IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-24-00252

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
VAN VU		

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JUDGE:	HIS HONOUR JUDGE TIWANA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	8 November 2024	
DATE OF SENTENCE:	2 December 2024	
CASE MAY BE CITED AS:	DPP v Vu	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1939		

REASONS FOR SENTENCE
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Subject:		Criminal law - Sentence
Catchwords: 		Cultivation of a narcotic plant in a commercial quantity – cannabis L – Category 2 offence – relevant prior matter – 164 cannabis plants with a combined weight of 44 kg – Early guilty plea – Hardship in custody – General and specific deterrence – Reasonable rehabilitation prospects.
Legislation Cited:		Sentencing Act 1991 (VIC); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Confiscation Act 1977 (Vic).
Cases Cited:		DPP v Mawhirt [2022] VCC 2272; DPP v Nguyen [2020] VCC 972.
Sentence:	         Total effective sentence of 2 years and 6 months’ imprisonment
                                            with a non- parole period of 19 months.

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr Z Amine	Office of Public Prosecutions	
			
For the Accused	Mr V Vuu	Victoria Legal Aid	

HIS HONOUR:

Introduction
1	Van Vu, you have pleaded guilty to the following two charges:
(a)	Charge 1 – Cultivation of a narcotic plant, namely Cannabis L, in a commercial quantity, contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981; and
(b)	Charge 2 - Theft contrary to s 74(1) of the Crimes Act 1958.
2	Charge 1 carries a maximum penalty of 25 years’ imprisonment. It is a Category 2 offence. I am required to sentence you to a custodial order unless one of the circumstances set out in s 5(2H)(a) to (e) of the Sentencing Act 1991 is established. Your counsel did not seek to rely on any of these exclusions.
3	 Charge 2 carries a maximum penalty of 10 years’ imprisonment. 
Circumstances of the offending
4	The circumstances of your offending are set out in the prosecution opening for plea dated 6 November 2024. Your counsel takes no issue with the factual circumstances set out in the opening.
5	On 21 March 2023, a routine Airwing patrol located a possible hydroponic set up due to seeing a hot electrical supply pit and hot roof indicative of high-power draw at 36 Ralph Crescent, Hampton Park (’36 Ralph Crescent’).
6	On 6 September 2023, police emailed Mr Carrig, a Meter Investigations Officer from Ausnet Services, who confirmed irregular electricity usage at 36 Ralph Crescent.
7	On 7 September 2023, at 8.19 am, police used a drone to observe the house.
8	At approximately 9.30 am, police attended 36 Ralph Crescent and entered the house through the front door which was opened by you. When police opened the door, they were met by a strong smell of cannabis.
9	A  search warrant was executed. As a result of the search, police found a hydroponic cannabis set up consisting of:
(a)	Room 1 – Electrical by-pass;
(b)	Room 2 – 96 immature cannabis plants;
(c)	Room 3 – 35 mature cannabis plants;
(d)	Room 4 – 10 mature cannabis plants;
(e)	Room 5 – 9 mature cannabis plants;
(f)	Room 6 – 13 mature cannabis plants; and 
(g)	Room 7 – 7 immature cannabis plants.
10	Botanist testing confirmed that a total of 164 cannabis plants at various stages of maturity were found inside the house.
11	The total weight of the cannabis plants was 44kg (Charge 1 – cultivate commercial quantity of cannabis).
12	When you were arrested, you were wearing blue scuffs on your feet. Your feet and knees were covered in dirt.
13	Mr Carrig subsequently attended the property to disconnect the electrical by-pass in the wall cavity of room 1. Irregular wiring had been connected to the un-metered main cables supplying the meter. The irregular wiring supplied electricity to six additional switchboards located in room 2 that then supplied electricity to the hydroponic set up. This irregular wiring by-passed the Ausnet Services metering equipment.
14	In total, the electrical by-pass and equipment would use approximately 1169.16 kilowatts of energy per day. Momentum energy measured the illegal energy consumption between 23 June 2023 and 7 September 2023, a period of 74 days, to be $13,694.64 (Charge 2 – theft of electricity).
15	Inside a cardboard box in room 2, police seized a packet of cable ties and a receipt dated 21 August 2023 for ‘plant ties’ from Bunnings Warehouse. Enquiries were made with Bunnings Pakenham and CCTV footage on 21 August 2023 depicts you, wearing clothing that closely resembles clothing found during the search of 36 Ralph Crescent on 7 September 2023.
16	White gloves were also recovered from the search of the kitchen of 36 Ralph Crescent and forensically tested. It is 100 billion times more likely that you are a DNA contributor than another person.
17	A preliminary latent fingerprint report identified your fingerprint on both the inside of a Nokia WIFI box and on the inside of a door to a room with a cannabis hydroponic set up.
18	You were interviewed with the assistance of a Vietnamese interpreter on 7 September 2023, and amongst other things stated:
(a)	you lived at 36 Ralph Crescent by yourself; 
(b)	you had been living at 36 Ralph Crescent for a few months;
(c)	you asked a friend to register her name on the gas and electricity account;
(d)	you paid $400 to $500 in rent per month in cash; and
(e)	you were unsure how many plants were inside the house. You did not think it was 170.
Criminal history
19	You have a criminal history including three separate court appearances in New South Wales:
(a)	On 23 November 2007 in the Burwood Local Court you were convicted on two charges of common assault and one charge of stalk/intimidate intend fear of physical/mental harm;
(b)	Most relevantly, on 21 May 2008 in the Paramatta District Court you were convicted of one charge of cultivate prohibited plant in a commercial quantity, for which you were imprisoned for 21 months with a non-parole period of 9 months, and one charge of goods suspected stolen in or on premises, for which you were imprisoned for 1 month, and one charge of organises/conducts/assists drug premises, for which you received a conviction and no other penalty; and
(c)	On 2 February 2009 in the Bankstown Local Court when you were convicted of drive low range PCA.
Personal circumstances
20	You were born in Vietnam in 1975 and are now 49 years of age. You moved to Australia in 1998 to further your education, including English language education. The cost of education resulted in you ceasing studying and entering the work force full-time. You have not returned to study despite English language proficiency remaining difficult for you.
21	You have held down regular employment, albeit low skilled and low paid. Initially you worked in food processing industries and more recently in carpentry and cabinet making, which you intend to return to upon your release. Your lack of proficiency in English has at times limited your employment opportunities.
22	You commenced a relationship with your now ex-wife a few months after arriving in Australia. During this time, you received your permanent residency in Australia and decided to stay despite the fact that the relationship broke down in 2002. You subsequently had another relationship with the mother of your son for a number of years. You state this relationship ended when your son was one and a half years old when your son’s mother left your son in the care of your parents in Vietnam and later remarried.
23	You first began having issues with gambling following the breakdown of your marriage. You attribute previous offending in 2008 to attempts to work off gambling debts that were incurred throughout this period by cultivating cannabis. You further note that there have been multiple times where you have become involved in gambling during periods of stress, loneliness and isolation. Despite maintaining stable employment during these periods you have faced significant financial difficulty as a result of your gambling.
24	Your son moved to Australia in early 2023 as your parents were no longer able to appropriately care for him due to their advancing age. Since your arrest in relation to these matters your son has been in the care of a friend of yours.
Objective gravity
25	In regard to Charge 1, the maximum sentence of 25 years’ imprisonment and the fact that it is a category 2 offence makes it plain how seriously Parliament views this offence. 
26	Your counsel conceded the offending is objectively serious given it involves a commercial quantity but submitted that the offending is a low range example of this type of offending.
27	He relied upon the context of how you came to be involved in the offending. That is, difficulties with your mental health led to an increase in your gambling and associated debts and that you then sought to pay off those debts by acting as a crop-sitter.
28	Your counsel subsequently accepted that your involvement in the cultivation process went somewhat beyond that of a crop-sitter. You were involved in buying plant ties from Bunnings.
29	However, in respect of Charge 2, the electrical by-pass utilised in the theft of the electricity went beyond your level of knowledge.
30	The prosecution submitted that in assessing the gravity of this offending the court should have regard to the following:
(a)	The quantity of cannabis seized was 1.66 times the commercial quantity when measured by number of plants, that being 164 plants, and 1.76 times the commercial quantity when measured by weight, that being 44 kilograms;
(b)	The plants were grown using a sophisticated hydroponic system which included:
i.	Room 1 which contained the electrical bypass;
ii.	Room 2 which had individually plotted immature plants with no filtration system, but an extensive heating and lighting system fitted; and
iii.	Rooms 3, 4, 5 and 6 which had filtration, heating and lighting systems fitted with temporary walling and flooring.
(c)	Considering the infrastructure utilised at 36 Ralph Crescent, the cultivation, whilst charged on a single day, must be considered in the context of the substantial investment in equipment that enabled it to occur;
(d)	You admitted in your record of interview to living at and renting 36 Ralph Crescent for a few months;
(e)	You attended at Bunnings on 21 August 2023 to purchase the ‘plant ties’ later found with their receipt during the search of 36 Ralph Crescent, providing further context to your role in the cultivation;
(f)	The cultivation occurred for financial gain;
(g)	You were actively engaged in tending to these crops, as evidenced by the fact that when you were arrested at 36 Ralph Crescent you were wearing blue scuffs on your feet and your feet and knees were covered in dirt; and
(h)	There is no evidence of you, or this cultivation, being connected to a broader network.
31	With respect to Charge 2 the prosecution noted:
(a)	The electricity bypass was operational for some 76 days;
(b)	There is a high degree of sophistication inherent in this offending;
(c)	The by-pass is calculated both to save the significant energy costs that comes with a hydroponic cultivation of this size, and to reduce the risk of detection that may follow a significant jump in electricity usage; and 
(d)	The value of the stolen electricity was more than $13,000.
32	Ultimately, it would have been apparent to you that this was a sophisticated operation, involving extensive heating, lighting and filtration. The electricity meter was bypassed to steal electricity and avoid detection which demonstrates the scale of the operation. You were living at the house alone and played an important role in looking after the crop. This involved you watering and tending to the plants and ensuring the lighting was operating correctly. 
Defence submissions
33	I was assisted by the written, and oral, submissions of your counsel, who relied upon the following documents:
(a)	Summary of defence submissions on sentence indication and chronology dated 6 September 2024;
(b)	Psychological assessment report of Mr Austin Campbell dated 31 July 2024;
(c)	Letter from Monash Children’s Hospital by Dr Huynh dated 30 September 2024; and
(d)	Bundle of (16) certificates of courses completed in custody.
34	Your counsel sensibly conceded that the offending was serious warranting a disposition consisting of a head sentence and a non-parole period. He accepted that general deterrence, denunciation and just punishment assumed importance. 
35	However, your counsel also submitted that rehabilitation and hardship are significant factors in the sentencing process. Specifically, he submitted that a shorter non-parole period was appropriate to allow you to be supervised in the community and therefore able to care for your son.
36	Your counsel essentially relied upon the following matters in mitigation:
(a)	Your early guilty plea;
(b)	Psychological factors including your diagnoses of a Gambling Disorder exacerbated during periods of psychological distress;
(c)	The greater burden of imprisonment knowing that you are unable to care for your son; and
(d)	Your positive prospects of rehabilitation.
Diagnoses of Gambling Disorder
37	Dr Austin Campbell diagnosed you with a Gambling Disorder (Episodic and in Early Remission). The underlying tenor of your counsel’s submission is that your inability to adequately deal with psychological stress led to the development of your Gambling Disorder, which in turn precipitated your offending behaviour.
38	In respect of the development of your Gambling Disorder Dr Campbell noted that:
[you] spoke of developing issues with problematic gambling following the breakdown of [your] first significant relationship. [You] spoke of this maladaptive behaviour developing in response to feelings of hopelessness, loneliness and isolation. [You] appear to have engaged in gambling behaviour in an attempt to distract [yourself] and reduce these experiences of psychological distress, with the behaviour continuing despite a number of issues arising. [You] appear to have developed a Gambling Disorder where these issues have escalated to the point of precipitating [your] engagement in offending behaviour similar to the current matters. [You] stated that [your] initial engagement in offending behaviour occurred during a period of ongoing psychological distress and engagement in problematic gambling behaviour.
39	Dr Campbell further noted that:
[Your] recent offending behaviour appears to have been precipitated by a deterioration in [your] mental health due to experiences of psychological distress. These experiences of loneliness, hopelessness and isolation appeared to have contributed to a relapse of his Gambling Disorder, with [you] engaging in problematic gambling to reduce and avoid distressing emotions. [You] spoke of some concerns for [your] safety due to [your] gambling debts which may have impacted [your] decision making prior to [your] engagement in the offending.
40	Accordingly, Dr Campbell opined:
[Your] mental health issues (i.e., experiences of psychological distress and [your] Gambling Disorder) appear to be perpetuated by [your] overall avoidant coping style, [your] lack of adaptive coping strategies and limited positive supports within Australia.
Onerous nature of custody
41	Your counsel submitted that your son’s living arrangements, that is with a friend of yours, and ongoing health concerns place an additional burden on your time in custody.
42	Dr Campbell recorded:
[You] stated that [your] son moved to Australia in early 2023 due to [your] parents being unable to appropriately care for [your] son any longer due to their advancing age. [You] stated that [your] son was happy with moving to Australia and had been settling in prior to [your] arrest for the current matters. [You] stated [your] son was in the care of a friend of [yours] but [you] spoke of various concerns for [your] son’s wellbeing and the capacity for [your] friend to continue caring for him. [You] stated that [you] maintained regular contact with [your] son and spoke of a desire to return to the community to provide for him. [You] stated that [you] also maintained regular contact with [your] parents in Vietnam but stated that [you] did not inform them of issues [you] experience, including [your] current legal matters.
43	Dr Campbell further noted:
[You] spoke positively of [your] relationship with [your] son despite him primarily being raised in the care of [your] parents in Vietnam. [You] stated that [you] were happy to have [your] son move to Australia and [were] hoping to have [your] financial issues resolved shortly after his arrival. You stated that [you] left his son in the care of a close friend during the period of offending with the intention to have him return to [your] care after a short period of time. You stated that [your] son remained in the care of this friend and expressed concern towards the impacts of this situation on [your] son and friend. [You] stated that [your] son was attending school and adjusting well to living in Australia but noted he was experiencing a number of issues, stating he had been referred for an Autism assessment recently but could not be facilitated due to financial issues. [You] expressed concern for [your] son’s wellbeing and spoke of a desire to return to the community to care for him.
44	Your concerns regarding your son’s wellbeing, as identified by Dr Campbell, were further supported by the provision of a letter from Dr Chuong Huynh outlining your son’s current challenges, those being:
(a)	Learning and concentration difficulties;
(b)	Atypical behaviour; and
(c)	Sleep walking and sleep talking.
45	Dr Huynh outlines that your son is a 12-year-old boy with parasomnias and some difficulties with concentration who requires further assessments to determine ongoing management requirements.
46	Your counsel also submitted that you have positive prospects of rehabilitation.
47	Dr Campbell opines that:
[Your] prospects for rehabilitation remain positive, evidenced by [your] motivation to improve [your] capacity to care for [your] son and [your] receptiveness to feedback throughout the current assessment.
48	In this respect your counsel further adduced a bundle of 16 certificates detailing the 15 courses you have completed while on remand, and the further partial completion of “begin language learning with support”.
Prosecution submissions
49	The prosecution submitted:
(a)	Your plea of guilty has significant utilitarian value as no witnesses have been cross-examined at committal or trial;
(b)	Your separation from your son represents an additional subjective burden that will make your time in prison more burdensome;
(c)	Your gambling addiction does not reduce your moral culpability. However, the condition is relevant to your prospects of rehabilitation and specific deterrence;
(d)	You have a relevant prior conviction. The circumstances of your involvement in this offending are like the circumstances of the previous offending (plainly, vulnerability from a gambling debt). Therefore, specific deterrence is a prominent sentencing consideration; and
(e)	General deterrence is a prominent sentencing factor as people in [your] situation must be deterred from turning to crime to satisfy their financial issues.
50	You have pleaded guilty. By pleading guilty, you have facilitated the course of justice and have taken responsibility for your actions. You have also saved the community the time and cost of a trial.
51	I accept that your son’s living arrangements will make your time in custody more burdensome on you. He plainly needs your support but thankfully he is living with a friend of yours who is supporting him as well as her own children. 
52	With respect to your prospects of rehabilitation the court remains somewhat guarded and does not share your counsel’s optimism. You have committed similar offending in similar personal circumstances albeit some 16 years apart. This and your previous offending has arisen as a result of escalating gambling debts. You further report that your gambling issues are exacerbated when your mental health is poor, particularly during times of stress such as the end of relationships. Accordingly, it is apparent that in order to improve your prospects of rehabilitation you must address your mental health and Gambling Disorder.
53	In sentencing you, I bear in mind the principles of general deterrence, specific deterrence, just punishment and rehabilitation.
54	Having taken into account all relevant matters and circumstances, including the comparative cases referred to me by the prosecution, I sentence you, Van Vu, as follows:
•	On Charge 1, you are convicted and sentenced to 2 years and 4 months’ imprisonment. 
•	On Charge 2, you are convicted and sentenced to 6 months’ imprisonment.
55	The sentence on Charge 1 will be the base sentence. Two months of the sentence on Charge 2 will be served cumulatively upon the sentence on Charge 1. 
56	This makes a total effective sentence of 2 years and 6 months’ imprisonment. I fix a non-parole period of 19 months. 
Pre-sentence detention
57	Pursuant to s 18 of the Sentencing Act 1991, the period of 452 days of pre-sentence detention is declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the Court’s records.
S 6AAA declaration 
58	Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 4 years’ imprisonment with a non-parole period of 2 years and 9 months.
Other orders
59	I grant the disposal and forfeiture orders sought by the prosecution.