Director of Public Prosecutions v Le

[2018] VCC 12

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-17-02038

DIRECTOR OF PUBLIC PROSECUTIONS

v

HONG THI LE

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 January 2018
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2018] VCC 12

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Pillai
For the Accused	Ms A. Beech

HIS HONOUR: 

1Hong Thi Le, you have pleaded guilty to one charge of cultivation of a narcotic plant, commercial quantity, the plant being cannabis L. 

2The facts of the matter are set out in Exhibit 1, the summary of prosecution opening.  The facts are not disputed by your counsel.  I will not repeat the facts in any great detail.  Any reader of these reasons can refer to that exhibit to place the sentence in its factual context.

3Briefly stated, you were a crop sitter for a cannabis plantation at 16 Apex Street, Dandenong North.  You lived at the rear of the premises in a bungalow and cared for the plants in the house on the property site.  Because of the number of plants, 167, this qualifies as a commercial quantity. 

4As is normal in these types of cases, it was a sophisticated hydronic setup.  Keys to the house were located in the bungalow, as were numerous barrels of fertiliser. 

5You made admissions to the police, saying that your reward for caring for the plants, was free accommodation.  Because you made these admissions to the police, no forensic analysis of the premises was conducted.  Thus, I am unable to conclude that in the absence of your admission, whether you could have been prosecuted.  You said to the police you did not know the plants were cannabis, although, of course, you are pleading guilty to the charge.

6Your plea of guilty was entered after a committal, thus cannot be described as having been entered at the earliest opportunity, but it was entered prior to any trial proceedings. 

7You entered Australia on a temporarily tourist visa on 14 February 2013, expiring on 14 May 2013.  You have been here unlawfully since that time.  I am told you will be deported upon the expiry of your sentence.  I am told by your counsel, in any event, that you expected to return to Vietnam and that return was imminent in and around the time of your pleading. 

8Both counsel filed written submissions and supplemented them with oral submissions.  I have taken all those submissions into account. 

9Amongst other matters in mitigation, your counsel relied on:

(1)  Your age.  You are now 53;

(2)  You have no other criminal history; 

(3)  Your plea of guilty, although, as I remark, it does not attract the full               discount because of the time at which you entered it; 

(4)  She detailed your personal circumstances, which are set out in her               written submissions.  Briefly, you were born in North Central    Vietnam.  You are married and have two sons, one of whom is in                  Australia and is at university.  Your other son is studying at university                    in Vietnam.  You worked for 20 years as a bookkeeper in a bank in                   Vietnam, until you were involved in a car accident ten years ago.                     You were seriously injured and medical details of that were tendered.                 Your counsel tells me that you, as a result at this stage, still suffer   from headaches, but you are receiving appropriate medication whilst   you are in custody.  You decided to come to Australia to support your          son and to earn money to send it home to the family.  Your husband               remained in Vietnam.  You worked here as a fruit picker.  Your   daughter-in-law came to court and I believe that your son was in and                   around the court; 

(5)  You are to be deported; 

(6)  Your time you have spent in gaol has been difficult for you, because               it is your first time and because of your age.  You also have the    disadvantage of not speaking English, and

(7)  You co-operated to the police in the way that I've described and made          admissions. 

Sentencing reasons

10The basis purposes for which a court may impose a sentence are punishment; general deterrence, both specific and general rehabilitation; denunciation; and protection of the community. 

11In sentencing you I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it and your personal circumstances.  I am required to balance interests of the community in denouncing criminal conduct, with the interests of the community to seek to ensure, as far as possible, offenders are rehabilitated into society.  I expressed my denunciation on your behaviour.

12I have taken into account, in particular:

(1)  Your age;

(2)  You have no other criminal history; 

(3)  Your plea of guilty, in the way that I have described;

(4)  Your personal circumstances; 

(5)  What I categorise as a low level of offending, because of the quantity                  involved and the categorisation of your role as a crop sitter; and   

(6)  I have considered the issue of specific deterrence and rehabilitation.  As      you will be returning to Vietnam, I am not in a position to make any               comment or finding about that, but I hope that because of your age and         the time that you'll have to spend in gaol, that that will be sufficient to                  make sure you do not re-offend.  It is highly unlikely that you will be                    allowed to come back to Australia. 

13Taking all those matters into account, I sentence you to a term of imprisonment of two years and six months, with a non-parole period of one year and six months. 

14I declare that the time of 200 days you have already served, to be reckoned as part of the term of imprisonment I just imposed.

15I declare, pursuant to s.6AAA of the Sentencing Act, that if you had pleaded not guilty and went to trial and you were convicted, you would have received
a sentence in the order of five years, with a non-parole period of three. 

16Are there any other orders I need to make? 

17MS PILLAI:  Just in terms of the pre-sentence detention, Your Honour appeared to say ‑ ‑ ‑

18HIS HONOUR:  202?

19MS PILLAI:  Or seemed to say 200, it's 202, not including today. 

20HIS HONOUR:  That is what I said, 202.

21MS PILLAI:  I thought I heard 200, but ‑ ‑ ‑

22HIS HONOUR:  Well I meant to say 202. 

23MS PILLAI:  If Your Honour pleases.  No other orders, Your Honour. 

24HIS HONOUR:  Any other matters, Ms Beech?

25MS BEECH:  No, Your Honour. 

26HIS HONOUR:  All right.  Would you take Ms Le out, thank you. 

27Adjourn the court until ten o'clock please.    

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