Director of Public Prosecutions v Quan Le
[2018] VCC 2180
•17 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01566
Indictment No: J10175793
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| QUAN QUAN LE |
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JUDGE: | HIS HONOUR D. A. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 24 September 2018 | |
DATE OF SENTENCE: | 17 December 2018 | |
CASE MAY BE CITED AS: | DPP v Quan Le | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2180 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Bail Act 1977; Sentencing Act 1991
Cases Cited: Quy Nguyen v R [2017] VSCA 127
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Bate | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr L Barker | Valos Black and Associates |
HIS HONOUR:
1
Quan Quan Le, you have pleaded guilty to one charge of cultivation of a narcotic plant, namely Cannabis L, contrary to s.72A of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for this charge is
15 years’ imprisonment (s.72B of the Drugs, Poisons and Controlled Substances Act).
2 You have also pleaded guilty to a, “related summary offence”, of failing to answer bail, contrary to the s.30(1) of the Bail Act 1977, in that you did fail, without reasonable excuse, to appear in accordance with your undertaking of bail on 20 October 2017. The maximum penalty for this offence is two years’ imprisonment (s.30(1) of the Bail Act).
3 The circumstances of your offending were set out in some detail in the, "Amended Summary of Prosecution Opening upon Plea", which was tendered at your plea hearing as Exhibit A.
4
In summary, in December 2017, police commenced an investigation into suspected cultivation of cannabis at the residence at 66 Bellavista Drive in Wollert. On Wednesday, 17 January 2018, following the issue of a search warrant, which had previously been issued in accordance with the Drugs, Poisons and Controlled Substances Act, police investigators conducted surveillance of that residential address from approximately 4.20 pm. At
7.15 pm a white Toyota Camry was observed to turn into the driveway of this residence and drive into the garage at that property. You were the driver of this motor vehicle. Police approached the vehicle and yelled at you to get out of the vehicle, while opening the driver’s door. As you began to exit the vehicle with your arms raised you resisted police attempts to grab your left arm. However, you were ultimately restrained and placed on the ground. You resisted as police applied handcuffs. A search of the property, pursuant to the search warrant, took place and a sophisticated hydroponic cannabis cultivation set-up was discovered. There was no other person present at the premises. The set-up was across four rooms of the property, all of which contained active cultivations. The result of that search is described in detail in the prosecution opening, and at the plea hearing I was provided with photographs detailing the nature of the set-up and associated items discovered by police (Exhibit B). Those items included an illegally installed electrical bypass located in the wall of the main bedroom and a total of 86 cannabis plants. The cannabis plants were seized and examined by a botanist, resulting in a total weight of 36.45 kilograms. Although the weight of the cannabis plants would indicate that the crop was a commercial quantity, you have not been charged with cultivation of a commercial quantity, but merely with cultivation of cannabis, and I shall sentence you on that basis accordingly. Once restrained by police you were placed under arrest and transported to the Northern Hospital for assessment of minor injuries sustained during your arrest. You were then transported to the Mill Park Police Station but you were not interviewed due to the unavailability of Vietnamese interpreters at the time.
Procedural History
5
While you have been in custody since your arrest on 17 January this year, there is no pre-sentence detention attributable to this matter. That is because on
18 January this year an outstanding warrant was executed on you in relation to your failure to appear on bail in relation to what I will describe as, “the other cultivation offence”.
6
This matter proceeded to a filing hearing on 18 January this year, a committal mention on 13 April, and the matter was listed for a contested committal on
3 August. I was advised that as at the time you also faced a charge of theft of electricity and alleged cultivation in a commercial quantity. I was advised that upon the prosecution agreeing to withdraw the allegation of a commercial quantity and withdrawing the theft charge, the matter resolved to a plea of guilty to the charge which is now before me. In those circumstances it is my view that you entered your plea of guilty at the first reasonable opportunity to an appropriate charge. I note that Ms Bate, who appeared on behalf of the prosecution, did not take issue with this point.
“The Other Cultivation Offence”
7 As conceded by your Counsel, the offending for which you now fall to be sentenced occurred while you were at large in relation to the other cultivation offence.
8 That offending occurred on 28 July 2017, some six months prior to the current offending. On that day you were observed by police driving a motor vehicle in the vicinity of a property which had been under police surveillance. Inside that property police located hydroponic equipment being used to cultivate cannabis and a power bypass. You were ultimately charged with cultivation of cannabis in relation to the hydroponic set-up at those premises. I have been referred to the Reasons for Sentence of his Honour Judge Smith, dated 28 June 2018, which sets out the details of that offending. I note that there was a total of 84 cannabis plants located at these premises, with a total weight of 36.98 kilograms. These figures are extremely similar to the current offending.
9
You were remanded in custody in relation to the other cultivation offence on
28 July 2017 before being granted bail some weeks later, on 14 September 2017. You were bailed to appear at the Geelong Magistrates’ Court on
20 October 2017 for committal mention. You failed to appear on that date and a warrant was issued for your arrest. This is the "fail to answer bail" charge which you now fall to be sentenced for.
10 Accordingly, the drug related offending for which you now fall to be sentenced, which occurred on 17 January 2018, occurred while you were, "at large", in relation to, “the other cultivation offence”, and the above-mentioned warrant for your arrest was outstanding.
The Seriousness of Offence
11 In terms of the items located at the relevant premises, the prosecution alleged that a search of the premises revealed, “a sophisticated hydroponic cannabis cultivation set-up” [1]. No issue was taken with that description by Mr Barker, who appeared on your behalf before me.
[1]See paragraph [13] of the Summary of Prosecution Opening Upon Plea, dated 20 August 2018, Exhibit “A”
12 There were 84 cannabis plants located in the premises, the majority of which were immature and weighed less than 2 kilograms. According to the prosecution, there was no evidence of any likely value from the yield of the cannabis, and it was indicated that the surveillance on the premises had been very short-lived. Indeed, I was told by your Counsel that you did not reside at the property and you had only been to the property a couple of times in the week prior to arrest to water the plants and remove the rubbish. It was also indicated by the prosecution that the plants had been grown for no more than 10 to 12 weeks. According to the prosecution, your role could not be placed any higher than that of “crop-sitter”.
13 Your counsel submitted to me that your role was an ancillary one, by virtue of the fact that you did not reside at the property and watered the plants and removed rubbish for the week preceding your arrest only[2]. It was further suggested by your counsel that there was no evidence that you had played any organising role or shared profits and there was no evidence of any capacity, on your part, to source equipment or sell any harvest. It was, therefore, submitted on your behalf that your role was very similar to the “crop-sitting” role referred to by his Honour Judge Smith in, "Reasons for Sentence", dated 28 June 2018, for the other cultivation offence.
[2]In accordance with the Role Classification Scheme referred to in the Sentencing Advisory Council Report of March 2015, referred to by Osborn JA In Quy Nguyen v R [2017] VSCA 127 at paragraph [43].
14 It was also submitted on your behalf that you engaged in this criminal conduct due to pressure which had been applied to you by, “loan sharks”, following the accumulation of a large debt from your previous business activities in Vietnam. While it was submitted that you came to Australia in the hope of alleviating your financial predicament by remitting money to your family and creditors in Vietnam, and that it was your fear of the, “loan sharks”, that led to your application for refugee status, no documentary or other material was placed before me in support of that submission. Further, I was told by your Counsel that it was contact from these, “loan sharks”, whilst you were at a TAB in Melbourne that led you to engage in this offending, in the hope of reducing your debts to them. I was not, however, provided with any further information in this regard.
15 In these circumstances I am unable to find, on the balance of probabilities, that your motivation for the offending was pressure from, “loan sharks”, back in Vietnam, or any similar associates in Australia. However, I am of the view, in all of the circumstances, that this was not a business or commercially-motivated enterprise on your part, as you are, and have been, a person of modest means. I note that there is no suggestion from the prosecution that you were involved in any of the entrepreneurial aspects of the operation, or in the design or installation of any of the equipment found at the premises. Similar to your role in, “the other cultivation offence”, I am satisfied that your role could best be described as a “crop-sitter”. While a toothbrush containing your DNA was found at the premises, I am not able to find beyond reasonable doubt that you were residing at the premises at the relevant time.
16 Notwithstanding the above, I consider that your role was vital for the success of this enterprise, as without cultivation of the crop there would be no sale of it and no profit to anyone. This was ultimately a sophisticated cultivation set-up. The product grown by cultivators has serious adverse effects on many users and the community bears great cost. Your role as a crop-sitter essentially ensured that the equipment continued to operate and the crop continued to grow.
17 Further, the objective seriousness of your offending is increased by virtue of the fact that you offended while at large in relation to very similar offending. Prior to this offending you had been arrested, remanded in custody for a period of time, and bailed, before failing to appear at a Committal Mention at the Geelong Magistrates’ Court on 20 October 2017. You would have known, therefore, that this type of offending was very serious, with considerable legal consequences. Notwithstanding this, your return to virtually identical offending just a few months later, whilst, "at large", in relation to the other cultivation offence, escalates the gravity of your conduct and increases your moral culpability.
Personal Circumstances
18 You are currently 34 years old. You were 33 at the time of the offending. You are a Vietnamese National, originally from a coastal province in Vietnam. You are the youngest of three children to your parents, and your two older sisters still reside in their home province in Vietnam. Your father was a Government employee on the railways, as was your mother. Both parents still reside in their local province and I was informed that your family is well regarded and no one has a history of trouble with the law in Vietnam. You have a wife and a young son, currently in Grade 4, who live in Ho Chi Minh City. In Vietnam you worked for the State Railway Corporation for 12 years. In addition, you and your wife set up a timber business in 2013, importing timber intra-nationally for sale, but that business got into financial difficulties in 2015 due to non-payment of a timber consignment by a purchaser and the obtaining by you of loans to meet your supply debts, which you could not realistically meet.
19 You came to Australia in 2015 without your family, hoping to earn money and send it home to alleviate your family’s financial woes. Shortly afterwards, you made an application for refugee status. Prior to your remand in custody you were able to send money back home to your family. Since being incarcerated, your wife has sustained herself and your son by selling noodles on the street.
20 With the exception of the other cultivation offence and the current matter, you do not have any criminal history in Australia.
Progress While in Custody
21
In relation to the other cultivation offence, you were sentenced on 28 June 2018 by his Honour Judge Smith to a term of imprisonment of two years with a
non-parole period of 18 months. A period of 210 days was declared as
pre-sentence detention, pursuant to s.18 of the Sentencing Act. I note that on 21 November 2018 an application for leave to appeal against this sentence was refused by the Court of Appeal.[3]
[3] Quan Quan Le v The Queen [2018] VSCA 309.
22 I understand that currently the earliest date when you will become eligible for parole on this sentence is sometime in July 2019, as referred to in the chronology provided by the prosecution on the plea hearing which was part of Exhibit A.[4]
[4] Chronology provided by Prosecution on plea hearing, part of Exhibit A.
23 I have been informed by your counsel that you have made the best of your time in custody, undertaking various courses at Port Phillip Prison such as English and woodwork, notwithstanding the onerous circumstances in which you have found yourself, with very little English and without any family supports. I was informed that your only friend in Australia had died from cancer. Accordingly, you have had no prison visits.
24 Your counsel submitted that due to your language and cultural difficulties and isolation from your family, who still reside in Vietnam, the sentence of imprisonment which you are currently serving is particularly onerous. It was submitted that any term of imprisonment which I will impose will also be served in these circumstances. I understand that this submission was not contentious as far as the prosecution position, and I accept the submission made on your behalf by your counsel in this regard.
Applicable Sentencing Factors
25 The prosecution submitted that the prevalence and nature of this crime required that general deterrence loomed large and that any sentence I impose should also reflect the sentencing principles of denunciation and just punishment. It was also submitted by the prosecution that specific deterrence had significant weight in this matter by virtue of the current offending being committed while at large for the other cultivation offence. In my view, this latter aspect also further amplifies the need for general deterrence to be reflected in any penalty imposed.
26 In your counsel’s written submissions (at paragraph 24), it was submitted that specific deterrence was of limited application in this case given your lack of antecedents. However, I understood your counsel to accept, in oral submissions, that specific deterrence was in fact of some significance in this case by virtue of the chronology of the offending, which I have outlined. In my view, your offending whilst at large for the other cultivation offence clearly increases the need for any sentence imposed to reflect the sentencing principle of specific deterrence.
27 Your counsel submitted that your plea of guilty was evidence of remorse, and that the manner in which you had described your role in the offending to your counsel was also reflective of remorse. While the prosecution submitted that the only evidence of remorse in this case came from your plea of guilty, it was fairly conceded by the prosecution that you were unable to participate in a police Record of Interview in this case due to an absence of appropriate interpreters, hence you have been denied the opportunity to indicate any remorse in a police interview, which is often the case. In all the circumstances, I am satisfied that your plea of guilty, in the circumstances of this case, is reflective of true remorse, and I have taken that into account in terms of my sentence.
28 Your Counsel relied upon a number of previous decisions of the Court of Appeal, when urging the Court to have regard to current sentencing practices in relation to offending of this nature.[5] I am obliged to have regard to current sentencing practices in determining the sentence to be imposed, noting the guidance of the High Court in DPP v Dalgliesh, in stating that current sentencing practices are one of the many factors that must be taken into account in sentencing, and should not predominate.[6]
[5] Outline of Plea Submissions on behalf of Accused, paragraph 25.
[6]Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41.
29 It was accepted by both parties that s.14 of the Sentencing Act 1991 would apply in this case in the event that I intended to sentence you to a further term of imprisonment with a non-parole period, given that you have not served the full non-parole period of your existing sentence. Your counsel submitted that on the basis of totality, I should not extend your earliest eligibility date for parole when setting a new single non-parole period. The prosecution submitted that due to your offending while at large for earlier offending, your earliest eligibility date for parole should be extended, bearing in mind the principle of totality. In my view, notwithstanding the principle of totality, both the circumstances of the current offending and the separate criminality encompassed by the current offending requires an additional period of imprisonment on your part, such that your earliest eligibility date for parole should be extended to some degree. I have modified the length of the term by virtue of the principle of totality.
Sentence
30 In relation to the offending for which you now fall to be sentenced, I propose to impose a sentence of imprisonment with a non-parole period as a component. As your current non-parole period has not expired, pursuant to s.14 (1) of the Sentencing Act, I will fix a new single non-parole period in respect of all the sentences that you are to serve or complete. The new single non parole period fixed under s.14 is fixed by reference to the global total effective head sentence – that is the total sentence to be served by you, considering the global period constituted by the original sentence and the new sentence about to be imposed.[7] In that regard, I have had regard to the totality of the offending, including factors in aggravation or mitigation, and factors personal to you, which are relevant to the minimum sentence which should be imposed.[8]
[7]Bortoli [2006] VSCA 62 per Redlich JA at [49].
[8] Ibid.
31
In relation to Charge 1 on the Indictment, cultivate a narcotic plant, namely Cannabis L, you are convicted and sentenced to a period of imprisonment of one year and nine months, effective from today.[9] Pursuant to s.14(1) of the Sentencing Act 1991, I fix a new single non-parole period in respect of both of the sentences that you are to complete, of ten months. This new single
non-parole period is fixed by reference to the global total effective head sentence, and having regard to the totality of offending, factors in aggravation and mitigation,[10] and the non-parole period already served.[11]
[9] Taking into account the period of imprisonment already served on the earlier sentence, being 210 days pre sentence detention, plus 175 days post sentence, amounting to 385 days in total, this equates to a total effective head sentence of 2 years, 9 months and 20 days imprisonment.
[10]Bortoli [2006] VSCA 62 at [49].
[11]Bortoli [2006] VSCA 62 at [58].
32 In relation to the new non-parole period, I order that it commences from today’s date.[12] In doing so, I have made allowance for the non-parole period already served,[13] which in this case incorporates the 210 days declared by His Honour Judge Smith on 28 June 2018 in relation to the sentence for the original cultivation offence, together with the 175 days (not including today) served since that date.
[12]Rich (No. 2) (2002) 4 VR 155 per Brooking JA at [106].
[13] Pursuant to Bortoli [2006] VSCA 62 at [106].
33
In relation to the, "related summary offence", of failing to answer bail on
20 October 2017, an offence which I regard as a significant offence in the broader circumstances which I have described, you are convicted and sentenced to one month's imprisonment. This sentence is to be served concurrently with the sentence imposed today on the cultivation charge.
34 Pursuant to s.6AAA of the Sentencing Act 1991, the sentence I would have imposed but for the plea of guilty is two years and nine months imprisonment on the cultivate charge, and one month cumulative on the fail to answer bail charge, with a new single non-parole period pursuant to s.14 of Sentencing Act, of 18 months.
35 To be clear in terms of my intent in regards to sentencing, it is my intention that the parole eligibility date of Mr Le be delayed from its current time period of July next year to October next year.
36
A disposal order has been sought in this case by the prosecution and I have a disposal order, which might need to be updated, Ms Bate, it is dated
11 September. Does it need to be - all need to be updated to this date?
37 MS BATE: Yes, Your Honour, and I will ensure that is done.
38 HIS HONOUR: Yes.
39 MS BATE: Either via email or I can have that done in court.
40 HIS HONOUR: It can be done by email and I will sign it in due course. It is just in relation to the electricity bypass; is that right?
41 MS BATE: I believe so, yes, Your Honour, yes.
42 HIS HONOUR: Yes. I understand, Mr Valos, that indication was given on a previous occasion that was not opposed.
43 MR VALOS: It is still the case, Your Honour.
44 HIS HONOUR: Yes, and I will make that order in my chambers when it is brought to my attention. From either of your perspectives are there any other matters that I need to address? Is there any lack of clarity in terms of what I am intending to do?
45 COUNSEL: No, Your Honour.
46 HIS HONOUR: All right. Apologies again to everyone for the delay in sentencing this matter. All right.
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