Director of Public Prosecutions v Juan
[2020] VCC 1021
•10 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-00538
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHIH YEN JUAN |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 July 2020 | |
DATE OF SENTENCE: | 10 July 2020 | |
CASE MAY BE CITED AS: | DPP v Juan | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1021 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – Cultivation of cannabis in a commercial quantity – 75 cannabis plants and dry and loose cannabis weighing total of 122.20kg – Offender attended property on three occasions – Genuine remorse – Very good prospects of rehabilitation – Circumstances surrounding COVID-19 pandemic taken into account.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991.
Cases Cited:Markovic v The Queen; Pantelic v The Queen (2010) 30 VR 589.
Sentence: Imprisonment for a period of 2 years, with a non-parole period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Webster | Office of Public Prosecutions |
| For the Accused | Mr G Cooper | Victoria Legal Aid |
HIS HONOUR:
Introduction
Shih Yen Juan, you have pleaded guilty to one charge of cultivation of a narcotic plant, namely cannabis, in a quantity not less than the commercial quantity contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 25 years imprisonment.
You have no prior criminal history.
Circumstances of the Offending
A prosecution opening was tendered on the plea and may be summarised as follows:
The offending arises out of a Victoria Police investigation into a suspected hydroponic cannabis crop being grown at a property at 29 King Street, Bayswater (the property).
On 3 January 2020, Victoria Police was granted a search warrant pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act 1981 in relation to the property.
On 13 January 2020, Victoria Police members attended the vicinity of the property in anticipation of executing the search warrant. At approximately 3.38 pm, police observed a silver 2007 Toyota Camry bearing registration plates 1GP3JP arrive at the property. The vehicle was being driven by Quang Nguyen while you were seated in the front passenger seat.
The vehicle pulled into the driveway of the property and you exited to retrieve the garbage bin that was situated on the nature strip. The roller door to the garage of the property opened and Mr Nguyen parked the vehicle inside. You wheeled the bin up the driveway to the garage. The roller door then closed with both you and Mr Nguyen inside the garage.
At this point, police moved to execute the search warrant. Four members attended the rear of the property through a side gate, while five members attended at the front door. An unmarked police vehicle was also driven into the driveway of the property with its emergency lights activated.
Members at the front door announced themselves by yelling ‘police, open the door!’ numerous times. No person answered the door, however, hurried footsteps from within the property were heard by numerous members. Police gained access to the property by forcing open the front door.
At the same time, members gained access to the property through the front door, you and Mr Nguyen exited through the rear door leading into the backyard where you were both arrested. You both appeared to be panicked and flustered. You were handcuffed by police and were heard to repeatedly say, ‘I’m sorry, I’m sorry’.
Both you and Mr Nguyen were wearing black latex gloves at the time of the arrest. You were both heard by police to be conversing with each other in Vietnamese and you were observed removing one of the black latex gloves you were wearing. You were subsequently taken to a separate area of the property.
Upon gaining entry to the property, police immediately noticed the smell of fresh cannabis. The property was not occupied, with very few household items within.
A representative from AusNet attended at the property to disconnect an electrical bypass that had been installed. Cannabis plants were located growing in three rooms with sophisticated hydroponic equipment including water pumps for irrigation, multiple 660 watt lamps and ballasts and multiple large carbon filtered exhaust fans. Many of the cannabis plants were mature and producing large flowering buds. In a fourth room, police located two garbage bags containing small cannabis plants in pots. A further garbage bag containing dry and loose cannabis was located in the hallway.
The following cannabis was located by police:
·In room one: 31 plants, weighing 19.81 kilograms;
·Room two: 12 plants, weighing 53.58 kilograms;
·Room three: 12 plants, weighing 48.54 kilograms;
·Room four: 8 plants, weighing 40.2 grams; and
·In the hallway: Dry and loose cannabis, weighing 196.1 grams.
A total of 75 cannabis plants were seized. The total weight of the cannabis including the dry and loose cannabis was 122.20 kilograms.
Three garbage bags containing a further 12 cannabis plants were seized from within the boot of your vehicle. It is alleged that you travelled to the property with a total of five garbage bags containing cannabis plants in your vehicle, moving two of those garbage bags to the fourth room of the property before your arrest – these two bags being included in the total weight subject to the charge. A letter from Simply Energy, addressed to Miss Qiao, was also located in the footwell of the driver’s seat of your vehicle.
On 13 January 2020, you were interviewed with the assistance of a Vietnamese interpreter at the Croydon Police Station. You stated, amongst other things, that a Vietnamese man had told you to attend the property and that your role was to water the plants and bring the bins in, in return for $150 each time you go to the house. You initially stated that that day was the first time you had attended the property, before then stating that it was the third week you had been attending in return for $1000 a week. You also stated that you carried three bags from your car to the property. You stated that you did not know that the plants were cannabis. You also said that Mr Nguyen attended the property with you and that he was your boyfriend and lived with you.
Nature and gravity of the offending
As cultivating a commercial quantity of cannabis carries a maximum penalty of 25 years imprisonment, it is by its nature a serious offence. In this instance, the total number of plants seized was 75 plants with the total weight of the cannabis found being 122.20 kilograms. Therefore, the weight of the cannabis was close to five times the commercial quantity threshold, 25 kilograms being a commercial quantity.
Further, when an assessment is undertaken in relation to the combination of the various items and cannabistre://ftr/?label="SHEP SH3.2"?datetime="20181113154142"?path="\\svr_vgrs_fs01\Civil"?Data="67ef260b" found at the property, it is clear that this was a sophisticated commercial hydroponic cannabis operation with an electrical bypass that had been installed in order to avoid detection.
However, as with many commercial hydroponic setups, there is a hierarchy of persons involved. In your case, it is accepted by the prosecution that your role was effectively limited to what you stated in your record of interview. That is, you were hired for a specific and limited role to attend the property, water the plants and undertake various other menial tasks such as bringing in the bins. You were not residing at the property and the charge is limited to attending the property on three occasions. Further, there is no evidence that you had any financial interest in the set up beyond the limited payments you have admitted to.
In all the circumstances, I accept that your role is able to be described as being akin to that of a crop sitter limited to the roles described above. As such, although your offending is still serious, it may be assessed towards the lower end.
Personal circumstances
You are currently 35 years of age. You were born in Vietnam and you are a Vietnamese citizen.
You mother and father live in Vietnam and you have a close relationship with them which has been maintained by regular phone contact since you have been on remand. You have an older brother who lives with your parents and you also have a strong relationship with him.
Both your parents suffer from a number of health issues. Your mother has been diagnosed with thyroid cancer and a number of other health concerns while your father suffers from hepatitis and liver disease. While both your parents have consistent work histories, as a result of their respective health concerns, they are no longer working. Your parents' deteriorating health has weighed heavily on you while you have been in custody.
Your family were farmers in Vietnam when you were growing up and you worked on the farm while you were still attending school. You completed the equivalent of Year 12 and then worked in factories and in hospitality. You married in your early 20s. You lived with your then husband in Taiwan and from that relationship you have a 12 year old son who resides with the father in Taiwan, however you have maintained telephone contact with him.
You arrived in Australia on 7 June 2017 on a Tourist Visa. On 19 July 2017, you applied for a Student Visa which was refused on 1 September 2017. You lodged an application for a review of that refusal on 15 September 2017 and pending the review you resided in Australia on a Bridging Visa. On 10 April 2019, the initial refusal of your Student Visa was affirmed, and you were notified that you must leave Australia by 15 May 2019. Therefore, at the time of this offending, you were residing unlawfully in Australia.
You have no issues with substance abuse, and you do not suffer from any other medical or psychological conditions.
When you first entered custody, you used your time constructively by engaging in educational courses which have been discontinued as a result of the current pandemic. However, you continue to work in the kitchen seven days a week from 9.30 am to 1.30 pm.
You plan to return to Vietnam when you are able in order to care for your parents. You state on instructions that your reason for being involved in the offending was to earn money to return to Vietnam to support your parents as you were unable to work legitimately. In this context, I note that in all the circumstances it is inevitable that you will be deported to Vietnam upon your release from custody.
Sentencing considerations
Mr Cooper, who appeared on your behalf, provided detailed and helpful written submissions outlining the matters in mitigation upon which you rely.
Turning first to your plea of guilty. You pleaded guilty at the committal mention stage which has of course saved the community the cost and time of a committal and a trial. I accept that your plea of guilty is an early plea and as such, it has facilitated the course of justice.
It was submitted that you have shown genuine remorse over and above your plea of guilty, which the prosecution also accept. In your parents' joint reference, they convey that you have expressed remorse and that you accept that you made a mistake by becoming involved in the offending.
In your record of interview, you also made substantial admissions and although the case was strong, in the circumstances I accept that you cooperated fully with the police once you were arrested. Further, without your frank admissions, the prosecution may only have been able to charge you with offending on a single day. Therefore, in my view, in addition to demonstrating your acceptance of responsibility, you are entitled to have taken into account in your favour the fact that you essentially made admissions that established offending beyond that which the investigation disclosed. In these circumstances, I also accept that you have demonstrated genuine remorse.
It was also submitted on your behalf that the circumstances of your imprisonment are more burdensome for you as you have ongoing concerns for your parents in Vietnam who suffer deteriorating health conditions. As is well settled, while not amounting to exceptional circumstances, this is a matter that can properly be taken into account as a conventional issue of mitigation.[1] It was also submitted that given your limited English language skills that your time in prison has also been difficult which I accept.
[1]Markovic v The Queen; Pantelic v The Queen (2010) 30 VR 589 at [20].
As to your prospects of rehabilitation, it was submitted that your offending should be viewed as an aberration and that you are otherwise of good character. The evidence supports that conclusion. You have no prior criminal history. You do not have any substance abuse issues or mental health issues to contend with and the reference from your parents demonstrates their continued support of you. In all the circumstances, in my view your prospects of rehabilitation are able to assessed as very good.
Further, given the fact that you have no prior criminal history and good prospects of rehabilitation, specific deterrence need not carry weight in the sentencing discretion.
Ms Webster who appeared on behalf of the Director of Public Prosecutions submitted that general deterrence must be the primary sentencing consideration. That is, a message must be conveyed that persons who choose to be involved in commercial cultivation of cannabis will inevitably face terms of imprisonment regardless of their motivation for being involved. Denunciation of your conduct is also a relevant sentencing consideration in this instance.
Finally, I take into account the current circumstances surrounding the COVID‑19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and some prisoners are experiencing increased lockdown periods. In your specific circumstances where you were engaging in courses that have now been suspended, I accept that the effect of the restrictions is able to be taken into account in your favour. Given the current circumstances, it is also uncertain as to when you may be able to return to Vietnam even if you are deported. While these matters are speculative, I accept that the uncertainty of your future is also a matter that weighs on you.
Sentence
Ms Juan, would you please stand.
Shih Yen Juan, on Charge 1, cultivating a narcotic plant in not less than a commercial quantity, you are convicted and sentenced to 2 years imprisonment. I direct that you serve 12 months imprisonment before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 179 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 3 years with a non parole period of 2 years.
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