Director of Public Prosecutions v Vu
[2013] VCC 1148
•25 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00066
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DIEP THI VU |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2013 | |
DATE OF SENTENCE: | 25 June 2013 | |
CASE MAY BE CITED AS: | DPP v Vu | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1148 | |
REASONS SENTENCE
---
Subject: CRIMINLA LAW
Catchwords: Sentence – Plea of guilty – Cultivate commercial quantity of cannabis – No prior criminal record – Good prospects of rehabilitation
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Rooney | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr I. Polak | Revill & Papa Lawyers |
HER HONOUR:
1 Diep Thi Vu, you have pleaded guilty to one charge of cultivation of a commercial quantity of cannabis which has a maximum penalty of 25 years imprisonment.
2 Your offending was opened as follows:
3 On 16 October 2012 police executed a search warrant at a house in Burnside Heights and found you there. Police also found 440 cannabis plants which were being grown in nine rooms. The plants weighed a total of 62.48 kilograms. The house had been modified to accommodate the cultivation, with some of the plants being grown in a wardrobe and others were growing with the use of a hydroponic set up which included an irrigation system, high powered lighting, shades suspended from the ceiling, transformers and filters. You were arrested and interviewed at St Kilda Rd complex.
4 You said that you spoke to a fellow on the train, whom you had met before on the train, and told him you were looking for work. He offered to help you and said that all you had to do was to sleep at the place overnight. You said that you had been at the house since the 6 October 2012 – that on that date he took you to the house and gave you a key to the place. You said that his name was Viet but you did not have his phone number. You said that you arrived there at 9 pm every night and that during the day people came and worked at the house but you did not have to be concerned about that. You said that you had not discussed payment with this person as yet and that they had placed you on a trial period. During the day you had worked at a grocery store but you said you had quit this job in the last few days. You had received $90 a day cash.
5 You also said that you were an ‘overstayed tourist’ having arrived here on 1 June on a one month visa. You initially said that you did not have family or friends in Australia but later said that you came here to visit your daughter. I understand that you did come here to visit your daughter on a one month Visa. I was told by your Counsel that you initially lied to the police about having no family here as you had not told your daughter about your illegal activity.
6 In discussion with your counsel, Mr Polak, he suggested that you may not have appreciated the illegality of what you were doing. If that were correct, there would be no need to keep what you were doing from your daughter. You were entrusted with minding a commercial crop of cannabis; it defies belief that in these circumstances, you did not appreciate that what you were doing was illegal. Moreover, you were not addicted to any substance yourself but were willing to help others cultivate a drug for commercial purposes. You said that payment had not been discussed but it would seem that you thought it worth your while to give up your $90 per day job in order to concentrate on your illegal occupation.
7 As the maximum penalty reflects, cultivation of a commercial quantity of cannabis is a most serious matter. The lives of so many people have been harmed, if not ruined, by the scourge of drugs, and you were prepared to contribute to this dreadful problem. In your particular case, the number of plants which you cultivated exceeded the threshold for commercial quantity more than 4 times over, and the weight was more than double the commercial quantity threshold.
8 I take into account the limited period of your involvement being 10 days and the fact that you were a crop sitter, not actively involved in attending to the plants. Whilst this role is seen as one which is fairly low in any drug hierarchy, it is nevertheless an important one, without which cannabis cultivations could not endure. The sentence which I impose must reflect the need to justly punish you and to denounce your conduct. Further, I must give significant weight to general deterrence in a bid to warn off others who might be tempted to offend as you have.
9 You gave conflicting accounts in your record of interview as to your reason for being in Australia which showed a preparedness at that stage to be dishonest to an extent. This did not signify much in the way of remorse at that stage and although you have expressed shame and sorrow since, this seems to mainly derive from your own predicament rather than insight into the potential way that your offending might have harmed others. However, you pleaded guilty to the offence for which I now sentence you at an initial directions hearing which was acknowledged by the prosecution as being entered at the first reasonable opportunity. You took this course in circumstances where there was no contested committal hearing and it was at the first directions stage that another charge was withdrawn and the parameters of your involvement was accepted. Therefore you are entitled to a significant discount in the sentence you would otherwise receive as you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of running contested proceedings.
10 Further, you apparently did what you could to assist in the investigation, although this was of a limited nature as you only knew the first name of one of your co-offenders. As I said in discussion it is most curious that in so many cases such as yours a near stranger is entrusted with looking after a valuable cannabis crop for others but no-one seems to know anyone or has any contact details. In any event, I take into account your level of co-operation albeit somewhat limited.
11 I was told that your motivation was to make money to assist your daughter in her studies here and to send home money to help your family in Vietnam. I was also told that you did not have the money to return home, which is what you said in your record of interview. That may be so, but the fact of the matter is that you were prepared to commit a criminal offence for money in circumstances where you already had obtained a job.
12 I take into account that you never received payment for crop sitting and it is certainly not the case that there was any sign of enrichment or lavish lifestyle on your part as a result of this illegal activity.
13 You have and will endure the hardship of being separated from other family members in Vietnam; in particular, your 13 year old son who is being minded by your sickly mother. Your daughter visits you in gaol each week but besides her, you are somewhat isolated, although I do note that a friend of yours was in Court at the plea hearing and I note that she is here today. In light of these matters, time in gaol has been and will be harder for you than for someone less isolated. Although you are learning English, I take it that your lack of fluency in this respect will also make life more isolating for you than for others. I also take into account that upon your release from gaol you will almost certainly be deported and unable to return to Australia for at least 10 years. Should your daughter be allowed to stay here you will not be able to visit her, although she can always visit you.
14 I take into account your background which was referred to by your Counsel on the plea: You are 38 years old, which was your age at the time that you committed the offence. You come from a small village near Hanoi and you are the oldest of four children. You attended school and at 19 you married. You are now separated from your husband. You also have a 13 year old son to whom I have previously referred. You and other family members sacrificed a good deal in order to send your daughter to Australia to study, and she has struggled financially whilst she has been here, although she has found work as a manicurist. She had been away for two years when you arrived here. To your immense feeling of shame all of your family except for your son know about what has happened to you here. When you arrived in Australia you initially stayed with your daughter but moved out when this offer to crop sit was made. I was told that your financial situation is and will be rather bleak when you return home.
15 While in gaol you have earned $31 per week as a seamstress and you also attend an English speaking and cooking course. You have used your earnings in gaol in order to make phone calls to loved ones.
16 You have no prior convictions and you have been in gaol since your arrest, which is a significant period and the first time you have been incarcerated. No doubt this has been a salutary experience for you. In the circumstances of this offending and the matters to which I have just referred I find that your prospects of rehabilitation are very good. Also in all of these circumstances I need only place minimal weight on specific deterrence.
17 Your counsel submitted that you ought be sentenced to a period which is equal to the period you have already served. The prosecution said that a range of between 18 months to two years head sentence with a non-parole period of between 14 and 12 months was appropriate in your case. I was not provided with any authorities as to current sentencing practice but I was provided with the sentencing snapshot which I have considered. I have also considered recent sentences for this matter both in this Court and following appeal, in the Court of Appeal.
18 In the end, I am of the view that the Prosecution submissions are in accordance with current sentencing practice, albeit that this is only one of the matters that I must have regard to. However, the top end of the range accommodates a proportionately more generous parole period than the lower end of it. In all the circumstances of your case, I am of the view that the lower end of the range is appropriate and that your non-parole period should be slightly less than that contended for by the Crown.
19 Please stand up, Ms Vu.
20 Ancillary orders:
21 I make an order for retention of the forensic sample previously obtained. I make the order because of the seriousness of the offence, the order is not opposed and it is in the public interest to make the order.
22 I also make a disposal order in respect of the items seized by police in accordance with the document provided by the prosecution.
23 In relation to Charge 1 you are convicted and sentenced to 18 months' imprisonment and I direct that you serve 10 months imprisonment before becoming eligible for parole.
24 If not for your Plea of Guilty I would have sentenced you to 2 years 3 months imprisonment with a non-parole period of 18 months.
25 I declare you have already served 252 days by way or pre-sentence detention.
26 Just take a seat for the moment please, Ms Vu.
27 Is there anything arising out of those sentencing remarks?
28 COUNSEL: No, Your Honour.
29 HER HONOUR: Very well. Yes, thank you, if you might remove Ms Vu. Thank you. We will now adjourn.
- - -
0
0
0