Director of Public Prosecutions v Le
[2018] VCC 1789
•12 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01166
Indictment H12711542
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANG THI LE |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 1 November 2018 | |
DATE OF SENTENCE: | 12 November 2018 | |
CASE MAY BE CITED AS: | DPP v Le | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1789 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Sharpley | Office of Public Prosecutions |
| For the Accused | Mr A. S. Dickenson | Giorgianni and Liang Lawyers |
HER HONOUR:
1 Dang Thi Le, you are to be sentenced in respect of one charge of cultivating a narcotic plant in a commercial quantity, namely Cannabis L, contrary to s72A of the Drugs, Poisons and Controlled Substances Act 1981.
2 The maximum applicable penalty is 25 years’ imprisonment.
3 You pleaded guilty when arraigned before me on 1 November 2018.
Circumstances of offending
4 The circumstances of offending are well set out in the summary of prosecution opening dated 30 July 2018, a copy of which will be annexed to these reasons for sentence as Attachment A. Suffice it to say for present purposes, you were a crop-sitter at a house in which a sophisticated hydroponic setup was established for the cultivation of cannabis plants.
5 The house at which these plants were grown was located in Tyrrell Close, Corio, and was the subject of a police investigation. Can you give that to the interpreter please? Thank you. I am at paragraph 5. On 20 September 2017 police noticed your car parked in the driveway of the property. The next day they obtained a search warrant under the Drugs, Poisons and Controlled Substances Act to be executed at the property.
6 On 26 September 2017 police observed your car turn into Tyrrell Close. When police approached the property, your car was parked on the nature strip in front of the house. Members of police knocked on the front door of the property and explained to you that they were in possession of a warrant to search the property. They asked you to unlock the security door. You appeared to fumble with the security door, but slammed the front door. You attempted to flee via the back door, but police were waiting for you. You were apprehended, arrested, cautioned, and advised of your rights.
7 During the search of the property, police found an extensive hydroponic setup for growing cannabis plants in four rooms of the house. Cannabis was growing under lights and shrouds, and there was irrigation hosing in place to feed the plants. Police also found fertiliser and other plant-growth chemicals, along with electrical transformers. One bedroom of the house was set up as sleeping quarters.
8 A total of 140 plants with a combined weight of 82.4761 kilograms was located at the property. All were found to be Cannabis L.
9 You were found in possession of one set of keys for the property, and another set of keys was found under a floor mat in the driver’s foot-well of your car.
10 At the scene, police also located a number of items of property all consistent with a commercial operation of cannabis cultivation.
Record of interview
11 You were taken from the property to the Geelong Police Station where you were interviewed with the assistance of a Vietnamese interpreter. You told police that you were recruited at the casino by a man named “Pham” who offered to pay you between $2,000 to $3,000 per month if you went to the property to turn on the water to fill the buckets containing plants.[1] You also told police that you did not know what the plants were. You explained that you turned on the water for two rooms only, one at the front and one at the back of the property, and you did this two times a week at Pham’s request. You stated that Pham had given you a mobile phone which he used to contact you when he required your attendance at the property. When you did attend the property, you stayed for about an hour. You said that Pham told you that if anyone came to the property, “Don’t say anything,” and “Just run away.”[2]
[1]Questions and Answers 48–72
[2]Questions and Answers 108–109
Gravity of offending
12 The offence contained in the indictment is a very serious charge. So much can be determined from the maximum applicable penalty. In addition, there are mandatory sentencing provisions that inform of the inherent gravity of the offence and govern the sentencing task. Section 3(1) of the Sentencing Act 1991 defines the offence of cultivation of narcotic plants in a commercial quantity as a “category 2 offence” when committed by a person who is 18 years of age or more. When imposing a sentence for a category 2 offence, the court is compelled to sentence the offender to a term of imprisonment to be served immediately unless a statutory exception is established. No such exception is said to apply in your case.
13 In cases such as these, principles of general deterrence, condemnation and denunciation, and protection of the community, are dominant sentencing considerations.
Plea in mitigation
14 In a comprehensive plea on your behalf, Mr Dickenson of counsel conceded the gravity of your offending and that a term of imprisonment is the only appropriate response to it. You have been in custody ever since your arrest some 412 days ago. Your counsel submitted that in all the circumstances, any term of imprisonment to be imposed should not require service of any additional time in custody. He relied on the following factors in mitigation of penalty.
Reason for offending
15 You were naive, and presented as an easy target for those higher up in this operation. You were hoping to make extra money to help your family, all of whom still live in Vietnam. You had been gambling, fell into debt, and saw this as an opportunity to solve your financial problems.
Plea of guilty
16 Until the trial was listed before me, you maintained your plea of not guilty. As I understand it, the only issue in dispute was whether you knew of the quantity involved in the operation. You have since accepted responsibility for your crime, and by your plea acknowledge that you knew the quantity cultivated was in fact not less than a commercial quantity.
17 Your late plea notwithstanding, you are entitled to a statutory discount because you have pleaded guilty. A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount. In assessing the weight to be given to your plea I take into account the following factors:
(i) The timing of your plea;
(ii) Your entitlement to a statutory discount;
(iii) Your plea evidences a level of remorse;
(iv) You have avoided the cost of a trial;
(v) The strength of the Crown case, including the fact that you were caught “red-handed” at the scene; and
(vi) The social utility involved in your plea.
Prior good character
18 You have no prior convictions, and there is no suggestion that you are anything other than a person of prior good character.
Remorse
19 I have mentioned that your plea is indicative of remorse. I also accept that you are ashamed of your conduct, and that your involvement in this crime has brought shame to your family and torn it apart.
Personal history
20 You are 44 years of age, having been born in Bach Lieu, Vietnam. Your family was very poor. They were rice farmers. You are the fifth of six children. You have had limited education, and only completed Year 5. All members of your family helped your parents on the family farm.
21 You accepted an offer to work for your aunt as a maid. While working for her, you met your husband, an Australian citizen of Vietnamese heritage who happened to be visiting at the time. You married in 1999 and your son, Minh, was born in 2001. Your husband sponsored you and your son to come to Australia, where you were ultimately granted citizenship.
22 Although you have undertaken an English course, I understand that your English is still poor.
23 You obtained work in the Footscray Market, and then later worked as a picker on a farm.
24 Your marriage was not happy, and according to your counsel was characterised by both physical and verbal abuse. Ultimately the relationship ended in 2009 when you left the matrimonial home with your son. You rented a room in a share-house, receiving no financial assistance from your former husband. To this day he offers no financial support for either you or your son. As I understand it, you developed psychological problems and sought the assistance of a psychologist. You were taking anti-depressants at the time of offending.
25 You formed a subsequent domestic relationship, but this relationship has broken down as a result of your involvement in this offence. Your partner has not visited you at all since your remand.
26 Since your remand, your son has been living on his own in Department of Housing accommodation. He is currently doing his VCE exams. You have borrowed money from a friend to pay rent for your son’s accommodation, and will be obliged to pay back the loan in due course.
27 Your son has visited you only a few times whilst you have been in custody. Your son dreams of becoming a lawyer, and is disgusted and distressed by your behaviour. He has lost 10 kilograms in weight since your remand.
Prospects for rehabilitation
28 You have used your time in custody wisely and productively. You have worked cooking meals for prison officers. You have also undertaken courses including cooking, coffee making, English, and white-card training (which enables you to work as a “lollypop lady”, or sign-holder). In addition you have undertaken drug and alcohol courses, even though you are not a user of any illicit substances.
29 Upon your release you hope to obtain employment in the food industry, making coffee, using the skills you acquired in your training whilst in custody.
Sentencing submissions
30 You have now served 412 days by way of pre-sentence detention. As mentioned earlier, your counsel concedes that a term of imprisonment must be imposed; however, he urges that I should not order that you serve any additional time in custody.
31 The learned prosecutor, Mr Sharpley, conceded that you were not at the upper end of the hierarchy involved in this operation. He conceded that yours was the role of a mere crop-sitter who had attended the premises for no more than “a couple of weeks”. He agreed that you had received no financial reward for your role at the time of your apprehension.
Sentence to be imposed
32 In sentencing you I must take into account all of the matters personal to you, to which I have referred. I must also take into account matters such as deterrence, especially general deterrence, which, as I have already noted, is of great importance in a case such as this. I am required to take into account the question of the protection of members of the community from you, and bear in mind the likelihood of your reoffending. I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
33 Dang Thi Le, on the charge of cultivating a narcotic plant in a commercial quantity as alleged in the indictment, I have no alternative but to impose a term of imprisonment.
34 You are convicted and sentenced to a term of 21 months.
35 In determining the non-parole period in your case I am required to take into account the purpose of fixing a non-parole period which is “to provide for mitigation of punishment in favour of [your] rehabilitation through conditional freedom”.[3] The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release. The relevant factors I am required to take into account are:
(a) that a non-parole period has a penal element;
(b) that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c) that the prisoner’s prospects of rehabilitation are almost always a significant consideration.”[4]
[3]See DPP v Josefski (2005) 13 VR 85 paragraph 43
[4]Josefski, paragraph 43
36 Taking all these matters into account, including your prospects of rehabilitation, I direct that you serve a minimum period of fourteen months’ imprisonment before becoming eligible for parole.
Pre-sentence declaration
37 Under s18(4) of the Sentencing Act 1991, I declare that the period of 412 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
Statement under s6AAA Sentencing Act
38 I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offence the subject of the indictment but for your plea of guilty. Pursuant to s6AAA, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea the sentence I would have imposed is 32 months’ imprisonment. I would have directed that you serve a minimum of 21 months before becoming eligible for parole.
39 I direct pursuant to s6AAA that the sentence that would have been imposed but for your guilty plea be noted in the court records.
Ancillary orders
Disposal order
40 I make the disposal order in the form submitted for my signature.
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Attachment “A”
Summary of Prosecution Opening dated 30 July 2018
Introduction
Dang Thi LE was born in Vietnam on 19 August 1974.
Ms LE was 43 years old at the time of the alleged offending.
Offending
A house located at 1 Tyrrell Close, Corio (the property) was the subject of a police investigation concerning the cultivation of cannabis.
On 20 September 2017 at approximately 7:21pm, Senior Constable (SC) Matthew SEEHUSEN observed a vehicle, being a silver Toyota Yaris with number plates WGK227 (the vehicle) parked in the driveway of the property.[5] The vehicle is registered to Ms LE.
[5] Statement of SC SEEHUSEN dated 9 May 2018.
On 21 September 2017, police obtained a search warrant pursuant to s 81 Drugs Poisons and Controlled Substances Act 1981 to be executed upon the property.
On 26 September 2017 at approximately 7:18pm, police were positioned on Moreland Avenue, keeping the entrance to Tyrrell Close under observation. At approximately 7:45pm, police observed the vehicle turn into Tyrell Close. They walked into Tyrrell Close and saw the vehicle parked on the nature strip in front of the property.
At approximately 7:53pm, police attended upon the property to execute the search warrant.
Police members knocked on the front door and the accused opened the wooden door. Leading Senior Constable (LSC) Shane BOURKE showed Ms LE his identification. He explained that he had a warrant to search the property and asked her to unlock the security door. Ms LE asked “why?” LSC BOURKE repeated that he had a warrant to search for drugs. Ms LE appeared to fumble with the security door. She then slammed the main door and attempted to flee via the rear sliding door of the house.[6] SC SEEHUSEN and First Constable (FC) HADDEN were waiting at that door. FC HADDEN restrained Ms LE in the kitchen area.
[6] Statement of LSC BOURKE. See also, statement of Sergeant Peter MEATH.
Ms LE was arrested, cautioned and advised of her rights by SC SEEHUSEN.
Police found an extensive hydroponic set up for growing cannabis and cannabis plants in four rooms.[7] A comprehensive search of the property was deferred until the next day, at which time an electrician would attend to remove the electrical bypass that had been illegally installed at the property.
[7] The rooms are described as the first bedroom, living area, lounge area and laundry.
On 27 September 2017 at approximately 8:43am, police re-attended the property, together with the electrician and botanists from the Forensic Services Unit. In three of the four rooms, police located numerous cannabis plants growing under lights and shrouds, along with irrigation hosing. Fertiliser and plant growth chemicals were found in the bathroom and kitchen area. A number of transformers were located on the bathroom wall. Black plastic was taped across the doorway between the kitchen and the lounge room in the form of a flap. One room was set up as sleeping quarters.
The following items were seized and weighed by Botanist Kylie SLATTERY:
· 16 cannabis plants located in Room 1, weighing 19.96kgs
· 24 cannabis plants located in Room 2, weighing 49.12kgs.
· 46 cannabis plants located in Room 3, weighing 12.56kgs
· 54 cannabis plants located in Room 4, weighing 836.1grams.[8]
[8] Statement of Botanist Kylie SLATTERY.
There was a total of 140 plants, with a combined weight of 82.4761kgs located at the property. The plants were all found to be Cannabis L. (Charge 1 –Cultivating a commercial quantity of cannabis)
Two sets of keys were located: one was in Ms LE’s handbag which was in her physical possession at the time of her arrest, and the other was under a floor mat in the driver’s footwell of the vehicle.
Also seized were:
· Three mobile phones
· 2 x disposable gloves
· 4 x gardening gloves
· 1 x baseball cap
· 2 x toothbrushes
· 1 x box containing 28 light globes
· 66 x transformers
· 1 x set of scales
· $125 cash
· 1 x face mask
· 52 x light shrouds
· 56 x light globes
· 52 x light fittings
· 1 x electrical bypass
· 3 x power boards
· 1 x shredder table
Forensic Analysis
A number of items were forensically analysed by Forensic Officer Jenna BANBURY. A cap located in the kitchen was forensically tested. A mixed DNA profile was located on the inside headband of the cap. It was determined that the evidence is 1.6 billion times more likely that Dang LE is a contributor to the DNA. Ms LE’s DNA was excluded from the toothbrushes analysed.
Interview
Ms LE was driven by SC SEEHUSEN from the property to Geelong Police Station.
At 9:10pm, an interview was commenced with the assistance of a Vietnamese interpreter over the phone. SC SEEHUSEN was the lead interviewer and FC HADDEN was the corroborator.
Through the interpreter, Ms LE told police that she wanted to speak with a legal practitioner (Q & A 32). The interview was suspended at 9:20pm and FC HADDEN called Victoria Legal Aid in the presence of Ms Le. After approximately 10 minutes of being “on hold”, FC HADDEN terminated the call.[9]
[9] Depositions, page 13 (cross examination of SC SEEHUSEN).
The interview recommenced at 9:29pm. Ms LE gave the following information:
· She met a man called “Pham” at the casino. He offered to pay her $2,000-$3,000 per month if she went to the property and turned on the water to fill the buckets containing plants (Q & A 48 – 72).
· She did not know what the plants were (Q & A 62, 93 and 96 - 97).
· She turned on the water for two rooms: one at the front and one at the back of the property (Q & A 75 – 78).
· She did this two times a week and at the request of Pham, who would call her on a mobile phone that he gave to her (Q & A 79 – 82). She would stay at the property for about an hour (Q & A 95).
· She did not have the key to the property with her, she collected it from the entryway (Q & A 101 – 107).
· Pham told her that if anyone came to the property, “don’t say anything” and “just run away” (Q & A 108 - 109).
How the charge is put
Pursuant to s 70 Drugs Poisons and Controlled Substances Act 1981, the charge of cultivating a narcotic plant, namely Cannabis L, in a quantity that is not less than a commercial quantity is put on the basis that the accused was tending the plants.
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