Director of Public Prosecutions v Hoang
[2019] VCC 1785
•31 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-00727
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAI HOANG |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF SENTENCE: | 31 October 2019 |
CASE MAY BE CITED AS: | DPP v Hoang |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1758 |
REASONS FOR SENTENCE
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Subject:Cultivate narcotic plant in not less than a commercial quantity
Catchwords: Crop sitter
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:Total effective sentence of two years imprisonment with a non-parole period of 14 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Teo | Office of Public Prosecutions |
For the Accused | Ms L. Papadinas (Plea) Mr M. Page (Sentence) | Emma Turnbull |
HER HONOUR:
1Hai Son Hoang, you have pleaded guilty on indictment to a single charge of cultivate cannabis in not less than a commercial quantity.
2This offence occurred on 13 November of 2018. It is a charge which carries a maximum penalty of 25 years imprisonment, reflective of the seriousness with which Parliament regards this offence.
3In addition, the provisions of s.5(2H) of the Sentencing Act have application. That section requires that a court must make a custodial order (other than a sentence of imprisonment imposed in addition to a community correction order in accordance with s 44) unless satisfied as to the circumstances contained within other provisions of that section. No exclusion was relied on in your case.
4The circumstances of your offending are set out in a document entitled 'Summary of Prosecution Opening for Plea' dated 26 September 2019. It is an agreed document and represents an acceptance by you of all of the elements of the offence and the factual basis on which I am to sentence.
5In short compass, on 14 August 2018 surveillance was conducted at 5 Gallipoli Parade Pascoe Vale South. You and one of your co-accused, Duy To Duc, were observed exiting the house at approximately 12.02 pm.
6Further surveillance was conducted on 13 November 2018 at 4.50 pm another co-accused, Duc Le, was observed to arrive at the house and entered via a side door.
7At approximately 5 pm your other co-accused, Duc, arrived at the house and entered through the same door. Senior Constable Alderman requested that police attend at the address in order to execute a search warrant. Police arrived at approximately 5.55 pm, Senior Constable Alderman and other police members entered the home and immediately observed a room containing cannabis plants. Police outside the house observed you removing roof tiles from the left side of the building and climbing out of the roof. Upon sighting the police outside the property, you climbed back down the hole back into the house.
8You were arrested inside the premises and told police of the others hiding in the roof cavity. This is in your favour. They were subsequently located by police.
9Police also conducted a search of the premises. Large amounts of electrical wiring were running throughout the house and there were multiple rooms set up with hydroponic equipment. A technician attended at the address and removed an electrical bypass which was located in the kitchen. You have not been charged with theft of electricity and will not be punished for it but this information was provided in the Crown document to demonstrate the sophisticated operation that was in place.
10Police located several plants and plant material in four bedrooms of the house and the kitchen. These were seized and analysed by the Victoria Police Forensic Service Department. The plants were determined to be cannabis L plants. In total there were 106 plants and 12 leafy stems with a total weight of 99.758 kilograms. The plant material in the bags was also determined to be cannabis L mixed with an unidentified material, the total weight of which was 470.3 grams.
11It is these facts that form the basis of the charge to which you have pleaded. A commercial quantity of cannabis per Schedule 11 of the Drugs, Poisons and Controlled Substances Act is 100 cannabis plants or 25 kilograms. You were therefore marginally over the threshold in terms of the number of plants and approximately four times the commercial threshold in terms of weight.
12No interview was conducted with you due to the unavailability of a Vietnamese interpreter.
13At the time of this offending you had been residing in Australia unlawfully since 19 October 2016. Both parties have described you as what is called a “crop sitter.” You bear responsibility in this role for a single day at the one property.
14Such a role tends to be an essential one in this highly planned and sophisticated business of cannabis growth, cannabis production and the drug ultimately then entering our community. It is a lucrative business with enormous negative impact. Your role was to assist in that process and to shield principals in such enterprises from detection and you presumably did so for financial reward.
15Principles of general deterrence loom large. Your co-accused, Duc, is presently listed for trial in March of next year, your co-accused, Le, indicated a plea of guilty to one charge of cultivation of a narcotic plant in a commercial quantity and one charge of theft of electricity and was sentenced on 28 June 2019 to a total effective sentence of two years and six months' imprisonment with a non-parole period of 18 months.
16In relation to the cultivate in a commercial quantity charge, Her Honour Judge Pullen sentenced Mr Le to 27 months' imprisonment. He received six months imprisonment on the theft of electricity charge, three months of that sentence was served cumulatively on Charge 1, forming the total effective sentence.
17The parity principle demands that any sentence imposed on co-offenders reflects differences in the culpability and personal circumstances of those co-offenders and avoids unjustifiable differences in co-offender sentences. The parity principle requires a judge to impose the same sentence for the same offending unless there are distinguishing features in respective roles in that offending or in other relevant sentencing considerations including personal circumstances which warrant differential sentence.
18Whilst there are similarities in your personal backgrounds I do see some distinction between you and Mr Le in terms of the offending. I have had recourse to the sentencing reasons of Her Honour Judge Pullen. Based on Le's admissions through his counsel on his plea to receiving payment in the sum of $4000, that he attended at the premises twice a week and the fact that he took responsibility for the theft of electricity, albeit on a single date, he appears to have played a somewhat more elevated role in the offending than yourself.
19In addition, as I understand the Crown case against you from the summary of prosecution opening it would appear that it involved your attendance at the premises on one occasion in August of 2018 and your flight from the premises on the day in question.
20In circumstances where there is nothing before me to suggest that the Crown could establish the presence of the cannabis plants at the premise on your attendance in August of 2018, and that they could not exclude that your flight on 13 November was due to your immigration status, it would appear to me that your plea of guilty has filled considerable gaps in the prosecution case. There is no evidence in the Crown opening to say what, if any, role you played in the cultivation of cannabis. Your plea in these circumstances must be very much recognised in your favour in any sentence imposed. It is the only way to encourage others to take a similar path.
21Whilst I am told that you did run contested committal proceedings, it would appear from the depositional material that a few questions were asked of the informant going to your identification at the premises in August of 2018. In any event you have now pleaded guilty well in advance of your trial date which was listed in March of next year. In addition to the relevance I find to the matters to which I have already referred, your plea of guilty has utilitarian value and has saved the court the time and expense of contested proceedings. I accept that it represents the taking of responsibility by you for your criminal conduct.
22I also take into account your personal circumstances. You were born in Vietnam and completed a high school education. Your mother worked as a manager and your father as a police officer. You have a younger brother who has also chosen to work as a police officer. Your mother has a diagnosis of thyroid cancer, a testing note confirmed this diagnosis was tendered on your behalf.
23You are keen to return to family who all continue to reside in Vietnam.
24You came to Australia in 2010 as an overseas student and commenced studying a Bachelor of Hospitality at Latrobe University, however your English skills were poor and you were unable to complete your degree. As your English skills improved somewhat, you enrolled in a Diploma of Hospitality.
25You were supported by your parents financially through your periods of study. Your parents divorced in 2016 and their continued ability to assist you financially was compromised. You managed to locate and obtain employment at the Preston Market as a general labourer and maintained this position until your arrest.
26As referred to earlier, you currently have a status of an unlawful non-citizen. You are likely to be deported upon completion of any prison term. It is not suggested on your behalf that the prospect of deportation is a factor that can be taken into account in any sentence.
27Also tendered on your behalf was a letter authored by Ms Wendy Le who was also present in court. She describes you as shy, sensitive, gullible and as not being particularly intelligent. She expresses her surprise that you were charged with this offence and describes you as a person with a good heart who has treated her and her family well. I have taken the contents of her reference into account.
28You have no prior criminal history.
29I am satisfied on the materials before me that I need to be less concerned about specific deterrence and to protecting the community from you. It appears that you would have reasonable prospects of rehabilitation, particularly on your return to Vietnam and family.
30I also accept that your time in custody would have been a somewhat isolating experience, noting that you have been on remand since 13 November 2018. You have not had the benefit of family visits and your still limited command of English has meant that your social contact has been restricted to the Vietnamese community within the prison system.
31Application is also made for you to provide a forensic sample. I note that you have consented to that order being made. In my view the seriousness of the circumstances of the offending do warrant the order being made. I'm also satisfied that the granting of the order is in the public interest.
32I am obliged to inform you that, if at the time of a request for a sample is made, that if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police then the sample will be taken by way of blood sample and police may use reasonable force to enable a forensic procedure to be conducted.
33The basis purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such is the seriousness of your offending, your culpability for it, your personal circumstances and those of any victim. I am also required to balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.
34I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case. I've taken into account current sentencing practices for the offence to which you've pleaded guilty.
35In terms of the charge of cultivate cannabis in not less than a commercial quantity you are convicted and sentenced to two years imprisonment. I fix a period of 14 months imprisonment before being eligible for parole, 352 days are reckoned as having already been served in accordance with the sentence imposed.
36Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had you not pleaded guilty. If you had not pleaded guilty I would have sentenced you to a total effective sentence of two years and eight months imprisonment with a minimum of 24 months before being eligible for parole.
37Anything arising?
38COUNSEL: No, Your Honour.
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