Director of Public Prosecutions v Vu
[2012] VCC 1912
•27 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01616
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| DUC VINH VU |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2012 | |
DATE OF SENTENCE: | 27 November 2012 | |
CASE MAY BE CITED AS: | DPP v Vu | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1912 | |
REASONS FOR SENTENCE
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Subject: CRIMINLA LAW
Catchwords: Sentence – Cultivate commercial quantity cannabis – Theft electricity
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr. D. Plummer Ms K. Linzner | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr T. Alexander | Mirko Bagaric Lawyers |
HER HONOUR:
1 Duc Vinh Vu, you have pleaded guilty to one charge of cultivating a commercial crop of cannabis between 15 February 2012 and 20 June 2012 and you have pleaded guilty to theft of electricity between those dates.
2 Cultivation of a commercial quantity of cannabis carries a maximum penalty of 25 years’ imprisonment. Theft has a maximum penalty of 10 years’ imprisonment. As you can see, Parliament regards both of these offences as most serious – in particular, the offence of cultivating a commercial quantity of cannabis.
3 Your offending was opened by Mr Plummer for the Crown as follows.
Circumstances of Offending
(1)In December 2011, Elizabeth Nguyen purchased a property at 15 Manuka Grove, Wyndham Vale. It is a three bedroom brick house. Settlement occurred in January 2012. The electricity and gas were connected at the date of settlement. Ms Nguyen had them disconnected. In January 2012, she advertised the property for rental.[1]
[1]Statement of Elizabeth Nguyen, pp33−34
(2)A few weeks after advertising the property you told Ms Nguyen that you wanted to lease the property. I was told that you are Ms Nguyen’s partner’s brother. Nguyen rented the property to you for $1200 per month. You signed a rental contract. In mid-February 2012 Nguyen provided the keys to you. You paid the first month’s rent to Nguyen in cash.[2]
[2]Statement of Elizabeth Nguyen, p33
(3)In March you paid the second month’s rent to Nguyen. You asked her if your friend, Loc Le, could take over the lease. Nguyen said that this was OK. She prepared a Residential Tenancy Agreement. A couple of weeks later you brought Loc Le to meet Nguyen. On 10 March 2012 Loc Le signed the Residential Tenancy Agreement. Loc Le said that he would either drop the rent off at Nguyen’s house or give it to you to give to her. Nguyen continued to receive rent until June 2012. The last payment was made by Loc Le.[3]
[3]Statement of Elizabeth Nguyen, p34
(4)On 20 June 2012 police attended at 15 Manuka Grove, Wyndham Vale, to execute a search warrant. Police knocked several times on the front door. You said the front door would not open but you would open the garage door. I was told in the course of the plea that this was in fact the case as part of the cannabis crop set-up was against the door. You then opened the garage door. You were wearing a latex glove. Police then arrested you. Loc Le was arrested inside the house. You were taken into the lounge room. You removed the latex glove and dropped it to the floor. The lounge room contained a television, items of clothing on the floor and a mattress standing against the wall. Your wallet was found on a kitchen bench. Loc Le’s wallet was located on the floor in the lounge room. Phones belonging to you and Loc Le were found in the kitchen.[4]
[4]Statements of Sgt. Ricky Millar, pp41/42, S/C Sean Fraser p51
(5)On 21 June 2012 police returned to the premises. The following items were found and seized:
In the walk in robe off the lounge room there was one power board and three electrical transformers.
In a room described as Room 1 police found twelve cannabis plants, seven light shrouds, seven 600 watt light globes, one charcoal filter and two water pumps.
In Room 2 seventeen cannabis plants, seven light shrouds, six 600 watt light globes, one charcoal filter and one water pump.
In Room 3, nine cannabis plants, seven light shrouds, seven light globes, one charcoal filter and one water pump.
In Room 4 cannabis cuttings, fifteen harvested cannabis plants, five cannabis plants, one shredder, one bag of shredded cannabis in a bag, ten light shrouds, ten 600 watt globes, one charcoal filter and one Samsung mobile phone.
In Room 5 fifteen harvested cannabis plants, nine light shrouds, nine 600 watt globes, one charcoal filter and four water pumps.
In Room 6 eighty-three cannabis plants, three light shrouds, three 600 watt light globes, one charcoal filter and two water pumps.
In the kitchen there were cannabis cuttings and one set of digital scales.
In a hallway cupboard there were forty electrical transformers and one electrical power board.[5]
[5] Statement of Sgt. Ricky Millar pp45-47
(6)On 21 June 2012 a botanist examined the plants and plant material, which was found to be cannabis L. The following quantities were found: 12 plants weighing 24.14 kilograms; 17 plants weighing 19.04 kilograms; nine plants weighing 18.62 kilograms; five plants weighing 7.24 kilograms; 15 harvested plants weighing 1.56 kilograms; cannabis L weighing 3.81 kilograms; cannabis L weighing 3.19 kilograms; cannabis L weighing 5.66 kilograms; 15 harvested plants weighing 1.72 kilograms; 83 plants weighing 11.88 kilograms; cannabis L weighing 2.52 kilograms; and cannabis L weighing 26.98 kilograms. There were 156 cannabis L plants. The total weight of the cannabis L was 126.36 kilograms.[6] A commercial quantity of cannabis L is 25 kilograms or 100 plants.[7]
[6]Statement of Susan Fiddian pp27/28
[7]Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 2, Column 2
(7)A licensed electrical inspector attended the premises. He identified an illegal splice into the unmetered section of the consumer mains. The illegal connection was located in the wall cavity near the meter box. Equipment was connected to the illegal bypass. The electricity used by this equipment was not supplied or recorded through Powercor’s metering equipment. The total unmetered usage based upon the equipment operating for between 12 to 18 hours per day between 15 February 2012 and 21 June 2012 is 42,010 kilowatt-hours. The value of the electricity used through the illegal bypass is $11,475.66.[8]
[8]Statements of Geoff Barringer p29, Miles Tobias p31, Ben Mack p32
Arrest and Record of Interview
(8)On 20 June 2012 you were arrested. You were taken to the Altona North Police Station. A record of interview was conducted. You answered no comment to questions regarding the offending. You were then charged and remanded in custody.
Timing of the Plea
(9)You pleaded guilty to the charges on the indictment at a committal mention on 30 August 2012.
Pre-sentence Detention
(11)As I have said, you were arrested and remanded in custody on 20 June 2012 and you remained in custody from that time.
Co-offender
(13)On 18 September 2012 at a committal case conference, Luc Duc Le, your co-offender, pleaded guilty to cultivation of cannabis L in a commercial quantity and trafficking cannabis L and not guilty to theft. An initial directions hearing is listed in the Melbourne County Court on 30 November 2012.
4 I was told by your counsel that your role was limited to finding premises for the cannabis crop at the behest of a man to whom you owed money and that you played a role of being caretaker over a four month period. He said that you attended the premises twice a week in order to perform this role which, as I understand it, involved taking care of the plants. Whilst the Crown are not in a position to prove that you actually set up the crop itself, you obtained a lease in respect of the premises in which the crop was grown. Although I suspect that you knew very well why it was that the premises were to be rented and used from the outset, I will put this to one side and sentence you on the basis that, once you found the premises to rent (fortuitously purchased by a person whom you knew, who took title the month before), you subsequently learnt that the property was to be used for the growing of a cannabis crop. Thereafter, at the behest of a person to whom you owed $20,000, you performed the role of caretaker in the way described by your counsel. Even on this basis, your role was a fairly significant one in the running of the crop house where you helped cultivate a substantial quantity of cannabis – more than five times the threshold for a commercial quantity and one and a half times the threshold in terms of number of plants. In assessing the seriousness of the offence of commercial cultivation, I take into account the fairly sophisticated nature of the set-up to which you were a party, and the weights and numbers of plants which were found.
5 Although it may have been that other people were involved in this enterprise, and were perhaps involved at a deeper level than you, I regard your involvement and role as significant and, in all the circumstances your offending must be denounced and appropriately punished.
6 I find that your moral culpability is high, notwithstanding that you perceived a good deal of financial pressure at the time that you entered into this enterprise. In this regard, I was told that you owed $20,000 to a male who had lent you this sum which you had gambled away. Although you could have accessed such monies from the equity in your home, you were apparently too afraid to tell your partner as to the debt you had incurred, preferring to become involved in criminal offending. It would appear that you were able to engage in such offending at a time when you had elected to take leave without pay and, as Mr Plummer observed, you were also apparently able to maintain the mortgage in respect of your own house. Again, I am rather suspicious about your explanation for the offending, but I put my suspicions to one side in sentencing you. I sentence you on the basis that, having incurred debt to the extent of $20,000, you embarked on the enterprise in order to repay the person from whom you borrowed. According to you, it was this person’s idea to have you find a house to rent.
7 In sentencing you I have regard to the fact that you have broken the law in the past, although the prior matters alleged are not in respect of drug matters. There is a prior matter in 1999, when you were sixteen years old, for traffic and possess heroin, but I put this to one side as it was not formally alleged against you, being more than ten years old and it having been heard in the Children’s Court. The other matters concern Magistrates’ Court appearances in respect of handling or retaining stolen goods, failing to answer bail, unlawful assault and some driving matters. These show that you have had some disregard for the law in the past, albeit that the prior matters are not in the nature of your present offending. I also take into account the various dates upon which you were dealt with for these matters, the last two Court appearances being in 2008 and 2012.
8 Mr Vu, unlike so many people who are convicted of this offence, you were in a special position to know better. This is because you engaged in drug use when in secondary school, which you continued until you were about 19 years old. You then engaged in a drug treatment program and stopped taking drugs. As a result of the treatment you received, you decided to train as a youth worker so you could help other people with similar difficulties. You completed a TAFE Certificate IV in Community Services and then a Diploma in Alcohol and Drug Counselling. You quickly moved into paid work with the Community Drug Treatment Agency, your most recent position being with the Youth Substance Abuse Service (YSAS). You are of at least average intelligence, according to Mr Newton, and notwithstanding that, pressures in your own life led you to return to cannabis use in your mid twenties. You continued to use cannabis whilst counselling others in respect of their drug taking. You, as a previously reformed drug taker and educated drug counsellor, were better placed than many to know the dreadful impact that drugs have on people, especially upon our youth. Notwithstanding this, you were prepared to become involved in a venture which had the potential to harm the very people whom you professed you wanted to help. When you were first interviewed by Mr Newton, which was not so long ago, you failed to have any proper insight into your offending. Apparently, you have now gained such an insight which you have subsequently reported to Mr Newton. It seems this was assisted by you seeing how dreadfully drugs had impacted upon fellow prisoners during your period on remand and you have felt shame for what you have involved yourself in. It is good that you now apparently have such insight, but it defies belief that you could not have developed this sooner in view of your past experiences. In any event, you are now apparently open to acknowledging that you were involved in a trade which is responsible for ruining many people’s lives – lives which you were apparently concerned to help save before becoming involved in the offending.
9 I take into account your personal background. You have just turned thirty. You have a partner, Ms Woodland, and a child of that relationship, Vivienne, who is nearly 12 months old. Ms Woodland, her adoptive father, your mother, brother and son-in-law, were all in Court to provide support at the plea hearing and you have them to look to upon your release from gaol. I have also read Ms Woodland's lengthy character reference in support of you and the other character material submitted on your behalf.
10 I was told that you and your mother arrived in Australia when you were only seven years old. Your father had arrived ahead of both of you. Shortly after you arrived your parents separated and thereafter you developed a very close relationship with your mother. You have a close bond with her which endures to this day.
11 As I previously said, you attended school until Year 10, when you developed some problems and commenced smoking and injecting heroin. Although you had a good deal of intelligence, your drug use led to you leaving your education at that stage. You continued using heroin and you also used cannabis until you were 19 years old. When 19 or 20, as I have previously said, you were able to abstain from drug use, engaging in a treatment program, then further education, which resulted in you ultimately becoming a counsellor.
12 You met Sonia Woodland, your current partner, about six years ago and you have lived together for five years. You told Mr Newton that your relationship has been a turbulent and challenging one, notwithstanding that you expressed a strong commitment to Ms Woodland. Difficulties arose because your mother did not accept Ms Woodland as she was not of Vietnamese extraction. This caused you to feel “stuck in the middle” due to your loyalty to your mother and commitment to Ms Woodland. The tensions apparently led to frequent conflict, such issues coming to a head when you planned to marry and when Ms Woodland unexpectedly became pregnant shortly before the proposed wedding date. The conflict between you and your partner apparently reached the point where you decided to call off the wedding and separate. You moved back into your mother’s house, with Ms Woodland remaining in the house which you had purchased with her. You reported to Mr Newton that you and your partner then reconciled in November 2011, with your daughter being born in December 2011. You remained on paternity leave until February 2012 and then took leave without pay, apparently being involved in the cannabis cultivation at that time. You remained with your partner until your arrest in June 2012. I was told by Mr Alexander that your arrest came as a shock to Ms Woodland and other family members – the first they heard of it was when you were remanded in custody.
13 Mr Alexander told me that the difficulties which you encountered because of the tension between your partner and your mother resulted in you returning to cannabis use in about 2007. This conflicts with what you told Mr Newton in that you said to him that you returned to cannabis use because of the heavy work stress that you were under. In any event, it would appear that your cannabis use escalated after you separated from Ms Woodland and remained intense until your arrest. According to your report to Mr Newton, at this time you were smoking about a quarter of an ounce each week. You told Mr Newton that you financed the drug use from your pay. It is unclear as to whether you were unable to do this after you incurred a $20,000 debt, at a time when you had taken leave without pay to work at the crop house.
14 Putting the somewhat fragmented picture together, it appears that after your reconciliation with Ms Woodland, or at about the time of it, you borrowed the $20,000 for gambling. You were able to cease gambling once you reconciled with your partner but, unbeknownst to her, you had a debt of $20,000. It was apparently in this setting that you agreed to work at the crop house to work off the debt.
15 Against the background of cannabis abuse and the gambling debt, as well as tension within the family, you embarked upon the offending.
16 I was told that you took unpaid paternity leave in order to spend more time with your child. As against this, it was during the period of February to 20 June 2012 that you were attending the crop house twice a week on a weekly basis. You kept this activity a secret from your partner and family, such that your partner became suspicious that you were having an affair with another woman due to your repeated absences from the house. On the other hand, when you were at home, Ms Woodland describes you as being a model father, assisting with the daily tasks associated with having a new baby.
17 I was told that you were initially unaware as to the seriousness of your offending. Again, this beggars belief in light of your past experiences. However, now you are in little doubt as to how serious your conduct has been.
18 I was told that, having been asked to rent the house on behalf of the person to whom you owed the $20,000, you were then introduced to Mr Loc, who took over the lease, and your involvement escalated from there. I make it clear that I sentence you on the basis that you were not involved in setting up the crop itself, although you did find a house to grow it in and paid the first two instalments of rent on behalf of the male who lent you $20,000. You did not pay this rent from your own pocket, I was told, but apparently this was given to you by that person. I do not sentence you on the basis that you were aware from the outset as to the use the rented house was to be put to.
19 You pleaded guilty to the theft of electricity as well, a not insignificant amount, and you plead guilty on the basis that you knew what was happening with this and, in that sense, were a party to the theft, although it is not put that you set up the bypass yourself or arranged for this to happen.
20 I take into account your early plea of guilty. You are entitled to a significant discount on 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 associated with contested proceedings. I was told that you are remorseful for what you have done and an extract was read to me from a handwritten letter which you had provided to your counsel. I was told that you feel shame and embarrassment for your actions and the impact this has had on your fine family and your fine partner. You also have some insight, which you are able to express, in relation to the ways in which drugs ruin other people’s lives. You are not prepared to assist police by identifying the person who asked you to rent the property on his behalf, but I accept that this is due to fear of repercussions it may have for you and your family. I do not count this aspect against you, although your remorse would have been even more profound had you been prepared to cooperate in this way. However, in all the circumstances, I am prepared to find that you do have some genuine remorse for the offences which you have committed and some appropriate insight now in relation to the seriousness of your offending and how it can affect other people. I take this into account when assessing your prospects of rehabilitation.
21 I also take into account that this is your first period in gaol, or has been your first period in gaol, and that you are finding it a most difficult experience. This is so, especially because you are missing your child, your partner and your family. You reported to Mr Newton mild symptoms of depression and anxiety, as well as an abiding sense of sadness, shame and some pessimism. In his updated report of 19 November 2012, these symptoms seemed to endure but were not such that you suffer from any mood disorder, anxiety disorder or adjustment disorder. I take these into account in a general sense.
22 You are keeping yourself busy whilst in gaol, working seven days a week in the kitchen, and you have engaged in a number of programs to assist you with coping whilst in prison. Moreover, you have availed yourself of counselling sessions from the prison psychologist, which has greatly assisted you in developing insight. Mr Newton attributes your improved insight to these counselling sessions. Further, you have completed a Certificate in Hospitality with the Kangan Institute.
23 In sentencing you, I must give substantial weight to the principle of general deterrence – that is, the need to impose a sentence which serves to deter others in the community from offending as you have. Further, I need to place some weight upon specific deterrence, as you have broken the law before and have experienced difficulties with gambling and substance abuse in the recent past. Although both of these problems appear to be under control at present, there is some risk of you returning to them. However, in all of the circumstances, I do not place a great deal of weight on specific deterrence, especially in view of the fact that you have found your time on remand a most difficult one and have a limited criminal history, with good supports in the community, although these supports were available to you when you committed the offences, but I also take into account the character references submitted on your behalf - all referees speak most highly of you. All things considered, I regard your prospects of rehabilitation as being quite good.
24 The Crown submitted that a sentencing range of between two and three years with a non-parole period of between 12 and 18 months was appropriate in your case. Your counsel said that this was not an ‘outrageous’ position for the Crown to take but that, in view of the broader discretion which I have, it would be open to me to impose a sentence which enabled you to be released after time already served, being five months at this stage of the plea hearing. I placed your counsel on notice that I did not regard this period to be sufficient, especially in light of the seriousness of the offending, notwithstanding the mitigating matters put forward in your case.
25 In arriving at an appropriate sentence, I have considered the sentencing snapshot to which I was referred, as well as the cases which were referred to by the learned prosecutor. I have also had regard to other cases in recent times which reflect current sentencing practice, bearing in mind the matters personal to you, the relevant maximum penalties, your level of involvement, the quantity of cannabis that you were helping to cultivate and the weight that I must attach to all relevant sentencing considerations.
26 Would you please stand up, Mr Vu.
27 Firstly, I make the ancillary orders, which are sought by the Crown, as follows:
I make a Forensic Sample Order requiring you to supply a sample of saliva by way of a scraping from your mouth. I make the order because of the seriousness of the offences, the fact that the order is not opposed and because I regard it as being in the public interest to do so. Notwithstanding you do not oppose the order being made, I should tell you that if you refuse to cooperate at the time that the sample is sought to be taken, the authorised officer may use reasonable force in order to obtain the sample.
I also make the Disposal Order and Compensation Orders sought by the Crown, both of which are not opposed by you. Insofar as the Compensation Order is concerned, I order that you pay Origin Energy the sum of $11,475.66.
28 In respect of Charge 1, you are convicted and sentenced to two years, four months’ imprisonment.
29 In respect of Charge 2, I sentence you to six months’ imprisonment.
30 I order that two months of the sentence on Charge 2 be served cumulatively with the sentence on Charge 1, producing a total effective sentence of two and a half years’ imprisonment. I order that you serve 14 months’ imprisonment before becoming eligible for parole.
31 If not for your pleas of guilty, I would have sentenced you to a total effective sentence of three years, four months’ imprisonment with a non-parole period of two and a half years.
32 I declare that you have already served 160 days pre-sentence detention which will be reckoned as being already served.
33 Take a seat, please, Mr Vu. Is there anything further, counsel?
34 MS LINZNER: No, Your Honour.
35 MR ALEXANDER: No, thanks, Your Honour.
36 HER HONOUR: Yes, thank you. You may remove the prisoner, thank you.
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