District Court New South Wales Medium Neutral Citation: R v Vu [2020] NSWDC 955 Hearing dates: 29 October 2020 Date of orders: 29 October 2020 Decision date: 29 October 2020 Jurisdiction: Criminal Before: Neilson DCJ Decision: See par [24]. Catchwords: CRIME – SENTENCE – Take part in the cultivation of prohibited plants not less than the commercial quantity – Culpability of offender – Unique subjective factors. Legislation Cited: Nil. Cases Cited: Pham v R [2009] NSWCCA 266 R v Pui [2020] NSWDC 119 Truong v R [2009] NSWCCA 41 Texts Cited: Nil. Category: Sentence Parties: Offender – Tien Dung Vu R – Crown (NSW) Representation: R - L. Stueckradt Offender – M. Ramage QC File Number(s): 2020/00044827 Publication restriction: Nil. Judgment 1. HIS HONOUR: Tien Dung Vu stands for sentence as a consequence of pleading guilty to a charge that on 11 February 2020 at Marsfield in this State did take part in the cultivation of a number of prohibited plants, namely 98, which was not less than the commercial quantity applicable to that prohibited plant. The maximum penalty for that offence is imprisonment for 15 years and/or a fine of $385,000. There is no standard non parole period. The offender was arrested on 11 February 2020 and remained in custody until being granted bail by the Supreme Court on 16 April 2020. He accordingly has spent two months and six days in gaol. 2. Despite what is pleaded in the Court Attendance Notice, the property in question is named 120 Vimiera Road, Eastwood. Police became aware of suspicious activity at that address on 30 October 2019. They went to the property on 31 October 2019 and observed multiple phasing power cabling running from the street power, sourced to the property, and they could hear a faint humming noise from inside the property. 3. The police conducted a surveillance operation at that property from time to time. They identified a Toyota Camry car which was present at the property throughout the month of November 2019, but there was no suggestion that vehicle belonged to the offender. On 10 December 2019, police installed surveillance equipment and commenced covert surveillance. Police would also periodically attend the property each week to obtain images from the surveillance camera and to conduct actual surveillance. Multiple unknown Asian men aged between 25 and 30 attended the property in November 2019. 4. The offender was captured by closed circuit television to be at the property on 12 occasions over a six week period. The first occasion was 26 December 2019, Boxing Day. He was at the property for 20 minutes on that day. He attended on the following day, 27 December 2019, and was at the property for nine minutes, commencing at noon, and was in the company of an unknown man. He next attended the property on 3 January and was present for about two hours and 20 minutes. During that period, he retrieved the garbage bins from the street and removed a box of unknown items from a car and took it inside the house. He was at the property on both Saturday 4 and Sunday 5 January 2020, on 4 January 2020, for approximately 30 minutes and on 5 January 2020 for a mere six minutes. On that occasion, he carried a black garbage bag from the house to his car. It is not suggested, however, that the bag contained any illicit drug. He was present at the property on Monday 6 January 2020 for 50 minutes. He returned on Tuesday 7 January 2020, was present for about 41 minutes. On that occasion, he arrived in an unknown black sedan with another unknown male and removed sealed boxes from the boot of the car and took them inside the house. 5. The unknown man carried an open and empty box back into the car. What had been in the box is unidentified. It may have been electrical equipment or it may have been plant food. He returned to the property on 9 January 2020 at 4.21pm and left at 5.06pm. When he arrived at the property, he opened the boot of the car and took out two large plastic bags and took them inside the house. The bags were full. He was also seen walking on the front lawn, carrying a cardboard box and a large plastic bag. And on that occasion, he put out the garbage bins of the house. He went back on Friday 10 January 2020 and was present at the property for a quarter of an hour. He next attended the property on 5 January 2020, arriving at 3.56 pm. He opened the boot of the car and moved a large box which was marked to be for a portable fan. An unknown man was also present at that time. He left at 4.22 pm. He was at the property for a mere two minutes on Sunday 16 January 2020 and at the property on Saturday 8 February 2020 for four minutes. During that period of time, he opened the boot of the car and removed a black plastic bag and took it inside the property. He also moved the garbage bins. Another unknown Asian male was also present. 6. On 11 February 2020, police obtained a search warrant. They executed the search warrant at 5.14 pm on 11 February 2020 and the offender was inside the property. He was wearing gardening gloves at the time he was arrested. He was searched and then taken to the Ryde Police Station. At the Ryde Police Station, he was offered the opportunity of being interviewed but declined to participate in the interview. At about 6pm on 11 February 2020, an Ausgrid technician attended the property and found that an electrical supply was being drawn which bypassed the meters on the house. During the execution of a search warrant, the police found 98 cannabis plants, 110 electrical globes, 18 lamp shades, one pair of black material gloves, one disposable mask and one clear plastic bag containing cannabis bud. It is agreed that the offender was neither the owner nor the lessee of the property. 7. There is no evidence that the offender funded the cultivation or set up the electrical bypass at the property. It is agreed however that the offender knowingly took part in the cultivation by maintaining the property and the cannabis plants inside the property, such as taking the rubbish bins to and from the street and taking cultivation equipment into the house. Perhaps the best description of what the offender did is his admissions made to a psychologist, Mr David Green, who examined him for three hours on 16 September 2020. Finding himself in a poor financial position, the offender saw an advertisement for work on the internet and the advertisement was on a website entitled "Vietnamese Dynamic Students". He rang and inquired about the work, he was told the job was a cleaning job. He told the person to whom he was talking that he was looking for evening work so he could look after his daughter during the time when his wife was studying and working. He managed to negotiate and work for three or four hours a week. Mr Green's history continues in this fashion: "Mr Vu said he went to the house at Eastwood and realised that cannabis was being cultivated inside the house. 'When I turn up, I saw the set up. I ask another person who work there what it was and he said marijuana.' Initially, he worked with one other person, but after a couple of weeks, he was told he would work independently. He was to clean up the house and water the plants. I understand he was wearing gardening gloves when he was arrested, and he said he had to pick up rubbish from the floor, the floor being wooden floorboards with exposed nail heads. He wore the gloves to protect his hands. Mr Vu said he did not know of the potential dangers of cannabis but said he was aware cannabis was 'prohibited'. 1. I asked Mr Vu why he continued to work in the Eastwood house in spite of the fact that he knew it was, as he put it, 'prohibited', and he said: "I had no work, I had no choice because of our financial situation, I needed money and I need to convince myself that I had to go through with it." 1. The offender could be described as a crop sitter, a term used in cases such as Truong v R [2009] NSWCCA 41 and Pham v R [2009] NSWCCA 266. The offender took the work because he was promised that he would be paid. His position is that he was never paid and when he was paid, he would have tried to extricate himself from the position in which he found himself. I accept that he was merely a "crop sitter" engaged to water the plants and to make sure that everything was going as it was supposed to go in the growing house at Eastwood. 2. The offender is 27 years old. He will turn 28 in December this year. He is Vietnamese. He has 12 years of education in the north of that country, having grown up in the Hai Phong area of North Vietnam. His father died when he was six years of age. He is the only child of his parents' relationship. His father died as a result of a motorcycle accident. His mother is still living in Hai Phong. She is now 48 years old. She remarried six years after the death of the offender's father, but his stepfather died within a few years of her remarriage. As a result of his mother's second marriage, he has a brother who is now aged 18 and has commenced a full time motor mechanic's apprenticeship in Hai Phong. Although his brother is a half-brother, the offender regards his half-brother as his full brother. 3. The inference I draw from the extensive history taken by Mr Green about the offender's family is that he grew up in straightened circumstances. His favourite subjects at school were mathematics, physics, and chemistry. When he finished school, he wanted to become a mathematics teacher but was unable to obtain the necessary entrance marks to enter the university at Hai Phong to study to be a teacher. He then undertook an equivalent of a TAFE course, studying information theory and application, however he wasn't much taken by that one year course. He then obtained work on the docks in Hai Phong and eventually learned to be a shipping container inspector, inspecting shipping containers for damage. 4. He married his childhood sweetheart in 2016. She has university qualifications and was trained to be an educational administrator. She wishes to become a principal or deputy-principal of a high school. She initially obtained work as a primary school administrator but was advised that to progress further, and in particular to become a high school administrator, she should come to Australia to undertake independent studies. Accordingly, the couple came to Australia in August 2018. His wife was on a student visa and the offender came on a dependent spouse visa. They have a child, a daughter, Hong, who is now three years old. She was left in the care of the offender's mother when the couple came to Australia. The offender's wife had to undertake an English course, which she did at Sydney University. She then commenced a Master of Education Administration, however, the course was much more expensive than the couple anticipated. It appears, at the current time, the offender's wife is studying a Diploma of Management Leadership at a private college. 5. Initially, the offender's wife worked 20 hours a week in a nail salon near Darling Harbour. The offender obtained some builder's labourer work, and then worked in a butcher shop at Bankstown. However, the couple missed their daughter and, in September 2019, his wife travelled back to Vietnam to bring their daughter to live in Australia with them. However, the daughter was prone to chest infections and was often ill, and when the child was ill, she could not be taken into a family day care centre. That required either the offender or his wife to absent themselves from work and/or study to look after the child. The majority of that caring work fell upon the offender who, ultimately, was dismissed from his job at the butcher's shop because of his poor attendance record because of the need to stay away from work to care for the child. That led to the couple's financial situation being "terrible" which led to the offender's responding to the advertisement he found on the internet for "Vietnamese Dynamic Students". That led to the current offending. 6. When the offender was arrested and incarcerated, his wife took their daughter back to Vietnam but has returned to Australia, seeking to continue her studies. The couple were reunited, obviously, when the offender was granted bail. The offender's time in custody was difficult. He was initially held at the Surry Hills Police centre for three days until being transferred to the Metropolitan Remand & Reception Centre ("MRRC"). The cells at the Sydney Police Centre are below ground and are constantly illuminated, and he lost track of time, not knowing whether it was day or night. He had difficulty coping at the MRRC because his English was limited. He put himself down to study English but was only admitted to the course on the day he obtained bail. In the meantime, he borrowed an English/Vietnamese dictionary and tried to learn as many words in English as he could. Fortunately, he was able to obtain work and worked in cleaning and maintenance, including mowing lawns and picking up rubbish. He obtained that work at the MRRC shortly after he arrived there. 7. On his discharge from custody, he obtained work in a baker's shop at Cabramatta. There was a great demand on because of the moon festival and the offender was asked to work until midnight each night, but was unable to do so because his bail required him to observe a curfew commencing at 10pm. He had to resign his work at the bakery, work that he enjoyed. After the bakery, he obtained work at a nail shop in Campsie and has been working there for about the last four months. There is, in evidence, a reference from the proprietor from the nail shop at Campsie that confirms that the offender is working there five days per week from Monday to Friday. He is described as having a good work ethic. The proprietor is aware of the offence which the offender has committed and that he is facing this Court for sentence today. The proprietor accepts that the offender is sorry for his past conduct and he has assured the proprietor of the business that he will not break the law again. 8. The Sentencing Assessment Report tells me that the offender has a low risk of reoffending. The same assessment has been made by the psychologist, Mr Green. Mr Green also expressed the view that the offender does not need to undertake any further rehabilitation measures or courses. That is actually confirmed by the sentencing assessment report. It recommends only supervision, which supervision would be suspended because of the offender's low risk of reoffending. I accept, despite what is said in the sentencing assessment report, that the offender is truly remorseful; the remorse being what the Court looks for, not self-pity or concern for his own dependants or his family or reputation, but rather insight into the damage done by his offending to the community. He has observed, whilst in custody, the effect of drug addiction on prisoners, how they come to be in prison because of the effects of their drug addiction and of the predicament they find themselves in when having to "dry out" from their drug addiction and, of course, often wanting to find drugs to maintain an addiction, which they find almost impossible to overcome. 9. I accept that the defendant is truly remorseful. That has been made out by him in his letter to me, by his wife, by his current employer and by the principal of a Buddhist temple at Sefton, where he undertakes voluntary work around the temple, such as cleaning, gardening and planting flowers. The offender has also spoken to the head monk there and has expressed an interest in learning about Buddhist teaching and that gentleman has told me that the offender has come to realise the impact of drugs on the community and how much stress his offending has, in addition, caused his family. The offender is supported by his wife. He wants her to complete her course so that they both can return to Vietnam to regain the custody of their daughter, for his wife to enter into education administration again, and he's confident that he will obtain his work back in the docks at Hai Phong as a shipping container inspector. He is a young man of prior good character who made the wrong decision when finding himself in financial difficulties. As a result of that, he stands for sentence today. He didn't realise that the job he applied for involved illegality. It did, but because of his financial situation, he thought he could not escape from it. I accept that there is a very low risk of reoffending. The offender has done a lot to rehabilitate himself; for example, by finding further employment. 10. The Crown has submitted that I should impose a full-time custodial sentence. That has been my practice in the past and for the most recent decision on that, I refer both Madam Crown and Mr Ramage QC to my decision R v Pui [2020] NSWDC 119, judgment given on 28 February 2020 this year. That offender committed two offences. The first was to knowingly take part in the cultivation of a number of prohibited plants, namely 88 cannabis sativa plants at Eastwood between 29 December 2016 and 8 March 2017. However, the Crown could not establish the offender knew that there were 88 plants, and accordingly, he was only charged with growing less than the commercial quantity, namely, less than 50 plants, despite the fact that 88 plants was a commercial quantity. For that offence, I sentenced Pui to a fixed term of 20 months imprisonment, but he had committed a more significant offence, namely, taking part in the cultivation of a large commercial quantity of cannabis plants, an offence that carried a maximum penalty of 20 years' imprisonment and/or a fine of $5,000 penalty units. The property in question was at Wentworth Falls. The offender was, in fact, living there. There were 282 cannabis plants, the value of which was $1.2 million. For that offence, I sentenced that offender to imprisonment for one year and nine months with a one year and three month non-parole period and the two sentences were cumulative. 11. Mr Ramage has referred me to a large number of decisions by a large number of my colleagues, but significant decisions by Judge Sides, Judge Norrish and Judge Haesler. Since the relaxation of the previously strict application of the principle that those knowingly involved in drug trafficking should be sentenced to imprisonment, it is now common for offences of the current nature to be dealt with by way of an intensive corrections order. It is urged upon me by Mr Ramage QC for the offender that that is how I ought proceed in this case, and that it earns special circumstances. I believe that that is the appropriate method of dealing with the current crime. It is common ground that the offender pleaded guilty at the earliest available opportunity, and therefore, is entitled to the maximum discount for his guilty plea, a discount of 25%. 12. I start this sentencing exercise with a head sentence of two years' imprisonment. Discounting that by 25%, the sentence becomes 18 months' imprisonment. I intend to make an Intensive Corrections Order ("ICO") for a period of 18 months. Because it is unlikely that the offender will be supervised during that 18 month period, it is my intention to impose upon him the obligation to do 200 hours of community service work which will ensure that he adheres to the terms of the ICO and if there be any default in his compliance with the community service work, he may find that the ICO is revoked and he will be returned to prison. 13. No one wants any further reasons, do they? STUECKRADT: No, your Honour. RAMAGE: No, your Honour. HIS HONOUR: Thank you very much. 1. I should indicate that I am well aware, in passing that sentence, that the offender has already spent two months and six days in custody, so this is in addition to that short custodial period. 2. I also add, because it is often relevant, that the offender was himself not a drug user, and therefore probably was unaware, initially, what the effects of drugs are in our community. 3. Tien Dung Vu, on the charge that on 11 February 2020 at Marsfield you did take part in the cultivation of a number of prohibited plants, namely 98, which is not less than the commercial quantity applicable to that prohibited plant, you are convicted. I sentence you to imprisonment for a term of one year and six months commencing today, 29 October 2020, to be served by way of intensive correction in the community. Terms of the order are: 1. you must not commit any offence; 2. you must submit to supervision by a community corrections officer; 3. you must complete community service work for 200 hours; and 4. you are to report to the community corrections office at Fairfield within seven days. 1. Any further orders sought? RAMAGE: No, your Honour. STUECKRADT: No, your Honour. Thank you. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2023