Director of Public Prosecutions v Dang
[2016] VCC 1794
•8 March 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-02096
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOANG VIET DANG |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 8 March 2016 | |
CASE MAY BE CITED AS: | DPP v Dang | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1794 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N. Burnett | |
| For the Accused | Mr J. Saunders |
HER HONOUR:
1 Hoang Viet Dang, you have pleaded guilty to one charge of cultivating a commercial quantity of Cannabis L. The maximum penalty for that offence is 25 years' imprisonment.
2 The prosecutor sought orders for the disposal of drug equipment and other items. The making of that order was not opposed and I will make that order. The prosecutor also sought a forfeiture order in respect of the BMW vehicle owned by you which was driven by you to the cannabis house. In the absence of any direct authority put to me, I am not satisfied that that vehicle is tainted property for the purposes of the Confiscation Act and I refuse that application.
3 The circumstances of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A. On 16 August 2015 police conducted surveillance in respect of a property at Mount Waverley. You were observed to be standing outside the premises and your car was in the driveway. On 24 August 2015 police were again conducting surveillance. You were seen to arrive driving your vehicle with another vehicle being driven by another person. A search warrant was executed on the premises and you were found at the back of the premises wearing purple gloves.
4 You were arrested. You were taken to the Oakleigh Police Station and interviewed. You made denials about any involvement to do with growing cannabis effectively. You also said various other things to the police that were patently not true. In the house police located a hydroponic setup involving six rooms of the house with 187 plants and the usual equipment and other substances used to cultivate cannabis. The total weight of the cannabis was 110 kilograms.
5 In sentencing you, I have taken into account your personal circumstances as outlined by your counsel. You are now 23 years old. You were born and grew up in Vietnam. You are a Vietnamese citizen. You attended university in Vietnam and in July 2013 you came to Australia on a student visa to study at a university in Queensland. Due to your parents' separation, they were not able to continue to support you financially and you came to Melbourne to look for work in January 2014. It appears that you took up the offer of doing some work at the cannabis house after putting an advertisement up to say that you were looking for work. You have worked in other industries such as restaurants, a clothing factory and a chicken processing factory. You met a young woman with whom you have been living. She is also a student.
6 Other than being found in the house with purple gloves and being seen on a previous occasion, the prosecution is unable to provide any evidence of the length of time that you were involved in this grow house or precisely what your duties were. Your counsel says that you were told you would be paid 500 to $600 every time you were required and that your duties were explained to you. There is no evidence that you had been attending the house for any lengthy period of time. Since you were arrested, you have been held in remand and have been visited in gaol by your girlfriend. You have no prior convictions in Australia or Vietnam.
7 The cultivation of cannabis in a commercial quantity is a serious offence. The seriousness of that offending is clearly demonstrated by the maximum penalty which Parliament has imposed of 25 years' imprisonment. The business of growing or producing illegal drugs and selling them is an evil trade. It relies for its profits on the weaknesses of other people. You, albeit in a relatively limited way, became involved in that business.
8 I am satisfied that you knew it was illegal and that you did it in order to make some money for yourself. I have no doubt that you considered it to be a relatively easy way of making some money in your circumstances. That was a very bad decision. If you seriously wanted to resume your studies and make a success of your life, this was entirely the wrong way of going about trying to make some money. It is a great shame that you decided to give way to that temptation of a way of earning money.
9 Sadly, you are one of a great number of young men who come to Australia from Vietnam, fall short of money and then decide to get involved in assisting in the growing of cannabis. I have sentenced many people such as yourself. It is a great pity because families and individuals have made a great effort to enable you to come here in the hope that you will be able to further your career later on in Vietnam. I do not know what effect this conviction and what I consider to be your inevitable deportation will have on your future but I expect that it will not be a positive effect.
10 I must impose a sentence of imprisonment in my view for the purposes of demonstrating denunciation of your behaviour and in the hope that a sentence of imprisonment will deter other people from making a similar foolish decision. I am surprised given the number of people that I and other judges of this court have given gaol sentences to for exactly this type of offending that there are still willing volunteers. I would have thought that amongst the community, including the Australian Vietnamese community, it would be well known that if you get caught in this activity, you are very likely to go to gaol. Whilst there may have not been the effect that we hope for, continuing to send people to gaol may discourage others. Such a sentence is also required for the purposes of just punishment.
11 In sentencing you, I have taken into account that you are a young man, you are intelligent, you have been able to go to university. It is to be hoped that you will be able to resume education and employment in Vietnam when you return there. I consider that your prospects for rehabilitation are good. I do not consider that specific deterrence needs to be given weight in sentencing you.
12 I expect that this process and the time you have spent in gaol will have been sufficient to make you realise what a bad decision you made. I expect that you also understand you must avoid making any such stupid and bad decisions in the future. I think you have probably learnt your lesson.
13 I have taken your youth and immaturity into account in sentencing you in mitigation of sentence. I have also taken into account that this is the first period of imprisonment that you have served and that you have served it in conditions which are difficult in terms of the length of time that you have spent in lockdown. It is of course relevant to your prospects of rehabilitation and I should add that you have no prior convictions.
14 You pleaded guilty at an early stage in the proceeding. Your plea of guilty has had the benefit of saving the time and expense of a trial. You have accepted your responsibility. You have to that degree demonstrated remorse for your offending.
15 I have also taken into account that you have been imprisoned and will continue to be imprisoned away from your family. You have had visits from your girlfriend and from other people in the community but nevertheless you are isolated from your native country and your family.
16 I have also taken into account that in your circumstances, you will be deported according to the current provisions of the Migration Act 1958. You have some ties in Australia and will have also lost the opportunity to further your education in Australia. I have taken that into account in mitigation, although those matters do not carry great weight in sentencing you.
17 I have taken all of the matters that I have referred to in mitigation in determining the length of sentence and type of sentence. In the circumstances, a straight period of imprisonment is appropriate. In respect of Charge 1, cultivating a commercial quantity of Cannabis L, you are convicted and sentenced to a term of imprisonment of ten months. But for your plea of guilty, I would have sentenced you to a term of imprisonment of 18 months.
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HER HONOUR: I declare that you have served 197 days of this sentence by way of pre-sentence detention.
MS BURNETT: Your Honour, it should be 197 days.
HER HONOUR: Sorry, 197, I was just making sure I didn't do the eight. Sorry, 197 days of the ten months have been served by way of pre-sentence detention because today will count as another day. I will make - have you got the forfeiture orders here, Ms Burnett?
MS BURNETT: I have the disposal orders, Your Honour.
HER HONOUR: Disposal orders, sorry, disposal orders.
MR SAUNDERS: Your Honour, while Your Honour is doing that, may I approach the dock?
HER HONOUR: Certainly.
MR SAUNDERS: Because I don't think the interpreter can come to this desk.
HER HONOUR: No that's fine, thank you.
MR SAUNDERS: Thank you, Madam Interpreter.
HER HONOUR: Thank you, Mr Saunders.
MR SAUNDERS: Thank you, Your Honour.
HER HONOUR: Yes, Ms Burnett.
MS BURNETT: Your Honour, just in terms of - there's been some submissions made in terms of the importance of the deportation. As I understand it, a sentence of less than 12 months may not result in the provisions coming into play.
HER HONOUR: I see. That's a good point. I hadn't thought about that. I mean I don't know, no one has said to me but now that - - -
MR SAUNDERS: Sorry, Your Honour.
HER HONOUR: Now that you've reminded me of that - - -
MR SAUNDERS: I should've because the character test runs I think to this way and I'm just not sure that I've brought - - -
HER HONOUR: Because see if Mr Dang was not going to be deported, I would do a different sentence.
MR SAUNDERS: Yes. Can I indicate to you - - -
HER HONOUR: Because of the practical - - -
MR SAUNDERS: Can I indicate to you in very shorthand how it simply works. 501(3A) provides that the Minister must cancel and it refers back to subparagraph 6 and 7 of 501. 501(6) provides that a person does not pass the character test if they have a substantial criminal record as defined by 501(7). Section 501(7) provides a person who's been sentenced to a term of imprisonment of 12 months or more.
HER HONOUR: Well the alternative is I sentence Mr Dang to 12 months or I revisit the sentence because if he's not going to get deported, he gets a different type of sentence which would involve a longer period and then a non-parole period. Or possibly a community correction order or something of that nature. Now do you want to get some - do you want me to get off the Bench while you get some instructions, Mr Saunders?
MR SAUNDERS: I don't think I need you to get off the Bench, Your Honour. Can I just approach - - -
HER HONOUR: Because it's a bit complicated, I'm sorry, but - - -
MR SAUNDERS: No, that's all right. Your Honour, I think the option of 12 months is the - - -
HER HONOUR: I'm sorry to - - -
MR SAUNDERS: - - - preferred option, Your Honour. I'm sorry, that was my fault.
HER HONOUR: No.
MR SAUNDERS: I should've taken Your Honour to the fullness of the provision.
HER HONOUR: It's a bit clumsy and I didn't give you much time to do anything but I really think that's the most - there's certainly 12 months as well within the range.
MR SAUNDERS: Your Honour, I - - -
HER HONOUR: There's no doubt about that.
MR SAUNDERS: I don't quibble with - I don't cavil whether it's at the lower end of the range of offending.
HER HONOUR: Yes so - - -
MR SAUNDERS: Sentences for this form of offending at all.
HER HONOUR: Yes so it is and it could well be more but in the circumstances, that's what I'll do.
MR SAUNDERS: I don't take issue.
HER HONOUR: And rather than get around - so Mr Dang, if you could stand again please. Mr Dang, when I just announced the sentence of ten months, that was a mistake because I misunderstood how the deportation situation would work. It seems to me that the most appropriate sentence in this case is a straight sentence of imprisonment, after which you will be deported. That means you know what your situation is and it is clear. If I sentence you to less than 12 months' imprisonment, then I would look at a different sort of sentence which would be much more complicated and involve you perhaps being assessed for different orders and they would also go on for longer. Quite a lot longer period of time.
So I'm now going to resentence you. So in respect of one charge of cultivation of a commercial quantity of cannabis, you are convicted and sentenced to 12 months' imprisonment. But for your plea of guilty, I would have sentenced you to a term of imprisonment of 20 months. So that means you've got - and I declare that you have served 197 days of this sentence by way of pre-sentence detention so that means you've got the balance. So 365 days minus 197 is the time you have to serve.
MR SAUNDERS: As Your Honour pleases.
MS BURNETT: As Your Honour pleases.
HER HONOUR: So I'm sorry about that mistake. Thank you, Mr Saunders. Thank you, Ms Burnett.
MR SAUNDERS: Thank you, Your Honour, I'm indebted.
HER HONOUR: Thank you.
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