Director of Public Prosecutions v Othow

[2015] VCC 744

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00673

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOJO OTHOW

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2015
DATE OF SENTENCE:	3 June 2015
CASE MAY BE CITED AS:	DPP v Othow
MEDIUM NEUTRAL CITATION:	[2015] VCC 744

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Saville	Office of Public Prosecutions
For the Accused	Mr D. Starvaggi	Waters Lawyers

HIS HONOUR:

1Mojo Othow; you have pleaded guilty to one charge of cultivating a narcotic plant - that being cannabis - in not less than a commercial quantity, one charge of theft, and one charge of possession of a drug of dependence.  Those charges carry maximum penalties of 25 years, ten years - and I am reliably informed - five years, respectively.

2You pleaded guilty at the earliest reasonable opportunity and must get the benefit of that.  I accept that your plea of guilty is accompanied by appropriate remorse, and there is also, obviously, the utilitarian aspects of that.  This is a situation where on what I am told, but for your confession to police, the Crown case may have struggled to be successful.  In those circumstances your plea is obviously of greater weight, and there must be a significant reduction in sentence because of that in that sense of relying on authorities such as R v Ryan, and the like.

3The circumstances of the offending are that you were renting premises in Mulgrave.  As a result of information - apparently from Crime Stoppers and the air wing - police raided the premises.  Your brother answered the door; you were not there.

4When police entered the premises they located cannabis growing in four rooms, and three out of those four rooms had a hydroponic setup.  One room had 16 plants five to six feet high, one had 30 plants five to six feet high, and one had 48 plants five to six feet high.  They are, on anybody's view, mature and large plants.  There was also a plastic container with 32 cannabis plants in it, and there is no weight given to that, from what I can gather.

5An inspection by an electrical technician found an illegal electrical bypass, and the amount calculated - and I have grave concerns about that; as to having been stolen - is $31,992.  The situation with bypasses are that they are done, essentially, to avoid detection, rather than to steal (indistinct) electricity, but the end result is the same, and there has to be an element of cumulation because of it.

6When all the cannabis was taken to the Victoria Police Forensic Centre there were found to be a total of 126 plants, of which, obviously, a very significant number were large, and the total combined weight of those plants amounted to 50.41 kilograms.  In other words, you have passed the commercial quantity level on each of the two bases upon which it can be created.  There was also found an almost small amount of cannabis of 51 grams, and I take that into account.

7Clearly the way it was set up had taken a great deal of ingenuity and must have cost money to make.  I am not buying into what the overall purposes of this crop was to be.  I would not accept that you were going to smoke it all, but there is no evidence before me of trafficking.  Whether you are taking the entire blame for this and protecting others, I have no idea, though the suspicion is great.

8It is clearly a significant commercial quantity, and not one that just falls over the edge, and a custodial sentence, in my view, is inevitable.  Your counsel did not seek a community corrections order on the basis of Boulton, and I think that is a correct decision.  A community corrections order where you do not have mental health problems, where you do not appear to have a serious drug addiction, and you have no prior convictions, would be, in my view, a bit of a waste of time.

9Accordingly, I will be imposing a sentence with a minimum term.  It is my view, as I already indicated, that the plea of guilty in your circumstances, with the admissions, entitles you to be treated in a way that may well be different to the way that others may be.

10I then look at matters personal to you in terms of calculating the length of that sentence. Obviously the sentence must allow for general and specific deterrence, as well as denunciation and appropriate punishment. The first thing that I will do is hand down an order made pursuant to s.464ZF(2) of the Crimes Act that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to comply with a request for such a sample, police may use reasonable force to take it from you.

11Your personal circumstances are that you are 29 years of age, and very importantly, have no prior convictions.  You do not appear to have a drug addiction or the mental health problems that many who come before these courts suffer from.

12You came here with your family from Sudan as a refugee in 1998, at the age of 12.  You were one of five, and your parents still live in Melbourne.  You went to school and started using cannabis in Year 7.  You were able to complete Year 10.

13You have had various occupations, including working at the fruit market and concreting.  You had intended, prior to being apprehended for this, to obtain concreting qualifications, and go to Karratha in Western Australia and work in the mines.  On what I am told, you are clearly a person with a good work ethic, and I am comforted, as I have indicated, by the fact you have no prior convictions.

14Other than all those matters I do not know a lot about you, and I do not know a lot about how this crime was carried out, and on whose behalf, or whatever was carried out, so I am simply, in a sense, sentencing in a vacuum, but I think that this is a relatively unusual situation, with your prospects of rehabilitation being good, and the risk of you re-offending will be entirely up to you.

15I had sentencing snapshots mentioned to me by the Crown.  I think one of the difficulties that the courts are going to have to deal with over the next year or two is what current sentencing practices are, bearing in mind what is occurring with Boulton, but in your situation I simply impose a custodial sentence that I think is appropriate, with a minimum term that is somewhat lower than might otherwise be the case, to give you the opportunity of parole at a relatively early time.

16The matters put on your behalf are strong in the situation, but it is a serious example.  However, doing the best I can, on the charge of cultivation; 16 months.  On the charge of theft of electricity; three months - and bearing in mind the size of the possessed cannabis - seven days.

17I direct that one month of the sentence imposed upon Count 2 be served cumulatively upon the sentence imposed upon Count 1, which gives an effective head sentence of 17 months.

18For the reasons that I have outlined - and I have no doubt that gaol has been a salutary lesson for you - I fix a minimum term before you become eligible for parole of eight months.  I direct that 124 days be reckoned as having been served under this sentence.  Now, I have made the other orders, is there anything else I need to do?

19MS SAVILLE:  The 6AAA.

20HIS HONOUR:  Yes, you did tell me that.  Yes, because of the degree of cooperation with the police, I say that but for your plea of guilty I would have sentenced you to be imprisoned for a period of two and a half years, with a minimum term of 18 months.

21MS SAVILLE:  As Your Honour pleases.

22MR STARVAGGI:  As Your Honour pleases.

23HIS HONOUR:  All right, thanks for that.  Laudably concise, if I could say to both counsel, and very much appreciated.