

4 The previous conviction that was recorded on 1 June 2007 relating to the cultivation of cannabis concerned you being involved in the cultivation of a cannabis crop at a low level. You were arrested at a residence that was being used to cultivate the crop and you were harvesting a cannabis plant at the time of your arrest. The charge was put on that basis.

5 You successfully completed the operational period of the wholly suspended sentence without any further incident.

6 I will now turn to the circumstances of your offending.

7 In respect to the present indictment, your offending is summarised in the Prosecution Opening (Exhibit "1").

8 Following a house fire at 19 Karin Crescent, Glenroy on 13 February 2018, police were alerted by the MFB that the premises had been modified to accommodate a hydroponic setup for the cultivation of cannabis L.

9 Police executed a search warrant at the house and found four rooms on the first floor and one room on the ground floor that were modified to accommodate a hydroponic cultivation system for the growing of cannabis L.

10 A total of 226 cannabis L plants were seized in total weighing 17.36 kilograms and, in addition, police located an illegal electricity bypass.

11 The commercial quantity of cannabis L is defined as 100 plants or 25 kilograms.

12 You rented the property and you were not present when the warrant was executed. Police enquiries confirmed that you had left Australia two days later on 15 February 2018 and had travelled to Thailand. On your return to Australia on 7 March 2018 you were arrested.

13 You participated in a record of interview during which you made full admissions. You confirmed that you rented the property and that you had modified the property to grow cannabis L. You said that you grew the plants yourself, that you had bought all the equipment and connected everything up and as well, you had installed the electricity bypass to avoid paying for the electricity. Further, you told police that you sold cannabis in one pound blocks for $2,000 per bag. You estimate that you had made $25,000 from the sale of 12-14 pounds of cannabis L over an eight month period and those facts form the basis of the charges on the Indictment.

15 Your matters resolved at the second committal mention on 18 July 2018 and it is accepted that you entered a plea of guilty at the earliest opportunity.

16 Mr Brown, your offending is serious. You were the principal in a drug cultivating enterprise conducted at 19 Karin Crescent, Glenroy. You were solely responsible for the establishment of the business at the rental premises and went to considerable effort in order to establish the five grow rooms to set them up to enable the cultivation to occur. You controlled all of the business activity from the crop setup to the ultimate sale and distribution of the product and you profited, not insignificantly, from the sale of the product, namely, the cannabis L and there was potential for more profit into the future.

17 Through your actions, a direct consequence was that the fire damaged the house and that is a factor that I have had regard to in formulating the appropriate sentence. (s5(2)(db) Sentencing Act 1991).

18 No Victim Impact Statement was filed on behalf of the owner of the property. However, I am satisfied that he would have suffered some upset and inconvenience as a result of the criminal activities conducted in his rental property.

19 The seriousness of your offending is such that the Court must denounce your conduct and emphasise general deterrence so that a message will be sent out to the community that this increasingly prevalent offence will not be tolerated and that those who cultivate cannabis, commercial quantity, can expect stern punishment.

20 I have had regard to your personal history and background.

21 You are now 45 and you were 44 at the time of the commission of these offences.

22 You were born in Melbourne and raised initially in Frankston, and then moved with your mother, who was a single parent, to Carlton. You had two half-brothers: Robert, who tragically died (aged 17) following an asthma attack; and a surviving brother, David (age 49) who works in construction. You have never known your father, who has been an absent person in your life. Your mother is a retired cleaner and you enjoy a good relationship with her.

23 You had limited formal education, left part way through year 8. You completed Year 7 at Princes Hill High School and then transferred to Cathedral College, East Melbourne.

24 After you left school, you commenced as a trainee mechanic and worked in a variety of roles over the years, mainly in labouring-type positions. For several years you were employed by Power Spray, a company that was engaged in the removal of graffiti. However, you lost that employment in 2015 as a result of loss of licence due to loss of demerit points and unpaid fines.

25 Recently, you secured employment with DG McKenzie as a builder's labourer. That employment was casual. You have an interest in photography and have been undertaking a online course for the past 18 months.

26 You have a son, Robert, who is aged 24. Tragically, your former partner (his mother), died three years ago from a brain tumour. There are three children from a subsequent relationship with your partner, Bridget and those children are aged 18, 16 and 11, respectively.

27 At the time of the commission of the offending and your arrest, you were living separate from your family, but you have now reconciled with your partner Bridget and you have been living together with her and the children in North Melbourne for some time.

28 You were reviewed by Mr Ian McKinnon, a forensic psychologist, and I have had regard to his report dated 8 November 2018 that was tendered at the plea hearing. There was no reliance placed on the Verdins principles. I have had regard to his expressed opinion as part of the background to this matter. He states that you meet the criteria for a diagnosis of depressed mood disorder. He considers you to be a person of sound intelligence and that your functional intelligence fell within normal adult range.

29 You explained to him that the context to the offending was that you were having difficulties due to loss of employment, that you were drinking heavily and that you were financially pressed, such that you set up the business of cannabis cultivation at your home for financial reasons.

30 Mr McKinnon stated that you appeared to be suffering from the symptoms that met the clinical criteria for depressed mood disorder attributable to trauma experienced in your life concerning the death of your brother and its impact upon your mother, the death of your former partner and its impact, and also your loss of employment.

31 He stated that the chronic depression was at a mild to moderate level. You have not received any treatment in respect to the disorder. You are however open to the possibility now of having counselling to deal with your mood condition.

32 You enjoy the broad support of your partner, Bridget, your step-son, Matthew, and numerous friends who are all present at court and have been supporting you during the plea hearing. Character references were provided by Kevin Riley, Valerie Pierce and your current employer, Don McKenzie. You are described as a devoted father and partner and a hardworking man.

33 Mr Gwynn made submissions in mitigation on your behalf which I accept.

34 Firstly, you entered a plea of guilty at an early stage following the further committal mention on 18 July 2018. Your plea has real utility. You spared the State the expense of a trial and further witness inconvenience. You facilitated justice and your sentence will be discounted accordingly.

35 Secondly, you made fulsome admissions when interviewed by police and disclosed the full extent of your criminal behaviour that would not have otherwise been known to police, especially the extent of the trafficking cannabis L and your involvement with the setup of the hydroponic crop. Your cooperation was significant and I have noted that full cooperation with the police. I also note that you told them about the electrical bypass that you had done at the premises. I have had regard to the principles expressed in the decision of Ellis[1] and I have allowed discount for your confession.

36 This principle rests upon the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and the making of a confession of guilt for that offence, and that principle has been applied in Victoria.[2] It is known colloquially as the "Doran" discount and that has been applied in the circumstances of your case.

37 Thirdly, I accept that you are now genuinely remorseful. You understand what you did was wrong and you have taken full responsibility for your offending conduct.

38 You have not been charged with any subsequent offences and have no other matters pending. You have strong support of family and friends. There are no psychological or other conditions that would impede your successful rehabilitation and I therefore accept you have reasonable prospects of success at rehabilitation.

39 You come from a disadvantaged and difficult background and that has been taken into account in your favour.

40 Mr Gwynn on your behalf submitted that all the relevant sentencing considerations could be properly met through the imposition of a term of imprisonment combined with an appropriately tailored Community Correction Order.

41 Ms Khan on behalf of the Crown submitted that the only appropriate disposition was one of a term of imprisonment to be immediately served. She confirmed that the charge of cultivation of a commercial quantity of a drug of dependence was a Category 2 offence. What that means is that a custodial sentence must be imposed unless one of the exceptions set out in s5(2H)(a)-(e) applies.

42 In the circumstances of this case, Mr Gwynn did not seek to rely upon any of those categories, and I am satisfied that there are no substantial or compelling circumstances that justify not making an order that you serve a term of imprisonment.

43 Mr Brown, the offending is serious and appropriate weight must be given to the principles of general deterrence, just punishment and denunciation.

44 In all the circumstances having regard to the gravity of offending, the described role that you played in the establishment of the crop that you then harvested and on sold for profit, and the significance of general deterrence, all mean that I consider that the only appropriate sentence is a term of imprisonment to be immediately served.

45 I have had regard to what was said by the Court of Appeal recently in the decision of Nguyen v The Queen (Ngyuen) [3] concerning this type of case involving cultivation of a commercial quantity of cannabis.

46 In sentencing you I have had regard to the principle of totality and the need to impose just punishment.

47 I will now announce the formal orders, if you could please stand-:

48 On Charge 1, that is the trafficking in a drug of dependence charge, you are convicted and sentenced to a period of two years' imprisonment.

49 Charge 2, cultivating a narcotic plant, namely cannabis L, in not less than a commercial quantity, you are convicted and sentenced to a period of four year' imprisonment.

50 Charge 3, theft of electricity, you are convicted and sentenced to a period of

51 Charge 2 is the base sentence and I make the following order for cumulation. I direct that one year of the sentence imposed on Charge 1 and six months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 2. That makes a total effective sentence of five years and six months' imprisonment.

52 I direct that you serve a period of three years' imprisonment before becoming eligible for parole.

53 I declare that a period of four days be time reckoned as already served under the sentence imposed this day. I direct that four days pre-sentence detention be recorded in the records of the court.

54 Finally, pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a period of seven years' imprisonment with a non-parole period of five.

56 That concludes my sentencing remarks. Thank you. Mr Brown can be taken downstairs. Thank you. We can adjourn.

[1] R v Ellis (1986) 6 NSWLR 603-4 (Street CJ).

[2] R v Brazel [2005] VSCA 56; (2005) 153 A Crim R 152, 159 [21] (Callaway JA); R v Doran [2005] VSCA 271 [14]; R v C L P [2008] VSCA 113.

[3] [2017] VSCA 286