Director of Public Prosecutions v Spong

[2014] VCC 1860

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01721

DIRECTOR OF PUBLIC PROSECUTIONS

v

LARRY JAMES SPONG

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 January 2014
CASE MAY BE CITED AS:	DPP v SPONG
MEDIUM NEUTRAL CITATION:	[2014] VCC 1860

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S Ballek
For the Accused	Mr W Barker

HER HONOUR:

1Larry James Spong, you have pleaded guilty before me to one charge of cultivating narcotic plants namely cannabis, in not less than a commercial quantity and have pleaded guilty to the summary charge which you have agreed is to be dealt with by this court on this occasion of possessing property suspected of being the proceeds of crime, that being $12,800 cash.

2The events underlying this offending are as follows.  On 7 May 2013, police attended a house at 2 Grace Street Monee Ponds in order to execute a warrant, knocking on the door, but receiving no response.  They noticed a strong smell of cannabis coming from inside the house, and gained entry through an unlocked front window.

3Inside, police located four rooms set up for the hydroponic cultivation of cannabis involving a reticulated watering system, high powered lighting and shades from the ceiling, transformers, timers, chemicals and plant fertilisers.  They also located $12,800 in cash in several bags from around the house, and various amounts of loose cannabis and personal items belonging to you including bills, cards, photographs and clothing.  An illegal electrical meter bypass was connected in the roof cavity of the house, diverting power around the meter box.

4Examination of the cannabis ultimately revealed that there were 13 bushy female cannabis plants close to maturity, weighing 35.1 kilograms, located in what was called Room 2, 13 immature female cannabis plants weighing 15.64 kilograms located in Room 3, 39 immature cannabis plants weighing 3.52 kilograms located in Room 6 and 24 immature cannabis plants weighing 58.8 grams located in Room 7.  Loose cannabis located in various areas of the house weighed 2.1 kilograms.

5The total number of plants was 89, and the total weight of cannabis derived from them, and the loose material was 56.95 kilograms.  Police spoke to you at the house in a laneway at the side, but you were not identified at the time, or arrested, then you attended the Fawkner Police Station on 21 May 2013, where you were arrested, making a no comment interview.

6The matter proceeded by way of straight hand up brief, at a further committal mention on 10 September 2013 when you entered pleas of guilty to these two charges.

7The maximum penalty for cultivating narcotic plants in a commercial quantity is 25 years imprisonment.  The maximum penalty for dealing with property suspected of being proceeds of crime is two years imprisonment.

8You were remanded in custody following your arrest on 21 May 2013.  You have never made an application for bail and have now spent 245 days in pre-sentence detention.

9I now turn to your personal circumstances.  You are 65 years of age, and for the last four or five years have been in receipt of a Centrelink pension.  You were born in 1948, one of five children.  You had difficulties studying and finished school in Year 7 working for your parents who were then living in Tasmania and running a hotel for about one year.  The family returned to Melbourne and you then worked for two years in their milk bar. 

10At age 18, you moved to Western Australia where you worked in the mines for two years undertaking hard manual labour, then for about ten years, held down two jobs as a van driver and storeman, involving you working very long hours, you also undertaking a third job on a two to three day basis per week, at the fruit market.

11You carried out that combination of jobs for about ten years, during which time you met and married your wife.  You and she then ran a series of stores, selling clothing and travel goods.  This business was successful, and the two of you ran it for about ten years until your wife became pregnant with your first child, after which you slowly sold off the various stores.

12You then began a business as a property developer which you undertook for about 30 years, whereby you would buy houses, renovate and sell them, you bringing in professionals for the more sophisticated work, but yourself, undertaking manual labour.

13By about the age of 50, the manual work you were undertaking became too much, and you then went to England where you undertook specific training in a form of signage.  You came back to Australia and ran that business for about four to five years, but were ultimately unsuccessful, so by 2007, were in a position where essentially whatever assets you had accumulated over a long working life, had been dissipated, and you became a recipient of the pension.

14Along the way, despite your commendable working history, you have been before the courts on a number of occasions, most seriously, in the early and late 90s, for involvement in criminal activity involving drugs.

15Your prior and criminal history goes back to 1973 where between 1973 and 1985, you appeared on charges including false pretences, unlawful assault, contrived in gaming, possession of a drug of dependence and attempting to supply alcohol to a prisoner, that latter charge being heard at the Sale Magistrates Court in March of 1985, for which you were dealt with by way of a good behaviour bond and fines.

16Then in 1990, you were sentenced by the Melbourne County Court to a period of imprisonment, to a sentence of four years and six months, with a minimum term of 18 months for trafficking in a drug of dependence and conspiracy to pervert the course of justice.  This, your counsel instructed me, related to you trafficking in amphetamines, a very serious charge indeed.

17It appears you have some memory problems, and had been unable to supply much in the way of detail, about how it was that you came to offend in that way.  Ultimately, due to the early release scheme which was then in existence, you served 177 days of your sentence, and on release from prison, continued as a property developer.

18Then in September of 1995, you received two terms of imprisonment, 18 months and six months, for charges of trafficking in a drug of dependence, and conspiracy to defraud the Commonwealth, which sentences were suspended for a period of two years.  You have been unable to supply any details at all to your counsel of that offending, and indeed, your counsel has instructed me that you have no recollection of it.

19Then again in 1988, you were sentenced by the Preston Magistrates Court to four months imprisonment, on charges of cultivating cannabis and possessing cannabis where sentences were suspended for a period of two years.  There has been no further offending since that time.

20You and your wife separated about 17 years ago, but have remained in close contact, the two of you having three daughters and one adopted daughter.  Your former wife attended court during the plea, and I have a reference from her to the affect that you had always been a hardworking man, who was committed to providing for his family.  That you were, she said, a good man, who was moral and responsible, and she had described this incident as an enormous error in judgment which had both embarrassed and saddened you.

21She said that you were so ashamed of your actions, that you had not allowed your children to visit you in prison.  She also described you as being a devoted and committed father and grandfather.  She said you worked very hard in order to provide for your family, including sending your children to private schools.

22I received a written reference from your sister, Carol Spong, who spoke of you in similar terms, that is, is a man who has always been a hard worker, who has lived simply and whose main focus in life has been the support of his family.

23I have received a further reference from Ms Geneva Hope, the co-ordinator of The All Saints Opportunity Shop in Ascot Vale, where you worked on a volunteer basis, for two days a week from 2007 to 2012.  The letter appears not to have been written in relation to any knowledge by Ms Hope about your offending.  But she described you as punctual, hardworking and conscientious, and enthusiastic, courteous, good humoured and caring of others, and as an integral part of the staff team. 

24She said:

"I found Larry to be a man of the highest integrity, honest, trustworthy, responsible, caring, supportive, and an absolute pleasure to work with". 

25The circumstances surrounding your offending have been difficult to discern - the explanation of your involvement in this role, and why you became involved did remain to my mind unsatisfactory.  According to your counsel, you have resided at this house for two years.  The house is seems is part owned by your daughter.  There is no evidence as to how long the house had been used for growing cannabis.

26It was conceded by the learned prosecutor that the most that could be said about how long the crops had been there, related to the age of the mature plants, that is about three months.

27It appears you began living at this house at a time when you were impoverished.  You apparently suffer from a number of medical conditions.  Again, I am somewhat hamstrung in what I do with that, if I can put it that way, given that there is no supporting medical material.  Your counsel informed me that you suffer from emphysema of the right lung, with a capacity of about 20 per cent. He said you do not like attending upon doctors, and are reluctant to do so.  You have an evident deafness problem, and you cannot read without glasses.

28It was put to me that as a person of minimal education, your employment opportunities have been very much limited by your age and accompanying physical difficulties, and that has prevented you from undertaking work in your latter years, once your last business, involving the signage actually failed.

29It seems that you lived at these premises rent free.  Your instructions to your counsel were that you were approached by persons whose names have never been revealed, to take care of this crop.  You agreed to do so because it meant you were not paying rent, and you were promised some payment, but it was never given to you.

30The prosecution concedes that the most that can be said about your role in this cultivation was that you were a crop sitter.  However, I am satisfied that you were operating this role at a fairly high level, if I can put it this way.

31I am particularly troubled in this regard by the presence of the $12,800, which is the subject of the proceeds of crime charge.  Your instructions are that the money had no connection to the crop.  Your instructions also to your counsel are that you are not a user of cannabis.  The prosecutor however pointed out that ground up cannabis was discovered, as were several joints, that is, rolled cigarettes containing marijuana. 

32The crops were extensive.  You had been living at this house for a long time.  You are clearly not in the role of crop sitter more usually seen in this court, where for example, you came in on a daily basis to attend to a crop, had little to do with the actual property and so forth.

33The prosecutor did concede that it could not prove that you were involved in the provision of stock or seeds, the hydroponic set up, the electrical bypass or the distribution of cannabis.  Nevertheless, given your relationship to one of the co-owners which was not disputed, the length of your tenancy at the premises, the presence of this cash at the house, it does seem to me that your role as crop sitter was a fairly serious one, and a fairly protracted one, and a fairly involved one.  I am satisfied of those factors beyond reasonable doubt, and I do regard them as aggravating features.

34I accept that you have entered a plea at the earliest opportunity.  Whilst you did not conduct a confessional record of interview with police, the plea was made at an early stage, and you have made no attempt to seek bail, and I am satisfied that those actions by you do constitute a genuine expression of remorse.

35Your counsel said you do continue to enjoy the support of family, that is your daughters (although I did not receive any material from them at all).  But I am satisfied you have the support of your former wife, and one of your sisters and another friend who has also written a reference supportive of you, written clearly in the knowledge of the offending that you are charged with.

36I am satisfied that to a certain extent, you took the role you did because of the financial situation you were in.  I also note that when you did separate from your wife, you left her and your daughters pretty much in possession of all the marital goods, and your counsel informs me that you moved out into rental premises, which you were no longer able to afford once your signage business failed.

37I am satisfied therefore that you did undertake the role that you did, firstly in residing in this house, and then becoming involved in the maintenance of it, because of the financial predicament you were in, as I have indicated previously. 

38However, I must also take into account, notwithstanding that you are unable to provide any explanation as to the circumstances surrounding them, that you have, albeit upwards of 15 years ago, been involved on more than one occasion in cultivation, and trafficking of drugs.  These are serious matters.

39The amount of cannabis discovered in the property was more than double the minimum amount said to constitute a commercial quantity.  I am satisfied, again notwithstanding that the prosecutor ultimately decided not to change the dates of the cultivation which appear on the indictment, that is on or about 7 May, that the cultivation you undertook did go on for longer.  However, I accept I am limited, in my sentencing exercise, by the period of time designated in the charge.

40It is as I have said difficult for me to take into account the ill health you are said to be suffering, in the absence of any supporting medical material.  In sentencing you, I do take into account that you are 65 years old, and the last time you were in trouble was 15 years ago.

41Nevertheless, cultivation of a commercial quantity is an extremely serious offence, and there appears to be no argument that I should deal with you in any way other than by the imposition of a term of imprisonment to be immediately served.

42There are just so many unanswered questions, in so far as your involvement, in particular with those who were ultimately to be the beneficiaries of the sale of this crop is concerned, but I am satisfied that it was a closer than usual relationship.  By this, I mean that very often courts are presented with a scenario whereby the crop sitter is recruited, for example as seems often to be the case, at Crown Casino, there is a go between who acts as recruiter, who takes the ultimate crop sitter to the house, instructs them in what they do, and the crop sitter never in fact actually meets the person who owns the crop, or the premises.

43In your case, I am not satisfied that you were - at that sort of arms' length distance, if I can put it that way, as in less serious cases. 

44I am certainly not satisfied that the 245 days you have served is sufficient in the circumstances, given the need for courts to have particular regard to principles of general deterrence, in cases such as these.  That is, in passing sentences which are to act as a warning to other persons in the community, as to what they can expect to - by way of treatment before courts, if they engage in a similar criminal activity.

45In all the circumstances, I have decided therefore to sentence you as follows.  On the charge of cultivation of narcotic plants, I will sentence you to a period of three years and three months.  On the charge of possessing the suspected proceeds of crime, you answer sentenced to four months imprisonment, and I order that one month of that sentence be served cumulatively, to the sentence imposed on the charge on the indictment, giving a total effective sentence of three months and four months.

46Taking into account the mitigatory matters that had been raised on your behalf, and which I have referred to in my sentencing remarks, I order that you serve a minimum term of two years, before becoming eligible for parole.  I direct that 245 days of this sentence have been served by way of pre-sentence detention.

47I should add that I am satisfied you have reasonable prospects of rehabilitation.  I am satisfied you do have good external supports.  I note that whilst in gaol, you have been given the position of billet, which is a position of trust, so that you have performed creditably whilst on remand in what are conceded to be more difficult conditions, than would be the case for prisoners undergoing a sentence that has actually been imposed.  And these have been part of the reasons that I have considered in determining the appropriate minimum term.

48Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a period of imprisonment of four and a half years, with a minimum term of three and a half years.  Now I have to sign disposal orders?

49MR BALLEK:  Yes, Your Honour.  Disposal, forfeiture and 464.

50HER HONOUR:  Thank you.  There was a s.464ZF application?

51MR BALLEK:  Yes, Your Honour.

52HER HONOUR:  Do you have anything to say about that, Mr Barker?

53MR BARKER:  Not opposed, Your Honour.

54HER HONOUR:  All right.  I'll order that as well.  Could you stand up please, Mr Spong.  I need to tell you that I am granting an application that police take a forensic sample from you, which will be a saliva swab.  If you resist the taking of this swab, police are entitled to use reasonable force in obtaining it, all right.  Have a seat, Mr Spong, thank you.  All right, I think that is everything.

55MR BALLEK:  No other matters, Your Honour.

56HER HONOUR:  Why do I always have to sign my name about 15 times on these things?  So I am not allowing a blood sample, I am allowing a swab only.  All right.  I will just give you back your references, Mr Walker, thank you.  Just give me a moment.  I'll give them to you, but don't go racing off, I've just got to find that one.  That goes back to prosecution and so does that, thank you, and I think there's one more reference that I just need to find.  It's probably caught up in that material, that's all right.  All right, sorted? 

57TIPSTAFF:  (Indistinct).

58HER HONOUR:  Do you want me to quickly have a look through because I think I included - there's so much to be said in favour of keeping a tidy Bench isn't there?  That goes back to prosecution.  Thank you very much, we'll stand down to 2.15, thank you.  I thank counsel for their assistance in this matter.

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