R v Vu

[2024] NSWDC 655

District Court

New South Wales

Medium Neutral Citation:

R v Vu [2024] NSWDC 655

Hearing dates:

8 November 2024

Decision date:

08 November 2024

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

Special circumstances found – youth, first substantial period in custody, isolation from family in Vietnam.

Sentenced to a term of imprisonment of 4 years comprising a non-parole period of 2 years commencing on 29 July 2023 and expiring on 28 July 2025, and a balance of term of 2 years commencing on 29 July 2025 and expiring on 28 July 2027.

Catchwords:

CRIMINAL – Sentence – after judge-alone trial - knowingly take part in the cultivation of not less than 1,000 cannabis plants – large commercial quantity – role of offender – remorse and contrition – subjective matters

Legislation Cited:

Drugs Misuse and Trafficking Act 1985

Category:

Sentence

Parties:

Rex
Vu, Duc

Representation:

Counsel:
Crown: Mr M Coates ODPP
Defence: Mr D Smith
Solicitors:
Crown: Ms E Lyte ODPP
Defence: Mr O Sada Elysium Law Firm Pty Ltd

File Number(s):

2023/00102868

JUDGMENT

1. HIS HONOUR: Duc Vu appears for sentence in respect of a single offence, being an offence of knowingly take part in the cultivation of not less than 1,000 cannabis plants, being a large commercial quantity, between 1 February 2021 and 21 September 2021 at Turners Flat, contrary to s 23(2)(a) of the Drugs Misuse and Trafficking Act. The maximum penalty provided for this offence is 20 years’ imprisonment and/or a 5,000 penalty unit fine. There is also an applicable standard non-parole period of ten years.

2. The maximum penalty and the standard non-parole period are relevant guidelines for sentence in respect of this matter, particularly as it proceeded by way of trial commencing on 4 September 2024, judge alone, the verdict being delivered on 10 September 2024. I adopt as part of my reasons on sentence my decision returning the verdict of guilty on 10 September 2024, and those reasons will be attached to these reasons.

3. At the time of the offending, the offender was approximately 23 years of age, and he is now approximately 26 years of age. He was arrested on 29 March 2023 when he was in custody in relation to another matter, which was knowingly taking part in the cultivation of a commercial quantity of cannabis plants by enhanced indoor means, committed on 12 May 2022 at Rosehill, in respect of which, to avoid having to mention it later, he was sentenced on 30 May 2023 at the Parramatta District Court to two years, six months’ imprisonment commencing on 19 May 2022 and concluding on 18 November 2024, with a non-parole period of 18 months concluding on 18 November 2023.

4. That indicates that for a portion of the indictment charge period the accused was the subject of a Community Correction Order of 13 months imposed on 22 June 2020 and expiring on 21 July 2021, however, in my view, that is not relevant to the current sentencing procedure. The period of the charge was between February 2021 and 21 September 2021, and during that period it is impossible to say from the evidence when the offender was in attendance at the relevant premises at Turners Flat, except that in my view it is clear from the evidence that he was at least in attendance there towards the end of that period.

I notice now as I turn through my material there is a Sentencing Assessment Report which I’m not sure that either of you have seen.

COATES: No, your Honour.

HIS HONOUR: I’m sorry. There is a Sentencing Assessment Report dated 30 October 2024. That will now be provided to each of you and if you wish to make any further comment, I’ll take those comments now.

COATES: Thank you, your Honour.

HIS HONOUR: I’ll note just while you are waiting for that to come to you that in relation to remorse and contrition there is a particular entry in the report which is helpful to your client. Although it was a defended trial, he has referred to, under “Insight into Impact of Offending”, having accepted full responsibility for his offending.

SMITH: Yes, your Honour.

HIS HONOUR: And that, “he stated he was fully aware of his actions at the time of his offending and made choices for his benefit only.” It continues:

“…Since entering custody, Mr Vu expressed he had reflected on his behaviours and acknowledged the potential implications of his offending on others.”

COATES: I think there were similar comments made in relation to the psychological report as well about reflection on--

HIS HONOUR: Yes. I don’t necessarily put a lot of weight on psychological reports prepared for payment on behalf of the offender.

COATES: Yes, but it’s just consistency with what has now been put in this.

HIS HONOUR: Yes. I accept that. I’m sorry. We can’t progress with this until counsel have a copy of that report. Yes.

SMITH: I thank your Honour for that opportunity. I’ve now had the chance to read that Sentencing Assessment Report, which I imagine my friend will seek to rely on. I wasn’t aware of it.

HIS HONOUR: No. Sorry about that. It came in recently and I assumed had been provided.

SMITH: As your Honour has noted, certainly in that report there’s a demonstration of remorse, albeit after trial. It otherwise paints him as a low risk of reoffending, and in my submission is very consistent with the psychological report in terms of his attitudes when he arrived in the country and his subjective case and so forth, and in my submission, it adds weight to the psychological material, it coming from another source.

HIS HONOUR: Mr Crown.

COATES: Yes, your Honour. I should tender the Sentence Assessment Report. I think that would be an exhibit.

HIS HONOUR: Yes. I’ll make a copy of it part of Exhibit 1.

Exhibit #1 supplemented by addition of Sentencing Assessment Report tendered, admitted without objection

COATES: Thank you, your Honour. The only part I wish to draw to your Honour’s attention is in relation to attitude on p 2, “Mr Vu stated his offending was his way of gaining financial independence from his parents.”

HIS HONOUR: What paragraph is that?

COATES: It’s p 2, “Factors Relating to Offending”. It’s the second subheading, “Attitudes”, first dot point and about point 2 of the page. The reason I raise that is in relation to what we had discussed earlier in relation to the mental health aspect and the correlation.

HIS HONOUR: Thank you. I’ll just return to where I was.

5. From the evidence at trial, there is no way of determining when the offender was there. There was no identification evidence of him attending at any time. The inferences as to his attendance at the premises was drawn from various fingerprints found in various of the grow tents and/or the residence on the premises, and particular items found in those tents or premises.

6. In my view, it is reasonable to at least assume that he was there towards the end of the period of the charge due to the fact that his DNA was recovered from three separate pillows in the residence on three separate mattresses pushed together, also from a set of earbuds located on the arm of a lounge chair in the sitting area and from the base of a plate sitting on the table in that area, together with other plates containing uneaten food. As referred to in my reasons for finding him guilty, it was consistent with him having been there at least up until a recent point in time before the fire and the departure of four persons of Asian appearance. He cannot specifically be identified as being one of those four persons, but at least it seems that he was there for some period at least towards the end of the charged period.

7. As to what conduct or role he played in the operation, it is impossible to say on the evidence, other than that he was to some undeterminable extent knowingly concerned in the cultivation, particularly in circumstances where he had previously been involved at Canowindra in an attempt to set up an enhanced indoor cannabis-growing of plants being less than a commercial quantity.

8. The setup at Turners Flat was a significant one. There were some 15 grow houses or tents, most of those being of a very large size: tents one to 11 and 14 being 20 metres wide by 61 metres to 69 metres in length; tent 12 was 10 metres wide by 37 metres long; tent 13 was 10 metres wide by 12 metres long; tent 15 was 10 metres wide by 15 metres long. Tent 15 was used for storage of equipment and rubbish. Tent 13 had been apparently set up for the growing of cuttings, no doubt with the expectation that they would eventually find their way into pots containing coco coir mulch and into one or other of the grow tents.

9. There was a total of 3,291 plants located, distributed amongst some only of the grow tents. While there were also a number of cuttings, they do not classify as plants because they did not have roots, and the figure of 3,291 plants is just those that were in fact growing plants ranging in size from 5 centimetres to 75 centimetres, and in several of the tents distributed in different groups within the tent by way of size, indicating cultivation at a particular time of groups of plants of consistent sizing within each group.

10. There can be no doubt on the facts that a number of tents were being prepared for the future introduction of further plants as part of a growing production line. The grow tents in which the plants were growing were fitted with artificial lighting and irrigation systems. There was an ample supply of coco peat in bags, plastic pots and plastic piping to at least in part fit out the currently unused grow tents. It was a cultivation of a significant size with the potential to expand significantly, and as far as a large commercial quantity, it had the potential to expand well beyond what was already there, but as I have said, the offender’s role in what was there and any anticipated role in what might come is unclear and cannot be determined.

11. Nonetheless, his participation for whatever period and in whatever way was in relation to a major cultivation of cannabis plants, even if only limited to what was there at the time that the property was discovered and searched. It cannot in any way be said that he was in control or was supervising others or whether he was in fact being supervised by anyone else. However, his participation in what was happening at the time of its detection must be regarded as participating in a serious offence of the type represented by the particular section under which he was charged.

12. As to subjective matters, before the Court is a Sentence Assessment Report under the hand of Charmaine Mason dated 30 October 2024, a psychological report under the hand of Mr Albassit, psychologist, dated 3 November 2024, as well as the offender’s criminal history. Subjective matters are drawn from that material.

13. The offender is a Vietnamese citizen who arrived in Australia in 2017 on a student visa. His visa is no longer valid, and he is now an unlawful citizen. He is isolated from his family, who continue to reside in Vietnam. He is one of two children. He has two convictions for drug cultivation-related offending. One of those predated this offending and was for less than a commercial quantity of cannabis plants, and the second postdated this offending and was in respect of more than a commercial quantity but less than a large commercial quantity.

14. Under “Attitudes”, the assessment report indicates that he saw his offending as a way of gaining financial independence from his parents and he acknowledged that at the time of the offending his actions were with disregard to the potential consequences to others. Although the matter proceeded by way of a defended trial, indicating that there can be no discount for an early plea of guilty, he has indicated to the Community Corrections officer that he accepts full responsibility for his offending, stating that he was fully aware of his actions at the time of his offending and made choices for his benefit only.

15. Since entering custody, he has apparently reflected on his behaviour and acknowledged the potential implications of his offending on others. I note that his time in custody commenced after he had been apprehended in relation to the third endeavour, which postdated this involvement. He was assessed as being a low risk of reoffending. In relation to his first offence of cultivating cannabis, being more than the indictable and less than commercial quantity, he received a Community Correction Order of 13 months commencing on 22 June 2020 and concluding on 21 July 2021, with supervision for 13 months concluding on 21 July 2021, supervised by Community Corrections.

16. In respect of the offending committed after the time of this offending but detected before he was detected for this offending by way of his fingerprints and DNA, he was dealt with at the Parramatta District Court on 30 May 2023 for two offences: the first taken into account on a Form 1, being divert/use electricity without authority; secondly, knowingly take part in the cultivation of a commercial quantity of cannabis plants but less than a large commercial quantity. I have already referred to the sentence imposed in respect of that matter.

17. There is no evidence in this trial of any particular value of the cannabis under cultivation. Clearly it was intended to continue to grow it until such time as it might be harvestable and processable for eventual sale. In my view, the setup was clearly a sophisticated one, the property having been bought in February of 2022 in an unknown condition; that is, it is not known whether the grow tents were pre-existing or installed after the property was purchased, or in part installed after the property was purchased, but again I state that the offender’s role in that is unknown.

18. He did not give evidence at trial, and he has not given evidence on sentence. While there is no evidence of any horticultural skills on the part of the offender, I note that his parents, who still reside in Vietnam, work not in the production of agricultural products but in their transport. He was encouraged by his family to leave Vietnam to build a better future for himself and he was initially helped financially by his parents when coming to Australia. He gained employment as a waiter at a Vietnamese restaurant while studying English for one term before he commenced studies at the Kaplan College. He only attended for one term before changing to multiple schools as he was not able to afford the tuition fee.

19. It is said that over his first year in Australia he made some friends, socialising with them on a regular basis by going to restaurants, bars and clubs, which was when he was introduced to illicit substances and gambling. He commenced to use cannabis on an infrequent basis but within a year was smoking the substance regularly with friends and had begun to gamble and began spending as much money as he could on poker machines and roulette, spending between $500 and $1,000 a week. According to him, he began to develop an addiction to gambling and within six months was gambling all his money.

20. He struggled to work and began to fall away from his studies and became increasingly fixated on consuming drugs and gambling and had to borrow money from his friends to pay his bills, and he became stuck in the cycle of addiction. Among the people he knew there were some that participated in the cultivation of cannabis, and taking part in the cultivation was suggested to him as a way to “make his life better” and be able to afford his addictions. He agreed to join them.

21. He has had ongoing anxiety and stress in relation to his addictions and he got deeper into debt due to his addictions. It is common that individuals come before the Court who have turned to the use of prohibited drugs as a result of their anxiety and depression, turning to the prohibited drugs in order to, in effect, self-medicate. It may cause some relief for a short period of time but inevitably it only exacerbates the anxiety and depression because the addiction takes over and they are always anxious as to how they are going to continue to fund their addiction.

22. An addiction to drugs and/or gambling may give some explanation for why he turned to participating in the cultivation of cannabis crops but it does not excuse it, nor, in my view, is it causative of the offending, and Mr Smith on his behalf does not suggest that the report provided by Mr Albassit should be taken by the Court as indicating any causative relationship between the offender’s psychological state and the offending.

23. There are indications in Mr Albassit’s report that the offender has expressed remorse and contrition, particularly as he has been imprisoned for approximately the last two years and able to reflect on his past behaviour. He apparently has said that after being incarcerated, he never wants to return to gaol again, that being in gaol has been a “horrific experience, witnessing people take drugs in gaol, witnessing stabbings and physical fights with inmates,” and he has realised that the bigger picture is clearer and that he must make significant changes to his life.

24. He is said to have been exercising daily, constantly reading and educating himself, and attending chapel weekly over the last 18 months. He believes that his involvement with the church has helped him with his rehabilitation. Mr Albassit indicates that his prospects of rehabilitation are positive but that he requires continued treatment. He attached a treatment plan; however, this is a matter in regard to which it is accepted as submitted by the Crown that the s 5 threshold has been clearly passed and the offender must receive a term of imprisonment.

25. He will only get such help psychologically or psychiatrically as may be available through the prison system, and I note that Border Force have shown an interest in him as he has overstayed his visa, and it is highly likely that when eventually released from custody he will be deported back to Vietnam. He is, in those circumstances, unlikely to receive the assistance Mr Albassit posits as necessary before being returned to Vietnam.

26. As to the objective seriousness of the offence, in my view it can be reasonably held that it is an offence at approximately the mid-range of objective seriousness, noting that there were over three times the large commercial quantity of plants in existence and the sophisticated nature of the setup as previously referred to. Of course, a large commercial quantity involves any quantity more than 1,000 plants. While this matter is three times the threshold, the range is open-ended.

27. In relation to all offences of this nature, there is a strong need for general deterrence to other like-minded persons. Indeed, there is a constant progression through this Court of offending of a similar nature, although not necessarily large commercial crops, but crops being grown particularly by enhanced indoor means with irrigation and indoor lighting and ventilation.

28. A substantial number of matters that come before the Court also involve persons of Vietnamese ethnicity. It is usually the case that there is no evidence of who is in fact in control or financing the operation and those who are apprehended are usually only those who can be referred to as crop sitters who tend the crop from time to time to ensure that it is fertilised and watered until it might be harvested. There is rarely any information provided as to who financed or set up the operation or who controls it. I do not say that to reflect on this particular offender, but rather to simply note that it is one of many matters of like nature that progress through this Court.

29. In relation to this offender, specific deterrence is an important matter to take into account due to the fact that he had already been convicted of one offence of a similar nature, although for a smaller quantity, and also because having his involvement in this matter terminated because of the detection of the crop, he went on to take part in a further cultivation of a commercial quantity at a later date.

5. Although it was a defended matter, I am prepared to find that the offender is remorseful on the basis of the content of the Sentence Assessment Report and the Psychological Report and that that remorse is genuine. I am also prepared to accept in the circumstances that he has been inspired by his time in custody already to seek to rehabilitate himself, and that there is, particularly considering his age, a reasonable prospect that rehabilitation can be achieved.

6. I will accordingly - being required to ignore the interests of Border Force in him and his expired visa - find special circumstances warranting a reduction in the statutory relationship between the sentence and the non-parole period. I accept that on the principle of totality his sentence should be partially backdated into the period of non-parole period that was imposed in relation to his knowingly take part in the cultivation of a commercial quantity of cannabis plants. The non-parole period in respect of that matter, noting that the offender was arrested while in custody on 29 March 2023 when he was serving a term of imprisonment for the knowingly take part, cultivate, commercial quantity of cannabis plants in respect to which he was eligible for parole on 18 November 2023, taking into account accumulation and totality, I will backdate the sentence to be imposed partway through that period.

7. The sentence will be a non-parole period of two years commencing on 29 July 2023. He will be first eligible for parole on 28 July 2025. The additional term is two years, and the full term of the four-year sentence will expire on 28 July 2027. I have allowed for a reduction of the statutory relationship between the non-parole period and the balance of term to the non‑parole period representing 50% of the total term to assist the offender in rehabilitation and taking into account his young age.

8. HIS HONOUR: Mr Vu, the earliest date that you will be released is 28 July 2025. That will be a matter for the authorities to determine. You will not automatically be released at that time, so everything you can do while in custody to convince them that you should be released is worthwhile doing. There are various courses in relation to drugs and training for employment that you can engage in and the more you engage in those matters the more likely it is that you will be released at the earliest opportunity. Although as I have indicated, it is highly likely that at that stage that you will be deported from Australia, as you no doubt already expected. Thank you.

OFFENDER: Yeah, thank you, your Honour.

Duc Vu Decision - 10SEP24 (45443, docx)

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Decision last updated: 13 March 2025