Director of Public Prosecutions v Vu
[2019] VCC 1127
•26 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-017768
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NAM LE VU |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 25 July 2019 | |
DATE OF SENTENCE: | 26 July 2019 | |
CASE MAY BE CITED AS: | DPP v Vu | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1127 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of cultivating a narcotic plan in a commercial quantity – 244 plants weighing a total of 42.08 kilograms – offender residing overnight in premises where plants were being grown but not tending the plants – offender did not benefit financially – limited role in the offending – emphasis placed on general deterrence – mandatory imprisonment unless special reasons found – no special reasons found
Legislation Cited: Sentencing Act1991 (Vic); Confiscation Act1997 (Vic); Crimes Act1958 (Vic)
Cases Cited:
Sentence: 15 months’ imprisonment. s6AAA declaration of 2 years and 6 months’ imprisonment with a non-parole period of 20 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Brennan | Solicitor for the Director of Public Prosecutions |
| For the Offender | Ms S Lacy | Nickolls & McAroe Lawyers |
HER HONOUR:
1 Nam Le Vu, you have pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity which carries a maximum penalty of 25 years’ imprisonment.
2 The circumstances of your offending are detailed in the summary of prosecution opening (Exhibit “A”). On 1 May 2018, a Victoria Police overhead patrol noticed that the roof of a house at 3 Iris Court, Mooroolbark was very hot and there was a hot connecting power cable. Soon thereafter, a police investigation commenced into cultivation of cannabis at that property, which had been purchased on 4 August 2017 by a person by the name of Chinh Hahn Thi Nguyen. He, in turn, had leased it to a person named Jayden Vo. On Thursday 24 May 2018, police attended the property to execute a search warrant and you opened the door to them. They entered and arrested you. A silver Toyota Camry sedan Registration No XRI 038 was parked in the driveway. You were the registered owner of that vehicle.
3 The house was a split level brick building with five bedrooms, a rumpus room, kitchen, lounge room, dining room, study, laundry and single car garage. Upon searching the property, police located a hydroponic setup for cultivating cannabis in the rumpus room, laundry and each of the five bedrooms. Each cannabis plant was in a large pot with a watering system connected to the pot. There were large bright lights with shrouds and air vents attached to air filters. Four of the bedrooms each contained 12 cannabis plants. The fifth bedroom contained 18 cannabis plants. The living room located downstairs contained 92 cannabis plants. These comprised one mature plant, 90 small plants and one seedling. The laundry contained 86 cannabis plants, which appeared to be seedlings. In total, 244 cannabis plants were seized from the premises, with a total weight of 42.08 kilograms. This weight is some 17 kilograms in excess of what comprises a commercial quantity for cultivation purposes.
4 The police also located 77 lamps and ballasts, one 18 watt fluorescent light, two 280 watt carbon filtered exhaust fans, nine 160 watt carbon filtered exhaust fans and four other exhaust fans. In addition, there was an illegal electrical bypass which had been installed which was operating at the property. Letters from Origin Energy for electricity and gas dated 18 August 2017 and 19 December 2017 respectively were addressed to the account holder, a person by the name of Zang Wao. Police also located a Yarra Valley Water bill and land tax assessment addressed to Ms C Nguyen.
5 When interviewed by police, you stated that you had first come to the house on Monday of that week and had only been there for the past two days prior to police arriving. Apparently, you had arrived in Australia from Vietnam and, at some stage, obtained a Bridging Visa C which enabled you to undertake fruit-picking work. You were employed at a farm on Phillip Island. You told the police that, while you were waiting for a Protection Visa, you were looking for work and you had met a person called Mr Phoung. He offered you the sum of $500 per week to stay at the house overnight and to “look after the house” in order to protect it from thieves. You claimed that you did not know what cannabis or marijuana were and had been told not to look through the house and only to enter the living room and bedroom and bathroom. You stated that you were not given any contact number for the Mr Phoung and were told that, if anyone needed to contact you, they would come to the house. You claimed to know nothing about the cannabis, the bypass of electricity or the accounts in the name of Ms Nguyen.
6 After being arrested, you were remanded in custody and have remained there until the present time.
7 You are presently aged 42 years, having been born on 5 August 1976. You come before the Court with no criminal history.
8 In a plea on your behalf by Ms Lacy, the Court was told that you were born and raised in Vietnam in a fishing village on the North-Central coast. You are the eldest of three siblings and left school at the end of Year 9. Since then, you have worked in unskilled manual labouring jobs, mostly fishing and in the construction industry. You are married with four children, aged between 3 and 15 years, all of whom are still with your wife in your village, along with your elderly mother, who was widowed in 2014.
9 Ms Lacy stated that you found it very hard to support your family in Vietnam so, in August 2015, you entered Australia on a tourist visa via the auspices of the Asia Pacific Economic Corporation (sic). Your tourist visa expired and you were working picking fruit and vegetables for a farmer on Phillip Island. It seems that, when the farmer told you that the Department of Immigration/Home Affairs were cracking down on illegal migrants who were working, you made an application for a Protection Visa and, whilst waiting for that application to be processed, you were granted a Bridging Visa C. You worked often for 12 hours per day on 7 days per week. You used to pick strawberries and vegetables, such as beans and snow peas. However, the work was seasonal and the amount you were paid depended upon what work was available and how much you picked each day. For example, you were paid $1.40 per kilo of beans picked and might manage to pick 140 or 150 kilos of beans on a good day. Although you were ostensibly paid approximately $200 per day, you would automatically have deducted your board of $100 per day. This comprised you being one of 20 labourers who slept on mattresses on the ground in a shed, which had no heating or cooling and had two outdoor portable toilets and two outdoor portable showers for the 20 workers. The showers were cold and in winter the labourers would heat the water so that they could have warm showers. The labourers had to do cleaning of the accommodation themselves, but meals were provided.
10 Ms Lacy stated that, as winter approached, there would be less fruit and vegetables available to be picked and, hence, less work available. At times, she said you managed to get some casual dishwashing work in restaurants, but it was in the context of having little work available, and little capacity to send money to Vietnam to support your wife and children, that you accepted the offer from the mysterious Mr Phoung, to stay at the house where the cannabis was being grown for seven nights a week.
11 Your counsel stated that your youngest child was born eight months after you left Vietnam to come to Australia to try to improve your economic situation by finding work. You have never met that child and have not been back to Vietnam in all those years, although you keep in touch with your family via Skype and, on average, have been sending $700-$800 per fortnight back to your family via a monthly remittance service called VINA. Apart from what your family receive from you, they are dependent upon assistance from relatives and friends in the fishing village where they live. However, the capacity of friends and relatives to assist your family has been diminished since April 2016, when a toxic spill from the Taiwanese Formosa Ha Tinh Steel Mill caused contamination of some 200 kilometres of the coast in North Vietnam. This has affected many areas along the coast, including your own village. This caused the death of many fish, which were washed up on the coast, grossly impacting upon the fishing industry and causing food poisoning and devastating ecological consequences. The plight of your family has clearly been a cause for great anxiety for you.
12 Unhappily, Mr Vu, the story that you tell about becoming involved in this crime of cultivating a commercial crop of cannabis is one often heard in this Court. Mysterious meetings with persons whose full identity is said to be unknown, and for whom people like you have no contact number, is a very common one. Clearly, you lied to police in your record of interview when you claimed not to know anything about the illegal cultivation of cannabis. The massive entanglement of electrical bypass equipment, large water barrels and containers of what appear to be fertiliser and the like were clearly visible down the hallway from the kitchen.[1] Moreover, you claimed not to know what the quite loud noises coming from the electrical system and fan system were all about.[2] Since giving these false answers to police in the record of interview, you have obviously had cause for reflection and, ultimately, the matter proceeded for trial in the County Court by way of hand-up brief albeit that you did not actually plead guilty to the charge until 4 April 2019. Nevertheless, I accept that there is no evidence that you had the wherewithal, either financial or in practical terms, to set up this very sophisticated hydroponic cultivation scheme or the bypass of electricity.
[1]Photos 56-61 in photo booklet 1, Exhibit “B”
[2]Question and Answer 119 in the record of interview
13 The police have been unable to locate the owner of the property and there is no evidence that the lessee or the persons in whose name the electricity and gas or water were connected have been located. These are the people who most probably had significant roles in the hierarchy of this criminal enterprise, but there is no evidence that you were intimately acquainted with them, as distinct from most unwisely having accepted an offer to look after the house for a modest sum of $500 per week, which involved you being there all night from 6.00pm or 7.00pm, seven nights a week. I accept that the photographs of the bedroom where you were staying show little evidence of any possessions belonging to you, consistent with your version of events that you had only stayed there for a couple of nights prior to the police knocking on the door.
14 I accept that your role in this criminal offending was limited to looking after the house and did not involve tending the crop in any way. Thus, you had a fairly lowly role, beneath that of a crop sitter, and the charge on the indictment relates to offending on one day only. Although you had three phones, I accept that that, in itself, is not sinister. Your counsel told the court that one was a very old phone which was not in use, and you had another oldish phone which you were updating to an iPhone. This explanation is consistent with the photograph of the phones which was tendered into evidence.[3]
[3]Photo 107 of photo booklet 2, Exhibit “B”
15 Although your role was a relatively lowly one, and there is no evidence that you were to receive any remuneration other than what you admitted to police, namely $500 per week and, indeed, you had not been paid for even one week as you had not been there for one week, it is still a serious offence. Were it not for people like you, prepared to safeguard houses in which illicit cannabis crops were growing, then the criminals who set up those crops could not prosper.
16 The fact that Parliament has assigned a maximum penalty of 25 years’ imprisonment for this crime shows how seriously it is regarded. Illicit drugs do a great deal of harm in our society. The crime of cultivating cannabis is prevalent and difficult to detect. Your role, though a limited and lowly one, was essential in order for the illegal cultivation to be able to continue and the crops to flourish. As I have said, the weight is well in excess of the commercial quantity. Although only 55 of the 144 plants were mature, and the rest were either immature or seedlings, the fact remains that, had police not detected the crop, there was potentially a large quantity of cannabis that could have found its way into the community to do harm. Thus, the court must denounce your conduct and emphasise the principle of general deterrence. This means that in sentencing you, I must send a message out to others who are minded to take the risk of assisting those in the illegal cultivation of cannabis, so that they will know that it is not worth taking that risk because they will be given appropriate punishment.
17 The offence of cultivating a narcotic plant in a commercial quantity is a Category 2 offence pursuant to s3(1) of the Sentencing Act1991. Thus, I am obliged to impose a term of imprisonment other than one which may be imposed in addition to a Community Correction Order unless a special reason exists.[4] Your counsel has conceded that there is no special reason which can be argued on your behalf. Thus, the only appropriate sentence is a term of imprisonment. However, I am satisfied on the material before me that you were in very difficult financial circumstances, and it was the need to support yourself and your family, rather than greed, that motivated you to commit this crime. Thus, you are distinct from those who deliberately engage in cultivating commercial crops of cannabis for profit. However, it needs to be made clear that people who come to Australia to try to find work, and have difficulty, will not be excused if they end up committing crimes to support themselves or their family.
[4]s5(2H) of the Sentencing Act 1991
18 You are 42 years old and have spent 428 days in custody. You have very limited English and, prior to being transferred to Marngoneet Prison approximately 12 months ago, you had no one with whom you could speak in custody. However, there are Vietnamese-speaking prisoners at Marngoneet. Also, you had no visitors for the first six or seven months, but now have one friend who visits once or twice per month. I accept that this is a burdensome manner in which to serve a term of imprisonment, and that you have been anxious about your family. It is highly likely that you will be deported once you complete your sentence, but given that you had not established an entitlement to a protection visa, and that you would be returned to your own family in your own country, there is no hardship that can be made out on this basis, other than the fact that you have lost the opportunity to earn money to support your family here.
19 I take into account your plea of guilty, albeit a relatively late one, made only three months prior to the date that the charge had been set down for trial. Nevertheless, you have facilitated the course of justice and saved the time and cost of a trial, and I consider that the utilitarian value of your plea is of some weight, but I am not convinced that there is any particular element of remorse attached to it. However, at the age of 42 years with no prior criminal history, it is likely that you have learned your lesson and that your prospects of rehabilitation are probably good, particularly where there is no suggestion that you have a history of illicit drug use, dishonesty or any other antisocial behaviour. The one reference tendered on your behalf as Exhibit “1” from Julia Lam, states that she has known you for 18 years, since both of you were in Vietnam, and that you are a gentle person who cares about your family and a law-abiding citizen. She expresses shock about your involvement in this crime and believes that it occurred because you were unemployed and enticed by others to do the wrong thing. She describes you as a kind-hearted and caring person by nature. I take these factors into account in sentencing you.
20 Would you please stand up.
21 On one charge of cultivating cannabis in a commercial quantity, you are convicted and sentenced to be imprisoned for a period of 15 months.
22 I declare a period of 428 days pre-sentence detention to be time reckoned as already served under the sentence imposed this day.
23 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your plea of guilty, the total effective sentence imposed would have been 2½ years imprisonment, with a non-parole period of 20 months.
24 Pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the property referred to in the Schedule, namely, a small quantity of Cannabis-L and electrical bypass equipment. I further direct that the property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings, where it may be tested and/or analysed and then destroyed.
25 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with Subdivision 30A of Part 3 of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. I am satisfied that this order is justified by reason of the seriousness of the circumstances of the offending.
26 Mr Vu, this involves you placing a cotton bud inside your mouth to take a sample of saliva from the inside of your cheek. You need to understand that if you do not consent to the taking of this mouth scraping under the supervision of an authorised member of the police force, then police may use reasonable force to enable that forensic procedure to be conducted.
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