Director of Public Prosecutions v Vu

[2018] VCC 193

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02033

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN HOA VU

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2018
DATE OF SENTENCE:	1 March 2018
CASE MAY BE CITED AS:	DPP v Vu
MEDIUM NEUTRAL CITATION:	[2018] VCC 193

REASONS FOR SENTENCE
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Subject:
Catchwords:  Cultivate a narcotic plant in not less than a commercial quantity and Negligently dealing with proceeds of crime.
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Accused	Mr E. Cinar	Borch and Moore

HER HONOUR: 

1Van Hoa Vu, you have pleaded guilty to cultivating a narcotic plant in not less than a commercial quantity and two charges of negligently dealing with proceeds of crime.  The maximum penalties for these offences are 25 years' and 5 years' imprisonment respectively.

2The full circumstances of your offending are set out in the Crown opening on the plea dated 22 February 2018, Exhibit A.

3On Friday 7 April 2017 police executed a search warrant at an old and disused function centre Archie on the Creek, on Archies Creek Road.  The premises had previously been used as a timber mill.  The premises located next door were derelict apart from an area that was used by you for a bedroom.  You and your co-accused Dien Nguyen were found inside the building by police unloading bags of coco peat and fertiliser from Nguyen's van.  Coco peat is an organic soil commonly used in the cultivation of cannabis crops.  Your mobile phones were also seized.

4During the search police found a functioning cannabis hydroponic setup within the internal structure.  It contained a watering system, by-passed power, high powered lighting suspended from the ceiling, soil, chemicals and cultivating tools.  Artificial walls had been erected to create additional rooms for cannabis cultivation.  An illegal electrical by-pass was also found.

5There were a total of 372 cannabis plants.  These were in 10 rooms with a combined weight of 163.92 kilograms.  A commercial quantity of cannabis is 25 kilograms or 100 plants.

6A search was also conducted in your car and police found a wallet containing various cards and $1,025 in cash.  Additionally police found at your home $25,950 cash in a drawer in your bedroom.  These amounts are subject to Charges 2 and 3.

7During the course of the investigation, principally through recordings of conversations between you and Mr Nguyen it was established that you managed the crop and organised Mr Nguyen to deliver hydroponic supplies and retrieve the cannabis waste for disposal.  The time frame of the cultivation charge was ascertained by recorded conversations between you and Nguyen over the period between 24 August 2016 and 7 April 2017, about seven months.  You had keys in your possession that unlocked the rear gate to the property. 

8You were both arrested and interviewed.  You said that you were employed as a gardener and rubbish removalist by Dien.  Dien was the owner of the function centre and that you had been there many times but only to cut the grass outside.  You said you earned $350 a month for cutting grass and extra for collecting rubbish depending on the amount, but had yet to be paid. 

9You said you had a key to open the gate to get your car on to the property.  You denied the mobile phone was yours or that someone else had put credit on it for you.  You did not want to implicate others in the offending.  You denied organising for Nguyen to attend the function centre but admitted to helping him unload supplies.  In respect of the money located you said you had earnt it working and from the sale of your house in 2011.

10I was informed that Mr Nguyen's matters in relation to this and other offending, of which you are not involved, is listed in this court on 15 June this year.

11As to your personal circumstances you are currently aged 53 and came to Australia from Vietnam in 1988.  You are the father of two adult daughters aged 25 and 23.  You also have a three-year-old daughter in Vietnam who you are currently supporting.  Your elder children are both tertiary educated and one works as a nurse.  You separated from your wife in about 2010.  It was necessary to sell the family home after the break down of your marriage and you lived in rental accommodation in Keysborough.  You have no formal training, limited English language skills and limited employment prospects outside the manufacturing industry. 

12I was informed that in November 2008 you were made redundant by your long term employer, a car-parts manufacturer and had been working for that company for about 20 years.  After you lost your employment you struggled to find permanent work and did handy-man type jobs in your own business.  You found it necessary to borrow funds from your daughter for support.

13It was in these circumstances that you were approached by an unknown person to see if you wanted the role as the crop cultivator and you agreed.  It was submitted you became involved in the offending because of your lack of employment prospects and your precarious financial situation.  You were described as desperate.  You have no prior convictions and are previously of good character.  I was not informed of any issues with drug use, alcohol or your mental health.

14Your elder daughters describe you as a good supportive father who has provided for them and encouraged them to pursue their studies and career.  See Exhibit 1.  They are devastated by your involvement in this offending and continue to support you, attending court today.

15There is a significant utilitarian benefit in the plea, saving the community the cost and inconvenience of a trial and avoiding the need for witnesses to give evidence.  Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice.  I accept your plea is also indicative of remorse.  I was informed that you are keen to re-establish employment and regret your actions.  You do not want further involvement in the criminal justice system.

16Your counsel submitted and I accept that you have good prospects of rehabilitation given your age, lack of prior convictions, previous good work history and support of your daughters. 

17The offence of cultivation of an amount not less than a commercial quantity is a serious offence carrying a maximum penalty of 25 years.  You were more than a crop sitter.  You had a hands on role managing the property for a period of about seven months.  You had six times the qualifying weight and three and a half times the number of qualifying plants, amounting to not less than a commercial quantity.

18The setup was relatively sophisticated with electricity by-pass, internal walls, ten rooms and other features commonly found in such enterprises.  As noted by Justice T Forrest in Doan [2010] VSCA 250, the court has emphasised recently that general deterrence is an important sentencing consideration for this type of offence and the link between general deterrence and the increasing prevalence of this offence is readily apparent.

19I accept that specific deterrence has a limited role to play given your age, lack of prior convictions and your family circumstances. 

20Your counsel conceded that you would be sentenced to a term of imprisonment but that that should be in combination with a community correction order.  You have already served 328 days.  Reliance was placed on the Court of Appeal decision in Boulton that all sentencing purposes could properly be served by the imposition of a properly conditioned CCO of lengthy duration.

21The prosecution submitted I would be falling in to sentencing error if I adopted the course that your counsel proposed.  In the course of the plea I highlighted to your counsel the aggravating features of this offending and the objective seriousness of it.  It was for this reason that I did not propose to have you assessed for such an order.

22The sentence I impose must reflect matters including the gravity of the offence and the offending conduct, general deterrence and just punishment but also have regard to matters personal to you and other mitigating circumstances and other relevant sentencing principles.

23Taking all these matters into account I am of the view that a further term of imprisonment is warranted.  If you could please stand up, Mr Vu.

24In respect of Charge 1, cultivation of cannabis in an amount less than a commercial quantity you are convicted and sentenced to a term of imprisonment of four years.

25In respect of Charge 2, you are convicted and sentenced to a term of imprisonment of one month.

26In respect of Charge 3, you are convicted and sentenced to a term of imprisonment of three months.  Two months of the sentence imposed in respect of Charge 3 is to be cumulative on the sentence imposed in Charge 1, making a total effective sentence of four years two months.

27I set a non-parole period of two years six months. Pursuant to s.6AAA of the Sentencing Act if you had not pleaded guilty I would have imposed a term of imprisonment of six years with a minimum of four.  I declare pre-sentence detention of 328 days.

28Are there any other orders I need to make?

29COUNSEL:  No, Your Honour.

30HER HONOUR:  Thank you.  All right, thank you.  I will just stand down.

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