Director of Public Prosecutions v Kou

[2021] VCC 1532

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR 21-00381

DIRECTOR OF PUBLIC PROSECUTIONS

v

HENG FU KOU

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JUDGE:	His Honour Judge Hannebery
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2021
DATE OF SENTENCE:	8 October 2021
CASE MAY BE CITED AS:	DPP v Kou
MEDIUM NEUTRAL CITATION:	[2021] VCC 1532

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Cultivation of a narcotic plant – theft – plea of guilty – prospect of deportation

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Sentencing Act1991

Sentence:                  Nine months' imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Connolly	Solicitor for the Office of Public Prosecutions
For the Accused	Mr J. Saunders	Valos Black & Associates

HIS HONOUR:

Introduction

1Heng Kou, you have pleaded guilty to Indictment L12294094.1 containing two charges, being:

(a) Charge 1: Cultivation of a narcotic plant contrary to s72B of the Drugs, Poisons and Controlled Substances Act 1981; and

(b) Charge 2: Theft contrary to s 74(1) of the Crimes Act 1958.

2The maximum penalty for cultivation of a narcotic plant is 15 years' imprisonment.

3The maximum penalty for theft is 10 years' imprisonment.

Summary of offending

4The prosecution opening upon plea was tendered as Prosecution Exhibit 1 and read aloud in court.  Your offending is summarised as follows.

5On 25 September 2020 a search warrant was executed on a premises in Rosanna.  Police officers knocked on the front door and heard movement from inside the address.

6Police officers entered the garage of the property via a small room to the left of the garage door.  As they entered the garage they saw you walking down the stairs from the main residence into the garage.  Acting Detective Sergeant Moore, who was wearing a police uniform, yelled 'police' and 'stop'.  You continued to move towards the door and were placed under arrest.  You did not respond and struggled to break free.

7You had in your possession a set of house keys with keys to a black 2005 Volkswagen which was parked in the front driveway of the address.  This car was registered in your name.  You also had an Apple iPhone and a wallet with your Victorian driver licence, various other identification and $1,070 in cash.

8Police contacted Jemena Electrical Company (‘Jemena’) to inspect the property.  An illegal meter bypass was located next to the mains cable directly above the laundry door.

9Jemena subsequently provided an invoice and statement for the illegal electrical usage and estimated lost usage from 21 December 2019 to 25 September 2020 as approximately $21,131.38; a portion of that being two days calculated on a pro rata basis, which I am instructed is about $70 per day of stolen electricity is the subject of Charge 2, theft.

10A full search of the property identified that it had been set up for the primary purpose of cultivating cannabis.  There were multiple rooms containing sophisticated hydroponic setups growing cannabis plants.  The rooms were coated with reflective material and all external light sources were covered.  A series of light shrouds with globes attached were positioned over a large number of cannabis plants in black pots.  The pots had a sophisticated watering system using pumps, filters and chemical agents.  This is the subject of Charge 1; cultivating a narcotic plant.

11No one else was located at the premises.

12As a result of the search police located and seized:

(a)   197 cannabis plants from seven rooms;

(b)   Two plastic bags of dried cannabis from a cupboard in the kitchen;

(c)   Two items found on your person; and

(d)   The electricity bypass.

13The seized cannabis was subsequently analysed by a botanist.  The cannabis plants weighed a combined total of 119.93 kilograms.  The two plastic bags seized from the kitchen cupboard contained a combined total of 1.556 kilograms.

14You were interviewed by police on 25 September 2020, with the assistance of an interpreter, where you made some limited admissions to the offending, such as it being a short-term job watering the plants and that you were paid $800 cash to look after the plants for two days.  However, you denied you knew what the plants were and said you 'didn’t think about it'.  You also denied knowledge of the electricity set up.

Nature and Gravity of Offending

15Your offending involved your participation in the cultivation of a substantial amount of cannabis.  This was a sophisticated hydroponic setup which had plants growing in multiple rooms.  The electricity was bypassed, resulting in the theft that was the subject of Charge 2.

16You were charged as what might be described as a 'crop sitter'.  These were not your premises although you had been provided access to them.  Most significantly, the nature of the cultivation simpliciter charge against you means that it is not put that you had an intention to cultivate a commercial quantity of cannabis.

17There is no evidence that you had any commercial stake in the sale of the crop, though it may reasonably be inferred that your participation was motivated by financial gain of some level.  It is also clear from the size and nature of the cultivation that it was not undertaken solely to accommodate your personal use of the substance.

18The cultivation of narcotic plants by hydroponic means in private premises would seem to be of some prevalence judging by the frequency with which this court deals with similar cases.  Often, as is the case here, the person before the court is somebody engaged to undertake the manual labour involved in tending the crop.  This often exposes the offender to high risk of detection whilst not necessarily expecting any substantial reward for that effort.  The nature of the offending means that general deterrence is an important sentencing consideration.

Personal Circumstances

19You were 31 years old at the time of the offending and are 32 at sentence.  You were born in China and immigrated to Australia in 2017.  You are the youngest of four.  You were raised in an environment of verbal and physical domestic violence between your parents.  You also report weekly physical violence at the hands of your father.  You were bullied by your siblings however remain in contact with your mother.

20You had learning difficulties and literacy problems at school and were expelled in Year 8 due to poor academic performance.  You completed a tyre fitting apprenticeship at age 17 and gained employment in that industry.

21You immigrated to Australia after your tyre fitting business suffered significant losses.  When you arrived in Australia you worked in tyre fitting, solar installations and plastering, however there were significant gaps between periods of employment and you had difficulty in securing work.  You were last employed in early 2020 and this unemployment was later due to the impact of the COVID-19 pandemic.  You are currently employed in the prison kitchen.

22You do not have family or friends in Australia, however you have the support of your partner.

23You describe yourself as an alcoholic.  You began weekly alcohol consumption from age 15 and you increased the daily consumption when your business began to fail in 2016.  From 2018 you commenced bi-weekly use of methylamphetamine until you were arrested.  You report participation in alcohol and drug rehabilitation programs whilst in custody.

24You report starting gambling approximately six months prior to arriving in Australia in 2017 and had significant losses in 2020 that placed you under considerable financial pressure.

25You do not have any prior criminal history and this is your first time in custody.

Mental Health

26A psychological report of Sandra Cokorilo dated 5 October 2021 was tendered on the plea.  Ms Cokorilo states in respect of your current mental health that 'Mr Kou presents with early onset of recurrent episodes of major depressive disorder with suicidal ideation'.

27This diagnoses means that imprisonment has been more burdensome for you than for someone not enduring that condition.  Consistent with principle 5 in Verdins I take that matter into account in mitigation of sentence.

28The defence also submitted that principle 6 in Verdins had some application, but given the nature of the sentence I intend to impose no conclusion need be made on this issue.

Matters in mitigation

Plea of Guilty

29Your plea of guilty to the charges on the indictment was first indicated on the day a pre-trial hearing was scheduled.  Whilst, on its face, the timing of the plea is not the earliest conceivable, in the context of you pleading guilty to a lesser charge than you initially faced, with an agreement being reached about the factual basis for the cultivation charge, I consider that it is a plea entered at the earliest reasonable opportunity.

30Your plea of guilty saved the time and resources that would otherwise have been expended on contested proceedings.  The utilitarian value of that plea is particularly high in circumstances where pandemic restrictions have placed extreme pressures on court listings.  I also accept that your plea of guilty, in combination with your expressions of regret that you made to Ms Cokorilo, show that you do have some remorse for your offending.

Impact of COVID-19

31You have been remanded in custody since your arrest on these matters.  The entirety of your period on remand has been served during a period that the prison environment has been made more burdensome by virtue of pandemic restrictions.  These restrictions have included but are not limited to the suspension of visits, limitation on availability of courses and a greater deprivation of liberty than would normally be the case.  I take these matters into account in mitigation of sentence.

Prospects of Rehabilitation

32You are now 32 years old and have no prior convictions.  You have been assessed by Ms Cokorilo as follows:

'Mr Kou’s risks are considered moderate on the basis of psychosocial adversity including social isolation, unemployment and financial hardship, history of alcohol and substance abuse and personal and emotional factors including poor self-regulation, impulsivity and poor problem solving.  However, he presents with no criminal priors and there is no evidence of criminal attitudes or orientation'[1]

[1]Cokorilo at [68].

33She does, however, note that many of the factors that led to the commission of these offences are capable of being addressed by appropriate interventions and treatment.

34I consider that your prospects of rehabilitation are currently reasonable but are capable of improving should you continue to engage with appropriate professional services.

Prospects of Deportation

35You were born in China and are not an Australian citizen.  Since your arrest and remand in custody you have faced the possibility of deportation.  Whilst ultimately your immigration status is a matter for the appropriate Minister, I consider that your understandable anxiety at the prospect of deportation is a matter to be taken into account in mitigation of sentence.

Sentencing submissions

36Mr Connolly, who appeared on behalf of the Director, submitted that in all the circumstances of the case that only a sentence involving imprisonment was within the available range.

37Mr Saunders, appearing on your behalf, conceded that imprisonment was inevitable but submitted that it should be a term of less than one year.

38The need to deter others from similar offending to a lesser extent given your lack of prior history, the need to deter you personally from offending again, the need to impose a punishment that is appropriate in all the circumstances, the need to denounce your offending and to protect the community means that even having regard for the significant matters in mitigation a period of imprisonment is the only appropriate outcome in this case.

39Given the relatively small amount of electricity stolen and the short period covered by Charge 2 I do not intend to cumulate any of the modest imprisonment I intend to impose on Charge 2 on the sentence imposed on Charge 1.

Sentence

40Mr Kou, I sentence you as follows.

41On Charge 1; cultivation of a narcotic plant, you are convicted and sentenced to nine months' imprisonment.

42On Charge 2; theft, you are convicted and sentenced to one month imprisonment.

43That makes for a total effective sentence of nine months' imprisonment.

44Pursuant to s18(4) of the Sentencing Act 1991 I declare that you have spent 378 days in custody as pre-sentence detention to be reckoned as served.

45Pursuant to s6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have imposed a sentence of 15 months' imprisonment.

46The prosecution has made application for disposal of the items seized at the property and forfeiture of the cash that was located.  Counsel on your behalf did not oppose those applications and I make orders in the terms sought.  Is there anything further required?

47MR CONNOLLY:  No.  As Your Honour pleases.

48MR SAUNDERS:  No.  Thank you, Your Honour.

49HIS HONOUR:  Thank you very much.  In which case, thank you both for your assistance and I'll adjourn the court until 10.30 on Monday morning.

50MR SAUNDERS:  If Your Honour pleases.

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