Director of Public Prosecutions v Vu

[2022] VCC 2144

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 22-00500

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIEN VU

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2022
DATE OF SENTENCE:	2 December 2022
CASE MAY BE CITED AS:	DPP v Vu
MEDIUM NEUTRAL CITATION:	[2022] VCC 2144

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:   One charge of cultivation of a narcotic plant (cannabis) – all sentencing purposes engaged – uncertain prospects of rehabilitation – offence found to be for the purpose of trafficking – higher maximum penalty applicable – involvement in the cultivation limited – early plea of guilty

Legislation Cited:                  Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991

Cases Cited:   Worboyes v R [2021] VSCA 169; Nguyen v R [2021] VSCA 346

Sentence:332 days imprisonment and a Community Correction Order for 12 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Hamnett	Office of Public Prosecutions
For the Accused	Ms A. Liang (Plea) Ms C. Flocke (Sentence)	Giorgianni & Liang Lawyers

HIS HONOUR:

Introduction

1Kien Vu, you have pleaded guilty to a charge of cultivating a narcotic plant, being cannabis.

2The circumstances of your offending are set out in the document entitled, 'Amended Summary of Prosecution Opening on Plea', which is Exhibit A.  Your counsel agrees with its contents insofar as they relate to the circumstances of your offending.

Circumstances

3On 4 January 2022, police members searched an address in Thomastown.  You were present.  They found a sophisticated hydroponic cannabis crop, occupying five rooms and 276 cannabis plants. 238 of those plants were described as 'juvenile'.  The degree of sophistication is shown by the equipment detailed in paragraph 13 of Exhibit A.

4When interviewed, you gave false reason for your presence at the house.  Later, through your lawyers, you said you were there to mix the fertiliser and help your co-accused fertilise the plants.

5A botanist weighed the 271 plants at 18.115 kilograms.

Criminal history

6Between 5 September 2003 and 11 August 2021, you have appeared in a criminal court on four occasions and have been convicted of 10 offences.  Of the 10 offences, seven of them relate to drugs.  The most severe sentence was imposed in this Court on 17 July 2017 where you were sentenced to 4 years’ imprisonment with a non-parole period of 3 years for trafficking a commercial quantity of a drug of dependence and burglary.

Personal

7You are now 53.  Your personal circumstances are detailed in your counsel’s plea submissions in paragraphs 1 to 18.

Psychologist

8Warren Simmons is a psychologist.  On 16 November 2022, he interviewed you at the request of your solicitors[1].  Apart from a useful summary of your background, there is little Mr Simmons could say within his field of specialised knowledge about you.  He does not diagnose you as suffering from any recognised psychological disorder.  He notes your lowered mood which could be your reaction to being in custody.  Further time in custody may cause symptoms of depression which would need medicine and counselling.

[1] Report dated 18 November 2022

Discussion

9Both s5(1) and (2) of the Sentencing Act 1991 must be considered. With
sub-s(1), plainly, the purposes of general deterrence, specific deterrence, denunciation and the protection of the community from you are important.

10There is nothing to suggest your prospects of rehabilitation are good.  If not poor, at best they are uncertain.

11The prosecution in its opening in Exhibit A raised the possibility of the maximum penalty for the offence as being 1 year's imprisonment or a fine of 20 penalty units or both and that in fact raises s72B(a) of the Drugs, Poisons and Controlled Substances Act 1981. That is, that would require me to find, on the balance of probabilities, that the offence was not committed by you for any purpose related to trafficking in those plants. I could not so find because:

(a)   the size of the potential crop;

(b)   the elaborate nature of the hydroponic set-up; and

(c)   your counsel did not invite me to so find.

12Accordingly, the maximum penalty for the offence is 15 years’ imprisonment.

13You were arrested on 4 January 2022 and have remained in custody since then.  Excluding today, you have been in custody for 332 days.

Gravity of the offence

14Your involvement in the cultivation is limited.  You did not own the crop or establish it.  On the date of the offence you were helping your co-accused to fertilise it.

Guilty plea

15Given the speed at which this proceeding has reached this stage, your plea of guilty has been entered at an early opportunity.  The plea is evidence of some remorse.  Moreover, it entitles you to a significant moderation of the sentence which would otherwise be imposed.  It evidences your acceptance of responsibility and also the unique considerations required by the case of Worboyes v R[2] and other cases.

[2][2021] VSCA 169

Custody conditions

16I note the difficulties you have experienced in custody as set out in your counsel’s submission at paragraphs 30 to 31.

Current sentencing practice

17Your counsel relied on certain sentences in this Court, which represent an aspect of current sentencing practice in this Court.  More generally, counsel for the Director referred to the case of Nguyen v R[3].

[3][2021] VSCA 346

Community correction order report

18I have read the report from Corrections Victoria in relation to a community correction order, noting your suitability from the author's perspective and the author’s recommended conditions.  I am, after hearing from your counsel and Ms Hamnett for the Director, reasonably satisfied that you will complete a community correction order in those terms.  After reading the author’s reasoning in the report, I will adopt the recommendations.

Sentence

19On the charge of cultivating a narcotic plant, I sentence you to 332 days’ imprisonment.

20In addition, subject to your consent which I have now received, I will place you on a community correction order of 12 months’ duration with these conditions:

(a)   to perform 100 hours of unpaid community work;

(b)   to be supervised, monitored and managed as directed by the Secretary; and

(c)   to undergo any assessment and treatment (including testing) for drug abuse or dependency.

21I direct all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

22I declare the 332 days of pre-sentence detention as time served under this sentence.

Section 6AAA

23In the absence of your guilty plea, I would have sentenced you to 470 days’ imprisonment together with the same community correction order.

Disposal

24I will make the disposal order in the terms sought.

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