Director of Public Prosecutions v Dang
[2024] VCC 2081
•18 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01307
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| XUYEN DANG |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 November 2024 | |
DATE OF SENTENCE: | 18 December 2024 | |
CASE MAY BE CITED AS: | DPP v Dang | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2081 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Cultivation of a commercial quantity of a narcotic plant – Charged as single date offending – Lower level role tending the crop –– Statutory threshold for a commercial quantity easily surpassed – Sophisticated commercial operation – Relatively early plea and remorse – Previous good character – Good prospects of rehabilitation.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, s 72A; Sentencing Act 1991, ss 6AAA, 18.
Cases Cited:DPP v Rzek [2003] VSCA 97; The Queen v Clohesy [2000] VSCA 206.
Sentence: Total effective sentence of 3 years’ imprisonment with a non-parole period of 18 months.
s 6AAA:But for the plea of guilty, a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years and 9 months would have been imposed.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr C. Brydon (Plea) | Office of Public Prosecutions |
| For the Accused | Mr A.S. Dickenson | Giorgianni & Liang Lawyers |
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HIS HONOUR:
Introduction
1
Mr Dang, you have pleaded guilty to a single charge of cultivating a commercial quantity of a narcotic plant.[1] The maximum penalty for that type of offence is
25 years’ imprisonment.
[1] Charge 1 on Indictment Q10585609, laid pursuant to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
2You committed this offence on 19 March 2024 at age 40. You are now 41, having been born in Vietnam in April 1983. You travelled to this country on a tourist visa but are now on a bridging visa.
Circumstances of the offending
3The full circumstances of your offending are set out in the typed Summary of Prosecution Opening for Plea,[2] which your counsel acknowledged could be treated as an agreed statement of facts for sentencing purposes.
[2] Dated 14 October 2024 (Exhibit A).
4I have been mindful that the prosecution opening sometimes makes reference to events and circumstances that you are not alleged to have been involved with. Whilst such background provides a necessary context in which to assess your offending, it must be kept in its proper perspective to ensure you are not sentenced on some wider or different basis than the one on which you have been indicted.
5The basis on which you fall to be sentenced was discussed, to some extent, during the plea hearing. I have had regard to those discussions and, with the previous caveat, to the prosecution opening, when determining the appropriate sentence in your case. For present purposes, your offending can be summarised as follows.
6On 15 December 2023, a commercial premise at 11 Leo Street, Fawkner was purportedly leased to China Australia Investment Pty Ltd. The lease agreement was purportedly signed by an individual named Luman Chen in their capacity as sole director or secretary of that company. That same individual was also listed as guarantor under the agreement.
7The property housed a small warehouse style building which was surrounded by a tall fence and gate which prevented vehicle and pedestrian access when closed.
8On 20 December 2023, an electrical bypass was installed at the property.
9Between 15 December 2023 and 19 March 2024, makeshift walls were fitted to create several smaller rooms within the building. Five of those makeshift rooms contained pots of cannabis plants with heat lamps installed on the ceiling. In total, 266 lights were installed. An irrigation system designed to water the plants was also installed, requiring nine water pumps and dedicated piping. Two large exhaust fans were also installed on the roof of the building.
10On 9 January 2024, your co-offender, a 25-year old male named Hieu Nguyen, rented a white Ford Transit van (‘the van’).
11At approximately 1:30pm on 22 February, the van was parked at the property. As evidenced by your call charge phone records from that day, you were in the vicinity of the property between 2:34pm and 4:25pm.
12On 14 March, you and Mr Nguyen again attended the property in the van, entering through the front gate which you then closed behind you. The two of you remained there for nearly three hours, leaving shortly before 3.00pm.
13Soon after leaving in the van being driven by Mr Nguyen, you were intercepted by police who detected a strong smell of cannabis emanating from the van.
14On 19 March, at approximately 2:38pm, you and Mr Nguyen again attended the property in the van.
15After entering the property, you tended to and watered the cannabis plants using the irrigation system.
16Later that day, at approximately 3:00pm, police executed a search warrant at the property. You and Mr Nguyen were located inside the property and arrested.
17A total of 566 cannabis plants were located, photographed and seized by police. In total, the plants weighed 297.71kg.[3] The number and weight of the plants, which were at varying stages of maturity, by reference to the five makeshift rooms in which they were located, are as follows:
·In room 1, there were 36 cannabis plants weighing 75.06kg;
·In room 2, there were 50 cannabis plants weighing 118.72kg;
·In room 3, there were 181 cannabis plants weighing 35.76kg;
·In room 4, there were 50 cannabis plants weighing 65.14kg; and
·In room 5, there were 249 cannabis plants, weighing 3.03kg.
[3] Photographs of the cannabis plants and the white Ford Transit van were tendered on the plea (Exhibit B).
Arrest and interview
18Following your arrest, police interviewed you with the assistance of an interpreter. During that interview, you told the police the following things, among others:
·You were hired by someone to go to the property and water the cannabis plants;
·You had moved plants between pots and between rooms when directed to do so;
·You had been told you would be paid cash but were yet to receive any;
·You estimated there were a few hundred plants growing at the property; and
·You claimed not to know what type of plants they were.
Pre-sentence detention
19After the interview, you were charged and then remanded in custody. The total period of pre-sentence detention for this matter is therefore 274 days, up to but not including today's date. A formal declaration to that effect will be made shortly.
Status of co-offender
20For the sake of completeness, I note that Mr Nguyen was also charged but failed to appear in accordance with his bail at a directions hearing on 5 September this year. A warrant for his arrest was issued but has not yet been able to be executed. His current whereabouts are unknown.
21Obviously, the parity principle has no relevance in such circumstances.
Guilty plea
22I note that this matter resolved at committal stage once the informant was cross-examined and the prosecution agreed not to pursue the more serious charge of cultivation of a large commercial quantity of a narcotic plant.
23In such circumstances, your plea is to be viewed as one entered at a relatively early stage of this proceeding.
Remorse
24Given the admissions you made when interviewed and your preparedness to plead guilty to this charge, I am satisfied that you have demonstrated remorse for what you did.
No prior or subsequent criminal history
25I note that you fall to be sentenced as a first-time offender as you have no prior or subsequent criminal history.
Personal circumstances
26I now turn to consider your personal circumstances, Mr Dang.
27Your background is helpfully and succinctly set out in your counsel’s written submissions, to which I have had regard.[4]
[4] Undated (Exhibit 1).
28As previously noted, you were born in Ha Tinh Province, Vietnam, and are now aged 41.
29Your elderly parents are both retired farm workers. Your father is currently hospitalised and in poor health. You have an understandable concern that you may not get to see him again before he dies. You have two surviving siblings, an older brother and an older sister. All of your family members live in Vietnam save your brother who currently resides in South Korea.
30Your parents could not fund your education beyond Year 7, at which time you started working alongside them on a farm. You continued to perform that role until age 17 or 18 at which time you commenced to work as a fisherman on a Korean registered fishing boat. It was hard and poorly paid work which required you to be at sea for very lengthy periods. From your meagre wages, you attempted to pay what you owed to the broker who facilitated you getting the job and you sent what other money you could to support your parents. You continued working in this role for 8 to 9 years, eventually leaving in about 2011. You then returned to farming work with your family in addition to performing other jobs, including construction work. Even so, you barely made enough money to support your family.
31You met your wife in 2005. The two of you went into debt in order to get married in 2007. The three daughters from that relationship are now aged 14, 7 and 4, respectively. Your wife and children continue to reside in Vietnam. They have had regular but limited contact with you since your incarceration, consisting of fortnightly phone calls. They struggle financially and rely on the generosity of other family and friends.
32Shortly after coming to Australia on a tourist visa in 2016, you managed to obtain work on a farm and as a handyman, again through the assistance of a broker. However, by that time you were in considerable debt. According to your counsel, you have been in this country on a bridging visa for the past 4 to 5 years.
33You have no issues with alcohol or drugs.
34You have never been in trouble with the law other than on this occasion.
35You are likely to be deported back to Vietnam at some stage after you are sentenced for this offence, which would have the practical effect of reuniting you with your immediate and extended family. However, I accept that you are likely to worry about their welfare during your sentence and this will make your experience of custody more burdensome as will the fact that you are inexperienced in the prison system and English is not your first language.
Matters in mitigation
36Your counsel was able to rely on a number of matters in mitigation on your behalf, including the following.
37You have pleaded guilty to this offence at a relatively early stage. By doing so, you have facilitated the course of justice and spared the community from the cost and time of a trial.
38You are remorseful.
39You are a person of previous good character who has sound prospects.
40You have a good work history and a strong work ethic.
41You enjoy the continued support of your family with whom you hope to be re-united relatively soon.
42You have attempted to use your time on remand productively and to that end, have completed a certificate in gardening and worked as a gardener.
Relevant statutory regime
43The offence of cultivating a commercial quantity of a narcotic plant is a category 2 offence[5] and as such, the court is required to impose an immediate term of imprisonment other than one imposed by way of a combination sentence, unless the court is satisfied that any of the statutory exceptions apply.[6] Your counsel realistically did not seek to engage any of those exceptions in your case, and I can see no basis for finding any.
[5] As defined in s 3(1) of the Sentencing Act 1991 (Vic).
[6] See section 5(2H) of the Sentencing Act 1991 (Vic).
Gravity of the offending
44This court must also have regard to the gravity of your offending, Mr Dang.
45This type of offence is inherently serious as can be gleaned from the high maximum penalty which Parliament has seen fit to fix, namely 25 years’ imprisonment, and from its categorisation as a category 2 offence.
46Even before the category 2 legislation was enacted, it had been noted at appellate level that, save perhaps in exceptional circumstances, cultivation of a commercial quantity of cannabis requires the imposition of a custodial sentence.[7]
[7] DPP v Rzek [2003] VSCA 97, [1] (Nettle JA).
47And, as the Court of Appeal have observed in respect to the statutory hierarchy of cultivation offences, the number and weight of the cannabis plants being cultivated is an important but not determinative factor when it comes to determining the appropriate sentence. At 566, the number of plants represented more than five-and-a-half times the threshold for a commercial quantity[8] and over half the statutory threshold for a large commercial quantity.[9] Even by reference to weight the figure of 297.7kg exceeds the statutory threshold of a large commercial quantity[10] by nearly 50kg,[11] but it is not suggested that you had, nor are you to be sentenced as if you had, the necessary mens rea for that more serious offence.
[8] 100 plants.
[9] 1000 plants.
[10] 25kg.
[11] 250kg.
48Other important considerations for this court when assessing the relevant seriousness of a given offence, are the role played by the offender and the period of time over which any offending occurred.
49You appear to have played a lower level and fairly menial role as one of the people who tended to the crop and ensured the plants were watered and moved as required. However, what you did was nonetheless vital to the health and good management of the crop and therefore important to the viability of the criminal enterprise itself.
50You have been charged on a single date basis and so fall to be sentenced for what you did on the date of your arrest. However, it is clear that you had some prior knowledge of what was going on at that address as is evident from your previous attendances. Whilst you are not to be sentenced for those prior attendances, they prevent you from claiming that your involvement on the day of your arrest was isolated or spontaneous or somehow just ‘came out of the blue’.
51This was a well set up and sophisticated operation dedicated to making money and you must have known that.
52The fact that these cannabis plants were at varying stages of maturity suggests that this was designed to be an ongoing criminal enterprise. I have no doubt that had police not intervened when they did, you would have continued to involve yourself in this illegal commercial operation.
53Another relevant consideration is your motivation for offending as you did. In your case, it seems to have been for financial reward, albeit in a context where you were in debt and struggling financially.
54In my view, your level of moral culpability for this offending is moderate.
55In all of the circumstances, I consider this to be a relatively serious offence which falls at the mid part on the spectrum of seriousness for this type of offence.
Relevant sentencing principles
56When dealing with this type of offending, this court must attach considerable importance to general deterrence[12] and denunciation. This type of offending is prevalent and difficult to detect. The community is justifiably concerned about the damage that drugs cause in our society.
[12] The Queen v Clohesy [2000] VSCA 206, [8] (Buchanan JA with whom Winneke P and Callaway JA agreed).
57On behalf of the community, this court must denounce such criminal conduct as being totally unacceptable to a civilised society. By the sentence it imposes on you today, this court must also seek to deter you and, even more importantly, other like-minded individuals from engaging in this or any similar type of criminal conduct. Such would-be offenders must be left in no doubt that if they are caught and prosecuted for being involved in this type of crime, the consequences for them will be very serious and outweigh any benefit they expect to receive from committing such a crime.
58Like specific deterrence, I consider protection of the community to be a relevant but not the most important of the sentencing principles to be given effect to.
59You must be justly punished for the offence for which you now fall to be sentenced. As I have already effectively observed, it was a relatively serious example of an offence that attracts a significant maximum penalty and must therefore be viewed and treated seriously.
60Your age and prospects of rehabilitation must also be considered. At age 41, you come before this court as a mature age first time offender. As this is your first experience of being in prison, I am prepared to accept that your time spent on remand to date has already achieved a degree of personal deterrence. As best I can tell from the available material, you are unlikely to reoffend and have good prospects of rehabilitation. I intend to facilitate and encourage those prospects by fixing a somewhat disparate non-parole period when compared to the head sentence.
Sentencing submissions
61Whilst acknowledging that your offending was serious and warranted an immediate term of imprisonment, your counsel urged the court to impose the minimum sentence possible given your age and previous good character, particularly when it comes to the fixing of any non-parole period.
62For their part, the prosecution submitted that the seriousness of this offending was such as to call for the imposition of an immediate custodial penalty in the form of a head sentence with a non-parole period.
Analysis
63In my view, the nature and seriousness of this offending is such as to warrant an immediate term of imprisonment which will require the fixing of a non-parole period.
64If the court were to do otherwise, it would be failing in its duty. Any lesser sentence would not represent a just punishment for this offending and would fail to recognise and accord due weight to a number of important sentencing principles, including general deterrence and denunciation.
Sentence
65Mr Dang, after having carefully considered, balanced and weighed the relevant sentencing considerations in your case as best I can, I have decided to sentence you as follows.
66On Charge 1, cultivating a commercial quantity of a narcotic plant (Cannabis L), you will be convicted and sentenced to a term of 3 years’ imprisonment.
67In respect of that sentence, I fix a non-parole period of 18 months.
Pre-sentence detention
68Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served a total of 274 days of pre-sentence detention, not including today's date, in respect of today's sentence. I order that such period is to be reckoned as already served under that sentence and that the declaration and its details be entered in the records of this court.
Section 6AAA indication
69Pursuant to s 6AAA of that Act, I indicate that but for your plea of guilty you would have been sentenced to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years and 9 months.
Disposal order
70I note that the prosecution’s application for a disposal order was not opposed by your counsel. In all the circumstances, I am prepared to grant that application and so make the order in the terms sought by the prosecution, pursuant to s 78(1) of the Confiscation Act 1997.
Other matters
71Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Mr Dickenson?
72MR DICKENSON: No, thank you, Your Honour.
73MS RICHTER: No, Your Honour.
74HIS HONOUR: Thank you, Ms Richter.
75Mr Dickenson, if you wish you may briefly consult with your client using the current video link once I leave the Bench.
76MR DICKENSON: I'm grateful for that, Your Honour, thank you.
77HIS HONOUR: Madam interpreter, thank you for your assistance during this hearing. It may no doubt be of assistance if you were able to assist Mr Dickenson in the short conference that he proposes to have with his client using that video link. So if you could just remain briefly for that purpose the court would be indebted, thank you.
78INTERPRETER: I will, Your Honour.
79HIS HONOUR: Thank you to each counsel for your assistance during the hearing of this matter. I will stand down until the next matter is ready to proceed at 2.15. Thank you.
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