Director of Public Prosecutions v Vo
[2022] VCC 206
•25 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR 19-01428
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THAI VO |
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JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2021 and 21 February 2022 | |
DATE OF SENTENCE: | 25 February 2022 | |
CASE MAY BE CITED AS: | DPP v Vo | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 206 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Single charge of cultivation of a narcotic plant – Parity – Deterrence – Denunciation – Punishment – Rehabilitation.
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: Two year Community Correction Order with conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Stougiannos | Office of Public Prosecutions |
| For the Accused | Mr D. Dann QC | James Dowsley & Associates |
HIS HONOUR:
1 Thai Vo, over six years ago on 14 January 2016 police searched an unoccupied house in Clifton Springs. They found the premises were set up solely for cannabis production using an indoor hydroponic cultivation system. Conversion of domestic houses into cannabis production factories is all too prevalent. The product cannabis does adversely impact on the community. Those involved in cannabis production for profit or in an entrepreneurial way must be dealt with firmly expressing denunciation and deterrence.
2 This house had cannabis plants growing under powerful lights in five rooms. The power had been bypassed to avoid the large costs of powering these lights. Police found and seized 78 plants. They were analysed within a week and found to weigh 59.8 kilograms. Other items found in the house were sent for DNA analysis. This sophisticated forensic process took some further time.
3 However,
what was not in the least hidden or requiring much by way of investigation was who owned the house. You, Mr Vo, together with your co-accused Mr Lay were the joint owners having purchased and taken possession of the house in October 2015. That is a short time before the raid in
January 2016.
4 It was accepted that you men acquiesced in the cannabis cultivation at that house. You knew it was likely to yield significant amounts of cannabis ultimately for distribution into the community. In October 2017 DNA analysis on Mr Lay connected him to an item found and he was arrested. You were not arrested and interviewed until February 2018. Charges were not laid until May 2019.
5 For reasons that are unclear and perhaps unsatisfactory, the case was listed in Melbourne for a committal and then trial. If the case had been listed in the appropriate venue, which was Geelong, the case would have been likely completed in 2019, at least before the pandemic, but as it turned out in the Melbourne list the case did not get on for trial until the pandemic was well and truly upon us.
6 The matter languished until the courts were involved in a case management process that led to a sentence indication hearing for Mr Lai to a lesser charge of cultivation simpliciter. You, Mr Vo, did not participate in the sentence indication process but at a later point, after the successful application was made by Mr Lai in early December 2021, you indicated that you would plead guilty on arraignment to cultivation simpliciter, which you did when the matter was listed for plea about a week ago.
7 I repeat what I said in delivering sentence in Mr Lai's matter, that those who cultivate for profit are committing a crime. It does have an adverse effect on the community. Problems caused by cannabis use are well known and the crime cannot be dismissed as minor offending. As I have already said, denunciation and deterrence are important sentencing considerations.
8 This was a well-planned, deliberate attempt to make significant profits from cannabis growing. Your acquiescence means your offending is serious offending. There really is no dispute about that.
9 However, the crime is not cultivation or trafficking in a commercial quantity of cannabis which carries a very lengthy maximum term and is, these days – not when you offended – but these days is a Category 2 offence, limiting the discretion of the trial judge. What is important is my sentence must be proportionate to the crime; that is the charge that you have pleaded guilty to, which is cultivation simpliciter.
10 As I said in the matter of Lai, I noted that some of the most important sentencing matters were what I described as important policy considerations and in particular those that arise because of the pandemic. The first matter that I mentioned, and I repeat here and indicate that significant weight has been given to it, is the extraordinary delay.
11 It is now over six years since this matter was detected, or the cannabis was detected. There has been a delay from interview, a delay to charging, and then the court delays that followed. It has been hanging over your head for a significant period of time since you were arrested, but you would have known, in my view, that the place had been raided given that you owned it and acquiesced in the cultivation process.
12 What also is a weighty matter of course is your plea of guilty a little bit later than your co-accused but in the scheme of things that does not amount to much. The Court of Appeal in Worboyes has provided guidance to sentencing judges such as myself as to how important to the whole criminal justice system are pleas of guilty at this time of crisis.[1]
[1]Worboyes v The Queen [2021] VSCA 169.
13 Since this matter, and over the period of time that this has been hanging over your head you have, in general terms, developed and displayed good prospects for permanent reform, especially with respect to your family circumstances and employment, which I will turn to.
14 You are similar to your co-accused in many ways. You, like him, have one subsequent matter which was discovered recently, but your subsequent matter of breaching one of the bail conditions that applied to this offending and being connected to proceeds of crime, they were not as serious as your co-accused's subsequent matter. You, like him, of course have no prior matters alleged.
15 You had an unremarkable but positive upbringing, being close to your mother and grandmother. You were educated to Year 12 and moved partway through a tertiary course. You have worked in the real estate industry and subsequent to this offending you were employed for a significant period in the hospitality industry and impressed your employers, who provided references. That work in the hospitality industry ended with the business not surviving the 2021 COVID lockdowns.
16 You have since, I am told, gained some work in marketing for a car repair business. Importantly you have established a solid relationship and have a young child. These responsibilities have become your focus. Your prospects for reform are good in all the circumstances. You have the benefit to call upon of no prior offending. You can call on your previous good character and your good work history in mitigation.
17 The long delay has by and large, seen you reform, albeit that you did not advise the authorities of a change of address and had on at your house a ring that you should not have had, so you received from the magistrate just in October of last year adjourned undertakings without conviction and a requirement that you put $500 for each charge, I think, into the court fund.
18 Your plea of guilty is valuable, as I have emphasised, because the criminal justice system is facing difficulties that are now well known. The benefit to you must be palpable and it opens up, as I have explained at the sentence indication hearing and delivering sentence in respect of your co-accused, it opens up alternative penalties such as community corrections orders for cultivation of cannabis in the amount that you did within the offence of cultivation simpliciter.
19 The added issue, of course, is parity with Mr Lai who I indicated I placed on a community corrections order; that is, not imprisonment. His subsequent matter in my view required that he be under the supervision of Corrections officers as additional punishment for him and to ensure his rehabilitation.
20 I have taken the view that supervision is not needed in your case. A work only community corrections order is just and appropriate. I did so after consideration of the facts and circumstances and the outcome from the Magistrates' Court of your matter. It is not in the same league as the subsequent matter for your
co-accused.
21 Your counsel submitted that in all the circumstances - that is, all the matters that were raised in mitigation together with all the matters such as the seriousness of the offence and your subsequent matter. He submitted that a community corrections order, without recording a conviction was appropriate. The prosecution opposed this, emphasising the gravity of the offending and to a small degree, the subsequent criminal offending.
22 As I have noted, the cultivation was planned and deliberate offending. It is a serious offence and a serious example of cultivation simpliciter in the sense it is understood from held authority that the weight of a drug is a critical consideration. I am mindful of your prospects for the future but in considering all the factors set out in s 8 of the Sentencing Act regarding recording a conviction and your subsequent matter, that prominently the seriousness of this offence means in my view this is a case where a conviction is required.
23 Mr Vo, for committing the crime of cultivation of cannabis with conviction you are placed on a two-year community corrections order. The only program condition that attaches to you is you are to do 160 hours of unpaid community work. You are not required to do supervision or mental health treatment or anything of that kind. I will explain to you all the standard conditions that apply to all community corrections orders shortly, then I will ask whether you consent.
24 I indicate, as I did, that should you have pleaded not guilty to these offences and then been found guilty I would have imposed two years with a minimum of
14 months. If that is overstating what I said ultimately to Mr Lai, then I will correct that. They are both the same, I just have a note here it is two years with 14 months. If I am inaccurate about that, I will correct it.
25 There are no other orders, as I understand it. Regarding Mr Lai’s 6AAA figure, my staff tell me I was accurate there. It is 6AAA, which I do not have to do, as I understand it, because it is a corrections order but I do because this gives some meat on the bones of Worboyes as to the palpable discount for a plea of guilty and of course had you pleaded not guilty, you no doubt would have faced a commercial cultivation.
26 Mr Vo, what is required of you is just to listen to these conditions of your community corrections order, and if you consent to them documents will be signed and forwarded to you and it will commence and it brings this matter to an end in that sense.
27 Everyone who is on a community corrections order has these conditions. You are not to commit an offence for which you could be imprisoned during the whole period of two years. Every offence you can think of is likely one that is punishable by imprisonment, just a shop theft or driving off without paying for petrol or something like that, so do not commit any offences. Be of good behaviour as you generally have and you will get through this.
28 The other standard conditions really are about cooperation, so the cooperation required of you is to report to the Corrections office within two working days, that will be by telephone I expect. That is at Sunshine and someone will correct me if I am inaccurate about that. You are living in Caroline Springs.
29 The next thing is that you have to tell them if you change your address. You have got to tell them if you change your job, just keep them informed. You have got to tell them if you want to go interstate and get permission to do so just for a trip over the border. You have got to obey all lawful instructions and directions from them, and there may be a requirement for visits. I do not expect it, but you have to consent to them coming along and seeing how you are going there, but you are not under supervision. That is a different aspect of a corrections order.
30 I think that covers all things that are the standard conditions and in your case you have to do the 160 hours of unpaid community work. I will explain how that is to be done. It is not voluntary and I'm sure there can be some flexibility if you get some work that needs to be done. These are not to drive people out of work or out of employment, but at the same time they are not to be just ignored or pushed to one side or in some way you fob them off. If you do that you will end up back before me and it's a different sentencing landscape then. Do you understand all that?
31 OFFENDER: Yes, I do, Your Honour.
32 HIS HONOUR: Do you consent to doing that corrections order?
33 OFFENDER: Yes, I do, Your Honour.
34 HIS HONOUR: Thank you. I think that brings everything to an end. Mr Stougiannos, have I covered everything? While that is coming through, Mr Dann, is there anything you wish to say, correct, or otherwise?
35 MR DANN: No, just the mechanics, Your Honour. With the order, does my client - you said that would be forwarded to him. Does he then sign it and forward it back to the court, or ‑ ‑ ‑
36 HIS HONOUR: No, there's no need. I just note on the document that I will sign, he will get a copy of that. It just says that oral consent was given in the virtual hearing. It's just a standard thing.
37 MR DANN: As the court pleases.
38 HIS HONOUR: Yes. There's no need for signatures or the like, so that will be directed to the solicitors and forwarded on to him. Thank you for your assistance. Mr Stougiannos, is there anything else required?
39 MR STOUGIANNOS: No, sir, thank you.
40 HIS HONOUR: Thank you for your assistance.
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