Director of Public Prosecutions v Dai Duy Le

[2016] VCC 557

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-16-00128
Indictment No.  F13771432

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAI DUY LE

---

JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	28 April 2016
DATE OF SENTENCE:	4 May 2016
CASE MAY BE CITED AS:	DPP v Dai Duy Le
MEDIUM NEUTRAL CITATION:	[2016] VCC 557

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW
Catchwords:            Sentence – cultivation of narcotic plants – commercial quantity – “sitter”

Legislation Cited:     Drugs, Poisons and Controlled Substances Act 1981, s72A; Sentencing Act 1991; Crimes Act 1958; Confiscation Act 1997

Cases Cited:Phillips v The Queen [2012] VSCA 140; Phillips v The Queen (2012) 37 VR 594

Sentence:                  Convicted and sentenced to a period of imprisonment of 15 months with a non-parole period of nine months

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. McLure	Solicitor for the Office of Public Prosecutions
For the Accused	Mr T Bourbon	Victorian Legal Aid

HIS HONOUR:

1       Dai Duy Le, you have pleaded guilty to an offence that you, at Wollert, in Victoria on 10 November 2015, cultivated a narcotic plant, namely Cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant.

Such crime is contrary to s72A of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 25 years’ imprisonment.

2       The prosecution has prepared a written summary of the circumstances surrounding the offending.  Such summary has been marked as an exhibit (Exhibit 1) and has been accepted by you and your counsel as an appropriate representation of the offending.  The important matters of such summary are:

(a)A property situated at 45 Paramount Road in Wollert (just north of Epping), was rented to a person with the surname Pham on 18 July 2015;

(b)A gardener who was attending the property on 10 November 2015 noticed that there were some signs that the property had been broken into and, accordingly, the estate agent was notified, causing an inspection of the property to be made.  Such an inspection revealed that there was a cannabis set-up in one of the rooms;

(c)The police were notified and, with the assistance of CCTV footage, it was established that a dark-coloured Ford was attending the property daily over a number of days.  The inspection revealed that an illegal electrical bypass had been connected to the property’

(d)On 10 November 2015, you arrived in the street driving a dark blue Ford vehicle and, on observing a policeman, immediately did a U-turn at another address in the street.  Subsequently, your vehicle was intercepted by police and initially you suggested you were picking up a friend, which was later proved to be wrong and, also, there was some T-type pipe fittings in your car consistent with the pipe used in the hydroponic set-up at the property.  Furthermore, keys used by you also had a key which opened the property at 45 Paramount Road;

(e)On 10 November 2015, you were arrested and transported to the Mill Park police station for an interview, which was undertaken with the assistance of a Vietnamese interpreter.  Amongst other things, you informed the police:

(i)That about two months ago you had been contacted by a person to do a repair job at the house and later, about two weeks ago, you had been contacted again and offered the sum of $1,000 plus travelling expenses, to water the cannabis plants at this property;

(ii)When asked whether the job was legal, you were told that cannabis cultivation had been legal in Australia and you were shown a news article saying that cultivation of cannabis had been so legalised;

(iii)You had commenced about two weeks ago but had yet to be paid any money.  It was your duty to use a hose to water the cannabis plants on a daily basis and to fix the irrigation if it was obstructed or blocked.  You were planning to continue working there until “they harvest”.

(iv)When asked why you pulled into another house when you were initially intercepted by the police, you stated that when you saw the police you “thought I had committed the wrong thing”.

(f)On 11 November 2015, a search warrant was executed at the property and the following items were located and/or seized:

(i)Documentation in your name;

(ii)Sixteen cannabis plants;

(iii)In “room three”, nine cannabis plants;

(iv)In “room four”, five cannabis plants;

(v)In “room seven”, eighteen cannabis plants;

(vi)Charcoal filters, transformers, power-board, timer, shades and light globes and other items;

(g)There were 48 plants seized, together with some dry cannabis located in the kitchen drawer.  The total weight of the cannabis was 39.2213 kilograms.  The subject offence is constituted by either 25 kilograms or 100 plants, or both.

3       Counsel for the prosecution accepted that you could be described as a “crop-sitter” who was not involved in the initial set-up at the property.  Furthermore, it was accepted that your plea of guilty was at the earliest opportunity, being at the committal mention stage.  At the time of the plea you had been in custody for a period of 170 days up to, but not including, 28 April 2016.

Your personal circumstances, education and vocational background

4       Your counsel tendered the following documents:

(a)      Defence submissions on plea (Exhibit A);

(b)      Remand Report (Exhibit B).

5       Partly on the basis of these documents and other submissions made by your counsel, I note the following:

(a)Your counsel confirmed that you are a 27-year-old single man who was born on 8 June 1988, in the Nghệ An Province of Vietnam;

(b)You grew up with your mother and father, together with two sisters and one older brother.  Your father practises as a doctor and your mother performs home duties.  You describe your upbringing in a middle-class family and that you had a happy childhood, completing high school when you were 18 years of age, after which you completed a five-year civil engineering degree at the University of Transport in Ho Chi Minh city, graduating in 2013;

(c)       You do not have any physical health or mental issues;

(d)After graduating from the University of Transport, you worked with an uncle for one month before travelling to Australia in November 2013, with the intention of studying a Masters in Civil Engineering at Swinburne University.  You always intended to return to Vietnam after completing your studies in Australia.  Before commencing the course at Swinburne University you commenced an English course at the university which was to last for about ten months.  As such course is held during the day, you were unable to work and soon ran out of money, causing you to switch the English course from Swinburne University to the Southern Cross Education Institute in North Melbourne in April 2014;

(e)The English courses offered at the Southern Cross Education Institute were not held every day, which permitted you to work as a handyman when you were not learning English.  Such work included tasks such as painting, cleaning up and basic landscaping;

(f)You obtained your work mainly through a flatmate named Tran, for about one year, until Tran stopped work and no further work was available to you;

(g)You did complete two English courses – Grade II and Grade III at the Southern Cross Education Institute.

Circumstances of your offending

6       You had been paid to complete some handy work at the property situated at 45 Paramount Rise in Wollert some two months’ prior to your arrest.  At that time you completed the repair work and there were no cannabis plants inside the property.  Approximately two weeks prior to your arrest, you met a man in a coffee shop in Sunshine, who offered you $1,000 per month plus travel costs, if you looked after the plants inside the property.  You accepted such job because you were no longer earning much money from your handyman work.

Submissions made by your counsel in support of your plea in mitigation

7       Your counsel submitted that the following matters should be taken into account in mitigation of your sentence:

(a)You pleaded guilty to the offence at the earliest possible time, which had the utilitarian effect of saving the time and cost of a trial;

(b)      There is no record of any offending prior to this particular offence;

(c)You made full admissions as to your role when questioned by the police – which, together with your plea of guilty, is some evidence of genuine remorse for your offending.  Reference was made to Phillips v The Queen (2012) 37 VR 594 at [69]. Given the lack of criminal history in either Australia or Vietnam, and your previous prior good character, it was submitted that your prospects of rehabilitation were good and that that there was a low risk of re-offending;

(d)Although cultivating a narcotic plan in not less than a commercial quantity is plainly a very serious offence, it was submitted that the subject offending falls towards the lower end of this offence for the following reasons: -

·the commercial quantities established by the weight, alone – it being noted that the number of plants in this case being, 48, is particularly low for cases involving this charge.

·your role is best described as a “crop-sitter”, which is conceded by the prosecution, and there is no suggestion that you were aware of, or involved in, the establishment of the crop-house, the electricity bypass, or involved in any trafficking of the cannabis.

(e)It was conceded on your behalf that the expectation of being paid $1,000 per month, plus travel (although yet to be paid), was a dominant motivating factor to participate in the offending, given the context of you struggling to find work.  In such circumstances, so it was submitted, that your motivation can be distinguished from offenders who are motivated solely by the prospect of significant financial enrichment.

8       Your counsel expressly disclaimed any reliance on the likely prospect that you may well be deported after any period of imprisonment.  In this respect, your counsel fairly conceded that you had no established ties in Australia, and it was always your intention to return to Vietnam.

9       Your counsel also submitted that your time on remand has been particularly onerous as a consequence of being isolated from your family in Vietnam and your minimal English skills.  Although you have some contact with your family by phone once a week, you have not told them that you are in custody due to the significant shame that you experienced regarding your conduct.  Again, your counsel fairly conceded that although your English skills are minimal, there are Vietnamese persons with whom you do converse.

10      Your counsel also referred to the Remand Report (Exhibit B), and noted that you were initially remanded in the cells at Geelong police station, then the Melbourne Custody Centre and the Melbourne Assessment Prison, before moving to the Metropolitan Remand Centre (MRC) on 27 November 2015, where you have remained until this date.  As a consequence of the riots at the MRC on 30 June 2015, you have been subject to a stricter form of custody management and have only been permitted to be outside your cell for an average of two hours per day and, like others of this facility, but unlike those of other remand prisons, you have reduced access to daylight, and limited ability to exercise and it has made the experience more onerous.

11      It was conceded by your counsel that general deterrence is one of the important considerations in formulating a sentencing disposition and it was also conceded that an immediate term of imprisonment is the only sentencing option for the Court.  However, the matters referred to in mitigation should be taken into account and, in particular, your low risk of re-offending because of your lack of antecedents, demonstrated remorse, education and the likelihood of your deportation from the Australian community following the completion of your sentence.  Your counsel referred to what he described as relatively recent comparable cases.  In fairness, he accepted that each case substantially turns on its own particular facts.

12      In response, counsel for the prosecution submitted that the charge is made out either on the basis of weight or the number of plants or, indeed, if both the number of plants and weight are both satisfied.  In this context, she submitted that little consideration should be given to the submission that although the offence was made out by the weight, the number of plants was substantially less than that required to make out the charge out on that basis.

13      Further, she submitted that an immediate custodial sentence was appropriate.

14      The following documents were also tendered in relation to sentence:

(a)Overview of commercial cultivation sentences in the Court of Appeal from the Sentencing Manual (last updated on 29 March 2016) (Exhibit 2);

(b)Major drug offences current sentencing practices, as at 1 February 2015 (Exhibit 3);

(c)Sentencing snapshot in relation to cultivating a commercial quantity of narcotic plants over the period 2008-2009 to 2012-13, published in August 2014 (Exhibit 4);

(d)Cultivation of commercial quantity cases, setting out in detail in relation to recent Court of Appeal decisions (last updated 29 March 2016) – (Exhibit 5).

15      I have perused all these documents.

Conclusion

16      The offence of cultivating narcotic plants – in this case, cannabis – in not less than a commercial quantity is a serious offence, as clearly indicated by the maximum penalty of 25 years’ imprisonment.  The potential sentence for such offence reflects the community’s desire to rid the community of illegal drug use and the various criminal activities associated with it.

17      Consistent with the submissions of counsel for the prosecution, the principle of general deterrence is particularly important.  I should also add that I consider that denunciation, specific deterrence and the protection of the community are also relevant sentencing principles.

18      I do accept that, consistent with the submissions of your counsel, the following matters should be taken into account in mitigation of any sentence:

(a)Your plea of guilty was accepted by counsel for the Director of Public Prosecutions to be at the earliest possible time.  Although the case against you would appear to have been quite strong, a plea of guilty at the very least has utilitarian value in saving the time and cost of a trial (see Phillips v The Queen [2012] VSCA 140 at paragraph [36]). However, it is always a question for the sentencing judge whether remorse, willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (again see Phillips v the Queen op cit at paragraph [96]).  In the circumstances of this matter, I do consider that the early plea of guilty and, more particularly, the cooperation shown by you when dealing with the relevant authorities, does permit me to infer that you have some remorse for your offending;

(b)You have no criminal record;

(c)Your role in the offending has been described both by your counsel and counsel for the prosecution to be that of a “crop-sitter”.  I accept that such is an apt description and your role can be characterised to be at the lower end of the chain, as it were, and that you were only brought in to essentially water the plants at the time when the criminal activity was well and truly established at the premises.  Furthermore, although you were to be paid a cash amount for watering the plants, there was no suggestion that you would be involved in any distribution of the plants or obtain any profits following the sale of the plants.  I do note that you had been performing the “sitting” for only a number of days prior to your arrest.

Of course, it must not be forgotten that your role was a necessary role for the plants to flourish and be available for sale.

(d)You are a relatively young man who hitherto, as I have noted, has no record of criminal activity and I accept that the dominating motive for your offending was to obtain some money for your living, given that your work as a handyman had been reduced by your friend moving out of the premises.  I also note that you are well-educated and hold a professional qualification.  I also accept that, at the completion of your sentence, you probably will return to Vietnam and hopefully carry on with your chosen profession.  I consider your prospects for rehabilitation are “reasonably good”.

19 Taking all of the foregoing matters into account, I do consider a custodial sentence to be appropriate. Although no submissions were made that an appropriate sentencing disposition should be a community correction order, I have considered the operation of s5(4) and (4C) of the Sentencing Act.  Given the nature of the offence, I do not consider that a community correction order would be appropriate.

20      Please be upstanding Mr Le:

(a)In relation to the charge, you are convicted and sentenced to a period of 15 months’ imprisonment, with a non-parole period of nine months;

(b)I declare that you have served 176 days as presentence detention in relation to this offence, and such a period is to be administratively deducted from this sentence, as time already served;

(c)Further, pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth until a sample of sufficient standard is obtained for the placement on the database. I must inform you that if, at the time of the request, you do not consent to the taking of a mouth-scraping under the supervision of an authorised member of the police force, then the sample will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted;

(d)Further, pursuant to s77(1) of the Confiscation Act 1997, I order that the cannabis cultivated, and the equipment used in connection with the cultivation, be disposed of;

(e)Pursuant to s6AAA of the Sentencing Act 1991 I declare that, save for your plea of guilty, you would have been sentenced to a period of 24 months of imprisonment, with a non-parole period of 16 months. Yes, anything to add?

MR BOURBON:  No Your Honour.

MS McLURE:  No Your Honour.

HIS HONOUR:  No doubt you'll explain to your client?

MR BOURBON:  Yes, certainly, Your Honour.

HIS HONOUR:  Yes, just allow counsel to approach.  I'll adjourn briefly and soon as we're ready for the next one, I'll be just out the back, all right?  Thank you.

---