DPP v Lim
[2018] VCC 513
•1 March 2018
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted Suitable for Publication
AT MELBOURNE CRIMINAL JURISDICTION
CR 16-00522
DIRECTOR OF PUBLIC PROSECUTIONS
v
MICHAEL LIM
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| JUDGE: | HIS HONOUR JUDGE WRAIGHT |
| WHERE HELD: | Melbourne |
| DATEOF HEARING: | 23 February 2018 |
| DATEOF SENTENCE: | 1 March 2018 |
| CASE MAY BE CITEDAS: | DPP v Lim |
| MEDIUMNEUTRAL CITATION: | [2018] VCC 513 |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: Pleaded guilty to two charges of Cultivation of Narcotic Plants - commercial quantity
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1991, s 72A
Cases Cited: Nguyen v R (2016) VSCA 198 Sentence:
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APPEARANCES: Counsel Solicitors
For the Director of Public Prosecutions
Mr Peter Triandos OPP
For the Accused Mr Benjamin Linder Furstenberg Law
VICTORIAN GOVERNMENT REPORTING SERVICE
7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone 9603 9134 183035
Pages 1 - 13
HIS HONOUR:
Introduction
1Michael Lim, you have pleaded guilty to two charges of Cultivation of Narcotic Plants - commercial quantity contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1991. The maximum penalty pursuant to s 72A is 25 years imprisonment.
2You have no prior criminal history.
Circumstances of the offence
3The prosecution tendered a detailed opening on the plea which may be summarised as follows:
4During November and December 2014 you, Michael Lim, made contact with agents at Love Commercial Real Estate in Reservoir enquiring about leasing commercial factories in the Thomastown area.
5On 6 December 2014, a lease was signed for a factory at 37 Lawson Crescent, Thomastown in the name of Van Ho Tran. You signed as guarantor on the lease. You then represented to real estate agent Alex Shum that you would need another 2 to 3 similar factories for your employees to lease. You said that you would be the guarantor for the lessees.
6You then became guarantor to the lessees of properties 1, 2 and 4 which form part of the rolled up charge being Charge 1 on the indictment. You entered a private lease in relation to a similar factory described as property 3 which also forms part of Charge 1. Charge 2 relates to one property (referred to as property 5 in the prosecution opening) where you were the guarantor to the lessee of that property.
7On Sunday, 28 June 2015 police were notified by a neighbour to property 2 of a suspected burglary at that property. Police attended and, after investigating
the suspected burglary, located a sophisticated hydroponic cannabis crop. A search warrant was executed the following day which revealed six rooms containing hydroponic equipment and growing cannabis. An electrical bypass was also located.
Police then began an investigation targeting you and your various connections to nearby properties which ultimately led to four other crops being located in similar circumstances where you were listed as guarantor to the lessee or the lessee of the property as outlined above.
Charge 1 is a rolled up charge. As noted, it relates to four properties; three where you were the guarantor for the lessees and arranged the leases, and one where you yourself entered into a private lease. As to properties 1, 2 and 4, you negotiated the leases for commercial properties with Love Commercial Real Estate. You provided all the required paperwork including photocopies of driver licences of the lessees. In each case Mr Shum from Love Commercial Real Estate never met any of the lessees.
Property 1 relates to a factory at 22/7-9 Dunstans Court, Thomastown. Once the lease was signed, you organised for an internal structure to be built within the factory to house the hydroponic crop structures made from steel. This was essentially a mezzanine floor built to house hydroponic equipment and the crop. Investigations revealed that you had communications with a welder in relation to the steel that was required to be constructed within the factory. Electricity was connected to the factory. The account was in the name of Vien Van Vu. Amongst the items that were seized as a result of the search on your home address, on 15 July 2015, were documents in the name of Vien Van Vu including an electricity account. Other documents were found relating to the name of the lessee given to the estate agent such as drivers licence, credit cards, and a Medibank card. These were false documents.
On 1 July 2015, police executed a warrant at the factory locating two rooms
with a functioning cannabis hydroponic setup. An electrical bypass was also located. As to the cannabis located, the Certificate of the botanist records 65 plants and a bag of cannabis with a combined weight of 11.66 kilograms.
The prosecution opening detailed other items that were found during the execution of a search warrant at your home address, including a number of documents connecting you to the construction set up at the factory.
Property 2 relates to a factory at 50 Commercial Drive, Thomastown. You negotiated the lease in the name of Van Phan and signed as guarantor. Once that lease had been signed, electricity was connected to the factory in the name of National Group Proprietary Limited with the contact phone number being your number and your mailing address.
On 29 June 2015, police executed a search warrant at that factory. What was an open plan factory had been converted into internal rooms that were constructed of steel and pine. In six of the rooms police located functioning cannabis crops with a sophisticated hydroponic setup. An illegal electrical bypass was located. The Certificate of the botanist recorded 259 plants of various sizes and a bag of cannabis totalling 63.88 kilograms. There was evidence that further plants had been harvested sometime before police had attended. Your fingerprint was located on some tape that was attached to one of the poles within the premises.
A number of documents were located at your home address as a result of the same search warrant in relation to property 1, linking you to the lease and the utilities accounts related to the factory. Also located at your home address was a motor vehicle that was seen by police at the factory on the day they attended.
Property 3 relates to a factory at 115 Slater Parade, Keilor East. This factory was leased by you privately in the name of your building company.
On 7 July 2015, police executed a warrant on that factory and located a
functioning hydroponic cannabis crop. Two illegal immigrants, Anh Tran and Truong Nguyen, were in attendance and were arrested on that day. They have since been deported. An illegal electrical bypass was also located at the factory. In this instance the Certificate of the botanist recorded 231 plants and a bag of cannabis having a total weight of 107.59 kilograms.
Again, a number of documents were located in your home linking you to the utilities connected to the factory. Further, your mobile telephone was located showing texts to and from the owner of the factory to whom you were paying cash for the rent.
Property 4 relates to a factory at 2-6 Charnfield Court, Thomastown. This factory was also leased through Love Commercial Real Estate. In this instance, the owner of the factory managed the rental and was paid cash by you.
On 7 July 2015, police executed a warrant at the factory. They discovered that the previously open plan factory had been converted into four separate rooms with functioning hydroponic cannabis crops. Located were 312 plants together with other cannabis material. The Certificate of the botanist records the combined weight of the cannabis at 55.72 kilograms. An electrical bypass was also located.
Similar to the other properties, documents were discovered in your home linking you to the utilities in the factory, the lease and payments to the owner of the factory.
Charge 2 relates to a single property at 6-8 Nathan Drive, Campbellfield. You arranged to lease this property through Love Commercial Real Estate, again signing as a guarantor of the lease. In this instance the lessee was named as Builder Group Proprietary Limited.
On 2 July 2015, police executed a search warrant at the factory and discovered eight rooms with a functioning cannabis hydroponic setup. Eight hundred and
nine cannabis plants were located. The Certificate of the botanist records 809 plants with a combined weight of 237.41 kilograms as well as a bag of cannabis weighing 238 grams. An electrical bypass was also discovered.
24Documents located at your home linking you to the factory included a cheque butt demonstrating payment to Love Commercial Real Estate in the name of Builder Group Proprietary Limited and lease documents in relation to the factory.
25In addition to the specific documents linking you to the various factories, a number of other documents were located at your home when the police executed the search warrant on 15 July 2015. For example, there were receipts from hydroponic stores indicating that you had purchased many pieces of equipment during the period 29 December 2014 to 19 June 2015. A summary of all those purchases is attached to the prosecution opening as Appendix A.
26The police investigation also discovered a number of telephone numbers connected to you linking you to the set up of electricity accounts and other false names that you had provided in relation to the leases.
27On 15 July 2015, you were arrested at your home and essentially provided a no comment record of interview. You answered a few questions however, indicating that customers had asked you to be the guarantor of the lessees and that you are a house builder and that the name of your business was called Building Group.
Procedural history
28This case has a long history since you were charged on 15 July 2015. Over the following years you have changed representation on a number of occasions resulting in delays in this case being finalised. You conducted a contested committal and a number of bail applications including an application for bail in the Supreme Court in 2016.
Ultimately, this matter was listed on 29 January this year for trial. On 2 February 2018, the matter resolved and you were arraigned on the plea indictment. As part of the resolution the prosecutor read into the transcript the basis upon which the case had settled. This was reproduced in the prosecution opening as follows:
Upon arraignment on 2 February 2018, the Accused entered a plea of guilty to each of the two charges on this Indictment on the following basis:
1.The parties agree that both charges represent serious examples of the offence of cultivating a commercial quantity of cannabis.
2.The parties agree that the objective gravity of the Accused’s culpability is evidenced by the following:
a.The offending captured by Charge 1 represents cannabis crops being located at four separate factories.
b.The total number of plants cultivated across these four factories was 867 plants (8.67 times the commercial quantity), weighing 238.85 kilograms
(9.55 times the commercial quantity).
c.Charge 1 is a rolled up charge, encapsulating the individual charge of cultivating in not less than a commercial quantity and hitherto laid in respect of these factories.
d.The offending captured by Charge 2 represents the cultivation of 809 cannabis plants (8.09 times the commercial quantity), weighing 237.66 kilograms (9.51 times the commercial quantity), which were located in one factory.
3.In relation to the objective gravity of the Accused’s culpability, the Prosecution submits that:
a.The Accused’s role was pivotal in the financial setup, management,
operation and maintenance of the factories.
b.These factories contained sophisticated hydroponic setups which ultimately yielded a combined total of 1676 plants (16.76 times the commercial quantity), weighing a combined total of 476.51 kilograms (19.06 times the commercial quantity).
c.Between 16 April 2015 and 7 July 2015, the Accused was aware that there was a significant or real chance, in the instance of each charge, the amount of cannabis cultivated would be at or about the quantity of cannabis located and seized.
The objective seriousness of the offending
30Mr Lindner, who appeared on your behalf, accepted that Charges 1 and 2 are serious examples of the offence of cultivating a commercial quantity of cannabis. However, he takes issue with the proposition that you played a ‘pivotal role in the management, operation and maintenance of the factories’. He further submits that your role cannot be ascribed to the planting, tending and maintenance of the plants or the installation of the hydroponic systems relating to the factories in Charge 1.
31It is true that the evidence does not disclose that you had a direct role in the day-to-day planting, tending or maintenance of the plants. However, the evidence strongly links you to the arrangements made for the setup of the factories themselves including the hydroponic systems. In that sense the position put on your behalf and the position put by the prosecution can comfortably sit together. The prosecution does not make an allegation in relation to planting and tending plants but says that you played a pivotal role in the ‘management, operation and maintenance of the factories’. I am satisfied on the evidence that that statement is true.
32The objective seriousness of your offending can be assessed in relation to the
role you did play in the set up, management and operation of the factories, together with the amount of cannabis that was ultimately found in combination. In total, 1676 plants were located. This is 16.76 times the commercial quantity in terms of plant numbers. The equivalent weight being 476.51 kilograms which is 19.06 times the commercial quantity in terms of weight.
33In my view this is a serious example of the offence of cultivating a commercial quantity of cannabis. As noted above this was sensibly conceded by your counsel. Whether or not there were others involved in the cultivation and management of the crops, or indeed if there were others operating at your level or above, your role can only be described as a principal in a significant role.
Personal circumstances
34You are now 56 years of age and you come before the court with no prior criminal history.
35You were born in Thailand. Your father was a house builder and your mother was also involved in that business. Both your parents have passed away. You had two brothers who have also passed away. You completed high school in Bangkok and following your schooling you worked for your father's housing construction business in Thailand. You commenced a business administration course at University and attended there for three or four years. You did not complete that course and returned to the family construction company.
36In July 1987, you arrived in Australia on a tourist visa and began to learn English. In 1988 you undertook a building inspection course at Footscray TAFE. You also married around that time. That relationship only lasted one year and you divorced. You began working full-time in construction and saved to buy a block of land to build on and to develop. In 1991 you bought a block of land in St Albans, built two houses and sold them. With that profit from that sale you commenced a house building business.
37In 1993, you started a building company called Melbourne Homes Proprietary Limited. You built houses and undertook renovations in suburbs west of Melbourne. Also in 1993 you married for a second time. You have two daughters aged 22 and 14 and you have a son aged 21 who suffers from cerebral palsy. Your son is in Melbourne however he currently lives in assisted accommodation. In 2003 you separated from your wife and in 2004 she returned to Thailand with your two daughters. You have visited your wife and daughters a couple of times.
38Between 2004 and 2008 you travelled back to Thailand and worked in the building and construction industry. In 2009 you returned to Australia and recommenced your residential house building business. You started two companies; the National Group Proprietary Limited and Building Group Proprietary Limited. From 2012 to 2015 you built a number of residential houses and townhouses. On 15 July 2015 you were arrested in relation to these charges and have been in custody since. You have had one visit from your ex- wife and two daughters but have had no further visits for the past two years.
39I was told that at the time of the plea your son was unwell and was being treated at the Northern Hospital. I take into account the fact that you are unable to support him as he struggles with his condition while you are in custody and that this will be an additional burden for you as you serve your gaol sentence.1
Sentencing considerations
40Your plea of guilty has saved the community the time and expense of a trial and is an indicator of your remorse and of course, facilitates the course of justice. I note however that this case has a long history and, as evidenced by Appendix B attached to the prosecution opening in outlining the procedural chronology, there has been 35 appearances in relation to this case. You have changed lawyers on a number of occasions. On any view, the evidence in this case
1 See Markovic v The Queen (2010) 30 VR 589.
presents a strong if not overwhelming case. Nonetheless, your plea of guilty should still be given weight in the sentencing consideration.
You come before the court with no prior criminal history and there are no pending matters. It was submitted on your behalf that as a man of 56 years of age who has never been in custody before, incarceration has been a salutary experience for you and I accept that would be so in your circumstances.
I was also told that as a result of a fire at Port Phillip Prison where you are being held, the prison was locked down from 28 November 2017 until 5 January 2018. During that time you were in lockdown for 23 hours a day. I take this matter into account.
Mr Triandos who appeared on behalf of the DPP, submitted that general deterrence and denunciation must be given weight in cases such as this. As was stated in Nguyen v The Queen,2 emphasis must be given to general and specific deterrence and denunciation in order to reflect the objective seriousness of the offending or the offenders moral culpability. As was also pointed out in Nguyen v The Queen,3 community protection is also relevant in cases such as this where cultivating cannabis at this level results in harm to the community.
As a consequence of Charge 2 on the indictment, you fall to be sentenced as a Serious Drug Offender pursuant to Part 2A of the Sentencing Act 1991. Section 6D requires that the court, in determining the length of sentence, must have regard to protection of the community as the principal purpose for which the sentence is imposed and may impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances.
The prosecution does not contend for a disproportionate sentence. In the
2 (2016) VSCA 198.
3 Ibid.
circumstances where you are 56 years of age with no prior convictions and with good prospects of rehabilitation, I do not consider that a disproportionate sentence is warranted. However, the prosecution also submits that given the objective gravity of Charge 2 there is not a justification for the ordering of total or substantial concurrency with the sentence on Charge 1. I accept that in the particular circumstance of this matter, that submission has force.
46As already noted, in my view, in all the circumstances your prospects of rehabilitation must be considered as very good. You have no prior convictions and nothing pending. You were 54 years of age at the time of the offences and are now 56. Before you engaged in this offending you had run a successful business building domestic houses and it seems that on completion of your time in custody you will be able to return to that business and build it up again as you had in the past, becoming a contributing member of the community.
Sentence
47Mr Lim, please stand.
48Michael Lim, on Charge 1 you are convicted and sentenced to 3 years and 6 months imprisonment. On Charge 2 you are convicted and sentenced to 3 years imprisonment.
49I direct that 2 years of the sentence on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
50That makes for a total effective sentence of 5 years and 6 months imprisonment. I direct that you serve 3 years and 6 months imprisonment before becoming eligible for parole.
51Pursuant to s 18 of the Sentencing Act 1991, I declare that 960 be reckoned as a period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty I would have sentenced you to 7 years imprisonment with a non-parole period of 5 years and 6 months.
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