Director of Public Prosecutions v Hoang

[2021] VCC 456

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01673

DIRECTOR OF PUBLIC PROSECUTIONS

v

THE XUAN HOANG

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2021
DATE OF SENTENCE:	21 April 2021
CASE MAY BE CITED AS:	DPP v Hoang
MEDIUM NEUTRAL CITATION:	[2021] VCC 456

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Cultivation of a narcotic plant – Commercial quantity – Crop sitter - Single day of cultivation - Sophisticated hydroponic setup – No prior offences – Vietnamese national – Imprisonment – Non-parole period

Legislation Cited: s. 72A Drugs, Poisons and Controlled Substances Act 1981

Cases Cited:Nguyen & Pham v The Queen [2018] VSCA 322 - McClelland v R [2017] VSCA 124

Sentence:Total effective sentence of 3 years imprisonment with a non-parole period of 18 months imprisonment. Pre-sentence detention of 226 days.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Davison	Office of Public Prosecutions
For the Accused	Mr C. Nikakis	Haines and Polites

HIS HONOUR:

1Mr Hoang is 37.  He is Vietnamese by nationality.  He came to Australia in 2015.  I am not quite sure for how long, but he has been living illegally in Australia for some time, certainly was at the time of this offending. I am told by
Mr Nikakis that not only will Mr Hoang be deported, but once he finishes his penalty, he is very keen to travel back to Vietnam, where his family are. 

2Mr Hoang pleaded guilty to the one charge in Indictment L12140656. That charge is one of cultivate a commercial quantity of a narcotic plant, in this instance, Cannabis L. Such is an offence under s.72A of the Drugs, Poisons and Controlled Substances Act 1981, for which the maximum penalty is 25 years imprisonment. It is deemed a Category 2 offence by the Parliament. Section 5(2H) of the Sentencing Act 1991 indicates that a period of gaol must be imposed, that is immediate gaol, unless there is a special reason, and no such proposition was put to the Court.

3In regard to the charge, the relevant threshold for a commercial quantity is set out in Schedule 11, Part 2, which provides, alternatively, 25 kilograms or 100 plants.  In this instance, Mr Hoang was found, on the one day for which he is prosecuted, to be in possession at the house of 68.76 kilograms, which is by weight two and a half times the threshold, and 104 plants, which is almost spot on.

4Mr Hoang comes before the Court with no priors whatsoever.  The agreed pre-sentence detention is 226 days.

5Exhibit A was accepted by Mr Nikakis as the facts upon which I am to sentence his client, that being the amended summary of the prosecution opening tendered on the plea and dated 22 March 2021. 

6The investigation leading to this Indictment began in approximately August 2020.  The target was 34 Fourth Street, Black Rock, where apparently the cultivation of cannabis was occurring.  The police obtained a warrant subsequently on 4 September 2020, and apparently due to investigation and pursuant to that warrant, they conducted observations of the premises, witnessed a car driven by Mr Hoang and, ultimately, having seen him on that day leave the premises driving the Honda, of which he was the sole occupant, he was subsequently arrested.

7Thereafter, the police attended at 7:40pm at the premises and Mr Hoang remained at the vehicle intercept.  Police used the keys located in the ignition of the Honda to open the front door of the premises and, as I say, executed the warrant.  Therein was what was described as a sophisticated hydroponic cannabis setup.  In particular, as an example of such, was the motion detector message received while on the offender's iPhone while in the company of the police. 

8The police searched the premises and, as set out in paragraphs 12 and 13, of Exhibit A, located two amounts.  Firstly, pursuant to paragraph 12 (a) to (f), in the house, 52 kilograms.  And then in the laundry cupboard and sun room, a further 16 kilograms.  The botanist weighed those materials as set out in paragraph 13, confirmed they were Cannabis L.  The total number, I have already detailed. 

9In the record of interview, Mr Hoang was frank with the police, he said he had been at the premises to clean and pick up garbage.  Mr Hoang said he received approximately $122 to $150 cash at the end of the day; however, not necessarily everyday would he get that payment.  Generally, he would be paid once a week. 

10Mr Hoang could not remember exactly how long he had been cleaning the premises, but that it commenced approximately at the start of the COVID-19 lockdown, which I believe to be approximately March 2020.  Mr Hoang cleaned the premises three to four times a week and had keys to it.  He said his job was not technical, he was picking up the garbage and, if necessary, he would water the plants. 

11Investigations thereafter proved to be not very successful, except to determine that Mr Hoang seemed to play a much lesser part in the offending.

12Exhibit B was the prosecution outline in regard to sentencing submissions, dated 24 March 2021.  The overall submission was that a term of imprisonment with a head sentence and non-parole period would reflect the objective gravity of the offending and all relevant sentencing factors. 

13The mandatory consideration that I have already referred to was referred to.  The Court was reminded that one starts, with the most important factor, being the maximum penalty prescribed for this offence, giving an indication of its seriousness, being 25 years imprisonment. 

14The Prosecutor accepted that the offender played a lesser role, that he was working for a criminal enterprise, which remains unknown, and that Mr Hoang was not a commanding force.  Albeit, against that, it was a sophisticated hydroponic setup, with sealed windows and appropriate technical protection. 

15The Prosecution submission was that Mr Hoang should be defined as and sentenced as a crop sitter, and it was agreed on the plea that he would be sentenced only for a single day of cultivation, despite the statements made in his record of interview. 

16Mr Hoang is charged in regard to an offence occurring on one day only.  Such an approach, which I accept totally is, in my view, very generous, where there is evidence of involvement over a period of approximately six months.  While I respect that such is accepted by the Prosecution, and I sentence accordingly, I consider the correct approach that should have been taken is to proceed on the basis there was uncertainty as to Mr Hoang's role.  However, as I said, the Court proceeds to sentence on the basis of the facts which were agreed between counsel. 

17In sentencing in this case, I am subject to recent guideposts of the Court of Appeal.  In Nguyen & Pham v The Queen [2018] VSCA 322, wherefor 182 plants as a crop sitter, I imposed a sentence of six years' imprisonment, such was reduced to three years and three months by the Court of Appeal. The Court referred to McClelland v R [2017] VSCA 124, a case involving 73 plants. There the original sentence imposed was five years, with a non-parole period of three years. On appeal, that sentence was reduced to three years and nine months, with a minimum of two years and five months.

18Hence, as I have said before, despite my inclination, to impose a higher sentence for this crime, one obviously has to follow the guidance set by the Court of Appeal. 

19The general principles relevant to the criminality, albeit Mr Hoang's role is accepted by the Prosecution as a crop sitter only, and I will come to the proposition put by Mr Nikakis, when I get to his plea. 

20It is important to understand that any role in this type of criminality is subject to condign punishment.  As was said in R v McLeish [1982] 30 SASR 487, 492:

'It seems to me to follow that after making all due allowances for the personal circumstances and antecedents of the prisoner, the facts of the particular case and the need to show such mercy as is compatible with the safety of the public, the Court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organisation for purveying drugs, as well as to potential recruits, the simple truth that a man who participates in such an organisation at any level - and I repeat, at any level - must expect and will receive a heavy penalty.'

21As I have already said, the maximum penalty prescribed is always a yardstick, especially in a quantity based scheme (see the Court of Appeal in DPP v Condo [2019] VSCA 181, [28]). The Court of Appeal said in Nguyen v R [2010] VSCA 127, [18]:

'…the maximum of 25 years shows unambiguously how seriously the community, through the Parliament, use this conduct.'

22And also at [19] of such case, the following was said:

'And it is of course irrelevant which drug is being cultivated.  So much was made clear by the decision of this Court in Pidoto.  Since that 2006 decision, the sentencing regime has remained unchanged.  As the Court said in Pidoto, this is a quantity based sentencing regime.  Although quantity will not bear an arithmetical relationship to sentence, the quantity involved is a very significant matter in sentencing in these offences.’ 

23Of course, quantity is not the sole determinate of a sentence, but of utmost significance.

24Gaol, of course, is virtually unavoidable due to the general deterrence being so important, as was said in Quy Nguyen v R [2017] VSCA 127, [33] to [35]. In that case, in regard to cultivation of a commercial quantity of the narcotic plant cannabis, the Court:

'…was informed by the need for general deterrence and that the prevalence of the form of offending involved gave rise to greater sensitivity in this regard. 

In particular, this was so because of the prevalent use of young persons with vulnerable immigration status to undertake the role of crop sitter or minder. 

The consequential buffering from detection of the organisers or principles of the scheme was also correctly identified by that sentencing judge as an additional factor bearing on the importance of general deterrence.'

25The Court of Appeal continued at [36] to say as follows:

'It follows that the characterisation of the appellant's role as that of a crop sitter does not of itself displace the need to look at the circumstances of the offending as a whole and to weigh competing sentencing considerations in determining an appropriate outcome.'

Plea of Mr The Hoang

26Mr Nikakis tendered as Exhibit 1, the defence submissions and spoke to those.  Insofar as that submission was concerned, the first matter he mentioned, which is accepted, is that Mr Hoang’s role is accepted as being minor.  I accept the Crown proposition, and reject Mr Nikakis’ proposition that I should take the view that Mr Hoang is less than a sitter.  I find, in the circumstances before me, that I cannot conclude anything else than he is a crop sitter.

27Mr Nikakis put before the Court the alleged role accepted by the Crown, the early plea of guilty, time served by way of pre-sentence detention, and the fact that the only option available for the Court is a sentence of imprisonment.  I take all those matters into account.

Sentence

28Mr Hoang, I have taken account of all the factors put to me and you are convicted on this charge. 

29On Charge 1, I sentence you to imprisonment of three years.

30I order the non-parole period, that is the period you must serve prior to being eligible for parole to be 18 months. 

31Pursuant to s.18 insofar as the sentence imposed upon you, I declare that the 226 days you have served by way of pre-sentence detention be deemed as service of this sentence and that declaration be recorded in the records of his Court.

32In regard to s.6AAA of the Sentencing Act 1991, which is probably not something you want to hear from me, having just been sentenced, but I am required by the Parliament to tell you the benefit that your plea gives to you. Insofar as the sentence passed upon you, you know that I have given you an effective sentence of three years, with a minimum period of 18 months.

33Can I indicate that to comply with the request of Parliament, relevant to only one factor, that is your plea of guilty, is in my view difficult, given the multitude of factors put to me by Mr Nikakis.  However, doing as best I can to comply with Parliament's wishes, can I indicate that had you not pleaded guilty, the sentence that I would have imposed upon you is not three years, with a minimum of 18 months, but I would have imposed a sentence of five years, with a minimum of three. 

34I am told by my Associate there is no disposal or forfeiture order required,
Mr Davison?

35MR DAVISON:  That's correct, Your Honour.

36HIS HONOUR:  And I think that's all, do I need to clarify any matter?

37COUNSEL:   No, Your Honour.

38HIS HONOUR:  Thank you.  Can I thank everyone for their assistance. 
Mr Hoang, good luck.  Once you have served your sentence, I hope you get home to Vietnam quickly.  Unfortunately, it looks like your home is not going to be in Australia, but there, as you say, you want get home to your family.  Good luck.  Yes, the prisoner can be taken away, Madam Interpreter, unless
Mr Nikakis, you want to speak to Mr Hoang?

39MR NIKAKIS:  I would like to have a chance to talk to him, yes.

40HIS HONOUR:  Yes.

41MR NIKAKIS:  Because the interpreter will not want to come downstairs.

42HIS HONOUR:  Right, I am happy if you do that.  Officers, are you happy if
Mr Nikakis has a chat to his client before you take him down?  All right, well I will leave the Bench.

43MR DAVISON:  Thank you, Your Honour.  As Your Honour pleases. 

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