Director of Public Prosecutions v Ha

[2020] VCC 1164

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00240

DIRECTOR OF PUBLIC PROSECUTIONS

v

SANG HA

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2020
DATE OF SENTENCE:	31 July 2020
CASE MAY BE CITED AS:	DPP v Ha
MEDIUM NEUTRAL CITATION:	[2020] VCC 1164

REASONS FOR SENTENCE
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Subject: Cultivate a narcotic plant
Catchwords: Owner of house property – permitted garage to be used for cultivation of cannabis – 69 plants weighing 57.16 kg – not involved in set up – no financial benefit expected – low range offending – early guilty plea – prior conviction for cultivation (relatively old) – voluntary confessional of involvement – 6 months “dead time” in custody – good prospects of rehabilitation
Legislation Cited:
Cases Cited: Warwick v The Queen [2010] 201 A Crim R 500
Sentence: 109 days imprisonment (presentence detention) and 2-year community correction order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Davidson
For the Accused	Mr Melasecca

HIS HONOUR:

1Sang Van Ha, you have pleaded guilty to one charge of cultivation of a narcotic plant. 

2The circumstances of your offending are set out in the summary of prosecution opening upon plea, which is Exhibit A.  They are agreed facts.

3You owned a property at Sunshine West. During 2018 your two younger children lived there.  You were living and working in South Australia with your wife and the two of you regularly returned to Melbourne to visit them.

4On 22 February 2018 police went to the house with a search warrant.  In a garage and shed at the back of the property they found 69 cannabis plants being grown hydroponically under lights.  The total weight of the plants was 57.16 kilograms.

5Your children were at home when police arrived.  They told police they did not know about the cannabis crop.  They said their grandfather had lived in the garage and, after he died, a woman known as Tam Tong, who was a family friend, came to the house every three to four days and went to the garage.  Your son said, when you visited, you sometimes joined her in the garage.  They told police they had no knowledge of the cannabis cultivation set-up.

6Police interviewed you on 31 August 2018.  You said you did not know the woman your son had described coming to your house.  You said you visited your children but had not gone into the garage.  You denied any knowledge of the cannabis plants.

7On 16 January 2019 you voluntarily gave police a statement admitting your involvement.  You said you had known Ms Tong for four years.  She had worked for you and became friends with your wife.  She was a single parent who was struggling financially and, when she lost her home, you agreed to let her live in the garage and store her property there.  You said, in
July 2017, when you came to Melbourne, you went to the garage to get some tools and saw cannabis plants growing there.  You said that Ms Tong told you she let someone set up the crop as she was desperate for money to pay debts.  So you allowed her to continue growing cannabis because you felt sorry for her.

8Ms Tong made a confessional statement on 21 February 2019.  She told police, when she accumulated gambling debts and risked losing her home, you let her use your garage to store her property.  She said someone offered her money to set up a cannabis crop there.  She said someone else set up the operation and her job was to water and feed the plants.  She declined to identify that person.  She said she was told she would get some payment when the crop was harvested.

9On 22 March 2019 police charged you.  You were released on summons. On 18 April 2019 you were admitted to bail. 

10On 14 August 2019 police charged you with unrelated offences and you were remanded in custody on them. 

11On 14 February 2020, when the cultivation charge was listed for a committal hearing, those other charges were withdrawn.  You pleaded guilty to the cultivation charge and, on your application, your bail was revoked and you were remanded in custody on this matter. 

12On 1 June 2020, with prosecution consent, you were released on bail on this charge again.

13You have admitted a criminal record.  On 12 February 2004 you were convicted of cultivating a commercial quantity of cannabis and theft and sentenced to two years, six months' imprisonment with a non-parole period of 15 months.

14I turn now to your personal circumstances which are set out in the report of Sandra Nguyen, a psychologist, who assessed you on 10 and 15 July 2020.

15You were born on 3 March 1969 in Vietnam where you were raised with six siblings.  As a young man, with a younger sister, you fled Vietnam by boat to escape the communist regime.  You made your way to Hong Kong and lived at a refugee camp for about five years.  At the camp, where you met and married your wife, your first daughter was born.  She is now 31 years old.

16From Hong Kong you moved with your family to another refugee camp in the Philippines where you lived for another year before migrating with your wife and daughter to Australia as refugees in 1995.  Your second daughter was born in 1996 and your son in 1999. 

17In 1996 you set up a home sewing business which lasted three years.  From 1999 until 2003 you picked vegetables on farms.  A co-worker introduced you to cannabis cultivation and, with your brother-in-law, you set up a crop in a house where you were living with your family.  Intruders broke into the house and in the course of trying to steal the crop, shot your brother-in-law, who later died in hospital.  You pleaded guilty to the cultivation of a commercial quantity of cannabis and theft of electricity.  You were released after 15 months in prison and successfully completed your parole.

18In 2007 you started up a handyman business, which you ran until 2016, when you moved with your wife to Adelaide to work at a vegetable farm.  More recently you leased about five acres of land in Adelaide to grow vegetables yourself.  Your two younger children remained in the family home at Sunshine West.  Your younger daughter works in a restaurant and your son is completing a computer engineering degree.  Your older daughter is married.  She is a lawyer.

19In relation to your offending you told Ms Nguyen you met Ms Tong through your wife in 2014.  She was in an abusive relationship with a husband who was a drug addict.  She turned to gambling and fell into debt.  Eventually when the bank repossessed her home she left her husband and took her two children with her.  She was homeless and you offered her the use of the garage which had been converted into a bungalow for your father-in-law at your home.

20You said, in July 2017, when you went to the house to visit your children you went into the garage to get some tools and found cannabis plants growing there.  When you confronted Ms Tong she admitted her financial battles.  You felt sorry for her and let the illegal operation continue. You said you confessed your involvement because you were worried your wife and children would be charged.  You said you are sorry and ashamed for your actions.  You worry for the dishonour your crime has brought to your wife and children.

21You have no history of mental illness.  You reported to Ms Nguyen you feel sad and empty most days and struggle to sleep because you are preoccupied with thoughts about your wife and children.  Your scores to psychological testing indicated you are suffering from depression and anxiety.  In her opinion, considering your criminal conviction for the same offending is 17 years old, that you demonstrate remorse and insight and you worry for the impact of your offending on your family, your risk of recidivism is low and your rehabilitation prospects are good.  I accept her opinions, which were not challenged.

22Your son wrote a reference on your behalf.  He described you as a great father and a man who has made mistakes but just wants to provide for his family.  He described the hardship of your life in refugee camps and your migration to Australia. He wrote, despite your best efforts to support your family by working hard, you always struggled financially.  He said, when you were released from gaol at the end of 2004 you got farm work straight away and then worked as a handyman but often did not make much money from it.  According to him, you accrued substantial debts and, eventually, around 2016, you moved with your wife to South Australia where you worked for a friend on a farm and later rented some land from him to grow your own produce.

23Since your release on bail in June 2020 you have returned to the family home where you live with your daughter and son and you have obtained casual concreting and roof plumbing work.

24Mr Melasecca, in comprehensive written and oral submissions, relied on the following factors in mitigation penalty.  Firstly, your limited role in the cultivation, secondly, your guilty plea, thirdly, your cooperation with police, fourthly, apart from your one relevant prior conviction, your previous good character, and fifthly, your good prospects of rehabilitation.

25He submitted your six months in custody between August 2019 and
February 2020 should be regarded as punishment for this offending.  Ultimately he submitted taking into account that detention, and your three and a half months' pre-sentence detention, I should impose a composite sentence of imprisonment and Community Correction Order with the custodial component not to exceed your pre-sentence detention.

26Mr Davidson, who appeared for the prosecution, in helpful written and oral submissions, contended a term of imprisonment with a head sentence and a non-parole period would reflect the objective gravity of your offending and other relevant sentencing factors.  He emphasised the importance of general deterrence and denunciation in cannabis cultivation cases.  He submitted, because of your prior conviction, specific deterrence also looms large. 

27He accepted your role was to allow your property to be used for cannabis cultivation.  He submitted there was no evidence you were involved in the set-up of the cultivation operation or that you would receive any financial benefit from it.  He conceded you fall to be sentenced for a single day of cultivation.

28He characterised your conduct as low range offending. 

29He accepted you are entitled to the benefit of an early guilty plea.  He also accepted your six months in custody on unrelated charges, that were never prosecuted, is undeclared pre-sentence detention which would qualify as dead time.

30He referred me to sentences of two very experienced judges of this court, namely the Director of Public Prosecutions v Duk Dung Huang [2017] VCC 781 and the Director of Public Prosecutions v Dong Nguyen [2018] VCC 1025.

31In the former case Huang was sentenced to nine months' imprisonment for obtaining a lease, using false identity documents, for a home where others set up a cannabis cultivation of 152 plants which weighed 100.7 kilograms.  In the latter case Ms Nguyen was sentenced to 225 days' imprisonment, which was her pre-sentence detention, and an 18-month Community Correction Order, for allowing her partner to grow a crop of 34 cannabis plants which weighed 45 kilograms at her home.  Bearing in mind the limitations of comparisons I nonetheless find them useful comparators to your case. 

32Mr Davidson also informed me your co-offender, Tam Tong, is to plead guilty to cultivation of the cannabis at the property in this court on 4 December 2020.

33Your wife has also been charged with the cannabis cultivation.  The charge against her is to be heard summarily and she is contesting it.

34I turn now to my consideration. 

35I am satisfied the cultivation was committed for the purposes of selling, that is, trafficking cannabis harvested from the plants.  Mr Melasecca did not argue otherwise.  Accordingly the applicable maximum penalty is 15 years' imprisonment. 

36You permitted your property to be used for cannabis cultivation but you were not involved in the set-up, nor did you expect to receive any financial benefit.  Accordingly, I assess the gravity of your offending to be in the low range for a crime of this type. 

37You are entitled to a sentencing benefit for your cooperation with police, when you made your voluntary confession, and for your early guilty plea.  Your prior conviction, while relevant, is relatively old and you are otherwise of good character.  Since your release on bail, you have re-established herself in the community, with the support of your family, and with stable accommodation and employment.

38To enable me to consider all sentencing options I have had you assessed for a Community Correction Order and you have been found suitable.

39I have noted the contents of the assessing officer's report that you had assessed as being a medium risk of reoffending, according to the Community Corrections assessment tool, but nonetheless, on the basis of all the material before me, I accept your prospects of rehabilitation are good.

40The six months you spent in custody until February 2020 does not qualify as declared pre-sentence detention under the Sentencing Act.  It is sometimes called dead time because it is a period of imprisonment, that considering the charges against you were withdrawn, you should not have served.  You are entitled to a reduction in your sentence to take account of this time served.  See Warwick v The Queen [2010] 201 A Crim R 500 at [17].

41You told the assessing community corrections officer you are currently prescribed antidepressant medication and he recommended a mental health treatment condition, as well as supervision, in addition to a community work component.  This morning Mr Melasecca clarified for me that you are taking sleeping medication, not antidepressant medication, and that you are not in need of any mental health intervention.

42The maximum penalty of 15 years' imprisonment demonstrates cultivation of a narcotic plant is a serious offence.  Ordinarily persons who commit this crime must expect to be imprisoned.  Overall, considering the time you have already spent in custody, some nine and a half months, and the efforts that you have made to rebuild your life in the community since your release from prison, I am satisfied a composite sentence which does not require your reincarceration can achieve all sentencing objectives.

43Please stand, Mr Ha.

44By the sentence I impose I must announce your conduct, punish you and deter you and others from committing crimes for the same or similar kind and I must also look to your rehabilitation.

45Taking into account the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of cultivation of a narcotic plant you are convicted and sentenced to 109 days' imprisonment, which I declare you have already served by way of pre-sentence detention, and a community correction order.  The duration of the community correction order will be two years.

46In addition to the core conditions, principally that you do not reoffend during the period of the order, I impose the additional special conditions.  Firstly, that you perform 100 hours of unpaid community work, and secondly, that you attend for supervision when required.

47As I have imposed a less severe sentence because of your plea of guilty, I declare, but for your plea of guilty, I would have sentenced you to 18 months' imprisonment and fixed a minimum non-parole release period of 12 months

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