DPP v Lee

[2020] VCC 1055

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00487

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY LEE

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2020
DATE OF SENTENCE:	17 July 2020
CASE MAY BE CITED AS:	DPP v Lee
MEDIUM NEUTRAL CITATION:	[2020] VCC 1055

REASONS FOR SENTENCE
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Subject: cultivate large commercial quantity of cannabis
Catchwords: guilty plea – 1047 plants (402.07 kg) growing at factory premises – “contract gardener” – supporting 3 teenage children – voluntary confessional of participation – Doran discount – remorse – very good rehabilitation prospects
Legislation Cited:
Cases Cited: Ngoc Nguyen v The Queen [2017] VSCA 286; The Queen v Shane Doran [2005] VSCA 271; Nours Younan v The Queen [2017] VSCA 12
Sentence: 6 years imprisonment, minimum non-parole period of 3 years and 6 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Martin
For the Accused	Ms E. Turnbull

HIS HONOUR: 

1Bradley Lee, on 14 July 2020, you pleaded guilty to a charge of cultivating a large commercial quantity of a narcotic plant, cannabis between
10 August 2018, and 10 October 2018. 

2The circumstances of your offending are set out in the summary of prosecution opening for plea. 

3On 10 October 2018, around 3 pm, police executed a search warrant at a factory at Truganina.  You were present with another man and woman.  When the three of you ran off, police gave chase and apprehended you.  You were wearing latex gloves which were dirty with soil.

4Part of the factory interior had been petitioned into nine rooms where 1,047 cannabis plants of varying degrees of maturity and weighing 402.07 kilograms were being grown under lights.  An electricity bypass was installed outside.  The plants were of varying maturity ranging from two to 14 weeks.  Leaf and flowering heads constituted approximately 127.8 kilograms of the weight of 140 plants found in two rooms.  Their air-dried weight was approximately 32 kilograms.

5The remaining 970 plants had potential to yield between 198 and 216 kilograms of flowering heads by air-dried weight. 

6You were arrested and questioned.  You told police you worked at the factory, looking after the plants, for a couple of months.  You said a lady took you to the factory, where you saw the plants, and offered you $2,000 a week to help look after them.  You said you agreed because you needed the money.  You also said, having been taken into her confidence and shown the illegal crop, you were scared to say no.

7You said you worked four to five days a week, six to seven hours a day.  You said you watered and pruned the plants, and weeded out the dead ones, and harvested them for others to collect.  You were paid usually $2,000 depending on how much of the crop your boss sold. 

8You were charged and remanded in custody where you have remained ever since. 

9A committal hearing, which was conducted on limited basis, took place on
12 March 2019.  On 18 March 2020 you offered to plead guilty to the count on the indictment before this court. 

10You have admitted a criminal record of five appearances at the Sunshine Magistrates' Court.  On 14 October 1997, you were convicted and fined for theft of a motor vehicle and driving matters.  On 14 September 1999, you were convicted of trafficking and using heroin and possessing a registered handgun and released on a community correction order for 12 months.

11On 2 March 2000, for a contravention of your community correction order, the order was extended for 12 months.  On 19 October 2012, you were convicted and fined for shop theft and failing to answer bail.  On 23 July 2015, you were convicted and fined for theft, two counts of shop theft and four counts of failing to answer bail. 

12I turn now to your personal circumstances.  You were born on 16 February 1980 and are now aged 40 years. 

13Your counsel, Ms Dwyer, told me when you were two years old, your mother fled, with your older brother and you, to refugee camps in the Philippines.  You lived in the camps for five years.  There your mother met your stepfather and, with him, she had two daughters.  In 1987, with your family, you arrived in Sydney and after a year moved to Melbourne. 

14You struggled at school here and left at the end of year nine.  Since leaving school you have worked on farms with your step-father and brother picking fruit and vegetables.  When you were 16 you started using drugs.  You stopped using them when you met your former wife.  With her, you have three children, Jayden, who is age 17, Mike, 15 and Tiana, 14.  You lived a law-abiding life for more than 10 years.  When your wife left you in 2012 you were struggling to look after your three children on your own and you committed shop stealing offences which led to your convictions in 2012 and 2015.

15Ms Dwyer told me the latter convictions arose out of offending also in 2012.  You had not reoffended until you were offered work looking after the cannabis plants.  At that time you were working on farms seven days a week, earning around $1,000 a week.  You agreed to the illegal work, relying on the promise of substantially higher wages, as an opportunity to better provide for your family.

16Since your arrest, your children have lived with your mother.  They attend a local secondary college.  They were visiting you regularly in gaol until the introduction of the Coronavirus-related restrictions.  You are allowed a video call with them once a week.  You worry about them, and your mother, while you are unable to support and care for them.  In prison you have worked on the maintenance team for the last 15 months and you are currently completely a two-month mechanics course.  You are also studying English to improve your language skills. 

17Ms Dwyer characterised your role as a contract gardener.  She submitted yours was low-end offending. 

18She also submitted you are entitled to a significant discount in your sentence for your voluntary confession of your participation in the cultivation, which was not otherwise known to police. 

19Additionally, in mitigation of penalty, she relied on, firstly, your remorse, evidenced by your admissions and your guilty plea.  Secondly, your guilty plea for its utilitarian value and acceptance of responsibility.  Thirdly, your otherwise law-abiding life since 2000, apart from the shop stealing episodes in 2012.  Fourthly, the additional hardship of custody because it is your first time in prison, you are isolated from your children and there is additional Coronavirus-related anxiety and concern.  And, Fifthly, your excellent prospects of rehabilitation.

20Ms Dwyer provided me with a helpful table of case summaries which, in her submission, were broadly comparable with yours.

21Mr Menon, who appeared for the prosecution, in conspicuously fair submissions, contended, while, because of the inherent seriousness of your crime, just punishment, general deterrence and denunciation are important sentencing considerations, in your case, because your rehabilitation prospects are good, specific deterrence and community protection need not attract weight in the sentencing exercise.

22He submitted the weight of the crop, 1.6 times a large commercial quantity, is a highly relevant factor in assessing the gravity of your offending.  He accepted your role, for which you were paid a wage, was to help look after the plants and, on at least one occasion, to harvest them.  He contended it was low, midrange offending.  He accepted your motivation for offending was not greed but a desire to provide for your three children. He told me your involvement was not known to police until they attended the premises on 10 October 2018 to execute the search warrant.  When they interviewed you, you provided them with the evidence of your function and participation for two months upon which the charge was founded.

23He accepted you are entitled to the full Doran discount for the frank admissions you made.  He also accepted your guilty plea, made at a relatively early stage, has significant utilitarian value. 

24He also submitted limited weight should properly be afforded to your prior convictions because they are relatively old. 

25He also helpfully referred me to a number of appellate sentences for large commercial quantity cannabis cultivation.

26The maximum penalty for the offence you committed is life imprisonment.  It demonstrates Parliament's view of the gravity of the offence.  It is objectively very serious.  Accordingly, general deterrence, denunciation and just punishment are important sentencing considerations.  You worked for a substantial criminal enterprise.  The cultivation set up was sophisticated and extensive.  The crop being grown was sizable.  I accept your role was limited.  You were paid a wage to help to look after the growing plants and to harvest them.  You were not involved in setting up the growing rooms.  You had no financial interest in the crop other than the wage you were promised.

27Your motive was to provide for your children with a better wage than your legitimate farm work wages.  In my view, notwithstanding the sophistication of the cultivation operation and the substantial weight of the plants being grown, applying the principles in Ngoc Nguyen v The Queen [2017] VSCA 286, I find your individual culpability falls towards the upper end of the lowest category. I accept you are remorseful, considering your open admissions and your early guilty plea, which also has high utilitarian value.

28I also consider your admissions have very high utilitarian value because, without them, there was no evidence of your participation in the crime other than your presence and flight when police attended.  In The Queen v Shane Doran [2005] VSCA 271, Justice Buchanan explained the effect of an offender voluntarily providing the prosecution with evidence which assists to convict him. At paragraph 14 His Honour said:

'In my view, the consequences are… they need to reduce the need for a sentence to personally deter the appellant.  The increased prospects of successful rehabilitation and they demonstrate genuine remorse for his actions.  I would add that I think it is important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions'.

29In an appropriate case, depending on the admissions, a discount of 30 per cent to 50 per cent may be appropriate.  See Nours Younan v The Queen [2017] VSCA 12, at paragraphs 38 and 39.

30Your prior convictions were largely old and stale.  You had been the primary carer for your children for six years prior to your arrest and, when you offended, you were working to provide for them.  Generally, I consider your prospects for rehabilitation are very good.  And, in your case, specific deterrence and protection of the community weigh less in the sentencing synthesis.

31I accept the separation from your children and the Coronavirus pandemic cause you additional stress and concern in prison. 

32I have considered the cases referred to by both counsel.  The head sentences range between six and eight years, and, making appropriate adjustment for differences in the circumstances of offending and the offender, I have used them as a guide to the sentence I should impose. 

33Overall, considering your guilty plea, your genuine remorse, the Doran discount, your strong and positive character for a number of years prior to this offending and the fact that your prior convictions were old or stale, there is a proper basis for some measure of leniency to be extended to you, particularly having regard to the parsimony principle.

34Accordingly I will moderate the sentence of imprisonment I would otherwise impose.  I shall also moderate the non-parole period to mitigate your punishment and to give you the opportunity to continue your rehabilitation under supervision in the community.  

35By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation. 

36Taking into account the circumstances of your offending, your personal circumstances and antecedence and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of cultivating a large commercial quantity of a narcotic plant, cannabis, you are convicted and sentenced to six years' imprisonment.  I direct you serve three years and six months of your sentence before being eligible for parole. 

37I declare you have already served 646 days of your sentence by way of pre-sentence detention.

38But for your guilty plea, I would have sentenced you to nine years' imprisonment and fixed a non-parole period of six years.

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