Director of Public Prosecutions v Vu
[2018] VCC 919
•20 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-00348
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TUAN VU |
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| JUDGE: | HIS HONOUR JUDGE WRAIGHT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 June 2018 |
| DATE OF SENTENCE: | 20 June 2018 |
| CASE MAY BE CITED AS: | DPP v Vu |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 919 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S Wallace | OPP |
| For the Accused | Mr J McGarvie | Stary Norton Halphen |
HIS HONOUR:
Introduction
Tuan Vu, you have pleaded guilty to one charge of cultivation of narcotic plants, namely Cannabis L - commercial quantity contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 which carries a maximum penalty of 25 years imprisonment. You have also pleaded guilty to one charge of theft contrary to s 74 of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment.
You also have admitted your prior Criminal Record.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
In October 2016, you rented a house for a period of six months located at 3 Ireland Road, Clayton South by signing a lease agreement with the owner of that property, a Mr Van Ly.
In order to lease the property, you provided your driver's licence as proof of identity and paid the first months rent in advance together with a bond.
On 10 January 2017, Mr Ly attended the address to inspect the property after being unsuccessful in arranging an appointment with you.
On arriving at the address, Mr Ly noticed the locks had been changed to the front door. When Mr Ly moved to the rear of the address, he observed you exiting the rear door. You said to Mr Ly, "Don't call the police". You were observed by Mr Ly to run to a vehicle being a dark coloured Mercedes.
Mr Ly entered the open rear door of the property and observed hydroponic equipment throughout the house together with plants which he believed were cannabis plants growing in two rooms inside. Mr Ly called the police and awaited their attendance.
At approximately 7pm on 10 January 2017, First Constable Stuart Cogger and Constable Paul McCooke attended the property. First Constable Cogger observed hydroponic equipment, lights and cannabis plants growing inside the property in two separate rooms.
The location was then secured as a crime scene and an application for a search warrant under the Drugs, Poisons and Controlled Substances Act 1991 was made.
On 11 January 2017, a search Warrant was issued at the Moorabbin Magistrates' Court. As a result, a number of police officers of the Kingston Crime Investigation Unit attended at the address and executed the warrant.
Detective Senior Constable Paul Glew, the informant in this matter, entered the property and conducted a search of the house. A number of items were observed and photographed and have been listed in detail on the prosecution summary. It would appear that every room of the house was utilised as part of the hydroponic operation. In addition to the cannabis plants, electrical items including light fittings, transformers and exhaust fans were also located. Police also found what appeared to be an electrical bypass in the hallway cupboard. It is these facts that relate to charge 1 on the indictment - cultivate a narcotic plant in a commercial quantity.
Detective Senior Constable Glew requested that a technician attend the address in relation to possible electrical bypass in order to make the location safe. As a result, Mr Josh Kent from the ‘Formway Group’ attended at the location and carried out an inspection. He located the electrical bypass which was feeding power to the lighting system and various other electrical equipment. It is these facts that relate to charge 2 - theft.
The scene was secured, and exhibits seized by Victoria Police. On 18 January 2017, Detective Senior Constable Glew attended at the Victoria Police Forensic Services Centre with the plants seized from the property.
Emily Sowter, a qualified botanist, conducted an examination of the plants. As a result of the examination, a Certificate of a Botanist was completed. The total amount of plants in combination found in the house was 265 together with small amounts of cannabis. The total weight of the plants and cannabis found was 34.76 kilograms.
On 25 October 2017, you were arrested at the Melbourne Airport by Constable Kail Marshall and Acting Sergeant Robert Perovic of the Australian Federal Police. You were taken to the Broadmeadows Police Station and interviewed.
During the interview you stated that you rented the property at 3 Ireland Road, Clayton South for a period of four months for $8,000 plus a ‘Bond’. You also said that you were asked to do this by another male, known only as ‘Quang’. You said that you did not live at the address but attended at the address often in order to smoke ice with Quang. You admitted to assisting Quang by maintaining the cannabis plants, in return you were paid $2000.00.
The objective seriousness of the offence
By its very nature, the offence of cultivating a commercial quantity of cannabis is a serious offence. The offence carries a maximum penalty of 25 years imprisonment. In this instance the total number of plants being 265 clearly exceeds the commercial quantity which is 100, while the total weight of cannabis found was in excess of 34 kilograms - 25 kilograms being a commercial quantity.
When an assessment is undertaken in relation to the combination of the various items and cannabis found at the house that you leased, it is clear that this was a sophisticated hydroponic cannabis operation. The electricity had been bypassed to avoid detection and there was an established electrical and lighting system to assist in the growing of the cannabis.
It was submitted on your behalf, consistent with what you said in your record of interview, that you had undertaken a role in this operation in order to repay a gambling debt to a man you have only identified as Quang. On the evidence it is difficult to determine exactly what position you had in this operation, however as was conceded by your counsel, your role was more than a crop sitter. In my view, based on the available evidence, you had an active role in the maintenance and cultivation of this cannabis crop.
Mr McGarvie, who appeared on your behalf, conceded that the offending is serious. I agree. He also conceded that the objective gravity of the offending demands an immediate term of imprisonment with a non-parole period.
Personal circumstances
You were born in Vietnam and are now 58 years of age.
You attended school to Grade 5 level and it would seem you have not had any further formal education. At the age of 14 you joined the South Vietnamese Army and became involved in the Vietnam War. You were exposed to live combat for a number of years which included witnessing the death of many of your friends and exposure to other horrors of war. Following the war you were captured and interned for a number of years in what was referred to by the Communist government as a ‘re-education’ camp.
You left Vietnam in 1988 and lived for three years in an Indonesian refugee camp before coming to Australia in 1992. You had by that stage married your first wife and had three children. You settled in Melbourne and worked in garment factories in Footscray for about five or six years. You then did some farm work in the Cranbourne area for another three or four years. During that period you also sponsored your children to come to Australia. You are a father of six children across three separate marriages - three from your first marriage, two from your second and one from your third. Your most recent marriage broke down in 2015 and you have a 10 year old daughter from that marriage.
Unfortunately you have a very long drug history. You began to use heroin whilst you were in the army in Vietnam and you have over the years battled with various drugs including heroin, cannabis, methamphetamine and alcohol. Your methamphetamine use began some 12 years ago and it was submitted that you gave up regular use of that drug about five years ago however, you still use it occasionally.
You also have had a history of problem gambling. It was submitted that you were motivated to become involved in this offence as a result of a gambling debt to the man you knew only as Quang.
You also suffer from a number of medical conditions. A letter was tendered from your general practitioner Dr Dennis Duy Nguyen. He outlines a number of your medical conditions including diabetes, hypertension and the fact that in 2015, you had a stroke leaving you with residual weakness on your left side. While there is limited historical medical evidence, Dr Nguyen states that you suffer depression with auditory hallucinations. A report prepared by Carla Lechner was also tendered on the plea. Whilst Ms Lechner only had limited time with you, she also concludes that you fulfil the criteria of a diagnosis of depression.
Ms Lechner identifies what may be an obvious observation in relation to your drug and alcohol abuse which in current psychological language seems to attract the title of ‘stimulant use disorder’. Ms Lechner also observed symptoms of post-traumatic stress disorder as you continue to suffer flashbacks and nightmares from your experiences as a young person involved in the Vietnam War.
I accept the history that was provided in relation to your young life in Vietnam and the trauma you were exposed to as a result of your involvement in the Vietnam War. I also accept that while it is difficult to determine the degree of your depression, the combination of Ms Lechner's assessment together with the history provided by your general practitioner, provides in my view, sufficient evidence to conclude that you are indeed suffering from depression.
Sentencing considerations
Mr McGarvie outlined the matters in mitigation upon which you rely. First, your early plea of guilty. You pleaded guilty at the committal mention stage which has of course saved the community the cost and burden of both a contested committal and a trial. I accept that your plea of guilty is an early plea and as such, it has facilitated the course of justice.
In your record of interview you also made substantial admissions and although the case was strong, in the circumstances I accept that you cooperated with police once you were arrested. In addition to conceding the offence was serious, Mr McGarvie agreed that general and specific deterrence, just punishment and protection of the community are relevant sentencing considerations.
It was also submitted on your behalf that your mental health including depression and post-traumatic stress disorder, in combination with other health issues you are suffering, will make the experience of custody more onerous than it may otherwise be. You also have no English language skills. I accept that in all the circumstances prison will be difficult for you in consideration of the matters personal to you that have been highlighted.
As to your prospects of rehabilitation, consideration must be given to your prior criminal history. Your last offence was one of armed robbery and intentionally causing injury where in 2013 you received a period of imprisonment of 42 months. Relevantly, you have a prior conviction for trafficking in cannabis and you have a range of other prior matters dating back to 2008 which are largely deception offences.
It is self-evident from a review of your criminal history, that your drug, alcohol and gambling addictions play a prominent role in your motivation to commit offences. As such, if you can overcome these destructive addictions your prospects of rehabilitation will be greatly improved. Assessing prospects of rehabilitation always involves a degree of speculation however in my view, if you utilise the services provided in custody in order to assist you in remaining drug free, your prospects of rehabilitation are good. I have also come to this view because despite your lack of education, at your age you have the maturity and insight to understand what you need to do to break the cycle of your drug addiction in order to then properly address your physical and mental health issues.
Ms Wallace who appeared on behalf of the Director of Public Prosecutions highlighted the fact that s 5(2H) of the Sentencing Act 1991 applies in this instance as charge 1 is a category 2 offence and therefore the imposition of a sentence of imprisonment is mandatory. So much was conceded by your counsel.
Sentence
Mr Vu, would you please stand.
Tuan Vu, on charge 1, cultivating a narcotic plant in not less than a commercial quantity, you are convicted and sentenced to 3 years and 6 months imprisonment.
On charge 2, theft, you are convicted and sentenced to 9 months imprisonment.
I direct that 3 months of charge 2 be served cumulatively on the sentence imposed on charge 1.
That makes for a total effective sentence of 3 years and 9 months imprisonment. I direct that you serve a period of 2 years and 6 months imprisonment before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 237 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 4 years and 6 months with a non-parole period of 3 years.
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