Director of Public Prosecutions v Hoang

[2016] VCC 1123

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00108

DIRECTOR OF PUBLIC PROSECUTIONS

v

MINH HOANG

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2016
DATE OF SENTENCE:	5 August 2016
CASE MAY BE CITED AS:	DPP v Hoang
MEDIUM NEUTRAL CITATION:	[2016] VCC 1123

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hamill	Office of Public Prosecutions
For the Accused	Mr R. Thyssen	Victoria Legal Aid

Pages 1 - 5

 

 

HIS HONOUR: 

1Min Van Hoang, on 3 November 2015 you were arrested a short distance from a house at 43 Callister Street in Shepparton.  You had been observed at this premises from 4 October 2015.  When arrested you had keys to the house and a number of hardware receipts for items used in connection with cultivation of cannabis.  A search warrant was secured and the premises at 43 Callister Street, Shepparton were searched.  Eight of the nine rooms in the premises had been converted to growing cannabis.  There was a total of 135 plants at various stages of development.  The total weight of the plants was 36.63 kilograms.  There was also seven kilograms of harvested cannabis.

2Cultivation methods were sophisticated.  Lighting that had been installed was such as to allow the plants to be grown indoors.  Power had been bypassed to allow for higher volumes of electricity to be consumed without detection or cost.  There were filters and timers, transformers and reflectors.  These are all expensive items indicating that there was significant resources being expended and a determination to grow large quantities of cannabis for profit.

3Given the considerable efforts and expenses involved in setting up this indoor horticultural enterprise, plants in each of the rooms were strong and healthy.  Photographs tendered on the plea reveal this.  The yield of usable drug was likely to be very high.  These were plants at various stages of growth indicating that the harvest would be planned to be regular, providing ongoing cash flow.  All the features found in this house are common with suburban houses that had been converted into cannabis production houses.  The crime is hard to detect and even harder to establish who are the main players in the cannabis production and distribution chain. 

4Product grown by the cultivators has serious adverse effects on many users and the community bears a great cost as entrepreneurial cannabis cultivators profit significantly.  The entrepreneurial cultivators have for some time sought to avoid their own detection by having vulnerable individuals mind the crops.  These crop sitters, as they have become known, ensure that the equipment continues to operate.  Also they provide, it would seem, from time to time a degree of security for the crop.  Most importantly they keep the entrepreneurs at arm's length from the crop while it grows to a saleable product.

5When the sitters are arrested with the crop, as is the case here, it seems the entrepreneurs often avoid detection.  You were a crop sitter and will be sentenced as such.  Whichever way this is looked at, though, the gravity of the offending is clear.  This was a significant operation worth a large amount of money.

6On arrest you indicated that you were residing at the house and you had met a person at a party who wanted you to look after the house for him for about five weeks.  That person promised to pay your wife $3,000 or thereabouts per month to look after the plants.  I was told that you received $550.  There is no further information provided about this person that made this offer to you.

7You are currently 34 years old.  In 2014 you came to Australia on a student visa.  It was a condition of your visa that you enrol in a course of study, but in the end you did not enrol for sufficient time and the student visa was cancelled and your continued presence in Australia at the time of your arrest was unlawful.

8Mr Hoang, you were well educated in Vietnam and worked as a primary school teacher for about four years.  You were not well paid in that profession and moved into factory work.  You have been married for about seven years.  Your wife is a nurse.  You have a young son.  You came to Australia with the help of a brother-in-law in order to be able to better provide for your family.  That has comprehensively failed due to your crime and incarceration, but I consider that you do have prospects of reform upon your return to Vietnam.

9The sentence will be less because you pleaded guilty and did so at an early time.  You have no criminal history and I have taken that into account in your favour.  It would seem by operation of the Commonwealth Migration Act you will be deported given the cancellation of your student visa and potentially as a result of these crimes.

10The crime of cultivating cannabis in a commercial quantity is punishable by a maximum term of 25 years' imprisonment.  Deterrence is of primary importance given the prevalence of this offence.  It is necessary that deterrence be to all those involved in this entrepreneurial drug cultivation activity, including those who take it upon themselves to be crop sitters.  That said, I do not overstate your role.

11It is also important to denounce your crimes.  That is you became involved in criminal activity which does have a detrimental effect on many in this community and you must face the consequences.  The only appropriate sentence is one of imprisonment, grave as that always is.  I will fix a non-parole period; whether you are released on parole is a matter for others, not me.  I do take into account that you will do prison harder because of your limited English, though I note to your credit you are undertaking English language courses in the prison.

12There is no one set figure for crimes of this sort.  In your case I consider you are remorseful and have good prospects for permanent reform.  The sentence that I impose is this:  for committing the crime of cultivating cannabis in not less than a commercial quantity you are sentence to 25 months' imprisonment and I fix a non-parole period of 12 months.  Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of 36 months with a non-parole period of 24 months.

13You have already served 276, was it?

14MS HAMILL:  Yes, Your Honour.

15HIS HONOUR:  Two hundred and seventy-six days of pre-sentence detention on remand; this figure having been reckoned, I declare that the amount of time you spent in prison be part of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court so the prison authorities will have no doubt that the time that you spent in prison, 276 days, is counted as part of the sentence I have just imposed. 

16There are a number of orders the prosecution has sought and I intend to grant them all.  One of them is that you - I am sorry, you did tell me that he had already provided the sample.

17MS HAMILL:  That's correct, yes.

18HIS HONOUR:  They are for disposal and forfeiture.  I will make those orders.  Is there anything else required?

19MR THYSSEN:  No, Your Honour.

20MS HAMILL:  No, Your Honour.

21HIS HONOUR:  One of the forfeiture orders is for the car.

22MS HAMILL:  That's correct, Your Honour, yes.

23HIS HONOUR:  Is it his car?  I thought he had borrowed it off someone.

24MS HAMILL:  No, it is his car, Your Honour.  There is a registration notation in the depositions.

25HIS HONOUR:  Thank you.  Make those orders, please.  Nothing further?  I thank counsel for their considerable assistance.  Mr Thyssen, thank you very much for the efforts in this case and the one before.  Without the benefit of interpreters for conferences and the like it is not easy.

26MR THYSSEN:  Yes, Your Honour.  Thanks.

27HIS HONOUR:  Mr Hoang can be removed, thank you. 

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