Director of Public Prosecutions v Lam and Anor

[2019] VCC 2073

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR 19-01775

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN LAM
HOUN BUI

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Bairnsdale
DATE OF HEARING:
DATE OF SENTENCE:	11 December 2019
CASE MAY BE CITED AS:	DPP v LAM & ANOR
MEDIUM NEUTRAL CITATION:	[2019] VCC 2073

REASONS FOR SENTENCE
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Subject:
Catchwords: guilty plea – cultivation of cannabis L simpliciter – very limited role – no criminal record – good work history – good prospects of rehabilitation
Legislation Cited:
Cases Cited: Nguyen v The Queen, [2016] VSCA 198, Kennedy v The Queen, [2019] VSACA 127
Sentence: community correction order 2 years and 6 months – 250 hours of unpaid community work

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For Accused LAM	Mr T. Sawyer
For Accused BUI	Mr J. Miller

HIS HONOUR:

1Van Lam and Houn Bui, you have each pleaded guilty to one charge of cultivation of a narcotic plant, Cannabis L.

2The circumstances of your offending are set out in the prosecution opening.  They are agreed facts. 

3In summary, police had a house at Bairnsdale under surveillance from March 2018. 

4They saw a third offender, Nah Nguyen, come and go through a locked gate.  Surveillance also revealed you attending the premises on 8 July and 7 August 2018. 

5On 8 August 2018, police executed a search warrant at the premises.  Inside, there was an extensive hydroponic system for cannabis cultivation in operation in six rooms.  One hundred and thirty-three cannabis plants were seized.

6Police arrested the two of you at a Bairnsdale address.

7You both knew Nguyen was cultivating the cannabis crop.  You worked in a landscaping business together and had travelled to Bairnsdale for reasons unrelated to the cannabis cultivation.  While you were in Bairnsdale, you were asked to visit the property, to check Nguyen was managing the crop. 

8Neither of you has a criminal record, nor any record of subsequent offending.

9Mr Lam were born on 19 April 1977 and, at the time of your offending, you were aged 41 years. 

10Your counsel, Mr Sawyer, told me you were born in Vietnam.  Your family are builders.  You have an older brother and sister who, with your mother and father, remain in Vietnam.

11When you were 23 years old you came to Australia on your own.  You became an Australian citizen in 2001.  In 2005, you met your wife and married.  You have three sons aged 13, eight and seven.  In 2017, you separated from your wife, you moved out and left your home, which is unencumbered, to her.  You live in a share house nearby at Albanvale.  You have regular agreed contact with your children and pay child maintenance.  You have a solid employment history.  Previously, you ran a landscaping business and are now working at Maidstone on the construction of a Buddhist temple.  You have no health issues and no problems with drugs or alcohol. 

12You are

13In mitigation of penalty, Mr Sawyer relied on the following factors.  Firstly, your plea of guilty.  Secondly, your prior good character.  Thirdly, your good work record.  Fourthly, your support to your family and fifthly, your good prospects of good rehabilitation.

14You, Mr Bui, were born on 25 March 1982 and at the time of offending, were aged 36 years. 

15Your counsel, Mr Millar, in written and oral submissions, informed me you were born in Vietnam and arrived in Australia with your parents, two older sisters and your younger brother on 9 November 1997, when you were 15 years old, under a family reunification scheme.  You spoke no English.  After you completed a six month English as a second language course, you went into Year 9 at Caroline Chisholm Catholic College.  You completed Year 12 and then did a six month polytechnic course at Robinvale.  There, you worked on a farm for twelve months, before moving to Newcastle in New South Wales, where you worked at a flower farm for five years.

16Since returning to Melbourne, you have worked at a restaurant and at two garment factories.  You worked as a handyman with Mr Lam for two years and, at the time of your offending, you were living in Bairnsdale and working as a handyman and seasonal farmhand.  After your arrest, you were bailed to a Melbourne address where you live with a friend and you have worked in handyman jobs.  You were twice married and have four children, aged between four and 13.  You have a friendly relationship with your two ex-wives who have since remarried.  You see your children regularly and pay voluntary child support.  You enjoy good health and have no drug, alcohol or gambling issues.

17Mr Miller relied on the same factors, which Mr Sawyer relied on, in mitigation of your penalty. 

18Both counsel submitted I should not gaol you, but sentence you to a community corrections order, with the condition you perform unpaid community work. 

19Mr O'Doherty who appeared for the prosecution accepted a community corrections order is within sentencing range in your cases. 

20I accept your guilty pleas have high utilitarian value because the prosecution case against you might have been otherwise difficult to prove. 

21I also accept your prior good character, your good work records and care for your family, give confidence for the prospects of your successful rehabilitation.  I find in your cases there is less need for specific deterrence.

22While there were a large number of plants, exceeding a commercial quantity of one hundred plants growing on the premises, the prosecution case against you is that you knew cannabis was being grown, but not in a commercial quantity.  On the prosecution case, your role was very limited. 

23The crop sitter, Nah Nguyen was sentenced to 18 months imprisonment, with a minimum non-parole period of nine months.

24He pleaded guilty to the more serious charge of cultivation of a commercial quantity of narcotic plants and to theft of a significant amount of electricity

25Taking into account that you were less involved in the cannabis cultivation than him, and that you have pleaded guilty to a single lesser charge, I have decided the sentence I should impose upon you should be less severe than the sentence imposed on Nguyen.

26As between the two of you, your role in the offending was the same and your personal circumstances are very similar.  I see no reason to differentiate between you as to penalty.

27I have had regard to the matters set out in sub-s.(2) of the s.5 of the Sentencing Act, including current sentencing practices.  In addition to a consideration of a number of sentences of this court, I have had regard to the principles stated in Nguyen v The Queen, [2016] VSCA 198, a commercial quantity cultivation case, with appropriate adaptation, and to the guidance in the recent Court of Appeal decision of Kennedy v The Queen, [2019] VSACA 127. 

28In the circumstances of your cases, I am satisfied a properly conditioned community corrections order of lengthy duration is capable of satisfying all sentencing purposes, including just punishment and your rehabilitation. 

29Please stand Mr Lam and Mr Bui. 

30By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or a similar kind.  I must also look to your rehabilitation. 

31Taking into account the circumstances of your offending, and your personal circumstances, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of cultivating a narcotic plant, each of you is convicted and I order that you be released on a community corrections order for a period of two years and six months.  In addition to the core conditions, I order you complete 250 hours of unpaid community work. 

32I declare, but for your plea of guilty, I would have sentenced each of you to 15 months imprisonment. 

33Now I will have the community corrections orders prepared and I will stand down to give each of your barristers the opportunity to explain the conditions of the order to you and to ask you to sign an acknowledgement that you understand the conditions and that you consent to the order being made.  If you consent to the order, I will then make it.

34MR MILLER:  Your Honour pleases.

35HIS HONOUR:  I will stand down while you speak with your clients gentlemen.

36(Short adjournment.)

37HIS HONOUR:  Mr Bui and Mr Lam, I see that you have signed the documents.  Please confirm for me that you understand the effect and conditions of the order I propose.

38ACCUSED LAM:  (Through Interpreter)  Yes I will.  Yes I will.

39ACCUSED BUI:  (Through Interpreter)  Yes I will.  Yes I will.

40HIS HONOUR:  Do each of you consent to the order being made?

41ACCUSED LAM:  (Through Interpreter)  Yes.

42ACCUSED BUI:  (Through Interpreter)  Yes.

43HIS HONOUR:  Thank you.  I will make those orders.

44MR SAWYER:  Your Honour just a - just a matter I just thought of then, I'm sure it will be explained.  They will have to report to the Sunshine Corrections within two days, is that ‑ ‑ ‑

45HIS HONOUR:  Yes, they will.  Thank you for bringing that to my attention Mr Sawyer.  I will remind you that you must attend at the Sunshine Community Correctional Services at 10 Foundry Road, Sunshine within two working days. 

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