Director of Public Prosecutions v Bui
[2014] VCC 1193
•5 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00891
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANH TO BUI |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2014 | |
DATE OF SENTENCE: | 5 August 2014 | |
CASE MAY BE CITED AS: | DPP v Bui | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1193 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:DPP v Duong [2006] VSCA 78, R v Mason [2006] VSCA 55,
R v Esposito [2009] VSCA 277
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Malobabic | Office of Public Prosecutions |
| For the Accused | Mr K Oldis | Valos Black & Associates |
HIS HONOUR:
1 Mr Thanh To Bui, you have pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity and one charge of theft of electricity.
2 The offences occurred at your home at 73 Diamond Avenue, Albanvale in Victoria between 23 November 2013 and 21 February 2014.
3 The charge of cultivation of a narcotic plant in a commercial quantity carries a maximum penalty of 25 years’ imprisonment. The charge of theft carries with it a maximum penalty of ten years’ imprisonment.
4 The charges result from the execution by police of a search warrant at your home on 21 February 2014.
5 Inside your home, police located cannabis plants in four rooms. In each room, relatively complex and sophisticated hydroponic growing equipment was found. The plants were growing under lights, and a hydroponic watering system was operating.
6 An illegal bypass was operating whereby the electricity meter was bypassed.
7 In what was described as Room 1, police located 12 cannabis plants, weighing 12.66 kilograms excluding roots. These had been growing for approximately 11–13 weeks.
8 In Room 2, a further 12 plants were located, weighing 12.18 kilograms excluding roots. These also had been growing for approximately 11–13 weeks.
9 In Room 3, police found a further 34 cannabis plants. These weighed 1.6 kilograms excluding roots, and had been growing for approximately 2–3 weeks.
10 In Room 4, police located a further 27 cannabis plants, weighing 7.98 kilograms excluding roots, and which had been growing for approximately 4–6 weeks.
11 In total, 85 cannabis plants were seized, weighing 34.47 kilograms excluding roots.
12 At the time that police attended on 21 February 2014, your son, Tri Thien Bui, was the only person present. He was originally charged with offences similar to those which you have been charged with. Your son made a statement to police indicating the following:
· That he shared the house with you and had done so for the previous three years;
· The cannabis belonged to you and not to your son;
· That your son had no involvement in the hydroponic setup; however, he did have knowledge of it being in the house;
· You had never asked your son to assist in moving equipment or watering or feeding the plants within the house;
· You and he had had a conversation about the plants and that you stated to him that your tailoring business was not doing well and that you were trying to make a living by growing cannabis;
· You paid the mortgage, bills, finance on the cars, and gave him $50 a month for petrol.
13 On 27 February 2014 you were arrested, and shortly afterwards made a “no comment” record of interview. You were charged with these offences on that date. At a committal mention, on 21 May 2014, you pleaded guilty to these offences. You spent one night in custody at that time.
Background
14 You are now forty-eight years old. You have lived in Australia for some twenty-four years. You were originally born in Vietnam, and left that country by boat aged about twenty-two. You spent approximately two years in a refugee camp in Malaysia before arriving in Australia aged twenty-four. Since your arrival here you have worked, married, raised a family and purchased the subject home.
15 You had apparently separated from your wife prior to these offences occurring.
16 You had been engaged, prior to these offences, in fruit and vegetable picking, and you had also made clothing on a piecework basis.
17 You purchased the subject home in 2008 for $247,000 with the assistance of a mortgage loan of some $220,000. You have since borrowed further moneys on the security of that home. Your current debt to the Westpac Bank is some $307,000. There was no specific evidence before the court as to the current value of the property. Although it was acknowledged by your counsel that there was a possibility that the house might be confiscated, pursuant to the provisions of the Confiscation Act 1997, it was not submitted that you would suffer any financial loss as a consequence of such confiscation. It appears that you have little and possibly no equity in the property at the present time.
18 Your counsel submitted that you had embarked upon the cultivation of cannabis at a time when your income from the clothing industry had decreased. It was submitted that you had been approached by others to make your house available for such cultivation, and that others had supplied and set up the equipment found at your home. I was told from the Bar table that others would visit your home from time to time, check the crop, and provide advice to you. It was conceded, nevertheless, that you looked after the crop and operated all equipment concerned with it.
19 There was no evidence that you were merely a crop-sitter. In the statement made by your son to police, he identified you as the owner of the crop and said nothing about the involvement of other persons. At no time have you made any statement to police indicating that others had any involvement in the crop or had played any role in its cultivation. There was simply no evidence that others were involved. You had the opportunity of giving such evidence before this court as to the level of your involvement and the involvement of others, but evidently chose not to do so.
20 Unlike many cases involving crop-sitters, this house was at all material times owned by you and you have always resided in it.
21 For the purposes of my sentencing you on this occasion, I do not accept that you were merely a crop-sitter.
22 Your counsel has submitted that there are reasons why I should impose a non-custodial sentence, or at least a custodial sentence of a short period followed by a community-corrections order. Those submissions were essentially as follows:
(a)That since your arrival in Australia 24 years ago you appear to have been of good behaviour and you have no prior convictions.
(b)You have contributed to the community in the sense that you have worked and raised your family here.
(c)You have some health problems. Limited medical evidence was tendered. In a brief certification from a Dr Ngo, he states that you suffer from “asthma and diabetes”. Attached to that certification is a copy of a prescription for Diabex tablets (which would relate to your diabetes condition) and Ventolin and Seretide inhalers (which would relate to asthma). Dr Ngo does not indicate that you have any particular problems relating to these conditions or that you would have any particular difficulties should you receive a custodial sentence. It is not suggested by your counsel that you are an insulin-dependent diabetic, and the prescription makes no reference to insulin.
(d)It was submitted that because of these health problems, prison would be harsher for you than would otherwise be the case. Whilst I do not in any way belittle or underestimate the asthmatic and diabetic conditions suffered by you, I am of the view that those conditions can be adequately managed in a prison environment.
(e)Your mother is currently aged ninety-two. She still resides in Vietnam. It was submitted that, in view of her age, if you were sentenced to a lengthy term of imprisonment it was unlikely that you would be able to travel to visit her again. That much would have been appreciated by you at the time that you elected to cultivate cannabis, contrary to the law.
(f)You presently have resumed some work in the clothing industry. A letter from Ms Mimi Tran, of Full Moon Fashion, was tendered. She states that you are currently working for that company, a clothing manufacturer, on a part-time basis, three to four hours a day, five days per week. Ms Tran states that eventually you will be employed on a full-time basis, and that she believes you are a reliable and hardworking employee, honest and courteous. She states that she will continue to employ you regardless of the outcome of this Court case.
23 Your counsel has submitted that principles of specific deterrence are not so relevant in your situation, although it was conceded that principles of general deterrence were important with offences of this nature. He produced and tendered sentencing snapshots for the period 2006–2011, indicating that in that period only 51 per cent of people convicted of the offence of cultivating a commercial quantity of cannabis received an immediate term of imprisonment. A further 46 per cent received a prison sentence that was either wholly or partially suspended. As a consequent of changes to the law in this State, I am not able to impose a prison sentence that is either wholly or partially suspended. Nevertheless, your counsel submitted to me that it was open to sentence you to a community-corrections order, or to a period of imprisonment of not more than three months followed by a community-corrections order.
24 Taking into account all the circumstances of your offending, I do not consider that it is appropriate to accede to those submissions. I do consider that an immediate period of incarceration is required to reflect the seriousness of your offences.
25 The seriousness of the offences, demonstrated by the level at which Parliament has fixed the maximum term of imprisonment, is 25 years. As has been said before by our Court of Appeal, that maximum period shows unambiguously how seriously the community, through Parliament, views this conduct.
26 I must also have regard to current sentencing practices and other matters set out in s5(2) of the Sentencing Act 1991. Reference to the sentencing snapshots tendered by counsel indicate that an appropriate period of immediate incarceration would be between one year and five years, depending on the seriousness of the circumstances.
27 I must also have regard to the nature and gravity of the offence. The Court of Appeal has previously stated:
“Generally, this offence requires substantial punishment. The increasing number of hydroponic crops of cannabis detected in the last few years is material.”[1]
[1]DPP v Duong [2006] VSCA 78, [13]
28 The same Court, in 2006, said:
“General deterrence is an important consideration in sentencing for the offence of cultivation of a commercial quantity of cannabis.”[2]
[2]R v Mason [2006] VSCA 55, [16]
29 There is a clear link between increasing prevalence and general deterrence.
30 In 2009, the Court of Appeal said:
“Drug offences of the kind which we are here concerned, general deterrence must remain at the forefront of sentencing considerations, and thus, like other offenders who chose to engage in criminal cultivation of commercial quantities of narcotic plants for profit, the appellant must serve a sentence which is adequate to deter would-be transgressors.”[3]
[3]R v Esposito [2009] VSCA 277, [18]
31 I have taken into account the other matters set out in sub-s.5(2) of the Act, including that you have no prior convictions and that you pleaded guilty at a reasonably early time, thus making a trial unnecessary.
32 The fact that various rooms contained plants of different ages and maturity points to this being a enterprise which was intended to be an on-going one rather than some one-off arrangement.
33 In all of the circumstances, I do not consider it would be appropriate to impose a non-custodial sentence or a particularly short one.
34 Thanh To Bui, in respect of the charge of cultivating a commercial quantity of Cannabis, you are convicted of that offence and sentenced to imprisonment for a term of 18 months with a minimum non-parole period of 12 months. That 12 months shall be the base sentence.
35
In respect of the charge of theft of electricity, you are convicted and sentenced to a term of imprisonment of three months, one month of which shall cumulative upon the base sentence. The total effective sentence shall be
19 months' imprisonment with a minimum non-parole period of 13 months.
36 The two days that you have already spent in custody earlier this year will be brought into account in determining your date of release.
37 Pursuant to s6AAA of the Sentencing Act I indicate that had you not pleaded guilty to these charges, I would have sentenced you to a term of imprisonment of two and a half years in relation to the cultivation of cannabis charge, with a non-parole period of 18 months.
38 In relation to the theft of electricity charge, had you not pleaded guilty, I would have sentenced you to a period of imprisonment of six months.
39 In relation to ancillary orders sought, Madam Prosecutor, there is a disposal order, is there?
40 MS PATTISON: There is a disposal order and forensic sample order, Your Honour.
41 HIS HONOUR: Yes. Mr Valos, have you seen the disposal order sought?
42 MR VALOS: I have not, but I think counsel saw it.
43 HIS HONOUR: There is also an order sought under s.464ZF of the Crimes Act for a sample.
44 MR VALOS: That is a saliva sample, Your Honour?
45 HIS HONOUR: Yes.
46 MR VALOS: Yes.
47 HIS HONOUR: Saliva/blood.
48 MR VALOS: Yes.
49 HIS HONOUR: Do you just want a moment to explain those orders to Mr Bui?
50 MR VALOS: If I could approach him, thank you, Your Honour?
51 HIS HONOUR: Yes, please.
52 MR VALOS: No opposition, Your Honour.
53 HIS HONOUR: Yes, thank you, Mr Valos. I will make the order under s.464ZF(2) of the Crimes Act that Mr Bui undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with sub-division 30A of Part 3 of the Crimes Act and I do so for the following reasons. Namely, that the seriousness of the circumstances of the offending warrant the order and further that the order is by consent.
54 Mr Bui, I am required to tell you that, notwithstanding your consent, an authorised member of the police force may use reasonable force to take a blood sample from you if necessary. Do you understand that?
55 OFFENDER: (Through Interpreter) Yes Your Honour.
56 HIS HONOUR: Thank you. The disposal order, Mr Valos, relates to the equipment found at the house - - -
57 MR VALOS: That is right, Your Honour.
58 HIS HONOUR: Set out in the schedule.
59 MR VALOS: Correct.
60 HIS HONOUR: Is there any problem with that?
61 MR VALOS: No, none at all.
62 HIS HONOUR: I will make that order as sought by the prosecutor.
63 (Disposal order signed and acknowledged.)
64 (Section 464ZF(2) order signed and acknowledged.)
65 Madam Prosecutor, anything else that I need to deal with?
66 MS PATTISON: Nothing further, Your Honour.
67 HIS HONOUR: Yes, thank you. Mr Valos, anything else? Yes, thank you, you may take the prisoner downstairs. We will just have a short break.
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