Director of Public Prosecutions v Van

[2015] VCC 264

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00022

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN THUC HO

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2015
DATE OF SENTENCE:	6 March 2015
CASE MAY BE CITED AS:	DPP v Van
MEDIUM NEUTRAL CITATION:	[2015] VCC 264

REASONS FOR SENTENCE
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Subject: Cultivating a narcotic plant – property suspected of being the proceeds of crime
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Imprisonment for a term of six months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Bhai	Office of Public Prosecutions
For the Offender	Ms C. Tran	Victoria Legal Aid

HER HONOUR:

CHARGE

1Van Thuc Ho, you have pleaded guilty to one charge of cultivating a narcotic plant, being cannabis, and to one charge of dealing with property suspected of being the proceeds of crime, being $430.  The maximum penalty for cultivating a narcotic plant is 15 years' imprisonment. The maximum penalty for dealing with property suspected of being the proceeds of crime is two years' imprisonment.

CIRCUMSTANCES OF OFFENDING

2The circumstances of your offending were set out in the prosecution opening.  In summary, you were discovered house-sitting 143 cannabis plants weighing 10.76 kilograms.  You were discovered when police executed a search warrant at a 161 Noble St, Noble Park, on 14 October 2014. 

3The crop was growing in different rooms of the house and a light and watering system was operating.  Police also found $430 cash in your wallet.  When you were interviewed by the police, you told them that you had been paid to look after the crop.  At first you had not known that it was cannabis, but some nine to ten days later, you realised that it was cannabis.  You instructed your counsel that you tried to contact the man responsible for hiring you to sit the crop to cease your involvement.  However, you were too scared to withdraw as you thought they would report you to the authorities as an illegal immigrant, or that you would be harmed in some way. 

4The only payment you received was in fact $1000, when you initially arrived at the house, and then $450 about three weeks later.

PERSONAL CIRCUMSTANCES 

5Your personal circumstances are that you were born on 20 May 1988, and you are now 26 years old. You were born in North Vietnam and you are the eldest of five children.  Your parents have a farm there and they are in poor health and struggling financially.  After leaving school, you worked on the farm and also for other people as a labourer.  You then obtained work in a tourist company and took advantage of an opportunity to come to Australia for a tour.  You overstayed your tourist visa and worked on various farms, sending money back to your family and to pay off a debt to the tourist company.  You have no mental health issues, but you were involved in a car accident in Vietnam and sometimes suffer pain from a shoulder injury. 

6In addition, you contracted Hepatitis B through farm work and your poor health made it difficult for you to continue working on farms.  You met a man in a café in Springvale, and he offered you the house-sitting job.  It was less laborious than working on the farm, and you took the job, as your family were struggling financially and you wanted to repay your debt.

MITIGATING FACTORS 

7In her plea on your behalf, your counsel relied on the following mitigating circumstances - your plea of guilty, your full admissions in your record of interview, your remorse, your lack of prior criminal offending, your previous good character; that you were involved in the crop-sitting for a relatively short period of time and that in that role you acted on the instructions of others.  She also submitted that as a foreign national, the impact of gaol was more burdensome for you due to your lack of English and separation from your family.  She submitted that you had good prospects of rehabilitation, given your relative youth and your desire to return home to Vietnam and your family. 

8While she asked the court to take into account that you stayed on sitting the crop due to fear of threats from those who hired you, I must also take into account that monetary gain was a factor.

SENTENCING REMARKS 

9In sentencing you, I have taken into account the sentencing guidelines set out in s.5 of the Sentencing Act.  I have taken into account all the mitigating factors referred to by your counsel, and I have given you a discount for your plea of guilty. 

10As your counsel rightly acknowledged in her written submissions, general deterrence is also an important sentencing consideration in cases such as this.  Unfortunately your situation is not uncommon.  The people behind the cultivation of cannabis crops recruit people such as you to become house-sitters.  By performing this role, you contribute to an illegal industry.  It is appropriate that you serve a sentence of imprisonment in this case.  Would you please stand up?

SENTENCE

11On the charge of cultivating a narcotic plant, you are sentenced to six months' imprisonment.  On the charge of dealing with property suspected of being the proceeds of crime, you are sentenced to three months' imprisonment.  These sentences are concurrent on each other and all other sentences.  This means that your sentence is effectively six months. 

12I declare 143 days of pre-sentence as time already served.  It effectively means that you haven't got much longer to go.  But for your plea of guilty, you would have been sentenced to 12 months' imprisonment, to serve nine months.  You can take a seat.  The forfeiture order - is that consented to?

13MS TRAN:  It is consented to, Your Honour. 

14HER HONOUR:  I make a forfeiture order for the equipment involved in the growing of the cannabis and the $439 in cash.  There is an application for a 464ZF sample - is that consented to?

15MS TRAN:  Yes, Your Honour. 

16HER HONOUR:  I have got a notice of an application but I have not got the actual ‑ ‑ ‑

17MS BHAI:  I have got draft orders to hand to you, Your Honour. 

18HER HONOUR:  Yes, is there anything ‑ ‑ ‑

19COUNSEL:  Nothing further, Your Honour. 

20HER HONOUR:  Thank you, we will adjourn the court. 

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