Director of Public Prosecutions v Lai

[2020] VCC 1325

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

AT MELBOURNE

CRIMINAL DIVISION

CR-20-00840

DIRECTOR OF PUBLIC PROSECUTIONS

v

THUY NGOC LAI

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JUDGE:	Her Honour Judge Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2020
DATE OF SENTENCE:	25 August 2020
CASE MAY BE CITED AS:	DPP v Lai
MEDIUM NEUTRAL CITATION:	[2020] VCC 1325

REASONS FOR SENTENCE
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Subject:  

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Legislation Cited:    
Cases Cited:            
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Singh	Office of Public Prosecutions
For the Accused	Mr D. Grace QC	Law Offices of David Grace QC

HER HONOUR:

1Thuy Ngoc Lai, on 14 May this year, as police were executing a search warrant at a house in Airedale Avenue, Hawthorn East, you arrived at the property by car.  You aborted your turn into the driveway when you saw police were in attendance.

2You made some unsuccessful attempts to avoid apprehension. You parked, walked away from the house and made a phone call. When approached by police, you pointed to a house nearby and said you were visiting a friend.  The occupant of the house denied any knowledge of you or the friend you asserted lived there. You were asked to go back to the house at Airedale Avenue.  You tried to run away, but were caught and taken back there.

3In the house was a well-established, sophisticated hydroponic cannabis growing operation. There was a total of 235 cannabis plants, at various stages of maturity that, in itself, is evidence of a continuing enterprise of successive harvests. Further evidence of that was the finding of 9.68kg of already harvested and dried cannabis. The combined weight of the plants and dried cannabis was 211.49kg, more than eight times a commercial quantity.  That may be a somewhat misleading description when put like that.  The cannabis plants, of course, were weighed in their full wet weight and so a better indicator of the size of the crop was by reference to the number of plants, their varying degrees of maturity and the significant amount of already harvested and dried cannabis.

4Six rooms of the house had been converted to a cannabis growing enterprise and the house contained the usual paraphernalia associated with that.  That included plastic sheets to line the rooms, fans, overhead lamps, transformers, plumbing to support an irrigation system and an illegal power connection, so as to make the electricity used for the enterprise unmetered. There was extensive damage to the property caused by its conversion for use as a grow house.

5When questioned at the house, it is said you told police that you had been looking after the house for “about five months”.  You dispute that period of time and in fact in your later interview said that you had been looking after the property for about three months.  As the prosecutor, Ms Singh, pointed out, the charge, cultivating a commercial quantity of cannabis to which you have pleaded guilty, was for a period of three months, reflecting the time that you admitted to in your recorded interview.  At the house you also told the police you had gone there that day to “cut a room”, in other words, to harvest the crop in one room which had reached maturity. You told police that you intended to dry the harvested crop at your home in Springvale. When asked how much you were paid to look after the place you said $5,000.00.

6Police searched your car. On the back seat and in the boot there was potting mix, liquid fertiliser, gloves and garbage bags, all clearly related to the cultivation of the cannabis in the house.

7It is your conduct in cultivating, harvesting and drying the cannabis at the Airedale Avenue property which constitutes Charge 1 on the indictment, of cultivating a narcotic plant in a commercial quantity, to which you have pleaded guilty.

8Later that same day, police executed a search warrant at your home in Springvale. There they found a locked room with fans, wired frames and a carbon filter set up to dry cannabis, and approximately 420g of dried cannabis was found in your dining room. This constitutes Charge 2 on the indictment, possession of a drug of dependence, namely cannabis, to which you have also pleaded guilty.

9That search of your home revealed further evidence of the extent of your involvement in the cultivation of the cannabis, which included things like a calendar and notebooks with your handwriting on it recording details of the cultivation and invoices from Origin Energy.

10A search of your wallet revealed $775.00 in cash. You told police that was money you had been paid for your participation in the cultivation. As a result of the finding of that money and your admission in relation to it, you have also consented to having your guilty plea to a summary charge of dealing with property suspected to be the proceeds of crime being dealt with in this court .

11When interviewed by the police, you made extensive admissions. You admitted ‘feeding’ the plants with a liquid mix, cutting and drying them. You said you knew there were about 100 or more plants in the house. You denied being the person who actually planted them, saying they had already been set up when you started looking after them. You told police you had been working at the address for around three months, visiting every two days, and that the harvesting you had intended to do that day was the third harvest you had done.

12When asked about the organisation behind the set-up, you said you had been introduced to the job by a man named Hung. You said you had met him at a party.  You said that initially the two of you had spoken by phone until he told you he was under surveillance in April and then he had left messages for you in your letterbox. You said you were paid $5,000.00 every six weeks, that is, after each harvest and, as already noted, you admitted that the $775.00 cash found in your wallet was a payment or what was left of payment for previous cultivations.

13You also told the police that the car that you had driven to the property that day had been provided to you by Hung as part of the operation. You said the fertiliser and other things in the car had been dropped off at your residence by a friend.  And you said that the arrangement included the dried cannabis being collected from your home, at a time you were away yourself.

14It is clear from what was found in the grow house, in your own home and what you said in your responses to the police that this was a sophisticated, continuing enterprise, in which you played a vital role. That there is no evidence you were the funder of the scheme, stood to reap the ultimate profits, sourced or set up the house, installed the hydroponic equipment or electrical equipment or diverted the electricity, planted the crops, or sold the dried product, should not and does not divert attention from what you did do and what you stood to gain.

15To say you were a crop sitter does not of itself assist in defining your criminal or your moral responsibility.

16It is clear from the matters set out in the prosecution summary that you were responsible for tending the crop, attending every second day to do so, fertilising, monitoring and harvesting when ready. You were paid to do so, not only in cash, but by provision of a car. It would appear you did not have to pay for the fertiliser and other products you used to tend the crops and therefore the money you received, it is clear, was net profit to you. It is of note, when considering the possession charge, that the enterprise extended from the grow house to your own home. You took cannabis home and dried it in a locked room, set up with drying racks and the like. Therefore, this was no amateur enterprise. Everything smacks of a commercial enterprise and one in which you willingly participated, over a period of three months, for reward.

17It is that conduct, not a convenient tag, one that covers a wide range of activities of a crop sitter, that best defines your role and your culpability. 

18It is not suggested that you had any particular susceptibility or vulnerability to exploitation, nor is it suggested that you were lured into this, unaware at the start that you were cultivating cannabis or that you started in a small enterprise and quickly found yourself in a much bigger enterprise.

19You knew from the start what you were doing and that it was wrong.

20There is no evidence you were blackmailed, coerced or taken advantage of in any sense, other than by being prepared to engage in a criminal enterprise, rather than in legitimate work, for reward or, as Mr Grace put it in the course of the plea, to make easy money.

21There is no suggestion you were exploited by reason of obligation, migration status, mental illness or debts due to gambling, substance abuse or misfortune, which often are features of people who are described as crop sitters.

22You are 33, have lived in Australia since the age of 19 and appear to be a person of average intelligence. You are an Australian citizen with a stable marriage and have other family support. You have held down steady employment for most of the time since your arrival in Australia. You had been unemployed since late November last year (some three months or so before the start date of the cultivate charge).  Although you had been unemployed, you were not, as I was told, in debt and you were capable of engaging in gainful employment, when employment was available. You were also eligible for unemployment benefits, although you had apparently not applied. 

23All of this points to the fact that your offending is properly characterised as for-profit offending, not the exploitation of a vulnerable person.

24Cultivation of cannabis in commercial quantities and possession of the cultivated product, for commercial purposes, that is for purposes related to trafficking, are serious offences, generally warranting punishment sufficient to mark condemnation of engaging in criminal enterprises for gain, to deter those involved from doing so again and to make those thinking of doing so consider whether the financial gain outweighs the consequences if caught.

25Consistently with that, Parliament has fixed as a maximum sentence for these offences: 25 years for commercial quantity cultivation, 5 years for possession and 2 years for the proceeds of crime offence. The maximum penalties are one measure of their seriousness. So far as the charge of cultivation is concerned, by reason of s 5(2H) of the Sentencing Act 1991 (Vic), a sentence of imprisonment is mandated and in this case it is inevitable, as it is not suggested any excusing circumstance exists to prevent s 5(2H) from applying.

26In his comprehensive and helpful submissions, Mr Grace acknowledged from the outset that, so far as Charge 1 was concerned, imprisonment was inevitable.

27Mr Grace's submissions were directed to the length of the term of imprisonment and the appropriateness of a mixed sentence, that is one that would involve the imposition of a community correction order rather than a term of imprisonment for the possession charge.

28What then did he rely on to support those submissions and temper the weight to be given to the sentencing factors I have identified, those factors which weigh heavily when considering the considered decision you made to engage, for profit, on a continuing basis, in an enterprise you knew was criminal?  What considerations might lead to a decision that a term of imprisonment of less than 12 months, as submitted by Mr Grace, combined with a community correction order for the possession charge, would be sufficient to meet the needs of just punishment, deterrence, both general and specific, and denunciation, and would properly reflect your past good character and encourage your rehabilitation?

29At the age of 33, this is your first involvement in criminal justice system. You were born in Cambodia, but then made your way to Vietnam and came to Australia at the age 19 to join your father.  He had left you and your mother in Cambodia when you were very young to come to Australia to make a new life here. You were brought up by your mother until she died when you were 10 .  You were then brought up by your grandmother before ultimately transitioning to Vietnam where you were sponsored by your father to join him here. In Australia, your father had re-partnered and you formed a relationship not only with him but with his new wife stepmother and your two step-siblings.

30Although your command of English remains limited, you have a good stable work history.  It dates, it would appear, from the time of your arrival at the age of 19 until late last year.  Your work has been predominantly unskilled or semi-skilled work.  I was told that, for five years after your arrival in Australia, you worked on a farm with your stepmother.  You then worked in factories, particularly two successive long-term factory jobs.  I was told that you left your last job due to the impact of bullying.  Mr Grace was at pains to point out that you had been supported in your complaints about the bully, but nonetheless found it too difficult to stay in that job.  I was told that you had been looking for, but had not found, new employment and that although eligible for unemployment benefits, you had not applied.

31I was told that it was in that context that you met the man “Hung”, who offered you work tending the crop and that you accepted it, even though you knew it was a marijuana crop.

32I have already referred to your family.  You married last year and I am told that relationship continues although you have been remanded in custody since your charge and you look forward to returning to your wife and to a life together on your release.  I am told that you also continue to have the support of your father, your stepmother, your stepsiblings and considerable numbers of extended family in Australia.

33As a result of your being charged and remanded in custody, you have spent the last 103 days in custody. Due to COVID-19, that time in custody has been more onerous than normally it would be for a first-time offender who has got to the age of 33 without any experience of the criminal justice system.  And after sentencing, your time in custody will, by reason of COVID-19, be more onerous than it would otherwise be.  You have had no visits because of lockdowns associated with COVID-19 and despite the family support to which I have referred. Although phone calls have increased somewhat in frequency or availability as I understand, your contact with the outside world is limited to the rostered number of calls available to you.  You have been isolated and cut off from your family and support.  You have had no access and will have no access once sentenced to most, if not all, of the courses and programs that have previously been available to remanded and sentenced prisoners.

34Those are considerable hardships which properly should be taken into account and I do so in reducing the sentence otherwise appropriate.

35Significantly also, in my view, being a person in custody you are living with the fear of exposure to COVID-19 in that custodial setting, Although, on the material available to the court, there have been no cases of coronavirus in the female prisons in this state to date and the only cases in the male prisons have been detected in new remandees. They have not transmitted the disease to anyone else in the broader prison population.  I accept, however, that this fear of closed community transmission is a very real and palpable one.  As a result of being in custody, you are unable to make your own decisions about how best to protect and isolate yourself.  In my view, that adds considerably too to the reduction in sentence otherwise appropriate.

36Other matters counting in your favour are, your previous good character, your prospects for rehabilitation and your very early plea of guilty. It is now only three months and 11 days since you were charged and remanded in custody.  This is an extraordinarily short time, in Victorian terms even without COVID-19 or perhaps even more so having regard to COVID-19, for a person to be dealt with in this court following their arrest. It is clearly as a result of your very early acceptance of guilt and the efforts made by your lawyer on your instructions to fast-track everything from the first committal mention through to now that has enabled this case to come on so quickly.  Had you not co-operated in and, in fact agitated for this, you would have remained unsentenced for a considerable time longer.  That you did not apply for bail and fast tracked the plea so as to be sentenced quickly in my view also counts considerably in your favour in these difficult COVID-19 times.  It is a brave choice.

37I accept in the circumstances that the admissions you made and your plea of guilty are entitled to considerable weight in considering the appropriate sentence.  From your own mouth and absent other evidence, you have provided proof for the three months of cultivation covered on Charge 1.  Without those admissions, the prosecution may not have been able to establish any involvement by you in cultivation, apart from the evidence of your attendance at the property on the day of the execution of the warrant and your arrest.  The admissions you made in your police interview are a very real indication that from the time of arrest, you intended to plead guilty. That meant that the police and prosecuting authorities did not have to look for any other evidence of the duration or extent of your involvement.

38Similarly, in relation to the proceeds of crime charge, that rests on the admissions made by you in your interview, that the money was indeed the proceeds from an earlier payment for cultivation.

39I accept that your guilty pleas were made at the earliest possible opportunity and that not only did you indicate your intention to plead guilty, but you were also taking active steps to bring this matter quickly and seamlessly through the court process.  That means that your cooperation, as well as your plea of guilty, counts in your favour.  Clearly, by these things, you have facilitated the course of justice and your admissions and consequent pleas have considerable utilitarian benefit. And so, in the circumstances, I do accept that your shame, embarrassment and remorse are evidenced by this plea, your admissions and co-operation in bringing this matter before the court at this stage.

40Having considered all those things count properly in your favour and carry considerable weight, I do not consider that a sentence of less than 12 months is appropriate for the charge of cultivation, given the duration of the cultivation and the for-profit motivation.  Nor, for the reasons discussed with Mr Grace in the course of the plea, do I consider a community correction order is appropriate for the possession charge.  The possession charge and indeed the proceeds of crime charge, although separate charges from the cultivation charge, are part of the overall enterprise and really consequences of the activity encompassed by the cultivation charge.  I consider in all the circumstances that in terms of totality the overall sentence should reflect that the three charges are just aspects of the one continuing enterprise.

41The possession in itself is just one manifestation of the extent of your involvement in the cultivation enterprise, but gives rise to a separate charge.  If I were dealing with you for possession alone, and not cultivation, the seriousness of the charge would not warrant anything other than a short community correction order. Its brevity would not serve the punitive or rehabilitative needs Mr Grace submitted such an order could address.

42I consider, in the circumstances, that the only proper sentence for all three charges is one of imprisonment, different terms for each, but with total concurrency between the three.

43Your previous good character, having got to the age of 33 without any criminal involvement, against your background of difficulty arising from being fatherless, in effect, from a very young age, being motherless from the age of 10, being brought up by extended family from 10 to 19 or until you arrived in Australia, counts strongly in your favour.  So your previous good character and what is clearly to me the acknowledged deterrent effect on you of having been charged and facing conviction,  and the attendant  loss of reputation and loss of liberty, in my view, combine to serve the needs of specific deterrence. No additional weighting in the sentence is necessary for that.

44Although your family support did not unfortunately deter you from offending in the first place, it is to be hoped that that family support which persists, despite the charges, will be a much greater incentive for you upon your release to return to the law-abiding life you had previously lived.  And that, therefore, I count as a considerable factor, together with your obvious employability skills, in assessing your prospects of rehabilitation in the future.  If you choose to take advantage of your family support, of the law-abiding life that you have previously lived and of your employability, then I consider your prospects for rehabilitation to be very good.

45Factoring all those things in, I consider that it is also appropriate, not only to reduce the sentence significantly by reason of COVID-19 and the considerable weight to be given to your guilty pleas, but also to take them into account in fixing a considerable gap between the head sentence and the non-parole period.  If supervision is to be something that is to assist you upon your release to reintegrate into the community and to lead a crime-free life again, then a level of supervision such as can be provided with parole seems to me to be a very sensible course. Indeed it is my hope that you would be considered for parole and considered at a very early stage from the time I recommend your eligibility, so as to give you every opportunity to integrate back into society and to return to the law abiding life you previously lived.

46I am about to pronounce the sentence.  I want to make sure, Ms Lai, that you understand that I first will tell you what the sentence is, and I then have to say what I would have sentenced you to if you had not pleaded guilty.  That second sentence is not the sentence you actually have to serve.  It is the first sentence that I pronounce that will be the time that you actually have to serve and that is a much lesser sentence than the sentence I would have imposed if you had not have pleaded guilty.

47Do you understand what I have just explained what I am going to do?

48OFFENDER:  Yes.

49HER HONOUR:  All right, on the three charges to which you have pleaded guilty, the two charges on the indictment and the related summary offence, you are convicted.

50On Charge 1 of cultivation you are sentenced to be imprisoned for a period of two years and three months.

51On Charge 2 of possession you are sentenced to be imprisoned for a period of six months.

52On the related summary charge of deal property suspected of being proceeds of crime, you are sentenced to be imprisoned for a period of one month.

53The sentences on Charge 2 and on the related summary offence are to be served concurrently with the sentence on Charge 1.  That means there is a total effective sentence of two years and three months.  I fix the period of 12 months as the time that you must serve before being eligible for parole.  I declare that you have spent 103 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

54So that is your sentence, two years and three months with a non-parole period of 12 months. 

55I declare that pursuant to s 6AAA of the Sentencing Act that, had you not pleaded guilty, I would have sentenced you to a total effective sentence of double that, that is of four years and six months with a non-parole period of two years.

56I make the disposal and the forfeiture orders requested.

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