Director of Public Prosecutions v Thao
[2018] VCC 1183
•13 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-17-01911
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRIEU VAN THAO |
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JUDGE: | HER HONOUR JUDGE CONDON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 February 2018 | |
DATE OF SENTENCE: | 13 February 2018 | |
CASE MAY BE CITED AS: | DPP v Thao | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1183 | |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Sentence – Plea of Guilty – Cultivating a commercial quantity of a narcotic plant – Obtaining a financial advantage by deception – electrical bypass – sole proprietor – no prior criminal history
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981
Sentence: Convicted – Total effective sentence of 3 years imprisonment – Non-parole period of 18 months – s6AAA declaration – s464ZF(2) forensic sample order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L. Harrison | Solicitor for Public Prosecutions |
| For the Accused | Ms C. Wong | Papa Hughes Lawyers |
1 HER HONOUR: Trieu Van Thao, you have pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant and one charge of obtaining a financial advantage by deception. The maximum penalty for commercial cultivation of a narcotic plant is 25 years' imprisonment, and obtain financial advantage by deception's maximum is ten years' imprisonment.
2 The exact circumstances of your offending are contained in the summary of prosecution opening, which was Exhibit A upon the plea. However, I will briefly summarise your offending.
3 On Tuesday 21 June 2017, police executed a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act at 86 Alfrieda Street, St Albans. At the time, you were residing there with your wife, Ms Chinh Tsi Be. As police members approached the house, they saw you and your wife leaving the premises. You were questioned by police and you confirmed that there was indeed cannabis in the property. Both you and your wife were then placed under arrest.
4 During the search, police found cannabis plants in numerous rooms and locations around the premises. In room one of the premises, police located 223 cannabis plants. These plants were growing in individual pots under overhead lighting.
5 In room two of the premises, police located 184 cannabis plants. These plants were growing in individual pots. In room three of the premises, police located two cannabis plants growing in individual pots. In room four of the premises, police located two cannabis plants growing in individual pots. Also in this room was a number of spare pots. In the back yard of the premises, police located a single cannabis plant growing in a pot.
6 The total weight of the cannabis plants found at the premises was 4.3 kilograms or 412 cannabis plants. (This constitutes Charge 1 on the indictment.) An electrical inspector was called to the house and an electrical bypass was found enabling electricity used for the lighting in room one to bypass the meter connected to the house. (This constitutes Charge 2 on the indictment.)
7 You and your wife were conveyed to the Melbourne West Police Complex and you were interviewed with the assistance of a Vietnamese interpreter. Whilst at the complex, your wife complained of health problems and was conveyed to hospital by ambulance. Your wife was never charged in relation to any offences.
8 You participated in a record of interview wherein you made admissions. In particular, you told the police that:
·You grew the young, small plants by yourself without any assistance and that there were many more than ten plants, closer to 50.
·You were growing the plants for yourself, as you cooked and drank them, but you were not selling them.
·You were aware that that your operation was "probably illegal"
·You had asked an overseas student that you were friends with to bypass the electricity two or three months ago.
·That you had been growing cannabis for two or three months.
9 You indicated your intention to plead guilty to these matters on 18 September 2017 at the first committal mention. The prosecution conceded that this was a plea at the earliest opportunity, and in the circumstances, I find that it is a plea of guilty both consistent with a desire to facilitate the administration of justice and with remorse.
10 You are currently 58 years of age. You come before this Court with no prior criminal history. Therefore you are entitled to the benefit of your previous exemplary character.
11 It was submitted by the prosecution, that I should assess your moral culpability for this offending with regard to the following features:
(1) That you were the sole proprietor/operator of the enterprise
(2) That a substantial number of plants were involved, and
(3) That whilst it was a relatively rudimentary operation, there was some infrastructure involved in the implementation of the overhead lighting in room one and the diversion of electricity. It was in this room that police located 223 plants (over half the total amount of plants found).
12 While the prosecution conceded there was no overt evidence of you being involved in a larger commercial enterprise or linked to any third parties, the submission was made that I should sentence you on the basis of greater moral culpability than a "crop sitter".
13 I accept that submission. In assessing your role in this offending, I have taken into account the following circumstances:
·You were the sole proprietor.
·There were a considerable number of plants (412) involved in your enterprise, some four times in excess of the threshold for a commercial quantity (being 100 plants, or 25 kg).
·That whilst it was relatively unsophisticated, the diversion of electricity reflects some measure of planning, designed as it was to conceal your offending.
·The period of the cultivation, which by your own admission was two to three months, and
·The fact that a single property was involved, but one where you and your wife were residing at the time.
14 I turn now to your personal circumstances. You were born in Vietnam of Chinese ethnicity. Your parents migrated from the Guangxi region in China to Vietnam before you were born. They worked on a farm and were low income earners. You have seven siblings - five brothers and two sisters - all of whom reside in Vietnam. You have very limited education, having completed only the equivalent of grade 6 at primary school. In 1978, the Vietnamese government moved all Chinese people to Thai Nguyen village in Bac Can Province during the Sino-Vietnamese War. Your family became further impoverished as you were marginalised by dint of your Chinese ethnicity.
15 In approximately 1990, you travelled to Hong Kong with a view to obtaining refugee status. It was a treacherous voyage. You travelled with your then wife and young child who was three years of age. Unfortunately, the boat sank and took the lives of your then wife and child. You then resided in a refugee camp in Hong Kong for three or four years and I am told that you were traumatised by this experience. It was there at the refugee camp in Hong Kong that you met your current wife, Ms Be. After Hong Kong, you were transferred to a refugee camp in the Philippines and there you remained with your wife for one to two years. In approximately 1995, you left the Philippines and arrived in Australia on a refugee visa with your wife. You are an Australian citizen. There are no children of the union between yourself and Ms Be.
16 On your arrival in Australia, you worked for three years on a small farm performing general farming duties. Your wife was a home maker, but unable to work as she was plagued by ill health and has continued to be plagued by ill health to this day. You then worked in a plastic factory as a line worker in Sunshine West. In 2006, you were diagnosed with nasopharyngeal carcinoma (cancer of the upper part of the throat, and behind the nose). You undertook chemotherapy and radiation therapy at Peter MacCallum Cancer Centre for a six-month period. As a consequence of that cancer diagnosis, you have not been able to work and you are in receipt of a disability support pension which is as a consequence of that cancer diagnosis.
17 Tendered on your plea in mitigation was Exhibit 1, a health summary sheet from a Dr Quoc-Tuan Dinh, dated 10 August 2017. That document confirms the diagnosis of nasopharyngeal carcinoma in 2006. It also indicates that you were diagnosed with depression in 2005 and 2007 and that you have impaired hearing in your left ear and that in 2010 you were in fact diagnosed with osteoporosis. Exhibit 1 also contains a list of the current medications which you were taking as at August 2017 and, I am told by your counsel, continue to take. You ingest 20 milligrams of Cipramil on a daily basis. You take a weekly dosage of Fosamax and a nightly dosage of Lipitor. These medications relate to various health conditions, being depression, osteoporosis, and high blood pressure.
18 It was submitted to me in the course of your plea in mitigation that part of your motive for the cultivation of the cannabis was for your personal use for pain relief. As I made clear in the course of submissions by your counsel, in order for me to give any weight to the suggestion of medicinal cannabis use, I would need to have received objective medical evidence. None was tendered on the plea in mitigation. While true it is that the warrant did not uncover any sales paraphernalia, this is by no means determinative of your claim to proposed self-use, nor claim to use as a method of pain relief. In circumstances where 412 plants are uncovered, it is a compelling inference that you were concerned to make a profit from your enterprise.
19 Your wife was present in court, however, it appears that you are now estranged. She has not visited you whilst in jail and the relationship between you and her has been on-and-off since February 2016. At the time of your arrest, however, you were living together. However, since you have been in custody, the relationship has stalled. She sends money to you on occasion, whilst in jail. However, she does not intend to resume the relationship with you upon your release. You have no other family residing in Melbourne, Australia, as all your siblings live in Vietnam.
20 In all the circumstances, I accept that a period of incarceration is a particularly onerous prospect for you. You have no English language skills. You have thus far had no visits and very limited phone contact with either your wife or any of your family in Vietnam.
21 In the course of her plea in mitigation, your counsel submitted that I should rely upon the following factors in amelioration of sentence:
·Your previous good character;
·Your plea of guilty;
·Your admissions to police upon arrest;
·Your favourable prospects for rehabilitation;
·Your precarious health; and
·The fact that any period of time in custody is more onerous for you, given your cultural and linguistic isolation.
22 The 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 you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, and your personal circumstances.
23 In assessing the seriousness of the offending here, I take account of the fact that you were indeed the principal and sole proprietor of the crop and equipment. While there is no evidence that you were part of a greater criminal enterprise, your offending remains serious.
24 However, I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, offenders are rehabilitated and reintegrated into society.
25 Please stand, Mr Thao.
26 In relation to Charge 1, being a charge of cultivate a commercial quantity of a narcotic plant, I sentence you to two years, six months' imprisonment. In relation to Charge 2, being a charge of obtain financial advantage by deception, I sentence you to eight months' imprisonment. I order that 2 months of the sentence on Charge 2 be served concurrently with the sentence imposed upon Charge 1.
27 That makes for a total effective sentence of three years' imprisonment and I impose a period of 18 months before you become eligible for parole.
28 Pursuant to s.18(4) of the Sentencing Act, I declare that you have spent 236 days (not including today) by way of pre‑sentence detention.
29 Pursuant to s.6AAA of the Sentencing Act, were it not for your plea of guilty to these offences, I would have imposed a sentence of 5 years with a non-parole period of 3 years.
30 I make the order pursuant to s.464ZF(2) of the Crimes Act, sought by the prosecution in relation to a forensic sample.
31 HER HONOUR: You may be seated. Counsel, is there anything else?
32 MS WONG: Nothing further, Your Honour.
33 HER HONOUR: All right.
34 MR HARRISON: Your Honour, I think the presentence detention might've been 237. We had 233 on the previous occasion.
35 HER HONOUR: Yes.
36 MS WONG: That's right.
37 MR HARRISON: And including that Friday, which hadn't been counted in that ‑ ‑ ‑
38 HER HONOUR: That hadn't been counted?
39 MR HARRISON: No.
40 HER HONOUR: All right, all right. Well, in those circumstances, then, I amend the declaration to being 237 days presentence detention.
41 MR HARRISON: As Your Honour pleases.
42 HER HONOUR: Is that correct?
43 MR HARRISON: Yes.
44 HER HONOUR: All right. Yes, adjourn the court, please.
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