Director of Public Prosecutions v Le

[2021] VCC 1441

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No.CR-20-01485

DIRECTOR OF PUBLIC PROSECUTIONS

v

KHANH DINH LE

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JUDGE:	Her Honour Judge Hawkins
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September 2021
DATE OF SENTENCE:	28 September 2021
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2021] VCC 1441

REASONS FOR SENTENCE
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Subject:

Catchwords:              

Legislation Cited:      

Cases Cited:

Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Emma Maguire	Office of Public Prosecutions
For the Accused	Mr Sam Tovey	Milides Lawyers

HER HONOUR:

1Khanh Dinh Le, you have pleaded guilty to:

·        1 charge of Cultivation of a Narcotic Plant; and

·        1 charge of Trafficking in a Drug of Dependence.  

Circumstances of the Offending

2Through your counsel, you have admitted the circumstances of your offending, as set out in the Summary of Prosecution Opening for Plea dated 25 August 2021 (Exhibit A).

Charge 1 - Cultivation of a Narcotic Plant (Cannabis L)

3On the morning of 21 November 2019, police observed a gold Toyota Camry, registered to you, in the driveway of 29 Lantana Avenue in Thomastown.

4Suspicious of a cannabis crop being grown inside, police attended the property with flashing lights and sirens to announce their presence and knocked on the front door to execute a search warrant. There was no answer, and police forced open the front door using a battering ram.

5Police observed a man, believed to be you, running from the property and jumping the rear fence. You continued to jump fences in a southerly direction. Police searched the area but were unable to locate you.

6Inside the property, police found two rooms being used to cultivate cannabis. Cannabis plants were being grown in pots with a sophisticated lighting system, exhaust fans, and water pumps installed. Numerous bags of ‘Coco Perlite’, a hydroponic substrate, were also found.

7An electricity bypass was located installed in the roof. Room One contained 10 600-watt lamps and ballasts connected to a timing device on a switchboard set for 18 hours of operation per day. Room Two contained 15 600-watt lamps and ballasts connected to a timing device on a switchboard set for 12 hours of operation per day.

8A total of 119 cannabis plants were located and seized from the Thomastown property. The police also seized prescription medications in your name from the bedroom, and a toothbrush found in the bathroom.

9The toothbrush was later DNA tested and you could not be excluded as a contributor to the profile.[1]

[1]likelihood ratio of 100 billion.

10At the time of the offending, 29 Lantana Avenue in Thomastown was owned by
Ms Linda Nguyen. She was renting the main residence out, with a man and a woman having moved in on the 24 August 2019, and a man believed to be you moving in at a later point. She saw you come and go regularly from the property. The rental arrangement was under the false name of Thang Vinh.

11Linda Nguyen operated a small nail salon in a bungalow attached to the property. She attended work there but did not enter the house and was unaware that cannabis was being cultivated inside.

Charge 2 - Trafficking a Drug of Dependence- Cannabis L

12The second charge relates to events on 29 April 2020.

13At 11:48am on that day, police drove past 4 Hastings Court in Epping and observed a white Toyota Camry registered to you, and a Toyota Tarago in the driveway. At this time, there was an active investigation in relation to you due to the execution of the search warrant on 21 November 2019 at Lantana Avenue.

14At approximately 7:15am on 11 May 2020, police attended the Epping property to execute a search warrant, entering the property by force when the door was not answered. A man and a woman ran from the house and were arrested in relation to other matters. You are not charged with offences arising from the drugs located inside of this house.

15At approximately 7:25am, you arrived at the Epping property driving the white Camry, which you parked at the end of the driveway after police motioned for you to stop.  Police approached the car and noticed a strong smell of cannabis coming from inside.

16They conducted a search of the white Camry and found:

·A Woolworths bag containing two bags of dried cannabis on the floor behind the driver’s seat; and

·Two large red, white and blue tote bags containing a total of 22 bags of dried cannabis in the boot of the car.

Interview and Further Investigation

17You were arrested and interviewed with the assistance of a Vietnamese interpreter. You confirmed that you were not an Australian citizen and told police that you had been in Australia for “one year, two months”.

18When shown a picture of the white Camry located at the Epping property, you confirmed that it was your car, but responded ‘no comment’ and ‘I don’t know’ when questioned about the cannabis located inside. You told police that you had ‘no other cars’ and responded ‘no comment’ when asked about the gold Camry that was also registered in your name.

19You also responded ‘no comment’ to questions regarding the Thomastown property and the prescription medication in your name that was located there.

20While at the Police Station, you provided a DNA sample by consent.

21The total weight of the 119 plants seized from the Thomastown property was 15.63kg.

22The total weight of the dried cannabis found in your White Camry car was 10.91kg.

Maximum Penalties

23In relation to Charge 1, the agreed position between the parties is that the offence of Cultivating a Narcotic Plant, namely Cannabis L, was committed by you for the purposes of trafficking.

24Accordingly, Charge 1 carries a maximum penalty of 15 years' imprisonment pursuant to section 72B (b) of the Drugs, Poisons and Controlled Substances Act 1981.

25Charge 2, Trafficking in a Drug of Dependence, carries a maximum penalty of
15 years' imprisonment.

Personal Circumstances

26You were 39 years old at the time of your offending, having been born in April 1980 in Vietnam.

27You came to Australia in 2019 on a working visa in search of better economic circumstances for your family. You incurred a significant debt to make this journey. You became involved in these offences only after you struggled to find regular work, and out of a desire to assist your family in Vietnam.

28You were born and raised with your 10 siblings in central Vietnam in humble circumstances. Your elderly parents remain there and suffer from various health issues. Your brothers work variously as farmers, factory labourers and drivers, and your sisters as stay-at-home mothers in Vietnam.

29You were educated to a year 10 level before commencing work as a driver prior to coming to Australia. You also have experience working in retail and hospitality.

30You married Ms Thanh Nguyen in 2003. You have four children aged 16, 14, 11 and 5. They all remain in Vietnam.

31Your goal in coming to Australia was to work and send money home to your wife and children, hoping to bring them to Australia in the future for a better life. Your working visa has since expired.

32When arrested, you told police that you had been able to find some work as a handyman and a floorboard fitter in Australia. However, finding regular consistent work was more difficult, which led to your eventual temptation and recruitment to work as a crop sitter for a cannabis grow house.

Relevant Sentencing Principles

33The purposes for which a Court may impose a sentence include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.[2] In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances. 

[2]Sentencing Act1991 (Vic) s 5.

34I must also balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking to ensure as far as is possible, that offenders are rehabilitated and are reintegrated into society.

35General deterrence and denunciation are important sentencing considerations in your case. Drug trafficking is a prevalent offence and causes significant social harm. The sentence I impose must seek to deter other persons in financial need from engaging in this type of offending conduct. My sentence must also make clear, on behalf of the community, that this type offending will not be tolerated.

36Just punishment and protection of the community also assume importance.

Current Sentencing Practices

37I have had regard to current sentencing practices in relation to the offences with which you are charged, as well as the useful consideration of relevant cases by the Court of Appeal in DPP v Nguyen (“Nguyen”).[3]

[3](2016) 311 FLR 289.

38In Nguyen, the Court stated that the sentencing practices for ‘mid-level ’offences of commercial cultivation should be uplifted. Relevantly, the Court specified that an uplift should not include those sentences which had previously been reserved for less culpable offenders such as crop sitters, carers or other workers. Such offenders might be seen to fall at the upper end of the lowest category for commercial quantity cases. I note that you are not charged with cultivating a commercial quantity.

39No uplift was said to be necessary or warranted for offences of cultivate simpliciter, the offence to which you have entered a plea of guilty.

40The Court of Appeal in McClelland v DPP (“McClelland”),[4] extrapolated the differences between ‘principal’ and ‘ancillary’ offenders originally outlined in Nguyen. In McClelland, the Court observed that a ‘principal’ offender will be someone with a financial interest in the proceeds of a crop, or someone who is in some way a partner with the person who has established it. Such a role should be differentiated from a crop sitter or ‘ancillary’ role.

Nature and Gravity of Offending

[4][2017] VSCA 124.

41The hydroponic setup in the Thomastown property was sophisticated, with an electrical bypass, water pumps, exhaust fans, and lights on a timer system installed. However, there is no evidence that you were involved in organising or setting up this system. Nor did you own or rent the property.

42In relation to Charge 1, the evidence does not demonstrate that you were aware that the number of plants cultivated exceeded a commercial quantity. Further, despite the number of plants located at the Thomastown property, I note that the weight of the cannabis was around 60% of the commercial quantity threshold of 25 kg.

43In relation to Charge 2, you were found in possession of 10.91 kg of dried cannabis in various bags located in your car at the time of your arrest. This is approximately 40% of a commercial quantity.

44The cannabis  located in your vehicle was to be trafficked, but there is no evidence that you were going to be personally involved in its trafficking, or to profit from the sale beyond what was paid for your work. Given the quantity involved however, this is a mid-range example of trafficking simpliciter.

45I accept that you played an ancillary role as a crop sitter in relation to the Thomastown property and there is no evidence that you had a proprietary interest in the crop. Rather, the evidence points to you being a paid worker and there is no evidence of you obtaining enrichment or wealth from your offending.

46Having regard to these considerations and the principles outlined, you will be sentenced as an ‘ancillary’ offender.

47Furthermore, you fall to be sentenced for those two offences as single date offences.

48Whilst the two offences are on separate dates, separated by some five months, and you will be sentenced accordingly, the degree of sophistication of the hydroponic set up and the quantity of the cannabis located in your possession indicates your considerable involvement, albeit as an ancillary offender, in a not insubstantial operation. Furthermore, you were well aware of the police interest in your offending as a result of the execution of the search warrant at the Thomastown property. Despite this, you were prepared to continue your involvement resulting in your subsequent arrest outside the Epping property.

49Accordingly, I do not accept that your offending places you at the bottom of the overall hierarchy of sentences imposed in these types of cases. However, on balance, given that your role was clearly ancillary in this offending, I consider your moral culpability is at a medium level.

Matters in Mitigation

50You pleaded guilty at a mention at the Melbourne County Court on 19 May earlier this year, following a contested committal. Yours was not a plea at the earliest opportunity, but it followed the ultimate resolution after plea discussions. As a result of your plea, you accepted responsibility for your offending and have saved valuable Court time and expense. Further, your plea has additional mitigatory significance at a time when the County Court is facing considerable COVID-19 related backlog of trials.

51You are entitled to a discount as enunciated in Worboyes,[5] reflecting both the utilitarian value of your plea of guilty, which is an actual and palpable amelioration of your sentence taking into considerations enunciated in that case.

Other Relevant Circumstances – COVID 19 in Custody

[5] Worboyes v R [2021] VSCA 169 at [35], [39]: “We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence… For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”

52Mr Le, you have served a total of 505 days on remand (not including today). You were initially at the Melbourne Assessment Prison then spent time at Port Phillip Prison. The pandemic has caused you additional stress and concern over contracting the virus in an environment where you have little control. You have endured periods of lockdown, including an initial 14-day period of isolation. 

53You have been at Fulham Prison since August 2020. The conditions in maximum-security prisons have been far more difficult during the pandemic, however I am told that since your time at Fulham you have been able to regularly work as a gardener. Conditions are still difficult with no face-to-face visits, limited access to educational programs and other significant restrictions to usual liberties.

54I acknowledge that the separation from your family in Vietnam, lack of familial and social supports available to you in this country, other than those generous supports offered to you by Mr Vincent Ly, language barriers that lead to isolation in custody, coupled with the impact of imprisonment during the pandemic would have been most burdensome on you.

Previous Character/Criminal History

55You have no prior criminal history and I accept that you are otherwise of good character.

Prospects of Rehabilitation

56Your prospects of rehabilitation are very much dependent upon you being able to obtain lawful paid employment to support your family in Vietnam. This will depend upon whether you are permitted to remain and work in Australia.

57Ultimately, in light of your lack of a criminal history, your guilty plea and your otherwise good character I conclude that your prospects for rehabilitation are reasonable.

Prospects of Deportation

58You are a citizen of Vietnam and were previously residing in Australia on a temporary visa. That visa is no longer in place, which classes you as an ‘unlawful non-citizen’ and makes you liable to be detained under section 189 of the Migration Act 1958.

59When you are released from custody, Australian Border Force will seek to interview you and decide whether to detain you or issue you a bridging visa allowing you to be released as a ‘lawful non-citizen’.

60Amendments to the Migration Act 1958 in 2014 made visa cancellation mandatory for an offender sentenced to imprisonment of one year or more, unless the relevant Minister is satisfied there is reason to revoke the cancellation.

61These provisions do not alter the approach to considering the prospect of deportation when determining a sentence. The principles in Guden v The Queen (“Guden”) still apply.[6]

[6](2010) 28 VR 288.

62It is not open to this Court to speculate about whether the Minister will exercise their discretion not to revoke the decision to cancel your visa in such a circumstance.

63The prospect that you will be deported following sentence is relevant if it will make the burden of imprisonment more onerous. This depends on your personal circumstances and your ties to Australia. A Court ought not consider the possibility of deportation as a mitigatory factor, unless it will be a hardship for you.

64In addition, your future deportation will constitute a mitigating factor where it can be considered an additional punishing consequence, on the basis that you will be separated from family and friends and be deprived of the opportunity to settle permanently in Australia.

65The Crown concedes that the burden of imprisonment would be more onerous on you given your desire to settle in Australia. However, it is noted that your entire family reside in Vietnam and that your deportation would lead to a reunification with them.

66In Matamata v The Queen,[7] the Court of Appeal recently considered Guden in the context of the risk of deportation to New Zealand. Matamata had not resided in NZ since he was a child and had significant family and other supports in Australia. His appeal was allowed as the effect of the sentence would have undermined the rehabilitative purpose. Unlike Matamata, you do not have those supports in Australia, and your entire family still reside in Vietnam. What you stand to lose if deported, is the opportunity to settle in Australia rather than demonstrable hardship. This will weigh upon you and does make the burden of imprisonment more onerous for you, but does not amount to an additional punishing consequence. This factor will constitute a mitigatory factor of some, but not great weight.

Proportionality

[7][2021] VSCA 253.

67The Court must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances.

Parsimony and Totality

68When sentencing an offender for multiple offences, the Court must ensure that the aggregate term it imposes is a just and appropriate measure of the total criminality involved. There must be appropriate relativity between the totality of all criminality and the effective length of the sentence.

69In your case Mr Le, the Court is dealing with two offences of a similar nature albeit separated in time. It is critical that the Court ensures that the final sentence is no more than is necessary to satisfy the various objectives of sentencing. In the words of Redlich JA in Azzopardi v R:[8]

“The rationale underlying the principle is that a “just measure” of an offender’s total criminality is a sentence which satisfies all sentencing objectives applicable to the entirety of that criminal conduct. Only implicitly in all the statements of the principle of totality in its application is the proposition that a sentencing judge undertaking the adjustment of the sentence does so in order to ensure that the final sentence is no more than is necessary to satisfy the various objectives of sentencing. Considerations of mercy may further influence the sentencing judge to increase any downward adjustment.”

Concurrency and Cumulation of Sentences

[8][2011] VSCA 372.

70Pursuant to section 16 (1) of the Sentencing Act 1991, every term of imprisonment must be served concurrently unless otherwise directed by the Court.

71Orders for cumulation should be made which reflect the different episodes of the offending or additional criminality, and which reflect differences in the seriousness of each offence. In these circumstances, the charge of trafficking represents an entirely different episode of serious offending which will accordingly attract a degree of cumulation.

Conclusion

72In conclusion, whilst you acknowledge that your offending is serious, you ask the Court to impose a sentence of imprisonment coupled with a Community Corrections Order, given your lack of prior history, your early plea of guilty and your ancillary role in the offending. You have been assessed as suitable to be placed on a Community Corrections Order and you do not require any form of therapeutic treatment conditions to be attached.

73Given your uncertain visa status it is unclear whether you would be permitted to remain in Australia to complete such an Order. However, it is not the role of this Court to speculate on what the ultimate decision of the relevant authorities might be. The Court must simply focus on imposing a sentence that is just and appropriate in all the circumstances.

74The quantity of plants located at the Thomastown property puts your offending towards the higher end of cultivate simpliciter charges. The charge of trafficking similarly involves a moderate level of criminality and culpability. Given the seriousness of your offending, in my view a combination sentence would not be capable of serving the sentencing objectives of punishment, denunciation, deterrence and protection of the community. Furthermore, as you do not require any treatment under a Community Corrections Order, it would not serve to promote change in your life, nor would it reduce your risk of reoffending in circumstances where that offending was driven by a need to financially support your family in Vietnam.

Sentence

75The sentence to be imposed considers your moral culpability for the offences with which you have been charged and makes allowance for the matters to which I have referred.

76Ultimately, the only appropriate sentence is a term of imprisonment with a non-parole period.

77Khanh Dinh Le I sentence you as follows:

78On Charge 1, Cultivation of a Narcotic Plant, you are convicted and sentenced to 16 months' imprisonment. This is the base sentence.

79On Charge 2, Trafficking in a Drug of Dependence, you are convicted and sentenced to 12 months' imprisonment. 9 months of this sentence is to be served concurrently with the sentence imposed on Charge 1.

80That is, the total effective sentence is 19 months' imprisonment.

81I fix a non-parole period of 12 months.

Pre-Sentence Detention

82Pursuant to s 18 of the Sentencing Act 1991, the period of 505 days of pre-sentence detention (not including today) is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered into the Court records.

Section 6AAA Declaration

83Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of 28 months' imprisonment with a non-parole period of 20 months.

84The Disposal order sought by the Crown is granted. 

85Have I omitted anything, Ms Maguire?

86MS MAGUIRE:  No, Your Honour, as the court pleases.

87HER HONOUR:  Thank you, is there anything further, Mr Tovey?

88MR TOVEY:  No there is not.

89HER HONOUR:  Thank you, please adjourn the court.

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