IN THE COUNTY COURT OF VICTORIA
	Revised
Not Restricted
Suitable for Publication	
AT Melbourne
CRIMINAL DIVISION 
CR-20-00152

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
CRAIG HAMILTON WELLS		

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JUDGE:	HER HONOUR JUDGE CHAMBERS	
WHERE HELD:	Melbourne	
DATE OF HEARING:	2 June, 30 July, 11 August 2021	
DATE OF SENTENCE:	11 August 2021	
CASE MAY BE CITED AS:	DPP v Wells 	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1110		

REASONS FOR SENTENCE
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Subject:	Criminal law - sentence
Catchwords: 	Cultivating a commercial quantity of cannabis – theft of electricity and dealing with property suspected of being proceeds of crime – no prior convictions and previous good character – burden of imprisonment due to COVID-19 and mental health – good prospects of rehabilitation
Legislation Cited:	Crimes Act 1958; Sentencing Act 1991
Cases Cited:	Minh Tri Nguyen v the Queen [2021] VSCA 211; Keane Jones v the Queen [2021] VSCA 114
Sentence:	Total effective sentence of four years, six months' imprisonment with a non-parole period of three years.

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr Y. Hardjadibrata
(Trial and sentence)	Office of Public Prosecutions Victoria	
			
For the Accused	Mr S. Gardner
(Trial and sentence)	Docherty Legal	

HER HONOUR:
Introduction
1	Mr Wells, on 28 April 2021 you were convicted by a jury of 12 of one charge of cultivating a narcotic plant, cannabis, in a commercial quantity between 28 March 2019 and 4 July 2019 (Charge 1) and one charge of theft of electricity between those dates (Charge 2).  You also pleaded guilty to a related summary offence of dealing with property on 4 July 2019, being cash in the sum of $7,005, suspected of being the proceeds of crime (Charge 6).
2	The issue in dispute at trial was confined to the question of whether the prosecution could establish beyond reasonable doubt that you intended to cultivate a commercial quantity of cannabis.  At the outset of the trial, your counsel Mr Gardner confirmed that the alternate charge of cultivation simpliciter and the charge of theft of electricity were not disputed and that you had entered a plea of guilty to those charges at committal.  For reasons relevant to the issue in dispute, you formally entered a plea of not guilty to the charge of theft at trial.  It is accepted, however, that the charge of theft was never disputed by you. 
3	You now fall to be sentenced on a basis consistent with the jury verdict on your trial and the jury's determination that you intended to cultivate no less than a commercial quantity of cannabis.
4	The maximum penalty for the offence of cultivating a commercial quantity of cannabis is 25 years' imprisonment.  The offence of theft carries a maximum penalty of 10 years' imprisonment and the summary offence of dealing in property suspected of being proceeds of crime carries a maximum penalty of two years' imprisonment.
5	You were born on 21 September 1970.  You were 48 years of age at the time of the offending and had no prior criminal history.
Summary of offending
6	I turn now to the facts of this case.
7	In 2019, you lived with your wife and two adult children in the family home in Londey Street, Kangaroo Flat.  Three years earlier, you had purchased another residential property at Longmore Street, Kangaroo Flat through your self-managed superannuation fund. 
8	In late May 2019, Victoria Police commenced an investigation into your activity at the Longmore Street property.  Energy company Powercor Australia confirmed there was high power usage at the property.  On 29 May 2019 police conducted a planned 'drive over' past the Longmore property and observed a green Holden Barina, a vehicle registered in your name, parked in the driveway.
9	At 7.40 am on 4 July 2019 the police executed a search warrant at the Longmore Street property.  The police observed the green Holden Barina and a white Mitsubishi utility, also registered in your name, parked at the front of the property.  You answered the door after police identified themselves and were the only person present at the house. 
10	On searching the property, the police located an extensive hydroponic system established in the house to cultivate cannabis.  In three of the rooms cannabis plants at various stages of development were being grown, with multiple grow lamps, fans, drainage systems and power cables located in each room.  A fourth room contained smaller cannabis plants, or seedlings, being grown in a tent-like structure under grow lamps, as well as fans and irrigation linked to the plants.  Fertiliser and other liquids associated with the cultivation were located in the laundry and bathroom of the property.
11	Following your arrest, the police asked whether there was any cash held at the house.  You told police there was $1,000 in a paper bag in the kitchen, which was then located and seized.  You were asked whether the power to the property had been bypassed.  You told police there was a switch located in the roof cavity above the bathroom but said you were not sure what it did.
12	Police also located $1,000 in cash in the pocket of your trousers and $5 in your wallet.  Once the power to the property had been disconnected for safety purposes, the police continued their search of the property.  At the end of the search the police had seized 88 cannabis plants, a plastic Ziploc bag containing cannabis seeds, nine plastic Ziploc bags containing green vegetable matter and cash totalling $2,005.
13	Later that day the police executed a search warrant at your home address in Londey Street, Kangaroo Flat.  The police found a locked briefcase in the upstairs master bedroom.  You told police it was yours and gave them the code to open the briefcase.  Cash totalling $5,000 was found in the briefcase made up of $50 notes.  This additional amount brought the total cash seized by police to the sum of $7,005.  That is the basis of Charge 6, the summary offence of dealing with property suspected of being proceeds of crime. 
14	You were interviewed by police that day and admitted possessing cannabis plants, saying you thought you had under 60 plants at various stages of maturation.  You explained your reason for growing the cannabis was ‘…to stay alive, to pay back debts'.  I will return to this explanation later in my reasons.
15	The plants seized by police were the subject of forensic investigation by Emily Sowter, a forensic botanist, who confirmed the plants were cannabis L.  Of the mature plants located were two large female cannabis plants, described as 'mother plants' which are used to produce cuttings for propagating new plants.  The total net weight of the all the cannabis plants, excluding roots and soil material, was 74.81 kilograms.  A further 118.9 grams of cannabis seeds and dried cannabis were found in the plastic bags.  This founds Charge 1, cultivation of a narcotic plant in no less than a commercial quantity .
16	Forensic officer Kylie Slattery estimated that of the mature plants located, 20 had been grown for between 14 to 16 weeks following the nursery phase.  Ms Slattery's estimate that the most mature plants of the crop were at least 14 weeks old is the basis upon which you were charged with cultivating a commercial quantity of cannabis between the dates of 28 March 2019 and 4 July 2019. 
17	An investigator from Powercor attended the Longmore Street property on 4 July  to determine the unmetered electrical usage caused by the electrical bypass circuit.  Based on timers set for the equipment connected to the illegal bypass, the investigator calculated that between 28 March 2019 and 4 July 2019 the total unmetered usage at the Longmore Street property was 4981 kilowatts per hour.  Energy Australia used this information to fix its loss at $18,166.87 cents, being the retail rate charged for the electricity that bypassed the meter.  This founds Charge 2, theft of electricity.
Gravity of offending
18	I turn now to the gravity of the offending.
19	Drug cultivation is itself a serious offence.  The offence of cultivating a commercial quantity of cannabis is especially serious as gauged by the maximum penalty of 25 years' imprisonment set by Parliament.
20	A sophisticated and elaborate hydroponic cultivation system had been established at the Longmore Street property.  The electricity had been bypassed and, at retail rates, the sum of $18,166.87 cents had been stolen over the course of the 14 weeks of cultivation.  As at 4 July 2019, a total of 88 cannabis plants were growing in various rooms of the property, weighing a total of 74.81 kilogram, close to three times the commercial quantity of 25 kilograms. 
21	You were the sole owner and occupier of the property.  Only you had a key to the premises.  I find that you were in possession and control of the extensive hydroponic cultivation system and the cannabis plants growing in the house.  I am satisfied you cultivated the cannabis to generate profits to meet your debts arising from drug use and gambling debts.  This much is clear from the answers you gave to investigators in your record of interview and is consistent with the sums of cash totalling $7,005 seized on 4 July 2019, reasonably suspected of being proceeds flowing from your criminal activity.  Your moral culpability for your offending is significant but is also informed by your personal circumstances, to which I now turn.
Personal background and prior good character
22	Mr Wells, you are now 50 years old.  You were born in Exford, Victoria and lived there with your parents and older brother until you turned 10, at which time the family moved to live on a dairy farm in Invergordon, near Shepparton.  You lived there for the remainder of your childhood and adolescent years.  After school you and your brother would work on the farm and ride motorbikes on the property.  You attended various primary schools and then completed Year 11 at Numurkah High School.  You describe your family as close but say that as you grew up your father's temper caused tension in the home and that you feared him at times. 
23	You have demonstrated a strong work ethic throughout your adult life.  After leaving school you worked on the family farm, alongside your father and brother, until it was sold in 1991/92.  You later moved to Moree and then to the Gold Coast, working on a cotton farm and then building boats.  You returned to Victoria when your parents purchased a newsagency in Castlemaine and worked in that business for five years until it was sold.  Your parents then retired and you purchased a home from the proceeds of the sale of the newsagency.
24	You met your wife, Joanne Wells, in 1995 and married in 1997.  You have two adult sons aged 24 and 21 years of age. 
25	In 1997, having married, you and your wife purchased the Pisces Caravan Park in Apollo Bay where you lived and worked over three summers.  Your first son was born during the time.  This was a stressful period for the family.  Running the caravan park was extremely demanding.  After you left that business the family relocated to Castlemaine in 1999, where you worked in a bottle shop for a period before purchasing a newsagency in Bendigo, where you worked until you sold the business in 2009.  Thereafter you and your brother purchased a Wendy's franchise together.  After one year, your brother left the business and you ran it alone for a further five years.  After selling the business you found work at a local IGA store before you started your own lawnmowing business.  That business continued to operate until you were remanded.
26	I received numerous character references on the plea.  These references come from business associates and family friends, many of whom have known you a long time.  In general terms they each attest to a lifetime of hard work, dedication to family and speak of you as a genuine, well-liked and reliable person who is always willing to help others in need.  The character references, particularly those of Ms Cara Hall from the Lead Advisory Group, who has known you over 20 years, and family friend Mr Clinton Francis, who has known you for the past eight years, speak of this offending as being entirely out of character and for which you have expressed your remorse. 
27	As stated, you have no prior convictions.  I am satisfied on the material before me that you are a person who has otherwise been of good character with a strong work ethic and I have taken this into account in sentencing you as a first-time offender.
Psychological material
28	You were assessed for the purposes of the plea by Ms Carla Lechner, clinical psychologist, on 19 May 2021.  You told Ms Lechner that you began using cannabis when you were aged 22, generally smoking around 2 grams per day.  About four years ago you began using methylamphetamine regularly and at other times abused heroin, Valium and Xanax.  You also began drinking in your late 20s and at times were drinking up to half a bottle of vodka a night. 
29	As to your offending, you told Ms Lechner that you began to accumulate both drug and gambling debts.  Your gambling debts arose from playing poker.  As your losses increased, you reported that you played more frequently and with larger amounts of money.  However, you did not disclose the situation you found yourself in to either your wife or to your family.  As your life spiralled out of control you became involved in the offending to meet your debts.  You told the police that you believed 'this was my only way out'.  You told Ms Lechner that you ended up 'living a double life', that 'it was insane [and] had to end'.  When you were interviewed by police on 4 July 2019, you similarly expressed relief that ‘it might be all over… and hopefully I can [get] things back on track'. 
30	In your interview with police and in your assessment with Ms Lechner you were reluctant to speak further about the circumstances leading to the offending, the size of the debt or to whom it was owed.  You told police that you could not disclose this information and that you needed 'to protect [your] family'.  There is, however, no evidence before me about the role others may have played in your drug cultivation activity and accordingly I am unable to make any finding in that regard.
31	Having undertaken a number of assessments outlined in her report dated 19 May 2021, Ms Lechner expressed the following opinion regarding your psychological state:
Mr Wells has no prior history of offending.  He presents with symptoms of an addictive personality style, this resulting in cannabis, stimulant and alcohol use disorder - now in remission, in addition to a gambling disorder (all DSM 5 diagnoses).  He is currently presenting with symptoms of major depressive disorder (DSM 5) and whilst this is partly reactive to his recent incarceration, his history is strongly suggestive of a long-term mood disorder emanating from childhood years that has been consistently masked by his drug use.
32	Although Ms Lechner reports that your drug addiction would undoubtedly have impacted on your judgement and decision-making, and is therefore of some relevance to me in mitigation of sentence, there is no basis for me to find that your long-standing addiction or depressive disorders were causally connected to your drug cultivation activity so as to reduce your moral culpability for your offending.  Nonetheless, I accept that your offending was not motivated by greed.  Rather, it was due to the plight you found yourself in by reason of your addictions that you turned to this offending, believing you had no other way out of your predicament.  Your drug and gambling disorders are therefore relevant context to your offending and significantly to my assessment of your prospects of rehabilitation and the need for the sentence to specifically deter you from future offending.
33	Following your arrest you were bailed on strict conditions and have complied with all conditions of bail since April 2019.  The delay of two years has been a period of uncertainty for you, but there was no delay in your case occasioned by COVID-19 and the delay was not inordinate.  The delay itself does not warrant any significant mitigation in sentence, but it has been an opportunity for you to demonstrate your prospects of rehabilitation.  You have done this in a number of ways.
34	You entered a detoxification program in Bendigo in September 2019 when your alcohol abuse intensified after you stopped using ice.  You subsequently completed four sessions of drug and alcohol counselling and relapse prevention between March and April 2020 with Bendigo Community Health.  Mr Mark Halloran, alcohol and drug counsellor and care coordinator, reports that you engaged well in these sessions.  In addition to the drug counselling you undertook in March 2020 you report that you have abstained from drug use since being bailed, other than early relapses.  This is consistent with urine drug screens tendered on your plea. 
35	You have no subsequent or pending matters.  You have expressed remorse and shame for your conduct, particularly for the impact on your family.  In Ms Lechner's opinion, you expressed genuine regret for your offending and your apprehension and remand have acted 'as a much needed wake-up call' for you. Since being remanded you have taken the opportunities that have presented to complete a number of courses to advance your rehabilitation.  Having regard to your past history of hard work and the strong family support available to you, including the ongoing and demonstrable support of your wife and sons, I find that you have very good prospects of rehabilitation provided you continue to receive relapse prevention counselling for both drug and gambling addictions and therapeutic support for your mental health.  I have every reason to believe you will continue to engage in those programs.
Other sentencing considerations
36	I now turn to other sentencing considerations.
37	Since begin in custody you have been subject to 14 days' emergency management.  To manage the COVID-19 pandemic, all new prisoners face 14 days' quarantine and in-person visits are suspended at present.  Rehabilitation programs are limited and most counselling is provided online.  I have taken into account the burden of imprisonment during the COVID-19 pandemic, which I accept makes conditions in custody more onerous than usual, and that isolation from your family will be particularly difficult for you as someone experiencing custody for the first time.
38	In custody, Ms Lechner reports that you are experiencing 'severe psychological distress [and] extreme depression'.  In Ms Lechner's opinion, this response is in part reactive to being remanded but, 'may also be a manifestation of long-standing mood problems that were masked by your addiction'.  Ms Lechner states that a ‘lengthy period in custody is likely to have deleterious impact' on your mental health.  Your antidepressant medication has been increased since your remand.  I accept that your mental health condition will create an added burden of imprisonment beyond that experienced by those without your long-standing depressive illness and I have also taken this into account in moderating all components of the sentence I have imposed. 
39	The plea was adjourned for you to obtain material regarding the impact of the forfeiture of the Longmore and Londey Street properties under the Confiscation Act and to advise the court of the outcome of any application for exclusion.  On the return date, Mr Gardner confirmed the defence no longer rely on the forfeiture of the properties in mitigation of sentence.  In the absence of any material regarding the financial impact of any forfeiture order, I have not had regard to this matter in sentencing you.
40	I turn now to other relevant sentencing considerations.  Given the gravity of your offending and noting the prevalence of illegal drug cultivation more broadly, the sentencing considerations of general deterrence, denunciation and just punishment assume greater significance.  This is particularly the case here, where the quantity of cannabis cultivated was close to three times the statutory commercial quantity.  My sentence must deter others from similar offending. 
41	Your counsel submitted that specific deterrence should be moderated in this case given your absence of priors, good prospects of rehabilitation and the shame and burden you carry from witnessing the impact of your offending on your family.  I accept these factors are all relevant.  There was some acceptance of criminal responsibility for your offending, but it was not complete.  I find that specific deterrence has a role to play in my sentence although far less significant than that of general deterrence, for the reasons advanced by Mr Gardner.
42	I have considered the current sentencing practices for this offence and the table of comparable cases provided by the prosecution, which provide some guidance.  The defence also referred me to the decision of the Court of Appeal in Keane Jones v the Queen which I have also reviewed.  As always every case turns on its own facts.  I have also taken into account the recent Court of Appeal decision in Minh Tri Nguyen v The Queen, in which Maxwell P and Sifris JA reviewed current sentencing practices for commercial quantity cultivation, stating as follows:
'… it is clear that despite repeated indications from this Court that sentences for this offence needed to increase, sentencing practice has remained essentially unchanged.  Concern was first expressed about the state of current sentencing for commercial quantity cultivation as long ago as 2006, in Director of Public Prosecutions v Duong, when the Director called for increased sentences given what was said to be the increased prevalence of offending of this kind.  In 2010, in Nguyen v The Queen, the Court (Maxwell P, with whom Buchanan JA agreed) questioned the adequacy of current sentencing for the offence, in light of the maximum penalty of 25 years' imprisonment, stating this was "a matter of first importance".
'More significantly, in 2016, in Nguyen v The Queen, the Court upheld a submission by the Director that sentences for offences of commercial quantity cultivation of "mid-range seriousness" did not reflect the objective seriousness of the offending, and needed to be increased'.
43	Cultivating a commercial quantity of drugs is a category 2 offence.  In the circumstances of this case a term of immediate imprisonment is warranted.  This was accepted on your behalf; however, it was also submitted that your personal circumstances warrant the imposition of a shorter than usual or atypical non-parole period.  In my view, however, other than the matters in moderation to which I have referred, there are no specific or overwhelming factors in mitigation that I consider justify a departure from the usual course in fixing a head sentence and a non-parole period.
44	Having regard to the maximum penalties imposed by Parliament, and taking into account all other matters to which I have referred, I now sentence you as follows:
45	On Charge 1 you are convicted and sentenced to four years and three months' imprisonment.
46	On Charge 2 you are convicted and sentenced to 10 months' imprisonment.
47	On Charge 6 you are convicted and sentenced to four months' imprisonment.
48	Charge 1 is the base sentence.  I consider that some cumulation is warranted in respect of the charge of theft but do so having regard to the sentencing principle of totality and the fact this charge was never challenged by you.  I order that two months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.  I order that the sentence imposed on Charge 6 be served concurrently with the sentences imposed on Charges 1 and 2.
49	This makes a total effective sentence of four years, five months' imprisonment.  I fix a non-parole period of three years before you are eligible for parole. 
50	You have served 107 days by way of pre-sentence detention and I declare that period as time already served under this sentence.
51	I make the forfeiture and disposal orders sought by the prosecution, noting that they are not opposed.
52	Do counsel require any clarification in relation to the sentence?
53	MR GARDNER:  No, Your Honour.
54	HER HONOUR:  Mr Gardner, do you want an opportunity to speak with your client following the hearing?
55	MR GARDNER:  Yes, just briefly, if I may, that would be of assistance, thank you.
56	HER HONOUR:  Certainly.  All right, we'll adjourn the court.  Thank you.
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