DPP v Devlin [2016] VCC 1814

3 Tendered as Exhibit A on the plea and read aloud in Court was the Prosecution Opening on Plea. In summary, your next door neighbour over a period of time had been concerned about the cost of electricity supply to his home. On 15 March 2016, he discovered that an electrical cord plugged into his electricity meter box ran from his property to the property that you occupied. Whilst on or looking into your property, he observed a number of cannabis plants. He contacted police and the following day police executed a warrant to search your premises and there a total of 49 plants weighing 54.34 kilograms were seized.

4 Plants were grown; in the open in your back yard, in a large white tent in your back yard and in an area of the back yard partially screened off by black shade cloth, and police also located one cannabis plant being grown on the front porch of your home. Additionally, police found some leafy stems and loose leaves and branches that brought the total weight of cannabis found on the property that you occupied to 56.05 kilograms. (Charge 1)

5 In respect to the charge of theft, it was not in any way related to the commission of Charge 1 on the indictment.

6 You were arrested and conveyed to the Boronia Police Station where you were interviewed under caution. In the main, you made a "no comment" record of interview, save that you did say that you had no idea how much the cannabis plants weighed but you did know how many plants were supposed to be at the property. You were remanded in custody for one day.

7 The between dates on the indictment are alleged on the basis of an analysis of the development of the cannabis plants seized at your property.

8 Your plea of guilty was entered at the earliest opportunity and you are entitled to the benefits that flow from your plea, being its utilitarian benefit and that it is some evidence of your remorse.

9 Prior to the instant offending, on 28 November 2015 you were arrested by police, interviewed under caution and charged and bailed to appear at the Ringwood Magistrates' Court in respect to a number of offences, including cultivating and trafficking cannabis. Accordingly, at the time of committing Charge 1, you were on bail for committing similar offences and this is an aggravating feature of your offending.

10 You are forty-two years of age and generally speaking, since leaving school, have had consistent employment. However, at the time of the commission of the instant offending, you were unemployed. At the time of your plea, you had recently commenced employment working for a cloth and netting business owned by Mr Myers.

11 You grew up in the Healesville area. Your mother is a retired midwife and your father is a retired schoolteacher. You have two younger siblings. Your parents divorced when you were about eight years of age. I was not provided with any further information as to your early upbringing.

12 You were educated to Year 11 standard and thereafter left school to join the navy. However, you were discharged during your initial training period. You are the father of two children from a relationship that lasted approximately eight years when you were aged between twenty-two and thirty years. You have a cordial relationship with your former partner and maintain your relationship with your children.

13 Tendered as Exhibit 1 on the plea was a bundle of references from your sister, Kirsty, your daughter, Aeon, your former partner, Sonia Polimeni, and a lifelong friend, Daniel Taite. Your referees wrote that you are a good father to your children, a non-violent person and one who is generous in nature. In particular, your former partner wrote that you have suffered from depression and alcohol abuse for some time and that the loss of your job in 2015 caused you a great deal of emotional stress. However, you have never pursued medical assistance for these problems, save for having been prescribed Xanax on one occasion and only taking that medication for a short time. It was put on your behalf that you have largely dealt with your mental issues, which includes the consequences of childhood sexual abuse, by self-medicating with cannabis and alcohol. I note that the principles set out in R v Verdins were not relied upon by your counsel during the plea.

14 It was put on your behalf that the cannabis was grown by you only for your own use and to give it to others for "therapeutic purposes". In support of the latter proposition Mr Andrew Myers was called to give evidence. He swore that you had provided him with two amounts of cannabis to be passed onto Mr Myers' father in law so that he might smoke it to alleviate the pain he suffered as a result of prostate cancer. Mr Myers swore that these transactions occurred in August last year, some months prior to the instant offending.

15 As against that, tendered as Exhibit C on the plea, were a number of screenshots from your mobile phone that demonstrated that you during the period of the dates on the indictment you were involved in the movement of cannabis in a commercial setting.

16 You have an almost thirty year history of cannabis abuse. Whilst it was put on your behalf that you have in the past ceased smoking cannabis from time to time, you have always returned to that practice and at the time of the instant offending it was put that you were smoking between two and three grams of cannabis a day. At the time of your offending you were unemployed, you were behind in your rent and were plainly in need of money.

17 Whilst I accept that prior to the instant offending you had suppled Mr Myers with cannabis for so called "therapeutic use", I do not accept that you committed Charge 1 on the indictment with a key purpose of supplying others with cannabis for "therapeutic use", although it may have been one of your motives for and an anticipated consequence of doing so. Tendered as Exhibit B on the plea were a number of photographs of the crop seized by police. The seized plants were at different stages of maturity and you had prepared an insulated grow room in your house, although at the time the police executed the warrant, there was no sign that this room had been used during the between dates on the indictment. Bearing in mind that police had earlier raided your premises on 28 November I am of the view that the room was prepared after that police raid and was therefore constructed with the cultivation of cannabis by hydroponic means in mind.

18 It is apparent that you were living parlous circumstances at the time of the instant offences and you were using the electricity stolen from your neighbour because your own electrical supply had been disconnected.

19 Until the day of you plea you were living with and working for Mr Myers who swore that you were a skilled worker and that you assisted his younger employees on occasions when they struck difficulties in their work. I was informed that should you be imprisoned that you would be employed by Mr Myers upon your release.

20 Mr Reardon of Counsel, who appeared on your behalf, submitted that your offending ought not to be regarded as serious as the offending identified as mid-range cultivation in Nguyen v R (2016) VSCA 198. I accept that submission. He further submitted that a term of imprisonment in your circumstances was "virtually unavoidable" but that any term of imprisonment should be combined with a Community Correction Order to assist in your rehabilitation by imposing treatment conditions as part of the order. To that end, I had you assessed for suitability for such an order. You have been assessed as suitable to undertake a Community Correction Order.

21 The maximum penalty for Charge 1 is 25 years' imprisonment. You committed Charge 1 whilst on bail for cultivating and trafficking cannabis. In effect you have been a lifelong abuser of cannabis. General and specific deterrence must play important roles in arriving at an appropriate sentence in your circumstances. Would you please stand.

22 By these sentences, I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must look to your rehabilitation. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purpose of sentencing in a manner appropriate to you, I sentence you as follows.

23 In respect of Charge 1, I sentence you to a term of 12 months' imprisonment together with a Community Correction Order for a period of two years with conditions. I can only sentence you to that aspect of the sentence involving a community corrections order with your consent. Do you consent to that aspewct of the sentence?

25 HIS HONOUR: Thank you. The conditions of that community correction order are that:

(1) you undertake treatment and rehabilitation in respect to your drug abuse;

(2) you undertake treatment and rehabilitation in respect of your alcohol abuse; and

(3) you be subject to the supervision of the Secretary of the Department or his nominee.

26 In respect of Charge 2, theft of electricity, you are convicted and fined $150. In respect to the related summary offence you are convicted and fined $500. I grant a stay of six months for the payment of the fines.

27 I declare that you have spent eight days by way of presentence detention not including today.

28 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 30 months' imprisonment with a non-parole period of 18 months' imprisonment.

29 So Mr Devlin, the end result of my sentence is this: That you are sentenced to a period of imprisonment of 12 months. At the end of that period, you will be released on a community corrections order for two years. There is no work component included in that order. There are only two therapeutic conditions which you must comply with. And further, that you be supervised by the Secretary of the department or his nominee. That is the effect of my sentence.

30 In respect the theft and the summary matter, you have been fined, and I have granted you a stay of six months in respect of those fines. You may be seated. What is going to happen now is, my associate is going to bring down a document that relates to the community corrections order for your signature.

31 The Crown made application for a disposal order and a forfeiture order in respect of certain items seized by police, and I have made those orders.

32 The Crown made application for a forensic sample under s.464ZF(2) of the Crimes Act, and I have granted that order for a scraping from your mouth. That is a buccal swab. I have granted the order because the seriousness of the circumstances of your offending warrant the order; your prior convictions are such as to warrant the making of the order; and the granting of the order is in the public interest.

33 Mr Devlin, what I need to advise you is this. Please stand, Mr Devlin. Thank you very much. And it is this. If at the time of request for the buccal swab, which is a scraping of your mouth, you do not consent to the taking of that mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to take place. And I hand down three copies of that order.

36 HIS HONOUR: Please be seated, Mr Devlin. My associate is going to distribute those documents to the Bar table, but he will also bring you a copy of the community corrections order, and that is for your records, to go into your personal property at the prison. It also records the term of your sentence, so that you know where you stand in respect of those orders.

37 Are there any other matters that need to be dealt with?

40 HIS HONOUR: Thank you. Then would you remove the prisoner, please? I would like to thank counsel for their assistance in the matter. I will stand down until the next matter.