Dang v The Queen
[2022] VSCA 69
•13 April 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2022 0013
| TUAN VAN DANG | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 April 2022 |
| DATE OF JUDGMENT: | 13 April 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 69 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1328 Judge Gucciardo |
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CRIMINAL LAW – Sentence – Appeal – Cultivation of commercial quantity of narcotic plant (Cannabis L), theft of electricity and dealing with property ($610) reasonably suspected of being proceeds of crime – Sentenced to 4 years for cultivation, 18 months for theft and 6 months for dealing with proceeds (TES 4 years and 6 months, with NPP of 2 years and 6 months) – Whether judge mistook facts relevant to gravity of cultivation charge – Whether sentences on individual charges manifestly excessive – No different sentence should be imposed on cultivation charge – Sentences on theft and dealing charges manifestly excessive – Appeal allowed – Applicant resentenced on theft charge to 6 months, and on dealing charge to 7 days – Applicant resentenced to TES of 4 years, with NPP of 2 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G F Connelly | Giorgianni & Liang Lawyers |
| For the Respondent | Ms K Hamill | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
The applicant pleaded guilty in the County Court to one charge of cultivating a narcotic plant in not less than the commercial quantity,[1] one charge of theft,[2] and one charge of dealing in property reasonably suspected of being the proceeds of crime.[3] On 13 September 2021, following a plea hearing on 12 August 2021, the applicant was sentenced as follows:
[1]Contrary s 72A of the Drugs, Poisons and Controlled Substances Act 1981.
[2]Contrary to s 74(1) of the Crimes Act 1958.
[3]Contrary to s 195 of the Crimes Act 1958.
Charge Offence Maximum Sentence Cumulation 1 Cultivation of a narcotic plant in not less than a commercial quantity 25 years 4 years Base 2 Theft 10 years 18 months 5 months Related summary offence 3 Dealing in property reasonably suspected of being the proceeds of crime 2 years 6 months 1 month Total Effective Sentence: 4 years and 6 months Non-Parole Period: 2 years and 6 months Pre-sentence detention: 506 days 6AAA Declaration: 5 years and 6 months, with a non-parole period of 3 years and
6 months
The applicant now seeks leave to appeal against sentence. His proposed grounds of appeal are:
1. The sentencing discretion miscarried because:
(a)the sentencing judge mistook facts material to determining the applicant’s role and, therefore to the gravity of the offending, in that the sentencing judge found, inter alia, the applicant to be responsible for dealing with the cannabis after its cultivation in circumstances where such a finding was neither advanced by the prosecution nor open as an inference from the statement of agreed facts; alternatively,
(b)even if the sentencing judge’s findings were open to be made, the applicant was denied procedural fairness in that his Honour’s intention to go beyond the joint position of the Crown and the defence as to role was not foreshadowed and the applicant was not given an opportunity to address it.
2.The sentences imposed on charges 1 and 2, the related summary offence, the orders for cumulation and the non-parole period are manifestly excessive in all the circumstances.
Circumstances of offending
On 25 April 2020, police were conducting surveillance of 3 Briar Lane, Portland (‘the premises’). At approximately 7.39 pm, the applicant was observed by police to park his car near the premises, and then enter the premises through the front door. At approximately 7.40 pm, police knocked on the front door, for the purpose of executing a search warrant under the Drugs, Poisons and Controlled Substances Act 1981. The applicant did not open the door.
As a result of hearing noises from inside the premises, police forced entry through the front door. The applicant was observed running from the rear of the house. While running towards a fence, he fell to the ground and was apprehended.
The applicant was placed under arrest and searched by police. Police located $610 cash (related summary charge 3, dealing with property reasonably suspected of being the proceeds of crime). The applicant was taken to the Portland Police Station.
Police officers commenced a search of the premises and found a sophisticated hydroponic setup including:
·a hydroponic setup throughout nine separate rooms and over two storeys of the house;
·154 hydroponic lights;
·six electrical timer units; and
·a three phase power supply connected to the house.
As a result of the power connection, Powercor were notified and asked to attend the premises. Upon their arrival, it was determined that the power to the house was bypassed and dangerous. As a result, police ceased their search of the house.
On 26 April 2020, police reattended the premises to continue the execution of the search warrant. During their search, they located and seized 296 cannabis plants, ranging in size from seedlings to mature plants. The total weight of Cannabis L seized was 133.1 kilograms (charge 1, cultivating a narcotic plant in not less than a commercial quantity).
Powercor determined that as a result of the illegal meter bypass circuit, in operation between 4 March 2020 and 25 April 2020, Powercor suffered a loss of $9932 (charge 2, theft).
The applicant participated in a record of interview. During the interview he said that:
·a person named ‘Trung’ gave him the keys to the property;
·the $610 in cash was his money, having been given to him by a friend;
·he had planned on going into the house and leaving right away;
·he was dropped off at the premises by a friend;
·he did not know about the large amount of cannabis in the house; and
·he was asked by Trung to go to the property to get a vacuum cleaner.
Between 4 March 2020 and 20 April 2020, police intercepted telephone calls between the applicant and a person said to be named ‘Pham’. During the calls, the applicant and Pham discussed the transport and purchase of cannabis seedlings. Their conversations included the following:
·On 4 March 2020, the applicant advised Pham that he would come over around noon, and then he would ‘go down there and if anything, load up and drive off’.
·On 15 March 2020, the applicant told Pham that there were ’30 guys who can go to school’. Pham asked how much, and the applicant said $170. Pham asked why it was so expensive and told the applicant to ‘bargain with them to be a bit lower’ and that ‘150 is good enough’. Pham told the applicant to ‘come up to me to pick up paper as well’.
·On 16 March 2020 at 12.38 pm, the applicant told Pham that he needed to hire one vehicle to transport the gear and another vehicle to transport the plants. The applicant said he was at the shops to get the gear, and then he would get money and go and pick up the plants; he also said that he had already brought home 90 small plants. At 2.19 pm on the same day, the applicant asked Pham where he was, so he could drive up to get money to pick up the plants. At 3.46 pm on the same day, the applicant told Pham that he had picked up the plants and was going to tell ‘brother Dat’ to come and get it.
·On 17 March at 11.39 am, Pham asked the applicant to load up for another trip. The applicant said that he would drive to the storage and ‘stack up’. At 9.17 pm that evening, Pham asked the applicant to hire a vehicle for a couple of days and go to the factory to load up.
·On 5 April 2020, the applicant told Pham that his friend had ‘several tens of plants and they can go to school now’. The applicant said they were ‘more beautiful than the other day’. He also said to Pham that there are ‘more than 30 younger plants’. Pham asked if the applicant had ‘done the garage yet’. The applicant said that the 60 plants were in the upper level and level below. Pham asked the applicant how much they would sell for and the applicant replied, ‘They said 140’.
Applicant’s role: evidence and parties’ positions on the plea hearing
In its written summary of submissions for the plea hearing, the prosecution submitted that the role of the applicant was ‘difficult to define’, although his conduct was ‘planned, organised and purposeful’. The prosecution submitted that the applicant could be categorised as having a role higher than that of a ‘crop sitter’ given the following:
(a)Between 29 February 2020 and 20 April 2020, telephone intercepts reveal the offender [applicant] and alleged principal of the enterprise had approximately 28 telephone calls.
(b)The telephone calls between the offender and alleged principal of the enterprise, reveal the offender was engaged in:
(i) transporting goods;
(ii) purchasing supplies and seedlings;
(iii) negotiating the price of seedlings from a third party;
(iv) hiring vehicles to transport the plants; and
(v) collecting money from the principal to purchase the goods.
(c)The content of the telephone intercepts further reveal that the offender held a position of trust and responsibility within the enterprise.
In oral submissions on the plea, the prosecutor submitted:
[The telephone intercept calls] show that he [the applicant] wasn’t just a hired hand tending to the crops at this house. He was involved in transporting goods. He was involved in purchasing supplies and in particular, involved in purchasing seedlings. He was involved in negotiating the price of the seedlings, hiring vehicles and collecting money from the principal. And really the content of those calls reveal that he was involved in the enterprise. He had direct conversations with the principal and in that respect, had a position of trust and responsibility within that enterprise.
The applicant’s plea counsel conceded that the applicant had a greater role than as a ‘crop sitter’. She submitted that, in addition to tending the crop, his role was in the purchasing of seedlings and hiring of vehicles for transport. She noted it was not alleged that the applicant was involved in the selling or trafficking of the cultivated cannabis, and observed that other co-accused were charged in respect of that role.
Sentencing reasons
The judge commenced his reasons for sentence with a description of the circumstances in which the applicant was apprehended, what was found at the premises, and the false answers given by the applicant in his record of interview.[4] The judge then referred to the telephone intercepts, saying that they were ‘briefly excerpted’ in the prosecution opening.[5] His Honour said that the telephone intercepts established the following propositions:
[4]DPP v Dang [2021] VCC 1328, [3]–[8] (‘Reasons’).
[5]Ibid [9].
(1)That you would transport items from the house, including plants.
(2)That you knew the price point in buying and selling cannabis.
(3)That you were entrusted to purchase items and bargain for prices related to those items.
(4)You were entrusted to take money from the principal for purposes of the cultivation and would arrange for money pick-up.
(5)You would hire vehicles to transport plants and equipment.
(6)You would purchase equipment for the cultivation.
(7)That you informed the principal as to the plants you had brought into the premises.
8)That you would facilitate the movement of plants out of the house and collection of plants. See the phone call with reference to brother Dat.
(9)That you were tasked with organising the movements of plants and their storage.
(10)That you were a conduit of information to the principal Pham about the state of the plants and whether they were ready for use.
(11)That you knew there were plants on both levels of the house.
(12)You were entrusted with the key to the crop house; and
(13)That you in fact cultivated the crop inside the house.[6]
We interpolate here that propositions (1), (2) and (4) form part of the subject matter of proposed ground 1.
[6]Ibid.
Next, the judge said that cultivation of cannabis in a commercial quantity is a serious criminal offence, carrying a maximum term of imprisonment of 25 years. The judge said that, ‘by this the legislators have indicated the gravity of this offending’.[7] His Honour then said that cannabis is a drug ‘which wreaks havoc in the minds of users, in the lives of families and individuals, particularly the young, and which often leads to criminality and progress to heavier drugs’.[8] His Honour also said that, ‘[i]t invariably involves criminal enterprises or groups, and those who involve themselves in it take a calculated risk in the face of its illegality because of its financial rewards’.[9]
[7]Ibid [10].
[8]Ibid.
[9]Ibid [11].
The judge said that general deterrence and community protection loomed large as sentencing considerations; and that the court was required to ‘denounce this continuing scourge in our society and deal with those who participate and promote it … by just punishment’.[10] The judge then said:
To assess the appropriate penalty to be imposed, the court must look at objective factors as to determine the gravity of your offending. This task is essentially achieved by defining your role, that is sometimes not able to be done with precise categorisation. Often it is difficult to assign a fully defined role to an offender in the structure of a criminal enterprise. That role is best described by an understanding of what you actually did and what can be inferred from the actions which you performed in furtherance of the cultivation in question, rather than fitting your acts into a set term or definition or category.
In my view your role was substantial. While I accept that there is no evidence that you had a role in the setup of the crop house, or the electricity bypass, it is reasonably clear that you were a close subordinate to a principal to whom you reported frequently, but who in turn entrusted you with important duties as is shown by the intercept material.
That material shows that on the one hand you were reporting to a superior but on the other that you were trusted and had a significant amount of autonomous agency in the crop and how it was to be dealt with. In that sense you were much more than a crop sitter, for example, or a mere guardian. Your role was important and indispensable even if subordinate. Therefore your role was central to the enterprise of the cultivation. So much was properly conceded during the plea.[11]
We interpolate here, that the statement, in the last paragraph of the above extract, the applicant had ‘a significant amount of autonomous agency in the crop and how it was dealt with’, forms the remaining part of the subject matter of proposed ground 1.[12]
[10]Ibid [12].
[11]Ibid [13]–[15].
[12]The first three parts being found in propositions (1), (2) and (4) at Reasons [9]: see para [12] above.
The judge then said that another aspect in determining the objective gravity of the offending was the quantity of cannabis involved. His Honour observed that, by weight, the cannabis was five times the commercial quantity; and by number, it was three times the commercial quantity. His Honour said that, ‘[t]his was clearly a cultivation of a commercial dimension’.[13] His Honour then noted, ‘[a]nother aspect [was] the timeframe involved which [was] almost two months, with daily involvement, if the intercept material is to be a guide’.[14]
[13]Ibid [16].
[14]Ibid.
Next, the judge then said that he took the applicant’s plea of guilty into consideration. He said it was made ‘reasonably early’ — a year after the charges and after three committal mentions (the matter resolving at the fourth committal mention with a hand-up brief).[15] As to the value of the plea, the judge said:
Your plea has a utilitarian value of having avoided a criminal trial. It was also made in expectation of probable incarceration and that is a relevant factor in these times of pandemic, when the burden of imprisonment is made heavier by requirements of quarantine, lockdowns, restrictions on movements and other aspects of reclusion. And particularly in the enhanced prospect of infection as we have recently seen in New South Wales correctional centres.
The plea has added value in this COVID-19 time because the delivery of justice has been severely impacted and the plea in this context is a resolution of which enables finality at a time when the court is beset by delays and mounting backlog. Your plea will reduce your sentence.[16]
[15]Ibid [17].
[16]Ibid [17]–[18].
The judge accepted that the applicant’s plea was ‘some evidence of remorse’, and that the applicant had acknowledged his responsibility and that he had done the wrong thing.[17]
[17]Ibid [19].
The judge said that he took into account the applicant’s personal circumstances, background and history — noting that the applicant had no prior criminal history; was 38 years of age; and was born in Vietnam where his family were ‘essentially subsistence farmers and poor’.[18]
[18]Ibid [20].
The judge noted that the applicant left school at the end of Year 9, before finding work as a builder’s labourer for the next ten years. The applicant was involved in a motorcycle accident in Laos, while working as a welder. He had required surgery to his face which had left him with a visible deformation. He left Vietnam by boat. It was intercepted and the applicant was taken to an immigration detention centre in Darwin. Eventually he made his way from the Northern Territory, via Sydney, to Victoria in about January 2020.[19]
[19]Ibid [21]–[23].
The judge referred to the applicant having married at the age of 27, but later separating, and having an 11 year old son with whom the applicant had some telephone contact while he had been on remand.[20]
[20]Ibid [24].
Next, the judge referred to a report from Warren Simmons,[21] a psychologist. The judge noted part of the history that the applicant gave Mr Simmons, included the applicant’s concern about being returned to Vietnam.[22] The judge referred to the applicant’s ‘mild depressive symptoms’ being ‘situationally reactive to [the applicant’s] current circumstances’.[23] He also accepted Mr Simmons’ assessment of the risk of the applicant’s recidivism as being low.[24]
[21]Dated 12 May 2021.
[22]Reasons [25]–[26].
[23]Ibid [27].
[24]Ibid. See also [29].
The judge took into account the applicant’s residential status in Australia, which he said exposed the applicant to deportation when he is released from custody.[25]
[25]Ibid [27]–[28].
The judge recognised that the applicant had worked in the community for about seven years with no criminal involvement.[26] He accepted that the applicant’s lack of English ‘may render [his] incarceration more burdensome’.[27] The judge concluded his reasons for sentence by saying:
Your prospects of rehabilitation are probably good. Prospects of deportation would deprive you of the benefit of life in this country and I take that into account.
In my view the circumstances of your involvement in this cultivation make very relevant the principle not only of general deterrence but also specific deterrence. Although this is not a major consideration, certainly not as important as general deterrence and just punishment, however given your level of involvement it remains relevant.
The period of incarceration in your case has probably already been salutary in this context. On your part you have worked in the prison system when that activity has been available.[28]
[26]Ibid [30].
[27]Ibid.
[28]Ibid [31]–[33].
Proposed ground 1: the facts material to determining the gravity of the offending?
Under proposed ground 1, the applicant contended that the judge erred in finding that his role included transporting plants from the premises;[29] finding the applicant knew the ‘price point in … selling cannabis’;[30] and finding that the applicant was entrusted to ‘arrange for money pickup’[31] — a concept which his Honour differentiated from being entrusted to take money from the principal for the purposes of the cultivation.[32] The applicant also contended that the judge erred in concluding that he had significant autonomy ‘in the crop and how it was to be dealt with’.[33] The applicant submitted that the judge, in effect, concluded that the applicant was involved ‘across the whole breadth of the commercial cultivation, not just in the steps anterior to and including the cultivation’; and that this would be ‘graver and more extensive than the role in fact occupied by the applicant’.
[29]Ibid [9(1)].
[30]Ibid [9(2)].
[31]Ibid [9(4)].
[32]Ibid.
[33]Ibid [15].
There is some force in the applicant’s submissions that the judge overstated the extent of his involvement in the commercial cultivation. The prosecution did not suggest, and there was no evidence, that the applicant transported plants from the premises; or that he had any involvement in the cultivation of the plants beyond the time at which they were taken to and cultivated at the premises. That said, we see little difficulty in his Honour’s statement that the applicant had ‘a significant amount of autonomous agency in the crop and how it was dealt with’ — at least up to and including the taking of the plants to, and maintenance of them at, the premises.
The references in the judge’s reasons for sentence to the applicant transporting plants from the house, knowing the ‘price point in … selling cannabis’ and ‘arrange[ing] for money pick up’ (as distinct from being entrusted to take money for the purposes of the cultivation) are unfortunate. They at least arguably go beyond the evidence and agreed basis upon which the applicant fell to be sentenced. The materiality of these possible errors may, however, be debated. There is no suggestion that his Honour sentenced the applicant for anything beyond cultivating. Specifically, there is no suggestion that his Honour sentenced the applicant for trafficking.
While, as we have said, one could debate the materiality of the three matters referred to in Reasons [9], there can be no debate that the applicant’s involvement in this cultivation was significantly greater than that of a mere crop sitter. On the assumption that there was an error in the sentence imposed on charge 1, the issue then becomes whether a different sentence should be imposed.[34] We will deal with that question as part of our analysis of the applicant’s complaint of manifest excess.
[34]See s 281(1)(b) of the Criminal Procedure Act 2009.
Proposed ground 2: manifest excess
The applicant contended that the sentence he received on charge 1 is the sentence that would have been imposed ‘in normal times’ — there being no perceptible amelioration on account of his plea being made during the time of the pandemic.[35]
[35]See Worboyes v The Queen [2021] VSCA 169, [39] (Priest, Kaye and T Forrest JJA) (‘Worboyes’).
The principles concerning manifest excess have been stated many times.[36] They do not need to be restated here. Cultivating a commercial quantity of a narcotic plant carries a maximum term of imprisonment of 25 years. This is indicative of the seriousness of this offence. In our view, having regard to the extensive involvement of the applicant in this cultivation (and giving full effect to Worboyes and the matters the applicant was able to call in aid in mitigation), it could not be said that the sentence of four years on charge 1 was manifestly excessive. Indeed, having synthesised all of the relevant matters again for ourselves, we think the sentence is entirely appropriate.
[36]As to which, see Clarkson v The Queen (2011) 32 VR 361, 384 [89].
It follows from what we have said above that, even accepting there was an error in the sentence imposed on charge 1 as contended for in proposed ground 1, we are not satisfied that a different sentence should now be imposed on that charge. According, ground 1, and ground 2 so far as it relates to charge 1, must be rejected.
We have, however, come to a different conclusion in relation to charge 2 and the related summary offence. In our view, a sentence of 18 months for the theft of electricity was, in all the circumstances, manifestly excessive, as was the sentence of six months for dealing in property ($610) reasonably suspected of being the proceeds of crime. We would set aside the sentences imposed on charge 2 and the summary offence; and resentence the applicant to six months’ imprisonment on charge 2 and seven days’ imprisonment on the summary offence.
The offending the subject of charge 2 and the related summary offence is inextricably linked with, and part of, the offending under charge 1. Having regard to totality, the sentences on charge 2 and the summary offence should be served concurrently with the sentence on charge 1.[37]
[37]See also s 16(1) of the Sentencing Act1991.
Conclusion
The sentences of imprisonment on charge 2 and the summary offence, and their related orders for cumulation, will be set aside. In lieu thereof, the applicant will be resentenced on charge 2 to six months’ imprisonment, and on the summary charge to seven days’ imprisonment, with both sentences to be served concurrently with the sentence of four years imposed on charge 1. This makes a total effective sentence of four years. We will fix a non-parole period of two years. We will make an appropriate declaration of pre-sentence detention. All other sentences, orders and declarations made in the County Court on 13 September 2021 will be confirmed.
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