Director of Public Prosecutions v Vu, Hung Viet
[2013] VCC 12
•25 January 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
Case No. CR-12-00126
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUNG VIET VU |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2013 | |
DATE OF SENTENCE: | 25 January 2013 | |
CASE MAY BE CITED AS: | DPP v Vu, Hung Viet | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 12 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - Sentence – pleas of guilty to trafficking cannabis in a commercial quantity – 56 kgs cultivated and sold over 2 years – theft of electricity associated with sophisticated hydroponic cannabis crops - 34 year old first time offender with gambling addiction – significant admissions made to police upon which the trafficking charge was based - serious offending – TES 3 years imprisonment with minimum of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms C Lee (plea) Ms D Tang (sentence) | Office of Public Prosecutions |
| For the Offender | Mr A Jackson | Haines & Polites |
HIS HONOUR:
1 Hung Viet Vu, you have pleaded guilty to trafficking cannabis in not less than a commercial quantity, the maximum penalty is 25 years’ imprisonment (charge 1), and theft, the maximum being 10 years’ imprisonment, (charge 2).
Circumstances of offending
2 The circumstances of your offending are set out in an agreed prosecution summary read out in court. A brief outline will suffice.
3 On 28 February 2011, police discovered a hydroponic cannabis crop at premises you owned at Keysborough, occupied by your sister. You were living with your wife and children in a comfortable house in Springvale and conducting your own lawn mowing business.
4 The crop was growing in three rooms in a detached double garage which had been converted for that purpose. It was a sophisticated environment involving the use of reflective shrouds, high wattage globes, multiple transformers, electrical timers, water pumps, exhaust fans, pH meters, growth chemicals and media, fertilisers and supplements. In all, police located a total of 188 cannabis plants ranging in height between 7 and 85 centimetres and four to twelve weeks’ maturity post the nursery phase. The total weight of the plants was approximately 24 kilograms.
5 Two of the grow rooms contained 48 plants which were slightly bushy females close to maturity. These plants would have returned an air-dried weight of approximately 4.3 kilograms, which would have sold for about $28,000−$37,000 based on retail street values current at the time of seizure. Police also found 85.6 grams of dried female flowering heads.
6 An illegal electrical by-pass diverting power around the meter box had been installed in the roof cavity. Between 28 February 2009 and 28 February 2011, the electricity stolen amounted to $31,399.58.
7 Following the raid, you were arrested and interviewed. You said you had been living at the drug premises from 2005 until February 2009. You purchased the property in June 2009. Your sister was a student who had moved into the house in about November 2010. You said she knew nothing about the cultivation of the cannabis and she confirmed this to police. She told them you visited regularly and went into the garage, having told her that you kept your lawn mowing equipment there.
8 Of significance, you told police that you set up the hydroponic scheme in February 2009 for about $10,000 and had cultivated 11 or 12 crops over the next two years, each of 40−44 cannabis plants. You were cultivating “rolling crops” which were at different stages of maturity. You said you went to water the plants almost every day and each crop was harvested after about three months of cultivation. You were paid cash of $15,000−$25,000 per harvest by a couple of people who picked up the cannabis. Later, you said you sold 7−8 pounds for $15,000 every six weeks and that you had made about $8,000 a month over the two years. You said the by-pass was set up by a Vietnamese black market electrician which had cost $1,000. You conceded that this amounted to theft.
9 Police located an exhaust fan at your home address which you said was due to be substituted for another one used in the garage. Police also found a large amount of cash in your car which is the subject of an agreed forfeiture order.
10 The parties agree that the Giretti trafficking charge is made out by you conducting a business of growing and selling approximately 56 kilograms of cannabis over the relevant two year period. This figure comprises approximately 52 kilograms based on your estimate of selling 7−8 pounds every six weeks at $15,000 per sale for a gross profit of about $245,000. To that must be added about 4.37 kilograms represented by the 48 female plants close to maturity and the flowering heads all of which were possessed by you for sale.[1]
[1]The prosecution did not rely upon the balance of 140 plants for trafficking purposes as they were of low maturity and weight, although the total number of plants found (188) constituted a commercial quantity for cultivation purposes.
11 Finally, you told police that you gambled away most of the profit you made on the crops other than an amount of $1,000−$2,000 which you sent back to Vietnam each month for the care of your ill mother.
Legal process
12 You were charged with offences of cultivating a commercial quantity of cannabis in relation to the seized crop and theft and also cultivating two other cannabis crops found at two other properties. But you were not charged with trafficking, which was surprising given your admissions to police. You were held in custody for four days before release on bail.
13 You conducted a contested committal in February 2012 which included close questioning of the informant as to your admissions. You were sent for trial and indicated in defence responses you would plead guilty in respect of the matters arising from the investigation into the property at Keysborough, but otherwise contested your complicity in respect of the other crops. Shortly before your trial was due to commence on 26 November last year, you negotiated a settlement with the prosecution and agreed to plead guilty to the present matters. Your pleas were entered on 9 November last year. The trial had an estimate of five to seven days.
14 At the conclusion of your plea last Tuesday, I revoked bail and there is seven days pre-sentence detention up to, but not including, today.
Background and personal circumstances
15 I will turn to your background and personal circumstances, which are amplified in a psychological report of Jeffrey Cummins, dated 29 November 2012. You are now thirty four and have no criminal history alleged against you. You were born in South Vietnam and came to Australia on a student visa in 2001 when you were twenty three, after completing two years of tertiary education in Vietnam. Having arrived in Australia, you completed a six month English course and thereafter have been fully and productively employed as a baker’s assistant, a sander and spray painter. In 2009 you established your own lawn mowing business, which you operated for two years before returning to spray painting. You are now a citizen of this country. Your parents live in Vietnam and have twice visited Australia so that your mother could receive medical attention for blood cancer. You have a younger brother in Vietnam, with whom you have little contact, and two sisters in Melbourne with whom you are reasonably close. None of your family has been in trouble with the law.
16 You married in 2001 and have two children, a seven year old girl and a six year old boy. Your wife is an educated office worker who has not been in any trouble with police. You had problems in the marriage in 2010 and it finally broke down after your arrest. You wife was angry with you because of your involvement with drugs. It is unlikely there will be reconciliation, although you have maintained a good friendship and have regular contact with your children. Indeed, your ex-wife supported you in court at your plea hearing and sentence, along with one of your sisters and an aunty. You are hopeful that you will continue to see your children whilst you are in custody.
17 Since 2001 you have suffered from and been treated for psoriasis, described in a report received from a homeopath, dated 9 November 2012, as a skin condition characterised by chronic, recurrent exacerbations and remissions that are emotionally and physically debilitating. The condition is made worse by exposure to excessive emotional stress, as well as by other environmental and medical factors. Your condition fluctuated during the two year trafficking period, which can be assumed to have created some emotional stress for you, but it did not deter you from offending. The practitioner states that: “Based on the treatment protocols employed by this clinic, Mr Vu’s condition improved substantially and has been largely well-maintained. … From our experience most of our patients experience good results with our treatment provided they adhere to the treatment protocol. The prognosis is normally good.”
18 The psychologist noted widespread skin lesions when he saw you in November 2012. He described you as suffering from a “very severe psoriasis condition” associated with anxiety and depression, and occasional suicidal thinking. He expressed the opinion that the condition will make your time in custody more onerous than for someone who does not have this or a similar medical condition. He said that while you were obligated to apply daily ointment, you had become so depressed about the situation that you failed to adhere to this regime because you felt all the ointment did was to slow down the progression of the condition. You told Mr Cummins that the stress of your legal situation had been probably causing further problems in this regard.
19 You have been an addicted gambler since about mid 2008 when this social activity became problematic for you. You chased your losses and ultimately owed unspecified but substantial sums to lenders and loan sharks whom you met at Crown Casino. You were anxious to repay these loans and obtain more money for gambling and, in this context, became involved, apparently with the assistance of others in setting up the hydroponic enterprise, and your consequential cultivating and trafficking activity. You refrained from identifying any co-offenders to police because you claim you were frightened to do so.
Mitigating circumstances
20 There are a number of mitigating circumstances relied upon by your counsel, which I accept. You come from a good family background and generally have done well in your life. You are of normal, average intelligence and achieved well academically before you came to Australia as an adult. Since that time, you have grappled well with the undoubted challenge of being an immigrant in a new and strange land. You have mastered English reasonably well, established a meaningful and loving relationship and, I infer, been a good father to your two children, and been in full and productive employment. You have continuing family supports.
21 You are to be treated as a mature first time offender. Certainly, you have never been convicted of drug offences. Nothing is pending. You have never been to prison before. Although you have had some alcohol issues and volunteered the fact that you had been involved in a couple of drink/driving incidents, you have been only an occasional and infrequent smoker of cannabis and do not present with any drug problems.
22 Contrary to the prosecution submission, I accept the unchallenged diagnosis of the psychologist that you were and are suffering from a condition of Pathological Gambling. [2] This was described by Mr Cummins, an experienced expert in this regard, as a way of escaping feelings of depression and helplessness. You acknowledge your addiction to gambling played a role in your offending and jeopardised your marriage, during which time you frequently lied to your wife about it.
[2]The prosecution did not call for Mr Cummins to be cross-examined.
23 Although your counsel made clear he did not make a Verdins submission concerning your addiction to gambling, I accept that this addiction provides the context and an explanation for your offending conduct. You wanted to profit from your criminality so you could continue to gamble and incidentally provide some money to help your mother’s medical predicament. However, it is of concern that you have never sought any treatment for this serious problem and that you have continued to gamble whilst on bail. You would be an obvious candidate to undertake a gambling prevention program in prison.
24 Particular reliance was placed by your counsel on the significance of your pleas of guilty. Your pleas have had a utilitarian effect in that they have saved time, cost and inconvenience to the prosecution and the community. You have thereby served the interests of justice which warrants a significant discount in penalty alone. But I am also satisfied that your pleas are associated with regret and remorse for what you have done. Your plea is all the more significant because the trafficking charge is wholly dependent upon the substantial admissions made by you to police as to your trafficking activity, which was unknown to them. But for your admissions, no charge of trafficking could have been laid against you. Police could only have relied upon evidence of the crop found by them and the parties accept that, absent your admissions as to the crop, evidence of your complicity in that venture was not strong and you would have had an arguable case to plead not guilty to a charge of cultivating a commercial quantity of the drug. Your voluntary disclosures of guilt are therefore very significant, very much to your favour and warrant substantial discount of penalty.[3]
[3]R v Miloshevich (VSCA, No. 350 of 2006) (Unreported) 23 February 2007, Maxwell P.
25 However, as I explained during the plea hearing, I do not accept defence counsel’s initial submission that you entered an early plea of guilty because, the trafficking charge was not laid against you until shortly before trial as part of the settlement negotiation. Up until that time, there was no trafficking charge to plead guilty to, you conducted a contested committal and there was no suggestion in the defence responses that you would be willing to plead guilty to a trafficking count based on your admissions. Ultimately, counsel conceded that the emphasis should be placed on the significance of the admissions, as I have explained them, rather than the stage at which you entered your plea to the trafficking charge.
26 As to your skin condition, I do not accept there is sufficient evidence of a qualified expert opinion to conclude the condition would make your time in custody more difficult in the way suggested by the psychologist. No evidence was called from your treating practitioner to support this. The parties agree Mr Cummins is not an expert in this area. Particularly, I note that there is no suggestion from the experienced practitioner who supplied the report that your condition should be described as severe or that it would be exacerbated whilst in prison or make prison more burdensome for you. Indeed, to the contrary, the author said that your condition was well maintained and had a good prognosis if the treatment regime is maintained by you. Although the psychologist stated that, as a result of your skin condition, you had “most probably” developed a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, given the guarded nature of this statement; your counsel sensibly did not rely on this opinion for any relevant purposes. However, I do accept that this is an unpleasant, troublesome condition, one which causes you anxiety and discomfort, and I have taken that matter generally into account in your favour. I am satisfied the condition can be appropriately managed whilst you are in custody.
27 Finally, I accept your counsel’s submission that, in all the circumstances, you have good prospects of rehabilitation, so long as you seek and positively respond to appropriate treatment for your gambling addiction.
Other sentencing considerations
28 There are, of course, other important sentencing considerations. I must have regard to the maximum sentences which provide a guide to the seriousness with which a particular offence should be viewed. By far the most serious is the trafficking offence with its maximum of 25 years’ imprisonment.
29 The sentencing regime is quantity based.[4] Here, you trafficked approximately 56 kilograms, which is well over the commercial threshold of 25 kilograms. You did so repeatedly and with determination over a very lengthy period of two years. There were 11 or 12 harvests, each of a sizable amount of the drug for which you received substantial payments. You are not to be punished for the cultivation of the drug but, obviously, the cultivation of crops of this kind by you had the essential commercial purpose of ultimately placing the drug deeply into the community.[5] The Court of Appeal has said that “…Drugs of dependence represent a significant social evil: they damage lives, families and society as a whole”.[6] In another case, the Court noted the great harm which cannabis grown by modern methods can inflict upon our society and indicated generally the offence of cultivation in a commercial quantity will merit substantial punishment.[7] The same may be said as to the punishment to be expected for trafficking in commercial quantities of cannabis.[8]
[4]Pidoto (2006) 14 VR 269.
[5]CF. R v Wong [2007] VSCA 278, [21], per Buchanan JA.
[6]DPP v McInnes [2009] VSCA 144, [34], per the Court (Maxwell P, Buchanan and Ashley JJA).
[7]DPP v Duong [2006] VSCA 78, [13], per Buchanan JA, cited with approval in Nguyen v R [2010] VSCA 127, [30], per Maxwell P.
[8]See for example, R v D’Aloia [2006] VSCA 237 at [56] per Nettle JA and R v Ahmed [2007] VSCA 270 at [26] per Buchanan JA; and R v Berisha, Elmazovski and Rizmani [1999] VSCA 112 at [32] per Charles JA, [39] per Tadgell JA.
30 Your counsel stated that you had committed a very serious example of the offence of trafficking in a commercial quantity of cannabis for which there should be imposed an immediate term of imprisonment. I agree.
31 Whilst the theft of electricity often accompanies cultivation of such a crop as you had, this is a separate act of criminality which adds to the sophistication and effort of the scheme, whilst avoiding cost and suspicion. The parties agree there should be some cumulation in sentence for this charge.
32 In fixing sentence, I must also have regard to the principles of totality and proportionality and avoid the imposition of a crushing sentence upon you. But even allowing for the mitigating factors and the importance of your rehabilitation, the principles of general deterrence, denunciation, protection of the community and just punishment apply here with force. I have no doubt you went into this exercise with your eyes wide open and you, and, for that matter, any like minded others, need to understand that involvement with this insidious drug in such a way will lead to the imposition of serious sentences.
33 The prosecution submitted that the appropriate range of penalty was a total effective sentence of two to three years’ imprisonment with a minimum of 12 months to 18 months’ imprisonment. Your counsel noted that the current sentencing practice for this offence in recent years involved a broad range of sentence from one year to nine years’ imprisonment with a median of three and a half years’ imprisonment.[9] However, he agreed with me that, ultimately, every case must turn on its own facts and circumstances.
[9]Sentencing Advisory Council, Sentencing Snapshot No 130, August 2012, “Trafficking in a commercial quantity of drugs” (2006/07 – 20010/11).
34 Significantly, and not surprisingly, defence counsel did not submit that the prosecution submission as to range was inappropriate. I consider the submission an extremely generous one, having regard to the continuing nature of your trafficking conduct, the lengthy period of time over which it occurred and the significant maximum provided. However, the prosecution speaks on behalf of the community in this regard and, after anxious consideration, I have decided not to impose a sentence beyond that range.
35 On behalf of the community, I strongly denounce your offending.
Sentence
36 Mr Vu, please stand up. You will be convicted and sentenced as follows. On charge 1, to two years and nine months’ imprisonment. On charge 2, to nine months’ imprisonment. The sentence on charge 1 is the base sentence. I order that three months of the sentence on charge 2 be served cumulatively upon charge 1.
37 The total effective sentence is three years’ imprisonment. I order that you serve a period of 18 months’ imprisonment before which you shall not be eligible for release on parole.
38 I declare that seven days’ pre-sentence detention be reckoned as already served on that sentence and that that declaration be entered in the records of the Court.
39 But for your pleas of guilty, the sentence would have been four years’ imprisonment with a minimum of two and a half years’ imprisonment.
40 Under charge 1, I will make an agreed order for the retention of the forensic sample which has been already taken from you, given the seriousness of the offence; that the order is by consent; and the granting of the order is in the public interest. Accordingly, I order pursuant to s464T(3) of the Crimes Act 1958, that the forensic sample and any related material and information already obtained pursuant to the informed consent given by you to police be retained for placement on the relevant database.
41 I will also make the agreed compensation order. I order that you pay to Country Energy, PO Box 718, Queanbeyan, New South Wales, compensation in the sum of $31,399.58.
42 I also make the agreed forfeiture and disposal orders. Just sit down for the moment please.
43 I hand down those signed orders, thanks. I ask counsel, are there any mechanical difficulties with the sentences or orders which I have imposed?
44 COUNSEL: No, Your Honour.
45 HIS HONOUR: Mr Vu, you need to go with the prison officers now. Thank you. Please remove the offender.
46 [Offender removed]
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