Director of Public Prosecutions v Vu

[2015] VCC 705

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00548

DIRECTOR OF PUBLIC PROSECUTIONS

v

NGOC VU

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 20 May 2015
DATE OF SENTENCE:	27 May 2015
CASE MAY BE CITED AS:	DPP v Vu
MEDIUM NEUTRAL CITATION:	[2015] VCC 705

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Kapitaniak	Office of Public Prosecutions
For the Accused	Ms P. Smith	Revill & Papa Lawyers

HIS HONOUR:

1Mr Ngoc Vao Vu, you have pleaded guilty to one charge of cultivating narcotic plants in a quantity that was not less than a commercial quantity.  The maximum penalty is 25 years' imprisonment.  You pleaded guilty at the earliest opportunity. 

2The circumstances of your offending are set out in the prosecution opening read by the prosecutor, Exhibit A.  Those facts are admitted.  They need little further comment.  You acted as a "crop sitter" for some 237 plants in various stages of growth.  The weight was 56.42 kilograms.  A man known as "Chang" lent you $31,000 to repay a casino gambling debt.  He gave you a little over one month to repay the loan.  Clearly you had no hope of doing that.  This led to your “crop sitting” for him.  The Crown sensibly conceded on the facts that expression aptly described your role.

3I regard your offence as serious.  A large of number plants were involved.  You did as you were told in terms of attending to them by way of feed and water over several months.  From a small number of "big plants" and from what you said to the police at interview about some dying and others "still not big" you were not the most successful of crop sitters in terms of horticultural skills.  Your abilities as a gardener are not really to the point.  Yours was a menial role that was nonetheless necessary for the crop to flourish. 

4You are 33 years of age and have been in Australia since 2009.  You are presently on a bridging visa.  You have no previous criminal record.  Your personal circumstances have been set out in Exhibit 1.  You are married with a 21 month old son.  Your wife is now an Australian citizen.  I accept your 140 days in custody have not been easy for you as a first time offender with limited English language skills.  Importantly though, the time has still been spent positively by you to upskill in English by doing two courses.  You also have completed a coffee making course. 

5In my opinion your prospects of rehabilitation are real.  I accept what your wife said about it, Exhibit 2.  You are obviously intelligent.  You did a tertiary course in IT in Vietnam and ran a business for some years.  In Perth you enrolled in English courses and tertiary studies to obtain qualifications in this country.  You have demonstrated a willingness to work long hours in what would be menial work for a man with your education at tertiary level.  You have not offended previously, nor is anything pending. 

6In my view you are likely to apply yourself to rehabilitation if given a chance.  If gambling, which led you into the desperate plight that saw you offend, is addressed by an appropriate course then you are an intelligent enough first offender to have prospects of rehabilitating yourself with the help of supervision. 

7Your counsel referred to a number of further matters in mitigation.  You have pleaded guilty at the earliest opportunity.  That not only has the obvious utilitarian benefits, saving time and expense, but I also take it into account as indicating remorse.  This is consistent with the remorse and your reluctance to get involved in the crop sitting from the start that you described in the record of interview.

8You owed some $31,000.  Your very real fears as to what might happen to your wife and child if you did not pay back the money in a little over a month to Chang are also clear from your interview.  You described to police your hiding under a trapdoor for some 17 hours before you were discovered when the house was raided.  That was due as much to this fear of you being assaulted by other people as detection by police.  I also accept this is a case where a crop sitter has gone on and provided helpful information to the police.  This included you providing Chang's real name of "So Moi", his mobile phone number and a physical description of him.  You made full and frank admissions about your offending. 

9The question of the risk of deportation was raised.  Authority is clear the court cannot speculate.  On the state of the evidence, in spite of a change in the language of the Migration Act 1958 (Commonwealth), s.501(3A), the risk of deportation cannot be properly quantified.  Accordingly, I will not take it into account in arriving at the proper sentence. 

10The Crown however has conceded that it makes custody more burdensome for you. In view of you having a wife who is an Australian citizen and an infant son born here, that concession is perfectly appropriate. The defence submitted that the time already served in custody of about four and a half months together with a Community Corrections Order (“CCO”) would be an appropriate disposition. I do not agree. The time served is insufficient to satisfy sentencing principles. The Crown submitted a CCO, even with a term of immediate imprisonment, was not an appropriate option in this case. The Crown did quite properly remind the court of the mandatory language of s.5(4C) of the Sentencing Act 1991 regarding the consideration the court must give to a CCO.

11What a CCO has when combined with a term of imprisonment is to add much more flexibility.  It can be appropriate for serious offending.  Your offending is serious.  A CCO is not only intrinsically punitive but it gives the court a capacity to fashion a sentence which addresses all the underlying causes of the offending.  In particular, it is the combination of the punitive and the rehabilitative purposes of sentencing that make a CCO appropriate in your case.  It offers the court something which no term of imprisonment alone can offer, namely the ability to impose a sentence that promotes simultaneously the best interests of the community and the best interests of the offender and of those who are dependent on him.  Thus the flexibility of a CCO enables all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to imprisonment alone which is directed more towards retribution and deterrence.

12Corrections have assessed you as suitable for a CCO.  The report noted unpaid community work, a treatment and rehabilitation condition focused on gambling addiction and a supervision condition ought to be attached to the statutory terms, Exhibit C.

13As well as the matters personal to you, I must take into account other relevant sentencing considerations.  General and specific deterrence must be given weight in the sentence.  The community cannot and will not tolerate offending which so seriously assists in the growth for ultimate supply of narcotic plants into society.  The message must be clear and consistent that appropriate punishment will result.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  The maximum penalty reflects the seriousness with which the community views your offending.  For this offending, general deterrence is at the forefront of sentencing considerations.  The link between general deterrence and the increasing prevalence of this offence is readily apparent.  I must protect the community from any repetition of this type of offending.  I must seek to deter you and others from such offending. 

14The sentence in your case needs to be tempered though with some mercy.  I have determined that an immediate term of imprisonment together with a CCO is the appropriate disposition.  Can you just stand up, please, Mr Vu?

15You are convicted and sentenced to ten months' imprisonment together with a CCO of two years duration with the attached conditions to commence on your release from prison. I declare 140 days pre-sentence detention, pursuant to s.18 of the Sentencing Act 1991. Pursuant to s.6AAA of the Act, I declare that but for your plea of guilty I would have imposed a sentence of two years' imprisonment with a non-parole period of 18 months.

16I make the two ancillary orders sought which you have consented to, namely (1) a Forensic Sample Order, pursuant to s.464ZF of the Crimes Act, which I will shortly explain to you through the interpreter and (2) a Disposal Order, pursuant to s.77(1) of the Confiscation Act 1997.

17Mr Vu, with respect to the order requiring you to furnish a sample of your saliva from your mouth which you have consented to provide, that when the appropriate police or other official takes that from you, if you do not consent, they can use reasonable force.  So do you understand there will be no force used if you consent to the provision of some saliva as you have agreed to do.

18OFFENDER:  (Through Interpreter)  Yes, Your Honour.

19HIS HONOUR:  Are there any other orders sought?

20MS KAPITANIAK:  Sorry, can Your Honour just confirm the conditions of the community corrections order?

21HIS HONOUR:  Yes.  They will be explained and read out in a moment.

22MS KAPITANIAK:  Thank you, Your Honour.

23HIS HONOUR:  But they are two years of CCO ‑ ‑ ‑

24MS KAPITANIAK:  Yes, Your Honour.

25HIS HONOUR:  ‑ ‑ ‑ and 100 hours of community unpaid work, supervision, treatment and rehabilitation programs including but not limited to a gambling addiction program.

26MS KAPITANIAK:  Thank you, Your Honour.

27HIS HONOUR:  Yes, now listen to what my associate reads out you, Mr Vu, and if you have got any queries about what is being said, let me know. 

28 [The CCO conditions were read to Mr Oz, he agreed to the terms and signed

the order]

29HIS HONOUR:  Take Mr Vu, thank you, Mr Prison Officer.  I thank counsel for their assistance and for the further submissions I had to bring you back for.

30MS KAPITANIAK:  As Your Honour pleases.

31MS SMITH:  We got there in the end, Your Honour.

32HIS HONOUR:  Three o'clock for us.

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