Director of Public Prosecutions v Le
[2022] VCC 2096
•30 November 2022
| IN THE COUNTY COURT OF VICTORIA AT Latrobe Valley CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-22-00812
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIM THI LE |
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JUDGE: | Leighfield | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 23 November 2022 | |
DATE OF SENTENCE: | 30 November 2022 | |
CASE MAY BE CITED AS: | DPP v Le | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2096 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Cultivation of a narcotic plant in an amount not less than a commercial quantity - theft of electricity - use a false document - negligently dealing with proceeds of crime – guilty plea – prospects of deportation – family hardship – category 2 offence – substantial and compelling circumstances that are exceptional and rare
Legislation Cited: Sentencing Act 1991 (Vic) s5(2H)
Cases Cited:Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105; DPP(Cth) v Gaw [2006] VSCA 51; Nguyen v R [2016] VSCA 198
Sentence: Convicted and sentenced to a term of imprisonment of 15 months with a Community Correction Order of 2 years, with 320 hours of unpaid community work
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr David Cordy | Office of Public Prosecutions |
| For the Accused | Mr Charles Nikakis | Haines and Polites |
HER HONOUR:
Introduction
1Ms Le, you have pleaded guilty to one charge of cultivation of a narcotic plant in an amount not less than a commercial quantity (charge 1), two charges of theft of electricity (charges 2 and 3), one charge of use a false document (charge 4) and one rolled-up charge of negligently dealing with proceeds of crime (charge 5).
2The maximum penalty for charge 1 is 25 years’ imprisonment and/or 3000 penalty units; for charges 2, 3 and 4 is 10 years’ imprisonment and/or 1200 penalty units; and for charge 5 is 5 years’ imprisonment and/or 600 penalty units. Additionally, cultivation of a commercial quantity of cannabis is a category 2 offence under the Sentencing Act 1991 (Vic). This means that I must impose a custodial sentence (which is not imposed in combination with a community correction order) on you for that offence unless at least one of the circumstances set out in paragraphs (a) to (e) of section 5(2H) of the Sentencing Act exists.
Circumstances of the Offending
3The full circumstances of your alleged offending, investigation and arrest are set out in a very extensive Summary of Prosecution Opening for Plea dated 2 November 2022 which was tendered as Exhibit A. In shorter compass, however, the charges against you arise from events which occurred between early April 2021 and 11 October 2021 when you were 33 years of age and in a relationship with your co-accused Tuan Ahn Nguyen. At the time of the offending you were residing with your co-accused, and your two children from previous relationships – Jokovic who was 1 year of age and Elvas who was 7 years of age.
4In the period between May 2021 and October 2021 you and your co-accused applied for seven rental properties and hired multiple rental vehicles. On 11 October 2021, when search warrants were executed at a number of the properties, a large amount of cannabis (in total 307 plants weighing some 208.93kgs), illegal electrical bypasses, quantities of cash and other items were located and seized. You were interviewed and made some admissions in respect of your involvement with certain properties, phone numbers and vehicles – however did not make any admissions to having committed the offences in question.
5In order to understand your role with respect to the five charges which you face, it is necessary for me to provide some detail as to the evidence relating to your involvement with each of the properties and some of the vehicles.
4 Furness Court, Berwick
6In April 2021, a property at 4 Furness Court in Berwick was advertised for lease for $530 per week. You and your co-accused, together with two male children and an elderly woman attended at the property for an inspection. A short time later, on 2 May 2021, you and the co-accused again attended at the property and signed a tenancy agreement with the agent. The agreement was for a 12 month lease of the property commencing on 3 May 2021. You each provided your driver’s licences to the agent as identification.
7After signing the lease agreement, and throughout the period of the offending, neighbours regularly viewed either a silver Toyota sedan or a white truck or van parked at the premises. Each of these vehicles would come and go. The Toyota sedan was a Toyota Corolla which was hired by you from Car West Rental on 5 May 2021 for a period of 4 months. This vehicle was regularly used by both you and your co-accused – a fact which you conceded in your record of interview. It was also observed, by a police member, to be at this Furness Court property on both 19 July 2021 and 17 August 2021.
8The prosecution case is that the white trucks and vans were trucks and vans hired by you and the co-accused. On 15 August 2021 you and the co-accused hired a truck from K3K Holdings. The tracking data from the truck demonstrated that between 15 August 2021 and 20 August 2021 (the date the vehicle was returned), the truck travelled on numerous occasions to and from Furness Court.
9On 4 September 2021 you and the co-accused hired a truck from Melbourne Truck Hire. The tracking data from the truck revealed that between 4 September and 8 September 2021, the truck regularly travelled to and from the property at Furness Court.
10On 23 September 2021 you and the co-accused hired a van from Melbourne Truck Hire. The tracking data from the van demonstrated that between 23 and 24 September 2021 (the day the vehicle was returned) the van travelled to and from the property at Furness Court.
11Police surveillance conducted of you and the co-accused on 20 July 2021, 3 August 2021, 10 September 2021 and 8 October 2021 also revealed that a Toyota Kluger which had been hired by your co-accused from Car West Rental on 29 August 2021 was regularly parked at this address; that you and the co-accused used the Kluger regularly; and that you and the co-accused attended this property.
12During your interview, when asked whether you had ever lived in Berwick, you told police that you had for about three weeks or a month. Later, when asked whether you knew the address at 4 Furness Court, Berwick you said that you did, and that you had rented it when you moved from Pakenham. You said that you had lived there for two to three months and then moved to Braybrook and that you had lived there with your boyfriend (the co-accused) and your two children. You told police that you had moved properties a number of times because you had experienced family violence from a previous partner, and despite having an intervention order against him, he would keep coming to the house and knocking on the door, which terrified you. You told police that you had not been back to this address since moving to Braybrook [that move having occurred in early September 2021]. You further stated that a friend of your boyfriend’s had moved into the property and he transferred the rent to you, which you in turn transferred to the owner. You said the new tenant would come to your house and give you the money in cash.
13At 2.45pm on 11 October 2021, police executed a search warrant at the property. Upon entering the property, police located three rooms which were set up to cultivate cannabis. Items located and/or seized by the police from the property included:
(a) 25 cannabis plants;
(b) a prescription medication, an ANZ bank card, and a 3D ultrasound all in your name; and
(c) a number of pots, drums of fertiliser, light bulbs and charcoal filters.
14Police also located an electrical bypass at the property. This bypass supplied electricity to two switchboards in the laundry, which in turn supplied electricity to the rooms in which the cannabis was growing. The switchboards were controlled by timing devices. The total cost of the electricity illegally obtained by you and the co-accused at this property is estimated to be $15,965. This conduct constitutes charge 3 on the indictment – theft of electricity.
200 Koo Wee Rup Road, Koo Wee Rup
15On 24 April 2021, Dash Muaremov, the property manager for 200 Koo Wee Rup Rd in Koo Wee Rup, conducted an open for inspection at the property. You, together with two males, attended the open house and you provided an ID in the name of Thi Le. Prior to leaving the property, the three of you asked for application forms, which the property manager provided. The next day you sent a text message to Mr Muaremov on his mobile phone in which you cited your personal email address.
16On 29 April 2021, Mr Muaremov received an email from your personal email address attaching a copy of the rental application for the property in the names of Duy Hoang Bui, Tien T Nguyen, Loi T Nguyen and Thi Ngoc Le. In support of the application, a passport, Medicare card, driver’s licence and three payslips in the name of Thi Ngoc Le; and a passport, Medicare card, driver’s licence and three payslips in the name of Duy Hoang Bui were provided. The identities Thi Ngoc Le and Duy Hoang Bui were false identities and the documents were false documents. Your conduct in submitting the false documents in the name of Thi Ngoc Le in support of the rental application for 200 Koo Wee Rup Road constitutes charge 4 on the indictment (a charge of use false document).
17At the time of applying for the property you asked if you could pay the bond and three months’ rent later, purportedly due to being concerned you might transfer the wrong amount if you did it by bank transfer. You later provided a bank deposit slip demonstrating that you had deposited the money. On 4 May 2021, the rental agreement was signed for a period of 12 months.
18During the period of the offending you had further contact with the property manager on a few occasions – updating your telephone number in September 2021, responding to a request from him for photos of the property for a contactless inspection in September 2021, and to discuss ‘Major Roads’ needing to access the driveway in October 2021.
19In the period between 15 August 2021 and 20 August 2021, tracking data from the white truck hired by you and the co-accused from K3K Holdings demonstrated that the truck travelled on numerous occasions to and from this Koo Wee Rup Road property. A truck matching this description was also viewed by a police member on 17 August 2021 in the driveway of the property.
20In the period between 4 September and 8 September 2021, tracking data from the white truck hired by you and the co-accused from Melbourne Truck Hire showed that the truck regularly travelled to and from this property at Koo Wee Rup Rd.
21Police surveillance conducted of you and the co-accused on 10 September 2021 revealed you and the co-accused attending the property on two occasions on that day.
22Between 23 and 24 September 2021, tracking data from the van hired by you and the co-accused from Melbourne Truck Hire demonstrated that the van travelled to and from this Koo Wee Rup Rd property.
23On 8 October 2021, you and the co-accused were again under police surveillance and seen to attend at the property.
24Additionally, on two occasions you organised for a man named Geoffrey Lester to attend at the property to mow the lawn. The first occasion was on 2 September 2021. You were already present at the property when Mr Lester arrived and you left before he finished. The second occasion was on 11 October 2021 (the day you were arrested). On this occasion, no-one was present when Mr Lester arrived and started mowing. However you arrived approximately half an hour later, at 1.07pm, in the Toyota Kluger with the co-accused and your son Elvas. Police were surveilling you and the co-accused at the time, and at 1.08pm observed you and the co-accused within the front area of the house.
25In your interview you told police that another person named Ku arranged for you to go and pay for the grass to be mowed. You said that you did not know who lived at the property and that you had never been there before. You said that you had never been inside the address. Later you told police that you had been there on a previous occasion when you were living in Berwick to pay the man for mowing the lawn. You also told police that you did not know who Thi Ngoc Le is.
26At about 1.18pm on 11 October 2021, police attended at the property to execute a search warrant and located the three of you in the front yard of the property.
27During the search of the property police located six rooms within the premises and a bungalow at the rear of the premises in which cannabis was being grown hydroponically. Items located and/or seized by the police from the property included:
(a) 252 cannabis plants;
(b) a pink pouch containing a learner’s permit and a Vietnamese identity card in your name; and
(c) a large amount of pot plants, fertiliser drums, light bulbs and electrical transformers.
28Police also located an electrical bypass at the property. This bypass supplied electricity to switchboards in the kitchen of the bungalow and the hallway cupboard, the latter providing electricity to the six rooms in which the cannabis plants were growing. The switchboards were controlled by timing devices. The total cost of the electricity illegally obtained by you and the co-accused at this property is estimated to be $39,821.95. This conduct constitutes charge 2 on the indictment – theft of electricity.
29Police also executed a search of the Toyota Kluger which was parked in the driveway of the property and seized a number of items including:
(a) $1270 in cash located in the centre console and on the dashboard;
(b) your apple iPhone in the front passenger seat; and
(c) a set of keys and garage remote for another property at Odessa Avenue.
105 Shrives Road, Hampton Park
30On 21 July 2021, Cindy Wan, the property manager for 105 Shrives Road, Hampton Park, received a phone call from you, and organised to meet you at the property for an inspection at 6.30pm that night. You attended at the property with two other adults (one woman and one man) and a male child aged around 7 or 8 years of age. You introduced the woman as your mother, the male as your partner Van Tuan Nguyen, and the child as your son.
31The next day Ms Wan received an online application form for the property in the names of Van Tuan Nguyen, Thi Ngoc Le, Hoang Duy Nguyen and Thi Loi Nguyen. As part of the application you declared a number of details and provided a number of documents in the name of Thi Ngoc Le. As already noted in respect of 200 Koo Wee Rup Rd, Thi Ngoc Le was a false name and the documents provided to support the application were false documents. The provision of false documents on this occasion is relied upon by the prosecution as context evidence and does not found a charge on the indictment. As part of the application you detailed the phone which you were using as the phone number for Thi Ngoc Le; and your personal email address as the email address for the applicant Thi Loi Nguyen.
32On 24 July 2021 the rental application was approved. Whilst you were renting the property, it was sold to new owners and with your agreement the rental period was reduced to 6 months. When you were advised that council inspectors would need to attend the property to take soil samples in the front and rear yards due to the new owner’s plans to demolish the house you expressed frustration and threatened to break the lease if you were not given enough notice. On 7 September 2021 you advised Ms Wan that you had found a new home as you felt uncomfortable with people coming and going, and requested to break the lease. Ms Wan responded but never heard from you again.
33In the period between 4 September and 8 September 2021, tracking data from the white truck hired by you and the co-accused from Melbourne Truck Hire showed that the truck regularly travelled to and from this property at Shrives Road.
34At 12.25pm on 13 October 2021, police executed a search warrant at this property. The property was vacant with minimal furniture inside. Police observed that several rooms had repairs in the plasterboard, and one of the bedrooms had large plastic sheets laid out on the floor and the window covered in MDF plastic – consistent with the setup of a cannabis grow house.
75 Beechers Road, Clyde
35On 23 August 2021, using the name Jenny Le and your personal email address, you emailed an application to rent a property situated at 75 Beechers Rd, Clyde. Supporting documents in the name of Duy Hoang Bui, Van Tuan Nguyen, Thi Ngoc Le and Loi T Nguyen were provided. Thi Ngoc Le and Duy Hoang Bui were false identities and the documents which were provided in those names were false documents. The provision of false documents is relied upon by the prosecution as context evidence and does not found a charge on the indictment.
36The application to rent this property was declined.
8/19 Mullinger Road, Braybrook
37On 29 August 2021, you applied for a property at 8/19 Mullinger Road, Braybrook using your real name and identity. In support of the application you provided your own driver’s licence as proof of identity. You later withdrew this application and applied for a different property in Braybrook.
2 King Street, Braybrook
38Following your application for the property at 8/19 Mullinger Rd, the property manager, Ms Tam Huynh, showed you a link to a property at 2 King Street, Braybrook. You applied for this property in your real name and provided a copy of your real driver’s licence and bank statement. The property managers spoke with the owner about your application and the owner approved you moving in. You told Ms Huynh that you needed to move in urgently because you had some trouble with friends in Springvale. You paid the rent and bond of $4248 in cash so that the condition report could be undertaken the next day. You met with one of the property managers at the house the next day to undertake the condition report and sign the rental agreement. You signed the agreement for a period of 12 months commencing 1 September 2021.
39One of the next-door neighbours at this property observed two vehicles regularly at the property – being the Toyota Corolla hired by you from Car West Rental on 5 May 2021, and the Toyota Kluger which had been hired by your co-accused from Car West Rental on 29 August 2021. Further between 23 and 24 September 2021, tracking data from the white Renault van hired by you and the co-accused from Melbourne Truck Hire demonstrated that the van travelled to and from this property in King St.
40After about one month, you called Ms Huynh and asked her to find you a house that was a single storey as one of your children had fallen down the stairs. Ms Huynh advised you that you could not break the 12 month lease, and you stated in response that you had a friend who would pay the bond and rent the house. Ms Huynh advised that the friend would need to submit an application for consideration by the owner however you advised that you would stay in the house another month. You paid rent for the house on 8 October 2021. You had however, with the assistance of your niece Kimmy, moved out of the house and into a different house in Keilor Downs by that time.
41At 11.05am on 12 October 2021, police executed a search warrant at this house. Police observed that an upstairs bedroom appeared to have been set up to cultivate cannabis, with rubber matting on the floor and the window boarded up. The garage area contained plasterboard sheeting and lengths of timber. A hole was cut in the plasterboard which appeared consistent with an electrical bypass to be installed. Electrical bypass connectors were also located in one of the rooms in the house, and a photograph on canvas of you and Elvas was located in the garage.
42During your interview you confirmed that you had lived at this King St address with your co-accused, and that you had rented the house in your name for a year. You said that you were only living there for just over a month because it had stairs. You said that your boys kept falling or tripping on the stairs. When you were asked whether you were still paying rent on the property, you stated that your boyfriend’s friend had moved in.
56 Odessa Avenue, Keilor Downs
43In September 2021 the property at 56 Odessa Avenue, Keilor Downs was advertised for rent. You contacted the property manager Danny Al Saad and enquired about renting the property. The property was advertised at $475 per week but you offered to pay $495 per week and 1 month rent up front. This offer was accepted. On 23 September 2021 you submitted an application for the property in the names of Ngoc Thi Le and Duy Hoang Bui and supplied a series of documents in those names in support of the application. Thi Ngoc Le and Duy Hoang Bui were false identities and the documents which were provided were false documents. The provision of false documents on this occasion is relied upon by the prosecution as context evidence and does not found a charge on the indictment.
44After being accepted for the property, you advised that you wanted to move in on 29 September 2021 and the property manager met you at the address on that day. You attended with your co-accused and a girl aged between 17 and 20 years of age. You all arrived at the address in the silver Toyota Corolla. You signed the condition report and were given the keys. The property manager then left.
45Police surveillance conducted of you and the co-accused on 20 July 2021, 3 August 2021, 10 September 2021 and 8 October 2021 revealed that the Toyota Corolla hired by you and the Toyota Kluger which had been hired by your co-accused were both regularly parked at this address; and that you and the co-accused attended this property.
46At approximately 3.50pm on 11 October 2021, police executed a search warrant at this property. Present at the time was a woman named Huong Le, your niece Kimmy and your son Jokovic. Police located a small shed at the rear of the property in which cannabis was growing. Kimmy told police that she did not know the cannabis was there, and that whilst she had seen you walk in the direction of the garage, she could not actually see the garage from her room.
47The following items were seized from the property:
(a) 30 cannabis plants; and
(b) $5350 in cash.
48During your interview you told police that you and the co-accused live together at this address, and had previously lived in Braybrook. You said that you had moved into the address a few days ago and it was rented on your behalf by your friend Jenny who lives near Cairnlea. You stated that whilst Huong Le and your niece were present at the address on 11 October 2021, they do not live there. You told police that your boyfriend (the co-accused) paid the rent for the property which was over $2000 per month and that you contributed no money to the rent.
Summary of Items Located and Results of Analysis
49The cannabis plants seized from the properties at Furness Court, Berwick, Koo Wee Rup Road, Koo Wee Rup and Odessa Avenue, Keilor Downs on 11 October 2021 were subsequently forensically analysed. There were a total of 307 plants seized, with a total weight of 208.93 kilograms. A commercial quantity of cannabis is 100 plants or 25 kg. This constitutes charge 1 on the indictment – cultivation of a narcotic plant in a quantity not less than commercial quantity.
50The total amount of cash located at the property at Odessa Avenue and in the Toyota Kluger was $6250. This cash is the subject of charge 5 on the indictment, a rolled up charge of negligently dealing with proceeds of crime.
51As already noted, you were arrested and interviewed on 11 October 2021. You have remained in custody since your arrest and accordingly have served 414 days of pre-sentence detention not including today’s date.
52I am advised by the prosecution that your co-accused’s charges remain in issue and that his matter is proceeding to trial.
Gravity of Offending
53The cultivation of a narcotic plant in not less than a commercial quantity, is an inherently serious offence, as is made clear by the maximum penalty of 25 years' imprisonment, and it’s designation by parliament as a category 2 offence.However in determining the gravity of any particular drug offence, including cultivation, in comparison with other drug offences of the same nature, the quantity of drugs involved and the role of the offender are important considerations.
54In this case the weight of the cannabis cultivated is eight times the commercial quantity in weight, and three times the commercial quantity in the number of plants. This is a substantial amount of cannabis.
55It was submitted by the prosecution, and conceded by your counsel, that your role in this offending was above that of a crop sitter given the number of properties involved and the role which you undertook in terms of renting the various houses and vehicles. Further it was agreed between the parties that you and the co-accused should be considered to have had the same level of involvement in what was a reasonably sophisticated and extensive cannabis growing enterprise. The material in the depositions confines itself to you and the co-accused, and there is no evidence of the involvement of any other persons in the cultivation of the cannabis at each of the three properties. Accordingly, you fall to be considered as a major participant and organiser in respect of this offending. However, at the same time, there is no evidence of any arrangements having been made by either of you for the sale of the cannabis, and your lifestyle does not reflect any significant earnings having been made. In the circumstances it was submitted by the prosecution, and conceded by your counsel, that your offending could be considered to be in the mid-range for this kind of offending.
56I agree with this characterisation of your offending. Your offending is serious given the large amount of cannabis involved, the use of hydroponic setups across multiple properties, the use of false identities in renting two out of the three of the properties in which the cannabis was ultimately located, the use of electrical bypasses (which both save the significant energy costs that come with hydroponic cultivation and decrease the chances of detection of activity which would have followed if there was a significant jump in electricity usage), and your role in the setup of this operation. However, I am dealing with you on the basis that there is no evidence of you having set yourself up to sell the cannabis, or having received any enrichment (to date) for the enterprise. I am also dealing with you on the basis of a single date charge for the cultivation.
57Insofar as the remaining charges are concerned, I must be careful not to doubly punish you in respect of those offences. Whilst I am of the view that the use of false identities and electrical bypasses aggravate the cultivation charge by reason of being means by which you attempted to avoid detection of your offending, they are also independent charges with their own elements. The amount of electricity stolen was substantial, and your use of false documents allowed you to rent a property which you may not otherwise have been able to rent. These aspects of the offences are independent of the features of the offences which aggravate the cultivation offence, and as such require some cumulation in penalty. The charge of negligently dealing in proceeds of crime similarly requires some cumulation in sentence. However I have been careful not to further aggravate the penalty imposed on each of these offences by reason of them being committed in the course of the offence of cultivation of cannabis in a commercial quantity.
Plea of Guilty and Remorse
58Your plea of guilty in this matter was entered at a relatively early stage. You had a filing hearing on 12 October 2021 and, after a number of committal and special mentions, the matter was listed for a contested committal on 16 May 2021. Your matter proceeded by way of straight hand-up brief on that day, with you indicating a plea of not guilty to the charges. However plea negotiations commenced shortly thereafter and on 26 July 2022 you indicated an intention to plead guilty to the current charges. You were then arraigned on 12 August 2022 and a plea in the Latrobe Valley circuit was ultimately listed before me and heard on 24 November 2022.
59Your plea is significant for a number of reasons. It facilitates the course of justice and has utilitarian value. It is worth noting that the depositions in this matter consisted of over 18,000 pages, and a trial would have taken a significant period of time and involved numerous witnesses giving evidence.
60The utilitarian value of your plea is further enhanced by the timing of your plea which has been entered during the pandemic and in circumstances where Covid-19 has had an unprecedented impact on the efficient running of the criminal justice system.
61I also accept that your plea of guilty demonstrates some level of acceptance of responsibility by you for your conduct – albeit I note that when assessed by Corrections for your suitability for a community correction order you minimised your role, stating that you did not really know what was going on, did not go into the property, and did not know what the plants were.
62Taking each of these circumstances into account, I have given you a significant discount on sentence for your plea of guilty.
Personal Circumstances
63You come before the court as a 34 year old woman with no prior convictions. You were born and raised in Vietnam.
64You arrived in Australia on a student visa when you were 19 years of age. You obtained work as a nail technician and up until your arrest you worked in that industry.
65Two years after your arrival in Australia, in 2009, you married Tuan Nguyen (not the co-accused) and you remained married to him until your divorce in 2013. Shortly thereafter you established a relationship with Mr Dang Huynh and in 2014 you had a child together – your oldest son Elvas. The relationship between you and Mr Huynh disintegrated not long after the birth of Elvas and the two of you separated in 2015.
66You had a second son – Jokovic – in July 2020 with a different partner, Mr Dong Nguyen. Unfortunately, you suffered significant domestic violence in that relationship. You instruct that you experienced physical, verbal and visa-based abuse. You were subjected to incidents which included choking, threats to kill, stalking, and a physical assault which occurred whilst you were pregnant and had your other young son Elvas present in the room. Additionally, you were made to believe by Mr Nguyen that he had somehow cancelled your visa and that you would be disbelieved and deported if you followed anything up. It was in the aftermath of this relationship that you met and formed a relationship with the co-accused.
67I am told that ultimately police applied for and obtained a 10 year intervention order against Mr Dong Nguyen to protect you and the children. From material in a Department of Families, Fairness and Housing report which was tendered on the plea, it appears that the intervention order was put in place following an incident in February 2022 where Mr Nguyen approached your home where you were living with your new boyfriend – the co-accused – and asked to see him. When you said no, Mr Nguyen became physically violent towards you and made threats to kill you.
68It was put on your behalf on the plea that your constant moving of houses – whilst alleged by the prosecution to be designed to avoid detection of your offending by police – was actually a response by you and your new partner to the threat posed by your previous partner. Indeed you told police in your record of interview that at least one of the moves came about due to your ex-partner attending on your doorstep on numerous occasions despite the intervention order being in place. I am willing to accept on the material before me that the situation sits somewhere in the middle of those two explanations – with it being a combination of your previous experiences and the offending conduct which contributed to the large number of rental applications made in such a short period of time.
69Since you have been in custody, your children have been subject to overview by the Department of Families, Fairness and Housing, and have predominantly been in the care of your sister Ms Trang Le. However your sister lost her husband to illness in May 2022 and is suffering from mental health issues.
70A number of reports were tendered on the plea in respect of the current and ongoing health and wellbeing of your sister and your children. These reports included reports from the Department of Families, Fairness and Housing in respect of the ongoing Children’s Court proceedings, as well as from professionals who are working with you and your family.
71A medical report from Dr Vu Dang – who is the general practitioner overseeing the care of both your sister and your children – dated 4 October 2022 was tendered on the plea. He noted that your sister has been very depressed after the sudden passing of her husband, which is exacerbated by her being a new migrant in Australia (having only arrived in 2019) and being alone with no support. She is currently seeing a psychologist regularly and has been on an antidepressant. Dr Dang also noted that both of your children are disabled with major developmental delay and possible autism and are now being assessed by the Developmental Medicine Department at the Royal Children’s Hospital. In his opinion, your children will need ongoing major and complex social support and family support. Dr Dang also attached a number of reports in respect of your children to his letter which identify that Jokovic has areas of concern in the area of receptive and expressive language and social and emotional development, as well as having audiological and speech development issues. Elvas similarly has issues in the area of speech delay.
72According to a letter dated 7 October 2022 from Rose Nguyen of Viet Wellbeing Disability Services (a registered NDIS scheme provider), Jokovic has been receiving NDIS funding for early intervention supports since August 2022. Ms Nguyen states that Jokovic has a number of medical concerns which require attention as well as signs of developmental delays caused by developmental trauma. The purpose of the early intervention supports is to provide therapy and supports as soon as possible to reduce further developmental delays, and to address Jokovic’s medical concerns. Ms Nguyen noted that Elvas also presents with developmental trauma and presents signs of development delay, and is currently undergoing assessments for a disability diagnosis. Ms Nguyen concluded her letter with the following:
[t]he purpose of my letter is to emphasise the importance of having Jokovic’s mum, Thi Kim Lee present in her child’s life to best support development growth. As mentioned Trang is currently providing care to both child, however, has expressed the daily challenges she experiences. Trang also expressed she would not be able to sustain her caring role for the two children without the support of their mother, Kim. Other than Trang, there would not be any other family members who would be able to provide full time care for the boys.
73I also received a letter from Ms Thuy Dinh, dated 5 October 2022, who is your sister’s psychologist. Ms Dinh advises that your sister is suffering from depression, anxiety and stress having to care for her nephews, as well as experiencing severe grief and loss symptoms since the death of her husband. Ms Dinh states that your sister’s mental and emotional state has been unstable, and she is currently presenting with poor coping, poor problem solving and poor stress management skills. Further your sister has reported to Ms Dinh that your children miss you very much and have been crying and presenting with problematic behaviours due to this. Ms Dinh ultimately expressed the opinion that the combination of your sister’s current mental, emotional, physical and financial difficulties mean that she does not currently have the capacity to provide proper care to your children. She also proffered the opinion that Elvas and Jokovic need you to care for them at this vital age to reduce further interruptions and disturbances to their mental, emotional health and behaviours – albeit I note that Ms Dinh is providing that opinion based on her understanding of the situation as advised by your sister, Ms Trang Le.
74The three reports authored by workers from the Department of Families, Fairness and Housing and dated 23 May 2022, 19 July 2022 and 2 November 2022 identify the following factors of relevance:
· Elvas is now 8 years of age and is enrolled in prep at primary school. He has developmental delay, is largely non-verbal and is unable to express himself clearly. He has undergone assessment and on 4 October 2022 was diagnosed as having an intellectual disability with a full-scale IQ of 63. He also has significant speech delays, specifically in relation to how he receives language and in expressive language. An NDIS application is currently being pursued for Elvas given his recent diagnosis of intellectual disability;
· Jokovic is now 2 years of age. He also has a developmental delay and a speech delay, thought to be related to trauma. He requires speech therapy, occupational therapy and psychology or counselling to address the behavioural concerns. NDIS funding has been sought to begin treatment for these conditions and both a key worker and a speech therapist have been assigned to date;
· your children are at an age where they are at a vulnerable stage in their development and rely entirely on their primary caregiver;
· your children have been residing predominantly with your sister Trang Le since your incarceration;
· your children have scheduled regular contact with you twice per week which is supervised by your sister. This was initially video contact but is now face to face contact. They have been noted to have a strong attachment to you during contact;
· Jokovic’s father, Mr Dong Nguyen, is allowed supervised contact with the children despite the full exclusionary intervention order in place. He has attended for some of the supervised contact appointments but shows a pattern of cancelling contact if Jokovic is not in attendance, and favouring Jokovic over Elvas when he does attend. Further he has been assessed as currently being unable to fulfil the care needs of each of the children; denies having committed any family violence; and refuses to undertake any courses designed to address domestic violence behaviours. A recommendation that Elvas not be required to have any further supervised contact visits with Mr Nguyen has been made by the Department to the Court;
· Elvas’ father Mr Huynh has been uncontactable and remains absent in the children’s lives;
· in the period around Ms Le’s husband passing away, your children had to be placed into respite care between 23 April and 1 June 2022. This resulted in them being placed into three different placements, the first between 23 and 27 April 2022, the second between 27 and 30 April 2022, and the third between 30 April 2022 and 1 June 2022;
· whilst in respite care, Jokovic became increasingly ill to the point of needing to be hospitalised. His health did not stabilise until he was back in the care of your sister;
· your sister, despite her difficulties, has indicated that she is committed and able to provide care for your children until your release from custody, at which point she anticipates that the two of you will live together and care for the children together;
· there are currently no suitable ongoing respite options for your children, however there is still an open referral in the hope of locating suitable carers; and
· whilst the Department was initially working towards a reunification order being put in place in respect of your children, that recommendation has recently changed and a Care By Secretary Order is now being sought due to the lack of supports available to you and the inability to test your parenting capacity whilst in custody. A plan which involves reunification will only be supported by the Department once you have been released from custody and further assessments of your situation have been undertaken.
75Whilst in custody you have also engaged with a number of organisations.
76In January 2022 you were referred to WestCASA after having been attacked by another prisoner and placed in protection for your own safety. A letter authored by Molly Lovatt, a counsellor and social worker with WestCASA, and dated 25 October 2022, was tendered on your behalf on the plea. In that letter Ms Lovatt stated that the attack upon you in custody compounded the existing trauma which you have from experiencing severe abuse from your ex-partner and father of Jokovic. Ms Lovatt said that you report symptoms in line with post-traumatic stress disorder such as disturbed sleep, racing thoughts, hypervigilance, reduced appetite and panic attacks. You have been engaging in counselling whilst in custody – this being the first time you have ever had access to counselling. Ms Lovatt noted that you have been engaging well in counselling and have been making efforts to improve your English to further enhance the counselling experience. In Ms Lovatt’s view you are coming to terms with your experiences and are now able to reflect on ways to increase the safety of you and your children in the future. Further, in Ms Lovatt’s opinion you are someone who is help-seeking and entirely focused on ensuring the wellbeing of your family, both now and in the long term.
77Since June 2022 both you and your family have also been engaging with the Putting Families First Program. A letter from Ms Esther Moses, the lead family practitioner for the program, dated 20 October 2022, was tendered on the plea. Whilst it would appear that this letter was not written expressly for the purposes of the plea proceeding, but rather in support of you in regard to your potential deportation issues, Ms Moses’ observations of the impact which your absence has had on your children, and the supports which would be available to you on release are both relevant factors in this proceeding.
78Ms Moses has been providing weekly case management intensive support to you, your sister and your children. Ms Moses stated that in her observation your absence has had a negative impact on the family as the children are growing and developing without a clear understanding of how they have lost both parents from their lives. She noted that you are endeavouring to maintain the strongest connection which you can to your children whilst incarcerated, through zoom calls and face-to-face visits, and further noted that whilst these communications are manageable they are distressing.
79Insofar as supports available to you on release, Ms Moses noted that on release from custody you would continue to receive the support of a holistic case management team which would include intensive case management from Putting Families First alongside any statutory services and inter-disciplinary teams which can include mental health, family violence, housing support, AOD support and financial counselling.
80A letter from Karen Bouhadana, a housing outreach worker with Women’s Housing Ltd, dated 7 November 2022 was also tendered on the plea. Ms Bouhadana stated that you have been engaging with the Women’s Justice Diversion Program whilst in custody and have always presented in an open and respectful manner. Ms Bouhadana advised that upon your release from custody you would be able to be assisted through the Women’s Justice Diversion Program for a period of up three months post-release with housing brokerage, support and referrals with the aim of you achieving stable long-term housing. This support includes an initial 7-night stay in a hotel, which can be extended whilst you and your supports work on securing alternative long-term housing, and a thorough assessment and referral to SASHS Sunshine, the local access point for housing and homelessness in the area. In turn SASHS can assist with further crisis accommodation, referral to housing providers and support services and assistance to get into affordable private rental programs.
Relevance of Family Hardship to Sentence
81It was submitted on your behalf, by Mr Nikakis, that the hardship which has already been suffered and would continue to be suffered by your children if you remain in custody, and/or are deported as a result of the sentence imposed upon you, would constitute an ‘exceptional circumstance’, such that the hardship upon them could be taken into account on your behalf as the basis for a plea of mercy.
82Mr Cordy, on behalf of the prosecution, did not concede that the significant hurdle of exceptional circumstances has been met in this case such that the sentence which might otherwise be imposed should be mitigated.
83In Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105, at [5], (‘Markovic’) the Court re-stated the principles in respect of family hardship as a relevant matter in sentencing as follows:
1. Reliance on family hardship – that is, hardship which imprisonment creates for persons other than the offender – is itself an appeal for mercy.
2. Properly understood, therefore, the purpose and effect of the ‘exceptional circumstances’ test is to limit the availability of the court’s discretion to exercise mercy on that ground.
3. Accordingly, there can be no ‘residual discretion’ to exercise mercy on grounds of family hardship where the relevant circumstances are not exceptional.
4.The effect on the offender of hardship caused to family members by his/her imprisonment raises different considerations, to which the ‘exceptional circumstances’ test has no application.
84As identified in Markovic it is also important to keep in mind the following. First, it is almost inevitable that imprisoning a person will have an adverse effect on the person’s dependants. Secondly, the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime. Thirdly, to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less. Fourthly, to treat an offender who has needy dependants more leniently than one equally culpable co-offender who has none would defeat the appearance of justice and be patently unjust. For these reasons it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account.
85In both Markovic, and later cases applying Markovic, it has been made clear that whether or not, in any particular case, family hardship gives rise to exceptional circumstances is a matter of fact and degree. It has also been identified that such cases are relatively rare.
86In my view yours is one of those rare cases where exceptional circumstances has been made out, giving rise to the court’s discretion to exercise mercy on that ground. Your children are still very young being two and seven years of age. They are at an age where they rely completely on their primary caregiver. You were that primary caregiver until you were incarcerated and both children still demonstrate a very strong bond when they have contact with you, and are distressed when they have to part from you.
87Both children have been exposed to trauma through being witness to and present for the family violence which was perpetrated on you, and both are suffering developmental delays and behavioural issues which are attributed in part to that trauma. They are both in need of age-appropriate counselling and speech therapy at a minimum. Additionally, your older son Elvas has just been diagnosed as having an intellectual disability. The combination of these factors mean that they need long term complex care and family support.
88The children cannot be returned to live with either of their fathers – one has an intervention order against him and has been assessed as unable to appropriately care for the children, the other has been absent for many years. Whilst your sister has been caring for your children whilst you have been in custody, she is also having to deal with her own trauma and is finding it difficult to care for your children on her own at this stage. When the children were placed in respite care to assist your sister through the period of her husband’s death, the children had to be placed in multiple placements and their behaviour and health (especially that of Jokovic) deteriorated rapidly. There is currently no suitable respite care available for the children, placing additional strain on your sister and the children. Your sister has indicated to her health care team that she cannot sustain this caring role long-term, and there are no other kinship care options available. Further, the longer you stay in custody, the more difficult reunification of you with your children becomes.
89I am of the view that it would, in this case, be inhumane to fail to take into account your children’s situation and the very real need that they have for you to be present to care for them in circumstances where they are at an age where they are completely reliant on their primary caregiver, have special needs, are dealing with the impact of trauma, cannot be cared for by either biological father, and your sister is struggling with her own difficulties. I note, however, that a finding of exceptional circumstances is not an automatic ‘passport to freedom’, but simply one factor that can be taken into account in sentence.[1]
[1]See, eg, DPP (Cth) v Gaw [2006] VSCA 51, [21].
Burden of Imprisonment – Impact of Covid-19, Prospect of Deportation and Concern for Children
90In determining the type and/or length of sentence to be imposed, Mr Nikakis submitted that I should also take into account that if I was to impose a term of imprisonment, the burden of the period of imprisonment which you have already served and any additional period of imprisonment, is increased by reason of the Covid-19 restrictions upon you in custody, your concerns as to the risk of deportation upon release, and your concerns as to the welfare of your children in the community. Mr Cordy did not take issue with these submissions.
91During the period you have been on remand, you have been impacted by the pandemic in a number of ways. You have experienced isolation, lockdowns, and had more limited access to programs in custody than would ordinarily be the case. You have also faced restrictions on the type of contact you can have with your family and friends – and this has been particularly hard for you in terms of your contact with your children which has largely, until recently, taken place via videolink facilities.
92Further, whilst you have lived in Australia since 2009, you are not a citizen or a permanent resident of Australia. You are still a citizen of Vietnam. Your children, however, are both Australian citizens.
93I am told by the prosecution that you are currently awaiting the outcome of a partner visa application. Mr Nikakis advised me that, despite enquiries, he has been unable to obtain any additional information about your current immigration status – including which partner the visa application was initially made in respect of – and believes the situation to be as identified by the prosecution. Ms O’Brien, who assessed you for your suitability for a community correction order, also made enquiries of the authorities and was advised that you are currently the holder of a bridging visa which would allow you to live in the community, but which may be considered for cancellation if you are found guilty of the offences you have been charged with.
94It is apparent, irrespective of the current status of your visa, that given that you are not an Australian citizen you are subject to the deportation provisions under the Migration Act 1958 (Cth). You will face, subject to review, mandatory cancellation of your visa if a term of imprisonment greater than 12 months is imposed, and may still face cancellation of your visa and deportation if you are sentenced to a total of 12 months imprisonment across multiple offences. Whilst there may be a basis for review of any such cancellation in your circumstances, given your children are Australian citizens, I accept that the time you spend in custody will be made more onerous due to the stress caused by the prospect that your visa will be cancelled and may not be re-instated. This concern is particularly acute for you in circumstances where your children are Australian citizens, could not receive the care they need in Vietnam, and deportation would result in complete separation of you from your children.
95Finally, I also accept that independently of the hardship being caused to your children by your ongoing imprisonment, that your concerns for the welfare of your children have caused you, and will continue to cause you, additional hardship whilst in custody.
96I take each of these added burdens of imprisonment into account both in terms of the time which you have already spent in custody, and any further period of imprisonment which I impose.
Category 2 Offence – Applicable Sentencing Principles
97As relevant, section 3 of the Sentencing Act 1991 provides that cultivation of cannabis in not less than a commercial quantity is a category 2 offence. This enlivens section 5(2H) of the Sentencing Act 1991 which provides that in sentencing an offender for a category 2 offence, I must make an order under Division 2 of Part 3, other than a term of imprisonment in combination with a community correction order, unless one of the circumstances set out in subsections (a) to (e) of that section exists. Mr Nikakis submitted on your behalf that it would be open to me to find that subsection (e) applies, that is that
there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
98Despite Mr Nikakis’ submission, there is no burden upon you to prove on the balance of probabilities that there are substantial and compelling circumstances that are exceptional and rare. Rather it is an evaluative judgment for me, the sentencing judge, to make once the relevant underlying facts have been established.[2] Further, it is important for me to keep in mind that the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not, by that fact alone, necessarily deprive them of their character as substantial and compelling and exceptional and rare. Circumstances which individually are relatively common may in combination enliven the exception in s5(2H)(e).[3] Having said that, the test is still a stringent one and in some cases may operate harshly and result in the imposition of a sentence which would be counterproductive from the viewpoint of rehabilitation – particularly in the case of young offenders.[4]
[2] See, eg, Fariah v The Queen [2021] VSCA 213, [24].
[3] Ibid, [25].
[4] See, eg, Farmer v The Queen [2020] VSCA 140, [52].
99In determining whether there are substantial and compelling circumstances, I am required pursuant to s5(2HC) to:
· regard general deterrence and denunciation of your conduct as having greater importance than other sentencing purposes;
· give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence;
· not have regard to your previous good character (other than an absence of previous convictions or findings of guilt); your early guilty plea; your prospects of rehabilitation; or parity with other sentences;
· have regard to Parliament’s intention that a custodial order (which includes a youth justice centre order but does not include a combination sentence) should ordinarily be made; and
· have regard to whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
100It was submitted by your counsel, that:
(a) your absence of prior convictions;
(b) your history of domestic violence;
(c) the family hardship which would be suffered by your children; and
(d) the burden of imprisonment upon you by reason of the combination of the restrictions caused by the pandemic, the prospects of deportation and your concern for your children;
in combination, amount to substantial and compelling reasons which are exceptional and rare.
101Mr Cordy on behalf of the Director of Public Prosecutions, submitted that the prosecution does not agree that subsection 5(2H)(e) has been met in your case, even when all of your circumstances are considered in combination.
102Having regard to the matters in s5(2HC), I acknowledge in particular that your offending in this case is serious and of a gravity which places it in the mid-range of these kind of offences, and that this is to carry greater weight than your personal circumstances. Indeed I note that in other cases where s5(2H)(e) exceptions have been found for offenders charged with cultivation of a commercial quantity of cannabis in this Court, unlike your case, the offending was considered to not have an aspect of commerciality and accordingly was determined to be low on the scale of this kind of offending.[5] I also acknowledge that general deterrence and denunciation of your conduct are the predominant sentencing purposes in this case, and that it is Parliament’s intention that a term of imprisonment (not combined with any other order) be imposed for this kind offending.
[5] See, eg, Director of Public Prosecutions v Paplia [2021] VCC 13; Director of Public Prosecutions v Gill [2021] VCC 1883; and Director of Public Prosecutions v Black [2022] VCC 226.
103However taking into account all of the matters in s5(2HC), I am still satisfied that the circumstances in paragraph (e) are made out in your case through a combination of factors being:
(a) your absence of prior convictions;
(b) your history of domestic violence leading into the period of this offending;
(c) the family hardship which would be suffered by your children (which I have already determined to be an exceptional circumstance); and
(d) the burden of imprisonment upon you by reason of the combination of the restrictions caused by the pandemic, the prospects of deportation and your concern for your children.
104Accordingly, it is open to me to impose a sentence other than a straight term of imprisonment upon you for the charge of cultivation of a commercial quantity of cannabis, if such a sentence is otherwise appropriate.
Sentencing Submissions and Comparative Cases
105Mr Cordy, on behalf of the prosecution submitted that the gravity of your offending requires that a term of imprisonment with a head sentence and a non-parole period be imposed. However, he also submitted that given the constellation of mitigating factors in this case, that the Court would be justified in imposing a ‘low range’ non-parole period. Mr Cordy directed my attention to the case of Nguyen v R [2016] VSCA 198 as being of assistance to me in the sentencing exercise – noting that in that case the Court of Appeal had identified that sentencing practices for mid category offences of cultivation of cannabis in a commercial quantity don’t reflect the objective seriousness of the crime.
106Mr Nikakis by comparison submitted on your behalf that if I was to find that a special reason pursuant to s5(2H)(e) had been made out, that the circumstances of your case would allow for the imposition of a term of imprisonment not exceeding twelve months in combination with a community correction order. Mr Nikakis was unable to provide me with any cases which he considered to be comparable cases, noting that an analysis of the cases shows that a wide range of sentences are imposed for the offence of cultivation in a commercial quantity depending upon the gravity of the crime and the circumstances of the offender. He had been unable to find any cases which approximated your offending and circumstances.
107I have had regard to the case of Nguyen v R [2016] VSCA 198 as well as a number of other cases where offenders have been sentenced for cultivation of cannabis in a commercial quantity. I note that I did not have regard to these cases when assessing whether the circumstances pursuant to s5(2H)(e) were made out, but rather having found that those circumstances were made out, I had regard to them as part of the instinctive synthesis on sentence. I have come to the same conclusion as Mr Nikakis that there are no comparable cases where the offender has committed a mid-range offence of cultivation, but also has the substantial mitigating features which arise in your case, together with a basis for mercy to be exercised.
108Each of the cases I was referred to turn, as they must, on their own facts and the sentencing Judge’s intuitive synthesis of those facts in light of the applicable sentencing principles. As such, the previous cases to which I had regard are of assistance as examples of the application of the relevant sentencing principles applicable in the area, and can be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available. However, ultimately, whilst I have had regard to previous sentences imposed and the issue of comparative sentencing and current sentencing practices more broadly, I have sentenced you in this case on the basis of the application of the principles to the specific facts of you and your case.
Other Sentencing Purposes and Principles
109The only purposes for which sentences may be imposed are punishment, deterrence (both general and specific), to manifest the court’s denunciation of the offender’s conduct, to protect the community from the offender, to facilitate the offender’s rehabilitation, or a combination of any two or more of those purposes.
110As I have already determined, substantial weight must be given to general deterrence and denunciation as sentencing purposes in this case given the nature and gravity of your offending. However, rehabilitation is also an important sentencing consideration in this case given your lack of prior convictions, the trauma you have faced in respect of domestic violence, and the steps which you have already started to take in custody to address your issues. Some weight must also be given to specific deterrence – that is deterring you from offending in this manner again. This is important given the lack of insight and minimisation by you of your offending conduct, albeit I am of the view that the significant amount of time you have spent in custody, separated from your children, has already had a deterrent effect upon you.
111In sentencing you today, I must also take into account the principles of totality and parsimony. In the particular circumstances of this case, the principle of parsimony requires me to consider whether there is any feature of you or your offending which requires the conclusion that imprisonment is the only option – given that a combination of imprisonment with a community correction order which can be of some length and have both punitive and rehabilitative conditions attached is potentially available.
112I adjourned the plea in order to have you assessed for a community correction order – noting when I did that I had not at that stage made any determination as to whether a combination sentence would be either open to the Court or appropriate in all of the circumstances. You have been assessed as suitable for such an order, with the assessor noting that despite your minimisation of your offending that you were polite, patient and engaged well. You have also been assessed as a low risk of re-offending and accordingly Ms O’Brien, who undertook the assessment, recommended that you be subjected to minimal conditions to avoid potentially increasing risk. Ms O’Brien recommended that if I impose an order, that only supervision and unpaid community work conditions be attached to the order. She noted that requiring you to engage in supervision will provide a platform from which your offending behaviour can be addressed with you, and encouragement can be provided to you to continue to engage with services to assist you with those issues which you face which are not directly related to your offending. I have taken into account those recommendations.
113I have considered the submissions of each party, the report from Corrections, and all of the relevant sentencing principles in this case. Despite the significant mitigatory matters and a basis for exercising mercy in sentencing, the sentence which I impose today must still be of a nature which denounces your conduct, administers just punishment, deters you and others from committing similar offending, whilst also giving weight to rehabilitative purposes. Ultimately, I have concluded that despite the nature and gravity of the offending a term of imprisonment in combination with a community correction order on charge 1, and a community correction order on charges 2-5, can sufficiently achieve all of the punitive, deterrent and denunciatory purposes of sentencing, whilst also giving weight to rehabilitation. I have included a number of community work hours on the community correction order to reflect the gravity and separate elements of those offences for which you have not received a term of imprisonment today. However, the number of hours imposed has been tempered by considerations of totality.
114I note however, that I cannot accept the submission made by Mr Nikakis that a term of imprisonment of not more than 12 months in combination with a community correction order would be appropriate in this case. Whilst I am fully aware that a sentence of imprisonment longer than 12 months will enliven the deportation provisions and will result in the cancellation of your visa, I cannot artificially fashion a sentence to avoid possible executive action. Whilst the combination of the sentencing principles and sentencing factors in this case have led to me imposing a merciful sentence which allows for you (subject to executive action) to be released back into the community shortly, it is ultimately a matter for the authorities as to the steps they take in response to the sentence I have imposed.
Sentence
115Ms Le, you will be sentenced as follows.
116On charge 1, cultivation of cannabis in a commercial quantity, you are convicted and sentenced to 15 months’ imprisonment.
117Additionally on charge 1, and also on charges 2, 3, 4 and 5, you are convicted and sentenced to a community correction order for a period of 2 years which will commence upon your release from custody.
118In addition to the mandatory conditions of that order, you will be subject to the following conditions:
(i)to report to Sunshine Community Correctional Services within two clear working days of your release from custody;
(ii)to perform 320 hours of unpaid community work during the period of the order; and
(iii)to be under the supervision of a Community Corrections Officer for the period of the order.
119Do you understand all of those conditions?
120OFFENDER: Yes, Your Honour.
121HER HONOUR: I must tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order by Corrections and the matter will be brought back before me. One of the potential outcomes if you breach the order is that you may fall to be re-sentenced and may face a further term of imprisonment. Do you understand that?
122OFFENDER: Yes, Your Honour.
123HER HONOUR: Given all of those matters which I have told you and the conditions which apply, do you consent to undertaking that community correction order?
124OFFENDER: Yes, Your Honour.
Pre-Sentence Detention
125HER HONOUR: The period of 415 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.
Section 6AAA Declaration
126Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a term of imprisonment of 3 years and 9 months with a non-parole period of 2 years and 6 months.
Ancillary Orders
127As a matter of completeness, I note that the prosecution did not make any application for ancillary orders in this case given that the co-accused’s case is still on foot.
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