Director of Public Prosecutions v Mai
[2013] VCC 1331
•25 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-01139
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANH TUAN MAI |
---
JUDGE: | HER HONOUR JUDGE HANNAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 September 2013 | |
DATE OF SENTENCE: | 25 September 2013 | |
CASE MAY BE CITED AS: | DPP v. Mai | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1331 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Bhai | |
| For the Accused | Ms J. Pisisale |
HER HONOUR:
1 Anh Tuan Mai, you have pleaded guilty to one charge of cultivating a narcotic plan, namely cannabis, in not less than a commercial quantity. The maximum penalty for this offence is 25 years' imprisonment.
2 In addition, you have consented to the uplifting a summary charge of dealing in property suspected of being the proceeds of crime. The maximum penalty for this offence is two years' imprisonment.
3 The facts which found the charges are set out in the prosecution summary which is Exhibit A.
4 At approximately 2.10 p.m. on Tuesday 26 March police executed a search warrant at 3 Parramatta Crescent, Noble Park. You were present at the time of the execution of the warrant.
5 The police had observed you approximately 15 minutes prior to execution walking towards the premises and entering them. You were at that time carrying grocery bags and a black laptop bag.
6 A subsequent search of the property revealed 473 cannabis plants weighing a total of 125.6 kilograms. The plants were being grown in seven rooms of the premises and modifications had been made to segregate the various growing rooms. The plants were of varying sizes and thus maturity. The smaller plants were being grown in tubs while the larger plants were under high powered grow lights. A watering system had been installed as had ventilation. The windows of the rooms were blacked out and silver foil for the purposes of reflection had been fitted on various walls. Various items were seized and can broadly be described as the usual accoutrements of cultivation.
7 Located in a hand basin in the bathroom was a wallet containing $455 cash and it is this property which founds the summary charge.
8 You were arrested and interviewed at the Mill Park Police Station. You told police, amongst other matters," I lost a lot of money at casino and then I met a person there who helped me. He lent me some money and he asked me to look after the house for him." You said, "It's the first time I met the person. He gave me the key for the house and asked me to look after the house. He didn't mention any specific duties, just clean the house." You said, "The lender told me I have to pay interest and if I recoup my money, if not I have to stay there and try to recoup the loss." You said, "I went with the person by bus. The person pointed the house and asked me to look after the house."
9 You asserted during the course of that interview that you did not know anything about the cannabis. Clearly by your plea you accept both your knowledge and participation.
10 Your offending is clearly serious. I accept that you were what is colloquially known as a "crop sitter" and that you were probably not to share in the ultimate profits of this venture. I accept that you engaged in the conduct in the context of significant financial vulnerability which I accept was exploited. That is not to say, however, that you are not responsible for your own decisions in this regard. As I commented to counsel during the course of her submissions, you, in effect, took the risk and got caught. It is relevant to note in terms of seriousness that the amount of cannabis located is in excess of four times a commercial quantity.
11 You have no prior convictions nor anything subsequent. I have been told that you have no prior convictions in Vietnam. You are to be sentenced on the basis that you are, apart from this matter, a man of good character.
12 You are now aged 40. You were born in Vietnam to a farming family and you are the middle of three siblings. You have a limited education which ceased in Year 7. By 12 or 13 you had commenced vocational training in the context of a family who could not afford further education for you. By 16 you were working in a factory in mechanics where you remained until you travelled to Australia.
13 You married in 2002. You have two children aged 12 and 7. Your brother died two years ago, it seems in circumstances where your family could not afford optimum medical intervention.
14 You came to Australia in September of last year on a three month visa. You instruct that was for business purposes. I have some scepticism in that regard and I do not think it is clear what your real intention was. Whatever it may have been, you became involved in gambling and ended up with a $10,000 debt. It was at that time that this venture was put to you as your only way out. This is a scenario which this court has heard on many occasions.
15 Since your remand your wife has left you. You have been told your children are residing with your parents who are aged 65 and 66. Your older brother is also residing there after being involved in a serious motorbike accident. Your wife it seems has determined that she wishes to remarry and I have been told by counsel that she has come to Australia for that purpose leaving your children in Vietnam.
16 You will be deported at the end of your sentence, but you had no legitimate expectation that you could remain. You will of course be deported to your family.
17 In relation to your prospects of rehabilitation, I think they are probably assessed as very good when regard is had to your plea, lack of any criminal history nor anything subsequent and your expressions of remorse as regards your offending.
18 Your counsel points to a number of matters you are entitled to have taken into account in mitigation. Firstly, your plea of guilty itself. It is conceded that you pleaded guilty at the earliest reasonable opportunity. I note that that was in the context of you having made admissions to police. You have saved the community the time and expense of a trial. You are entitled to the full benefit of an early plea of guilty and I have sentenced you on that basis.
19 I further take into account the contrition which I do accept as being inherent in your plea. I accept that your plea is properly used as evidence of your remorse.
20 As I have noted, you have no prior convictions nor anything subsequent.
21 I am sentencing you on the basis that your isolation from your family whilst in custody will make your term of imprisonment more onerous, especially in light of your children's changed circumstances.
22 The Crown submit that the appropriate sentencing range is a head sentence of between 18 and 24 months with a non‑parole period between 9 and 12 months.
23 Your counsel quite properly concedes that the only disposition open to this court is an immediately servable term of imprisonment and says that the lower end of the Crown range is within range.
24 As well as matters personal to you to which I must have regard, I must also take into account other relevant sentencing principles. General deterrence is of considerable importance in matters such as this. I must seek to deter not only you but others who would engage in like conduct. This is of course conduct which seriously damages the lives of members of our community. I regard general deterrence as an important factor of course to be weighed with other relevant sentencing considerations. Your sentence must manifest the community's denunciation of your conduct and impose just punishment. I must seek to deter you from future offending, although, in my view, this can be given less weight in light of your history and subsequent conduct.
25 On Charge 1, cultivating a commercial quantity of cannabis, you are convicted and sentenced to be imprisoned for 22 months. On the summary charge of dealing in proceeds of crime in my view this is an offence towards the lower end of the range of offences of this type and in the circumstances a financial disposition is open. You are convicted and fined $500. I direct that you serve 11 months before becoming eligible for parole. I declare that 183 days be reckoned as served. I direct it be noted in the records of the court that were it not for your plea of guilty I would have sentenced you to 30 months with a non‑parole period of 18.
26 The Crown seek two disposal orders in relation to the items listed in the schedule to the draft order together with the money which is the subject of the summary charge. You have consented to both orders which I make in terms of the draft.
27 Finally, the Crown make application pursuant to s.464ZF of the Crimes Act for an intimate forensic sample to be taken from you. You consent to the making of that order. I make a forensic sample order limited to saliva. I direct that a sample of saliva be taken from you for placement on the database. A saliva sample is taken by wiping the swab on the inside of your mouth. I must inform you that police may use reasonable force to enable that procedure to be conducted.
28 Counsel, is there anything arising?
29 MS BHAI: No there's not, Your Honour.
30 HER HONOUR: Counsel?
31 MS PISISALE: No.
32 HER HONOUR: Thank you. Yes. Take Mr Mai downstairs please.
33 Thank you Madam Interpreter. Stand down.
---
0
0
0