Director of Public Prosecutions v Hoang

[2014] VCC 724

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-14-00017

DIRECTOR OF PUBLIC PROSECUTIONS
v
HA HOANG	Accused

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 May 2014
CASE MAY BE CITED AS:	DPP v Hoang
MEDIUM NEUTRAL CITATION:	[2014] VCC 724

REASONS FOR SENTENCE
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Subject:  
Catchwords:             
Legislation Cited:     
Cases Cited:            
Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B. Nankin
For the Accused	Mr R. van de Wiel QC

HER HONOUR: 

1       Ha Hoang, you have pleaded guilty to one charge of cultivation of a commercial quantity of a narcotic plant, namely cannabis, and one charge of theft.  The maximum penalty for these offences is 25 years and 10 years respectively.  The circumstances of your offending are set out in exhibit A, the Crown opening.

2       In summary, you rented a house at 20 Ebony Drive, Bundoora, whilst a student at La Trobe University.  Police received information regarding this residence in August 2013, and conducted some investigation and inquiries, culminating in a search warrant being executed at this address on 10 October 2013.  When police attended, your girlfriend, Ms Ahn Phan, let police into the house, and thereafter she was arrested. 

3 A sophisticated hydroponic cannabis crop was located, set up in five different rooms in the house. Each of these rooms contained a series of pots with plants at various stages of growth, high voltage lighting and an irrigation system. In total 126 plants were located, which varied in size from fully grown to seedlings. The plants weighed 98.168 kilograms, almost four times the commercial quantity, which is defined under the Drugs, Poisons and Controlled Substances Act as 25 kilos. Police also found an electrical bypass installed to ensure the house received free electricity. It was evident from personal items located at the house that you lived there. Photographs of the plants and the residence were tendered as exhibit B.

4       Phan was arrested and charged in respect of these plants, though charges were ultimately withdrawn against her.  You were arrested on 20 October 2013, and in your interview, you denied involvement with the premises where the crop was located. 

5       You arrived in Australia when you were 17 years old, without your parents, who had remained in Vietnam.  You were financially supported by your parents.  You obtained employment while studying, initially earning about $300 a week, which later increased to $500 a week.  I was informed that you were struggling financially, and that you were approached by a person at Crown Casino, who offered you free accommodation and free utilities in exchange for sitting at the residence. 

6       Your counsel submitted that you were immature and alone, and that the decision to accept this offer has had a catastrophic effect on you.  It was submitted that you were vulnerable because of your youth, financial circumstances, and because you were living in a country as a student, away from your parents. 

7       You were enrolled in a Bachelor of Finance degree course at La Trobe University, having completed one and a half years of the course at the time of the offence.  I was informed that you had enrolled to complete further studies in accounting at Kaplan University or Business School, and that you had paid a non-refundable 7000 dollar fee prior to being arrested.  Given your arrest, and you remaining in custody, you were unable to do that course, and you have lost that money. 

8       You have no prior convictions, and have been in custody since your arrest last October.  I received character references, exhibit 2, and accept that this offending was out of character.  Given your background, you have struggled with loneliness and isolation during your time in custody, but both your girlfriend and your brother are regular visitors to you in custody.

9       You have pleaded guilty at the first opportunity in relation to this offending, and I accept that you are remorseful.  In addition, you feel great shame in relation to your parents and family, given the support they have tried to give you.  You will obtain the full benefit for your plea of guilty, with the plea having real utilitarian benefit and it being reflective of your remorse.

10      At the time of this offending, you were aged 22 years.  You have now turned 23, and I am prepared to consider your relative youth both now and at the time of the offending as an important sentencing consideration.  This factor, taken with your good rehabilitation prospects, is a matter that needs to be balanced against other sentencing considerations. 

11      The offending is serious, as reflected in the maximum penalty to which I have previously referred.  The role played by you, as conceded by the Crown, was as a sitter, minding the crop.  Though your involvement in the cultivation was minimal, it was necessary for the crop to flourish.  I accept you did not gain significant amounts of money for your involvement.  Rather, you were not required to pay any rent at the premises.

12 In offending of this type, general deterrence and prevalence of the offence are important sentencing considerations. Reference was made by Justice T Forrest in Tuan Doan v R (2010) VSCA 250 to the following matters in sentencing for these kind of offences:

(i)      the maximum penalty, and with that, how seriously the conduct is viewed by the community; 

(ii)     the roles played by those involved, though sometimes menial, necessary for the successful cultivation of the plants;  and

(iii)     the link between general deterrence and the increasing prevalence of this offence – (see paragraph [11])s. 

13      As Justice Nettle indicated in that case, there should be no doubt that in cases involving cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of sentencing considerations.  In cases of this kind, there is less room to give weight to considerations of such matters as youth and antecedents, as would otherwise be the case.  In a case of this kind, an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable. 

14      Your counsel submitted that, given you had spent a little more than six months in custody, that you should be assessed for a community correction order.  The learned prosecutor indicated that his offending warranted a custodial sentence to be served immediately, and implicit in that submission was an indication that time served already by you was not sufficient.

15      Taking all relevant sentencing matters into account, I consider it is necessary for you to serve a period of imprisonment.  In sentencing you, there is a clear need to foster your rehabilitation, and to take into account your youth and previous good character.  However, these considerations need to be balanced against the competing considerations approved by the Court of Appeal, and the importance of general deterrence in offending of this nature.  Could you stand up, please, Mr Hoang.

16      In respect of charge 1, you are convicted and sentenced to a period of 22 months’ imprisonment.  In respect of charge 2, you are convicted and sentenced to 14 days’ imprisonment.  That makes, Mr Hoang, a total effective sentence of 22 months, and I set a non-parole period of 12 months.  It’s understood that an order pursuant to 464ZF for a buccal swab is consented to, and I make that order.  I also make the confiscation order in the terms that have been provided to me, and again, that is by consent.

17 Mr Hoang, pursuant to section 6AAA of the Sentencing Act, if you had not pleaded guilty in relation to this matter, I would have imposed a sentence of 30 months with a non-parole period of 18 months. I declare, pursuant to the Sentencing Act, pre-sentence detention of 195 days.

18      MR MENCKEN:  Your Honour, I’ve calculated 196 days.

19      HER HONOUR:  What do you say, Mr Vandrell?

20      MR VAN DE WIEL:  I agree with Mr Mencken about that.

21      HER HONOUR:  Yes.  196 days.  Thank you. 

22      MR MENCKEN:  Thank your Honour.

23      HER HONOUR:  I will sign these orders now. 

24      MR VAN DE WIEL:  Your Honour, can I just approach the dock for a moment?

25      HER HONOUR:  Yes, sure. 

26      MR VAN DE WIEL:  Sorry, Your Honour.

27      HER HONOUR:  That’s all right.  If you could adjourn the court, please

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