Director of Public Prosecutions v Bui
[2020] VCC 12
•17 January 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR 19-02453
Indictment No. J11261310
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANH THU BUI |
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JUDGE: | HIS HONOUR JUDGE HIGHAM |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 January 2020 |
DATE OF SENTENCE: | 17 January 2020 |
CASE MAY BE CITED AS: | DPP v Bui |
MEDIUM NEUTRAL CITATION: | [2020] VCC 12 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – cultivate a narcotic plant (commercial quantity) – plea of
guilty
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 72A
Sentence: Total effective sentence of 2 years’ imprisonment with a non-parole
period of 14 months
Section 6AAA declaration: 3 years’ imprisonment with a non-parole
period of 2 years and 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Vella | Solicitor for the Office of Public Prosecutions |
For the Accused | Ms A McLure (Plea) Ms A Addamo (Sentence) | Leanne Warren & Associates |
HIS HONOUR:
1Thanh Thu Bui, you have pleaded guilty to one charge that on 16 May 2019 you cultivated a narcotic plant, namely cannabis, in a quantity not less than the commercial quantity, for which the maximum penalty is a term of imprisonment of 25 years. You also pleaded guilty to a summary charge of committing an indictable offence whilst on bail, for which the maximum penalty is a term of imprisonment of three months.
2Tendered on the plea as exhibit 1 was a Summary of Prosecution Opening wherein the circumstances of your offending were set out. Briefly stated, the circumstances of your offending were as follows.
3On the morning of 24 April 2019, Senior Constable Brett Angell received information from SP AusNet, a service provider, regarding suspicious electricity usage and readings from a house at 193 Tone Road, Wangaratta. That afternoon, Senior Constable Angell commenced a covert observation of the property. After approximately 45 minutes, having seen no movement to or from the premises, nor signs of life within the house, Senior Constable Angell walked over to the address to take a closer look.
4At the front door of the residence, Senior Constable Angell observed the front windows to be completely covered and he noticed a distinct smell of cannabis emanating from the residence. After knocking on the front door and getting no answer, he left the scene and Operation Kevin 2019 was initiated. The lead investigator was the Informant in this matter, Senior Constable Paul Hore.
5On the morning of Thursday 16 May 2019, police attended at the aforementioned address to execute search warrants. Upon entry, police observed you exit the rear bedroom (bedroom three) wearing a facemask and gloves and you were placed under arrest. Two accused, Trang Nguyen and Nga Nguyen were also located inside the rear bedroom holding pairs of scissors and similarly wearing protective gloves and facemasks. They too were arrested by police. You told police that your two co-accused were only there for a social visit and you had 'asked them to help … so that we cut more quickly'. They were later dealt with by the Court on that factual basis.
6That afternoon a representative from Energy Safe Victoria and SP AusNet conducted an inspection of the premises and located an electrical bypass which was removed and provided to police. It had been operational for a period of over six months running up an estimated power bill of approximately $17,000. You were not charged with and thus do not fall to be sentenced for this theft of electricity. Police then conducted a search of the premises and identified, photographed and removed cannabis plants and items of property used in the cultivation of the cannabis plants located at the premises.
7The cannabis weighed a total of 83.012 kilos and consisted of: item 1, 43.15 kilograms of harvested cannabis branches with bud attached; item 2, 10.59 kilograms of loose cannabis leaf and clippings; item 3, 19.15 kilograms of adolescent plants; item 4, 9.92 kilograms of harvested cannabis bud and item 5, 0.202 kilograms of seedlings. Items 1, 2 and 4, representing a total of 63.66 kilograms, were located in bedroom three, the room from which you were observed by police to exit. Also located at the premises was various electrical equipment including numerous lights and shrouds and power transformers used or intended for use in the hydroponic system of cultivation that had been established in the premises. In a kitchen drawer was an energy bill in your name. Your motor vehicle was parked in the driveway of the premises.
8I turn now to your personal circumstances.
9You were born in February 1994 and thus were aged 25 at the time of your offending. You were born in Hai Phong, North Vietnam, to working parents. You have one younger sister. At the age of 16, on your own initiative, you arranged to come to Australia on a student visa to learn English and to complete your education in an Australian learning institute.
10You enrolled at the Oxford College in Melbourne. Your parents initially provided you with financial support but the course was expensive and I understand that your student visa lapsed in 2012 before you had completed the course. Thus remaining in Melbourne without an official status, you lived on the margins and were compelled to work for low wages in various casual enterprises. In 2013 you met and fell in love with Quyen Diep, an Australian citizen of Vietnamese heritage. You married in 2014 and later that year you had a son.
11Following your marriage, you were on a provisional partner visa. In 2016 your marriage broke down prompting a period of depression. Around this time, you were introduced to methamphetamine and started to gamble, leading inevitably to the accumulation of debts that you were unable to repay. You also accrued court fines in relation to a vehicle which you had agreed to be registered in your name. Your main gambling creditor was a man by the name of Mr Anh to whom you owed approximately $16,000. This gentleman eventually offered you a means of paying off your debts and that was to act as a minder and caretaker of the cannabis enterprise that was being run from the address where you were arrested. You agreed.
12There is no doubt that you knew and understood the criminal nature of the operation that was being run by Mr Anh or to which you had been introduced by him. You had already been arrested in October 2018 for possession of cannabis and methamphetamine and it was whilst on bail for that matter, eventually dealt with by means of an adjourned undertaking that you committed this offence and that forms the Summary Charge, commit an indictable offence whilst on bail. I am told by your counsel that you believed that once your debts were cleared you could find a way to stay in Australia and reapply yourself to self-improvement via education. Instead, however, you were arrested.
13This is the context and explanation for your offending, although as your counsel accepted it cannot be mitigation for it. Prior to arrest you had occasional access to your child. Since your arrest you have not received any visits from your former wife and thus you have not seen your child. You are no longer as proficient in English as you once were and your time in custody has thus been one of linguistic, personal and cultural isolation.
14Mr Vella, on behalf of the Director, submitted that this is an inherently serious offence by virtue of the 25-year maximum penalty that it carries. Sentencing purposes of general and specific deterrence, just punishment and denunciation are to the fore and must be given appropriate weight. Mr Vella fairly conceded, however, that in your case the need for specific deterrence was somewhat reduced. He accepted that the primary focus should be upon the role that you played rather than its precise descriptor - for example, “crop sitter” - of that role.
15Significantly, the prosecution did not contend that you had any stake in the operation or in the potential profit that the enterprise would yield over and above the moneys that you were promised for your involvement. He agreed that you were towards the lower end of the range in terms of your role. You were, however, able to recruit your co-accused to assist you in harvesting the crop and thus you were not a mere passive crop sitter as is often encountered.
16The prosecution accepted that there had been a plea at an early opportunity and that you had been in custody since your arrest on 16 May 2019 (now some 246 days of presentence detention up to but not including today). Mr Vella conceded, again most fairly, that the current uncertainty of your immigration status and your probable deportation upon completion of any custodial sentence was a matter to which I could have regard, as was the separation from your child, that would inevitably follow upon any deportation.
17His ultimate submission was that the objective gravity of the offending and the sentencing purposes engaged called for an immediate term of imprisonment with a head sentence and a non-parole period. On your behalf, Ms McLure conceded in realistic submissions that deterrence, denunciation and just punishment were the primary sentencing purposes in your case and that an immediate term of imprisonment was the only appropriate disposition. She urged that any sentence should not be crushing. In mitigation of your sentence, she relied upon your early plea of guilty which brings with it the practical benefit of saving the community the time and cost of a trial, your absence of criminal history, your youth and your positive prospects for rehabilitation.
18In this regard I was told that you had stopped using methamphetamine upon your October 2018 arrest and that you did not view your gambling as an issue. In Ms McLure's words, there were no factors personal to you that might impede your rehabilitation. I accept that there are grounds for optimism as to the future but perhaps they should be more cautiously expressed. However, it is your intention to find work once your future is settled. Ms McLure further submitted that your time on remand has been difficult for you. You have not received visits and you have been culturally and linguistically isolated. Your uncertain immigration status and the prospect of deportation is hanging over you.
19Mr Bui, your offending is by its very nature serious, as is clear from the maximum penalty imposed by Parliament. The trade in cannabis is by no means a benign one. The cannabis crop that is grown by cultivators has serious adverse effects upon many users and thus for the community at large. It is the community which bears the great personal and emotional and at times financial cost while the cultivators reap significant profit. All of the features found in this property are common within suburban houses in the city and in the regions that have been converted into cannabis production houses.
20The use of residential houses for commercial growing of cannabis for onward sale and profit, is all too prevalent. So is the use of individuals, such as yourself, who live on the margins due to uncertain or no legal status within Australia and thus to act as front persons for the enterprise. It is in order to avoid detention that individuals are recruited to mind the crop. “Crop sitters”, to use an accepted term, ensure that the equipment continues to function and that the crop reaches fruition. Such deployment not only ensures a yield but, crucially, helps to ensure that the organisers of the production and distribution chain, and those who profit from it, avoid detection.
21The objective gravity of your offending falls to be determined of course by my finding as to your role and by reference to all the facts of the case. I accept that you had run up debts and that you were offered an opportunity to clear those debts by giving yourself to this criminal enterprise. I accept that the prospect of being debt free overcame any scruples that you may have had about assisting others in this criminal enterprise and that reduces to some extent your moral culpability. But you well knew that what you were doing was wrong and you well knew the criminal nature of the enterprise to which you lent yourself.
22Your role was to look after the crop. You also recruited the two Ms Nguyens to assist you in that role. The charge covers one day. The threshold for a commercial quantity is 25 kilograms. The amount of cannabis yield in this case was 83.012 kilograms of cannabis. So, they are 3.32 times the commercial threshold. You had no financial or propriety interest in the criminal enterprise. The prosecution accepts that you were in the lower end of the range in terms of your role but wherever you precisely fit in the classification of offenders, the role that you were playing was integral and cannot be underestimated.
23Every role, no matter how small, contributes to the success of the criminal enterprise and most importantly as I have already stated, it keeps the entrepreneurs at arms lengths from their crop while it grows to a saleable product. And your culpability for the offending is informed by those simply stated facts.
24Now, in sentencing you I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is to deter others from behaving as you did and I must consider specific deterrence, that is deterring you from repeating such offending. I am persuaded that the need for specific deterrence is somewhat reduced although not eliminated.
25I must consider the need to protect the community from you. I must express the community's denunciation of your conduct. I must have regard to the statutory maximum penalty for the offence to which you have pleaded guilty and to current sentencing practices. In short, I must try to balance your personal circumstances with the circumstances of your offending and I am required by law to pass no longer a sentence than is necessary in satisfaction of all relevant sentencing purposes.
26In sentencing you I take into account the following matters: your relative youth at the time of the offending and now; your lack of prior convictions, save for the October 2018 matter; your plea of guilty which I accept was entered at an early opportunity. I also accept that you are remorseful for your offending and I accept that you have positive prospects in the main for your rehabilitation. I accept that uncertainty as to your prospects for deportation will weigh heavily upon you, as will the likely separation from your child. And I accept that by virtue of your lack of sufficient English and lack of family or personal contact, you will be culturally isolated whilst in prison. Nonetheless, the objective gravity of your offending can only be met by an immediate term of imprisonment.
27If you would stand up please, Mr Bui.
28On Charge 1, cultivation of a narcotic plant, namely, cannabis, in a commercial quantity, you are sentenced to a term of imprisonment of two years.
29Summary Charge 7, commit an indictable offence whilst on bail, you are sentenced to a term of imprisonment of one month.
30I make no order for cumulation so that makes a total sentence of two years. I order that you must serve a term of fourteen months before you are eligible for parole.
31Pursuant to section 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 246 days of the sentence that I have passed upon you and direct that this be entered into the records of the Court.
32Pursuant to section 6AAA of the Sentencing Act 1991 (Vic) had you not pleaded guilty you would have been sentenced to a term of imprisonment of three years with a non-parole period of two years and three months.
33Now, Ms Addamo, custody management issues if any? I will just note, a young prisoner and this is his first time in custody and cultural, linguistic isolation.
34MS ADDAMO: Thank you, Your Honour.
35HIS HONOUR: The drafted forfeiture and disposal orders have been filed so I will sign those and send them off.
36MR VELLA: As Your Honour pleases.
37HIS HONOUR: I wish both of you a good afternoon.
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