Director of Public Prosecutions v Bui and Do

[2013] VCC 1498

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

CR-13-00970
CR-13-00971

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN SON BUI

and

ELIN THUAN DO

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2013
DATE OF SENTENCE:	18 September 2013
CASE MAY BE CITED AS:	DPP v Bui and Do
MEDIUM NEUTRAL CITATION:	[2013] VCC 1498

REASONS FOR SENTENCE

Subject:  CRIMINAL LAW

Catchwords:             Sentence – Pleas of guilty - Cultivate commercial quantity cannabis – Crop sitting

Sentences:Bui and DO both sentenced to Total Effective Sentence of 2 years’ imprisonment with a non-parole period of 10 months’ imprisonment to be served – Both have served 204 days pre-sentence detention – s.6AAA Sentencing Act 1991 declaration - Forensic sample order (Bui) – Forfeiture order (Do)

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Roper (Plea) Mr H. Thomas (Sentence)	Mr C. Hyland, Solicitor for Public Prosecutions
For the Accused DO For the Accused Bui	Mr S. Payne (Plea) Mr S. Pratt (Sentence) Mr S. Kennedy	Victoria Legal Aid Tait Lawyers

HER HONOUR:

1       Van Son Bui and Elin Thuan Do, you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis which has a maximum penalty of 25 years' imprisonment.  The maximum penalty shows how serious the offence is.

2       The learned prosecutor told me that you are husband and wife, aged 39 and 36 respectively.  At the time that you committed the offence, you each held Icelandic passports and had remained illegally in Australia, having arrived on tourist visas which had expired.

3       The basis for the charge to which you have both pleaded guilty is that on Tuesday, 26 February 2013 at about 2.00pm, police went to a house at an address in Lyndhurst in order to execute a search warrant.  They entered the house through an open door and found you sitting on a couch in the lounge room at the back of the house. 

4       During the search, police found cannabis plants which were growing hydroponically in six bedrooms.  These were set up with elaborate lighting, ventilation, water and electrical systems.  A total of 216 cannabis plants of varying sizes were found and these had a combined weight of 103.76 kilograms, with a crop yield of 9 kilograms dried weight of usable leaf and flower. 

5       Police also found an electrical meter bypass which was set up illegally to divert electricity from the main power supply.  You are not alleged to be involved in the setting up of the bypass or in relation to the setting up of the crop, for that matter.

6       The crop yield to which I previously referred was estimated to be worth between $80,000 and $144,000, if sold in ounces, and significantly more if sold in grams. 

7       You were taken to the Narre Warren Police Station and took part in records of interview with the assistance of an interpreter.  Both of you admitted living at the house and being employed to attend to the crop and in return you had been paid around $3,000 so far.  Neither of you were able to provide the real name of the owner of the house or of the crop and equipment.  You, Ms Do, described your “employer” as “older brother”, "eternal uncle BA" or "hai”.

8       It is accepted by the Crown that you played the role of crop sitters.  In that role you tended to the plants but did not own the crop and you agreed that you were involved in the cultivation for a two month period between 26 December 2012 and the date of your arrest.

9       Neither of you have any criminal history. 

10      Your offending is serious and calls for a just punishment to be imposed and your conduct must be denounced.  Further, strong weight must be attached to the principle of general deterrence – that is, the sentence which I impose must, amongst other things, serve to deter others from being tempted to offend in the way that you have.

11      Although your role as crop sitters was at the lower end of the drug hierarchy, it was, nevertheless an important role without which commercial operations such as the one in which you were involved could not run.  Further, you chose to take place in this offending for a period of two months which is not an insignificant period  Also, the crop which you tended was more than double the number of plants for the threshold of commercial quantity and more than four times the threshold weight for commercial quantity.

12      I was told that neither of you were dependent on drugs but were motivated to make some money in a desperate bid to return home.  I observe in passing that as you were here illegally, one would have thought that the best way to do this was to surrender yourself to the Immigration authorities.  However, it does appear that you were both desperate to make money in circumstances where the financial crises had hit hard at home and you were keen to send money home to help support your son and to maintain mortgage payments and other expenses of your household.  Notwithstanding the explanation for your offending, other people choose to earn money by legitimate means in order to support themselves and their families, rather than being prepared to feed off the misery of those who are prospective customers of cannabis cultivation operations.  I say this, whilst accepting that you played the roles of crop sitters and had no greater stake in the enterprise than this.

13      I take into account your respective backgrounds.  It appears that each of you have endured a good deal of hardship as you were growing up in Vietnam, living in impoverished circumstances.  Because of the financial pressures faced by your families, it was important that you leave school at an early stage and therefore, you are both lacking in education.  In your case, Mr Bui, I take into account the report of Mr Healey in terms of his finding that you have a low IQ which meant that some 85 per cent of the population at your age would do better intellectually.  However, in neither of your cases was it put that you have any impairment of mental function which would reduce your moral culpability in committing the offence. 

14      I was told that, having assisted your respective families in Vietnam, you married and migrated to Iceland in 2000.  You went to Iceland as you had been offered employment in a factory and decided that it would be best for you to earn money there and send it home to your families.  Since being in Iceland, you have worked very hard in order to make a life for yourselves and for your son.  With your support, your son has been able to maintain his education and I was told that he is now undertaking his first year of university, studying medicine.  He is now nineteen years of age and is most distressed at your prolonged absence.  Further, your arrest has meant that there is no money going back to him, which has placed his studies and maintenance of the household under immense strain.  You each have the strong desire to return to Iceland as soon as possible in order to assist your son and attempt to keep the house in which you have all lived and your son continues to live.  In particular, you, Mrs Do, are most distressed at the prolonged absence from your son, although in both your cases, I understand that you had proposed to stay in Australia for approximately 12 months, extending a three month tourist visa to 12 months. 

15      Upon your release from jail, you will be deported.  However, this is not put as a matter of hardship.  Your son’s predicament is not put as extreme hardship. However, I take into account that there is a hardship upon each of you in being imprisoned and being deprived of each other’s company and the company of your son and other family members. 

16      In each of your cases, I take into account your pleas of guilty which were made at the earliest stage.  This entitles you to a significant discount in the sentence which you would otherwise receive as you have saved the witnesses the time and trouble of giving evidence at committal hearing and trial and you have saved the community the time and expense of running contested proceedings.  I also take into account that you appear to have been somewhat forthcoming with the police in your records of interview, volunteering that you had been involved in the offending for a period of two months.  Further, in your case, Mrs Do, I accept that you are remorseful for your actions and feel a deep sense of shame in breaking the law.  I understand that this sense of shame can spread to other members of your family if they were to find out about your offending.  In this regard, I was told that they have not been advised of your offending.  It was not clear as to whether your son is aware of this.

17      In each of your cases, I was told that you agreed to be engaged in the criminal activity in circumstances where you were financially vulnerable and were somewhat naïve as to the wrongfulness of what you were being asked to do.  In your case, Mr Bui, I was told that you did not initially appreciate the illegality of what you were doing.  I find this a difficult proposition to accept in circumstances where you were entrusted with a valuable crop of cannabis.

18      Neither of you have criminal histories and each of you have been remanded in custody for a significant period, which was 197 days as at the plea hearing date and as at today 204 days not including today as I understand the position.  Each of you has a strong work ethic and have reached rather mature years without having acted illegally save for the offences for which I sentence you.  In all of the circumstances, I find that your prospects of rehabilitation are very good.  In your case, Mrs Do, I have also taken into account the fact that you have made the most of your time on remand, engaging in a number of courses including learning English.  Further, in each of your cases I need place only minimal weight on specific deterrence. 

19      In light of all of the sentencing considerations which apply to each of your cases and the weight which I need to attribute to them, I am of the view that although a lenient range, the Crown range is appropriate and I propose to sentence you in accordance with it.  Your counsel did not seek to persuade me that the Crown range was inappropriate, although Mr Payne submitted on your behalf, Mrs Do, that a sentence towards the lower end of that range was more fitting.  It was not argued by either of your counsel that there was anything which should distinguish you from each other in terms of parity, although it was said by Mr Payne that you, Mrs Do, were somewhat more naïve that your husband and he also spoke of your sense of shame and remorse which was not really conveyed on your behalf, Mr Bui.  However, this may well be due to things being lost in translation or instructions not being obtained in the limited time available to counsel and in the context of the need for an interpreter. 

20      The Crown submitted that in each of your cases a range of between 18 months to 2 years imprisonment head sentence with a non-parole period of 9 months to 11 months imprisonment was appropriate.  The range is indeed narrow insofar as the non-parole period is concerned.  However, as I have said, this was not regarded as inappropriate by either of your Counsel.  In the end, I am of the view that the upper end of the head sentence is warranted but I will impose a non-parole period in the middle of that submitted as being appropriate.

21      Would you please stand up? 

22 Firstly, I make an order for the taking of a forensic sample from you, Elin Thuan Do, pursuant to s.464ZF Crimes Act 1958 which will involve a swab being used to take some saliva from your mouth. The order is not opposed but I should warn you that if you do not cooperate with this procedure then reasonable force may be used by the authorised officer in order to have you comply. In your case, Van Son Bui, I make an order for the retention of a forensic sample which was previously taken from you pursuant to s.464ZFB Crimes Act 1958. In each of your cases I make the orders because of the seriousness of the offence, because the orders are not opposed and because it is in the public interest to make the orders.

23      Further, in each of your cases I make a disposal order in relation to the cannabis which was cultivated and in relation to equipment used in connection with the cultivation – the order is not opposed by either of you.  In your case, Mrs Do, I make an order for forfeiture of $815 cash which was found in your handbag, which was said to be derived from being employed in the crop house.  That order is not opposed by you.

24      In relation to Charge 1, you are each convicted and sentenced to imprisonment for a period of two years and I direct that you serve ten months before becoming eligible for parole. 

25      I declare that you have already served 204 days in custody which will be reckoned as already served under this sentence.

26      If not for your pleas of guilty I would have sentenced you to 2½ years' imprisonment with a non-parole period of 16 months.

27      Is there anything arising from that?

28      COUNSEL:  No, Your Honour.

29      HER HONOUR:  Very well.  Yes, thank you, if you could remove the prisoners. Does defence counsel need the assistance of the Interpreter to explain anything to their clients and yourselves?

30      MS PRATT:  Your Honour, I'll have a video conference later in the week.

31      HER HONOUR:  With the assistance of the interpreter?

32      MS PRATT:  Yes I will.

33      HIS HONOUR:  Mr Kennedy?

34      MR KENNEDY:  Your Honour, I'd like to use the interpreter downstairs.

35      HER HONOUR:  Yes.  Madam Interpreter, would that be all right - if you just remained a little longer so Mr Kennedy can have your assistance in the cells to explain a sentence that has been imposed to his client and have a chat with his client with your assistance?

36      INTERPRETER:  Yes, Your Honour.

37      HER HONOUR:  Thank you, Madam Interpreter.  Yes, thank you we will now adjourn until - 10.30 tomorrow.     

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