Director of Public Prosecutions v Vu

[2016] VCC 1953

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-0192

DIRECTOR OF PUBLIC PROSECUTIONS

v

BINH DUC VU

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 December 2016
CASE MAY BE CITED AS:	DPP v Vu
MEDIUM NEUTRAL CITATION:	[2016] VCC 1953

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 S.A. Flynn
For the Accused	Mr L.K. Barker

HIS HONOUR:

1Bin Duc Vu, you are to be sentenced for two charges of cultivating the narcotic plant, cannabis, in a commercial quantity.  The maximum sentence is 25 years imprisonment.

2You pleaded guilty before me on 5 December.  When interviewed by police on 21 June 2016 you made full admissions and gave, in what seems a candid way, significant details  particularly of your involvement in Charge 2.  The committal went by hand-up brief on 28 October after which you entered a plea of guilty.  The matter was quickly  listed  for plea hearing in this court,  less than six months after your arrest. 

3You receive the benefit of your plea of guilty and a high level of co-operation. You have facilitated the interests of justice and I accept that you are remorseful.

4At your plea hearing, also on 5 December, Ms Flynn from the Crown tendered a written prosecution opening, exhibit lists and photographs relating to the cannabis crops. 

5Mr Barker, for you, tendered three letters of character references. One letter is from your mother.  He also tendered your own letter into the court.

6Mr Barker provided an outline of plea submissions. 

7The circumstances of your offending are comprehensively described in the tendered Crown Opening which is Exhibit A.   My own summary may be relatively short.

8You assisted in the cultivation of two hydroponically grown cannabis crops.  On 16 April 2015 police raided a house at Lyndhurst in the east of Melbourne.  Within seven rooms were found a total of 270 plants weighing about 142 kilograms.  They were in different stages of maturity.  It was a typical hydroponic system including electrical bypass. 

9Investigation revealed that you and a female had signed a lease as tenants.  A warrant was issued for your arrest.

10On 16 June 2016 police raided another house in Lara, near Geelong. There was a similar hydroponic crop grown in eight rooms.  There were 178 plants weighing about 97 kilograms. 

11The commercial quantity  thresholds are 100 plants or  25 kilograms.

12Police kept surveillance on the premises and some hours later you drove into the property.  You were arrested and,  on 21 June,  interviewed.  Enquiries on the police database revealed the earlier warrant for your arrest.  Answers in your police interview, and also Mr Barker, explained the circumstances of and leading to your involvement.  That explanation is not challenged.

13You are a 45 year old man who has no criminal history.  You grew up in the rural northeast of Vietnam, one of five children.  Your family was poor and made little more than a subsistence living out of a small farm.  While at school you also worked long hours on the farm.  Despite this, you completed the equivalent of Year 12.  Your father suffered the effects of serving during the Vietnam war.  He died in 2013.     The rest of your family live in the same area in which you grew up. 

14After school you obtained work in construction and continued also to work on the farm.    You married at 24.  You have a daughter and a son.  You worked hard and invested in your children.  A character reference tendered describes a devoted father, your dutiful nature and work ethic. 

15You saved and were able to accompany your daughter, at 17, to Australia in late 2012.  She was to study and it was hoped  would settle here.  She came on a student visa.  You came on a shorter visa which had long expired by the time of the offending.

16In Vietnam your wife had developed a serious gambling problem.  Mr Barker stated that you felt obliged, culturally, to pay her debts.  She began a relationship with another man and left the family in mid-2013.  Your son, aged seven, went to live with your mother.  Your father died of cancer later on in the same year.   Your mother is aged in her 70s.  Your father's medical treatment was expensive.   It was in the context of these growing financial and emotional problems that you became involved in the offending.   

17As to the Lyndhurst crop, Charge 1, you admitted to the police that you rented the premises.  The hydroponic set-up was already in place.  You did the watering, cut and dried the cannabis.  You were getting paid for this and sent money to Vietnam.  You were to play and played no role in selling the cannabis. 

18I should at this point say that the main focus of police questioning was Charge 2.   As to that, the Lara crop, the arrangement was more elaborate.  Mr Barker stated that in early 2015 you were employed in farm work exploited by poor work conditions and pay.  You approached your employer for a loan and then agreed to the following arrangement.  You were loaned  $15,000.  It was  a high interest rate.  Your licence was taken.  It became clear that  default in repayment would mean physical harm.   You were to spend $10,000 for the hydroponic equipment.  As you told police it was arranged that you met a person in a Coles supermarket car park to do so.

19When the crop was established you again watered and cared for the plants.  You rented the premises and went there every day or two days.  At times you slept there.  You told police that you were looking after the plants as your own.  When they were large enough you were cut them but were to play no role in selling them.  That would be left to others.   You told police and I accept that you were to play no role in selling them.   You were paid $700 to $800 per week over the period of about one month.  Again, you sent money to Vietnam. 

20As stated, these explanations were not challenged.    Although the arrangement for the Lara crop entailed you purchasing the equipment,  I accept that you were not involved, or to be involved, in sales or profit.   I accept the proposition the arrangement was largely aimed at distancing more major players from the enterprise by exposing you.  You were akin, or at least similar, to a so-called crop sitter.

21You will be deported upon release from prison.  It was not argued that this has relevance to your sentence.  You should receive a sentence of imprisonment and minimum term reflecting the circumstances of your offending and applicable sentencing purposes. 

22This was self evidently serious offending.  As stated, the maximum sentence is 25 years imprisonment.   The growing of cannabis crops hydroponically and in domestic premises for high profit is seen to be a prevalent crime.  Such crops need a person or persons to be exposed and play a caretaker role.  As to the second crop your role, whilst substantially similar to that, involved important participation in its setting up.  Both crops were much in excess of the commercial quantity threshold.  It is significant that after the police raided Lyndhurst in April 2015 you chose to engage in the Lara cop in June of 2016.  In saying that, I also bear in mind the need to avoid a duplication of punishment.

23The circumstances of such offending make relevant the sentencing purposes and considerations of deterrence, particularly in this case general deterrence, your moral culpability, denunciation of the offending and the need for proportionate punishment. This must be a significant period of imprisonment.  The sentencing purpose of general deterrence is particularly important.

24There are significant mitigating or moderating factors.  They include the following. 

25(1)  Your plea of guilty and remorse.

26(2   Your otherwise good character.  The purpose of specific deterrence is substantially moderated.  I accept that you have good prospects of rehabilitation.

27(3)   Your personal history and circumstances.  That includes consideration of your situation leading to your involvement in each offence. 

28(4)   You are isolated in prison with poor English and little support.  Your daughter remains in Australia.  You are anxious about your family in Vietnam.  Imprisonment will be harder for you than others because of these things. 

29These matters,  all personal to you, go to reduce your sentence. However, the sentencing considerations I have earlier identified  must still speak for one of significant length.   I find this case in which the moderating personal factors may particularly be applied in setting a non-parole period. 

30I have attempted to sentence you consistent with sentencing practice and consistent with the guidance of the Court of Appeal cases to which I have been directed.  They are Kieawkaew  v The Queen and Hong Quan Nguyen v The Queen [2016] VSCA 269 and Nam Son  v The Queen [2016[ VSCA 198.  There are difficulties,  in that as to where you are placed within so-called categories of seriousness and in comparison with those cases.  For example, these crops are individually larger than those in both cases.  However, your role is less sophisticated and  you were not to take part in profit.  I have regard to the two cases named.   However, you must also be sentenced on the basis of the circumstances individual to your case. 

31In making orders for cumulation I seek to apply the principle of totality.  However, balanced against that, is the need for some significant cumulation given the apparent different circumstances and timing of the two offences.  They were over 12 months apart.

32After considering and weighing what I see to be the relevant matters,  I sentence you as follows.  Stand up please.

33On Charge 1, you are sentenced to 18 months imprisonment.

34On Charge 2, you are sentenced to two years imprisonment.

35I direct that nine months of the sentence for Charge 1 be served cumulatively on the sentence for Charge 2.

36That is a total effective sentence of two years and nine months. 

37I set a minimum term before eligibility for parole of 16 months. 

38Under s.18 I declare pre-sentence detention of 180 days already served. 

39Had you not pleaded guilty I would have imposed a sentence of four and a half years with a minimum term of two and a half years. 

40Take a seat.  What is ‑ ‑ ‑

41MS FLYNN:  Just a forfeiture order, Your Honour, in relation to the equipment that was seized.

42MR BARKER:  That's consented to.

43HIS HONOUR:  Yes, thank you. 

44(Orders signed.)

45HIS HONOUR:  (Indistinct) in other words, two; is that ‑ ‑ ‑

46MS FLYNN:  Yes, Your Honour, thank you.

47HIS HONOUR:  That is all?

48MS FLYNN:  It is for Mr Vu.  I'll just briefly Mr Ord, if I might.

49HIS HONOUR:  Mr Vu can be taken into custody. 

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