DPP v Do [2017] VCC 578

DPP v Do [2017] VCC 578 | Case summary | Zoe

Khoa Do, you have pleaded guilty before me to one charge of cultivation of a narcotic plant in not less than a commercial quantity, the drug being cannabis L. The charge is serious, and Parliament has prescribed a maximum penalty, 25 years' imprisonment, for this offence.
I will now proceed to sentence you on the basis of the Crown opening that was read to the court, there being no exception taken to its contents.
In essence, you are to be sentenced for your role as a crop-sitter in respect to a hydroponic cannabis crop that was growing at 3 Magdalen Mews, Bundoora. The Crown accepts that you are not the principal person responsible for the establishment of the crop, and that your role is limited to tending the crop for the period of time when you lived at the house between 18 August 2016 and 7 December 2016.
Police arrested you at the house in Bundoora on 7 December 2016. At that time, they located a hydroponic cannabis crop growing in six rooms of the house. In total, there were 117 cannabis plants, the combined weight of which was 43.29 kilograms, which is in excess of a commercial quantity that is defined by the legislation as being 25 kilograms. All the usual equipment and paraphernalia for growing cannabis L were located at the house, and on inspection an illegal electrical bypass setup was also located in a wall cavity inside one of the rooms.
It is accepted that you pleaded guilty at committal mention on 3 March 2017. Your plea was entered at the earliest opportunity.
When arrested by police you were fully cooperative. Unfortunately, police could not conduct a formal record of interview, because no Vietnamese interpreter was available.
I have been told briefly about your personal history and background. You are a 41-year-old Vietnamese national who was born in Haiphong, a major port city in the northeast part of Vietnam.
Your early life was exemplary. You have a solid work history, having completed high school and also some post-high school qualifications in carpentry and computers.
You arrived in Australia on a three month travel visa on 17 April 2014, and that visa expired on 17 July 2014. You are therefore an unlawful non-citizen. The context of you arriving in Australia is that your marriage had broken down, and you left your wife in Vietnam together with your two children born from that marriage, who are aged 16 and five years respectively.
In Vietnam, you were a successful businessman, but when you arrived in Australia without any appropriate visas, the only work you could obtain was working on a farm in Perth for some 12 months, and thereafter you travelled to Victoria in anticipation of further work. You then had some work in a Chinese grocers that paid you little remuneration.
The context of this offending was that you had been approached by somebody at the Crown Casino, who noted that you were losing when you were gambling. You were offered an opportunity to house-sit and look after the cannabis crop rent-free. You were paid a nominal sum and given the expectation that you would be paid more upon harvest of the crop.
You were in a difficult situation, having regard to your gambling problem and the fact that you were open to exploitation. That does give context to this offending and provides an explanation for why a person like you, who was otherwise of good behaviour, would become involved in such criminal activity. Nonetheless, it does not excuse your behaviour, and there is a need for this court to emphasis deterrence in the sentence it is about to impose, and also to formally denounce your behaviour.
I accept that prior to the offending, you were a person who was of good character. You have no prior criminal history. That fact of itself is not unusual in these sorts of offences, and it is often people just like you who are targeted by the criminals who are responsible for the establishment of these crops.
You have no real connection with Australia. Your elderly parents and siblings and other extended family members remain in Vietnam. It is accepted that following the completion of your sentence, that you are likely to be deported back to Vietnam, and that factor is not relied upon in mitigation on your behalf.
Overall, I have had regard to all the mitigating factors put on your behalf: The fact that you have entered an early plea of guilty at the earliest opportunity; your rehabilitation prospects, which I consider to be excellent, having regard to your insight concerning the wrongfulness of your behaviour; and also the fact that you have used your time constructively whilst in prison. That is evidenced by all of the programs you have completed.
Overall, I consider that the plea does have real utility. You have spared the State the extra expense and inconvenience of a trial. You have facilitated justice so that your sentence will be discounted accordingly.
It has been considered appropriately by your counsel that a gaol term is the only appropriate disposition that can be imposed in all the circumstances.
I have had regard to your previous good character and I accept that, given your lack of connections to Victoria, together with your linguistic and cultural differences, your time spent in prison is very isolated, and that fact has been taken into account.
In sentencing you, I must impose just punishment. I must emphasise the need for deterrence, especially general deterrence. Given your attitude and your conduct since your arrest, specific deterrence in this case is of lesser importance, but there is a real need for the court to send a message out to others who might otherwise be attracted to undertaking this form of activity; that if you are apprehended for this sort of criminal act, then you will face stern punishment, and imprisonment is the likely outcome.
I have had regard to the comparative sentences that were provided by the prosecutor. I have also had regard to the relevant sentencing snapshot for this sort of offence that has been provided by the Sentencing Advisory Council.
I will now announce the formal orders. If Mr Do could stand.
On Charge 1, you will be convicted and sentenced to a period of two years' imprisonment, and I order that you serve a period of 12 months' imprisonment prior to being eligible for release on parole.
Pursuant to s.6AAA of the Sentencing Act, but for his plea of guilty, I would have imposed a sentence of imprisonment of three years, to serve a minimum of two years' imprisonment.
I make a declaration pursuant to s.18(4) of the Sentencing Act that he has already served 155 days' pre-sentence detention, and that that time is to be reckoned as time served under the sentence of imprisonment that has been announced this day.
I make the disposal orders sought, and I also make the order for the taking of a forensic sample pursuant to s.464ZF(2) of the Crimes Act 1958.
All that remains now, Madam Interpreter, if you could just explain to Mr Do, the last order of the taking of a forensic sample, involves the taking of a scraping from his mouth and/or a blood sample. Police or authorities will ask him to provide a sample of a scraping from his mouth, and if he does not consent to that, then under the supervision of an authorised member of the police force, the sample can be taken by way of blood sample and police may use reasonable force to enable that procedure to be conducted.
That order has been made having regard to the fact that this is a serious offence; it is not opposed; and the granting of the order is in the public interest. So that completes my sentencing remarks.
COUNSEL: As the court pleases.
HER HONOUR: I will just now sign the orders and provide them to the parties, and then once that is done, Mr Do can be taken downstairs.
So did you want to spend some time, Mr Collins-Putland, just explaining the sentence with your client while we have got the interpreter here.
MR COLLINS-PUTLAND: Thank you, Your Honour.
HER HONOUR: Yes, all right. You can do that while I am signing, if you like.
MR COLLINS-PUTLAND: Thank you for the opportunity, Your Honour.
HER HONOUR: All right, so Mr Do understands the sentence?
MR COLLINS-PUTLAND: He does, Your Honour.
HER HONOUR: Yes, all right. Thank you for your assistance, Madam Interpreter. Mr Do can be taken back into custody now. Thank you. All right, that concludes the matter so we can adjourn.

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