Director of Public Prosecutions v Le

[2018] VCC 1064

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00561

DIRECTOR OF PUBLIC PROSECUTIONS

v

KHOA LE

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 July 2018
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2018] VCC 1064

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Wallace
For the Accused	Mr  L. Hocking

HER HONOUR: 

1Khoa Dang Le, you have pleaded guilty to one charge of cultivation of a narcotic plant in a quantity which is not less than a commercial quantity applicable to that drug.  The maximum penalty for that offence is 25 years' imprisonment.

2The facts which found the offending are in summary terms as follows: 
in December 2012, you entered Australia on a student visa which expired on 15 March 2015.  You are now aged 28.  You are a Vietnamese citizen.  You have no family who reside in this country. 

3The residence which was ultimately the subject of the search warrant in Narre Warren had been purchased by two persons in July 2017.  On Wednesday
20 December 2017, a search warrant was executed.  Police members observed a Honda motor vehicle parked in the driveway which was registered to you.  Upon attending the front door, you were given instructions by the police.  You complied in unlocking the door without incident.  You were arrested and the property was searched. 

4During the search, police located cannabis plants being grown hydroponically in four rooms.  The plants ranged in both size and maturity.  In Room 7, 87 plants were located.  Room 8, 12 plants.  Room 9, 20 plants.  Room 10, seven plants.  And in Room 2, an electrical bypass was observed.  Other rooms in the house contained the accoutrements of cultivation. 

5You largely exercised your rights in relation to interview, making some admissions.  You told police that you had spent some nights at the property and indeed indicated you had been there two or three months. I make clear that I am sentencing you on the basis of the charge, which is a single date offence on 20 December 2017. 

6It is not put that you had any role in the setting up of the hydroponic equipment or the electrical bypass.  You are conceded by the prosecution to be what is colloquially known as a "crop sitter". 

7You told police that you knew that there were more than 100 plants.  You told them that you were in fear of the property manager and explained that you had been given money for your participation, possibly in excess of $1,000. 

8You have been remanded since the date of your arrest and you have now spent some 204 days in custody. 

9It is relevant to note that you have no criminal history. 

10I am mindful in sentencing you of the provisions contained in s.5(2)(h) of the Sentencing Act, on the basis that this is a Category 2 offence.  I must order imprisonment for Category 2 offences committed by an adult on or after March 2017, unless criteria apply, which are set out in that section.  It is not put to me that I should make any such finding. 

11I note that you have, through your counsel, consented to the disposal orders which have been sought. 

12By way of background, you were born in Ha Tinh Province, Vietnam, on
6 October 1989.  You are 28 years old.  You are single and your family all reside in Vietnam. 

13Mr Le, you were raised as one of a sibship of six.  You are the youngest child of that sibship.  Your brothers and two sisters all reside with the family in
Ha Tinh Province. 

14You attended primary school and then completed your secondary education, aged 18.  At 18 you left the family home to pursue tertiary studies in Maritime Navigation.  You completed those studies prior to your 21st birthday.  You subsequently tried to gain employment as a maritime pilot but you were unsuccessful.  In order to advance your career prospects, it was determined that the family would support your endeavours to study in this country.

15You came to Australia in December 2012 on a two-year student visa.  You enrolled in a Masters course in Maritime Studies at Wollongong University.  There was a six-month English Studies component in relation to that course.  Your family were trying to financially support you.  I accept that was difficult for them from the outset, but particularly in light of circumstances that arose in the province, which substantially affected the fishing industry and had flow-on effects in relation to your family's farming endeavours. 

16Ultimately your family were unable to support you and you left without completing that course in March 2014.  From March 2014 until September 2016, you worked for Tap N Go Flooring, earning the modest sum of $120 per day. 

17From September 2016 until midway through 2017, you were engaged in a variety of manual forms of employment including farming, gardening and Jim's Mowing.  It was while working in those endeavours that you made friends with other members of the Vietnamese community. 

18Approximately at the end of 2016, you were involved in a car accident.  It seems it was not your fault, but due to the fact that you were, by that stage, illegal in this country due to not having an appropriate visa, you felt unable to pursue remedies through insurance companies and ultimately you had to borrow the sum of $2,500 to cover the damage.  It was in this context that it was suggested to you that that debt would be satisfied if you looked after the plants which ultimately are the subject of these proceedings. 

19You have maintained at all times that you are not aware who the property owner was. 

20As already indicated, you were what is colloquially known as a "crop sitter".  You would water and fertilise plants.  In return, your debt was forgiven and you were paid additionally somewhere between 1,000 and $3,500 for your involvement in this offending. 

21I sentence you on the basis that your role is properly described as that of a crop sitter and on the basis that you have no prior convictions. 

22Whilst the offence is of itself a serious offence and I must necessarily place significant weight on general deterrence, in my view, less weight can be given to specific deterrence, in light of your history and plea.  Any sentence imposed by this court must, of course, denounce your conduct and satisfy elements of just punishment. 

23In relation to this matter, I am sentencing you on the basis that you entered your plea at the earliest available opportunity.  You are thus entitled to the full benefit of an early plea. 

24I accept that your prospects of rehabilitation are very good.  You have completed a number of courses whilst in custody, including in relation to digital media and technology, vocational pathways, kitchen operations, cleaning operations and a program in relation to anger management.  I accept that as regards remand prisoners, participation in education is difficult and it would appear that you have certainly pursued such education as was open to you.

25I accept that you are remorseful as regards your offending and not just the circumstances in which you now find yourself.  You are isolated in this country, in that you have no family support, which in my view, increases the burden of imprisonment. 

26As I have already indicated, you have served some 204 days by way of
pre-sentence detention. 

27Would you stand please. 

28In relation to this matter, you are convicted and sentenced to be imprisoned for 11 months. 

29I direct that 204 days be reckoned as served.

30I make the disposal order in the terms of the draft.

31I note that you consent to an order, pursuant to s.464ZF of the Crimes Act.  Could I have a copy of that order please?

32MS WALLACE:  Thank you, Your Honour.

33HER HONOUR: I order that, pursuant to s.464ZF(2), you are to undergo a forensic procedure for the taking of a scraping of your mouth and/or blood sample, in accordance with Subdivision 30A of Part 3 of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. 
I inform you that police may use reasonable force to enable that procedure to be conducted. 

34I make the order, having considered the seriousness of the circumstances of the forensic sample offence.  I am satisfied that the order is justified, having regard to the seriousness, that fact that you do not oppose the order.  In my view, it is in the public interest. 

35I direct it be noted in the records of the court that were it not for your plea of guilty, I would have imposed a term of imprisonment of 13 months. 

36Is there anything else I need to do today?

37COUNSEL:  No, Your Honour.

38HER HONOUR:  Thank you very much. 

39MR HOCKING:  As Your Honour pleases.

40HER HONOUR:  Very well.  Thank you.  Madam Interpreter, would you just remain there for a moment.  I am going to allow Mr Hocking to approach the dock with you there, so he can explain, through you, what's just happened for his client.  Nothing further?

41COUNSEL:  No, Your Honour. 

42HER HONOUR:  All right, thanks very much, I will just stand down. 

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