Director of Public Prosecutions v Hoang

[2016] VCC 233

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02063
CR 15-02064

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIEN TY HOANG
THI VIET LE

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2016
DATE OF SENTENCE:	26 February 2016
CASE MAY BE CITED AS:	DPP v HOANG
MEDIUM NEUTRAL CITATION:	[2016] VCC 233

SENTENCE - EX TEMPORE
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Subject: Cultivate Commercial Quantity.

Sentence:18 months imprisonment/ 2 months non-parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Roper
For Accused HOANG	Ms P. Smith
For Accused LE	Mr R. Lawson

HIS HONOUR:

1Tien Thy Hoang and Thi Viet Le, you have each pleaded guilty to a charge of cultivating a narcotic plant, namely cannabis L, in a quantity that was not less than the commercial quantity applicable to that plant.

2In passing sentence upon each of you, I must have regard, as I do, to the maximum penalty for this offence which is 25 years imprisonment.  As each of you can see, from the penalty which the Parliament has prescribed, this offence is a very serious one.  Your offending is summarised in a prosecution opening which was read to the court by the prosecutor, Mr Roper. 

3Ms Smith of counsel, who appeared on behalf of you Ms Hoang, and Mr Lawson of counsel, who appeared on behalf of you Ms Le, did not suggest that the prosecution opening or summary was wrong in any way and I can use that brief summary as a proper basis upon which to sentence each of you for this offence.

4You, Ms Hoang, were born on 5 March 1995 and within the next week or so will attain the age of 21 years.  You, Ms Le, were born on 23 February 1990.  You have just turned 26 years of age.  Your offending occurred over an eight day period only between 19 August 2015 and 26 August 2015, when you were both apprehended by the police, occupying a property in Sunbury.

5It is conceded by the prosecution that the role of each of you in this offending was confined to a period of eight days, and you were each, for want of a better way of putting it, crop sitters.  That is to say, you were occupying the house at which the crop was being cultivated.  Each of you were vulnerable in my view to be manipulated and used by others who had set up this crop, for the primary purpose of making a lot of money.

6You were both alone in Australia for a short period of time and in a powerless financial situation and were attracted by an offer of a roof over your head, for which you would be paid $500 per week.  When police raided the property, they found 219 plants of cannabis, of which 23 were bud seedlings and the total weight of the narcotic plants seized was some 46.889 kilograms.

7Police also seized mobile phones, money transfers and the crop and the paraphernalia used to grow it and I have been asked to sign disposal orders in respect of those items.  You were both arrested on 26 August 2015 and taken to the Sunbury Police Station.  You have not been interviewed because apparently no Vietnamese interpreter was available and so we do not know fully your side of the story.

8That is somewhat unimportant in dealing with this matter, because it is conceded the role of each of you was limited to that of being the crop sitter.  Of course being a crop sitter cannot be dismissed lightly because the experience of the courts is that having a crop sitter is almost a necessary ingredient for maintaining a crop.  However, in this particular matter, because you were only involved for a period of a little over one week, I accept for the purposes of sentencing, that the role of each of you was limited and very confined.

9Each of you has pleaded guilty to the charge and a plea of guilty was entered at committal mention on 19 November 2015.  The law says that I must take into account the fact that you have each pleaded guilty arriving at an appropriate sentence.  I must also take into account the time at which you do so and I treat each of you as having pleaded guilty to the charge at the earliest possible opportunity.

10By your pleas, you have each saved the time and cost of both a committal and trial and so your pleas are of, in my view, of considerable value and this will be reflected in the sentence that I shortly pass.  Also, it must be said that I regard your pleas of guilty as evidencing genuine remorse for what you have done and that goes to the issue of your prospects of rehabilitation which in the case of each of you I regard as good.

11I turn now to the background of each of you and I will deal with you first Ms Hoang.  You were born in Vietnam and you are the second youngest of four children.  From the little I know of your parents, they appear to be hardworking people.  Your father running his own business as a butcher and your mother, a music teacher.  You had a good upbringing in a happy and loving family and you attended school reaching Year 12 equivalent in Vietnam.

12You came to Australia in October 2013 on a student visa alone when you were 18 years of age.  You enrolled in a general English course at Deakin University which you completed in February of 2014.  Your parents funded your initial tuition fees.  You had worked for modest wages as a waitress in a restaurant, and also working as a nail technician.  You had enrolled to commence a Diploma of Commerce at the Melbourne Institute of Business and Technology which you did from 21 October 2014.  However, your parents suffered financial difficulties and were unable to fund that tuition.  So you were unable to commence it.

13So at the time of this offending, you were alone, in a foreign country, struggling to speak the language and you had little or no money.  As I said earlier, you were vulnerable to those criminals who prey on people just like you.  Whilst you have been in custody, you have completed a number of courses which I have taken into account.  Each of which is designed to assist you in your rehabilitation.  You have not wasted your time in custody. 

14You have no prior convictions and because you have been in custody, there are no matters alleged against you.  You have completed as at today, 184 days pre-sentence detention.  Ms Smith submitted on your behalf that your time in custody has been harder than for other prisoners and I accept that it has.  You have now had this matter hanging over your head for some six months and in October last year, your visa to remain in this country was cancelled.  And so you have had hanging over your head the inevitable reality that when you are released from prison, you will be deported. 

15Ms Smith asked me to consider having you assessed to serve any sentence in a youth justice centre. Because you are a young offender, within the meaning of that term, as used in the Sentencing Act, the principles in a Victorian decision of R v Mills apply. I have had the benefit of a written outline of submissions from your counsel since yesterday and I have given consideration to the course urged upon me, but I am not convinced that it will be in your best interest to take that course.

16You appear settled in the environment of the prison.  I am told and accept that there are other inmates from Vietnam in the prison, and of course you have the company of your co-offender Ms Le there.  The courses that you have appropriately completed testify to the fact that you have, as it were, settled in and you have now been there for some six months and I am not convinced that having you assessed and sending you to a youth justice centre, would be in your best interest.

17I have taken the view however, that an appropriate sentence in each of these cases will be to impose a head sentence that appropriately reflects general deterrence for the kind of role that you engaged in, in this offending, but provides for a relatively early non-prole period that will see you released from prison in the not too distant future.

18I turn to you Ms Le.  Your background is similar to Ms Hoang.  You are about five years older, having just attained the age of 26 years.  You came from the same province as your co-offender and you came to Australia in the hope of reconciling with your husband whom you married in 2013, but apparently you separated a short time after the marriage, at which time you were some five months pregnant.  You have a son living in Vietnam with your child's parental grandparents, and you have not seen him since you came to Australia on a visa which was dependent upon your husband's visa.

19Whilst you were here from July 2014 until shortly prior to this offending, you were living in a house shared by your husband, separated under the one roof.  Your hope at reconciliation with your husband was unfortunately - would appear to have been a forlorn hope, he having formed another relationship.  It was in that setting that you committed this offence because similar to Ms Le, you found yourself in a strange country, unable to speak to the language, with no friends or relatives.   You met Ms Hoang and not long before you both entered into the crop sitter arrangement, which results in this offending. 

20I am told that you regard your marriage as at an end and you want to serve your time and go back to Vietnam to be reunited with your son, which if I may say so is both understandable and admirable that you would want to do that.

21Your family know of your current predicament and are still supportive of you.  Although I am told and accept that when you return to Vietnam, there will be somewhat of a stigma attaching to you, because you have committed an offence of this kind. 

22Ordinarily, in offending of this kind, the sentence to be imposed by the court must reflect proper application of general deterrence.  That is to say, the sentence must be designed to deter others who would seek to offend as each of you have.  In your case Ms Hoang, because you are a young offender, there might be less application of that principle and I have had full regard to it, in arriving at the sentence that I will shortly pass.  The sentence must also reflect the court's and the community's denunciation of your offending.  But importantly, it must reflect just punishment. 

23Each of you have found yourself vulnerable and in my view, in the wrong place at the wrong time and you were exploited by a criminal or criminals who stood to make a lot of money, using you in the process.  In passing sentence, I have taken all of these matters into account. 

24As I say, I think it is appropriate that the sentence I impose reflect proper application of general deterrence and each of the sentencing matters that I have referred to above, but I think you would each benefit from a longer than normal non-parole period.  Mindful as I am, that each of you desires to return as soon as possible to Vietnam and I think because of the fact that you are a young offender Ms Hoang, and you are a youthful offender Ms Le, it is in your interests and the community's interest that the sooner you return to Vietnam to be reunited with your families, who will be able to assist you through this better than prison, the better.

25On the charge of cultivating a narcotic plant, cannabis L, in a quantity that was not less than a commercial quantity applicable to that narcotic plant, each of you is sentenced to a term of imprisonment of 18 months.  I direct that each of you serve a minimum of seven months before being eligible for release on parole. 

26I declare that there has been 184 days pre-sentence detention and that 184 days be reckoned as having been already served under the sentences passed this day and deducted administratively. For the purposes of s.6AAA of the Sentencing Act, in respect of each prisoner, I state that had it not been for your pleas of guilty, I would have imposed a head sentence of three and a half years and a non-parole period of two years. Any questions arising out of that?

27MR ROPER:  No, Your Honour.

28HIS HONOUR:  Ms Smith?

29MS SMITH:  No, Your Honour.

30HIS HONOUR:  Mr Lawson?

31MR LAWSON:  No, Your Honour.

32MR ROPER:  My instructor will hand the draft orders to Your Honour's associate.

33HIS HONOUR:  These are the forensic samples?

34MR ROPER:  They're the forensic sample and the disposal, Your Honour.

35HIS HONOUR:  Yes.  Are they opposed?

36MS SMITH:  No, not opposed, Your Honour.

37HIS HONOUR:  Ms Le and Ms Hoang, I have been asked to make what is called a forensic sample order and the law requires me to explain to you the effect of that order.

38Because of the seriousness of your offending, and because I think it is in the public interest to do so, and because the making of the order was not opposed by either of your counsel, I have made the order which authorises a police officer to use reasonable force to take a sample from you which is just a swab from the mouth of each of you.  Your counsel will explain it to you in greater detail, but that is the effect of the order which I have made.

39I have also signed disposal orders to dispose of the paraphernalia and equipment that was seized at the premises.  Any other matters?

40MR ROPER:  No, Your Honour.

41HIS HONOUR:  Very well.  Adjourn the court.

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