Director of Public Prosecutions v Lai
[2022] VCC 1646
•19 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00395
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RI LAI |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 September 2022 | |
DATE OF SENTENCE: | 19 September 2022 | |
CASE MAY BE CITED AS: | DPP v Lai | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1646 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Cultivation of narcotic plants in a commercial quantity – 98 plants weighing 52.3 kilograms – Clandestine hydroponic system – Early guilty plea – Significant cooperation with investigators – Admissions – Motivated by financial gain – Role of cultivator – General deterrence – Denunciation – Just punishment – Family support – Reasonable prospects for rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Armstrong [2021] VCC 2136
Sentence: 2 years’ imprisonment, non-parole period of 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. White | Office of Public Prosecutions |
| For the Accused | Ms L. Hartnett | Victoria Legal Aid |
HER HONOUR:
1On 30 March 2021, police executed a warrant at a house in Wollert. There was no one home at the time. What was found was a sophisticated cannabis crop being grown out of the five rooms in the house. Each of the five rooms had ultraviolet lights, well set up on ropes and adjustable pulleys. They were in turn connected to ballasts, electrical transformers, power boards and timers. In four of the five rooms the labs were connected to timers set for 12 hours operation a day. In one room where the plants were much younger at a much earlier stage of growth, the timers were set for 20 hours a day.
2All of the pots were connected to central water supplies flowing to exhaust fans and heat pumps. Two of the rooms also contained heat lamps. In total there were 42 600 watt lamps across the five rooms. As is typical in these grow houses, an electrical bypass was found, which was located in the first bedroom. Power cables had been led through a makeshift cavity from the wall and the bypass powered switchboards that in turn supplied electricity to the hydroponic equipment throughout the house.
3After an Ausnet technician had dismantled the hydroponic set up and satisfied everybody that the illegal electricity diversion no longer posed a hazard, the house was searched.
4In the five rooms of the house there were a total of 98 cannabis plants weighing a total of 52.3 kilograms. The plants were at varying levels of maturity. Plants growing in four of the rooms were of maturity, estimated to be between 12 and 15 weeks and weighed in total just over 48 kilograms. The plants in the fifth room weighed much less, only 3.88 kilograms in total, and they had been growing for between two and eight weeks. There were however a considerably greater number of those plants in that room. 62 of the 98 cannabis plants were growing in that fifth room.
5Police also found in other rooms of the house, personal items, notebooks and the like. The notebook contained detailed handwritten instructions for you on how to cultivate the cannabis in the house. Ultimately, the plants were seized, a copy of the warrant was left at the house and police left.
6The following day you called police, told them that you were the occupier and you were taking responsibility for the crop. You told them that you had discovered the warrant and no doubt other evidence of its execution upon your return to the house the previous day. By 1 April of 2021, you had presented for interview. When interviewed you told the police that having found the warrant you felt guilty about having cultivated the drugs, and that you knew that what was being cultivated was cannabis. You said you were not quite sure of the number of plants being grown but you thought it was under 100. You acknowledged that you had been cultivating the cannabis for two to three months and said that you had been living there for that time.
7You gave an account of having met a man whose name you do not know at a place that you could not describe, who had offered you the opportunity to cultivate cannabis and you had immediately accepted. You said that he had installed the lights, the fans, the crops, told you how everything worked and would attend from time to time to harvest buds.
8You were aware of the presence of chemicals that were used for the fertilisation or feeding of the plants, and where they were stored, in the bathroom at the back of the property. Although you said that you did not know much about them, you acknowledged that you had been shown how to use them and in fact were using them to cultivate the plants.
9You described your role as being to keep the plants growing and that the plants had been brought to you, when they were little or seedlings and you had been cultivating them. You said that you had met the man just before you were made redundant at your warehouse job due to COVID-19 and had accepted the offer because you could. The man had told you that you could make good money cultivating cannabis, and you thought why not.
10You said that the man had rented the property, that you did not pay rent, but the rent was deducted from the profit from the plants. You said that you paid the electricity bills at the property but you were never told how much you were going to make. You certainly gave the impression that you had not yet received anything for your efforts. You denied yourself being a user of cannabis or any other drugs.
11Whilst the admissions about the amount of time you have been living at the property and your role in the cultivation are consistent with the evidence of the finding of the plants, as I said to Ms Hartnett in the course of the plea, I have no way of knowing whether the frankly implausible story about meeting a man whose name you did not know at a place you could not recall and immediately agreeing to cultivate cannabis to take some unidentified share of profit at a later date is, nonetheless, true. But that really does not matter much except to say I accept that for sentencing purposes you were not the principal but you played an active role over the three months or so that you were in occupation of the house, in bringing those plants to a healthy, flourishing, harvestable state.
12
Consistently with the admissions that you made to police, you have now pleaded guilty to one charge of cultivate cannabis in not less than a commercial quantity. By law, a commercial quantity is established either by weight (not less than
25 kilograms) or by the number of plants (not less than 100). Here the plants that were found, although not sufficiently mature to be harvested were already double the commercial quantity. And when broken down, just over
48 kilograms (which is just under double the commercial quantity) was the weight of that more mature harvest or crop at 12-15 weeks, and 62 plants (which is around about two-thirds of a commercial quantity by number of plants), was in the early second stage of cultivation at between two and eight weeks. This is clearly then evidence of an ongoing enterprise in which you were engaged.
13The maximum penalty for commercial quantity cultivation prescribed by Parliament is 25 years imprisonment. It is what is described as a category 2 offence, that is that a court is required to impose a sentence of imprisonment, not as part of a combination sentence, unless a person pleading guilty to commercial quantity cultivation falls under an exception as provided for in section 5(2H) of the Sentencing Act. The maximum penalty prescribed by Parliament and the later legislative override of the making of category 2 offence in mandating imprisonment, unless a person falls within an exception, are clear indicators of the seriousness of which parliament and therefore the community regards such offending. In turn, the courts have consistently given voice to the reasons why Parliament takes that view.
14Recently, Judge Tinney of this Court said this:[1]
These crimes are almost always taken on because of the hope of some financial gain. Well, people must understand they are serious crimes and that though there is a potential for some financial reward it comes with a real risk. The risk of detection, prosecution and then then likelihood of the imposition of a significant term of imprisonment. The sentences imposed by the courts must neutralise the lure of what might look to be easy financial gain. The court must send that message loud and clear to others in the community who might be minded to commit this sort of serious and prevalent offence.
[1] DPP v Armstrong [2021] VCC 2136 [82]-[83].
15It is clear therefore that deterrence, denunciation and just punishment all must carry significant weight in the sentencing mix. No matter what one's personal views about personal use of cannabis are, or about personal use of drugs generally, or about whether to deal with use of drugs as a criminal or a health issue, the fact is this is not a case for you of personal use. In fact, as I have noted, you deny being a user of any drugs. This is a case of your participation in a large scale continuing enterprise cultivation of a drug that Parliament has made illegal. And as you frankly told the police, you participated in it in the expectation of profit.
16What then was relied upon by Ms Hartnett in her submissions to mitigate the weight to be given to the sentencing factors of denunciation, deterrence and just punishment and to act in accordance with the principle, so clearly articulated in Armstrong which was conveniently quoted for me by Mr White in his submissions.
17Ms Hartnett acknowledged that there was no evidence on which she could rely, that would bring your case within any of the exceptions to the category 2 mandatory sentencing regime, and acknowledge therefore that a term of imprisonment was inevitable.
18
You are a man in your late 30s. You were 35 at the time of the commission of the offending. You came to Australia as a boy with your mother and one brother from
Southern China. You, your brother and your mother have all taken out
Australian citizenship and have made your lives here. You were brought up by your mother, she having left your father who was apparently abusive, who abused alcohol and abused you. Your childhood once here, appears to be relatively unremarkable. However, you left school young, started but did not complete a TAFE course in IT and since leaving school or the TAFE course, you have worked essentially in low paid, relatively unskilled employment, much of which has been physically arduous, it would appear. Maybe this is a case of an unfulfilled potential, because you otherwise appear to be a man of at least average intelligence and understanding.
19On the material presented to me by Ms Hartnett, you appear to have led a modest lifestyle for your time here. Your having had two relatively long-term but ultimately unsuccessful relationships with women, one of which produced a daughter who is now 11. You are back living with your mother. You have no car, few assets and you appear to be somewhat detached or removed from engagement with the broader community.
20There is no reported history of substance abuse. You are currently single. You express a connection with your 11 year old daughter from this previous marriage or relationship, though your contact with her appears to be relatively limited. This may be by reason of your, what appears to be, generally quiet or detached approach to life or depression, or the significant financial constraints existing because of the distance from your home to hers.
21You have, in the past, sustained a back injury in the workplace and that may have had imposed some limitations on your capacity to engage in the heavy manual work it appears you have undertaken for most of your working life. And so, there may well be force in what Ms Hartnett summed up as being some discontent with life and with not having fulfilled your potential.
22But the reality is, on the material before me, I have to sentence you on the basis that you made a conscious decision to engage in cannabis cultivation in the hope and expectation of profit. There is some apparent tension in the accounts that you have given as to your working circumstances at the time that you agreed to participate in the cultivation of cannabis. You were, it would appear, still employed in warehousing, one of those few areas that rather than being adversely affected by COVID and the lockdowns, in fact saw increased work and increased demand. So, whether you were about to be made redundant, or as you otherwise said, once you agreed to move into the house to cultivate the crop, the distance to your paid employment was too great and the amount of time you were spending cultivating the crop meant that you had to give up the work, lawful paid work, matters little.
23You were capable of and were engaged in gainful paid employment at the time you agreed to embark upon this, and you gave it up for what has to be seen as the lure or the prospect at least of significant profit from an illegal activity cultivation of cannabis.
24So that is the background against which you are to be sentenced. I take into account in mitigating the weight to be given to those sentencing factors that I have already identified the fact that you are a first offender, and have gotten to the age of 35 without ever having come to the attention of the criminal law. There is nothing otherwise in your history to indicate anti-social attitudes or behaviours.
25You brought yourself forward to the police attention, although your arrest may have been inevitable, as police would likely have ultimately found you. Nevertheless, you made that process easy. You rang them the following day upon discovering the execution of warrant, made immediate and full admissions in relation to your role in the cultivation and consistent with those admissions, indicated from an early stage your plea of guilty. You are entitled to have all of those matters taken into account in your favour.
26The plea of guilty clearly carries utilitarian benefits and advances the interests of justice and it acknowledges your responsibility. I accept for sentencing purposes you are not a principal, but the considerable work done by you as you yourself acknowledged, in cultivating those crops and that cycle over that time meant that you were contributing significantly to the cultivation and therefore for the potential distribution of a high level of this cannabis into the community.
27Although you acknowledged frankly that you went into it for the money, there is no evidence that you had in fact received any profits yet, and so it may have been a significantly bad business decision or commercial decision and gamble for you. In the hope of gaining you have lost. You are going to lose your liberty for a time. You have lost gainful employment, you have lost reputation and that clean, unscathed criminal record you previously had.
28A psychological assessment was conducted, and that suggests that you have had long term but untreated depression, more acute now, as you face the prospect of imprisonment. I accept that imprisonment is likely to be more burdensome to you because of your depressive symptoms and because of the shock you will receive as a first timer and a man of mature years in the prison system for the first time.
29I do not accept however, that the depressive symptoms identified by the psychologist operates so as to reduce your moral culpability. You are entitled to call in aid your previous good character and 35 years of not coming to the attention of criminal law. You demonstrated a capacity to engage in gainful employment, and your obvious commitment to your mother and concern about her welfare has pointed to reasonable prospects for rehabilitation. Upon release, you will have a home to go to, your mother's home. You will have her support, you have a brother and family to whom you do not seem particularly close but who provide further extended family support.
30You clearly have employable skills, and you do not have the impediment of substance use to interfere with your capacity to re-engage in gainful employment. Although you appear to have suffered depressive symptoms for periods during your adult life, they have not interfered with your capacity to work and therefore again that does not adversely affect your prospects for rehabilitation should you choose to engage in gainful employment again as being reasonable.
31I also take into account in addition to those matters, the impact of COVID-19. That is, first, that your plea of guilty is entitled to a greater weight, because of the utilitarian benefits in reducing the court backlog by acknowledging your guilt and not going for trial. And second, that the burden of imprisonment is likely to be increased, because although COVID appears now finally to be abating, and although some of the restrictions in the prisons are lifting, there is still an enclosed environment, the burden of lockdown, the restrictions of visits and access to courses, and the risk of not being able to control your environment. Therefore your prospects of exposure, as much as if you are living in the community, are all significant factors that I take into account and all operate to reduce the sentence otherwise appropriate.
32So the sentence that I am imposing is less than a sentence I would have imposed in pre-COVID days, by reason of those last matters.
33I consider it appropriate to have a significant gap between the head sentence and the non-parole period for the reasons that I have identified and I do so. I am ready to pass sentence itself. Can you please stand Mr Lai?
34Ri Hua Lai, on the one charge of cultivate cannabis in not less than a commercial quantity, you are convicted. You are sentenced to be imprisoned for a period of two years and I fix the period of nine months as the time that you must serve before being eligible for parole.
35I declare pursuant to section 6AAA of the Sentencing Act 1991 (Vic), that but for your plea of guilty, I would have sentenced you to a sentence of four years' imprisonment and fix the period of two years as the time that would have had to have served before being eligible for parole. There is no pre-sentence detention that I must declare and so that sentence I impose commences today, without any counting or reckoning of any other term of imprisonment already served.
36And I make the forfeiture orders sought in the terms sought.
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