Director of Public Prosecutions v Dang

[2019] VCC 35

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-02480

DIRECTOR OF PUBLIC PROSECUTIONS

v

HIEU DANG

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	29 January 2019
CASE MAY BE CITED AS:	DPP v Dang
MEDIUM NEUTRAL CITATION:	[2019] VCC 35

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr H. Rattray	Victoria Legal Aid

HIS HONOUR:

1Hieu Dang, you have pleaded guilty to one charge of cultivation of cannabis in not less than a commercial quantity and one charge of theft of electricity that facilitated the cultivation or part of it.  The cultivation charges covers two separate properties.  However, your role is different for each of the properties.  More serious is your involvement and role at the house at 6 Wren Street, Norlane.

2On 22 March 2018, police found you and two other co-accused, one being your younger brother, at 6 Wren Street, Norlane.  When the police arrived you attempted to run but were caught in the backyard.  There were a total of
48 cannabis plants in three rooms.  That premises, which had been set up as an indoor hydroponic cultivation operation.  The weight of the plants was 29.76 kilograms.

3The second property was at 16 Witcombe Street in Winchelsea.  Police raided that premises a little later but on the same day, 22 March 2018.  The cannabis there under cultivation was in four rooms.  There were 95 plants.  The total weight there was 26.86 kilograms.

4The combined weight of both houses is 56.62 kilograms, and the total number of plants is 143.

5Cultivation methods deployed in each house 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 at both premises to allow for the higher volumes of electricity to be consumed without detection and without cost.

6The amount of electricity stolen at Norlane was said to be just over $1,550. 
You were the one who set up the bypass in Norlane.  You have some skills in respect of electrical works.

7The place at Winchelsea was where you were first living when you came to Australia at the end of 2017.  It was said that you were asked to move on from that place because it was to be used for cannabis production.  You aided in the setup of the premises at Winchelsea.  The electricity account is in your name and there was DNA at that premises connected to you.  But other than that - that is, the assistance in the setting up of the premises - it is not said you had any greater role.

8From Winchelsea, you moved to the premises at Norlane.  You did the bypass of the electricity there, as I have set out, and then you set up and helped with the crop throughout.  Your role was more significant, as I have said, at Norlane than it was at Winchelsea.

9There were a number of pieces of equipment that were used to assist in the cultivation.  As I have said about other cases, these are expensive items indicating that significant resources have been expended on the basis that large quantities of cannabis would be cultivated for profit.

10All the features at both these houses are often found, as I have said before in suburban or country houses that have been converted into cannabis production factories.  The crime is hard to detect and it is of course very difficult to establish who are the main or central players in the cannabis production and distribution chain.  I will discuss in more detail your role shortly.

11But before dealing with that, it should never be forgotten that cannabis that is grown by cultivators ultimately has serious effects upon many users, and our community bears a great cost while the entrepreneurial cannabis cultivators profit significantly.

12You were charged with cultivating not less than a commercial quantity, albeit on the day of the raid, 22 March.  The prosecution says that you are at the lower end of this operation, but more than a crop sitter at Norlane, and your involvement was to facilitate or aid in the establishment of the hydroponic equipment at Winchelsea.

13Your counsel conceded that you are someone who is above the crop sitter role, but just, and that you are at the lower end of this operation.  It was put and accepted by the Crown that you are not someone who is captured by the Court of Appeal decision that an uplift in sentencing is required for mid-level cultivators.  The Court of Appeal has also in recent times made it clear that general deterrence is of great significance in respect of all those involved in these drug operations, including those at the lower end of the scale.

14As to your personal circumstances, doing the best I can, you are 40 now and a married man, a father of two.  One child is ten and in school in Vietnam. 
The other child is very young, ten months.  You of course have not met that child, having been incarcerated here on remand in Australia since your arrest in March 2018.

15Your wife is a primary school teacher in Vietnam.  She has had to return back to that profession earlier that she might otherwise have done.  She luckily has a parent - or there is a grandparent of the child who is now in her 70s, your mother, indeed, late 70s, who is assisting in the caring of that child.

16You wish to return back to your family responsibilities and meet your younger child as soon as possible.  I take that into account in respect of the isolation that you have here in custody which will continue with the sentence I will shortly announce.  You have some contact with your wife while on remand, once or twice a week, depending on money.

17You arrived here, as I have said, in late May - or it was said, late May 2017.  You were on a short tourist visa.  You outstayed that visa significantly, and thus were in breach of Australian migration laws at the time you committed this offence.

18When you came, you came to see your brother who is a permanent resident.  He is now someone who is charged with the same offence as you are, and others, which I will speak of shortly.  I was told he is on bail and wishes to contest these matters at trial.  There is another elderly man, a respected person, who is also charged with these matters.  He was at the Norlane house when you were arrested.

19You told your lawyer that you would be paid $8,000 for about six to seven weeks work at Norlane and you tended to crop on that basis.  There is no evidence of that, other than what you told your lawyer.  You did not give any evidence it was said in the record of interview.  It does not assist in that regard.  But taking all things into account, I reiterate that you are to be dealt with at the lower end of this operation though above those that are crop sitters.

20You pleaded guilty, and I take it to be an early plea in the sense that you always indicated you would plead guilty to your involvement in the crop at Norlane.  What was required by your lawyers was to negotiate in respect of the house at Winchelsea and a third house at Teasdale.  You are no longer charged with that Teasdale house, but were at the outset.  Thus, your plea of guilty is to be considered an early one and a useful one, or a weighty one, especially in respect of the matter at Winchelsea.

21In prison, you are doing the best you can with the difficulties you have with limited language, and I take that into account.  You have done 313 days on remand.  You are getting some work in the prison as a cleaner and receive some moneys which allows you to have some canteen facilities.

22Your own health is problematic.  You have Hepatitis B and have since your 20s.  While in remand, you have had medical attention which has discovered a bowel condition and elevated cholesterol, both of which are dealt with by medication provided to you by the prison.

23It was conceded that a term of imprisonment and a non-parole period ought be set.  As I have said, this would be a sentence above, but only slightly above, in your counsel's submission, than that that are imposed by crop sitters.

24In all likelihood, in fact, the living certainty is that at the time that your sentence expires you will be deported from this country.  It is hoped that you will take up your responsibilities when you return back to Vietnam, in particular, with your family, and return to law-abiding ways.  I have told you it is not alleged that you have any prior criminal offending in Vietnam or Australia.  Now being 40 years old, that is a matter I take into account in your credit.

25My sentence must express denunciation and deterrence in a practical way. 
As much was conceded by your barrister. 

26Doing the best I can, taking into account all matters for and against in this case, I impose the following penalty.

27For committing the single crime of cultivation of a commercial quantity of cannabis, at the two premises, one more serious than the other, you are sentenced to a term of imprisonment of three years and four months.

28For committing the crime of theft of electricity to facilitate the cultivation of a commercial quantity of cannabis, in which you were the one who set up that bypass, you are sentenced to six months' imprisonment.

29I order that two months of the sentence that I have imposed on the other cultivation account - it be cumulative upon that.

30That gives a total sentence of three years and six months.

31And I fix a minimum non-parole period of two years and seven months.

32This period is what I consider the minimum incarceration that justice requires you to serve.  I set those terms, mindful that you may have to serve every day of your head sentence before being deported.

33There are no fixed formulas and I impose the minimum term and the head sentence by adhering to the High Court's requirement for individualised sentencing.  Thus, there are no further explanations in my view in respect of percentages of the non-parole period and the head sentence.  You are not someone who requires supervision at great length or rehabilitative programs or the like, should you be granted parole.  But of course, whether you are granted parole is for others, not me.

34You have already served 313 days on remand since you were arrested.  That figure having been reckoned, I now declare it to be part of the sentence that
I have just imposed.  I will ensure this declaration is entered into the records of the court so that prison authorities are left in no doubt you have already done 313 days of the sentence I have just imposed.

35There are no applications for forfeiture of any of the materials that were seized by reason of the co-accused pleading not guilty to these matters.

36Had you pleaded not guilty to these offences and been found guilty of them,
I would have imposed a sentence of five years with a minimum of three years and four months.

37Are there any other orders required?

38COUNSEL:  No, Your Honour. 

39HIS HONOUR:  Thank you.  Mr Dang can be taken downstairs.  Mr Tran, you have been very helpful and patient.  You might be required to assist Mr Rattray again.  I am not sure.  But I am very grateful to you for all your efforts.  Thank you.  Mr Brown, is there anything else?

40MS BROWN:  No, Your Honour. 

41HIS HONOUR:  Thank you.  Mr Tran can leave the dock.  Mr Dang can be taken downstairs.  Mr Rattray can go downstairs, and feel free to do that immediately as I will speak to Mr Brown about other things.

42MR RATTRAY:  Thank you. 

43HIS HONOUR:  Thank you for your assistance, Mr Rattray.

44MR RATTRAY:  Thank you, sir.

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