Director of Public Prosecutions v Leong

[2016] VCC 27

Pages 1 - 5   IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-01741

DIRECTOR OF PUBLIC PROSECUTIONS

v

WONG LEONG

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 January 2016
CASE MAY BE CITED AS:	DPP v Leong
MEDIUM NEUTRAL CITATION:	[2016] VCC 27

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 K. Hamill	Office of Public Prosecutions
For the Offender	Ms L. Scholz

HIS HONOUR:

1You, Wong Leong, have pleaded guilty before me to one charge of cultivating a narcotic plant, a commercial quantity, and one charge of theft of electricity.  The circumstances giving rise to these matters are fully outlined in Exhibit A being the prosecution opening for plea hearing dated 28 January 2016 and Exhibit B, the chronology.

2In broad compass, on 16 July 2015 police executed a search warrant on a property of 6 Featherpark Way, Craigieburn and they have found five rooms devoted to hydroponic cultivation of cannabis containing cannabis plants at various stages of maturity, pots, fertilisers and heating lamps.  In the walk-in robe in the master bedroom investigators observed a ladder placed immediately below a manhole.  Two officers climbed the ladder and had commenced a search of the roof cavity when you made them aware of your presence and surrendered yourself to their custody.

3Police seized a number of items during their search including a total of 184 cannabis plants with a total weight of 29.87 kilograms, giving rise to Charge 1.  The smaller plants were up to two weeks old and the larger plants were between seven to nine weeks old.  (b) Growing instructions and (c) various personal items including paperwork in the accused's name.

4On the same day investigators also located an electricity bypass connected to the mains cable between the pit and electrical meter which allowed the property to use unmetered power.  A contractor attended the property to remove the bypass and disconnect the power.  AGL's records shows supply was connected to the property on 2 July 2015.  The total illegal usage of electricity for the property from 2 July 2015 to 16 July 2015 is valued at $2575.04 and it gives rise to Charge 2.

5You were arrested and taken to the Fawkner police station where you made fulsome admissions regarding your offending during your record of interview.  See paragraph 11 of the prosecution opening.  You were charged on 16 July 2015 and remanded in custody.  You entered a plea of guilty at the committal mention on 7 October 2015.  You have no prior convictions and you have spent 196 days in custody by way of pre-sentence detention.  A disposal order was sought and not opposed by counsel on your behalf and there are no victim impact statements in this matter.

6As was pointed out by your counsel there are a number of mitigating factors.  You have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial.  I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

7Further, I take into account in your favour that you intimated your pleas of guilty at the earliest possible opportunity and you cooperated with police. 
I accept in your case that your pleas do indicate true remorse for your actions. 

8I have been told something of your personal history and your circumstances.  You are aged 60 and at the time of the offending you were aged 59.  You were born in rural Malaysia and you are a Cantonese speaker.  You were raised by your parents in rural Malaysia as one of six siblings.  You have limited contact with your siblings as some have passed away and others have moved elsewhere.

9You married in Malaysia over 30 years ago.  You had a son, now 32 and a daughter, now 30, with your wife.  You also have a number of grandchildren.  Both your children and your wife remain in Malaysia.  It is your intention upon returning to Malaysia to return to your family in Kuala Lumpur.  You have limited contact with your son due to a strained relationship with your daughter-in-law.

10You attended secondary school to Year 9.  When you were approximately 14 you moved to Kuala Lumpur to study welding at a vocational school.  At about 16 you started working as a welder on off-shore oil rigs.  You would work one week on and one week off.  Shortly after you started this job, through a combination of foreign investment in the oil rig and an accident that killed a number of people, you were no longer able to continue in this employment.

11Since this time you were required to obtain handyman or farm work to support your family.  You lived in Kuala Lumpur since arriving there when you were about 14.  You entered Australia in August 2012 on a tourist visa.  That visa expired on 10 November 2012.  You decided to remain unlawfully in Australia so that you could obtain work.  You were concerned that, given your age, you and your wife had no savings to continue to support yourselves.  You wanted to work in Australia to be able to send money back home to your wife. 

12During your time in Australia you found seasonal agricultural work.  You initially picked strawberries in Perth and then picked mangoes in Darwin.  You would move around trying to find seasonal work fruit picking or other farm work.  Up until January 2015 you had been working on a grape farm on Mildura, however lost this job because of your age and ability.

13You were unable to find further work and were finding it increasingly difficult to survive with your limited savings.  You became involved in this offending through an acquaintance called "Bong" whom you knew from strawberry picking in Perth and who you met again at the casino in Melbourne.  When Bong offered you work in cannabis cultivation you agreed and were referred to a Vietnamese person who gave you the address of the Craigieburn property and told you to retrieve the key from the letterbox.

14When you arrived at the property there were some small cannabis plants in the house and the electrical bypass was set up.  You remained living at the property for a few months.  You were given a car to drive however this car was not registered in your name.  You installed lights and bought chemicals for the plants.  You were paid around $6000 when you started living at the property which you used for groceries and other expenses and you were to be paid more money when the cannabis plants flowered.  You were unclear as to what financial benefit you would receive at this later date.

15Since your arrest you have been held for the majority of your period of incarceration at Port Phillip prison.  You work as the lead kitchen hand in the kitchen there.  You used the money earned from this work to buy food from the canteen within the prison.  Given you have only two remaining teeth you are unable to consume a lot of the normal food supplied in the prison and you are reliant on buying softer food such as noodles and eggs from the canteen.  Your counsel submits that you have completed certificates whilst in custody related to your kitchen work. 

16You are a foreign national and therefore the impact of your incarceration will be more burdensome because of your lack of English and the separation from your family.  You will no doubt be deported in due course as you desire. 

17As well as those matters personal to you, of course, I must take into account matters of deterrence and especially general deterrence as directed by the relevant authorities.  The principal is always of some importance in cases such as this involving a sophisticated hydroponic plantation producing a significant amount of cannabis.  Specific deterrence is of modest applicability in the circumstances given your age and circumstances.

18I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending, which I find to be low in view of the materials to which I have been referred and given that you will almost inevitably be deported.

19These are, without doubt, serious offences and in all the circumstances I have with respect to the - no alternative to the imposition of custodial sentences, you are convicted and sentenced as follows.

20On Charge 1, 15 months' imprisonment.  On Charge 2, six months' imprisonment.  I order Charge 1 to be the base sentence and order that one month of Charge 2 be served cumulatively on Charge 1.  This results in a total effective sentence of 16 months. 

21As prescribed by s.18 of the Sentencing Act I declare the period of time you have already spent in custody in respect of this matter and for no other reason, is 196 days and I direct that such be noted in the records of the court.

22With respect to s.6AAA but for your plea of guilty I would have ordered a total effective sentence of three and a half years imprisonment with a non-parole period of two and a half years.  Yes.

23MS HAMILL:  I'm not sure, I may have missed it, Your Honour, but did Your Honour intend to impose a non-parole period?

24HIS HONOUR:  No.

25MS HAMILL:  Yes, Your Honour.

26HIS HONOUR:  Thank you.  All right, anything further?

27MS SCHOLZ:  No, Your Honour.

28HIS HONOUR:  Thank you.  All right well thank you for your attendance and we'll adjourn.

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