Director of Public Prosecutions v Chu

[2018] VCC 1294

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00257
CR 18-00299

DIRECTOR OF PUBLIC PROSECUTIONS

v

SANG CHU
and
THAI CHU

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2018
DATE OF SENTENCE:	23 May 2018
CASE MAY BE CITED AS:	DPP v Chu & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 1294

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hamill	Office of Public Prosecutions
For Accused Sang Chu	Ms S. Lenthall
For Accused Thai Chu	Ms S. Stafford

HIS HONOUR:

1Thai Chu, you have pleaded guilty to one charge of cultivate a commercial quantity of a narcotic plant, one charge of theft of electricity and one summary offence of dealing with the proceeds of crime. 

2Sang Chu, you have pleaded guilty to the one charge of cultivate a commercial quantity of a narcotic plant.

3The facts of your offending are set out in Exhibit A, the prosecution opening. 
I was informed by both your counsel that I could treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence and
I sentence you on the basis of the facts set out therein.

4Very briefly stated, on 26 September last year police apprehended both of you after you fled from premises in Ferntree Gully, where a sophisticated hydroponic cannabis crop had been set up.  Some 138 plants and cannabis weighing a total of 99.89 kg were located and seized.  The electricity had been adapted to bypass the metre.  A vehicle owned by you, Thai Chu, was found in the driveway of the property.  A receipt for the rent on the property was in that car.  You, Thai Chu, also rented a storage container in Vermont in March last year.  Police searched that container and found a large quantity of hydroponic equipment stored therein.

5You both made "no comment" answers to the interviews when you were interviewed by the police.

6You both pleaded guilty at an early stage; you, Sang Chu, slightly earlier than Thai.

7Your personal histories are set out in the submissions filed by each of your counsel.  You, Thai Chu, were born in Vietnam.  Your parents were involved in the fishing industry.  You have two younger sisters in their early 20s.  You were schooled to Year 12 equivalent, before starting at a vocational college in Hanoi, however you left to work with your father as a fisherman. 

8You came to Australia in 2013 on a student visa, initially going to Queensland University of Technology, but then when you could no longer afford to continue that course you found work in Queensland and then later in Victoria, where you moved in 2015.  You have worked at fruit and vegetable farms, you have worked as a fishmonger.  You have worked for very little money on a daily return and you found yourself in a precarious financial position.  What money you did earn, a good proportion of it was sent back to Vietnam to support your mother, who was unwell.  You lived in Melbourne in a share-house in Footscray, then moved to another one in Springvale whilst you were working on the farms. 

9In 2017 you became unemployed and your counsel inform me that whilst you were unemployed you started frequenting a coffee shop where you met a man who inveigled you into criminal activity. 

10So far as your role in the offending is concerned, your counsel conceded that your role can be categorised as above a mere "sitter".  Such concession is clearly correct.  I am unable to say exactly what your role was, however your car, its contents and the Vermont storage container all indicate some higher level of involvement in the enterprise.  You resisted or rejected my suggestion that you could give evidence about these issues before me on your plea. 

11Clearly you were motivated by financial reward for your involvement.  You had cash in your possession and had recently paid cash, some $7,000, for your motor vehicle.  Other than that I cannot determine your precise role and certainly cannot find that you were a principal in the criminal enterprise. 

12I take into account the factors urged by your counsel in mitigation.  Firstly, your plea of guilty.  I accept that plea was made at an early opportunity and that it has spared the community the time and expense of a criminal trial.  It has significant utilitarian value.  You are entitled to a reduction to the sentence
I would otherwise impose to reflect your plea of guilty, and I will return to the effect of that reduction subsequently.

13I also accept that your plea is indicative of remorse for your involvement in the crime.

14I take into account your relative youth.  You were 24 at the time of your offending and clearly your rehabilitation assumes a greater significance.

15I take into account your absence of prior criminal history.  In Australia and indeed in Vietnam you are a man of prior good character being sentenced for the first time.

16Your time in custody will be onerous for you because of your limited understanding of English and your isolation from your family, and I take those factors into account in sentencing you.

17Your prospects of rehabilitation must be seen as good.  You have undertaken courses whilst you have been in prison to better yourself.  Your absence of prior convictions and the fact that you will be deported at the conclusion of your sentence all indicate that you are unlikely to re-offend, at least in this country.

18Turning to you, Sang Chu, you were born in Vietnam on 20 August 1990 and you are currently 27 years of age.  You will soon be 28.  You are the third of four siblings.  Your mother was a housekeeper and your father was a man who made ice blocks for the fishing industry.  You were educated to Year 12 level, then completed a four-year degree in banking and finance at the Vietnam University of Commerce.  Subsequent to that you decided to come to this country to further your education.  You were enrolled in a three-year Masters of Accounting course in Queensland, and after a few weeks of that course were advised that your family could no longer support you financially. 

19So, like your co-accused, you started working to support yourself.  You worked picking strawberries, you would go to Queensland during the winter months to work, you worked as a fish cleaner.  You again worked for relatively small return.

20You met your partner, Lai Thai Tran, in January 2014, and in 2016 your Australian visa expired.  Apparently you received some form of bridging visa.  In 2017 you discovered that your partner was pregnant and she was unable to continue work after August.  Exhibit SC2 is a letter written by Mr Van Kai Tran of the Oncall Interpreters and Translators, who informed me in his reference that:

21"In the past his wife had worked on a strawberry farm.  I was really surprised to learn that he broke the law.  He called me because his pregnant wife was about to give birth.  He needed some money to cover the hospital bill.  Due to his ill-considered thinking, Sang did the wrong thing and he asked me to help his wife."

22In short compass, as I understand it, you were told that you required some thousands of dollars to fund the birth of your child, and although ultimately you received some assistance from the Red Cross, you turned to this enterprise of cultivating cannabis as a means of making money.

23You have no criminal history, like your co-accused, and this is your first time in custody.  Your partner and your child have returned to Vietnam, so you will be particularly isolated in custody and I take the fact that you will find your time in custody more onerous than those with support in the community into account in sentencing you.

24You also pleaded guilty at an early opportunity, as I said before.  That plea has the utilitarian benefit I referred to before and, again, you have saved the community the time and expense of a criminal trial.  You are entitled to a reduction in sentence to reflect your early plea of guilty and I will return to the effect of that subsequently.

25I accept that your prospects of rehabilitation are good.  Since you have been in custody you have undertaken courses, and I refer to Exhibit SC4.  You are an educated man, you have no prior convictions, you have the support of your parents and partner, even though they are in Vietnam, and you will be returning to Vietnam when you are deported at the conclusion of your sentence. 

26I have considered the table of cases provided to me by the parties.  I take into account current sentencing practices as one of the relevant sentencing factors in this case.  However, clearly general deterrence is the predominant sentencing factor.  Those who involve themselves in the serious criminal activity of commercial cannabis cultivation will go to prison when they are detected.  Cultivation of a commercial quantity of cannabis is a serious and prevalent offence.  Principles of justice punishment and denunciation also require that  a term of imprisonment be imposed.

27Would you stand up please.

28Thai Chu, on all charges you are convicted.  On Charge 1, on the charge of cultivating a commercial quantity of cannabis, you are sentenced to two years' imprisonment.  On Charge 2, theft of electricity, you are sentenced to nine months' imprisonment.  On the summary charge of dealing with proceeds of crime you are sentenced to seven days' imprisonment. 

29I order that six months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, which I declare to be the base sentence.  The sentence imposed on the summary charge will be served concurrently.  That is a total effective term of imprisonment of two years and six months, and I order that you serve 20 months of that sentence before being eligible for parole.

30You, Sang Chu, on Charge 1, the one charge of cultivating a commercial quantity of cannabis, you are convicted and sentenced to a term of imprisonment of 18 months.  I order that you serve 12 months of that sentence before being eligible for parole. 

31In respect of both of you I declare 239 days, not including today, of the sentences imposed have already been served by way of pre-sentence detention.

32I make the forfeiture and disposal orders sought by the prosecution. 

33And I indicate pursuant to s.6AAA of the Sentencing Act that but for your pleas of guilty you, Thai Chu, would have been sentenced to an effective term of imprisonment of three and a half years, with a non-parole period of two and a half years; and you, Sang Chu, to an effective term of imprisonment of two years and three months, with a non-parole period of 18 months.

34Are there any further orders required?

35COUNSEL:  No, Your Honour.

36HIS HONOUR:  All right, would you remove - are you going to see them downstairs?

37MS STAFFORD:  I will be, Your Honour.

38MS LENTHALL:  Yes, I will, Your Honour.

39HIS HONOUR:  Thank you, Madam Interpreter.  I hope they understand what I've done and their counsel will come and see them downstairs.

40Adjourn the court until 10 o'clock tomorrow morning please.

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