Director of Public Prosecutions v Vo

[2019] VCC 1734

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-01180

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAO CUONG VO

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	23 October 2019
DATE OF SENTENCE:	23 October 2019
CASE MAY BE CITED AS:	DPP v VO
MEDIUM NEUTRAL CITATION:	[2019] VCC 1734

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr S. Peterson	Stephen Peterson Lawyers

HIS HONOUR:

1Cao Cuong Vo, you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis.  That charge carries a maximum penalty of 25 years imprisonment.  You are now 39 years of age.  You pleaded guilty at the earliest reasonable opportunity and that you must get the utilitarian benefit of that plea of guilty. 

2In these circumstances, remorse is always somewhat problematic, but I will give you the benefit of the doubt in relation to that. Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.

3The situation is that you are in Australia illegally.  Your student visa expired some years ago and the certainty is that upon the sentence being imposed by myself, upon the conclusion of that sentence, you will be deported.  I take that into account here in the sense that whilst you otherwise might not have any difficulty going back to Vietnam, you now have a two month old child in this country and the prospect of deportation may well separate you from that child and I do take that aspect of it into account.  You have no prior convictions and nothing pending.

4A summary of the matter has been tendered by the Crown and in short compass, what happened was police attended an address in Prince Street, Moe in December of 2018 and an investigation commenced.  On 13 March 2019, a search warrant was executed at that address and you were found there, you initially tried to flee, but ultimately were apprehended.  You clearly had been living there for a short period of time.  The Crown say two weeks, the defence say two weeks and I cannot go beyond that.  Certainly your motor vehicle was there, your car keys were there and your explanation to your counsel is that you had been asked to crop sit and I sentence you on the basis of a crop sitter for approximately two weeks duration.

5There was a room where you had been sleeping and when actually spoken to at the scene, you were compliant.  The actual crop itself in six rooms containing cannabis plants and hydroponic equipment and the usual paraphernalia that goes with it.  There was a bypass for electricity.  There is no charge for that. 

6You are sentenced on the basis that you played no part in the setting up of the system and your renumeration for the two weeks that you were there was some $1,400.  In fact what were found were 148 plants weighing 36 kilograms and loose cannabis weighing approximately two and a half kilos.  On that weight, it is obvious that a lot of those plants were very small and I simply sentence you on the basis of the weight, for the weight takes it over the commercial quantity, but not by an enormous amount.

7I do not think there is much else I need to say about it.  As the prosecutor said, this is basically par for the course in rural Victoria these days and as always, the ultimate owners, proprietors of the crop never get charged.  But in any event, you were born in Vietnam in a poor coastal region.  You were raised by your parents.  Your mother worked for a pharmaceutical company.  Your father was killed when you were 19 years of age and your mother died in 2010.

8Up to that period of time, you had attended school and obviously a person of intelligence and your counsel has been told by you that you have a Bachelor of Biology.  You have an older brother who still lives and works in Vietnam.  Whilst in Vietnam, you married and had a child named Nguyen Vo.  That relationship was apparently short lived and you split.

9You came to Australia in 2013, leaving the wife and child in Vietnam.  You came here pursuant to a student visa and stayed till 2016 lawfully.  You commenced studying English, but were unable to keep up with the fee payments.  You have since that time, worked casually as a farmhand and a handyman and during that time, you have been sending money back to the Vietnam to support your son who apparently suffers from epilepsy.  As pointed out by your counsel, you have been able to stay in Australia for a period of time working, albeit illegally, but without incurring any criminal history.

10It was in early 2019 when you claimed that your boss went on an extended holiday, you were out of work and it was at that point that a man named Andy, at the Springvale market offered you this position.  You then moved from there down to Moe and described what occurred a relatively short time after that.  It was pointed out in the course of the plea that you have a relationship with a woman.  I have already indicated there is a small child involved in that.  You will be deported.  It is not known what the situation will be with her.  She would appear to be Vietnamese, but whether she is able to stay here or not, I have no idea.

11You have no mental health issues, physical health issues or drug and alcohol issues.  Clearly this has been done for profit by you, albeit of very moderate proportions.  The situation is that specific deterrence play a little part in this.  You are going to be deported.  Rehabilitation, reoffending play a little part in it, again because you are going to be deported.  It then becomes a matter of general deterrence.

12It is not a situation of a couple of months for a cultivation simpliciter.  It is a commercial quantity and therefore the sentence must reflect the seriousness of it.  After discussion with counsel and your particular circumstances, and no objection is taken to them, I am simply going to give you a straight sentence, which will take into account the fact that you will be deported and not see, potentially at least, not see that child for an indefinite period of time and you will obviously do the full sentence.

13It will be a sentence which under the normal course of events probably gives rise to a minimum term, but then it is agreed here - in the overall circumstances of this matter, there is no need to do that.  It is clearly understood between the parties, the basis of the sentence.  It is effectively to give an appropriate sentence for the offending that has occurred and for the purpose of general deterrence.

14You have no point of contact with anyone else, as I understand it in Vietnam.  The time that you have spent here in custody is somewhat in isolation, however, you have been in Fulham where there are certainly Vietnamese units in various gaols, so the old concept of no one to talk to does not carry the same weight that it used to a few years ago.  Anyway a comment from me.

15All right, taking all those matters into account, on the charge of cultivate not less than a commercial quantity, you are sentenced to be imprisoned for a period of sixteen months.  There will be no minimum term for the reasons that I have outlined and I direct that - sorry I know you have told me gentlemen.

16MR HAMMILL:  Two hundred and twenty-four days, ‑ ‑ ‑

17HIS HONOUR:  Two hundred and twenty-four days ‑ ‑ ‑

18MR HAMMILL:  ‑ ‑ ‑ not included ‑ ‑ ‑

19HIS HONOUR:  ‑ ‑ ‑ be reckoned as having been served under this sentence.  In these circumstances, but for your plea of guilty, I would have sentenced you to be imprisoned for a period of three years, with a minimum term of two.  No other orders I have to make gentlemen?

20MR HAMMILL:  No, Your Honour.

21HIS HONOUR:  No all right, thank you for that.  I'll just leave the Bench and you can just ‑ ‑ ‑

22MR PETERSON:  Thank you, Your Honour.

23HIS HONOUR:  You can explain that to him. 

‑ ‑ ‑