Director of Public Prosecutions v Qiu

[2020] VCC 734

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01672
Indictment No. K11378293

DIRECTOR OF PUBLIC PROSECUTIONS

v

YICHIN QIU

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2020
DATE OF SENTENCE:	29 May 2020
CASE MAY BE CITED AS:	DPP v Qiu
MEDIUM NEUTRAL CITATION:	[2020] VCC 734

REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Cultivation of a Commercial Quantity of Cannabis; 72.36 kilograms of cannabis; offender a Chinese national; ‘crop-sitter’; risk of deportation not a mitigating factor
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), Sentencing Act 1991 (Vic)
Cases Cited: Nguyen v The Queen [2017] VSCA 286.
Sentence: 20 months imprisonment with non-parole period of 14 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Boult	OPP
For the Accused	Mr A. Maloney (For Plea) Mr V. Wang (For Sentence)	Dribbin & Brown Criminal Law

HER HONOUR:

1Yichin Qiu, on 29 March 2019, you, a 32-year-old Chinese national, were at your residence in Ringwood when police attended with a search warrant. They found a sophisticated hydroponic setup in three rooms dedicated to the cultivation of cannabis.  There was artificial lighting, irrigation, extractor fans and netting to promote horizontal growth.  In total, 72.36 kilograms of cannabis was seized from the premises, comprising 46 cannabis plants of differing maturity plus loose flowering head and leaf.  This weight excluded the roots of the plants.

2You were arrested and conveyed to Croydon police station, where you were interviewed.  You told police that you arrived in Australia in April or May 2018 and moved into the house which had been arranged for you and where you lived by yourself.  Sometime after you moved in plants were put in the house and you were told to guard them from theft.  You did not know what they were but were told they were medicinal.  You were paid a bit more than $1,000 a month, after taking out your rent, to guard them.  You had no other role although you did help move the netting inside, watch others harvest the plants and wrap the trunks until someone came to collect them.  Someone attended every week to check on things.

3You have been in custody since 29 March 2019 as at today's date that is
366 days not counting today.  The matter resolved to a plea of guilty on 20 August 2019 at the second committal mention.  On 12 May 2020, you pleaded guilty before me to one charge of cultivation of a commercial quantity of cannabis on a single date.  A plea on your behalf was conducted before me on that date and it now falls to me to sentence you for your conduct.  It is conceded by your counsel, Mr Maloney, that the only available sentence is an immediate term of imprisonment exceeding one year.  However, he argued that a straight sentence of less than two years was within range and appropriate.  Ms Boult, for the Crown, submitted that a sentence of imprisonment with a non-parole period was appropriate.

4In arriving at an appropriate sentence, I am required to have regard to all of the factors set out in s.5(2) of the Sentencing Act1991.  These factors are sometimes overlapping and sometimes contradictory in nature.  Some tend towards leniency and some point the other way.  No one factor automatically prevails over any other.  Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.

Objective gravity of your offending and moral culpability.

5The maximum penalty of 25 years' imprisonment for the offence of cultivating a commercial quantity of cannabis reflects the seriousness with which Parliament regards it.

6A commercial quantity is prescribed to be 25 kilograms or 100 plants.  You are charged with cultivation on a single day of less than half the commercial quantity of plants but approximately three times the commercial weight.  Considering a large commercial quantity is prescribed to be 250 kilograms or 1000 plants, on a purely quantitative scale your offending is towards the lower end of seriousness for this offence.  Of course, quantity, which represents potential profits, is but one consideration in an assessment of the gravity of your offence.

7Your role in the enterprise is an important factor.  Mr Maloney expanded on the account you gave in your record of interview.  In particular, he said you came to Australia in 2018 hoping to obtain legitimate employment to support your family in China.  After struggling to find work you met some peers on an internet chat group who suggested you stay at the Ringwood house which would provide you with both accommodation and income.  It was only after some time that you realised that the plants that were brought into the house were cannabis.

8I have some doubts about this account given you came to Australia on a tourist visa with limited English and limited skills.  Nevertheless, the prosecution accepts that it has no evidence to contradict your version and I will accept it.  Likewise, I accept that the limits of your involvement and your financial reward were as you outlined in your interview and that you were what has commonly come to be described as a ‘crop sitter’.

9As such, you played a vital role in the production line of the end product. 
You were part of a sophisticated enterprise with expected significant profits.  However, the gravity of your offending and moral culpability is obviously less than those higher up in the hierarchy.  Further, whilst it does not in any way excuse your conduct, I take into account your impoverished background and the fact you could not be considered to be motivated by greed as opposed to need.

Current sentencing practices

10One, and only one of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices.  The reason is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles.  Whilst no two cases are the same, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.

11Ms Boult referred me to a number of broadly similar cases.  Of particular assistance was the 2017 Court of Appeal case of Nguyen[1] which, although not that similar itself, contained a table of past sentences imposed for offences of cultivating cannabis with a description of the roles of the offender and quantities involved.  I have had regard to that table noting the limitations inherent in that exercise, particularly the lack of detail as to the personal circumstances of each offender and the fact that past sentences are simply a guide.  They are not binding and do not set the outer parameters of an appropriate sentence in this case.

[1]Nguyen v The Queen [2017] VSCA 286.

12Ultimately, my duty is to impose a just and appropriate sentence on you in the circumstances of this case.

Plea of guilty, cooperation and remorse

13You will receive a discount in your sentence for the fact you pleaded guilty to the offence at an early stage.  Not only have you saved the community the expense of a trial and facilitated the course of justice, I am prepared to accept that you are remorseful, entitling you to an even greater discount.

Background and personal circumstances

14Your background and personal circumstances are set out in detail in the Outline of Defence submissions (Exhibit 1) and the report of Mr Simmons, psychologist, who interviewed you at Fulham Correctional Centre via video link and with the assistance of an interpreter (Exhibit 3).

15Very briefly, you are now 31 years old and were born and raised in Shanghai, China.  You describe an impoverished childhood, with your family struggling to afford items such as clothing and shoes.  Your parents separated when you were young, and you are their only child.  Your mother survived on a government allowance while your father worked in a steel factory and then as a security guard.  Your paternal grandparents assisted financially and took on a caring role for you. 

16Your parents are still alive, but your mother is currently receiving traditional herbal treatment for cancer. 

17You told Mr Simmons that you avoid memories of your childhood as they are ‘unpleasant’ for you and you feel that no one cared about you or your whereabouts.  You also told him that physical punishment was used when you misbehaved and sometimes for ‘no reason at all’.'

18You have a limited education, having completed Year 9 followed by a two-year TAFE course at Xing Lu TAFE which gave you a diploma in computer science.  Your family struggled to pay your education fees and you performed poorly academically which you attribute, at least in part, to the lack of family support.

19Despite your diploma, you were unable to find work in the IT sector.  You worked in various low paying jobs including as a security guard in a hotel, a kitchen hand, a hotel reception worker and a waiter.  You changed jobs whenever you were able to find a new job that paid more.  You worked in a hotel for four years before coming to Australia.

20

You met your wife when you were both 14 and married when you were both aged 22.  Tragically, your wife passed away in 2014 from stomach cancer. 

Mr Simmons describes you as becoming ‘extremely distressed’ when speaking about your wife.  Your blamed your financial struggles for playing a part in her death as you were unable to afford regular medical consultations, meaning she was diagnosed late.  You and your wife had one daughter, Pei Xin, who is now aged 10 and cared for by your father.  You told Mr Simmons you ‘live your life’ for Pei Xin.

21You have no issues with substance abuse.  You did start drinking heavily after the death of your wife in what you consider to be an attempt to harm yourself, but you stopped at the request of your daughter.

22As indicated, you arrived in Australia in April 2018 on a tourist visa hoping to find work that would allow you to support your family.  Once here you applied for a refugee visa and were granted a bridging visa in the meantime. 

23You lived at the accommodation in Ringwood for a year before being arrested.  You have no friends or family in Australia.

Your character and risk of reoffending

24You have no prior convictions and no outstanding offences.  You are entitled to be sentenced as a person of otherwise good character, and I am satisfied your prospects of rehabilitation are good.

Prospect of Deportation

25I am told your application for refugee status was refused and that it is likely you will be deported to China following your release from prison. 

26I do not consider the prospect that you will be deported to be a mitigating factor.  This is not so much because I have no evidence before me as to the likelihood that you will in fact be deported, but rather that I am not satisfied that deportation for you will be a hardship.  You have only been in Australia since April 2018 and have led, on your account, a solitary life.  Your family, including your young daughter, are in China and you told Mr Simmons that you wanted to return to China to be with them. 

27Your counsel submitted that the hardship you will suffer comprises your inability to stay in Australia and earn a legitimate income to support your family in China.  However, it seems you have appreciated that even if you could stay in Australia, the prospects of you doing that are very slim indeed given your limited skills. 

The burden of imprisonment

28You have been at Fulham prison for most of the period of your incarceration.  There, you work in a horticulture role five days a week.  Prior to the COVID-19 pandemic, you were taking a course in the English language. 

29You have apparently had a difficult time in custody, tending to isolate yourself despite being near other Mandarin speaking prisoners.  You have difficulty getting to sleep and worry about your daughter.  You do not enjoy prison activities.  I accept Mr Maloney’s submission that as a foreign national incarceration for you is more onerous as there is no prospect of visits from friends and family and also you have the constant worry about your daughter and the health of your mother. 

30I also take into account the fact imprisonment during the COVID-19 pandemic is generally harder than at other times because of prisoner concerns about contracting the virus and the curtailment of various rehabilitative programs and activities and sometimes prison lockdowns.  Prison visits have also been suspended, although it appears this may be of no consequence to you. 

Purposes of Sentencing

31In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed.  These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community.  I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes. 

32A custodial sentence must only be imposed as a last resort, but as I have already said, it is conceded to be the only appropriate disposition in your case. That said, I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes.  

33In cases of commercial cannabis cultivation such as this, general deterrence, just punishment, community protection and denunciation loom large in the sentencing process.  This applies even to sentences imposed on people low down in the criminal enterprise as they still play a critical role.  Those who are tempted to be crop sitters must be deterred from doing so by the knowledge that if caught they will receive a term of imprisonment that makes the risk not worthwhile. 

34I do not consider specific deterrence is a significant sentencing consideration in your case as I consider your risk of re-offending to be low.  Your counsel sought a straight sentence of less than two years.  The Crown sought the imposition of a non-parole period and I see no reason not to impose one.  

Sentence

35Mr Qiu, given you are appearing via video link I will not ask you to stand whilst I deliver my sentence.

36On the charge of cultivating a commercial quantity of cannabis I convict and sentence you to a term of imprisonment of 20 months.  I fix the minimum period before which you will be eligible for parole as 14 months. 

Presentence Detention

37I declare that you have served a total of 365 days pre-sentence detention, not including today, in respect of this sentence and order that this declaration be entered in the records of the court and that the period be deducted administratively.

38MR WANG:  Your Honour, may I just interrupt you there for one moment?

39HER HONOUR:  Yes.

40MR WANG:  Most dear apologies. I've made an error with my calculations, and this was pointed out by the learned prosecutor.  It's in fact 366 days, not including today.

41HER HONOUR:  All right, thank you for that.  I will change that to 366 days. 
Ms Boult, I do not think I heard you before.

42MS BOULT:  Your Honour, if I could say, Your Honour wouldn't have heard me.  I have been emailing my learned friend to point out the error, so I did not raise it with Your Honour while you were going through sentencing remarks.

43HER HONOUR:  All right, thank you. 

Section 6AAA 

44If you had pleaded not guilty to this charge and had been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of three years with a non-parole period of 2 years and 4 months. 

Ancillary orders

45The Prosecution have applied for a disposal order in respect of the cannabis, which was not opposed by the defence.  I am satisfied it is appropriate to make that order and I do so. 

46So Mr Qiu, what that is is an order just forfeiting to the state the cannabis and the electrical bypass equipment.  Do you understand?  And you understand the sentence that I have imposed, Mr Qiu? 

47OFFENDER:  (Through interpreter)  I'm not really sure about the sentence.

48HER HONOUR:  So it is 20 months with a non-parole period of 14 months, and I have declared 366 days in custody.  So what that means is the minimum period that you are required to serve before you can be released on parole, and it is up to the Parole Board whether they do, is 14 months. 

49OFFENDER:  I do understand.

50

INTERPRETER:  So that means the 366 days will be deducted from the

20 months?

51HER HONOUR:  That is right, yes.  Perhaps just explain that to him.

52INTERPRETER:  Yes.

53OFFENDER:  Yes, I do understand.

54HER HONOUR:  All right, yes, thank you.

55Any other matters before I conclude this hearing?

56MR WANG:  No, Your Honour.  Thank you.

57MS BOULT:  Not from the Crown, Your Honour.

58HER HONOUR:  All right, yes, thank you.  If we could adjourn, cut off the link and adjourn the court temporarily.

59MS BOULT:  As the court pleases.

60MR WANG:  As Your Honour pleases. 

61HER HONOUR:  Yes, thank you, Mr Interpreter, and I will get back from you the sentencing remarks.  So if you could hand them to my Associate.

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