Director of Public Prosecutions v Vu
[2017] VCC 959
•17 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00530
Indictment No. G13503542
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIEN VAN VU |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 July 2017 | |
DATE OF SENTENCE: | 17 July 2017 | |
CASE MAY BE CITED AS: | DPP v Vu | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 959 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Trafficking in a drug of dependence – commercial quantity – burglary – offender broke into a crop house and stole the crop – he was detected by police and arrested a short time afterwards driving away from the premises – quantity of cannabis twice commercial quantity – offender aged 48 years – Australian citizen – relevant prior convictions for significant drug offences – prospects of rehabilitation guarded
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Sentencing Act 1991
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Trotman | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr P Casey | Luat Lawyers |
HIS HONOUR:
1 Kien Van Vu, you have pleaded guilty to one charge of trafficking in a drug of dependence in a commercial quantity[1] and one charge of burglary.[2]
[1]Contrary to s71AA of the Drugs, Poisons and Controlled Substances Act 1981
[2]Contrary to s76(1) of the Crimes Act 1958
2 The maximum penalty for trafficking in a drug of dependence in a quantity not less than a commercial quantity is 25 years’ imprisonment.[3] The maximum penalty for burglary is 10 years’ imprisonment.[4]
[3]Pursuant to s71AA of the Drugs, Poisons and Controlled Substances Act 1981
[4]Pursuant to s76(3) of the Crimes Act 1958
3 The prosecution has filed a summary of prosecution opening dated 5 July 2017, which I am told by your counsel I may treat as a statement of agreed facts.[5]
[5]Exhibit P1
The facts
4 At approximately 5.00 pm on 22 December 2016, you drove along Taylors Road, Kings Park in a Toyota Hilux utility. Police officers on motorcycle noticed the smell of cannabis and identified it as coming from the vehicle being driven by you.
5 You were stopped by police and your vehicle was searched. Six large bags of cannabis were located during the search of your vehicle. The following items were also located during the search: a taser, a jemmy bar, a large screwdriver, a pair of secateurs, three pairs of gardening gloves, a battery powered head lamp, a black jacket and a black balaclava.
6 You were arrested and transported to the Sunshine police station for interview. During the record of interview, you stated the following:
·I stole the cannabis from the house I had been watching.
·I know a few guys who had been working in that house for cultivation and I followed them.
·I saw them gamble at the pub with a lot of money.
·I had been following them for three weeks.
·Only one person was at the house. I banged on the door and he ran away. I then entered the house through the door he exited from.
·Three rooms in the house had a hydroponic setup.
·The plants had been cut already and were on the floor so I just picked them up.
·Some of the plants had already been put into bags. I put un-bagged plants into the bags.
·I took all the bags of cannabis with me.
·I knew the plants were cannabis.
·I was going to try and sell the cannabis.
·I got the taser for my burglary, to protect myself.
·I bought the taser from teenagers at a pub.
·I had the balaclava and gloves to cover my identity.
7 On 30 December 2016, the cannabis seized by police was analysed by a forensic botanist and found to weigh 50.58 kilograms. The botanist states that the leaves and flowering heads constituted approximately 47.4 kilograms of the weight of the plant material examined. At the time of the examination, the plant material was in a slightly wilted and mouldy condition. A commercial quantity of cannabis is 25 kilograms or 100 plants.[6] Accordingly the total weight of cannabis was approximately twice the commercial quantity threshold.
[6]Section 70 and Schedule 11 Part 2 Drugs, Poisons and Controlled Substances Act 1981
Offence seriousness
8 Burglary of a domestic premises is a serious offence as indicated by the maximum penalty of 10 years’ imprisonment. The fact that the premises you burgled were being used by other criminals for the purpose of growing cannabis is not a mitigating circumstance. As Ashley JA observed in R v Schneider:[7]
Even undesirable people may reasonably expect that they will not be subject to invasion of their homes.
[7]R v Schneider [2007] VSCA 103 [19] (Ashley JA)
9 The offence of trafficking in a commercial quantity of cannabis is also a serious criminal offence carrying a maximum penalty of 25 years’ imprisonment.
10 Your offence was particularly grave because you had planned it and there was a significant degree of deliberation. You surveilled this property for three weeks before entering it with intent to steal the cannabis crop you knew was growing inside. You went to the premises armed with a taser, although I note that you are not charged with aggravated burglary and you will not be punished for that offence. You also sought to disguise your identity using a balaclava and gloves.
11 General deterrence and denunciation are accordingly significant sentencing principles.
Personal circumstances
12 You are aged 48 years[8] and at the time of the offending you were 47 years of age.
[8]Date of birth 28 May 1969
13 You were born in Haiphong in North Vietnam and migrated to Australia in 1998. You became an Australian citizen in 2007.
14 You have five siblings aged between 45 and 60 of whom one resides in Australia. Your father died in 2016 aged ninety-four. He had served in the French Army. Your mother, who is still alive, lives in Vietnam.
15 I was told, concerning your health, that you currently suffer from hepatitis B, which is not drug-related. I received in evidence a letter from a gastroenterologist, Dr Thai Quach,[9] confirming that you have chronic hepatitis B with a mild fatty infiltration of the liver on ultrasound. You are medicated using Entecavir. I have no reason to think that your medical condition cannot be properly managed in custody and it was not put on your behalf on the plea that it would cause you custodial hardship greater than that of a prisoner of normal health.
[9]Exhibit D1
16 A subpoena was served on Justice Health and a number of documents were produced to the Court and released to your counsel, Mr Casey. He later advised the Court that, having perused those documents, he had no additional submissions to make on your behalf. However, this morning he has emphasised that your first language is Vietnamese and that your English is not good, and this may lead to some difficulties for you whilst in custody and a degree of social isolation as a result. I take this factor into account in your favour.
17 You completed Year 12 equivalent in Vietnam and were initially employed there selling parts for an automotive company for six years. Prior to that, you were engaged in labouring jobs. You were sent overseas by your family to learn English. As I said earlier, you came to Australia in 1998 and met your wife, who was present in court throughout the plea hearing. You married in 2000. You have three daughters by her, aged 16, 15 and 10. She was employed as a sales assistant and is now engaged in home duties.
18 Unfortunately, your marriage broke down in 2010 as a result of your wife suffering depression, but you still maintain strong contact with both your wife and children. You were in the process of reconciling your differences prior to your arrest and I was advised by your counsel that you have now reconciled, albeit while you are still in custody. Your wife visits you in prison on a weekly basis. She still suffers from depression, but I was advised that you will have family support when you are released from jail.
19 I was told you have always provided for your family. From 1998 to 2003 you were a farm labourer; then from 2003 to 2006 you were employed as a tiler; and from 2006 to 2010 you conducted your own business as a handyman. However, an injury to your back together with liver problems, consequent upon your contracting hepatitis B, has meant that you have not been employed on a full-time basis since 2010.
20 You have a relevant prior criminal history comprising an appearance in this Court on 5 September 2003 when you were convicted of aiding and abetting in the commission of an offence[10] and received a sentence of 6 months’ imprisonment suspended for a period of 18 months. I was provided with a copy of Judge Shelton’s sentencing remarks in relation to that matter.[11] It appears from his Honour’s sentencing reasons that you were present at a house in Melton when police raided the premises and located you with three other offenders harvesting cannabis plants. A search of the premises located 67 cannabis plants, each approximately 90 centimetres tall. At the time of the execution of the warrant, all plants were either lying on the floor stripped in a pile or ready to be stripped in a separate pile. There was also a large container with cannabis plant heads located inside the premises. A number of items of equipment consistent with a sophisticated hydroponic cultivation setup were located inside the premises.
[10]Contrary to s71AA and s80(1) Drugs, Poisons and Controlled Substances Act 1981
[11]Exhibit P3
21 The Crown did not allege that you were involved in the establishment of the cannabis growing operation at the premises or that you made any profits from its operation. The allegation was that you attended at the address on the date of the search to assist in harvesting the cannabis crops. There was no evidence before his Honour that you ever attended the premises before that date. His Honour Judge Shelton accepted on the plea that you became involved in the offending by driving your brother and co‑offender, Dung Vu, to the premises in Melton. His Honour also accepted that you did not know Dang or the other two co-accused. These findings explain the moderate sentence his Honour passed upon you in respect of that offending.
22 However, despite the fact that Mr Jeffrey Cummins, a consulting clinical and forensic psychologist, in a report before his Honour predicted that you were not likely to reoffend, you have reoffended. Your next appearance was some 10 years later in the Sunshine Magistrates’ Court on 25 June 2013 when you were convicted of the following offences: cultivate a narcotic plant, cannabis; possess cannabis; use cannabis; theft; and traffick cannabis. You were convicted and released on a Community Correction Order for a period of 12 months with a number of conditions including a condition that you undergo assessment and treatment for drug abuse or dependency as directed. It seems that you successfully completed that Community Correction Order.
23 I was provided with a summary of the allegations in relation to that matter,[12] which indicates that on or about 1 March 2013 you were at home asleep with your family when unknown offenders attended your premises and forced entry via the front door. The offenders were armed with a firearm and during a scuffle this firearm was discharged. The offenders left your premises and you left the address with your family. Police were contacted by neighbours and attended the premises where they located a hydroponic cannabis set-up. A warrant was applied for and executed and a hydroponic system and drugs was seized. Apparently you surrendered yourself to police on the same day, 1 March 2013, and made full admissions in a record of interview.
[12]Exhibit P4
24 Accordingly, this is the third occasion you have appeared in court charged with offences related to cannabis growing. Consequently, significant weight must be given to specific deterrence and protection of the community. Moreover, I can only take a guarded view of your prospects of rehabilitation.
25 Mr Casey, who appeared on your behalf, submitted that I should take into account in your favour your degree of cooperation with police. You made full admissions in a record of interview, which was suspended so that you could take police to the premises where you had stolen the cannabis plants.
26 Mr Casey submitted that you had good prospects of rehabilitation. As I have previously indicated, your prospects of rehabilitation in my opinion are guarded at best. Mr Casey also said that you had a good work history and family support. He noted that you have never been to jail before and that your time on remand has had a significant impact on you; that you are now reconciled with your wife and have her support; and that you acknowledge that your behaviour on this occasion was “intolerable”. I take all these matters into account in your favour.
27 Mr Trotman, who appeared to prosecute, emphasised the degree of premeditation and planning involved in the commission of your crimes; that you had surveilled the premises for three weeks; and that you were found with a taser in your car. He submitted that there was a high level of moral culpability involved in the burglary and that it was very considered offending. The prosecutor accepted that Charge 2, burglary, was only able to be charged as a result of admissions you made to police, and that this was relevant to any sentence I impose on that charge. In relation to Charge 2, burglary, I very much take that matter into account in your favour.
28 Mr Trotman submitted that your prospects of rehabilitation were “guarded at best” and, as I have already indicated, I accept that characterisation. He noted that you are not a person who has a drug habit and that your motive for committing these crimes was wholly financial gain. He also noted that you had failed to take advantage of rehabilitative dispositions in the past. Mr Trotman submitted that the only appropriate sentencing disposition was a term of imprisonment with a non-parole period. Mr Casey accepted this to be the case.
29 I have given consideration to the principle of parsimony and have concluded that the purposes for which these sentences are imposed cannot be achieved by a sentence that does not involve your confinement in custody. Accordingly, you will be sentenced as follows.
30 On Charge 1, trafficking in a drug of dependence in not less than a commercial quantity, you will be convicted and sentenced to three years’ imprisonment.
31 On Charge 2, burglary, you will be convicted and sentenced to two years’ imprisonment.
32 I order that one year of the sentence imposed on Charge 2 be served cumulatively with the sentence imposed on Charge 1, making a total effective sentence of four years’ imprisonment and I fix a minimum non-parole period of three years’ imprisonment.
33 I declare pursuant to .s18 of the Sentencing Act 1991 that the period you have served in custody in relation to these offences is 206 days which is to be reckoned as a period of imprisonment already served under the sentences I have just imposed and I direct that that declaration be entered in the records of the Court.
34 I declare pursuant to s.6AAA of the Sentencing Act 1991 that but for your plea of guilty, I would have sentenced you to a total effective sentence of five years’ imprisonment with a non-parole period of four years’ imprisonment.
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