Director of Public Prosecutions v Tong

[2015] VCC 1337

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 15-000569

DIRECTOR OF PUBLIC PROSECUTIONS

v

MY TONG

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	22 September 2015
DATE OF SENTENCE:	23 September 2015
CASE MAY BE CITED AS:	DPP v Tong
MEDIUM NEUTRAL CITATION:	[2015] VCC 1337

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu
For the Accused	Mr D. Robertson

HER HONOUR: 

1Stand up, Ms Tong.  Ms Tong, in a moment, I am going to sentence you, but I have to do it in a rather formal way, so I want you to understand before I start that what I am doing is, I am sentencing you to the same amount of time of gaol as you have already been in gaol.

2OFFENDER:  Yes.

3HER HONOUR:  And I am going to call it time served.  So that means, you do not have to go back.  So nothing more will happen.

4OFFENDER:  Thank you.

5HER HONOUR:  Do you understand what I said to you?

6OFFENDER:  Yes, thank you.

7HER HONOUR:  Can you tell me what I said to you, just so I know.

8OFFENDER:  You said I don't need to come to gaol anymore, because I have it served already.

9HER HONOUR:  Yes.  I am going to sentence you to 90 days, because you did 90 days, but I am going to say you have already served that time, all right?

10OFFENDER:  Thank you.

11HER HONOUR:  Thank you, have a seat, Ms Tong, because I have to go through a formal process.  Thank you.  My Han Tong, you have pleaded guilty before me to one charge of cultivation of a narcotic plant.

12On 7 November 2014, police executed a warrant at a house at 39 Dougherty Street, Yarram, which they discovered was mostly devoted to the growing of a cannabis crop.  They seized 297 plants growing in seven rooms, the age of which varied from six weeks to 16 weeks.  The total wet weight was 78.7 kilogram, excluding roots.

13Each growing room was set up with the normal cannabis cultivation paraphernalia, including plastic sheets on the floors, walls, and windows; grow lights; transformers; exhaust fans; and a watering system pumping plant nutrients in water.  Police seized 105 grow lights, 145 transformers, eleven exhaust fans, four power boxes, and electrical cables used in the bypassing of electricity.

14Police conducted a record of interview with you on that day, in which you told them that you had been approached by the co-accused Bich Nguyen to live at the house in return for $10,000.  You and he occupied separate premises there, and he taught you how to grow the plants.  Your jobs were to monitor the feeding and watering; adjust the lighting and temperature; and pruning.  You had attained a second key to the premises from the agent using an alias on 25 August, and you also paid for the electricity and water with money left for you by Bich Nguyen in an envelope.  You told police you went to the post office to pay these accounts on two or three occasions.

15At the time, you were a student.  You lived at the house full time and attended lectures on Mondays and Tuesdays.

16You have served 90 days' presentence detention from 7 November 2014, to 5 February 2015.  Your plea was entered at a reasonably late stage, but I do not regard it is as being indicative that you are not remorseful for your offending.

17I now turn to your personal circumstances.  You are 26 years old and were born in Hong Kong in a refugee camp, where your Vietnamese parents had moved in the aftermath of the Vietnam War.  At the age of six, your family was returned to Vietnam, where to everyone's surprise it appears you lived fairly comfortably, and completed a full education including secondary schooling in 2008.

18You studied nursing at your local university, which you discontinued after about two years, and in 2010, travelled to New Zealand to undertake English language studies.  The major earthquake there struck after you had been there for about six months, and you returned to Vietnam with subsequent anxiety difficulties.

19After a year, you went back to Auckland and undertook a certificate in early childhood, then in mid-2012 moved to Sydney, where you undertook further studies in early childhood education, completing a TAFE qualification.  In 2014, you applied to remain in Australia on a student visa in order to undertake business studies, that course being scheduled to continue into 2016.  It appears you have almost finished this course.

20Whilst you have had support from your family; financial support from your family while living in Australia, you have also had to work in a range of unskilled jobs to support yourself, mainly as a cashier.  However, despite the money that your family sent and the work you have undertaken, you have always had difficulty making ends meet.

21You told police you had met the co-accused at a shopping centre one day.  He is also Vietnamese; you told him about your financial difficulties; and he offered you the job as a crop sitter.  It appears, however, that you have never been paid.

22I had reference to a psychological assessment of you by forensic psychologist Patrick Newton, who in his report dated 26 July 2015 described you as a person with no psychological or antisocial problems; no drug or alcohol problems; that you had no disorder; and you impressed as a normally hardworking and law abiding young woman, who had undertaken this most unusual criminal path in your life because of financial necessity.

23He said you had had a more than normal traumatic response to being charged, likely because of the shame you feel over your offending; the dishonour to your family; and because you are in quite a lonely scenario in Australia, in Melbourne in particular.

24Your student visa has been cancelled, but it is hoped that this can be appealed so that you can complete your studies the next year, your counsel informing me on the plea hearing that you have very little in the way of the course to finalise, before you take your degree.

25In all the circumstances, given that you have no prior criminal record; do not present as a person with any sort of criminal tendencies; given my view that your prospects of rehabilitation are excellent, and that you are unlikely ever to appear before a court again, I am going to deal with you by simply imposing a term of imprisonment of 90 days, and declare that that is time that has already been served by way of pre-sentence detention.  I note that the prosecution did not demur from this course.

26So could you stand up, please.  Thank you.  On the charge of cultivating a narcotic plant, I sentence you to 90 days' imprisonment, and declare that time has already been served by way of pre-sentence detention.

27MR ROBERTSON:  As Your Honour pleases.

28MR PORCEDDU:  As Your Honour pleases.

29HER HONOUR:  Thank you very much, that is it, thank you.

30OFFENDER:  Thank you.

31HER HONOUR:  Yes, I sometimes think I am not terrible in favour of all this - I mean, I know it is a court thing about handing up all the material beforehand and so forth, but in cases like this, I think it has been a very good idea.

32MR ROBERTSON:  Yes.

33HER HONOUR:  Mainly because I just keep thinking how much work it is for you at the Bar, having to type up your plea as well as deliver it.

34MR ROBERTSON:  You add more paperwork to a criminal lawyer and they tear their hair out.

35HER HONOUR:  Absolutely.  It is the whole reason we did Crime.

36MR ROBERTSON:  I remember Philip Dunn telling me, when I was with John Dwyer doing equity, "What are you doing equity for?  There's paperwork.  Do criminal law.  There's no paperwork, it's terrific."

37HER HONOUR:  Wrong, wrong, and wrong again.  All right, thank you very much.

38MR ROBERTSON:  Thank you, Your Honour.

39HER HONOUR:  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to six months' imprisonment.  Thank you very much.

40MR ROBERTSON:  As Your Honour pleases.

41MR PORCEDDU:  As Your Honour pleases.

42HER HONOUR:  All right.

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