Director of Public Prosecutions v Seah

[2016] VCC 1149

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-01169

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEE SEAH

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2016
DATE OF SENTENCE:	9 August 2016
CASE MAY BE CITED AS:	DPP v Seah
MEDIUM NEUTRAL CITATION:	[2016] VCC 1149

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Foot
For the Accused	Ms N. Elliot

HER HONOUR: 

1Lee Peng Seah, you have pleaded guilty to the following charges:  Charge 1, cultivation of narcotic plant, cannabis, in an amount not less than a commercial quantity.  Charges 2, 3 and 4, possession of a drug of dependence, namely cannabis, heroin and MDMA.  Charge 5, possession of a false document. 

2The maximum penalties for these offences are:  Charge 1, 25 years,
Charges 2, 3 and 4, (a) "if the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in that drug, 30 penalty units or imprisonment for 12 months, or both"; (b) In any other case, to a penalty not more than 400 penalty units or to five years' imprisonment, or both.

3In relation to charge 3, relating to heroin, I am not satisfied on the balance of probabilities that the offence was not committed for a trafficking purpose, given the amount of the drug, where it was located and how it was packaged.  So the higher maximum applies.  However, it does not apply in respect of Charges 2 and 4.  The maximum penalty for Charge 5 is ten years. 

4As to the circumstances of your offending, on 25 March, you were found by
a resident in Keysborough with your hands and legs bound together.  Police and an ambulance were called and you were taken to Dandenong Hospital.  You told police you had been kidnapped and robbed.  You did not make
a statement to police and went back to your home that night. 

5The following day, police went to your house in Dandenong to get a statement from you about events the night before.  You initially spoke to them at the door.  Police then entered the house and saw a large amount of electrical cabling and smelt a strong smell of cannabis.  Police observed through an open bedroom door in the house, a hydroponic cannabis set-up. 

6Police returned later that day with a warrant and seized the following:  In the lounge room, a plastic bag and containers with cannabis, the total weight of 169.6 grams; four foil packets containing MDMA of 1.3 grams; five bags containing heroin in different forms, the total weight 30.3 grams; 49 fake bank cards, purporting to be from various institutions under various names; a fake New South Wales driver's licence and a fake Medicare card. 

7Additionally under a couch in the lounge was a trapdoor, beneath which police discovered 154 cannabis plants of various sizes, the total weight being 805.1 grams. In the kitchen, three large bags of cannabis, weighing 1.31 kilograms; 49 small cannabis plants, weighing 144.4 grams; a fertiliser bag containing 1.2 kilograms of cannabis and 4 electrical transformers.

8In one bedroom, 12 mature cannabis plants; and in another bedroom, 14 mature cannabis plants were located.  Other electrical and light equipment was located in other areas of the house, consistent with a hydroponic set-up.  Additionally, an electricity meter bypass was setup in the roof. 

9The total number of plants located was 229, their weight was 3.1 kilos.  The total weight of cannabis, including loose cannabis through the house, was
5.5 kilograms. 

10I was also provided with some photos depicting the drugs and other material or documents, and where they were located at the house. 

11You were arrested and interviewed by police.  You said you had been living in the property for about two to three months; that you only lived in the lounge and had nothing to do with the bedrooms.  You said you lived there alone.  You said that you met someone in a TAB who offered to pay you to look after the house and the garden.  You were paid $100 a day for about a week, then did not receive any more funds, though you stayed at the house. 

12You initially maintained you had never seen the plants before.  You said the heroin was there when you moved in and it did not belong to you, and you said that the false cards and documents did not belong to you. 

13As to your personal circumstances, you are currently aged 40 and are
a Malaysian citizen.  You are one of four siblings and were raised by your parents in Penang.  You had an unremarkable childhood, though your family struggled financially.  You left school in your early secondary years to obtain work to support your family.  You worked as a furniture maker until the time you left Malaysia to come to Australia in 2015. 

14You married when you were aged 24 and have three children, aged 14, seven and three.  You came to Australia on a tourist visa and remained here unlawfully when it expired.  You were initially in Sydney, though you and your wife struggled to find work.  Your wife returned to Malaysia and you came to Melbourne.  Your children remained in Malaysia when you both came to Australia, and I was informed your wife now works in Singapore. 

15You have never had issues with substance abuse.  You do not dispute the account of the circumstances of your offending, as outlined above. 

16You were involved in an incident the night before police went to your home, whereby you were robbed and placed in a van and you suffered some injuries in the course of that incident. 

17In respect of this offending, you maintain that you met a person named Tu in
a TAB, who offered you both work and a place to stay.  You were desperate, wanting to send money to your family.  You maintain that the house was already setup when you moved in; that other people would attend the house during the day and that you would assist them.  Sometimes notes were left with tasks for you to perform.  Initially you were paid, but soon those payments ceased. 

18It was submitted that your offending was motivated by a need to provide money for your family and because of the lack of alternate work.  It was submitted that you were distinguishable from others who engage in such conduct with the prospect of significant financial gain.

19You indicated you would plead guilty at the first opportunity, at a committal mention on 6 July 2016.  You have been in custody since your arrest on
26 March and this is your first time in custody, a matter I will refer to later in these reasons. 

20Your plea has a significant utilitarian value or benefit and shows a willingness by you to facilitate the course of justice and acceptance of responsibility of your criminal behaviour. 

21Although you initially denied your involvement with any of the drugs located, including the cannabis crop, you were co-operative with police, providing your address, in the context of the events the night before police came to your house, and on their attendance, you consented to them entering the property.

22You ultimately admitted knowledge of the plants and that you were paid to be at the house, and that you did some jobs relating to the crop.  You denied you knew the plants were cannabis or illegal. 

23I accept that your plea is indicative of remorse.

24You have no prior convictions in either Malaysia or Australia and you are previously of good character. 

25It was submitted on your behalf that given your motivation for this offending, namely in an endeavour to find work to support your family, that you are at low risk of re-offending. 

26I accept that given your lack of history, your motivation and level of involvement in this offending, your rehabilitation prospects are good. 

27Your time in custody since March this year has been particularly burdensome, given that you are isolated by your lack of English and because all your family and supports are in Malaysia.  You have minimal phone contact with them. 
I take this matter into account.

28Although cultivating a narcotic plant, in not less than a commercial quantity is plainly a very serious offence, it was submitted that the offending fell towards the lower end of this offence because the commercial quantity was established by the number of plants, with 225 plants, however the weight was 5.5 kilograms, much less than the 25 kilograms that quantifies a commercial quantity.  It was submitted this was particularly low for cases involving this charge and was of low financial value.  I note, however, that there was double the amount of plants to qualify. 

29The Crown accepted that there was no suggestion that you were involved in the establishment of the crop, or in fixing the electrical bypass, or that you were involved in trafficking of cannabis. You were a crop sitter.  You motivation was driven by your personal financial circumstances and a desire to provide for your family, rather than an expectation of significant financial reward.  The offence was a single drug charge and did not extend over a prolonged period.

30In The Queen v Doan [2010] VSCA 250, the Court of Appeal has recognised that:

"Commercial cultivation is very serious, by virtue of its maximum penalty.  General deterrence must be at the forefront of sentencing considerations and an immediate term of imprisonment should ordinarily be regarded as unavoidable."  See paragraphs 11 and 17.

31Additionally, I consider denunciation, specific deterrence and the protection of the community as applicable sentencing principles. 

32I take into account all matters in mitigation, including your plea, your prior good character, the role you played in the cultivation of the crop, and your current circumstances. 

33I considered the operation of ss.5(4) and 4(c) of the Sentencing Act and
I consider a custodial sentence to be the only appropriate disposition.

34If you could please stand.

35Taking all relevant matters into account, I sentence you as follows:  In respect of Charge 1, you are convicted and sentenced to a period of 24 months' imprisonment.  In respect of Charge 2, you are convicted and fined $100.  In respect of Charge 3, you are convicted and sentenced to a term of imprisonment of three months.  In respect of Charge 4, you are convicted and fined $100.  In respect of Charge 5, you are convicted and sentenced to a period of eight months' imprisonment. 

36That leaves a total effective sentence of 24 months, with a non-parole period of 16 months. 

37I declare that you have served 136 days pre-sentence detention in relation to this offending, and such a period is to be administratively deducted from this sentence as time already served. 

38I declare that save for your plea of guilty, you would have been sentenced to
a period of 30 months, with a non-parole period of 22 months, pursuant to s.6AAA of the Sentencing Act.

39Is there a disposal order?

40MS FOOT:  Yes, Your Honour, there's three copies to hand up.

41HER HONOUR: Thank you. Further, pursuant to s.77(1) of the Confiscation Act, I order that the cannabis cultivated, other drugs and the equipment used in connection of the cultivation, be disposed of in the terms provided in the disposal order to me. 

42Is there any other matters? 

43COUNSEL:  No, Your Honour. 

44HER HONOUR:  Thank you.  Thanks.