Director of Public Prosecutions v Hoang
[2022] VCC 191
•24 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00873
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AHN HOANG |
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JUDGE: | HIS HONOUR JUDGE HANNEBERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2022 | |
DATE OF SENTENCE: | 24 February 2022 | |
CASE MAY BE CITED AS: | DPP v Hoang | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 191 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Cultivation of a narcotic plant, namely cannabis, in not less than a commercial quantity – prospects of deportation – serious offence – plea of guilty – COVID-19
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991
Sentence: Four years and three months' imprisonment and I order that you are to serve a minimum of two years and nine months' imprisonment before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Sargent | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr M. Kozlowski | Executive Lawyers |
HIS HONOUR:
Introduction
1Anh Hoang, you have pleaded guilty to one charge of cultivation of a narcotic plant, namely cannabis, in not less than a commercial quantity, contrary to s72A of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for this offence is 25 years' imprisonment. Pursuant to s3(1) of the Sentencing Act 1991, the court must make a custodial order unless an exception applies. No exception was relied upon in this case.
Summary of Offending
2Tendered on the plea was the summary of prosecution opening.[1] Your offending can be summarised as follows.
[1]Prosecution Exhibit 1.
3On 19 August 2020 police executed a search warrant at an address in Eaglehawk. There was no one present in the property at the time.
4The property at Eaglehawk was used for the cultivation of cannabis. The house was fitted with a sophisticated hydroponic set-up which included:
(a) erected walls cladded with plaster and plastic;
(b) windows covered to insulate rooms to stop light escaping;
(c) charcoal filters installed to extract the smell of the crop;
(d) an electricity bypass installed to divert power;
(e) chemicals and fertiliser used for the cultivation of cannabis;
(f) a pump and irrigation system that ran throughout the house;
(g) ducting and fans set up around transformers used to cool the air.
5Across the house in various rooms a total of 223 cannabis plants of varying maturity weighing 192.72 kilograms were found.
6Police observed you at the Eaglehawk property on 18 August 2020, the day before executing the search warrant. Items seized from the house, including a laptop, broken mobile phone, cigarette butt and a box of chicken breast fingers, were forensically analysed and your fingerprints were located on these items. During the search of your home premises police located an iPhone, the box for which was found at the Eaglehawk house.
7A search warrant was also executed on a storage unit you rented in Truganina. The unit contained the following material similar to that found at the Eaglehawk house, namely:
(a) remnants of cannabis;
(b) grow pots;
(c) transformers;
(d) charcoal filters;
(e) light globes;
(f) bags of CANNA Coco coir;
(g) fans;
(h) plastic stools;
(i) light shroud; and
(j) extraction fans.
8You were arrested at your address on 25 September 2020. You were interviewed and made a 'no comment' interview. You were subsequently remanded and have been so since that time.
Nature and Gravity of Offending
9The inherent seriousness of the charge of cultivation of a narcotic plant in not less than a commercial quantity is evident from its maximum penalty of 25 years' imprisonment. The gravity of an individual offence must be determined by reference to its own unique circumstances.
10Fundamental to the gravity of this offence is the weight and number of plants cultivated. In this case there were 223 cannabis plants of various maturity, weighing 192.72 kilograms, being grown at the premises. This is more than double the commercial quantity by a number of plants and more than seven times the commercial quantity by weight.
11There was substantial infrastructure committed to the premises to enable the cultivation to occur. This was a sophisticated and extensive hydroponic operation established for commercial purposes.
12It was contended by counsel on your behalf that your role in the cultivation was that of a 'crop sitter'. Whilst this is not a description with a precise legal definition, to the extent it conveys an impression of passive engagement with the cultivation, that understates your level of participation.
13You had been present at the location of the cultivation and aware of the presence of the crop. You were involved in tasks that assisted in the cultivation of that crop. You had moved belongings into the master bedroom of the Eaglehawk house, along with other evidence, revealing that your presence at the property was more than fleeting. You purchased items from Bunnings and you stored multiple items at your home used in the cultivation of cannabis. You had $69,740 in cash at your premises.
14I conclude that your role in the cultivation was an active one. I note, however, that you were not the owner of the premises. There is no evidence that you had a financial interest in the ultimate sale of the crop. You are not charged in relation to the theft of the electricity using the metre bypass that was powering the cultivation equipment. There is no evidence that you participated in the set up of the infrastructure.
15It was put on your behalf that you were to be paid an amount of $3,000 for your assistance with the crop. There is no direct evidence to support your contention. I accept, however, that your motivation for your actions was financial reward. No adverse conclusion can be drawn that your award was greater than that which you instruct.
16Notwithstanding the significant limitations on what can be concluded to the requisite standard about your specific role in the offending, this remains a serious example of a serious crime.
Personal Circumstances
17You were 23 years old at the time of offending and are 24 years old at sentence. You have no prior criminal history.
18You were born in Vietnam and have one younger sister. You completed your high school education in Vietnam. You travelled to Australia in 2016 for further study and to seek permanent residency. Whilst in Australia you studied a Bachelor of Management of Hospitality and then a Diploma of Cooking. You intended to become a chef on completion of your studies.
19Whilst studying you were employed as a delivery driver and hairdresser. You struggled financially during the COVID-19 pandemic as you were not eligible for any government assistance.
20At the time of your arrest you were residing in Australia lawfully on a Bridging Visa.
Plea of Guilty
21You have pleaded guilty following a contested committal hearing. Your plea of guilty was entered at a relatively early stage in proceedings. You have saved the time and resources that would otherwise have been expended on contested proceedings in this court.
22Your plea is of especially significant utilitarian value given the impact of the COVID-19 pandemic and the related pressures placed on court listings.
23Your plea of guilty demonstrates some level of contrition for your offending.
Impact of COVID-19 Pandemic
24You have also been on remand at a time when pandemic restrictions have made the prison environment more onerous than would otherwise be the case. There have been additional deprivations of liberty including, but not limited to, restrictions on visits and access to courses. These deprivations of liberty are likely to persist for the foreseeable future. I take this into account in mitigation of sentence.
Burden of Imprisonment
25Your imprisonment has been additionally burdensome by virtue of your status as a foreign national. You have and will continue to serve your sentence without visits from family or friends.
26You will serve your period in custody with the expectation that upon your release you will be deported from Australia. I accept that this represents a significant source of anxiety to you.
27This is your first time in custody and you have unfortunately been subject to bullying and assault.[2]
[2]Defence Exhibits 1 and 2.
28I consider all these matters to be matters making imprisonment more burdensome for you than for others not subject to those particular circumstances.
Prospects of Rehabilitation
29Whilst not a youthful offender you are still a young man. You have no prior criminal history. There is no suggestion that you have any drug issues, nor indeed any other social or psychological factors that would make reoffending more probable.
30Your offending was driven by a desire for financial gain. You have and will continue to pay a significant price for your decision.
31I consider that your prospects of rehabilitation are very good.
Submissions on Sentence
32Mr Kozlowski on your behalf conceded that a sentence of imprisonment with a non-parole period was the only available sentencing option.[3]
[3]Defence Exhibit 1.
33Ms Sargent, on behalf of the Director, concurred.[4]
[4]Prosecution Exhibit 2.
Sentencing Principles
34Whilst it is not contended that you were at the pinnacle of this criminal enterprise, your role was nonetheless important to its operation. These types of criminal operations frequently rely upon the exploitation of those in vulnerable financial positions, like you, to fulfil roles that carry a high risk of detection for relatively modest financial gain.
35Others must be deterred from making similar choices. General deterrence is a prominent sentencing consideration, though in this case there is little requirement, in my view, to deter you specifically.
36I must impose a sentence that expresses denunciation for your conduct, protects the community and represents a punishment that is just in all the circumstances.
37I must also maximise your prospects of rehabilitation as I have found them to be.
Sentence
38Anh Hoang, on Charge 1, cultivation of a narcotic plant in not less than a commercial quantity, I sentence you to four years and three months' imprisonment.
39I order that you are to serve a minimum of two years and nine months' imprisonment before becoming eligible for parole.
40Pursuant to s18(4) of the Sentencing Act 1991, I declare that you have spent 517 days in custody by way of pre-sentence detention to be reckoned as served.
41Pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a sentence of six years' imprisonment with a non-parole period of four years and six months.
42Are there any further orders, Ms Sargent?
43MS SARGENT: There aren't any further orders, Your Honour, though there were a few matters I would just raise - - -
44HIS HONOUR: Yes, sure.
45MS SARGENT: - - - that arose from Your Honour's sentencing remarks.
46HIS HONOUR: Yes, sure.
47MS SARGENT: Your Honour noted that Mr Hoang was observed at the property on the 18th, the day before the search warrant. He wasn't observed by police. It was phone records that placed him at the property.
48HIS HONOUR: All right. All right.
49MS SARGENT: They're mostly minor matters, Your Honour. Your Honour noted that items were stored at Mr Hoang's house, but they were in a storage unit.
50HIS HONOUR: Storage unit, all right. Thank you. Well, I'll - - -
51MS SARGENT: And Your Honour also said that Mr Hoang had cash at the property but that was Mr Nguyen, the co-accused.
52HIS HONOUR: Sorry. All right. Thank you. Thank you. Thank you for that. Sorry about that. All right. All right. I'll go back and I will fix that. Can I say that the - I'll note that the 69,000 cash was at Mr Nguyen's property and that the observation of Mr Hoang at the premises on 18 August 2020 was not a visual observation, but it was an observation done by way of essentially an inference drawn from the phone records.
53MS SARGENT: Yes, Your Honour.
54HIS HONOUR: Yes, but can I say those two matters don't, in my view, lead me to reconsider anything in relation to the sentence but thank you for raising those matters. All right. Mr Hoang, so that's - so the sentence, Mr Hoang, is four years and three months, with a non-parole period of two years and nine months before you become eligible for parole, with 517 days of pre-sentence detention reckoned as already served. All right. Is there anything further?
55MS SARGENT: No, Your Honour.
56MR KOZLOWSKI: Thank you.
57HIS HONOUR: I'll adjourn the court until 10.30. Thank you.
58MS SARGENT: As Your Honour pleases.
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