Director of Public Prosecutions v Cao
[2018] VCC 948
•13 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02115
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CUONG QUOC CAO |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2018 | |
DATE OF SENTENCE: | 13 June 2018 | |
CASE MAY BE CITED AS: | DPP v Cao | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 948 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Cultivating commercial quantity of cannabis L; lack of prior convictions; role in cultivation of cannabis; general deterrence; good prospects for rehabilitation; denunciation
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic);
Cases Cited: Ngoc Nguyen v The Queen [2017] VSCA 286
Sentence:Term of imprisonment of 2 years and 3 months, non-parole period of 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E. Selez | Office of Public Prosecutions |
| For the Accused | Mr J. Van Arkadie | Victoria Legal Aid |
HIS HONOUR:
1 Cuong Quoc Cao, you have pleaded guilty to one charge that on 22 June 2017 you cultivated in a narcotic plant namely cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant. It is my task now to sentence you for that offence.
2 The circumstances of your offending are set out in a summary of prosecution opening which was tendered as Exhibit A on the plea.
3
You are a Vietnamese citizen who came to this country on a tourist visa on
27 April 2016. That visa expired on 27 July 2016. About 11 or so months later, on 22 June 2017, police observed you driving a Holden Commodore registered in your name, into the garage of the premises at 59 Fremantle Drive, Wantirna South. You were seen collecting rubbish bins from the footpath and then closing the garage door from the inside.
4 Later that evening police executed a search warrant at that address. You were located and arrested in the kitchen/dining room of the house. Further investigation revealed that seven rooms in this house, including the kitchen, were dedicated to the cultivation of cannabis. Lights, shrouds, fans and irrigation piping were being utilised to cultivate the cannabis. An electrical bypass had been also installed. Ultimately police seized 228 cannabis plants weighing a total of 152.94 kg.
5 Photographs taken by investigators tendered as Exhibit B on the plea, show that an extensive and sophisticated system of cultivation was being employed. The nature and scale of this system was obviously geared to ongoing commercial production and speaks very much of a professional operation.
6 You were taken back to Croydon police station on that evening, however, a Vietnamese interpreter was not available and you could not participate in a record of interview. Whilst being remanded by a bail justice with the aid of a Vietnamese interpreter over the phone, you indicated to police that you wanted to tell them something. You were then questioned in circumstances which did not comply with the requirements of section 464 of the Crimes Act 1958.
7 On the plea I was nevertheless asked to take into account what you told police at that time. You said that you had been hired to work at the house by the owner. You said you only knew the owner’s first name and would normally meet him at a coffee shop in Sunshine. You said that you worked with another person by the name of Cu-Anh but did not know that person’s surname. You told police that you knew the plants being grown at the house were cannabis plants and that you knew cannabis was illegal. You explained to police that you had been shown how to put substances into the plants. You had seen one crop harvested and you believed that the owners were preparing to harvest a second crop. You admitted that you assisted in the harvesting of a crop.
8 You said that you had been paid a “couple of thousand - 5000”. When asked how long you had been engaged in cultivating cannabis you told police, “I just started for a month”.
9 After that interview you were remanded in custody and have remained in custody since. At a further committal mention hearing on 19 October 2017 you were committed to stand trial in this court and at the time indicated a plea of not guilty to this charge. I am told that you gave that indication on the basis of legal advice with respect to concerns about the admissibility of the admissions you made on the night of your arrest. Ultimately, you indicated your preparedness to plead guilty to this charge on 2 February 2018.
10 Your plea of guilty is an important matter to take into account. You did not contest the committal proceedings and your plea has avoided the need for a trial. It follows that your plea of guilty has facilitated the course of justice and demonstrates a willingness to accept responsibility for your role in this offending. It is also significant in my view that you were prepared to make material admissions as to your involvement on the night of your arrest. Accordingly, whilst the plea was not entered at the earliest opportunity, it still has considerable force in mitigating the penalty that might otherwise have been imposed.
Personal Circumstances
11 You were born on 25 June 1982 and are now 35 years of age. You are married, you have two children aged eight and four. As the now oldest child in your family, you also have responsibility for the care of your elderly parents who live with your wife and children. Your elder brother died about 20 years ago and your younger siblings live in Southern Vietnam, far away from the rest of the family.
12 You were born and raised in North Central Vietnam. Your father worked as a truck driver but was seriously injured in a work related accident which rendered him unable to walk. Your mother worked selling vegetables at the local market to support you and your three siblings. She has been diagnosed with ovarian cancer and over recent years her health has deteriorated significantly.
13 You were educated to mid secondary school level but could not progress because your family was unable to afford to send you to a tertiary institution. You instructed your counsel Mr Van Arkadie, that you have had a consistent work history in Vietnam mainly as a truck driver delivering goods across the country.
14 Through Mr Van Arkadie you explained that in Vietnam you struggled to support both your wife, children and parents. You took out a loan in part to pay for your mother’s medical treatment and in part to pay for the trip to Australia where you hoped to earn much more money than was possible in Vietnam. When you came to Australia you worked variously as a handyman, a kitchen hand, a fruit picker and in an Asian grocery. You say that you continued to fund your mother’s medical treatment, at a cost of A$5,800 for each cycle of chemotherapy.
15 In a letter that you wrote for the purposes of this plea hearing, which has been translated into English, you explained how you came to be involved in this offending. You met a Vietnamese man at a friend’s place where you had gone seeking financial help. You were distressed about your financial situation and you were told that this work would help pay your debts. You agreed to be involved because you say you were financially desperate. You say in that letter that you worked at this property for 10 days before your arrest, although you told police on the night that you had been working there for about a month.
16 The loan in Vietnam was secured against your home and ultimately because payments could not be continued it was repossessed. Your family now live in rental accommodation. When you finally return to Vietnam I am told that you will still owe approximately A$3,000.
17 Mr Van Arkadie, acknowledged the seriousness of this offending, the 25 year maximum penalty and the need to emphasise sentencing purposes such as deterrence, denunciation and just punishment. He also acknowledged that having regard to the nature and scale of this operation, and the fact that 228 plants weighing 152.94 kg of cannabis had been seized, that this was objectively serious.
18 As to your role, he submitted that it should be accepted that you were acting under instructions to care for and harvest this cannabis. There is no evidence nor any suggestion that you were involved in the procurement or set up of the equipment and materials found at the house. Nor was there any evidence or suggestion that you had anything to do with locating the premises, funding the cultivation, recruiting others to be involved or that you were involved in the sale or distribution of the cannabis.
19 He also relied on the fact that no prior matters have been alleged, you were cooperative with police on the night of your arrest and have spent the last 350 days in custody in circumstances where you have very little English and are far away from your family.
20 Mr Trotman, who appeared on behalf of the Crown, submitted that whilst your role might be characterized as a “crop sitter”, people performing that role play an integral part in the operation of criminal syndicates that cultivate commercial quantities of cannabis. They enable those responsible for running these operations to significantly limit their exposure to detection and punishment. You engaged in this activity purely for financial gain, you performed a hands-on role, which included harvesting the cannabis, all the time appreciating what you were doing was illegal.
21 Mr Trotman emphasised the fact that this type of offending was prevalent and that it was important, therefore, that the sentence imposed here seek to deter others from like offending. As such, a sentence of imprisonment amounting to time already served would not adequately reflect the punitive sentencing purposes that require emphasis.
Analysis
22 In the decision of Ngoc Nguyen v The Queen [2017] VSCA 286; at [27] the Court of Appeal referred to the various factors that are relevant to a proper assessment of the gravity of the offending in a case such as this.
‘Those factors ordinarily include matters such as the tasks performed by the offender in the enterprise, the nature of his relationship with the principals or leaders of the enterprise, the degree of trust and responsibility reposed in the offender, the size, scope and sophistication of the enterprise, and any expectation of the offender in respect of rewards to be derived from the enterprise.’
23 Taking those matters into account I must accept the Crown submission that a sentence of imprisonment amounting to time served would not be appropriate. Even accepting the matters put forward by Mr Van Arkadie as to your limited role, the fact is you, Mr Cao, knowingly involved yourself in a sophisticated criminal enterprise and played an important and trusted role in maintaining that enterprise. On the other hand, your personal circumstances, particularly your lack of prior convictions, your family situation in Vietnam and your plea of guilty, suggest that you do have good prospects for rehabilitation. The sentence that will be imposed will therefore attempt to facilitate that rehabilitation to the extent that that is possible, in these circumstances.
24 Cuong Quoc Cao, on the one charge of cultivating a narcotic plant at not less than a commercial quantity you will be convicted and sentenced to a term of imprisonment of 2 years and 3 months.
25 I will fix a non-parole period of 15 months.
26 Pursuant to s18 of the Sentencing Act 1991 I will declare that 356 days should be reckoned as already served.
27 I will further declare that pursuant to 6AAA of the Sentencing Act that but for your plea of guilty you would have been sentenced to a term of imprisonment of 3 years and 6 months with a non-parole period of 2 years and 3 months.
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