STATE OF TASMANIA v PHILIP MARK OVEREEM 28 SEPTEMBER 2020
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Overeem, the defendant, has pleaded guilty to one count of trafficking in a controlled substance, namely cannabis, between 22 July 2017 and 22 January 2020. I am also dealing with his pleas of guilty to a number of summary offences, being possess and use a controlled drug, using a controlled plant, possessing a thing used for the administration of a controlled drug, and the possession of a firearm and ammunition when not the holder of a licence. The charges arose out of a police search of the defendant’s property on 22 January 2020. The most prominent discovery was an underground bunker which was about 40 metres from the main residence. That bunker was made up of a buried shipping container that had been covered with dirt and felled trees. The entry was constructed of formed concrete and the entry was secured by a locked metal door. There was a further door to the shipping container itself, also locked by way of a padlock. Within that bunker police founds two grow tents, each of which contained six cannabis plants being grown hydroponically. One lot of plants was reaching maturity and had formed heads, while the second lot of plants was immature. Within the bunker police found equipment and consumables related to the cultivation of cannabis. Further searching of the property was carried out in relation to a separate building, and within the house itself. In the separate building, a quantity of drying cannabis was found. Of particular interest was a device called a “table top tumble trimmer” which was able to process relatively large quantities of wet or dry cannabis per hour. Small quantities of cannabis were found, mostly in glass jars, along with a snap lock bag containing .7 grams of MDMA. In the house further quantities of processed cannabis leaf were found, together with a smoking device. Police also found a hothouse/garden area which contained some cannabis plants. That area was monitored by a camera. Two further small compounds containing cannabis were located, secreted within dense vegetation. About 1.5 kilometres west of the main house was a tree stump within which police found a .303 rifle, 96 rounds of ammunition and two snap lock bags each containing 1 gram of MDMA. As to the cannabis, the total found amounted to 29 cannabis plants, as well as 254 grams of loose cannabis. There was a total of 2.7 grams of MDMA and a total of $2,840 in cash, that cash having been located in various parts of the building and house. When interviewed, the defendant made admissions. He said he had started growing cannabis in the bunker about 2½ years previously. He said he grew three cycles per year, harvesting close to 450 grams per cycle. He had used the compounds for growing for about six years, and the hothouse/garden area for a few years. He told police that he was “a huge cannabis smoker”, smoking on a daily basis. He allowed friend to smoke as much as they liked but did not accept payment. He admitted the MDMA was his, as was the rifle and ammunition, saying that the rifle had been given to him about three or four years previously by someone who had since died. He had fired it a few years ago before stashing it The trafficking charge is put on the basis of possession of the cannabis found during the search with the intention to sell at least part of it, and on the basis that the defendant had in the past, within the particularised period, made actual sales. The Crown says the defendant would have harvested three cycles of cannabis annually, producing at least 1.3kg of cannabis per year. Assuming a total yield of about 3.2kg, and assuming actual sale of it all, the value is $33,600. That relates only to the cannabis from the bunker.
The defendant is now 40 years old. He has a recorded history of offending, including relevant matters. There are minor possession convictions in April 2005. In 2014, he was convicted of a summary assault along with using a prohibited substances, possessing a controlled plant and, more relevantly, cultivating a prohibited plant. In June the following year there was a further conviction of possessing a controlled plant. I have been provided with a number of medical and psychological reports, included in which is a comprehensive psychological report from Mr Cummins dated 6 July 2020. Relevant personal circumstances are as follows. The defendant was married but separated in January of this year. He has two children under the age of 10. The separation was acrimonious. Predating the police search were offences of assault and a breach of a family violence order which were dealt with in July of this year, but with no immediate penalty being imposed. The defendant seems to have worked until about six years ago when he suffered a back injury. He has been in receipt of benefits since. Significantly, he also has a serious heart problem. A cardiologist’s report describes a congenital bicuspid severely leaking aortic valve that has required three major operations over the last 18 years. The defendant has a pacemaker. The condition remains serious and it is possible he will need further urgent surgery within the next few months. The psychologist, Mr Cummins, says that the defendant is suffering from a major depressive disorder of at least moderate severity and associated with anxiety and stress. That disorder is most probably triggered by concerns regarding the chronic and potentially life-threatening condition. Mr Cummins says the symptomology has been exacerbated by dependencies on cannabis and alcohol. There is no doubt the defendant was a heavy cannabis user, that use increasing over recent years due to self-medication in relation to the back injury. I am told that he is now exploring an avenue for medicinal cannabis on a prescribed basis. I was told that the cannabis growing was to satisfy the defendant’s own substantial habit, although it is accepted that he bartered some and gave some away. In the end, the Crown did not dispute that assertion and I proceed on the basis of the deemed intention to sell part of what was found, most likely by way of bartering, and past instances of bartering. As to the cash, the defendant told the police he had recently received $3,000 from his father, and it was hidden away from his wife. He does not however dispute the amount should be forfeited.
Mr Overeem, Parliament has made cannabis a controlled substance. As a controlled substance, commercial dealings – actual or intended – have to be treated seriously. There are good reasons for its prohibition. It has a range of adverse effects on mental and physical health. Commercial dealings in it need to be discouraged. You set up a sophisticated and extensive growing operation. I take into account the limited extent to which you have sold cannabis in the past. By the plea, you accept that some of what police found was to be sold. You have prior convictions, and although for non-commercial drug offences, they will have to be taken into account. You are entitled to credit for your plea of guilty and co-operation. Imprisonment is appropriate to mark the seriousness of your conduct, but in all of the circumstances, I will suspend the execution of the whole of the term. You are convicted of all matters and in relation to the drug offences you are sentenced to ten months’ imprisonment the execution of which is wholly suspended on condition you commit no offence punishable by imprisonment for a period of two years. I make a community corrections order for 18 months, special conditions of which are that you be under the supervision of a probation officer during that time, that you undergo assessment and treatment for drug dependency – including the EQUIPS program – as directed by a probation officer, and you must submit to medical, psychological or psychiatric assessment or treatment as directed. In relation to the two firearms offences, you will be fined the sum of $500 to be paid within 28 days. I order the forfeiture of the sum of $2,840 seized by police, and forfeiture of the items referred to in paragraph 31(a) of the Crown statement of facts filed on 10 September 2020.