DPP v Mohtadi [2018] VCC 110

2 I sentence you on the basis of the Prosecution Opening[1], which was an agreed summary, except for the allegation that you possessed the drugs of dependence for purposes related to trafficking. I will come back to that.

3 On 24 May 2017, police searched the home that you were renting and found five rooms set up in a sophisticated hydroponic cultivation of cannabis,

(charge 1). What would have been an open plan dining/living room downstairs was converted into two 'grow rooms'; upstairs, another living room and two bedrooms were converted into 'grow rooms'. A bypass had been set up to avoid the high rate of electricity used in cultivating the crop being recorded on your electricity meter (charge 3 - theft of electricity).

4 There were 23 mature and 41 juvenile cannabis plants, with a total weight of 77.63 kilograms. While the total number of plants at 64 was less than the number required for a commercial quantity (100 plants), the total weight was more than three times the weight required for commercial quantity,

(25kg). You were charged with cultivating this crop during a period of just over two months (March to May 2017).

5 No other offenders have been identified for this commercial crop. The prosecution did not allege that you were a principal, but alleged that your role was not the 'traditional' description of a 'crop sitter' either, because generally a crop sitter will be looking after a crop in someone else's premises, whereas the crop was being cultivated in your own home. The prosecutor submitted that your role was higher than the traditional crop sitter for that reason, and also because of the two receipts for purchases from a hydroponics shop found in your home, suggesting active participation in the cultivation. They also relied on the sophisticated nature of the setup, which is well illustrated in the photographs taken by police[2], to allege a greater role played by you. The prosecution submitted the description offered by your counsel that it was a

6 You exercised your right to silence when interviewed by police, but gave evidence on the plea about your role in the cultivation. In summary, you said that because of a number of stressors in your life (which I will come to later when I deal with your personal circumstances), you began using cocaine in about 2012-13, followed by cannabis and alcohol use from about 2016. You said you were using in such quantities that by 2017 you had racked up a debt of $30 - $40,000 to your drug supplier, despite receiving an excellent wage in your long term occupation as a Fire Service Fitter and Engineer. You said you offered $5,000 to your supplier as an initial payment, but this was not acceptable. Instead, you said, a criminal agreement was reached between you and your (unknown) drug supplier for you to allow cultivation in your own home and for you to take care of the crop in return for the supplier wiping off your drug debt, and giving you cocaine and cannabis when you needed it.

7 Pausing there, on the one hand it seems unlikely that such a generous offer would have been made by an entrepreneurial drug supplier and cultivator, because in order to reduce your debt to nothing, the continued supply of drugs would need to be provided free to you. On the other hand, it is not hard to see how keeping you supplied with drugs could have kept you under the principal cultivator's control, which would have been in their interest and if, rather than being given for free, the cost of the drugs was continually added to your debt, or became a new debt, you would be potentially under their control for

8 You said in evidence that 'they' (the unidentified person or people with whom you made this criminal agreement) had keys to your house and came with

a truck and set everything up and that you had nothing to do with that. You said your role was to turn the lights on and off, ensure there was sufficient water and feed in the tanks, and although you tried to get close to the plants to assist with cutting the flowering plants into smaller plants, you were unable to do so, because you suffered from hay fever once the plants had flowered. You said you were not expecting anything from the ultimate sale of the crop; the benefits to you were the wiping of your debt and the supply of the drugs you wanted.

9 I consider that your evidence about the receipts from the hydroponics shop found at your house and your attendance at that shop was unsatisfactory. On the one hand, when asked by the prosecutor about going to that shop, you said that 'they' gave you a list of things to buy, but later you said you must have been mistaken in saying that, as 'they' already had all that they needed. Ultimately you said you did not deny going to the shop, but did not recall if you did, or if you did, you did not recall the reason for going there. I note that one of the receipts was dated November 2016, 2 - 3 months before the period charged on the indictment, and the other was for March 2017, the beginning of the period.

10 Having regard to your evidence and the submissions of the prosecution as to the conclusions to be drawn from the objective evidence, I make the following findings about charge 1 of cultivation of not less than a commercial quantity of cannabis:

• First, it was a sophisticated setup at the mid-range level of cultivation;

• Next, there is no evidence to refute your claim that you were not involved in setting up and so I am not satisfied that you were;

• Next, your role was nevertheless a vital one in getting the crop to

− potentially provided security against thefts of the crop,

− until detection, kept the premises and the crop from suspicion by virtue of it being a home you had lived in for some time,

− ensured the conditions were optimal for continued growth (water, food and light), and

− were prepared to assist further if asked to do so; for example, attending the hydroponics shop, or cutting the maturing plants into smaller plants; and

• Lastly, the part you played kept the principal cultivators at arms' length while it grew to a saleable crop, and in fact, allowed them to avoid detection as they were not arrested with the crop, and have not been identified.

11 The next findings I must consider are whether the cannabis and the cocaine you possessed were not possessed by you for the purpose of trafficking.

12 When police searched your home on 24 May 2017, they found a number of jars and bags of dried cannabis, weighing in total 280.1 grams (charge 2). They also found a sealed bag of cocaine weighing 43.1 grams, in a box with other

snap lock bags, electronic scales, straws with a scoop on one end and a spoon (charge 3).

13 The law is that a small quantity of cannabis is 50 grams and a traffickable quantity is 250 grams. You were in possession of more than the traffickable quantity of cannabis and the prosecution rely on the quantity to allege that you possessed it for the purpose of trafficking, which would lead to a higher maximum sentence being applicable to that charge.

14 For cocaine, the law is that a small quantity is one gram and a traffickable quantity is 3 grams. You were in possession of more than 14 times the traffickable quantity of cocaine and the prosecution rely on the quantity, as well as the bags, scales, straws and spoon, to allege that you possessed it for the purpose of trafficking, which would lead to a higher maximum sentence being applicable to that charge.

15 In your evidence, you denied possession for trafficking purposes for either drug, saying it was all for your own use. You said you received 2ozs or

28g of cocaine at a time from your supplier, at 90% purity, which you then 'cut' with a protein powder for your own use. You said the straws and spoon were used to get the powder out of the bag, the scales were used to weigh the amounts you planned to use, and the plastic bags were used to put those amounts in for you to take with you for use away from the home during the day. You said that you received 440g of cannabis at a time.

16 You said you began a day by inhaling cocaine at home, and then inhaled amounts during the day at work. When you returned home in the afternoon, you had your last dose of cocaine, moving then to cannabis, using 1 - 2 grams over 1 - 2 hours to assist you to sleep. Later, in cross-examination, you said you smoked 7 - 8 joints per night.

17 On the two days of the week that you collected your daughter from school, you said you did not use cocaine at all. On weekends when you were not working, and particularly if you had a long weekend because of a rostered day off or public holiday, you said you began smoking on the first weekend night and continued smoking it through until the day before your return to work. I was told that smoking uses more of the drug than inhaling it. On a normal two day weekend, you said you inhaled cocaine, rather than smoking it.

18 Based on this usage, you said that the 43 grams of cocaine of varying purities found by police on 24 May 2017, was the amount of cocaine left after 'cutting' and use by you, since being given the 2ozs at the beginning of the time you were cultivating the crop; and the 280g of cannabis was the amount left over following your use, from the 440g given to you previously.

19 The onus is on you to show that you did not possess either of these drugs for the purpose of trafficking. There is no evidence to refute your claim of personal use and despite my view that some of your evidence was less than credible,

I find on the balance of probabilities that you were not in possession of either drug for the purpose of trafficking. As a result, as neither drug was a small quantity as defined by law, the maximum sentence applicable in your case is for Charge 2 and 3, 30 penalty units or 12 months' imprisonment.

20 As to the final charge, charge 4, you gave evidence that you were not involved in securing the bypass of the electricity meter and that you thought it was

a safety switch. I am somewhat sceptical about that claim but I do not make any finding against you, and you were candid about your knowledge that the purpose of the bypass was so that a large increase in usage of your electricity would not show up on your bill. The large amount of the electricity stolen is in keeping with the large amount of electrical equipment used in the cultivation, which is also shown in the photographs[3].

21 I turn now to the matters that I must take into account in your favour. The first of these is your plea of guilty. You are entitled to have that taken into account in your favour and I do so. Your plea has saved the community the time and cost of a trial and as a result, the sentence I will impose will be less than would have been imposed if you had been found guilty after a trial. I also treat your plea as an indication of some remorse on your part, although it is clear that there would have been little choice for you but to plead guilty in the circumstances of the crop being found at your house where you were living.

22 I also take into account in your favour that you were not at home when police searched your house, but after police contacted you, you voluntarily surrendered to the police on the same day.

23 Next, I take into account your personal circumstances. You have just turned 32, and were aged 31 during the offending. You are the youngest of 6 children and all of your brothers and sisters appeared in court to support you on the plea, as well as your mother. Together with your family, when you were aged 5 or 6, you went to Lebanon, where your parents had been born. While you were there, you apparently suffered an event about which you have not spoken until now[4], but the memory of which you say was having a profound effect on you during the time that you became addicted to drugs.

24 You returned to Melbourne and did all of your schooling here and after

Year 10, you completed an apprenticeship in the fire service industry. Both of your brothers work in this industry and in 2005, after your apprenticeship, you began working with the company owned by one of them. You worked in that industry, either with your brother's company or other companies, until your arrest in May 2017, with the exception of a brief period when you were recovering from injuries received in a motorcycle accident in 2013.

25 You were in a relationship from 2005 to 2013, which resulted in marriage in 2008 and a daughter was born in 2010, now aged 7. Within months of her birth, she was diagnosed with a heart condition[5] which requires ongoing monitoring.

26 As I mentioned earlier, your evidence is that you began using cocaine in about 2012-13 and immediately became dependent on it. At that time, you were apparently suffering from anxiety and described yourself as depressed, with the stressors being your recurring memories of the events in Lebanon, and your daughter's illness. You apparently reacted to these feelings by being unfaithful to your wife despite professing your continuing love for her, by using cocaine to the point that you were addicted, and by engaging in gambling. Eventually, your wife and daughter went to live with her father; a short period of attempted reconciliation did not work. You attribute your marriage breakdown to your infidelity and your dependence on cocaine. At some stage, you met someone else and that partner was present in court to support you.

27 Following the breakdown of your marriage, you continued to work long hours, which apparently allowed you to block feelings of anxiety and depression during the day. Although your brother for whom you worked knew you were going through a bad time, you hid from him that you were drug dependent, and worked at a high level of the organisation, managing some significant projects for the company. As your anxiety increased, you said you began using cocaine throughout the day, and out of work hours used cannabis to level you out from the cocaine use, and drank alcohol in binges. This was from about 2016 and, as described in your evidence, continued until you were arrested in May 2017.

28 Jeffrey Cummins, clinical and forensic psychologist, assessed you in August 2017, and on the basis of your statements to him, in his report[6], gave the opinion that at the time of the offending, you were dependent on both cocaine and cannabis, and a binge drinker of alcohol, as well as suffering from

a trauma related disorder, which he thought was 'relatable' to the event which occurred when you were aged 5. Given my finding about the significant amounts of cocaine and cannabis found in your possession not being for trafficking, it follows that I accept that you were using large amounts and were drug dependent at the time of the offending.

29 You also told Mr Cummins that you had been provisionally diagnosed with bipolar mood disorder and post traumatic stress disorder and that four or five years ago, you had 10 or more sessions with a counsellor/psychologist, but

I received no further details about any of these matters.

30 I accept that over a period of years, you were operating under stress and as

a result, you were using high amounts of cocaine and cannabis, and probably also of alcohol and that this, perhaps combined with gambling, led to the large debt which you chose to 'work off' by engaging in a serious criminal enterprise with unknown others, who have left you to shield them from detection. While drug dependence provides part of the reason for your participation in the cultivation, it lowers your moral culpability only to a small extent. Cultivation of a narcotic drug in more than a commercial quantity is a serious criminal offence, and is not a victimless crime; you well know the impact on an individual if cannabis is released illegally into the community for indiscriminate and illegal use.

31 Because of the objective seriousness of this type of crime, the primary purposes in my sentencing you are to deter others from engaging in this sort of crime and to express the community's denunciation of such a serious crime.

32 You have a criminal record for driving and dishonesty offences as well as breaching an intervention order. I note that these occurred in the period 2013 - 2016 and so are part of the same timeframe when your life was 'out of control', as described by you[7]. Despite the existence of this history, I consider that my sentence does not have as a major purpose the need to deter you from re-offending, because this is the first time you have been in prison, and your experiences there as described by your counsel, and by you in your evidence, have probably had a significant effect already in preventing you from re-offending as you will not want to risk returning to prison after your release.

33 Next, I take into account the steps you have taken to get your life back in control. While on remand, you have undertaken a number of courses[8], and have completed numerous 'clean' urine screen tests for drug use[9]. Further, you had work as a billet which is a paid position of some trust, until you became a Peer Drug Educator, an unpaid role assisting new prisoners on remand dealing with drug addiction, in association with the Caraniche program. You have constant visits from your family, and you have chosen not to have your daughter visit you in custody, but speak to her daily by telephone.

34 The brother with whom you worked gave evidence on your behalf. He confirmed that you can return to work with him on your release from prison.

I was very impressed with his evidence. He said how shocked the family were to hear of your offending and its serious nature, and that this information had such an impact on him that he had instituted random drug screening in his business, and that if you return to work for him, you will be the subject of targeted screening, and report directly to him. He has also arranged for the support and assistance of a community organisation[10] which his company sponsors to provide an array of programs to assist you in your continued rehabilitation. This support, and that from your entire family, together with others who provided references[11], is vital to your prospects of rehabilitation.

35 Taking all these matters into account, I consider your prospects for rehabilitation are very good, but I agree with Mr Cummins that those prospects are directly tied to you remaining drug free.

36 Your counsel submitted that an appropriate sentence would be a term of imprisonment equal to the time you have served on remand, (about 8 and a 1/2 months) followed by a lengthy community correction order[12]. You were assessed and found suitable for such an order. Your counsel submitted that if I did not agree with her first submission, then the prison sentence I impose should be one which allows you to be eligible for release soon, in order to encourage and facilitate your continued rehabilitation.

37 The prosecutor submitted that the sentence must involve a sentence of imprisonment, with a non-parole period and a parole period, on the basis that for charge 1, this is mid-range offending in a crime which ordinarily calls for imprisonment, and that there were no features that would disturb that presumption.

38 In summary, the factors in your favour are your early plea of guilty, your signs of remorse and acceptance of responsibility for your crimes, your voluntary surrender to police, your strong family support and good work history, the efforts you have made so far towards your rehabilitation, the fact that this is your first time in custody with a very limited criminal history, and the motivation you have of remaining in the community for your daughter to deter you from re-offending. I also take into account the effect on you of being in prison with no physical contact with your daughter.

39 Against that is the objective seriousness of the cultivation of a commercial crop of cannabis which was conceded on your behalf to be a crime in the mid-range for these offences, and your willingness to participate in a mid level criminal enterprise for the significant benefit of having a large drug debt removed and

40 I was referred to a number of sentences handed down in 2016 as part of my consideration of current sentencing practice, although it was rightly submitted that this is only one factor to consider. Three of the four sentences were handed down without the benefit of the decision in the Court of Appeal[13] which made it clear that as at 2016, the current sentences for mid-range offending were too low and that sentencing courts must, by increments, increase sentences for mid category offending.

41 Unlike the prisoners in some of the sentences I was provided with, your offending was committed when you were in a well-paid occupation, living in your own home and, while I accept you were vulnerable to an extent due to your drug dependence, you were not subject to the sort of vulnerability that many others looking after crops suffer, such as being illegally in Australia, or speaking little English, or having no home or job or family support.

42 I am satisfied that there is no alternative to imprisonment on all of the charges and because of the objective seriousness of your offending in charge 1, for an offence with a maximum of 25 years' imprisonment, a sentence with a maximum of 12 months, even combined with a lengthy community correction order, would not meet the sentencing objectives of general deterrence and denunciation, or be an incremental increase in the sentencing regime for cultivation of a commercial crop.

43 Because of your prospects for rehabilitation, I will set a parole period which allows for earlier eligibility than would otherwise have been given.

44 Before I turn to the sentence, there is one other matter I must deal with. Application has been made for an intimate forensic sample to be taken from you and through your counsel you have not objected to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the police may use reasonable force to enable such a procedure to take place.

47 On Charge 1 of cultivation of a narcotic plant in not less than a commercial quantity, 3 years, 3 months' imprisonment.

48 On Charge 2 of possession of a drug of dependence, 3 months' imprisonment.

49 On Charge 3 of possession of a drug of dependence, 6 months' imprisonment.

51 Charge 1 is the base sentence. I direct that three months of the sentence imposed on Charge 4 and one month of the sentences imposed on Charges 2 and 3, be served cumulatively on the sentence imposed on Charge 1 and on each other. That makes a total effective sentence of 3 years, 8 months' imprisonment.

52 I direct that you serve 20 months before becoming eligible for parole.

53 Could I just check on the pre-sentence detention?

54 MS FOOT: Yes, Your Honour, 267 days is agreed, thank you.

58 I declare that you have served 267 days in pre-sentence detention, not including today, and I direct that these be administratively deducted from your sentence.

59 I have made the forfeiture and disposal orders, which you have not objected to.

60 Finally, if you had not pleaded guilty, but had been found guilty after a trial for all of the offences, the sentence I would have imposed is a total of seven years' imprisonment, with a minimum term of five years.

64 HER HONOUR: Yes, thank you. Mr Mohtadi may be removed.

67 MS FOOT: Apologies, Your Honour, I was in another courtroom.

68 HER HONOUR: No, not at all, thank you. Thank you, Ms Foot and - - -

69 MS FOOT: But that matter has been stood down temporarily.

70 HER HONOUR: Well, thank you for coming back. I did not require you to come back, but thank you to everyone, and Mr Mohtadi, I am sorry to bring you back into court, but what has been made clear to me, is that I said the wrong maximum sentence for Charge 3 and so it was necessary for me to come in and correct that and because I sentenced on the basis of a higher maximum penalty, I have decided that I should also alter the sentence I gave you on Charge 3. Now that is not your major charge and it will not change the overall sentence, I have to tell you.

72 HER HONOUR: But I did need to correct that and I am grateful to the prosecutor for pointing out that error. So the first thing to say, is that where in my sentencing remarks it refers to a Charge 3 penalty being 40 penalty units or five years' imprisonment, I will be correcting the records to say that it should be for Charge 3, as well as Charge 2, 30 penalty units or 12 months' imprisonment. So that is correct, Ms Foot, I take it?

74 HER HONOUR: Thank you. And I will also re-enter the sentence for Charge 3 of possession of a drug of dependence. I had previously said ten months' imprisonment, I will now be sentencing you to six months' imprisonment on that charge of possession of the cocaine.

75 So I will just, so that it is clear, re-sentence - sorry, re-read the sentences, so that it is in the record correctly.

76 So on charge 1 of cultivation of a narcotic plant in not less than a commercial quantity that is 3 years, 3 months' imprisonment.

77 On charge 2 of possession of a drug of dependence, that is 3 months' imprisonment.

78 On charge 3 of possession of a drug of dependence, that is now 6 months' imprisonment.

80 Charge 1 is the base sentence. I direct that 3 months of charge 4 and 1 month of the sentences imposed on charges 2 and 3, be served cumulatively on the sentence imposed on charge 1 and on each other. That makes a total effective sentence of 3 years, 8 months' imprisonment. And I direct that there be a term of 20 months be served before the prisoner becomes eligible for parole.

82 MS FOOT: Your Honour, sorry, was that 20 months non-parole?

85 HER HONOUR: So that is the same as was pronounced earlier.

86 So again, thank you, Ms Foot, for drawing that to my attention, so that I was quickly able to correct that. It makes, as I said, no overall difference, but it was important that each sentence that you get, Mr Mohtadi, reflects appropriately the maximum sentence, as well as all the other factors I need to take into account. So and thank you, Ms Foot, for arranging to come back, as well, of course, as Ms Tricarico.

88 HER HONOUR: Yes, thank you. Mr Mohtadi can be removed again.

[1] Exhibit A and Exhibit B - photographs

[4] Referred to in Exhibit 2 - report of Jeffrey Cummins; counsel requested in writing that the detail not be referred to in open court.

[13] R v Nguyen [2016] VSCA 198