Director of Public Prosecutions v Dang

[2019] VCC 1541

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00023

DIRECTOR OF PUBLIC PROSECUTIONS

v

MINH HUU DANG

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2019
DATE OF SENTENCE:	20 September 2019
CASE MAY BE CITED AS:	DPP v Dang
MEDIUM NEUTRAL CITATION:	[2019] VCC 1541

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Cultivation of a narcotic plant – commercial quantity – Proceeds of crime. 

Legislation Cited:  5(2H) Sentencing Act 1991.

Cases Cited:Nguyen v The Queen [2010] VSCA 11, DPP v Duong [2010] VSCA 250, Tuan Doan v The Queen [2010] VSCA 250.

Sentence:Total effective sentence of two years and three months imprisonment with a non-parole period of 18 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr I. Harrison	Director of Public Prosecutions
For the Accused	Ms I. Conwell	Stary Norton Halphen

HIS HONOUR: 

1Minh Huu Dang, this morning, on 20 September 2019, you pleaded guilty to one charge on indictment No.J12256376.  Charge 1, cultivate a narcotic plant, Cannabis L, in not less than a commercial quantity.  This charge has a maximum penalty of 25 years' imprisonment. 

2Pursuant to s.145 of the Criminal Procedure Act, a related summary charge was transferred to this court to be heard at the same time.  You consented to the related summary charge being heard at this court, and you pleaded guilty to Charge 5, which was deal with property reasonably suspected of being the proceeds of crime, being $11,000.  This charge has a maximum penalty of two years' imprisonment.

Circumstances of your offending

3The prosecutor tendered an amended summary of prosecution opening, dated 4 September 2019.  This was Exhibit “A” on the plea.

4On 27 August 2018, you were present at 7 Embankment Grove in Chelsea when police executed a search warrant at that address.  A search of the premises located 136 cannabis plants, weighing a total of 31.32 kilograms.  These quantities are 1.3 times the commercial quantity for the number of plants, or 1.25 the commercial quantity for the weight of a narcotic plant.

5The prosecution concedes that your role was that of a crop sitter in that you tendered to the plants during an 11-week period from 11 June 2018 to
27 August 2018.  Your duties were to feed and water the plants, as well as clean the premises.  You were paid $1,000 per week to fulfil that role.

6You were born in 1988.  You are a Vietnamese citizen.  You are currently 30 years old.  At the time of the offence, you were 29.  You arrived in Australia on a student visa on 11 March 2016.  That visa was cancelled on
12 September 2017, and at the time of these offences, you were unlawfully in Australia.

7In August 2018, the Victoria Police commenced an investigation in relation to a suspected cannabis crop being grown at the residential address located at
7 Embankment Grove in Chelsea.  At approximately 9.50 am on 27 August 2018, police executed a warrant at that residential address.  A silver Nissan Maxima vehicle, registered number UNI322, was in the driveway of the address at the time.  That vehicle was registered to you. 

8You were located in the rear sunroom by police as you were trying to escape out the window.  You were arrested by police and given you a caution, and your rights.  You were the only person located at the property by police.

9In the sunroom, police observed a single bed, food items and clothing.  You had two mobile phones and a silver laptop which were on the bedside table. 
A police member observed a set of keys in the back of the door which was at the end of your bed.  One of the keys was a car key for the Nissan which was parked in the driveway.

10During the search of the house, police members located four rooms which contained cannabis plants at different stages of growth.  The plants were potted individually and had overhead lighting.  The rooms were blacked out with white plastic material which blocked out the sunlight.  The central location for the irrigation was the bathroom, which had multiple bottles of chemicals and liquids in the bathtub.  Multiple fertilisers and soil products were also located.  A large electrical switchboard was hanging from a wall in the sunroom, which had multiple leads running from it.

11Police labelled the four rooms 'one' through to 'four.'  In room 1, 91 small cannabis plants were seized.  In room 2, 20 cannabis plants were seized. 
In room 3, 12 cannabis plants were seized.  And in room 4, 13 cannabis plants were seized.

12At approximately 11 am on that day, a botanist, Kylie Slattery, from the Victorian Police Forensic Services Centre, came to the address.  Ms Slattery examined the plants in situ and found them to be Cannabis L.  The cannabis crop was then dismantled, photographed and weighed.  In total, there were 136 Cannabis L plants which had a combined weight of 31.32 kilograms.

13Ms Slattery found that the youngest plants had been growing for between two to three weeks, and the oldest plants had been growing for between 11 and
13 weeks.  In the kitchen dining area, there was a large quantity of root ball remains from a previous crop, along with fertiliser and irrigation equipment.  Those matters form the basis for Charge 1, cultivating a narcotic plant in not less than a commercial quantity.

14A power technician carried out an inspection of the property and found an illegal meter bypass connected in the roof cavity of the house.  The electricity used by the lighting equipment was supplied through the illegal connection, and was not recorded on the house's metering installation.  The prosecution accept that your role was that of a crop sitter, and that you were not responsible for the installation of that electrical bypass, nor the harvesting of the cannabis plants.

15During the search of your Nissan sedan, a large quantity of cash was found in your wallet and in the centre console of the car.  The money was removed from the car and photographed and counted.  A total of $2,255 was found.

16During the course of your record of interview with the police, you admitted you were paid $1,000 a week for 11 weeks.  The total sum of $11,000 is the basis of summary Charge 5. 

17You were arrested and taken to the Moorabbin police station.  You were interviewed by police at the police station, with the assistance of a Vietnamese interpreter.  You answered all questions that were put to you, and made admissions to the cultivation of cannabis plants.  In part of your answers, you stated as follows:

(a), that had you been at the crop house for approximately three months;

(b), that you were working as the delivery driver in Springvale when you were approached about living in the house.  You were taken to the house at
7 Embankment Grove, Chelsea, and told that they needed someone to look after the plants and to water them.  The house was already set up with the plants in place.

(c), you fed and watered the plants as well as cleaned up, but someone else by the name of Chien came to the house to plant new plants.  Chien also came in to harvest the plants.  After a harvest of a crop, it was very messy, and you did the cleaning of the floor and tidying up after that had happened. 

(d), you were the only person living in the house.  You did not pay any rent or bills for the house, but you were paid $1,000 a week to look after the plants.  The money referred to that was found in your car was part of that payment you had received. 

(e), that you believed that there may have been 44 plants in the house, but maybe 120 with the small ones included.  You stated that there had been two separate harvests whilst you had been at the address.  You stated you did not sell or use cannabis.

(f), you told the police that 'they' - that is, the people organising this - also bring you plants and take away plants at times from the house.  You stated the last time that they brought plants to the house was approximately one to two weeks ago, and they did a harvest on that day.

18You have been in custody for a total of 389 days on remand for these charges, not including today. 

Personal Circumstances

19You are now 30 years old.  At the time of your offending, you were 29 years old.  You are a Vietnamese national.  You were born in central Vietnam.  Initially, your father was a driver and your mother was engaged in home duties.  You are the eldest child of three children in the family.

20You completed a high school education and then completed tertiary education to qualify as an accountant in Vietnam.  In 2016, you came to Australia on a student visa.  By that time, your family had commenced a business of ice-making for the fishing industry in Vietnam.  The family plan was for you to come to Australia to learn English initially and then become a qualified accountant here in Australia.  Your family provided $3,000 AUD per month to fund your studies whilst here in Australia.

21In 2017, your family's business premises were destroyed in a storm. 
The financial support from your family dried up as a result of that storm and damage.  You withdrew from your studies, and your student visa was cancelled on 12 September 2017.  You commenced working as a driver at the Springvale Market.

22You were approached to take up the role of a cultivator and crop minder at a cannabis grow house in Chelsea.  You were to be paid $1,000 a week, and all expenses were paid at the house.  Your offending was over a period of
11 weeks.  You were paid the $1,000 per week for that period. 

23You will be deported to Vietnam at the completion of your sentence.  You have no prior convictions in Australia.  You have tertiary qualifications in Vietnam. 
It is anticipated that you will work in the family business upon your return to Vietnam.  Your family knows of your criminal conduct here in Australia and your current position.

Sentencing Considerations

24The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, your rehabilitation and denunciation of your actions, and the protection of the community. 

25I have to have regard to the seriousness of the offence, your culpability for it, and your personal circumstances.  I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, offenders such as yourself are rehabilitated and reintegrated into society, either here or elsewhere.

26You are a relatively young man.  You have no prior convictions here in Australia, and nothing contrary to your prior good character in Vietnam.  This is your first period of incarceration.  You have been in custody for a total of 389 days. 
You cooperated with the police and gave full and frank answers to the police in your record of interview with them.  I accept that your cooperation is a sign of remorse and acceptance by you of your criminality.

27I have taken into account your plea of guilty.  Your plea of guilty is at an early stage.  You offered to plead guilty to the current charges before the court as early as November 2018.  A committal hearing was conducted on a submissions-only basis for charges that are no longer pursued here at court.  You are entitled to the full benefit of an early plea of guilty.

28Your plea of guilty to these charges has utilitarian value to the community. 
Your plea of guilty has saved the community the expense of court proceedings, including a trial.  Your plea of guilty has given a certainty of outcome for this case, and your plea of guilty is evidence of your remorse.  I accept that you are remorseful for this offending.  Your plea also demonstrates that you are willing to facilitate the course of justice in this community, and it indicates that you accept your responsibility for the criminal conduct. 

29I accept that your time in custody will be accompanied by a degree of hardship due to the isolation from your family in Vietnam.  Your contact with your family is limited to phone calls only.  I take this element of hardship into account when fixing the appropriate sentence.

30The objective seriousness of your offending is indicated by the following factors:

(1), the hydroponic and electrical setup for the growing of cannabis was a sophisticated operation.  The prosecution accept that you had no role in the process of setting it up;

(2), you were involved in watering and feeding the cannabis plants at the premises for a period of 11 weeks;

(3), your reason for offending was for financial gain.  In your case, you were paid $1,000 per week for the 11 weeks;

(4), your role also involved the cleaning of the house after others had harvested the crop at the house;

(5), it is accepted that there is no evidence that you had any financial interests in any of the cannabis grown at the premises;

(6), the prosecution accept that you were in the role of a crop sitter at the house, and;

(7), the crop was 1.25 times the commercial quantity by weight.

31I find that you are in the low range for the offence of cultivating cannabis not less than a commercial quantity.  Nevertheless, your role as a resident crop sitter is a critical role in growing cannabis.  You water and feed nutrients to the plants.  Whilst you are a relatively minor cog in a much larger criminal enterprise, the whole process fails unless people like yourself undertake the role of crop sitter.

32As part of the governing principles to be considered in sentencing, I must take into account the current sentencing practices.  That inquiry is directed particularly but not exhaustively to the kind of sentences imposed in comparable cases.

33I have considered the statistics in relation to these sentences and the current sentencing practices.  I am mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case as indeed they are from one another. 
Current sentencing practices are but one of the factors I am required to have regard to in fixing your sentence. 

34Section 5(2H) of the Sentencing Act is relevant because this offence is a Category 2 offence. Your counsel, Ms Conwell, appropriately conceded that you could not satisfy the requirements under s.5(2H), (a), (c), (d), or (e), which means a period of imprisonment is the only appropriate sentence.

35The Court of Appeal here in Victoria has made a number of pronouncements on the seriousness of the charge of cultivating a commercial quantity of Cannabis L.  The President of the Court of Appeal, Justice Maxwell, in a case of Nguyen v The Queen [2010] VSCA 11, said this about the seriousness of the offence, and I am quoting him:

'As has been readily pointed out in sentencing decisions, this is an offence for which Parliament has set the highest fixed maximum in the criminal calendar, 25 years' imprisonment.'

36In a later case of DPP v Duong [2010] VSCA 250, Justice of Appeal Buchanan noted:

'The maximum penalty of 25 years shows unambiguously how seriously the community, through Parliament, views this conduct.'

37The case of Doan was followed by a case of Tuan Doan v The Queen, where Terry Forrest, Justice of Appeal, who was then acting as a Justice of Appeal, stated as follows:

'The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum of 25 years' imprisonment.  Whilst there is no doubt that the role played by the appellant was of a menial nature, it was nonetheless necessary for the crop to flourish.  The maximum penalty fixed by Parliament unambiguously demonstrates how seriously the community views this conduct.'

38Justice of Appeal Forrest then referred to the case of Duong, and said as follows:

'Recently in this Court, emphasis has been placed upon the importance attached to sentencing, judges having to have regard to the maximum sentences fixed by Parliament.  This Court has also emphasised recently that general deterrence is an important consideration in this type of offence, and that the link between general deterrence and the increasing prevalence of the offence is readily apparent.'

39In the case of Doan, Nettle JA as he then was said as follows:

'I wish only to add a brief observation concerning the submission advanced on behalf of the appellant that the judge had erred in the emphasis which His Honour placed on the importance of general deterrence.  In my view, lest there be any doubt about it, there should be no doubt that in cases involving the cultivation of narcotic plants in not less than a commercial quantity, general deterrence is at the forefront of the sentencing considerations. Consequently, as the judge rightly observed, in cases of this kind, there is less room to give weight to considerations such as youth and antecedents that would otherwise be the case.  In the result, the judge also correctly found in the case of this kind that an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.’

40As you know, I was handed the case of Nguyen v The Queen [2016] VSCA 198 during the course of argument this morning. In that case, the Court of Appeal found that the current sentencing practices for this offence did not reflect the objective seriousness of mid-range offending. Redlich JA said as follows:

'Sentences imposed upon offenders who fall within the mid-category of seriousness do not reflect consistency in the application of principle.  There has been inadequate emphasis given to general and specific deterrence and denunciation.  Consequently, the standards set do not adequately reflect the objective seriousness of the offending, or the offender's moral culpability for engaging in such criminal conduct for profit that is so harmful to the community.'

41Redlich JA then went on to say:

'For the immediate future, sentencing courts must by increments increase the sentences for mid-category offending so that the range of sentence is uplifted and substantially expanded to enable the identification of the correct sentence for particular offending conduct.  The current sentencing practices for that category of seriousness of offending must be sufficiently broad to encompass a wide range of criminal conduct within that category of offence.  The corrected range should include sentences that have previously been reserved for offending which fell at the lower level of the upper category of seriousness.  The uplifted range should not include sentences that have previously been reserved for less culpable offenders such as crop sitters, falling toward the upper end of the lower category.'

42Your offending is as crop sitter, and I find that that is the lower category for this type of offending.  Your offending involved continuous activity over an
11-week period. The cannabis crop was 1.3 times the commercial quantity of the number of plants as the appropriate measure.  The cannabis crop was approximately 1.25 times the commercial quantity of the weight of the green plant material, including stalks and stems, are the appropriate measure.

43In a quantity-based regime, you were growing a sufficient number of plants to be 1.3 times the commercial quantity, and you will be sentenced on that basis.  It is and was a substantial crop.

44I assess your prospects of rehabilitation as good.  You are clever and have the advantage of a tertiary qualification in Vietnam.  You have a supportive family who will assist you to resume your normal life upon your return to Vietnam.

45The principles of sentencing of general and specific deterrence, denunciation of your actions, and protection of the community, are the most important considerations in your case.  A term of imprisonment is the only appropriate and just sentence.

46Would you stand, please?

47On Charge 1, cultivating not less than a commercial quantity of cannabis, you are convicted and sentenced to two years' imprisonment.  That is the base sentence.

48On the related summary charge of Charge 5, which is the proceeds of crime charge, you are convicted and sentenced to six months' imprisonment.

49I order that three months of that sentence be served cumulatively upon the base sentence of two years for Charge 1. 

50That is a total effective sentence of two years and three months.

51I fix a non-parole period of 18 months' imprisonment. 

52Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to four years' imprisonment with two years and six months non-parole period.

53I declare that you have served 389 days of pre-sentence detention, not including this day.

54I have signed the forfeiture orders sought, and I have also signed the 464ZF.  And I will just explain to you what that is.  I have made an order that the authorities can take what is known as a forensic sample from you.  It is done by taking a swab from inside your mouth.  If you do not comply, then the authorities can use reasonable force to obtain one.  Do you understand that?

55OFFENDER:  Yes, Your Honour. 

56HIS HONOUR:  Thank you.  Is there anything else?

57MR HARRISON:  No, Your Honour. 

58MS CONWELL:  Nothing further, Your Honour.

59HIS HONOUR:  Thank you.  Mr Dang, when you get out and go home, good luck with the rest of your life.  And tell all your other mates over there in Vietnam, if they come to Australia, they have got to play the game by our rules or they will get locked up like you.

60All right, good.  Thank you, Mr Interpreter.  Thank you for your assistance. 

61MS CONWELL:  Your Honour, briefly, before he's taken away, can I approach him to make sure he understood what's happening?

62HIS HONOUR:  Certainly, yes.  I will just wait here, because it is my court.

63MS CONWELL:  Yes, Your Honour. 

64HIS HONOUR:  I will just make sure he is supervised. 

65MS CONWELL:  Yes, thank you, Your Honour.  I'm grateful, Your Honour.

66HIS HONOUR:  He does understand the top and bottom, does he?

67MS CONWELL:  He does.

68HIS HONOUR:  Yes, all right.  That is the main thing.  I am just having this order printed.  We will send it down to Central Records.  Yes, thank you. 
Mr Interpreter, you can stand out of there and thank you very much again for your assistance.  Take your bag.  You can remove the prisoner, thank you.  Thank you, counsel, for your assistance.  I am sorry to ruin your Friday afternoon.

69MS CONWELL:  Not at all.

70MR HARRISON:  Nothing of the sort, Your Honour.

71HIS HONOUR:  Much better for your client, Ms Conwell, to know as soon as he can what his future is.

72MS CONWELL:  Yes, Your Honour.

73HIS HONOUR:  He has had long enough to think about it. 

74MS CONWELL:  I’m grateful, Your Honour.

75HIS HONOUR:  Good.  Thank you.  We will adjourn.

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