Director of Public Prosecutions v Mai
[2021] VCC 632
•14 May 2021
Correctly
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-00072
Indictment No. L12291402
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| QUANG MAI |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 May 2021 | |
DATE OF SENTENCE: | 14 May 2021 | |
CASE MAY BE CITED AS: | DPP v MAI | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 632 | |
REASONS FOR SENTENCE
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Subject: Between dates cultivation of cannabis; theft of electricity; possess methylamphetamine, 34 year old (as at sentence) principal offender. Multiple bags of dried cannabis, 22 seedlings and 56 plants. Over 28kg but a simpliciter charge. Relevant prior conviction for commercial quantity cultivation; Early guilty plea. Risk of deportation
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Ms E. Maguire | Office of Public Prosecutions |
| For the Accused | Mr M. Sturges | Emma Turnbull Lawyers |
HIS HONOUR:
Quang Mai, you have pleaded guilty to one charge of cultivation of cannabis, one charge of theft of electricity and one charge of possession of methylamphetamine.
The prosecution summary correctly sets out the maximum penalties. The Drugs, Poisons and Controlled Substances Act 1981 has a range of penalties for these two offences. They vary, dependent on whether a purpose connected with trafficking is excluded on the balance of probabilities or not. It is for the court to determine this matter and the court is not bound by any agreement reached between the parties. The parties jointly submit that for the cultivation, the higher maximum under s.72B(b) applies (15 years) as the offence was committed with a view to sale. That is to say, that a purpose connected to trafficking has not been excluded. That is conceded by your counsel. Plainly that concession is correct. Likewise I am prepared to act on the concession as to the trafficking purpose being excluded in relation to the possession of methylamphetamine charge and hence the lower penalty applies to that offence. So whilst these are ultimately matters for me to determine, I act on the maximum penalties spelt out in the plea summary. The submissions on this topic were correct.
You turned 34 the day before yesterday and have a very brief but obviously relevant criminal history.
This matter was opened to me on Monday of this week by the prosecutor, Ms Maguire, in accordance with a written summary dated 12 April 2021. Your counsel Mr Sturges informed the court that it was an agreed summary.
I will sentence on the basis of that agreed summary and see no need to set out all of the facts in these my reasons for sentence. The summary does that. There are also some photographs in the depositional materials.
I will say something only very briefly as to the facts and do that so that anyone reading these sentencing remarks will have some understanding as to the nature of your crimes.
The agreed summary (Exhibit A), describes the nature of the crop that you were cultivating at your residential address at 20 Mills Street, Sunshine North.
A warrant was executed upon the home on 24 September 2020. You were at home with your wife and two young children.
As the photographs and summary disclose, there was a sophisticated hydroponic set up. There were plants growing in a locked bedroom as well as in two hidden rooms behind false walls out in the garage. There was a bypass of the power meter, hence the theft charge. In total,12 bags containing over 3.5 kilograms of dried cannabis, 22 seedlings and 56 other plants were located and seized. One small zip lock bag containing methylamphetamine was also found in the garage (Charge 3). So all up 78 plants, and over 28 kilograms of cannabis by weight.
This is a quantitative based regime. As a matter of fact, you had over the commercial quantity of cannabis by weight (28.4 kilograms). Though it exceeded the commercial quantity, I am dealing with you for what the law describes as a simpliciter cultivation by which I mean a non-commercial quantity. That is the offence you have pleaded guilty to and what I must sentence you for. No doubt the matter correctly settled in the way that it did as you were not that far over the commercial quantity weight threshold and below the commercial quantity threshold by plant number.*
As I have said, you were present on the day that the warrant was executed and you were interviewed by the police with the assistance of an interpreter. You made full admissions and stated that you started growing cannabis about four months before to support your family. You spoke of your financial difficulties. You told the police that you intended to traffick the cannabis for financial gain to alleviate those difficulties. This commercial setting is conceded in your counsel’s written submissions.
You had been on bail since being charged until my remand of you the other day and you have pleaded guilty at the earliest opportunity.
In Mitigation
Mr Sturges conducted a thorough plea on your behalf. He had prepared an excellent written outline of submissions dated 5 May 2021.
He informed me of your personal and family background. He took me briefly to your work history. He made submissions as to your motivations for committing these offences as well as to the level of gravity of the offending. He conceded that you were the principal and had a high enough level of culpability. He relied upon written character references from your wife and two others. You were supported in court by your wife, by one of the authors of one of the references as well as by two other people.
Your counsel raised a number of matters in mitigation in a sensible plea.
He relied upon:
· Your early guilty plea;
· The presence of remorse;
· The risk of deportation.
He also mentioned the impact of COVID-19 in that you will be quarantined for 14 days.
Your counsel conceded the inevitability of a term of imprisonment and one requiring the fixing of a non-parole period, given your prior court appearance for cannabis cultivation and the objective seriousness of the current offending.
Prosecution
The Prosecutor, Ms Maguire, had prepared some brief written submissions dated
7 May which had been filed and marked as part of Exhibit A. Those submissions were uncontroversial and focussed on the matters of obvious seriousness in this case. You were the principal here, one with that highly relevant prior conviction.
The Director of Public Prosecutions was calling for a prison term.
Background
I will turn to your background but I will do so only quite briefly as I have no reason to doubt what I was told about your family background.
You were born on 12 May 1987. You are now 34 years of age. You were born and educated in Vietnam, completing the equivalent of Year 12 at school. You married your wife in 2010 and the two of you emigrated to Australia in 2012. You emigrated as her spouse. She was an Australian citizen. You have two primary school aged children, Bao and Ethan who are 8 and 7. Amazingly, this is the second time you have cultivated cannabis in the family home.
You have previously worked at a chicken farm, as a handy man and until last week, had been working as a house painter. You are currently on a permanent residency visa, which will likely be cancelled following this sentence. I will say more about that shortly.
I was informed that you began a handyman business in November 2019 and at one point, went to a job to ‘clean up’ a house in Melton where you were given the hydroponic equipment to store. Why you would have been asked to attend such a
set-up, why you would have been given the equipment and why you would have taken it to store remains entirely unclear.
I was told by your counsel that your business had struggled amidst the pandemic and that you received JobKeeper benefits for two months in June and July 2020 before being advised that you were not eligible, as the business was less than 12 months old. You were in a bit of a financial bind with no income and the need to provide for your own family as well as dealing with some medical expenses associated with your mother in law who was very unwell.
There is a strong reference from your wife which I take into account in your favour, although it must be said, she was living in the house with the cultivation set up, both in this instance and back in 2016. That is also quite incredible.
Her letter is however a sad one speaking as it does of your qualities, the stress that she has been under and the sad struggle against cancer which her mother waged but ultimately lost in March of this year. It also speaks of the financial issues which had plagued you at the time of the commission of these crimes and which she believes contributed to your decision to offend.
Regrettably, you have a relevant criminal history. It is only a single appearance but is obviously relevant to my task. On 26 June 2017, Judge Meredith of this court sentenced you to two years and five months' imprisonment with a non-parole period of 16 months for cultivating cannabis in a commercial quantity over a six month period in 2016, theft, possession of property suspected of being the proceeds of crime and possessing methylamphetamine. Those reasons have been placed before me as Exhibit B. You were released on parole on 13 March 2018 and despite that Judge being told of the strong likelihood of deportation, that did not occur. In fact, Mr Sturges told me that your visa was cancelled but you instructed lawyers to apply for reconsideration of that decision and that was successful. So, upon being granted parole, you returned to your family and continued living in this country. You were extremely fortunate to be in that position.
That next phase of your life is dealt with in paragraph 4-9 of the submissions with the difficulties I have spoken of involved in running your legitimate business and the decision to commit this serious crime. Your reduced financial circumstances are relied upon with struggles to support your family, and a sick mother in law who required some assistance. It is, I am afraid, not much of an excuse to offend in this way. You claimed financial need on the last occasion you cultivated drugs, on that occasion pointing to drug use and gambling.
The fact is virtually everyone who cultivates cannabis in a sophisticated hydroponic set up is doing so in the hope of some financial gain.
Now a few things arising from my discussion about your past appearance. I must pass a proportionate sentence for the crimes I am dealing with. Your past offence does not aggravate this one. You do not fall to be sentenced a second time for your past offending but I do have to make judgements as to your future prospects of rehabilitation, the need to deter you from offending, as well as the need to protect the community from you. It is pretty startling that you are back before this court in relation to a sophisticated cannabis cultivation and relying on many of the same matters in mitigation a second time. Judge Meredith took into account in your favour your past good behaviour. Well, that is no longer available to you.
Guilty plea
I will turn now to the matters raised on your behalf, firstly to your guilty plea. You have pleaded guilty at what I will treat as the earliest stage. You have taken this early responsibility for these crimes. No witnesses were required to give evidence. The community has been saved the time, cost and all of the effort associated with any contested hearing in either the Magistrates or this court. You have in these ways facilitated the course of justice. Your guilty plea also took place in the setting of the interrupted operations of the courts brought about by the COVID-19 virus which is a matter worthy of some extra weight. Any trial would have been very significantly delayed. There has been no need for a trial courtesy of your guilty plea.
I take all these matters into account in mitigation in the way urged upon me. Also, the fact that you cooperated with the police and made full admissions. You did not play games as some people do and pretend that the crop was for personal use or not connected to you. You spelt out what you had done as well as your intentions and even detailed your involvement for a greater period than has been used in the framed charge. Of course, I only sentence on the basis of the lesser dates specified in that charge. The point is you were very cooperative and I take that into account in your favour.
Remorse
Your counsel argues that you are remorseful. He relies upon the early guilty plea and your high level of cooperation.
A guilty plea is often enough indicative of some remorse. That is not always the position. This cultivation took place in a property where you were actually living. It follows that the case against you was an overwhelming one. That by the way in no way impacts upon the weight I have given to your guilty plea. Those benefits are unaffected by the strength or otherwise of the case or whether or not I find the presence of remorse. However, the strength of the case, may have an impact on whether or not the court can readily draw from the guilty plea the inference as to the presence of remorse. This is your second serious cultivation in the space of five years. How many times can you seriously offend and then claim remorse in the aftermath, I wonder?
However, having examined all of the material including the references and letters which speak of your present attitude to your offending, I am prepared to find the presence of some actual remorse in this case. I take that into account in your favour.
COVID-19
I turn to the aspect of COVID-19 even though the written submissions were silent on this score. Mr Sturges made only a brief submission to me. He was not suggesting it was a matter of any great significance in this case. The COVID-19 virus and the response to it by those running the prisons has undoubtedly increased the burden of imprisonment for those who have been in prison over the last 14 months. Prison has been a more stressful environment. Social distancing has not been easy. I am sure there has been a worry about catching the virus in such a setting where there is no level of autonomy. There have been many unpleasant aspects including a 14-day quarantine period with isolation and the lack of in-person visits and full range of courses. Well, you have not been in prison in that period.
As to what lies ahead, it is very difficult for me to know. The fact is that the impacts of the virus upon prisoners has been lessening, with in person visits resumed and courses getting back underway, but we are obviously experiencing these ups and downs in this country. The events of the last few months in this State with the circuit-breaker lockdown and the temporary suspension of visits shows that, whilst we have been travelling very well in the community, it is not that difficult to see how restrictions may yet start up again. We have seen that recently with some COVID-19 issues in Western Australia and New South Wales as well. We have been waiting anxiously in the last few days for the contact tracing and testing of close contacts of a
COVID-19 positive man who entered Victoria from South Australia. So there are these ups and downs. There will be some ongoing anxiety amongst prisoners as to how they will fare in the future. You are now a prisoner. You are subject to a 14-day quarantine period which is not an easy start. I take these matters into account, but I really cannot know if limitations will start up again and I must not speculate on that score. I take into account the impact of the virus.
I also recognise that you will be worried about the predicament of your wife and children as you serve out this sentence. Now I do not ignore that. I give it only some modest weight. It is not and cannot be a large matter in mitigation. Firstly you placed yourself in this position, despite her warning you of the likely outcome. Secondly, it is surely a very common predicament for prisoners with dependents to be concerned as to how things will play out in their absence.
Whilst I have sympathy for the position of your wife and children, I cannot take into account the impact upon them of your absence. That requires exceptional circumstances and they do not arise here, as is conceded. I do not place much weight on the claim that you will be isolated in prison given your lack of English language skills. Mr Sturges concedes that Vietnamese is hardly a unique language in the prison system.
Rehabilitation
I turn now then to your prospects of rehabilitation.
Your counsel argues that you have reasonable prospects of rehabilitation. He cannot put it any higher for obvious reasons. The prior matter and your offending in this case give me some cause to entertain doubts as to those prospects.
I have the nature of this offending. This was serious criminal conduct committed by a mature adult with a highly relevant recent appearance before the courts. You had been sent to prison and served out the balance of that sentence on parole but still at a later point chose to offend and in a serious fashion. The offending I am dealing with involved significant planning and effort. You made a very poor choice in the face of pleas from your wife and her expressed concerns that you would be separated. A choice you made in the face of all the things the court was told on the past occasion in relation to the risk of deportation and how that would work on your mind and increase your prison burden. Your explanations for offending are not greatly mitigatory. Your counsel concedes your reasonably high moral culpability here.
You have been arrested, charged and then brought before the courts. Again. You have pleaded guilty at the earliest opportunity and as I have said already, there is some remorse present here. Your wife’s letter speaks of your many qualities, as a husband, a son in law and as a father. So, it is certainly not all doom and gloom. Far from it.
You will have to serve the sentence that I will shortly pronounce. You will have the increased burden arising out of your concerns as to the prospect of deportation. I will say more about that in a moment. You will also be separated from your wife and children whilst you remain in custody in this country, with all of the uncertainty as to what will then become of you.
Neither being sent to prison in the past, nor the pleas of your wife, or the known risks of compromising your ability to remain in this country have stopped you from this calculated and serious offending. That is a bit disturbing.
I can only view your prospects in a quite guarded fashion. I am prepared to accept that they do exist and I prepared to assess them as being reasonable.
Deportation
Your counsel made submissions as to deportation. His written submissions spoke of the near certainty that you would be deported. He retreated from that to a degree in his oral submissions and accepted that there was a level of speculation. He relied upon the prospect of deportation in the two ways contemplated by the case law, namely as increasing your prison burden, as well as having the additional punishment represented by the loss of the opportunity to settle and to reside in this country. He placed strong reliance on these matters, saying that the burden is especially heavy for you given that you have lived in Australia for nine years and that your wife and children are Australian citizens who intend to remain in this country. The problem is that those very same matters were raised on your behalf before Judge Meredith who accepted an increased burden arising from the uncertainty created but concluded that he could not find that the sentence would result in your loss of opportunity of permanently settling here. Quite evidently, he was right to entertain those doubts. Your visa was cancelled, you exercised your rights and succeeded in having that decision revoked. I was told by your counsel that you will take similar steps, in the event that your visa is again cancelled. Mr Sturges conceded that there was a level of speculation as to whether you would actually be deported. He is right. There is.
I do take into account the many cases dealing with the relevance of the risk of deportation including the Guden[1] line of cases considered in cases such as Allouch[2], and more recently discussed in the case of Loftus[3]. The prosecution submissions set out a variety of other cases.
[1]Guden v The Queen [2010] VSCA 196
[2]Allouch v The Queen [2018] VSCA 244
[3]Loftus v The Queen [2019] VSCA 24
I will work on the assumption that you will have your visa cancelled automatically, but you will have rights in relation to having that decision reconsidered. You intend to exercise them again. In terms of those review powers I have no idea at all how they will play out. It would involve pure speculation on my part. I raised with both counsel the Sentencing Advisory Council paper 'Deportation and Sentencing' (from November 2019), which disclosed that a decent enough proportion of those who have their visas cancelled automatically actually have the decision overturned. The success rate at least in the years covered by that research was between 34 to 41 per cent (see paragraph 24). I raised with the parties the Visa Statistics kept by the Department of Home Affairs from the last calendar year so that they would have the opportunity of addressing me on this topic. Those figures disclosed that 37 per cent of those who sought reconsideration were successful. These figures and those dealt with by the Sentencing Advisory Council do not, as I understand it, include those who have had their reconsideration refused who then review the matter in a tribunal, and succeed.
Where will this all end up for you? Who knows? You will not, and that is rather the point. That uncertainty will of course be disturbing for you as you serve out this sentence.
If your visa is cancelled, as one would expect it will be, you will then be looking at movement from prison, not back out into the community, but to an immigration detention facility with the spectre of deportation at the end of that process.
I am then prepared to find an increase in your custodial burden arising in this case. There will be much uncertainty in your mind as to what lies ahead.
As to the claim that you will lose the opportunity of settling here, I cannot know if that will be the ultimate position or not. Your counsel concedes that is so. He argues that given the existence of this matter and the last matter, your deportation is more likely. That may well be so. As I have said, if your visa is cancelled, you will have the rights to have that decision reconsidered and you do intend to exercise them. If that process goes against you, in some settings, there is then a right of review to a tribunal. You have an Australian wife and two Australian children of young age and those matters may well play a role in those decisions. They are important but not the only considerations. There is a large degree of speculation in reaching any view as to the likelihood of actual deportation for the reasons that I have spelled out. However I do not ignore this matter. I do accept that, if it occurs, it will be a significant blow to you.
I give some weight to each aspect of the deportation submission made to me by your counsel. However, I cannot let the increased burden and the risk of actual deportation dominate my task. Your wife spoke of the possibility of separation if you ignored her advice and offended. You have previously been told of those risks when you were last sentenced. Your visa was actually cancelled and you then succeeded in having that decision reversed. You must have known how fortunate you were to remain in this country. You must have known how this would likely play out if you reoffended and were caught.
General remarks
This was serious offending. The cultivation of cannabis is the most serious of the offences on the indictment. It is a simpliciter charge which is to say you are not charged with cultivating a commercial quantity. There is no great comfort from the fact that it is a non-commercial quantity charge. It is punishable by a 15 year maximum term rather than the 25 year maximum term of imprisonment applying to commercial quantity cultivation.
You were not a crop sitter. You were not a minor player with little stake in the success of this venture.
This was your venture. You were the principal. That is conceded. Your culpability is high. Though not a commercial quantity charge, you concede that you were in this to make money. You must have had the expectation of making a significant enough amount of money to invest all the time, effort and at least some money into this crop. I am satisfied of that beyond reasonable doubt.
This is a between dates cultivation. It was a sophisticated set up with the usual array of equipment and materials. You are not able to point to some minimal connection to the crop or to being some poorly paid underling or worker, as is often enough the case in this area. This was your crop and profit was plainly your motivation. I cannot quantify what amount of money you hoped to obtain but it was large enough for you to shoulder what you knew was a massive risk.
You were taking a calculated risk. You must have considered the risks and the possible financial rewards. You hoped that you would not be caught. You knew it was a serious crime to do what you did. I am satisfied of that beyond reasonable doubt. There can be no doubt at all on that score. You knew it may well jeopardise your liberty as well as your ability to remain in this country.
Monetary reward is at the heart of virtually every cultivation, whether by a crop sitter or a principal offender or anything between. You were in this for sizeable enough monetary reward. There is no other explanation for this style of offending given the nature of the set up.
Was it need, or greed, or perhaps a bit of each?
Your counsel points to financial need. Your previous barrister in 2017 made the same submission, though there was a different cause for that need then. There was some suggestion placed before me of your failing business amidst the COVID-19 pandemic and then the “turning off” of the JobKeeper payment. When one examines the chronology and the amendment made to the submissions about the date of the JobKeeper payments, the turning off of the JobKeeper payment cannot have been instrumental in your decision. You in fact received what were the generous JobKeeper payments at the rate of $1,500 per fortnight in June and July. According to your interview, you had at the time of your arrest in September, been cultivating for about four months. So suspension of the JobKeeper payments cannot be the explanation for your decision to cultivate. Again I make it clear I am only sentencing you for the between dates period alleged on the indictment. Your counsel though was relying on the downturn in your business and the existence of other expenses including medical expenses for your sick mother in law.
Financial need is, in my view, not a matter of great mitigatory weight here. You must have been expending some money to cultivate the plants, as well as to use the drug ice. You had a roof over your head and a car in the drive, albeit a quite old one. Financial need is very often relied upon in this domain and it cannot be allowed to excuse the commission of a serious crime. It is a context. I suppose it can distinguish you from someone acting out of unmistakable greed with the trappings of extravagance and a rich lifestyle as the backdrop. That is not the sort of person I am dealing with as your wife’s letter makes plain. So I certainly do not find that you were flush with funds or motivated purely by greed.
However, there would be so many other options open before turning to a serious and calculated crime. Something surely your wife was trying to impress upon you.
There is no significant reduction in your culpability in this case. Your culpability is actually quite high given that you and you alone are responsible for all that we see in the photographs.
As I have said in countless other cases, I say now in yours; this crop and its ultimate success has been interrupted by the execution of the warrant by the police on this day in question. This was obviously an elaborate, planned, criminal activity. There is nothing spontaneous in your major crime, being the cultivation of cannabis.
Sentencing always involves the balancing of a number of purposes or principles. One of the purposes relates to your rehabilitation. I view those prospects in a guarded fashion. I am prepared to find that you have reasonable prospects. Whether they take shape in this country or in your homeland in Vietnam remains to be seen.
I must too denounce your criminal conduct.
I am required to punish you justly and proportionately.
Punishment is an important purpose in this sort of case.
I must seek to deter you as well as others from committing this sort of offence.
Given the nature of this offending and your past appearance for a crime of a very similar nature, there is no basis as there might have been on the last occasion to reduce the weight to be given to specific deterrence or the need for community protection. Specific deterrence is the need to deter you and it is of real importance. So too is community protection. Plainly you must be deterred.
There is also a need to give adequate weight to the principle of general deterrence. General deterrence relates to the need to deter others. It is a significant purpose of sentencing in this sort of case.
As I said a moment ago, those who choose to engage in this activity at whatever level are always taking a calculated risk. It is almost always taken on because of the hope of financial gain. People must understand that this is a serious crime and that though there is the potential for financial reward, it actually comes with some risks. The risks are of detection, prosecution and then the likelihood of the imposition of a significant term of imprisonment.
This 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. That message may hopefully dissuade future likeminded offenders. It may hopefully cause them to reconsider.
Current sentencing practice
I take into account current sentencing practices. It is not a single, controlling factor. It is one of a large range of matters that a court must have regard to. I have looked at the Sentencing Snapshot No. 246 of August 2020 dealing with non-commercial cultivation. The statistics disclose that in the period covered by the data, that is 2014-15 to 2018-19, where prison was selected, sentences ranged from a period of 12 days to between four to less than five years.
I have also looked at material held at the Judicial College of Victoria new sentencing manual which includes an overview of non-commercial cultivation sentences dealt with in the Court of Appeal (see 7.7.1). Also some recent Court of Appeal cases at 7.7.2 and 3.
Now I am dealing with you for non-commercial cultivation even though the quantity as a matter of fact exceeded the threshold. It seems to me there is some guidance to be had from the principles discussed in some of the cases dealing with commercial quantity cultivations. They need to be adapted to the instant case and of course, I must not lose sight of the fact that commercial quantity cultivation has an increased maximum penalty. Twenty-five years rather than the 15 year maximum I am dealing with in your case. The case of Nguyen[4] contains statements as to the seriousness of the crime of commercial quantity cultivation of cannabis and the weight to be given to punishment and general deterrence. Those same things apply to this crime, with some adaption.
[4]Nguyen v The Queen [2016] VSCA 198
The Court of Appeal has spoken often enough as to the danger of applying adjectives or labels to describe a person's role. Those sorts of things can actually obscure a person's conduct. Focussing on the actions and conduct is what is important, not the label that is applied. As the Court of Appeal said in a different case of Nguyen recently:
'A sentencing judge is required to sentence an offender … by reference to all of the facts of the case (including all of those able to be gleaned about the offender's role and involvement) and not by reference to whether the offender can be given some particular appellation'.[5]
[5]Nguyen v The Queen [2019] VSCA 134 at paragraph [59]
This is not one of those cases where there is any need to speculate about what you were doing or to try to draw inferences as to your role or your place within a broader hierarchy.*
This was your undertaking. That much is conceded. You were paying for others to set up the bypass. It was at your house. You were doing what you were doing in the expectation of sizeable enough financial gain. It was your venture. It was your crop. You set it up. You are a principal. In fact, not a principal, you are the principal.
Your culpability therefore was high enough and that is conceded. The only aspect in any way going to reduce your culpability arose from your financial need. I do not ignore that consideration but it cannot be given great weight. Nor can it even be the complete answer here given the time, effort and expense you must have assumed to carry out this cultivation.
So you can be contrasted with low-level players, even those low-level crop-sitters who may be connected up with a much larger criminal hierarchy. People such as that take no key decisions. They have no financial stake. They do what they do, often enough for a pitifully small payment. The principals sit in court far less frequently.
Well, this was your venture. You comfortably fall above the lower level players so often brought before the court and you have that highly relevant past conviction.
I have mentioned the sentencing statistics. They have inherent limitations. They will never tell much of the real story. The whole range of matters of aggravation and mitigation which might explain a given sentence are never apparent from the statistics.
I am not going to sentence you according to what has been the ‘most common’, or ‘median’ or ‘average’ previous sentencing outcome as disclosed in the statistics. They are just statistical terms or measures. Every crime is different and so too is every offender. I am not sitting up here sentencing you as a statistician. Nor does the selection by me of the word ‘Principal’ lead to a particular sentence. I must sentence you for your crimes.
Other cases, even though they disclose the sentences imposed upon other offenders, are not precedents.
There is no such thing as one correct sentence.
It is clear though from the many cases in this area that sophisticated hydroponic cultivation in cannabis is a serious and prevalent crime. That is so whether it is at a commercial quantity or a non-commercial quantity.
It is equally clear from the many decisions that general deterrence must be at the forefront of any sentence imposed by the court.
As I have said already, yours was not some low-level venture. You were not some low-level player.
It is no part of my role to be making judgements as to the relative harmfulness of a given drug. This is a quantitative based regime and so the actual quantity is always a matter of some importance. The commercial quantity threshold for cannabis is 25 kilograms or above, or 100 plants or above. You had just over 28 kilograms made up of 78 plants of varying sizes and some loose cannabis. So, as I said earlier, it was, as a matter of fact, over the commercial quantity by weight, but as I have tried to make very clear to you, I am dealing with you for a non-commercial quantity. It follows though that it is a large amount for a simpliciter charge. After all, cultivation of a non-commercial quantity of cannabis could be conducted in relation to a plant or two with every indication of personal use and with no intentions at all as to any future sale. In this case, there is an unmistakable commercial setting and that is conceded.
This was a sophisticated and professional arrangement. It must have taken much time, effort and at least some expense to set it up and you were the person who did so with some help from others. So it is a sizeable quantity and cultivated by you the principal, a person with a recent serious criminal conviction and with profit in mind. It is a between dates charge. There was an electrical bypass which you had installed by another.
You had many opportunities to pause for thought and to consider the seriousness of what you were doing. Regrettably, you persisted.
This cultivation is obviously a serious example of that offence. That offence has a 15 year maximum term of imprisonment.
The theft of electricity is clearly less serious. It has a much lower maximum. It is none the less a calculated theft. No material has been placed before me as to the actual value of the loss. The case law in this area demonstrates that ordinarily there will be some cumulation warranted. Though connected up to the cultivation offence, it is a different crime with differing elements and a victim. *
The possession of methylamphetamine charge is far less serious given that I am satisfied on the balance of probabilities that the trafficking purpose is excluded and hence the lower penalty provision applies.
I have given consideration to the overall effect of the sentences imposed by me. I have engaged in a last look at the overall effect of the sentences in endeavouring to avoid a sentence that might be crushing upon you and to ensure that the overall effect is consistent with your overall actual criminality. Regrettably though, your criminality was high here. I must send you to prison and that is conceded.
Disposal
There is a disposal order in this case which is not objected to. I have signed that order and now pronounce it in a very much abbreviated form in the circumstances. The application is made pursuant to s.78 of the Confiscations Act for the forfeiture to the State of the property referred to in the schedule. It is not opposed. I am satisfied that that order should be made and I have signed it.
I will now pass the actual sentences, Mr Mai, and I will have you remain seated as I do so.
Sentence
On Charge 1, cultivation of a narcotic plant, you are convicted and sentenced to 39 months or three years three months' imprisonment. That will be the base sentence.
On Charge 2, which is the charge of theft, you are convicted and sentenced to five months' imprisonment.
On Charge 3, possession of methylamphetamine, I do not believe a prison term is even warranted. On that charge, I convict and fine you $600.
Cumulation
I direct that two months of the sentence imposed on the theft charge is to be served cumulatively upon the base sentence.
Total effective sentence
This results in a total effective sentence of three years five months imprisonment or 41 months' imprisonment.
Non-parole period
The matters raised by your counsel as to the likely cancellation of your visa and the risk of deportation must not impact upon the legal requirement which exists for me to fix a non-parole period. I am required as a matter of law to fix a non-parole period. I must not speculate as to whether you will be released on parole or not.
I fix a period of 27 months or two years and three months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
There are four days pre-sentence detention to be declared pursuant to s.18 of the
Sentencing Act.
Section 6AAA
I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have in those circumstances sent you to prison for five years. I would have fixed a non-parole period of three years 10 months.
Are there any other orders that I need to make?
MR STURGES: No, Your Honour.
HIS HONOUR: Yes. Ms Maguire, any other matters?
MS MAGUIRE: No, Your Honour, as the court pleases.
HIS HONOUR: All right, well I'm sorry it's been a bit of a stop/start process.[i] You'll organise to see your client or speak to your client by way of some sort in person attendance or Zoom attendance, Mr Sturges, to discuss what's happened and his rights in relation to it?
MR STURGES: I certainly will, Your Honour, thank you.
HIS HONOUR: Is that likely to be in the near future or not?
MR STURGES: I'd endeavour to speak with him in the next week.
HIS HONOUR: So there's not much point - I mean we've got the interpreter, we can leave you online for a moment here if you want but there's probably not much point doing that, is there?
MR STURGES: No, thank you for the opportunity though, Your Honour.
HIS HONOUR: Yes, all right. So we'll take the interpreter off mute please and Mr Mai off mute as well. Mr Mai, that completes my sentence. Mr Sturges will be in contact with you to discuss what's happened here today and your rights in relation to what's happened, do you understand?
OFFENDER: Yes, I understand.
HIS HONOUR: Yes, all right. Well that completes the matter then so I will disconnect the link at least to the prison. I will adjourn then to 10.30 on Monday.
- - -
[i] On three occasions (marked * at the end of paragraphs [10], [80] and [96]) there were issues with the connection between the interpreter and the prison. They were sorted out and there is no point in maintaining those interruptions in the revised reasons. However, the audio recording is available, as is a full transcript of these remarks, which has the transcription of the interruptions.
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