Director of Public Prosecutions v Chau, Kia
[2012] VCC 2068
•14 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01447
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIA CHAU |
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JUDGE: | His Honour Judge Gucciardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 14 November 2012 | |
CASE MAY BE CITED AS: | DPP v Chau, Kia | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2068 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Jankovic | |
| For the Accused | Mr J. Balos |
HIS HONOUR:
1 Kia Chau, you pleaded guilty to one charge of cultivation of a narcotic plant namely cannabis L in a quantity that was not less than a commercial quantity applicable to that narcotic plant.
2 In late August 2011, you rented a house at Tarneit and a little time later you rented the house next door as well. This was in November 2011.
3 In late February 2012, Country Fire Authority attended to a fire at the first property. The firemen found a hydroponic cannabis crop inside.
4 Later on, on 1 March, police searched the property.
5 A number of rooms contained a cannabis plantation. A portion of the fence separating the two house had been removed to allow access from one property to the other. The second property also contained cannabis plants.
6 The first house had five rooms and each contained cannabis plants much like the second house which also had five rooms each containing cannabis plants.
7 The number of the plants and their weight excluding the root systems are listed in the summary of prosecution opening which was tendered by the prosecution.
8 Each room of the two houses had globes, light shrouds and transformers. Timers, power boards, charcoal filters were found in both houses.
9 The total number of plants seized was 602. The total weight seized was 256.52 kilograms.
10 Some eight days later, you went to the Werribee Police Station with your solicitor. You were interviewed. You told police you had come in because you felt guilty. You told them that your involvement had started only a few months before when you moved to Victoria.
11 You said you met someone called Michael in a club who asked you to do this.
12 You owed him $8,000, which he lent you, for you to play the pokies at Crown Casino and which you lost.
13 You indicated that he said that if you assisted him , the debt would be erased in effect and you could make a little extra money. When you needed anything, you should call him. He gave you a new sim card for the phone and some money.
14 Cultivation of a narcotic plant in a commercial quantity is a serious criminal offence which carries a maximum penalty of 25 years' imprisonment. By this penalty, the law clearly indicates the level of seriousness involved. The community is blighted by drugs and narcotics and it looks to the court to denounce this conduct and punish this behaviour. The court must indicate in clear terms that those like-minded will face stern punishment. General deterrence must therefore be a primary consideration in this sentence.
15 That of course is the starting point and I must take into account a number of matters which involve endeavouring to deter you specifically from such further offending as well as taking your personal circumstances into account.
16 The first matter is your plea of guilty. I will accord it a discount upon your sentence. It was offered at the earliest opportunity. I accept that consistently with your admissions to police and your expression of guilt to them, your plea is accompanied by remorse.
17 You have no prior criminal history and you do not have any future pending matters to go before a court.
18 You are 43 years old. You described yourself to police as a crop sitter. This description of your role is not contradicted by the prosecution who have charged you with on one-day cultivation, that being 29 February.
19 Further, despite the clear sophistication of the set-up, particularly the electrical circuitry, you have not been charged over the electricity theft and this tends to support the definition of your role as involved in the crop by way of general supervision and the duties of a custodian. Though your motivation was clearly monetary, there has been no evidence of any betterment much less enrichment relied on by the Crown.
20 I accept that this was your role.
21 Although the scenario recited by you about how you came to be involved in this criminal enterprise is one which is often heard in these courts and these types of cases, particularly by those of Vietnamese ethnicity, and may give rise to the suspicion that this is a convenient script being recited by the guardian who gets caught by police, it is also true to say that the court sees many such instances which confirm that the explanation given is true. So while there may be some suspicion, it is within the realm of probability.
22 There is nothing factually in this case which runs counter to this self-defined role and as I have said, some elements confirm its likelihood.
23 In all, I am satisfied that you were a sitter motivated by greed. Although it is also true that your personal predicament at the time explains your desire for financial security.
24 You were born in Vietnam. You came to Australia in 2004, after fourteen years in a refugee camp in the Philippines. While you waited those inordinate number of years, you relieved the wait by marrying. You then moved eventually to Sydney. You separated from your wife in 2010. You have three daughters aged eight, fifteen and eighteen. Your fifteen year old daughter is a child with special needs. She has some psychiatric and psychological issues. The eighteen year old works and has visited you on one occasion whilst on remand.
25 It is likely in this context that your reclusion will be relatively isolated. Your background is that of rural work in Vietnam. You have little educational attainments and although you learnt to read and write Vietnamese, this is the only basic literacy you have achieved.
26 In Sydney you had work removing asbestos and you came to Victoria after your separation , looking for work on a farm.
27 Your own family are all in Vietnam although you have had regular contact before your arrest and you did return there for a short time in 2011.
28 You told Mr Jeffrey Cummins, an experienced forensic psychologist who provided the court with a report, that you had relocated to Melbourne in order to earn enough money to take your two youngest children to Vietnam to visit your mother who is ill. You regularly have sent her money.
29 You also expressed remorse and regret to him and I accept that you are remorseful and have experienced a sense of shame that your behaviour has jeopardised not just yourself but your ability to provide for your children in particular.
30 You have gained valuable insight and you do not exhibit anti-social or any personality disorder and your concerns have primarily and appropriately been with your children, particularly your daughter who suffers from intellectual disabilities about which I read some medical reports.
31 I accept that your prospects of reoffending are relatively low and that your prospects of rehabilitation are reasonable.
32 Your absence from family and inability to contribute to it has brought home to you in a clear way the foolishness of your actions.
33 The sentence of the court must in these circumstances be one of imprisonment. However, whilst recognising that cultivation is often a sophisticated enterprise which could not be undertaken without sitters or custodians, the role played by you is relatively low from a culpability point of view and the sentence needs to be moderated accordingly.
34 But for your plea, I would have sentenced you to 4 years with a non-parole period of 2 ½ years.
35 You are convicted and sentenced to 3 years' imprisonment.
36 I will order a non-parole period of 20 months.
37 I will order that you undergo a forensic procedure for the taking of a biological sample for placement on the database.
38 I should tell you that when the police come to obtain such a sample, if you do not consent to them taking it, they are authorised to use reasonable force to obtain a sample of blood.
39 HIS HONOUR: Do you understand?
40 PRISONER: (Through Interpreter) Yes.
41 HIS HONOUR: I order that the equipment and plants listed in the Schedule attached to the disposal order be forfeited and destroyed.
42 I hand down the orders that I have signed in terms of disposal and 464ZF.
43 Is there an agreed pre-sentence detention period?
44 MS JANKOVIC: Your Honour, I have calculated 250 days and express that to my learned friend.
45 HIS HONOUR: I declare that you have served 250 days by way of pre-sentence detention. I will have that noted in the records of the court.
46 Are there any other orders that I need to make?
47 MS JANKOVIC: No, Your Honour.
48 HIS HONOUR: Thank you, Madam Interpreter. Thank you, Mr Chau. You can leave.
49 PRISONER REMOVED
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