Director of Public Prosecutions v Ho

[2019] VCC 667

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted

     Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00001

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAN HO

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2019
DATE OF SENTENCE:	15 May 2019
CASE MAY BE CITED AS:	DPP v Ho
MEDIUM NEUTRAL CITATION:	[2019] VCC 667

REASONS FOR SENTENCE
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Subject: Sentence
Catchwords: cultivate commercial quantity of narcotic plant – crop sitter over 2 days – limited role – early guilty plea – foreign national – isolation in prison
Legislation Cited:
Cases Cited: Director of Public Prosecutions v Cong Hai Ngo [2016] VCC 1035
  Ngoc Nguyen v The Queen [2017] VSCA 286
Sentence: 9 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Ms A. Keath Ms. G. Daniel
For the Accused	Ms S. Crowe	Victoria Legal Aid

1HIS HONOUR:  Dan Ho, you have pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant, namely cannabis L.

2In August 2018, police received a tip-off from an energy supplier about unusual electricity usage at a house at Mont Albert. 

3On 9 October, 2018, police went to the address.  There was no-one present.  On 10 October, around 6.30 in the morning, they returned and saw you leaving the house in your car. 

4They obtained a warrant to search the premises and, on 11 October, they returned again at 6.22 am, where they saw your car parked on the front lawn.  When police entered the house you were inside.  They arrested you as you tried to leave.  You were cooperative when you were arrested. 

5Inside the house, four rooms were being used to grow cannabis plants hydroponically.  There were 185 plants which weighed 90.25 kilograms in total.  A commercial quantity of cannabis is 100 plants or 25 kilogram.

6After your arrest, you were charged and remanded in custody.  You pleaded guilty to the drug cultivation charge at the first committal mention hearing.  That is, at the earliest opportunity. 

7In its summary of prosecution opening, the prosecution described your role as:

'A crop-sitter over two days between 10 and 11 October, 2018.'

8You were born on 24 October 1980 in Vietnam.  You have no criminal history.  Ms Crowe who appeared on your behalf, told me you were born into a poor family who lived in a farming province.  When you completed the equivalent of Year 12, you wanted to go to university to study engineering, but because your family could not afford to support you whilst you studied, you obtained labouring work earning low wages.

9While you were labouring, you met your wife.  You married her on 16 January 2011.  Your older child, Thi, was born on 22 March 2012. 

10You, with your wife and daughter, lived with your family.  As the youngest sibling, and younger son, you had the responsibility to look after your parents.  They both worked but, like you, earned low income.

11You heard there were opportunities to do farm work in Australia, earning higher wages which would help you better support your family.  On 6 August 2016, you arrived in Australia on a visitors visa.  Your second child, Hai, was born one month after you arrived. 

12You got work picking fruit outside Melbourne, and sent most of your pay home to your family.  Your earnings, while less than the Australian minimum wage, were more than what you could earn in Vietnam, so you overstayed your visa and continued working here.  Your farm work stopped when your employer learned you had overstayed your visa. 

13You decided to return home to Vietnam and, in the context of needing to obtain money for your plane fare, you accepted an offer to tend to this cannabis crop for $100 to $200 a day.  You were never paid.

14On remand, you have been held at Fulham Gaol.  There, you have worked as a milk billet, and you have used your earnings to make phone calls to your wife weekly.  You have undertaken the vocation and education programs made available to you.  I have read the certificates of completion of courses and a letter from the English teacher at the prison, which were Exhibit 2 on the plea.  She described you as:

'Quietly committed to learning, diligent, always polite to her and respectful to other students.'

15Ms Crowe, in written submissions, which were Exhibit 1, and oral submissions relied on the following factors in mitigation of penalty:

16Your guilty plea made at the earliest opportunity, for its high utilitarian value and evidence of your remorse; your limited role, that you have no criminal history; your good prospects of rehabilitation, taking into account your family support, your responsibilities to family; that you have no substance abuse problems or mental health issues and that you have no criminal history. 

17She also relied on the additional burden of your incarceration due to your isolation in Australia, from your family. 

18I accept the force of her submissions. 

19The offence to which you have pleaded guilty is serious.  It is a Category 2 offence which means I must impose a term of imprisonment other than a term of imprisonment combined with a community correction order, unless I am satisfied a specified pre-condition exists. 

20Ms Crowe did not argue there were any circumstances for or about you to escape the reach of the parliamentary provision (which is s.5(2H) of the Sentencing Act).

21As a yard stick, Ms Crowe referred me to another sentence of this court, Director of Public Prosecutions v Cong Hai Ngo [2016] VCC 1035. In that case, a term of imprisonment of nine months was imposed on an offender who had pleaded guilty to the same offence as you.

22Mr Roper, who appeared for the prosecution, acknowledged there were a number of similarities, perhaps striking similarities, between Ngo and you, that is, between the circumstances of his offending and personal circumstances, and yours.  Mr Roper also noted there had been no Director's appeal in respect to that sentence of nine months.

23I was also referred to the case of Ngoc Nguyen v The Queen [2017] VSCA 286 and specifically the table of a large number of sentences of this court and relevant appeals for crop-sitters, as you were.

24I have considered the helpful summaries of those cases and the case of Ngo which I find to be a useful comparison. 

25In all the circumstances, I have decided a term of nine months' imprisonment is appropriate in your case.  Please stand Mr Ho.

26On the charge of cultivating a commercial quantity of a narcotic plant, you are sentenced to a term of nine months' imprisonment. 

27I declare you have served 217 days, not including today, by way of pre-sentence detention. I declare, pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of 14 months' imprisonment. 

28I make an order for disposal of the cannabis and the equipment associated with its cultivation and I make an order for the taking of a forensic sample.  The sample will be a swab of your saliva. 

29I must inform you that if you refuse to give the sample, police may use reasonable force to obtain one from you.  You may have a seat, Mr Ho. 

30Ms Daniel, have I got the correct figure for pre-sentence detention?

31MS DANIEL:  Your Honour, we both agree it's 216. 

32HIS HONOUR:  216, is that right, Ms Crowe?

33MS CROWE:  Yes, Your Honour.

34HIS HONOUR:  Mr Ho, I declare you have served 216 days, not including today, by way of pre-sentence detention.  So you have effectively served seven months' and you will be released in two months.  All right, thank you, you may be seated.  Are there any other matters?  Ms Crowe?

35MS CROWE:  No, Your Honour.

36HIS HONOUR:  Ms Daniel?

37MS DANIEL:  No.

38HIS HONOUR:  Thank you for your assistance both.  Please remove Mr Ho.  Ms Tran, thank you for your assistance.  Adjourn till 10.30. 

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