Director of Public Prosecutions v Le
[2023] VCC 2249
•9 December 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT ballarat
CRIMINAL DIVISION
CR-22-01902
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUNH LE |
---
JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 28 November 2022 | |
DATE OF SENTENCE: | 9 December 2022 | |
CASE MAY BE CITED AS: | DPP v Le | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2249 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law. Sentence upon plea of guilty.
Catchwords: Cultivation of a large commercial quantity of a narcotic plant - No prior
criminal history - lower role in the criminal enterprise - evidence of remorse
- good prospects of rehabilitation - protection visa and prospects of
deportation.
Legislation Cited: Sentencing Act 1991.
Cases Cited: DPP v Lee [2020] VCC 1055; Vu [2018] VCC 260; Nguyen v The Queen
[2020] VSCA 76; Nguyen v The Queen [2021] VSCA 211.
Sentence: Total effective sentence of 5 years imprisonment with a non-parole period
of 3 years and 6 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Pezzimenti | Mr R. Tudehope |
| For the Accused | Mr C. Nikakis |
HIS HONOUR:
1 Hunh Van LE, you have pleaded guilty to cultivation of a large commercial quantity of a narcotic plant between the 14th day of February 2022 and the 28th day of February 2022. The circumstances of your offending were summarised in an outline of the prosecution case, which was dated
4 November 2022 and tendered to the court, and it may be restated.
2 On 28 February 2022 police executed a search warrant at Inverleigh at a rural address with no immediate proximate neighbours, 2 acres in size. A large timber fence surrounds the property, with a large metal gate secured by a lock. A shipping container on the property had been converted into a liveable space of two bedrooms, kitchen, and bathroom. Another was used as a storage facility. A large greenhouse was situated in the middle of the property.
3 From their arrival at the property police saw a man walk inside the perimeter, and when he noticed police he jumped firstly up on the fence and then ran to the rear, leaping over it. He was arrested. Two other officers entered the converted shipping container and found you sitting on the ground and arrested you. Sorry, I should say that we have a translator, Mr Tran, and I am sorry, I will try and slow down.
4 INTERPRETER: Thank you, Your Honour.
5 HIS HONOUR: The other man who had also been arrested, Anh Nguyen, interpreted for you in relation to the search as you speak little or no English. Police found a large number of cannabis plants growing in the greenhouse, 1328 plants at various stages, three bags of dried cannabis, and accoutrements of cultivation such as fertiliser, gloves, and irrigation system, and evidence of a systematic and relatively sophisticated hydroponic set up, as well as some personal items.
6 The material pooled in the three bags had a total weight of 184.1 grams. The total weight of the cannabis from the plants located was 579.3 kilograms. Forensic examination of the two gloves found in one of the greenhouse areas tested for a DNA profile, and was found to be consistent with you as the likely source.
7 You were interviewed with the assistance of an interpreter. You told the police that you had moved to the Inverleigh property a few weeks ago to 'work with plants', which you knew were cannabis plants. You said you were told to work there until April from the beginning of February in effect, and that you would be paid $100 per day for that period of work.
8 During that period you said you had not been paid yet but food and accommodation would be provided to you and to another man, the other man arrested on the day. When asked who it was that had employed you, you named the one man named Binh. As to your role in relation to the cultivation you stated that it was to 'start the motor or the engine, to start the generator and then turn the pump on'. You had been told to pump the water into the pots to prevent plants from drying.
9 You were remanded, and have accumulated 284 days, excluding today, of pre-sentence detention. Cultivation of a narcotic plant in a large commercial quantity is a serious criminal offence which carries a penalty of life imprisonment as a maximum. The imposition of a prison sentence is required by the terms of s5(2)G of the Sentencing Act and upon conviction the court will declare you to be a serious drug offender pursuant to s89DI of the same Act.
10 The cultivation of a large commercial quantity of cannabis is a serious offence not only because of its quantity, but cannabis is a harmful drug to users and to the community at large, and the community looks to the court to emphasise deterrence, denunciation, and community protection as it deals with the relative gravity of the particular offence.
11 Such as an offence as yours is a substantial social evil because of the harm I have referred to, and the relatively large quantity and the general harm that cannabis does, and these are relevant considerations which require appropriate and just punishment.
12 In assessing the objective gravity of the offence and your culpability, I take these factors into account. The size and sophistication of the operation are evident. This was a well set up cultivation apt to produce a significant amount of cannabis. It was in a protected, remote location to which you had been sent to perform crop sitter duties and beyond in terms of taking care of the menial tasks required to promote the health of the plants.
13 Your own financial gain, or at least belief as to that, was relatively low but still amounting to thousands of dollars, although at least on your say-so you had not been paid. You were receiving food and board for your presence and work. Such participation may be low in the hierarchy of responsibility for the cultivation, however it is a role that is indispensable to the prospects and success of the cultivation.
14 It is often difficult to determine an offender's precise role in the enterprise, and descriptors like crop sitter may perhaps be too vague to adequately describe the totality of the responsibility assigned. In this case the fact that you had moved into the premises where the crop was grown would put you in a position of trust. However, this did not extend to evidence of communications or other instructions which would be able to be used to infer further interest in the crop itself.
15 The prosecution during the plea candidly and fairly confirmed that there was no evidence as to your role beyond that which could be taken from your answers to police and what could be fairly gleaned from the circumstances at the site of the cultivation, and some evidence pertaining to DNA. I would consider, as was properly conceded by your defence, that your role was slightly more than a crop sitter, one which required you to perform certain important tasks for reward, from guardianship of the crop and its security.
16 In any event, relative to the seriousness of the crop quantity as a factor to be considered, your role was lowly. I accept that you had knowledge that the crop was cannabis, and that the duration of your involvement was that which is outlined in the indictment up to the date of your arrest without punishing you for any prospective period which you expected to be involved in the future.
17 You cooperated with authorities upon your arrest, provided names and answers, as well as a phone contact which was said to not have been followed up by investigation, but which was said to indicate, when coupled with your plea, an acceptance of responsibility and some evidence of remorse. You are also a person without a criminal history and your prospects of rehabilitation are probably good.
18
The sentencing regime is quantity based and so the amount of drug involved is a significant factor. A large commercial quantity of cannabis in Victoria is
250 kilograms or 1000 plants. Here the weight is well in excess of twice the large commercial quantity in the schedule to the Act as it was 579.3 kilograms, and in excess of a thousand plants, at 1328.
19 This of course is only one factor affecting the sentence and many of the factors which go to the assessment of the offence's gravity mentioned are also relevant to your criminality. It is, however, clear that irrespective of the relatively low amount asserted by you, it is reasonable from the evidence to infer that the offending is part of a large scale business, and you had an expectation of a reward.
20 I take into account your plea of guilty. Your matter was listed in May 2022 for a two day committal in October 2022 and cross-examination was given leave, and you were remanded. Prior to the committal commencing, probably as a result of fresh representation and advice, you pleaded guilty to the charge I am dealing with, with the plea proceeding on the circuit date arraigned and assigned. I consider that it is an early plea and you will be afforded a reduction in sentence for that reason.
21 Your remand has occurred during the period of the pandemic and you will receive a reduction in recognition of what that has meant to incarceration conditions and restrictions within the prison system, with its consequential impact on opportunities for rehabilitative courses, isolation, restriction of movements, lockdowns, and presence of a threat of contagion. Further, the plea is made at a time when the pandemic has impacted negatively and significantly on the criminal justice system in delivering outcomes and so it carries a further and enhanced utilitarian benefit, and I accept the plea is accompanied by remorse.
22 I take your personal circumstances into account. These can be briefly stated. You arrived in Australia as a boat refugee in 2013 when you were 32 years old. As a person without a visa you were placed in detention in Darwin Immigration Detention facility for six months, then you were sent to another centre in Perth for a further 12 months. Thereafter, under a protection visa you came to Melbourne. To your knowledge the protection visa remains in place.
23 You told the police the offer to be employed to look after the crop came in a coffee shop in St Albans and you were then delivered to the property. You have no family or friends who have maintained any contact with you while on remand, which has enhanced, when coupled with your lack of English, your sense of isolation in reclusion.
24 It was submitted that given your status and the conviction and sentence to be imposed, that it is highly likely that your visa will be cancelled and you will be deported. I cannot speculate about this matter, but was told during the plea that you expect to be deported and in Vietnam you will go back to family there. Before this offending you maintained yourself by way of a general handyman working for cash.
25 The considerations that might follow prospects of deportation which pertain for the loss of an opportunity to settle in this country permanently, in my view, do not apply to you. Nevertheless I take the prospects of deportation as a kind of uncertainty, and a serious consequence of your offending, which I take into account. You do not have any prior criminal history, and as far as I can determine your prospects for rehabilitation, as I have said, are probably good.
26 I have considered some recent cases which by way of quantity may be seen to be comparators but which of course involve different particular circumstances, particularly as to the offender's background, such as DPP v Lee [2020] VCC 1055, and Vu [2018] VCC 260. I have also considered other decisions like Nguyen v The Queen [2020] VSCA 76, and another Nguyen v The Queen [2021] VSCA 211.
27 These cases do not really assist greatly, except in outlining the factors relevant to gravity, but very few cases deal with the quantities which confront the court here. It is, in my view, that the sentencing purpose of general deterrence, just punishment and community protection which must be given primacy to signal that potential reward will be balanced by severe punishment.
28 However I consider that your role moderates specific deterrence and your own expected reward was probably modest. However, this offence is included in the statutory categories of serious offender offences, and therefore I am to regard the protection of the community as the principal sentencing purpose pursuant to this declaration. I will enter this fact into the court's records.
29 On the charge of cultivation of a large commercial quantity of cannabis, you are convicted and sentenced to five years' imprisonment. I fix a non-parole period of three and a half years. I declare that you have served 284 days by way of pre-sentence detention. That number will be entered in the court's record.
30 I declare that you have been today sentenced as a serious drug offender. But for your plea, your sentence would have been of six and a half years, with a non-parole period of four and a half years. I will sign the appropriate disposal order.
31 MS PEZZIMENTI: As Your Honour pleases.
32 HIS HONOUR: Thank you, Mr Nikakis, for making yourself available this morning. Are there any other matters that I need to order?
33 MS PEZZIMENTI: No, Your Honour.
34 MR NIKAKIS: No, Your Honour, not to my knowledge.
35 HIS HONOUR: Thank you. I have another matter that won't proceed at least for another half an hour or so. Do you want an opportunity to speak to your client? I'm happy to just stand down.
36 MR NIKAKIS: That would helpful. Yes, please, Your Honour.
37 HIS HONOUR: Yes. That's not a problem. I will stand down.
38 MR NIKAKIS: Thank you.
- - -
0
4
0