Director of Public Prosecutions v Ngo

[2018] VCC 1450

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01341

DIRECTOR OF PUBLIC PROSECUTIONS

v

BA VAN NGO

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2018
DATE OF SENTENCE:	10 September 2018
CASE MAY BE CITED AS:	DPP v Ngo
MEDIUM NEUTRAL CITATION:	[2018] VCC 1450

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Cookson	Office of Public Prosecutions
For the Accused	Mr V. Andreou	Christopher James Lawyers

HIS HONOUR:

1Ba Van Ngo, once again this court is required to impose sentence for the crime of cultivation of a commercial quantity of cannabis.  Again, the cultivation occurred in an ordinary suburban house.  Once again, the accused before the court is at the lowest end of the entrepreneurial criminals engaged in this prevalent crime.

2Given this crime has become so prevalent, I have spoken in similar terms in many sentences I have imposed.  The Court of Appeal have endorsed those words, and accordingly I turn to them yet again.

3On 11 December 2017, police found you, Ba Van Ngo, at 9 Keating Court, Miner's Rest.  Within the premises the police found 183 cannabis plants, weighing a total of 134.7 kilograms.

4The plants were under hydroponic cultivation in six rooms.  Also found was 12.6 kilograms of mixed cannabis material that was drying.  I will ensure that you are not doubly punished, or even factor into the equation the drying material, as the only offence that you face is cultivation, and it seems by watering and other like things, not by harvesting.

5The cultivation methods deployed in this house were sophisticated.  The lighting that had been installed was such as to allow the plants to be grown indoors.  The electricity meter was bypassed to allow for higher volumes of electricity to be consumed without detection, and importantly without cost.  It is not said that you had anything to do with the electricity bypass.

6There were a number of pieces of equipment to assist the cultivation.  This included over 100 light shrouds and 100 electric power transformers and ten charcoal filters.  The equipment involved in these hydroponic systems are all expensive items, indicating there had been significant resources expended on the basis that large quantities of cannabis would be cultivated for profit.

7In this case, the plants were heading towards harvest for the purpose of profit. All the features found in this house are often found in suburban or country houses that have been converted into cannabis production operations.  The crime is hard to detect, and even harder to establish who are the main players in the cannabis production and distribution chain.

8Before dealing in more detail with your crime, it should never be forgotten that the cannabis grown by the cultivators ultimately has serious adverse effects on many users, and consequently our community bears a great cost, while the entrepreneurial cannabis cultivators profit significantly.  The entrepreneurial cultivators have for some time sought to avoid their own detection by having vulnerable individuals mind the crops.

9These crop-sitters, as they have become known, ensure that the equipment continues to operate.  As the courts have seen from time to time, the crop-sitters also provide a degree of security for the crop.  Most importantly, they keep the entrepreneurs at arm's length from the crop while it grows to a saleable product.

10You are charged with cultivating not less than a commercial quantity over a period just over one month.  On the basis of what you said to the police in your record of interview after your arrest, and with the concessions made by the prosecution, it seems that you are at the lowest end of this operation, or at least the low end possibly with one below you.

11Accordingly, I will deal with you as a crop-sitter, and you will be sentenced as such.  However, the Court of Appeal has in recent times made it clear that general deterrence is of great significance in respect of all those involved in these drug operations, including those who take it upon themselves to be crop-sitters.

12This was a significant operation.  The quantity of plants was just under twice the commercial quantity of plants and five times the commercial quantity by weight.  The significant amount of dried plant material indicates ongoing cultivation and harvest, although I repeat you are not to be dealt with as a harvester.

13A very significant amount of the house had been converted into cannabis production.  The size and health of the plants indicates a degree of crop rotation to ensure continuous supply and cash flow.  On any measure, this was sophisticated, organised crime involving deliberate planning.  You played an important role as an on the ground cultivator and crop-sitter.  This is a serious example of the crime of cultivation of cannabis in not less than a commercial quantity.

14When you were arrested, there was another person in the house by the name of Lucy Nguyen.  She was also arrested and interviewed.  What I was told was that Ms Nguyen was dealt with in the Magistrates' Court at Ballarat, receiving a sentence of nine months for cultivating a narcotic plant simplicitor, as it is said.  It was said that the co-accused had a criminal history, and I have seen that today.  Those previous crimes are old, but you do not have a criminal history at all.

15Your counsel in written and oral submissions emphasised the need for parity between the sentence imposed by a magistrate on the co-accused and your sentence.  The submission was made, notwithstanding that you face a more serious charge of cultivation in a commercial quantity, a charge which must be dealt with in the County Court.

16Although it is desirable that one court and one judicial officer deal with all linked accused, that has not occurred here because of the different and more serious charge that you face.

17Nonetheless, although the co-accused face a less serious crime, and the Magistrates' Court has jurisdictional limitations on sentence, they do not apply here.  I must within that context ensure that there is no justifiable sense of grievance by the sentence I impose, relative to that imposed by the magistrate on the co-accused.

18I emphasise that it is only a justifiable sense of grievance that must be guarded against.  The sentence I impose cannot and will not be the same as the co-accused.  To do so would in my view create a justifiable sense of grievance for the co-accused.

19As to your explanation for your conduct, you told police in your interview that you had been in the house at Miner's Rest for about two months.  You were only charged with the period 7 November - 11 December.

20You gave as an explanation for why you were there that a man at the St Albans market asked you if you were interested in cultivating flowers for a fee of $1,500 per week.  What you were told was you did not need to know what the flowers were, but simply you had to look after the house and water the plants.  You explained that you did water the plants, but you had not been paid. 

21At the time of your arrest you were 45 years old, and are now 46.  Thus, unlike many other crop-sitters, you do not have the mitigatory benefit of youth and immaturity.  As to other aspects of your personal circumstances, you are married with two children.  Your family still live in Vietnam.

22You left Vietnam, arriving in Australia in July 2017 on a business visa.  I was not provided with any information as to what that business was, what the visa was, or anything of the kind. 

23What I was told was that upon your arrival, you applied for a protection visa, but that has yet to be resolved.  So it seems within four to five months of arriving in Australia, you embarked on serious criminality, cultivating commercial quantities of cannabis that causes detriment to the community here.

24As noted, you have no prior criminal convictions, and at the age of 46, that is a matter to your credit, and I have taken that fact into account in fixing the sentence.

25You have pleaded guilty at an early enough point, and I have taken that into account in your favour.  Your sentence will be much less than otherwise it would have been had you pleaded not guilty and been found guilty of this offence.  Your plea of guilty is taken as an indication of your acceptance of responsibility, and it has utilitarian benefits.  You are isolated in custody, with your family still in Vietnam.

26You do not speak English, and I take that as another factor making prison more onerous for you.  My sentence must express denunciation and deterrence in a practical way.  All of that was conceded by your counsel in that it was indicated that the only sentencing option was one of imprisonment.

27I have taken into account the long maximum term for this sentence, and I have had regard to other like offending, which as I have said, is prevalent.

28You have been on remand for 273 days, and what I was told as to your custody is that you have limited connections with others whilst in custody, and there is a sense of isolation.

29Nonetheless, there must be a further period of incarceration.  You must be in my view sentenced such that I need to impose a non-parole period.  Whether you are granted parole or not is for others.  All I set is what I consider justice requires as a minimum term.

30Ba Van Ngo, for committing the crime of cultivation of cannabis in not less than a commercial quantity, you are sentenced as followed:  You are sentenced to two years and four months' imprisonment, and I fix a minimum term of 16 months.  You have already served 273 days in custody.

31That figure having been reckoned, I declare that your - that the 273 days is part of the sentence I have just imposed.  I will ensure that this declaration is entered into the records of the court, so the prison authorities are left in no doubt that you have already served 273 days of the sentence that I have imposed.

32Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of four years and two months with a minimum term of two years and six months. 

33There will be an order disposing of the items found at this house.  You say that there was a s.464? did you?

34MR COOKSON:  There was, yes Your Honour.

35HIS HONOUR:  Is that just a retention?  Because he must have given his DNA, because you got it off his toothbrush.

36MR COOKSON:  That was the co-accused that had the toothbrush Your Honour.

37HIS HONOUR:  Okay, thank you.  There has been an application for the taking of a forensic sample.  That application will be granted due to the seriousness of the circumstances, and the granting of the order is in the public interest.

38MR ANDREOU:  As Your Honour pleases.

39HIS HONOUR:  Please understand, Mr Ngo, that when the authorities come to get the forensic sample, they are authorised to use reasonable force to get the sample if you do not cooperate.  The way forward is to cooperate.  Any other orders?

40MR COOKSON:  No Your Honour.

41HIS HONOUR:  Thank you, I am grateful to the parties for their assistance.

42MR ANDREOU:  As Your Honour pleases.

43HIS HONOUR:  Madam Interpreter, thank you very much for your assistance.  I am sorry I went probably too fast.  If you would not mind assisting Mr Andreou, he may - well, I imagine he wants to see his client in the cells shortly, so if you are able to do that, that would be kind.  But if you would like to leave the dock, Madam Interpreter, and Mr Ngo will be taken downstairs.  Thank you, I will just stand down before the next matter.

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