Director of Public Prosecutions v Hoang

[2017] VCC 1765

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

AT BALLARAT
CRIMINAL JURISDICTION

CR -17-00759
CR -17-02062

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUAN HOANG
MINH VO

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Ballarat
DATE OF HEARING:	27 November 2017
DATE OF SENTENCE:	27 November 2017
CASE MAY BE CITED AS:	DPP v Hoang & Anor
MEDIUM NEUTRAL CITATION:	[2017] VCC 1765

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – co-accused – cultivating a narcotic plant (commercial quantity)
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Cases Cited: Quy Nguyen v The Queen [2017] VSCA 127, R v Pham (2015) 256 CLR 550, DPP v Dalgliesh (a pseudonym) [2017] HCA 41, R v Mills [1998] 4 VR 235.
Sentence: Hoang – Total effective sentence 3 years imprisonment with a non-parole period of 2 years imprisonment.
Vo – Total effective sentence 2 years and 6 months imprisonment with a non-parole period of 15 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke	Office of Public Prosecutions
For Accused Hoang	Mr D. Sala
For Accused Vo	Ms E. Churchill (solicitor)	Victorian Legal Aid

HIS HONOUR:

1The prosecution summary, Exhibit A, sets out the details of the pleas taken today.  The pleas are to serious criminality under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The particular provision is s.72A of that Act, which brings with it the highest penalty imposed under this Act and indeed imposed under our criminal regime, but for life for large commercial trafficking, such is an indication of the seriousness of this crime.

2In the plea today what is unique in one way, but often happens in these types of cases, is that the prisoners have no priors whatsoever.  In Mr Hoang's case he is a person who has got to the age of 62 without any convictions.  The offending itself is depressingly repetitive.  One wonders how many persons there are in Victoria with no immigration status who have not been detected, who are, in fact, sitters of houses full of marijuana.  It must be hundreds, I suppose the reality is our immigration authorities and/or our police are limited by resources to ascertain the full breadth of this criminality.  However those comments should not, in any way, detract from an appreciation of how serious this offending is.  

3The Court of Appeal has said on numerous occasions that all people, including people who are in the role performed by Mr Vo and Mr Hoang, that is any persons involved in trafficking in any role can expect a substantial penalty.  The fundamental principle, given the serious nature with which Parliament approaches and assesses this criminality, detailed by the fact of the maximum penalty imposed in this case, indicates the seriousness of it.  It should be said that neither Counsel in their written submissions nor in the oral submissions, in any way gainsaid that a sentence of imprisonment as nor appropriate.

4There was reference to the recent consideration of the Court of the principles insofar as they relate to the role performed, certainly by Mr Hoang, that is of a crop sitter, on this particular day.  The circumstances being explained somewhat, from his own admissions, indicating that he had, indeed, been part of a crop sitting system over a period of some three to four months, albeit that he is not charged for that.

5The difference, of course, with Mr Vo is that he was hired, apparently as the driver.  Each of them, I might say were hired by someone unknown at the Sunshine market, which is also consistent with the type of facts that I am presented with often in these cases.  But as I said, prefaced by my comment as to the serious nature of these offences, whatever role, the Court of Appeal considered the crop sitter, and it is necessary to consider Mr Vo's role, as very similar of, while not the same culpability, close to because there he is, being the person who drives the crop sitter to tender the crop on this particular day.

6The circumstances, of course, in QuyNguyen v The Queen [2017] VSCA 127 were a two and a half month admitted sitting period, which makes it somewhat different, and the amounts were similar, with 51 plants, but with a 10kg greater weight. It is the general principles, however, which are relevant and I quote in particular paragraph 33 where the Court of Appeal says:

" It was also open to the judge to form the view that the maximum penalty of 25 years’ imprisonment stipulated for the cultivation offence was informed by the need for general deterrence and that the prevalence of the form of the offending involved in this case gave rise to greater sensitivity in this regard".

7At paragraph 34, the Court said further:

"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".

8Those comments, of course are equally appropriate in this case.  The Court of Appeal further said at paragraph 36:

"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".

9The Court went on to look at various cases, and at particular circumstances relevant in R v Pham (2015) 256 CLR 550, which I will not go in to for the purpose of this sentence.

10The principles as to sentencing, in R v Hassan [2010] VSCA 352, at paragraphs [44]-[54] and the most recent case of the High Court in DPP v Dalgliesh (a pseudonym) [2017] HCA 41 apply, being that every case must, in the end, be looked at for its own particular circumstances insofar as sentence is concerned.

11There is no need for me to further summarise the facts set out in Exhibit A.  This was obviously a sophisticated operation.  The details as set out of the use of the eight rooms, the materials supplied, the electrical bypass system, the fact that, again bearing in mind we are only in regard to each prisoner sentencing for the one day, but over a 122 day period at this house some 928 kilowatts of power was used. 

12There was an admission made by Mr Hoang that while he had not received any money, which the Court finds is totally unbelievable, he told the police he had been doing it for three to four months and had already harvested one crop of plants.  As was detailed by the prosecution insofar as the totality of the amounts at paragraph 8, the total either by numbers or volume exceeded the relevant amounts set out in the Act for a commercial quantity, being 100 plants and
25 kilograms.  In this instance, of course, we are talking of 256 plants and
88 kilograms.  Two and a half times insofar as the plant numbers and nearly equivalent to that ratio insofar as the kilograms are concerned.  Hence a very serious crime looked at objectively.

13Insofar as the plea in regard to Mr Hoang, I accept totally the matters put to me by Mr Sala in Exhibit H1, which was the defence response to the opening dated 27 November 2017.  I also take into account the oral submissions made to me this morning by Mr Sala.

14Both parties, as I said, not only have no priors but both made very early pleas which are utilitarian in nature.  I am told, and there is no reason for me to not accept, that they are now remorseful.  They will both be subject to deportation, certainly in regard to Mr Vo.  He had been undertaking a course.  He would now have lost his student visa.  I am not too certain of the formalities of that but certainly with such a serious conviction he would not be able to continue his studies.  To the extent I take that into account, it is clear that whatever plans he had, I mean a student visa does not give you any rights to residence in Australia.  Mr Hoang, of course, was in a position where he had been here for some two or three years.  He was in breach of his immigration status as well.  To the extent that both of them, no doubt, were hoping to continue to live in Australia so that they could enhance their economic status, I accept that those aims are no longer possible.

15As to Mr Hoang, it is important to take into account that he is now aged 62.  He comes before the Court without any priors.  This Court has always taken the view that a person who lives a life to such age without any priors is entitled to appropriate mercy.  I accept the context of the offending as put by Mr Sala and I accept his role.  The fact that there is no evidence of profit does not, indeed, impact.  You do not, realistically, do these crimes without a reason, and the only reason, I find, is to be making money.

16I accept the plea of guilty, the admissions made and the extensive admissions.  He is entitled to an appropriate discount for the extent of those.  There is no doubt consistent with the principles set out by the Court of Appeal, an immediate period of imprisonment is necessary. 

17The final paragraph of Mr Sala's submission, I disagree with in the circumstances.  It seems to me that 342 days of immediate imprisonment is not sufficient for Mr Hoang.  The sentence is to serve the purpose not only of general deterrence but of punishment, is very important in this particular case.

18Insofar as Mr Vo I also accept the matters put.  Ms Churchill's submission was put in Exhibit V1.  Mr Vo is currently still a young offender, for the purpose of this Act.  I understand and accept the principles in R v Mills [1998] 4 VR 235. He is clearly a youthful offender. There is no evidence to say that his role is other than that of driving the sitter to the premises on that day. However I repeat my comment as to the serious nature of any role in breaching this particular provision, and the substantial sentence that awaits anyone who is stupid enough to do it.

19However I accept the matters put by Ms Churchill as to, in particular, the particular role that Mr Vo played.  I note his personal circumstance.  I note that he was, indeed, studying for a Bachelor of Business Education at Latrobe and had done two years until he, as his Counsel said, foolishly undertook this operation.  There is no dispute from Ms Churchill with the general sentencing factors, or with the particular sentencing factors that have to be exercised. 

20However, of course, and at all times balanced with that must be taken into account that the Court is sentencing a youthful offender, that rehabilitation is obviously important. I hope that the proposition put to the Court is correct, that the remorse has been genuine and it is the intent of Mr Vo when he returns to Vietnam to study and restart his life.

21The Court notes, and this is not a criticism necessarily, but it is important that we do not underestimate the great contribution made by Vietnamese people to our country and our State.  It is unfortunate that these particular two have not added to that. 

22I do not see the need for community protection.  I understand the need to take into account the plea of guilty.  I think insofar as parity there is nothing that
I have set out that goes against the propositions put to me by Ms Churchill and she realistically accepts the immigration issues.  Ultimately her submission was that given the particular circumstances of this case, and the particular form of culpability of Mr Vo, that the period of imprisonment served is sufficient.  I do not accept that submission, however the sentence that I pass will reflect, hopefully, all of the factors that I have referred to.  Yes, if you both stand up, please.

23Mr Hoang, insofar as this offence is concerned you will be sentenced to a period of imprisonment of three years.  The minimum period that you will have to serve before being eligible for parole is a period of two years.

24I declare that 342 days that you have served by way of pre-sentence detention be declared as service of this sentence and a record of such declaration be entered in the records of this court.

25Pursuant to the requirements of Parliament what is important, Madam Interpreter, for you to tell Mr Hoang, to the extent that the Court is somehow required to discriminate because of one factor only but doing the best as I can to comply with the requirements of Parliament, had he not pleaded guilty the period of sentence he would have got is not three years and a minimum of two, but four years with a minimum of three.

26I have signed the forfeiture order in regard to Mr Hoang, is there anything else I have to do?

27MR BOURKE:  No, Your Honour.

28HIS HONOUR:  Yes, you can take a seat, Mr Hoang. 

29Coming then to Mr Vo, as I have explained, I take into account the factors which do not apply to Mr Hoang.  Firstly, the differentiation in your role.  Secondly, your youth and the importance of rehabilitation.  I also accept the genuineness of your remorse and that your stupid actions on this day have not only cost you an education in Australia but cost you any chance of ultimately living in Australia.

30In all of the circumstances, doing as best I can do to take into account all of the factors put to me by Ms Churchill, I have determined the appropriate sentence for you would be a period of two and a half years with the minimum sentence to be served by you of 15 months.

31I declare pursuant to s.118 that the period of 342 days that you have served to date be deemed as service of this sentence and that the declaration to that effect be recorded in the records of this Court.

32Madam Interpreter, if you could explain to Mr Vo that, again doing as best I can to comply with the requirements of Parliament, that had he not pleaded guilty the sentence I would have imposed would not have been two and a half years with 15 months' minimum period for parole but three and a half years with two years and four months as the minimum period.

33Again in regard to Mr Vo, I have signed the appropriate forfeiture orders and
I think that is all I am required to sign.  Mr Prosecutor, is that right?

34MR BOURKE:  Yes thank you, Your Honour.

35HIS HONOUR:  Do both Counsel want to check if there is any question from your - given the language issues, I am happy if both Counsel approach their clients.

36MR SALA:  I'll speak to my client probably later, Your Honour, I think ‑ ‑ ‑ 

37HIS HONOUR:  There's nothing I can do about it, Mr Sala, if you don't go do it now because they'll be gone and if they're unhappy, we're all unhappy.

38MR SALA:  Well I don't see any difficulty in Your Honour's sentence.  You passed sentence, there's forfeiture ‑ ‑ ‑ 

39HIS HONOUR:  Right.  You're happy with that?

40MR SALA:  I'm happy with that, Your Honour.

41HIS HONOUR:  All right.

42MS CHURCHILL:  Your Honour, my client (indistinct words).

43HIS HONOUR:  All right, the prisoners can be taken away, thank you gentleman and thank you, Madam Interpreter.  Mr Prosecutor - and I'll excuse Counsel.

44MR SALA:  If it please the court, Your Honour.

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