Director of Public Prosecutions v Dang

[2019] VCC 1859

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 18-02494

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUYNH DANG

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	13 October 2019
DATE OF SENTENCE:	13 November 2019
CASE MAY BE CITED AS:	DPP v Dang
MEDIUM NEUTRAL CITATION:	[2019] VCC 1859

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry	Office of Public Prosecution
For the Accused	Mr P. Casey	Willocks Lawyers

HIS HONOUR: 

1Once again this court is called upon to sentence an offender involved in sophisticated cultivation of cannabis in a domestic residence and in sheds in small rural blocks.  In this case you, Quynh Dang, were cultivating cannabis at properties in Norlane, Winchelsea and Teesdale.  On 22 March 2018 police searched the three properties.  I will outline the facts and what was found at each of these properties. 

2The first property was at 6 Wren Street, Norlane.  On this property there was a house and a large shed.  The shed had been converted into an indoor cannabis cultivation operation.  There were three separate rooms, each with hydroponic equipment.  In total there were 48 plants weighing 29.76 kilograms.  Also found at the house were documents and passport photos in your name.  The power account at the premises was in your name. 

3You had occupied these premises, set up the cannabis cultivation system in the shed and were practically involved in the cultivation as evidenced by your DNA being found on items in the shed.  This is how the prosecution put the case against you in respect of the Norlane premises.  This factual scenario is one that you agreed to. 

4The second property was at 16 Witcombe Street in Winchelsea.  This house had four rooms converted into cannabis production.  The total number of plants was 95, weighing 28.86 kilograms.  You were residing at this address and were involved in the cultivation at this house.  Again, this is a synopsis of the agreed facts as to the how the Crown put the case against you.

5The third property was at Teesdale.  A shearing shed on that property had been converted to cultivate cannabis.  There were five rooms constructed within that shearing shed containing 165 plants, weighing 111.95 kilograms.  You assisted in the preparation of the property for cultivation.  I take that to mean that you were engaged in creating the five rooms in which the cultivating occurred.  Further you had keys to the property on you on your arrest and you were approaching the property to check on the plants when you were arrested.  This is again taken from the agreed statement of facts as set out in the Crown opening as to how the Crown put its case against you.

6Upon your record of interview, after arrest you made many false denials.  The prosecution indicted you on three charges of cultivation of cannabis.  You pleaded guilty to those three charges.  You were not indicted on cultivation of cannabis in not less than a commercial quantity.  That was what a co-accused, your brother, Hue Dang pleaded guilty to in January 2019.  That is, in respect of the combined cannabis under cultivation at the properties at Norlane and Winchelsea.

7He was not dealt with for the third property at Teesdale.  His sentence was three years and six months with a non-parole period fixed at two years and seven months.  The three offences of cultivation of cannabis each carry a maximum term of 15 years.  The maximum term faced by your brother for cultivation of not less than a commercial quantity, one single offences was 25 years.  You will not be sentenced for a crime that you have not been indicted on or pleaded guilty to, that is cultivation of not less than a commercial quantity of cannabis.  But that said, the quantity of cannabis here makes each of these offences very serious examples of the crime of cultivation, sometimes referred to as cultivation simpliciter.

8The Court of Appeal has made clear that the gravity of drug offences is closely connected to the quantities involved.  The amount at the Norlane property is half the commercial quantity, as measured by plants and just over a commercial quantity measured by weight.  At Winchelsea it was just five plants short of the hundred that established commercial quantity and was just over the commercial quantity by weight.  At the Teesdale property, the amount of cannabis was much larger, 1.65 times the commercial quantity for plants and over four times the commercial quantity by weight.

9I use the commercial quantity categories simply as a guide to how much cannabis was under cultivation.  Thus on any measure these are serious examples of cultivation of cannabis.  The amounts of cannabis is significant and the profits likely to be very substantial.  It was spread over three properties at a distance from each other.  Your involvement was as an essential cog in this entrepreneurial drug enterprise.  You say you provided labour and skills in the practical setting up of these cannabis operations.  This is important, that is setting up the cannabis indoors is important in the overall cultivation.

10Thus your role was as an important cog in the criminal enterprise.  So much was conceded by your counsel.  Well, I must be cautious in considering the sentence imposed on your brother, the co-accused because of the longer maximum term.  Nonetheless, your sentence must reflect the fact that you and not him were involved in the largest cultivation at the Teesdale property.  You must face the consequences of what you engaged in, which was cultivation of hundreds of plants.

11The overall intent was to secure the greatest yield possible, which was only thwarted by the coordinated raids by the police.  As it turns out you were in Vietnam for nine days, returning to Australia just the day before these raids.  I was told that you went to each property just after the raids on the morning of
22 March, finally going to the Teesdale property.  As the police were there, you endeavoured to escape but were arrested by the police.

12What was said by the Court of Appeal in respect to these matters in Nguyen and other cases are that these cultivation methods and the methods here were sophisticated.  The lighting that had been installed was such as to allow these plants to be grown indoors and out of sight.  The power had been bypassed to allow for higher volumes of electricity to be consumed without detection and without cost.  You were not charged with any theft of electricity and it is important that you are not punished as if you were charged. 

13Nonetheless, the cost of electricity that was said to be stolen at Teesdale was in excess of $20,000.  This just gives some further detail or emphasis as to the sophistication and gravity of this particular cultivation.  The whole operation involved expensive equipment, indicating that significant resources had been expended on the basis that large quantities of cannabis would be cultivated leading to significant profit.  The systems at these properties are what is often found in suburban or country houses or sheds or factories that have been converted into cannabis production operations.

14The crime is hard to detect and is very difficult to establish who are the main or central players in the cannabis production and distribution chain.  Before referring to further matters set out in recent Court of Appeal decisions, what needs to be understood and never forgotten is that cannabis that is grown by the cultivators ultimately has serious effects on many users and our community bears a great cost while entrepreneurial cannabis cultivators profit significantly.

15The Court of Appeal in Nguyen in recent times has said, that is in 2019, said this in respect of trying to determine or the task of determining the role, one or other of the people arrested.  It referred to the concept of a crop sitter but it is important to understand the overall principle when dealing with matters such as this.  Paragraph 59, Justices Beach and Priest said the following:

'While cases involving commercial cultivation of narcotic plants are often categorised by reference to what the accused is, on the one hand a crop sitter or ancillary role or on the other hand was an organiser or played a principal or propriety role.  The issue of role of an offender involved in such offending is not a binary one.  Moreover while a term crop sitter may be a useful shorthand description in a case where it is clear the offender's role is a low level one, it is not a term of art with a fixed and precise meaning.

'A sentencing judge is required to sentence an offender found guilty of commercial cultivation of a narcotic plant by reference to all the facts of the case including all those able to be gleaned about the offender's role and involvement and not by reference to whether the offender can be given some particular appellation'.

16The Court of Appeal went on to cite the important decision, High Court decision of Albrecht in respect of fact finding about roles.  In Albrecht, the High Court said:

'We do not accept that the identification of the precise nature of an accused's involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process'. 

17And in the present case, the precise nature of the involvement of the respondent in the act of importation was known, at least in the sense it was known that he had brought the drugs into Australia.  He was the importer.  In this case, it was said, as I have outlined, that you provided essential labour in the setting up of these cannabis operations.  What can be said is that you have pleaded guilty to cultivation.  In that sense you are a cultivator but it does seem to me that I can determine from all the facts that you were not at a level of having some propriety interest in these crops but rather were recruited into this enterprise by others including your brother.

18As to your personal circumstances, you are now 37, three years younger than your co-accused's brother.  You were born, raised and educated to a tertiary level in Vietnam.  You have a qualification in accountancy, however, after gaining this qualification at age 22, you had a serious motorbike accident.  It was said that you suffered serious head injuries or nerve injuries and have suffered headaches thereafter.  You also suffer from post-traumatic stress disorder.

19You worked in Vietnam as a public servant connected to the insurance industry.  You met your wife when she visited Vietnam from Australia in 2013 and came to Australia in September 2013 on a spouse visa.  You and your wife have one son.  You and your wife separated in October 2017.  You moved to live first in St Albans but when you could no longer stay at those premises, you moved to Norlane where your brother was.  He had only been in Australia for a short time and was overstaying a tourist visa.

20You say that you got involved or were recruited by him into this cannabis cultivation enterprise.  You on arrival in Australia learnt various handyman skills from 2013 and onwards and established a small business providing handyman services to those in the Vietnamese community.  This is what you brought to the criminal enterprise.  You have no prior or subsequent criminal convictions.  This is an important matter in mitigation.  Although separated, your wife remains supportive.  Your support of her and your son financially continued after the separation.

21You are an Australian citizen.  It was said your prospects for reform a good.  That seems accurate given your good character to this point and the support that you have.  Your plea of guilty was just before your trial was to be called on in the current circuit.  Thus it is in one sense a late plea, however, I do not ignore that until very recently you faced the more serious charge of cultivation in not less than a commercial quantity.  Once the matter was negotiated your plea of guilty to the three charges is different from what you faced at the time the trial was to be called on.  Thus your plea of guilty is of value and your sentence will be less than otherwise would have been the case.

22I must ensure that proper weight is given to denouncing your crimes.  This sentencing purpose is met by ensuring that the denunciation has a practical dimension of punishment by the imposition of years of imprisonment.  So, too must I follow the Court of Appeal directive that sentences must deter all those that may be tempted to be involved at whatever level in these pernicious drug enterprises.  Your rehabilitation is not overlooked and these is sound prospects but it must yield to other sentencing purposes.  Thus I will facilitate your rehabilitation by allowing for a potential period on parole but it is for others to determine when and if you are conditionally released on parole.

23Can you please stand Mr Dang.  Charge 1, the cultivation of cannabis at the Norlane premises, you are sentenced to 18 months' imprisonment.  Charge 2, the cultivation of cannabis at the Winchelsea premises, you are sentenced to 18 months' imprisonment.  Charge 3, the cultivation of cannabis at the Teesdale premises, you are sentenced to two years' imprisonment.  I order that eight months of Charge 1 and eight months of Charge 2 be cumulative upon each other and upon the sentence imposed on Charge 3.  This gives a total effective sentence, if my maths is right, of three years and four months and I order that you serve a non-parole period of two years and two months.

24Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of four years and six months with a non-parole period of three years and six months.  I am told that you served 34 days before being granted bail.  This figure having been reckoned, I now declare that it is apart of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have already served 34 days of the sentence I have just imposed.

25There are orders that I am asked to sign relating to the forfeiture and disposal of items connected to these properties and I will sign those orders.  While I am doing that, is the mathematics correct?

26MR McKENRY:  Yes, Your Honour.

27MR CASEY:  Yes, Your Honour.

28HIS HONOUR:  Thank you.  Is there anything further?

29MR McKENRY:  No, Your Honour.

30MR CASEY:  No, Your Honour.

31HIS HONOUR:  Thank you very much.  You have been of significant assistance.  Mr Dang can be taken downstairs­ to commence this sentence.  If you require the interpreter, I take it you do not?  No.  Madam Interpreter, thank you very much for all your assistance.

32INTERPRETER:  Thank you, Your Honour.

33HIS HONOUR:  You are free to head away, thank you.  Mr Dang - no, no,
Mr Dang.  Mr Dang please move.

34INTERPRETER:  Will I be allowed to take my clothing?

35HIS HONOUR:  No.  Mr Dang's solicitor will sought that out.  It is always difficult, Mr Casey but anyone involved in the criminal law needs to advise their clients that these processes have been taken away are difficult but they must be adhered to otherwise we will get things - break out of things that we do not need in a courthouse like this.

36MR CASEY:  I am not sure what happened there.

37HIS HONOUR:  Nothing.  Nothing, other then he was uncertain whether he should leave or get his clothes or any of those things.

38MR CASEY:  I did not even know he had clothes here.

39HIS HONOUR:  Neither did anyone.

40MR CASEY:  Yes.

41HIS HONOUR:  But his solicitor will sought it out later.

42MR CASEY:  Yes.

43HIS HONOUR:  That is what that was about.

44MR CASEY:  I see.

45HIS HONOUR:  Yes.  Thanks.  I will just stand down, then we will bring
Mr Donohue up and we will commence with his matter.  Thank you very much.

46MR CASEY:  Thank you, Your Honour.

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