Director of Public Prosecutions v To

[2020] VCC 382

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00726

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUY ANH DUC TO

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April 2020
DATE OF SENTENCE:	1 April 2020
CASE MAY BE CITED AS:	DPP v To
MEDIUM NEUTRAL CITATION:	[2020] VCC 382

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Tueno	Office of Public Prosecutions
For the Accused	Ms C. Lynch	Greg Thomas Solicitors

HIS HONOUR:

1Duy Anh Duc To, you have pleaded guilty to one charge of cultivation of cannabis.  The maximum penalty for this offence is 15 years' imprisonment.  You have no prior convictions and no matters outstanding.  I take that fact into account in the sentence I impose upon you.

2The prosecution tendered a Summary of Prosecution Opening on plea as Exhibit A. A brief summary of your offending is as follows.

3The offending occurred on 13 December 2018 at an address in Pascoe Vale South.  You were 21 years of age at the time.  The offending involved two other Vietnamese nationals, Son Hai Hoang and Due Le.  Each of those men pleaded guilty to cultivating a commercial quantity of cannabis.  They are therefore in a different position to you.

4The quantity of cannabis found at the house was 118 plants and weighed approximately 100 kilograms.  The Crown accepts and, by your plea of guilty, you admit that you were aware of and involved in the cultivation of cannabis at the property.  But the Crown accepts, and I also conclude, that you were not aware that the quantity of cannabis being grown at the property was a commercial quantity.

5Put briefly the police commenced an operation, watching the house at which the cannabis was grown, on 8 August 2018.  Between 8 August and
13 November 2018, police observed Hoang and Le entering and exiting the premises on a number of occasions.  On one occasion, Le was observed carrying large bags of potting mix into the house.

6On 13 November 2018, the house was again under police surveillance.  At
5pm, police observed you and Hoang walk up the driveway and enter the house.  At about 6 pm on that day, police executed a search warrant at the house.  When police entered the house, it was immediately apparent that the house was set up for hydroponically growing cannabis plants.

7You, Hoang and Le were hiding in the roof cavity of the house.  At about 8.30pm, you jumped down from the roof cavity and you were arrested by police.  You were taken into police custody, but a record of interview could not be conducted, because there was no interpreter available.

8Five rooms of the house were set up for growing cannabis.  There was an irrigation system feeding the plants and the plants were grown under a high voltage lighting system under lightshades.  The electricity was fed to the house by an electrical bypass. 

9As I have already observed, Le and Hoang pleaded guilty to cultivating a commercial quantity of cannabis.  The sentences imposed on those men are not to be compared to the sentence that you will receive, because they pleaded guilty to more serious offending.  Your offending on the other hand, is to a lesser offence on a single day.

10I note that you only recently pleaded guilty.  It was your intention to run a trial of the matter, but in the submissions of your counsel, it is clearly stated that a plea is now entered for pragmatic reasons.

11I turn now to your personal circumstances.  As I have said, you are 21 years of age at the time of the offending and you are now 22.  You were born and raised in Hai Phong province.  You are the oldest of three siblings and you travelled to Australia in June 2014 on a student visa to study English.  Your parents remain in Vietnam and are both hard workers.  Unfortunately, shortly after you arrived in Australia, your father lost his job and could no longer provide financial support.

12You stopped studying and you started working for a construction company in Sydney.  The work had dried up by October 2018, and you travelled to Melbourne on 23 October 2018.  I understand that you knew one of the
co-accused from your area in Vietnam.  That is how you came to be at the house on the day of your arrest.

13You are not a drug user, and you do not drink alcohol.  You have no prior convictions and nothing outstanding.  You have worked hard whilst on remand and you continue to study English, and you have completed a couple of courses.  I adopt the words of your counsel, who submits that there are
no obvious impediments to your rehabilitation.

14It appears from the submissions of counsel and from the surrounding circumstances, that the following matters should mitigate the sentence I impose upon you. 

·your plea of guilty;

·the fact that your involvement in the offending is limited to one day;

·your lesser role because it is not alleged that you had a financial interest in the crop, other than the prospect of payment

·your lack of prior convictions

·your young age;

·your prospects for rehabilitation; and

·the fact that your time in prison has been more burdensome due to your relative isolation in custody, lack of family support, and relative lack of English skills.

15When I come to consider the sentencing principles for this type of offending, it is apparent that the courts have recognised that there are two relevant clusters of cases involving cultivation.  The first cluster of cases is where offenders are either crop-sitters or played a low role.  Typically, the offenders are involved only for a short period of time, are often youthful, and usually do not have prior convictions.  In those cases, the offenders do not hold a propriety interest or a high financial advantage in the crop outcome.

16In this case, there is no evidence that you performed any role in leasing the premises, in the overall maintenance of the premises, or ownership of the hydroponic or electrical equipment.  There is no evidence that you bypassed the electricity meter, or that you in any other way financed the growing of the crop.  The only evidence is of your presence on the date charged.  As I have said, I accept that you were not aware how much cannabis was actually being cultivated.  I also accept that your moral culpability and the objective gravity of your offending is less than those of the other two men.

17Of course, however, the only conclusion I can reach is that you were to probably be paid for the work that you were to do at the house.  Anyone who participates in the cultivation of cannabis for financial reward, must expect to receive a term of imprisonment.  Your conduct must be met with principles of deterrence, denunciation, and just punishment.

18Your plea of guilty, however, does have significant utilitarian benefit.  Your plea has saved the resources required to run a trial.  In this way, there is a saving to the community, and it should be used to lessen the sentence that is imposed upon you.

19Although you have been studying English now for some time, I have no doubt that your time in custody is made more difficult by a relative lack of English skills, and your lack of family support.  Further, in the absence of prior convictions, it is hoped that this matter will be an isolated incident in your life.  Although I have little information about you, it is hoped that your prospects for rehabilitation are good.

20I have taken into account your youth.  You are still young enough that I consider that the community, whether in Australia or back in Vietnam, will benefit if you are given the opportunity to rehabilitate.  I have no doubt that the time you have spent in adult prison at such a young age, and being your first time in custody, has been very difficult indeed.

21Your counsel, Ms Lynch, submits that the appropriate penalty in this case, is to sentence you to time served; that is, 506 days pre-sentence detention.  Although I have no information before me, it is apparent when you are released from prison, you will go to immigration detention to begin the process of deportation to Vietnam. 

22Ms Tueno, on behalf of the Crown\, submits the appropriate penalty in this case is a period of imprisonment with a period of parole set over and above the period of imprisonment.  Whilst I have great respect for the submission made by
Ms Tueno, and the position taken by the Crown, I have decided not to impose a non-parole period with a period of parole above it.

23In the circumstances in this case, you are convicted to a term of imprisonment of 506 days.  I declare the period of 506 days pre-sentence detention reckoned as already served.

24But for your plea of guilty, I would have imposed a sentence of 26 months with 20 months to serve. 

25The Crown has made an application for the taking of a forensic sample from you.  In light of your youth, your lack of prior criminal convictions, the fact that you have nothing outstanding, and the fact that you are likely to be deported, I do not consider it to be in the circumstances in which we find ourselves at the moment, in the public interests that such a sample be taken.

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