Director of Public Prosecutions v Ho

[2018] VCC 292

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02170

DIRECTOR OF PUBLIC PROSECUTIONS

v

THE SY HO

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2018
DATE OF SENTENCE:	14 March 2018
CASE MAY BE CITED AS:	DPP v Ho
MEDIUM NEUTRAL CITATION:	[2018] VCC 292

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Harrison	Office of Public Prosecutions.
For the Accused	Mr S. Andrianakis	Holmes Solicitors

HIS HONOUR:

1The Sy Ho, on 1 August 2017, you were arrested at a house in St Albans where you were living.  A week earlier you had come to police attention for a driving offence in the vicinity of another house in North Caulfield.  Ultimately the police searched both houses.  At the St Albans house there were three cannabis plants.  At the North Caulfield premises there were 104 cannabis plants.  The total weight of all cannabis plants was 21.94 kilograms.  You also had $16,000 in your possession at the house at St Albans. 

2You have pleaded guilty to a charge of cultivation of not less than a commercial quantity of cannabis and knowingly deal with the proceeds of crime.  In the end, this is just over the commercial quantity by plant numbers and just under the commercial quantity by weight.  As the photographs tendered on the plea reveal, the plants were healthy and likely to grow to a very substantial crop. 
I infer to the criminal standard that the intent of all connected, including you, to this and indeed every cannabis cultivation, is to grow the cannabis to the harvestable stage, so that ultimately large amounts of cannabis are available for sale.

3Two rooms, including what was the kitchen in this house, had been converted into cannabis growing rooms, with wall-to-wall pots under lights.  Another room had a drying rack, again with strong lighting so as to speed up that process of the cannabis production.  Three other rooms had many pots with cut stalks, indicating they had been growing rooms which had been harvested.

4You are to be dealt with for the plants under cultivation, not the earlier crops already harvested.  I will say more of this later in respect to the proceeds of crime charge.

5The cultivation methods were sophisticated.  The lighting that had been installed was such as to allow the plants to be grown indoors.  Although not attributed to you, the power had been bypassed to allow for higher volumes of electricity to be consumed without detection or cost.

6There were exhaust systems.  There were complex irrigation and nutrient systems.  These are all expensive items, indicating that there had been significant resources expended, on the basis that ultimately, large quantities of cannabis would be cultivated for significant profit.  It is not the case here that you were involved in any of the setup or the costs of the setup. 

7The yield ultimately of useable drugs was likely to be very high.  These were plants, to my eye, they were at the same stage of growth, or near enough, but the other evidence in the house indicates that there would have been or had been regular harvest, in the form of horticultural crop rotation, providing ongoing cash flow.  This is confirmed by you in the record of interview, in which you spoke of earlier harvests and how the cash found on you at the St Albans house was payment for your role over time.  That is now the proceeds of crime charge was articulated, albeit that the charge date is 1 August 2017, when the money was found. 

8Although we routinely see this crime committed in this way and routinely say that this house had all the features in common with other suburban houses that have been converted into cannabis production factories, this does not, by its repetition, diminish the seriousness of the offending, it just underlines the prevalence. 

9What I have said in earlier cases is applicable here and the words that I have used regularly were adopted by the Court of Appeal in the matter of R v Nguyen.  There, the Court of Appeal notes the objective seriousness of this offending.  This crime is hard to detect and even harder to establish who are the main players in the cannabis production and distribution chain.

10The product grown by the cultivators has serious adverse effects on many users and the community bears a great cost, as the entrepreneurial cannabis cultivators profit significantly.  The entrepreneurial cultivators have, for some time, sought to avoid their own detection by having vulnerable individuals mind and cultivate, in practical terms, the crops.  The crop sitters and cultivators ensure that the equipment continues to operate.  Also they provide, it would seem, from time to time, a degree of security for the crop.  Most importantly, they keep the entrepreneurers at arms-length from the crop as it grows to
a saleable product.

11There is a note here that you did not live at this premises, rather you lived at the St Albans premises.  That is, you did not live at the North Caulfield premises.  It was said, on instructions and by reference to photographs, that others indeed lived there.  They have not been charged.

12It was put by counsel for you that you were, in effect, a crop sitter, though it was conceded that you had performed ­the tasks of the cultivator, including harvest, the future harvests, drying and delivery to another place. 

13The prosecution contended that you were more than a mere crop sitter, indeed you were the sole cultivator, according to the prosecution submissions, but nonetheless, the prosecution submits that you are not to be sentenced by the application of an uplift in sentences, as discussed in another case by the Court of Appeal, another case by the name of Nguyen.

14In my view, the propositions put by the prosecution accurately describe the circumstances of this offence.  That said, I remain mindful that you were not the one who would have profited by the sales, but rather you were promised a fee.  Indeed you said that the $16,000 was from and for your role in cultivating.

15The Court of Appeal in Nguyen, the case by that name that I have already referred to, also dealt with difficult task facing sentencing judges of determining the offender's role.  In doing so, the court referred to the important sentencing decision of the High Court in the matter of Olbrich. 

16The Court of Appeal, at paragraph 29 of the decision of Nguyen said the following by quoting Olbrich:

"It is understandable that in order to promote consistency in    sentencing appellate courts when expressing their views about   sentence for drug offences, sometimes categorise the role of an   offender where it is known in the scheme of importation or   distribution.  Similarly, sentencing judges who are dealing with   several co-offenders may consider that such categorisations   relevant in differentiating between individuals.  However, the utility               of such an exercise is necessarily limited by the extent by which the   material facts are known.  What may be a convenient shorthand   method of describing facts of a particular case, should not be   elevated to an essential task to be undertaken in every case,   regardless of whether it is possible or appropriate."

17The Court of Appeal in Nguyen then went on to say:

"Thus the finding that an offender was not a principal or an organiser,            may not prevent the conclusion that the offending involved is   significant participation in a criminal enterprise." 

18With that in mind, on any analysis, this offending here was serious.  The prosecution conceded that your cultivation was done on behalf of others unknown, or at least unknown to the authorities.  Thus, I will sentence you as a cultivator whose role in tending these plants was to bring them closer to harvest and then harvest, dry and deliver them ultimately onwards for sale, but that was for others, not you. 

19Thus, as was said by the Court of Appeal again in Nguyen, at paragraphs 33 and 35, it said this:

"It was open to the judge to form the view that the maximum penalty               of 25 years' imprisonment, stipulated for the cultivation offence, was                  informed by the need for general deterrence and the prevalence of                    this form offending involved in this case and it gave rise to greater                  sensitivity in this regard.  In particular, this was so because the   prevalent use of young persons with vulnerable immigration status,                    to undertake the role of crop sitter or minder and the consequential             buffering from detection of the organisers or principals of the   scheme, was also correctly identified by the sentencing judge as an   additional factor, bearing on the importance of general deterrence."

20I will return to the sentencing purpose shortly, including that of general deterrence. 

21As to your personal circumstances, you are now 26.  You were born in Vietnam and came to Australia to study.  You had already studied at a tertiary institution in Vietnam.  You arrived in Australia in June 2013, first to study English and then business and law courses at Swinburne University.  You did not persevere with those studies, finding them too difficult with your level of English.  You switched to other private education providers on two further occasions.  It was said that this aided you to extend your student visa.  I was told that you wanted to go back to Vietnam, but could not, at that point, find the money to do so.

22As part of your work, you had been grape picking.  You worked as a handyman, but were struggling financially.  You then became involved thereafter in this enterprise. 

23You frankly instructed your counsel that you were told that you were told that should you be caught in this drug cultivating enterprise, you would be simply deported, but no more.  Thus the message of general deterrence is one of importance, so as to ­disabuse young students of such nonsense peddled by the organisers.  The consequences are not simply to be deported and no more, it involves the harsh reality of years of imprisonment. 

24You have done all that you can in prison since your arrest, having gone through difficulties at the outset because of the problems in the prison numbers.  You went to a number of cells, ultimately for nearly three weeks in a cell in Ballarat with limited resources to look after people on remand.  I take that into account.

25I take into account that you have done all you can in prison thereafter, in obtaining certificates and doing courses.  These certificates were tendered on your behalf and as I said, have taken them into account as to your involvement in prison life and your decision and determination to make what you can of where you are.

26I take into account that you pleaded guilty at the earliest opportunity and as such, your sentence will be less than it otherwise would have been.  You accepted responsibility, you were very frank in the record of interview and I see that as part of your remorse.

27I take into account that you will be isolated from your family in prison.  Another aspect of general topic of remorse, is that you are ashamed of what has become of you and have not been able to tell your family where you are.  They, as
I understand it, have no idea since you were taken into custody of what has befallen you.  Though, ultimately it seems you wish to return back to your family in Vietnam.  It is likely, if not a certainty, that you will be deported, but nothing more needs to be made of that. 

28I take into account that you have some, but limited, English and thus prison will be harder for you on that account as well.

29I take into account that you have no prior criminal history.

30The sentence that I impose must, as the Court of Appeal in Nguyen said:

"It must emphasise the weight to be given as deterrent to others.                    That is, everyone in this entrepreneurial cannabis cultivation and                 production for profit."

31It is also necessary to denounce your crimes.  You are an otherwise intelligent young man.  You became involved in this criminal activity in the country, involving a drug, a drug that is a significant problem for many in our community.  You knew what you were undertaking was wrong and full of risk.  The only just and appropriate sentence is one of imprisonment. 

32In your case, your rehabilitation or reform, in the sense that you will return ultimately to your family and community in Vietnam and resume, I would expect, your lawful life that you had there with the interruption and lost opportunity in the years that you have spent in Australia, but I take into - your rehabilitation is not overlooked, but given all the circumstances and the gravity of the offending, it must yield to the other sentencing purposes, predominantly deterrence to others and denunciation.

33Can you please stand, Mr Ho. 

34For committing the crime of cultivation of a drug of dependence, namely cannabis, in not less than the commercial quantity, you are sentenced to two years' and three months' imprisonment.

35For committing the crime of knowingly deal with the proceeds of crime, you are sentenced to nine months' imprisonment.

36I order that three months of the sentence imposed for the crime of knowingly deal with the proceeds of crime, be cumulative upon the sentence imposed for the cultivation.

37Thus, the total sentence is two years and six months and I fix a minimum
non-parole period of 20 months. 

38You have also pleaded guilty to the summary offence of driving while using
a mobile phone.  You are convicted and fined $300.

39You have already served 225 on remand.  This period of time having been reckoned, I declare that 225 of the sentence that I have just imposed, that 225 days is part of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have already served 225 days of the sentence I have just imposed. 

40Had you pleaded not guilty to these offences and been found guilty of them,
I would have imposed a sentence of four years and three months, with
a minimum of two years and three months.

41Orders are being sought in respect of forfeiture of items that are set out in an appendix to the forfeiture application.  I intend to make those orders, so that things can be forfeited and disposed. 

42The prosecution has also sought an order that you provide a sample, forensic sample.  That will be a scraping from your mouth, so your DNA can be extracted and placed on a database.  I intend to grant that application and I do so because of the seriousness of the offending and because it is in the interests of justice. 

43You have to understand that when the authorities come to take that sample, if you do not co-operate, they are authorised to use reasonable force to get that sample.  The way through it, of course, is to co-operate. 

44Is there anything further required?

45There is forfeiture and disposal. 

46You can take a seat, Mr Ho, I need to sign a variety of documents.

47Is there anything else required, Mr Harrison?

48MR HARRISON:  There is nothing further, Your Honour.

49MR ANDRIANAKIS:  No, Your Honour. 

50HIS HONOUR:  Thank you for your assistance in this matter. 

51MR ANDRIANAKIS:  If Your Honour pleases.

52HIS HONOUR:  Mr Ho can be removed.

53Madam Interpreter, Mr Ho will go downstairs.  Are you - do you need to speak to Mr Ho?

54MR ANDRIANAKIS:  I do, Your Honour. 

55HIS HONOUR:  Right, yes.

56MR ANDRIANAKIS:  Could I ‑ ‑ ‑

57INTERPRETER:  I am going to go down, Your Honour.

58HIS HONOUR:  You are very kind, thank you.  It is part of the defence, not so much the prosecution who, I understand, are paying you, but if you would be kind enough to do that.  Thank you, Madam Interpreter, I am sorry there was not a break for you during that, you have been very kind. 

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