Director of Public Prosecutions v Le and Tran
[2022] VCC 463
•3 February 2022
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-21-00488
and CR-21-02323
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUONG VAN LE and THANH VAN TRAN |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 18 November 2021 | |
DATE OF SENTENCE: | 3 February 2022 | |
CASE MAY BE CITED AS: | DPP v Le and Tran | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 463 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Cultivate narcotic plant in a quantity not less than a commercial quantity – theft – deal with property suspected of being proceeds of crime – fail to comply with direction given by Chief Health Officer – 179 cannabis plants with total weight in excess of 348 kg – cultivation under 7 weeks – pleas of guilty entered at a reasonably early time – good character – allowance for relative youth – low likelihood of re-offending.
Legislation Cited:
Cases Cited:Nguyen v The Queen [2017] VSCA 127; Dang v The Queen [2020] VSCA 24; Nguyen v The Queen [2017] VSCA 286; Worboyes v The Queen [2021] VSCA 169; Freeburn v The Queen (No 2) [2020] VSCA 176; The Queen v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43; The Queen v Lovett [2008] VSC 60;
Sentence: Offenders Duong Van Le and Thanh Van Tran: Total effective sentence of 3 years and 6 months imprisonment with a non-parole period of 22 months. Fine of $2,000
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Grant | Office of Public Prosecutions |
| For the Accused Le | Mr C Farrington (plea) Mr J Le (sentence) | TQH Lawyers |
For the Accused Tran Mr M Stanton Victoria Legal Aid
HIS HONOUR:
1Duong Van Le and Thanh Van Tran, you have each pleaded guilty to a charge that at Portland between 2 July 2020 and 18 August 2020, you cultivated a narcotic plant, namely Cannabis L, in a quantity that was not less than a commercial quantity applicable to that narcotic plant. You also pleaded guilty to a charge that at Portland between 2 July 2020 and 18 August 2020, you stole a quantity of electricity belonging to Powercor Australia Limited.
2Mr Le, you also consented to my hearing the following summary charges:
Charge 5 – that at Portland on 18 August 2020 you dealt with property, namely $450 cash, suspected of being the proceeds of crime; and
Charge 6 – that between 9 July 2020 and 18 August 2020, you failed to comply with a direction given by the Chief Health Officer, namely travelling to Portland without a valid reason.
3Mr Tran, you consented to my hearing the following summary charges:
Charge 5 – that at Portland on 18 August 2020, you did deal with property, namely $1,175 cash, suspected of being the proceeds of crime; and
Charge 6 – that between 9 July 2020 and 18 August 2020, you failed to comply with a direction given by the Chief Health Officer, namely travelling to Portland without a valid reason.
Circumstances of offending
4The circumstances of your offending are set out in the Amended Summary of Prosecution Opening and Submissions for Plea, which was tendered and marked Exhibit P1.
5In May 2020, an industrial shed located at 8 Kunara Crescent, Portland was rented from its owner. The person who rented the shed produced a driver’s licence in the name of Tran V. Duong. Investigators later determined that the licence used was not a legitimate licence.
6On 18 May 2020, the keys to the shed were handed over to the new tenant.
7The shed was modified by an unknown person and a hydroponic system for the cultivation of cannabis and an electrical bypass system were installed. The bypass allowed for electricity to be transmitted to timer units which were used to control the hydroponic system. The bypass meant that a large amount of power could be consumed without detection.
8The prosecution accepts, there is no evidence implicating either of you in renting the shed or the setting up of the hydroponic and electrical bypass systems.
9Cannabis was found in the shed on 18 August 2020, when police executed a search warrant at the premises. During the search, police also located a CCTV system that captured footage of the hydroponic operation between 2 July 2020 and 18 August 2020. The footage depicted each of you attending at the shed and tending to the plants and hydroponic system on numerous occasions between those dates.
10On the execution of the search warrant, you were both found inside the shed and arrested.
11The hydroponic system was set up in two rooms on the ground floor; in two purposely designed tents, also on the ground floor; and in three rooms on the top floor. The system utilised 144 grow lights, irrigation and ventilation systems. The power leads and ventilation ducting was cut into the walls to run from room to room. The process of installing that equipment caused substantial damage to the walls in the office area of the shed.
12During the search of the shed, it was noted that the hydroponic system was operating. The lights were in use and the pumps working.
13The CCTV system used two cameras to monitor the exterior and interior of the shed. The first camera monitored the driveway in front of the shed. The second camera, mounted to a handrail on the stairs leading to the upper floor, monitored the interior of the shed.
14Following your arrest, Mr Le, you were found to be in possession of a mobile phone that was displaying live streamed footage being captured by the CCTV system. Found in your wallet was $450 cash, believed to be the proceeds of crime. You were also in possession of a remote control and a set of keys, which were later found to unlock the shed.
15Mr Tran, you were found in possession of a driver’s licence in the name of Tuan A. Nguyen and $1,175 cash, believed to be the proceeds of crime.
16The cash found in each of your possession is the basis for the summary charges of dealing with property suspected of being the proceeds of crime.
17Mr Le, you were interviewed by police. During that interview you told police that:
(a) you did not know what the plants were, and it was the first time you went there;
(b) you went to the shed, with another person, to work;
(c) you went there to release the water, which a stranger you met at the St Albans Market had asked you to do;
(d) you were going to be paid $150 per 'work';
(e) you did not know how you were going to be paid, as it was the first time you had done the work;
(f) you were asked about having been stopped by police in Portland the week earlier, and you claimed you had come down for work but were not working at the shed;
(g) you did not have a permit to work in Portland, and did not understand the restrictions relating to travel; and
(h) you claimed you ran away when the police attended at the shed because the other person ran from the police.
18It is clear you were not entirely frank with police when interviewed.
19Mr Tran, you were also interviewed by police. You exercised your right to silence and answered 'No comment,' to the questions asked.
20While in police custody, you, Mr Le, provided the PIN to your phone to Detective Senior Constable Anderson. This enabled Detective Anderson to access the recordings that had been captured by the CCTV system. The recordings depicted events that occurred in the shed from 2 July 2020. They captured both you, Mr Le, and you, Mr Tran, in the shed on multiple occasions between 2 July 2020 and your arrest on 18 August 2020.
21The CCTV recordings contained 108 video files. The activities in which you were both shown to engage included:
(i) entering and exiting the door at 8 Kunara Crescent;
(ii) moving items within the warehouse;
(iii) relocating the CCTV camera and testing the motion sensor feature;
(iv) moving a pot plant, believed to be cannabis; and
(v) entering and leaving a black tent structure within the warehouse of 8 Kunara Crescent.
22Thus, each of you were captured on the recordings as you attended the shed to tend to the hydroponic setup and the cannabis.
23On 19 August 2020, the shed was further examined by police and a botanist, Madeline Brenker. They found the following quantities of cannabis being grown:
(a) in room numbered 1 – 16 plants, weighing a total of 40.84 kilograms;
(b) in room number 2 – 16 plants, weighing a total of 42.38 kilograms;
(c) in room numbered 3 – 46 plants, weighing a total of 91.82 kilograms;
(d) in room numbered 4 – 30 plants, weighing a total of 6.83 kilograms;
(e) in room numbered 5 – 21 plants, weighing a total of 63.58 kilograms;
(f) in room numbered 6 – 24 plants, weighing a total of 72.4 kilograms;
(g) in room numbered 7 – 9 plants, weighing a total of 30.32 kilograms; and also
(h) a tray containing seedlings – 17 plants, weighing a total of 27.1 grams.
24Thus, a total of 179 cannabis plants were located with a total weight in excess of 348 kilograms, which is a quantity that is not less than the commercial quantity defined as either 100 plants or 25 kilograms. The weight of the cannabis plants in fact exceeded the large commercial quantity of cannabis of 250 kilograms. It is not alleged that either of you intended to cultivate a large commercial quantity.
25A licensed electrical inspector attended the shed on 19 August 2020. He identified and removed the illegal bypass. The total amount of power estimated to have been stolen, namely 73,301 kilowatt-hours, is valued at $10,000.
26In relation to the summary charges of failing to comply with the Chief Health Officer’s directions between 2 July 2020 and 18 August 2020, on 8 August 2020, a silver Hyundai, registered XFO 229, drove past police stationed at the intersection of Henty Highway and New Street, Portland. The car was intercepted by police. Detective Senior Constable Hudson approached the car, activating her body-worn camera. The driver of the car gave his name as Tuan Nguyen, and the passenger gave his name as Duong Le. The driver and passenger provided Detective Hudson their Victorian driver’s licences and worker’s permits that purportedly confirmed they were entitled to travel to Portland as authorised workers. The licences and documents were photographed and returned to the driver and passenger. It is accepted that you, Mr Tran, were the person who gave his name as Tuan Nguyen, and that you, Mr Le, were the passenger.
27Between 9 July 2020 and 18 August 2020, Melbourne and the Mitchell Shire were under Stage 3 and 4 restrictions following a direction issued by the Chief Health Officer. You each breached the directions by travelling to Portland without proper authorisation. You each did so on fourteen separate occasions between 9 July and 18 August 2020. The summary charge to which you each pleaded guilty is a rolled-up charge representing those fourteen occasions.
Background and personal circumstances
Duong Van Le
28Mr Le, you were born and raised in the Nghệ An province in North Central Vietnam. You are 33 years old. You are married with two daughters, aged three and one. Your youngest child was born after you left Vietnam. Your wife, children, parents and two younger siblings all live in Vietnam. Your father is in his late fifties and worked as a fisherman. He is not in good health. Your mother works in a convenience store. Your family is aware that you are on remand.
29After completing your secondary education, you attended the Navigation Faculty of the Vietnam Maritime University. You completed a four-year navigation course which qualified you to work as a deck officer on domestic and international ships. On qualifying, you were successful in obtaining work on a cargo ship, which you performed for a period of approximately nine years.
30You came to Australia on a tourist visa in August 2019. You applied for, and were granted, a student visa. While in Australia you worked briefly at a flooring company. You also completed nine months of an 18‑month English course.
31It was your ambition to build on your navigational qualifications, and you intended pursuing further maritime studies at the University of Tasmania, so that one day you might become a Captain of a ship. However, upon being remanded on the charges before me, your student visa was cancelled, and you are currently on a justice bridging visa. You are likely to be deported at the completion of your sentence. A criminal conviction, which will inevitably flow from your pleas to these charges, will make obtaining work in international shipping difficult.
32It had been your hope, on completing further education, to work and live here with your wife and children. By reason of your offending, it is unlikely you will ever realise that hope.
33You have not previously been in trouble with the law, and have no outstanding charges.
34You have been on remand since your arrest and are currently held at the Fulham Correctional Centre. Whilst on remand you have kept yourself busy by working and completing a number of courses. You have limited ability in English, which made your time on remand more difficult. You now share a unit with other Vietnamese-speaking prisoners.
35Tendered on your behalf was a psychological report of Mr Jeffrey Cummins, dated 11 November 2021. I have had full regard to the matters contained in that report. You told Mr Cummins, you became involved in the offending because you were offered payment to look after the cannabis crop. At the time you agreed to become involved in the cultivation, you were unemployed because of the impact of the COVID‑19 pandemic. You told Mr Cummins that you were not involved in the setting up of the crop or its intended sale. You have not made any money out of the crop, apart from being paid some money whenever you went there to look after and tend the crops.
36You are not a drug user, and have never been dependent on cannabis or any other illicit drug.
37Importantly, you acknowledged to Mr Cummins the wrongfulness of your offending, and accepted that you would receive a gaol sentence for your wrongdoing. You acknowledged your responsibility for your offending, and stated, you felt very ashamed and guilty for what you did.
38You told Mr Cummins, you have concerns about the welfare of your parents, particularly your father, who is ill with stomach cancer. You are also missing your wife and two children.
39You do not have a documented mental health history. Mr Cummins did not assess you as suffering from any specified psychological condition. According to Mr Cummins, you do, however, experience symptoms of reactive anxiety and depression, primarily reactive to your loss of liberty.
Thanh Van Tran
40Mr Tran, you too were born in the Nghệ An province. You are 28 years of age. Your parents, three sisters, and a brother all live in Vietnam and work as rice farmers.
41You completed the equivalent of Year 12, and then the first year of a civil engineering course at the University of Transport and Communications in Hanoi.
42At the age of 20 you came to Australia on a student visa. Your parents went to great lengths to send you to Australia, mortgaging the family home and borrowing funds to enable you to come to Australia. Upon arrival in Australia, you studied English in Perth for some four to five months. Then, at the beginning of 2014, you moved to Melbourne to take up employment and study on a part-time basis. You needed to work, I was told, as you did not have sufficient funds to study on a full-time basis.
43You obtained work at a Vietnamese restaurant in St Albans, working four days a week. You were employed at the restaurant for some 18 months before obtaining work as a handyman. You ceased to study in about 2016. At around that time, your grandmother became unwell with liver cancer, and you were required to send money back to your family to help with her medical care. Your grandmother passed away at the end of 2020. Your mother is also in poor health, with inflammatory bowel disease, and is significantly bedridden.
44Because you failed to pay your educational fees, your student visa was cancelled. You then applied for a protection visa, and after paying a significant sum of money to a migration agent, you were granted a temporary bridging visa, which has since expired.
45In early 2018 you obtained employment with a wholesale food and confectionery business operating in Sunshine West. You were engaged as a delivery driver. You worked there for approximately two years, initially on a part-time basis and later on a full-time basis. Your position became redundant because of the impact of the COVID‑19 pandemic. As a result, you struggled to pay the rent on your accommodation.
46I was informed by your counsel, Mr Stanton, you were offered work, and moved to Deer Park to live with your co‑offender, Mr Le. The work required you to attend the industrial shed in Portland to check on the cannabis crop.
47Since your arrest and remand in custody you have had limited contact with your family in Vietnam. Approximately once per fortnight or once per month, you speak to them by telephone, for approximately 10 minutes. You are required to pay for those calls.
48You are remanded at Fulham Prison, where you work as a cleaner.
49You are also a person who has not previously been in trouble with the law, and you too have no outstanding charges.
Sentencing Considerations
50The charge of cultivating a commercial quantity of cannabis has a maximum penalty of 25 years’ imprisonment.
51The offence of theft has a maximum penalty of 10 years’ imprisonment.
52The summary charge of dealing with suspected proceeds of crime carries a maximum penalty of two years’ imprisonment.
53The summary offence of failing to comply with a direction given by the Chief Health Officer has a maximum penalty of 120 penalty units, which at the time you offended amounted to $19,826.40.
54The seriousness of the offences you each committed, particularly Charges 1 and 2, is marked by the maximum penalties that attach to each of those charges. They are serious and prevalent offences.
55Mr Grant, who appeared on behalf of the Director of Public Prosecutions, submitted, the following matters were relevant to an assessment of the seriousness of your offending in relation to the charge of cultivating a commercial quantity of cannabis:
(i)The offending involved the modification of a large commercial shed;
(ii)The hydroponic setup was sophisticated, and resulted in cannabis being cultivated in a highly organised manner;
(iii)Whilst the prosecution cannot prove you were responsible for the initial setup, the funding of that setup, or that you were to profit from the realisation of the harvest, the evidence gathered during the investigation revealed that:
a) a degree of trust was placed in each of you, by those who controlled the cultivation, to ensure that the valuable plants were secure;
b) you both offended at the property on a regular basis during the period of the alleged offending, such attendance requiring you to travel from your homes in Melbourne to tend to the crop; and
c) you had access to the CCTV system which was being used to monitor the crop.
56Mr Grant submitted that the operation was a significant one, worth a significant amount of money, given the size of the crop. He said that you were not mere crop-sitters, and that your role was a vital one. He also submitted that it can be inferred that you provided security and an assurance that the equipment was in working order. Furthermore, you provided those involved in the setting-up of the hydroponic system with some protection in minimising the opportunity for their involvement to be detected by the authorities.
57Mr Farrington, who appeared on your behalf, Mr Le, submitted that, beyond simply considering the quantity involved, the objective gravity of the offending falls to be determined by reference to all the facts of a particular case. He submitted that the prosecution case against you may be gleaned from the CCTV recordings, that show you attending at the premises on multiple occasions over a period of six weeks. It was conceded that on each occasion you visited, you tended the cannabis plants. He submitted, however, there was no evidence of your involvement in the broader operation of the cultivation.
58Mr Farrington also submitted that the evidence suggests that persons other than you and your co‑offender were responsible for the rental of the premises, the conversion of the premises for the purpose of cultivation, and the setup of the electrical bypass.
59Mr Tran, your counsel, Mr Stanton, acknowledged that the regime under the Drugs, Poisons and Controlled Substances Act is a quantity-based regime. He accepted that you cultivated 1.8 times the commercial quantity by number of plants, and almost 14 times the commercial quantity by weight.
60Mr Stanton submitted that there was no evidence you were doing anything other than fulfilling a crop-sitting type of role by regularly attending the shed in Portland. He submitted there was no evidence that you had a role other than to regularly visit and check on the crop house. Mr Stanton also submitted that the plants, given their weight, must have been growing for a long time before your involvement in the cultivation.
61Mr Stanton submitted that the possession of the $1,175 in cash was consistent with you being paid for that role. He further submitted that I could not properly be satisfied you had any kind of managerial position, or that you stood to profit from the cultivation, other than by earning a wage tending to the plants. It was submitted, there is no evidence that would place you at a higher level in the hierarchy of this enterprise.
62There can be no doubting that the cannabis found growing in the shed was part of a sophisticated hydroponic enterprise.
63In my opinion, you each fall to be sentenced on the basis that you attended the shed on multiple occasions between 2 July and 18 August, tended to the plants, ensured that the hydroponic system was operational, and performed the acts captured on the CCTV earlier described. You, Mr Le, also had possession of a phone that was connected to that CCTV system. I accept, there is no evidence that either of you rented the shed in which the cannabis plants were growing, or that you modified that shed, or that you were involved in the setup of the hydroponic system or the installation of the electrical bypass. I am prepared to draw the inference that you each operated at a relatively low level in the hierarchy, given the evidence, and also that you were perhaps most at risk of being caught. This is implicit in Mr Grant’s submission that you provided those higher up the scale with a measure of protection. In my opinion, there is little utility, in this case, in attaching to you the imprecise label of “crop-sitters”. That categorisation was not pressed by either of your counsel in oral submissions.
64However, the fact remains that you were involved in cultivating a significant quantity of cannabis in what was a sophisticated hydroponic operation, which also involved the theft of electricity. The cannabis cultivated was just under 14 times the commercial quantity by weight. The role you each played was important to the success of the crop and its ultimate harvest and sale.
65Whilst the Drugs, Poisons and Controlled Substances Act is a quantity-based regime, I accept Mr Farrington’s submission that the objective gravity of the offending falls to be determined by reference to all relevant facts. That submission was adopted by your counsel, Mr Tran, Mr Stanton.
66Mr Farrington referred to the Court of Appeal decision in Nguyen v The Queen[1] where, at paragraph 26, Osborn JA stated:
“In R v Wong, the High Court made clear that it is an error to attribute chief importance to the weight of the drug in fixing the sentence for drug offences and distinguishing between offenders. It may be that the offender’s relative role in an enterprise is of greater importance.”
[1][2017] VSCA 127
67Further, at paragraph 28, his Honour stated:
“[T]he underlying principle must be that the objective gravity of the offending falls to be determined by reference to all the facts of a particular case.”
68Mr Grant referred to the decision of Dang v The Queen,[2] where the Court stated:
“In drug offences generally, including the cultivation of cannabis, the quantity of drugs and the role of the offender are important indicia of the gravity of the offending. The quantity of drugs is reflected in the statutory scheme and will also reflect the dimensions of the enterprise and, in a general sense, the scale of profit that the enterprise may be expected to generate.”
[2][2020] VSCA 24, [15]
69The Court further stated:[3]
“ … as was said in Nguyen v The Queen:
… it is important that any label that is attached to the offender’s role should not obscure, or distract attention from, the various factors that are relevant to a proper assessment of the gravity of the offending in a particular case. Those factors ordinarily include matters such as the tasks performed by the offender in the enterprise, the nature of his relationship with the principals or leaders of the enterprise, the degree of trust and responsibility reposed in the offender, the size, scope and sophistication of the enterprise, and any expectation of the offender in respect of the rewards to be derived from the enterprise.”
[3]Ibid, [17]
70Their Honours in Dang, Niall and Weinberg JJA, further stated that “[t]he focus when sentencing an offender must remain on what the offender has done in relation to the cultivation that forms the subject matter of the charge rather than the label to be applied.”[4]
[4]Ibid, [18]
71Your relative roles, as best I can determine, are as I earlier described. The evidence does not establish that you had a financial or greater interest in the outcome of the operation, apart from some money received to travel to the premises and tend to the plants. There is no suggestion that you stayed at the premises, it being said you travelled from Melbourne on each occasion. Your involvement in the cultivation lasted a little under seven weeks.
72With regard to your moral culpability, I find in both your cases, it is moderated somewhat by reason of you both being unemployed during the relevant period, your need of money for basic living requirements, and your relatively low position in the cultivation hierarchy which, as I have stated, I am prepared to infer.
73I regard each of your breaches of the Chief Health Officer’s direction to be a serious instance of offending. As stated, the summary charge is a rolled-up charge, covering 14 separate breaches. You were both clearly aware of the requirement to have a valid permit for work. Neither of you were authorised or permitted workers. You had no compelling reason to breach the order. There was nothing put on behalf of either of you to mitigate the breach of the direction. In so breaching the order on 14 occasions you put at risk the health and well-being of communities outside of Melbourne.
74You have each pleaded guilty to the offences.
75Mr Le, you offered to plead guilty to a charge of cultivating a commercial quantity of cannabis on 16 June 2021. There had been an earlier committal hearing, where the issue was the question of your intent in relation to the quantity of cannabis being cultivated. Your offer was accepted on 16 October 2021. Mr Tran, your pleas of guilty were entered on 29 October 2021, at the committal hearing. You were then facing a charge of cultivating a large commercial quantity of cannabis, which was withdrawn by the prosecution.
76I accept that the pleas of guilty have significant utilitarian value. They were entered following a process of negotiation, in which plea offers made by each of you were accepted by the prosecution in October 2021. You have accepted responsibility for your offending and have facilitated the course of justice. Given you were both facing a more serious charge, which was ultimately withdrawn, I am prepared to accept that your pleas were entered at a reasonably early time.
77The pleas of guilty are of significant benefit to the Court and the community in the saving of Court time and costs, and the sparing of witnesses from the need to give evidence at trial. They have added significance at this time, given the COVID‑19 pandemic and its impact on Court lists. As was stated in Worboyes v The Queen:[5]
“A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”
[5][2021] VSCA 169, [39]
78I accept that you are each remorseful for your offending. Mr Le, you made that clear to Mr Cummins during interview. On your behalf, Mr Tran, Mr Stanton submitted that you feel you have brought shame to your family, who went to great lengths to assist your travel to Australia. Each of your pleas of guilty, in my opinion, are indicative of your remorse.
79I have regard to the fact that each of you have not been in trouble with the law prior to the commission of these offences. I am prepared to accept that you are both otherwise of good character. This is, regrettably, not uncommon in cases of cannabis cultivation. As Mr Farrington submitted, persons such as yourselves, who have no prior convictions, are frequently targeted to perform the work of tending the crops, with promises of easy money.
80On your behalf, Mr Tran, Mr Stanton submitted that your current conditions of custody, which include limitations on the ability to participate in educational and rehabilitation programs, are relevant sentencing considerations. He pointed to the fact that your pre-sentence detention has been served during the COVID‑19 pandemic and that you have experienced periods of isolation and lockdown, including periods of 23- or 24‑hour lockdowns with no telephone calls.
81Mr Farrington also pointed to the difficulties you have experienced in custody, Mr Le, given your limited ability in the English language, the reduced level of contact with your family by reason of the pandemic, and the many lockdowns you have experienced on remand.
82Mr Stanton referred me to the Court of Appeal decision in Freeburn v The Queen (No 2)[6], where the Court observed:
“[I]t is relevant to take into account the impact of the lockdown restrictions that have been imposed as a result of the COVID-19 pandemic, and that have been applicable to the appellant and indeed to other prisoners in Victoria. As a result of those restrictions, the appellant has not had the opportunity to have contact visits, and the COVID-19 restrictions have been an additional factor (apart from his placement in a management unit) limiting the time that he might be able to spend out of his cell each day. The appellant’s placement, and the COVID-19 restrictions, have also meant that the appellant has had very limited opportunity to participate in courses directed to his rehabilitation, and to engage in meaningful work.”
[6][2020] VSCA 176, [61]
83The Courts well recognise that the burden of imprisonment during the COVID‑19 pandemic has been greater by reason of the restrictions necessary to control the spread of the virus. This is relevant to the sentencing consideration of just punishment.
84I also accept that the burden of your incarceration is that much greater by reason of the fact that you both are isolated from you families in Vietnam, with limited ability to have meaningful contact with them.
85Given your lack of prior convictions, Mr Le, your educational background, and your acceptance of responsibility for your offending, I consider, you have good prospects for rehabilitation. In your case, Mr Tran, given the absence of any prior convictions, your acceptance of responsibility for your offending, and your relative young age, I also find, you have good prospects of rehabilitation.
86It is accepted by both your counsel that you are each likely to be deported from Australia at the conclusion of your sentences.
87I was informed by your counsel, Mr Tran, that you accept that you will be deported, and that you are in fact anxious to return home to your family in Vietnam to assist them in rice farming.
88Mr Farrington submitted that the fact that an offender will serve his term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. I accept that principle. I am prepared to sentence on the basis that, whilst you will each be deported, there will be some anxiety as to what may occur following your release from gaol, where you will be detained, and for how long.
89In your case, Mr Le, your hope of making Australia your home for you and your family, a hope which is now, in all likelihood, at an end, adds, no doubt, to the burden of your incarceration and the anxiety of your pending deportation.
90Mr Grant accepted that the prospect of deportation causes each of you heightened anxiety and increases the burden of imprisonment.
91In your case, Mr Tran, Mr Stanton submitted that at the age of 28, you are a youthful offender for the purposes of sentencing. He relied on the principles set out in cases such as The Queen v Mills[7] and Azzopardi v The Queen,[8] although conceded, the mitigation based on those principles must be moderated, given you fall at the upper end of the range of what might be considered a youthful offender.
[7][1998] 4 VR 235
[8](2011) 35 VR 43
92Mr Stanton relied on The Queen v Lovett.[9] At the time Mr Lovett was sentenced, he was aged 27 years. He also suffered from an intellectual disability. In that case, Lasry J considered that Mr Lovett’s relative youth should have a moderating effect on the sentence to be imposed, in line with the principles set out in The Queen v Mills.
[9][2008] VSC 60
93Mr Stanton referred to a number of propositions set out in paragraphs [34]–[36] in the case of Azzopardi relevant to the sentencing of youthful offenders. I accept what is there set out, particularly as it applies to first-time youthful offenders.
94I am prepared to make some allowance for your relative youth in the sentence to be imposed, although it is to be moderated given you are at the bounds of what might be considered a youthful offender. Unlike Mr Lovett, your level of maturity is not impacted by intellectual disability.
95I accept Mr Grant’s submission that general deterrence, denunciation and just punishment are important sentencing considerations in the present case. Offences of cultivating in a commercial quantity of cannabis and theft of electricity are prevalent offences, and those who engage in such criminality should understand, they risk serving lengthy periods of imprisonment. Such conduct is to be denounced by the Courts. I am also required to give effect to specific deterrence, although in both your cases, given your lack of prior convictions and my finding as to your prospects of rehabilitation, the weight to be attached to this sentencing consideration is to be moderated. I consider that the likelihood of you re-offending, in each of your cases, is low.
96I am required to have regard to current sentencing practise. To that end, Mr Grant referred me to a number of sentencing decisions which are set out in Exhibit P2. I have had regard to those, and other decisions, as one factor relevant to the sentencing discretion. I have also had regard to the sentencing summaries set out in the Judicial College of Victoria’s Sentencing Manual for commercial quantity cultivation. However, I am also mindful of what was stated by Osborn JA in Nguyen:
“... a sentence does not itself give rise to a binding precedent. Sentencing considerations in comparable cases must be had regard to as ‘yardsticks’ that may serve to illustrate (although not define) the possible range of sentences available.”[10]
[10][2017] VSCA 127, [41], his Honour referring to what was said in The Queen v Pham (2015) 256 CLR 550, at 559-60
97His Honour was, of course, referring to what was said in the High Court decision of The Queen v Pham.
98It was not suggested by either defence counsel or the learned prosecutor that I should impose disparate sentences. No distinction was sought to be made as to your respective roles, conduct or position within the drug hierarchy. When regard is had to both the objective and subjective considerations, I have, in the end, concluded that I should not impose disparate sentences. Although, Mr Tran, you are younger and can call in aid sentencing principles relevant to youthful offenders, Mr Le, your loss of opportunity to further your studies and aspirations to live in Australia with your wife and children is not an insignificant factor weighing in your favour. A comparison of your relative positions does not, in my opinion, warrant me imposing different sentences on each of you.
99The principle of totality is also relevant to each of your cases. The offences of theft of electricity and the dealing with property suspected of being the proceeds of crime are offences, very closely related to the cultivation of the cannabis.
100Section 5(2H) of the Sentencing Act requires me to impose a sentence of imprisonment. It was not suggested by either of your counsel that I do anything other than impose a sentence of imprisonment with a non-parole period.
Sentence
Duong Van Le
101On the charge of cultivating a commercial quantity of cannabis, you are convicted and sentenced to three years and six months’ imprisonment.
102On the charge of theft, you are convicted and sentenced to three months’ imprisonment.
103On the charge of dealing in property suspected of being the proceeds of crime, you are convicted and sentenced to two months’ imprisonment.
104This makes a total effective sentence of imprisonment of three years and six months.
105On the charge of breaching the Chief Health Officer’s directions, you are convicted and fined the sum of $2000. But for what I consider is your poor financial position, the fine would have been much greater.
106I set a non-parole period of 22 months' imprisonment. I consider this period to be the minimum period that justice requires you to serve, having regard to all the circumstances of your case and, in particular, the fact that you are a first-time offender, with good prospects for rehabilitation.
Than Van Tran
107On the charge of cultivating a commercial quantity of cannabis, you are convicted and sentenced to three years and six months’ imprisonment.
108On the charge of theft, you are convicted and sentenced to three months’ imprisonment.
109On the charge of dealing in property suspected of being the proceeds of crime, you are convicted and sentenced to two months’ imprisonment.
110This makes a total effective sentence of imprisonment of three years and six months.
111On the charge of breaching the Chief Health Officer’s directions you are convicted and fined the sum of $2000. But for what I consider is your poor financial position, the fine would have been much greater.
112I set a non-parole period of 22 months. I consider this period to be the minimum period that justice requires you to serve, having regard to all the circumstances of your case and, in particular, the fact that you are a first-time youthful offender, with good prospects for rehabilitation.
113Pursuant to s 18 of the Sentencing Act, I declare, 534 days, not including today, is reckoned as the period of imprisonment already served under the sentence, in each of your cases.
114I am required to inform you of the period of imprisonment I would have imposed had you not pleaded guilty to those offences for which you can be sentenced to a term of imprisonment. But for your pleas of guilty, the sentence I would have imposed, in each of your cases, is one of four years and six months' imprisonment, with a non-parole period of 34 months.
115I have before me a disposal order that has been sought by the prosecution. Mr Stanton, have you seen that order?
116MR STANTON: Yes, Your Honour. There's no opposition to it.
117HIS HONOUR: Thank you. Mr Le, have you seen that order?
118MR LE: I have, Your Honour, and no opposition to it, either.
119HIS HONOUR: In those circumstances, I will make the disposal order that has been sought by the prosecution.
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