Director of Public Prosecutions v Gurappaji

[2017] VCC 689

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-15-00487

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAVITHA GURAPPAJI

---

JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2017, 26 May 2017
DATE OF SENTENCE:	26 May 2017
CASE MAY BE CITED AS:	DPP v Gurappaji
MEDIUM NEUTRAL CITATION:	[2017] VCC 689

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:   Cultivations of a commercial quantity of narcotic plants (cannabis) – possession of a drug of dependence (cannabis)

Legislation Cited:  Sentencing Act 1991 (Vic)

Cases Cited:            

Sentence:  30 months' imprisonment with a non-parole period of 24 months – fine of $777.30

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Fisher	Office of Public Prosecutions
For the Accused	Mr J Sutton	SDR Law

HER HONOUR:

1       Kavitha Gurappaji, you have pleaded guilty to one charge of cultivation of a commercial quantity of narcotic plants, namely cannabis, for which the maximum penalty is 25 years’ imprisonment. The crop was located at a property owned by you at 230 East Boundary Road, Bentleigh. You have also pleaded guilty to one charge of possession of a drug of dependence, namely a small quantity of cannabis, for which the maximum penalty is not more than 5 penalty units.

2       Your co-offender, Amrit Singh, was charged with the same offences and pleaded guilty on the first day of trial, 18 January 2016. On 18 March 2016, he was sentenced to two years and six months’ imprisonment with a non-parole period of one year and eight months on the cultivation charge, and fined $2000 for the possession charge.

3       The circumstances of your offending are set out in the summary of prosecution opening on the plea which was tendered today as Exhibit 2, and I sentence you on the basis of the facts contained in that document. I acknowledge Mr Sutton’s indication, given the procedural history of the matter, that you do not accept this summary. For the sake of completeness, I include here paragraphs 2-15 of that document.

4       At about 8:30 on the morning of 31 October 2014, police executed a search warrant at 230 Boundary Road, East Bentleigh. When they arrived, police found you in the front yard of the house. You stated that you did not have keys or access to the house.

5       Police entered the house through a small bathroom window at the back, however, they were unable to proceed any further at that point due to an extensive hydroponic set up. A short time later, police forced entry to the house through the front door. They then saw that every room of the house had been extensively set up for the hydroponic cultivation and drying of cannabis.

6       A search of the house revealed a total of 287 plants at different stages of the life cycle including 97 seedlings. A drying room was also located which contained 28.31 kilograms of dried cannabis laid out on large tables. This gave rise to Charge 1 of Cultivating a Commercial Quantity of Cannabis. 

7       The hydroponic set up consisted of 118 light shrouds and globes, 122 electrical transformers, an irrigation system, power boards, air ducts, gloves, bags of soil and two 20 litre containers of liquid fertiliser. There was also an electrical bypass in place that bypassed the electricity meter and prevented it from reading the large electrical load that was drawn by the hydroponic system.

8       A letter from South East Water bearing the date 14 October 2014 and addressed to you was found inside the house. Inside your handbag police discovered a key to the front door of the house.

9       Police searched two sheds at the rear of the property that had been set up as sleeping quarters. Inside the sheds, they located a number of items including:

i.A Statutory Declaration purporting to indicate that Amritpal Singh owes $30,000 to Kavitha Gurappaji;

ii.An unsigned Statutory Declaration indicating that you and Amritpal Singh worked at a farm owned by you and that you lived at 230 East Boundary Road, Bentleigh East;

iii.A copy of a Certificate of Marriage between Amrit Pal Singh and Kavitha Siddiah Gurappaji dated 3 January 2013;

iv.A copy of a passport in the name of Kavitha Gurappaji with handwritten notes on the back;

v.A Westpac Bank Statement addressed to “The Director” of Lali Transport LTC Pty Ltd at 230 East Boundary Road, Bentleigh East;

vi.Assorted papers addressed to Amritpal Bajwa, Amrit Singh and Amritpal Singh at 230 East Boundary Road, Bentleigh East; and

vii.Approximately 0.1 grams of dried cannabis mixed with unidentified plant material.

10      Upon conducting a pat down search of you, police found 3.5 grams of dried cannabis. This gave rise to Charge 2, Possess Cannabis. The cannabis and a Samsung mobile telephone were seized.

11      Police spoke to Kathryn Girolami, who was your next door neighbour.  Ms Girolami said that she had lived as your neighbour for four years and you and Mr Singh have always lived next door. She said that in around August she saw an Indian looking male with long hair at the house and heard some construction noises such as sawing and hammering.

12      Ms Girolami also said that she did not see any vehicles that appeared to be associated with any tradesman and that the people moving about the house with wood or tools were always of Indian appearance. She never saw anyone of Chinese or Vietnamese appearance at the property and regularly observed a white van and a silver Subaru parked out the front.

13      You were arrested and taken to the Narre Warren Police Station where you participated in a formal Record of Interview.

14      During the interview, you said a number of things, including that:

i.You lived at the back of 230 East Boundary Road, Bentleigh East;

ii.You had tenants in your house in Bentleigh East;

iii.You had a “smoke” once in a while because you were in pain;

iv.The 2.5 grams of cannabis police found in your pocket was for your knee;

v.Your mobile telephone number was one you had had for the last 13 to 14 years;

vi.You were the only one who lived at the Bentleigh East address and that Mr Singh moved out weeks ago;

vii.You and Mr Singh were married but it is not a “marriage marriage”;

viii.There is no lease in place for the Bentleigh East house because the tenants did not return the original but they did pay you $3000;

ix.Some Chinese people who do not speak English leased the house in Bentleigh East and that is why you did not have their telephone numbers;

x.You communicated with the Chinese tenants through their youngest son, Ting;

xi.You had the telephone number of Ting’s older brother, known as “Uncle”, on your telephone under the letter “U”;

xii.Uncle’s wife is called “Mi”;

xiii.Uncle, Mi, the two brothers, the two wives and someone else live at the house but you did not know what their role is; and

xiv.You were in India from May 2014 until June 2014.

15      You were unable to provide any lease or tenant details for the Bentleigh East property that could be substantiated by the police.

16      You provided mobile telephone numbers for “U” and “Mi” as listed on your mobile telephone.  When police subsequently called both numbers there was no answer.  The number purportedly belonging to “Mi” was registered to a Dave Parkin in Ashley Street, West Footscray.  Police made enquiries at that address and spoke to Aaron McGuire who had lived there for five years.  McGuire did not recognise the telephone number nor did he know a David Parkin.

17      The number in your telephone for “U” was registered to a Thuy Thi Phung in Barkly Street, West Footscray.  Police made enquiries at that address and spoke to three people who provided Korean identification.  None of them knew anything about an address in Bentleigh East or the name Thuy Thi Phung.

18      I sentence you on the basis that you share responsibility for the offending with your co-offender.

19      This matter has a very long procedural history, which is helpfully recorded in the chronology annexed to the prosecution opening. You pleaded guilty to these charges on the first day of your trial, 18 January 2016. Thereafter you applied to change your plea to one of not guilty. Your application to do so was refused. Your request for certification for an interlocutory appeal against this refusal was also refused. By October 2016, your counsel confirmed that the plea hearing would proceed, but on plea hearing dates of 25 November 2016, 17 March and 2 May 2017, after brief submissions, further adjournments were sought on your behalf for various reasons. The plea hearing concluded today.

20      Today, your counsel and the prosecution each tendered written submissions[1]. Your counsel tendered a supplementary psychiatric report of Dr Redmond dated 12 May 2017[2] who notes that your mental state has deteriorated greatly since last November, that you are in the early stages of a Major Depressive Episode, and who expresses “great concern” about your current condition, which requires treatment. On previous plea hearing dates, your counsel also tendered a number of references[3], certificates of recognition[4], and a list of courses you have completed while in custody[5], as well as a report of Dr Redmond dated 17 November 2016[6]. I have considered all of this material. 

[1] Exhibit 1; Exhibit F

[2] Exhibit E

[3] Exhibits A1-A4

[4] Exhibit C

[5] Exhibit D

[6] Exhibit B

21      You have been in custody for 938 days, not including today. The thrust of the submissions of both prosecution and defence counsel was that, notwithstanding that you have relevant prior convictions (2009 – traffick cannabis; 2012, 2014- possess cannabis), were older than Amrit Singh, and, for the period during which you sought to withdraw your guilty plea, lacked remorse for your offending, the application of relevant sentencing principles, including those of parity, would favour the imposition of a sentence, on charge 1, of a term of imprisonment equivalent to time served. I agree that this is so.

22      On charge 1, you are convicted and sentenced to a term of imprisonment of 30 months with a non-parole period of 24 months. You have served 938 days of pre-sentence detention not including today, and I direct that 938 days pre-sentence detention be entered into the records of the court and deducted administratively as time already served.

23      On charge 2, you are convicted and sentenced to a fine of $777.30

24 Pursuant to s.6AAA of the Sentencing Act 1991 (Vic) I indicate that, but for your plea of guilty, I would have imposed upon you for charge 1 a sentence of three years and two months’ imprisonment with a non-parole period of two years and four months. On charge 2, I would have imposed a fine of 5 penalty units.

25      Disposal orders were sought by the prosecution and not opposed by you, and I will sign those orders.