Director of Public Prosecutions v Trieu, Thao Vy
[2012] VCC 1938
•4 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00964
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THAO VY TRIEU |
---
JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2012 | |
DATE OF SENTENCE: | 4 December 2012 | |
CASE MAY BE CITED AS: | DPP v Trieu, Thao Vy | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1938 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Bourke | |
| For the Accused | Mr V. G. Peters |
HIS HONOUR:
1 Thao Vy Trieu, you have pleaded guilty to an indictment charging you with one offence of cultivating a narcotic plant, namely Cannabis L, between 25 August last year and 3 November last year and a charge that between those same dates you stole electricity belonging to Energy Australia. The total number of plants that were under cultivation at the time of the police intervention was 90 plants with a total weight of a little over 29 kilograms. The quantity of electricity stolen during that period was $8,512 and 11 cents. The maximum term of imprisonment for the offence of cultivating a narcotic plant is 15 years and the maximum term of imprisonment for theft is 10 years.
2 You have no prior convictions. The prosecution relied upon and tendered a summary of prosecution opening, which is Exhibit A. I am not going to read that out again, it having been read this morning. But I incorporate the content of that document into these reasons for sentence. Suffice it to say that the house at Bacchus Marsh at which the offences were committed had been set up with a sophisticated hydroponic growing nursery with equipment that would have cost a little short of $44,000 or thereabouts. The way in which the hydroponic nursery had been set up is also captured in photographs that form part of the depositional material, as is the equipment which was used to grow the cannabis that was found at the premises. The setup is of a kind that is familiar enough to these courts and was clearly a sophisticated operation designed to produce a substantial quantity of marketable cannabis for sale on the black market at a substantial profit.
3 The offences are both serious ones but the nature of this particular setup shows that it was set up professionally and in a sophisticated way. I have to approach sentencing you on the basis that you attached yourself to a sophisticated operation that was designed to generate a substantial profit.
4 Turning to matters personal to you, you are now aged 55 years. You were born in Vietnam in 1957 and came to Australia in 1977 as refugee immigrants, having escaped from your home country by boat, first of all to Thailand and then through the refugee program to Sydney initially with your parents, your husband and then two young children and also some siblings. You moved later to Brisbane and then to Sydney and in 1981 you came with your parents, husband and by then three children to live in Victoria at, initially, the Richmond high rise units.
5 Although it seems that your husband found work and your family generally were industrious you did not prosper and your marriage broke up in 2002. It seems that you had problems with your children as they were growing up and that too added to the woes that you experienced as a result of the separation in 2002. You received an equity share from the sale of your property at the time of your marriage break-up of some $60,000 but I am told that since then you have led a quiet, introspective life. Your life and condition has been attended by low self-esteem.
6 It seems that although you did not have a gambling problem you did gamble recreationally from time to time and during that period you were offered some assistance by another Vietnamese gentleman. It would seem common with others that come before this court from time to time you were prevailed upon to reciprocate the assistance by providing assistance with the cultivation of a cannabis crop. It seems that it was through that channel that you became involved in this offending conduct and you were asked to act as a house sitter at the address in Bacchus Marsh where these offences were committed. The person who organised for you to act as a house-sitter did the cultivation work on the crop and brought you food and about $50 a week. It seems that you were promised some money, presumably from the profits, but at a later date.
7 This is again a tale that is not unfamiliar in cases of this nature and your role in this enterprise is clearly of a less serious nature than that of the organiser or organisers of the cultivation venture, of the owners or lessees of the premises and of the person who inveigled you into engaging in the criminal enterprise. Nevertheless, the role you played was an essential role. It was necessary in order to enable the cultivation to continue successfully for the property to appear to be lived in. It was your job to give that impression by actually living at the premises. It is not suggested that you were in any way ignorant of what was going on and it seems that you willingly accepted that role, albeit that a degree of moral pressure was put upon you by the person who organised your involvement. So although the enterprise itself was of a sophisticated and professional kind, your role cannot be said to be that of an organiser and it is a role which clearly carries less criminal culpability and responsibility than that of a person engaged in the organisation or a person who would be expecting to receive a significant share of the profits.
8 You were arrested in the vicinity of the house where the offences were committed and when questioned by police you admitted that you lived at those premises. It would have been difficult for you to have denied that in view of the fact that keys were found in your possession which clearly linked you to those premises as well as a device, a remote control, for opening the garage door at those premises. So you admitted that you lived at the premises but, as was your right, declined to answer further questions about what was going on at the premises or indeed the identity of those who were also involved in the venture. I am told by the prosecution that it is accepted that that is an accurate identification of your role and, as I say, it places you lower in the hierarchy of offenders engaged in this kind of conduct.
9 It was submitted on your behalf that I should take into account your early indication of a plea to these offences I am told that offer was made in February of this year. You have no prior convictions of course and I am told that you have not fallen foul of the law since your arrest. Your plea of guilty is an indication of remorse. It also attracts a discount for saving the public the expense of a trial and the witnesses the inconvenience of attending court for the purposes of a trial. It was submitted on your behalf that although offences of this kind would ordinarily attract a term of imprisonment that that sentence should either be wholly suspended or at least partly suspended and the part that was to be served should be of a short duration.
10 On behalf of the prosecution it was submitted that a term of imprisonment was the only sentence that was properly open to the court and that that sentence should be between two and three years with at least some part of the sentence actually to be served. I am of course required to express the denunciation of this court appropriately through the medium of a sentence of conduct of this kind. I am required to punish you appropriately for the offending. I think it is unlikely that you will offend again. I do not discount altogether individual deterrence but I think your prospects of rehabilitation are good. It seems that you have some family support in the sense that you have a roof over your head and a brother who is prepared to extend that support to you. However, I am also required to pay proper consideration to the sentencing principle of general deterrence, that is, deterring others from committing offences of this kind. As I have already indicated, this was clearly a sophisticated hydroponic setup with a view to a substantial profit being made from the sale of the cultivated cannabis. The quantity of plants was towards the upper end of the cultivation simpliciter range and your role, although not of an organiser or direct participant in the profits, was nevertheless an essential role in the sophisticated operation and it is necessary for the court to impose sentences which are likely to deter others from engaging in conduct of this kind even if their role is only that of the house-sitter who, as I say, is an essential component of a successful operation of this kind.
11 I am also required, consistent with sentencing principle, to facilitate your rehabilitation to the extent that the circumstances permit. I have come to the conclusion that the range proffered by the prosecution, having regard to the role that you have played, is higher than is appropriate for this particular offending conduct. But I have come to the conclusion that the only appropriate sentence for me to pass is a term of imprisonment, some of which will be required to be served.
12 For the offence of cultivating a narcotic plant I sentence you to imprisonment for 18 months.
13 For the offence of stealing electricity I sentence you to imprisonment for six months.
14 Those sentences will be concurrent and I order that all but three months of the sentence will be suspended for a period of two years. That is, 15 months of the total effective sentence of 18 months will be suspended for a period of two years.
15 I am required to tell you that if you do not commit an offence during the next two years that is punishable by imprisonment you will not be required to serve the remaining 15 months of the sentence that I have imposed. If, however, you do commit an offence punishable by imprisonment during the next two years then it is very likely that you will be required to serve the balance, the 15 months that is suspended, as well as any sentence that is imposed for the offending conduct that puts you in breach of the order that I make today. Do you understand that?
16 So you will be required to serve a period of three months' imprisonment. However, I declare that three days' imprisonment is to be calculated as time served on the sentence that I impose deducted from the period of three months that you will be required to serve.
17 But for your pleas of guilty I would have sentenced you to a total effective sentence of two years and six months' imprisonment with a non-parole period of 18 months.
18 I also make orders for disposal of property in accordance with the drafts that have been provided to me and an order that the forensic sample that you have already provided be retained for placement on the database. I note that neither of those applications were opposed and I have signed the orders as drafted.
19 COUNSEL: As Your Honour pleases.
20 HIS HONOUR: Any other orders that I need make, gentlemen?
21 COUNSEL: No, Your Honour.
22 HIS HONOUR: Very well. I think I will just sign the order; it is about to be printed off. Did I say in relation to each of the sentences that I convict the accused as well?
23 MR BOURKE: Yes, thank you, Your Honour.
24 HIS HONOUR: I think I did, did I? Yes. I note that Mr Travers has noted it on the order but I just could not remember whether I said it or not. Thank you.
- - -
0
0
0