Director of Public Prosecutions v Ho

[2022] VCC 138

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01214

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUU NGHIA HO

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2020
DATE OF SENTENCE:	17 February 2022
CASE MAY BE CITED AS:	DPP v Ho
MEDIUM NEUTRAL CITATION:	[2022] VCC 138

REASONS FOR SENTENCE
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Subject:  Criminal law
Catchwords:   Cultivation; Commercial quantity; “Crop sitter”; Guilty plea
Legislation Cited:                Drugs Poisons and Controlled Substances Act 1981, s72A
Cases Cited:  Doan v The Queen [2010] VSCA 250; Nguyen v The Queen
[2016] VSCA 198; DPP v Nguyen [2017] VCC 595; R v Talia
[2009] VSCA 260; Nguyen v The Queen [2021] VSCA 346
Sentence:  Convicted and sentenced to a CCO for 3 years with 300 hours
  community work and judicial monitoring

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. Stephanides	Office of Public Prosecutions
For the Accused	Mr J. Moore	Lethbridges Pty Ltd

HIS HONOUR:

1On 10 December 2020 you, Huu Nghia Ho, pleaded guilty to an indictment containing a single charge of cultivation of a narcotic plant in not less than a commercial quantity contrary to s72A of the Drugs Poisons and Controlled Substance Act 1981.  The maximum penalty for your offending is imprisonment for up to 25 years.

2The offence to which you have pleaded guilty took place in September 2015. Given the date of your offending, s 5(2H) of the Sentencing Act 1991 which would mandate a sentence of imprisonment does not apply to you.

3‘The circumstances of your offending are set out in the summary of prosecution opening dated 11 November 2020.[1]  In short, rental premises in Red Cliffs in north western Victoria were being used in September 2015 for the purposes of cultivating a large number of cannabis plants.  On 13 September 2015 the owner of these rental premises was attending to prepare the property to be re-let when it became apparent to him that the premises were being used for an illegal purpose and police were notified.

[1]        Exhibit A

4Police attended at approximately 11.15 am and confirmed a large number of cannabis plants growing hydroponically using a sophisticated lighting and plumbing system. 

5At approximately 8.30 pm you were observed driving a motor vehicle towards the premises and performed a U-turn before being subsequently arrested. 

6During the execution of a search warrant at the premises on the following day, a number of receipts from Bunnings Warehouse in Mildura relating to purchases on two dates in August of that year were discovered.  Some days later police viewed closed circuit television footage from that store depicting you attending in company with a second unidentified person where purchases were made matching the receipts found at the premises.  In addition to this, your fingerprints were detected on two light globes and a light shade at the premises.

7A total of 97 cannabis plants were seized from the premises and when analysed yielded a combined weight of 63.76 kilograms, or slightly in excess of 2.5 times by weight of the commercial quantity which is defined in the Act.

8When you were interviewed by police you made initial denials, which I accept may have been due to some initial panic or fear on your part following your arrest. The Crown accepts that you have pleaded guilty and the provisions of s6AAA of the Sentencing Act 1991 apply and you are entitled to a less severe sentence than would otherwise have been imposed as a result of your plea of guilty.

9You have no criminal history in Victoria or interstate, and there is no allegation that you have subsequently offended. 

Your personal circumstances

10You are presently 35 years of age and the offending occurred shortly prior to your 30th birthday.  I accept that you have no prior criminal history and you have refrained from any further offending since that date.  I will say more about this later.

11You have resided in Australia since 2012 and worked in a smallgoods factory from shortly after your arrival until 2014 when you were retrenched.  You were married in 2012 and fathered a daughter, Ivy, in May 2013 and a son, Rayden, in August 2014.  You were granted permanent residency status in Australia in approximately 2015, prior to this offending occurring.

12I accept the submission put by your counsel, Mr Moore, that you had separated from your wife in 2015 prior to this offending and the significant financial strain caused by your retrenchment had contributed largely to this separation.  I also accept that you have played a major role in the support and welfare of your two young children and you currently have a shared care arrangement with both children.

13In 2019 you commenced a new relationship with a Ms Tran, and you married in 2020.  You have worked over that period of time following your offending occasionally in farming and at a seafood shop, but your predominant activity at the time of the first plea hearing in December 2020 has been devoted to the care of your children.

14I accept the inherent difficulty in ascertaining the precise role you played in this criminality, although the Crown does not suggest that you were in a position to profit from the sale of the crop and your criminality should not be assessed on the basis of a role any higher than what is best described as a “crop sitter.”

15Your absence of prior criminality, the fact of you losing employment shortly prior to your offending and the absence in particular of any subsequent offending suggests that a very positive view can be taken of your potential for rehabilitation.  I regard your potential for rehabilitation as excellent. l have noted the other matters set out in Mr Moore's helpful outline for the defence submissions which were made on your plea.[2]

[2]        Exhibit 1

16I have taken into account two character references.  The first was provided by Mr Dong Khuu, who has known you for over seven years and conducts a plumbing business.  His reference indicates that at some appropriate time, he hopes to employ you within that business.  A further reference from Thanh Tuan Ho, a family friend whose children attend school with your own children, was also tendered.  This reference is also supportive and was noted in the evidence.

Sentencing considerations

17Any participation in the cultivation of a narcotic plant well in excess of the threshold for a commercial quantity must be regarded by the courts as constituting serious offending.  The maximum penalty imposed by parliament gives clear intention of the serious impact of this type of offending on our community.  The sentencing considerations of general and specific deterrence, manifest denunciation of the engagement in this type of conduct and the imposition of just punishment must feature significantly in any sentencing consideration.

18Mr Moore in his outline of submissions conceded that:

“A term of imprisonment is almost always ordered with offending of this kind.”

19Notwithstanding this concession however, he submitted that your offending and features of the manner in which you have been prosecuted, most notably the significant delay, constitute a rare case such as to justify the imposition of an entirely non-custodial disposition in your case.

20The submissions on behalf of the Crown suggest that a sentence of imprisonment is warranted, notwithstanding the relatively low level of involvement in the overall criminal exercise played by you.  I was referred to appellate authorities in Doan v The Queen[3] where the court emphasised the need for general deterrence as an important consideration in sentencing for this type of offending notwithstanding the relatively menial nature of the work performed by the appellant in that case.  This case was also considered with approval more recently in a decision in Nguyen v The Queen.[4]

[3] [2010] VSCA 250 at [11]

[4] [2016] VSCA 198

21

Mr Davison who at that stage appeared on behalf of the Crown, (December 2020), also referred me to a further decision DPP v Nguyen,[5]  in this court where a sentence of two years’ imprisonment with a minimum period of

13 months before eligibility for parole was ordered.

[5] [2017] VCC 595

22The factual scenario of the offending in that case is not dissimilar to circumstances of your offending, although the quantity and weight of the cannabis in that case was noted to be slightly less.

23A significant distinguishing feature in your offending is in my view the delay of a period initially in excess of five years between your offending and your initial plea hearing.  Mr Moore on your behalf has described this delay as “significant and inexplicable”.  I accept that it is certainly significant and it would appear not to be due to any actions on your part to avoid prosecution. 

24I do not in any way place blame on the prosecutorial authorities as it may well have been that attempts were being made during that period to locate other offenders playing a more significant role in this overall illegal exercise. 

25I do accept that the evidence of delay for this period of time has been relevant particularly in two respects.  First, it has subjected you to a prolonged period of uncertainty and anxiety about the outcome of this matter, and secondly, I accept Mr Moore’s submissions that you have used the time well to reform yourself. 

26I was referred in submissions to the Court of Appeal’s decision in R v Talia:[6]

“Delay may stand as a powerful mitigatory factor.  If the accused has not reoffended in the lengthy period between offending and sentence, it will tend to show that there is an enhanced prospect of rehabilitation.  There is also a question of fairness in the event that the matter is left hanging over an offender’s head during an apparently leisurely process of investigation and prosecution.  The longer the period of delay, the greater its likely weight as a mitigatory circumstance, particularly when the delay is not attributable to the conduct of the accused.

Again, whilst it is not necessary for delay to operate as a circumstance of mitigation, that it be unexplained, the fact that it is not attributable to the conduct of the accused will likely make it of greater significance.”

[6] [2009] VSCA 260 at [22]

27In your case I am satisfied that the delay, bearing in mind your status as a permanent resident visa holder and not an Australian citizen, is of particular significance to you, bearing in mind the current sentencing practises which would indicate in ordinary circumstances that a head sentence with a minimum term is the most common sentence imposed for this type of offending. 

28I do accept that your absence of further criminality, coupled with your plea of guilty, and indeed your genuine attempts to involve yourself in the care of your family and to work wherever possible is indicative of genuine remorse for your offending.  I also accept that the significant role you have played in your young children’s’ upbringing in recent years provides strong evidence of your positive prospects of rehabilitation.

29Subsequent to your initial plea hearing on 10 December 2020 the sentencing was deferred for a period of 12 months principally on the basis that you had been assessed as unsuitable for a community corrections order as community work was at that time unavailable due to Covid-19 constraints. 

30

Further submissions were made as to the sentencing disposition on

16 December 2021.  I note that at the time those submissions were made you had continued to remain abstinent from any criminal activity and had generally managed to combine employment and a brief period of self-employment in order to support your dependent children together with care for those children.

31At your further plea hearing I was quite properly referred by Ms Stephanides to the recent decision of the Court of Appeal in Nguyen v The Queen[7].  This case emphasised the importance of general deterrence as a sentencing objective for this type of offending and the importance of necessary publicity being given to the imposition of appropriate custodial sentences so as to provide others in the community who might contemplate offending of a similar kind to gain an awareness of the severity with which such offending will ordinarily be dealt.

[7][2021] VSCA 346

32Consistent with that decision the submissions made most recently on behalf of the prosecution by Ms Stephanides on 10 February 2022, maintained the importance of general deterrence and urged the court to impose a sentence involving at least some component of an immediate term of imprisonment perhaps combined with a community corrections order, noting that the significant delay in your case would justify a lesser sentence than one which would ordinarily follow from the nature of your offending.

33Mr Moore on your behalf at that stage submitted that the entirety of the circumstances in your case, including what was now a delay of approximately six and a half years from the time of your offending should justify the imposition of a community corrections order with appropriate punitive conditions.  Mr Moore further submitted that the appellate court’s intentions set out in Nguyen v The Queen most recently noted the importance of publicity being given to the sentence imposed.  A custodial sentence in your case would not provide anything other than a confusing message to the community, given the extensive delay between the offending and the imposition of a sentence.

34In my view the overall circumstances of the sentencing exercise warrants a course being taken as submitted on your behalf by Mr Moore.  The initial significant delay of five years between the date of your offending and the date of your initial plea hearing would in my view have justified the imposition of a combination sentence rather than a significantly longer sentence of imprisonment involving a head sentence and a minimum term.

35The further additional delay, now approaching another 15 months, in circumstances where there had been an inability to provide community work as a punitive condition in a corrections order was again in no way attributable to your fault or indeed to any fault on behalf of the prosecution authorities.  This further delay occurred in circumstances where you have remained abstinent from crime and have continued to engage in employment and self-employment and to provide support for your dependent children wherever possible. 

36The circumstances of the entirety of your case do not, in my view, provide a suitable vehicle for the promotion of the importance or the significance of general deterrence as a sentencing guideline for your offending.  I acknowledge the importance of the courts  heeding the call to deter others from offending in a similar manner to the way you had offended in September 2015.  A sentence of immediate incarceration in February 2022 would not in my view provide for a just sentence in the highly unusual circumstances of your case.

37Would you stand up now please, Mr Ho?

38I propose to sentence you as follows:

39On the charge of cultivation of a narcotic plant in a quantity not less than a commercial quantity, contrary to s72A of the Drugs Poisons and Controlled Substance Act 1981, you are convicted and sentenced to a community corrections order for a period of three years.

40In addition to the core conditions, there will be special conditions as follows:

· perform unpaid community work in accordance with s48C of the Sentencing Act for a total of 300 hours as directed by the regional manager.

·        you will be required to undergo judicial monitoring pursuant to s48K and I will direct you to attend for a review on 18 May 2022, that is three months from today's date.

41I note that you have served one day pre-sentence detention in relation to this matter and I direct that that be noted in the records of the court.

42Pursuant to s32 of the Confiscation Act 1997 I order that the property referred to in the schedule be forfeited to the Minister. There is no objection to that, Mr Moore?

43MR MOORE:  No.

44HIS HONOUR:  I will just note that is:

1.Black Samsung Mobile Phone (Exhibit 93)

2.White Card with Hand Writing Address and Phone Numbers (Exhibit 94)

3.Black Relic Men’s Wallet (Exhibit 96)

4.Cash sealed in T684695 (Exhibit 97)

45Pursuant to s6AAA of the Sentencing Act  I declare that the sentence that would have been imposed but for your plea of guilty would have been two years and six months' imprisonment with an eligibility for parole after serving 18 months of that sentence.

46As far as the community correction order is concerned, I will provide those to my associate.  Mr Moore, I appreciate we do have an interpreter, do you wish to assist in explaining that to your client before I - - -

47MR MOORE:  I think that would be appropriate and I would ask the matter be stood down for that to occur.  It would probably only take five or 10 minutes but do it carefully - - -

48HIS HONOUR:  I'll just leave the Bench.  I will sign the forfeiture before I do rise.  Ms Stephanides, in my sentencing reasons I haven't specifically made reference to the Worboyes discount that would be applicable, I simply describe the whole of the circumstances of this case but I will just record on the transcript that Worboyes is just a further matter that justified a more significant discount than would otherwise have been the case and again I record that I am in no way critical of the prosecution authorities for the particular delay.  It may well have been that this offender was seen as a smaller fish in the overall pond but in the circumstances we cannot have people waiting six and a half years to be sentenced.

49Thank you, I will just stand the matter down and I will wait around in the vicinity of court and my associate can let me know when we are ready to proceed.

(Short adjournment.)

50HIS HONOUR:  Mr Moore, you've had an opportunity to speak to your client.  Is he agreeable to the terms of the community correction order?

51MR MOORE:  He is indeed, Your Honour.

52HIS HONOUR:  I will have my associate put that to him through the interpreter.

53ASSOCIATE:  Huu Nghia Ho, do you agree to abide by the conditions of a community correction order?

54ACCUSED:  (Through interpreter)  Yes, I do.

55ASSOCIATE:  Is that your signature?

56ACCUSED:  Yes.

57HIS HONOUR:  Mr Ho, you will appreciate I have given you a very significant opportunity today.  And by agreeing to abide by the terms of that community correction order you must do the hours of unpaid community work and you must report back to this court in three months' time for me to assess how you're going.  All right?

58If you breach that order then that of itself is a separate offence but importantly if you do breach that order it leaves it open to myself or another judge of this court to re-sentence you in relation to this offending back in 2015.  If that were to happen then almost certainly you would go to gaol and that would have very serious effects on your family life and your ability to work, do you understand that?

59ACCUSED:  Yes.

60HIS HONOUR:  So I have given you that opportunity, I've indicated in my reasons that I think you will keep free from crime.  Please don't let myself down, don't let yourself down and don't let the community down.

61ACCUSED:  Yes, thank you, Your Honour.

62HIS HONOUR:  If you've signed that order, you're now free to go and I thank you very much Mr Moore and Ms Stephanides for your most helpful submissions in what's been quite an unusual case.

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