Director of Public Prosecutions v Vo, Thanh
[2013] VCC 373
•26 March 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00116
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANH VO |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Bendigo (Sitting in Melbourne) | |
DATE OF HEARING: | 20 March 2013 | |
DATE OF SENTENCE: | 26 March 2013 | |
CASE MAY BE CITED AS: | DPP v Vo, Thanh | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 373 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence: trafficking cannabis, cultivation of a commercial crop of cannabis, theft of electricity
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. D’Arcy | Office of Public Prosecutions |
| For the Accused | Mr G. Douglas | George Douglas & Assoc |
HER HONOUR:
1 Thanh Vo, you have pleaded guilty to one charge of trafficking in a drug of dependence, being cannabis L. The maximum penalty applicable for that offence is 15 years’ imprisonment. You have also pleaded guilty to cultivating a narcotic plant in a commercial quantity, maximum penalty applicable is 25 years’ imprisonment. You have also pleaded guilty to one charge of theft. The maximum penalty applicable for that offence is 10 years’ imprisonment.
2 These crimes arise out of events which took place between 20 August 2012 and 5 November 2012.
3 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that the facts of this case are very serious, in my opinion.
4 I turn to a summary of your offending.
5 You were born on 20 May 1971 and were 41 years of age at the time of the offending and 41 at time of sentence.
6 At the time of this offending, you were living in a house in Kyabram belonging to your partner’s sister. During your plea, it was submitted you lived with your partner in Kyabram and that the house involving your offending was set up and maintained solely by you.
7 On 5 November 2012, police executed a search warrant under the Drugs, Poisons & Controlled Substances Act 1981 to search the premises at Kyabram.
8 Upon entering the premises police located a total of 233 cannabis plants in various stages of maturity in eight rooms throughout the house. A further 32.1 grams of dried cannabis was located in a plastic bag in the bathroom (Charge 2, cultivating a narcotic plant in a commercial quantity).
9 During the search the police observed the following features of the set-up:
· The house was secure with all curtains drawn and lined with plastic.
· The plants were being grown using hydroponics with a total of 60 lights being used for the larger plants and four lights being used for the smaller ones.
· Exhaust fans were installed to purify the air.
· Fans were used to cool the power cables.;
· Power had been diverted to supply power to the property (Charge 3, theft).
· The power system was set up with timers to activate the heating system.
· A watering system was set-up throughout the house to water the plants.
· All rooms, apart from the bathroom, toilet and a rear rumpus room, were being used for the cultivation of the cannabis.
10 You were arrested on 5 November 2012 and a record of interview was conducted. You made admissions to the charges before me.
11 You disclosed you had sold 10 cannabis plants for $7000 in total in order to buy more lamps (Charge 1, trafficking).
12 You said you were growing the cannabis plants to get money to buy a car. You said you were not a cannabis user and agreed the cannabis was for the sole purpose of sale and not for personal use.
13 The prosecution was unable to quantify the amount of electricity stolen by you, in a monetary value, and nor did the prosecution have an estimate of the value of the cannabis grown, in a monetary value, relevant to Charge 2.
14 Mr Douglas, on your behalf, outlined your background and history. You lived in a rural village in central Vietnam when you were young. You have four brothers and one sister who are alive. Two brothers are deceased. You are the youngest child of the family. Your eldest brother, Nhu Tien Vo, was in court to support you during your plea hearing, as was his son, your nephew, and your current partner.
15 Regarding your background prior to 1975, there was a level of freedom in the village in which you lived. However, as a result of military upheaval, that changed.
16 In 1977, your family, including one brother who is now deceased, were moved to a camp. Your family was required to be re-educated. As part of that, I understand your family was transported to an under-developed rural area within Vietnam, which did not have any infrastructure or machinery. You were involved in manual labour as a result of that relocation, which Mr Douglas described as being akin to slave labour.
17 In 1986 your eldest brother, Nhu Tien Vo, made his escape. This meant that he was separated from his wife and his 4 year old son. He came to Australia in 1987.
18 When Nhu Tien Vo arrived, he lived in various accommodation, including a hotel and hostel, and obtained work where he could, including at an abattoir and doughnut factory. He has never been in trouble with the police, apart from an apparent abalone poaching incident in the past.
19 In 1993, Nhu Tien Vo bought a house in Broadmeadows. In 2005 he sold that home and purchased a Glenroy shop. He lived above those premises and turned the shop into a coin laundrette. His son also had his own coin laundrette business.
20 The 4 year old child that Nhu Tien Vo left in Vietnam arrived in Australia in 2002, and has also not had any trouble with the law.
21 Returning to you specifically. In 1989, when you were 18, you and your twin brother managed to get out of Vietnam and go to the Philippines by boat. You spent two years and eleven months in the Philippines before being successfully sponsored by Nhu Tien Vo. You came to Australia in 1992. Your twin brother also came to Australia and lives in Broadmeadows. I am told he also has not had any involvement with the police.
22 When you arrived in Australia, you also lived in various accommodation, including in Collingwood. In 1995, you went to China and became involved with a young lady whom you married. You were divorced in 2001, and there are no children of that marriage.
23
In Australia you worked in various employment, including at the abattoir, an Asian grocery shop, doing ironing and working as a delivery driver.
Mr Douglas submitted you had a strong work ethic. I accept that.
24 You developed a heavy gambling addiction prior to your move to Kyabram where the offending before me occurred. In relation to your gambling addiction, prior to your move to Kyabram, Mr Douglas said that you borrowed heavily and were in debt as a result. At one stage you approached Crown Casino seeking to be excluded from the casino.
25 Illicit drugs have not been an issue for you and you only consume alcohol in modest quantities.
26 You met a new partner in 2002.
27 You were under financial pressure as a result, as I understand it, of your gambling debts. Mr Douglas was not relying upon your gambling addiction in moderation of your sentence, rather as background. The transcript will reveal our discussion.
28 In 2006, you moved to the farm in Kyabram to live with your partner and undertook odd jobs. You did not have any assets.
29 Approximately three years ago your eldest brother, Nhu Tien Vo, purchased an empty shop in Kyabram and turned that into a $2 shop to provide you with employment. Your nephew also lent you a van to assist in the operation of that shop.
30 Your partner’s sister was living in Melbourne. She decided to buy a property in Kyabram and purchased a house which is where you grew the cannabis, the subject of the charges before me. The house was run down and her intention was that you would renovate the house. You persuaded her to allow you to be in the house rent free for a year and promised you would renovate it for her. In essence, it appears you did not intend to live in the house, rather remained with your partner living at the shop at Kyabram.
31 You instructed Mr Douglas you commenced growing the crop in late July 2012. I note the charge is between August and November and you are to be sentenced in accordance with that. You said you moved into that house in late May.
32 When interviewed by police, you said the idea of the crop was not only yours but involved others as well. However, you did not provide details to the police in relation to any of the other people involved and, it appears, nor did the police ask.
33 You told police you wanted the money from the crop to purchase a car. In addition to that, you said you owed $15,000 and you also wanted to make some money.
34 Police attended at that house on 5 November, following inquiries regarding who owned the house and who was using the house. Police attended at the shop in Kyabram and you were arrested. Following being interviewed you were bailed and, on 23 January 2013 at a committal mention hearing, you indicated your intention to plead guilty to the charges that are before me. This matter was originally listed for April 2013, but at the request of the Registrar at Bendigo, you agreed that this matter could be brought forward and dealt with by me in March 2013.
35 You have pleaded guilty, as I have said, and the timing of that plea is also a relevant sentencing consideration. By your plea of guilty, you have saved the community the time and cost of a trial and witnesses have not been required to give evidence upon your trial. Such is relevant in mitigation of your sentence, both your pleas of guilty and the timing of them, which I accept was from the time of your record of interview with police. I accept you are remorseful for your offending.
36 You do not have any prior court appearances and nor is there anything subsequent alleged. You therefore are a person who comes before the court of previous good character, and such is also relevant in your favour when sentencing.
37 Your brother, Nhu Tien Vo, gave evidence before me confirming the personal circumstances of his family as outlined by Mr Douglas. After your release from a term of imprisonment for this offending, he said you were welcome to live with him and he would also provide you with employment. He described you as a hard worker. Regarding your gambling problem, he said you have now changed. Your gambling was a problem prior to you going to Kyabram. He confirmed you do not take drugs and only consume a small amount of alcohol.
38 I accept that if you keep away from excessive gambling and have gainful employment, your rehabilitation prospects are good. Ultimately, that will be up to you. When determining the appropriate sentence, I must seek to maximise your chances of rehabilitation as they may be.
39 Mr Douglas discussed at length with me matters relevant to sentencing you. In particular, we discussed the Sentencing Snapshots in relation to the offence of cultivating a commercial quantity of narcotic plants. In addition, he provided me with R v Andrew Dean Carroll [2010] VSCA 20, and I have read this.
40 I discussed with Mr Douglas his submission regarding percentages when setting a non-parole period. I also directed and discussed with both Mr Douglas and the prosecutor the decision of R v Tran [2006] VSCA 222 and Kumova v R [2012] VSCA 212. I discussed these authorities with counsel and the transcript will reveal that discussion. Sentencing is not simply a mathematical exercise in determining the appropriate sentence to impose, in particular, the appropriate sentence to impose by way of a non-parole period. When setting an appropriate non-parole period, and head sentence, all relevant matters must be taken into account. A non-parole period also has a penal element. When general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period. A prisoner’s prospects of rehabilitation are always a significant consideration – see R v VZ [1998] 7 VR 693.
41 Mr Douglas provided an analysis of the sentence he urged I impose. Whilst I do not consider it appropriate when sentencing to adopt the figures and percentages suggested, nevertheless the matters he raised are relevant sentencing considerations. These are, and include, that there were 233 plants, which is significantly less than 1,000, the theft of electricity was over 77 days and not a longer period, the trafficking involved 10 plants not more, and this was your first major crop. Further, it is relevant you have pleaded guilty early to these offences, do not have any prior convictions, were fully co-operative with police and your past difficult life.
42 There was, however, an element of planning, Mr Douglas conceded, in relation to this offending. For completeness, I do not regard this as an aggravating feature when sentencing.
43 Mr D’Arcy submitted the prosecution instructions regarding the appropriate sentence for your offending. Mr D’Arcy submitted Mr Douglas had identified every factor possible in mitigation of your sentence, including your plea of guilty at an early stage and full admissions, which was indicative of remorse.
44 Further, Mr D'Arcy said you did not have any prior convictions, had not previously been in custody and you had a difficult background. You had also provided an explanation for your offending. Mr D’Arcy submitted you had good prospects of rehabilitation and that I could impose, if I thought it appropriate, a longer term on parole. Correctly, in my opinion and consistent with the authorities, Mr D’Arcy observed that sentencing was part of the intuitive synthesis and not a case of simple mathematical calculation in relation to head sentence and non-parole period.
45 I also note that, whilst this is not only your first time in custody, you also have difficulties with English and therefore will find your time in custody more difficult than those who can speak English fluently.
46 Mr D’Arcy also observed that the important sentencing considerations in relation to the offences for which you are before me included the need for general and specific deterrence.
47 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, as I find them to be, I must also take into account such matters as deterrence, especially general deterrence, which, as I have stated, is of considerable importance in a case such as this.
48 There is also an element of specific deterrence required when sentencing you, given the time over which your offending occurred, that is, approximately two and a half months. I do, however, note you do not have any prior or subsequent court appearances.
49 I must also consider the question of the need to protect members of the community from you and bear in mind the likelihood of your re-offending.
50 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
51 In sentencing you, I have taken into account the principles of totality and proportionality.
52 You are sentenced as follows.
53 On Charge 1, you are convicted and sentenced to 12 months’ imprisonment.
54 On Charge 2, you are convicted and sentenced to 2 years and 6 months’ imprisonment.
55 On Charge 3, you are convicted and sentenced to 8 months’ imprisonment.
56 Charge 2 is the base sentence, and I direct that 4 months of Charge 1 be served cumulatively upon Charge 2 and 3 months of Charge 3 be served cumulatively upon Charge 2. For clarity, each order in relation to cumulation, is cumulative upon each other and upon the base sentence.
57 That results in a total effective sentence of 3 years and 1 month' imprisonment, and I direct you serve a period of 22 months before you are eligible for parole.
58 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 6 days in custody by way of pre-sentence detention, up to and including yesterday, 25 March 2013, and I direct that this be entered in the records of the court.
59 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these offences following a jury verdict, I would have sentenced you to a term of imprisonment of 5 years and set a non-parole period of 3 years and 6 months.
60 Were there any further orders?
61 MR D'ARCY: The 464 application, Your Honour.
62 HER HONOUR: All right. What was it, retention? No, it must be sample is it?
63 MR D'ARCY: Yes it is, Your Honour.
64 HER HONOUR: So did we get the attitude from you in relation to that?
65 MR DOUGLAS: No, I've got nothing to say about that matter, Your Honour. I say that it's a matter for Your Honour.
66 HER HONOUR: Yes, well I think in the circumstances I will make the order. It will be for a saliva sample and I do it on the basis of the seriousness of this offending. I must advise you, Mr Vo, that the police or authorities may use reasonable force in order to obtain this sample. So if you hand those up, I will sign them.
67 Now, is the PSD right?
68 MR DOUGLAS: Yes, I calculate it seven days, including today, but you've said six days - - -
69 HER HONOUR: No, no it's the day before.
70 MR DOUGLAS: Yes, that's right. Thank you, Your Honour.
71 HER HONOUR: Yes, the day before is the way it's done. So that's fine, we've got that right, and it's a saliva sample. I'll just quickly sign these and then - - -
72 MR DOUGLAS: I just want to be 100 per cent certain, it's a head sentence of 3 years and 1 month?
73 HER HONOUR: Correct.
74 MR DOUGLAS: With a non-parole period of 22 months?
75 HER HONOUR: Correct.
76 MR DOUGLAS: And he's - I'm just saying this so that I won't have to go down to the cells.
77 HER HONOUR: That's fine.
78 MR DOUGLAS: And you've ordered that a forensic sample be taken so somebody will go and - - -
79 HER HONOUR: Yes, saliva.
80 MR DOUGLAS: Saliva.
81 HER HONOUR: What that means is someone in authority will obtain a saliva sample from the inside of his mouth using a stick of some sort, cotton bud or something like that, and the authorities are able to use reasonable force in order to obtain that sample.
82 MR DOUGLAS: Yes, that's right. So his DNA will be on record?
83 HER HONOUR: On a database, that is so.
84 MR DOUGLAS: Thank you.
85 HER HONOUR: All right, then is there anything else in this matter?
86 MR D'ARCY: No, Your Honour.
87 HER HONOUR: Thank you. Can you remove Mr Vo, thank you very much.
88 (PRISONER REMOVED).
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