Director of Public Prosecutions v Vu

[2018] VCC 106

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00811

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN LAM VU

---

JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 February 2018
CASE MAY BE CITED AS:	DPP v Vu
MEDIUM NEUTRAL CITATION:	[2018] VCC 106

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar
For the Accused	Mr A. Pyne

Pages 1 - 10

 

 

HER HONOUR: 

1Van Lam Vu, you have pleaded guilty to one charge of cultivating a commercial quantity of a narcotic drug, namely cannabis, and one charge of theft.

2The circumstances of those charges are as outlined in the summary of prosecution opening tendered on the plea.  Photographs were also tendered on the plea. 

3In short, from September 2015 you were living at premises at 4 Teranga Place, Hallam, having rented those premises from your friend.

4According to the agreed position between you and the prosecution, in later 2016 you permitted those premises to be used for the purpose of growing cannabis.  I was told you travelled to Vietnam and returned to find the hydroponic set up in place in your premises.  You then played a role as a crop-sitter tending the plants as they grew.  The theft relates to the diversion of electricity for the sole purpose of growing that crop. 

5The cultivating charge covers a period of some six weeks between 2 December 2016 and 20 January 2017. 

6The theft charge covers a longer period between 14 November 2016 and 20 January 2017. 

7On 20 January 2017 a warrant was executed and you were arrested at the premises.  A search of the premises revealed a sophisticated and elaborate hydroponic set up throughout the house.  A total of five rooms contained cannabis plants with associated hydroponic equipment, artificial lighting, transformers, exhaust fans and other associated paraphernalia.

8In addition, the kitchen, laundry, living room and bathroom all contained cultivation equipment including multiple bags of soil, many empty pots and various fertilisers and the like.

9Analysis of the cannabis plants seized revealed that there was a total of 111 plants with a weight of 15.89 kilograms.  It is the number of plants which puts  you into the category of having cultivated a commercial quantity of cannabis, namely over 100 plants.

10Theft of the electricity is quantified only by way of the amount of kilowatts.  Those being 32,000 kilowatts.  It is accepted that this is a significant amount in a short period of time. 

11You were arrested and made a "no comment" record of interview. 

12You were remanded in custody on 20 January 2017 and have been so since that date.

13The maximum penalty for cultivating a commercial quantity of cannabis is 25 years' imprisonment and the maximum penalty for theft is 10 years' imprisonment.

14Turning to your personal circumstances, you are now a man of 50 years of age originally from Vietnam. You were born in North Vietnam.  You grew up in Hai Phong.  Your family was poor.  You had seven siblings.  Your father was a cyclo-driver and your mother sold agricultural products at the local market. 

15Your father became very ill when you were approximately ten years old.  He died when you were 15.  During this time your older brothers worked to keep the family afloat.  After your father's death you worked as a labourer with a bricklayer.  You then joined the army at age 18.  This was during the latter part of the Sino-Vietnamese conflict in north-east Vietnam.  You deserted the army one and a half years later. 

16You fled Vietnam as a refugee in 1987 in part out of fear in that you had deserted the army.  You lived in a refugee camp in Hong Kong for two years before moving into the community.  You met your first wife in this camp.  You worked as a welder in the community.  You had two sons, Long and Quan in 1993 and 1994.

17You, your wife and your two infant children left Hong Kong in 1995.  You were accepted to Australia as refugees.  Your family lived for four years in Coffs Harbour and you worked at a bakery mixing flour.  Your wife remained at home with your young children. 

18The family moved to Marrickville in Sydney in 2002.  You worked again as a welder.  Your wife worked in a fish shop.  You divorced in 2002 after your wife met another man.  You then moved to Melbourne.  Your children came to live with you in 2004 in Narre Warren.  You were working in Melbourne as a handyman.  During this period of time you married a woman in Vietnam.  You have a daughter with her.  They still reside in Hai Phong in Vietnam.

19During this time in Melbourne you developed a gambling problem.  You were imprisoned in 2010 before being released to parole in approximately mid-2012.  I will return to those matters in due course.

20After release you worked as a waiter at a restaurant in Springvale.  While you were in gaol, your sons lived with their mother who moved to Melbourne.  They were returned to live with you when you were released and at that stage, they were in high school.  Your son Long completed high school and your other son Quan decided to leave in Year 11.  Both currently work in factories. 

21You are now a grandfather.  Your son Long, his wife and their daughter were present in court and with your other son, are supportive of you.  Neither of your sons has any criminal history.  You and your second wife have separated.  Your daughter of that union is now 14 years of age. She attends high school in Hai Phong.

22You have remarried a third time.  Your wife lives in Vietnam.  You aspire to live with her in Australia when you are released from prison. 

23In determining the appropriate sentence in this matter, principles of general deterrence, denunciation, just punishment and protection of the community must be at the forefront of my considerations.

24In your case, specific deterrence also looms large as you have a prior conviction for trafficking in a commercial quantity of cannabis.

25The circumstances of that prior matter are on all fours with the circumstances of the charges before me with the exception that on that occasion you made admissions to your intention to traffic the cannabis found at your premises. 

26On that occasion your residence was set up in the same fashion as a grow-house and over five times the commercial quantity of cannabis was found.  Obviously more than in this case.  There was a sophisticated hydroponic and lighting arrangement set up including a diversion of electricity. 

27You stated that when you moved into that house the set up was already established.  You admitted obtaining information from the internet about how to look after the plants and where to find customers to buy the end product.  On the basis of those admissions you were charged with and pleaded guilty to trafficking.  Your motivation on that occasion related to gambling debts. 

28In February 2011, in relation to those matters, you were sentenced in this court to a period of four years imprisonment with a non-parole period of two years.  You were released in mid-2012.  You completed that parole period successfully in 2014. 

29Upon your release you lived again in the community with your sons and you worked as a waiter in a restaurant.  I am told you have no longer a gambling problem.        

30Your motivation for involving yourself in the cultivation of cannabis on the present charges was apparently related to bringing your daughter to Australia from Vietnam.  Your ex-wife is supportive of that plan.

31It is not clear what cost is involved in such an enterprise.  Your financial position is not clear.  You apparently travelled to Vietnam at some time in late 2016 when the hydroponic system was set up in the Hallam premises.  You were renting those premises at a rate of $2,000 per month. 

32It is difficult to know whether the claim of financial pressure to bring your daughter to Australia is truthful.  No account was given during the record of interview and no evidence was provided on the plea to establish that cost or your financial difficulty. 

33Tendered on the plea, however, were letters from your sons attesting to your desire to bring your daughter to Australia and of a difficulty related to accommodation which led to her returning to Vietnam and of the resultant stress on you.  They do not mention anything of the financial issues.

34I accept that you love your daughter and do desire for her a future in Australia.  Whatever the financial motivation, it is apparent there is no evidence of a lavish lifestyle in your case.

35Regardless of your account as to your exact motivation, what you do accept is that your cultivation of cannabis on this occasion was motivated by a need for money.

36It was said that you succumbed to temptation for an answer to a financial problem via unlawful means.  That is true and it is true for the second time. 

37You indicated your intention to plead guilty to charges arising from the current circumstances at a very early stage.  The only issue related to whether this crop was of a commercial quantity or not.  Obviously, given the premises were rented by and resided in by you, it might be said you had no alternative but to plead guilty.

38I do however take into account your early plea in your favour as a sign of remorse and acceptance of responsibility and I also take into account the comments made by your sons to the effect that you are truly sorry for what you have done. 

39Given your prior matter you fall to be sentenced as a serious drug offender pursuant to s.6D of the Sentencing Act.  I must consider protection of the community as the primary purpose of sentencing.  Although I have the power to achieve that purpose by imposing a disproportionate sentence, such a course was not urged on me and in my view would not have been appropriate.

40It was conceded on your behalf that a term of imprisonment is the only sentencing option available to me.  Obviously, given your prior matter, it will be longer than had you been a person with an unblemished record.

41In assessing your culpability it is important that I consider the role you played in this enterprise.  The prosecution accept that your role is limited to that of a crop-sitter and that you allowed your premises to be used for the purpose of cultivating the cannabis. 

42Further, that you did not play any part in setting up the equipment in the premises, nor of diverting the electricity.  In that sense, I agree that you were not a principal player in this enterprise but rather a functional operative.

43I accept submissions by your counsel that the uplift considerations enunciated in the case of Nguyen[1] in 2016 do not apply.

[1]Nguyen v The Queen (2016) 311 FLR 289

44It is clear however that you were trusted by other person or persons and were responsible for tending the plants to ensure there was ultimately a product in which to traffic.  That product was potentially significant.  It is perhaps fortunate for you that the growth of that crop was interrupted when it was.

45It is still the case that this is an elaborate scheme.  Almost every room of the house was directly in use or containing materials for the purpose of cultivating a crop of cannabis.  That includes the kitchen, bathroom and laundry as well as the power diversion in your bedroom. 

46You concede that you expected a reward in a sum of some thousands of dollars for playing your role.  I do accept that the actual crop is at the lowest end of commercial quantity being 111 plants.  On weight alone they do not fit the criteria of commercial quantity.

47On the last occasion, you were before this court, your rehabilitation prospects were considered to be good.  At this point, given you have again succumbed to temptation for financial gain, your rehabilitation prospects, in my view, are guarded. 

48Although it is true that you do not have factors such as drug addiction to complicate your rehabilitation, that of course cuts both ways.  It highlights that you participated in this scheme for financial gain at the expense of other persons addicted to the drug.  It is clear that you would have understood the risk of undertaking the role you played and chose to do so for reward regardless.

49In relation to your rehabilitation I do note that you have the motivation of your devoted sons and their families as well as your desire to bring your daughter to Australia and to provide for her and I take those matters into account.

50I do agree with the prosecutor's submissions that although you were apparently motivated by a desire to find a better life for your daughter you were doing so at the expense of other young people in the community by facilitating the trafficking of cannabis.

51Cultivation of cannabis is a prevalent offence.  The movement of cannabis through the community relies on persons such as you being willing to tend the crop as it grows.  As in your case, that is usually a role for financial reward despite a lack of investment in the ultimate product. 

52I must reflect the community's denunciation of this type of enterprise and impose just punishment.   I must also deter others from resorting to participating and cultivating commercial quantities of drugs as an easy fix for financial problems.  General deterrence therefore must be a prominent factor in the sentencing synthesis.  Specific deterrence is also necessary given your history. 

53I have taken into account relevant case law.  In particular, cases listed in the table provided to me by counsel attached to the 2017 decision of the Court of Appeal in Ngoc Nguyen[2]. 

[2]Ngoc Nguyen v The Queen [2017] VSCA 286

54In undertaking the task of sentencing you, taking into account the matters outlined, I propose to sentence you as follows:  if you would stand, Mr Vu please?

55On the charge of cultivate a commercial quantity of cannabis you are sentenced to 34 months imprisonment. 

56On the charge of theft you are sentenced to five months' imprisonment.

57I direct that two months of Charge 2 be served cumulatively on the sentence for Charge 1 making a total effective sentence of 36 months' imprisonment.

58I direct that you serve a minimum term of 22 months' imprisonment before being eligible for parole.  In relation to the pre-sentence detention, can I confirm that number with counsel?

59MS FALLAR:  391 excluding today, Your Honour.

60HER HONOUR:  Thank you.  I declare by way of pre-sentence detention that you have served 391 days in custody.  

61But for your plea of guilty I would have sentenced you to a period of 45 months' imprisonment with a minimum term of 30 months' imprisonment.

62I have been asked to make orders for disposal and forfeiture and I make those in the terms provided to me by the prosecution.

63MS FALLAR:  Just one - unless Your Honour has not finished?

64HER HONOUR:  No, I have. 

65MS FALLAR:  Just one last thing - I seek that the serious drug offender status be in the record.

66HER HONOUR:  Thank you.  Yes, I make that entry into the record.  Any matters, Mr Pyne?

67MR PYNE:  No, Your Honour.  May it please the court?

68MS FALLAR:  Thank you, Your Honour.

69HER HONOUR:  Thank you.  thank you counsel for your assistance.  I will leave the Bench.  Sorry, I will sign the orders now.

70Thank you counsel and thank you Ms Nguyen.

‑ ‑ ‑