Director of Public Prosecutions v Duc Le
[2019] VCC 965
•28 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00720
Indictment No: J122966739
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUC LE |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 25 June 2019 | |
DATE OF SENTENCE: | 28 June 2019 | |
CASE MAY BE CITED AS: | DPP v Duc Le | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 965 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991; Crimes Act 1958.
Cases Cited:Guden v R [2010] VSCA 196; Tan & Ors v R [2011] VSCA 427; R v Mohamed [2016] VSC 581; R v Aniezue [2016] ACTSC 82; Konamala v R [2016] VSCA 48; R v Verdins & Ors (2007) 16 VR 269; Le v The Queen [2018] VSCA 309.
Sentence: Total effective sentence of 2 years 6months imprisonment, 18 months non-parole.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Roper | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr T. Sawyer | Valos Black |
HER HONOUR:
1 Duc Le, you have pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity, the maximum penalty applicable being twenty-five years’ imprisonment and also one charge of theft of electricity, the maximum penalty ten years’ imprisonment.
2 These crimes arise out of events which took place at an address in Pascoe Vale South.
3 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having being opened in some detail by the learned prosecutor, consistent with Exhibit “A”. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and I am sure you are aware of that.
4 I turn to a summary of your offending. At the time of it, you were twenty-seven years of age and living at an address in Tyler Street, Preston. You are a Vietnamese citizen, unlawfully in Australia at the time, your student visa having expired.
5 There are two alleged co-offenders, Son Hai Hoang, a twenty-seven-year-old male born in Vietnam, who lived on Gilbert Road, Preston and Duy To Duc, a twenty-one-year-old male, also born in Vietnam, living at the Tyler Street address with you. Both co-offenders are proceeding to Trial and as such parity is not a consideration when sentencing you.
6 On 8 August 2018, a police operation JOINED-2018 began investigating alleged cannabis cultivation at Gallipoli Parade, Pascoe Vale South.
7 Police saw you attend the house and enter it on 19 September 2018 with an unknown male and on 24 September 2018, at which time you were seen bringing two large bags of potting mix into the house. You acknowledged through your counsel Mr Sawyer you attended the property twice a week.
8 During the surveillance period, police detected the smell of cannabis at the house and suspected, from the noise there was a hydroponic set up.
9 At about 5.30pm on Tuesday, 13 November 2018, Hoang and To Duc were seen going into the Gallipoli Parade house through a side door.
10 A short time later, a white Toyota Hi-Ace van parked in the driveway of that address and you got out of the driver’s side and went into the house through the side door.
11 At 5.45pm on 13 November, a search warrant was executed pursuant to the Drugs, Poisons and Controlled Substances Act1981 at the Gallipoli Parade residence, Pascoe Vale South.
12 You and your two co-offenders concealed yourselves in the roof cavity to hide from police. You and one other were found in the cavity. All three of you were arrested.
13 During the search, police located a sophisticated hydroponic cannabis-growing system in four rooms, as well as a nursery and kitchen.
14 A total of 118 cannabis plants with a combined weight of 100.2 kilograms was seized (Charge 1). i.e. 18 plants over commercial quantity and four times the weight of a commercial quantity.
15 Select Solutions power company representative, Dave Torresan, attended the scene and confirmed an illegal electrical bypass had been installed to divert electricity from the main grid (Charge 2).
16 You and your two co-offenders were placed under arrest, although at that time a telephone Vietnamese interpreter was not available.
17 The three of you were taken to Broadmeadows Police Station for interview, however due to the unavailability of a Vietnamese interpreter the three of you were not interviewed.
18 Enquiries with Immigration revealed the three of you were unlawfully in Australia.
19 The prosecution accepts your role was that of a ‘crop sitter’ and while the Crown did not say you were involved in setting up the electrical bypass, you were however aware electricity was being illegally diverted to assist in cultivation of the plants.
20 Regarding sentencing for the offence of cultivating a narcotic plant in not less than a commercial quantity, such is a Category 2 offence and s5(2H) of the Sentencing Act1991 applies. A custodial disposition must be imposed unless substantial and compelling reasons are established.
21 At a committal mention on 7 February 2019, the matter was listed for a committal hearing on 12 April 2019. Your current solicitors became involved on 1 March 2019 and the matter then resolved without the need for a contested committal for you. You pleaded guilty to these charges and I was told the contested committal then proceeded for your co-offenders. Your matter, as I have said, proceeded by way of straight hand-up brief and guilty pleas were entered.
22 You have pleaded guilty to these two charges and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses have not been needed to give evidence upon your trial.
23 I also take into account in your favour you intimated early your intention to plead guilty to these charges. I note you were caught at the scene however this does not diminish the utilitarian value of your pleas of guilty.
24 I accept your pleas of guilty indicates remorse for your offending.
25 There were no prior court matters alleged against you, nor anything subsequent or pending.
26 Your counsel, Mr Sawyer, appeared on your behalf and prepared a Written Outline of Submissions for your plea hearing which he addressed during the course of it.
27 He relied heavily upon your pleas of guilty, of which I am aware and to which I have previously referred. I accept you have acknowledged the wrongdoing of your offending.
28 Mr Sawyer referred to your lack of prior convictions of which I am aware
29 Brief details were provided in his submissions of your background and history. You were born in Vietnam and came to Australia in 2014 on a student visa with the intention of studying business management. Prior to coming to Australia, you instructed you worked as an electrician in Vietnam for approximately five years, although that appeared inconsistent with your self-report to Ms Ferrari as I discussed with counsel.
30 You were unable to finish your studies for various reasons referred to by Ms Ferrari, and as a result, your student visa expired.
31 In 2018, you instructed you were asked to housesit a property where cannabis was being cultivated. You accepted full responsibility for your role in the cultivation.
32 Relevant to deportation, Mr Sawyer referred to Guden v R[1]. The Court in Guden noted that the prospect of deportation may be relevant where it:
·Makes imprisonment more burdensome on the offender than it would otherwise would have been, due to offender serving imprisonment in a state of fear or concern about being deported upon expiry of the sentence; or
·Amounts to an additional “punishing consequence” of the offending, such where the offending loses the opportunity of settling in Australia.
[1][2010] VSCA 196 (‘Guden’).
33 In Guden, the court cautioned that an offender’s sentence should only be reduced where there is sufficient evidence of both the risk of deportation and impact of that risk. The court further stated:
“…It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship.”[2]
[2]Guden [28-29].
34 In Tan & Ors v R[3], Redlich JA (Neave JA and Lasry AJA agreeing), stated:
“…But a sentencing judge is not required to speculate; there must be evidence that enables a sensible quantification of the risk that deportation will in fact occur, and proof that deportation would in fact be a hardship for that particular offender.”
[3][2011] VSCA 427 [126].
35 I discussed with your counsel that you, in fact, had all your family in Vietnam and you would be returning to them. I note in R v Mohamed[4] the court said:
“…Whilst your family is now in Australia, (in that case) it was not submitted that you would be isolated in New Zealand as there is a community network there to support you. However, you would miss out on life with your direct family. I accept that would be a hardship and I take it into account in determining the sentence to be imposed.” (Referable to that case).
[4][2016] VSC 581.
36 In R v Aniezue[5], the court, referring to hardship suffered by the offender and deportation, stated:
“This is partly because he is likely to be deported to Nigeria, (in that case) where he has limited family, only his grandmother, and because his mother is in Malaysia where he may or may not be permitted to enter. It is to be acknowledged that he has previously returned to Nigeria in 2010 and early 2014.” (Obviously referable to that case).
[5][2016] ACTSC 82 [68].
37 In Konamala v R[6], the Court said:
“…On the other hand the prospect of deportation must be a severe additional punishment for an offender who had aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country, or has other ties to the Australian community.”
[6][2016] VSCA 48.
38 You will, as I discussed with Mr Sawyer, be returning to your family in Vietnam This distinguishes your case from others where upon deportation an offender has to had leave family in Australia and travel back to a country where there is no family.
39 You have been on remand since you were arrested on 13 November 2018.
40 You do not speak English and as I’ve said your family lives in Vietnam. You have no family or support network in Australia apart from, it seems, one person, who knew your family in Vietnam. I heard evidence from Ms Ngoc Dao in that regard.
41 Mr Sawyer urged I could take into account your difficulty in not being able to speak English in custody and I do consistent with general sentencing principles, not ‘hardship’.
42 Mr Sawyer conceded a term of imprisonment was the only appropriate disposition for your offending but urged the time you had served to date, given you would be immediately deported, would be within the range of appropriate dispositions, although a sentence of imprisonment with a Community Corrections Order could also be considered he urged.
43 He urged I should accept Ms Ferrari’s opinion that you were a low risk of re-offending.
44 I turn to the report of Carla Ferrari, psychologist, dated 7 June 2019, who conducted a two hour video conference with you.
45 Addressing your personal history and circumstances, you are the only child in your family and you described a happy childhood with positive memories.
46 You described a good relationship with your parents as you grew up and that you have a large extended family in Vietnam with whom you also have a close relationship. Your family operated an electrical company.
47 You said you did not complete your business management study at Latrobe University, due to linguistic issues which were a barrier to your adjustment in Australia. You were unable to continue studying in part also due to the cost of international school fees and soon after you withdrew from the course, your student visa expired.
48 You did, however, report a number of Vietnamese friends in Melbourne to ease your transition these instructions seem to me to be somewhat different to the evidence given by Ms Dao.
49 You said you completed your schooling in Vietnam with no difficulties, stating that you were a very bright student.
50 You also described a strong network of close friends from school and university and that you maintained relationships with them.
51 You attended a University in Vietnam and studied a Bachelor of Electrical Engineering, before coming to Australia to undertake a Bachelor of Business Management at Latrobe University.
52 You began working illegally after leaving La Trobe University. You said you were motivated to stay in Australia to work so that you could repay your parents and assist family with their financial problems.
53 You told Ms Ferrari you had never previously had employment in Vietnam, your focus being on your university degree. As I previously stated, I note your somewhat different instruction to Mr Sawyer on this.
54 In custody, you were working as a billet. You had not completed any educational programs “mostly due to the language barrier”.
55 You had not been in any relationship when in Australia.
56 You denied any history of mental health issues, had never been admitted to a psychiatric unit, and there was no family history of mental health problems. You wanted to return to Vietnam to be with your family. And ultimately, of course you will.
57 You denied problematic or excessive use of alcohol. You had used MDMA and Ecstasy on a weekly to monthly basis it seems when at nightclubs. You do not have alcohol or illicit drug issues that would impede your rehabilitation prospects, which Mr Sawyer urged were good. I accept the assessment of your rehabilitation prospects and when sentencing you I must seek to maximise your chances of rehabilitation as they may be.
58 You told Ms Ferrari you met your co-accused at a nightclub and began to trust them before they offered you some employment. They offered to pay you $2,000 to $3,000 a month to oversee their plants and equipment. You were to attend a designated house to water plants a few times a month, then later asked to supply electrical equipment, wiring a transformer. You instructed you received a total of $4,000 (2 x $2,000 payments) and as I have said, attended the house you said twice a week. I note Police first saw you at the house on 19 September 2018.
59 You said you only became aware that it was an illegal cultivation of cannabis when you attended the property for the first time. Once aware however you continued your involvement.
60 You reported you became anxious and fearful about being involved in this offending and were threatened that if you did not comply you would be harmed. You had, however, you conceded never seen your employers aggressive towards others and you instructed Mr Sawyer you did “not make anything” of the threats.
61 You said communication generally took place via phone and you denied any other individual was involved in overseeing of the operation besides yourself upon instruction from your employers.
62 You conceded you were enticed by the potential income from this venture which would allow you to repay your parents and their debts.
63 Turning to your mental state examination, Ms Ferrari concluded you demonstrated good insight and judgment.
64 You denied any depressive symptoms, however, had experienced increased anxiety and stress in custody. You wanted to return to Vietnam as soon as your sentence was completed.
65 Psychometric testing was conducted. The results indicated moderate to severe fluctuations in mood which were “likely” to impact your general functioning (I note not further defined or described).
66 There was no indication of any entrenched personality disorder, nor did there appear to be any significant symptoms warranting diagnoses.
67 Overall, your profile was indicative of an individual with no entrenched personality dysfunction nor significant clinical symptoms which would have affected your mental state or functioning at the time of the offending or your present functioning.
68 In Ms Ferrari’s opinion, the precipitating factors of your offending related to your financial difficulty and the financial situation of your parents in Vietnam. You felt an obligation and duty to repay your parents. You were offered what was, to you, the ability to “earn a high income” – thus this offending.
69 In Ms Ferrari’s opinion, you had mild elevations of anxiety and stress related to your involvement in the offending and consequences of it. A further consideration which “likely elevated your stress and anxiety” were the adjustment difficulties of being an immigrant in prison with limited capacity to engage in programs due to poor command of the English language.
70 Ms Ferrari concluded you were a low risk of re-offending.
71 You appeared to Ms Ferrari to be coping reasonably well at present, and denied any significant problems in custody, apart from linguistic issues. Ms Ferrari did not anticipate your mood would deteriorate further solely due to being in custody.
72 Your counsel, Mr Sawyer, was not relying on the principles of R v Verdins & Ors[7] that, in my opinion, was an appropriate concession on the material before me.
[7](2007) 16 VR 269.
73 I heard evidence from your friend Ms Ngoc Dao. She is 25 years of age and an accounting student. She came to Australia from Vietnam in 2014 and knew you through her family in Vietnam, over more than 10 years. You were studying in Vietnam. She did not know if you worked in Vietnam. She would contact you by phone or Facebook in Australia. When she first arrived you helped her a lot including assisting her to find accommodation. She regarded you as like an “older brother”. She would see you in Australia 1-2 times a week. In jail she had seen you 2-3 times.
74 Ms Dao confirmed you did not have any family in Australia nor friends. She was surprised to hear of your offending.
75 Mr Roper on behalf of the prosecution submitted time served or time served with a Community Corrections Order (should such be permitted pursuant to s.2(2H) Sentencing Act 1991) would result in an inadequate sentence when considering all relevant sentencing considerations.
76 I was referred to Le v The Queen[8] and I discussed this with him.
[8][2018] VSCA 309.
77 It is difficult comparing cases factually as facts vary enormously case to case as do all matters personal to an offender in mitigation of sentence. Ultimately I must determine the appropriate sentence in your case taking into account all sentencing considerations.
78 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as general deterrence, which is of considerable importance in a case such as this.
79 There is also the need for specific deterrence when sentencing you, although I note you do not have any prior court appearances. Your offending did however occur over a significant period of time, over 19 September 2018 - 13 November 2018. I note the Charge is the one date of 13 November 2018 and it involved multiple attendances by your own admissions at the property.
80 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. In that regard, I am conscious that you will be deported upon the completion of your sentence.
81 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
82 Can you stand up please, Mr Le.
83 On Charge 1, you are convicted and sentenced to 2 years’ and 3 months imprisonment.
84 On Charge 2, you are convicted and sentenced to 6 months’ imprisonment.
85 Charge 1 is the base sentence.
86 I direct that 3 months of Charge 2 be served cumulatively upon Charge 1.
87 That results in a total effective sentence of 2 years 6months imprisonment and I direct you serve a period of 18 months before you are eligible for parole. The prosecution made application for a forensic sample pursuant to s464ZF of the Crimes Act1958. This was consented to by counsel on your behalf and I make the Order in the terms sought. It will be for a saliva sample and I make the Order on the basis of the seriousness of your offending. I must advise you the authorities may use reasonable force to obtain this sample.
88 The prosecution also made application for a forfeiture/disposal order relevant to property located at the house related to the drug cultivation. Counsel on your behalf did not oppose the making of this order and I make the Order in the terms sought as I discussed with the Prosecution there is still outstanding trial matter in relation to your 2 co-offenders.
89 Pursuant to s18(4) of the Sentencing Act, I declare you have spent 227 days (I want this checked) in custody by way of pre-sentence detention, up to and including yesterday, 27 June 2019, and I declare that that be entered into the records of the Court, if that is correct (that number).
90 Pursuant to s6AAA of the Sentencing Act, had you been found guilty of these two offences following jury verdict, that is, if you had pleaded not guilty to these two charges and been found guilty of them I would have sentenced you to a term of imprisonment of five years with a non-parole period of three-years-and-six months.
91 Have a seat please Mr Le.
92 Any other orders?
93 Mr Le you will have to go downstairs. Madam thank you yet again very much.
---
0
7
0