Director of Public Prosecutions v To
[2016] VCC 2092
•19 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00276
Indictment No. F14003968
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROLAND TO |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 May 2016 | |
DATE OF SENTENCE: | 19 May 2016 | |
CASE MAY BE CITED AS: | DPP v To | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 2092 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – sentence – plea of guilty to cultivating a commercial quantity of cannabis and theft of electricity – 90 plants weighing 31.28 kilograms – sophisticated hydroponic system with electrical by-pass – offender with prior convictions for trafficking cannabis and theft (same offending) – TES 2½ years’ imprisonment, with minimum of 20 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecutor | Mr J Manning | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr R Revill | Revill Lawyers |
HIS HONOUR:
1 Roland To, you have pleaded guilty to cultivating a commercial quantity of cannabis, for which the maximum penalty is 25 years’ imprisonment (charge 1); and to theft, for which the maximum is 10 years’ imprisonment (charge 2). I must now sentence you on behalf of the community.
Circumstances of offending
2 The circumstances of your offending are set out in an agreed prosecution opening which was read in Court, so a summary will suffice. You were renting premises at Kings Park and living alone. On 3 December 2015, police executed a search warrant and you answered the door. They discovered a sophisticated hydroponic cannabis crop was growing in five separate rooms. In all, there were 90 cannabis plants in various stages of maturity which weighed a total 31.28kg (charge 1). A commercial quantity of the drug is not less than 25kg or 100 plants.[1] Police seized 49 light globes and the same number of shrouds, 3 power boards and 50 transformers. The lights were automatically controlled and an operating watering system was in place. Fertilising products were scattered about the house. You were sleeping on a mattress in the lounge room. The enormity of the enterprise is graphically portrayed in exhibit photographs. An electrical by-pass had been established and the value of stolen electricity is approximately $153 (charge 2).
[1]This is to be compared with a large commercial quantity of the drug, which is not less than 250 kilograms or 1,000 plants, and a traffickable quantity, which is not less than 250 grams, or 10 plants.
3 You were arrested and interviewed. You made a number of admissions, but you were not particularly forthcoming about the enterprise. You denied ownership of the plants, but refused to disclose who the cannabis belonged to and what you knew about it. You denied buying or selling the plants. You said that you watered, fertilised and cut the plants, but claimed not to know how old they were. You said you were not working and that you wanted to make money. And that you used cannabis 4-5 times a day. You said that you did not set up the by-pass, but you had to steal electricity so that you could cultivate the crop.
4 You were charged and have been held in custody without bail since your arrest. There is now 168 days pre-sentence detention up to, but not including, today. You entered the earliest plea at the first committal mention on 25 February last.
Background and personal circumstances
5 Your background and personal circumstances have been set out in a helpful written submission provided by your counsel. You are now 55. You were born in Vietnam. I know little of your family, childhood or work history in Vietnam. You were educated to Year 7 level. In 1982, aged 22, you travelled by boat to a refugee camp in Hong Kong, where you spent the next 7 years. In 1989, aged 29, you came to Australia and are now an Australian citizen. Having arrived here, you worked in many different factory jobs and most recently in a chicken factory, but were retrenched in June 2015.
6 You have no direct family in Australia. You had a de facto relationship with a Vietnamese lady and have two children with her; a son 14 and a daughter 10. You separated in December 2014, but maintained a good relationship and were supported by her in Court, and she and the children have visited you in prison. Following the breakdown of your relationship you moved into the drug premises; the prosecution said the electricity was connected in your name in May 2013.
7 You suffered Hepatitis B and had to take an expensive antiviral medication for symptoms, particularly liver problems. Following your separation you were not working, you needed money for the medication and incurred a gambling debt of $25,000. You became depressed and offended in this context.
8 Since you have been in custody these last 5½ months, you have been in 23 hour lockdown at MRC due to the prisoner riots last year. However, on 15 March last you obtained a good job working at the prison kitchen from 9.00am to 3.00pm, and at about the same time you were placed in a privileged unit for model prisoners. While in prison, you have had the medication for Hep B, epilepsy and age-related back pain. You have had no visitors other than your former partner and children, and, with poor English, have suffered some isolation. To your credit, you have studied English and obtained a certificate and 2 others for occupational training.
9 Regrettably, you have a very relevant criminal history. In September 2007, you were convicted in the Magistrates’ Court of trafficking cannabis and theft and sentenced to an aggregate 6 months’ imprisonment, wholly suspended for 12 months. You did not breach that order. It was explained that in December 2006, you were living at your girlfriend’s house. You rented a shed at the rear of the premises for $1,000 per month and were cultivating a non-commercial quantity of 78 cannabis plants in various stages of maturity, using a hydroponic set-up and an electrical bypass.
Mitigating circumstances
10 There are a number of mitigating circumstances which I accept. You have a basic education and I infer you come from a simple background in Vietnam. You left your homeland when you were a young man and lived for seven years in a refugee camp, which, no doubt, was a very challenging experience for you. Having arrived in Australia, you have been productively employed in a number of jobs and established a substantial relationship, from which you now have two children with whom you maintain significant contact. You will have the support of your former partner and family while you are in prison, but the anxiety of not having immediate contact with them. You are a mature offender with no criminal history other than the drug matter in 2007 and you have no alcohol or mental health issues. I have not received any urine screens.
11 You made partial admissions to police in your interview, but I would not say they were full and frank admissions as submitted. Indeed, there was much about the circumstances of the enterprise that you were not prepared to speak about.
12 You pleaded guilty at the earliest time, thereby saving considerable court time, inconvenience and expense. This utilitarian benefit has served the interests of justice for which, alone, there should be a significant discount in penalty. It was submitted that the pleas entered demonstrate remorse, but that does not follow merely because of the plea. In fact, there is no evidence of remorse before me and I consider your pleas are responsive to being caught red-handed.
13 Since you have been in custody, you have demonstrated some important rehabilitative tendencies. You want to ultimately get work in the catering or cooking industry and to maintain the good relationship you have with your children. Your medical issues are well managed. You are somewhat socially isolated and your foreign background will make it more difficult in that regard. Things have also been difficult for you because of the lockdown.
14 Your counsel submitted that you should be sentenced on the basis that you played a limited role of cultivating the crop, in the sense that you only watered and fertilised the plants in conformity with the claim you made in interview. Of course, I must sentence you for committing the offence on one day only, as I do, but I am unable to accept that you played that limited role. You did not give a reliable or fulsome account to police; for instance, you claimed you did not know how old the plants were when they had been growing all over your own home and you were nurturing them by hand. Counsel said that answer was referring to when you first received the plants from others. But clearly, this was not the meaning of that answer (which can be found at Question 52) because you were responding to a question about how old the plants were which had been found by the police in the various rooms, not when you first got them. Then you claimed through your counsel that the crop had been set up about two months before your arrest. When I queried that, given the different maturity of the plants, it was said you had cut some of the tips and replanted them in other pots. Then it was explained that your financial reward was performance-based, in that you were to get an (unspecified) percentage of the ultimate profit made from harvest and sale. Of course, none of this explanation about re-potting or the financial incentive was mentioned by you to police. When I indicated to counsel I was unprepared to accept this account without a proper evidentiary basis, you declined to give or call evidence because, it was said, you were fearful for the safety of your family and yourself if forced to identify others involved. You are not to be punished for failing to give evidence on the plea hearing, however I would adopt the observations of the Court of Appeal in Dao,[2] where it was made clear that while an offender is entitled to say nothing, whether that be to police or at the plea hearing, and to rely on the fact of there being no evidence of aggravating factors as to role, where there is not otherwise acceptable evidence or mitigating circumstances, the judge is bound to proceed on the basis that there are no mitigating factors of which evidence might have been given. Counsel sought to distinguish the facts in Dao, being a much more serious drug case, but the sentencing principle was the same in both cases.
[2]Dao v The Queen [2014] VSCA 93, [17] per Nettle JA, [37]-[40] per Redlich JA (Priest JA agreed).
15 Here, there is no sound evidentiary basis to conclude that you played the limited role claimed. That contention is contradicted by the fact that you were not sitting the crop at some other property, but rather cultivating it in your own home where you lived alone and it occupied almost the whole of the house. In any case, the explanation as to your additional activity in grafting new plants, that is, increasing the actual number of plants, and having a significant commercial interest in the ultimate sale of the crop, clearly shows you had a much greater interest, responsibility and authority in and with the crop than someone just watering and fertilising the plants. It was submitted that your financial situation was not consistent with being a major player because you owned no real estate and had no cash resources or any other assets, except for a very old car, and were unemployed. But, other than the aspect of unemployment, there was simply no evidence of these other matters and even if there were, that would not exclude you as a major player in the enterprise.
16 The prosecutor indicated, as a matter of fairness, that the Crown negotiated the guilty plea on the basis that you were only a crop-sitter. However, at that time, he said the significant prior drug matter you had in 2007 was not known, nor, presumably, was the additional information as to re-potting and commercial interest disclosed by counsel at the hearing. The prosecutor conceded it was difficult to reach a conclusion on the evidence as to whether you were only a crop-sitter or a principal, but did not resile from the basis upon which the plea was negotiated. However, it was conceded the Court was not bound by the prosecution position.
17 You have not satisfied me, on the balance of probabilities, of the mitigating factor that you had the low involvement as submitted. Even if you were to be treated at the bottom of the hierarchy, that would, nevertheless, be serious conduct.[3] Although I cannot find that you were at the top of any hierarchy, you were clearly involved in this enterprise in a significant way.
[3]Doan v R [2010] VSCA 250, [11] per T Forrest AJA and [17] per Nettle JA.
18 Given your prior drug matter and escalation to a commercial quantity of the drug, I remain guarded about your prospects of rehabilitation, although your recent good activities in prison suggest they may well be reasonable.
Other sentencing considerations
19 There are, of course, other important sentencing considerations. You have committed a very serious offence, which is reflected in the very high maximum penalty of 25 years’ imprisonment, to which I must pay due regard. Obviously, that maximum is reserved for the worst case, which category yours is not in, but it does demonstrate community concern for this type of offence.
20 Your cultivation involves about 6kg over the threshold by weight, that was x1.25 times the commercial quantity of the drug or 12.5% of the large commercial quantity. The nature of the commercial quantity is one factor of importance to be considered, although not the only one. As a cultivator, you played a crucial role in the highly planned and sophisticated commercial enterprise. By your presence alone, you have helped to shield principals from detection, if there be such other persons. No evaluation statement was provided, but this amount of the drug would be worth a great deal on the commercial market. Significant profits were to be made following the harvest of the crop and its distribution into the community, which is a socially destructive activity with all of its pernicious social consequences. I have no doubt you well-understood all of this, particularly as you had the significant prior drug matter. It is not suggested you lack intelligence. I do not proceed on the basis that you would have been involved in the harvest or sale of the crop, you are not to be punished for this activity, but it is significant that you claim your payment was to be a percentage of the profit, so you had a direct interest in this aspect of the matter.
21 A relatively small amount is involved with the theft of electricity, but this conduct is serious as it diverts suspicion and facilitates the success of the enterprise and you have a prior conviction for the same conduct. Accordingly, there should be a modest degree of cumulation for that charge.
22 The principles of general deterrence, protection of the community, just punishment and denunciation are all very important considerations. Specific deterrence is also of importance, given your previous drug involvement of the same kind. You have failed to learn an important lesson from that offending. You are not to be punished more severely because of it, but that history may be taken into account as an indicator of your moral culpability, which is high; your prospects of rehabilitation, about which I am guarded; your propensity to commit further such drug offences; the need for community protection; and the increased importance of specific deterrence.[4]
[4]Sianas v R [2016] VSCA 84 (27 April 2016), [34] per Priest JA, with whom Osborne JA agreed.
23 I must also consider current sentencing practice. For the cultivating offence I was referred to the Sentencing Snapshot,[5] and the more recent report Major Drug Offences - Current Sentencing Practices.[6] It would appear that you fall closer to the cluster 2 category than cluster 1, given that you have the prior matter and that I am unable to conclude that you were a mere crop-sitter. However, you are to be sentenced for offending on one day only and the quantity was not greatly over the threshold by weight. The median sentence for these two categories was, respectively, 2 to 3 years’ imprisonment concerning 403 cases between 2008/09 to 2012/13. Of course, these are pre-Boulton figures which seem to bear little relativity to the maximum of 25 years. The limitation of these figures are well-known, but they do provide general guidance.[7] However, at the end of the day, every case must turn on its own facts and circumstances and that is true of yours.
[5]Sentencing Advisory Council Sentencing Snapshot (No 165) August 2014.
[6]Sentencing Advisory Council, March 2015.
[7]Bui v R [2015] VSCA 313, [27], per the Court (Redlich and Whelan JJA), 25 November 2015, where the Court considered recent SAC figures.
24 The prosecution submitted that yours was serious offending, correctly noting that you had in your possession a vast amount of cannabis well in excess of your personal daily need. Indeed, you were cultivating so that the crop could be sold, not for personal use. Accordingly, I have no difficulty being satisfied, beyond reasonable doubt, that you had the drug for a purpose relating to trafficking, rather than solely for personal use, and this is an aggravating factor.[8]
[8]R v Barbaro & Ors [2007] VSCA 271, [29] per Redlich JA, with whom Vincent and Ashley JJA agreed; and R v Kingston [2002] VSCA 41, [17] per Batt JA, with whom Callaway and Vincent JJA agreed.
25 Your counsel submitted that the appropriate sentence was one of immediate imprisonment, but not greater than two years, which should be combined with a community correction order. Counsel relied on the well-known principles set out in Boulton,[9] in which the Court of Appeal made clear that a CCO, with its punitive and rehabilitative nature, can be imposed even for serious offending. Counsel emphasised your problems with drug addiction, gambling and depression, which could be best addressed by a CCO. Of course, these concerns can also be addressed in prison and whilst on parole.
[9]Boulton v R [2014] VSCA 342.
26 The prosecution’s submission as to disposition was that there was still a need for a further period of imprisonment but not that the combined sentence was outside the permissible range, although that was a matter for the Court. The Crown also noted that in McGrath,[10] the Court of Appeal made clear that in the post-Boulton era, the importance of general deterrence, as confirmed in Doan, remains a significant sentencing consideration for the cultivation offence and that “….an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.”[11]
[10]McGrath v R [2015] VSCA 176.
[11][54]-[56], citing Nettle JA in Doan at [17].
27 The essential question is whether a sentence of two years’ imprisonment, the maximum that can be combined with a CCO, is appropriate in all the circumstances. Whilst giving the prosecution’s submission all due consideration, I do not consider such a disposition would be appropriate, in light of the gravity of your offending.[12] However, in fixing sentence, I acknowledge that imprisonment must always be imposed as a last resort; I must have regard to the mitigating circumstances; to the principle of proportionality; and I must also avoid the passing of a crushing sentence on you, all of which I have done.
[12]The Court of Appeal has acknowledged in a number of recent cases that the combination of imprisonment and a CCO will not always serve all the relevant purposes of sentence in a particular case, see: Hutchinson v The Queen [2015] VSCA 115, [17] per Priest JA, with whom Ashley JA agreed; Ellis v The Queen [2015] VSCA 320, [42], per Whelan JA and Cavanough AJA; Atanackovic v The Queen (2015) 326 ALR 159, 197 [159]-[160] per Weinberg, Kyrou and Kaye JJA; and Gul v The Queen [2016] VSCA 82, [41]-[43], [50]-[51] per Priest, Coghlan and Kyrou JJA .
28 Finally, on behalf of the community, I strongly denounce your offending.
Sentence
29 Mr To, please stand up. On both charges you are convicted. On charge 1, you are sentenced to 2 years and 4 months’ imprisonment. On charge 2, you are sentenced to 4 months’ imprisonment. The sentence on charge 1 is the base sentence. I order that 2 months of the sentence on charge 2 be served cumulatively on the sentence imposed on charge 1.
30 The total effective sentence is 2½ years’ imprisonment. I fix the period of 20 months before which you shall not be eligible for release on parole. I declare that 168 days pre-sentence detention be reckoned as already served under that sentence and direct that such declaration be entered in the records of the Court.
31 But for your pleas of guilty, I would have imposed a sentence of 3½ years’ imprisonment with a minimum of 2½ years.
32 You have agreed to the making of a forensic sample order. I will make the order, given the seriousness of the offending, your prior convictions, the fact that the order is by consent and in the public interest. Accordingly, pursuant to s464ZF(2) of the Crimes Act 1958, I order that you provide a scraping from your mouth and/or a blood sample in accordance with Sub-Division 30A of Part III of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I should warn you that if, at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, which is a simple, painless and quick process, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
33 I will also make the agreed compensation order that you pay to Lumo Energy compensation in the sum of $153.16; and the agreed disposal order. Please sit down for the moment. I hand down the signed orders and ask counsel are there any matters arising?
34 COUNSEL: No, your Honour.
35 HIS HONOUR: Mr To, you need to go with prison officers now. Thank you. Please remove the offender.
36 [Offender removed.]
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