Director of Public Prosecutions v Hoang

[2016] VCC 1605

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

AT GEELONG
CRIMINAL JURISDICTION

CR 16-01248

DIRECTOR OF PUBLIC PROSECUTIONS

v

MINH HAI HOANG

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Geelong
DATE OF HEARING:	27, 28 October 2016
DATE OF SENTENCE:	31 October 2016
CASE MAY BE CITED AS:	DPP v Hoang
MEDIUM NEUTRAL CITATION:	[2016] VCC 1605

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW

Catchwords:             Sentence; Drugs; cultivation of cannabis; criminal liability of house-sitter

Legislation Cited:     Drugs Poisons and Controlled Substances Act 1981 (Vic) s72A; Sentencing Act 1991 (Vic) s.5(2A)(ab)

Cases Cited:DPP v Duong [2006] VSCA 78; Pidoto and O'Dea [2006] VSCA 185; R v D'Aloia [2006] VSCA 237; Bui v R [2015] VSCA 313

Sentence:Three and a half years imprisonment with a non-parole period of two years and four months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K.J. Doyle
For the Accused	Mr S. Andrianakis

HIS HONOUR:

1Mr Minh Hai Hoang stood trial in these sittings.  On 27th of this month when the trial was to begin the matter was settled between counsel. 

2Indictment G10455792 was filed and the prisoner was arraigned. 

3Mr Hoang is 24, he was 23 at the time these crimes occurred.  He is unemployed.  Mr Doyle appeared on behalf of the Director, Mr Gullaci for Mr Hoang and Mr Andrianakis appears today. 

4The charge involved in the indictment is that from 6 February 2016 to 13th February 2016 the prisoner breached s.72A of Drugs Poisons and Controlled Substances Act in that he cultivated a commercial quantity of a narcotic plant, in this instance, being Cannabis L. 

5The legislature provides, pursuant to such Act, that the maximum penalty for such offence is a period of imprisonment of 25 years.  That alone is indicative of the seriousness of this offence and the intent of Parliament in regard to such offences.

6Mr Hoang, given his age and occupation, has no priors, as is not unusual in such cases.   

7I have made a forfeiture order at the plea hearing in regard to his car. The agreed value in regard to that car was some $7,000 and I take the fact that I made such a forfeiture order into account pursuant to the provisions of s.5(2A)(ab) as I'm required to do.

8I have also today signed disposal orders in regard to the items found and at both homes and the accoutrements therein. 

9I have indicated, given the reality of Mr Hoang's position, that it is not appropriate for a 464ZF order to be entered into. 

10The agreed pre-sentence detention as of today is 261 days. 

11Insofar as the criminality was concerned Exhibit A was filed, being the prosecution opening for the plea, which was tendered as Exhibit A.  Essentially, it involved excellent police work in the surveillance of two crop houses.  One at 195 Heyers Road, Grovedale and a second at Silky Oak Lane in Armstrong Creek.

12By way of summary, found in total at such premises were 577 plants of Cannabis L and 240 kilograms of product.  Such amounts place the criminality in a   quantity-based system.  The figure appropriate by way of plants for a commercial quantity is 100, for a large commercial quantity it is 1,000.  In those circumstances, on that scale, it is approximately half.

13Insofar as the kilogram quantities, the base level for commercial quantity is 25 kilograms, the level appropriate for large commercial quantity is 250.  Obviously, at 214, it is at the higher level for a commercial quantity.  Hence, on a quantity-based system on the range of plants, it is mid-range and is high on the scale in regard to the weight basis. 

14The prosecution accepted during the plea that Mr Hoang's role was that of a house-sitter and also, albeit that he was only present and is charged for the period of seven days in regard to this offence, that his role encompassed more than simply those seven days. 

15The summary provided by the prosecution, and the additional facts given to the Court by Mr Gullaci, would seem to indicate that this enterprise was a joint enterprise.  I am not particularly sure of the roles, however clearly, your brother, Mr Hoang, was involved as were two others who were named.  The fact is that each of those three persons have, subsequent to detection, removed themselves from the jurisdiction of Australia.  You are the only one left to bear the brunt of this criminality.

16As I say, that is not in any way to enhance your role.  I accept that I am to sentence you as a house-sitter only. 

17Mr Gullaci accepted that there could be no determination other than the motive in this case, being financial.  Given the seriousness of this matter, there was also no argument with the fact that a period of imprisonment is the only sentence appropriate, and that is a period of immediate imprisonment.

18It is necessary for me to go to some general legal principles that are applicable to this type of criminality.  As detailed by Buchanan JA in DPP v Duong [2006] VSCA 78 where Parliament prescribes a maximum penalty, as in this case of 25 years, such a penalty shows unambiguously how seriously the community, through its Parliament, views this particular crime.

19Indeed, it is irrelevant what particular drug is involved.  The system, essentially, is quantity-based.  We have in regard to the criminal provisions in this State a quantity-based sentencing regime.  I should point out, however, that the quantity of such has no arithmetical relationship to a sentence, but of course, is a very significant factor in the total sentencing process. 

20The particular regime, of which I have referred, was fully detailed by the Court of Appeal in R v Pidoto and O'Dea [2006] VSCA 185. In particular at paragraph 34 where four of the Appeal Court Justices in a joint judgment noted the structure that Parliament has adopted was:

"…a hierarchy of seriousness defined by and only by a quantity of the drug of dependence that has been trafficked".

21Obviously, the difference here is that we are not dealing with a trafficking charge, but the issue and involvement of the quantity still remains for the purpose of sentencing.  This case, clearly, is a cultivation case.

22In Pidoto and O'Dea at paragraph 62, the Court indicated the ultimate question for a sentencing court, given such structure is this:

“It is not whether in that case trafficking in one drug is to be viewed more seriously than the traffic of another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed in dealing with the material involved".

23Substitute in this case the word in that quotation, "Cultivation” for “trafficking".  As I have already remarked, Mr Hoang, the maximum penalty in regard to your offence is obviously one of great significance. 

24Nettle JA, as he then was, in R v D'Aloia [2006] VSCA 237, in particular at paragraph 56, set out the general approach for sentencing judges in these types of cases. In that particular case he was dealing with MDMA. He said as follows:

"As far as the effects of MDMA are concerned the matter may be approached on the basis that all the drugs which are described have deleterious consequences of anti-social proportions and that trafficking, (as I say, substitute, "Cultivation"), in any of them is therefore appropriate to be regarded as a serious criminal offence.”

25Insofar as the plea conducted on your behalf by Mr Gullaci, Exhibit B were the plea submissions tendered by him and they were actually undated but they were delivered to this Court on the day of your plea.

26Mr Gullaci stressed your age, the fact that you have been here in Australia since the age of 18 having come for education purposes.  That these offences were committed some five years later when you were 23 and you are now 24. 

27As I say, upon the evidence, it was agreed that you were to be sentenced as a sitter and Mr Gullaci made such point.

28You lived previously in Sydney where you completed your studies.  Your brother was also studying in Geelong.  After you completed your studies you apparently found it difficult to get employment and that is why you shifted to Geelong in September 2015. 

29It was put to the Court that thereafter it was the suggestion of your brother that led you to be involved in this sitting of crops.

30In November 2015 your brother actually leased the Heyers Road property in his own name.  As I said, Mr Gullaci conceded that the appropriate sentence for you, given the seriousness of these matters, must be gaol.  As I said to Mr Gullaci, given the objective e seriousness of this offending, the authorities demonstrate that a condign punishment is appropriate.

31It is noted that once you serve your sentence, because of your status in this country, you will be deported back to Vietnam.  In this instance, I was told that there was no need for me to take that into account as you, in fact, want to return to Vietnam. 

32Insofar as the assessment of the culpability, as I have said, I have assessed it as required on a quantity-based situation, however it would appear from Exhibit B, the photos as set out in the learned prosecutor's summary, this was a very sophisticated operation.  It would appear from the harvesting to date that this was and came, that is the apprehension, somewhere at the end of the first crop.  It is clear that the set-up was quite sophisticated and clearly it was intended that many more crops would be produced.

33Your own personal background is that you came here, as many young men come here from Asia, to complete studies, no doubt, at some considerable cost to your family.  You completed a foundation year at TAFE and then completed a Bachelor of Accounting between the years 2011 and 2014 at Curtin University.  You therefore, thereafter, worked in the retail industry as an intern.  Then you had difficulties in maintaining employment, and to stay here and continue your capacity to gain employment, you obtained, what is called, a 457 temporary work skilled visa.  That document was tendered as Exhibit 2. 

34In order to obtain that visa the so-called sponsor with whom you were supposed to be working, Sanai Trading Australia, was paid by you, I am told, the sum or $30,000.  That sum was apparently obtained from your parents, no doubt, from some loan organisation in Vietnam.  The intent was that, once you got a job and utilised this visa, you would thereafter from your earnings, repay the family's debt. 

35You apparently subsequently worked at Sanai Trading for a period of eight months, however, the company then went into administration. 

36To say this is a tragedy for you and for your family is an understatement.  Here, you come to Australia to give yourself a change of re-location and opportunity to get tertiary education, an opportunity to support your parents, which is obviously as I understand it, a particularly important responsibility in the Vietnamese culture, an opportunity where your parents, no doubt, invest in that support that you were to give them, and here you are now returning, albeit skilled, with a criminal conviction and with an unpaid debt of $30,000 upon your family.

37The whole process reeks of corruption, and as I said the other day, I would ask that the learned prosecutor when the sentencing remarks are finalised, refers Exhibit 2, which is your temporary work skill 457 visa, to the Commonwealth Attorney and the appropriate Department of Immigration and Border Protection.  How such a visa was granted in those circumstances, what the role of Sanai Trading is, how many visas it obtained, how many $30,000 it had paid to it before it conveniently then went under some eight months later, are all broader questions in the interests of this country.  It seems to me that such should be investigated. 

38As I have said, I have asked the learned prosecutor and the DPP to forward my sentencing remarks, and a copy of Exhibit 2 to the relevant authorities.

39However, those matters really do not directly affect you except to explain to this Court how you remained in Australia after having your visa which allowed you to obtain your education.

40The purpose of referring to those matters is simply to remark on the totality of the tragedy and impact of this criminality.

41There was, according to, as I have said - Mr Gullaci - no other motivation.  You were not a user of drugs in any way.  It is suggested that you received the sum of some $2,000 upfront and were to get $100 a day over the three months.  Apparently it is suggested you never got that.  Given the sophistication of this set-up, those instructions surprise me, and I would be very surprised if you would be so stupid to risk your liberty for such paltry sum.  I would imagine the amounts involved for you were far greater than that. 

42Your actual work essentially involved you mainly at the Heyers Lane address.  It is suggested, and it is difficult to know because the surveillance is not of great length, but the only time that you were - you were only observed to be at Silky Lane on the one occasion.  The DNA analysis at Silky Lane does not give any positives in regard to your DNA type and the suggestion from Mr Gullaci was that you were there while under surveillance only one day to assist your brother. 

43You have been on remand, as I said, awaiting sentence.  You have, necessarily, a limited group with whom to deal with in gaol.  You are, because of your position, in difficult circumstances because there is no-one to visit you. 

44Insofar as the matters put in mitigation, Mr Gullaci essentially relied on the matters set out in paragraph 5 through to paragraph 10.  He stressed your plea of guilty and the discount to which you are entitled because of the fact that that facilitates the course of justice.  I accept that that is appropriate.

45Mr Gullaci noted that you had no priors, however while that is a factor in your favour, it is a factor that often occurs in these matters, and indeed, why a person such as you are chosen by the people who are really making the money out of this criminality. 

46Mr Gullaci stressed your youth, which I have spoken about, and I accept that you are now remorseful for the position you find yourself in.  I also accept that you will find gaol more onerous because of your isolation from family and your limited English skills. I have already noted that you will clearly thereafter, because of the dimensions of this criminality and the sentence to be imposed, be deported to Vietnam after serving such sentence. 

47The prospects were put that you have prospects for rehabilitation, given the likelihood is that we will never see you again in Australia, that is not a matter of great concern, as far as I am concerned. 

48Mr Gullaci also referred me to the sentencing snapshots and I note the periods and the general figures involved, however, the periods set out there, it is to be noted, is from 2008/9 to 2012/13. 

49Insofar as the analysis of recent sentencing, as I pointed out to counsel, I have also, not only looked at those sentencing snapshots which the Court of Appeal have remarked on many occasions are just that, snapshots, but the recent case of Bui v R [2015] VSCA 313, which is a very similar case to yours, when there was a general analysis of sentencing carried out, by the Court of Appeal in these cases.

50Taking all those matters into account, and being as merciful as I can in the circumstances, I therefore propose to sentence you as follows.

51If you would stand up please, Mr Hoang.  For this offence and breach of the Drugs Poisons and Controlled Substances Act you will be sentenced to a period of imprisonment of three and a half years.  The minimum period that you are to serve before being eligible for parole is a period of two years and four months.

52Pursuant to s.18 of the Sentencing Act 1991 I declare that the pre-sentence detention that you have served of 261 days is to be deemed as service of this sentence and a copy of this declaration is to be recorded in the records of this Court.

53I, as I have said, have signed the appropriate orders that have been sought.  I have made the comments and referred these matters on insofar as the visa is concerned.  I think that is all I need to do, except probably, for 6AAA.

54MR DOYLE:  Yes.

55HIS HONOUR:  Insofar as 6AAA is concerned it is important that you are aware of the benefit to you of a plea of guilty.  The Government has required Courts, as best as they can - it is not always easy but it is a bit easier in your case being a single case only - to indicate clearly what would have been the consequences had you not pleaded guilty.  I indicate to you that the period that you would have otherwise been sentenced to is one of five years with a minimum period of three years to serve. 

56Hence, the actual sentence of three and a half with two years and four months is a discounted sentence and you have received such discount because of your plea of guilty.

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