Director of Public Prosecutions v Bui

[2015] VCC 1594

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01436

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUYET QUANG BUI

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2015
DATE OF SENTENCE:	12 November 2015
CASE MAY BE CITED AS:	DPP v Bui
MEDIUM NEUTRAL CITATION:	[2015] VCC 1594

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek
For the Accused	Ms U. Ebsworth

HIS HONOUR: 

1Quyet Quang Bui, you have pleaded guilty to one charge of cultivating a narcotic plant in not less than a commercial quantity, and one charge of possession of a drug of dependence.  Each of those charges relates to cannabis and carry maximum penalties of 25 years and five years respectively.

2You pleaded guilty at a reasonably early opportunity, and are now 59 years of age.  Importantly in your situation, you have no prior convictions, and I am advised from the Bar table that you have no matters pending.

3Your plea of guilty was at an early date, however because of your language difficulties you were not interviewed initially, and declined the opportunity later.  Accordingly, I have no real version of events before me, and accordingly remorse is a little difficult to ascertain. 

4You obviously get the utilitarian benefit of having pleaded guilty to this charge and avoiding the need for a trial.  I note that your wife, with whom I assume you are still in contact, will be standing trial on these matters in June of next year, but there is little I can do about that.

5The situation here is that because of the sentence I am to impose upon you, the odds are very high that you will be deported.  You are from Vietnam.  You will be deemed to have failed the character test, and I sentence on that basis.  That is, that you will undergo this sentence under the, belief that you will be deported, and that will make gaol harder for you, bearing in mind that you will have a family who are in this country, and you may well not be.

6You have done 181 days' presentence detention.  75 days of that was in lockdown, and I take that into account.  Obviously I cannot do that in a numerical way, but certainly, as I understand it, you will not be credited in the way that an undergoing prisoner would have been for it, and I do take it into account.

7Pursuant to s.464Z of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that, should you refuse to provide such a sample, police may use reasonable force to take it from you.  And that order is made and handed down.

8As I have just indicated, the situation here is that there is no explanation before me as to how you came to be involved in what I am about to summarise.  Clearly, you are under no obligation to provide such an explanation, and bearing in mind your family circumstances and others, it may well be that that would be a very unwise thing for you to do.  However, I sentence on the basis, as I must, that on the evidence before me, this is your crop.

9You were born in 1957 in North Vietnam, and you are now, I think, 59 years of age.  Your parents were rice farmers.  You were one of a large family, and one which fell upon impoverished times due to the bombing of the north by the B-52s.  You left school at the age of 15.  You have always had a good work record up until recent times.  Initially, you were working on the family farm; they owned it.  And you were then a factory hand for ten years in a shoe factory, which closed down.  You were then a food vendor for some 25 years.

10You married your wife in 1985, having grown up in the same village, and you have two daughters, one born in 1986 and one born in 1990.  In 2006, your eldest daughter moved to Australia with her new husband, and you now have grandchildren.

11In 2012, you and your wife sold all your possessions and moved to Australia with your youngest daughter.  I am told from the Bar table that upon arrival in Australia, you gained employment on a vegetable farm for a couple of years, but became unemployed when mechanisation took over.

12There was little information before me as to what that was all about, or what has occurred since then.  The circumstances, having arrived in Australia in 2012, in which you then found yourself were these.  In March of 2015, police received information about a cannabis crop being grown at Cootamundra Road in Doreen, at a property registered in the name of, if not owned by, your youngest daughter.  How all that came about, I have no idea.

13In any event, on 12 April 2015, for the second time, police conducted reconnaissance of the property, and saw your vehicle in the driveway.  And again on 14 May.  At approximately midnight on 15 May 2015, police attended your address to execute a search warrant.  They knocked on the door and identified themselves, but no one answered the door.  They forced their way in, and found your wife hiding in a walk-in robe.  There was no one else present.

14On walking through the premises, police observed what I accept is a sophisticated hydroponic cannabis system in various rooms throughout the house.  You and your wife were arrested and taken to Mill Park.  You could not be interviewed because of the absence of a Vietnamese interpreter, and as I have indicated, as is your perfect right, you declined to be interviewed at a later time.  As I understand it, you have been in custody since that arrest.

15On the following morning, police conducted a detailed search of the premises.  I have now had the opportunity of looking at the photographs, and it is a serious act of cultivation.  In total, there was 197 plants ranging from immature to mature, and their total usable weight after being seized was 29 kilograms.  The commercial quantity in terms of numbers is 100, and in terms of weight is 25, so your significantly in advance of that weight.

16The cultivation was clearly ongoing, as there were juvenile plants.  There was dried cannabis found, and I can do no more than simply give you a concurrent sentence for that.  I certainly could not draw an inference beyond reasonable doubt that that was part of a previous crop, but it certainly on the face of this at least, was not meant to be in the future at least, in isolated incident.

17An illegal electrical bypass had been installed in a wall cavity, and the usual work had been carried out in relation to that.  As I have said, I do not think I need to go through the minute details of the plants, but there were 197 of them and they weighed nearly 80 kilos.  Police were able to seize from that address items, clothing, toiletries and the like belonging both to you and allegedly to your wife, and you have remained silent about them effectively, ever since.

18The cultivation of a commercial crop in any situation calls for the application of general and specific deterrence, denunciation and appropriate punishment.  What then falls to occur is that I have to impose a sentence in the absence of any explanation of the actus reus of all this, but with a man who is now in his late 50s with no priors, with a family, facing the prospect of deportation back to a country where I am prepared to accept he has no assets. A community correction order I do not consider is appropriate.

19The prospects of your rehabilitation should be good.  You have got no priors and nothing pending.  The risk of you reoffending will be entirely up to you.  I accept that gaol for you will be harder for the reasons I have outlined insofar as deportation is concerned, and there will also be a degree of isolation because of not having a lot of family here, and also the language difficulties that come with being imprisoned.  And you have in fact, in the past at least, been a foreign national.

20Taking all those matters into account, bearing in mind that prior to getting this drug you would appear to have had a very significant work record, I have allowed for the lockdown situation and have endeavoured to give you a relatively generous opportunity for parole.  What occurs when that period expires is a different matter.

21Accordingly, on the charge of cultivate a commercial quantity, I sentence you to be imprisoned for a period of two years and six months.  On the charge of possess cannabis, three months, which is to be served concurrently.  That gives a total effective head sentence of two years and six months.

22Because of the matters I have outlined, in this situation I am prepared to give you a minimum term, and I rule that you serve at least 15 months before becoming eligible for parole.  I direct that 181 days be reckoned as having been served under this sentence.

23And I say, but for your plea of guilty, you would have been imprisoned for a period of three-and-a-half years, with a minimum term of two-and-a-half.

24MS EBSWORTH:  As Your Honour pleases.

25HIS HONOUR:  Any orders I have got to make, Mr Ballek?

26MR BALLEK:  No, Your Honour.  There's just one factual correction.  The warrant was executed at midnight on 15 May, not midday, as Your Honour said.

27HIS HONOUR:  12 am is midday, isn't it?  I have got you.  Is 12 am midnight?

28MR BALLEK:  Yes, Your Honour.

29HIS HONOUR:  I will amend that when the opportunity arises, Mr Ballek.  I appreciate that assistance.

30MR BALLEK:  As Your Honour pleases.

31HIS HONOUR:  All right.  Are there any other orders I have got to make?

32MS EBSWORTH:  No, Your Honour.

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