Director of Public Prosecutions v Le

[2018] VCC 1653

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

AT BALLARAT
CRIMINAL JURISDICTION

CR -18-01817

DIRECTOR OF PUBLIC PROSECUTIONS

v

THI KHI LE

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	11 October 2018
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2018] VCC 1653

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs	Director of Public Prosecutions
For the Accused	Mr C. Nikakis

HER HONOUR:

1Thi Khi Le, you have pleaded guilty before me to one charge of cultivating a commercial quantity of a narcotic plant, namely cannabis.  The facts underlying this offending are as follows. 

2On 20 June 2018, police went to a house at 3 Baxter Street, Miners Rest, where they found you and your son, Man Dung Le in the main bedroom.  Inside the house police a hydroponic cannabis crop had been set up in four rooms which contained 80 cannabis plants weighing 79.46 kilograms. 
The largest and most mature of those plants was about two months old.  Each of the rooms had been modified with fake plaster walls to allow for the cultivation in the separate rooms and heat lamp lighting, watering systems, ventilation fans, and the usual hydroponic crop paraphernalia had been installed.  There were charcoal filters in the house ceiling space and a separate air filtration system in the garage.  There were three electrical bypasses allowing for free electricity.  You are not charged in relation to this because it is clear your role was that of a crop sitter. 

3You were arrested but because you do not speak English and no Vietnamese interpreter was available, you did not make a record of interview. 

4I now turn to your personal circumstances.  You are 37 years old.  You were born in the north of Vietnam, the middle of three children.  You completed
Year 9, you worked as a labourer at a factory until you were 19 when you married your husband, Van Hung Le.  He worked as a mechanic and you gave birth to your older son, Man Dung Le in 2001, at the time having the occupation of housewife.  You had a second child, Huy Thi Le, in 2007 and he lives with one of your brothers in Vietnam.

5Your husband came to Australia in 2009 on a tourist visa, which he overstayed and was deported home in February 2018.  In Australia he worked as a mechanic and you lived with him after arriving here on a guardian visa in 2013 accompanying your son, Man Dung Le, who had a student visa.  Both the visas for yourself and your son were valid for four years and expired in 2017.  Your current situation therefore is that you and your son are unlawfully in Australia and liable for immigration detention.

6In the years before your husband was returned to Vietnam he became a regular drinker, a gambler and abusive towards you.  Despite the strains between you, (leading you to consider separating), you gave birth to your third child in 2015, a daughter.  Once your husband was returned to Vietnam you had no means of support and had some financial assistance from your parents, who mortgaged their home in Vietnam to assist you.

7During this time after your husband had left Australia, you met the crop owner at the Sunshine Market about five or six times.  That person discovered your difficult situation and offered you a position as crop sitter.  You felt you had no choice and you, your son and your daughter moved into the Baxter Street house about two months before your arrest.

8You were taken into custody following your arrest and your counsel informed me that your distress was so great that you spent the first two weeks there in a psychiatric unit.  You have been medicated and your emotional condition has much improved.  Your son, however, was charged as a co-offender and dealt with in the Children's Court where he was sentenced to 90 days in Youth Justice Centre, which time he had already served.  He now lives with friends in Sunshine.  Your daughter has been placed with your niece and still remains there.  The situation is that your daughter, although born here, takes on the same legal immigration status as yourself and is therefore an unlawful immigrant, as is your son.  It is clear that all three of you must be returned to Vietnam.

9You pleaded guilty to this charge before committal mention, therefore I accept that this was a plea made at the earliest opportunity and you are entitled to the full benefits of that plea.  You have no prior convictions and nothing pending. 

10I accept that you offended in the way you did because of the dire situation you were left in after your husband's deportation to Vietnam. I also accept that, as I must sentence you according to the provisions of s.3(1) of the Sentencing Act, a term of imprisonment will be far more difficult for you than the ordinary prisoner because of your separation from your children and your concern over their situation away from you. 

11I therefore sentence you to a term of eight months imprisonment.

12Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of two years and ordered you serve a minimum term of 14 months.  Thank you.

13MR NIKAKIS:  Declaration of PSD?

14HER HONOUR:  Yes.  I declare that 113 days of this sentence has already been served by way of pre-sentence detention.  I do not see any need for a s.464ZF sample to be taken.

15MR NIBBS:  There's also the disposal and forfeiture order.

16HER HONOUR:  Yes.  Yes thank you, there's only two copies?  Yes thank you for that extensive and emotionally exhausting plea, Mr Nikakis.  All right so,
 Ms Le, you will have about ‑ ‑ ‑ 

17MR NIKAKIS:  Just over four months.

18HER HONOUR:  Yes, something like over four months to go, four and a half months to go.

19MR NIKAKIS:  Yes.

20HER HONOUR:  All right, thank you very much.  We will - there's nothing else on is there?

(At this stage the court proceeded with another matter.)

21All right, thank you very much.  You can have the photographs back, thank you.

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