Director of Public Prosecutions v Le

[2019] VCC 449

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02326

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRI LE

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2019
DATE OF SENTENCE:	4 April 2019
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2019] VCC 449

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. K Farrell
For the Accused	Ms E. Byrt

HER HONOUR: 

1Tri Ngoc Le, you have pleaded guilty to one charge of cultivating a narcotic plant in not less than a commercial quantity.  The maximum penalty for that offence is 25 years' imprisonment.

2The circumstances of your offending are set out in the prosecution opening, which was read in court this day, dated 12 March 2019.  You were, at the relevant time, aged 49 and residing in Australia illegally. 

3On 21 August 2018, police attended an address in Mill Park, where they executed a warrant pursuant to the Drugs, Poisons and Controlled Substances Act.  Inside the premises, police located a sophisticated hydroponic cannabis set-up.  Three rooms of the house contained juvenile and mature cannabis plants.  There were 69 plants in the first room and 15 plants in each of the other two rooms.  Thirty-eight cannabis seedlings were located in a cupboard under the stairs.  In total, 137 plants were seized.  In terms of the growth system, police located a lighting system, which included an electrical bypass.  It is not alleged that you were a party to that bypass and you are not charged in relation to that aspect.  In one of the bedrooms, police located documentation personal to you, including your birth certificate, a Victorian probationary driver's licence and an expired passport.  You were arrested and the plants were conveyed to VFSC, where they were examined by a botanist and confirmed to be cannabis, with a total weight of 72.2 kilograms. 

4You were transported to the Mill Park Police Station, where you were interviewed with the assistance of a Vietnamese interpreter.  You made full admissions.  You told police that you had been living at the property for about four weeks and that you were there to mind the house and look after the cannabis.  You told police that you did not know who the people who were hiring you were, that they contacted you solely by telephone, that they used different numbers to contact you at different times and that they would occasionally drop messages at the front of the premises.

5In terms of your role, you made admissions which included watering the plants, mixing and applying chemicals and checking the lighting system.  You told police that it had been your intention to work for a couple of months in order to obtain the money necessary to get a new passport.  You told police that it had been agreed that you would be paid between $7,000 and $8,000 upon harvest, but no harvest had occurred.

6In addition, you were paid $100 to $200 a week and food was left at the house for your consumption.  You told police there was another man, Son, who was doing the same job as you at the house.  You were frank with police, admitting that you knew cannabis was illegal and that what you were doing was wrong. 

7You were remanded in custody on 21 August 2018 and as at today's date you have spent 226 days in custody by way of presentence detention.

8Your offending is clearly serious, as is reflected in the maximum penalty prescribed by Parliament, but this is not a particularly sophisticated example of such offending.  Your role in the offending spans a relatively short period of time.  The prosecution accept, for the purposes of sentencing, your role is that is what is colloquially known as a ‘crop sitter’.  It seems that you were motivated by financial difficulties, but in effect, you took the risk, you knew the consequences and you got caught.

9You have no prior convictions or appearances and you fall to be sentenced on the basis that you are, apart from this matter, a man of good character.  By way of history, you were born in North Central Vietnam, in a coastal region.  You are the eldest child of a sibship of three.  You describe a loving and supportive family.  Your mother ran a market stall and your father sewed in a factory.  They were able to educate you and you completed the equivalent of Year 12 in Vietnam, before coming to Australia, aged 24, on a student visa in 1993.

10Initially, you had enrolled in an English course in Canberra, but it seems that after approximately six months, that was no longer financially viable.  You remained in Canberra for a further 18 months, before moving to Victoria.  At that time, you found work on a farm, where you were working illegally.  Your options were clearly limited, given your status.  You worked at various farms, harvesting and picking throughout the seasons, in the main, living in premises provided by your employers.  There were other times when you worked at local restaurants.

11You report being approached while you were working on the farm in relation to participating in these matters.  By that stage, you had determined that you wished to return to Vietnam, but you did not have sufficient funds for a passport, nor a ticket.  Support for this being your intention is found in your contact with immigration officials seeking advice in relation to what was required in order for you to leave Australia.  You were apparently informed that you needed to renew your passport.

12Your father is unwell.  He has had heart problems and previously had a stroke.  It seems his health is unfortunately in decline.  Your mother is now unable to work, having been involved in a serious motor vehicle collision some years ago. 

13You have had only one relationship of significance and you were married in 2001, but you separated after two years.

14At the time of this offending, you report being concerned about your family in Vietnam and your inability to contribute to their financial support.  That has continued to concern you whilst you have been in custody.  I accept that you are keen to return to Vietnam as soon as possible, to assist in your father's care.

15Since being remanded, you have been employed in custody, in cleaning and other forms of manual labour.  You have also spent some time studying English.  Your time in custody has been onerous in circumstances where you entered custody not speaking English.  You have had no visitors in custody.  You have no family in Australia and you remain concerned about the fate of your family in Vietnam.

16You will be deported, in all likelihood, upon your release from custody.  You clearly have no legitimate expectation that you could remain and this is a circumstance where you will be deported to your country of origin and to your family in accordance with your wishes.

17As regards your prospects of rehabilitation, I think they are properly assessed as very good.  You have no prior, nor subsequent matters.  This is your first time in custody and it is likely to have had significant deterrent effect.

18Your counsel has pointed to a number of matters you are entitled to have taken into account in mitigation.  Firstly, your plea.  You pleaded guilty, having made full admissions to the police.  You have saved the community the time and expense of a trial.  You are entitled to the full benefit of an early plea.  I further take into account in your case the contrition, which I accept as being inherent in the plea.  I accept that your plea should properly be used as evidence of remorse.  I accept that isolation from your family has made and will make your time in custody more onerous.

19Cultivating a commercial quantity of a narcotic plant is a category 2 offence.  I am thus required to impose a custodial sentence other than the sentence of imprisonment, in addition to a community corrections order.  It is conceded by your counsel that the only disposition open is an immediately servable term of imprisonment.  The prosecution concur.

20As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must take into account other relevant sentencing considerations.  General deterrence is of considerable importance in matters such as this.  That is, I must seek to deter not only you, but others who would engage in like conduct.  I regard this factor as properly given weight in matters of this type, of course, along with other relevant sentencing considerations.

21Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  Specific deterrence can, in my view, be given less weight in light of your history.  Would you stand, please?

22On Charge 1: cultivating cannabis, commercial quantity, you are convicted and sentenced to be imprisoned for 18 months.  I direct that you serve 12 months before becoming eligible for parole. 

23I direct that 226 days be reckoned as served. I direct it be noted in the records of the court that were it not for your plea of guilty, I would have sentenced you to 24 months, with a minimum of 18. I make a disposal order pursuant to s.77(1) of the Confiscation Act in relation to the items in the schedule to the draft order, to which you have consented.

24Finally, the Crown make application pursuant to s.464ZF of the Crimes Act for an intimate forensic sample to be taken from you.  You consent to the making of the order.  I order that a forensic sample be taken from you for placement on the database.  I inform you that police may use reasonable force to enable that procedure to be conducted.  Mr Le, it will simply be a swab of the inside of your mouth and if you cooperate with that, no blood sample will be taken.  All right, thank you.  Counsel, is there anything arising?

25MS FARRELL:  No, Your Honour.

26MS BYRT:  No, Your Honour.

27HER HONOUR:  Thank you.  Counsel are excused.

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