Director of Public Prosecutions v Thai
[2023] VCC 1996
•14 November 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-22-00574
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TUNG THAI |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 14 November 2022 | |
CASE MAY BE CITED AS: | DPP v Thai | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1996 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:
Legislation Cited:
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: 19 months' imprisonment; non parole period of 12 months’
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Van Dyk | |
| For the Accused | Ms S. Joosten |
HIS HONOUR:
1 Tung Thai, you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis. The maximum penalty for this offence is 25 years' imprisonment.
2 In addition, this charge is a category 2 offence. Essentially this means that a period of imprisonment (other than a combined period of imprisonment with a CCO) must be imposed unless exempting circumstances exist. It has not been argued that there are exempting circumstances in existence in your case.
3 You have also pleaded guilty to committing an indictable offence whilst on bail. This offence carries a maximum penalty of three months' imprisonment or a fine of 30 penalty units.
4 You have a relevant prior criminal history. I shall say something about that later in these remarks.
5 The Crown tendered a summary of prosecution opening as Exhibit A. A brief statement of your offending is as follows.
6
On 20 April 2021 the house at 43 Bindi Street, Glenroy, was rented for
12 months by the landlord Mr Yusuf. In September and November 2021 the landlord requested a house inspection but was refused. On 2 December 2021 the landlord used his key to enter the property and found a commercial crop of cannabis was being grown. He immediately contacted the police.
7
The police put the house under surveillance. At 1:50 am on 3 December 2021, you and three others were observed driving cars along Bindi Street as you made observations of the crop house. Your car was stopped. You told police that you were going fishing but you had no appropriate clothing for the activity and you were carrying no fishing equipment. In your car police found plastic sheeting, a ladder, fertiliser and multiple globes. A search of the house revealed a sophisticated crop set up supporting 112 plants, weighing a total of
87.08 kilograms. The crop was powered by an electrical bypass.
8 You were interviewed by police where you made admissions to knowing the house was used to cultivate cannabis; that your role was akin to a crop sitter in the knowledge of the activity conducted in the house. Your job was to attend the outside of the house to make it look as normal as possible. You also made admissions to cleaning up previous houses. I do not use that as evidence of further criminal offending, but as an admission that you knew the crop was being cultivated at the Bindi Street address. You also told police that you were 'at the bottom of the barrel' in terms of hierarchy and that you performed the role to make money in relation to your drug use and to support your two children.
9 I note and emphasise this offending is limited to one day on the charge on the indictment.
10 At the time of your arrest, you were already on bail for driving matters and on a charge of cultivating 200 grams of cannabis. This charge has not yet been dealt with.
11 You were remanded after your arrest and you have now spent 346 days on remand (excluding today). I will declare that period reckoned as already served.
12 I turn now to consider the objective gravity of, and your moral culpability for your offending.
13 The seriousness of the offence of cultivation of not less than a commercial quantity of cannabis is marked by the maximum penalty, 25 years' imprisonment. Moreover, as I have stated, it is a category 2 offence, which presumes a period of imprisonment.
14 The Crown readily submits that the offence can be committed in a wide range of circumstances. In your case, the Crown categorises your offending as at the lower end of seriousness.
15 Ms van Dyk, counsel for the prosecution, and Ms Joosten, counsel for the defence both addressed me on the quantity of drugs seized in the house. The Crown submits that I should view the quantity of drugs found at the house as being over three times the threshold of commercial limit. Your counsel, however, expressed the quantity as 35 per cent of the maximum commercial quantity. In any event, both stated that taking into account the quantity of drugs seized and your role in this offending, that I should view this offending as at the lower end of seriousness. I accept this to be the case.
16 The courts have recognised that there are two relevant clusters of cases involving commercial cultivation. In the first cluster of cases where offenders were crop sitters or played an ancillary role, there is typically involvement for only a short period of time, and the offenders were often youthful and were less likely to have previous criminal histories. In those cases the offenders did not hold a proprietary or high financial interest in the crop outcome.
17 I accept your admissions that you were paid for your work. Your counsel submitted that you were paid small amounts. I readily accept that. Your motivation for working on the house was financial gain, but this is not in the same league or category as those who held a proprietary interest in the sale of the crop.
18 In this case there is no evidence that you performed any role in the leasing of the premises; the maintenance of the premises, the ownership of the hydroponic or electrical equipment at the premises, the bypass of the electricity meter, or that you had in any other way, financed the growing of the crop. The only evidence is of your presence on the date charged and in relation to the admissions you made.
19 Moreover, in the absence of any firm evidence that you illicitly tended the crop, the sophistication of the scheme is a matter to which I can have regard but I must not attribute a role to you in the set up of the infrastructure of the crop.
20 As I have said, I accept that you are charged only in respect to the day on which you attended the property, and that your role was limited to largely outside work. The contents of your car would certainly indicate that you were to at least drop off fertiliser but as I have made clear, I will sentence you for a role akin to a crop sitter. I note also that Crown case relies heavily (but not exclusively) on the admissions you made to police about your knowledge of the crop and your role in keeping the house. These admissions were made in the face of the fact that you were arrested with three others, but you are the only one charged with any offending.
21 Your offending must be met by principles of deterrence, just punishment, denunciation and an element of protection of the community. It is clear that your offending calls for a period of imprisonment.
Personal Circumstances
22 I turn now to your personal circumstances.
23 You are 44 years of age, being born in Vietnam in April 1978.
24 Your parents separated when you were very young and you have one younger brother. You have two older step siblings and two younger step siblings. You do not have any contact with your family.
25
You were brought to Australia by your father in 1984 when you were
five years old. Your mother remained in Vietnam.
26 Your family frequently moved around when you were a child. You and your brother were often left unsupervised for days.
27 You only sporadically attended primary school. As a teenager you rarely attended school and did not learn to read and write in English until adulthood.
28 You became homeless at around 15 or 16 years of age, and you have struggled with homelessness throughout your adult life. You began using drugs in that period of homelessness at that age and, after a few years, you were regularly using heroin and methamphetamine. You have had some limited drug treatment.
29 You have worked in a range of manual jobs including as a handyman and picking fruit and vegetables.
30
You have two children aged 12 and six, who live with their mother. Prior to your remand you had regular contact with them and you had care of them
two days a fortnight. You feel stress and anxiety about being separated from your daughters.
31 You have a long criminal history with a number of convictions for trafficking heroin. As I remarked to your counsel, to this point all of your offending had been dealt with in the Magistrates' Court and you have received no longer a period of imprisonment than five months, which was imposed on a consolidation of a large number of charges. I am satisfied that this tells me a deal about the seriousness of your previous offending; that is, that it was almost or entirely linked to your drug use.
32 Mr Thai, I was talking about your prior convictions and the fact that your previous sentence was a sentence for five months imposed on a consolidation of a large number of charges, and then I said and I will repeat, I am satisfied that this tells me a great deal about the seriousness of your previous offending. That is, that it was almost or entirely linked to your drug use. However, I am also satisfied that your history as a drug user made you a target for exploitation for this offending, and that that same history, your desire for money and your comfortableness with the criminal milieu made you willing to be exploited on this occasion.
33 I accept that the plea of guilty in this case was made at the earliest time and that your plea should be recognised for its utilitarian benefit and for the fact that it was made during the COVID pandemic, and I refer specifically to the case of Worboyes. The pandemic has restricted the ability of prisoners to receive contact visits, and it has restricted the availability of courses, work, and movement around the prison. Isolation is used as a strategy to try and limit the spread of the virus. In these circumstances I recognise that your time on remand has not been easy.
34 I also accept that both your plea and your comprehensive admissions to police, which provided a significant part of the evidence in the case against you, are evidence of your remorse. Together, these factors facilitate the course of justice.
35 I recognise the difficulties that you experienced in your childhood. That is, the feelings of displacement when you migrated to Australia as a young child, the fact that you moved from place to place so often without developing any sense of belonging, and the neglect that you suffered at the hands of your father and his partner. I recognise that your schooling was greatly interrupted and it seems that you are, at best, barely literate in English. I also take into account the trauma of being made homeless in your early teen years and that it was during this vulnerability that you were introduced to drugs. Against this background I can readily conclude that, as your counsel submits, you feel the separation from your children at this time greatly. They are your real anchor in life. It was not submitted that you have had any real contact with them since your imprisonment.
36 Unfortunately at present, your prospects for your rehabilitation must be assessed as being reasonably poor. It is essential that you seek and get help for your addictions. It is to be hoped that if you are granted parole, you will receive some of the support and supervision, including access to drug treatment, that you require to make a meaningful reintegration back into the community.
37 On the charge of cultivation of not less than a commercial quantity of cannabis, you are convicted and sentenced to 18 months' imprisonment.
38 On the charge of committing an indictable offence whilst on bail, you are convicted and sentenced to two months' imprisonment. I order that one month of this sentence be served cumulatively on the charge of cultivation.
39 The total effective sentence is therefore one of 19 months imprisonment. I order that you serve a minimum of 12 months imprisonment before you are eligible for parole.
40 I declare the period of 346 days pre-sentence detention, excluding today, reckoned as already served.
41 But for the plea of guilty I would have sentenced you to 30 months' imprisonment with 18 months to serve.
42 I will make the forfeiture order in chambers.
43 Mr Thai, the sentence that I have imposed is one of 19 months' imprisonment. You become eligible for parole after 12 months, which means in about, I think, something like three weeks' time. You are going to have to work hard to get parole in that period. The fact that you have pleaded guilty at an early time and cooperated with the authorities will go in your favour.
44 If you are granted parole you are going to have to work hard on it and hopefully you will be given access to drug treatment services, because it seems to me that from your prior criminal history and the submissions of Ms Joosten, it is your drug use that has been the cause of much of your criminal offending.
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