Director of Public Prosecutions v Le
[2022] VCC 516
•9 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20 01794
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| QUANG LE |
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JUDGE: | HIS HONOUR JUDGE SMITH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 9 February 2022 |
CASE MAY BE CITED AS: | DPP v Le |
MEDIUM NEUTRAL CITATION: | [2022] VCC 516 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr H. Lewis | |
For the Accused | Mr D. Grace QC |
HIS HONOUR:
1Quang Van Le has pleaded guilty to one charge of cultivation of a narcotic plant, namely Cannabis L. in not less than a commercial quantity.
2The circumstances of his offending were set out in some detail in the prosecution opening which was tendered at his plea hearing and read out in court. Briefly, the circumstances were that on 12 March 2020 police attended at premises in Edithvale, where they executed a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act 1981. At that time there was no one found in the premises.
3A search of premises disclosed that each of four rooms had been used to grow cannabis and were fitted out with cannabis plants in pots, high wattage globes, light shrouds and transformers - an automatic watering system had been installed. The search disclosed 86 cannabis plants weighing a total of 79.2 kilograms. As such the cannabis found was more than a commercial quantity of that drug, as defined in the Act.
4In due course, as a consequence of various documents found in the premises, police executed a further search warrant at premises in Keysborough where they found numerous items including Apple iPhones, a substantial quantity of cash and a number of handwritten notes. In addition, a Mazda sports utility registered in Mr Le's name was found. He was at that time living at the Keysborough premises with a Ms Dau, with whom he was at the time having a relationship or in a relationship. She is a co-accused in connection with the cannabis found at the Edithvale premises.
5In due course Mr Le was arrested and charged with the cultivation offence in question. He exercised his right to make a no comment record of interview. He did however cooperate to the extent that he provided investigators with a sample of his DNA, which was used to match some of the items found at the Edithvale premises.
6In relation to this offence he has been in custody from 13 March 2020 until the 13 July 2020, before being released on bail. Now on my calculation that amounts to 123 days of pre-sentence detention, is that ‑ ‑ ‑
7MR GRACE: It is correct, Your Honour.
8MR LEWIS: Yes, Your Honour.
9HIS HONOUR: Yes, thank you. He was bailed pursuant to strict conditions which have been met over that period until now, a period of over one and a half years.
10That period in custody, although relatively modest, did involve 14 days in quarantine due to Covid restrictions and during that time he was not permitted to participate in work or education, and had very little recreation time - sometimes as little as one hour per day.
11He became involved in the cannabis operation at the Edithvale premises in early December 2019, when a friend introduced him to a person who asked whether he was prepared to tend, water and fertilise cannabis plants cultivated at the Edithvale premises, and dispose of rubbish from the premises. He agreed to do so in exchange for being paid $150 for each occasion he attended the premises, which was at least once a week and sometimes twice. In total he received some payments of about $1,000 for such attendances and has told police that he is owed further amounts in relation to that.
12By way of background, he is aged 30 and in good health. He was born and raised in Vietnam. He was educated to Year 12 at high school there and afterwards attended university where he studied construction. He came to Australia when aged 22 in 2014, on a student visa. He studied engineering at the Edith Cowan University in Perth and shortly after commencing that study, he transferred to Cambridge College in Melbourne, where he studied a business and management diploma course.
13He has also worked part time at least as a handyman. He married an Australian girl in 2018 and has recently applied for a partner visa. He has no family in Australia other than his wife. His parents and siblings all live in a small town in central Vietnam and he is in regular contact with them.
14He has no prior convictions in Vietnam or Australia. He is to be sentenced on the basis that he has been of prior good character.
15He offered to plead guilty to this charge at a relatively early time. That offer was not accepted by the Crown until July 2021. That early plea entitles him to a reduced sentence and I accept that it indicates some remorse on his part, and also that it has utilitarian value in that witnesses were not required to give evidence at a trial, and court resources were spared to a large degree. This is especially valuable in this period where the Covid pandemic has resulted in large delays in the hearing of trials and substantial waiting time for trials.
16Although he has served only about four and a half months of pre-sentence detention, the first two weeks of that time would have been spent in quarantine, and rights and usual visits and activities for the balance of that time were severely restricted. I accept that he has had this matter hanging over his head for a considerable time.
17His counsel informed me that it is his wish to remain in Australia to live and work. He has been able to obtain work as a handyman here. H his wife is Australian and wishes to remain here. Further, I note that he is the father of a young child born in December 2020 to his co-accused, with whom he had been having an extra-marital affair at the time of the offending and for some time thereafter. His counsel submitted that the effect of the Commonwealth legislation was that he would almost certainly be deported from this country if he were sentenced by this court to a term of imprisonment of 12 months or more in respect of this offence.
18I have regard to s501 of the Migration Act and agree that this is likely, although the Minister does retain some discretion to avoid such deportation. I accept that a prospect of deportation is likely to render imprisonment more onerous on Mr Le than other persons. Further, if deportation does occur it would constitute an additional punishment because it would destroy his opportunity to settle permanently in this country. The extent of such additional punishment would be likely to depend on all of his circumstances, the location to where he would be deported, and the prospects of he or she being permitted to remain here.
19I was referred to a number of authorities in which the effect of likely deportation on a sentence of an offender was considered. In particular, in Matamata v The Queen the Court of Appeal in 2021 approved of two basic propositions. The first was that the task of a sentencing court was to impose a sentence that was appropriate in all the circumstances of the offending and the offender in the particular case. The second was that it is inappropriate for a sentencing court to manipulate a sentence in order to avoid an offender being deported.
20I consider that it would be inappropriate to sentence an offender to a term of less than 12 months in order for him to avoid likely deportation by reason of s501 of the Migration Act.
21I take into account all of the circumstances relating to Mr Le. These include the matters going to mitigation of his sentence, as previously referred to. In addition, I take into account that he is married to an Australian woman and also has a young child in this country. I do note that his family is in Vietnam and includes his father who is ill. Medical records pertaining to him were tendered at the plea hearing. There are likely to be some good reasons for Mr Le wanting to spend time in Vietnam with his father.
22I take into account that the cannabis cultivated by him was a commercial quantity. He may not have been the principal person behind the growing of it, but nevertheless played an important role. He tended to the crop, ensured the vital watering system was operating correctly, and provided some security for the crop. This was a sophisticated operation, and he played an important role in it. Without someone performing his duties, it is unlikely that the crop would have successfully been grown. His role also allowed those who were principals in the operation, to remain at arm's length from it, thus providing some degree of protection for them.
23I do not accept his counsel's submission that the photographs of the crop demonstrated that the weight of it effectively exaggerated the quantity of the crop. The photos simply depicted the plants as at the date of the police raid. It is my opinion, mere speculation, as to what size the plants would have grown to, or what weight they would have grown to at the date of the intended harvest or intended sale of that crop.
24The Act does not allow for some discounting of the weight of plants, or some allowance for the fact that not all of the plants would have been capable of being used at some stage in the future, or that once dried and prepared for sale the weight of the plants would have been less.
25I am required to take into account the provisions of s5(2H) of the Sentencing Act which provides that for an offence such as this, a Category 2 offence, the court must make an order under Division 2 of Part 3, that is other than a custodial sentence combined with a community correction order, unless the narrow exceptions of that sub-section apply. Mr Le's counsel did not suggest that they did and on my reading of the exceptions provided, they do not. What this means is that I am unable to impose a custodial sentence combined with a community corrections order in his case, but am nevertheless obliged to impose a custodial sentence.
26I was referred to the Sentencing Snapshots publication of the Sentencing Advisory Council relevant to sentencing trends for the offence of cultivating a commercial quantity of narcotic plants. I consider the document is of limited value in that it includes very little or no information concerning the age, character, prior criminal records of offenders concerned, and the circumstances of the offending in question. I do note however, that between 2014/15 and 2018/19 of 367 persons sentenced to imprisonment for this offence approximately 15 per cent were sentenced to a term of less than the year; and 85 per cent were sentenced to a term of more than one year; 77 per cent were sentenced to a term of between one year, that is one year or more, and four years.
27Section 5 of the Sentencing Act sets out the purposes for which the courts may impose sentences. Of those purposes, I consider that those relevant to your sentence are firstly, to punish you to an extent and in a manner which is just in all the circumstances; secondly, to deter you and other persons from committing offences of the same or similar character; and thirdly, to manifest the denunciation by the court of the type of conduct in which Mr Le engaged.
28Accepting that Mr Le is a person of good character prior to this offending, I consider that the appropriate sentence in his case must be a substantial custodial sentence. On the charge of cultivating Cannabis L. in a quantity that was not less than the commercial quantity applicable to that plant, Mr Le is convicted and sentenced to a term of imprisonment of 20 months. I direct that he shall not be eligible for parole until he has served 12 months of that term.
29He has served 123 days by way of pre-trial detention and I direct that that time be deemed as having been served in part satisfaction of this sentence and recorded in the court records.
30Pursuant to s6AAA of the Sentencing Act, I declare that had he not pleaded guilty to this offence, but been found guilty of it, I would have sentenced him to 30 months imprisonment and directed that he not be eligible for parole until he had served 20 months of that term.
31I would not be able to fix a date for Mr Le’s reappearance in court. In fact, would he normally in circumstances where he has been sentenced in his absence, would he normally be required to come back to court in any event?
32MR LEWIS: No, Your Honour.
33HIS HONOUR: I would not have thought either, thanks Mr Grace, yes.
34MR GRACE: No, he will not. However, he will no doubt be charged with a Bail Act offence.
35HIS HONOUR: Yes, he might come back to court for that.
36MR GRACE: He will come back to court for that.
37HIS HONOUR: Yes. Is there anything further that either counsel wish me to attend to?
38MR LEWIS: Just with regards to the warrant, Your Honour, the one that was sent through to Your Honour unfortunately was missing a line, so we have just asked Your Honour to - I am just asking Your Honour to sign a second copy that is being sent through to Your Honour's associate.
39HIS HONOUR: If you could just hand that up? Perhaps you could show it to Mr Grace first, I think.
40MR LEWIS: Your Honour, that second line is not going to be necessary in these circumstances, given that Your Honour has already imposed the sentence.
41HIS HONOUR: Now, when you say, 'the second line', what ‑ ‑ ‑
42MR LEWIS: The warrant that has been handed up ‑ ‑ ‑
43HIS HONOUR: Yes.
44MR LEWIS: ‑ ‑ ‑ we are no longer seeking Your Honour sign that. The warrant that Your Honour has already signed will be sufficient.
45HIS HONOUR: Very well, all right, good, thank you. I have indicated the nature or the terms of the order made in respect of the surety.
46MR LEWIS: Yes, Your Honour.
47HIS HONOUR: I need say no more about that.
48MR LEWIS: Yes, Your Honour. As the court pleases.
49HIS HONOUR: The parties will be provided with a copy of that order in the next 24 hours or so. When I say the parties, I specifically mean Mr Grace and his instructing solicitor and the DPP.
50MR LEWIS: As the court pleases.
51HIS HONOUR: Thank you. Anything else?
52MR GRACE: No, Your Honour.
53HIS HONOUR: Yes, adjourn the court.
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