Director of Public Prosecutions v Vu

[2017] VCC 44

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -16-01990

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUY VU

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	31 January 2017
CASE MAY BE CITED AS:	DPP v Vu
MEDIUM NEUTRAL CITATION:	[2017] VCC 44

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	Mr A. Moore
For the Accused	Mr S. Lindner

HIS HONOUR: 

1Duy Vu, you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis.  That crime carries a maximum penalty of 25 years' imprisonment. 

2You are currently 27 years of age, having been 26 at the time of sentencing.  You have pleaded guilty at the earliest reasonable opportunity and must get the benefit of that.  Your brother asserts that you are remorseful for your conduct and I take that into account, and I also take into account the utilitarian benefit of you plea of guilty.

3You have no prior convictions, either in Australia or in your native Vietnam.  As a still relatively young man, that goes very much in your favour and makes me feel that rehabilitation in your situation may well be achievable.  The prospects of that are really up to yourself. 

4Firstly, pursuant to s.464 of the Crimes Act, I make an order that you provide
a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you. 

5I have been told from the Bar table and accept that you have, this morning, given information to the police, which is believed may be of assistance in the future, so far as they are concerned.  I take that into account. 

6Because of the sentence that I am to impose, I am aware that there will, almost certainly, be a direction that you be deported.  My understanding is that in that situation, the onus effectively would fall upon you to not be deported, you being here on a student visa from Vietnam. 

7I take that into account, in the sense that, despite your hopes of remaining in Australia, you will undergo the sentence that I impose with the knowledge that there is a very real likelihood that those hopes and the ambitions you may have had in this country will be dashed. 

8A summary of the matter is contained, obviously, within the Crown opening.  As I said, you were 26 years of age at the time of the offending.  You are on
a temporary visa, or you are a temporary resident on a visa and your visa runs out or expires in September 2018. 

9In June 2016, police identified a house in Traralgon, as one which was, in all probability, being used as a grow house.  They entered the premises and you unlocked the front door, apparently, and there was a hydroponic cannabis operation.  They placed you under arrest.  The cannabis took up the bulk of the house and police found that the electricity had been diverted, but that is not to be sheeted home to you. 

10The reality of it is that that crop which had been growing for anything up to
13 to 15 weeks, in parts, and I am not going to go through each and every plant and how old it may well have been, consisted of 136 plants, which is 36 plants above the commercial quantity, and 76 kilos, which is three times the commercial weight.  So it is a commercial quantity on either of the definitions and certainly so far as the weight, a significantly larger quantity than the legislation necessarily use as appropriate.

11In any event, your counsel submitted that is at the lower end.  I take into account that it is accepted by the Crown that you were not part of the original set-up and it is accepted by the Crown that you had been there for approximately two months and I note that the earliest plants would appear to have been 13 to
15 weeks.  Those matters do reduce the culpability involved, but it obviously remains a serious crimes, as indicated by the maximum penalty.

12It is serious and in a situation such as yours, general deterrence plays a very significant part.  Specific deterrence is of little interest in this scenario and
I certainly do not add anything to the sentence for that.  As I have said, the prospects of you rehabilitating should be good.  The reality of it is, that there is a strong likelihood of deportation and in that scenario, I think the risk of
re-offending would be very slight indeed, certainly in this country. 

13You came to Australia to study.  You were involved in courses and were having financial difficulty.  I am told that for the purpose of sitting this crop, you were to be paid $3,000 a month and that you were undergoing a course, which is in the University of Central Queensland's Melbourne campus, which was costing approximately $12,000. 

14Part of this deal that you entered into was obviously for free accommodation and I accept that that was your motivation, that is what got you involved. However the fact remains, even in that scenario, that you were doing it for personal gain and someone with your previous education in Vietnam and obvious intelligence, must have been aware of the potential consequences of apprehension. 

15I do not propose to go through your history.  Your father died when you were very young.  You have now been in Australia for a few years and all that may now be something of a waste of time. 

16In any event, having discussed the matter with counsel and being pretty aware of the general going rate, if I can put it that way, for this sort of offending on the charge of cultivate a commercial quantity, sentenced to be imprisoned for
a period of two years and four months. 

17Because of your particular circumstances, I think that is a situation where
a minimum term can be lower than might otherwise have been the case and accordingly, I fix a minimum term of 14 months before you become eligible for parole. 

18So that you are fully aware of the benefit of your plea of guilty, I say that, pursuant to s.6AAA, but for your plea of guilty, you would have been sentenced to be imprisoned for a period of three years, with a minimum term of 21 months. 

19I direct that 198 days be reckoned as having been served under this sentence. 

20Are there any other orders, Gentlemen?

21MR MOORE:  No, Your Honour.

22HIS HONOUR:  That is it?

23MR LINDNER:  No, Your Honour.

24HIS HONOUR:  No, thanks, Mr Moore, thanks Mr Linder.

25Yes, he understands that?  Right?  All right.  Yes, he can go now, thank you.

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