Director of Public Prosecutions v Bach
[2013] VCC 2016
•12 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-13-01651
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOANG BACH |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 December 2013 |
| DATE OF SENTENCE: | 12 December 2013 |
| CASE MAY BE CITED AS: | DPP v BACH |
| MEDIUM NEUTRAL CITATION: | [2013] VCC 2016 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Cultivation of narcotic plant, commercial quantity
Legislation Cited: Sentencing Act 1991
Cases Cited:R v. Nguyen [2010] VSCA 127
Sentence: 2 years' imprisonment, minimum term 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Picone | Office of Public Prosecutions |
| For the Accused | Mr R. Maguire | Victoria Legal Aid |
HIS HONOUR:
1Hoang Zan Bach, you have pleaded guilty to one charge of cultivation of a narcotic plant, being a commercial quantity. Cultivation of a narcotic plant in a commercial quantity carries a maximum penalty of 25 years’ imprisonment.
2You are now aged 41, having been born on 1 January 1972, and you were that age at the time of the offending.
3You have no prior convictions, and as I understand, no matters pending. Is that correct, Mr Maguire?
4MR MAGUIRE: Yes, Your Honour, to my knowledge.
5HIS HONOUR: You arrived in Australia on 6 June 2011 on a three-month visitor's visa, but stayed in Australia after your visa expired.
6You were born in Vietnam, left school at around the age of eight or nine and commenced working, mostly in cattle farming. You characterise your early life as having been stressful and with the responsibility of being the eldest male child of your family.
7Your father died when you were 21, and as the eldest male child you were placed in the role of responsibility for your younger brothers and sisters, and indeed your mother.
8You arrived in Sydney on 6 June 2011 on a visitor’s visa for the purpose of visiting your youngest brother who was living in Australia for the purpose of study.
9You travelled for a while and ultimately commenced work in Queensland and eventually in Korumburra in Victoria. In the meantime your younger brother returned home to Vietnam unexpectedly due to your mother falling ill. You then remained in Australia thereafter - you claim for the particular purpose of assisting in the repayment of a loan which you had taken out for your younger brother's education, that loan being the sum of approximately $18,000.
10Whilst working in Korumburra you met a fellow worker named Bang in around March 2013. Bang proposed that you work for him and live in a residential property owned by him. He agreed to pay you $5000 per month for this work. It is in this way that you commenced to live at the Layman Grove home and followed the directions of this person, Bang, in the care and cultivation of the cannabis plants within the quite sophisticated setup that had already existed at the time of your arrival.
11Your involvement in the cultivation of the cannabis plants consisted of you caring for the plants, that is, watering the plants daily and general supervision of the plants, whilst residing at the premises. You were not involved in the purchase of any of the equipment used in the cultivation, nor its construction, and you did not otherwise harvest or tend the cannabis plants by way of any fertilisation or chemicals.
12The person, Bang, usually attended the premises each Friday during your time spent residing at the premises and would stay overnight on each occasion. It was Bang who would attend further to the cannabis plants and conduct maintenance upon the hydroponic equipment.
13As a result of observations being made by a neighbour, police attended at the premises on 7 May 2013 and executed a search warrant. They knocked on the front door and you were apprehended as you attempted to leave by the rear door. Police thereafter located a full cannabis cultivation system in operation in five rooms of the house - additional walls had been erected out of plastic sheeting to create extra cannabis grow-rooms.
14A search of the premises was conducted and the five cannabis cultivation rooms contained live plants in various stages of development and maturity. The total number of cannabis plants was 193. The total weight of these plants was 96.37 kilograms. In addition there was a bag of dried cannabis located in the kitchen which weighed 123.4 grams, and a further garbage bag containing cannabis mixed with other identified plant material which had a total weight of 1.71 kilograms.
15There was a system of water pumps and plumbing, along with fertiliser and chemicals to provide the cannabis plants with nutrients, lamps suspended from the ceiling, filters and an electrical power bypass system with the unmetered mains cable located within the wall cavity of one of the bedrooms.
16The wall containing the bypass had been plastered over, concealing the bypass and related wiring. This connection supplied electricity to a switchboard which in turn supplied electricity to the equipment in the five hydroponic rooms. The electronic equipment setup in the house was also assessed. Forty-nine 600-watt lamps and ballasts were located. All were connected to timing devices on the switchboards set for 12 hours operation per day.
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Other equipment located included exhaust fans with charcoal filters to address the odour emitted by the plants and standard fans and water pumps to assist with the growth of the plants. This description and the photographs tendered by the prosecution clearly show a sophisticated hydroponic operation. The
Layman Grove property was purchased on 29 October 2009 by a person by the name of Nhat Linh Bui, who has not been located.
18You were interviewed on 8 May 2013 with the aid of a Vietnamese interpreter and as a general summary you gave the following account of your activities.
(1)That you were hired to work there by a man you knew as Bang, a fellow bean-picker you had met on a farm in Korumburra.
(2)Bang said he would pay you $5000 a month.
(3)It was your intention to work at the premises until there were beans to pick in Queensland in a month's time.
(4)You had been working for Bang for a little over a month but had not yet been paid.
(5)You lived at the house, sleeping there every night and leaving to work during the day.
(6)Bang instructed you to pump water for the plants and you would turn the water on and off once a day when you came home at night.
(7)You would collect the mail for Bang. You would pick it up on Friday and it was Bang who told you to exit through the rear door if someone knocked on the front door. You were not to open the front door but just sit out the back until they went away. This is what you did when police attended the house.
19Following your arrest on 7 May 2013 you have remained in custody on pre-sentence detention and have served 219 days in that detention, up to but not including today.
20Cultivation of cannabis is regarded as a serious crime. It calls for the application of principles of general deterrence, and where appropriate specific deterrence, by way of punishment.
21The legislation is predicated on the proposition that cannabis is harmful and general deterrence is of special importance. I have been provided with a range of sentences which were imposed by His Honour the Chief Judge following an operation known as Operation Entity and Operation Permute.
22The reasons for sentences in the matters before His Honour the Chief Judge, Mr Maguire, did these sentences relate to both operations, or are they a selection from one or the other?
23MR MAGUIRE: Only to the Operation Entity.
24HIS HONOUR: I thought as much - relating to Operation Entity, and the prosecution has referred me to two authorities from the Court of Criminal Appeal relevant to sentencing considerations in these types of matters.
25I am satisfied first in this case that your role in this cultivation does call for the imposition of a sentence of imprisonment, and your counsel responsibly conceded that the degree of sophistication of the enterprise and its nature and seriousness does warrant a term of imprisonment to be immediately served.
26In mitigation I take into account the matters urged upon me by your counsel, including your plea of guilty and the early stage at which it was entered, your lack of prior convictions, your general vulnerability to exploitation because of your isolation in Australia, relative poverty and sense of family expectations, to some degree your naivety in accepting the overtures by Bang and your sense of shame, which I accept is likely to be genuine and which will otherwise reflect on your prospects of rehabilitation.
27I further take into account your difficulties experienced in remand custody at the MRC which will continue because of your isolation, your lack of ability to speak and understand the English language and your vulnerability to asthma attacks. I also take into account your cooperation with the police.
28However despite the fact that you were in a situation to be exploited by other more sophisticated and resourced criminals, you knew that what you were doing was wrong. You knew you were engaging in assisting criminals in the drug trade in Australia. It is very disappointing that you came to this country and engaged in this conduct.
29You took your chances for the simple purpose of financial gain, so matters of specific deterrence are important. Furthermore, this type of exploitation and the consequent willingness of people to house-sit for sophisticated cannabis plantations is not uncommon and principles of general deterrence are particularly important.
30The other matter which is of considerable importance is the maximum penalty that is prescribed for these offences. The fact that Parliament, representing the community, has imposed a maximum penalty of 25 years’ imprisonment reflects the seriousness of this type of offending.
31I am particularly conscious of the comments made by the Court of Appeal as expressed by His Honour the President in the authority of R v. Nguyen 2010 VSCA 127 in the context of this offending. I am also conscious of the fact that each particular case has to be considered in the light of its own particular circumstances.
32You remain a Vietnamese citizen and it is likely you will be deported to Vietnam upon your release from prison. The likelihood that you will be deported after completing your custodial sentence is a matter irrelevant to consideration of whether a non-parole period should be fixed, but may be relevant as a factor which may bear on the impact which a sentence of imprisonment will have on you during the currency of your imprisonment and upon your release.
33The aspect of impact of deportation must be attended by appropriate evidence. Although it would seem likely that the Minister for Immigration's power will be enlivened there is no specific evidence before me and it remains speculative, and there is no evidence established of particular consequences of hardship in relation to that.
34The disadvantage that will likely follow to you is the loss for you of the opportunity to have worked in legitimate employment in Australia for the assistance of your wider family.
35Mr Bach, could you please now stand.
36On Charge 1, cultivation of a narcotic plant in a commercial quantity, you are convicted and sentenced to two years’ imprisonment.
37I direct that you serve a period of 12 months’ imprisonment before being eligible for parole.
38I declare that the period that you have already spent in custody for this matter, namely 219 days not including today, be reckoned as a period of imprisonment already served under this sentence and is to be deducted administratively.
39For the purposes of s.6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed is a term of imprisonment of three years with a non-parole period of 18 months.
40Do we have any forms for signature?
41At the plea hearing the Crown sought an order for the taking of a forensic sample. I have made that order today for the reasons noted on the order, namely the seriousness of the circumstances of the offending warrants the making of the order, the order is by consent and the granting of the order is in the public interest.
42I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted. Do you understand that, Mr Bach?
43PRISONER: Yes, Your Honour.
44HIS HONOUR: At the plea hearing the Crown also sought orders for the disposal of various items seized by police at the address. You have consented also to that order and I have made that order today as well. I think formally those orders were not opposed and they were consented to. Do you consent to those orders?
45MR MAGUIRE: Yes, Your Honour.
46HIS HONOUR: The orders are consented to. Any other matters from either counsel?
47MS PICONE: Nothing further, Your Honour.
48MR MAGUIRE: Not from me, Your Honour.
49HIS HONOUR: Thank you.
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