Director of Public Prosecutions v Vu

[2018] VCC 546

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00271

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRAM THI VU

---

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2018
DATE OF SENTENCE:	20 April 2018
CASE MAY BE CITED AS:	DPP v Vu
MEDIUM NEUTRAL CITATION:	[2018] VCC 546

REASONS FOR SENTENCE
---

Subject:  Cultivating - not less than a commercial quantity
Sentence:                  9 months' imprisonment/community corrections order

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Churchill
For the Accused	Mr C. Farrington

HIS HONOUR: 

1Ms Vu, you have pleaded guilty to two charges.  The first charge is of cultivating a narcotic plant (cannabis L) in a quantity that was not less than a commercial quantity.  The maximum penalty for this offence is imprisonment for 25 years.

2The second charge is a charge of theft of electricity for which the maximum penalty is imprisonment for 10 years.

3You also pleaded guilty to a related summary offence and consented to having that charge dealt with by me in this court.  That was a charge of making a false report to police for which the maximum penalty is imprisonment for one year or a fine not exceeding 120 penalty units.

4The circumstances of your offending are set out in an amended prosecution opening in writing dated 12 April 2018 which was tendered and read in open court by the learned prosecutor Ms Churchill.  Your counsel Mr Farrington agreed that the amended opening was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.  It is therefore not necessary that I here again set out what is contained in the summary except in an abbreviated way.

5On the 25th August 2016 police were alerted to the possible presence of cannabis in your home.  What alerted them was the smell of cannabis plants.  A later search of your home located a sophisticated hydroponic cannabis crop growing in two bedrooms and the garage.  The set up contained automatic lighting and watering systems and large mature plants.  The electrical supply to the house by-passed the meter.  The charge alleges and by your plea you admit the cultivation occurred between 1st May 2016 and 25th August 2016.

6Police seized 37 plants with a total wet weight of 90 kilograms where a commercial quantity by weight is 25 kilograms.  A commercial quantity by number of plants is 100 plants.  The number of growing plants at your home was 37, a number well short of the commercial quantity.  In your case it is the wet weight of the plants at 90 kilograms that is the problem.  The wet weight elevates your offending to cultivating a commercial quantity.  A statement in the depositions from Forensic Officer Kylie Slattery estimated that the air dried weight of the plants found at your home to be 17.7 kilograms.  This is below the commercial quantity weight threshold but nevertheless the quantity of cannabis found growing at your home is still significant.  There is no estimate of the value of the electricity stolen for the purposes of Charge 2.

7When interviewed by police you told them that a neighbour showed you how to do the cultivation and that strangers had set up the rooms in your house for growing cannabis.  You told police you were shown how to put chemicals and water on the plants.  You said you were not aware of the electrical by-pass.  You told police that you were told that by growing the plants you would make money and that you had paid $5,000 for the set up.  You also told them that you did not understand that this was a significant crime and that you did what you did to make some money to repay a debt owed to your family and for no other reason. 

8With one exception, I accept what you said to the police and that your motivation in growing this cannabis crop was to make money.  That explains your conduct but it is no excuse.  You did not crow this crop for self-use as is sometimes the case.  You were not a crop sitter but the owner of the crop and you spent money to set it up in your own home.  I do not accept that you did not understand the legal significance of what you were doing.  In my judgment your offending falls below mid-range for this offence but your moral culpability for the offending is high. 

9The summary charge arises from the fact on the 4th August 2016 your home was the subject of an aggravated burglary during which various items were stolen including personal identification documents, money and credit cards.  Because you did not want the police to attend your home with the obvious presence of the cannabis crop you instead lied to them and told them that you were robbed in the street in St Albans.  That shows to me that you were indeed very conscious of what you were doing in growing the cannabis crop was unlawful and an offence.

10You can see from the maximum penalties provided for by the parliament that this kind of offending is regarded as very serious.  Further, offending of this kind is relatively prevalent.  Sentences imposed by the courts for this kind of offending must properly apply the principle of general deterrence.  That is to say, the sentence imposed must be sufficient to deter those who would seek to offend in the way that you have offended.

11You were arrested on the 25th August 2016 and you remained in custody until bailed with a surety on the 15th September 2016.  You have complied fully with all your conditions of bail.  Thereafter there were discussions between your lawyers and the prosecution with a view to resolving the charges into a plea of guilty.  There was a contested committal.  Although you did not immediately indicate that you would plead guilty you soon did so.  For the purposes of sentencing I treat you as having indicated that you would plead guilty at an early stage of the criminal process.  You have pleaded guilty to the charges and that is very much to your credit.  By your pleas you have saved the time and costs of a trial and you have helped facilitate the course of justice.  For that you are entitled to a reduction in sentence and this reduction will be reflected in the sentence that I will shortly pass.  Further, I treat your pleas of guilty as evidencing your remorse for your offending.

12You have served 22 days in custody as pre-sentence detention.

13I turn to some matters related to your background and personal circumstances.  Mr Farrington provided a helpful outline of submissions on your behalf which I marked as Exhibit 1.  You are 30 years of age and you were aged 29 at the time of this offending.  You were born in South Vietnam as it then was and travelled to Australia with your mother aged 17.  Both of you were sponsored as migrants by your step-father.  You are the youngest of three children to your parents and your brother and sister still live in Vietnam.

14Your parents separated when you were aged 10 due to your father's problems with alcohol and domestic violence.  You have not seen your father since and he recently passed away.

15You are married but separated.  Your husband lives in Sydney and you have no communication with him.  You have a daughter Ruby aged 3 who does not have any relationship with her father.  Your mother was in court to support you and you live with her.  She has a number of health issues and a medical certificate relating to these was put before the court as Exhibit 2.  It was submitted that because of these health problems she is unable to care for Ruby should you be sent to prison and you have no other family member or friend whom you can call upon to care for her.  Whilst Mr Farrington conceded these were not exceptional circumstances he did submit that because it would be likely that should you be sent to prison, and because there was no one who could care for Ruby in your absence, it was likely she would be taken into care by DHS.  It was submitted that if that were to occur it would play heavily on your mind, making your time in prison more burdensome for you than for other prisoners.

16This was a significant issue on the plea.  During the course of the plea I raised with counsel the possibility that if I were to send you to prison whether you could have Ruby in your care in prison.  Since the plea my associate made inquiries and forwarded to the parties email correspondence relating to the Mother and Child Program at Dame Phyllis Frost Centre.  This morning the court was advised that that program is open to you should you be sentenced to prison at Dame Phyllis Frost Centre, and it would take a day or two for any application to be processed. 

17You were educated to equivalent Year 12 level in Vietnam.  You speak little or no English and an interpreter was required to assist you in the plea hearing.  You have worked hard since arriving in Australia doing a variety of unskilled jobs before commencing and then completing an apprenticeship as a hairdresser where you have worked continuously for nine years up until the time of your arrest and remand.  You took out Australian citizenship on 29 July 2010.

18You have no prior convictions and this offending aside, you have lead an unblemished life.  I accept that your life has been difficult at times and that you have had to struggle as migrants almost always have to do.  You have worked hard and despite your husband leaving you, you owned your own home subject to a mortgage.  I am very conscious of the fact that your home having been tainted by this offending will almost certainly be confiscated and sold and the equity that you have in it will be lost.  This of itself will have a deterrent effect upon you.  I note there already exists a restraining order over the property.

19Your prospects of rehabilitation I think are excellent and I very much doubt you will offend again in this way.

20Mr Farrington tendered in evidence a psychological report of Carla Lechner.  She is of the opinion you have suffered from depression since your marriage breakup and you should now be properly diagnosed as suffering from a Major Depressive Disorder.  You express shame and regret for your offending.  In passing sentence I have taken the opinion of Ms Lechner into account particularly in determining the kind of sentence I should decide upon.

21Mr Farrington asked that I release you immediately upon a community corrections order with conditions.  He submitted the 22 days you have served in prison is enough and that you could be further punished by the imposition of conditions including for unpaid community work.  He relied upon your pleas of guilty, your good character with no prior convictions, your frank admissions and cooperation with the police, your diagnosis as suffering from a Major Depressive Disorder and the fact if you go to prison you may be separated from your daughter in the event that that would mean that your time in prison would be more burdensome.  In passing sentence I have taken into account all of his submissions.

22I have had you assessed for a community corrections order and you have been assessed as suitable.  However, in my judgment because of the seriousness of your offending and your involvement in it, the making of a community corrections order with appropriate conditions alone would not properly meet the purposes of sentencing in this case.  The disposition sought by Mr Farrington in my view does not properly address general deterrence and neither would it appropriately denounce your offending.  For these reasons I have decided to impose a prison sentence in combination with the making of a community corrections order.

23On Charge 1 you are convicted and sentenced to a term of imprisonment of 9 months.

24On Charge 2 you are convicted and sentenced to a term of imprisonment of 3 months.

25On the summary charge you are convicted and discharged.

26In addition, on Charges 1 and 2 I make a community corrections order with conviction for a period of two years to commence upon your release from prison.  The conditions will be that you are supervised and that you engage in treatment and programs to assist your mental health and programs to reduce your prospects of reoffending.  Because this will be a community corrections order in combination with a prison sentence, I have not imposed a condition that you engage in unpaid community work because I regard the prison sentence imposed as sufficiently punitive in all the circumstances of this case.

27I declare there have been 22 days pre-sentence detention under the sentences passed this day and direct that 22 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.

28For the purposes of s.6AAA of the Sentencing Act, I state I have imposed sentences being terms of imprisonment and I have reduced the overall sentence I would have imposed but for your pleas of guilty.  Had it not been for your pleas of guilty to the charges I would have imposed a total effective term of imprisonment of 5 years and I would have fixed a non-parole period of 3 years.

29I have been asked to make a forensic sample order under s.464ZF of the Crimes Act.  That order was not opposed and for the reasons stated in the order, I have made it.  That means that whilst in custody a member of the police force may require you to furnish a sample from your body in the form of a mouth swab.  If you refuse he may use reasonable force to take it from you.

30I have been asked to sign disposal orders and they were not opposed and I will sign them.

31Any matters arising out of that?

32MS CHURCHILL:  Just for the sake of clarity, Your Honour imposed a sentence of nine months on Charge 1 and three months on Charge 2.  Is it Your Honour's intention that they run concurrently?

33HIS HONOUR:  Of course. 

34MS CHURCHILL:  Thank you, Your Honour.

35HIS HONOUR:  The Act ‑ ‑ ‑

36MS CHURCHILL:  Just for the sake of clarity, Your Honour.

37HIS HONOUR:  Well, the Act is clear, is it not?

38MS CHURCHILL:  Just - yes, Your Honour.  Thank you. 

39HIS HONOUR:  Now Mr Farrington, it will be necessary for your client to agree to a community corrections order.

40MR FARRINGTON:  Yes, Your Honour.

41HIS HONOUR:  If you explain that to her please, and have her sign the document.

42(Community corrections order signed and acknowledged.)

43Now Ms Vu, the effect of that sentence is this:  that you will now be taken to prison and you will have to serve approximately eight months and one week.  You will then be released upon the community corrections order and you will have to comply with those conditions.  If you do not, you may be brought back before me.  Do you understand?  So please comply with all the conditions of the community corrections order. 

44If you take Ms Vu into custody please.

‑ ‑ ‑