Director of Public Prosecutions v Chu

[2015] VCC 1379

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01158

DIRECTOR OF PUBLIC PROSECUTIONS

v

AN QUOC CHU

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2015
DATE OF SENTENCE:	23 September 2015
CASE MAY BE CITED AS:	DPP v Chu
MEDIUM NEUTRAL CITATION:	[2015] VCC 1379

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr H. Shaw
For Offender Chu	Mr A. Malik
For Offender Nguyen	Ms Z. Garde-Wilson

HIS HONOUR: 

1An Quoc Chu, you have pleaded guilty to one charge of cultivate a narcotic plant, Cannabis L in a quantity not less than a commercial quantity.  This charge has a maximum penalty of 25 years' imprisonment.

CIRCUMSTANCES OF YOUR OFFENDING

2I turn to the circumstances of your offending.  On 12 March 2015, you were arrested after a police raid on the premises at 665 Ballarat Road, Ardeer.  These premises will be referred to as the Ardeer house.  You had been an illegal immigrant in Australia since 16 June 2010.  You had been living at Ardeer house for three weeks prior to the police raid.  You were responsible for maintaining and nurturing the cannabis crop at the Ardeer house.  You are properly described as the “crop-sitter”.

3I will now turn to the summary prepared by the prosecution.  At about 7.30 am on 12 March 2015, police executed a warrant at the Ardeer house.  The police forced the front door which was fortified with metal bars.  They searched the house and found three rooms set up for the purpose of cultivation of cannabis.  One other room was being used by you as a bedroom.  The police searched the bedroom and found a trapdoor concealed underneath a piece of cardboard in the built-in wardrobe.  Police opened the trap door, revealing a ladder that led underneath the house.  You were hiding in the subfloor area.

4You fled the house through a door that gave access from outside the house to the subfloor.  You jumped over a side fence of the property.  The police pursued you on foot.  The police apprehended you and took you back to the Ardeer house.  The Ardeer house had been modified for the purpose of cannabis cultivation.  Plasterboard had been set up as false walls in order to conceal a functioning hydroponic set up in each room.  Plasterboard and black plastic were used to cover the windows of these rooms.  Inside each room, a reticulated watering system was used to water and feed the cannabis plants.  There was high-powered lighting suspended from the ceiling to help with the growth of these plants.  Chemicals were used to sustain the growth of the cannabis.

5During the search, police located several items of identification namely passports, drivers' licences and foreign documents which had photograph identification of a person in the name of An Quoc Chu and Quoc An Chu.  Several vehicles were parked on the property including a silver 2005 Holden Astra registered UAC 946 which you admitted to police you used.  A botanist attended at the Ardeer house.  The botanist confirmed that at the time of the search, there are 111 cannabis plants at various growth stages.  The commercial quantity applicable to cannabis is 100 plants.  That is Charge 1.

6The police seized from the Ardeer house the following items:  111 plants weighing a total of 17.5 approximately kilograms, 34 light globes, 35 light shrouds, 36 electrical transformers and 2 power boards.  You were taken to the crime command at St Kilda Road police complex where you were interviewed.  During the interview, you made full admissions to cultivation of the cannabis at the Ardeer house.

7The number of cannabis plants qualifies your offence of not less than the commercial quantity.  The weight of the plants does not meet that category of offending on its own.

8Your role as the crop-sitter is an integral role in the business of illegal cannabis cultivation.  You need to be trusted, discreet, and able to perform the tasks necessary to keep the crops and the premises in good order on behalf of the organisers, in this case, Mr Nguyen.

YOUR PERSONAL CIRCUMSTANCES

9You are now 55 years old.  You were born in Vietnam and came to Australia on a business visa.  You overstayed your visa.  In June 2015, you were discovered by the Department of Immigration and classified as an illegal immigrant.  You were allowed to stay in Australia and now offended.

10You are one of six children.  Your father passed away in 2003.  Your mother is aged 94 and is alive and lives in Vietnam.  You grew up in the time of the American War.  You were educated to the equivalent of Year 11.  You were then conscripted into the army.  After your army service between 1982 and 1989, you studied and worked in Czechoslovakia.  This work and study was in the construction industry.  After Czechoslovakia, you returned to Vietnam and operated a taxi business which went broke.  You then commenced a tailoring business until 1995.

11In 1996, you took advantage of an Australian government business visa program and came to Australia.  Since you have been in Australia, you have worked on farms.  In 2014 whilst living in Melbourne, you were involved in a motor vehicle accident.  You were indebted to the other party in the accident to the tune of $11,000.  You were recruited to be a crop-sitter and offered payment for your work.  You were a crop-sitter for two to three weeks.  Your role was to water and feed the plants.  You were to receive $500 per week and a bonus of approximately $3000 at the end of the crop.

12On 12 March 2015, you were arrested and have been on remand for this offence since that date.  At the time of your police interview, you made full admissions about your involvement in this offence.  On 6 July 2015, you pleaded guilty to this offence at your committal mention.  I accept your plea is made at the earliest opportunity.

THE SENTENCING CONSIDERATIONS

13The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both general and specific, rehabilitation, denunciation and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offence, your culpability for it, and your personal circumstances.  I am required to balance the interest of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, offenders are rehabilitated and reintegrated into society.  In your case, that will be deportation to Vietnam.

14I have taken into account that you have no prior convictions and have lived in this country for almost 20 years.  Most of that time you have been employed as a farm labourer.  I have taken into account your plea of guilty.  The Crown agrees that your plea is made at the earliest stage.  At the time of your interview with police, you made full and frank admissions to your criminal conduct.

15A plea of guilty by you to this charge has a utilitarian value to the community.  Your plea of guilty has saved the community the expense of court expenses for committal and trial, the prosecution of the trial and the costs of defending you at trial.  Your plea of guilty has given a certainty of outcome for the community at large.

16Your plea of guilty is evidence of your remorse.  I accept that you are remorseful for your offending.  Your plea of guilty to this charge is a clear display of your willingness to facilitate the course of justice in the community.  Your plea of guilty also indicates your acceptance of your criminal activity between February and March of 2015.

17The seriousness of this offence is demonstrated by the maximum penalty of 25 years' imprisonment.  Whilst I accept your role was menial in nature and over a relatively short period of time, it is a necessary role for the cannabis crop to flourish.  A consideration of general deterrence is to be given most weight in cases of cultivation of a commercial quantity of cannabis.

18I accept that at age 55 and with no prior convictions, that specific deterrence plays a lesser role than general deterrence in your case.  I also take into account current sentencing practices and statistics in fixing your sentence.  Of course your case is peculiar to its own facts as each other case is to any other in considering sentencing practices.  In your case, your role is at the lower end of the range of this offence and is over a short period of time - as I say, two to three weeks.

19Would you stand please.

20On Charge 1, you are convicted and sentenced to 12 months' imprisonment.  I declare you have served 195 days pre-sentence detention which will be deducted administratively from your sentence.  That is a total effective sentence of 12 months.

21Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to 30 months with a minimum period of 20 months' imprisonment.  You may be seated.