Director of Public Prosecutions v Ly

[2018] VCC 1473

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01572

DIRECTOR OF PUBLIC PROSECUTIONS

v

THANH LY

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2018
DATE OF SENTENCE:	30 August 2018
CASE MAY BE CITED AS:	DPP v Ly
MEDIUM NEUTRAL CITATION:	[2018] VCC 1473

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty - Cultivation of a commercial quantity of a narcotic plant - Trafficking in a drug of dependence - Possession of a drug of dependence – Commercial enterprise – Principal role in offending – Relevant criminal history – Poly-substance dependence disorder – Long standing drug abuse issues

Sentence:Convicted and sentenced to Total Effective Sentence of 3 years’ imprisonment with a non-parole period of 18 months’ imprisonment – Pre-sentence detention of 33 days’ declared as having already been served - s.6AAA Sentencing Act 1991 declaration – Ancillary orders – Disposal, Compensation and Forfeiture

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland ( Plea) Ms E. Piper (Sentence)	Solicitor for Public Prosecutions
For the Offender	Mr G. Boas	Theo Magazis & Associates

HER HONOUR:

1Thanh Cong Ly, you have pleaded guilty to one charge of cultivation of a commercial quantity of a narcotic plant, one charge of trafficking in a drug of dependence and two charges of possession of a drug of dependence.

2The maximum penalty for cultivation of a commercial quantity of a narcotic plant is 25 years' imprisonment; for trafficking a drug of dependence, 15 years' imprisonment, and for possession of a drug of dependence not related to a trafficking purpose, one year imprisonment - or in any other case, five years' imprisonment.

3You have also pleaded guilty to a summary charge, being dealing with property suspected of being proceeds of crime, which has a maximum penalty of two years' imprisonment.  I was told that at the time that you committed the offences you were 45 years old and lived in Dingley Village.

4Charge 1 relates to your cultivation of a commercial quantity of Cannabis L by means of two hydroponic setups which were found at two residential properties -  one being in Mount Waverley and the other in Chelsea Heights.  The property in Mount Waverley was owned by a Duc Dung Ho and his wife, Zeni Laterio.

5On 18 March 2016 they agreed to rent the property to a couple, Dien Van Nguyen and his partner, Trang, for $2,000 per month.  The property in Chelsea Heights was owned by a Theodosis Paramboukis.  During 2016 he advertised the property for rent on Gumtree.  According to his statement he rented the property to an Asian couple for $1,400 per month.

6On Friday 30 December 2016, at about 8.20am, police executed search warrants at your home address in Dingley Village.  You, your wife and children were present at the time of the search.  During the search the following items were seized by police:

·A resealable bag containing a white crystal substance which was found in the linen cupboard, giving rise to Charge 3; possess a drug of dependence - namely methamphetamine;

·$3,850 in Australian currency which was in the top drawer of a bedside table in the master bedroom.  This gives rise to a summary charge of dealing with property suspected of being proceeds of crime, to which you have also pleaded guilty; and

·A Royal Australian Mint order form in the name of Melinda Judson for the address where one of the crops was growing.  The document was dated December 2016 and was found in a shopping bag in a laundry cupboard.

7A 2008 BMW sedan was parked in your garage.  The following items were found in the car:

·An AGL account in the name of Zeni Laterio in respect to the property in Mount Waverley previously referred to;

·Three sets of keys; and

·A cutting tool with green vegetable matter on it.

8You were arrested in relation to possession of a drug of dependence and taken to the Caulfield police station.  Police went to the Mount Waverley and Chelsea Heights houses, to which I have previously referred, and discovered that each of them contained hydroponic setups for cultivation of cannabis.  Police then obtained and executed search warrants at each of the addresses.

9In relation to the Mount Waverley address police found in the upstairs room, and one of the bedrooms downstairs, a working hydroponic setup cultivating 54 cannabis plants.  One other room appeared to have previously contained a similar setup.

10Police found and seized a number of items including an electrical bypass, electrical switchboards, power boards, 28 light globes comprising six in one room and 22 in another, 19 globe shades, 54 cannabis plants comprising 30 in one room and 24 in the other, a bag containing green vegetable matter, which was found in a cupboard, and documents in the name of Dien Nguyen in the lounge room, including a receipt made out to Dien Van Nguyen from Duc Dung Ho with a reference to the Mount Waverley address, dated
18 March 2016.

11In relation to the search of the Chelsea Heights address police discovered working hydroponic setups in five of the main rooms which were cultivating a total of 124 cannabis plants.  Police found and seized a number of items including an electrical bypass, 49 light globes, 50 globe shades, 50 electrical transformers, two multi-socket electrical outlets, 124 cannabis plants comprising 24 small plants in one room and 100 plants of varying sizes in another, a quantity of green vegetable matter which was in one of the rooms and in the hallway, and a Westpac bank statement in your name and addressed to your home address in Dingley Village - this was found on the kitchen bench.

12In all, 178 plants were seized from the properties and these were later examined and weighed at the Victoria Police Forensic Services Centre by a forensic botanist.  The plants and green vegetable matter were identified as Cannabis L and weighed a total of 18.48 kilograms, which I understand is the wet weight of the plants.  The prosecution relies on the number of plants in arriving at commercial quantity, where the threshold for this is 100 plants.  The alternative threshold is 25 kilograms.

13You were interviewed by the police and made admissions to "doing the plants" at both of the addresses where the cannabis crops were found.  You referred to using third parties to prepare the setups and to do the cultivation, but you said that you had taken the crops back over because you had been ripped off by your co-offenders.  You said you did not know how to do it and were worried that this would happen - apparently a reference to being discovered by police - so you planned to clean up and sell the remaining plants.  You said that the property, or properties, were rented by a friend from the newspaper, and that you looked through the papers and tried to engage in the illegal conduct because you had no income.

14In relation to the Glen Waverley property you said that it was rented for $2,000 per month and that you had had about two or three crops over a period of about nine months.  You estimated that there are about 22 plants upstairs at the property and said that "downstairs there was only a little baby room with a few plants; baby ones starting to grow".

15In respect of the Chelsea Heights address you said that the property was rented for about $1,400 per month and that you first started renting the property about three or four months ago.  You said you had only had one crop, that there were only baby plants left and you were trying to get rid of this.  You admitted to selling cannabis from the harvested crops for $1,600 to $1,700 a bag, and you said that a bag was one pound.  These admissions give rise to Charge 2; trafficking in a drug of dependence.  You admitted that the white crystal substance found at your home was methyl amphetamine and belonged to you.  This gives rise to Charge 3 - possess a drug of dependence; methyl amphetamine - and on the basis of what was said at the plea hearing I am satisfied on the balance of probabilities that you did not possess this drug for a purpose related to trafficking, and therefore the lower maximum penalty applies.

16You were remanded in custody and lodged at Moorabbin police gaol.  You were then searched and found to be in possession of a small resealable bag which contained a white powdery substance which was concealed in your underpants.  This gives rise to Charge 4; possess drug of dependence - being heroin.  Again, on the basis of what I heard at the plea hearing I am satisfied that you were in possession of this substance for a purpose not related to trafficking.  Again, you get the benefit of the lower maximum.

17On 7 February 2017 an examination of a set of three sets of keys was conducted.  These fitted various locks which had been seized from both of the houses - that is, the crop houses.

18Mr Ly, your offending is serious and is deserving of a punishment which is just in all of the circumstances.  Also, your conduct must be denounced.  By your own admission your role was one of principal organiser involved in arranging for the setup of hydroponic crops in two separate residences.  The number of plants overall was 1.78 times the threshold for commercial quantity.

19As was submitted by the prosecution, this was clearly a commercial operation.  You admitted to the harvesting and selling of two or three crops at the Glen Waverley property over a period of about nine months in addition to the crop at the Chelsea Heights property, which was being cultivated for the purposes of sale.

20While I accept that there were others involved in the offending, and that one sees drug hierarchies far greater than yours, your role was a principal one in relation to the cultivation and you involved yourself in this for financial reward.  Further, you have a relevant criminal history which involves two prior convictions for trafficking.

21I take into account your criminal history, which is a significant - and, as I have said - relevant one.  Your criminal history dates back to March 1991 and comprises a number of burglary and theft charges, as well as other dishonesty charges and drug related charges, including trafficking heroin on two separate occasions.

22You have had a variety of sentences imposed on you over the years, including community-based dispositions designed to help you to overcome your drug addiction.  I have also factored in that your last prior matter - which was trafficking heroin, drug possession charges and deal with property suspected of being the proceeds of crime - were dealt with in the Magistrates' Court in June 2014, and it is apparent that you did not breach this order.  I also note that your last prior matter before this was in 2005, so there have been some substantial gaps between some of your offending.

23I was told that prior to your remand you had been on a community corrections order in relation to a subsequent matter, and that there is a single breach which was to be dealt with shortly in the Moorabbin Magistrates' Court.  Apart from this there were no subsequent matters and you had been doing quite well on the community corrections order.

24In relation to co-offenders two others were spoken to by police.  Dien Nguyen was charged with cultivating cannabis simpliciter and his matter is yet to be dealt with.  He leased the house in Mount Waverley, where one of the crops was kept, therefore parity is not a consideration in this case.

25In sentencing you I have taken into account that at the time of the offending you had a longstanding drug addiction and you had been diagnosed by
Mr Ian McKinnon, psychologist, as suffering from a polysubstance dependence disorder.  Your drug addiction involved opioid and methyl amphetamine abuse, however you were not so drug addicted that you were unable to embark on this offending.  Your counsel submitted that the offending was of an unsophisticated and chaotic nature, however it appears to me that you had successfully been able to cultivate a number of crops, albeit through people who were working for you.

26Your drug addiction is not a mitigating feature of the offending, but is a relevant circumstance and helps to explain your need for financial gain, rather than being purely motivated by greed, which would have made your moral culpability even higher than it already is.  I have also taken into account that at the time you were apprehended you indicated your intention to dismantle the crop houses, as you were unable to manage them properly.

27I allow for a fairly substantial discount in the sentence that you would otherwise receive in view of the stage at which you entered pleas of guilty.  I understand that you were always willing to plead guilty to an appropriately drafted indictment, however there were some complications in relation to the stance of the confiscation division of the Office of Public Prosecutions, but also in relation to the framing of the cultivation charge.  There was a contested committal hearing, which is not something which you are to be punished for, however the discount in sentence would have been even greater had this step not been taken.

28In any event, I have allowed for a fairly substantial discount, as you have saved the witnesses the time and trouble of giving evidence at trial, and you have saved the community the time and expense of running a trial.  I allow a further discount in your case because of your cooperation with the police in making very full and frank admissions.  In relation to the cultivation charge you admitted to a high level role which might otherwise not have been able to be proven by the prosecution, and you also admitted to trafficking, and the extent to which you were involved in trafficking, in circumstances where the prosecution would not have been in a position to prove those matters.

29The stage at which you entered pleas of guilty to the charges on the indictment, in combination with your early and extensive cooperation with authorities in view of these matters overall, allow for a significant discount in a sentence that you would otherwise receive.

30I must give strong weight to general deterrence in a bid to deter others who are tempted to behave as you have.  As has so often been said, drugs are a scourge on our community and so often lead to misery and dysfunction, which impacts not only those who become addicted, but also impacts negatively on their family and friends, as well as the broader community.

31I take into account your background.  You are 47 years old and come from a disadvantaged background.  You came to Australia as a refugee via Malaysia, travelling with your uncle and aunt.  You first lived in a hostel in Springvale with your relatives, then moved with your uncle's family to rented accommodation.  You lived in this household for about five more years, until your auntie developed cancer and you were made to leave that household because of these changed circumstances.  You returned to live at the hostel with a group of adolescents who were under the care of State guardians.  After a year the hostel closed and you spent time living on the street until you and a group of adolescents of Southeast Asian background were helped by community housing workers to rent a home in Noble Park.

32According to your report to Mr McKinnon, psychologist, the accommodation was chaotic at times, with police attending regularly and several of the people living there using heroin and becoming involved in minor offending. You continued to attend school however and did your best to apply yourself to your studies.  You tried to complete Year 12 on three occasions.  According to your report to Mr McKinnon you left school at the age of 18.  You went on to complete a tailoring apprenticeship and worked in fabric cutting in various sweatshops in the Springvale area.  After several years the clothing manufacturing industry collapsed and most clothing companies closed, which saw you finding work in factories and on farms, and stacking shelves in supermarkets.  I understand that you have also been a truck driver from time to time, which was the occupation you described at the beginning of the plea hearing.

33You have a longstanding drug addiction which is now in remission, I am told.  You reported to Mr McKinnon that in the past you have also been a heavy drinker of alcohol and had smoked cannabis on only a handful of occasions.  You said that you tried heroin by smoking this when you were in your 20s, and since then you have struggled with addiction to the drug, commencing to inject in 2013.  On occasions you have tried to overcome your opioid dependency by using prescribed medications - Methadone and Suboxone - and on a number of occasions you had removed yourself from where you lived in order to completely abstain from drugs for a few months.  In about 2008 you first smoked ice, and over the next few years you used the drug on rare occasions. However in 2011 you commenced to use ice regularly and became addicted to it, usually smoking ice twice a day during late 2011 to early 2012.

34You have a partner, Janet, with whom you have lived for the past 14 years.  You have a ten year old daughter and a 19 year old son.  I was told that your partner is not prepared to support you in the future if you continue to abuse drugs and to commit offences.  I was told that she was not involved in any of your offending and that you feel bad for putting her and your children in a poor situation because of it.

35As part of your bail conditions in relation to prior offending you attended drug counselling with a Salvation Army counsellor in 2014, and you have also attended counselling sessions for drug abuse as part of a community-based order which was previously imposed.  You successfully completed the community corrections order imposed in 2014, however you relapsed into using heroin again, and also used ice on occasion.  You had been on Methadone but took yourself off when you were in the Melbourne Assessment Prison, and you continue to be abstinent from drugs.

36I accept that you are remorseful for your conduct insofar as it affects you and your family, and that you feel ashamed for what you have done.  I am not convinced that you have a good degree of insight as to the seriousness of what you have done insofar as your actions can impact on other people.  I hope that you come to appreciate this.

37In terms of your mental health I take into account the report of Mr McKinnon in general terms, but there is nothing which would reduce your moral culpability or the weight which I attach to relevant sentencing principles.  When assessed by Mr McKinnon you were reactively depressed and anxious about your legal predicament, and as previously stated, Mr McKinnon found that you were suffering a polysubstance dependence disorder.  He said that you were a long-term addict who had genuinely struggled to overcome your substance dependence disorder because you had "several deep-seated personal background/psychosocial factors that continued to trouble you and add impetus to your propensity to abuse illicit substances; partly as a means of self-medicating your chronic distress".

38He went on to say that in the absence of adequate supervision for the foreseeable future you were at high risk of relapsing into illicit substance abuse and associated offending.

39I have also taken into account that there is a risk that you will forfeit your interest in the family home, which is the subject of confiscation proceedings.  I was advised that these are contested proceedings and the outcome of these is yet to be known, however I take into account that there is a likely prospect that you will lose your interest in the family home.  I factor in that your concern for your family in these circumstances will also make time in gaol harder for you than it would otherwise be.

40In view of your offending, your criminal history, and your struggles with drug addiction - but also factoring in your current abstinence from drugs, your family support and ability to engage in honest work in the past - I assess your prospects of rehabilitation as guarded.  Much depends on your ability to abstain from drugs in the future, and to do what you can to engage in honest employment and accept the support of your family.  In assessing your prospects of rehabilitation I have also taken into account your plea of guilty and level of cooperation with the police, as well as your remorse.  I give fairly strong weight to specific deterrence in view of your offending, and the other matters to which I have just referred, in the context of your prospects for rehabilitation.

41In sentencing you I have considered current sentence practice.  Your counsel accepts, on your behalf, that a sentence of imprisonment is appropriate, and the prosecution also makes this submission.  Your counsel further acknowledged that a sentence which involved imprisonment in combination with a community correction order would not be within the range, but submitted that a sentence of imprisonment which did not greatly exceed 12 months would be appropriate.  From this submission I understood your counsel to be referring to the non-parole period of such a sentence.

42In any event, I have considered the submissions of the prosecution and your counsel in relation to sentence, as well as current sentencing practice, which is but one factor I must take into account.  I should say to you that in relation to future employment although the manufacturing industry for clothing may have closed there is a great demand, anecdotally speaking, for tailors of your ability and skill to work on a private basis for many people who would require those sorts of skills and do not have them themselves.

43In the end, having considered all relevant matters in your case I have arrived at a sentence which, in my view, adequately reflects the weight which I must give to all relevant sentencing principles, and relevant considerations in your particular case.

44Would you please stand up Mr Ly?

45I make the following ancillary orders.  Firstly, a compensation order of $1,000 in favour of Dung Ho, who paid $1,000 excess to his insurance company for the repairs of his Mount Waverley house.  Secondly; a forfeiture order of $3,850, being the cash seized from you and suspected proceeds of crime.  I understand that neither of these orders are opposed.  I also make a disposal order in the terms sought by the Crown.  Again, I understand that this order is not opposed.

46You are sentenced to the following terms of imprisonment:

·Charge 1, two years and six months;

·Charge 2, 18 months;

·Charges 3 and 4, one month in respect of each of the charges;

·Summary Charge 4, six months' imprisonment.

47I direct that six months of the sentence imposed on Charge 2 is served cumulatively with the sentence imposed on Charge 1, but that otherwise the sentences be served concurrently with each other, producing a total effective sentence of three years' imprisonment, and I direct that you serve 18 months' imprisonment before becoming eligible for parole.

48If not for your pleas of guilty I would have sentenced you to a total effective sentence of five years' imprisonment with a non-parole period of three years’ imprisonment.

49I declare that you have already served 33 days by way of pre-sentence detention.  Is there anything arising from these remarks?

50MR BOAS:  No, Your Honour.

51HER HONOUR:  All right.  Yes, thank you.  Yes, if you could please remove Mr Ly?  Yes, thank you.  We'll now adjourn.

52MS PIPER:  Before Your Honour leaves the Bench - sorry, I note that there is the pecuniary penalty order that is still, as I understand it, on foot.  That will need to be adjourned.

53HER HONOUR:  Well, we've just had the prisoner removed, so anything ‑ ‑ ‑ 

54MS PIPER:  I did ask - sorry, yes.

55HER HONOUR:  ‑ ‑ ‑ should be mentioned in front of the prisoner.

56MS PIPER:  I did ask, sorry, my learned friend if he wanted to do that with his client present.

57MR BOAS:  It's not a problem to adjourn that to another ‑ ‑ ‑ 

58HER HONOUR:  Right.

59MR BOAS:  ‑ ‑ ‑ date, Your Honour, in the absence of the prisoner.

60MS PIPER:  Apologies, Your Honour.

61HER HONOUR:  So there's an application that's before me, is there, in relation to that?

62MS PIPER:  I understand that there is.  Yes, Your Honour.

63HER HONOUR:  Well, I didn't understand that to be the case.

64MS PIPER:  I may stand to be corrected in relation to that.

65HER HONOUR:  I understand these applications are generally dealt with in a - you know, by another judge sort of on another day - not necessarily before the sentencing judge.

66MS PIPER:  My instructions are, Your Honour, not to deal with it, you know, before today.

67HER HONOUR:  No, but I don't even known if it's before me, that's what I'm saying.

68MS PIPER:  Yes.

69HER HONOUR:  Yes.  Look, I think you better liaise with registry and listings in relation to this.  It's not listed before me.  It's generally not listed before the sentencing judge, as I understand it.

70MS PIPER:  Yes, Your Honour.

71HER HONOUR:  So although it's been - the notice has been filed with the court that - as I understand it it's really dealt with in another list.

72MS PIPER:  Yes, Your Honour.

73HER HONOUR:  So if you chase that up through registry.

74MS PIPER:  We'll make those enquiries.

75HER HONOUR:  All right.

76MS PIPER:  Thank you, Your Honour.

77HER HONOUR:  Yes, thank you.  We'll now adjourn.

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