Director of Public Prosecutions v Do
[2013] VCC 718
•30 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00407
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CUONG VIET DO |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2013 | |
DATE OF SENTENCE: | 30 May 2013 | |
CASE MAY BE CITED AS: | DPP v Do | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 718 First revision | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Cultivate cannabis – Summary charge of dealing with property suspected of being proceeds of crime – Crop sitting
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr A. Brand | Slades & Parsons |
HER HONOUR:
1 Cuong Viet Do, you have pleaded guilty to one charge of cultivating cannabis and you have also pleaded guilty to a summary charge of dealing with property suspected of being proceeds of crime. The maximum penalty in relation to cultivating cannabis is 15 years' imprisonment, whilst the charge of dealing with property suspected of being proceeds of crime has a maximum penalty of two years' imprisonment.
2 The learned prosecutor opened your offending as follows.
3 I was told that you are now twenty-three years old. You are a New Zealand citizen and entered Australia from New Zealand on a tourist visa on 26 October 2012.
4 On 4 December 2012 at about 2.00 pm, police attended an address in Deer Park with a search warrant which they intended to execute. When no one answered the door, police forced entry into the house. You were found hiding under a bed in one of the rooms and you were arrested. During the search of the premises, police found hydroponic growing set ups in four rooms, comprising elaborate lighting, ventilation, watering and electrical systems. They found a total of 108 cannabis plants of which 56 were seedlings, as well as a plastic bag with 932.9 grams of cannabis. The combined weight of all of the cannabis seized was 30.14 kilograms.
5 You were also found to be in possession of certain property, being $305 cash, a Western digital hard drive, a laptop computer, Samsung mobile phone, a Nokia mobile phone and two Wi-Fi devices which were believed to be proceeds of crime – this gives rise to the summary offence.
6 Police also found an illegal electrical meter bypass. However, it is not alleged that you were aware of or involved in setting this up.
7 You were taken to Fawkner police station and when interviewed, you made no admissions to any involvement in the cannabis cultivation at the house.
8 It is accepted by the Crown that your role is one of a crop sitter who did not intend to cultivate commercial quantity. The Crown also accepts that you had no involvement in setting up the crop or installing the electrical bypass and that your involvement was limited to a period of five weeks.
9 As has often been said, Mr Do, notwithstanding that the role of a crop sitter is considered to be toward the bottom of a drug business hierarchy, it is an important role, without which, cultivation of crops could not take place. Your offending must be punished and denounced, especially in circumstances where it appears that you returned to Australia on a tourist visa in October 2012 and committed these offences about six weeks later. I must also attach substantial weight to the principle of general deterrence so that others who might be tempted to behave as you have might be discouraged from doing so.
10 Your counsel, Mr Brandt, told me that you came here in search of labouring work in a bid to support your girlfriend and 3 year old child. I note that your girlfriend is the daughter of your co-offender in respect of previous matters to which I shall refer shortly. I was told that you were approached by people who were familiar with your past and persuaded you to commit these offences. Although I have suspicions, I must say, about your motivations in coming to Australia once again, I put these to one side.
11 It is of concern that on 10 December 2009, you were sentenced to a total of three years Youth Justice Centre in respect of cultivating a commercial quantity of cannabis and four charges of theft.
12 I have viewed the sentencing remarks of Her Honour Judge Gaynor, which I have borne in mind in sentencing you. The one charge of cultivating a commercial quantity of cannabis was a rolled-up charge which accounted for your involvement in seven complex cultivations. The Youth Justice Centre assessing officer had some reluctance in deeming you suitable for placement in Youth Justice Centre. However, because of your immaturity and lack of prior convictions, he was of the view that you would benefit from the approach taken there.
13 Her Honour Judge Gaynor, who was also concerned with your disposition, gave you the opportunity to avoid adult jail by imposing a term in Youth Justice Centre. I was told by Mr Brandt that as you had spent 14 months in adult remand, albeit in the youth unit, you only spent 1 month at Youth Justice Centre; thereafter, you stayed with your aunt who lives here and you were supervised by her in conjunction with Youth Justice personnel for the remaining duration of the Youth Justice Centre order. On that occasion, it was said that you committed the offences after incurring a gambling debt at Crown Casino. In order to repay the debt, you took part in the offending which gave rise to the prior convictions.
14 It is breathtaking indeed that having had the advantage of such a disposition for similar offending, that you chose to return to Australia and shortly thereafter, to commit the offences for which I now sentence you.
15 You are now twenty-three years old and have had the express notice from the Courts that cultivating cannabis will not be tolerated. You are still a young man, but it could no longer be said, in light of your history, that you are naïve. It may be that you have a low IQ and have a propensity to exercise poor judgement, but you well knew that what you were doing was wrong, and that you were risking going to gaol, which has now come to pass. Further you have no psychiatric or psychological issues nor do you have a drug problem which might help explain your actions. Indeed, whilst on remand on the previous occasion you took part in drug awareness programs- apparently, these did not have a sufficient impact on you, Mr Do.
16 Your conduct is deserving of appropriate punishment and must be denounced. In sentencing you I factor in your role, the period of your involvement, the quantity of the crop and the sophistication of the set up. In taking into account the quantity of the cannabis found, I make it clear that I sentence you on the basis of the charge before me, and not the more serious charge notwithstanding the commercial quantity found.
17 In your favour, I take into account your plea of guilty which was entered at the earliest stage. This entitles you to a significant discount in the sentence which you would otherwise receive as you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of running contested proceedings. However, I am not satisfied that your plea of guilty signifies much in the way of remorse, in light of your history and your decision to engage in this activity once more over a period of 5 weeks. I am concerned as to your level of insight in view of these matters. I must place not insignificant weight upon specific deterrence and at least moderate weight on the need to protect the community.
18 I take into account your background. You and your family immigrated to New Zealand from Vietnam when you were eleven and your parents both worked in order to support their family. Your parents’ decision to separate when you were 15 years old had a significant impact on you, which is understandable. No other members of your family have committed criminal offences and I was told that your parents are far from happy with you, which is also understandable.
19 After completing Year 10, you left school and obtained various unskilled jobs. Your limited ability to read and write has made life difficult when it comes to finding legitimate work. When you were 17, you travelled to Melbourne and obtained work in a factory until you were arrested in relation to previous matters in 2008. According to Her Honour Jude Gaynor’s sentencing remarks, shortly after arriving here you incurred the Crown Casino debt which led to your offending in October 2007. I was told that you returned to New Zealand in May 2012 but returned here later that year in search of work to support your girlfriend and child. I was also told that upon your release from gaol, you intend to live with your aunt who is living in Melbourne and to seek some employment. It is uncertain as to whether any parole period will be spent here or in New Zealand if you are required to return by immigration authorities. As to whether you will be deported in the future, this is uncertain and I will not speculate about this. But if you do return to New Zealand you intend to live with your parents and obtain some employment there in order to support your girlfriend and child. In either case, you do have a level of family support which I factor in when assessing your prospects of rehabilitation. On the other hand you have apparently had this in the past but it has not served to help you not re-offend.
20 I take into account in your favour that on both occasions that you have been incarcerated you have endured this without incident and you have a reputation as a hard worker in the textiles department at the prison. It is to be hoped that you use your strong work ethic to make a positive contribution to the community and become a decent role model for your child. I was told that you have resolved not to commit further offences and that you wish to pursue legitimate work.
21 You have been in custody since 4 December 2012 in relation to these offences and I was told that you now have sufficient insight not to re-offend. For your sake, for the community’s sake and for the sake of your family, I do hope that this is so. However, in all of the circumstances, I am afraid that I consider that your prospects of rehabilitation are fair at best. As you are still a relatively young man, I have done what I can to maximise these; however, I must also give appropriate weight to all other relevant sentencing considerations.
22 The Crown and Defence are in agreement as to an appropriate sentencing range in your case. I accept that the range is appropriate in all of the circumstances. In light of your relative youth, I shall impose a fairly lengthy parole period.
23 Would you please stand up, Mr Do.
24 I make the disposal and forfeiture orders sought by the Crown and not opposed by you.
25 You are convicted and sentenced as follows:
26 In relation to Charge 1 on the indictment you are convicted and sentenced to 2 years 6 months' imprisonment.
27 In relation to the summary charge you are convicted and sentenced to 1 month imprisonment.
28 These sentences are to be served concurrently with each other, producing a total effective sentence of 2 years, 6 months' imprisonment.
29 You are to serve 14 months before becoming eligible for parole
30 I declare that you have already served 177 days in custody, this being your first day of sentence. The 177 days will be reckoned as already served.
31 If not for your pleas of guilty, I would have sentenced you to 3 years 4 months imprisonment with a non-parole period of 2 years 4 months.
32 Was there anything arising from the sentencing remarks?
33 COUNSEL: No, Your Honour.
34 HER HONOUR: Very well. Yes, thank you, you might remove the prisoner now. We will now adjourn.
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