Director of Public Prosecutions v Huynh
[2021] VCC 2169
•21 September 2021; 8 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-00511
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VU HUYNH |
‑‑‑
JUDGE: | HER HONOUR JUDGE CANNON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 August 2021 |
DATE OF SENTENCE: | 21 September 2021; 8 October 2021 |
CASE MAY BE CITED AS: | DPP v Huynh |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2169 |
REASONS FOR SENTENCE
‑‑‑
Subject: CRIMINAL LAW
Catchwords: Sentence - Pleas of guilty - Cultivation of narcotic plant cannabis (1 charge) - Theft (2 charges) - Traffick drug of dependence cannabis (1 charge) - Summary offences Possess prohibited weapon (Charge 6) and Commit indictable offence whilst on bail (Charge 7) - Level of sophistication involved in drug setups - Significant amount of electricity stolen - Limited criminal history - History of alcohol and drug abuse - Suffers from major depressive disorder and sedative use disorder
Sentence:Convicted and sentenced to Total Effective Sentence 2 years and 6 months’ imprisonment with a non-parole period of 12 months’ imprisonment - This sentence is to be served cumulatively upon the sentence already being undertaken imposed at the Ringwood Magistrates’ Court on (see transcript dated 8 October 2021 attached) - No pre-sentence detention to be taken into account in respect of this matter - s.6AAA Sentencing Act 1991 declaration - Ancillary orders Disposal order
‑‑‑
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Hando | Solicitor for Public Prosecutions |
For the Accused | Mr C. Oldham | Balmer & Associates |
HER HONOUR:
1Mr Huynh, you have pleaded guilty to cultivation of a narcotic plant, two charges of theft and one charge of trafficking a drug of dependence, as well as two related summary offences of possessing a prohibited weapon and committing an indictable offence whilst on bail.
2I was told that you were 45 at the time that you committed the offences, and you are now 46. At the time of the offending you were living part-time at an address in Belmont Avenue, Clayton - the Clayton property - and part-time at an address in Mortimer Street, Huntingdale - the Huntingdale property.
3In the course of discussion at the original plea hearing, the learned prosecutor explained that in fact, your wife, children, sister-in-law and mother-in-law were living at the Clayton property at the time of the offending, and that you had moved to the Huntingdale address having convinced your wife that this was the way you intended to make money. I was told that you are also known as Kwan Ngoc Huynh and Bobby Huynh.
4The offences for which I sentence you have the following maximum penalties: cultivation of a narcotic plant and trafficking a drug of dependence, 15 years' imprisonment; theft, 10 years' imprisonment; possession of a prohibited weapon, 240 penalty units or two years' imprisonment; committing an indictable offence whilst on bail, 30 penalty units or three months' imprisonment.
5In sentencing you, I must take into account the maximum penalties, as these reflect the seriousness with which Parliament regards the offences which you have committed.
6The basis for Charge 1 is that between 1 December 2019 and 14 May 2020 you cultivated 138 cannabis plants comprising 40 cannabis plants previously grown at the Huntingdale property and sold, 24 cannabis plants seized from the Clayton property on 14 May 2020 and 74 cannabis plants seized from the Huntingdale property on 14 May 2020. The combined weight of the cannabis plants which were seized by police as between the two properties was 28.69 kilograms. You cultivated the cannabis with the intention of selling the plants individually.
7The bases for Charges 2 and 3 are that between 1 December 2019 and 14 May 2020, an electrical bypass was used by you at the Huntingdale property to steal 26,176.9536 kilowatts from energy retailer, Simply Energy. Between 1 January 2020 and 14 May 2020, you used an electrical bypass at the Clayton property to steal 189,376.0128 kilowatts from energy retailer, Red Energy. The value of the energy was not known.
8The basis for Charge 4, trafficking in a drug of dependence, is that between 14 January 2020 and 14 February 2020, you sold approximately 40 cannabis plants that you had cultivated at the Huntingdale address. You sold these plants to unknown associates in the Springvale area for between $70 and $250 per plant. The weight and total proceeds from the sale of the 40 cannabis plants is unknown.
9The basis for the summary offence of possessing a prohibited weapon is that when police executed search warrants at the Huntingdale property and Clayton property on 14 May 2020, they found a taser and cannister of capsicum spray. You are not authorised to possess either of these weapons. The indictable offences before me were committed whilst you were on bail in relation to driving offences.
10The circumstances leading to your arrest are that following reports of cultivation and trafficking activity at the Clayton and Huntingdale properties, police observed a van outside the Huntingdale property on 12 May 2020 which was registered to you.
11Subsequently, police executed two search warrants, one at each of the properties. At 10.45 am on 14 May 2020, police executed the search warrant at the Clayton property, obtaining peaceful entry via your son, Tien Vu Yin Huynh. You were in a bedroom near the front door.
12A preliminary search of the property resulted in police finding 24 cannabis plants in your room, which was divided into two sections. Each section consisted of cannabis plants and equipment used to cultivate them. You were arrested. Police also found at that address a cannister of capsicum spray in a laptop bag on the floor inside the doorway of a bedroom.
13At 10.30 am on 14 May 2020, police executed a search warrant at the Huntingdale property. Your van was in the driveway of this address. When police entered the property, no-one else was there. They found cannabis growing in a number of rooms in the house. They were growing under lamps and hooked up to a watering system. The windows had been covered with thick plastic.
14Police seized multiple cannabis plants from the following rooms: (a), in the lounge room, 21 mature cannabis plants which weighed 9.5 kilograms; (b), in a bedroom, 12 mature cannabis plants weighing 3.58 kilograms; in the second bedroom, containing 26 mature cannabis plants weighing 6.8 kilograms; (d), a third bedroom housing five mature cannabis plants weighing 3.1 kilograms; and (e), the sunroom at the back of the house contained 11 juvenile cannabis plants weighing 107.3 grams.
15In total, 75 cannabis plants were found at the Huntingdale property weighing 22.99 kilograms. During a search at this address, police seized a prohibited weapon, being a taser, which was in a drawer in one of the bedrooms.
16You were interviewed that same day with the help of a Vietnamese interpreter and made admissions in relation to the charges. You admitted that the cannabis plants found at both the Clayton and Huntingdale properties were planted and cultivated by you. You said that an associate called Lam Lee organised the installation of the equipment and the electrical bypass.
17You admitted that you had planted and attended to the marijuana and admitted that you had 24 plants at the Clayton property and 50 plants, plus some very small plants, at the Huntingdale property. You also admitted that you had a previous cannabis crop at the Huntingdale address which you had sold a couple of months before your arrest. You estimated that it took you 12 weeks to grow and sell 40 plants and admitted that you sold each plant for between $70 and $250. You admitted that you had planned on selling the plants at the Clayton and Huntingdale properties in the same way.
18You said the taser did not work and you believed the spray cannister was capsicum, but you were not sure about this, as you had never used it. You also acknowledged that you were on bail at the time of the offending.
19Mr Huynh, your offending is serious and warrants a punishment which is just in all of the circumstances. Your conduct must be firmly denounced. You engaged in cultivation and trafficking of a significant number of cannabis plants in order to make money. You openly admitted to this in the course of the record of interview, which was referred to by the learned prosecutor when your counsel suggested that your motivation was otherwise. I understand that this has been accepted now by defence.
20The cultivation charge relates to two different properties, one of which you are prepared to have your family live in, which is most concerning. It appears that the setups had a level of sophistication, and the amount of electricity which you stole was significant. Further, not only did you cultivate cannabis plants, you also sold them to various members of the community.
21It was clarified this morning that in relation to the Huntingdale property, you discovered the enterprise and continued it. However, as I have said, defence also accepted in their submissions this morning that any suggestion that the motivation was for any reason other than profit was incorrect and they withdraw that submission. You also made admissions to continuing the electrical bypass that you discovered at the Huntingdale property and commencing the bypass at the Clayton property.
22There is no impairment of mental function or anything which would serve to reduce your moral culpability, which I find is high. Strong weight much attach to general deterrence in a bid to deter others from offending as you have. As has often been said by the courts, drugs are a scourge on our society. They threaten the very fabric of it, and a strong message must be sent that behaviour such as yours will not be tolerated.
23You have a fairly limited criminal history. But it is one of some relevance, notwithstanding it is also somewhat dated. On 11 May 1995 you were dealt with for possession of cannabis and use other drug of dependence. Both charges were adjourned without conviction for 12 months.
24On 30 July 1999 in the Dandenong Magistrates' Court, you were convicted of possess, use and trafficking heroin and sentenced to an aggregate term of four months' imprisonment, which was partially suspended, such that you spent two months with the remaining two months suspended for a period of 12 months.
25In sentencing you, I note that there is a significant gap between your prior offending and your offences before me. Your prior offences were committed at a different stage of your life. However, they still have some relevance to sentencing you for the matters now before me.
26At the plea hearing I was told that there were also subsequent matters which were to be dealt with in the Magistrates' Court on 3 September. At that time I was told that there were 10 charges that you were facing in relation to firearms and drug offences, and you intended to enter pleas of guilty to appropriate charges.
27As at the plea hearing date, you have been on remand in relation to the subsequent matters and have spent 95 days in custody. Your time in custody is relevant to the question of totality, and I apply that principle in your case. I was told in submissions filed this morning that on 3 September you were sentenced at the Ringwood Magistrates' Court to a term of six months' imprisonment for offences relating to having a loaded weapon in the boot compartment of your car. Some members of your family were present in the car at the time.
28In those submissions I was asked to consider the question of concurrency as between that sentence and the sentence I would impose today, and I certainly have, as I have said, in sentencing you, have applied the principle of totality.
29I take into account your background. You were born in Vietnam in October 1974. Your father was imprisoned from 1975 until 1983, as he had worked with the former South Vietnamese government. Whilst imprisoned, you and one of your sisters lived with your paternal grandparents. You suffered abuse at the hands of your grandfather and uncles. Your mother and other siblings lived with your maternal grandparents during this period.
30Your father was released from jail in 1983, and he migrated to Australia. Your mother joined your father in 1986, whilst all of the children stayed in Vietnam in the care of your grandparents. You migrated to Australia in 1990 when you were 15 years old. You have lived in metropolitan Melbourne since your arrival here. You completed Years 9 to 12 in Melbourne, but you did not complete any tertiary education.
31After finishing school, you started work in a factory. In 2002, you purchased a bakery, and from that year until 2010, you have owned and operated five different bakeries. Some were owned and operated at the same time as one another. Most recently, you have owned and operated a bakery in Ballarat. Sorry, you owned and operated a bakery in Ballarat which ran for 10 years. You currently run a business in St Albans, which is a restaurant. You run this with your estranged wife and eldest child.
32You were married for over 20 years, and you have four children from that relationship. Sadly, one of your daughters died in 2017 after suffering an aneurysm. She was only 11 years old at the time. Your other children are aged seven, 10 and 21. It is the 21-year-old, as I understand it, who opened the door to police at the Clayton address at the time that you were arrested.
33I was told that the relationship you had with your wife deteriorated after your daughter died and that there was a period of separation. However, I was told that you and she are working through issues, and I note that at the time of the offending, you had apparently moved back into the matrimonial home, at least on a part-time basis.
34In sentencing you, I take into account in a general way the report of Ms Matilda Douglas dated 25 January 2021. Ms Douglas assessed that you were suffering from major depressive disorder and sedative use disorder. I understand that following the death of your child, you attempted suicide on two occasions, and you have experienced suicidal ideation. At the time of the one‑off assessment by Ms Douglas, you are not experiencing suicidal ideation and indicated that your children had helped you in avoiding such thoughts.
35Unfortunately, you have not undertaken or accepted any psychotherapy support in order to address the grief that you experienced due to the loss of your daughter. And it was submitted on your behalf that effectively, you engaged in the offending in the context of being overwhelmed by grief and sadness. I accept that you were suffering the effects of grief and sadness at the time of your offending. However, as you told police, your motivation in setting up the hothouses was for financial gain.
36However, in saying this, I do factor in that you may well have developed a self-destructive mentality which somewhat blunted your conscience, having previously been a law-abiding citizen. Although it was not said that your moral culpability ought to be reduced for any reason, I accept that the symptoms you suffered from major depressive disorder will make time in jail harder for you than for someone without such difficulties. I have also factored in that your concern for your family in being able to cope financially in your absence will make time in jail harder for you.
37As you have been on remand and now sentenced in relation to other matters, I have taken that into account, as well as to the hardship you have suffered whilst in custody. I have also taken into account that time in jail will and has been harder for you due to the COVID-19 restrictions which have been in place and which will be in place from time to time, no doubt, and which will impact on personal visits from your family and undertaking programs, as well as the prospect of lockdowns and perhaps appropriate treatment for your mental health.
38Having said this, the state of the evidence as to the adequacy of treatment available is far from satisfactory, as I do not accept that Ms Douglas or Ms Ferrari have sufficient knowledge about this aspect to meaningfully contribute.
39In sentencing you, I allow for a significant discount from the sentence you would otherwise receive because of your full admissions to police and early pleas of guilty. Indeed, you admitted to police that you had previously sold 40 cannabis plants, a matter which they may well not otherwise have known. So I will make an extra allowance for this.
40In pleading guilty at the stage that you did, you saved the witnesses the time and trouble of giving evidence at contested proceedings, and you saved the community the time and expense of these. I make an additional allowance for the fact that you are prepared to plead guilty during COVID-19 conditions, rather than stringing matters out and adding to the backlog of cases which the courts will have to deal with.
41Your counsel submitted that your pleas of guilty were indicative of remorse. Having considered this aspect, I accept that your full co-operation with police from the outset, including admitting to offending they might not otherwise have known about, does reflect remorse for your actions. I am not so sure that you have insight as to the seriousness of your offending, insofar as it has the potential to impact upon others. I do hope that you work on this aspect sooner rather than later.
42Further, I make some allowance for the delay in this matter, albeit that compared with other matters, it could not be said that such delay is inordinate. Notwithstanding this, you have had these matters hanging over your head for a fairly substantial period. However, as you have had subsequent matters, it cannot be said you have used the intervening period in such a way as to add to your rehabilitation.
43Having said all of this, it appears that the subsequent matters are not in the nature of drug offences, which I have also taken into account. It is concerning that one of the subsequent matters at least, or in fact, the nature of the subsequent matters appears to be related to firearms.
44In sentencing you, I have also factored in that you are an alcohol and drug user, having used substances excessively in the past. However, apparently, your use of substances nowadays is occasional or social.
45In assessing your prospects of rehabilitation, I have taken into account that you have solid family support, and you have a solid work ethic with a strong degree of business acumen. You have reoffended after a lengthy period, and when caught, you have been prepared to be fully co-operative with police.
46In view of your fairly limited criminal history and the context in which this offending took place, the solid work ethic and family support, but also factoring in the nature of the offending and the apparent alacrity with which you engaged in it, as well as the subsequent offending, I assess your prospect of rehabilitation as being guardedly good.
47I place less than moderate weight on specific deterrents and protection of the community. However, as I have said, I must place strong weight on general deterrence, and I must give firm weight to the need to punish you and denounce your conduct appropriately.
48Your counsel submitted that a community corrections order was in range in your case, referring to one case in this court in particular in support of sentencing practice allowing for such a disposition. The prosecution submitted that nothing short of a jail term which involved a head sentence and a non-parole period was appropriate and referred me to a number of cases in relation to current sentencing practice.
49Current sentencing practice is but one consideration in sentencing an offender. And whilst I have had regard to the cases to which I have been referred, they do not control my sentencing discretion. At the end of the day, I am afraid that your offending is too serious to warrant anything short of a jail term which involves a head sentence and a non-parole period. However, I have done what I can to keep the jail term to a minimum, having had regard to all relevant sentencing principles and matters of mitigation.
50I have also determined that a level of accumulation ought be imposed in relation to the sentence that you are currently undergoing, for the reasons that I set out in discussion with your counsel before I embarked on these sentencing reasons, namely, that there ought be a recognition of that separate offending in this sentence that is imposed overall.
51You are convicted of each of the offences. You are sentenced as follows: Charge 1, cultivation of a narcotic plant, two years' imprisonment; Charge 2, three months' imprisonment; Charge 3, six months' imprisonment; Charge 2, 12 months' imprisonment; summary charge, possession of a prohibited weapon, eight months' imprisonment; summary offence of committing an indictable offence whilst on bail, three months' imprisonment.
52I direct that six months from the sentence on Charge 4 is served cumulatively with the sentence on Charge 1, producing a total effective sentence of two and a half years. I direct that you serve 12 months before becoming eligible for parole. I direct that two months of the sentence that you are currently undergoing is to be served cumulatively with the sentence that I have just announced. Otherwise, all other sentences are to be served concurrently with each other.
53I make the disposal and forfeiture orders sought by the prosecution, which are not opposed by you. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of four and a half years with a non-parole period of two and a half years.
54Now, is there anything arising from those sentencing remarks from your point of view, Madam Prosecutor?
MS HANDO: No, thank you.
HER HONOUR: Mr Oldham?
MR OLDHAM: Nothing arising, Your Honour.
HER HONOUR: All right. Do you want to have a quick word with your client? Actually, it might be best to do that at another time, because I do have another matter at 10.30.
MR OLDHAM: I am cognisant of taking up the court's link, Your Honour, in the current circumstances. I will make arrangements to talk to Mr Huynh afterwards. Thank you, Your Honour.
HER HONOUR: Thank you very much. All right. Anything further, then?
MS HANDO: No, thank you.
HER HONOUR: Yes.
MR OLDHAM: No, Your Honour.
HIS HONOUR: Thank you.
TRANSCRIPT OF PROCEEDINGS
CR 21-00511
COUNTY COURT OF VICTORIA
CRIMINAL JURISDICTION
MELBOURNE
FRIDAY 8 OCTOBER 2021
BEFORE HER HONOUR JUDGE CANNON
DIRECTOR OF PUBLIC PROSECUTIONS v VU HUYNH
M E N T I O N
MS A. HANDO appeared on behalf of the Director of Public Prosecutions.
MR C. OLDHAM appeared on behalf of the Accused.
MS HANDO: Good afternoon, Your Honour, I appear for the prosecution and I also seek leave to appear unrobed.
HER HONOUR: Yes, leave's granted, thank you, Ms Hando.
MS HANDO: Thank you.
MR OLDHAM: Your Honour, may it please the court, I appear for Mr Huynh, who's on the screen.
HER HONOUR: Yes, thank you, Mr Oldham and you can take a seat, Mr Huynh, but you need to pull your mask up over your nose please. Thank you. If your glasses fog up, you can just put them further down over your mask.
ACCUSED:Yes.
HER HONOUR: Now, this is a mention of the matter, because I was trying to administratively cure an error in the sentence that I previously imposed, because I directed that two months of a sentence that Mr Huynh was currently undergoing, by virtue of Magistrates' Court matters ought be served cumulatively with the sentence that I imposed and that was an error on my part and I wished to cure that under the slip rule, however, Mr Oldham has indicated that he would like the matter further ventilated, so that it is understood as to what my present intention is and that is to simply express that the sentence that I imposed in this matter on 21 September ought be served cumulatively with the sentence that Mr Huynh is currently undergoing.
Now, before I hear from either of the parties, perhaps this might assist. My associate's made contact with Mr Dickinson, who is a senior records - the senior records adviser with the prisons and he has indicated that, in relation to Mr Huynh's sentence, that he was or is undergoing, by virtue of the Magistrates' Court, because of presentence detention and emergency management days, his earliest release date for that sentence was going to be on 1 November of this year.
Now, I sentenced Mr Huynh on 21 September and therefore, as at that time, he had 42 days to go on the Magistrates' Court sentence and in imposing the sentence that I did, if I express it to be served cumulatively upon the Magistrates' Court sentence, then the net effect of that would be simply to add that 42 days to the head sentence that I have imposed, but the non-parole period that I imposed of 12 months would not change, because basically that's the dominant sentence. Do you understand that, Mr Oldham?
MR OLDHAM: I do, Your Honour. What my concern was, was whether that was allowed under the slip rule. The slip rule, as Your Honour knows, is encapsulated in s104A of the Sentencing Act and tends to speak of clerical errors with regards to mistakes in relation to - well, slips, for want of a better expression. My concern and what I was wrangling with, Your Honour, in trying to come to an agreement and also try to explain to my client was that, this is a matter that's more potentially and I guess, a matter for Your Honour, dealt with under s104B of the Act, because it's more technical than that, because Your Honour had already set a head sentence and then cumulation with reference to that and I misunderstood the effect of extending the head sentence and whether that was what was sought to be done, or whether that was being given by way of an example of what would occur.
HER HONOUR: So you say that rather than use the slip rule, it's more appropriate to use the provision to which you've referred?
MR OLDHAM: Yes, Your Honour. All I'm trying to do, Your Honour, is avoid any error.
HER HONOUR: Yes, thank you very much, Mr Oldham. Well, that might well be the case and therefore, I will make that amendment pursuant to the provision that you've referred to, rather than the slip rule. I just want to make sure that it's accurately reflected in the sentencing orders that I make and so I'm grateful for you pointing that out. Do you have anything to say, Madam Prosecutor?
MS HANDO: Your Honour, just in that time I've quickly pulled up s104B and I would agree with my learned friend that s104B(1)(a) would apply, if that's helpful.
HER HONOUR: All right. Well, I'm very happy to make the amendment under that provision, rather than the slip rule. It does seem that it's more appropriate. The main thing that I thought that was the concern was what
Mr Huynh's position would be. I'm sure he mightn't be too fussed whether we call it the slip rule or another provision, but I am grateful to counsel for assisting me in that way, but as long as Mr Huynh understands that his non-parole period that I've imposed has not changed, it will be 12 months from the date of sentence, being 21 September and that the only thing that's changed is that there's 42 days added to the head sentence that I've imposed. Is there anything ‑ ‑ ‑
MR OLDHAM: Yes Your Honour.
HER HONOUR: All right.
MR OLDHAM: I've had that discussion with him yesterday, Your Honour. Myself and Ms Holmes met with him online - met with him online to discuss that, Your Honour.
HER HONOUR: All right, yes, thank you. So I'll make those amendments to my sentence and the records will be - will reflect that amendment. Is there anything further?
MR OLDHAM: Nothing further, Your Honour.
MS HANDO: No Your Honour, thank you.
HER HONOUR: Yes, thank you very much, we'll now adjourn.
MS HANDO: The court pleases.
MR OLDHAM: Your Honour pleases.
‑ ‑ ‑
0
0
0