Director of Public Prosecutions v Korn
[2013] VCC 1508
•15 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01296
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM KORN |
---
JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 October 2013 | |
DATE OF SENTENCE: | 15 October 2013 | |
CASE MAY BE CITED AS: | DPP v Korn | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1508 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: Sentence – cultivation of cannabis – commercial quantity – early guilty plea – good prosects for rehabilitation – consideration of failure to apply for bail – conditions on remand
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | Ms N. Schmitz Office of Public Prosecutions |
| For the Accused | Mr R. Stary | Robert Stary Lawyers |
HER HONOUR:
1 Adam Korn, you have pleaded guilty to one charge of cultivation of a commercial quantity of cannabis and one of dealing with the proceeds of crime.
2 Both charges are framed as being a charge on a single day, 16 April 2013, which is the day the police executed a search warrant at your home. But as the agreed summary before me indicates, some time after you purchased a house in Broughton Avenue in Croydon in late August last year, you started to set the house up as a cannabis growing house and embarked upon what is clearly a commercial venture in cultivating cannabis.
3 When the police entered the house pursuant to a warrant on 16 April, there was a large amount of cannabis in various rooms of the house, in various states of cultivation from germination all the way through to the drying of harvested heads. In all, on the date of the raid, 207 plants were found, set up in various rooms, and in thermal tents, set up in the house.
4 In addition, 4.81 kilograms of cannabis bud was drying in hanging racks, set up in the sunroom of the house and there was another 2.21 kilograms of cannabis leaves in a plastic bin in the laundry.
5 According to the statement of the biologist, Mr Azzopardi, of the growing plants, that is the 207, or the most mature of those, they weighed about 13.4 kilograms and would have yielded about 3.3 kilograms air dried of harvestable cannabis. Mr Azzopardi was unable to give an estimate of what the likely yield would have been from the other plants, they were too immature, but it is accepted that they would have increased considerably in weight had they grown to maturity, and would have had a considerable yield.
6 The air dried weight of the flowering heads that were found in the drying baskets would have been, Mr Azzopardi estimated, a weight in excess of 1.05 kilograms and the leaves and flowering heads that were found in the bins could not be accurately estimated, but again, gives some sense of the quantity that you were cultivating and the commerciality of the venture.
7 Police also found, not in the house where the cultivation was occurring, but in a house in the same street, a rented house that you were living in, other evidence relating to your cannabis cultivation, including things like grow lights and transformers, similar to those that had been found in the grow house, banking documents showing that you had banked $26,560 in five different transactions between 12 March and 15 April 2013, a list showing those people who owed you money or who had paid you money for cannabis provided to them, as well as a book showing in effect your horticultural notes relating to the cultivation of the cannabis.
8 Also the police found three near new power tools, a chainsaw, leaf blower and an edge trimmer and an invoice for the payment for those. You had paid cash for them not long earlier and it is acknowledged by your pleas of guilty that you purchased those three tools for the use in your legitimate business, but using the proceeds of your cannabis cultivation.
9 You were arrested and charged on that date and remanded in custody, where you have remained ever since. By the time of your committal mention, three moths after your remand in custody, you had already made it clear that you intended to plead guilty to appropriate charges. You pleaded guilty at committal mention. The matter proceeded by way of straight hand-up brief and direct to a plea date in this court. And so it is, 182 days after your arrest, that you find yourself in this court pleading guilty to the serious charge of cultivate a commercial quantity of cannabis and the charge of possession of proceeds of crime.
10 You took a very expensive gamble, Mr Korn, and you lost. At 50, a trained horticulturist, with a 30 year history of work in that field, with no criminal history, apart from a 20 year old non-conviction bond for growing, possessing and using marijuana and a 25 year old conviction for driving and resisting arrest related charges, for which you were fined, you now find yourself before this court facing much more serious charges.
11 Cultivation of a commercial quantity of marijuana is an offence that carries a maximum term of imprisonment of 25 years and the proceeds of crime charge carries a maximum sentence of ten years.
12 Although your offending is not at the high end of the scale in respect of either of those charges, those maximum penalties give some idea of the range of offending covered by the charges and the seriousness with which Parliament regards them.
13 The summary that has been provided and that I have summarised again, indicates that you were clearly engaged in a continual and commercial venture. As I have noted, the plants were at various levels of maturity, from seeds, which you had germinated yourself, through to harvested heads. You had kept records of some of your sales or that money that you were owed and you acknowledge using some of the proceeds to buy that equipment, that top of the line equipment, for use in your legitimate horticultural business.
14 Your cultivation venture was a one-man business. You did everything. You set up the house, you installed the necessary equipment, you germinated the seeds, planted, tended them, calculated the nutrients, added them when needed, harvested and then sold it off. But as Mr Stary said, despite this clear commercial element to it, there was also a level of naivety. You used a house that you had purchased in your own name and into which you had put your own savings of $120,000. I accept on the material before me that they were legitimately obtained funds, not funds from the trafficking venture.
15 In addition to using your own savings for the house, you committed yourself to a mortgage to cover the balance of the purchase price of the house. The house was registered in your name and the mortgage was taken out in your name. You did not divert the electricity to run the high energy draining equipment needed for this hydroponic venture, but you paid for it. And I assume also that you paid for all the equipment that you used in that elaborate and sophisticated set-up for the grown house. You did not do anything to distance yourself from the venture, keeping amongst other things, records in your other house of what you were doing, how the plants were progressing, the nutrient levels required and matters of that sort.
16 As a result of this very expensive and failed gamble, you have lost your liberty and you have lost your savings. You will lose the house and all the equipment that you paid for, that is, I assume that you paid for, and it was used to assist in the venture. You have faced the inevitability of a prison term flowing from this, almost from the start. And you have remained in custody after your first unsuccessful bail application, so serving your time to date on remand at the Melbourne Remand Centre.
17 I accept that by spending your time there, the conditions there are more onerous than those that would generally apply to sentenced prisoners, particularly those who like you, come before the court as a 50 year old without any other relevant criminal history and without ever having been in gaol before.
18 There are two reasons why it is more onerous at the MRC. First, because of the overcrowding due to the increase of our prison population and the lack of sufficient prisons to house people and the numbers that the prisons were built for. I accept what Mr Stary told me, that the MRC was built to house approximately 600 prisoners and is currently holding more than 800 and that has meant double bunking in many rooms. You indeed have been held in double cells, therefore not only experiencing your first time in custody at 50, but also having to share a cell with somebody else also in custody.
19 The other reason why your time of imprisonment to date at MRC is more onerous than in many other prisons, is because as it is a remand facility for all people or most people taken into remand, it has to be a high security facility. That means you have no access to work that is available to sentenced prisoners and you have limited access to courses. You have availed yourself of the courses that are there, but they are not many and I accept there would have been little for you to do to usefully occupy your time and therefore probably much more time to reflect on the stupidity of the decision you took and the futility of the gamble.
20 I also accept that if you had reapplied for bail, given your previous history, you would have been likely to have been successful. You could have spent your time awaiting plea and sentence at liberty in the community and you would have been, as Mr Stary said upon sentence, taken probably straight to Melbourne Assessment Prison, from there assessed that you would have likely been assessed relatively quickly as a medium or low security prisoner and transferred to a medium or low security prison, maybe in the country where the conditions might have been less onerous and more suited to a person who spent his life working out in the open.
21 I accept that you are a somewhat shy and isolated man. It would appear that for many years you have had little contact with your siblings or your parents and after your father's death two years ago, things have not really changed. You are not currently in a relationship and have not been for some time. However you are not without social skills and your friend, Mr Peters, who came to court, who gave evidence on your behalf and wrote a reference, spoke well of you. The fact that he was prepared to write the reference and come here to court to support you and the things he said about you and his family's knowledge of you, indicate that you are not somebody who is so totally socially inept that you cannot make friends or earn the regard of others. So it is clear that although you have limited family contact, you do have some friends and some supports available to you in the community and people who are prepared to stand by you.
22 I also accept that you have got an offer of employment available to you with Mr Peters upon your release, and that clearly is something relevant to your prospects for a successful reintegration into the community.
23 It is clear, nonetheless, that considerations of denunciation, deterrence and just punishment must weigh heavily in sentencing you. This was a calculated commercial decision to make money by cultivating marijuana, rather than making perhaps less money, but from more honest means of pursuing your undoubted horticultural talents and interests in that field.
24 I accept however that the consequences of detection and the experience of imprisonment have had a significant deterrent effect on you and that little additional weight therefore needs to be given to specific deterrence.
25 I accept that your past good character, your work history and skills, and the absence of ill health, mental illness, substance abuse – apart from long term marijuana abuse that you seem to have managed to control – and otherwise your successful social and working life, and the absence of other problem behaviours, mean that your prospects for rehabilitation are good and therefore should be reflected in the sentence.
26 I have decided to impose a sentence of three years imprisonment on you and to suspend a large portion of it. I agree that it is not necessary to impose a non-parole period, to place you on parole and to strain a system that is already struggling to cope with the greater needs of many in the prison system.
27 Had it not been for the fact that you had accepted your fate from the time that you were arrested and remained on remand and the onerous conditions of remand, I would have required you to serve a greater period before suspending the balance that I am actually going to fix, but I do not think that the time that you have served to date, even in the conditions as I have identified, is sufficient to mark the seriousness of the offending, its commercial nature and your calculated decision to make money from putting your horticultural talents to that work, rather than legitimate work. I consider that the period you must serve must be a little in excess of the period that you have served to date.
28 I accept that so far as the proceeds of crime charge, that it is appropriate to deal with that by way of fine, having regard to the circumstances that have been put to me of the way in which the money was obtained and put towards purchasing tools for you legitimate business.
29 Could you now please stand.
30 Adam Korn, on the two charges to which you have pleaded guilty, you are convicted. On Charge 1 you are sentenced to be imprisoned for a period of three years and I direct that two years and three months of that be suspended for a period of two years and three months. That means you must serve a period of nine months before your release. On Charge 2, the proceeds of crime charge, you are fined an amount of $1,500.
31 I declare that you have spent 182 days in pre-sentence detention and direct that that be reckoned as part of the sentence already served.
32 I declare, pursuant to s.6AAA of the Sentencing Act, that but for your pleas of guilty, I would have sentenced you to a term of imprisonment on Charge 1 to a period of four years imprisonment and I would have fixed a period of two years as the time which you would have had to have served before being eligible for parole.
33 Could you take a seat now please while I make the ancillary orders?
34 It follows inevitably from the charges that applications have been made for disposal of all of the items found that relate to the drug cultivation and I propose to make the Disposal Order. I also propose to make the Forfeiture Order in respect of the three tools that were purchased using the proceeds of crime. Both of those orders were consented to by Mr Stary on your behalf.
35 MR STARY: Thank you, Your Honour. Can I also seek a stay for the formal state of the payment of the fine, Your Honour, of two months?
36 HER HONOUR: Yes, I will make an order for stay of two months in respect of the payment of the fine.
37
I have also been asked, Mr Korn, to make an order for the taking of a forensic sample from you and that order has been consented to on your behalf by
Mr Stary. I consider it is appropriate to do so, having regard to the seriousness of the circumstance of the offending, not only the commercial nature of the cultivation, but also the fact that initially, although acting on advice and exercising your right, you made no comment when questioned by the police. And I also note that the order is by consent.
38 That order is for the taking of what is called a buccal sample, a scraping from the mouth, until a sample of sufficient standard is obtained for the placing on the database. I must warn you or inform you that if you do not consent to and co-operate in the provision of that sample, then the police are authorised to use reasonable force in order to obtain the sample and it is at least likely that they will use the more invasive method of obtaining a forensic sample, namely the taking of a blood sample. Do you understand that?
39 PRISONER: Yes, Your Honour.
40 HER HONOUR: Thank you. Mr Stary will again no doubt explain that to you. Now, are they all the orders that are required to be made?
41 MR ROPER: Yes, Your Honour.
42 HER HONOUR: I am sorry, I have just realised too, I made a mistake in my 6AAA declaration. It should have been four and a half years, not four years, with a non-parole period of two. And that is obviously reflective of the early stage at which the plea of guilty was entered, is that significant disparity.
43 MR STARY: Thank you, Your Honour.
44 HER HONOUR: All right, I have signed 464ZF Order, the Disposal Order and the Forfeiture Order. Are there any further orders that are required to be made?
45 COUNSEL: No, Your Honour.
46 HER HONOUR: And do the orders as I pronounced them, reflect what I said I intended to do?
47 MR STARY: Thank you, Your Honour, yes, they do.
48 MR ROPER: Yes, they do.
49 HER HONOUR: Thank you. Mr Korn, I must remain on the Bench whilst you are in the dock. Mr Stary will no doubt go downstairs and see you, but given that Mr Peters has come to court, I am prepared to stay on the Bench while he speaks briefly to you. You cannot shake hands or touch, but I will remain here whilst you exchange some words with him before you are taken away.
50 MR STARY: Thank you, Your Honour.
51 HER HONOUR: Mr Peters, you can go and speak to him. All right, thank you, could you now remove Mr Korn please?
- - -
0
0
0