Director of Public Prosecutions v Vo

[2017] VCC 856

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00885
CR 17-00886

DIRECTOR OF PUBLIC PROSECUTIONS

v

HOANG TA VO
HUYNH QUANG LE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2017
DATE OF SENTENCE:	26 June 2017
CASE MAY BE CITED AS:	DPP v Vo
MEDIUM NEUTRAL CITATION:	[2017] VCC 856

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms S. A Flynn
For Accused VO	Mr C. Nikakis
For Accused LE	Mr J. Miller

HIS HONOUR:

1Huynh Le and Hoang Vo, on 24 January 2017, you were arrested driving away from Geelong.  Earlier that day, a search warrant was executed on a house at 37 Truscott Avenue in Whittington.  That house had been converted into a cannabis production facility.  What was found was a total of 156 plants, at various stages of development.  The total weight of the plants was 27.53 kilograms.

2In the end, this is over 1.5 times the commercial quantity by plant numbers and just over the commercial quantity by weight.  Many of the plants were at an early stage of development.  Cultivation methods were sophisticated.  The lighting that had been installed was such as to allow the plants to be grown indoors.

3The power had been bypassed, though that is not attributed to you, but it had been bypassed to allow for higher volumes of electricity to be consumed without detection or cost.  There were humidity control filtration systems.  There were timers for the complex irrigation and nutrient systems.  These are all expensive items indicating that there had been significant resources expended on the basis that ultimately large quantities of cannabis would be cultivated for significant profit.  There were four rooms in the house all dedicated to growing cannabis. 

4What I have said in earlier similar cases is applicable here and the words that I have used were recently adopted by the Court of Appeal in the matter of
R v Nguyen, the most recent cannabis cultivation case dealt with by the Court of Appeal.  There the Court of Appeal noted, that I observed and I make the same observations here about the objective seriousness of the offending.  That given the considerable efforts and expense involved in setting up this indoor horticultural enterprise, the plants in each of the rooms were healthy, although some of them small.  The photographs tendered on the plea reveal it. 

5The yield ultimately of useable drug was likely to be very high.  These were plants at various stages of growth indicating that the harvest would be planned to be regular, providing ongoing cash flow.  This was crop rotation I add.  All the features found in this house are common with suburban houses and those in the country, it had been converted into cannabis production houses.

6This crime is hard to detect and is even harder to establish who are the main players in the cannabis production and distribution chain.  The product grown by the cultivators has serious adverse effects on many users and the community bears a great cost as entrepreneurial cannabis cultivators profit significantly.

7The entrepreneurial cultivators have for some time sought to avoid their own detection by having vulnerable individuals mind the crops.  The crop sitters, as they have become known, ensure that the equipment continues to operate.  Also they provide, it would seem from time to time, a degree of security for the crop.  Most importantly, the keep the entrepreneurs at arm's length from the crop, as it grows to a saleable product.

8When the sitters are arrested, most often with the crop, though in your case, you were further away.  It seems the entrepreneurs often avoid detection.  It was put by counsel for each of you, that each of you was in effect a crop sitter. 

9The Court of Appeal in R v Nguyen, the case I have just mentioned, also dealt with the difficult task facing Sentencing Judges of determining an offender's role.  In doing so, the court referred to the important sentencing decision of the High Court in the matter of Olbrich.  The High Court said this and quoted by the Court of Appeal at paragraph 29 of the decision in R v Nguyen:

"It is understandable that in order to promote consistency in sentencing, appellate courts, when expressing their views about sentences for drug offences, sometimes categorise the role of an offender where it is known in a scheme of importation of distribution.

Similarly, Sentencing Judges who are dealing with several co-offenders, may consider such categorisation relevant in differentiating between individuals.  However, the utility of such an exercise is necessarily limited by the extent by which the material facts are known.  What may be a convenient shorthand method of describing facts of a particular case, should not be elevated to an essential task to be undertaken in every case.  Regardless of whether it is possible or appropriate".

10The court then went onto speak about the difference between importation cases of couriers and principles, which was germane to the Olbrich case.  Ultimately the Court of Appeal in deciding Alberic said the following.

"Characterisation.  Characterising the offender as a courier or a principal here interpolate crop sitter or a principal, must not obscure the assessment of what the offender did".

11The Court of Appeal went on in Nguyen:

"Thus the finding that an offender was not a principal or organiser, may not prevent the conclusion that the offending involved a significant participation in a criminal enterprise".

12On any analysis, this offending is serious.  On the limited material before me as to each of you, it seems you attended the premises over the period of about five or six weeks in December to January 2016 to 2017.  The prosecution conceded that your cultivation was done on behalf of others unknown, or at least unknown to the authorities. 

13You were not the ones that established necessarily all of the infrastructure and you certainly were not taken to be the ones that managed or did the bypass procedures.

14Thus I will not sentence you as the principal cultivators, nonetheless your role in tending to these plants bringing them closer to harvest and ultimately to sale is serious offending.  Thus as was said by the Court of Appeal, again in Nguyen, paragraphs 33 and 35, it said:

"It was also open to the Judge to form the view that the maximum penalty of 25 years imprisonment, stipulated for the cultivation offence, was informed by the need for general deterrence and that the prevalence of the form of the offending involved in this case, gave rise to greater sensitivity in this regard.

In particular, this was so because of the prevalent use of young persons with vulnerable immigration status, to undertake the role of crop sitter or minder.  The consequential buffering from detection of the organisers or principals of the scheme was also correctly identified by the Sentencing Judge, as an additional factor bearing on the importance of general deterrence".

15I will return to the sentencing purposes, including that of general deterrence shortly.  As to your personal circumstances, you Huynh Le are now 26.  You were born in Vietnamese and came to Australia to study.  You had already studied or graduated from the tertiary institution in central Vietnam.

16You arrived in Australia in 2014, first to study English and then if possible, to enter a business management course.  You did not persevere with studies and I was told this was because of financial difficulties that forced you to get what work you could.  Your family in Vietnam were struggling financially.  I was told you wanted to go back to Vietnam, but could not find the money to do so. 

17As part of your work, you had been farm labouring and there you were told of work available in tending to cannabis crops.  You became involved thereafter in this enterprise.  You provided no further information about how you became involved.  What you were to get from it or whether you did get anything from it or not.  You were found with $340 cash when you were arrested, and do not stand in the way of that money being forfeited.

18You, Hoang Vo, are also 26, born in Vietnam and were here in Australia to study English and then a business course.  All of this was to improve your job prospects in Vietnam after you had done some level of study, but had found it difficult to get any work other than in the hospitality industry.

19You too did not continue with studies due to financial constraints.  Your family in Vietnam were unable to help.  You were doing various jobs it seems here in Melbourne.  How you became involved in this criminal enterprise was not made clear.  All of this makes the sentencing task that I have that much more difficult.

20Both of you have done all that you can in prison in obtaining certificates that were tendered on your behalf, and I take them into account.  I take into account in each of your cases that you both pleaded guilty at an early opportunity, and as such, your sentences will be less than they otherwise would have been.

21I take into account that both of you will be isolated from family in prison.  Though it seems to be deported later, is an outcome that is not seen as overly detrimental.  Though in your case, Mr Vo, it is said that you will leave Australia without the future that you thought you might have.  I assume that is the same for you Mr Le.  But I take into account that both of you have little, if any English, and prison will be thereby harder for you.

22I take into account that each of you have no prior criminal history. 

23The sentence that I impose, must as the Court of Appeal in Nguyen said:

"It must emphasise the weight to be given to deterrent to others.  That is everyone in this entrepreneurial cannabis cultivation and production for profit".

24It is also necessary to denounce your crimes.  Both of you are otherwise intelligent young men.  You became involved in a criminal activity in this country involving a drug.  That is a significant problem for many in our community.

25The only appropriate sentence is one of imprisonment.  I see no reason to differentiate between either of you and you will both receive the same sentence. 

26For committing the crime of cultivation of a drug of dependence namely in not less than the commercial quantity, you Mr Le will be sentenced to two years and six months and I fix a minimum non-parole period of fifteen months.

27You, Mr Vo, for committing the crime of cultivation of a drug of dependence in not less than a commercial quantity, you are sentenced to two years and six months.  I fix a minimum non-parole period of fifteen months. 

28Both of you have served 153 days on remand.  This period of time having been reckoned, I declare that the 153 days that you have already served in prison be part of the sentence that I have just imposed.  We will ensure that this declaration is entered into the records of the court, so the authorities are left in no doubt that you have already served 153 days of the sentence I have just imposed.

29Had you pleaded not guilty to these offences and being found guilty of them, I would have imposed a sentence of four years, with a minimum of two years and four months.  I make the orders that are sought in respect of forfeiture of the money.  That is done by the consent of each of you.  In respect of you Mr Le, the sum is $340 and in your case Mr Vo, $2,500. 

30I also make the orders that are sought in respect of disposal of all the equipment related to your cultivation.  Is there anything further required?

31MS FLYNN:  No thank you, Your Honour.

32MR MILLER:  No, Your Honour.

33HIS HONOUR:  Take a seat gentlemen.  Madam Interpreter, thank you for all your assistance.  I'm not sure whether you'll be asked to assist any further, but it's been a long day and I can't do this without your help.  So thank you for that.  Is there anything further?

34MS FLYNN:  No thank you, Your Honour.

35HIS HONOUR:  Thank you.

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