Director of Public Prosecutions v Cao
[2021] VCC 2195
•22 January 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01479
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANG CAO |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 January 2021 | |
DATE OF SENTENCE: | 22 January 2021 | |
CASE MAY BE CITED AS: | DPP v Cao | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2195 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of cultivating cannabis in a commercial quantity, one charge of theft of electricity and one charge of trafficking in a drug of dependence – 43 year old offender from Vietnam who had remained illegally in Australia after expiry of a tourist visa over 3 years prior to the offending – crop sitting type role in relation to cultivation and theft of electricity charges over a period of one week – sophisticated hydroponic cultivation setup with quantum of plants towards the lower end of the scale of commercial cultivation – trafficking charge involved possession for sale of an amount of cannabis which was only 2.13kg less than a commercial quantity rendering it an example towards the higher end of the scale for trafficking simpliciter – minimal mitigating material put before Court – no prior criminal history, early plea of guilty and risk of deportation
Sentence: Total Effective Sentence of 40 months’ imprisonment with a non-parole period of 30 months. s.6AAA: 5 years’ imprisonment with a non-parole period of 3 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Batten | Solicitor for Public Prosecutions |
| For the Accused | Mr I Polak | Haines & Polites |
HER HONOUR:
1Thang Cao, you have pleaded guilty to one charge of cultivating cannabis in a commercial quantity which carries a maximum penalty of 25 years’ imprisonment, one charge of theft of electricity which carries a maximum penalty of 10 years’ imprisonment and one charge of trafficking in cannabis which carries a maximum penalty of 15 years’ imprisonment.
2The circumstances of your offending are contained in the summary of prosecution opening on plea (Exhibit “A”).
3Charge 1, cultivation of a commercial quantity of cannabis, relates to a sophisticated hydroponic cultivation set up at a property at 39 Pinewood Drive, Thomastown. Police had begun investigating the crime of cultivation of cannabis at that address on 5 September 2019 and, in October 2019, a 2001 Toyota Tarago vehicle registered to you was observed at that address by Mr Weston, a meter investigator who was investigating the use of excessive power at the address. On several occasions subsequent to that, police drove past the property and observed in the driveway a Mercedes station wagon registered to Vinh Nguyen, with whom you have been in a relationship for many years. She is a co-accused. On 28 January 2020, aerial surveillance detected unusual heat coming from the roof of the property. On 30 January 2020 police drove past the property and observed your vehicle and your partner’s vehicle, both parked in the driveway. On 5 February 2020, police executed a search warrant at the premises. No one was present there, but your partner’s vehicle was parked in the driveway. Your offending by way of cultivation is charged with having taken place between 30 January 2020 and 5 February 2020. There is no evidence that you were involved in planting the crop or setting up the hydroponic cultivation equipment.
4As previously mentioned, the cultivation was a sophisticated hydroponic one involving some forty-six 600-watt lamps, an electrical bypass installed in a wall cavity, a timing device set for 12 hours of operation each day and exhaust fans and water pumps. There were 62 plants being cultivated, which weighed 35.9 kilograms. This is more than 10 kilograms over the legally defined commercial quantity of 25 kilograms.
5Charge 2, theft of electricity, relates to the electricity stolen by reason of the illegally installed electrical bypass. The value of the electricity stolen is unable to be calculated with accuracy. However, the lighting system, exhaust fans and water pumps are estimated to have used 364 kilowatts per hour of electricity each day. The estimated value of the electricity stolen is approximately $805. As with Charge 1, your offending on this charge is for the period from 30 January 2020 to 5 February 2020. There is no evidence that you were involved in installing the electrical bypass but, by your plea of guilty, you have acknowledged that you were aware of its existence.
6On 11 May 2020, police executed another search warrant at 4 Hastings Court, Epping, where you and your partner, Ms Nguyen, resided. When police arrived, you fled out the back, but were arrested soon afterwards. In the garage at your home were grow tents, liquid fertiliser, exhaust vents, heat and light globes, all of which were suitable for the cultivation of cannabis. Your vehicle was parked out the front of the premises and, inside it, police located 22.87 kilograms of cannabis. Of this amount, 4.69 kilograms was contained within a total of 12 vacuum sealed bags inside a tote bag. Another 18.18 kilograms was contained within 40 vacuum sealed bags which were packed into two large cardboard boxes. The total amount of 22.87 kilograms is the basis of Charge 3, trafficking in a drug of dependence. The quantity of cannabis which you had in your possession for sale was only 2.13 kilograms less than a commercial quantity of cannabis and many times in excess of the traffickable quantity of cannabis, which is defined as 250 grams.
7When interviewed by police on 11 May 2020, you denied any offending, made no comment when asked about the cannabis found in your car and said you knew nothing about the cannabis at the 29 Pinewood Drive, Thomastown address. You denied ever having been there and suggested that perhaps a friend had borrowed your car and gone to the address. You claimed that, when police arrived at 4 Hastings Court, Epping on 11 May 2020, you fled because you thought that they may be from the Department of Immigration and you did not want to be captured and returned to Vietnam.
8You were charged with these offences on 11 May 2020 and have remained in custody since that time. You indicated your intention to plead guilty at a committal hearing on 9 November 2020 prior to the cross-examination of any witnesses.
9Your partner, Ms Nguyen, was charged with cultivation of cannabis simpliciter on a single date, 5 February 2020. She pleaded guilty in the Magistrates’ Court and, on 17 November 2020, was sentenced to a term of imprisonment of 7 months. The prosecution acknowledged that she did not intend to cultivate a commercial quantity of cannabis and her role in the offending was a less significant one than yours.
10You are presently aged 44 years, having been born in November 1976. You come before the Court with no prior or subsequent criminal history.
11In a plea on your behalf, Mr Polak stated that you were born in Vietnam where you had been in a relationship with your partner and co‑accused, Ms Nguyen, since about 2012 before the two of you came to Australia together on tourist visas in June 2016. These visas expired after 3 months, well over 3 years prior to this offending.
12Mr Polak told the Court that you were born in Vietnam and you were one of seven children. Your father was a farmer and your family was not wealthy. You completed school to the equivalent to Grade 5 level and left school at approximately age 11 in order to work as a manual labourer to assist in supporting your family. In a plea in mitigation, which was remarkable for its lack of detail, Mr Polak stated that you had performed unskilled work in Australia in order to send money back to assist your family as they had helped pay for your passage to Australia back in 2016. He was unable to give any details of where you had worked, for how long, or what you had earned. He stated that you and your partner had been living in the house at 4 Hastings Court, Epping with one other person, but was unable to say in whose name the premises were leased, for how long you had resided there, or how much rental you were paying. The plea was silent upon how you came to be involved in this criminal offending or what benefit you expected to receive from it.
13Mr Polak stated that, since being remanded in custody, you had been distressed by being separated from your partner and were concerned about her health, as she suffers from some disc problem in her lower back which causes back pain and leg pain and for which she is due to undergo surgery in February this year. He also stated that, as a sentence of imprisonment of 12 months would result in your current visa (which is apparently a bridging visa) being cancelled, the Court should take into account the impact of your potential deportation once you complete any sentence of imprisonment and the fact that it could be considered an extra curial form of punishment and that the anxiety of the prospect of deportation may make the serving of your sentence more burdensome.
14Mr Batten on behalf of the prosecution conceded that, although Charge 1 is a serious charge as reflected by the maximum penalty of 25 years’ imprisonment, the commercial quantity of cannabis plants weighing 35 kilograms is towards the lower end of the range of commercial cultivation cases seen in this Court and the period of offending alleged is of relatively short duration. He stated that your role was much the same as a crop sitter.
15In relation to Charge 3, Mr Batten submitted that, given the amount of 22.87 kilograms of dried cannabis found in your car was 91 per cent of a commercial quantity, your offending fell in the upper end of the range of seriousness for a charge of trafficking simpliciter. I accept that this is so and note that the offending on this charge occurred some three months after the offending on Charges 1 and 2. Thus, you had not been deterred from involvement in criminal activity by the fact that the police had raided the address at 39 Pinewood Drive, Thomastown where the cultivation of cannabis was taking place.
16In relation to Charge 1, whilst I accept that the quantity of cannabis was towards the lower end of the range of seriousness for commercial cultivation, and clearly you are to be sentenced only for cultivation over the period of one week set out in the charge, it appears this was an activity in which you had become well and truly involved. This is indicated by the fact that the bedroom and kitchen at the Thomastown house where the crop was being cultivated show signs by reason of bedding, personal possessions and food that you and your partner were not merely visiting the premises fleetingly. Further, two electric toothbrushes were located by police in the bathroom of that house and subsequent DNA analysis indicated a match with yourself and your partner. Your role as a nurturer of a cannabis crop is also supported by the items suitable for the cultivation of cannabis found in the garage of your home at 4 Hastings Court, Epping. In addition, police located a rental agreement in your partner’s name for a storage facility in Deer Park. A search warrant was executed there and further items suitable for use in cultivating cannabis were located. These included grow tents, fertiliser, globes, power boards and exhaust vents. I accept the submission of Mr Batten for the prosecution that the possession of the equipment in the garage of your home and also in the Deer Park storage facility rebuts any innocent explanation given by you for your conduct in relation to these charges. I infer that your motive for this criminal offending was that of financial gain albeit that there is no evidence as to the nature or extent of that benefit.
17Mr Cao, the offending for which I must sentence you is very serious. There has been a paucity of information given to the Court about you. Mr Polak claimed that, “at some date prior to being arrested by police”, you and your partner had applied for “a protection visa”. When I queried the basis for such application, Mr Polak was unable to enlighten me. He ultimately told the Court that you and your partner are currently on a temporary bridging visa. There was no explanation given to the Court as to why you could not have applied for residential status in Australia over the period of three years following the expiration of your tourist visa. Nor was there any suggestion that you had suffered drug addiction or some other psychological or psychiatric problem which in some way might explain your offending. As already mentioned, there is a dearth of information before the Court about how you supported yourself over the years that you were in Australia prior to being arrested for this offending.
18It is clear that your offending on both Charge 1 and Charge 3 involved the potential for a significant amount of cannabis to find its way into our community. Although there is no material as to how or when distribution of either the crop being cultivated or the cannabis found in your car were to be distributed, the fact is that there are many people in our community who are addicted to cannabis and that takes a toll on their mental and physical health, as well as adding to criminal offending and, ultimately, resulting in a toll on our whole community. Many lives and relationships are ruined by illicit drug use. The crimes of cultivation and trafficking can be difficult to detect and consume a lot of police resources. The seriousness of the offending for which I must sentence you is reflected by the maximum penalty of 25 years’ imprisonment in relation to Charge 1 and 15 years’ imprisonment in relation to Charge 3.
19In sentencing you, this Court must denounce your criminal conduct and the predominant sentencing principle must be that of general deterrence, so that others who are minded to assist in the cultivation of cannabis or to possess it for the purposes of sale will know that it is not worth their while and they will be appropriately punished. It is important to note that, if it were not for people like you who are prepared to play a crop sitting role, those who instigate the cultivation enterprise could not prosper.
20In sentencing you, I take into account that you pleaded guilty to the charges at a relatively early stage for which you are entitled to a discount upon the sentence which otherwise would have been imposed. You have acknowledged your criminality, shown a willingness to facilitate the course of justice and saved the State the time and cost of a trial. I consider that the utilitarian benefit of your plea is higher because of the COVID pandemic during which no criminal jury trials have been conducted. I note your lack of prior offending, but find it difficult to evaluate your prospects of rehabilitation given the sparse material which has been put before the Court. It is possible that you have learned your lesson and may not be involved in further criminal activity, but I find it difficult to judge that factor because there has been no explanation for your offending put before the Court.
21In sentencing you, I accept that imprisonment has been more burdensome during the COVID pandemic because of the reduced amount of out of cell time to facilitate social distancing, the relative lack of programs in prisons and the prohibition on contact visits for prisoners. Some of these restrictions may be ongoing but it is not possible to know their nature and extent. I take that factor into account as best I am able, but it is not appropriate for me to speculate. I accept that you have found it hard being separated from your partner, Ms Nguyen, but unhappily separation from someone’s partner is a common consequence of criminal offending which results from an offender being incarcerated. Nevertheless, I accept that you have been worried about her welfare, particularly with her impending spinal surgery, the outcome of which is uncertain.
22Mr Polak asked that the Court take into account the risk that you will be deported. Whilst I understand that a sentence of 12 months’ imprisonment will enliven the Ministerial discretion to cancel your visa, the fact of the matter is that you had no entitlement to be here in Australia anyway beyond the three month term of your tourist visa. As I have already stated, there has been a lack of clarity about your visa situation and why it is that you did not apply for permanent residential status in the many years that you had in this country illegally prior to this offending. There is no evidence before the Court that, other than physically being in Australia, you have established any significant personal or business attachments in Australia or that you have invested in property here. It cannot be said you had been granted the right to live here and that deportation will deprive you of that right. Whilst I accept that you would have preferred to live in Australia because the standard of living is generally higher than that in Vietnam, there is simply no material upon which I could conclude that you would necessarily have been granted permanent residential status here in Australia. At its highest, deportation would mean that a possibility of you securing residential status has been lost. However, I accept that the sentence which I intend to impose will in all likelihood deprive you of the opportunity to settle in Australia and that, whilst you are serving a term of imprisonment, it may be more burdensome or create more anxiety for you because you know that, upon your release, you most likely will be deported. Although I take those matters into account, there is simply no evidence that your being deported back to your country of origin, where you have extensive family, will be a cause of hardship to you.
23Charge 1 is a Category 2 offence pursuant to paragraph (g) of the definition of Category 2 offence in s3(1) of the Sentencing Act. According to s5(2H) of that Act, a Court must make an order for a sentence of imprisonment (other than a sentence of imprisonment imposed in addition to making a Community Correction Order) unless the offender comes within the exceptions specified in sub-paragraphs (a) to (e). Mr Polak did not make any submission that the Court should find any of those exceptions applied in your case.
24I have previously referred to the importance of denouncing your conduct and placing emphasis upon general deterrence. The protection of the community by ensuring that large quantities of illicit drugs do not make their way into the community is also of great importance. Although this is not the most serious case of cultivating a commercial quantity of cannabis, the fact that 3 months later, you were found in possession of not much less than a commercial quantity of cannabis for sale in your car (Charge 3) seems to indicate a disregard for the law. Although the date of trafficking on Charge 3 is one day only, 11 May 2020, the quantity of cannabis found packaged in two separate containers in your car makes this charge a very serious example of a trafficking simpliciter charge and I have already commented upon the relative lack of mitigatory material put before the Court on your behalf.
25On Charge 1, cultivating a narcotic plant in a commercial quantity, you are convicted and sentenced to be imprisoned for a period of 15 months.
26On Charge 2, theft of electricity, you are convicted and sentenced to be imprisoned for a period of 3 months.
27On Charge 3, trafficking in a drug of dependence, you are convicted and sentenced to be imprisoned for a period of 30 months.
28The base sentence is that of 30 months imposed on Charge 3. I direct that 10 months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 3. Save for such cumulation, the sentences imposed are to be served concurrently.
29The total effective sentence is thus 40 months’ imprisonment. I direct that you serve a period of 30 months’ imprisonment before becoming eligible for parole.
30I declare a period of pre‑sentence detention of 256 days to be time reckoned as already served under the sentences imposed this day.
31Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 5 years’ imprisonment with a non‑parole period of 3 ½ years.
32Pursuant to s78 of the Confiscation Act I order the forfeiture to the State of the property referred to in the Schedule and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. A total of 12 items in Schedule include cannabis plants, dried cannabis, sample bags, a large bag containing cannabis, two large boxes containing cannabis, two electric toothbrushes, a disconnected electrical bypass, a small black notebook and a diary notebook.
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