Director of Public Prosecutions v Singh

[2016] VCC 332

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00486

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMRIT SINGH

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2016
DATE OF SENTENCE:	18 March 2016
CASE MAY BE CITED AS:	DPP v Singh
MEDIUM NEUTRAL CITATION:	[2016] VCC 332

REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: Cultivation of a commercial quantity of narcotic plants – possession of a drug of dependence namely cannabis
Legislation Cited: Sentencing Act 1991 (Vic), s.501 Migration Act (Cth)
Cases Cited: McGrath v The Queen [2015] VSCA 176, DPP v Zhuang [2015] VSCA 96
Sentence: Total effective sentence of two years and six months imprisonment with a non-parole period of one year and eight months – fined $2000 for possession of a drug of dependence.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher	OPP
For the Offender	Ms T. Dunsford	Victoria Legal Aid

HER HONOUR: 

1Amrit Singh, you have pleaded guilty to one charge of cultivation of a commercial quantity of narcotic plants, between 22 August and 31 October 2014, at a residential property owned by your wife, your co-accused, Kavitha Gurappaji, at 230 East Boundary Road, Bentleigh East; and to one charge of possession of a drug of dependence, namely cannabis, on 27 August 2014.  The maximum penalty for cultivation of a commercial quantity of narcotic plants is 25 years' imprisonment.  The maximum penalty for possession of a drug of dependence, where a trafficking purpose is not excluded, is 5 years' imprisonment or 400 penalty units.

2The circumstances of your offending are set out in the summary of prosecution opening which was tendered on the plea and I sentence you on the basis of the facts outlined in that document, which may be summarised briefly as follows.

3On 27 August 2014, you called for a tow truck in relation to a rental van, on the Monash Freeway in Chadstone, which had run out of fuel.  The tow truck driver loaded it forcibly at your request, when you told him you did not have the keys.  Shortly thereafter, at a service station, when the tow truck driver, a former policeman, opened the van to facilitate its unloading from the tow truck, he was overwhelmed by the smell of cannabis and saw that the rear of the van was full of cannabis plants covered with garbage bags.

4You offered the tow truck driver money to let you leave, but he refused and told you to sit on the ground.  You then ran away.  The tow truck driver took the van to the Dandenong Police Station.  A search of the van revealed
21 cannabis plants with a total weight of 6.75 kilograms, three letters addressed to you at 230 East Boundary Road, Bentleigh East, and two white gloves.  These facts are the basis of charge 2, possess cannabis.

5On the morning of 31 October 2014, police executed a search warrant at
230 East Boundary Road, Bentleigh East.  They found you and your wife at the premises.  You each denied having keys or access to the house.  Police forced entry to the house and noted that every room of the house had been set up for the hydroponic cultivation and drying of cannabis. 

6There were 287 plants at different stage of the life cycle, including
97 seedlings.  There was a drying room, which contained 28.31 kilograms of dried cannabis laid out on large tables.  The hydroponic setup consisted of 118 light shrouds and globes, 122 electrical transformers, an irrigation system, power boards, air ducts, gloves, bags of soil and two 20 litre containers of liquid fertiliser.  There was also an electrical bypass in place.

7A letter from South East Water, dated 14 October 2014 and addressed to
Ms Gurappaji was found inside the house.  Inside Ms Gurappaji's handbag they discovered a key to the front door of the house.  An Apple iPhone was seized from you.  Your DNA was identified on the bristles of a toothbrush located on a basin inside the house.

8Police searched two sheds at the rear of the property that had been set up as your sleeping quarters and located a number of items, including various documents mentioning yourself and your wife and that you lived at 230 East Boundary Road, Bentleigh East; and about 0.1 grams of dried cannabis mixed with unidentified plant material.  Police searched your white Ford transit van parked outside the property and located your wallet, a Nokia mobile phone, 0.2 grams of dried cannabis and a plastic bag containing packaging, wiring and globes used in hydroponic glow lamps.

9Your next door neighbour told police that she had been living next door to you and your wife for four years, that she saw an Indian male with long hair at the house and heard some construction noises in August 2014, that the only people she saw around the house were of Indian appearance, that she never saw anyone of Chinese or Vietnamese appearance at the property.

10You and your co-accused were arrested and interviewed separately on
31 October 2014.  You told police a number of things, including, that you lived at Clayton but slept at the Bentleigh East address three days per week, that your wife paid you $250 a week to clean and garden there, that Chinese people "do everything inside the house" at Bentleigh East, that only they have a key.  They had been coming and going for five or six months.  You had met a Chinese man named Peter at the address.  Peter asked to borrow the rental van from you, rang you when it broke down for lack of fuel, told you it was just rubbish in the van after the tow truck driver told you it was cannabis; and gave you his phone number although you were never able to contact him on it again.  Neither you nor your wife were able to provide any lease or tenant details for the Bentleigh East property.

11The matter resolved on 18 January 2016, the day the trial was listed to commence.  You were arraigned and pleaded guilty to the two charges on the indictment.

12The prosecution submitted that this was a large, sophisticated and successful hydroponic cultivation operation taking up every room in the house.  There were 23 kilograms of dried cannabis, along with 287 plants, of which 90 were seedlings.  The weight of the 287 plants was 80 kilograms. 

13The prosecution emphasised the importance of general deterrence in sentencing for offences of this kind, conceded that the timeframe of your offending was limited, but stated that you were actively involved in the crop growing with your wife and jointly responsible for the entire amount cultivated and for what was found in the van.  It was submitted that a sentence tantamount to time served would be inadequate.  It was, however, conceded that the court could take into account the near certainty of deportation as increasing the hardship of your incarceration and as a further punishing consequence of your sentence.

14I turn to your personal circumstances.  You are 30 years of age and were 29 at the time of offending.  You have been in custody on remand at Port Phillip Prison since 31 October 2014, which equates to 504 days of pre-sentence detention.  This is your first time in custody.  You have been using your horticulture skills in the garden there and are a billet in your unit.  You have also learned to sew.

15You were born in a small village in the Punjab region of India, the youngest of five children.  Your father was a surveyor.  Your mother raised you and your four sisters.  Three of them are doctors and one is a teacher.  You had a comfortable straightforward childhood and adolescence.  At age 17 you were sent to board at college some distance from your village.  You became addicted to heroin and were smoking it daily.  You disclosed your habit to your father and went to inpatient rehabilitation.  You also wore an implant for some months.  You completed your tertiary education in computer engineering from home. 

16You started a courier business with one van and developed the business to the point where you had up to five vans.  Unfortunately you relapsed into heroin use in 2005 and 2006.  With support from your family and from your religious beliefs, you became abstinent again for about 17 months before coming to Australia.

17In 2007, you came to Australia with your first wife.  You worked 20 hours per week at an agricultural farm.  The marriage ended in 2009.  You met your current wife in 2010.  You had some immigration difficulties due to the conduct of your migration agent and spent two months in detention until February 2013.  You then married your current wife.  Since then you again relapsed into heroin use.

18In relation to your role in the cultivation, your counsel, Ms Broughton, conceded that it was more than that of a crop sitter and that you were living at the premises and were responsible for the cultivation of cannabis between the dates alleged at those premises.  That you received some financial reward for doing so, which you spent on your heroin addiction, and that you and your co-accused are jointly responsible for the entire amount cultivated and for what was found in the van.  She noted that the period of offending was relatively short, a total of 70 days, that the weight of the dried cannabis was only just above the commercial quantity and that only one location was involved.  She noted that a fingerprint on the Ford Econovan belongs to Peter Nguyen who has prior convictions for trafficking and cultivation.  She submitted that your offending, viewed in the context of other offending of this nature, for somewhere below the mid-range of seriousness.

19Your counsel relied on a number of matters in mitigation.  Firstly while acknowledging that your plea was entered on the first day of the trial, she submitted that your plea has utilitarian benefit in saving the community the expense of a criminal trial. 

20In terms of remorse, she relies on your plea of guilty as well as on your letter of apology tendered to the court as Exhibit B on the plea.  She notes that you have no relevant prior criminal matters and that this is your first time in custody.

21You have a supportive family, have been educated to tertiary level and have held employment at various times.  You speak four Indian languages as well as English.  You have limited contact with your wife and co-accused, who is in custody elsewhere.  You are ashamed of your conduct and have had limited contact with your family in India since being arrested.

22You have made an application for permanent residency. Unfortunately, if you receive a custodial sentence that exceeds one year, recent amendments to s.501 of the Migration Act (Cth) are to the effect that cancellation of your visa will be mandatory.  You are therefore almost certain to be deported once your term of imprisonment ends and this increases the hardship of incarceration, although I note that in your letter to the court you indicate that you want to go home and get your life back.

23Given your background, education level, prior work history, lack of mental health issues and lack of relevant prior offending, as well as the fact that you have for considerable periods remained in the community while not addicted to heroin (in addition to the time spent on remand), she submitted that you have good prospects of rehabilitation.

24Ms Broughton conceded that your sentence must be one of imprisonment.  She took me to the overview of commercial cultivation sentences in the Court of Appeal, to the relevant sentencing statistics of the Sentencing Advisory Council and to the cases of McGrath and DPP v Zhuang.

25I accept the mitigatory matters put on your behalf by your counsel.  By your plea of guilty you accept responsibility for the cultivation of the crop located at the Bentleigh East property in October 2014 and for possession of the plants located in the van in August 2014.

26The hydroponic cultivation set up at Bentleigh East comprised a significant number of plants (some 287 plants weighing a total of 80 kilograms) and
28 kilograms of dried cannabis.  I note that the timeframe involved is quite limited.  Your role, however, was more than that of a mere crop sitter.  You obtained financial reward for your role in the cultivation.  Given your role and the quantities of plants and weights involved, I consider that your offending lies somewhere just below the middle range in terms of seriousness.

27Your plea made on the first day of trial nonetheless has utilitarian value.  I accept that you also express remorse for your offending in your letter to the court.  Your background, education level, work history and absence of relevant prior offending, along with your age, suggest that you have good prospects of rehabilitation.  I also accept that the near certainty of your deportation at the completion of any sentence adds to the hardship of your incarceration.

28On the authorities in cases involving cultivation of a narcotic plant in a commercial quantity, where the maximum penalty is 25 years' imprisonment, general deterrence is at the forefront of sentencing considerations.  Denunciation and just punishment also loom large in this case. 

29Ordinarily a sentence involving an immediate term of imprisonment would be unavoidable in such a case.  The existence of the community corrections order regime leaves open of course the imposition of a combination sentence, that is a term of imprisonment plus a community corrections order, but only where the term of imprisonment to be imposed is less than two years.

30In this case the seriousness of your offending requires a sentence on the cultivation charge to a term of imprisonment of more than two years.  For this reason a combination sentence is not appropriate.  I therefore sentence you as follows.

31On the charge of possession, you are convicted and fined $2,000.

32On the charge of cultivation of a commercial quantity of a narcotic plant, you are convicted and sentenced to two years and six months' imprisonment with a non-parole period of one year and eight months’. 

33You have served 504 days of pre-sentence detention, not including today and I direct that 504 days pre-sentence detention be entered into the records of the court and deducted administratively as time already served.

34Pursuant to s.6AAA of the Sentencing Act 1991 (Vic) I indicate that but for your plea of guilty I would have imposed upon you for the cultivation charge a sentence of three years’ and two months' imprisonment with a non-parole period of two years’ and four months’.

35Am I correct on the pre-sentence detention?

36MS DUNSFORD:  Yes, on my calculations, Your Honour.

37HER HONOUR:  All right.

38MR FISHER:  Yes, Your Honour.

39HER HONOUR:  Are there any other matters?

40MR FISHER:  No, Your Honour, thank you.

41HER HONOUR: We will just print a copy of the order for you. 
If you want to approach Mr Singh to explain that to him, please do.

42MS DUNSFORD:  Thank you.

43HER HONOUR:  I will just leave the Bench and when you are ready you can leave, all right.

44MS DUNSFORD:  I am grateful, Your Honour.

45HER HONOUR:  Thank you.  Thank you, Mr Fisher.

46MR FISHER:  Thanks.

47HER HONOUR:  We will adjourn formally, but you have a few moments here.  Thank you.

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