Director of Public Prosecutions v Le, Loc Duc
[2013] VCC 434
•22 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-12-01725
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LOC DUC LE |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2013 | |
DATE OF SENTENCE: | 22 February 2013 | |
CASE MAY BE CITED AS: | DPP v Le, Loc Duc | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 434 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentence – plea
Catchwords: cultivation of a commercial quantity of a narcotic plant – 126 kilograms of cannabis found at the premises – theft – trafficking in a drug of dependence – cannabis – prior criminal convictions – drug and gambling addictions – exceptional circumstances – family hardship – mercy – wife critically ill
Legislation Cited: s.72A of the Drugs, Poisons and Controlled Substances Act 1981 – s.74 of the Crimes Act 1958 – s.71AC of the Drugs, Poisons and Controlled Substances Act 1981
Cases Cited:R v. Pidoto& O'Dea [2006] VSCA 185 – Bala v. R [2010] VSCA 78 – R v. D'Aloia [2006] VSCA 237 – R v. McLeish (1982) 30 SASR 486 – Markovic v. R [2010] VSCA 105 – R v. Kane [1974] VR 759 – R v. Panuccio (unreported, Court of Appeal of Victoria, 4 May 1998)
Sentence: total effective sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. O’Halloran | Mr J. Ong (Office of Public Prosecutions) |
| For the Accused | Ms C. Woodward | Ms M. Dixon (Victorian Legal Aid) |
HIS HONOUR:
1 Mr Le has pleaded guilty to three charges on Indictment No. C1208052.1. Mr Le is thirty-three years old.
2 The charges are of a serious nature. Indeed, Charge 1 brings with it a penalty which is as high as can be set but for certain murder charges within the crime jurisdiction. As a result of the provisions of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty set for cultivation of a commercial quantity of a narcotic plant is one of twenty-five years.
3 Charge 2 relates to the theft of electricity associated with that cultivation. It is often underestimated how serious a charge that is. However, when one realises in this case the compensation order, one sees the extent of which the public purse, which ultimately is the repository for payment for these losses, is deprived, in this case, over $10,000.
4 Charge 3 equally is a particularly serious charge. It is one of trafficking. In this case, the cannabis and indeed the cannabis that was produced at these premises in Wyndham Vale and in this instance the maximum penalty which is provided under the Drugs, Poisons and Controlled Substances Act 1981 is one of fifteen years.
5 Counsel who appeared at the plea was Mr O'Halloran, on behalf of the Director of Public Prosecutions, and Ms Woodward on behalf of Mr Le. Mr Ong appears today, as does Ms Dixon for Mr Le.
6 Exhibit A was tendered by consent of both parties and sets out the details and the role that Mr Le played. It details a sentence imposed on a co‑accused by my sister, Judge Cannon, on 27 November 2012. That was a Mr Vu. I have read those sentencing remarks and it seems to me that the manner in which she summarised Mr Vu's offending insofar as Charge 1 was concerned is totally appropriate in this case. The offending of Mr Le is significant criminality which has attendant upon it high moral culpability. If one looks at the circumstances, there is not much to distinguish between yourself and Mr Vu and it seems to me in regard to your role, that I would sentence accordingly.
7 One matter, however, which reduces the choices which might otherwise be available to a Court, not that there is much choice when a person commits an offence of this type, however it is of particular concern. In your case, while Mr Vu did have priors, you specifically have priors for trafficking and for cultivating, and for cultivating this very narcotic product. As I say, significantly, on 30 April 2010, you were convicted in the Sunshine Magistrates' Court. You were given an aggregate sentence of two years, which was wholly suspended. Those offences were traffick cannabis, cultivate cannabis, exactly the same matters that I am dealing with, but, of course, not of the same degree.
8 While it is true that you completed the period of suspended sentence, the leniency shown by the Court on that day to you proved to be fatuous. Your actions five months after the completion of the suspended sentence shows that you learnt nothing, shows that the leniency provided to you by the Court on that occasion was to no effect.
9 As is detailed, the offending essentially involved you, unusually, in executing a lease agreement over these premises and being involved essentially as the sitter, as is the phrase, in the cultivation of a large amount of cannabis. To demonstrate that point, the traffickable quantity under the Drugs, Poisons and Controlled Substances Act 1981, pursuant to the Schedule, is twenty-five kilograms or one hundred plants. When the police arrived on 20 June 2012, you were in possession, or there was present in the house, a total of one hundred and twenty-six kilograms, five times the traffickable quantity. There was the usual paraphernalia in regard to this home.
10 It was apparent from your interview that you had "lived" at the premises for about two to three months. It is the Crown case that you were not the leading light in this criminality, that there was a person called Tuan who was one step above you in regard to the organisation of these particular offences. There was no doubt in your record of interview, as you said, the sole reason for you being involved in this matter was the receipt of money. Indeed, you had estimated in your record of interview that you were shortly to receive the sum of $5,000 in cash and that you were able to sell half kilo bags for about $1000.
11 In regard to Charge 3, it is true to say that such offence was substantiated as a result of your own admissions. However, those admissions demonstrate the seriousness of the charge for, as you say, you had sold cannabis, which means you had trafficked cannabis, and had received the sum of $10,000 to $15,000 for same.
12 As I say, I cannot really distinguish as to your role in this serious criminality from Mr Vu. However, there is a significant difference, between you and Mr Vu because although Mr Vu had priors, he certainly did not have the significant priors in regard to this matter that you had, nor had he been granted the leniency prior by a Court that you had.
13 The seriousness of these offences is constantly rehearsed by Courts and constantly the Courts say that people who involve themselves in such criminality can expect condign punishment. As far as these offences are concerned, the Court of Appeal, in R v. Pidoto& O'Dea [2006] VSCA 185, at [34], considered generally the principles appropriate to the sentencing process for drug offences. Four of the Court of Appeal Justices noted the structure now adopted by Parliament is "a hierarchy of seriousness defined by, and only by, the quantity of the drug of dependence which has been trafficked". That adapted to you means the quantity of drug which has been cultivated and, clearly, you are at the upper level, given that yours was a commercial quantity in regard to Charge 1.
14 More recently the Court of Appeal said, in Bala v. R [2010] VSCA 78, at [12], that the sentencing regime, insofar as you are concerned, is quantity based, which means that the quantity will ordinarily be the key indicator of the seriousness of the offence, although, of course, as the Court points out, never determinative of penalty.
15 The Court has also set out the general approach for Judges when dealing with crimes of this type. Nettle JA, in R v. D'Aloia [2006] VSCA 237, at [56], said:
"So far as the effects of… [in that case, it was MDMA] are concerned, the matter may still be approached on the basis that all of the drugs which are proscribed have deleterious consequences of antisocial proportions and that trafficking in any of them is therefore properly to be regarded as a serious criminal offence."
16 Albeit that your role is not at the top in this instance, I would not wish to have it thought that it is underestimated in regard to its seriousness.
17 In R v. McLeish (1982) 30 SASR 486, 492, the Court spoke about the failure of Courts generally and the authorities to find the persons at the top of these drug chains and further spoke of how one should sentence persons who form and carry out lesser roles. It was said as follows:
"It seems to me to follow that after making all due allowance for the personal circumstances and antecedents of a prisoner, the facts of a particular case and the need to show such mercy as is compatible with the safety of the public, a Court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organisation for purveying drugs, as well as potential recruits, the simple truth that a man who participants in such an organisation, at any level must expect, and will receive, a heavy penalty." (my underlining)
18 It is with those principles that I primarily have to approach your sentencing.
19 The plea that was tendered was essentially one seeking a merciful determination for you. I was handed a chronology in regard to your life and there is no doubt, and I accept, given your background, that you certainly had a difficult upbringing, that your life was dogged by poverty and deprivation. However, unlike many of your fellow country persons, you had the opportunity, through the hard work of your father, to arrive in Australia and have the opportunity for a new life.
20 Unlike many Vietnamese migrants to this country who have made a marvellous and wonderful contribution to this country, you have chosen to take the criminal path. Unfortunately, this Court has to deal with many people like you and, unfortunately, many people from your background, who make like choice. It may well be associated with the poverty involved, it might well be the difficulty of being a migrant in a new country, however, it would be terrible to in any way cast an aspersion upon the whole of the Vietnamese people by your decision to act in this serious criminal manner.
21 I want to make it clear that I certainly fully appreciate and I think most right‑thinking people understand the great contribution that the majority of people who have come to Australia from Vietnam have made to this country. You, unfortunately, have gravely let down your countrymen now living in Australia. That doesn't mean that I don't understand the difficulties associated with your life or that have been referred to by Ms Woodward.
22 Insofar as your background, tendered as Exhibit 1, was the report of Mr Warren Simmons, psychologist, dated 12 February 2013. I cannot help but think the real truth in this matter is that you are basically a totally selfish person who goes about and does exactly what you like. It seems to me that your life has been one of, firstly, allowing yourself to be addicted to drugs, gross abuse of drugs, and then you moved to alcohol and you abused yourself by being a person who can't control himself in regard to gambling.
23 Unfortunately, associated with you, and I accept that you have a genuine marriage and that there have been difficulties in regard to your wife insofar as her illnesses. However, it seems to me that you are actually using that to your advantage now. As the Courts have said regularly, with your wife with such a critical illness, it beggars belief how you would involve yourself in such serious criminality.
24 In addition to that was tendered Exhibit 3, which is the report on your wife's history, and I accept such totally. Also, I accept the character reference from Ms Dean, Exhibit 2, and you have in Court again, a teacher from your child's school who is here to support you.
25 It was put to me that because of the problems of your wife, you have succumbed to the temptation to make easy money. It was put to me that you were to receive not the $5,000 you refer to in your record of interview but a sum of $10,000 to $15,000 and that despite your work over the period, of which you were charged for, that is the period from 10 March 2012 through to 20 June 2012, it is suggested to me that you were not paid that sum. We know as a result of Charge 3 that you certainly were earning income as a result of your trafficking.
26 I accept that when interviewed, you provided full admissions and you indicated that despite your prior offence, which you readily admitted in question 14 of the record of interview, you were essentially involved in getting money to help your wife. As I say, I have grave doubts about the reality of that excuse.
27 I accept totally the circumstances of your wife's illness. I note the proposition of your failure in business. Whether that failure was a real failure or totally associated with your gambling, no‑one would know. The real issue concerning your wife is that she has limited support. I am sure the Vietnamese community does support her because essentially, as I understand the position, if that community doesn't support her, with you in gaol, there are very few people who can support her. Fortunately, with the large percentage of people in the St Albans area who are Vietnamese, the school ties of the family, and the excellent work done by the teachers and indeed the support in this Court, provides the support to your wife that you have so negligently abused by your criminality. I am told that despite her neurological problems, she has a further liver operation scheduled and as recently as the night before your plea suffered a seizure.
28 Your counsel submitted that you are well aware of the outcome of your criminality and that a gaol sentence is appropriate. She submitted to me that by your actions, you not only provided an early plea but you acknowledged your criminality in the record of interview, you provided a plea at the earliest of times and, despite your prior criminal conviction, counsel put to me that what we are really dealing with here was one of those very unusual circumstances in regard to your wife, where I should find that there are exceptional circumstances and exercise mercy, in particular insofar as to the parole period.
29 In response to that, the Crown submitted that they equally, as I had expressed during the plea, wondered if the proposition being put by you was pure artifice. I must say I have found it very difficult having looked at all the material, the length of your criminality, your background, the degree of criminality and its culpability. I cannot get out of my mind that what you are involved in is essentially a con job of this Court, typical of what I think is the real you, using your wife to try and escape the appropriate sentence that you deserve.
30 These situations and propositions put to a Court create particular difficulties. As I say, I have no hesitation in finding, on the materials, that your wife does suffer from the condition that has been indicated to the Court. This issue as to exceptional circumstances should be understood as that. Mercy is only exercised in cases such as this, exceptionally. The matter was considered by a Full Court of five Appeal Justices in Markovic v. R [2010] VSCA 105. Their Honours set out the propositions insofar as the course sought by your counsel as follows:
"Reliance on family hardship, that is hardship which imprisonment creates for persons other than the offender, is itself an appeal for mercy. Properly understood, therefore, the purpose and effect of the exceptional circumstance test is to limit the availability of the Court's discretion to grant mercy on that ground."
31 In considering the exceptional circumstance test at [6], they make the obvious point that it is almost inevitable in any sentence of imprisonment that such will have an adverse effect on a person's dependence. They make the other fundamental point, especially in a case of this seriousness, that the primary function of the sentencing Court is to impose a sentence commensurate with the gravity of the crime and they point out that hence it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account.
32 They repeated the comments of an earlier Full Court, at [8], to the effect of what I have already said. These were statements of a Court comprised of Their Honours Adam, Starke and Crockett in R v. Kane [1974] VR 759, where Their Honours said:
"The Court has so often said where one appeals for mercy on the grounds of hardship to a wife or family, the accused ought to have had regard to that before embarking on a crime and the Court cannot be blamed because it deals with an accused on the merits having regard to the gravity of the offence."
33 It went on to say that the occasions when mercy is granted because of such circumstances must be seen to be rare.
34 There was further reference to this by a Full Court in R v. Panuccio (unreported, Court of Appeal of Victoria, 4 May 1998). Winneke P, talking of the same proposition, said that a Court should usually disregard the impact which a sentence will have on members of the family, unless exceptional circumstances has been demonstrated. He went on to say:
"The principle has so often been stated it does not need repeating. It goes without saying, I think, that the graver the crime which the prisoner is being sentenced for, the more difficult it will be to find exceptional circumstances because the relief usually sought and generally necessary to alleviate the plight of the relevant family members affected will require absolution from incarceration."
35 Those principles, insofar as I have had to try and approach them, have been very difficult indeed. I have, in the end, determined, despite my view as to your lack of genuineness, as to what I think is really a con job being presented on the Court by you, and what I believe to be your use of your wife's grave illness, I cannot, of course, disregard the fact of her illness and her current plight. I think in this case there are circumstances, despite my reservations about you, that I must take into account her position and her state, and I do so insofar as the minimum penalty that I will impose in this case.
36 If you would stand, please.
Sentence
37 Mr Le, in regard to these serious offences, you will be sentenced as follows.
38 On Charge 1 of cultivation, you are sentenced to a period of imprisonment of three years.
39 On Charge 2 of theft, you are sentenced to a period of imprisonment of nine months.
40 On Charge 3 of trafficking, you are sentenced to a period of imprisonment of eighteen months.
41 I order that in regard to the base sentence of three years, four months of the period imposed on charge 3 and two months of the period imposed on charge 2 be cumulated upon such sentence, making a total effective sentence of three years and six months.
42 In the particular circumstances of this case and the exceptional circumstances that I have found, I have determined the minimum period that you should serve before being eligible for parole is a period of two years.
43 I declare that pre-sentence detention that you have served to date, being agreed at two hundred and forty-seven days, should be deemed to be service of this sentence and a declaration to that effect be recorded in the records of this Court.
44 I record, doing as best as I can to comply with the requirements of Parliament, pursuant to s.6AAA of the Sentencing Act 1991, that had you not pleaded guilty to these three charges, the maximum penalty I would have imposed upon you would otherwise have been one of four years and four months, with a minimum period to serve of three years.
45 I have signed a disposal and compensation order and I have also signed the order under s.464ZF of the Crimes Act 1958. That requires you to undergo a forensic examination. In this instance, a sample will be taken from your mouth. All that I need say is should you refuse ultimately to undergo that sample, the authorities can come back to Court to get an order to force you to do it, so I would ask you to undergo such sample.
46 Is there any other matter that I need to attend to?
47 MR ONG: No, Your Honour.
48 HIS HONOUR: Ms Dixon?
49 MS DIXON: No, Your Honour.
50 HIS HONOUR: Madam Interpreter, would you tell Mr Le that Mr Dixon will come down to the cell, no doubt, to detail these matters for him, but in layman's terms, I have sentenced him to a maximum penalty of three years and six months and he has to serve a minimum period of two years, less what he has already served, which is two hundred and forty-seven days, and Ms Dixon will explain those matters more clearly to him.
51 Take the prisoner away. Thank you, Madam Interpreter.
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