Director of Public Prosecutions v Uoy
[2013] VCC 2068
•19 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-02042
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SOPHANARETH UOY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 December 2013 | |
DATE OF SENTENCE: | 19 December 2013 | |
CASE MAY BE CITED AS: | DPP v Uoy | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2068 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentencing Act 1991
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P Triandos | Office of Public Prosecutions |
| For the Accused | Mr T Hoare | Dribbin & Brown |
HER HONOUR:
1 Sophanareth Uoy, you have pleaded guilty to one charge of cultivation of narcotic plants in a quantity not less than a commercial quantity. The maximum penalty applicable to that offence is 25 years' imprisonment. You have also pleaded guilty to one charge of theft of electricity and the maximum penalty applicable is 10 years' imprisonment.
2 Your offending in Charges 1 and 2 occurred between 9 January 2012 and 9 May 2012, that is over a period of about four months.
3 It is not necessary to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor, consistent with the Prosecution Opening (Exhibit A) and as discussed with counsel during the course of the plea hearing.
4 Suffice to say your offending, in my opinion, is most serious.
5 I turn to the circumstances of your offending.
6 At 9.52am on 9 May 2012, police executed a search warrant at your home at 33 Birrong Avenue, Noble Park.
7 In the rear of the house police located a sophisticated hydroponic set up complete with cannabis plants, lighting, filters and a watering system. The interior of the house had been altered for the hydroponic set up.
8 Police also located a watering system linked through plastic pipes to all plants throughout the house and a ventilation system within the roof and ceilings of the grow rooms. The system comprised several exhaust fans and charcoal filters.
9 Also seized were 25 healthy cannabis plants measuring between 25 and 45 centimetres in height and a further healthy 24 cannabis plants between 1 and 1.5 metres in height. Also located and seized were numerous plastic bags containing dried cannabis.
10 All the cannabis that was seized was weighed and there was a total of 42.4 kilograms.
11 An electrician attended and located inside the lounge room wall an electrical bypass which supplied a temporary switchboard feeding lighting and other equipment in four rooms over the period of about four months (Charge 2).
12 A number of other items were seized from the premises including 30 electrical transformers, 29 light globes, 22 lamp shades, five charcoal filters, six fans, one power board, one set of digital scales, five water pumps, one water heater, multiple quantities of fertilisers and plant growth enhancers, and $585 cash in your wallet.
13 You were arrested and taken to Dandenong Police Station where you were interviewed. During that interview you said you had lived at Birrong Avenue for over a year and rented the property from your sister. There were 49 plants in the house and you grew cannabis plants at varying maturity, using the hydroponic set up to sell and also for your own use. You gave details of how the hydroponic set up was installed by you. You told police you had farming experience, and had studied agriculture. You said there had been one previous cannabis harvest and that this crop was your second.
14 You said the hydroponic set up took about a year to install and had been operating for about four months, powered by an electrical bypass you had also installed yourself.
15 Each fully grown plant would yield, you thought, about 6 ounces or 180 grams of dried cannabis. You had sold 3 ounces of cannabis per week, you said, at local hotels at $180 to $200 per ounce to pay rent and bills, as you did not have any other income.
16 You wanted to recover the costs of the hydroponic set up, apparently to make $50,000 profit so you could buy a rice farm in Cambodia.
17 According to the statement of drug valuation, the street value of the cannabis seized was in the range of $66,300 to $117,719 if sold in ounces (items 2, 5 and 6) and grams (items 3 and 4). This did not include item 1 which was the 25 immature plants for which no valuation could be provided.
18 You have pleaded guilty to the charges before me, following a contested committal on 8 November 2012. At that stage, you were also facing charges of trafficking in a commercial quantity of cannabis. The contested committal was of short duration and involved two police officers, i.e. no civilians. Your trial was listed for 28 October 201, however, on 28 August 2013, at the final directions hearing, you were arraigned on the Indictment before me and pleaded guilty. The fact that you have pleaded guilty to this offending and the timing of your plea is relevant in your favour in mitigation of sentence.
19 Your pleas of guilty have spared the time and cost of a trial and the need for witnesses to be called at a trial and give evidence before a jury. I also note you made full admissions in the record of interview to police regarding your offending.
20 In the circumstances I am prepared to accept in your case your plea of guilty indicates remorse for your actions.
21 At 45 years of age it is also relevant that you come to Court without any prior criminal history, and nor is there anything subsequent alleged.
22 I was told something of your personal history and circumstances. You are 45 years of age. You came to Australia as a refugee from Cambodia at age 13. You are Buddhist and regularly attend the temple.
23 You went to Jordanville Technical School, then Mitcham Technical School but were the subject of bullying and racism. Despite that you finished Year 10.
24 You have two brothers and two sisters who live in Australia. Prior to coming to Australia your family were political refugees. Your father was still alive however your mother had passed away from a cancer-related illness when you were between 8 or 9.
25 You have a son, Nathan who is 16 years of age, who lives in Northcote with his mother. You were seeing him, prior to your remand, every second weekend and on school holidays, although I was told that contact had increased since you were charged. You often watch him play sport. He is currently in Year 9 at Northcote High School.
26 You son’s mother is also Cambodian. You also have a step-daughter who is now in her late 20s. You also described a good relationship with her despite no longer being in the relationship with her mother.
27 You commenced smoking cannabis at the age of 11 and described yourself as being addicted to it, although I was advised you had not smoked cannabis since your arrest.
28 Following being charged with these offences, you sought out and received counselling from Vanessa Schultz, being referred to her through Centrelink. You had also subsequently been prescribed antidepressant medication, to assist with your sleeping.
29 For recreation you enjoy reading, painting, and you have also occasionally played golf.
30 Turning to your work history, when at school and from age 15 you would work weekends at farms, picking cherries, strawberries and carrots. After leaving school, you worked in the railways for about 10 years. Thereafter you did odd jobs including as a driver delivering clothing which you did for about four years. You then went to Myer and worked as a steam cleaner for a year before returning to farming in the Orbost, Sale and Bairnsdale area for two to three years. You have also worked as a taxi driver in the past, driving night shift for about seven to eight years.
31 You were unemployed at the time of this offending.
32 By 2012 to 2013, you had only a few days of employment doing a bit of gardening, cleaning, and helping to paint the Buddhist Temple in Springvale as a volunteer. In mid-2013 you went to work as a picker in Robinvale for a couple of months. In mid-2013 you also began working at a chicken farm in the eastern suburbs, and were at the time of your remand currently employed there two days a week. You were hopeful of obtaining additional work days. Your employer did not know at that time about your offending.
33 Mr Hoare relied heavily upon a report of Ms Pamela Matthews, Forensic Psychologist, dated 27 August 2013 on your plea, and I turn to that report. You told Ms Matthews that at the time of this offending, you had increased your cannabis use to between 7 and 10 grams daily.
34 When discussing your background in Cambodia you were visibly distressed when relaying your experiences there, reporting you “had always been depressed” since age 11.
35 You described nightmares regarding the violence you had witnessed as a child and also from the time a train derailed whilst you were working with the railways, for which you were apparently, at least according to your self report, partially to blame. You are currently supported in that regard with antidepressant medication, as I have said.
36 You presented, according to Ms Matthews, with limited insight and judgement.
37 Further details were provided in her report regarding your family history, much of which I had been told by Mr Hoare, either during the plea or contained in his helpful outline of written submissions (Exhibit 2). In Cambodia, prior to the war your father worked as a school principal. He passed away about 16 years ago. You reported a good relationship with your remaining siblings, although he said, were not particularly close. I was told by Mr Hoare, since you disclosed your offending to one of your brothers, he had effectively disowned you.
38 You described having to move from place to place daily in Cambodia to avoid the Khmer Rouge at night and the Vietnamese Army during the day. It was only from around the age of 12 or 13 when the United Nations became involved that you received an education. Ultimately your family was relocated to Australia in 1980.
39 Upon your arrival in Australia, your father became involved in the Cambodian community, working in social welfare.
40 You spent much of your adulthood going backwards and forwards to the family home. At the time of your plea you were residing in Noble Park with your brother, your brother’s wife, and it appears, according to Mr Hoare, another couple also.
41 Turning to your relationship with your ex-partner, you described a good relationship with her and also with Nathan and your step-daughter.
42 When you attended school in Australia you found it challenging as you did not understand English well. You were, however, good at maths. As a result of bullying you discontinued schooling.
43 Reference was also made in the report of Ms Matthews to your employment, to which I have previously referred.
44 At the time of her report, you were reporting increased depressive symptoms as a result of your lack of employment but you had a strong desire to be employed as it provided stability and increased your self worth.
45 Turning to your cannabis use, a similar history was provided to Ms Matthews. You said it was only when you began to work for the railways you would use cannabis every couple of nights. With money coming in, you increased your usage to a quarter of an ounce every few days. In 2012 when you lost your employment, your use increased to up to 10 grams per day. This was also the case at the time you were involved in cultivating the cannabis.
46 Since being charged with this offending, as I have previously noted, you had been placed on medication for depression which you took nightly to help you sleep and also provided stability in your moods. You attend Dr Peter Pereira in Springvale every couple of months and had also sought assistance from a Centrelink counsellor, Vanessa Schultze as I have previously stated, and were on a waiting list for accommodation at Foundation House.
47 Ms Matthews conducted a psychometric assessment of you. She concluded you presented as a victim of trauma in that you continued to experience ongoing dysphoria relating to such exposure. Using the depression anxiety stress scales, your score placed you in the severe range.
48 Turning to her diagnosis and opinion, as a result of your exposure to conditions of war and impoverishment, you had experienced chronic Post Traumatic Stress Disorder (PTSD) since that time. In Ms Matthews’s opinion you also met the criteria for Major Depressive Disorder and were currently considered to be a significant suicide risk.
49 In her opinion, you had used cannabis to self medicate your PTSD and depressive symptoms for much of your life. As such, you also met the criteria for diagnosis of Substance Use Disorder.
50 In her opinion, the combination of PTSD, Major Depressive Disorder and Substance Use Disorder led to your offending before the Court with an increase in your depressive symptomology as a result of your then unemployment being the trigger leading to your increased cannabis use and involvement in this offending. I discussed this conclusion with Mr Hoare when analysing the applicability, or otherwise of the principles in R v Verdins[1] and also today with counsel appearing on your behalf after I noted the parties of a recent decision in Johnston.
[1](2007) 16 VR 369
51 Ms Matthews expressed concern that should you be sentenced to imprisonment your condition could worsen. Further, should you be incarcerated, prison authorities would need to be alert to your potential for suicide and deterioration of your other mental health issues.
52 Turning to your rehabilitation prospects, Ms Matthews stated you had received appropriate psychopharmacological and counselling support since your offending. You described your counselling as a positive experience and were interested in accessing further psychological support structures. In Ms Matthews’ opinion, you required long term intensive counselling for substance use disorder, post traumatic stress, emotional regulation and coping skills. Involvement with services at Foundation House was also recommended. You would benefit from assistance obtaining stable employment. With these structures in place the likelihood of you re-offending, she considered, would be significantly reduced.
53 At that stage Mr Hoare relied upon the report of Ms Matthews to establish that each of the Tsiaris[2] principles in Verdins applied in your case. At that stage he submitted there was a causal link between your mental illness and your offending. I discussed the ‘extent of applicability’ with counsel during the plea hearing and again today
[2][1996] 1 VR 398
54 Mr Hoare submitted your offending was triggered by the loss of your employment, that you were depressed about that and your cannabis use increased significantly. That that, in turn, aggravated your pre-existing symptoms of PTSD and depression. You used cannabis to self-medicate those conditions.
55 He relied significantly upon the fact that you had not smoked cannabis since you were arrested for these offences, a submission the prosecution accepted. You were now being medicated on appropriate anti-depressant medication.
56 I discussed with Mr Hoare at the plea hearing the "realistic link" between your mental health, offending and cannabis use. The tipping point in this offending was your unemployment which led to increasing depression (a pre-existing condition), which led to increased cannabis use. Prior to being unemployed you had pre-existing symptoms of both PTSD and depression, and had been able to control those pre-existing PTSD and depression symptoms, to the point at least of you not committing any offences in the many years since your arrival in Australia.
57 Mr Hoare conceded you had been able to function within the community prior to the loss of your employment and that it was the loss of your employment and increased cannabis use which exacerbated your earlier mental health issues.
58 I discussed Verdins with Mr Hoare. Relevant to his submissions and assessment in your case, I have found the recent decision of Johnston v The Queen[3] instructive. Whilst the nature of the offences in that case were different from those before me, relevant was that appellant’s history of depression, and generalised anxiety disorder, and history of drug use and on the day of the offending having taken Xanax. The sentencing Judge considered the appellant’s drug use and use of prescription drugs on the night the offending occurred. Redlich JA noted the sentencing Judge in that case was aware of the appellant’s pre-existing psychological problems preceding drug-taking, as do I in your case.
[3][2013] VSCA 362
59 Redlich JA referred to pre-existing mental disorders, ‘realistic connection’ and drug use relevant to consideration of the Verdins principles (see paragraphs 13-16).
60 In your case, Mr Uoy, Mr Hoare submitted your loss of employment (and therefore money) led to increased depression and increase in your drug use, which adversely impacted on your pre-existing PTSD and depression. The relevance of your increased cannabis to your pre-existing mental health issues were also noted by Ms Matthews.
61 Your situation seems to me to be therefore analogous to Johnston. Should there by any applicability of Verdins principles 1-4 inclusive in your case, it is minimal.
62 Whilst the decision in Johnston was handed down at the time of your plea hearing I had not read it and following the plea hearing I had my Associate advise both counsel of the decision to enable some further discussion prior to sentence. That has occurred today and the transcript prior to me handing down the sentence will be part of this sentence.
63 I do, however, accept that based on the report of Ms Matthews and the concerns raised therein, Verdins principles 5 and 6 have applicability in your case and I have taken that into account when sentencing.
64 Mr Hoare’s primary submission on sentence was that a wholly suspended term of imprisonment would be within the range, taking into account not only the circumstances of your offending, but also all matters personal to you, in particular the conclusions of Ms Mathews to which I have previously referred. Further, amongst other matters raised in mitigation, he relied upon your lack of prior convictions at age 45.
65 He referred me to the sentencing snapshots. However, as I discussed with Mr Hoare, whilst sentencing snapshots are of course a relevant consideration, they are limited as they do not contain information regarding the facts and circumstances surrounding the offending in those cases and details of matters personal to offenders in those cases. The same difficulty applies when comparing cases, case to case.
66 Mr Hoare also relied, amongst other matters, on your plea of guilty, admissions to your offending your addiction to cannabis in the context of exposure to war and impoverishment, and your now cessation of cannabis use. He also relied upon, your participation in counselling since offending. You also now had stable accommodation and employment.
67 Mr Hoare, in support of his submission you had rehabilitated yourself since the commission of these offences, tendered two letters from Vanessa Schultz. The first was dated 25 July 2012. In counselling she found you to be forthright and honest. Ms Schultz also referred to your background and history in Cambodia, and that you continued to suffer night tremors and major anxiety. You felt you did not fit in and isolated yourself from family and society. You self medicated (i.e. used cannabis) to help with sleep and anxiety.
68 There was a further letter from Ms Schultz dated 10 December 2013. At that time she had been your counsellor for about two and a half years. You were, she said, willing to make change and engaged with her in an honest and open manner. Over time the pain you experienced relevant to your background had improved and you had returned to your local Buddhist Temple in Springvale. She confirmed your recent employment with Somerville Egg Farm, which had been positive for you. You were now leading a healthier life and lifestyle choices and making changes.
69 Mr Hoare submitted since this offending there was less need to protect the community from you as you no longer suffered with the mental health issues that existed when you offended. Such he submitted, was supported by his observations of you over the time he has represented you as your counsel.
70 Further, Mr Hoare relied upon your current employment at Somerville Chicken Farm, where you were earning about $150 (nett) each day you worked. You had not advised your employer of this Court hearing or why you were at court, understandably concerned that it might lead to you having difficulty keeping that employment and in obtaining a reference from your employer. I have not lost sight of the value of employment to you and ultimately the community when considering all matters relevant to sentence.
71 I also received a reference from your step-daughter, Pharoeuth Khem, dated 6 December 2013, who said she sees you occasionally when you visit Nathan. She described you as hardworking, reserved and placid.
72 Despite the separation from her mother, you had made an effort to be part of Nathan’s life and Nathan spoke fondly of you. You led a simple life, she said, valuing friendship with family, specifically Nathan.
73 Mr Hoare also referred to your background and history as stated within his written submissions (Exhibit 2) and in particular, reference to you seeing Nathan on a regular basis.
74 Regarding your cannabis use, you confirmed you used cannabis from the age of 11 and had been addicted to it for your entire life.
75 At the time of this offending, specifically you were selling the proceeds of your crop up to two to three ounces per week, which Mr Hoare conceded placed you above street level sales. In this regard, I read and discussed authorities provided by Mr Hoare, specifically R v Lacey[4], R v Koumis & Ors[5], and DPP v Lednar[6].
[4][2007] VSCA 196
[5][2008] VSCA 84
[6][2010] VSCA 46
76 You were keen to be employed he submitted, evidenced by your preparedness to travel to the country to try and find work fruit picking, at your own cost.
77 Mr Hoare conceded that general deterrence was an important sentencing consideration for this offending, as was the need for just punishment. I discussed with Mr Hoare a number of principles stated in Nguyen v R[7], in which Maxwell P of the Court of Appeal set out a number of relevant sentencing principles, which Mr Hoare conceded were still applicable at the time of sentencing you. He, however, submitted that whilst there were established principles applicable when sentencing, he urged they not outweigh the rehabilitation you had made to date.
[7][2010] VSCA 127
78 Mr Hoare expressed concern that even a short period of incarceration may have a significant deleterious effect. I discussed the appropriate length of a non-parole period with Mr Hoare and I am, of course, mindful that not only must imprisonment be the last resort of the court, if a term of imprisonment is he only appropriate disposition for your offending then the length of the non-parole, whatever its length is, may well have a deleterious effect. In the end, I must assess what is the appropriate disposition in all the circumstances.
79 Mr Hoare, whilst acknowledging the seriousness of this offending, observed that regarding suspended sentences, Parliament had not sought fit to categorise the offence of cultivating not less than a commercial quantity of cannabis as a “serious offence”.
80 Mr Hoare also referred to the principle of mercy as stated in Osenkowski[8], the citation kindly being provided by Mr Hoare following the plea. Such had been discussed during the plea plea. It is clear as stated by King CJ that “There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case”. There is no doubt that the principle of mercy can be a sentencing consideration in appropriate cases. In your case, whilst not specifically applying to the principle of mercy, I have imposed what I regard as an arguably merciful sentence for your offending.
[8](1982) 30 SASR 212
81 Turning to your rehabilitation prospects, given in particular your lack of prior criminal history, your good work history, and your participation in counselling to date, I consider your rehabilitation prospects are good, and when sentencing you I must seek to maximise those chances of rehabilitation.
82 I have considered the submission by Mr Hoare to wholly suspend your sentence of imprisonment. However, I am of the opinion it is not appropriate that a wholly suspended sentence be imposed in your case.
83 Mr Triandos submitted the prosecution position was that only an immediate term of imprisonment was appropriate for your offending. That range that was given to me, he said was made after getting those instructions and being aware of the mitigatory matters that were put before me during the course of your plea hearing. Further, the prosecution, in making this submission accepted that you had made significant efforts to rehabilitate yourself since the commission of these offences.
84 However, he urged, regarding the seriousness of this offending, that it was mid-range offending, conceded by Mr Hoare, and not at the lower end. You were not simply a crop sitter, this was your set-up, you looked after it, tended it in a house over which you had control (ie: unlikely to be evicted or disturbed).
85 Further, Mr Triandos submitted you were selling in ounce lots in local hotels, which put you above street level dealing.
86 A wholly suspended term of imprisonment for your offending, he submitted, was outside the range of appropriate dispositions. I have, independently, reached the same conclusion.
87 However, as well as matters personal to you, which include your prospects of rehabilitation, there are relevant sentencing considerations which includes the need for general deterrence for this offending. This is of considerable importance and has been repeatedly stated by Courts in this State.
88 In my opinion, there is also an element of specific deterrence required when sentencing you, given your offending occurred over a period of time, that is, approximately four months. I note, however, you do not have any prior court appearances and whilst specific deterrence has some relevance, it need not loom large in the sentence process.
89 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am comforted in this regard should you continue with counselling when released from custody, if you obtain employment, and if you continue to take anti-depressant medication.
90 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
91 On Charge 1, you are convicted and sentenced to 15 months’ imprisonment.
92 On Charge 2, you are convicted and sentenced to 6 months’ imprisonment.
93 I direct that 3 months of Charge 2 be served cumulatively upon Charge 1, which results in a total effective sentence of 18 months’ imprisonment and I direct that you serve a period of 6 months before you are eligible for parole.
94 In so sentencing you I have, in my opinion, significantly reduced the head sentence and the non-parole period I would otherwise consider appropriate to reflect your offending. I have, in my opinion, taken a merciful view of the matters raised in mitigation of sentence, in particular being mindful of principles 5 and 6 in Verdins.
95 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict, in other words if you had pleaded not guilty and been found guilty, I would have sentenced you to a term of imprisonment of 5 years and set a non-parole period of 3 years. As you can see, I have given you quite a discount for the matters in mitigation.
96 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 8 days in custody, up to and including yesterday (18 December 2013) by way of pre-sentence detention, and direct that this be entered into the records of the court.
97 Mr Triandos, these matters were not discussed with counsel at the plea hearing. Ms Jackson, my associate, subsequently emailed the parties for their attitude to the following orders and today Mr Newton, on behalf of Mr Uoy, said that the four orders were not opposed, so this is what they were.
98 Mr Triandos, on behalf of the prosecution made application for a disposal order. I make that in the terms sought as not opposed by you, Mr Uoy.
99 Mr Triandos also made application for a forfeiture order. Once again, that was not opposed and I make the order in the terms sought.
100 Mr Triandos also made application for compensation in the sum of $6,178.97 to AGL in relation to Charge 2. Again, that was not opposed by counsel on your behalf and I make the order in the terms sought.
101 Mr Triandos further made application for a forensic sample pursuant to s464ZF Crimes Act 1958. Again, that was not opposed by counsel on your behalf and I make the order in the terms sought. It will be for a saliva sample and not a blood sample but I have to tell you, the authorities may use reasonable force in order to obtain that sample and I make that order based on the seriousness of your offending.
102 Any other orders sought?
103 MR TRIANDOS No Your Honour.
104 HER HONOUR: Now what about the PSD? Was that right?
105 MR TRIANDOS: Eight days is correct Your Honour.
106 HER HONOUR: All right. Do the eight days come off the six months? All right. Can I have a look at those orders? So it's a saliva sample. All right so is there anything else in this matter?
107 MR NEWTON: No Your Honour.
108 MR TRIANDOS: No Your Honour.
109 HER HONOUR: No? All right well thank you both very much.
110 MR NEWTON: As Your Honour pleases.
111 HER HONOUR: All right can you remove Mr Uoy please. Thanks.
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