Director of Public Prosecutions v Dang

[2023] VCC 777

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-00258

Indictment No. N12149171.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAM MINH DANG

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2023
DATE OF SENTENCE:	15 May 2023
CASE MAY BE CITED AS:	DPP v Dang
MEDIUM NEUTRAL CITATION:	[2023] VCC 777

REASONS FOR SENTENCE

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Catchwords:  Cultivate commercial quantity of cannabis, theft of electricity, summary offence:  property suspected of being proceeds of crime ($43,000 cash); hydroponic set up in shed. Over 150 plants at various stages of growth, weight 89 KG. Early plea, Worboyes, disadvantage; Bugmy. Risk of Deportation. 60 years of age at sentence.  Short criminal history of relevance given past trafficking and cultivation. Increased burden owing to health.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McCowan	Office of Public Prosecutions
For the Accused	Mr S. Ranjit	KPT Defence Lawyers

HIS HONOUR:

1Tam Dang, you have pleaded guilty to two charges on the indictment filed in this court being one charge of cultivation of a commercial quantity of cannabis and one charge of theft of electricity.  You have also pleaded guilty to a summary offence relating to possession of property suspected of being proceeds of crime. That relates to $43,000 cash.

2You are 60 years of age and regrettably, you have a relevant criminal history before the courts with three prior convictions for trafficking heroin, as well as a cultivate cannabis conviction.  You were sent to prison for seven years in an appearance at this court in 2007.  A five year non-parole period was fixed.  The facts of that matter are set out in the decision of the Court of Appeal[1].  Your wife was dealt with in the same matter.  That trafficking pertained to 419 grams of heroin relating to multiple sales to an undercover member and the cultivation pertained to your responsibility for 57 cannabis plants in a hydroponic set up said to be a significant operation.  See paragraph 22.  The offending was for financial gain.

[1]R v Dang; R v Dang [2010] VSCA 13

3You have been in custody since your arrest on 4 October 2022.

4The summary before me correctly sets out the offence maximum penalties and I will not restate them all.  The commercial quantity cultivation charge has a 25 year maximum prison term.  That should tell you all you need to know about the seriousness of this style of offence.  You already knew that of course.

Facts

5The amended summary of prosecution opening for the plea dated 9 May 2023 sets out the agreed facts in this case.  That being so, there is no utility in my descending to great detail in my reasons.

6I will sentence pursuant to that agreed summary which was marked as Exhibit A.  Of course there are photographs within the depositions, but they do not need to be separately exhibited.  They show the crop and the set up more generally.

7By way really only of very brief summary, on 4 October 2022, the police attended the premises where you resided in Grace St, St Albans.  You lived there with your wife and daughter.  A search warrant was executed.  Two sheds in the backyard housed a sizable amount of cannabis plants.  The summary sets out the number of rooms and the number of plants with their weights.  There was an illegal electrical bypass hence the theft charge and there was the usual assortment of hydroponic gear typically associated with this style of venture.  Police located a large amount of cash hidden in an air vent in the carport ($37,000) as well as about $6000 in a cupboard inside the house.

8You were arrested and taken to the Sunshine police station where you were interviewed with the use of an interpreter.  You made some admissions to growing the crop.  You denied knowledge of the cash and of the bypass.  Your account made it clear that this was your crop and one you were growing for ultimate cash gain.  There were also some odd denials in the interview.  As I say, you denied any knowledge of the cash or the electrical bypass, but of course, you have admitted each charge by your guilty plea.  You seemed to even claim ignorance as to the illegality of cannabis and stranger still, seemed to level some blame for your activity at the police.  That last matter was a bit hard to follow.  Anyway, those matters where you were less than direct with the police are in no way matters of aggravation.  Plainly, you were cooperative and you made some admissions and those matters have mitigatory value.

9The chronology is set out in the summary.  You pleaded guilty at an early time. That really is the extent of my brief summary of the summary.

10I will sentence pursuant to that more detailed factual statement marked as Exhibit A on the plea, as well as the photographs that I have mentioned.

11Mention is made in the summary of your wife and daughter being co-accused.  Your daughter has been cautioned.  Your wife faces some summary matters in the Magistrates Court and so there is no issue of parity of sentence here.

Plea in Mitigation

12Your counsel, Mr Ranjit, relied upon an outline of plea submissions dated
8 May.

13He relied upon a psychological report from Ms Cameron, though not as in any way enlivening any of the principles from the case of Verdins[2].

[2]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')

14Mr Ranjit made some submissions as to your personal and family background. He took me briefly either in oral or written submissions to your relationship, work and also your drug history.  He also took me to your criminal history.

15He made some submissions as to your prospects of rehabilitation, as well as the other sentencing purposes in play in this case.  He made some submissions as to the relative objective gravity of your offending.

16He relied upon the following matters in mitigation:

·   Your early guilty plea in the course of the global pandemic;

·   The presence of some remorse;

·   Your disadvantaged background (Bugmy[3]);

·   An increased burden arising from some physical conditions and aspects of isolation arising from the language barrier.

[3]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (‘Bugmy’)

17Now the risk of deportation was raised in this case after I asked Mr Ranjit whether you were an Australian citizen.  Your answers in the police interview suggested pretty clearly that you were not.  Mr Ranjit checked with you and discovered that you were a permanent resident, not a citizen and he then relied upon the Guden[4]/Loftus[5] line of authority and the mitigatory matters arising from that risk of deportation.  I sent an email to the parties last Friday advising of the provisions of s200 and 201 of the Migration Act, which seemed at least at first blush to me, to possibly remove the risk of deportation, given your long term status as a permanent resident.  The parties have made joint submissions today as to the error in my assessment of those provisions.  They have pointed out other provisions which suggest that the provisions of s200 and 201 of the Migration Act, would not save you from that risk of deportation.  There are provisions in s189 and 198(2B) which seemingly do apply in the event that your visa is cancelled as it certainly would be under s501.  I have considered the matters briefly, that is the reason I stood down and I do accept the submissions which have been made this morning.  It would have been, if I may say so, far preferable for the matter to have been clarified in some way, prior to my coming onto the Bench.  In any event, the upshot of all of this is that the risk of deportation was still a matter relied upon in a mitigatory fashion in this case, in the limited way voiced by Mr Ranjit a short time ago.

[4]Guden v The Queen [2010] VSCA 196

[5]Loftus v The Queen [2019] VSCA 24

18Charge 1 on the indictment, cultivation of a narcotic plant in a commercial quantity was a Category 2 offence, but your counsel submitted that no exceptions arose here.  That was undoubtedly correct, so I will say nothing further as to those complicated legislative provisions.  He conceded the inevitability of a head sentence and a non-parole period.  He was not suggesting that any exceptions arose, such as to permit any other outcome, but he argued against the imposition of a crushing sentence.

Prosecution

19The prosecution had filed some written sentencing submissions dated 9 May. They were really quite uncontroversial in terms of the principles referred to and for that matter, the ultimate outcome called for.  The Crown argued that your culpability was high. That you were no crop sitter.  They submitted that a head sentence and a non-parole period was required here, but so much has been readily conceded by your own counsel.

20The prosecutor made appropriate concessions in relation to a number of the matters raised in mitigation, but not to the way your counsel said that the Bugmy principles had been engaged in this case.  Your counsel had argued there was a nexus or causal link and the prosecution challenged that contention, though not the application of the principles from Bugmy more generally.

21Submissions as to penalty, whether made by your counsel or by the prosecutor, are in no way binding upon me. That is because I have to make the decision as to the appropriate sentence in this case.  I must have regard to the matters placed before me and I must exercise my sentencing discretion.

Background

22Before dealing with the various submissions which were made, I will turn briefly to your background.  Briefly, as I have no reason to doubt what I have been told about you.  There is much detail in your counsel’s written submissions, as well as in the report of Ms Cameron.  Also, there is some detail in the previous unreported decision of the Court of Appeal.  There is no purpose served in my restating all that I have been told about you.  I act on that material and it is plain to me that there has been significant disadvantage in your formative years, such as to enliven these Bugmy/Hermann[6] principles.  That disadvantage was really just a product of being born where you were born and when.  So the wrong place at the wrong time.  The time was June of 1962 and the place was Vietnam. So it coincided with the conflict in that region, the Vietnam war.  That conflict spanned a far more significant period than just from the point in the early 60’s when the American involvement was formalised.  Your childhood was marred by that ongoing conflict.  Your father was killed by a grenade when you were eight or so.  Your mother was unable to cope and she became a drug user and I am told was violent towards.  You escaped to your grandmother's when aged 10 years of age.  There was relative poverty in your circumstances.  Schooling was very much abbreviated with a Grade 4 level attained.  Those limitations in education have obviously left their mark.  In fact, you became a fisherman at a very young age and as a 23-year-old, you chose to leave your homeland.  You travelled by boat to Malaysia and spent a number of years in a refugee camp before arriving in Australia as a 29-year-old in 1991.  In Australia, you have worked in a variety of unskilled jobs, but not for quite some time.  Work was sporadic and you have relied on Centrelink benefits for some years.  You are a married man with three grown up children.  You have had some physical health issues including a stroke.  Drugs were problematic, but that has not been the position for some years now.  You were a regular heroin user from 2005-2007 and earlier still for that matter, but you have not used drugs since I was told.  You have that relevant criminal history that I have already spoken of.  Three prior convictions for trafficking in heroin as well as two prior convictions for possession of that drug and a cultivation of cannabis prior conviction.  I was told that you were released on parole in 2011, that you complied with and completed parole and that you remained drug free.  It follows that you were not a drug user at the time of this serious offending that I am dealing with.

[6]DPP v Herrmann [2021] VSCA 160 (“Hermann”)

Guilty

23I turn to the matters that have been raised in mitigation on your behalf.  Firstly your guilty plea.  I will treat it as a plea at the earliest opportunity.

24You have taken this early responsibility for your offending by pleading guilty.  You made admissions earlier still in the course of the interview with police.  You were certainly cooperative.  I take that into account as well.

25As a result of your plea, the time, the cost and the effort of a contested committal hearing in the Magistrates' Court or a trial in this court have been avoided.  No witnesses have been required to give evidence.  You have facilitated the course of justice.

26Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes[7]. There have been many cases since that decision, endorsing that view.  See for instance the case of Barnard.[8]  A large backlog of cases arose in the course of the global pandemic over the last couple of years.  Your case was really never part of that backlog as it so swiftly settled.  You get the heightened benefit of pleading guilty amidst the global pandemic, so I take these various matters into account in mitigation.

[7]Worboyes v The Queen [2021] VSCA 169

[8]Barnard (a pseudonym) v The Queen [2022] VSCA 42

Remorse

27As to remorse, well there are few real signs of it.  I have your early guilty plea and your cooperation with the police and the admissions which you made.  The admissions were not dripping with expressions of remorse.  Not by a long shot.  There were some strange statements as to police blame and the claim that you made in the interview as to ignorance of the illegality of cannabis.  There are your statements of regret voiced to Ms Cameron, but your contention that you were desperate at the time and would never reoffend owing to the potential repercussions, must be seen in light of a man who possessed $43,000 cash and who did in fact reoffend in full knowledge of the likely repercussions.  You had been sent to prison for many years in 2007 and that sentence included an 18-month sentence for cultivation of cannabis.  I am ultimately prepared to find the existence of some remorse in this case. It is quite limited, but I take it into account in your favour.

Bugmy

28I have already set out some details of your unenviable background and I have spoken already of my acceptance of the application of the Bugmy/Hermann line of authority to my task.  I see no need to set out more of that detail now.  You very obviously had a poor start in life and as I said, you had the misfortune to be born in the wrong place at the wrong time and as a result, war raged around you as you grew up.  That has had obvious deep impacts upon your formative years and no doubt, hence the trajectory your life.  You lost your father.  That had deep impact on you and your mother and your mother’s state then deteriorated.  You moved to your grandmother's and you had very limited schooling.  You came to this country as a 29-year-old via a refugee camp.  You had to deal with a change in language and culture when you came to this country.  I do not downplay any of these matters.  In fact, I do take into account what I judge to be a significantly disadvantaged background pursuant to cases such as Bugmy, Marrah[9] and Hermann.

[9]Marrah v The Queen [2014] VSCA 119

29An offender's circumstances and their experience during their childhood and their formative years, must be considered in the sentencing process.  It is well recognised that the effect of social disadvantage does not diminish with time.  A background of significant disadvantage is likely to have profound and lasting consequences, as it no doubt has had in your case.  No doubt, as I said earlier, it shaped the trajectory of your life to a degree.  I do take into account your background in a mitigatory fashion however, I cannot be satisfied to the required standard that there is the nexus or causal connection as is asserted by your counsel.  See paragraph 30 of the written outline.  That suggestion of a nexus ignores the premeditated nature of this offending and the reasons for it which really were profit, pure and simple.  Your counsel in his written submissions and oral submissions for that matter, references the case of someone resorting to violence where the recourse to violence might be tracked back to what they were exposed to, or witnessed, as part of their day-to-day life in their formative years.  You had a significantly disadvantaged background.  No question about that.  You had educational deprivation as part of that disadvantage.  You came to Australia over 30 years ago and you worked when you came here.  It is true that you generally worked in low skilled jobs, but you could and did work until you decided not to.  I am certainly not satisfied on the balance of probabilities that your desire for money and recourse to crime was in any way causally connected to your disadvantaged background.  There is no nexus.  That is not the end of the Bugmy point as I hope I have made plain. That is because the existence of a nexus is not a precondition to the application of these principles.  See the general approach spelt out in Hermann at paragraphs [44] and [45]. So I do give full weight to your background in the way that that phrase is employed in these cases to which I have referred, in the general fashion contemplated.

30I am prepared to find some very modest reduction in your moral culpability here.

The report

31I act on Ms Cameron’s report in the very limited ways urged upon me by
Mr Ranjit.  There is no point setting out great slabs of that report in my reasons. There is no claim of any reduced culpability arising from any mental health condition at the time of offending.  Nor any reduction in the weight to be given to specific or general deterrence.  In fact, it is relied upon as spelling out your background and dealing with aspects of regret and your vow not to reoffend.  It is not relied upon as enlivening any of the six principles from the case of Verdins. I asked and Mr Ranjit was explicit in this regard.  I do not ignore the material touching upon some heightened anxiety and I take that into account in a more general fashion.

32I give only some very modest weight to the increased burden said to arise from the physical health conditions spoken of.  That in fact may be too favourable a view.  There was really no material placed before me satisfactorily spelling out any heightened burden.  It is not for me to envisage or imagine health situations that might intervene down the track and then view that issue which may or may not arise, as then heightening your current or future burden of imprisonment.  You are medicated for a range of issues, none of them that serious.  There is no suggestion that you are not being appropriately medicated or treated, whatever a general survey of prisoners referred to in Ms Cameron’s report might say.  You are medicated and treated, and I was not taken to any particular aspects of your physical health conditions which were in any way onerous.  Your age certainly is not a ‘condition’.  I do not accept that the language barrier is a matter of any great weight at all in this case. There are a large enough number of your countryman in prison.  Further, you have chosen to offend seriously.  You had been sent to prison previously and you must have understood that detection in this current offending would lead you back to prison.  I do not ignore any of these matters. I give them though only very modest weight indeed.  I add into the mix the fact that prison has probably been a more stressful environment in the time that you have been there, owing to the response to the COVID-19 virus.  There might have been worry about catching the virus in such a setting and you would have experienced the increased burden of quarantine or lockdowns on occasions.  Owing to those occasional lockdowns, there would probably have been suspension to visiting and the full range of courses and programs, at least for some of the time in which you have been held in custody.

33However, on the COVID-19 front, things looked up significantly last year, not just in the community, but also in a prison setting.  Personal visits resumed from about March of 2022.  Well you have been held only from October of last year, by which stage there had already been significant relaxation of the previous restrictive regimes.  I am prepared to accept that there has been a very modest increased burden in your case and I take that into account.  I reach that conclusion notwithstanding really that there was no submission made on this score in any level of detail.

34So this increased burden arising from these various issues, including COVID‑19 is only of very modest value indeed in this case.

Rehabilitation

35What are your prospects of rehabilitation into the future?  I can only be quite guarded as to your future prospects.  You have again seriously offended.  This was not spontaneous offending.  You were not some youthful first offender.  You were almost 60 years of age and you really could not have entertained any doubt at all as to the seriousness of this offending.  You have a short, but obviously relevant criminal history.  It does not aggravate your offending or permit me to impose a disproportionate sentence, but I must consider your risk of reoffence and I must also consider the need to deter you and to protect the community from you.  Your history before the court is relevant to this task.  It is also relevant to an assessment of your moral culpability.

36You took a calculated risk.  You did so out of the hope of financial gain.  You had seen the inside of a prison for years and that did not deter you.

37Ultimately, I am prepared to accept that there are some prospects of rehabilitation in this case.  I can put it no higher than that.  They are not strong.  There is an obvious enough risk of reoffending.

Deportation

38I turn now to the risk of deportation, a matter which I raised on the plea so that your counsel could address me.  Your counsel had after all told me you were an Australian citizen. You were not.  I queried him as you had said otherwise in your police interview.  He took instructions from you and you confirmed what you said in the interview, that you were in fact a permanent resident.

39Now owing to provisions within the Migration Act, if a sentence of 12 months imprisonment or more is imposed, your visa will be automatically cancelled. Well a sentence well above that level is required here.  As I mentioned earlier, there have been discussions this morning with the joint submission which confirms the view that s200 and 201 of the Migration Act, do not prevent your deportation.  I said earlier in these reasons that I accept that submission.  I think for a matter for completeness, I should mark my email sent to the parties as an exhibit.  I will mark that as Exhibit C.

40I do take into account the many cases dealing with the relevance of the risk of deportation including the Guden[10] line of cases that has been considered in more recent cases such as Allouch[11] and also Loftus[12] and Hague[13].

[10]Guden v The Queen [2010] VSCA 196

[11]Allouch v The Queen [2018] VSCA 244

[12]Loftus v The Queen [2019] VSCA 24

[13]Hague v The Queen [2022] VSCA 17

41I will work on the assumption that you will have your visa cancelled automatically.  That does not involve speculation. It will be cancelled.  You will have the opportunity to ask for reconsideration of that decision and dependent upon who made that decision, should it go against you, there might even then be the ability to take it further before either a court or a tribunal.  There is also the ability to make application for a fresh visa as described in the provision.

42Your counsel last week accepted that in terms of those review powers, the court really could have no idea how any of this would play out.  He has confirmed that again today.  That that would involve pure speculation on my part.  He is right to make that concession.  I mentioned last week in the course of the plea the Sentencing Advisory Council paper headed 'Deportation and Sentencing' (from November 2019, which disclosed that a decent enough proportion of those who have their visas cancelled automatically then have that decision overturned.  The success rate at least in the years covered by that research was between 34 to 41 per cent, see paragraph [24] of that paper.  These figures do not include those who have their reconsideration refused, who then review the matter in a tribunal, and then succeed.

43It really is extremely difficult for me to make any prediction as to how any of these matters might ultimately play out.  On any view of it though, whilst serving your prison term, there would be a state of real uncertainly in your mind.  There is just no question that you will continue to feel anxiety about this risk of deportation.  You would, after all, be confronting the real prospect of losing the opportunity of settling permanently in this country and you have been here since 1991.

44Your counsel relied on the first of the limbs in Guden. That is the increase in your prison burden arising from the worry about this issue.  I accept your counsel’s submissions in this regard and I take these matters into account in mitigation.

General remarks

45I turn then to make some general remarks about the nature of your offending.  I have to consider the nature and gravity of the offending.  There are three offences, but I will focus mainly on the cultivation of the commercial quantity of cannabis as that is by far, the most serious of the offences.

46We see many crop sitters who are brought to this court.  People who have, or at least claim to have, a very modest or slight connection to a crop and no real stake in the success of the crop or the profits which might arise.  People who are often enough paid a pittance to do menial, but necessary tasks, and to shoulder the risk.  People who provide something of a buffer for the principal who is often enough removed from the day-to-day acts required to bring the crop to maturity.  Crop sitters or people claiming to be crop sitters, very often do sit in the dock.  It is my experience that the principals rarely sit in the dock of a court.

47Well you were no crop sitter or ‘mere’ crop sitter.  This was your crop.  You were in this for money.  You were the principal in the sense of there being no one above you.  But perhaps the word is ill advised, as it might suggest some organisational structure.  I will call you the owner because that is what you were.

48I am confident that almost every person engaged in this style of crime is doing it for reward of some description or other.  You were.  You made a choice, that is what it was, and the choice was to commit what you must have known was a serious crime.  Financial need even where it does exist, is no answer and in any event, it cannot apply here.  How much would it have cost to set up this crop?  I note also the existence of a large amount of money the subject of the property suspected of being the proceeds of crime charge. $43,000 cash.  I am not treating that as evidence of trafficking or as money from other crops, that would be quite wrong.  I have no idea as to the source of that money and it actually does not matter.  It existed as a matter of fact and together with the nature of the setup which you have yourself funded, the claim of dire financial need, looks pretty sick and sorry. I am not satisfied on the balance of probabilities that financial need drove this offending at all.

49Your counsel conceded that you were involved in the setup of the crop and were doing so to make money.  It was your crop, you were the sole owner and hence the sole beneficiary.

50This was essentially a business decision that you were making.  It follows that you and you alone, had the stake in the success of this crop as the cannabis was being grown by you, to ultimately be sold as you made clear.  Again, I make it plain, I am not dealing with you for trafficking, but those concessions make clear that you are far, far removed from the low-level crop sitters that are so often seated in the dock of this court.  Yes, I have regard to the fact that you are not resorting to a claim of being a crop sitter. That is, if I may say so, refreshing and I do give some weight to that concession in your favour.  But I must, however, then deal with you for this example of commercial quantity cultivation of cannabis.  I cannot ignore your role, even though you have volunteered it.

51There are only so many ways that a court can describe these crops and the principles of sentencing which apply to them.  As I have said in so many other cases, I say now in yours; this crop and its ultimate success, has been interrupted by the execution of the warrant by the police.  You clearly knew that what you were embarking upon was a serious crime.  I have no doubt at all on that topic.  I am satisfied of it beyond reasonable doubt.  This was obviously an elaborate enough, organised, planned criminal activity.  There can be nothing spontaneous about offending such as yours.  You had ample time to reflect on what you proposed, on the risks, on the benefits and you determined to take the risk.

52Sizeable illegal profit was central to this crime.  I cannot know exactly what financial reward you hoped to gain here, but it must have been significant to have you shoulder what you knew was obviously a very real risk of being sent to prison again.

53This crime carries a maximum term of 25 years' imprisonment and I must pay regard to the maximum sentence.

54Sentencing always involves the balancing the number of purposes or principles.  I have to take into account your prospects of rehabilitation.  I believe there are some prospects.  I am not encouraged by the criminal history and your preparedness to again seriously offend, and at your age.

55I must consider the need for specific deterrence; that is the need to deter you from committing crimes in the future.  Plainly, that is a sizable matter here.  So too is community protection.  I must also denounce your conduct.

56The case law in this area makes very clear that this is an offence that requires substantial punishment.[14]  General deterrence is also a significant purpose of sentencing in cases such as this.  It looms large.

[14]DPP v Duong [2006] VSCA 78

57I have said previously and repeat, there is seemingly a never-ending stream of commercial quantity cultivators brought before this court.

58Those who may be tempted in the future to commit this sort of serious crime, as you were, must understand that there is the real risk of arrest, prosecution, and the imposition of a substantial prison sentence. 

59Those who choose to engage in this activity, at whatever level, are always taking a calculated risk, as you were.  Often, their potential gain, is at a far lower level than exists in your case.  Well future likeminded potential offenders must understand that the attractive potential reward on offer comes with the significant and tangible risk of detection, prosecution, and then the likelihood of the imposition of a significant, if not very significant, term of imprisonment.

60The message sent by the courts must be such as to cause future potential offenders to actually pause for thought and to reflect upon and then hopefully, to reconsider their decision to offend.  The serious risks must neutralise or even outweigh the lure of what might seem to be the easy financial reward on offer in this area.

Current sentencing practice

61I pay regard to current sentencing practices though it is not a single controlling factor.  It is one of the matters that I must have regard to.

62I have looked at the Sentencing Snapshot No. 271 of April 2022.

63I have also looked at the material held at the Judicial College of Victoria Sentencing Manual, including an overview of commercial cultivation sentences dealt with in the Court of Appeal.

64I said on the plea that there have been a large number of cases over the years querying the adequacy of sentencing practices for this crime.  The case of Nguyen from 2016 sets out a number of those cases[15].  That was a case that spoke of the inadequacy of sentencing practices for the crime when committed at certain levels.  The Court of Appeal, in that decision was critical of the fact that current sentencing practices had seemingly remained the same, notwithstanding the many occasions that it had been called into question in the Court of Appeal.  It is a case that contains statements as to the seriousness of the crime of commercial quantity cultivation of cannabis and the weight that must be given to punishment and general deterrence.

[15]Nguyen v The Queen [2016] VSCA 198 at [139] to [142]

65Now that case (Nguyen[16]) was not focussing on low-level players.  It was more directed at what were described as 'medium-level' cultivators.  The court spoke of the need for an increase in sentence, at least in relation to mid-level players, so that the range of sentences are uplifted and substantially expanded.  The Court of Appeal said that there had been a merging of the sentences and insufficient distinctions drawn between serious cases and less serious cases.

[16]Ibid

66The Court of Appeal has previously spoken about the danger of applying adjectives or labels in an endeavour to describe a person's role.  Those sorts of things can actually obscure a person's conduct.  Focussing on the actions and the conduct is what is important, not the label that might be applied to describe it.  The Court of Appeal said in another case of Nguyen:

'A sentencing judge is required to sentence an offender by reference to all of the facts of the case (including all of those able to be gleaned about the offender's role and involvement) and not by reference to whether the offender can be given some particular appellation.'[17]

[17]Nguyen v The Queen [2019] VSCA 134 at paragraph [59]

67Well, it is conceded here that you were not some minor player or a ‘mere’ crop sitter.  I was told that this was your crop.  That you had set it up and were doing so for profit.  You were the owner

68You were committing an unmistakably serious crime, and you were doing it for money and your culpability falls nowhere near the lowest of levels.

69I have mentioned the sentencing statistics and also some other cases which I have looked at in the Judicial College of Victoria sentencing collection.  Statistics have inherent limitations.  Statistical material will never identify the range of matters of aggravation and mitigation in a given case.  Mr Ranjit mentioned the median sentence and the average sentence as disclosed in the data.  It is no part of my job to sentence as per the median or the average sentences disclosed.  They are just statistical terms and pay no regard to any individual features.  Nor is any other case a precedent.  There is not even any such thing as one correct sentence.

70I mentioned in discussion that later decision of Nguyen[18] where the sentence of three years and eight months was confirmed in the Court of Appeal, with the Bench comprising Priest JA and Beach JA stating that sentences in that region are entirely unexceptional, even for crop sitters.

[18]Ibid at [65]

71Well, it is clear from the many cases in this area, that cultivation in a commercial quantity of this drug is a serious and prevalent crime and that general deterrence must be at the forefront of any sentence imposed by this court.

72This is a quantitative based regime.  Weight and plant number, whilst not the only matters of importance, will always be of real importance.  Often, they are the only things distinguishing individual cases.

73Commercial quantity for cannabis is 25 kilograms or above, or 100 plants or above.  Well, you were cultivating 153 plants weighing in at around 89 kilograms.  You are very comfortably above the threshold on either measure. That is so irrespective of the wet weight argument placed before me.  You were the person who planted 153 plants.  This was your crop.  This was a relatively sophisticated and unmistakably serious criminal setup; one where you were the owner, and one with an obviously relevant criminal history.

74This was serious offending.  It is miles removed from the lowest levels.  I do accept the submission that it does not fall at the very highest of levels where, for instance, there may be a principal player engaged with multiple premises with all manner of hired underlings and criminal structure and also duration. That is not what I am dealing with.  But I am dealing with serious criminal conduct, without any significant reduction in your culpability at all.  This cultivation falls very comfortably, at least, at the mid-range of offence seriousness in my view.

75I have scarcely mentioned the other charges.  As I said earlier, they are far less serious.  There is the theft of the electricity.  It is inherently serious to steal in this way, but no quantum is asserted, and I am dealing with a single day of course.  Now there is something of a fiction there, given your admissions to the police to growing cannabis for six months, much less your admission to
Ms Cameron of growing for three years.  But I am dealing with the single date.  The case law commends an approach where there is some cumulation in this sort of sentencing exercise in relation to theft, and that might be so in a setting where there was a sizeable theft of electricity.  But I query that approach here. It is connected up to the cultivation and in the absence any sizable value, and there is no sizeable value here to this theft, I think in a way, it is more a feature of the sophistication of the cultivation.  Then there is the property suspected of being the proceeds of crime.  This was no small sum, it with an amount exceeding $43,000 cash.  It has no connection at all to the cultivation or theft.  Obviously some cumulation is required in relation to that sentence.

Totality

76I have engaged in a last look at the sentences in an endeavour to avoid a sentence that might be crushing upon you and to ensure that the overall effect is consistent with your overall criminality.  Regrettably though, you have in committing this instance of commercial quantity cultivation committed a serious offence.  Your criminality is high.

77There is an application for a disposal order and also a forfeiture order.  They are consented to.  I have signed those orders.

Disposal order

78I am satisfied that the provisions of s78 of the Confiscations Act are made out and I order pursuant to those provisions, the forfeiture to the State of the property referred to and I direct that it be handled in the manner contemplated by that signed order.  

Forfeiture

79I am satisfied that the relevant provisions of s33 of the Confiscations Act are made out in relation to the forfeiture application and I order that the items referred to in the schedule be forfeited to the minister.

Sentence

80Stand up now then please, Mr Dang.

81On the charge of cultivation of a commercial quantity of cannabis I convict and sentence you to four and a half years imprisonment.  That is the base sentence.

82On the charge of theft of electricity, I convict and sentence you to seven days' imprisonment.

83On the summary matter, I convict and sentence you to six months imprisonment.

Cumulation

84I direct that two months of the sentence imposed on the summary offence will be served cumulatively upon the base sentence.  The prison term imposed on the theft will, in the unusual setting here, be served concurrently with all other sentences. 

Total Effective Sentence

85These orders result in a total effective sentence of 56 months or four years eight months imprisonment.

Non-parole period

86I must fix a non-parole period.  I am not free to consider whether or not you will be released on parole.  That will be entirely in the hands of the Adult Parole Board and I am prohibited from taking that possibility into account.

87I fix a period of three years and two months during which you will not be eligible for release on parole.

Section 18 pre-sentence detention

88You have already served 223 days of this sentence by way of pre-sentence detention and that s18 declaration is entered into the records of the court.

Section 6AAA

89I have taken into account your guilty plea.  If you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to six years imprisonment.  I would have fixed a non-parole period of four and a half years.  That statement is to be entered into the records of the court.  I will just see if there are any other matters.  Are there any other matters from your perspective Mr McCowan?

90MR McCOWAN:  No, Your Honour.

91HIS HONOUR:  Mr Ranjit?

92MR RANJIT:  Nothing from me.  If Your Honour pleases.

93HIS HONOUR:  Will you go down and see your client and explain the sentence - - -

94MR RANJIT:  Yes, Your Honour.

95HIS HONOUR:  - - - I imposed and his rights in relation to it obviously enough?

96MR RANJIT:  Yes.

97HIS HONOUR:  Yes all right, thank you.

98MR RANJIT:  Yes, Your Honour, I have indicated to my client that I do have another matter before His Honour Judge Parrish, so at lunchtime I'll be able to go down and see him at 1 o'clock, Your Honour.

99HIS HONOUR:  How are you going to do that without an interpreter though?

100MR RANJIT:  (Indistinct words).  Perhaps in brief, may I just approach the interpreter to see if he's going to be able to - - -

101HIS HONOUR:  Of course, yes, yes.

102MR RANJIT:  Thank you.

103HIS HONOUR:  Yes.

104MR RANJIT:  Thank you very much for that.  The interpreter's been booked till 1 o'clock.  He's going to provide me with his mobile number so I can keep in contact with him.  If Your Honour pleases.

105HIS HONOUR:  Great.

106MR RANJIT:  Thank you, Your Honour/

107HIS HONOUR:  Well look that completes the matter then Mr Dang, so Mr Ranjit will come down in the course of the day and have a chat with you about what has occurred here today and your rights in relation to this sentence, all right?  Mr Dang can be removed, thank you.  I have signed that order, so I that completes the matters.

108ASSOCIATE:  Yes Your Honour, 10.30 tomorrow.

109HIS HONOUR:  Well thanks each of you for your assistance and thank you Mr Interpreter for assisting us.

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