R v Casey [2016] VCC 1997

County Court of Victoria|2016-12-20|Before: Ms J

1 Ian Casey, on 19 September 2016, you were found guilty by a jury of one charge of cultivating a narcotic plant in a commercial quantity.

2 You have also pleaded guilty to theft of electricity and possessing a firearm whilst prohibited; two charges on a separate indictment. You did this on

3 In short, on 7 August 2015, police executed a search warrant at your rural home address in Yan Yean. Located in the premises was a sophisticated hydroponic set up. An air rifle was also located in the kitchen next to the fridge. There was an electrical bypass set up also. Cannabis was growing in two rooms of the house. There were 34 plants in total and the total weight was 34.03 kilograms. The commercial quantity is of course 25 kilograms.

4 When the police arrived you told them there were drugs in the house and that only you lived there. You told them where the bypass was and told them where the "slug gun" was. You admitted not having a current firearms' licence, said you had the air rifle for about 4 weeks and that it did not work.

6 The only issue in the trial was whether the prosecution could prove that you intended to grow a commercial quantity of cannabis.

7 You must benefit from your pleas of guilty to theft and the firearms charges. Although you did not plead guilty to the commercial cultivation charge you acknowledged your guilt of cultivating. Accordingly, I consider you must benefit from your cooperation generally and the confined manner in which the trial was conducted.

8 The theft of electricity is a component of the cultivation. The bypass was confined to the electricity to service the crop and as pleaded, it is limited to a single day. No quantum was alleged. I intend to impose an aggregate penalty for the charges of commercial cultivation and theft.

9 You gave evidence before me that the "slug gun" was to be used to deter birds from leaving droppings on your car.

10 Although the charge of being a prohibited person in possession of a firearm is a serious charge, I intend to impose a modest penalty.

11 I will make the Disposal and Forfeiture Orders sought.

12 An important issue on the plea concerned the purpose for which the crop was grown.

13 In evidence before me, you maintained that it was grown for the sole purpose of extracting cannabis oil to be used solely by you for chronic pain relief.

14 A number of documents were tendered on your behalf, namely, written plea submissions, a report from Dr Andrews, a Medical Oncologist, a report from your general practitioner, Dr Murphy, a psychological report from Shireen Dass and some front pages from the Victorian Law Reform Commission Report (VLRC) on Medicinal Cannabis (August 2015).

15 The prosecution tendered a report from Dr Morris Odell, a forensic physician from the Victorian Institute of Forensic Medicine. Neither party referred to this report and its contents are of little assistance. Dr Odell did acknowledge that cannabis may be effective as an aid to the treatment of chronically painful conditions.

16 The extract from the VLRC Report was relied upon to support the legitimacy of the proposition that cannabis can be used for medicinal purposes. I was also advised that legislation yet to be proclaimed, will permit such use for particular medical conditions under particular circumstances. It was submitted that once the legislation becomes operative you may well be a person who is permitted to use cannabis for pain relief under the legislation.

17 I accept that cannabis can be used for pain management and that you may well be a beneficiary of the pending legislation.

18 Your general practitioner noted your long history of severe back pain consequent upon spinal surgery and spinal fusion many years ago. He noted you have used various medications and therapies over the years without great success. In addition, he wrote that you have a very long history of depression and mood swings which have aggravated your chronic pain condition. He referred to recurrent falls and their impact as well gout. He referred to your marijuana use for pain.

19 Dr Andrews saw you at a Melanoma Clinic in March this year. This was an annual review after melanoma excision in 2012.

20 Dr Andrews referred to a range of medical conditions you suffer including, severe back problems, hypertension, depression, neck pain, rectal bleeding, dizziness, syncopal or balance episodes, chronic tiredness, headaches, lack of libido, possible cardiac problems and likely obstructive sleep apnoea.

21 Ms Dass, with whom you completed 10 sessions, focused on your depression and anxiety and what might be done to address these problems. She thought you presented with symptoms consistent with a diagnosis of depression. She said you reported that your depressive symptoms had recently increased in frequency, duration an intensity

22 Your background was briefly sketched by your counsel. You are 59 and were born in Scotland. You came to Australia in your mid-20s. Your back problems began in 1987 when you suffered a serious workplace accident.

23 You have received WorkCare payments and have worked as a security guard in the late 1990's.

24 You have a criminal history. In particular you were convicted of armed robbery and false imprisonment in 2002 and sentenced to a total effective term of seven years imprisonment with a non-parole period of five years. You were fined for handling stolen goods in 2014.

25 You have been on the disability pension since being released from that prison term.

26 You were married recently to a woman with whom your formed a relationship after the current offending.

27 In evidence before me you said you grew the cannabis to obtain cannabis oil to relieve your chronic pain. You said you had tried various medications and only cannabis seemed to give you satisfaction. You have only used cannabis for pain. Other strong medications make you feel strange. You explained something of the history of your back treatment and how you were mismanaged. You also spoke of your history of falls and the failure to identify the cause. You spoke of being prescribed drugs you should not have been. All this was done to explain your lack of trust in the medical profession.

28 You said you initially smoked cannabis but then began taking it in semi liquid form. You were buying it, but at about $100 per week it was too expensive.

29 You said the hydroponic system was installed by a man named Matthew Watt, who was the son of your former partner. You had named Mr Watt at committal to police as a person they should watch. In effect, you said Watt set up and installed the system, provided you with instructions on how to operate it and was to be the person who would harvest the crop and extract the oil for your benefit. You intended to do research about oil extraction but had not got around to it during the eight weeks the crop was present. You said Watt used to attend regularly, about every second day, to make sure the chemicals were right and so on, but you had not seen or even heard from him after the raid by police. You thought he lived in Wallan. You also claimed Watt set up the bypass.

30 You said the relationship with Watt's mother ended at the time of the raid and that you have had no contact with Watt since that day.

31 Police enquiries, after you mentioned Watt at committal and again during the lunch break last Tuesday, failed to identify or locate Watt. The prosecution said that they did not intend to make further enquiries even though you had identified Watt as a son of your former partner. I stated that in these circumstances I was prepared to accept that Watt existed, you having sworn on oath and it being a matter I thought relatively easy to confirm or disprove.

32 Nevertheless, I consider your account to be inherently implausible. Even recognising the relationship between you and Watt, it is not credible that he would set up the growing system, provide all the equipment, chemicals and plants at his own expense, attend regularly, take responsibility for harvesting the crop and producing the cannabis oil for the sole purpose of providing medicinal cannabis oil for you. The size of the crop is substantial. It is very difficult to accept that you would have made no enquiries yourself about what was needed or how it was to be undertaken. You said you thought Watt did all this because of your relationship with his mother and yet this relationship suddenly ended at the time of the police raid and then Watt has absolutely no further contact with you.

33 However, this does not mean that I am satisfied your motivation for being involved in the enterprise was not related to obtaining cannabis oil. I am prepared to accept that this was, at least, part of your motivation. On the other hand it seems compelling to me that someone must have been concerned to make a profit.

34 The absence of sales paraphernalia at your residence is important but not determinative of your claim of proposed self-use of the whole crop.

35 In the end, I am really not sure precisely what role you played.

36 I was referred to Sentencing Snapshots by the prosecution. Both Ivanoff [2015] VSCA 26 and Nguyen [2016] VSCA 198 were referred to. On your behalf it was submitted that I should release you on a CCO. The prosecution submitted some term of immediate imprisonment must be imposed whatever view of the facts I took. However, the prosecution also submitted that your case should be categorised as low to mid-range.

37 In my view, some period of immediate imprisonment must be imposed.

38 Having said this I recognise the difficulty that prison presents for a person with the constellation of medical conditions you have.

39 I had you assessed to determine your suitability for release on a Community Correction Order. Unsurprisingly, you were found suitable. It seems you could undertake unpaid community work consisting of light duties despite your "ongoing medical issues". The assessor also thought you would benefit from a drug treatment condition, a medical treatment condition, a mental health treatment condition as well as supervision.

40 As noted in discussion immediately before delivering these reasons, it seems to me that the choice is between a period of imprisonment combined with a CCO or a term of imprisonment with a non-parole period.

41 Submissions were made this morning with Ms Swiney submitting that in short a period of imprisonment combined with a CCO should be imposed.

42 Whilst acknowledging the punitive quality or component that a CCO can have, I think a term of imprisonment with benefit of a non-parole period is appropriate.

43 In my view such a penalty better reflects the overall criminality given the findings I have made.

44 I intend to moderate both the term of imprisonment and particularly the non-parole period.

45 On the charge of being a prohibited person possessing a firearm, I accept that the gun had nothing to do with protecting the crop and was to be used to scare birds and was not operative. On this charge you will be convicted and fined $300.

46 On the charge of commercial cultivation and theft you will be convicted of both charges and sentenced to an aggregate term of 21 months imprisonment. I fix ten months as the term you must serve before being eligible for release on parole.

47 HIS HONOUR: Is there anything I have overlooked that counsel can identify?

48 MR GOODENOUGH: No Your Honour, Your Honour has made the ancillary orders.

51 HIS HONOUR: You'll have to go into custody now Mr Casey.

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