Director of Public Prosecutions v Cu

[2020] VCC 1954

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-01180

DIRECTOR OF PUBLIC PROSECUTIONS

v

KHUONG CU

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2020
DATE OF SENTENCE:	3 December 2020
CASE MAY BE CITED AS:	DPP v Cu
MEDIUM NEUTRAL CITATION:	[2020] VCC 1954

REASONS FOR SENTENCE

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Subject:  Plea - sentencing

Catchwords:             Cultivation of a narcotic plant (commercial quantity)

Legislation Cited:     Sentencing Act 1991

Cases Cited:

Sentence:                 5 years’ imprisonment, 3 years non-parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Holmes	Office of Public Prosecutions
For the Accused	Mr J. Siggins	TQH Lawyers & Consultants

HIS HONOUR: 

1Khuong Nghiep Cu, you have pleaded guilty to one charge of cultivation of a narcotic plant, namely, Cannabis L, being a commercial quantity.  The maximum penalty for this offence is 25 years' imprisonment. 

2A commercial quantity for Cannabis L is prescribed as being 100 plants or 25 kilograms. 

3I note that this offence is what is known as a Category 2 offence, which means that I must impose a custodial sentence alone for this offence unless certain criteria apply - which do not in your case.

4You are now aged 40, having been born on 15 June 1980, and you were 35 at the commencement of the offending in early 2016. 

5You have no prior convictions or subsequent matters. 

6You have four children and a partner and were living in Chelsea Heights at the time of the offending.

7The detail of your offending is particularised in the prosecution summary, which is now Exhibit A. 

8In essence, your offending involved you arranging the rental of no fewer than eight residential properties in suburban Melbourne between January 2016 and November 2019 for the purposes of the hydroponic cultivation of cannabis.  Your modus operandi involved you approaching the landlord of an advertised property for rental with a fictitious name and driver's licence in order to disguise your true identity.

9Police subsequently discovered cannabis cultivation at the various properties to the following extent: 

·     140 plants total weight 7.377 kg at Burwood East in May 2016

·     77 plants total weight 6.62 kg together with 392 g loose bud at Glen Waverley in March 2017

·     139 plants total weight 11.1 kg at Clayton in December 2019

·     69 plants total weight 12.167 kg at Huntingdale in January 2020

·     112 plants total weight 40.6 kg at Mount Waverley in January 2020

·     153 plants total weight 36.14 kg at Bentleigh East in February 2020

·     17 plants total weight 21 kg at Glen Waverley in May 2020

·     157 plants total weight 31 kg at Glen Waverley in July 2020

10In one of the properties it was evident that a previous crop had been harvested; in another evidence of a crop being harvested.  In five of the properties power had been bypassed, and in four of the properties the buildings had been damaged. 

11Across all properties the total number of plants was 864, weighing 166 kilograms.  The quantity cultivated equates to more than eight times the prescribed commercial quantity of plants, and over six times the weight value. 

12You were arrested and interviewed on 28 May 2020.  You denied any association with the rental of premises or knowledge of the cannabis crops.  In essence, your answers in the interview were replete with false denials. 

13The matter resolved a day before the contested committal listed on 25 September 2020. 

14I now turn to your personal circumstances. 

15You are currently 40 years old.  You were born in Vietnam and were educated to age 18.  When you came to Australia you were initially educated at Noble Park Language School, after which you completed one year of a two-year Diploma in Banking and Finance. 

16You are an Australian citizen.

17You were raised in a loving and caring family and have four siblings, all of whom reside in Melbourne.  They are each gainfully employed and none has been in trouble with the law. 

18Your aged parents live in Springvale and have never separated.  Neither of your parents has been in trouble with the law and you continue to maintain close contact with them.

19You have been able to manage continuous employment for the most part, working on a production line for many years as well as factory work and engagement as a handyman/maintenance person.  For approximately one and a half years before your arrest you had been assisting your brother-in-law three to four days per week as a subcontracted stonemason installing kitchen and bathroom benches in domestic residences.

20You have had only one long-term partner, your current partner, who is 36 years of age.  You have been together for approximately 18 years and together you have four children: a son aged 15 and daughters aged 17, 9 and 7.  Your partner is very supportive of you notwithstanding your current predicament.

21For approximately two years prior to your arrest you were sometimes in the habit of playing the pokies and gambling via the TAB.  At times you gambled day and night and on weekends. 

22Your explanation for the offending was that others had given you the job of renting the properties where the cannabis was grown and provided fraudulent documents to you for that purpose.  You maintain that you were paid between $500 and $1,000 for renting a house but were never involved in setting up the cannabis or in looking after the plants or in paying the ongoing rent.  

23Whilst you assert that it was just your job to rent the houses, after a while you got to know about what was happening at these houses and you were an important facilitator of the operation.

24A psychological report from Mr Jeffrey Cummins was tendered on your plea.  Apart from mild depression and anxiety consistent with a reactive state to your arrest and having been charged and facing incarceration for an extended period, you have no mental health issues. 

25The circumstances of your offending are very serious.  Whether you acted alone or in company with others, as the renter of the properties you might properly still be described as a principal offender.  The offending was planned, you provided false details to disguise your identity, it extended over a four and a half-year period and involved multiple properties.

26The continuing provision of properties represents an essential part of what became a sophisticated commercial criminal operation for the clear purpose of making substantial profits from the sale of cannabis.  The development of the business appears to have been accelerating into 2020.  The last four properties were all rented in November 2019.

27Whatever label might be applied to your role, the gravity of your offending was high, represented by your continued facilitation of appropriate properties and the ultimate quantity and weight of the cannabis across the combined properties.  You have admitted that you knew the intended purpose of the rentals 'after a while'; however, the use of an alias and false documentation from the beginning suggests that you were aware of a very likely serious illegal use right from the start.  Your role is readily distinguishable from, and well above, that of the hapless ‘crop sitter’ in a one-off production.

28You were also well educated and came from a caring family.  No doubt your parents, who came from Vietnam, worked very hard and you received a good education and start to your adult life.  You also had the care and support of a long-term partner and the joy of four children.  You knew what you were doing and the risk that was involved.  The only motivation was for money and it was a calculated risk.  Your culpability for the offending is high.

29General deterrence is an important consideration for the offence of cultivating a commercial quantity of cannabis and particularly as an example for those who may be similarly inclined to operate at this level. 

30In mitigation I take into account the following: 

·     your plea of guilty and the early time that it was made for its utilitarian effect and as some evidence of remorse;

·     the more onerous conditions in custody that you have and will likely continue to be subject to for at least the immediate future due to the COVID-19 pandemic;

·     your lack of any previous convictions;

·     your continuous employment record, which reflects a capacity for resilience and self-discipline;

·     your expressed shame and embarrassment;

·     your strong family support; and

·     your responsible attitude to prison remand, including the work and rehabilitative courses that you have undertaken.

31I accept that your prospects of rehabilitation are good.

32Mr Cu, I will now deliver your sentence. 

33On Charge 1, cultivation of a narcotic plant in a commercial quantity, you are convicted and sentenced to five years' imprisonment.

34I direct that you serve a minimum period of three years' imprisonment before being eligible for parole. 

35Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 189 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

36For the purposes of s.6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed is a term of imprisonment of six years with a non-parole period of four years. 

37At the plea hearing the Crown sought an order for the disposal of various items seized by police at the addresses.  You have consented to that order and I have made that order today.

38That concludes my sentencing remarks.  Are there any other matters from either counsel?

39COUNSEL:  No, Your Honour.

40HIS HONOUR:  Thank you very much, counsel, for your assistance.  Adjourn to 2 o'clock, please.

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