Director of Public Prosecutions v Dang

[2019] VCC 983

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-18-02594
CR-18-02595

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUAN DANG
THUAN LE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	26 June 2019
DATE OF SENTENCE:	26 June 2019
CASE MAY BE CITED AS:	DPP v DANG
MEDIUM NEUTRAL CITATION:	[2019] VCC 983

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Gray	Office of Public Prosecutions
For Accused DANG	Ms J. Willard	Papa Hughes
For Accused LE	Mr A. Purcell	Emma Turnbull Lawyers

HIS HONOUR:

1Thuan Van Le and Tuan Dang, you have each pleaded guilty to one charge of cultivation of a narcotic plant in not less than a commercial quantity.  Each of you has also pleaded guilty to uplifted summary matters.  In this situation, I would simply propose to impose a sentence of seven days' imprisonment on each individual summary matter, and direct that they be served concurrently in relation to each of you.

2The circumstances of the offending are that in May of last year, police searched premises in Bruce Street in Moe.  Each of you was present at those premises and each of you was a crop sitter.  A situation arose where you, Mr Le were arrested upon police entry.  You, Mr Dang, hid under the bed for a period of hours, until ultimately being found.

3I have no idea how all this came about.  The Crown concede, I can only sentence on the basis of you being crop-sitters.  It is clearly a crop that has been there for a significant period of time.  How much of that you were there for, I do not know.  I dislike the word, 'Sophisticated' in these circumstances, but this clearly is one that deserves that description.  Found throughout the house were a total of 234 plants, weighing in the vicinity of 40 kilograms.  It obviously satisfies commercial quantity on both levels.

4When you were arrested, each of you made partial admissions, and as indicated to counsel, I basically never believe what is said in those interviews anymore.  That being the case, I then sentence you obviously, to a term of imprisonment which is conceded, and it has to be a term of imprisonment which reflects the seriousness of cultivation of a commercial quantity.  Each of you, Mr Le are 34, I think at this stage, and you Mr Dang, are 24 or 25.  Neither of you have any prior convictions.  You each pleaded guilty at a reasonably early opportunity.  You have each been in custody since the day of the raid, which is 391 days.

5The cultivation of a commercial quantity has to be regarded as serious.  It calls for the application of general deterrence, which is probably the most important factor here.  Can call for specific deterrence, but the certainty here is that each of you will be deported upon completion of your sentence.  So, specific deterrence has got very little to do with me.  The risk of you reoffending in this country I suspect will be zero.

6Obviously, there must be an aspect of denunciation and an appropriate punishment.  The difficulty is that as counsel are fully aware and as the police are fully aware, this sort of scenario occurs on a regular basis, I assume throughout the state of Victoria.  But certainly throughout the Gippsland area.  It has got to be stopped in some way, shape, or form.  How that is done, is anybody's guess.

7You two fit the usual scenario.  No prior convictions, no connections, no way of being traced.  Neither of you apparently know, had the faintest idea who was responsible for this crop.  You simply do your sentence and get deported, and that is the way it works.  Terrible feeling, it is the way it will continue to work.  If we get to a stage where the people who actually create these crops or set them up are found and sentenced, then it may change matters.

8Looking at matters personal to each of you, you, Mr Le, have indicated are now 34.  You were born in Vietnam.  You came to Australia in around about 2010 on a student visa.  Your family are farmers in Vietnam.  Your student visa was cancelled somewhere in the order of seven or eight years ago.  You have been here ever since.  You told your counsel you were working picking fruit and the like; whether that is true, I have got no idea.  There is certainly no suggestion of any massive enrichment for you.  Each of you were found with cash, which gives rise to some of the summary offences and is not massive amounts.  I assume this is what you were given to live on.

9Neither of you has made any indication as to what you were to be paid for all this, and I probably would not have believed you in any event.  You, Mr Le, have no factors which make it more difficult for you in custody, other than the isolation of it, obviously.  You are in Fulham and I know there are a significant number of people in Fulham for this very offence, awaiting the completion of their sentence and ultimate deportation.

10You are to be deported.  This is not a situation where you are losing the prospect of a wonderful life in Australia.  But the fact of the matter is that you will be deported, and I do take that into account.

11You, Mr Dang, are 10 years younger.  You have a similar background of being born in Vietnam, have come to Australia on a Visa which has now being cancelled, some two or three years ago.  You upon arriving here, say you have worked on farms and you end up in this situation.  You also will be deported, that is a certainty, and the only difference between the two of you it seems to me, is that bearing in mind each of you will go home to family, is the significant age difference between you.  I do not think there is much more can be said in a situation like this.  You, Mr Dang, rehabilitation and risk of reoffending are probably going to have nothing to do with this country because you will be back in Vietnam.

12There is little else that can be said about all this.  I have discussed with counsel, it has become my view over recent times that in these circumstances, a straight sentence as long as it is of sufficient duration is the simplest way of dealing with them.  I have been referred to the comprehensive list of commercial cultivation sentences over the last two or three years, which provides a range.  I bear those matters - or take those matters into account.

13Accordingly, I think the simplest way of doing it is this; the only difference between you is age.  But in these circumstances, you, Mr Le, will be sentenced to be imprisoned for a period of 18 months.  I direct that 391 days be reckoned as having being served under that sentence.  Section 6AAA, 24 months.  The summary matters are seven days concurrent.

14You, Mr Dang, 16 months.  391 days served.  29 months, 6AAA.  Nothing else I need to do?

15MR GRAY:  Just the forfeiture order, Your Honour.

16HIS HONOUR:  I already made those, yes.

17MR GRAY:  That is it, Your Honour.  They are both profiled, I understand.

18HIS HONOUR:  Well, I figured that.  Yes, not that that is going to matter anyway.  All right, thank you for that.  Mr Purcell and Ms Willard for your significant input and obviously, very powerful powers of persuasion.

19MS WILLARD:  Thank you, Your Honour.

20HIS HONOUR:  And thank you, Mr Gray.  When this is dealt with sensibly, it saves a lot of time.

21MR GRAY:  Yes, Your Honour.

22HIS HONOUR:  All right.  Yes, they can go now.  Thank you.  Do you need to take them separately, do you?  All right.

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