Director of Public Prosecutions v Le

[2021] VCC 779

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01764

DIRECTOR OF PUBLIC PROSECUTIONS

v

LAM LE

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2021
DATE OF SENTENCE:	11 June 2021
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2021] VCC 779

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              One charge of cultivating a commercial quantity of cannabis

Legislation Cited:      Sentencing Act 1991; Confiscation Act 1997

Cases Cited:Guden v R [2010] VSCA 196; Allouch v R [2018] VSCA 244;

Sentence: 2 years and 6 months’ imprisonment, with a non-parole period of 20 months. s6AAA: 4 years’ imprisonment, with a non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J McCarthy	Solicitor for the Director of Public Prosecutions
For the Accused	Ms A Hughes	Paul Vale Criminal Law

HER HONOUR:

1Lam Le, you have pleaded guilty to one charge of cultivating a narcotic plant, cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant.  This offence carries a maximum penalty of 25 years’ imprisonment and 3,000 penalty units in addition to but not instead of imprisonment.

2The circumstances of your offending are summarised in the prosecution opening for plea.  (Exhibit “A”)

3At approximately 7:14pm on 22 April 2020, police executed a search warrant at 8 George Street, Rochester in the State of Victoria (“the property”).  They endeavoured to unlock the front door using a key, however, the property was secured by an internal latch at the bottom of the door which prevented it from fully opening.  Police forced entry and you were observed running inside the premises and later located hiding amongst some cannabis plants in one of the rooms of the house.  Most of the rooms contained cannabis plants in various stages of growth in a hydroponic set up with artificial light, charcoal filters to eliminate odour and a self-maintained watering system.  Some of the walls between rooms had holes cut out for easier access to different parts of the property. 

4In six different rooms and the hallway, the police located a total of 292 cannabis plants which had a combined weight of 260.85 kilograms.  An illegal electrical bypass was located in the roof space of the premises, but you are not charged in relation to that.  Evidence shows that your mobile telephone had communicated with a cell of a tower in the Rochester area on 11, 14, 18 and 20 April 2020.  In addition, your DNA was found on two toothbrushes inside the property.  Further, your right middle fingerprint was on a beer bottle located in the kitchen bin at the property; and a car owned by you and registered in your name was parked at the property at the time of the search.

5You were arrested and taken to Bendigo Police Station where a record of interview was conducted with the aid of a Vietnamese interpreter.  You claimed that you did not know what cannabis was and that you were the only person residing at the property.  You stated that you did not pay rent, that someone whom you had met recently was to pay you cash to stay at the premises, but you had not yet been paid as the arrangement had only just started.  You stated that you expected payment after the cannabis was harvested, but you did not know how to grow the plants hydroponically.  Further, the owner would ring you directly to give you instructions, but you could not contact the owner.  You told police that you usually go to the premises once every two days or so and that “the people” told you to look after the plants but you could not describe “the people” and you did not know their names.  You admitted that the Toyota vehicle parked at the premises was driven by you and told the police your telephone number.  You were remanded in custody on 22 April 2020 where you have remained ever since.

6On 8 December 2020, you indicated your intention to plead guilty to the charge which you did when you were formally arraigned before me at the plea hearing on 12 May 2021.  

7You are presently aged 52 years having been born on 3 March 1969 and come before the Court with no prior criminal history.

8During the course of the plea hearing it emerged that you had been born and grown up in central Vietnam in a rural area approximately 30 kilometres from Huế.  You described the work that you had done in Vietnam as having been “in construction” but stated that a paucity of work caused you to come to look for work in Australia in order to support your family.  In Vietnam you were married and have two children aged 15 years and eight years respectively.

9The material before the Court concerning your visa status was less than clear.  You arrived in Australia in late 2018 apparently on a tourist visa of three months’ duration.  That visa expired and, at some point, you made an application for a visa to enable you to work here and obtained some form of visa, together with a tax file number and a Medicare number.  Information as to the precise name of that visa or its duration was never provided to the Court.

10In a plea on your behalf by Ms Hughes, the Court was told that you had obtained a tax file number in order to work as a handyman.  However, it transpired that, shortly after arriving in Australia, in or about January 2019, you went to work for Ms Thi Truong in her nail beauty salon on a date which was never made clear to the Court.  You and Ms Truong, (who is quite some years younger than yourself) became intimate partners and, on 19 January 2020, Ms Truong gave birth to your child, Laura.  Apparently, you worked for some 15 hours per week in Ms Truong’s nail salon and also worked part time as a self-employed handyman doing lawnmowing and fencing work.  You stated that the latter work, as well as work in the nail salon, began to dry up in February 2020 and got worse with the restrictions imposed because of the COVID pandemic in March 2020.  Your counsel stated that, ultimately, you and Ms Truong had no work and you found yourself in a desperate situation needing to provide for her and your newborn child and that is how you came to be involved in this offending. 

11There was a complete lack of information provided by you as to how you knew the person who offered you the role in relation to the crop at the property.  The Court was never told where you and Ms Truong and your baby were living or how it was that you, personally, came to be in Rochester involved in this cultivation.  It was asserted in written submissions that you would be paid approximately $4,000 to $5,000 depending on how successful the harvest was, but as the crop was never harvested before police arrived at the premises you never received any money at all.  The prosecution informed the Court that there are 3 co-accused relating to the illegal cultivation at the George Street property, Minh Pham, Phuong Dong and Linh Chu, whose charges are still at the committal mention stage.  Another offender, Vinh Bui, was initially regarded as a co-accused in relation to the George Street property.  However, he was recently sentenced on two charges of commercial cultivation of cannabis – one at a different address in Rochester and another at an address in Epping.  Thus, there are no issues of parity for me to take into account in the sentencing process.

12The plea in mitigation was remarkable for the lack of material put before the Court on your behalf.  It was not suggested that you were a principal in this offending in the sense that you had set up the crop but, rather, were a “hired hand” or “crop sitter”.  There is no clarity about what you were required to do in relation to the cannabis plants, save that you told the police that you went to the property once every two days or so and that “the people” had told you to look after the plants.  The indictment pleads your offending to have taken place over the period between 11 and 22 April 2020.  This is based on the fact that analysis of your mobile phone found that it had first connected with a cell in a tower in the Rochester area on 11 April 2020 and, obviously, you were present at the property when police arrived to execute the search warrant on 22 April 2020, with there having been three intervening contacts between your phone and the Rochester tower on 14, 18 and 20 April 2020.  I have already referred to the facts that there were two toothbrushes at the premises upon which your DNA was detected, your fingerprint on a beer bottle in the kitchen bin on the day of the police search and that a Toyota vehicle owned by and registered to you was parked at the property on that day.

13Hence, you are to be sentenced as having a “crop sitter” role in relation to the 292 cannabis plants with a combined weight of 260.85 kilograms over a period of approximately 12 days.

14On your behalf it was submitted that the Court should give you appropriate credit for your early plea of guilty.  This was conceded by the prosecution.  Your plea has utilitarian value in facilitating the course of justice and saving the State the time and cost of a trial.  In addition, given that your indication of a plea of guilty was made during the time when restrictions occasioned by the COVID‑19 pandemic made it impossible to conduct criminal trials in the State of Victoria, your plea has an added utilitarian value. 

15No submission was made on your behalf that your plea is a remorseful one and the only evidence which points possibly to remorse is your early plea of guilty.  It is possible that you are remorseful for your offending but on the material before me, I cannot be satisfied of that on the balance of probabilities.  You are to be sentenced as a person of hitherto good character in that you come before the Court with no criminal history.  Otherwise, the only other mitigating factor put on your behalf related to your risk of deportation. 

16Your counsel submitted that, as you are facing a term of imprisonment in excess of 12 months, this will result in mandatory deportation unless you could establish exceptional circumstances and conceded that you would be unable to do this.  Accordingly, it was submitted that the principals in Guden v R[1] should be applied in mitigation of your sentence.  The prosecution did not take issue with the fact that you were facing deportation.  However, the Court was not presented with any evidence about the impact of the hardship of deportation upon you, save that it would mean that you were separated from your current partner and young child. 

[1][2010] VSCA 196

17You told the Court that you are currently on a bridging visa.  I assume this is a criminal justice bridging visa, which was granted because of the subject charge which had to come before the courts.  Whilst I accept that serving your sentence of imprisonment may be made harder because of your anxiety that, at the end of that sentence, you will be required to uproot yourself and return to your country of origin and, additionally, deportation destroys any opportunity you may have had to settle permanently in this country,[2] it is difficult to find any other mitigatory hardship attached to your apparently inevitable deportation.  I am told your partner Ms Thuong is Vietnamese and I understood you to indicate that, if she so wished, she could return to live in Vietnam, but there was no information from her provided to the Court about this or any other matter.  You told the Court that she is an Australian citizen, as is your daughter.  Vietnam is your country of origin where you lived all of your life until you came to Australia in late 2018 aged approximately 49 years.  You told the Court that, not only is the woman you married still living there, but you have two children, a son and a daughter, to whom you are close.  In addition, you have both of your parents, three sisters and two brothers in Vietnam and you told the Court that you are close to all of those family members.  There is no suggestion that you are suffering any persecution in Vietnam and, clearly, it is a country where the culture and way of life is well known to you.  In these circumstances your counsel, Ms Hughes, conceded that the full weight of the mitigation of the principles in Guden’s case could not apply.  However, I do take into account your anxiety about deportation, particularly because your partner and young child are here in Australia, and the fact that whatever your prospects of remaining lawfully in Australia might have been, you will lose the opportunity to settle here.

[2]Allouch v R [2018] VSCA 244 at paragraph [39]

18Mr Le, a commercial quantity of cannabis is defined as 25 kilograms by weight or 100 plants by number.  Here, the weight was 260.85 kilograms, over 10 times the commercial quantity.  Also, 292 plants is almost three times the commercial number of plants.  I should here interpolate that, although the actual weight of 260.85 kilograms exceeds the weight threshold for a large commercial quantity (250 kilograms), the prosecution have conceded that you did not intend to cultivate a large commercial quantity of cannabis, as distinct from a commercial quantity. 

19This was a sophisticated hydroponic cultivation enterprise and the amount of cannabis that potentially would have found its way into the community had police not intervened was significant.  The quantity of cannabis is a very important factor in assessing the gravity of this offending and, in this case, it is at the very upper limit of a commercial quantity.  Although it is not alleged that you established the crop or were in any way an organiser, the fact is that the principals of illicit drug cultivation would be unlikely to flourish if it were not for individuals like you prepared to care for the crops on their behalf, so that the crops could be successfully grown to the point of being harvested and then sold as a business activity.  There is no material as to how or when distribution of the crop may have taken place, but there are many people in our community who are addicted to cannabis.  It adversely affects their mental and physical health, as well as adding to criminal offending and, ultimately, results in a toll on the whole community.  Many lives and relationships are ruined by illicit drug use.  The crimes of cultivation and trafficking can be difficult to detect and they consume a lot of police resources.  The seriousness of the offending for which I must sentence you is reflected by the maximum penalty of 25 years’ imprisonment.

20In sentencing you, I must denounce your criminal conduct and the predominant sentencing principle must be that of general deterrence.  This means that I must impose a sentence that will send a message to other people who are minded to assist in the cultivation of cannabis, as you did, so that they will know that it is not worth their while and they will be appropriately punished.  As I have said, if it were not for people like you who are prepared to care for the crops in a crop sitting type role, then those who instigate such cultivation enterprises would be unlikely to prosper.

21This charge is a Category 2 offence pursuant to paragraph (g) of the definition of a Category 2 offence in s3(1) of the Sentencing Act. According to s5(2H) of that Act, a court must make an order for a sentence of imprisonment (other than a sentence of imprisonment imposed in addition to making a community correction order) unless the offender comes within the exceptions specified in sub-paragraphs (a) to (e). No submission was made on your behalf that the Court should find that any of those exceptions apply in your case. Indeed, your counsel submitted that the only appropriate sentence is a term of imprisonment with a head sentence and a non‑parole period.

22I have already referred to the importance of denouncing your criminal conduct and placing emphasis upon general deterrence. It is also important that the community be protected by ensuring, so far as is possible, that large quantities of illicit drugs do not make their way into the community. In sentencing you, I have taken into account all of the circumstances of offending which are known to me, including your role and that the prosecution did not allege that there was any evidence of enrichment on your part. Of course, the crop had not yet been harvested and the several thousand dollars which you claim you expected to be paid was never actually paid. I have also taken into account current sentencing practices and other relevant considerations, including those set out in s.5 of the Sentencing Act. 

23You are entitled to a discount on your sentence by reason of your early plea of guilty.  I take the inevitability of your being deported into account in the ways that I have mentioned.  I acknowledge that your period in custody has been more onerous because of the COVID pandemic restrictions imposed since March of last year.  This has resulted in reduced out of cell time for prisoners in order to facilitate social distancing, an inability for prisoners to have contact visits, which has meant that your partner and young child or any other friends you might have had in the community could not come to see you in prison, and a reduced number of programs available of a rehabilitative nature.  Given that you were arrested after the pandemic restrictions were put in place you also had to undergo 14 days’ quarantine in isolation.  I accept this would have been a lonely and confronting experience for a person who has never had any contact with the criminal justice system or spent any time in prison before.  Insofar as I am able to do so, I take these more burdensome aspects of imprisonment into account and acknowledge that, at the present time, they are ongoing in their nature.  I consider it would have been particularly onerous for you not to have been able to see your partner and young child, and note that you have apparently not seen your child since she was five months old and you are likely to be anxious about the welfare of her and her mother.

24The prosecution has conceded that it is open to the Court to find that you have good prospects of rehabilitation given your lack of criminal history and that you had worked as hard as you could in rural Vietnam where life was difficult and the amount of work was scarce but, nevertheless, had studied construction and worked in the same industry for most of your adult life and then came to Australia to see if you could seek work and make a better life by working as a handyman.  You apparently obtained a tax file number and did do at least some part time handyman work.  In these circumstances, it is probably reasonable to conclude that you do have good prospects of rehabilitation.  However, as I commented earlier in these sentencing remarks, there has been a dearth of material tendered on your behalf as distinct from assertions from the Bar table or in written submissions.

25On Charge 1, cultivating a narcotic plant in a commercial quantity, you are convicted and sentenced to be imprisoned for a period of 2 years and 6 months.  I direct that you serve a period of 20 months’ imprisonment before becoming eligible for parole.

26I declare a period of pre‑sentence detention of 417 days to be time reckoned as already served under the sentence imposed this day.

27Pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the property referred to in the Schedule, being a total of 13 items seized by police at the property when they executed the search warrant, I further direct that the property be placed in the custody of the Chief Commission of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.

28Pursuant to s6AAA of the Sentencing Act 1991, I state that had it not been for your plea of guilty the total effective sentence imposed would have been 4 years’ imprisonment with a non‑parole period of 3 years.

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