Director of Public Prosecutions v Le

[2025] VCC 373

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-24-02001
Indictment No. Q11447587

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUAN LE

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2025
DATE OF SENTENCE:	28 March 2025
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2025] VCC 373

REASONS FOR SENTENCE

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Catchwords:  Cultivate commercial quantity of cannabis - Large hydroponic set up in factory - 423 plants at various stages of growth, weight 307KG - Early plea – Remorse - 34 years of age at sentence - No prior history.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Stokes (at Plea) Ms J. Quinn (at Sentence)	Office of Public Prosecutions
For the Accused	Mr A. Dickenson (at Plea) Ms G. Nota (at Sentence)	Georgianni & Liang

HIS HONOUR:

1Quan Le, you pleaded guilty before me on Wednesday of this week to one charge of cultivation of a commercial quantity of cannabis.  

2You are 34 years of age and have no criminal history.

3You have been in custody since your arrest on 25 June 2024.

4The offence has a 25-year maximum prison term. It is an inherently serious offence and plainly, this is no minor example of it.

Facts

5The summary of prosecution opening for the plea dated 7 March 2025 and marked as Exhibit A sets out the agreed facts in this case and so there is no need for me to restate all those facts in my reasons for sentence.

6I will sentence pursuant to that agreed summary. The summary references materials within the depositions including the lease agreement and the botanist's certificate. There are a large number of photographs within the depositions as well, but no-one suggested they needed to be marked as exhibits. I have regard to them as I said I would. They show the crop and the set up.

7The lease was entered and signed by someone in October 2023. Who that someone is, remains unknown.

8That lease is at p296 of the materials. It was a five-year lease with provision for a percentage rent increase. It specified a $37,000 security deposit and annual rental of $135,000. So, $11,250 per calendar month. I do not know who entered the lease or your relationship to them, if any, but this sort of outlay when taken in combination with the cost of setting up this sort of establishment spells out something that is obvious enough to any Judge who deals with any cultivation at this level; that is, the large potential profits that can be generated by this style of activity. This was a virtual cannabis factory, and you are the only person being dealt with for the crop.

9By way of very brief summary; on 25 January 2024, the police who had received some information from CitiPower attended those factory premises at 54 Industrial Avenue, Hoppers Crossing. They entered with a warrant, and they found you inside with a pair of clippers in one hand and a phone in the other.

10You were arrested.

11The summary sets out what was found within, with six rooms set up in an elaborately constructed hydroponic set-up. There were a large number of cannabis plants of varying levels of maturity and all of the equipment required to conduct this style of venture.  

12An electrician made the premises safe by removing the electrical bypasses.

13You were searched and you had $1,555 cash in your wallet.

14Paragraph 10 spells out the details of the crop as well as some of the other objects that were seized. There is a certificate of botanist in the materials at p260.

15There were 423 plants weighing 307 kilograms.

16Your phone was examined with the results set out at paragraph 17. Though the cultivation charge is laid in relation to the crop on the day of your arrest, and that is what I am sentencing you in relation to, plainly enough your conduct was not so isolated when regard is had to the photos, the dates of those photos and the phone location data. Your counsel conceded that fact.

17Police have been unable to verify the existence of those named on the lease.

18The chronology is set out in the summary. You pleaded guilty at the earliest opportunity.

19So much then for my brief summary of the summary.

20I will sentence pursuant to the more detailed factual statement, which was marked as Exhibit A on the plea, as well as the photographs that I have mentioned.

Plea in Mitigation

21Your counsel, Mr Dickenson, relied upon an outline of plea submissions that had been authored by your solicitor Ms Liang dated 20 March 2025.

22He relied upon two certificates of course completion.

23He informed the court as to your personal and family background. He also told me of the circumstances in which you came to Australia and how you came to be involved in this venture, with the assertion made on your behalf that financial stress was the driving force.

24He made some submissions as to the absence of any criminal history and as to your prospects of rehabilitation. He made some submissions also as to the relative objective gravity of your offending as well as the sentencing purposes in play in this case.

25He relied upon the following matters in mitigation:

·        Your early guilty plea;

·        Some co-operation;

·        The presence of some remorse;

·        An increased custodial burden arising from some aspects of isolation arising from the language barrier, and also the distance from, and concern for, your relatives.

26He made it clear that he was not in any way relying upon any of the Guden principles relating as they do to the mitigatory impact of deportation. He made it plain you were keen to go home to Vietnam, the sooner the better, and that you never had any expectation or plan to settle in this country.

27The charge of cultivation of a narcotic plant in a commercial quantity is what is described in the Sentencing Act as a Category 2 offence, which means that in the absence of an exception, a prison term is required, and not one in combination with a community corrections order. That is academic here.  Your counsel conceded that there were no exceptions arising.  He conceded the inevitability of a prison sentence and one of a dimension requiring the fixing of a non-parole period.

28His instructing solicitor Ms Liang had previously filed a very small selection of sentences from other Judges. They were a pretty carefully curated selection with outcomes, which seemed to me at least, not to accord with sentencing practice and with some unusual findings made along the way. One of the Judges, for instance, stated that if the Crown was not able to contradict an assertion made by defence counsel in the course of the plea as to a limited role, that he, the Judge, was accordingly obliged to sentence on that limited basis pursuant to Storey’s Case[1]. That is plainly not the law at all and yet some of Mr Dickenson’s submissions on the plea seemed to adopt that same flawed view of the law. For instance saying, as he did, that the Crown cannot prove beyond reasonable doubt that you were not in financial stress as though that led unerringly to a finding that you were in financial stress.

[1] Storey [1998] 1 VR 359

29As he was not responsible for filing those so-called comparable sentences, I asked Mr Dickenson to consider whether he wished to withdraw any reliance on those matters. He chose not to. He really should have withdrawn reliance on them.

30I have sentenced many commercial quantity cultivators in the last 15 years, including cases where your solicitor Ms Liang has actually appeared in front of me. In my sentencing remarks I spell out many of the statements made by the Court of Appeal.

31The many statements from the Court of Appeal, statements of principle as to the seriousness of this crime even when committed by 'mere crop-sitters' were not placed before me - just a handful of sentences of single Judges. It was a worthless exercise.  

32I am well familiar with current sentencing practice. I will come back and discuss this later, but the fact that other judges have passed those sentences in those handful of other cases says nothing at all about the sentence I must pass in this case. Those few cases say nothing as to sentencing practice. They do not somehow remove the effect of hundreds of other cases which do establish a higher current sentencing practice.

Prosecution

33The prosecution made some oral submissions arguing that you were obviously more than just a crop-sitter in the true sense of those words. They argued that there was no material before me of financial stress. They were not asserting that you were the Principal but argued that some of the material, including the photographs recovered from your phone, made it clear you had an earlier connection to the property prior to the crop being established and then during the cultivation at those premises. They could not prove beyond reasonable doubt that you set up the crop. They submitted it was unclear what financial reward you expected to receive. They said there was no evidentiary foundation for the instructions that you placed before the court as to how and why you became engaged. The Crown argued that it was difficult to place you into any hierarchy as there was no other information as to any other person's role and no evidentiary material as to your own. However, what was clear, they argued, was that you were not a simple crop sitter. The Crown submitted that this example fell at the mid-range. They argued that a head sentence and one requiring the fixing of a non-parole period was required here but so much had been readily conceded by your own counsel, and that was despite three of those sentences placed before me involving a Judge proceeding by way of straight sentence.

Background

34Before dealing with the various submissions which were made, I will turn now to your background. As I have no reason to doubt what I have been told about your personal background, I see no need to set it all out. I will act on that background placed before me. You were born in Hanoi back in June 1990. You are 34 years of age. You were raised by both parents. You were one of two children. You have an older brother.  Your father was a farmer. Your parents are both still alive. I was told that your mother is not well with diabetes and some heart issues, but they are not recent conditions; they existed prior to your leaving Vietnam. That may be so, but I am sure they are matters that concern you.  

35You completed Year 12 and you were in the army for 18 months. Then you worked as a taxi driver and chauffeur. You are a married man with a three-year-old daughter. Your family are in Vietnam. Your wife works in administration for a logistics company. You came to Australia in May 2023 on a tourist visa. I was told you applied through an immigration agent or broker for a protection visa so that you could work. Mr Dickenson told me that you were coming to Australia to work, and I was told of some scam which had caused some financial issues for your parents and the need for them to mortgage their home.  There is no material before me as to that and I do not know if it is true or not.

36You worked in a variety of unskilled labouring roles including as a handyman.

37You have no health issues or any mental health or personality issues which could have in any way reduced your moral culpability for this offending.

38You have no prior criminal history and of course I take that into account. You fall to be sentenced at the age of 34 as a first offender.

39You are working as a billet in prison and doing some courses and programs as Exhibit 2 makes clear.  You have had phone and video contact with your family but no personal visits at all. That is not easy, and I do not ignore that fact.

Instructions as to role

40Your counsel told me of your limited role in this venture and the way in which you came to be recruited and your rate of pay - see paragraph 13. There was no interview with the police and no account provided to an expert, just your completely untested instructions to Ms Liang who authored the written outline, and to Mr Dickenson who then asserted these matters on the plea. I queried your counsel as to what, if any, evidence there was of any of those assertions and the answer was 'none'. That was undoubtedly true. At one point I asked Mr Dickenson why the court would act on those instructions and my note was that he said:  'you won’t'. Perhaps my note was not accurate - that is not critical. What was clear is I was putting him on notice as to my reservations about your instructions. Plainly some of the agreed material, including the photographs taken by your phone, raised some issues as to your level of involvement in this undertaking. Those matters are spelt out in paragraph 14 of the agreed opening, I will not set them all out. There were photos taken on 24 October 2023 of three different Grow Aid products, so photos taken two weeks after the lease was entered on 8 October. On 24 November 2023 your phone took three photographs showing the factory premises prior to any crop being established. There were also video recordings of the property prior to the crop being established. There were multiple photos taken of the large crop and hydroponic set up at the premises, photographs taken between December 2023 and June 2024. There were photographs of dried cannabis and cannabis in drying racks.  There were photographs taken of large amounts of Australian currency, photographs taken on 1 January 2024 and 25 April 2024.

41Your counsel sensibly was not suggesting that you had only been at the premises on the day of arrest.

42At the time of the offending, he told me that you were living in rental premises in Burnside Heights and driving each day out to the factory in Hoppers Crossing in a car that you had rented. That was not too suggestive of financial stress.

43I had these various matters referred to in paragraphs 14 to 16 of the opening and I enquired of your counsel as to what they meant. How was it that you had taken those videos and photographs of the factory prior to it being set up for cultivation, and then when it was under cultivation?  How and why had you taken photographs of the crop and drying cannabis and large amounts of cash - what was the setting? He said it was not your money but provided no further explanation of that money or any of those things which seemingly spelt out your connection to this undertaking.  I asked how was it that you were connected to the man named Long, what connection that he had to the factory, when you met and how you were paid? It was your counsel who had placed the assertion before the court as to how and why you became involved and he had mentioned that man Long - see outline of submissions, paragraph 13. Yet in relation to these and many other questions dealing with what was being put forward as matters of mitigation, Mr Dickenson said either 'I’m not providing an account of that' or even at one point saying to the court 'these are remarkably interesting questions, which I do not intend to answer' or words to that effect. One person might have shed light on these matters, and it was you. He declined to even provide your instructions and yet maintained to some extent that you were towards the bottom of the hierarchy and did not stand to make any significant financial gain and that you did not set up the property. He said that the Crown could not prove beyond reasonable doubt that you were not in financial stress. He seemingly then subscribed to the view that if an asserted mitigatory matter could not be disproved beyond reasonable doubt by the Crown, that the mitigatory assertion was therefore established. That is not the law, as I tried to explain to him.

44The evidence was before me in the agreed summary, and it was his decision not to enlighten the court on any of these topics or to call evidence in relation to the mitigatory matters he did press. He said your role is clearly larger than crop sitting but it was not for him to allege, that the prosecution make the allegation and the defence accept those allegations. Well so much is true in terms of the elements of the offence, you admit those by your plea. The Crown did not accept a number of the mitigatory assertions. It is not for them to disprove matters in mitigation.

45The plea was, therefore, highly unusual. There is no obligation for your instructions to be placed before me, but it seems reasonable that if mitigatory matters are raised, I might be provided with a bit more detail and a better understanding of the circumstances said to give rise to your descent into crime, especially where there are matters in the agreed summary that count against the assertions that are being made. As the Court of Appeal said in a case of Dao and Tran v R:

'An offender is entitled to say nothing, and if it be the case, to rely on the fact of there being no evidence of aggravating factors. But if an offender makes that choice and there is not otherwise acceptable evidence of mitigating circumstances, the judge is bound to proceed on the basis that there are not mitigating factors of which evidence might be given’. [2]

[2] Dao v The Queen [2014] VSCA 93 at [17]

46As a matter of fairness then, I put your counsel on notice of the serious reservations that I had as to your assertions so that he could consider whether to make further submissions, provide more detail of your instructions, or even go into evidence. He has chosen not to place evidence before me from you, or even in many instances, even place your instructions before the court - so be it. I will not act on your account.

47That is not to say I swing it around to a point of being satisfied beyond reasonable doubt of, for instance, your being a Principal or your being the person who set up the crop. That is not the way it works. It is just that your true role is actually most murky and plainly is higher than the 'usual' role of a crop-sitter. Mr Dickenson conceded that you had a more significant association with the crop than just tending it.

Guilty

48I turn then to the matters that have been raised in mitigation on your behalf.  Firstly, your guilty plea.  I will treat it as a plea made at the very earliest opportunity.

49You have taken this early responsibility for your offending by pleading guilty.  

50As a result of your plea, the time and cost and the effort of a contested committal hearing in the Magistrates Court, or a trial up in this court, has been avoided.  No witnesses have been required to give evidence.  You have facilitated the course of justice. There was also some co-operation with the police. You gave up the PIN number of your phone.

51So, I take these various matters into account in mitigation.

Remorse

52As to remorse, well I do have your early guilty plea, and usually, not always, a guilty plea may imply some remorse. I will treat it in that manner here. Beyond that though there is no remorse on display as was conceded by your counsel.  I am prepared to find the existence of some remorse in this case, and I take that into account in your favour.

Increased burden

53There is very little in the increased prison burden argument. You have chosen to commit a serious offence in a foreign land. An inescapable consequence was that if you were caught, you would be imprisoned in this land and then distant from your loved ones and held in a prison setting with an unfamiliar language. At least in this day and age there are 'virtual visits' which was one of the few benefits emerging from COVID. I accept it would be better for you to have in-person visits and the absence of visitors is not easy for you. That is not a large matter in my task. As to any suggestion of the language barrier isolating you, for the same reason, that cannot hold sway. There are, by the way, some who are completely isolated as a result of not speaking English, and that is because they speak a very exotic language. That is not your position at all. There are enough of your countryman in prison, many regrettably undergoing sentence for this very same offence. At least you can communicate with some other prisoners, but I do accept it would be more difficult to serve a prison term owing to the language issues. I have mentioned already your mother's predicament and your concern about that. I take that into account as well. None of these matters are deserving of any large recognition by way of sentence reduction.

Rehabilitation

54I turn then to your prospects of rehabilitation.

55Of course, you have no prior criminal history, and I do not ignore that fact.  You are 34 years of age and have otherwise been of good behaviour, and you now call in aid your past good character. You still have family support.

56You have though made a calculated decision to offend, and seriously so. This was not spontaneous or minor offending.  You are not some youthful offender with reduced culpability. You were not some silly teenager, nor someone with some dire financial need. You were a day shy of 34 years of age and could not have entertained any doubt at all as to the seriousness of this offending.  

57You took a calculated risk, as so many do. You did this out of the hope of financial gain. No doubt the time you have spent on remand in custody already and the sentence which I must pass will have a decent role in deterring you into the future.

58Ultimately, I am prepared to accept there are favourable prospects of rehabilitation in this case.  They will no doubt take shape in another country upon your ultimate deportation.

General remarks

59I turn then to make some general remarks about the nature of your offending.  I have to consider the nature and the gravity of the offending.  

60I have been sitting as a judge now for 15 years. I have seen a steady flow of commercial quantity cultivators brought before this court. I have sentenced about 30 myself and I am only one of many Judges sitting in crime. Not a single day would pass without this offence being before this court.

61We see many people who have, or at least claim to have, a modest or even slight connection to a crop and no real stake in the success of the crop or the profits which might arise from the successful cultivation.  People who claim they are paid a pittance, or even nothing, to do the menial but necessary tasks. People who no doubt provide something of a buffer for the Principals who are often enough removed from the day-to-day acts required to bring the crop to maturity.  Crop-sitters, or people claiming to be crop-sitters, very often do sit in the dock of the court.  It is my experience that Principals rarely sit in the dock.

62Well, I have your account of your role provided to your counsel. I am not prepared on balance to accept your instructions. There is no police interview and there is material suggesting your link to this undertaking ran deeper than was raised on the plea. It is difficult for me to know precisely where you fitted in. You were obviously trusted with a very large crop. You were trusted with the keys to the factory. You were there on your own.  You were obviously in this for money. I do not accept on the balance of probabilities your instructions as to financial stress or your assertion of the amount that you were paid or were to be paid.  

63Every person engaged in this style of crime is doing it for reward of some description or other. You obviously were.  You made a choice, that is what it was, and the choice was to commit what you must have known was a serious crime indeed.  Where financial need is raised, as it was here, it is done to explain the decision to offend, to reduce the level of culpability or at the very least to demonstrate the absence of greed. It is raised by way of mitigation. There is no satisfactory material before me as to any financial need at all. You had the capacity to legally work, as I understand the submissions made by your counsel, as you were on a bridging visa. You must have purchased a ticket to come to Australia.  You had rental premises and had rented a car. You had $1,555 in cash on this day and had taken photographs of large amounts of currency in January and April. No material was placed before me as to the financial plight of your parents, just the assertion.  No material was placed before me as to the balance in your CommBank account. I had here the bare assertion of financial stress.

64I am not satisfied on the balance of probabilities that financial need drove this offending at all.

65This was obvious a highly valuable business.

66You were part of it and you must have known how serious the crime was. It was not being put forward that you were at the very lowest level, and plainly you were not. Where you fit into the hierarchy, I just cannot be certain. You have decided through your counsel to remain silent on these matters, as was your right. You provide no detail at all of the hierarchy.

67There are only so many ways that a court can describe these crops and the principles of sentencing which apply to them.  As I have said in so many other cases, I say now in your case; this crop and its ultimate success has been interrupted by the execution of the warrant by the police on this day. 

68I am satisfied beyond reasonable doubt that you knew that what you were engaged in was a serious crime. This was obviously an elaborate, organised and planned criminal activity at a high level.  It was not spontaneous offending and no doubt you had ample time to weigh up the risks and the benefits. Unwisely you decided to take the risk.

69Monetary reward was central to this crime, as it always is.  I cannot know exactly what financial reward you hoped to gain here. I am not satisfied on the balance of probabilities of your account in that regard, but it must have been significant enough to have you take what you knew was obviously a very large risk.

70This crime carries a maximum term of 25 years' imprisonment, and I must pay regard to that maximum sentence.

71Sentencing always involves the balancing of a number of purposes or principles.  I have to take into account your prospects of rehabilitation.  I believe there are favourable prospect here.

72I must consider the need for specific deterrence; that is the need to deter you from committing offences in the future.  I cannot ignore that purpose, but it can be moderated here. No doubt it would be given far greater weight if you had a relevant criminal history, but you do not.

73Then there is community protection.  I must also denounce your conduct. Each of those purposes must be adequately reflected. Again though, much greater weight would be given to community protection if you had a relevant criminal history, and you do not.

74Then there is punishment. The case law in this area makes very clear that this is an offence that requires substantial punishment.[3]  That punishment must be just and proportionate.

[3]DPP v Duong [2006] VSCA 78

75Then there is general deterrence. That looms large in my task.

76I have said often enough in the past, and I will repeat now in your case; there is seemingly a never-ending stream of commercial quantity cultivators brought before this court.

77Those who may be tempted in the future to commit this sort of serious crime, as you were, must understand that there is the real risk of arrest, prosecution and the imposition of a substantial prison sentence. 

78Those who choose to engage in this activity, at whatever level, are always taking a calculated risk, as you were.  Well, future likeminded potential offenders must understand that the attractive potential financial rewards on offer come with a significant and tangible risk of detection, prosecution and then the real likelihood of the imposition of a significant, if not very significant, term of imprisonment.

79For a non-citizen engaged in the crime, it is not as simple as serving a short term measured in months and then being deported.

80The message must be sent by the courts, and it must be such as to cause future potential offenders to actually pause for thought and to reflect upon the risk, and then hopefully to reconsider their decision to offend. To do what you did not do, to refrain from committing the crime. The serious risks on offer must neutralise or even outweigh the lure of what might seem to be easy financial reward on offer in this area.

Current sentencing practice

81I pay regard to current sentencing practices, though that is not a single controlling factor. It is just one of the matters that I must have regard to.

82I have looked at the Sentencing Advisory Council online statistics.

83I have also looked at the material held at the Judicial College of Victoria Sentencing Manual, including an overview of commercial cultivation sentences dealt with in the Court of Appeal, and also at first instance in this court.

84I have read the cases provided by your counsel. I suspect I have said more than enough about them already. They have been very carefully selected indeed.  As I said on the plea when I was asking if Mr Dickenson sought to rely on those sentences, I could have selected 50 other cases with far smaller crops by plant number and by weight, and with a very low-level crop sitter role and yet with much larger sentences than those imposed by any of these Judges.  I have sentenced about 30 commercial cultivators myself in the last 15 years and yet none of my sentences are placed before me. Why not? The answer is obvious:  That the process involved some very careful cherry picking would be an understatement. It is really not to be encouraged. What about statements of principle? Where were they?

85I could work my way in these reasons through the Judicial College of Victoria summaries of cases in the Court of Appeal and also the many pages of summaries of sentences imposed in this court but why bother? I have looked at them. There are hundreds of past cases. Some of the case law in the Court of Appeal has itself surveyed the number of cases. There are literally hundreds and hundreds of them.

86The Sentencing Advisory Council data disclosed over 250 charges in the years 2018 to 2023 alone.

87The penalties imposed by some of the Judges in the cases to which I have been directed represented some pretty extraordinary outcomes. I am not sitting as some appellate Judge reviewing those cases and I do not intend to name the cases or the judges. They are listed in the materials placed before me.  I really would have preferred your counsel to have sensibly withdrawn any reliance on any of those cases. Had he done so, I would have felt no need to descend to any detail at all in my reasons.  However, Mr Dickenson has seen fit to rely on them to some extent. None of those sentences are authorities or precedents. The Judges were no doubt exercising their sentencing discretion.  One Judge described the offending as ‘a very serious example of an inherently very serious crime’ and yet imposed 15 and 18 months straight sentences. The maximum penalty is 25 years or 300 months, and the quantities were many times the commercial quantity, in fact over the large commercial quantity with 497 plants and over 300 kilograms of loose cannabis. In another case provided to me, the sentences were 10 and 15 months. These sentences represent a tiny fraction of that maximum penalty. 

88How was it that three offenders with very good or excellent prospects received such sentences and without any non-parole period being fixed - these were straight sentences. It seems likely that that was because they were to be deported. The non-parole period of a sentence of imprisonment is the minimum term a court determines that justice requires the offender must serve given all of the circumstances before being eligible for release on parole. Yet no non-parole period was fixed in some of those cases.  It seems likely that the straight sentence was a pragmatic one, driven by consideration of the issue of deportation and the lack of any real prospect of the given prisoner being able to be released on parole given their immigration status.  If that be so, the actual head sentence would have been far higher. The Judge may well have been influenced by the pragmatism of not proceeding in the usual fashion, and if that be so, has given inappropriate weight to the fact of deportation.  I can easily understand that pragmatic approach, but it cannot inform my task at all. I must ignore that issue of deportation when I come to pass an appropriate sentence in this case. It is not my task to decline to fix a non-parole period by reference to the forecast about the effect of executive policy on the service of the term imposed. If the appropriate sentence requires that I fix a non-parole period, so be it. The immigration status ought not lead to the imposition of an inadequate sentence or to a different structure of sentence. See the case of Shrestha.[4]

[4] R v Shrestha [1991] HCA 26

89In fact, adopting that sort of approach would actually distort sentencing practice, for then in a case like this, someone comes along to court and points to that ultimate outcome, but really, they ought not.

90Anyway, those other cases are replete with differences in each direction and there were some most unusual findings that were made.  I have said already that one Judge believed that if a defence assertion could not be disproved by the prosecution that the mitigatory assertion was made good pursuant to Storeys case. That judge sentenced on that basis, and so for one accused that led to sentencing for a one-to-two-hour involvement and with no money changing hands at all. He also, for whatever reason, gave weight to the Guden[5] line of authority in relation to the deportation of someone whose entire very brief time in Australia was taken up with cultivation and who had no intent or expectation of actually settling here at all. The two limbs of Guden were applied to that sentencing task.  

[5]Guden v The Queen [2010] VSCA 196

91Anyway, he was free to exercise his sentencing discretion as he saw fit. So too the other judges in those decisions. What they have done does not in any way impact upon my task.

92I will sentence you for your actual crime and I will apply the law as it exists to my task.  So those other sentences to which I have been referred say nothing at all about the sentence required in this case.

93Current sentencing practice can be seen from a survey of the very many other cases where sentences dwarf those imposed in those cases to which I was referred.

94The online statistics for the 256 charges dealt with from July 2018 to June 2023 go in that same direction, and so too the many authoritative statements from the Court of Appeal as to the sorts of sentences that even a ‘crop-sitter’ might expect to receive.  The cases to which I have been referred are meaningless when viewed against the statements of principle and the hundreds of cases suggesting that greater sentences are called for and the many reasons why that is so. 

95There have been so many cases over the years querying the adequacy of sentencing practices for this crime. The case of Nguyen from 2016 sets out a number of those cases.[6] That was a case that spoke of the inadequacy of sentencing practices for the crime when committed at certain levels.  The Court of Appeal in that decision was critical of the fact that current sentencing practices had seemingly remained the same, notwithstanding the many occasions that it had been called into question in the Court of Appeal. It is a case that contains some statements generally as to the seriousness of the crime of commercial quantity cultivation of cannabis and the weight that must be given to punishment and to general deterrence.

[6]Nguyen v The Queen [2016] VSCA 198 at [139] to [142]

96Now that case was not focusing on low-level players, it was more directed at what were described as 'medium level' cultivators.  The court spoke of the need for an increase in sentence, at least in relation to mid-level players, so that the range of sentences were uplifted and substantially expanded.  The Court of Appeal said that there had been a merging of the sentences and insufficient distinctions drawn between serious cases and less serious cases.

97They said the following:

'Despite the number of occasions this court has commented upon the low level of current sentencing practice for this offence, current sentencing practice has remained the same. The sentencing range is not only low but very narrow. The ceiling for the highest category has depressed sentences in the mid category so that the latter merges with offending in the lowest category. These sentencing norms have long ago replaced the maximum penalty as the guide to the seriousness of the offence. As a result, offenders who are principals in such offending are able to draw upon standards of sentencing that are entirely inappropriate to their degree of criminality.…'

98They went on to say:

'The current sentencing regime has persisted for far too long, it has wrongly informed community thinking and left misconceptions unaltered in some parts of the community about the seriousness of such conduct.'

99These were statements made in 2016. Nothing much has changed.

100I move forward some five years to another case of Nguyen [2021] VSCA 211 where the Court of Appeal said the following:

'Thirdly, it is clear that despite repeated indications from this court that sentences for this offence needed to increase, sentencing practice has remained essentially unchanged.  Concern was first expressed about the state of sentencing for commercial quantity cultivation as long ago as 2006 in The Director of Public Prosecutions v Duong, [2006] VSCA 78, [17]–[19] when the Director called for increased sentences given what was said to be the increased prevalence of offending of this kind.  In 2010, in Nguyen v The Queen, [2010] VSCA 127 the court (Maxwell P with whom Buchanan JA agreed) questioned the adequacy of current sentencing practice for the offence in the light of the maximum penalty of 25 years’ imprisonment, stating that this was 'a matter of the first importance'.[7]

[7] Nguyen v The Queen [2021] VSCA 211 at [44]

101The Court of Appeal concluded in that case as follows:

'The present case serves only to highlight the scale of the problem with sentencing practices, and the urgency of the need for change.  It must be recalled that the quantity which the appellant cultivated actually exceeded the large commercial quantity threshold.  If a charge of large commercial quantity cultivation could have been proved, the applicable maximum would have been life imprisonment.

As it was, the appellant fell to be sentenced at the highest end of the quantitative scale for commercial quantity trafficking, for which the maximum is 25 years’ imprisonment.  It could hardly be thought that the legislature contemplated a sentence of five and a half years' imprisonment as being appropriate for such offending, especially given the appellant’s significant role, the motive of profit and the scale and sophistication of the operation.

As with the quantity-based trafficking offences, the legislature has deliberately constructed a hierarchy of cultivation offences.  What has been said by this court in a line of trafficking cases, starting with Gregory about the need for appropriate relativities between sentences for offences of different levels of seriousness, applies with equal force for the cultivation offences.  Prosecutors need to ensure that sentencing judges have the relevant decisions drawn to their attention, and the Director should be astute to bring appeals if inadequate sentencing persists.'[8]

[8] Ibid [46] to [48]

102Those words were uttered back in 2021. The statistics did not suggest to the Court of Appeal that there had been any real action in this area despite all the many statements issued over the years.

103The Court of Appeal has previously spoken about the danger of applying adjectives or labels in an endeavour to describe a person's role.  Those sorts of things can actually obscure a person's conduct.  Focusing on the actions and the conduct is what is important, not the label that might be applied to describe it.  The Court of Appeal said in yet another case of Nguyen:

'A sentencing judge is required to sentence an offender by reference to all of the facts of the case (including all of those able to be gleaned about the offender's role and involvement) and not by reference to whether the offender can be given some particular appellation.'[9]

[9] Nguyen v The Queen [2019] VSCA 134 at paragraph [59]

104You were committing an unmistakably serious crime, and you were doing it for money. Your culpability does not fall at the lowest of levels. Your counsel suggested the offending was in the lower mid-range of seriousness - see paragraph 14 of the outline.  The crown argued before me that it fell at mid-range.

105I have mentioned the sentencing statistics. Statistics have inherent limitations.  Statistical material will never identify the range of matters of aggravation and mitigation in a given case. In this context they will not even describe the quantity of the crop or the weight. It is no part of my job to sentence as per the median or the average sentences disclosed, they are just statistical terms, and they pay no regard to any individual features either in mitigation or aggravation.  Nor is any other case a precedent, though the cases that were filed were referred to as authorities - they are no such thing.  There is not even any such thing as one correct sentence. There is a range of sentences available to a court.

106In the 2019 decision of Nguyen the sentence of three years and eight months was confirmed in the Court of Appeal with the bench comprising Priest JA and Beach JA referring to sentences imposed in yet another case and cases referred to in that other judgement (Nguyen [2018] VSCA 322) showing that sentences in that region are entirely unexceptional, even for crop sitters[10] - see paragraph 65 of that decision.

[10] Ibid at [65]

107This is a quantitative based regime.  Weight and plant number, whilst not the only matters of importance, will always be of real importance.  Often, they are the only things distinguishing individual cases.

108Commercial quantity for cannabis is 25 kilograms or above, or a hundred plants or above.  It can therefore be achieved by a hundred of the tiniest imaginable seedlings or plants weighing a few hundred grams and in an outdoor unsophisticated setting with little prospect of success and with none of the trappings of commerciality or profit for anyone down the track.

109Well, you were cultivating 423 plants weighing in at around 307 kilograms.  It was a cannabis factory, and plainly it was a significant and commercial venture. In terms of the amount cultivated, you plainly are at the very top end in terms of commercial quantity. After all, the large commercial quantity threshold by weight is 250 kilograms.  As a matter of fact, then, you were more than 50 kilograms over that level, but of course I must apply the lower maximum penalty for that is what you fall to be sentenced in relation to. By plant number you also are very comfortably above the commercial quantity threshold. Then there is the nature of the setup which speaks only of commerciality and profit. This was a highly sophisticated and unmistakably serious criminal setup with a very large and highly valuable crop under cultivation. That would be blindingly obvious even if you had set foot in that factory that day for the very first time, which of course is not the setting at all.

110This was serious offending, and it is miles removed from the lowest levels.  I do not sentence you as a Principal or as the person who set up the crop. One can always imagine or construct more serious example of an offence. For instance, there may be a Principal player engaged with many premises and with many staff and so with a criminal structure and a long duration of cultivation. That is not what I am dealing with at all.  I am, however, undoubtedly dealing with serious criminal conduct committed by someone who has no reduction in culpability at all. This cultivation falls comfortably at the mid-range of offence seriousness in my view.

111Very simply, your role was a critical one or you would not have been engaged to perform it.  Without people prepared to assist in this illegal activity, the crops would not thrive; they would not exist. Without people like you, the Principals, cannot distance themselves from the day-to-day acts of cultivating the crop, the risky acts which actually might lead to their downfall. They are not insulated from the risk in the way that they are when people such as you are engaged. Your role was plainly vital to the success of this crop and the obtaining by the Principals of large profit with minimal or reduced risk to them. The buffering from the detection of the organisers or principals is an additional factor bearing upon the need for general deterrence. The Sentencing Advisory Council report from way back in March 2015 (Major Drug Offences Current Sentencing Practices) noted that there is a particular incentive for this kind of business structure where the statutory offence categories and the relevant maximum penalties are based on the quantity of narcotic plants cultivated. The Court of Appeal referred to that issue in the case of Nguyen from June 2017.[11]

[11] Quy Nguyen v R  [2017] VSCA 127

112I am not sentencing in relation to multiple charges, so I have no need to consider the extent of cumulation between sentences and totality in that exercise. I have a single charge.  Nonetheless, I have engaged in a last look at the sentence in an endeavour to avoid a sentence that might be crushing upon you and to ensure that the effect of this single sentence is consistent with your criminality.  Regrettably though, you have, in committing this instance of commercial quantity cultivation, committed a serious offence.

113I am sorry to have taken so long to get to this point, I will now sentence you.

Disposal order

114Firstly, there is a disposal order that is sought in this case. There is no issue taken by Mr Dickenson about the making of this order, it relates to forfeiture of many of the items connected with the crop. I am satisfied that the provisions of s78 of the Confiscation Act are satisfied here and I make that order. I direct that the property referred to in the schedule be forfeited to the State and disposed of. I have signed that order and pronounced it in abbreviated form.

Sentence

115On the charge of cultivation of a commercial quantity of cannabis, I convict and sentence you to four and a half years' imprisonment.

Non-parole period

116I must fix a non-parole period. Your immigration status is not a consideration in that task.

117I am not free to consider whether or not you are likely to be released on parole.  I am in fact prohibited from taking that into account.

118I fix a period of three years during which you will not be eligible for release on parole.

Section 18 pre-sentence detention

119You have already served 262 days of this sentence by way of pre-sentence detention and that s18 declaration is to be entered into the records of the court.

Section 6AAA

120I have taken into account your guilty plea.  If you had pleaded not guilty and been found guilty of this offence by a jury, I would have convicted and sentenced you to six years' imprisonment.  I would have fixed a non-parole period of four and a half years.  That statement, likewise, is to be entered into the records of the court.

121Just have a seat please.

122Are there any other matters I need to attend to at all, or not.

123MS QUINN:  No, Your Honour. 

124MS NOTA:  No, Your Honour.

125HIS HONOUR:  Presumably you will have a conference of some description with your client today, Ms Nota, or some arrangements to confer with him in due course.

126MS NOTA:  Arrangements will be made, Your Honour.

127HIS HONOUR:  Will you go down and see him downstairs at all today, or not.

128MS NOTA:  I think a video conference will be best with Ms Liang who has primary carriage - - - 

129HIS HONOUR:  Yes, of course, all right.  Mr Le - remain seated - but you've heard that discussion so no doubt there will be a video conference arranged between Ms Liang and you, and maybe even Mr Dickenson, I don't know, but your legal team won't have forgotten you, they will be in touch with you to discuss what's happened here today, the sentence that's been imposed, and your rights in relation to the sentence that I have imposed.  So, as I say, they'll be in touch with you and organise some form of video link conference with you, all right?  Nothing else then from anyone?

130MS NOTA:  Nothing further, Your Honour.

131HIS HONOUR:  I will revise those reasons.  I will get them back from VGRS. Whenever I get them back my practise is to revise generally on the day that I get them.  So as soon as I have them back, I will revise those remarks and make them available to the parties.  Thanks very much for your efforts, Mr Interpreter, and that completes the matter.  So, Mr Le can be removed now then, thank you.

13210.30 on Monday then please.  I will sign those orders in chambers.

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