Director of Public Prosecutions v Vu

[2017] VCC 503

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00067

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUE VU

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 May 2017
CASE MAY BE CITED AS:	DPP v Vu
MEDIUM NEUTRAL CITATION:	[2017] VCC 503

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 L. Andrews
For the Accused	Mr A. Pyne

HER HONOUR:

1Hue Te Vu, you have pleaded guilty before me to one charge of cultivating a commercial quantity of a narcotic plant, namely cannabis L and one charge of theft of electricity.

2The facts underlying your offending are as follows.

3On 24 November 2015 police executed a search warrant at a house at
27 Dardel Drive, Bannockburn, which was a premise purchased by you, in June of that year. 

4Inside they found a sophisticated hydroponic setup, with four rooms dedicated to the growing of a cannabis crop.  The usual paraphernalia, silver foil lining the windows, light shrouds, watering systems, circulation fans and charcoal filters, together with chemical bottles were found in the premises.

5A total of 254 cannabis plants at various stages of maturity were found at the premises with a total weight, together with loose material, of 88.16 kilograms.

6The electricity metre had been interfered with so that it was bypassed.  This caused damage to the main lines of the street, the wires having melted due to excessive amounts of electrical current travelling through the wires and of course as a result of the electrical bypass, no electricity bills were paid.

7Police checks on the ownership of the property revealed that you had paid a deposit on 27 June 2015 and settlement occurred on 22 July 2015.  The premises were in the name of your youngest son, Kyian Mann Nyuem.  However, it appears that you paid all the outgoings on the premises.

8Then on 7 December 2015, police executed a second search warrant.  This time at premises at 10 Bracher Road in Bannockburn, again, these being premises owned by you.

9Again, police discovered a second sophisticated hydroponic setup, with four grown rooms dedicated to cannabis crops.

10A total of 259 cannabis plants were seized from the address, at various stages of development, weighing a total of 66.45 kilograms, and an electrical bypass, meaning that electricity was not paid for, was also located at the address.  Again, police checks revealed that you had paid deposit for this house on
10 September 2015, settlement of the property occurring on 20 October 2015.

11A total of 513 cannabis plants were seized across the two properties, together with bags of leaf and other loose cannabis material, the total weight of which was 153.61 kilograms.

12You were arrested by police and on 28 January 2016, a record of interview was conducted where you denied knowledge of the cannabis crops located at both properties, saying that tenants must have grown them without your knowledge.  There was no record of any tenancies at either house.

13This matter was resolved at committal proceedings on 19 January 2017, when you entered pleas of guilty and no witnesses have had to be cross-examined in this matter.

14Ultimately, the settlement of this matter was based on an agreement that there was no evidence that you were directly involved in the physical setting up or the cultivation of the cannabis plants, and that your plea of guilty was made on the basis that you had in partnership with unnamed others, obtained two properties and provided funds in order that these crops be grown.

15Police also raided the house you lived in at 4 Laurie Street, Sunshine, where items seized included a notebook and papers, with prices for setting up grow houses and the floor dimensions of two Bannockburn properties.

16I know turn to your personal circumstances.

17You are 51 years of age and you have no prior convictions.  In many ways you have had a very difficult life.  You were born in South Vietnam during the war, in which your father fought for the South Vietnamese.

18You are the youngest of seven children and at the age of two, your family moved to Saigon to escape the war that was raging in the area when you were born.

19You told psychologist Warren Simmons, whose report dated 12 April 2017 was tendered on the plea, that your family was safe in Saigon and you did not believe that the war impacted unduly on your family.

20However, after the war, you and your family were placed in one of the economic zones.  This was set up by the new communist regime, whereby those who had been on the South Vietnamese side of the war were relocated and made to live in fairly harsh conditions and it was during that time for about five years that you and your family did suffer and often did not have enough food.

21You did complete the equivalent of Year 12 education in Vietnam but because of the situation in your country and what had transpired after the end of the Vietnam war, you were unable to go on to undertake tertiary education.  You were clearly an intelligent student, winning a national literature award and usually first or second in your class academically.

22The rest of your siblings, to whom you are very close, ultimately were able to leave Vietnam.  You yourself made eight attempts to leave the country, on the last occasion being caught and gaoled for a month.

23Eventually, because your elder siblings had gone, you decided that you needed to remain and support your parents, who were by then elderly.

24You married and began your first business, which was a clothing store that sold bridal clothes and then you went on to develop a construction business that supplied items to builders.  You ran both businesses together for about ten years.

25You met your husband when you were 19, he was a patron of a café that your family owned and then eventually married him, you said, "In part because it seemed the appropriate thing to do, to care for her parents".

26You were married for 16 years but it was a difficult relationship.  Three sons were born of that marriage but your husband was unfaithful and violent towards you.  You had been brought up a strict catholic and felt that you could not divorce him.

27You told Mr Simmons that on one occasion, your former husband beat you with an electrical cable, bent over twice, whilst you were seven months pregnant.  Eventually, you could not cope with the violence and left him and commenced divorce proceedings.

28You remained in Vietnam supporting your parents and supporting your sons, to the extent that your eldest son was able to be educated in America.  Subsequently, they all emigrated to live in Australia and remain here still.

29You remained single until 2007, when you met your second husband on a visit to Australia and were introduced to him by your sister and friends who lived here.  You went out with him for two years according to Dr Simmonds, "Trying to find out what he was like, indicating that he was 20 years older than her and was more serene and calm, and seemed like an ideal husband".  However, it transpired once you had married him that your husband was a significant gambler.

30You arrived in Australia to live here permanently in 2009 and brought with you about $200,000 which you had raised from the sale of your businesses.

31You opened a café in Australia, about six months after your arrival but the business collapsed in 2012, primarily, it would seem, because of funds being drained from it by your husband, who gambled away both the money that you brought with you to Australia and it would seem, any proceeds that you were making from the café.

32In the way that your counsel put it, undaunted, you renovated the business and sold it and then commenced a catering business, which you described as fairly successful to Mr Simmons, saying it brought in an income of between 40 to $50,000 a year, which it must be admitted, is not a very large income at all.

33Your complaints to your husband about what he had done with your money resulted in him threatening to call the Immigration Department and having you deported, which you feared as you only gained citizenship in 2015.

34It appears that you entered this criminal agreement to buy houses, to enable others to grow cannabis crops because of the very severe financial losses you had suffered at the hands of your second husband.

35Your counsel submitted to me that I should find that you are a resourceful and stoic woman, who up to the time of this offending, had worked incredibly hard, had raised her children in very adverse circumstances, and had been an extremely hardworking on productive member of the community.

36I have no difficulty at in accepting that that is the sort of person that you are.  It is quite clear that you have been an incredibly hard worker, that you were determined to give your sons the life that you were denied by the circumstances in Vietnam.  Then on two occasions in your life, all your efforts have been undone by the unfortunate marriages that you made.

37It is very hard not to be sympathetic to what must have been a matter of great sorrow and frustration, that is, the loss of your life savings at the hands of your second husband.

38To some extent I can have and do have sympathy in the financial situation it seems you found yourself in, which drove this decision for you to behave in such uncharacteristic way, that is, to engage in criminal activity of this kind.

39I agree with your counsel's admission that there was an amount of unsophistication attached to your offending.  Once police became aware of the crops, it was pretty easy to trace who bought the house, that is you, and when you were ultimately questioned by police, there was a strong prosecution case to be presented.

40Certainly, the crops setup appears to have been a sophisticated one.  But your own efforts in the way you went providing these houses, was not sophisticated and was one, which as I have already said, I mean, it was easy for police to discover who had provided the houses for these crops.

41Your one excursion into criminal offending has cost you a great deal.  You have been remanded in custody since your arrest in January 20016.  That is, you have remained in gaol for over a year.

42You are a person with little English and I accept that incarceration in a gaol, in a country where English is very much your second language, would have been extremely difficult for you.

43I have checked with this, Mr Pyne, but I am assuming she has lost the houses?

44MR PYNE:  I'm not aware of formal proceedings.

45HER HONOUR:  You would expect they would be.

46MR PYNE:  But, yes.

47MS ANDREWS:  If I can assist, Your Honour.  There are restraining order proceedings in court ‑ ‑ ‑

48HER HONOUR:  Yes.

49MS ANDREWS:  ‑ ‑ ‑ and she will lose the houses.

50HER HONOUR:  Restraining orders have been placed over both properties and an application will be made, pursuant to the Confiscation Act, for confiscation of those houses because they were part of a criminal enterprise.  It can be confidently expected that those houses will both be lost to you.

51In many ways this is a sad end for someone who has struggled and worked so long and so hard to make ends meet, and to carve out a successful life.

52The difficulty is that this can be classified as serious offending because the amount of drugs produced in the two houses was a commercial quantity.  That is a large quantity and the amount of drugs involved in any offending is an integral part of how a court classifies the seriousness of this offending.

53The maximum penalty for this offending is 25 years' imprisonment.

54The maximum penalty for theft is ten years' imprisonment.

55I am departing a little here.  Mr Pyne, what has your client been doing while she is in gaol, while she has been in gaol.  She undertaken any courses or what - she been a billet, what she been up to?

56MR PYNE:  I don't have any instructions about that.

57HER HONOUR:  Yes, well I might ask - Ms Wong, I just want to ask - Ms Vu, what have you been doing while you're in gaol, Ms Vu?

58OFFENDER:  I working in the laundry, Your Honour.

59HER HONOUR:  How long you been doing that for?

60OFFENDER:  Since I been in gaol, since - everyday.

61HER HONOUR:  How many days a week are you working in the laundry?

62OFFENDER:  Five days a week.

63HER HONOUR:  Five days a week.  Have you been able to do any courses or anything like that?

64OFFENDER:  Two days English course, Your Honour.

65HER HONOUR:  Anything else?

66OFFENDER:  No, nothing else.

67HER HONOUR:  Once you have finished your gaol sentence, where do you think you will go and live?

68OFFENDER:  I don't yet, Your Honour, because the house is gone so I have no idea at this stage.

69HER HONOUR:  Are you likely to go and live with one of your sons?

70OFFENDER:  No, I don't think I want - I don't want to bother my daughters-in-law.

71HER HONOUR:  Your son is in court.  What is the possibility of your mother coming to live with one of you?

72UNIDENTIFIED SPEAKER:  Yes, that's a possibility.

73HER HONOUR:  She has worked very hard for you for a very long time, has she not?

74UNIDENTIFIED SPEAKER:  Yes, she has.

75HER HONOUR:  Are you the son that was sent to America?

76UNIDENTIFIED SPEAKER:  Yes, I am.

77HER HONOUR:  Yes, you owe your mother a deal, I would have thought.

78UNIDENTIFIED SPEAKER:  Yes, (indistinct words.)

79HER HONOUR:  Yes, all right.  Thank you very much, very helpful.  Thank you.

80Whilst in gaol you have worked five days a week in the laundry and spent two days a week undertaking English classes.

81I accept that this offending is very much out of character and I accept that it was brought about by, probably, acute disappointment that all your work had essentially been fritted away by a second worthless husband.

82No submissions were made to me as to your prospects for rehabilitation.  But I have no trouble in accepting that gaol would be, not only difficult for you in a practical sense, but a source of great shame to you as well and is a burden that you will carry with you on your release.

83Hopefully, the sons, for whom you have worked so hard, will come to your assistance once you leave gaol and help you start again.  I do not believe it would be unfair to say that it is probably unlikely that a court will see you before it again.  Would you agree with that Ms Vu, that you are unlikely to offend again?

84OFFENDER:  Never again, Your Honour.

85HER HONOUR:  As I began to say earlier, unfortunately there are number of these grow houses around Melbourne.  Usually they are manned by persons in  financial difficulties.  They are offered at a certain amount, to take the risk of being at the house to cultivate the crops.  They are probably at what you would call it, the lowest end of the scale.

86It was submitted to me that I should regard you as a midrange offender.  I accept, as it appears to have been accepted by Crown that there is no evidence that you were the mastermind behind these crops.

87But certainly, in buying these houses in order that these crops could be grown, it has to be said that you were part of the executive arm of these enterprises, if you like and you were reasonably far up the scale, in terms of the order of importance.

88It appears that you have become desperate about money and have risked everything, and effectively have lost everything and will have to start again.

89In sentencing you I take into account your plea of guilty.  I take into account and I accept that you are remorseful for your offending.  I also accept you are a person of good rehabilitative prospects, that you are ordinarily a hardworking and law abiding woman and but for the financial losses you sustained, would probably never had offended in this way.

90I believe you are most unlikely to offend again in the future.

91I also take into account you have no prior criminal history.

92It was conceded that the only way I should deal with you is by way of a sentence of imprisonment, to be immediately served.

93The court does have to send out a message to the community that engaging in this large scale growing of cannabis for profit, and it is dangerous cannabis, it is all grown with vast amounts of chemical and the THC component is extremely high.  It is quite clear that the courts must send out a message to the community that this sort of offending will not be tolerated and those who engage in can expect to receive a stern response from the courts, in the form of a term of imprisonment.

94Again, I want to repeat, Ms Vu, that although your offending was serious, I do regard you as ordinarily a good, hardworking, intelligent woman, who simply gave into temptation and who has the capacity to build her life again.  It is certainly to be hoped once you leave gaol that you can forgive yourself and start again.

95Maybe one way that would help you, I probably should not say this, if you are still a practicing catholic, go to confession, do it and then put it behind you and start again.

96If you carry around this sense of shame for too long, you will ruin your life and there is no need to do that.

97Even though you are receiving a gaol sentence, that is because the law says this must occur.  It does not say that you are a disgraced person for the rest of your days.

98I therefore sentence you as follows, could you stand up please.  Thank you.

99On the Charge of cultivating a commercial quantity of cannabis, I am sentencing you to three years' and nine months' imprisonment.

100On the charge of theft of electricity I am sentencing you to six months' imprisonment.

101I order that three months of that sentence be served cumulatively to the sentence imposed on Charge 1 on the indictment.

102I order that your serve two years before becoming eligible for parole.

103What is the PSD, please?

104MS ANDREWS:  Four-hundred and 61 days.

105HER HONOUR:  I declare that 461 days of this sentence have already been served by way of presentence detention.  That means, MS Vu, that you can apply for parole in January next year.  So you have about eight months to go.

106In sentencing you, I also take into account and accept that you would find a term of imprisonment more difficult than the ordinary prisoner.  That is that limbs six and seven of Verdins have application in this case.

107Does that all make sense to you Ms Vu?  Anything you want to ask me?

108OFFENDER:  No, I understand.  I thank you.

109HER HONOUR:  All right, good luck with Ms Vu.

110Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of five years and order you serve a minimum term of three years.

111Have a seat for the moment, thank you Ms Vu.  Yes.

112MS ANDREWS:  Thank you, Your Honour, and an application for a forensic sample order and disposal of Exhibits.

113HER HONOUR:  The disposal order I'll do.  Look, I just don't - she's got no priors.  It's not said that she was involved in the setup of the - I'm not going to grant the 464ZF.

114MS ANDREWS:  If Your Honour pleases.

115HER HONOUR:  No.

116MR PYNE:  As the court pleases.

117HER HONOUR:  Thank you.  Thank you very much.  There you go, thank you.  Yes, is there anything further?

118MR PYNE:  Nothing further, Your Honour.

119MS ANDREWS:  No, Your Honour.

120HER HONOUR:  Thank counsel for their assistance and counsel are excused.

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