Director of Public Prosecutions v Yako

[2014] VCC 800

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00199

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADISON YAKO

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2014
DATE OF SENTENCE:	30 May 2014
CASE MAY BE CITED AS:	DPP v Yako
MEDIUM NEUTRAL CITATION:	[2014] VCC 800

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. McWilliams	Director of Public Prosecutions
For the Accused	Mr P. Morrissey S.C.	Patrick W. Dwyer

HIS HONOUR: 

1Adison Yako, you have pleaded to one charge of cultivating a commercial quantity of cannabis, contrary to s.72A of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is 25 years' imprisonment. You have also pleaded guilty to one charge of theft, contrary to s.74(1) of the Crimes Act 1958. The maximum penalty for that offence is ten years' imprisonment.

2You pleaded guilty following a short committal hearing conducted to examine the quantity and value of the cannabis, the subject of the charge.  I have treated your plea as an early plea of guilty and I have taken it into account in your favour in mitigation of sentence.  You have admitted a number of prior convictions and findings of guilt from five prior court appearances.  On 9 June 2006 you were placed on a community based order for 18 months by Her Honour Judge Sexton in this court, in relation to one charge of possession of a drug of dependence, namely cannabis, and one charge of trafficking in a drug of dependence, namely MDMA (ecstasy).  Your offending in that instance occurred in 2004.  You breached that community based order by further offending. 

3Whilst you last appeared in court in 2007 it is clear that your criminal history is relevant for sentencing purposes in this instance. 

4A prosecution opening was read to the court and tended in evidence and your offending may be summarised as follows:

5On 20 June 2013 police executed a search warrant at premises leased by you at 6 Lamond Circuit, Craigieburn.  You were present and were then arrested.  In the premises was a very well equipped hydronic system for growing cannabis.  Eighteen large cannabis plants were located, weighing a total of 51.55 kilograms.  9.6 kilograms of that was usable leaf and head, and a further 1.3 kilograms of cannabis was located in separate bags. 

6Following your arrest you were interviewed by investigating police and made no comment to the questions put to you.  I am satisfied that you cultivated the cannabis for commercial gain, although it is not possible to accurately determine the extent of that.  Your counsel conceded that you were not a mere "sitter" for the crop but did not elaborate any further in relation to your role beyond submitting that you were motivated to offend due to debts that you had accumulated from personal drug use and gambling. 

7You were born on 18 June 1985 in Melbourne and you are now aged 28.  You will soon turn 29.  Your family is of Assyrian Christian heritage and are from Iraq.  You were educated at Gladstone Park Secondary College to Year 11, and after commencing, but not completing, a pre-apprenticeship in carpentry, you worked in the family cleaning business.  You are currently employed installing solar panels.  You are married and I accept that you have the ongoing support of your wife, who you have known since you were 16.  She is Turkish and of the Muslim faith, and this has led to a degree of tension within your family.

8I have received in evidence a report of Mr Jeffrey Cummins, a consulting and forensic psychologist, detailing your developmental and psychological history.  I accept that you have suffered from polysubstance abuse disorder since the age of approximately 15, and you have also developed an anxiety disorder since being charged with these offences. and that these conditions will increase the hardship of imprisonment upon you. 

9I have also received in evidence a body of character evidence from persons who know you well and all speak highly of you.  I accept that you are now remorseful for your offending, and further, that your prospects of rehabilitation may be described as reasonable. 

10Illegal drugs of dependence incalculable damage to our society and cannabis is no exception.  Persons who cultivate this substance for profit must expect the imposition of significant punishment upon conviction.  The sentence I impose must be calculated to deter you and others from offending in this way and you must also be punished for what you have done.  I must also have regard to the fact that you do have prior convictions for trafficking and possession of a drug of dependence. 

11Your counsel submitted that a suspended term of imprisonment would be an appropriate proportionate sentence to be passed in this case.  I am not satisfied that such a sentence will achieve the purposes for which this sentence is to be passed.  Nor am I satisfied that in the circumstances of this case that such a sentence would be consistent with current sentencing practices for this offence.

12In the result, the sentence of the court is as follows.  In relation to the charge of cultivating a narcotic plant, you are convicted and sentenced to be imprisoned for 18 months. 

13In relation to the charge of theft, you are convicted and sentenced to be imprisoned for six months. 

14I order that three months of the sentence in relation to the charge of theft be served cumulatively on the sentence in relation to the charge of cultivating a narcotic plant. 

15This makes for a total effective term of imprisonment of 21 months. 

16I order that you serve 12 months imprisonment before becoming eligible for release upon parole. 

17But for your plea of guilty, I would have sentenced you to a term of imprisonment of two years and six months and imposed a non-parole of one year and nine months.  I have made the disposal orders sought on behalf of the prosecution. 

18MR MCWILLIAMS:  There's a s.18 declaration for one day in custody, Your Honour.

19MR DWYER:  Yes. 

20HIS HONOUR:  I see, of course.  I declare that you have served one day by way of pre-sentence detention, not including today. 

21MR MCWILLIAMS:  Otherwise no other matters.

22HIS HONOUR:  Thank you. 

23MR DWYER:  If the court pleases. 

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