Director of Public Prosecutions v Vo

[2012] VCC 1159

P

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-00825

DIRECTOR OF PUBLIC PROSECUTIONS

V

 XUAN TRUNG VO

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 August 2012
CASE MAY BE CITED AS:	DPP v. Vo
MEDIUM NEUTRAL CITATION:	[2019] VCC 1159

REASONS FOR SENTENCE

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Catchwords: Criminal Law – Sentencing – Cultivation of a narcotic plant in not less than a commercial quantity – Vietnamese national – Custodial sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms T. Saville	Mr Craig Hyland, Office of Public Prosecutions
For the Accused	Ms G. Morgan	Robert Stary and Associates

HER HONOUR:

1       Xuan Trung Vo, you have pleaded guilty before me to one charge of cultivation of a narcotic plant in not less than a commercial quantity, the drug being cannabis L.

2       This charge is serious and that is evidenced by the maximum penalty set out by Parliament, namely, 25 years' imprisonment.

3       I will now sentence you on the basis of the Crown opening, there being no exception taken to that opening during the plea hearing. 

4       Briefly, on 21 February 2012, following the execution of a search warrant at 47 Greendale Road, Pakenham, police located a hydroponic cannabis crop growing in four rooms of a domestic dwelling.  In total there were 133 plants.  Sixty-four were 50 centimetres in height and 69 were 15 centimetres in height.  The total combined weight of these plants was found to be 8.364 kilograms.  Because there were in excess of 100 plants, this fell within the definition of a commercial quantity. 

5       All the usual equipment and paraphernalia for growing cannabis L were located at the house and also an electrical bypass set-up was located.  I note, however, you are not charged with theft of the electricity and the Crown have not asserted that you were responsible for the establishment of the hydroponic crop or the bypass of the electricity.

6       When arrested you were co-operative with the police and made admissions in the record of interview.  You told police that you agreed to sit the crop on behalf of others and you were paid $700 per week.  You owed between $15,000 to $16,000 in gambling debts and you had to work at the house to pay that debt off.  You told them that you had been going to the house for about 15 days.

7       I propose to sentence you on the basis that your role was that of a sitter.  I am satisfied that an explanation for your offending was because of your gambling debts and it was in that context that you were vulnerable to being recruited for this offending.  It does not excuse your behaviour but it does explain it.

8       In your favour I have taken into account that you pleaded guilty at committal mention on 25 May 2012 and I am satisfied that the plea of guilty was entered at the earliest opportunity.  You will receive the full benefit of such early plea and your sentence will be discounted accordingly.

9       By your admissions you accept that you played a role in nurturing the crop by watering the plants.  It is important to emphasise in the sentence both general and specific deterrence.  What this means is that you must be prevented from offending in this nature in the future and a message needs to be sent to other people in the community that those who sit crops on behalf of others face stern punishment when apprehended.

10      I note that your girlfriend was present with you at the time of your arrest.  She was not charged in relation to the crop and she was sentenced to a 12 month non conviction good behaviour bond relating to some money that was treated as possession of suspected proceeds of crime on 6 June 2012.  She had served a total of 106 days in custody.  It has been reported to the court that she has been deported back to Vietnam and that your baby was born in July 2012 in Vietnam.

11      You are aged 33.  You are Vietnamese.  You over-stayed a transit visa some eight years ago and from that time you have been living a hand-to-mouth existence, undertaking semi-skilled labouring work in Robinvale and also in and around St Albans, undertaking farmhand-type work.

12      The explanation given for your offending related to your indebtedness because of gambling debts, but also there was additional moneys loaned, being $10,000.  That was to assist with your girlfriend, to enable her to obtain medical help associated with her pregnancy.  It is my understanding that the person who arranged for you to work at this grow-house was a person whom you knew from Crown Casino.  He had loaned you the moneys to assist with your girlfriend and to whom you felt indebted.

13      You accept that you must be punished for your participation in this crime and you also understand that you will be deported immediately upon your release.  You plan to re-unite with your girlfriend and the baby and you are committed to supporting your family. 

14      I note that you have been held in custody at Melbourne Remand Centre whilst on remand since 22 February 2012 and that you are very isolated within the Victorian prison system because of your lack of any connections to Victoria, there are no family or friends who have been available to visit you and that isolation is further exacerbated by your lack of English language skills. 

15      Overall I consider that a term of imprisonment to be served and no other sentencing option, is appropriate.  I have considered your rehabilitation prospects.  They are good given that you were so open with the police when arrested. 

16      I must impose just punishment and also on behalf of the community formally state that what you did was wrong.  I also must send the message to other people in the community who might otherwise be attracted to this sort of activity that if you are caught then you will face stern punishment. 

17      The Crown submitted a sentencing range of between 15 to 18 months, head sentence, and three to nine months non parole period.

18      Your counsel has requested that the court give consideration to imposing a term of imprisonment that would mean that you would not have to serve much by way of additional time, having regard to the time already spent in custody. 

19      Having assessed the seriousness of your offending and the nature of your role, I consider that a period of imprisonment of 15 months is warranted, and on the charge of cultivating a narcotic plant of not less than a commercial quantity, you will be convicted and sentenced to 15 months' imprisonment.  I order that you serve seven months' imprisonment and the remaining eight months are partially suspended.  The operational period is eight months.

20      Pursuant to s.6AAA of the Sentencing Act, but for the plea of guilty I would have imposed a sentence of imprisonment of two years, to serve 12 months.

21      Having regard to the particular circumstances of this case I will not be making an order pursuant to s.464ZF to the Crimes Act 1958. I do not consider that it is warranted given the circumstances of the offending where there was no issue with respect to identity, you have made full and frank admissions, you are a person who has no prior convictions and it was opposed by your counsel.

22      I make the disposal orders sought.  I make a declaration of pre-sentence detention of 177 days and direct that that be entered into the records of the court.

23      I make the disposal orders. 

24      Is there anything else that needs to be said in order to complete this matter?  No?  All right.  Ms Morgan, I am sure you will anyway, just when I leave the Bench, can you explain to your client the effect of the order.  Thank you.

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