Director of Public Prosecutions v Le

[2020] VCC 504

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02010

DIRECTOR OF PUBLIC PROSECUTIONS

v

KHOA MINH LE

---

JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2020
DATE OF SENTENCE:	24 April 2020
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2020] VCC 504

REASONS FOR SENTENCE
---

Subject: Cultivate a commercial quantity of cannabis, traffick cannabis,  theft,  possess a prohibited weapon, deal with property suspected of being proceeds of crime and possess cartridge ammunition
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Sonnett	OPP
For the Accused	Mr J. Saunders	Valos Black & Associates

HER HONOUR:

1Khoa Minh Le, you have pleaded guilty to the following offences.  One charge of cultivating a commercial quantity of cannabis, one charge of trafficking cannabis and one charge of theft.  You have also agreed to have dealt with by me and pleaded guilty to the following summary offences.  Three charges of possessing a prohibited weapon, one charge of dealing with property suspected of being proceeds of crime and one charge of possessing cartridge ammunition.  All of your offending arose as a consequence of items and drugs located at your home and shop by police in July 2019.

2The maximum penalty for cultivating a commercial quantity of cannabis is
25 years.  Under the Sentencing Act, this offence is a category two offence and s.5(2H) of the Sentencing Act applies.  Your counsel conceded you could not establish a special reason under the relevant provision so I am compelled to make an order for imprisonment.

3The maximum penalties for other offences are trafficking in cannabis,
15 years, theft, ten years, in respect of the summary offences, possessing a prohibited weapon, 240 penalty units or two years, dealing with property suspected of being proceeds of crime, two years, and possessing cartridge ammunition, 40 penalty units.

4The details of your offending are contained in the summary of prosecution opening for plea, Exhibit A.  These circumstances can be briefly stated as follows.  On the morning of 11 July 2019 police executed a search warrant at your address in Keilor Downs.  Numerous cannabis plants were located in your garage and in a tent like structure at the rear of the garage.

5A total of 31 cannabis plants was subsequently examined and found to have a combined weight of 45.18 kilograms.  Additionally five bags of loose cannabis were also located in your house and weighed 2.28 kilograms.  Both areas described contained sophisticated hydroponic equipment including ultraviolet light fittings suspended from the ceiling, insulation, ventilation, charcoal air filters and a large amount of electrical wiring.

6Photographs of the setup are contained in the depositions, pp.86 to 93.  An illegal electrical bypass was also found at your home.  Police examined the contents of your phone and found text messages over two days which included an image of the cannabis plant and price negotiations for its purchase.  That is in the text materials at pp.185 to 186 of the depositions.

7Police also located a Jeep Cherokee car later discovered to have been stolen in the St Albans area days before.  That relates to the summary offence of proceeds of crime.  Later the same day police executed a search warrant at your hydroponic shop.  There police located two bags containing 448.8 grams of cannabis and 1.6 kilograms of loose cannabis, four tasers, five extendable torch batons, four torch batons and a box containing 96 rounds of miscellaneous cartridge ammunition.

8Those last items relate to the remainder of the summary offences.  The total amount of cannabis found at your house and your shop was 49.5 kilograms.  A commercial quantity is defined under the relevant legislation as
25 kilograms.  You therefore had almost double that amount.

9You were arrested and interviewed by police.  In the course of the interview you admitted various matters including that there were 30 plants at your house that you looked after and you had bought from a friend.  You paid an electrician to bypass the power into the garage and you were the only person who had the remote control for the garage.

10You acquired the car through a friend but were not aware it was stolen and you purchased the taser and batons on the internet.  You maintained that the plants were for your own use and you gave some to friends.  You initially denied you had sold them and then later in the interview maintained though you had the plants for sale you had not sold any of them at that time.

11As to your personal circumstances I was provided with copies of the sentencing remarks of Judge Dove and Judge Stott, both retired judges of this court who referred to your personal circumstances at that relevant time.

12Additionally, I received a more recent report from Carla Ferrari, consultant psychologist, dated 14 March 2020, Exhibit 1, and I take that material into account.  You are currently aged 53 and are an Australian citizen.  You are from a large family with four brothers and four sisters.

13Your father died when you were very young and your mother struggled providing for you and your siblings whilst working in a sewing business.  Ultimately all your family migrated to Australia.  You arrived in 1987 with your first wife.  You have adult children who live in Sydney and Melbourne with whom you remain in contact.

14That marriage broke down when you were first incarcerated in 1996.  You successfully completed an apprenticeship as a welder and were consistently employed in that field up until you were imprisoned and thereafter when you spent extended times in the community.

15Further, your employment was affected by a deterioration in your mental health commencing in about 2013 or 14.  You have a number of prior convictions, the most serious and relevant of these are at the County Court on 25 November 1996 for trafficking heroin.

16You were sentenced to three years and three months' imprisonment with a non-parole period of 15 months, and at the County Court on 12 August 1999 for trafficking heroin and you were sentenced to 30 months' imprisonment with a non-parole period of 20 months.

17This 1999 offending occurred whilst you were on parole in the 1996 court appearance.  I note that in respect of the 1996 conviction that offending occurred soon after the expiration of a six month period of home detention that had been imposed on you by the court in Sydney in relation to four charges of supplying a prohibited drug.

18You have other convictions relating to recklessly cause serious injury, possession of different drugs and driving related offences.  In 2016 you opened a hydroponic shop and though originally successful struggled in the context of your relationship break down with your second wife who you had married in 1996.

19You have a daughter from that relationship who is currently studying VCE.  You maintain contact with her though the relationship is strained.  You divorced your second wife in 2017 principally because of your infidelity.  You and your current partner have a young boy aged three and a half.

20You have described this relationship as supportive and you have a strong relationship with your son, though you are concerned about the impact of your absence on his development.  Your counsel focussed on the period of time between your release from custody in about 2001 until about 2014 to 15.

21At that time your mental health deteriorated with you having significant personal issues and you reverted back to drug use after almost a 20 year period of abstinence.  You have shown that you can for an extended period work as a welder and remain out of trouble.

22Consistent with this submission you are using your time productively in prison and are currently working fulltime as a welder.  Additionally you have completed a number of certificates in custody including those related to kitchen operations and food safety.

23You have had a history of drug abuse as reflected in your prior history.  About 20 years ago you overcame your drug addiction with treatment.  You reported you were substance free for 20 years prior to your divorce from your second wife.

24However, at the time of this offending you were using half a gram of heroin daily and a similar amount of methylamphetamine.  You were also using cannabis.  As to alcohol you reported you also started drinking excessively around 2014 to 15 explaining this was related to the guilt from your infidelity.

25You maintain you have been abstinent from all substances since your arrest and you have indicated a determination not to relapse on your release from custody.  You recognise the link between this offending and your addiction.

26You reported a deterioration in your mental state several years ago relating to your affair and the guilt that you felt associated with that.  This worsened once you learnt it had resulted in an unplanned pregnancy and you were burdened with increasing anxiety with conflicting responsibilities to your unborn son and your wife and daughter whom you had betrayed.

27You became increasingly depressed and reverted to alcohol and drugs to cope.  It was in this personal context that this offending occurred.  Various psychological tests were conducted by Ms Ferrari and she opined you had symptoms consistent with major depressive disorder, preceding, during and post the period of offending, including experiencing low mood for two years or more.

28There were also neurovegetative disturbances including insomnia, concentration problems, low energy and poor motivation.  (See paragraph 102 of her report.)

29Ms Ferrari noted there was evidence of amphetamine type use disorder and opiate use disorder at the time of offending with you describing relevant behaviours.  (See paragraph 103.)

30She viewed your regular substance abuse at the time of the offending as further affecting your judgment and decision making and increasing you risk of impulsive and poorly considered behaviour.  Given the controlled environment in prison Ms Ferrari viewed you as being in early remission.

31Your counsel did not suggest that Verdins was engaged as a consequence of Ms Ferrari's opinion.  However, it was submitted your conditions went some way to explaining your offending.  I accept your current mental condition remains somewhat fragile and that custody is likely to be more burdensome for you than others.

32Further, I accept the burden is increased by your concern for your partner and young child who have limited support in the community.  You pleaded guilty to these matters at an early opportunity and I accept your plea significantly facilitated the course of justice and has a utilitarian benefit.

33I accept your plea reflects an acceptance of responsibility for your actions and is also indicative of remorse.  Your counsel conceded your rehabilitation prospects must be viewed with caution.  This was so given your prior criminal history, mental health and drug issues and the success of any treatment for either of those problems.

34On a more positive note your counsel highlighted the following.  You have had extended periods in your life where you have been drug free and remained so until significant personal events occurred.  In Ms Ferrari's opinion you developed insight into the consequences of drug use for you and that historically you have shown an ability to seek help with both mental health and drug issues.

35You maintain the support of your partner and child and other extended family members.  You are a skilled welder and remain employable.  Additionally
Ms Ferrari assessed you as a moderate risk of reoffending, though she views that your risk factors were amenable to treatment.  (See paragraphs 115 to 118.)

36The prosecution submitted your rehabilitation prospects were guarded given your history and the extent of this offending.  I view your prospects as guarded though recognise that there are some positive features that augur well for you dependent on you successfully engaging and addressing your drug and mental health issues.

37As to aggravating features of this offending the maximum penalty for Charge 1 is 25 years.  Such is reflective of the seriousness with which the community through Parliament regards this offence.  The cannabis was found at two properties and you had a sophisticated set up in the garage at your home.

38You were responsible for the hydroponic system.  Your role was more than that of a sitter.  Both counsel provided written submissions in respect of the sentence that should be imposed and I take those and other oral submissions into account.

39Reference was also made to comparative cases which provide a guide to me as to the appropriate sentence to impose.  It was accepted that both specific and general deterrence was important sentencing considerations in respect of your offending.

40Specific deterrence is particularly relevant given your history of involvement over extended periods with illicit substances.  Further, those minded to engage in illegal activities with drugs, particularly on such a scale, should be aware they will be punished.  Though the legislation is quantity and not harm based it is relevant to consider the grave harms inflicted on members of the community by cultivation of cannabis through modern and sophisticated techniques.

41Denunciation and just punishment are also relevant sentencing considerations.  Your counsel submitted that in consideration of totality there should be limited cumulation in respect of all the offending.  The prosecution submitted that there should be modest cumulation particularly in respect of the proceeds offence.

42Clearly the most serious charge is the cultivation charge and Charges 2 and 3 are related to that offending.  Your counsel submitted a sentence of imprisonment with a lengthy period on parole should be imposed to encourage your rehabilitation.

43Taking all relevant sentencing considerations into account as set out and those matters listed in s.5 of the Sentencing Act I sentence you as follows.  In respect of Charge 1, cultivating a commercial quantity of cannabis, you are convicted and sentenced to a term of imprisonment of five years.

44In respect of Charge 2, trafficking cannabis, you are convicted and sentenced to a term of imprisonment of six months.  In respect of Charge 3, the theft, you are convicted and sentenced to a term of imprisonment of six months.

45In respect of summary Offence 8, possessing a cartridge or ammunition, you are convicted and discharged.  In respect of each of summary Offences 5, 6 and 7, each relating to possession of a prohibited weapon, you are convicted and sentenced to a term of imprisonment of seven days in respect of each of those charges.

46Finally, in respect of summary Charge 12, that being the dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to a term of imprisonment of three months.

47That makes a base sentence of five years.  Two months of the sentence imposed on Charge 2 and two months of the sentence imposed on Charge 3, and one month of the sentence imposed on the summary Offence 12, is to be cumulative on the sentence imposed, thus making a total effective sentence of five years and five months.

48I impose a non-parole period of three years. Pursuant to s.6AAA of the Sentencing Act if you had not pleaded guilty to these matters I would have imposed a sentence of seven years with a non-parole period of five years.  What is the pre-sentence detention please?

49MR SONNETT:  Your Honour, we have agreed it is 288 days.

50HER HONOUR:  I declare pre-sentence detention of 288 days.  The prosecution applied for a forfeiture order under the Confiscation Act and also a disposal order under the Control of Weapons Act, neither of which were opposed and I make those orders.  Is there anything else I need to do?

51MR SONNETT:  Your Honour, from my perspective I have heard everything that you have said in terms of your sentencing reasons but you became a little bit quiet when you actually announced the sentencing orders so can you go through them very quickly?  I think I got them right but I just want to double check.

52HER HONOUR:  Yes.

53MR SAUNDERS:  I had the same problem, Your Honour.  You dropped away very badly when you went through the sentence.

54HER HONOUR:  I will just do it again.  Charge 1, five years.  Charge 2, six months.  Charge 3, six months.  Summary Offence 8, convicted and discharged.  Summary Offences 5, 6 and 7, seven days each.  Summary Offence 12, three months.

55Two months of the sentence on Charge 2 cumulative, two months of the sentence on Charge 3, cumulative.  One month on the sentence of summary Offence 12, cumulative.  It gives you five years and five months with a non-parole period of three.

56MR SAUNDERS:  Yes, Your Honour, thank you very much.

57HER HONOUR:  Anything else?

58MR SONNETT:  Nothing else, Your Honour.

59HER HONOUR:  Thank you.  I will stand down, thanks.

- - -