Director of Public Prosecutions v Phuong

[2014] VCC 872

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00133

DIRECTOR OF PUBLIC PROSECUTIONS

v

VU PHUONG

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 & 5 June 2014
DATE OF SENTENCE:	5 June 2014
CASE MAY BE CITED AS:	DPP v Phuong
MEDIUM NEUTRAL CITATION:	[2014] VCC 872

REASONS FOR SENTENCE
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Subject:         Criminal Law - Sentencing
Catchwords:  Cultivate  commercial quantity of cannabis - sophisticated operation - two day   crop sitter - student on visa - general deterrence
Sentence:      30 months' imprisonment - not eligible for parole for 20 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. T. Carr	Director of Public Prosecutions
For the Accused	Mr R. W. Blackwell	Valos Black & Associates

HIS HONOUR: 

1Phuong Vu, you have pleaded guilty to one count of cultivating a commercial quantity of a narcotic plant, namely cannabis, between 30 and 31 August last year.  The maximum penalty is 25 years' imprisonment.  You have no prior convictions.  The circumstances of the offending were set out in the Crown opening which was read in open Court on Tuesday and today.  I incorporate that opening by reference. 

2In brief summary, on 31 August 2013 the police attended at a property at 57 Manchester Drive, Sydenham.  When you saw the police there you and another person that were there ran away and you were found hiding in the back yard.  When the police entered the property they found it was established as a sophisticated cannabis growing operation.  Literally the whole house was dedicated to growing cannabis.  There was a total number of 302 plants weighing 108.76 kilograms of cannabis.  In addition to that, there were various stumps of harvested crops, as well as cannabis seedlings.  Included in that number were cannabis seedlings.  As usual, the electricity meter had been bypassed. 

3There was a car at the premises, which was yours, and in the record of interview you indicated that there were some pipes or equipment in the boot that you had transported for the principal of the operation, Mr Son, who has not been apprehended by police.  You gave a record of interview in which you said that you met Mr Son at a café in Footscray and he asked you to assist him for a couple of days because he was lonely.  You also referred to the fact that he asked you to use gloves when moving some furniture in the house.  In your record of interview you did not admit that you effectively knew that there was cannabis growing in the house, although you knew there was a smell. 

4Assessing the Seriousness of the Offence.

5This is a serious example of cultivating a commercial quantity of cannabis.  The number of plants is about 30 per cent of a large commercial quantity, or three times a commercial quantity.  The weight is about a third of a large commercial quantity or four times the minimum weight for a commercial quantity. 

6Your counsel said that you are to be sentenced on the basis that your culpability is lower because you were a 'crop sitter' and only for two days.  I am prepared to accept that you are not to be sentenced as the principal of the offending.  However the size and sophistication of this operation indicates that it was such that the principal, Mr Son, must have needed assistance.  So even though you were only involved for two days, your involvement, including the fact that your car was being used, was significant for those two days. 

7So this is a serious example of cultivation of a commercial quantity of cannabis.  Although your involvement is for two days your offending is serious and you must have known when you were asked to assist him, or stay with him for a couple of days, that you were involved in a serious criminal enterprise. 

8Your Personal Circumstances

9You are 27.  You come from North Vietnam.  You have an older sister and your parents are separated.  You managed to pass your VCE equivalent and studied tourism in Vietnam, and you came to Australia in November 2012 to study a business course that your mother had paid for.  You were first required to do an English course and you told the police that you were studying at an English college in Collins Street.  You were on a student visa.  Your counsel indicated that your mother had paid for the course and in the record of interview you indicated that you had brought something like $6,000 with you, and you got money from Vietnam as required.

10In explanation, your counsel indicated that around July 2013 you were advised by your mother that her own business in construction was not doing well and she'd separated from your father, and you had to come home to support the family, and you hoped to earn the money for the fare home in this little enterprise, assisting Mr Son.  Your counsel put that your prospects for rehabilitation would be good, given as you have got no prior convictions and you are relatively young.  I accept that is probably the case. 

11You have sought to utilise the period in prison by doing courses so you could join in the industry section, and your counsel tendered a clean drug screen.  He also put in mitigation that you are likely to be deported back to Vietnam at the end of a sentence, and that while in prison you have only got the one cousin who you were living with, who has visited you in prison.  So prison will be more onerous for you due to your lack of ties in the country. 

Sentencing Considerations

12The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community, in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society. 

13Your counsel emphasised your plea of guilty, which I have taken into account.  You have facilitated the course of justice and accepted responsibility.  It was an early plea.  You are entitled to full benefit for that.  I have also taken into account your lack of prior convictions and your age; you are relatively young at 27.  I have taken into account the attempts you have made to better yourself in the prison system and I have taken into account all the other submissions made on your behalf by your counsel.

14Your counsel referred me to a decision of the Chief Judge (DPP v. Phung [2012] VCC 602) involving a crop sitting case, with a head sentence of 15 months' imprisonment. I have considered that sentence but see that the matter as distinguishable and I am not bound by it.

15General deterrence is the paramount consideration in offending of this type.  The Courts must send a signal that economic crime is not tolerated.  Those who participate in any capacity in economic crime, which is what cannabis cultivation is, will be seriously punished by the Courts.  You participated in economic crime by your participation in this cultivation operation.  The sentence of the Court has got to also denounce your conduct.  The community will not accept economic crime - people who want to cultivate a dangerous drug for financial gain.  You were hoping to get some financial gain out of this, your part in this operation. 

16It is also in the community's interest to rehabilitate offenders and I have taken that into account in sentencing you.  Weighing all these matters, including the fact that you will be deported and that makes your sentence more onerous than otherwise, you are sentenced as follows:

17Sentence

18On the count of cultivating a commercial quantity, you are sentenced to 30 months' imprisonment.  I direct that you serve 20 months' imprisonment before being eligible for parole. 

19I declare that had you not pleaded guilty I would have imposed a sentence of three years and four months, with a non-parole period of two years and two months.  I declare 278 days of pre-sentence detention. 

20I make a disposal order on the drugs, as sought by the Crown, and I also make an order that you provide a forensic sample, which is a sample or swab from your mouth, because of the seriousness of the offence.  I have to advise you, and I would ask your counsel to confirm it, that you must agree to do that or reasonable force can be used to obtain the sample. 

21Are there any other matters, Mr Carr?

22MR CARR:  No, Your Honour.

23HIS HONOUR:  Mr Backwell?

24MR BACKWELL:  Yes.  Thank you sir.

25HIS HONOUR:  Yes.  I thank you for your assistance Mr Backwell and Mr Carr.  I'll hand down the disposal orders.  Yes, thank you.  We'll just stand down temporarily.

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