DPP v Vu
[2020] VCC 775
•4 June 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-19-02483
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SON VU |
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| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 June 2020 |
| DATE OF SENTENCE: | 4 June 2020 |
| CASE MAY BE CITED AS: | DPP v Vu |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 775 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: sentence, guilty plea, cultivating a narcotic plant in not less than a commercial quantity, no priors, general deterrence
Legislation Cited: s6AAA Sentencing Act; s3 of the Sentencing Act; s.5(2H) of the Sentencing Act; s18 of the Sentencing Act
Cases Cited:Dang v The Queen [2020] VSCA 24; Nguyen v The Queen [2017] VSCA 286
Sentence:2 years and 4 months imprisonment with non-parole period of 1 year and 4 months imprisonment.
S6AAA declaration: 3 years and 8 months imprisonment with non-parole period of 2 years and 6 months' imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Edwards | Office of Public Prosecutions |
| For the Accused | Mr Howard | Victoria Legal Aid |
HIS HONOUR:
1Son Dinh Vu, you have pleaded to one charge of cultivating a narcotic plant in not less than a commercial quantity. The maximum penalty for this offence is 25 years' imprisonment.
2You were born on 9 November 1985 and you were therefore aged 33 at the time of the offences. You are now aged 34. The facts of this matter are set out in the prosecution opening, which was tendered on the plea and marked as Exhibit 1. I will summarise those facts briefly.
Facts
3The offences occurred at 2 Heath Avenue, Oakleigh. The property at that location is a residential house consisting of four bedrooms, a bathroom, a kitchen, a laundry, a study and two other rooms. This property had been leased to a person by the name of Pham Minh in July 2018.
4On 27 September 2019 at 9.30 am police arrived at the property to execute a search warrant. They knocked at the front door, but no one answered. Police then approached the side door of the house. They could hear movement from inside, but no response was forthcoming. At approximately 9.35am police forcefully opened the side door, gaining access to the laundry. They found you inside. You put your hands on your head. You were placed in handcuffs and you told police 'No English' when they asked you questions.
5It was immediately apparent to police that some of the rooms inside the property were being used for a hydroponic cannabis operation. They saw power cables, transformers, heat globes, cannabis plants and garbage bags of dried cannabis. You were arrested and taken to Oakleigh police station while police further examined the property. An electrician attended and discovered an illegal electricity bypass in the roof cavity. The police gave some of the rooms in the property designated numbers.
6Police conducted a search of the property and seized the following items: (a) 42 semi-mature cannabis plants weighing 4.5 kilograms from room 10;
(b) 67 juvenile cannabis plants weighing 1.03 kilograms from room 10; (c) one black garbage bag containing dried cannabis weighing 888 grams from the hallway; (d) a quantity of dried cannabis weighing 5.58 kilograms from a room marked by the police as room 1; (e) a set of scales from a room designated as room 2.7A total of 109 plants were seized from the property. The combined weight of the cannabis plants and dried cannabis was 11.998 kilograms.
8You were interviewed at 11.47am that morning with a Vietnamese interpreter. You made full and frank admissions to cultivating cannabis at the property. You said you had been hired by another person to look after the cannabis plants and clean the house. You said you had been working at the property for more than a month. You said that when you first went to the house the system had already been established and you just needed to 'switch on' and look after the plants. You said you were instructed what to do with the lights. You said the plants were not healthy when you arrived.
9You said you were responsible for connecting wires from the electricity source to the light bulbs in the cannabis growing rooms. You mixed and pumped fertiliser for the plants. You watered the plants. You transferred seedlings into larger pots when necessary. You were responsible for ensuring electricity in each room was turned on and then turned off at specific times during the day. You said you had commenced harvesting the plants the day before the search warrant was executed. To do this you had moved some of the plants into a different room.
Guilty plea
10Regarding your guilty plea, you were charged on the day of your arrest and remanded in custody. The matter resolved at the first committal case conference on 10 December 2019. You had earlier indicated your intention to plead guilty at a time between the filing hearing and the first committal case conference. I regard your plea as being at the earliest available opportunity. I give you full credit for the utilitarian value of your plea, heightened by the current suspension of jury trials in this state.
11I accept your guilty plea demonstrates a willingness to facilitate the course of justice and indicates remorse and that you accept responsibility for your offending. I agree with the submission of Mr Howard that the evidence of your role in the offending largely derives from the admissions you made on the record of interview.
Gravity of offence
12I turn to the gravity of your offending. Cultivating a commercial quantity of cannabis is a serious offence, as reflected in the maximum penalty of 25 years. It is a category 2 offence pursuant to s.3 of the Sentencing Act and therefore, pursuant to s.5(2H) of that Act the court must impose a sentence of imprisonment other than a combined sentence of imprisonment and a community correction order under s.44 unless one of the exceptions in s.5(2H)(a) to (e) of the Act applies. It was not argued by your counsel Mr Howard that any of the exceptions apply in your case. An immediate custodial sentence with a non-parole period is conceded.
13In the case of Dang v The Queen [2020] VSCA 24, the Court of Appeal commented on sentencing in commercial cultivation cases as follows:
'In drug offences generally, including the cultivation of cannabis, the quantity of drugs and the role of the offender are important indicia of the gravity of the offending. The quantity of drugs is reflected in the statutory scheme and will also reflect the dimensions of the enterprise and, in a general sense, the scale of profit that the enterprise may be expected to generate'[1].
[1]Dang v The Queen [2020] VSCA 24, at pa [15] to [17]
14The court continued:
'It is not uncommon to deploy hydroponic systems for the cultivation of cannabis and to utilise entire premises for the purpose. This inevitably requires someone to be present to look after the crop and to secure the premises. Such "crop sitters" may be paid for their time and have no other organisational or financial interest in the operation. Their culpability, other things being equal, is properly seen as less than a person who financed, organised or who stands to benefit more substantially from the illicit activity'.
15The court then referred to the decision of Nguyen v The Queen [2017] VSCA 286 and quoted the following passages with approval. The court said this in Nguyen:
'It is important that any label that is attached to the offender's role should not obscure, or distract attention from, the various factors that are relevant to a proper assessment of the gravity of the offending in a particular case. Those factors ordinarily include matters such as the tasks performed by the offender in the enterprise, the nature of his relationship with the principals or leaders of the enterprise, the degree of trust and responsibility reposed in the offender, the size, scope and sophistication of the enterprise, and any expectation of the offender in respect of the rewards to be derived from the enterprise'.
16The court went on to say:
'The focus when sentencing an offender must remain on what the offender has done in relation to the cultivation that forms the subject matter of the charge rather than the label to be applied'.
17The charge here is framed as occurring over the month prior to your arrest. This is in accordance with your admissions that it was over that period that you had been cultivating cannabis at the property. It is not suggested by the prosecution that you were an organiser of this crop and it is submitted by Mr Howard that you were not. I accept this. This property was leased by another person. You did not establish the hydroponic system inside the house. There is no evidence you installed the electrical bypass. You are not charged with theft of electricity. You did not live at the premises.
18You were hired to look after the crop. You had significant responsibilities which you have admitted. You were responsible for all of the things required for the success of the crop including the insulation of wiring for the hydroponic lamps. You were harvesting the plants when you were arrested.
19You indicated in your record of interview that you were to be paid between $2,000 and $3,000 for your role in this offending. As I said to Mr Howard during the course of the plea, this seems a relatively small amount for involvement over a month in this serious and risky criminal offending.
20Given the sophisticated nature of this operation and your trusted role in return for payment, your moral culpability for the offending, while obviously much lower than an organiser, is significant enough. Without people such as yourself being willing to take on the role of tending to the crop, those who organise such cultivations could not remain at arm's length and avoid detection and prosecution. They can engage in this unlawful and profitable activity relatively risk-free.
21Sentencing for cultivation offences is quantum based, so I take into account that the number of plants was only nine more than the 100-plant threshold for a commercial quantity and that the total weight of the cannabis seized was considerably below the 25-kilogram weight threshold.
22In his submissions on the plea, Mr Howard has acknowledged the sophistication of the hydronic set-up in this case and all the things you did intended to bring these plants to maturity. He characterised your role as sitting slightly above that of a typical crop sitter. The prosecutor Ms Edwards assessed your role in the same terms. In my view this is an accurate assessment of your involvement. I also agree broadly with the submission that the offending in this case is towards the lower end of the scale of objective serious for cultivation of a commercial quantity of a cannabis. It is nonetheless serious offending.
Personal circumstances
23I turn to your personal circumstances. Your mother and father, who are now in their 60s, live in Vietnam. You have two sisters. You are a Vietnamese national and you were in Australia lawfully on a bridging visa at the time of these offences. You were married in 2010. You have a son who was born in 2014. You separated from your wife that same year. Your wife is currently in prison in Vietnam for offending related to gambling.
24In Vietnam you finished the equivalent of Year 12 and then went on to obtain the equivalent of a TAFE qualification studying shipping and skippering. You obtained your qualification in 2008. You were then employed by Dai Dont, a shipping company, as a seafarer on a Chicago ship in Vietnam. When you were working on a ship out at sea your appendix burst and you had to be taken to the nearest hospital, which was in Malaysia. The company refused to pay your health insurance and you resigned. You worked in labouring jobs until 2015 and then as a truck driver until 2018.
25You arrived in Australia on 25 May 2018 on a tourist visa. You now want to go back to Vietnam to be with your son and your family. You understand that you will be deported at the end of the sentence that I impose. In this case I do not regard the risk of deportation as a sentencing factor of any real significance given that your stay in Australia has been short and your desire is to return to Vietnam.
26You do not speak English well and, although you can communicate effectively with other Vietnamese prisoners, your deficiencies in English make communication with other prisoners, prison guards and staff difficult. I accept that this has increased the burden of your imprisonment. You are isolated in a foreign prison where your family cannot visit you.
COVID-19
27You are not in a vulnerable class of persons in relation to the COVID-19 virus. As I understand it you were not receiving visits, therefore that aspect of the suspension of prison visits has not affected you; however, you have not been able to attend English language and information technology classes, which have been suspended in response to the virus. Additionally, your parents in Vietnam have suffered a reduced income as a result of the virus, which has caused you anxiety. I have taken these matters into account as increasing the burden of your imprisonment.
Sentencing principles
28Mr Howard conceded that general deterrence, which is the need for my sentence to deter other people who might be minded offending in the same way as you, is an important sentencing consideration in a case such as this. He submitted that because you have no criminal history, no history of substance abuse and no gambling problems, you have good prospects of rehabilitation and the need for specific deterrence - that is the need to deter you - is reduced. Mr Howard accepted in his submissions that the gravity of your offending dictates that only a period of imprisonment involving a head sentence and a minimum non-parole period is appropriate. I agree that your prospects of rehabilitation are good, and I do not regard specific deterrence as of any great importance in your case.
29In mitigation I have taken into account your early plea of guilty, the substantial admissions you made, which provided the evidence of your role in the offending, the burden of your imprisonment, your non-organisational role in this cultivation, that the quantity of cannabis involved was not far above the commercial threshold and your positive prospects of rehabilitation. I have balanced the mitigating factors in your favour against the gravity of your offending and the need for my sentence to reflect general deterrence, denunciation and just punishment.
Sentence
30The sentence that I impose is as follows: on the charge of cultivation of cannabis in a commercial quantity I sentence you to be imprisoned for a period of 28 months. I fix a non-parole period of 16 months.
31Pursuant to s.18 of the Sentencing Act I declare pre-sentence detention of 251 days. This period will be deducted from the sentence that I have imposed. This will be entered into the records of the court.
32Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty I would have imposed a sentence of three years and eight months' imprisonment with a non-parole period of two years and six months' imprisonment. I will make the disposal order, pursuant to the Confiscation Act for the cannabis and the scales, as applied for by prosecution.
33Are there any other matters, Mr Howard?
34MR HOWARD: No, Your Honour.
35HIS HONOUR: Ms Edwards, any other matters?
36MS EDWARDS: No, Your Honour.
37HIS HONOUR: All right. I will adjourn the court. Thank you both for your assistance and in particular the quality of the submissions in this case. Thank you.
38COUNSEL: As Your Honour pleases.
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