STATE OF TASMANIA v ANTON TONY DOMARECKY 19 JUNE 2020
COMMENTS ON PASSING SENTENCE PEARCE J
Anton Domarecky, you plead guilty to cultivating a controlled plant for sale. Pursuant to s 385A of the Criminal Code, I also agreed to deal with your pleas of guilty to the summary charges of cultivating, possessing and using a controlled plant, using a controlled drug, and two counts of selling a controlled drug. On 21 May 2019 the police searched your home at Riverside. They found two foils respectively containing 0.01 gms and 0.05 gms of heroin. They also found, in various quantities and locations in the house, a total of almost 1.2 kgs of cannabis bud, just over 500 gms of cannabis leaf, 39 small cannabis plants and one cannabis plant in a pot. Most of the cannabis was in the second bedroom, where growing lights for the small plants had been installed. In the garage were six more lights, all suspended from the ceiling by adjustable ropes and pulleys, fans and five ballast boxes. The garage window and roller door were sealed with black plastic so that the lights inside could not be seen from outside. Cannabis stumps and stalks in the garage was further evidence of the cultivation.
When you were interviewed, you admitted that you were a cannabis and heroin user. You said had grown cannabis in the garage under the lights which you had bought for that purpose in October 2018. You purchased about 25 seeds from England in September or October 2018 and planted 13, all of which grew. The cannabis found in the house was the product of the crop which you had harvested about a month earlier. You admitted that the small plants were cuttings which you had taken from the plants as they were growing, and that you thought about 25 of the plants were viable. The 13 plants was the only crop you had produced.
You told the police that you intended to keep about a pound, which was just under half of the cannabis bud, for your own use over the next few months, but that you intended to sell the rest within your circle of acquaintances for about $250 per ounce to help fund your $300 per day heroin habit. You claimed to not have sold any of it before the police intervened. There were two exceptions which give rise to the selling charges based on your admission that at least twice you used a $50 deal of cannabis or heroin to pay your cleaner, something you had also done on other occasions.
You are now 67. You have no prior convictions in Tasmania, but have convictions for drug offences in New South Wales dating back 40 years. For all of that time you have been addicted to heroin. You have been, as your counsel described, a functioning addict, who otherwise pursued normal activities including caring for your elderly parents prior to their death. For you, your addiction is very largely a health problem. However, your involvement with drugs has also led to offending, some of it serious. In 1972 you were put on a two year good behaviour bond for aiding and abetting the importation of cannabis resin. In 1975 you were fined for smoking Indian hemp. In 1985 you were sentenced to good behaviour and fined for using diamorphine. In 1988 you were imprisoned for nine years, with a non-parole period of two and a half years, for conspiracy to import heroin and possessing the prohibited heroin. In 1996 and 1997 you were fined, and then given periodic detention for possessing a prohibited drug. In 2016 you were given community service for supplying a prohibited drug and having goods on your premises which were suspected to be stolen. You were also placed under supervision for two years for drug and alcohol rehabilitation. At the end of 2016 you were sentenced to imprisonment for 12 months, wholly suspended for a year on conditions, for supplying a prohibited drug. The point of this setting out of your record is to make clear that this conduct is not out of character, and that you must have known the implications of what you were doing and the possibility of punishment.
You moved to Tasmania in mid-2018 and purchased a house with money you inherited. Since then you have been a registered client of the opioid pharmacotherapy program, the methadone program. You had been on a similar program in New South Wales for 30 years. The present aim is to achieve total abstinence from illicit drugs. During the period leading up to the police search you were not successful in that aim. You began to use illicit substances again, and your use of heroin escalated. Since then you have made positive efforts to bring your addiction under control. A report from the program indicates positive engagement with the alcohol and drug service, and since June 2019 your screening tests have not detected illicit substances.
There is some ambiguity in the facts about the extent of your cultivation. You admitted to successfully growing 13 cannabis plants. Only a little over 1 kg of cannabis bud was found. Normally the yield from that number of plants would be much more. However, you are not charged with any other crime, and the State does not assert that some other quantity of cannabis was involved. On that basis, the quantity of cannabis is not large. If you had sold about half the amount you had for $250 an ounce it would have returned about $5,000. Your counsel submitted that another person was involved in the cultivation, and you have offered to co-operate with the authorities in relation to that person. Your offer had not, when I was last informed, been taken up, from which I infer that it is regarded as of not significant value. I do not think that this is material to sentence except to the extent that it demonstrates that you wish to demonstrate a responsible attitude. There had been no actual sales other than those to pay your cleaner, and thus no wide dissemination of cannabis into the community. In my view a sentence of imprisonment is warranted. Your record gives the distinct impression that you have taken advantage of the lenience offered to you by various sentencing courts by continuing to offend. You went to time, trouble and expense to cultivate the cannabis involved in these charges. However in your personal circumstances, and in light of the COVID-19 virus, actual imprisonment should be ordered only when no other form of sentencing order is appropriate. I do not see a suspended sentence as appropriate when it has not been a sufficient deterrent in the past. For that reason I ordered an assessment of your suitability for home detention. The report I obtained assessed you as unsuitable because you were seemingly unwilling or unable to comply with the conditions which would apply to you. You do not cook or do your own laundry, and you expressed an inability to use a mobile phone. What you must understand however is that the conditions with which you will be required to comply are onerous for everyone. They are not presented to you as a choice. They involve a degree of punishment. You will be required to find a way to comply. I am satisfied that you have the means and resources to do so. I make clear to you that, in my assessment, and despite the reluctance of Community Corrections about a home detention order, the only appropriate alternative is actual imprisonment. I would wish to avoid that course if at all possible. The added advantage is that you will obtain assistance in your efforts to abstain from illicit drugs and supervision and management of any therapy or treatment you may require.
You are convicted on complaint 32886/19, counts 1, 2, 4, 5, 6 and 7 and the single count on complaint 35929/19. I order that the six lights, six globes, five ballasts and two sets of digital scales listed in Tasmania Police Property Receipt 284703 are forfeited to the State.
I make a home detention order. The operative period of the order is 8 months from today. I specify the premises at which you are to reside during the operational period of the order as [home detention premises]. I order that immediately upon your leaving Court you report to the office of Community Corrections at 111 Cameron Street Launceston, for induction into this order, and a further explanation as to its full terms. The order will be subject to all of the core conditions set out in the Sentencing Act 1997, s 42AD(1). They will be set out in the order that you will be given, but include that you will submit to electronic monitoring and must, during the operational period of the order, if directed to do so by a police officer, probation officer or prescribed officer, submit to a breath test, urine test, or other test, for the presence of an illicit drug. I specify that you must be at the home detention premises at all times unless for a relevant reason. In short, that means that you must be at those premises unless there is a need for urgent medical treatment, there is a serious risk of death or injury, or you already have the approval of a probation officer to be absent. It will be for the probation officer to determine what to approve so as to allow for treatment or rehabilitation, or for any other purpose. The conditions will include that you not commit another offence punishable by imprisonment and that you comply with all directions given to you by your probation officer. I impose special conditions that:
- you must submit to the supervision of a probation officer as required by that officer;
- you must not take any illicit or prohibited substances. Illicit and prohibited substances include any controlled drug as defined by the Misuse of Drugs Act 2001, and any medication containing an opiate, benzodiazepine, bupropion, hydrochloride or pseudoephedrine, unless you provide written evidence from your medical professional that you have been prescribed the relevant medication;
- you must submit to any rehabilitation or treatment program as directed by a probation officer;
- you must submit to a medical, psychological, psychiatric or physical or mental health assessment or treatment as directed by a probation officer;
- you must maintain an active mobile phone service, provide the contact details to Community Corrections and be contactable at all times.
This order comes into effect immediately. You must understand that if you do not comply with the conditions, imprisonment is likely. If you breach the order by committing another offence, the order must be cancelled unless there are exceptional circumstances, and in that case imprisonment would be highly likely.