District Court New South Wales Medium Neutral Citation: R v Vu [2019] NSWDC 969 Hearing dates: 12 June 2019 Date of orders: 12 June 2019 Decision date: 12 June 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Imprisonment of 1 year 9 months served subject to an Intensive Correctional Order Catchwords: CRIME — Drug offences — Cultivate prohibited plant — Knowingly take part in cultivation SENTENCING — Mitigating factors — Early plea of guilty — Role of offender — Crop sitter SENTENCING — Penalties — Short period in custody on remand — Intensive correction orders Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Category: Sentence Parties: Ba Hiep Vu (the offender) Director of Public Prosecutions (the Crown) Representation: Counsel: M Ramage (for the offender) Solicitors: A Cabrera – Public Prosecutions (NSW) (for the Crown) AKN & Associates (for the offender) File Number(s): 2018/166398 JUDGMENT – EX TEMPORE REVISED Introduction 1. In mid‑June 2017, police inspected a home in suburban Coniston. Their suspicions were alerted, and a search warrant was obtained. On entry to the premises, police found an elaborate and sophisticated set up for growing hydroponic cannabis. There were seven grow rooms and close to 200 plants, not including seedlings. 2. Someone was intending to make a considerable profit from this enterprise. That conclusion is inevitable, given the cost and sophistication of the set up. 3. The police investigation revealed a mobile phone registered to Ba Hiep Vu. Vu was arrested as he was leaving Australia on 7 May 2018. There is no suggestion that he was fleeing the jurisdiction. After his arrest he submitted to forensic procedures. His DNA profile and fingerprints were matched with DNA profiles and fingerprints located at the house in Coniston. 4. On 28 May 2018 he was charged with Knowingly taking part in the Cultivation of a Commercial Quantity of Cannabis, the deeming provisions relating to enhanced indoor cultivation: s 23(2) Drug Misuse and Trafficking Act 1985 (NSW). The large commercial quantity is 200 plants. 5. In the Local Court, he entered a plea of guilty. The utilitarian value of that plea will be recognised by a reduction in the otherwise appropriate sentence of 25%. The plea has other values. It enabled this matter to be dealt with expeditiously. It filled some of the gaps in the proof already obtained by police, and further, it demonstrates, in a practical way, what all of the other material before me indicates, that Mr Vu is fundamentally a decent person who was tempted and succumbed to temptation to make easy money when in a position of debt and distress. The seriousness of the offending 1. That said, courts have to have regard to the seriousness of what was done and give content to, and take guidance from, the maximum penalty fixed by parliament, here, 15 years imprisonment and / or a substantial fine. 2. The cultivation was well organised. It was professionally organised. A profit commensurate with expenditure was obviously expected. Enhanced cultivation techniques were used. A significant number of mature plants were found. That is one measure of objective seriousness. 3. The cannabis was intended to be distributed to the community. That intention was disrupted by good and effective police work. 4. On the material before me however, Vu had neither the means nor the skills to initiate, or set up, this criminal activity. He knew, however, what he was doing was illegal. He expected some reward, and his admissions indicate that that reward was $1,000 per week. He told those who have prepared reports on his behalf that being in debt and desperate for a means out of debt, he accepted the temptation offered by associates in the Vietnamese community in Australia. 5. This is not the first time I have had to deal with matters such as this where a person, out of apparent desperation, took the easy and criminal course. It is obvious that organised crime groups have the resources, access to equipment and the capacity to convert suburban dwellings for cannabis cultivation. It is notorious that the financiers and principals of such operations keep their distance and employ others to do the work and take the risk. 6. Employers reap the enormous profits that the criminalisation of cannabis currently allows them to make, while the labourers, if caught, almost inevitably end up in gaol. It is rare indeed, for any principal to be identified. It is rare indeed, for any principal to be arrested, even though the premises had to be leased and the equipment used had to be purchased somewhere and installed professionally. The case for the offender 1. While Vu did not give evidence before me, the material in the various reports set out in Exhibit 1 are not significantly contested. The objective evidence supports the conclusion that he was what is colloquially known as a "crop sitter" who, for limited pay, was prepared to engage in serious criminal activity. 2. His apology, which is in written form, appears to be heartfelt and reflects a man who has at times in his life had the benefits of family support and education. But at times has struggled, particularly after the death of his father in Vietnam following a tragic traffic accident. 3. He came to Australia with a university degree from Vietnam. He came here, I accept, full of hope. He struggled to learn English and still struggles with the English language. His dream of earning a Master of Business Administration was thwarted by his lack of English. He was able to obtain labouring work in the community, and with the assistance of his wife, an Australian citizen, able to set up businesses, as apparently his sisters have done in Vietnam. 4. The financial pressures of that business' failure, I am prepared to accept, placed enormous stress upon him. I am prepared to accept that he has, with the assistance of his wife, established another small business. And the material before me indicates that with hard work and dedication, it may well be successful. Were he to be returned to prison, all that good work might come to an end. He would be in a position of being more desperate and more needy than might otherwise be the case. 5. He has the capacity to work and earn some respect in the community by doing community service work. He has already voluntarily helped out a local Buddhist temple. He has done the necessary courses, which I am sure brought home to him the consequences of the flow from the illicit distribution of drugs in our community. Synthesis 1. At the same time, the courts have to recognise by the penalties that we impose a simple fact; there are many small business owners in this country, many of them struggle, many of them lose their businesses. That is not, and could never be, an excuse for committing serious crimes. The Courts must, by the severity of the penalties that they impose, attempt to signal to anyone who might be tempted to do what Vu has done, that it is simply not worth it. The material before me indicates that the short period he spent in custody has brought home that lesson to Mr Vu. He has made a serious and criminal mistake. He sought the easy path, and he has learnt that it was simply not worth it. 2. I could return him to gaol. But to do so would, I believe, be counter‑productive. There are as, Mr Ramage, of senior counsel who appears on his behalf, points out, in his extensive and comprehensive submissions, alternatives. Alternatives which are designed to appropriately punish offenders, but also enable them to prove to the community by hard work, by future good behaviour and by industry, that they can take their place as members of this community. 3. All the material before me indicates that that option is one that should be tried and tested and that that option, particularly given the period of time in custody, can also send a message to those in the community who might be tempted, as Mr Vu was tempted, to reconsider their options. 4. I will not go into significant detail given the submissions that have been given to me. As I said, the plea has value. There is some cooperation. There is his prior good character, at age 32, a father and a small businessman. His wife is not well, and she needs him by her side. He has accepted responsibility for his actions, and in my view, he falls within the relatively small category of offenders of this nature who can be dealt with by an Intensive Correction Order in the community under this provision of the Drug Misuse and Trafficking Act 1985. 5. Having synthesised all those relevant matters, and having had regard to the submissions made, and the concessions properly given by the solicitor for the Director, I propose the following orders. Orders 1. In relation to the charge before the Court, you are convicted. Had it not been for your plea of guilty, there would have been a sentence of 2 years and 6 months. I take into account the reduction for the utilitarian value of the plea and the approximately 1 and a half months spent in custody. The sentence is 1 year and 9 months. 2. That sentence is to be served by intensive correction in the community. It is a condition of the order accompanying the Intensive Corrections Order that you accept the supervision and guidance of the Probation and Parole Service for as long as they deem necessary and that you report within 7 days to the Liverpool Community Corrections Office, that you undertake 200 hours of community service, and that you be of good behaviour, of course. 3. If you breach those orders, you will be dealt with by the State Parole Authority. You will not come before the Court. If the breach is a serious one, you could be returned to prison to serve the balance of the term. You will need to enter that order in the Court office before you leave the Court building. ********** 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: 05 September 2023