Director of Public Prosecutions v Vu

[2020] VCC 65

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00126

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRONG VU

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2020
DATE OF SENTENCE:	10 February 2020
CASE MAY BE CITED AS:	DPP v Vu
MEDIUM NEUTRAL CITATION:	[2020] VCC 65

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Gray	Office of Public Prosecutions
For the Accused	Mr C. Nikakis	Haines & Polites

HIS HONOUR:

1Trong Cuong Vu, you have pleaded guilty to:  one charge of cultivation of a narcotic plant; one charge of theft; one charge of cultivation of a narcotic plant in not less than a commercial quantity; and one charge of trafficking in a drug of dependence.  The narcotic plant involved here is cannabis.

2You are now 35 years of age.  You originally came from Vietnam in around about 2012 but you are now an Australian citizen.  I understand from that, that there is no question of you being deported.  However, you are the father of a child to a co-accused who may well be deported.  I take that into account insofar as a sentence is imposed, that you have undergone the remand so far and the sentence that I impose with the anxiety as to what will occur with your son.

3You pleaded guilty to a settled indictment and I treat that as being at the earliest reasonable opportunity.  As in all these cultivation cases the question of remorse is somewhat problematic but I will give you the benefit of the doubt.  Clearly, you must get the utilitarian benefit of the plea and in this overall situation I commend the Crown for a sensible resolution as well as your own counsel.  You have no prior convictions.

4Your co-accused partner in this matter received two and a half years with a
15 month minimum.  She pleaded guilty to a cultivation of a commercial quantity and it is accepted in your counsel's submissions that she played a lesser role than you.  She did not face a trafficking charge and she did not face the earlier cultivation charge.

5The co-accused in respect of Charge 1 was actually convicted of a large commercial quantity, which is a very different matter indeed to what you have pleaded guilty to.  That crime carries a maximum penalty of life and I will be very briefly referring to the size of the crop that he was sentenced for, and pointing out clearly that you are not to be sentenced for having an awareness of the size of that crop or an involvement in the actual cultivation.  Yours was one of preparation.  However, I do take those matters into account and obviously the question of parity must arise.

6I will be annexing the Crown opening to these, my sentencing remarks, as it goes into a significant amount of detail I do not think is necessary for these purposes.

7In May 2017 police executed a search warrant at premises that you were then residing in.  You were there with your partner.  A number of items were seized during the course of that raid, none of which resulted in a charge but a number of which became clearly circumstantial evidence in the case against you in respect of other matters.

8Charge 1 is cultivation of a narcotic plant in Lasell Street in Springvale.  From the information obtained at the premises where you had lived a further search was conducted at a factory.  Police spoke to the owner of the factory, who had a business across the road.  He stated that the factory was sub-leased to a
Mr Nguyen and he had keys and opened the front door of the premises.  He entered and quickly returned, advising police that there was a cannabis hydro set up inside.

9As I think I indicated at the last hearing into this matter, I was somewhat surprised at his lack of knowledge of what was occurring in his own factory, but in any event, a crime scene was established, police searched and seized 888 cannabis plants, weighing over 440 kilograms.  That is a large commercial quantity by any standards.  As I indicated, there were matters contained within that factory that were linked to you but I am very careful not to sentence you for the size of that crop, albeit a very considerable one.

10You were interviewed in relation to that and basically made denials.  It was later in the year, as was indicated, that further information about you came up.  Charges 2, 3 and 4, theft of electricity, cultivation of a commercial quantity and trafficking, all arise from a search at premises at 9 Baxter Street in Miners Rest where you were residing with your partner, your co-accused.  In January 2018 it was realised that a - because of the way the house meter was indicating a low use but the street meter indicating a lot, the police made enquiries about that address in Baxter Street.  It was registered.  Both water and gas were in your name and it would appear to have been a property that you had purchased.  Your counsel did not go into the details of all that but I do take into account that property as a result of all this will either be forfeit to the Crown or forfeit to the bank as there has been nobody paying the mortgage for a considerable period of time.  I just take that into account in a general way.

11When police attended at the scene they knocked on the door.  After some delay it was opened and you and your partner were present.  A sophisticated hydroponic set-up was within the premises in three rooms and police found 54 mostly large, mature cannabis plants with a wet weight of 129 kilograms.  Your counsel has pointed out correctly that because there is a trafficking matter here as well because of dried cannabis that was also found, I should be careful looking at that weight because had that been a matter of sale it would have been considerably less than the description of it wet.  I do not think I need to go into how the house was set up.  There was an electrical bypass and inside the house were found approximately 5 kilograms of dry cannabis, which gives rise to the trafficking charge, as well as various other cannabis materials.  Also located were mobile phones, a Vietnamese passport, and again, I do not think I need to go into all that.

12The value of the electricity was said to be nearly $20,000.  I treat that with a grain of salt but it still must have been a considerable amount that was used over the period of time.  As I clearly indicated, I sentenced one of your
co-accused, Judge McInerney the other, again, and as your counsel is aware, I have sentenced many people in these scenarios over the last few years, of crops being set up in rural areas in particular, and I am well aware of effectively the going rate for these matters.  Custody is obviously the only sentence available and it must be one of significant proportions.

13I then look at matters personal to you and there is little that can be said.  The offending is obviously serious, does call for the application of general and specific deterrence as well as denunciation and an appropriate punishment.  You are now 35 years of age.  You came to Australia in 2012.  You married.  You have two children who live in Sydney and I understand to a certain extent are dependent upon you.  Subsequent to that relationship you formed another relationship with the co-accused.  Indeed, she was pregnant at the time of the raid and has had a child in custody, as I understand it.  Again, as I have already indicated, she is an illegal resident in Australia and will certainly be deported.  Because of the dual citizenship difficulties and  you being an Australian citizen it is debatable whether the child, who is now 18 months old, will be deported as well.  Again, as I think I have already indicated, it is probably a matter of real stress for you and I take it into account.

14You do have family and friends in Victoria with whom you are going to be able to live upon your ultimate release.  Again, they can be described in various simple terms.  You have worked labouring, you have worked in various jobs and you, as so many people in your situation, seem to have gambling issues.  How you got into all this I do not know, as your counsel very sensibly has not gone down that path.  You are to be sentenced for what you have done and it must be obviously a sentence that deters others from behaving in such a way.  The prospects of your rehabilitation are up to you.  You are 35 years of age with no prior convictions and the risk of reoffending would appear to again be very much up to you.  You would understand that were you to be arrested for this type of offending again in the future you would be receiving a very severe sentence indeed.  Again, I am not going to go into the background or guess as to what this is all about but you fall to be sentenced for what you have done and the Crown have correctly pointed out it is a significant commercial quantity and you must be sentenced accordingly, taking into account the matters already mentioned.

15On charge 1, 12 months, on Charge 2, six months.  On Charge 3, three years and three months.  On charge 4, 12 months.  That 12 month sentence will be totally concurrent.  I do that because of the risk of double jeopardy.  The fact that the process of preparing for sale was involved in the cultivation, demand that it be concurrent, in my view.  However, three months of the sentence imposed on Charge 1, three months of the sentence imposed on Charge 2 be served cumulatively upon each other and upon the sentence imposed on Charge 3.  That gives an effective head sentence of three years and nine months.  I direct that you serve a minimum term of two years and three months before becoming eligible for parole.

16I direct that 600 days be reckoned as having been served under this sentence, and pursuant to s.6AAA I say that but for your plea of guilty to these matters you would have received a sentence of six years with a minimum term of four.

17COUNSEL:  If Your Honour pleases.

18HIS HONOUR:  No other orders I need to make, gentlemen?

19MR GRAY:  No.  Your Honour's already made the other orders.

20HIS HONOUR:  All right, thanks for that, Mr Gray.  Thanks, Mr Nikakis.

21MR NIKAKIS:  Thank you, Your Honour.

22HIS HONOUR:  All right, he can go now, thank you.

23MR NIKAKIS:  I was just wondering if Your Honour would allow me to talk to him whilst the interpreter is in there.

24HIS HONOUR:  While the interpreter is there.  Yes, got you, yes, that is all right.

25MR NIKAKIS:  Yes.

26HIS HONOUR:  Yes, just so he does not have to take the interpreter downstairs.  Thanks.

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