Director of Public Prosecutions v Chaibon
[2022] VCC 1029
•29 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
CR-21-00363
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TONY CHAIBON |
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| JUDGE: | Her Honour Judge Hawkins |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 June 2022 |
| DATE OF SENTENCE: | 29 June 2022 |
| CASE MAY BE CITED AS: | DPP v CHAIBON |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 1029 |
REASONS FOR SENTENCE
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Subject: Criminal Law - SENTENCING
Catchwords: Early plea of guilty – cultivation of a narcotic plant (Cannabis L) – theft – trafficking in a drug of dependence (Cannabis L) – relevant priors – admissions – poor prospects of rehabilitation – high moral culpability – high risk of re-offending – COVID 19
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic) s72B, s71AC; Sentencing Act 1991 (Vic) s6AAA
Cases Cited:Worboyes v the Queen [2021] VSCA 169; Nguyen v The Queen [2021] VSCA 346; R v Verdins & Ors [2007] VSCA 102
Sentence:Total effective sentence eight months' imprisonment and a two year Community Corrections Order – section 6AAA declaration of 18 months’ imprisonment with a non-parole period of 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Fleming | Office of Public Prosecutions |
| For the Accused | Mr C. Nikakis | Haines & Polites Legal Practitioners |
HER HONOUR:
1Tony Chaibon, you have pleaded guilty to:
(a) One charge of cultivation of a narcotic plant, namely Cannabis L, which carries a maximum penalty of 15 years' imprisonment;[1]
(b) One charge of theft, which carries a maximum penalty of 10 years' imprisonment;[2] and
(c) One charge of trafficking in a drug of dependence, namely Cannabis L, which carries maximum penalty of 15 years' imprisonment.[3]
[1]Drugs, Poisons and Controlled Substances Act 1981 (Vic), s72B
[2]Ibid
[3]Ibid s71AC
2You have also admitted your prior criminal history.[4]
[4]Exhibit B
Circumstances of Offending
3The circumstances of your offending are set out in a Summary of Prosecution Opening of Plea dated 23 May 2022,[5] the accuracy of which you have accepted through your counsel. I do note that today the amount of electricity said to be stolen has been reduced significantly to the total amount of $3832.47. That figure differs from the Summary of Prosecution Opening for Plea which you have accepted.
[5]Exhibit A
4On 23 July 2020. police executed search warrants at a Reservoir property owned by your sister, Ms Ferail Quenette.
5Your partner and then aged 15 year old daughter were present during the search.
6Upon entry into the property, the police smelt a strong cannabis odour and located three rooms which had been utilised to grow cannabis plants. These rooms were set up with lights, shrouds, pots and chemicals, whilst the rest of the property was being used as a residential home by you.
7In total, police seized 80 plants from these rooms which when combined weighed 38.76 kilograms. 9 plants were in the first room, 9 in the second and 62 in the third. The plants were at various stages of maturity. This conduct relates to Charge 1, that of cultivate cannabis to which you have pleaded guilty.
8During the search, police also seized:
(a) A calendar with a cannabis grow schedule located on the external facing drawer of the second room;
(b) Two snap lock bags containing green vegetable matter from a make-up case in a bedroom;
(c) From the master bedroom:
(i)One snap lock bag containing green vegetable matter from a box on the floor;
(ii)An Apple iPhone in a black case on top of the bedside table; and
(iii)Foil containing seedlings. These were later confirmed not to be cannabis.
9The quantities of dried and drying cannabis that police found at the property weighed a total of 2.25 kilograms.
10A technician attended the property and removed an electrical bypass which was connected to the mains cable. You were the registered electricity account holder during the time that the bypass was installed at the Reservoir property and over the relevant offending period. In total you pleaded guilty to stealing $3,832.47 worth of electricity. That conduct relates to Charge 2 of theft.
Interview & Further Investigation
11During the search you were arrested and given your caution and rights. You told the police that you sold cannabis for $200 per ounce to help pay for rent.
12When you were interviewed you stated:[6]
[6]Exhibit A
(a) That when police had attended the property, they found some marijuana plants in three different rooms;
(b) You were not sure how many plants there were. You said there were “about 12 plants and not sure how many seedlings”, probably 10 to 20, which you did not count, just planted. When it was put to you that there were about 70 plants you replied, “I didn't know there was 70 but there could have been”.
(c) You said, “I bought four plants from some people and I'm - I'm a gardener and I know how to make one plant into - make it into 50 plants if I want to, you know. Started all from the same plant”.
(d) There was dried cannabis in the room where the cannabis was growing and you dry up buds “as long as it takes”. When shown a picture of the cannabis cuttings you advised “[t]hey’ve been drying out for a few days”.
(e) You watered the plants by hand.
(f) You said you had been doing it for about a year for personal use by you and your partner, and to give or sell to three or four friends with cancer to help them out.
(g) The money you received from selling the cannabis helps you to pay bills and rent and for your daughter's education.
(h) You said you normally charge $200 per ounce, though you had not sold any of this current crop. This admission relates to Charge 3, trafficking cannabis, to which you have pleaded guilty.
(i) You went on to say you suspected that the power did not go through the normal meter but did not know how the bypass came to be installed. The lights were already there when you moved in so you thought you would just give it a go.
(j) You said you had been living at the property for about a year and a half to two years.
(k) You also said that the items found in both bedrooms belong to you, including a glass pipe, which you used to smoke ice occasionally.
(l) You said you had been smoking cannabis since you were very young and you mainly smoke it nowadays, “because of it's a good painkiller and I got arthritis. And I - without - if I don't have a smoke, I get a lot of pain and my body kind of seizes, you know. And I smoke it for - yes, to get rid of the pain”.
(m) You said “…that's my reason for growing it is to help me move - get rid of the pain” and “I wasn't growing a whole heap of it to make me rich or anything”.
(n) You also said “I'm sorry I - that's happened, you know. But I don't know what to say”.
13You made full and frank disclosures in your record of interview.
Criminal History
14You have prior convictions for low level drug and dishonesty offending going back to 1977. You were first fined for cultivating Indian Hemp in 1986, placed on a bond for cultivation of cannabis in 1992, and were fined again in 2000. Your history of possessing cannabis has continued with your most recent fine recorded in 2019. I note that you have not been sentenced to a term of imprisonment for over 40 years.
Nature & Gravity of Offending
15A commercial quantity of cannabis is 25 kilograms or over, or 100 plants. The quantity in your case is 38.76 kilograms of plants and 2.2 kilograms of dried cannabis in addition, which is more than a commercial quantity. However, you are charged with trafficking simpliciter,[7] based on a possession for sale and cultivation pursuant to section 72B, rather than cultivation of a commercial quantity of narcotic plants. I note that the prosecution case for trafficking is based on your admissions during your record of interview and that it is not alleged that you had sold any of your current crop.
[7]Drugs, Poisons and Controlled Substances Act 1981 (Vic), s71AC
16Your cultivation used a relatively sophisticated set-up with an electrical bypass and hydroponic system, including overhead lighting and fertiliser. This was not a simple backyard vegetable garden crop. It occupied three rooms of the house where you were residing. The set-up would have involved some degree of careful planning and the sophistication involved elevates the objective seriousness of your offending. The duration of your offending was approximately three months and you were the principal of the enterprise.
17Mr Nikakis submitted on your behalf that your offending was primarily to provide cannabis to yourself and some friends. However, you admit in your record of interview that you sold cannabis to pay your bills. It is therefore clear,
18Mr Chaibon, that your motivation was for both personal use and financial gain.
19You remain unremorseful for your offending. However, you did make frank admissions at the time of your arrest and I note that you have entered a plea of guilty in respect of this matter.
20The prosecution submits that your conduct falls within the lower end of the range of objective gravity for trafficking offences of this kind. I also note that the amount of electricity stolen alleged against you has been reduced significantly from that which was originally alleged and is now $3,832.47. Overall, given the above factors, I conclude that the gravity of your offending is low to mid-range.
Moral Culpability
21Given your relevant criminal history, your significant role in the present enterprise and the fact that you were motivated by personal use and financial gain, your moral culpability for this offending is high.
Personal Circumstances
22Mr Chaibon, you are now aged 63 years and were 61 years old at the time of your offending. You were then residing in the Reservoir address with your partner and 15 year old daughter.
23As a result of your arrest your daughter now resides, it appears, with her aunt and your mother. She has provided two references in support of you, dated 10 July 2021[8] and in identical terms dated 14 June 2022.[9] These documents confirm that you cared well for her, made sure she attended school and that she wanted to keep in daily contact with you.
[8]Exhibit D3
[9]Exhibit D9
24Your sister, Ms Ferail Quenette, also provided two references dated 7 July 2021,[10] and in identical words dated 4 June 2022.[11] I note that she gave evidence and was cross-examined in court today. She describes your offending as out of character and stresses that you were the main day time carer for your 93 year old mother. She emphasises that if you were to be incarcerated there would be no one to provide this care and that your mother would be significantly impacted.
[10]Exhibit D4
[11]Exhibit D8
25Dr Ashraf Saddik, certified on 17 September 2021 that you are a long term regular patient with neck pain and that you find cannabis useful for pain control and insomnia. He confirms that you have been stable on narcotic replacement therapy.[12]
[12]Exhibit D6
26Ms Sarah Kelly, physiotherapist, confirmed on 6 October 2016 that you were under management of acute and chronic neck pain and stiffness.[13]
[13]Exhibit D7
27I note that no up to date medical material was filed on your behalf with the court and I therefore cannot have any specific regard to your current medical condition. I have limited regard the previous material filed.
28You came to Australia from Lebanon with your parents and siblings in 1971. You finished school at age 15 and started work. At 23, you enrolled in Burnley Horticultural College and worked in related occupations until your forced retirement approximately five years ago. Your employers included councils and the Melbourne Zoo.
29You live alone in a house owned by your sister, Ms Ferail Quenette, and you are in receipt of a carer's pension and said to have negligible personal assets.
Sentencing Considerations & Matters in Mitigation
30You pleaded guilty at the earliest opportunity following the resolution of this matter. I also note your frank admissions made at the time of your arrest. In doing so you avoided the need for a trial, saved witnesses the stress of giving evidence in court and avoided the use of public resources that would have otherwise been spent in conducting a trial. I take the utilitarian value of your plea of guilty into account.
31The Court of Appeal has recognised the adverse effects of the COVID-19 pandemic upon the justice system. In Worboyes v The Queen[14] the Court of Appeal said that “a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances”.[15] “A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.”[16] Accordingly, you are entitled to receive an actual and palpable amelioration of your sentence.
[14][2021] VSCA 169
[15]Ibid at [35]
[16]Ibid
32Mr Chaibon, given your age and history of drug related offending dating back to the 1980s, I have to conclude that your prospects of rehabilitation now are poor. I do note that medicinal cannabis is now available for legal prescription in Victoria and provides a legal alternative to illegal cultivation as a pain management mechanism.
33Unless you find an alternative legal pain management regime, your risk of continuing to offend in this way, given your history, is high.
34General deterrence is the paramount sentencing purpose for drug offences such as cultivation and trafficking. As such, factors that would generally be regarded as mitigatory bear relatively less weight for drug offences than for other offences.
35I note this particularly in regard to the effect that your incarceration may have on your family members. It is a very sad consequence of the actions that you have chosen to embark. Specific deterrence is also relevant as non-custodial sentences imposed upon you in the past have not deterred you from reoffending.
36Current sentencing practices are but one factor to take into account in determining the appropriate and just sentence in all of the circumstances of your case.
37The prosecution have referred to the case of Nguyen v The Queen,[17] in which the offender pleaded guilty to one charge of cultivating a similar quantity of cannabis to you. Those plants were also grown hydroponically in a house with a similar set-up involving an electrical bypass. Mr Nguyen was 29 years old and developed PTSD after a prison assault and had no prior convictions. His involvement was limited to a few days and he was sentenced to 18 months' imprisonment with a non-parole period of 12 months. His co-offender, who was considered the principal offender, pleaded guilty to one charge of cultivate a commercial quantity of cannabis, and received a sentence of two years and six months' imprisonment with a non-parole period of 20 months.
[17][2021] VSCA 346
38The Court of Appeal refused leave to appeal on the basis of manifest excess and explained:
“… as this Court explained in Director of Public Prosecutions v Russell, general deterrence is an empty sentencing objective unless those who might contemplate offending of the relevant kind are made aware of the penal consequences which will follow if they do.”[18]
[18]Ibid at [40]
39Mr Nikakis on your behalf submits that a non-custodial disposition is appropriate given your significant caring responsibilities. I have heard about those from your sister. However, given the state of the evidence about those responsibilities, I cannot be truly satisfied of the extent of your obligations beyond the assistance in general that you provide to your mother. Nor is there evidence to support any applications of the principles in Verdins' case[19] or in general to principles of family hardship.
[19]R v Verdins & Ors [2007] VSCA 102
40Accordingly, given the nature of your offending, Mr Chaibon, general deterrence is the paramount sentencing consideration in your case and in light of your role in the well set-up offending with your relevant prior convictions and lack of mitigatory evidence, I conclude that a term of imprisonment is warranted in all the circumstances.
Sentence
Imprisonment
41Tony Chaibon, I sentence you as follows:
42On Charge 1, cultivation of cannabis, you are convicted and sentenced to eight months' imprisonment. This is the base sentence;
43On Charge 2, theft, you are convicted and sentenced to three months' imprisonment;
44On Charge 3, trafficking cannabis, you are convicted and sentenced to six months' imprisonment.
45These terms are to be served concurrently. That is the total effective sentence is eight months' imprisonment.
Community Corrections Order
46For these three crimes you have been assessed as suitable to be placed on a community corrections order, and accordingly I also sentence you to a community corrections order for two years to commence upon your release from custody. You will be under the supervision of a Corrections officer, you will be treated and assessed for drug abuse and medicinally assessed for treatment and pain management given your ongoing physical concerns. You will also attend the court regularly for judicial monitoring by me. This community corrections order is designed to address the specific points raised by Mr Nikakis about assisting your general recovery.
47There are conditions that apply to every community corrections order and they apply to you. I will go through these:
(a) Most importantly, you must not commit any further offences for which you could be imprisoned during the course of this community corrections order. So you cannot commit any offences which include, obviously, the cultivation of cannabis or any other. If you do you will breach this order and may be resentenced, and that may include further gaol time;
(b) You must inform the Office of Corrections of any change of address and any change of employment should you get any employment;
(c) You must report to the Office of Corrections at Broadmeadows Community Corrections Service within two clear days of your release from custody;
(d) You cannot leave Victoria without the permission from Office of Corrections;
(e) Corrections may also require you to undergo or provide photographs or be photographed; and
(f) You also have to accept visits from the Office of Corrections and abide by all lawful instructions and directions from the Office of Corrections.
48Do you understand these conditions, Mr Chaibon?
49OFFENDER: Yes.
50HER HONOUR: And do you consent to being placed on a community corrections order?
51MR NIKAKIS: He agrees. He just said that he agrees to the CCO, Your Honour.
52HER HONOUR: All right. Could you get him to sign it then, please?
53MR NIKAKIS: Thank you.
Section 6AAA Declaration
54Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I indicate that had you pleaded not guilty and been found guilty after trial I would have sentenced you to a term of 18 months' imprisonment with a non-parole period of 12 months.
Ancillary Orders
55I make the disposal order sought by consent.
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