Director of Public Prosecutions v Hieu Van Le
[2014] VCC 561
•29 April 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00379
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HIEU VAN LE |
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JUDGE: | CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2014 | |
DATE OF SENTENCE: | 29 April 2014 | |
CASE MAY BE CITED AS: | DPP v Hieu Van LE | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 561 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Cultivation commercial quantity cannabis – young offender – no prior convictions – crop sitter – cooperation with police – undertaking to assist prosecution – suspended sentence of imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J McWilliams | OPP |
| For the Accused | Ms T Hartnett | Robert Stary Lawyers |
HIS HONOUR:
1 Hieu Van Le, you have pleaded guilty to two charges of cultivating a commercial quantity of cannabis. The offending occurred between 18 July and 23 July 2013. You have no prior convictions.
2 Each charge carries a maximum penalty of 25 years’ imprisonment. The facts of the case were opened by Mr McWilliams and are contained in the Prosecution Opening, Exhibit A in these proceedings.
3 In brief summary, you were the subject of police surveillance at a property at 5 Kent Court, Keysborough. Upon leaving the house on 23 July 2013, you were arrested by Victoria Police and the property was searched. Inside was a large and sophisticated hydroponic setup, used for growing cannabis. The house was separated into four separate grow rooms with a further grow room in the garage. Electricity had been bypassed resulting in unmetered electricity being supplied to the property. Police seized and searched your mobile phone and found reference to a second address at 43 Monash Crescent, Clayton South. They searched this property on 24 July 2013 and found a large and sophisticated hydroponic setup similar to that found in the Keysborough property, complete with electricity bypass. As a result of searches conducted on both properties, police seized 138 cannabis plants weighing 22.2 kilograms from the Keysborough property and 222 cannabis plants weighing 83.6 kilograms from the Clayton South property.
4 You were interviewed on the day of your arrest and told police that you had been offered rent-free accommodation, a car and payment of your education expenses in return for residing at the properties. On 7 March 2014 you made an evidentiary statement to police wherein you admitted to being aware the houses were being used to cultivate cannabis and you provided police with the names of two other people involved in the cultivation.
5 Ms Hartnett, who appeared on your behalf, told me something of your background. You are the second of three children and your family resides in a small coastal village in Vietnam. You completed the equivalent of Year 11 in Vietnam in June 2012 before arriving in Australia on 2 April 2013 on a student visa. Upon your arrival, you commenced an English course at the Melbourne Language Centre in Carlton while working casually as a dishwasher in a local restaurant. It now seems clear that it is likely that you will be deported upon completion of your sentence.
6 On your behalf, Ms Hartnett submitted that I take into account the following matters by way of mitigation:
(a) You were only 18 years of age at the time of the offending and you are now 19;
(b) You do not have any problems relating to drug or alcohol use, or gambling;
(c) You have spent the last 280 days in custody and have made no application for bail;
(d) You are separated from your family, who still reside in Vietnam, and this has meant you feel isolated;
(e) You have no criminal history;
(f) Importantly, you were cooperative with police and provided additional information that with assist them with their prosecution of a co-accused;
(g) Your time in custody has been a salutary experience.
7 Importantly, you gave an undertaking to, if called upon, give evidence against your co-accused.
8 Ms Hartnett characterised your position as that of a crop sitter who derived no monetary benefit from the offending. The prosecutor agreed with this characterisation. It is apparent that you had nothing to do with the hydroponic setup in the properties.
9 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
10 I am also required in this case to put in the balance the interests of the community in securing the cooperation of people such as you in the fight against crime. This is regarded as a matter of high public policy, the benefits of which are not likely to ensue without substantial inducements. I formally declare that I have reduced your sentence as a result of the undertaking that you have given to give evidence if called upon in accordance with the statement dated 7 March 2014 and marked as Exhibit 1 and I direct that a declaration to that effect be recorded in the records of the Court.
11 The cultivation of drugs is pernicious. Drugs affect the health and lives of many and are often found as the cause of other serious offending. The cultivation of drugs in the quantities here concerned is a most serious crime. So much is made clear by the maximum penalty that has been provided by the legislature, 25 years’ imprisonment.
12 The cultivation of drugs hydroponically in commercial quantities has become prevalent. General deterrence and community protection must therefore play a significant role in the sentencing process. That is so notwithstanding, as is the case here, that you are only involved as a ‘crop sitter’. I accept that you were not involved in the setup of the sophisticated hydroponic system or the bypass of electricity; there is nothing to suggest that you were going to profit financially from the exercise. I am reasonably satisfied that you were manipulated and to a degree controlled by others. It is clear that the process of the cultivation here was reasonably sophisticated and well-planned. I, of course, only sentence you for your involvement and not that of others but it is clear that crop sitters do constitute a necessary element to a successful undertaking. Without people such as yourself the enterprise would fail. Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence. In your case I accept that your culpability is at the lower end of the scale.
13 Your sentence is also less severe than I would have imposed had you pleaded not guilty. I accept the submission of your counsel that I should regard your plea as reflecting your early indication of a willingness to plead guilty to the counts the prosecution ultimately accepted. Your plea saves time, expense and the need for witnesses to give evidence and is reflective of remorse. Further, special considerations apply to the sentencing of young offenders such as yourself. Rehabilitation is considered far more important than punishment and where possible the sentencing of youthful offenders should not be used as appropriate occasions for the giving of general deterrence messages.
14 I have already noted that you have no prior convictions. However, this Court and other criminal courts have said on many occasions that in drug cases such as yours, the fact that an accused has a clean record will have less significance than in other areas of crime. Very frequently, those selected to place themselves in the chain of drug cultivation and eventual trafficking, as you were, are selected because their records, their past and their lifestyle will not attract suspicion. It is this in particular which has led the courts to take a view which does not extend the same degree of leniency being extended to first offenders. As I now understand it you will likely be deported when you are released from custody and I consider that your prospects of rehabilitation may best be served by your return to Vietnam. I take this into account when fixing your sentence. I take into account your age and that your detention in custody has been difficult. You are away from your family and have been isolated in the prison system. You are otherwise of good character and I am satisfied that you had legitimate reasons to be in Australia and did not come here in order to participate in this offending. I am satisfied that you have good prospects of rehabilitation.
15 As the offending to which you stand to be sentenced forms part of a series of offences of the same character, I intend to impose an aggregate sentence pursuant to s 9 of the Sentencing Act 1991. I propose to suspend a portion of the sentence that I impose, but before I do that I am obliged to tell you that you have been convicted and sentenced to a term of imprisonment, but that you will not have to serve the whole of that sentence immediately. However, if you commit an offence punishable by imprisonment, either in Victoria or elsewhere, during the period of the suspension, then you may be brought back to be further dealt with, and absent exceptional circumstances, will be required to serve the balance of suspended sentence. Do you understand that?
16 OFFENDER (through interpreter): Yes, Your Honour.
17 HIS HONOUR: Very well, please stand. On both charges of cultivating a commercial quantity of cannabis you are convicted and sentenced to an aggregate term of 20 months’ imprisonment. I direct that 10 months of that sentence be suspended for an operational period of 24 months.
18 I declare that 280 days of pre-sentence detention be reckoned as having been served under the sentence and I direct that a declaration to that effect be recorded in the records of the court.
19 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 3 years’ imprisonment with a non-parole period of 2 years. Needless to say you would not have received any benefit for cooperation with the authorities.
20 I have made the disposal and retention of forensic sample orders by consent. I do so because of the seriousness of the circumstances of the offending and because the application is by consent.
21 Anything else from counsel?
22 COUNSEL: No, Your Honour
23 HIS HONOUR: Thank you, remove the prisoner please.
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