Director of Public Prosecutions v Dang

[2016] VCC 1205

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01163

DIRECTOR OF PUBLIC PROSECUTIONS

v

TU DING DANG

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2016
DATE OF SENTENCE:	19 August 2016
CASE MAY BE CITED AS:	DPP v Dang
MEDIUM NEUTRAL CITATION:	[2016] VCC 1205

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	Ms D. Karamicov	Office of Public Prosecutions
For the Accused	Ms J. Cohen	Victoria Legal Aid

Pages 1 - 6

 

 

HIS HONOUR:

1Tu Ding Dang, around October of 2015 police commenced an investigation into potential cultivation of cannabis at 3 Balook Crescent, Kilmore.  In February of 2016 you were observed at the premises driving your Holden Commodore which was registered to you.

2On 15 March 2016 police observed you driving an Astra convertible in the area of the house.  It is not said this car is yours.  Police then executed a warrant and searched the premises.  You were present in the main bedroom.  Almost the entire house had been dedicated to growing cannabis.

3There were a total of 101 cannabis plants growing in five rooms.  The total weight of the plants was 60.14 kilograms.  In addition there were 88 grams of dried cannabis in a cupboard.  This does not constitute a separate charge.  That I take it is said to be part of the cultivated plants.

4The cultivation methods were sophisticated.  The lighting that was installed was such as to allow cannabis plants to be grown successfully indoors.  Power had been bypassed to allow for higher volumes of electricity to be consumed without detection or cost.

5There were filters and reflectors and other expensive items indicating that there were significant resources dedicated to growing large quantities of cannabis for profit.  Given the considerable efforts and expenses setting up this indoor horticultural enterprise the plants, not surprisingly, that were growing were strong and healthy.  Photographs tendered on the plea reveal this.  The yield of usable drug was likely to be high.  There were plants growing at various stages of growth indicating the harvest would be planned to be regular in the form of a crop rotation system providing ongoing cash flow.

6All the features found in this house are common with suburban houses that have been converted into cannabis production houses.  Indeed that's a term that you used to the police yourself in describing the house as a work house.

7The crime is hard to detect and even harder to establish who are the main players in the cannabis production and distribution chains.  The product grown by the cultivators has serious effects on many cannabis users.  Thus the community bears a great cost as entrepreneurial cannabis cultivators continue to profit significantly.

8The entrepreneurial cultivators have for some time, it seems, sought to avoid their own detection by having other individuals mind the crops.  The crop sitters, as they have become known, ensure that the equipment continues to operate.

9Most importantly though they keep the entrepreneurs at arm's length from the crop while it grows to a saleable product.  When the sitters are arrested with the crop they do not or cannot provide any further useful information and it seems the entrepreneurs avoid detection, likely to go on setting up another harmful but profitable cannabis grow house.

10Your counsel said that you were living and staying at the house, the prosecution says from February, but you concede a bit earlier.  Your connection to the house arose, according to you, in these circumstances, that you had met a man on a train who you say you only know as "Long".  This man asked you to water plants in a house which happened to be in Kilmore for a period of you say six weeks, and he would then pay you for doing this job after it was done.

11The veracity of any of this explanation is untested, save that there were fingerprints on the hydroponic equipment beyond your own and that the renters of the house were not you, and seem to have used false documentation in the course of undertaking the rental.

12The explanation of meeting a man on a train and agreeing to move to rural Victoria and take up this criminality on the basis of a vague promise of some monies borders on the ridiculous.  What you said in your record of interview through an interpreter, the question you were asked at 96, "Why did you do it?"  "The person told me I should water the plants but when I finished he would give me some money."

13"How long did he want you to water the plants for?"  "Six weeks."  "How much money were you going to get?"  "He said he doesn't know."  "How does Long contact you?"  "No communication, only met on a train and drove me."  "So if you need to contact Long about the plants how do you contact him?"  "When I finish I go to our normal meeting spot or meeting location."

14"Where is your normal meeting location?"  "Don't know, don't remember.  I know how to go there but I don't remember the address."  "So how does Long know you'll be there?"  "We set a certain day of the week."  "What day is that?"  "Thursday."  "What time?"  "Four."  "Can you show us where it is?"  "It's not a house, it's out in the street."

15You went along in similar vein.  Your counsel that you should be sentenced as a crop sitter and no more.  The prosecution contended that this was a mid-range offence given the volume of cannabis that was found.  However whichever way this is looked at, the gravity of the offending is clear.  This was a significant operation worth a large amount of money, and the crop sitters play an important role.

16You are currently a young man, 23 years old.  You have had the benefit of a complete school education in Vietnam and were able there to secure a place in a tertiary institution.  You completed a year of an accountancy degree before securing a place in a university in Melbourne to further your studies.

17Thus it is clear you are an intelligent young man well capable of understanding the criminality of what you were doing and the very serious consequences of your crimes, as well as in all likelihood the serious consequences on the community of the effects of cannabis.

18Thus despite your young age and lack of prior convictions, your moral culpability is high.  In 2013 you came to Australia on a student visa.  It was a condition of your visa that you enrol in a course of study, which you did, but you did not have the means to continue to study.

19You secured thereafter employment, labouring sort of jobs in a fish market and in a butcher.  You were working at the time that you embarked upon this enterprise.  It was said that without funds beyond what you received at the job that you had and it was because you were without funds that you embarked upon this enterprise.

20Again, however, your capacity to get work and keep it for two or approaching three years indicates that you were capable of making lawful efforts to get money to survive, get money sufficient to return to your family in Vietnam.  However you say you did not have sufficient monies to restart your studies.

21I was told you have the support of your parents in Vietnam and you have siblings back in Vietnam.  It is hard to understand why you simply did not head back to Vietnam rather than involve yourself in organised serious crime in Australia.

22You have no prior convictions and that is a matter I take into account.  Also your early plea of guilty means that your sentence will be significantly less than it otherwise would have been.  The crime of cultivating cannabis in a commercial quantity is punishable by a maximum term of 25 years' imprisonment.

23The Court of Appeal has recently given indications and considered the principles in relation to commercial quantity of cannabis or cultivation of commercial quantity of cannabis.  Those considerations are that the sentences that are imposed for these mid-range offences are not sufficiently long enough given the maximum term.

24What is also clear, and has been from prior to that recent decision is that the principle that deterrence is of primary importance given the prevalence of this offence.  Deterrence must be to all involved in this organised cannabis cultivation, including those that are minded to crop sit.  That said, I do not overstate the level of involvement.

25It is also important to denounce your crimes.  That is because you became involved in criminal activity which has a detrimental effect on many in this community and thus you must face the consequences.  This cultivation was over two times the weight that puts it into the commercial quantity, albeit that it was only slightly over the number of plants.

26But this crime is determined principally or its seriousness on the weight involved and here it was beyond two times the weight that puts it into the commercial quantity.  Whichever way for you it was a serious operation and serious criminality, and as a consequence your counsel in a very intelligently put together plea conceded that the only appropriate sentence was one of imprisonment, grave as that always is.

27The term of imprisonment, as I have said, will be less, given that you have pleaded guilty and done so at the earliest possible time.  I take into account you will do prison harder given that you have difficulties with the English language.

28Also by operation of the Migration Act you will likely, if not certainly, to be deported on completion of your sentence.  I take that into account.  However the mitigatory value of that must be considered in terms that you will return to reunite with your family in Vietnam.

29When arrested you were not cooperative, giving a false name and maintaining that for some time.  That matter is before me as well.  In respect of this matter I sentence you on the basis that you were a crop sitter.  The exchanges that I have had have assisted me in coming to that conclusion.  Nonetheless, this is a serious offence and thus for cultivating cannabis in not less than a commercial quantity over the period of time involved in this charge, you are sentenced to the following.

30Can you please stand?  You are sentenced to 24 months' imprisonment and I fix a minimum period before you are eligible for parole of 16 months.  You have served 157 days in custody, that number of days having been reckoned.  I will declare it as part of the sentence that I have just imposed.

31That declaration will be entered into the records of the court so the authorities are left in no doubt that you have already served 157 days in custody.  For the summary offence of giving a false name you are convicted and fined $200.  Had you pleaded not guilty to these matters and been found guilty of them I would have imposed a sentence of three years with a minimum term of two years and three months.

32There are further orders, Mr Dang.  They relate to a disposal order for the material that was found at the premises and I intend to sign that order.

33MS KARAMICOV:  Thank you, Your Honour.

34HIS HONOUR:  You can be seated.  They are the only orders you have spoken about, 464?  It was retention, wasn't it?

35MS KARAMICOV:  Yes, thank you.

36HIS HONOUR:  Is there anything else?

37MS KARAMICOV:  No, Your Honour.

38MS COHEN:  No, Your Honour.

39HIS HONOUR:  I thank counsel for their significant assistance.  Thank you, Madam Interpreter.  It may be that Ms Cohen needs your further assistance beyond when I leave this court, so if you are able to assist her?  Very kind, thank you very much.  Thank you, counsel, for your assistance.

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