Director of Public Prosecutions v Lam

[2016] VCC 706

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00588

DIRECTOR OF PUBLIC PROSECUTIONS

v

LOI TAM LAM

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 May 2016
CASE MAY BE CITED AS:	DPP v Lam
MEDIUM NEUTRAL CITATION:	[2016] VCC 706

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	Ms A. French
For the Offender	Mr A. Furstenberg

HIS HONOUR: 

1Loi Tam Lam, you have pleaded guilty to a charge of cultivating a narcotic plant, namely cannabis, and to theft of electricity between 23 November 2015 and
30 December 2015.

2You have no prior convictions.

3The maximum term of imprisonment for cultivating a narcotic plant is 15 years and for the offence of theft ten years' imprisonment.

4The prosecution has tendered and relied upon the summary of prosecution opening, which is Exhibit A, along with some photographs of the property and the plants, or some of them, which is Exhibit B.

5The prosecution opening sets out the circumstances in which you were identified as a person associated with the premises at 8 Bellemara Drive, Maroopna.  You were intercepted by police.  You were co-operative.  You made admissions that you had over a period of five weeks been acting as a crop sitter, essentially cultivating the cannabis plants and tending the cannabis plants.  You were in possession of some items that were associated with that process. 

6You indicated that you had been approached at the Crown Casino and offered $5,000 for fulfilling the role of cultivating the narcotic plants, which you did apparently over that period of five weeks by attending weekly and fertilising the plants and tending to the plants.

7There were a total of 49 plants that were fairly mature and one small plant.  The total weight of the cannabis was 29.32 kilograms and although that is higher than the minimum weight for a commercial quantity you have not been charged with that offence and I sentence you on the basis that you did not know or intend that the amount of cannabis was in excess of 25 kilograms.

8The theft of electricity arises from the bypass which had been set up enabling the electricity to be stolen from Energy Australia.  The estimate of the total cost of the electricity stolen during the period of the offending is $3,234.72.

9It is not suggested that your role was any greater than that which you admitted to.  You did not receive the $5,000 because that was promised to you at the time the crop was harvested and sold and that point had not been reached.  You apparently were under financial pressure at the time and willingly engaged in the role because you needed the money.

10It is an offence which is prevalent.  The story which you tell seems to be a common one and I accept that you were fulfilling the role simply as a crop sitter, a person who was required to tend and nurture the plants on a regular basis and that you were not expecting to participate in the profits, other than the receipt of the $5,000 that you were promised.

11The role that you played was obviously less significant than that of the person or persons who set up the crop house and less serious than those who were expecting to participate in the profits.  However, your role was a vital one and it is a serious offence of its kind, albeit your role was at the lower end of the scale.

12In my judgment cases like this do require a term of immediate imprisonment in order to satisfy the need to punish, the need to denounce conduct of this kind and, in particular, the need to send out a message to others who would be inclined to accept roles such as that that you accepted upon terms similar to those that you accepted.  You role of course was a vital one and you were aware of that fact.

13You had plenty of time to consider your position.  You had plenty of time to reconsider your position over the period of five weeks during which you were involved in the offending.  It is very much to your credit that you co-operated with the police and that you made frank admissions which enabled the prosecution to present the case in the way they have.  Otherwise it might have been difficult to prove that your cultivation had gone beyond the one day, that was the day of your arrest.

14You have pleaded guilty and you pleaded guilty at the earliest reasonable opportunity and you have facilitated the administration of justice.  I accept that you are entitled to a full discount on the utilitarian basis upon which your plea is entered and also that the plea is consistent with remorse and I accept that you are now remorseful, in that you have placed yourself in a position of jeopardy in circumstances where you are aware that your mother depends substantially upon your assistance for her wellbeing.

15I need not say much about your background.  It is relatively unremarkable.  You have been a worker, apparently in full work for many years and have been a productive member of the community.  You have no prior convictions and I am told there has been no other involvement with the police since the time of your arrest.  You have three children.  You are separated from your wife and you have a close relationship with your children who are now aged 16 years, nine years and three years respectively.  You see them two or three times per week.

16I accept that you have good prospects of rehabilitation and I accept that the concern that you have for the welfare of your mother will make time in custody more onerous for you.

17Your counsel has submitted that I should impose a community corrections order and that that would satisfy all of the relevant sentencing considerations.  I do not accept that.  It seems to me that unless terms of imprisonment are imposed for offences of this kind, general deterrence in particular is not satisfied.  However, I accept that the nature of this offending and your role in the offending conduct is such that I can impose a sentence which enables me to couple it with a community corrections order and essentially to split the punitive aspects of sentencing between a term of imprisonment and a community corrections order. I propose to do that.

18I am now ready to impose sentence upon you:

19On Charge 1, of cultivating cannabis, I convict you and sentence you to imprisonment for a period of 11 months.

20On Charge 2, of theft, I convict you and sentence you to imprisonment for a period of two months.

21I order that one month of the sentence on Charge 2 be served cumulatively upon the sentence of 11 months on Charge 1, making a total effective sentence of 12 months' imprisonment and I order that you be the subject of a community corrections order for a period of 12 months, which will require you, in addition to complying with the standard terms of such an order, to complete 100 hours of unpaid community work.

22Once you have completed the 100 hours of unpaid community work satisfactorily, the order will come to an end, but you have 12 months within which to complete that order.  The community corrections order will commence at the conclusion of your term of imprisonment. 

23I do not propose to fix a non-parole period.  It seems to me that the minimum sentence that is required in this case is 12 months actually to be served and I decline therefore to fix a non-parole period.

24But for your plea of guilty I would have sentenced you to imprisonment for a period of two years with a non-parole period of 16 months.

25I make the order for disposal of property associated with the offending conduct, in accordance with the draft with which I have been provided.

26The community corrections order will require you to report at the conclusion of your sentence to the Community Corrections Centre.  Mr Furstenberg, which will that be, will that be at Shepparton?

27MR FURSTENBERG:  No, Your Honour.  He was residing in Lalor.

28HIS HONOUR:  Lalor.

29MR FURSTENBERG:  So probably Reservoir would be the closest one.

30HIS HONOUR:  All right.  It will be at the Reservoir Community Corrections Centre.  You will have to report there within two clear working days of your release from your term of imprisonment and follow the lawful directions of the manager who deals with your case.  You will have to complete the 100 hours of unpaid community work and comply with the directions given to you by the Department of Corrections.

31If you fail to comply with the terms of the community corrections order, you will be liable to be charged with breaching the order.  That is an offence which carries a maximum term of imprisonment of three months.  If you commit an offence punishable by imprisonment during the period of the order then that will involve putting you at risk of up to three months' imprisonment for the breach as well as any punishment you get for the offence that puts you in breach and you may be brought back before this court to be re-sentenced on this matter, which would almost inevitably mean a longer term of imprisonment.

32The order will be drawn up and I would ask you, Mr Furstenberg, to accompany my associate to your client and make sure that he understands what he is signing.

33MR FURSTENBERG:  If Your Honour pleases.

34MS FRENCH:  As Your Honour pleases.

35HIS HONOUR:  Are you willing to be placed on a community corrections order?  Yes, thank you.  Yes, thank you.

36(Community corrections order signed and acknowledged.)

37(Disposal order signed and acknowledged.)

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