Director of Public Prosecutions v Vu and Vu
[2018] VCC 1871
•15 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL JURISDICTIONCR 18-01635
CR 18-01639
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAI HO VU PHAM ANH VU |
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| JUDGE: | HIS HONOUR JUDGE WRAIGHT |
| WHERE HELD: | Shepparton |
| DATE OF HEARING: | 15 November 2018 |
| DATE OF SENTENCE: | 15 November 2018 |
| CASE MAY BE CITED AS: | DPP v Vu & Vu |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1871 |
REASONS FOR SENTENCE
---Subject: Criminal Law
Catchwords: Sentence – guilty plea - cultivation of narcotic plants - cannabis-L – crop sitter – no prior criminal history
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), Sentencing Act 1991 (Vic)
Sentence: Total effective sentence of 2 years imprisonment, with a non-parole period of 12 months.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D O'Doherty | Office of Public Prosecutions |
| For Accused Vu | Mr C Nikakis | Vanessa Ash & Associates |
| For Accused Vu | Mr C Sheen | Haines & Polites |
HIS HONOUR:
Introduction
Phan Anh Vu and Hai Ho Vu, you have each pleaded guilty to one charge of cultivation of narcotic plants, namely Cannabis-L in not less than a commercial quantity contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 which carries a maximum penalty of 25 years imprisonment.
Pham Anh Vu, you are charged with cultivating a commercial quantity of cannabis between 1 January 2018 and 9 April 2018. Hai Ho Vu, you are charged with cultivating a commercial quantity of cannabis between 9 March 2018 and 9 April 2018.
You both have no prior criminal history.
Circumstances of the offending
A Summary of Prosecution Opening was tendered on the plea and may be summarised as follows:
In late April or May 2017, Vi Anh Kha purchased a property at 21 Isaac Street, Mooroopna.
On 1 June 2017, Ms Kha was outside the house at 21 Isaac Street when she was approached by a male who introduced himself as “Will” who said he was looking for a house to rent for himself and his family. Ms Kha and “Will” came to an agreement that he could rent the house for $345 per week.
A rental agreement was signed on 18 June 2017. “Will” provided Ms Kha with a copy of his license, a bank statement and an ATM card, all were from the USA. “Will” provided his full name as William Luu and his previous address as 113 West Third Avenue, Moses Lakes, Washington. Will continued to pay the rent until 29 March 2018.
From June or July 2017, neighbours observed an Asian male at the address that fit the description of you Pham Anh Vu. Neighbours also observed lights on at strange times of the night and day and that the lights would sometimes be on for two to three days at a time and the air conditioner going 24 hours a day, seven days a week.
On 30 March 2018, police noticed a strong cannabis smell emanating from the property at 21 Isaac Street. The blinds were all down and a loud humming noise was coming from within the property.
On 3 April 2018, Powercor Australia conducted an inspection of the address and discovered that the property was operating on an electrical bypass.
On 9 April 2018 at approximately 7.05 am, police executed a search warrant at 21 Isaac Street, Mooroopna. Police forced open the front door after no one answered the door.
Both of you together with Hung Bui were located by police in the front lounge room of the premises which was set up as a makeshift bedroom. A Honda sedan was parked on the front lawn. Vehicle transfer papers were located in the name of you Pham Anh Vu.
In the premises police found a sophisticated hydroponic system was operating with 104 light shrouds and approximately 100 by 600 watt globes. Additional internal walls had been constructed and thick block out material and blinds had been placed over the windows.
The electrical bypass, which was located in the roof, consisted on four diversion points with internal timers set on each room to run for 12 hours each.
A total of 204 cannabis plants were located in five growing rooms and one drying room. The total weight of the cannabis and plant material was 94.25 kilograms.
On 10 April 2018, you were both interviewed at the Shepparton police station.
You Pham Anh Vu made various admissions including that you knew about the cannabis once you got to the property but did not know how many plants were there and that you knew cannabis was illegal.
You Hai Ho Vu made admissions including that you had been cultivating cannabis for four weeks, that the plants were little when you got there and you put them into bigger pots. You also said that you had purchased pots and other items and that you would take the cannabis in bags to the market to be collected by another person. You admitted that you knew what you were doing was illegal.
Objective seriousness of the offence
The offence of cultivating a commercial quantity of cannabis is a serious offence. This is reflected by the maximum penalty of 25 years imprisonment. In this instance the total number of plants found at the Mooroopna property was 204 plants which clearly exceeds the commercial quantity of 100, while the total weight of cannabis found was 94.2 kg, 25 kg being a commercial quantity.
The house where the cannabis was found had been completely refurbished. In addition to the sophisticated hydroponic system that had been installed, the house had been modified by the construction of internal walls and thick block out blinds over the windows. It is self-evident that significant resources and organisation had been engaged in setting up this operation. It is also clear that both of you were recruited by others who were higher up in the criminal enterprise.
Nevertheless, in all the circumstances you were in my view both employed as labourers to maintain the properties and to look after the cannabis. As such I accept that your role is relatively low level and would fall within the categorisation of ‘crop sitter’.
Personal circumstances
Pham Anh Vu
Pham An Vu, you are 36 years of age. You were born in Vietnam.
At the age of 16 your parents separated and when you were 18 you came to Australia with your mother and sister. Your mother met an Australian man who she later married. You became an Australian citizen in 2006.
Also in 2006 you met your partner with whom you have three children aged 11, nine and three. You have a close relationship with your children and are actively involved in their lives. You and your partner placed your two eldest children in a private Christian school as you believe that they need to be taught strong values and receive a good education. As such you are required to pay fees for that education.
In 2003, you completed your VCE at the Victorian College of the Arts. In 2016, you completed various security qualifications obtaining your Certificate III in Security Operations and obtained your Victorian Security License.
As to your employment history, from 2003 to 2006 you worked as a process worker. From 2006 to 2008 you worked as a machine operator and from 2008 to the time of your arrest you were a self-employed gardener. You also owned a restaurant from 2012 which was unsuccessful and ultimately sold in 2016.
As to your involvement in this offending, it was put that your gardening business was going through difficulties and demand for your services were declining as drought conditions increased in Victoria. You were attempting to provide support to your family including your three children, two of whom were in private education which was costing you approximately $2000 a term. Ultimately, you were offered the job to cut cannabis which you accepted.
Three references were tendered on your behalf from your partner, your sister and a close friend. In general terms they all speak of your dedication and commitment to your family, most particularly your children and the very active role you take in their education and their extracurricular activities. They also speak in a unified voice that you greatly regret your involvement in this offending and that this is something that is out of character, which I accept.
Hai Ho Vu
Hai Ho Vu, you are 51 years of age. You were born in Vietnam.
In 1988 at the age of 20, you left Vietnam and came to Australia ultimately settling in Adelaide where you completed two years of secondary school. You then attended university for two years although you did not complete the course that you had commenced.
You were married in 1989 however that relationship broke down and you divorced in 2001. After your divorce you moved to Melbourne. You became an Australian citizen in 1990.
For approximately the last 16 years you worked in the printing industry commencing as a labourer and ultimately concluding that work as a machine operator when you resigned from that position in 2017.
You re-married in 2015 and you now have a child aged two years and six months. You also have been taking care of your wife's 13 year old child from a previous relationship.
As to your involvement in this offence, having resigned from your employment in the printing industry you struggled to find work as although you were experienced, you did not have any formal qualifications. You were offered work in relation to this cannabis crop and accepted it.
Since being on remand you have engaged in a number of courses in custody in order to assist you upon your release. Your voluntary engagement in these courses also is relevant evidence in relation to your prospects of rehabilitation.
Sentencing considerations
There are a number of sentencing considerations which apply to both of you. First and foremost is your plea of guilty. You both pleaded guilty at the committal mention in August 2018 and the matter proceeded by way of straight hand up brief. In the circumstances I consider your pleas of guilty as being made at the earliest opportunity and as such you have saved the expense and the time of a trial and thereby have facilitated the course of justice.
You both come before the court with no prior criminal history which is significant given your respective ages of 36 and 51. I accept that you both became involved in this offending as a way to earn extra money, in your case Pham Anh Vu because your business was going through difficulty and you had young children to support; and in your case Hai Ho Vu because you had lost your employment in the printing industry and were struggling to find work.
I also accept that this offending is out of character. Further, both of you have had no involvement at all in the criminal justice system and have ongoing support in the community. As such, in all the circumstances I assess your prospects of rehabilitation as excellent.
However, the offence that you have pleaded guilty to remains a serious offence. As noted, cultivation of cannabis in a commercial quantity carries a maximum penalty of 25 years imprisonment. People who organise sophisticated hydroponic cannabis houses recruit others in order for the operation to be successful. You both willingly engaged in that process knowing that it was illegal. In this instance general deterrence carries significant weight together with just punishment and denunciation of your conduct. However in relation to both of you, given the matters I have already outlined in relation to your prospects of rehabilitation, in my view specific deterrence carries little weight in the sentencing equation.
As to your respective roles, on the one hand you Hai Ho Vu are charged over a one month period while you, Pham Anh Vu are charged over a three month period. That said, on the evidence, including the admissions made by you Hai Ho Vu, it would appear that you had a significant hands on involvement in looking after the crop. In all the circumstances, including consideration of matters personal to each of you, I am unable to distinguish you one from the other in terms of role or place you in any form of hierarchy.
Sentence
Would you both please stand.
Pham Anh Vu and Hai Ho Vu, on the charge of cultivation of a narcotic plant in not less than a commercial quantity, you are each convicted and sentenced to 2 years imprisonment.
I direct that you serve a period of 12 months imprisonment before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 220 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 3 years with a non-parole period of 2 years and 3 months.
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