New South Wales District Court CITATION: R v Geoffrey John KELLY [2009] NSWDC 285 JUDGMENT DATE: 24 July 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Non-parole period of 15 months. Balance of term of 15 months. CATCHWORDS: CRIMINAL LAW - sentence - knowingly taking part in the cultivation of a prohibited plant in the large commercial quantity - prior criminal history - significant time period between commission of offence and arrest - time spent by offender rehabilitating himself - question of whether sentence should be served by way of periodic detention LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 s 23(2)(a) CASES CITED: R v Valensise [2006] NSWCCA 315 PARTIES: R Geoffrey John Kelly FILE NUMBER(S): 2009/11/0137 SOLICITORS: Mr Vautin for the Director of Public Prosecutions Mr Whitby for Mr Kelly JUDGMENT 1. This is a case where the offender committed a very serious crime. He was not arrested at the time. He spent the next five or six years completely rehabilitating himself. Then he was arrested and now faces sentence for the very serious crime which he committed some years ago. 2. Mr Whitby who appears for the offender, Mr Geoffrey John Kelly, argues that the penalty which I should impose should be part time gaol. Mr Vautin who appears for the Director of Public Prosecutions argues that the penalty must be full-time gaol. Hence the main issue that I have to deal with in sentencing Mr Kelly is whether the way in which he serves a custodial sentence is full-time or part-time. 3. With all sentencing it is most important to commence with a brief description of the nature of the crime. It is important for judges and magistrates when sentencing offenders to not underestimate the seriousness of the criminal behaviour for which they are sentencing offenders. 4. Mr Kelly has been charged with the offence of knowingly taking part in the cultivation of a prohibited plant in the large commercial quantity. This is an offence against s 23(2)(a) of the Drugs Misuse and Trafficking Act 1985. At the time it carried a maximum penalty of twenty five years imprisonment or a substantial fine. The specific allegation is that the offence occurred between 1 September 2002 and 16 March 2003 at Fifield, and that the number of plants was 6,795. To this charge Mr Kelly has pleaded guilty at what Mr Vautin agrees was the earliest available opportunity. 5. On 15 March 2003 the police raided two properties in the Fifield area. That is about ninety kilometres north west of Parkes. They found two areas and a total number of 6,765 cannabis plants growing. They were mature. They found an elaborate irrigation system which was sourced from the adjoining property. They also found living quarters, tents for accommodation, a kitchen, a toilet and shower structures set up together with buildings for processing the harvested cannabis. They found some articles which prompted their investigations in nearby shops and they were able to trace the fact that Mr Kelly was responsible for purchasing some of the items and involved in the cultivation of the plantation. 6. One of the properties was owned by a man named Guiseppe Mammone. The other property was controlled by Mr Mammone's nephew, Blaz Skorin. Both of these men were arrested on 17 December 2003 and charged with the same offence as Mr Kelly. Another man named Ignazio Mangano was charged on 21 January 2004 for his involvement. The police believe that Mammone, Skorin and Mangano were the three principal offenders. Police identified another suspect named John Ramsey. In January 2004 John Ramsey admitted his involvement as a "crop sitter". Mr Ramsey nominated Mr Kelly and another offender Gino Valensise as fellow crop sitters at one of the properties. Mr Kelly said that Mr Valensise was going to be paid more than himself and Mr Kelly because Mr Valensise was Italian and that part of his role was to supervise them. Mr Ramsey told police that he had left on 15 March 2003 when he heard the police helicopter and that Mr Kelly had left at the same time. That departure is confirmed by Mr Kelly in these proceedings. 7. Mr Ramsey said that he believed that he and Mr Kelly were to receive a hundred thousand dollars for their involvement in the cultivation of the cannabis. 8. A warrant was taken out for Mr Kelly's arrest but the police were unable to locate him. He committed a minor driving offence on 6 September 2008 when he was detected and arrested on this charge. 9. I should immediately say that Mr Whitby called his client to give sworn evidence. As part of that evidence his client said that his expectation was that he would receive forty thousand dollars or something in the region of forty thousand dollars for his involvement. I am not satisfied beyond reasonable doubt that the amount he expected was one hundred thousand dollars and I accept Mr Kelly's evidence that the amount he expected was in the region of forty thousand dollars. Mr Whitby have I made a mistake? WHITBY: I'm sorry to interrupt your Honour. HIS HONOUR: No go ahead. WHITBY: It's my understanding that the maximum penalty for this offence is 20 years your Honour not 25 years. HIS HONOUR: Did I say 25. WHITBY: You did. HIS HONOUR: Thank you for correcting me I am reading from the Crown sentence summary and I am certainly of the mind that it is 20 years. I know that and so thank you for drawing that - I have fallen foul of the Court of Criminal Appeal once before for doing that - so I appreciate you drawing that to my attention. 10. In light of what Mr Whitby says I emphasise that I am sentencing Mr Kelly upon the basis that the maximum penalty is twenty years imprisonment and not any other maximum. 11. Mr Kelly was bailed after his arrest and has spent no time in custody relevant to these offences. He has a criminal history: they mostly comprise traffic offences which are of no consequence in my opinion for my sentencing of Mr Kelly on this occasion. However there is one offence committed in 1990 of two counts of supplying a prohibited drug. He received a sentence of two years periodic detention for that offence. I will return to that matter when considering his character later in my remarks. 12. It is important to note that all of the co-offenders who were charged were sentenced in the District Court. Mr Vautin points out that the most serious offender was Mr Mammone followed by Mr Mangano and Mr Skorin. All of those co-offenders, after they were sentenced by the District Court, were required to undergo Crown appeals to the Court of Criminal Appeal. In each of the four instances the Crown appeals were successful. 13. In Mr Skorin's case he received a penalty in the District Court of two years and two months with a non-parole period of one year. That was increased by the Court of Criminal Appeal to four years and six months with a non-parole period of two years and nine months. In Mr Mangano's instance he was sentenced by the District Court judge to two years imprisonment to be served by way of periodic detention. There was a specified non-parole period of one year and two months. The Court of Criminal Appeal increased that sentence to one of four years and five months full-time custody specifying a non-parole period of two years and five months. In Mr Mammone's case he was sentenced by a District Court judge to five years and two months with a non-parole period of two years and six months. The Court of Criminal Appeal increased his sentence to five years and eight months with a non-parole period of three years and six months. In Mr Valensise's case he was sentenced to a penalty of two years and five months with a non-parole period of eight months. That was increased by the Court of Criminal Appeal to three years and four months with a non-parole period of two years. 14. As I said Mr Whitby called his client to give evidence. I will refer to his evidence as well as the evidence of a witness Kim Hudson. I accept and make findings of fact in accordance with that evidence except where I may indicate otherwise. 15. Mr Kelly has just turned forty two. He had a very disrupted and dysfunctional childhood. His mother was a drug addict and his father died when he was fourteen. He became a State ward for some six years. He started on illegal drugs at the age of eighteen and by 2002, the date that this offence commenced, he was daily taking amphetamines intravenously. He mixed with other drug users. He incurred some debts related to his drug use and was, as he said, feeling pressure from the dealers who supplied him with the drugs. He was approached by Mr Skorin to work on the plantation and accepted that offer in light of his financial circumstances. He was promised that he would be fixed up so far as money was concerned which would cover his debts. He thought his debts amounted to some ten to fifteen thousand dollars. 16. As I said - and I accept - he expected to receive something in the region of forty thousand dollars overall. He would receive food, accommodation and a supply of amphetamines in exchange for his labour on the plantation and his job was to look after the plants. His immediate boss was Gino Valensise. Mr Valensise held the money. Mr Valensise was the liaison between Mr Kelly and other workers on the plantation and what Mr Kelly referred to as the big bosses. The bosses gave instructions to Mr Valensise who passed them on to the workers including Mr Kelly. 17. When he heard the helicopters indicating the imminent arrival of the police he fled to Sydney. He there secured some employment. In addition -either before or after these offences I am not quite sure - he commenced living in the home of Mrs Elisabeth Lapham. He had separate accommodation at her premises. He made a decision within the first year after abandoning the property to abandon as well his lifestyle of drug use. It took him, he said, a couple of months. He did not get any professional help nor attend any rehabilitation centre. His efforts were successful. He has now been drug free for some five years. Part of exhibit 1 tendered by Mr Whitby are pathology reports indicating that for some months up until 20 June 2009 his tests for urine drug screen tests were all negative. He for the last five years has had permanent employment with S and G Automotive Repairs as a car detailer earning some four hundred and fifty to five hundred dollars a week. 18. He has remained living at the rear of Mrs Lapham's house. The relationship with the Lapham family has developed over the years. One of Mrs Lapham's daughters he has a good friendship with as well as Mrs Lapham's granddaughter named Paris, the daughter of Mrs Lapham's daughter with whom Mr Kelly is friends. Paris is aged presently about eleven and Mr Kelly is very much a father figure in her life. That evidence is confirmed by another daughter of Mrs Lapham's, Ms Kim Hudson, who gave evidence before me that Mr Kelly is regarded very highly within her family and indeed is treated like a family member. She was aware of his previous drug habit and his previous drug conviction and regards him as a different person now. 19. Returning to Mr Kelly's evidence he has said before me that he regretted his involvement altogether in the crime and expressed the understanding that cannabis itself can be so dangerous when it is used by school aged children as well, of course, by adults. He accepted specifically responsibility for his actions in evidence before me. He said that he did not know that the crop was worth some thirteen million dollars which is the assertion by the police, nor that the number of plants involved was specifically the number I have referred to. But as he frankly acknowledged, when he arrived at the plantation he soon found out about the extent of the crop. He thought that he had arrived at the plantation in October or November 2002 and left in the middle of March 2003, just before the police arrived, hence he was there some five or six months. 20. He has recently made fresh contact with his birth mother which is a significant development so far as his personal growth is concerned. Part of exhibit 1 was a substantial and impressive body of references tendered by Mr Whitby on behalf of his client. It is obvious - and I find - that Mr Kelly is very highly regarded as an individual by persons of substance who have in many instances known him for very many years. In addition those referees all acknowledge the fact that they understand the offence that he has been charged with and has pleaded guilty to. 21. Ms Hudson who gave evidence before me provided one of the references. Elaborating on Mr Kelly's role in her mother's life, she said that he had become like a son to her. In addition Mr Kelly had a good relationship with Ms Hudson's brother who was in need of the trust and support of another adult. Ms Hudson speaks highly of Mr Kelly's involvement with all her family and in particular with her mother, her brother and her niece, Paris. Ms Hudson's observation sums up many of the referees when she said that seeing herself as a fairly astute judge of character, her "respect for Geoff's caring and generous nature is also confirmed by the time he spends with my brother, who has had a nervous breakdown." Other referees speak of Mr Kelly's dependability and reliability as well as his commitment to employment and strong work ethic. 22. Returning to the prior conviction for two counts of supplying drugs in 1990 Mr Whitby pointed out, and I accept, that they were the result of two charges of deemed supply for amphetamines and cannabis. Mr Whitby explained that he relies upon the priors to support the proposition that his client had become significantly addicted to and driven by drugs over the years leading up to the commission of this offence. I accept that submission. Insofar as the impact of the prior convictions is concerned on his good character, I make these findings. Although Mr Kelly does not have an unblemished character - because of his prior significant conviction and also because of his admitted lifestyle being addicted to illegal drugs - it is obvious from the references which I have read that he maintained a high standard of behaviour in other areas of his life and was very highly regarded by persons who knew him, some of whom knew about his problem with drug addiction. I do regard him as having some significant claim to good character insofar as his sentence proceedings are concerned. 23. I also accept that he has demonstrated genuine remorse in the terms specified by s 21A(3)(i) in that he has accepted responsibility for his actions and acknowledged the damage which his actions could cause. 24. I should have made reference also to exhibit B which was a helpful pre-sentence report prepared by an officer of the Probation and Parole Service. It confirmed the evidence which Mr Kelly gave about his drug addicted lifestyle as a younger man. The officer observed that Mr Kelly was unlikely to require or benefit from supervision. Because of his efforts at rehabilitation being so successful there there were no what are described as "ongoing criminogenic factors" requiring supervision. The officer assessed him as suitable for a Community Service Order although there was no available developmental program and also assessed him as suitable for a Periodic Detention Order. 25. I turn now to the helpful submissions which have been advanced both by Mr Whitby and Mr Vautin. I have explained at the beginning of these remarks on sentence where the issue is between them. Mr Vautin acknowledged, as I have already said, the plea of guilty which should attract the maximum discount of twenty five per cent. He submitted that the degree of Mr Kelly's involvement in the offending was at about the same level as Mr Valensise although he noted that Mr Kelly was lower in the order of employment on the plantation than Mr Valensise. I will return to that point shortly. 26. Mr Vautin significantly submitted that although Mr Kelly might be regarded as at the bottom level of workers nevertheless the offence was a very serious one. That is a matter which has been emphasised by the Court of Criminal Appeal when it was dealing with the other offenders. In Mr Valensise's case for example (which is R v Valensise [2006] NSWCCA 315), in a judgment delivered by Grove J, with whom Kirby and Hislop JJ agreed, his Honour observed that the crop was "a major criminal enterprise and the actual crop exceeded by a multiple of six of that required to constitute a large commercial quantity." Hence Mr Vautin's submission about the offence being a very serious one. Mr Vautin accepted that Mr Kelly was a labourer rather than a manager. Although drawing my attention to Mr Ramsey's estimate a return of some one hundred thousand dollars, I am not satisfied beyond reasonable doubt that Mr Kelly expected anything more than forty thousand dollars. 27 Mr Vautin advanced the proposition that I should find as an aggravating factor under s 21A(2)(i) that the offence was committed without regard for public safety. He referred to a passage in the judgment of R v Way (2004) 60 NSWLR 168, in the judgment of the Chief Justice at [172] where his Honour referred to that factor. The application of s 21A has, it seems to me, developed so far as the Court of Criminal Appeal is concerned over the years since its judgment in Way. I would now regard - and in this sense I accept Mr Whitby's submission - the fact that the cultivation of cannabis obviously involves a risk to public health as a factor which is taken into account by Parliament in fixing the maximum penalty of twenty years. To my mind there is not present in this case any particular factor which would elevate this crime so far as that particular aggravating aspect of s 21A(2) is concerned above the degree of seriousness which is already reflected by the maximum penalty. 28. When I asked Mr Vautin about his position on whether a Periodic Detenition Order would be falling into appellable error he at first hesitated in suggesting that it would involve appellable error. But after I allowed him time over the morning tea adjournment to reflect and obtain instructions or to consult, he returned with the submission that a sentence of periodic detention would involve appellable error. That is for two reasons. The first was the seriousness of the offence and the second was the importance of general deterrence as a significant factor in cases such as cannabis plantations which are lucrative businesses with windfall profits. 29. Mr Whitby, in his submissions about the seriousness of the offence, accepted that it was obviously a very serious offence but emphasised his client's role as not being involved in the planning and that he had become involved when it was already a going concern. I accept those submissions and it is reflected in his client's job so far as his position of employment on the plantation. Mr Whitby emphasised the success of his client's efforts at rehabilitation. He had become drug free by his own efforts and had secured employment, had renewed contact with his birth mother and become part of the Lapham family. Mr Whitby submitted that his client's subjective features were so strong that it reduced the need for general deterrence which would be not as great as it would be normally. He drew my attention to the statistics produced by the New South Wales Judicial Commission which demonstrate that for this offence at the relevant time some over twenty five per cent of offenders did not receive a sentence of full-time custody. He, in asking for a custodial sentence to be served by way of periodic detention, emphasised the remarkable success which his client had made in achieving his rehabilitation all by himself. 30. Both Mr Vautin and Mr Whitby referred to the obviously significant delay between the offending behaviour and the arrest of Mr Kelly. Mr Vautin acknowledged fairly that Mr Kelly had used that time to advance his rehabilitation. Mr Whitby pointed out that the police could have found his client at any time because he had a driver's licence and was not very hard to detect. He was not in hiding but living in Sydney. 31. In urging me to impose a sentence involving periodic detention Mr Whitby also drew my attention to the lower role which his client played in the enterprise and the tragedy of his client's efforts at rehabilitation being set back by a penalty of full-time imprisonment. 32. The Court of Criminal Appeal's judgment in Mr Valensise's case is in my opinion very important in my fixing a sentence for Mr Kelly. Both Mr Vautin and Mr Whitby agree that Mr Valensise's role was more significant than Mr Kelly's. Mr Whitby points out a number of distinguishing ways in which Mr Valensise was even more important than his client. In particular Mr Valensise was his client's immediate supervisor who provided instructions to him and was the liaison with the higher echelon in the syndicate. It was Mr Valensise who also supplied, or rather who held, the money. Those distinguishing features rendered Mr Kelly's involvement as less serious than Mr Valensise's in Mr Whitby's submission. In addition Mr Whitby focused on the penalty which was imposed by the Court of Criminal Appeal and drew my attention to the fact that the penalty reflected three offences which were before the Court on a Form 1 for Mr Valensise to be taken into account. Those three offences, which were three charges of deemed supply of prohibited drugs, were described by Grove J as being "far from trivial". One of them in fact was a very significant amount of the drug known as MDMA, namely eighty seven grams. 33. I need to also examine one of Mr Whitby's submissions about the co-offender Mr Ramsey. Mr Ramsey was not charged. He was given either an indemnity or an undertaking by the Attorney-General in return for his assistance to the authorities in prosecuting the other offenders. Mr Whitby argued that Mr Ramsey was at about the same level of Mr Kelly. That is a proposition that does not appear to be in dispute. Mr Whitby argued that in effect Mr Ramsey had received a one hundred per cent discount in his penalty whereas his client could at the most expect a discount of some twenty five per cent. Referring to the authorities concerning disparity between sentences which should be approximately equal Mr Whitby said that his client would understandably feel some grievance if his penalty were significantly different. However I do not accept that submission. In my opinion the principle of parity applies between sentenced offenders who are dealt with by the judicial system and it does not apply in the case of co-offenders who do not come within the judicial system for sentencing because of a previous decision by the executive. That is the case with Mr Ramsey; he has not been the subject of any sentence by a judge which can be compared with his sentence. 34. The Court of Criminal Appeal in re-sentencing Mr Valensise assessed an appropriate sentence as four years and six months after, as Grove J said, allowing for "the restraint to be exercised when proceeding to re-sentence after successful Crown Appeal." Mr Valensise was the beneficiary of a discount of twenty five per cent for a plea at the earliest available opportunity so the Court of Criminal Appeal fixed his final sentence as three years and four months. 35. As I say I regard the Court of Criminal Appeal's sentencing of Mr Valensise as an important guideline for me in sentencing Mr Kelly because Mr Valensise is reasonably close to Mr Kelly and the hierarchy. When I say reasonably close I do take into account the distinguishing features which Mr Whitby has referred to and which I accept. His client was lower in the echelon but the distance between him and Mr Valensise is less than between him and the other offenders. In addition it needs to be borne in mind that in Mr Valensise's case the Court of Criminal Appeal found that there was no significant record of previous convictions. There was evidence of remorse and rehabilitation and a finding that Mr Valensise was unlikely to re-offend. In addition Mr Valensise had experienced a long period between his arrest and rehabilitation and had achieved rehabilitation. In very many respects the personal circumstances of Mr Valensise were similar to Mr Kelly's personal circumstances. The offence committed by Mr Kelly was, I accept, less objectively serious than Mr Valensise's offence. In addition Mr Kelly is not being sentenced in a way where I have to take into account any other offences of the very serious kind which were taken into account in Mr Valensise's case. 36. Nevertheless this is a very serious offence. The objective seriousness of the offence is obvious but is reflected in the fact that Mr Kelly chose to involve himself for some five or six months in cultivating a crop of illegal and dangerous drugs where he knew that the crop was of a significant size and which I find, consistently with Grove J's finding, was some six times the amount required to constitute a large commercial quantity. To my mind given the objective seriousness of this offence and given the penalty imposed upon Mr Valensise by the Court of Criminal Appeal, despite its distinguishing features I do not regard a sentence of periodic detention as appropriate for this case. In that respect I accept Mr Vautin's submission that I would fall into appellable error were I to impose a sentence of custody involving periodic detention which is acknowledged to constitute, as part of it, a significant element of leniency. 37. I regard as an appropriate starting point a penalty of three years and six months bearing in mind that Mr Kelly's case is less serious than Mr Valensise's case and does not contain the Form 1 matters. Given that Mr Kelly has pleaded guilty I will allow him, as acknowledged, the full discount of twenty five per cent. Hence I would reduce the penalty from three years and six months to two years and six months. 38. Mr Whitby submits that there are special circumstances which would justify me in adjusting the standard ratio of seventy five per cent between the non-parole period and the full term of the sentence. Mr Vautin acknowledges the force of that submission. I find that there are special circumstances in this case which warrant me departing from the normal ratio. Mr Kelly needs to be encouraged in his efforts at rehabilitation: it is important for him to return to the family environment and hopefully to employment and to recommence his life after serving the penalty for this very serious crime. It is to be hoped, and I expect, that the strong relationship which he has with the Lapham family will be maintained during the time that he will have to spend in full-time custody. I have erred on the side of generosity in my opinion and I am prepared to assess the special circumstances as warranting a fifty per cent ratio between the non-parole period and the parole period. 39. Mr Kelly if you would stand up now I am going to sentence you. Mr Kelly I formally convict you of the offence of between 1 September 2002 and 16 March 2003 taking part in the cultivation knowingly of a prohibited plant namely cannabis being not less than a large commercial quantity and I set a non-parole period of fifteen months to date from today 24 July 2009 and to expire on 23 October 2010. The balance of the term will be fifteen months from 24 October 2010 to 23 January 2011. Under s 50 of the Crimes (Sentencing Procedure) Act 1999 I direct your release on parole on 23 October 2010. Now have a seat Mr Kelly. Mr Vautin and Mr Whitby first the figures - whether I've got the sums right - and secondly whether there should be any conditions of the parole. Take your time. WHITBY: I believe the mathematics is correct your Honour. HIS HONOUR: The mathematics is correct okay. Now I'm not sure that it's a case where I should put him under supervision. The Probation and Parole Service doesn't think so. What do you both think Mr Whitby. WHITBY: Well the difficulty is your Honour, the practicality of it is that they're strapped for cash and that's the fact of the matter. HIS HONOUR: They are. WHITBY: They are, like we all are in this State sadly. And they're saying look don't bother us unless we can do something, that's my feedback from-- HIS HONOUR: That's their message in their report. WHITBY: Feedback from people in the community talking to Probation and Parole Officers which I do on a regular basis is that look unless we can really do something, unless he's got a real problem that we can address we don't want to know about it. That's what they're saying to-- HIS HONOUR: And I think they've said as much in the report. They've commended him for his rehabilitation and he's done it all by himself. And they don't see really any need for supervision, so I'm disinclined to order supervision. WHITBY: Thank you your Honour. HIS HONOUR; Mr Vautin. VAUTIN: Your Honour I don't wish to be heard on that. Could I check the end date your Honour. Was that the 23 January-- HIS HONOUR: 2011. VAUTIN: Shouldn't that be 2012 your Honour. HIS HONOUR: You are right. You are quite right. 40. So I amend the balance of the term of the sentence it will be from 24 October 2010 to 23 January 2012. Now is there anything else before I discharge my-- WHITBY: I just wanted to be certain of one thing your Honour. Under section 50 I think your Honour's ordered Mr Kelly's release on 23 October 2010. HIS HONOUR; Correct. WHITBY: So it's not a matter that has to go, see it's under three years. HIS HONOUR: No I order it and that's what I've done. Yes. 41. Mr Kelly I have sentenced you to full-time imprisonment, you are going to go into custody today I'm afraid. Frankly I don't like doing that, Mr Whitby had a lot of good points to make but I regard it as my duty because of the reasons which I have just given. I also add that it seems if I didn't sentence you otherwise, there would have been a good chance that the Court of Criminal Appeal would have. But nevertheless it's not their fault, they provide me with guidance and I follow what they say and it is appropriate. The authorities regard it as appropriate that you should go to gaol full-time and that is what I have done. You will go to gaol today, the non-parole period expires in fifteen months and on 23 October 2010 you will be released on parole. I have ordered that, that's my order. And then you are on parole for another fifteen months from 24 October 2010 to 23 January 2012. During parole like any parolee you've got to behave yourself or you'll be breached and you could end up serving the full sentence. Your overall sentence is therefore thirty months, two and a half years. Do you understand that? All right okay. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.