Sentence: Convicted and sentenced to Total Effective Sentence 3 years and 6 months' imprisonment with a non-parole period of 2 years and 4 months' imprisonment - Pre-sentence detention 173 days declared as being served - s.6AAA Sentencing Act1991 declared as being served
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John Edward Dyer, you have pleaded guilty to the following charges: Charge 1, cultivation of a narcotic plant in a commercial quantity; Charge 2, theft; Charge 3, trafficking in a drug of dependence, and; Charge 4, possession of an unregistered, general-category firearm.
You have also pleaded guilty to an uplifted summary charge of committing an indictable offence whilst on bail. The maximum penalty for Charge 1 is 25 years' imprisonment, for Charge 2, ten years' imprisonment, Charge 3, 15 years' imprisonment, and for Charge 4, seven years' imprisonment or 600 penalty units. The maximum penalty for the summary charge is 30 penalty units, or three months' imprisonment.
The maximum penalties reflect the seriousness with which Parliament regards the offences which you have committed, and this is an aspect that I must take into account when sentencing you.
I was told that you were 50 years old when you committed the offences, and you are now 51. I was told by the learned prosecutor that you committed Charge 1 in part whilst on bail in respect of possession of methamphetamine, gamma-hydroxybutyric acid and cannabis, having been arrested for these matters on 5 April 2016 and bailed to appear on 22 September 2016. You were fined $200 for these possession charges on that day.
The fact that you continued to cultivate the cannabis which is the subject of Charge 1 after having been arrested and bailed for these possession charges would ordinarily be treated as an aggravating feature, but as the summary charge is the subject of such conduct, I do not treat it as an aggravating feature in your case.
You have pleaded guilty to Charge 1 on the basis that you cultivated cannabis between 2 March 2016 and 8 June 2016. At the time of the offending, you told police that you were living at an address at Ocean Grove with your mother, receiving $500 per week as her carer. You were also renting a four-bedroom house in Tarneit, where you were paying $300 per week.
On 8 June 2016, police attended the rental property at Tarneit, and eventually after repeated knocking and an attempted forced entry, you and another male, a David Wilson, appeared after a garage roller door was opened. A police search revealed that cannabis plants were being grown in four rooms with the following being seized:
Firstly, 88 cannabis plants; secondly, 46 heating light globes; thirdly 61 electrical transformers; and fourthly, 41 light shrouds. Police also seized various other items, which included an electricity bypass, which was connected, and a Lanber shotgun, which had a shortened barrel and stock removed, as well as two Winchester cartridges. They also seized a CCTV console with digital video recorder, a mobile phone, and various documents, including bills, some of which bore a fictitious name, "Jason Cox".
You and Mr Wilson were both arrested and interviewed. Mr Wilson was released without charge. An analysis of a mobile phone seized revealed a number of text messages which indicated that you were trafficking in cannabis between 9 May 2016 and 24 May 2016. The amount trafficked was alleged to be approximately 127 grams. This gives rise to Charge 3. It is not alleged that the cannabis trafficked was originally part of the crop found by police on 8 June 2016.
It is evident that during the period in which you were cultivating cannabis, you were also selling cannabis. When interviewed by police, you told them that you grew marijuana at the address, and rented the house in a false name. You said that you rented the house from a person called "Ted", who you met via an advertisement on the internet. You said that you set up the hydroponic system yourself, and attended the house every two or three days to feed the plants, which you had been doing for a couple of months. You said that you had set up the electrical bypass most likely when you first moved in.
You said that you bought the gun a couple of weeks ago for security, as you had been broken into, and had previously been assaulted at a shopping centre. You said that you had paid $1,200 for the gun, buying this from someone in
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You said that you were growing the cannabis in order to smoke it, and that you smoke between half an ounce and an ounce per day. You said that you currently bought cannabis for personal use, as your crop had not been harvested as yet. You also said that this was the first crop that you had grown at the address, and you denied that you were going to sell any of it.
When you spoke to Mr Cummins, psychologist, you gave a somewhat different account as to your degree of involvement and your motivation for this offending. You told him that you had been engaged by others to act as a sitter for the cannabis crop, and that the owners of the cannabis requested that you rent the property in your name. You said that you were paid by way of receiving cannabis, saying that you "took the wrap for this". You also told the police that it was all your cannabis so that no one else was charged.
In relation to the firearm, you told Mr Cummins and instructed Mr Nikakis that this was for your security, as you were afraid that your cousin, who had already assaulted you in November or December 2015, might seek to do so again.
At the plea hearing, the second explanation that you had given to Mr Cummins was relied upon by Mr Nikakis on instruction from you. He said that in return for you sourcing the property, paying rent on it, setting up the hydroponic system and electrical bypass and tending the crop as a crop-sitter, you were paid by way of cannabis, which you needed to feed your apparently significant habit.
The prosecution submitted that the degree of your involvement and financial investment indicated that your were a principal in this cultivation, and that you were involved for financial gain. In relation to the shotgun, the learned prosecutor pointed to it being at the crop house, and part of your explanation in the record of interview in respect of previously being broken into, suggesting that I ought reject your explanation that you had purchased it in order to protect yourself from reprisals from your cousin.
For the reasons referred to by the learned prosecutor, I am satisfied beyond reasonable doubt that you played a principal role in the commercial cultivation, and that your motivation was, at least in part, for financial gain. It may be that you were also to consume some of the cannabis, but the level of your involvement and financial investment is indicative of something beyond that of a mere crop-sitter. This does not mean that you were the only principal offender. I do not speculate about this, but I am satisfied beyond reasonable doubt that you were a principal offender in this enterprise, which was of a commercial nature, rather than for purely private use.
I am fortified in reaching this conclusion by the fact that during the period of the cultivation, you were actively involved in selling cannabis, albeit from a source other than from the crop house. I am also satisfied, beyond reasonable doubt if needs be, that the firearm was in your possession at least in part to help protect your valuable crop. In coming to this conclusion, I have had regard to the fact that the gun was at the crop house, and not at the house in which you apparently lived with your mother; that you had been assaulted by your cousin about six months before acquiring the firearm, and that the assault had been reported to the police, with your cousin facing charges for it.
Mr Nikakis indicated that the scene of the assault was around the corner from the crop house, which had a real bearing on your fear of further reprisals from your cousin. Whilst this may be so, I do not accept that this was the sole reason for purchasing the weapon a few weeks before you were arrested by police for the charges for which I now sentence you.
In determining the seriousness of your offending, I also factor in the weight of the cannabis seized being 64.68 kilograms, more than twice the threshold for commercial quantity, and the period over which you cultivated being in the order of three months. On the other hand, I have also factored in that the weight of the cannabis relied on by the Crown was the weight wet, such as the weight of the drug and usable parts of the plant would be somewhat less than this.
All things considered, I regard your offending as serious, deserving of a punishment which is just in all of the circumstances. Your conduct must be denounced. I must place strong weight on general deterrence in a bid to deter others from offending as you have.
You have a relevant criminal history as follows:
In 1987, you were fined in relation to two charges of burglary and theft.
In 1994, you were sentenced to a community-based order for four charges of theft, a further charge of theft of a bicycle, and one charge of unlawful possession.
In November 1994, you were sentenced in this court to two years' imprisonment with a minimum of 12 months for assault with intent to rob, and ordered to pay $68,000 by way of compensation.
In December 1994, on my reading of your criminal history, you were sentenced in the Magistrates' Court to a total effective sentence of eight months' imprisonment for eight charges of burglary, eight charges of theft, three charges of theft of a motor vehicle, three charges of attempted theft of a motor vehicle, as well as a number of other charges, which included cultivating cannabis. I was told that the cultivation charge concerned one plant.
Then in February 2011 in the Magistrates' Court, you were dealt with for cultivating cannabis, and you were sentenced to four months' imprisonment, which was also wholly suspended for two years. You were also convicted and discharged in relation to using cannabis.
In sentencing you, I have had regard to your criminal history, which is of relevance to the matters before me, although I have also factored in the dates on which you were dealt with for these. With the exception of the last mention matter, your history is somewhat dated. In assessing your prospects of rehabilitation and the weight I must give to specific deterrence, I have taken each of these aspects into account.
In your favour, you entered pleas of guilty at the earliest opportunity. This entitles you to a significant discount in the sentence that you would otherwise receive, as you have saved the witnesses the time and trouble of giving evidence, and you have saved the community the time and expense of contested proceedings.
I have also taken into account that you made some significant admissions in your record of interview, albeit that you resiled from some aspects of these to some degree when you spoke to Mr Cummins and instructed Mr Nikakis. Still, you were willing to take significant responsibility for your actions as at the time you spoke to the police, which is to your credit.
I have also made an allowance in your favour for the hardship that you will suffer in circumstances where your health is compromised, albeit that you are being treated appropriately for your serious health problems. I take into account your heart problem, which is documented in the medical report dated 11 September 2016, which is a condition in addition to your other health difficulties.
Further, your time in gaol will be harder due to your distress arising from the risk that the nature of your medical condition may become known to others, as well as your concern for your mother, who will be without your care.
However, in this regard other members of your family will be able to look after her such that it is not argued that she will suffer exceptional hardship arising from your incarceration. This was a most proper concession made on your behalf by Mr Nikakis.
I take into account your background, which was referred to in part by Mr Nikakis, and which is set out in the report of Mr Cummins. I do not propose to recite this other than to say that you are a father, and you have had the most unfortunate situation arise in respect of one of your children, in the contact of sexual abuse by a relative of yours. You made a statement to police in respect of this matter, and the perpetrator has served a term of imprisonment. He is the one who assaulted you after being released as reprisal for making a statement.
I was told that you had a solid work history as a labourer, but that you were made redundant some time ago, receiving a redundancy package of $43,000. I was told that your carer's allowance and your mother's benefits meant that you were able to live quite comfortably. I was also told that you have used cannabis for a number of years, and that you commenced using ice, having been introduced to it through the party scene.
The drug possession charges for which you were recently dealt with in the Magistrates' Court attest to your drug use, which has been an ongoing issue for some time. You have never sought to address this issue, but I am told that since being incarcerated on this occasion you have abstained from drugs.
In view of the offending on this occasion, your criminal history (bearing in mind the various aspects of this), your drug abuse (which has had something to do with this offending), but also factoring in your early pleas of guilty, health issues and present abstinence from drugs, I regard your prospects of rehabilitation as fair. I place moderate weight on your prospects of rehabilitation and specific deterrence.
Mr Nikakis submitted that a term of imprisonment in combination with a community corrections order was warranted in your case. The learned prosecutor submitted that such a disposition was outside the range of sentences available to me, and referred me to recent authority from the Court of Appeal, where the Court said that current sentencing practice for commercial cultivations of mid-range seriousness was inadequate, and that such sentences ought incrementally increase. He submitted that you were a principal in respect of the offending before me, and that in all of the circumstances I ought regard your case as one of mid-range seriousness.
He also referred me to sentencing practice in respect of offending such as yours, which is one of the matters which I must factor in when sentencing you. Further, he submitted that some cumulation was warranted in respect of the theft of electricity charge and the separate matter of trafficking, but also bearing in mind the principle of totality.
Mr Nikakis submitted that your commercial cultivation offence was not of mid-range seriousness, and that you ought be sentenced as a crop-sitter. He submitted that you were in a category that was referred to as "Cluster 1" in Nguyen v The Queen [2016] VSCA 198, and that therefore the remarks of the Court of Appeal in relation to inadequacy of sentences for mid-range offending did not apply to you.
Having found that you were a principal in the cultivation, I sentence you as offending at mid-range level, which means that I must abide by the Court of Appeal's remarks about this. However, I have also applied appropriate weight to all relevant sentencing principles in your case in accordance with my previous remarks.
In relation to my previous remarks, I erroneously indicated that I placed moderate weight on your prospects of rehabilitation. That was something that I did not mean to actually say. It was said in relation to the weight that needed to be applied to specific deterrence, and as previously indicated, I have found that your prospects of rehabilitation are fair. So to that degree I amend my sentencing remarks.
A degree of cumulation is warranted as between offences, as each is a separate piece of criminal conduct, although the theft of electricity is part and parcel of the commercial cultivation. I have also borne in mind the principle of totality in arriving at an appropriate sentence. As previously indicated, I accept the Crown's submission that a sentence of imprisonment combined with a community corrections order is outside the range of sentences available to me in respect of your offending.
Would you please stand up, Mr Dyer? You are convicted of each of the offences. First I make ancillary orders. The first order that I make is for a forensic sample. A forensic sample order is made such that a sample is to be taken by way of a buccal swab from the mouth. I make the order because of the seriousness of your offending, because it is not opposed, and because it is in the public interest to make the order. I warn you that if you do not cooperate in the taking of the sample, then the authorised officer may use reasonable force to obtain this from you.
I also make the forfeiture and disposal orders sought by the Crown and not opposed by you. I sentence you to the following periods of imprisonment:
Charge 1, three years, which will be the base sentence;
Charge 2, eight months' imprisonment.
Charge 3, 12 months' imprisonment.
Charge 4, ten months' imprisonment.
The summary offence, two months' imprisonment.
I direct that one month from the sentence on Charge 2, three months of the sentence on Charge 3, and one month from the sentences on Charges 4 and the summary offence be served cumulatively with each other and with the base sentence, producing a total effective sentence of three years, six months. I direct that you serve two years, four months before becoming eligible for parole.
I declare that you have already served 173 days by way of presentence detention, which will be deducted from the sentence that I have imposed, declared as already served. Just take a seat for a moment please, Mr Dyer.
HER HONOUR: I beg your pardon. That is over the page, I am sorry, you are quite right. If not for your pleas of guilty, I would have sentenced you to four years, ten months' imprisonment with a non-parole period of three years and four months' imprisonment. I apologise for that. All right, are they the matters then, counsel?
MR NIKAKIS: Yes, Your Honour.
HER HONOUR: All right, yes thank you, if you could remove Mr Dyer? Could you please remove Mr Dyer? Thank you.