Director of Public Prosecutions v Vo
[2023] VCC 73
•30 January 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-21-02648
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERIC VO |
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JUDGE: | HER HONOUR JUDGE SYME |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 January 2023 |
DATE OF SENTENCE: | 30 January 2023 |
CASE MAY BE CITED AS: | DPP v Vo |
MEDIUM NEUTRAL CITATION: | [2023] VCC 73 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Cultivation of Narcotic Plants (Cannabis – Commercial Quantity) – Theft – Plea of guilty at earliest available opportunity – No criminal history – Less organised and sophisticated than usual cultivation operations – Far from large commercial quantity – Targeted after breakdown of marriage – Accumulation of gambling debt to unidentified ‘loan shark’ – Threats to family - No offer of assistance to police – Family hardship – Verdins - Whether substantial and compelling circumstances that are exceptional and rare justify not imposing a term of imprisonment – Court compelled to do the applicant an injustice and the community a disservice
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: R v Verdins & Ors [2007] VSCA 102 & Buckley v The Queen [2022] VSCA 138.
Sentence: 15 months imprisonment with a non-parole period of 7 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Zubreckyj | Ms. A. Hutchings |
For the Accused | Mr P. Crowle | Mr. R. Revill |
HER HONOUR:
1Mr Eric Vo, you have pleaded guilty to the following charges:
2That on 4 August 2021, you cultivated a narcotic plant, namely cannabis, in a quantity not less than the prescribed commercial quantity and, on the same day, at the same place, you stole a quantity of electricity belonging to Simply Energy.
3The maximum penalty for the cultivation charge is 25 years imprisonment and the maximum penalty for the theft is 10 years imprisonment.
Circumstances of offending
4In relation to the facts, they are simple. After a brief period of investigation, police discovered unusual power activity indicating an electricity bypass at the property in Barry Road, Dallas, in which you were residing. A police search occurred, and police observed you to be alone in the house, although there was evidence that others lived there.
5During the search, police located three bedrooms. One contained six cannabis plants, another contained nine plants and a third room contained 21 plants. Also located was a hydroponic set up in each room. In the process, a further amount of cannabis and drying plants were seized. Other accoutrements of cultivation included a ‘how to’ handbook and equipment related to the bypass of electricity from the main supply. A CCTV arrangement was discovered and $2,120.00 was located in your wallet.
6On being questioned, you advised police that you estimated a future yield for each plant to be $500.00. In total, 36 cannabis plants were seized. They were of various sizes from small to mature. They weighed a total of 36.125 kilograms. This weight is conceded to be the non-dried or wet weight by the prosecution. The dry weight, I assume, would be less. In relation to the illegal electrical bypass, it was calculated that a little more than 115,000 kilowatt hours had been consumed.
7A plea of guilty was entered on 13 December 2021 and that was agreed to be at the first available opportunity. You have no criminal history. You have spent no time in custody.
Objective seriousness
8In assessing the objective gravity of the offending, there are some matters that courts consider that may make the offending more serious. Clearly, this was an organised operation taking up three bedrooms of your home and the diversion of an electricity supply. It is no more and, in my experience, probably less organised and less sophisticated than any usual cultivation operations in an indoor setting. It is noted that the family home was apparently used and there was evidence of you residing there.
9The prosecution opening does not disclose any particularly sophisticated level of operation notwithstanding the submissions otherwise. The charge of commercial cultivation assumes a degree of organisation. In my experience, a commercial operation of hydroponically grown cannabis requires, at least, the operation and provision of ventilation, lighting and water. That is all that is contained in the prosecution opening.
10These items are frequently provided in commercial operations by electrical bypass. The only observation of note is the CCTV outside the house, but there is no information as to what this was connected to, if anything.
11In considering matters that make the offending less serious, I note that for the offence charged, the weight and number of plants and the degree of organisation, as I said, is relatively low.
12The quantity of drugs found, 36 kilos, is at the lower level for the commercial quantity cultivation which has a range from 25 kilograms to 250 kilograms.
Thirty-six kilograms is a great distance from the maximum level of
250 kilograms, contrary to the prosecutor's assessment of objective seriousness. I note that more than half of the plants were still in their growing stage and, therefore, not dried at the time of weighing.13I have no information about the dry weight of these plants and what the total would have been. As a result of discussions with counsel today, I was provided with a series of photographs of the plants after they were removed. This confirms that there were about 16 plants which could be described as mature and 20 which could be described as small. No more than seedling size, really. The mature plants do appear to be mature, but I still have no indication of their size. I have no indication, as is frequently taken into account when assessing objective seriousness, whether they were male plants or plants with heads, I simply do not know.
14As I said to counsel, if there is any feature of objective seriousness that the court should consider, that feature has to be proven to the criminal standard and there is very little information in this case. There is no evidence that you were involved in any actual supply other than your stated intention to supply for the procurer of the cultivation organisation. That is, the man who provided you with funds to set up the enterprise. Your job was to cultivate. Your calculation of an anticipated $500 per plant suggests significant ignorance of the potential value of a crop of this potential size.
15For the offence charged, the offending is below mid-range objective seriousness. This finding accounts for the degree of organisation, the quantity of drugs, the size of those drugs and the number of plants which is less than the commercial quantity of plants (based on a wet-weight calculation). . This is an offence, as I said, of below, perhaps even well below mid-range objective seriousness. With respect to the theft of the electricity charge via a bypass, there are no aggravating or mitigating circumstances included in the prosecution opening. No value was placed on the loss. This is low to below mid-range objective seriousness.
Sentencing considerations
16Charge 1 falls under s 5A of the Sentencing Act. It is a category 2 offence. Therefore, the court must impose a sentence of imprisonment without a Community Corrections Order (‘CCO’) unless certain circumstances are satisfied. These, as may be relevant to your circumstances, include:
(1)an offer of assistance to police; or
(2)proof, on balance, that at the time of commission of the offence, you had impaired mental functioning which materially reduced your moral culpability and that was causally related to the commission of the offence; or
(3)your impaired mental functioning resulting in you being subject to a substantially and materially greater burden while imprisoned.
17To deal with these concepts in order, notwithstanding a lack of submissions from counsel, a psychological report was prepared and tendered by consent. Even though it was prepared by your treating psychologist, the contents are not apparently in dispute. It is a useful document containing details of your personal background and the background to the offending.
Personal circumstances
18In describing how this offence came to be committed, you told Dr Davidson, and there are no other reasons to find otherwise, that you believed that you had been targeted as a vulnerable person by two women who introduced you to gambling and poly drug use. In turn, during gambling sessions, you lost thousands of dollars. You were subsequently introduced to somebody who you refer to as the ‘loan shark’.
19In conversation with your treating psychologist, you stated that you believed you had been set up from the beginning as you were the only one losing money in these gambling sessions. After you had accumulated a debt of some $50,000.00, you were intimidated by the loan shark's associates.
20In your words, in that context, you agreed to start growing marijuana plants in order to repay the debt. You said that you agreed to grow on behalf of this man. He gave you money to cover your expenses in setting up and growing the crop.
21After you had been arrested, you informed this person of your arrest, and you were threatened that your parents would be harmed if you provided police with any information that led to the arrest of the loan shark and his associates. The loan shark may not only be the principal in a drug supply operation and certainly, apparently, the principal in this cultivation operation, but according to what you told Dr Davidson, he has also threatened others in an attempt to avoid apprehension himself.
22These are serious criminal offences. It is unfortunate, Mr Vo, that you do not seek to assist authorities. Such assistance would be of benefit to the authorities and while one can understand your reticence, I have no doubt that protection could be provided to your family and yourself. No information is available to the court as to the status of this so-called loan shark to whom you believe you owe.
23As I raised in discussion with counsel, it is this court's experience that loans by criminals to vulnerable people are rarely expunged just because that vulnerable person has been apprehended by police or in custody. Notwithstanding that sentencing is now occurring, I would urge you, Mr Vo, to consider police assistance and protection from this person in any event, no matter what the outcome of today's proceeding is.
24Other concerns relate to your mental health presentation. You report that on two occasions, you have attempted suicide after being apprehended on these matters. This is a worrying level of mental health dysfunction which resulted in you commencing treatment with Dr Davidson. Dr Davidson assessed your anxiety and stress levels at severe to very severe during clinical testing. This was an observation of concern to him.
25On the Beck Depression Inventory score, he placed you at the severe range for depression. Dr Davidson is of the view that it is possible that these symptoms may have developed at an earlier time. That is, at the time of incurring the debt that I have referred to above. Unfortunately, you were not referred to treatment prior to this report being prepared until the new year. This was after your plea of guilty was entered and well over a year after you were arrested.
26Dr Davidson cannot do any more than form an opinion that, based on your self-report and on your current clinical testing, the possibility or likely presentation was in existence at the time of your offending. There is no information otherwise. The court can therefore be satisfied, on balance, that your symptoms were similar as at the date of offending.
27Further, it is Dr Davidson's view and observation that you currently meet the criteria for an adjustment disorder with mixed anxiety and depressed mood. As noted above, your treating psychologist's conclusions were not challenged. At the time of writing the report, you had undertaken five sessions. You were referred to this psychologist due to your suicidal ideation.
28You have been assisted, I am told, by cognitive behavioural therapy to facilitate your coping with ongoing emotional distress. Doctor Davidson reports that such strategies are currently assisting you. Doctor Davidson is also of the opinion that you require ongoing psychotherapy to help you manage your mental health condition. He observed that as treatment has only just begun, you will require further sessions to make any significant adjustment gains.
29My experience with the courts and the justice system do not give me any confidence that such assistance will be available in custody. This is not at all a criticism of Corrective Services, simply, an observation that the requirements for mental health assistance of those in custody are greater than the ability of forensic services to provide, even for an inmate with previous suicidal ideation.
30On balance, there is information upon which a finding could be made that impaired mental functioning would result in you being subjected to a substantially and materially greater burden than would be the ordinary burden associated with imprisonment (Verdins principle 5).
31Counsel do not suggest that there are other features of this sentencing exercise which amount to substantial and compelling circumstances as referred to s5(2)(l) which would allow the court to consider the cumulative impact of the circumstances that I have mentioned.
32Those matters will, however, be taken into account when assessing the sentence which must otherwise be imposed. Your background is not in dispute. You and your ex-wife have two children who are aged five and eight years old. You were married for about 10 years and separated in 2019. Your separation preceded your involvement with the parties referred to above. You were divorced last year.
33You report that your children have some difficulties and that you have a good relationship with them. Your former wife has provided a letter in which she confirms her support for you. It is her view that this offending is abnormal for you.
34In relation to the care of your young children, she confirms that your son has special needs due to an autism diagnosis and that your assistance in caring for him has been important. On top of this, she advises that her medical condition has resulted in her being on a surgery waiting list and that she expects to be hospitalised in the near future. I have now been advised that in the event of her hospitalisation, the children will be able to be looked after by her parents who reside close by.
35While it is not submitted that your mental health considerations taken together give the court sufficient reason to make a s 5(2H) finding, the matters relevant to your mental health presentation at the time of the commission of the offence are relevant to the length and circumstances of an imprisonment order.
36I do not seek to make an order that is outside the provisions of the Sentencing Act, but I would simply repeat observations in Buckley v The Queen[1] [2022]. In that case, their Honours Justice Maxwell and Forest, in reference to the relevant mandatory sentencing provisions contained in the Sentencing Act concluded that:
In refusing [the] application, we have been compelled to do the applicant an injustice and the community, a disservice.
[1] [2022] VSCA 138.
37I respectfully concur with their observations. In considering the requirements of the Sentencing Act, the Verdins principles still apply. In order to consider this, consideration must be given to whether the observations of Dr Davidson amount to a reduction in moral culpability. In Verdins’ case,[2] the Court of Appeal identified six ways that mental impairment may be relevant to sentencing. These well-known principles which may affect a sentence are exceptional and should not be invoked in routine cases.
[2] [2007] VSCA 102.
38A feature of the Verdins principles is that they permit a court to view an offender's moral culpability as being reduced where the offender's psychological functioning or personality structure has been impaired on acceptance of expert evidence.
39The first Verdins principle relates to moral culpability for a mentally impaired offender. An offender's moral culpability may be reduced if, among other things, at the time of committing the offence, their impairment reduced their ability to exercise appropriate judgment, make calm and rational choices, think clearly, or contributed causally to the commission of the offence.
40In the context of this case, it is available to the court to find that you were suffering from a mental impairment which still presents and that you had that impairment at the time of committing the offence. In addition, your family had been threatened with physical harm if you, on being apprehended, told the police about the ‘loan shark’ and his associates.
41It is open for the court to find that your mental impairment increased in your vulnerability to your association with these people and the threats referred to above. Therefore, in turn, the court can find that your mental health presentation, combined with the circumstances then presenting within you were, to some extent, causally related to the commission of the offence.
42It may well be that, in the context of this case, your desire for financial reward in order to pay your associate was a high incentive for you. However, your anxiety and depression presentation is, in my view, still a relevant consideration. The effect of an impairment on moral culpability is a matter of degree. I accept that a court should consider the gravity of the offending and with the assistance of expert evidence, the offender's conduct before, during and after the offending. This is in order to determine the extent of the impairment's contribution to the offending.
43The relevant question is whether the evidence establishes that the impairment contributed in a way that makes the offender less blameworthy as a result. This is a discretionary assessment with no fixed guidelines. I further accept that if the offence is serious, or if you, as the offender, were fully aware of the nature and gravity of what you were doing and that it was wrong, then your culpability may only be reduced to a minor extent.
44In the context of your case, it is clear that you took some steps, rudimentary as they were, to set up the cultivation project. I am told that the cultivation took part in the family home in which your wife allowed you to reside after your separation. I assume that you gave no thought to the fact that you were basing this illegal operation in a property owned by her and that that very action put her in danger of also being charged with a criminal offence herself. The ramifications of your behaviour were certainly potentially far reaching.
Further considerations
45The sentencing considerations already discussed are:
(1) The finding that the objective seriousness of the most serious offence, the cultivation offence, is well below mid-range;
(2) Your fear for the welfare of your family which inhibits a sensible degree of assistance to the authorities;
(3) your reduced moral culpability for the commission of the offence due to your likely mental health presentation at the time of the offending; and
(4) Your increased risk in a custodial sentence due to your mental health presentation.
46I now refer to other sentencing considerations which have not been discussed in detail. Firstly, your prospects of rehabilitation. Dr Davidson's report outlines what is referred to as a history of impulsive behaviour but no issues with addiction except to gambling in the context of your association with the associates that I have referred to. You report that you no longer gamble. You have your family and your current employer's support.
47Prior to the commission of these offences, you had a strong work history in various occupations, and you were a contributor to the community by your assistance to your son's school program. It is reported that after you were apprehended, you had a more disjointed work history, but you have now obtained a good job at Bord Products. I have received a very positive letter from your employer.
48I find your prospects of rehabilitation are, at present, good, provided you continue with psychological treatment, maintain your work, and maintain gambling abstinence. Unfortunately, due to the circumstances of sentencing that I am required to impose, some of these avenues of assistance will be delayed.
49I note again that you have the support of your family and extended family. I observe that you will be given as much assistance as possible to rehabilitate yourself completely and resolve whatever issues remain with the people who convinced you, somehow, to offend in this way and hopefully for you to return to the community as an employee and father and a contributing member to your children's school programs.
50I have suggested to your counsel that he have a long discussion with you concerning the assistance that might be given to you with respect to this
so called loan that you have, and I am sure that Mr Crowle will have that conversation with you.51You are entitled to a substantial discount for an early plea where early admissions may be evidence of remorse. So far as the other sentencing considerations contained in section 5 of the Act are concerned, I acknowledge that I am required to impose a punishment which is just in all circumstances.
52I have already made reference to the sentiments outlined in Buckley's case. I accept that for an offence such as this, general deterrence is of significant importance, as is specific deterrence for you, especially in your current circumstances with a loan still outstanding.
53A further sentencing consideration is to assist with rehabilitation, to denounce the conduct on behalf of the community and to protect the community from you and this type of behaviour. Again, as has often be noted, the best way of protecting the community is by ensuring your rehabilitation.
Sentence
54I am now in a position to impose the sentence. In relation to Counts 1 and 2, for the reasons that I have given, I propose to sentence you to an aggregate term of imprisonment of 15 months with a non-parole period of seven months, to commence today. As I understand it, there is no pre-sentence detention.
55MR CROWLE: Yes, Your Honour.
56HER HONOUR: Any other orders you are seeking? I presume that there are forfeiture orders and the like, is that right?
57MS ZUBRECKYJ: That's correct, Your Honour, a forfeiture is sought.
58HER HONOUR: Forfeiture for the destruction of the cannabis, no doubt.
59MS ZUBRECKYJ: Yes, Your Honour, the green vegetable matter and there will also be a disposal order sought as well.
60HER HONOUR: We've got those. Any objection?
61MR CROWLE: No, Your Honour, they're by consent. Thank you.
62HER HONOUR: I will make those orders by consent. Anything else?
63MR CROWLE: Not from me, Your Honour.
64HER HONOUR: Anything else?
65MS ZUBRECKYJ: No, Your Honour. Thank you.
66HER HONOUR: All right. Thank you, counsel, for your submissions. You might want to go and explain this to your client. I'm sure you would assist him.
67MR CROWLE: I will, Your Honour.
68HER HONOUR: Thank you. We will adjourn now.
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