Director of Public Prosecutions v Le
[2021] VCC 1644
•26 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01095
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Thi Thu Nga LE |
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JUDGE: | His Honour Judge Hannebery | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2021 | |
DATE OF SENTENCE: | 26 October 2021 | |
CASE MAY BE CITED AS: | DPP v Le | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1644 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Cultivation of a commercial quantity of a narcotic plant – Theft – Plea of guilty – relevant prior history – general deterrence – specific deterrence
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958;
Sentencing Act 1991
Cases Cited:Nguyen v The Queen [2021] VSCA 211; R v Verdins & Ors (2007) 16 VR 269
Sentence: 3 years and 9 months' imprisonment and I order that you are to serve 2 years and 9 months before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G. Overend | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms L. Andrews | Bowler Man & Co |
HIS HONOUR:
Introduction
1Thi Thu Nga Le, you have pleaded guilty to Indictment L12666848 containing two charges being:
(a) Cultivation of a commercial quantity of a narcotic plant, contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981; and
(b) Theft, contrary to s 74(1) of the Crimes Act 1958.
2The maximum penalties for these offences is 25 years and 10 years' imprisonment respectively.
3Cultivation of a commercial quantity of a narcotic plant is a category 2 offence. Pursuant to s 5(2H) of the Sentencing Act 1991, the court must impose a sentence of imprisonment, other than in combination with a Community Corrections Order unless an exception applies. Counsel on your behalf did not seek to invoke an exception.
Summary of Offending
4Tendered as Prosecution Exhibit 1 was the Summary of Prosecution Opening on Plea dated 9 September 2021. In short, on 12 November 2020, police executed a search warrant on an address in Burnside Heights. Police knocked on the front door and a short time later you opened the door. Police showed you the search warrant and asked if you have any drugs in the house to which you replied “yes”.
5Police entered the house and located a locked door at the rear of the kitchen leading into the garage. Police asked for a key to the door which you subsequently produced. Police unlocked the door and inside found:
(a) 18 large sized cannabis plants weighing 34.60 kilograms;
(b) 18 medium sized cannabis plants weighing 4.09 kilograms.
6The plants had been grown under a hydroponic set up consisting of light shrouds, globes and large charcoal filters hanging from the roof.
7An electrical inspector attended the premises and located an electrical bypass in the wall cavity next to your bedroom. The estimated value of the stolen electricity between 12 September 2020 and 12 November 2020 is $3,493.60 (Charge 2 – theft).
8A further search of the premises located the following items:
(a) A CCTV hard drive attached to a wall in the kitchen;
(b) Your Vietnamese passport in a drawer in the bedroom;
(c) 41 cannabis seedlings growing in a small plastic container under the bench in the laundry weighing 84.8 grams.
9The total amount of cannabis plants found at the premises at your address in Burnside Heights was 77 plants weighing 38.77 kilograms (Charge 1 – cultivation of narcotic plant, in not less than a commercial quantity).
10You were taken to the Melton Police Station and participated in a record of interview. You stated you own the Burnside Heights house and live there with your daughter. You said you looked after the cannabis plants yourself and have been doing so for approximately 2 months. You arranged for someone to attend your house and install the electrical bypass.
11You were subsequently remanded in custody and have been so until today.
Personal Circumstances
12Thi Le, you are 43 years old and were born in Vietnam. You completed the equivalent of Year 12 schooling in Vietnam.
13You have been married twice, firstly to a man in Vietnam when you were 18 years old. Your then husband moved to Australia to work in the agricultural industry and he sponsored you to migrate to Australia in 1999. You are now an Australian citizen. You report your relationship with your first husband was characterised by emotional, physical and sexual abuse.
14This culminated in 2007 when he assaulted you and an intervention order was made removing him from the household. You subsequently separated and were divorced. You have one child from this marriage who is now 22 years old.
15In 2009 you remarried. You have two daughters from this marriage, aged 12 and 9 respectively. This marriage ended in 2013.
16You have worked in various domestic unskilled jobs since arriving in Australia including cleaning, cooking, factory work and farming.
17In 2012 you were convicted and sentenced to a total effective sentence of 15 months' imprisonment by this court for very similar offences. These are your only prior convictions.
Gravity of Offending
18The offence of cultivation in not less than a commercial quantity of cannabis is inherently serious. Such is evident from its maximum penalty of 25 years' imprisonment.
19In this case, the motivation for your offending was financial gain. It was put on your behalf that your choice to offend arose from “despair” at the prospect of having to sell your property because of unemployment and a consequent inability to maintain mortgage payments. No evidence was provided at the plea hearing to support this contention. As such, I am unable to accept an extreme level of emotional and financial distress as a matter in mitigation established to the requisite standard.
20I can, however, readily accept that a single mother living in Melbourne at a time where pandemic restrictions have caused significant economic stress to many people, would provide a financial motive well short of greed to engage in this kind of activity. There is no evidence of high living or indeed any betterment related to the offending. This is, however, better described as the absence of a matter that would otherwise aggravate the offending, rather than a matter in mitigation.
21Indeed, the fact that those in financial need may be tempted to engage in this kind of illegal activity emphasises the importance of general deterrence in sentencing for matters of this nature.
22In addition, this is the second occasion where it has been put on your behalf that your cultivation in a commercial quantity of cannabis was motivated by financial pressure.
23In sentencing you in 2012, Judge Hicks accepted the submission put on your behalf that your offending was motivated by debts accumulated from gambling.[1] The gambling addiction that was evident at the time of your previous conviction is apparently no longer an issue. Indeed, you denied any history of gambling in any form when speaking to psychologist David Ball.[2]
[1]Prosecution Exhibit 3: DPP v Le [2012] VCC 750.
[2]Defence Exhibit 2.
24The fact that you have once again viewed this criminal activity as a solution to a financial difficulty means that specific deterrence must have a particular emphasis in the sentencing process.
25Charge 1 involves the cultivation of a quantity of cannabis that was at 38.77 kg, well above the prescribed commercial quantity of 25 kg.
26The crop was being cultivated by means of a sophisticated hydroponic setup. The electricity had been bypassed, and that is the subject of Charge 2, theft.
27The offending covers a two month period.
28The cultivation occurred in your own residence where you live with your children. You had the primary role in the cultivation. This example of the offence is more serious than that of the “crop sitter” tending plants at another premises.
29The offending was a calculated, deliberate decision made by you for financial gain knowing full well from your previous appearance in court what the consequences may be. The moral culpability attaching to the offence is high.
30The theft of the electricity was pre-meditated and persisted for the same period as the cultivation. It required the engagement of some expertise to bypass the meter. It was a calculated action to reduce the overheads of the operation. The value of the stolen electricity is relatively modest but the entirety of the circumstances of the theft add to the overall criminality for which you are to be sentenced.
Mental Health
31You report that you were first diagnosed with depression in 2012, though I note that no mention of this appears in the sentencing remarks for your previous conviction. Since going into custody you have been prescribed both antidepressant and antipsychotic medication.
32David Ball, forensic psychologist, states in his report of 24 September 2021 that you presented with a history of unmanaged mental health issues. He said that because of your dysfunctional and violent childhood that you had struggled with lowered mood and persistent anxiety. He says you are impulsive and have limited coping skills.
33He assessed you to meet the criteria for severe borderline personality disorder and post-traumatic stress disorder. He states that these disorders “impinged on [your] ability to exercise appropriate judgement”.
34It is submitted on your behalf that your long-standing mental health issues provide some context for your objectively unwise decision to address your financial issues by involving yourself again in the cultivation of cannabis.
35It was conceded on your behalf that none of the principles outlined in Verdins[3] had application in this case. Specifically, it has not been suggested that your mental health diagnoses are relevant to your moral culpability for the offending. In circumstances where your motivation for the offending was financial, and the offending itself involved a sophisticated hydroponic operation that must by its nature have required both planning and an ongoing personal commitment, that concession was a sensible one.
[3]R v Verdins & Ors (2007) 16 VR 269 (‘Verdins’).
36I do, however, consider that your diagnoses and the depression and anxiety that flow from them are matters that make imprisonment more burdensome for you than for someone without those conditions. I take that matter into account in mitigation of sentence.
37You have now being professionally assessed and medicated for your mental health issues. You have completed various educational and rehabilitative courses whilst in custody.[4] The character reference provided by your son Hoang Phi Nguyen[5] confirms that you have worked hard and are devoted to your family. All these matters provide a basis for optimism about your capacity to rehabilitate.
[4]Defence Exhibit 4.
[5]Defence Exhibit 3.
38It cannot be ignored, however, that for the second time you have resorted to crime to address financial pressure. The cultivation required your engagement with a criminal enterprise over a sustained period. The motivation for the offending and its execution were a repetition of your previous matter. You reoffended despite what must have been your complete understanding of the consequences if you were caught. You took that risk regardless.
39Having regard for all of these matters, on balance, I consider your prospects of rehabilitation to be guarded.
Plea of Guilty
40You pleaded guilty to this offending at the committal mention stage. I consider that plea to be one entered at the earliest reasonable opportunity. By your plea of guilty you have spared the time and resources that would otherwise have been expended on contested proceedings. This is especially important in the context of the extreme pressures placed on court listings by pandemic restrictions. The utilitarian value of your plea is very significant.
41I consider that your plea of guilty is indicative of some level of regret for your offending, albeit some way short of complete contrition. You were cooperative with police and made full admissions.
42When queried by Mr Ball as to what made you set up a grow house again after your failed first attempt, you replied that you hoped it would work this time. That is not exactly consistent with an acceptance of the wrongfulness of your offending.
43That said, a plea of guilty that facilitates the process of justice is particularly valuable in the current circumstances and you are entitled to a substantial discount on sentence.
Impact of COVID-19 and Burden of Imprisonment
44The prison environment has been subject to pandemic restrictions for the entire period that you have served in custody. These restrictions have been extensive and have caused limitations on visits and on a variety of programs. Imprisonment has been, and will continue for the foreseeable future to be, more burdensome than would otherwise be the case and I take this into account in mitigation of sentence.
45I also consider that the burden of you being separated from your family during this period of imprisonment, especially during a period where face-to-face visits are necessarily restricted, represents a particular additional burden of imprisonment for you.
Prior Conviction
46On 6 June 2012 you were sentenced by this court to 15 months' imprisonment with a non-parole period of 9 months for one charge of Cultivation of a commercial quantity of a narcotic plant and one charge of theft. You are not to be punished again for your prior matter but it is relevant to the sentence to be imposed on this occasion.
47Pursuant to s 6D of the Sentencing Act 1991 you are to be sentenced as a serious drug offender whereby protection of the community is the principal purpose of sentencing.[6]
[6]s 6D Sentencing Act 1991.
48Whilst the legislation empowers the court to impose a disproportionate sentence to achieve this,[7] the prosecution did not submit that such an order was required. No order of that nature is appropriate in this case.
[7]s 6E Sentencing Act 1991.
Sentencing Submissions and Principles
49Ms Overend, appearing on behalf of the Director, submitted that having regard to all the circumstances and the applicable sentencing principles, the court should impose a period of imprisonment involving a head sentence and a non-parole period.[8]
[8]Prosecution Exhibit 2.
50She submitted that the overall gravity of the offending in this case is in the medium range for this type of offending.
51Ms Andrews conceded on your behalf that a period of imprisonment that went beyond the term you have already served on remand was inevitable.[9]
[9]Defence Exhibit 1.
52It is necessary that I impose a sentence that has the effect of deterring others from similarly offending. In your case, it is also important to specifically deter you from further offending. I must impose a sentence that expresses denunciation for your conduct and represents a punishment that is just in all the circumstances. I have also taken into account your prospects of rehabilitation as I have found them to be.
53I have had regard for current sentencing practices for offences of this nature. In particular, I note the recent decision of the Court of Appeal in Nguyen v The Queen.[10] In that case, a sentence of 5 years and 6 months' imprisonment was imposed for a cultivation at the top end of the quantitative scale for the offence of cultivation in not less than a commercial quantity and this sentence was described by the Court of Appeal as “moderate”. The offending in this case is of substantially lesser gravity than was the case in Nguyen. However the observations about that sentence served to highlight the seriousness with which this type of conduct must be viewed. I am mindful, of course, that facts vary from case to case, as do the matters in mitigation.
[10][2021] VSCA 211 (‘Nguyen’).
54I must impose sentences for each of the charges that are appropriate for the individual circumstances applicable to each, then structure the sentence so the total effective sentence is appropriate having regard for the totality of the matter. In this case Charge 1 is of substantially greater seriousness than Charge 2, theft. I do, however, consider that the theft of electricity represents related but additional criminality to the cultivation, and as such some cumulation is necessary.
Sentence
55Ms Le, I sentence you as follows:
56On Charge 1, cultivation of a narcotic plant in not less than a commercial quantity, you are convicted and sentenced to 3 years and 6 months' imprisonment.
57On Charge 2, theft, you are convicted and sentenced to 6 months' imprisonment.
58I order that 3 months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.
59That makes a total effective sentence of 3 years and 9 months' imprisonment.
60I order that you are to serve 2 years and 9 months before becoming eligible for parole.
61Pursuant to s 6F(1) of the Sentencing Act 1991, I enter into the records of the court that you were sentenced as a serious offender in respect of Charge 1.
62Pursuant to s 18(4) of the Sentencing Act 1991, I declare you have already served 348 days of pre-sentence detention up to and including yesterday, Monday 25 October 2021, and that this time is declared to have been already served.
63Pursuant to s 6AAA of the Sentencing Act 1991, but for your plea of guilty I would have sentenced you to a total effective sentence of 5 years and 3 months' imprisonment with a non-parole period of 4 years.
64Are there any other orders that are required?
65MS OVEREND: No, Your Honour, and I just apologise for appearing unrobed.
66HIS HONOUR:
No, I was unrobed last time, it's only that I've changed location since lockdown ended that I am now robed. Ms Andrews, I can see that
Ms Le seems to be quite distressed. What I might do is let everyone else apart from you and the interpreter go off the link so you can perhaps have a discussion with her now if that's - - -
67MS ANDREWS: Thank you, Your Honour, I appreciate that. I will speak to her now and then I'll also organise a longer conference with her as soon as the prison can accommodate it.
68HIS HONOUR: The rest of us will go off the link and I'll leave the link open. Madam Interpreter, if you could just stay on the link as well so you can assist Ms Andrews.
69INTERPRETER: I will Your Honour.
70HIS HONOUR: Thank you, I'll adjourn the court until 10.30 tomorrow.
71COUNSEL: As Your Honour pleases.
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