Director of Public Prosecutions v Vu

[2018] VCC 260

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02015

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRONG VU

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 February 2018
CASE MAY BE CITED AS:	DPP v Vu
MEDIUM NEUTRAL CITATION:	[2018] VCC 260

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Saville	Office of Public Prosecutions
For the Accused	Mr  A. Furstenberg	Furstenberg Law

HIS HONOUR:

1Trong Tung Vu, you have pleaded guilty to one charge of handling stolen goods, one charge of possess a drug of dependence and one charge of cultivation of a narcotic plant in not less than a large commercial quantity.  Those crimes carry a maximum penalty of 15 years, one year and life, respectively.

2You pleaded guilty at a reasonably early opportunity and must get the benefit of that plea. Remorse might be problematic but you certainly must get the utilitarian benefit of it.

3You are still only 29 years of age and importantly have no prior convictions.

4You have now been in custody for some 270 days.  I accept that upon the expiration of certainly the sentence, if not the minimum term, you will be deported to your country of origin, that being Vietnam.  I sentence on the basis that that is a fact which will weigh upon you during the course of the sentence that you undergo.

5I also take into account that you have no relations in this country and will receive no visits whilst you are in prison.  It can be said that you, despite the numerically large number of your compatriots in custody, will undergo the sentence in an element of isolation.

6Insofar as this matter is concerned it has to be regarded as serious and I will summarise it briefly in a moment.

7It seems clear that for this particular charge there have been very few matters dealt with in the Court of Appeal and it could be said that realistically there is nothing that could be described as a current sentencing practice.  However, I discussed the matter with counsel and the end result seems to be fairly uniform.

8The circumstances were that in February 2017 police were investigating a cannabis cultivation in a factory in McGuire Street, Cheltenham.  As a result of that a gas bottle was discovered which led to police becoming very interested in you.

9You were found with such a gas bottle, and that is the charge of handling stolen goods, which pales in significance compared to what I am about to describe next.

10On 29 May 2017 police executed a search warrant at your residential address.  You shared that address with another person who was a co-accused but who was deported before he was committed for trial, against the wishes of the police.  I take that matter no further but cannot see how that could be of any mitigatory benefit to you.

11In any event, when police searches those premises they found approximately half a kilogram of cannabis, and that's Charge 2; possession of a drug of dependence.  I take it from the Crown opening it is accepted that that was for personal use.  They also found receipts and paperwork in your name and a gas bill as I understand it for a factory in Lascelles Street in Springvale.

12They also found a significant number of items used for the hydroponic cultivation of cannabis including, organic plant fertiliser, industrial floor fans, electric cable and a box containing nine Superbud flowering supplement.

13You were conveyed to the Moorabbin police station to be interviewed.  At approximately 12.25 pm on that same day police attended at the factory.  They identified a strong smell of cannabis and the leasor, for want of a better term, whose garden care business was opposite went across and discovered, apparently, that there was a cannabis crop in the premises.  I will say no more.

14In any event, police then went and searched the premises and found a very significant crop indeed.  You initially denied any knowledge of that factory but ultimately have pleaded guilty and I take all that into account.

15In that factory were a number of rooms that had been setup.  There were
451 kilograms of wet cannabis and 888 plants.  I note, obviously, for these sentencing purposes that were that wet cannabis to have been dried it would not amount to a large commercial quantity, and the plants are not a large commercial quantity either.  That is in reality what has occurred here but that unfortunately for you is your problem.

16Found were hundreds of white foam boxes, dozens of bags of the same organic plant fertiliser that was at your house and the same Superbud flowering supplement.  There was also a gas bottle found, which was identical in terms of where it came from to the one found earlier.

17Police continued to investigate, found a Bunnings receipt where you had bought pest control products.  They found CCTV footage from banks or from a bank which clearly shows you paying the rent on the premises.

18It is difficult to know what your actual role in all this was.  Clearly, as your counsel quite properly concedes, you have to be regarded as more than a crop sitter.  You instructed that you were recruited at the casino by men who offered to pay you a relatively small amount of money to behave in this way.  That is not an uncommon story that is told in these courts and in these courts.  And invariably, I am told, that the name of the principle is not known and very little information is given about.

19I can well understand in these sort of circumstances a reluctance on the part of people in your position to divulge information which may cause you difficulties, even greater than being imprisoned.

20But in any event, I sentence you on the basis that you were active in this cultivation.  You have purchased materials, you paid the rent and I can really take it no further than that.  I certainly do no sentence you as a, "Mr Big", in that sense.

21Your personal history is one of having come to Australia on a student visa.  You are still on 29, you were about 20, as I understand it, when you came here.  You married and that marriage fell apart.  As I said, you will deported.

22There is very little else that could be said.  Your life had effectively fallen apart, you say, and I have no reason to doubt it.  At the time of the offending you were abusing alcohol and cannabis and were gambling.  It was in that scenario that you entered into this criminal enterprise.  And you must have been aware of the size of it, as indeed you have pleaded to, and the potential consequences were you to be apprehended.

23You will be deported so specific deterrence are of no interest me.  Rehabilitation, reoffending, again, they are of no real interest to me.  It is a matter of general deterrence and this is a large commercial quantity, and one does not often see them before these courts.  Large commercial quantities are almost invariably involved in importations and trafficking.

24So what I am simply trying to do in this situation is use my instinctive synthesis to impose an appropriate sentence.  Obviously it has to be custodial and obviously it has to be of real significance.  A crime that carries a penalty of life imprisonment has to be regarded as serious, no matter what level.

25In any event, doing the best I can.  Charge 1 of handling, one month; Charge 2 of possess drug of dependence, one month; Charge 3 of cultivate a large commercial quantity, six years.  I direct that Charges 1 and 2 be concurrent with Charge 3, giving a total effective sentence of six years.

26In all the circumstances, bearing in mind your deportation, bearing in mind your lack of priors and bearing in mind your relative youth I have given a non-parole period of three years.  I direct that 270 days be reckoned as having been served under this sentence.

27Insofar as s.6AAA is concerned I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of nine years with a minimum term of six.

28MR FURSTENBERG:  As Your Honour pleases.

29HIS HONOUR:  Nothing else I need to do?

30MS SAVILLE:  Your Honour, there's just one further matter.

31HIS HONOUR:  Yes.

32MS SAVILLE: A declaration that he's a serious drug offender now, pursuant to s.89DA of the Sentencing Act.

33HIS HONOUR:  You're a serious drug offender with a large commercial quantity, are you?  What's the significance of that?  I'm not saying - I've never been asked to this before, that's all.

34MS SAVILLE:  If he's sentenced for another drug offence in the future there'd be the presumption of cumulation.

35HIS HONOUR:  Well, if he gets deported and does ‑ ‑ ‑

36MS SAVILLE:  It's ‑ ‑ ‑

37HIS HONOUR:  ‑ ‑ ‑ it again there'd be presumption of execution, would be my tip.

38MS SAVILLE:  There's no practical purpose of it in this situation of it but ‑ ‑ ‑

39HIS HONOUR:  No, I'll make it.  If can just tell my associate again what it is that I'm declaring.

40MS SAVILLE: Section 89DA, a serious drug offender.

41HIS HONOUR:  All right.

42ASSOCIATE:  And on Charge 3?

43MS SAVILLE:  On Charge 3, yes.

44HIS HONOUR:  Three.  Yes, thanks, Ms Saville.  All right ‑ ‑ ‑

45MR FURSTENBERG:  Would Your Honour permit Mr Vu just to remain up here so I can have a quick chat with him.

46HIS HONOUR:  Yes, I normally don't do that but yes, rather than having to go to the cells.

47MR FURSTENBERG:  With the interpreter.

48HIS HONOUR:  While you got the interpreter with him, yes.  They would have already had a - I'm assuming there was a forensic sample taken at the interview.  Yes, so that would be an automatic one.

49MS SAVILLE:  That's automatic, yes.

50HIS HONOUR:  Yes, good.  And I'll sign the disposal orders at a later time and just send them to you, Mr Furstenberg, if you ‑ ‑ ‑

51MR FURSTENBERG:  As Your Honour pleases.

52HIS HONOUR:  I don't think there's much point sending them on to him but that's up to you.

53MR FURSTENBERG:  No, send to me.  Thank you, Your Honour.

54HIS HONOUR:  Apparently signs anything, doesn't matter if you can't read it.

55MR FURSTENBERG:  Very good.

56HIS HONOUR:  Yes, all right.  All right, thanks, Ms Saville; thanks, Mr Furstenberg.

57MS SAVILLE:  Thank you, Your Honour.

58MR FURSTENBERG:  Thank you, Your Honour.

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