Director of Public Prosecutions v Vo
[2016] VCC 129
•26 February 2016
.
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00654
CR-15-00653
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHUONG DINH VO GIANG THI DONG |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 & 26 February 2016 | |
DATE OF SENTENCE: | 26 February 2016 | |
CASE MAY BE CITED AS: | DPP v Vo & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 129 | |
REASONS FOR SENTENCE
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Catchwords: Criminal Law- sentencing- cultivating a narcotic plant in a commercial quantity contrary to s.71AA of the Drugs Poisons and Controlled Substances Act 1981.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Shaw (Plea) Ms Hollingworth (Sentence) | John Cain, Solicitor for Public Prosecutions |
| For the Accused VO For the Accused DONG | Mr D Sala Mr A Sharp | Valos Black & Associates Marich Legal |
HER HONOUR:
1 Phuong Dinh Vo, you have pleaded guilty before me to one charge of cultivating a narcotic plant in a commercial quantity, contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981.
2 This is a serious offence which is reflected in the maximum penalty prescribed by law and that is 25 years’ imprisonment.
3 You are a Vietnamese national, you come from Nghê An Province, a province in the north central coastal region of Vietnam. Mr Vo, you are aged 57, and you were formally a fisherman by occupation.
4 I shall proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing and is marked as an exhibit.
5 At approximately 9.05 am on 19 January 2015, police executed a warrant at a factory located in an industrial area of Springvale. This was part of an operation called Re-exposing. There, Mr Vo, you were found in the garage area and arrested.
6 Police located within the factory a sophisticated hydroponic setup for
cannabis L. There were eight rooms set up within the factory to grow cannabis. Juvenile cannabis plants to more advanced plants were found in various rooms that were in different stages of production. In room 8, they found a shredder machine with your co-accused, Ms Dong. She was found seated at the shredder, stripping and processing cannabis leaf. She was arrested.
7 The photographs that were tendered in the plea show a large industrial warehouse with the front roller door opened exposing a façade of empty cardboard boxes that were taped together, that façade blocked the view of the internal rooms and the setup of the cannabis crop.
8 This was a substantial crop, in total, there were 468 cannabis L plants, total weight 66.36 kilograms, they were in various states of growth, from immature to fully mature, and there were some plant material that had been harvested, weighing 53.12 kilograms.
9 The number of plants and the weight of the material exceeds a commercial quantity as defined by law, being in excess of 100 plants and 25 kilograms respectively.
10 Mr Vo, your role was that of a crop sitter, you tidied and swept the factory and moved boxes, and bags, and containers, and you performed those roles on 18 and 19 January 2015.
11 Following your arrest you were interviewed by police, Mr Vo, you have made admissions of a kind. You acknowledged that what you had done was wrong, and that you had been up all night and that you had been made to work.
12 You do not have a prior criminal history.
13 You have been in custody since your arrest on 19 January 2015. You do not speak English and you were assisted by a Vietnamese interpreter at the time of the plea hearing and sentence.
14 In terms of timing of your plea, Mr Vo, you offered to plead on the basis reflected in the indictment on 5 September 2015. Your matter was therefore resolved well prior to the trial that was listed on 9 November 2015.
15 Mr Sala, who appeared on your behalf, emphasised your relatively limited role over the two days as set out in the indictment. He accepted you had commenced working at the location on the day prior to the raids.
16 He told the court about your background: you arrived in Australia in 2011 on a short stay/business visa that you have overstayed, and therefore you are unlawfully in Australia. It is anticipated you will be deported back to Vietnam on completion of your sentence or grant of parole.
17 He told the court since your arrival in 2011, you had principally been employed as a farm hand, working variously as a strawberry picker or vegetable picker in and around various places in regional Victoria, and that you would follow the work, and you have lived in various locations in those areas.
18 Insofar as your involvement, he explained that you were approached by a person whilst you were having a coffee one day. That person suggested you could make money by crop sitting. You accepted the offer because you wanted money.
19 In Vietnam, you lived a traditional life. You are a married person and your wife and three children, who are aged 21, 18 and 14, remain in Vietnam. Whilst living in Australia, you remitted money back to Vietnam to support your family. As a consequence of your arrest and being placed in custody, your wife has been left without any means of support. She is working as a fisherman.
20 Mr Vo, you have had only limited contact with your wife and family whilst you have been in custody. You are being held in custody at Port Phillip Prison and work as a billet.
21 Mr Sala submitted that you did not profit from these activities and that you had not been paid for your work. He conceded your role was that of a crop sitter as defined in the Crown opening. You were aware of what was going on on the property and what was happening there prior to commencing your involvement. You understand that you are to be deported back to Vietnam upon completion of your sentence or release on parole. You have very limited understanding of English.
22 You acknowledge now, the seriousness of your offending, you accept that the quantity of cannabis L involved was significant, and that you were aware of the nature of the production at the factory at the time you took up the offer to crop sit. Mr Sala, on your behalf, submitted that a sentence of imprisonment should be imposed, and that time served was sufficient punishment for your participation in this enterprise.
23 Insofar as the co-accused is concerned, you are a family friend; you know her husband.
24 I shall proceed to sentence you on the basis of your role as set out in the Crown opening. Notwithstanding that you are not responsible for the establishment of the crop, your role was nonetheless an essential element to enable the cannabis production to be undertaken at these premises. The objective features of the offending are serious, having regard to the sophisticated nature of the set-up and the amount of cannabis L that was found at the premises.
25 I accept there is no evidence of any expectation of significant financial reward to you, and I accept that you were not responsible for the crop being set-up and established. It is true that you have no prior criminal history, however, that is not is not unusual in cases of this nature. People like you are targeted by criminal syndicates because of your status.
26 In sentencing you, there is a need to emphasise both general and specific deterrence. The crop was a large one, it is a sophisticated set-up, and people like yourself make it possible for others engaged in serious criminal activity to set up these production houses without the risk of being detected. There is a need to emphasise that if people engage in such activities, that they will be sternly punished by the courts.
27 Special deterrence does still have a role to play. I accept that you now have reflected on your criminality, and you now understand what you did was wrong. You are, in my view, unlikely to reoffend in a like nature in the future. I consider your rehabilitation prospects are good.
28 I have taken into account your personal history and circumstances, and the mitigating features identified, importantly the plea of guilty was entered at a relatively early stage before trial, there is real utility in your plea, you have spared the expense and inconvenience of a trial. You have facilitated justice and your sentence will be discounted accordingly. I accept the plea of guilty as evidence of remorse. I have already mentioned your rehabilitation prospects which I consider are reasonably good. I accept that it has been difficult for you whilst in custody, given your linguistic and cultural differences, and you have been isolated from you family in Vietnam.
29 I have covered all the mitigating factors. The sentence to be imposed in respect to the one charge of cultivating a commercial quantity of narcotic plant, is that you will be convicted and sentenced to two years' and nine months' imprisonment, and I direct that you serve one year and three months before being eligible for parole.
30 I declare that you have already served 403 days of the sentence I have imposed and I direct that that be entered into the records of the court.
31 Now, I understand there were applications for ancillary orders, were there not?
32 Ancillary orders were consented to, so I will make the Forfeiture Order sought under s.33 of the Confiscation Act 1997, the Disposal Order under s.78 of the Confiscation Act, and the Forensic Sample Order under s.464ZF(2) of the Crimes Act 1952.
33 The final order is a s.6AAA declaration, but for your plea of guilty I would have imposed a term of imprisonment of three and a half years to serve two years and three months.
34 Now, in terms of the forensic sample order, I have made that order because it is consented to; I believe it is in the public interest, having regard to the seriousness of the offending. I have just got to tell, and I would ask the interpreter to please explain to Mr Vo, that he will be required to give a forensic sample. He will be handed a little cotton bud to put in his mouth so that DNA material can be obtained. In the event that he does not cooperate then reasonable force can be used to do that procedure. So does he understand that? Yes, good, thank you Madam Interpreter for your assistance, I think we have covered everything.
35 MR SALA: We have, Your Honour, I was going to ask the indulgence of the court, my client does not speak any English at all, he is legally aided, would Your Honour be so kind as to leave him on the Bench? Leave him in the dock.
36 HER HONOUR: Leave him on the Bench? No.
37 MR SALA: No, might be too much of an indulgence.
38 HER HONOUR: You would like to have an opportunity to speak with him with the interpreter?
39 MR SALA: Yes, without him being on the Bench, Your Honour.
40 HER HONOUR: Without me being present, that is fine. Mr Sala, I appreciate that.
41 MR SALA: Thank you, Your Honour, I appreciate it.
42 HER HONOUR: I think it is really important in cases such as this that he be given the opportunity of having the sentence properly explained to him, and the other conditions.
43 MR SALA: It is much appreciated thank you.
HER HONOUR: Thank you.- - -
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