Director of Public Prosecutions v Le

[2017] VCC 65

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01819

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN TRIEU LE

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	3 February 2017
DATE OF SENTENCE:	10 February 2017
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2017] VCC 65

REASONS FOR SENTENCE
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Subject:Plea – sentencing

Catchwords:            Cultivation of narcotic plant commercial quantity

Legislation Cited:     Sentencing Act 1991 (Vic)
  Migration Act 1958 (Cth)

Cases Cited:            R v Nguyen [2010] VSCA 127

Sentence:                 24 months' imprisonment, 15 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Wilson	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Ms L. Cao Ms W. Baraciolli	Ann Valos Criminal Law

HIS HONOUR: 

1Van Le, you have pleaded guilty to one charge of cultivation of a narcotic plant, being a commercial quantity.  Cultivation of a narcotic plant in a commercial quantity carries a maximum penalty of 25 years' imprisonment.

2You are now aged 23, having been born on 1 January 1994, and you were 22 at the time of this offending in July last year.  

3You have no prior convictions, and as I understand it, no matters are pending.

4You have lived in Australia for approximately four years on a student visa.  

5I note that enquiries with the Department of Immigration have revealed that you are currently in Australia unlawfully, your visa having been cancelled under s.116 of the Migration Act 1958 (Cth) as you did not maintain enrolment in a registered course, which was a condition of the visa. As a result, I understand you are eligible for immigration detention under s.189 of the Migration Act.

6The circumstances of your offending are as follows.

7On 20 July 2016, investigators from the Croydon Divisional Tasking Unit commenced an investigation into cannabis being grown within the residential premises in Pine Tree Close, Croydon.  

8Enquiries with a Select Solutions Meter Investigator indicated that an unusually large amount of power was being used at the premises, and that it was not being recorded due to a ‘bypass’ being installed.

9Other enquiries revealed that the property was leased to a ‘Quang Nguyen’ and the property owner was a person by the name of Judy Chen.  Further enquiries with Ms Chen revealed that Mr Nguyen was a male who provided a Victoria driver's licence, number 021125792, as proof of identification as part of the lease agreement.  

10Enquiries with VicRoads revealed that licence number 021125792 does not exist.

11Enquiries with the relevant water authority confirmed that the service accounts linked to the property were set up in the name of Hanna Liu.  Enquiries with VicRoads and the Victoria Police enforcement database were unable to find any records in that name.

12As a result of these enquiries, police obtained a search warrant for the premises in Pine Tree Close, Croydon.

13At approximately 9 pm on Monday 25 July 2016, members of the Croydon Divisional Tasking Unit observed you, Mr Le, arrive at the address in Pine Tree Close, Croydon.  Police then attended at the address and observed your car, a white Toyota Camry, reversed under the carport next to the front door. 

14At approximately 9.10 pm, police executed the search warrant.

15Police knocked on the front door, and you immediately ran to the rear of the house.  You attempted to climb out the rear window but were prevented from doing so by police who had surrounded the house.  You then ran to the front door and tried to exit, before fleeing back to the kitchen of the house and trying to escape out the rear door.  

16Police were required to force entry to the premises and immediately detected cannabis plants.  You were arrested after being located in the kitchen area of the house.

17A search of the premises located 149 mature cannabis plants in five rooms of the property.  The plants were being cultivated using an elaborate heating, lighting and irrigation system running throughout the property.  

18The interior of the house had been extensively modified, including the installation of false walls, holes in the plaster to accommodate extraction fans and also the installation of a homemade electrical bypass apparatus in a storage cupboard to prevent excessive power usage bills.  

19The cannabis plants were examined at the scene by a forensic botanist and had a total weight of 74.3 kilograms. 

20The commercial quantity for cannabis is 25 kilograms or 100 plants.

21Due to a Vietnamese interpreter not being available, you were unable to be interviewed in relation to the incident.

22The prosecution has accepted your plea of guilty on the basis that your role was that of a crop-sitter and you had no previous knowledge of the electrical bypass and modifications done to the house.  When you came to the address, the premises had already been set up.

23You were arrested on 25 July 2016 and have been in remand custody since that date.  The matter had resolved before the first committal mention on 4 October 2016; however the hearing could not proceed on that day due to the unavailability of a Vietnamese interpreter at court.

24At a further committal mention on 19 October 2016 the matter proceeded by way of straight hand-up brief with you pleading guilty to the current charge.  Accordingly, I accept that you have entered a plea of guilty at the earliest reasonable opportunity.

25I now turn to your personal circumstances.

26You were born and raised in Vietnam and came to Australia on a student visa.  Money was set aside from your father's income with the intention of financially supporting your overseas education.  Qualifications obtained abroad are considered as highly valued by employers in Vietnam.

27Your father provided approximately $25,000 for the cost of you enrolling in a business studies program.  You needed to fund your own living expenses.

28You arrived in Australia in early 2013 on a student visa.  A condition of the visa was that you maintained your enrolment in a registered course. 

29You eventually found that your living expenses generally exceeded your income and you were subsidised further by your father, then your mother out of her savings.  By the end of 2014, their assistance finished.  Your mother could no longer afford to fund you.  You discontinued your studies and commenced working on a farm in Queensland.

30Eventually you began gambling and incurred a debt with an associate you had met in Queensland.  You could not repay the debt and after intimidation, including harassment of your family in Vietnam, you agreed to repay the debt by being a crop-sitter for the marijuana plantation.

31The house had already been set up for the plantation by the time you arrived.  You had been at the house about three weeks when the police eventually raided and you were arrested.

32Cultivation of cannabis is a serious crime.  It calls for the application of principles of general deterrence and, where appropriate, specific deterrence, by way of punishment.  The legislation is predicated on the proposition that cannabis is harmful and general deterrence is of special importance.

33You decided to take your chances for the simple purpose of financial gain, so matters of specific deterrence are important.  Furthermore, this type of exploitation and the consequent willingness of people to house-sit for sophisticated cannabis plantations is not uncommon and principles of general deterrence are particularly important.

34The other matter which is of considerable importance is the maximum penalty that is prescribed for these offences.  The fact that Parliament, representing the community, has imposed a maximum penalty of 25 years' imprisonment reflects the seriousness of this type of offending.

35I have been assisted by the submissions of counsel and the references to other cases and range of sentences they have provided.  I have read the comments made by the Court of Appeal, as expressed by His Honour the President in the authority of the R v Nguyen [2010] VSCA 127, in the context of this type of offending. I am also conscious of the fact that each particular case has to be considered in the light of its own particular circumstances.

36You remain a Vietnamese citizen.  Your student visa has expired and it is most likely that you will be deported to Vietnam on your release from prison.  The likelihood that you will be deported after completing your custodial sentence is a matter irrelevant to consideration of whether a non-parole period should be fixed, but may be relevant as a factor which may bear on the impact which a sentence of imprisonment will have on you during the currency of your imprisonment and upon your release.

37The disadvantage of the likely deportation effectively, in this case, is the loss for you of the opportunity of gaining good tertiary qualifications in the English language and the shame you have brought upon your family.

38In mitigation I accept:

·     your plea of guilty and the early stage at which it was entered;

·     your lack of any prior offences;

·     the course of study in which you have engaged whilst in remand custody;

·     your relative youthfulness in a foreign country and that you were vulnerable to having been exploited by others because of your debt; and

·     your relative isolation in custody in a foreign country without the benefit of close family support.

39Mr Le, could you please now stand.

40On Charge 1, cultivation of a narcotic plant in a commercial quantity, you are convicted and sentenced to two years' imprisonment.  

41I direct that you serve a minimum period of 15 months' imprisonment before being eligible for parole.  

42Pursuant to s.18(4) of the Sentencing Act, I declare that the period of 200 days, not including today, be reckoned as time 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.

43For the purposes of 6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed is a term of imprisonment of three years with a non-parole period of two years.

44At the plea hearing, the Crown sought an order for the taking of a forensic sample.  I have that made that order today for the reasons noted on the order, namely, the seriousness of the circumstances of the offending warrants the making of the order, the order is by consent and the granting of the order is in the public interest.

45I must inform you that if at the time of the request you do not consent to taking of a mouth scraping under the supervision of a authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted.

46Do you understand that, Mr Le?

47OFFENDER:  (Through Interpreter) Yes, I do.

48HIS HONOUR:  Thank you.  At the plea hearing the Crown also sought orders for the disposal of various items seized by police at the address.  You have consented also to that order and I have made that order today as well.  You may be seated, Mr Le.

49That concludes my sentence and sentencing remarks. 

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