Director of Public Prosecutions v Dang
[2012] VCC 1766
•30 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not restricted Suitable for Publication |
Case No. CR-12-01071
CR-12-01072
CR-12-01073
CR-12-01735
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUNG DINH DANG |
| HUNG NGUYEN |
| VAN LOI NGUYEN |
| THE MY TRAN |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 October 2012 | |
DATE OF SENTENCE: | 30 October 2012 | |
CASE MAY BE CITED AS: | DPP v Dang & Ors | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1766 First revision | |
REASONS FOR SENTENCE
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SUBJECT – CRIMINAL LAW
CATCHWORDS – Sentence – Pleas of guilty - Cultivate commercial quantity cannabis – cultivate cannabis simpliciter – pleas of guilty – enter/remain Australia illegally
CASES CITED – DPP v Ha [2011] VCC 782
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Bhai | Solicitor for Office Public Prosecutions |
| For the Accused Hung Dinh Dang | Mr S. Moodie | Robert Stary Lawyers |
| For the Accused Hung Nguyen | Mr J.L. Podmore | Andrew George Solicitor |
| For the Accused Van Loi Nguyen | Mr P. Bloemen | PICA Criminal Lawyers |
| For the Accused The My Tran | Mr B.W. Johnston | Pica Criminal Lawyers |
HER HONOUR:
1 Hung Ding Dang, Hung Nguyen, and Van Loi Nguyen you have each pleaded guilty to one charge of cultivating a commercial quantity of cannabis on one day, being 2nd March 2012. The My Tran, you have pleaded guilty to this charge and have also pleaded guilty to 5 charges of cultivating cannabis simpliciter. Again, each of these charges are in respect of one day’s offending.
2 The maximum penalty for cultivation of a commercial quantity of cannabis is 25 years’ imprisonment, and for cultivation simpliciter the maximum penalty is 15 years’ imprisonment.
3 In relation to the offence which you have all committed, the learned prosecutor opened the matter as follows:
4 On 2 March 2012, Victoria Police commenced surveillance on a property located at 23 Furlong Road in Cairnlea as part of a specialised operation of the Victoria Police Crime Department Drug Task Force; the operation was called Operation Permute.
Offending
5 At about 4 pm on 2 March 2012, police went to 23 Furlong Road in Cairnlea and executed a Drugs, Poisons and Controlled Substances search warrant.
6 After knocking on the front door, police heard movement within the property. Police opened the door and saw four males coming out of a room to the right of the front door. It appears that each of you, save for you, Hung Nguyen, were amongst this group. The four males then attempted to run to the back door of the property. You, Van Loi Nguyen, lunged at the rear glass door, smashing the glass.[1]
[1] Statement of Andrew Rouse, page 45 of the Depositions
7 The four males whom the police observed, which included each of you save it would appear for Hung Nguyen, then attempted to run into police and OC spray was deployed. At this time, you, Hung Nguyen, ran out of the front room and tried to escape through the front door. You, Hung Nguyen, were physically restrained and arrested.
8 In another room of the house, a female, Thi Nguyen, was located.
9 Police found a total of 53 kilograms of harvested cannabis inside the front room of the house.[2] This cannabis had been harvested by you and perhaps others. Also located inside this room were two drying/stripping machines and the floor was covered in dry cannabis leaf and plant material, including the head or bud of the plants.[3] (Photographs 33-37 depict the harvesting room.)
[2]Statement of Kylie SLATTERY, dated 22 August 2012
[3]Statement of Hayley REDPATH, page 52 of the Depositions
10 Police also found a total of 286 cannabis plants growing throughout various rooms of the house, which had been extensively modified to grow cannabis. However, all of you have pleaded guilty to Charge 1 based on the 53 kilograms of harvested cannabis which was found in the front room. Therefore, although the additional plants are part and parcel of the circumstances which existed at the time I do not take this quantity of cannabis into account for the purposes of sentencing you.
Arrest and Interviews
11 You were all taken to the Sunshine Police Station where records of interviews were conducted, with the assistance of a Vietnamese interpreter.
12 Hung Ding Dang, you admitted being found by police at the property but stated that a friend dropped you off at the address (Q30) and that all you did was “hang out” at the property, washed your face (Q32) and ate some noodles (Q74).
13 Hung Nguyen, you made full admissions to the offending, stating that:
· “The boss took me in his car to – to place where we work.” (Q16);
· you were ‘pinching’ the leaves off the plants and cutting them (Q.33-34);
· there were five or six other people who were there, and they were also cutting the plants (Q38);
· that was this was the first time you had been to the house (Q52); and
· that you were going to receive either $200 or $300 for the work (Q.77).
14 Van Loi Nguyen and The My Tran, you exercised your right to answer “no comment” to the allegations.
15 Fingerprints were located on a number of light shades throughout the house that were subsequently matched to you, Hung Nguyen and you, The My Tran.
16 Hung Dinh Dang, Hung Nguyen and Van Nguyen, you pleaded guilty at the second listing of the committal mention, on 26 June 2012.
17 The My Tran, you pleaded guilty to all charges on 18 September 2012 in circumstances where the first charge was originally booked off for a committal hearing; but then the second set of charges arrived, which were ultimately married up with the first charge and all matters were resolved into a plea with the committal hearing being abandoned. Therefore, I accept your counsel’s submission that you entered a plea of guilty at an early opportunity in relation to Charge 1, and you entered a plea of guilty to Charges 2 through to 6 at the earliest opportunity.
Pre-Sentence Detention
18 All of you were remanded in custody upon being arrested. As at the date of the plea hearing you had all been in custody for 223 days, and you have now spent 242 days in custody, which is about eight months.
Other Offenders
19 The two other people located in the house, Xuan Quang Le and Thi Nguyen are contesting the charge that they face, and a contested committal hearing has been listed in the Melbourne Magistrates’ Court on 7 November 2012.
Re Charges 2-6
20 In relation to Charges 2 to 6, to which you have pleaded guilty, The My Tran, the learned prosecutor said that some of this offending was detected within Operation Permute. You were responsible for assisting in setting up five separate hydroponic systems to be used to grow cannabis. The prosecution accepts that you did not have any knowledge concerning the intended quantity of cannabis to be grown at the house, and it is on that basis that they have accepted a plea of guilty to the offence of cultivating cannabis simpliciter.
21 At about 9.15 pm, on 21 December 2011, police intercepted a Toyota Camry carrying two male passengers. Immigration checks were conducted and as a result, the two males were taken to Keilor Downs Police Station.
22 Police searched the car and found a number of electricity bills and other paperwork relating to two addresses being 26 Lomandra Bowl, Melton West, and 6 Clemenston Drive, Caroline Springs.
23 As a result of the investigation, on 22 December 2011 at about 12.45 am, members of the Victoria Police Drug Taskforce attended 26 Lomandra Bowl, Melton West. They observed black plastic around the garage door and could hear fans operating. As police were investigating, a silver car with two occupants slowly drove past the property. Police returned to their car and shortly thereafter the same car drove past again and stopped about 15 metres in front of the police car.
24 The driver of the car, subsequently identified as Van Tuan Tran, approached the police car holding a sword in an aggressive manner. After he struck the driver’s side door with the sword, police fired at Tran who ran off. You,
Mr Tran, were in the passenger seat of the car and at this time you got out and walked towards police. They told you to get onto the ground but you did not do so, and therefore they sprayed you with OC spray. I pause here to observe that it may well be that you did not understand what the police were saying as it appears you are far from fluent in the English language. Further, the conduct of Van Tuan Tran is not something which you have any criminal responsibility for and was only led by the prosecution to place subsequent events in context. Therefore I do not take it into account when sentencing you.
25 A search warrant was then obtained and executed at the Melton West premises. A total of 275 cannabis plants were found.
26 The silver Commodore was also searched. Inside the boot police found three electrical transformers, one power circuit breaker, one power board, one box labelled “Supplied by Hydro Garden” containing numerous double power adapters and hardware wire wheels, three black reels of electrical cable, and a number of other power tools.
27 You were taken to the Keilor Downs Police Station and took part in a taped record of interview. You exercised your right to answer “no comment” in relation to the allegations. You provided your fingerprints to police and you were released pending summons. Although you were not on bail as a result of this arrest, the fact that you were arrested and interviewed in relation to cannabis cultivation in December 2011 is in my view an aggravating feature in respect of your subsequent offending, in particular, the fact that you took part in cultivating a commercial quantity of cannabis on 2 March 2012.
28 Fingerprints obtained on 22 December 2011 were subsequently matched to those found on hydroponic equipment in the Melton West property.
29 On the same day that you were arrested on the first occasion, at about 10.40 am members of Victoria Police Drug Taskforce went to 7 Clemenston Drive, Caroline Springs. A total of 272 cannabis plants were found at this address. Your fingerprints were also found on hydroponic equipment at these premises.
30 On 18 April 2012, at about 7.35 am, members of the Victoria Police Drug Taskforce attended 21 Anna Street, St Albans. A co-offender, Quyet Van Pham, was found at this address. A search of the property revealed a total of 150 cannabis plants growing in six separate rooms. Your fingerprints were found on two light shades at this address.
31 On 18 April 2012, at about 9.15 am, police attended 5 Archie Street, Tarneit. Three hundred and forty-two cannabis plants were found at this address. Again, your fingerprints were found on four light shades at that address.
32 On that same day, at about 7.45 am, police attended 7 Kings Circuit, Caroline Springs, and a total of 293 cannabis plants were discovered. Your fingerprints were found on two light shades at those premises.
33 Of course, you were arrested on 2 March 2012 in relation to the commercial quantity crop at Cairnlea and so the police discoveries in April took place after you had been taken into custody.
34 On 21 June 2012 you took part in a further record of interview with police. This was after your fingerprints had been matched to the properties which had been searched on 18 April 2012. During this interview, you said that you assisted people in setting up lightshades and other hydroponic equipment in exchange for accommodation and food.
35 These matters resolved to a plea of guilty at committal mention stage as I have already indicated, and proceed by way of hand-up brief on
18 September 2012.
36 I will first deal with Charge 1 which is the charge to which all of you have pleaded guilty.
37 As the maximum penalty reflects, cultivation of a commercial crop of cannabis is regarded by our Parliament as a most serious offence. Each of you played the same role in relation to the harvest at the Furlong Road address, and are to be sentenced in respect of taking part in this activity for one day. Each of you were prepared to assist in the harvesting of a most significant quantity of cannabis, although in sentencing you I take into account that the yield quantity of the air-dried product was approximately 13 kilograms. Whilst you played a limited and menial role in the cultivation, it was nevertheless an important one in this commercial endeavour.
38 Not one of you had the moral calibre or courage to walk away from this endeavour, but, rather, for personal gain, even if modest, you were prepared to engage in criminal activity of a most serious kind. You are therefore deserving of appropriate punishment and your criminal conduct must be denounced. Further, although explanations have been proffered for your conduct, I do not regard these as in anyway reducing your morale culpability and I must attach substantial weight to general deterrence; that is, I must impose a sentence upon each of you which sends a strong and clear message to others in the community, who might be tempted to behave as you have, to tell them that such conduct will not be tolerated. Hopefully, upon your return to Vietnam, you will also convey this message. But I do not accept, that because, in all likelihood, you will all ultimately return home, that the need for such an emphasis on general deterrence is somewhat diminished.
39 Insofar as the prospect of deportation is concerned in each of your cases, by agreement of the parties, the prosecution undertook to obtain information from the Department of Immigration. That information has now been received. It appears that when you are released from criminal custody, the Department of Immigration would initially take you into immigration detention, but they are unable to guarantee that you would remain in immigration detention pending removal from Australia, although this is a likely scenario. In certain circumstances the Department releases ‘clients’ on Bridging E visas (usually pending the resolution of a matter before the Department).
40 However, if the Department of Immigration is that if that Department were to retain control of you, and there was no impediment to your removal, it would not be able to achieve your removal from Australia in a matter of days. The Immigration Department advised that this is the case for their clients in general, simply from a logistical point of view, but particularly for convicted clients from Vietnam because of an arrangement with the Vietnamese government which would see you in detention for a number of months before your departure.
41 As the prosecutor indicated in her email to the court via my associate, a copy of which was also received by each of your legal representatives, this advice seems somewhat at odds with the letters from Immigration, which some of you have received, and which were tendered on your pleas. However, the prosecution concedes that given that all four of you either entered or remained in Australia illegally, it accepts that the risk of deportation is more than speculative.
42 A revised range in your case, Hung Nguyen (allowing for particular hardship which would be caused to you by deportation) was submitted as being a maximum of 23 months to 29 months imprisonment with a non-parole period of between 8 and 11 months imprisonment.
43 In respect of you Van Loi Nguyen and you, Hung Ding Dang, the Crown submitted a range of 2 to 2 and a half years maximum with a minimum of 9 to 12 months gaol. In your case, The My Tran, the Crown submitted that an appropriate sentencing range was between 6 and 4 years with a non-parole period of between 2 and a half, and 4 years.
44 In your favour, none of you have any prior convictions which is a matter which I take into account in assessing your prospects of rehabilitation and the need to place appropriate weight to specific deterrence.
45 Having made these remarks and findings in relation to each of you, I will now deal with your individual situations.
Hung Din DANG
46 Hung Dinh Dang, you, like your co-offenders, did not receive any money for your day’s work as this was interrupted by police. Therefore, you have not derived any benefit from your criminal activity, although you were motivated to engage in this activity in order to obtain money. However, I also take into account that you did not receive any.
47 You are 45 years old which was also your age at the time of offending. Your date of birth 6 January 1967. You had arrived in Australia in February 2011 on a tourist visa of three months’ duration. You overstayed your visa, spending a considerable time in Queensland as a farm labourer. I was told by your counsel that the purpose of your visit to Australia was to see and financially support your daughter who was studying nursing in Queensland. I was told that ultimately your reason for staying here, beyond the duration of your visa, was to assist her with her expenses. You struggled to find work earlier this year, in the context of being here illegally, and at that time you met a person whom you knew as “Michael”, who was also Vietnamese. He told you that he could assist you earning money in Melbourne for up to $200 per day.
48 At the plea hearing, I was told that on the morning of 2 March 2012 you took a flight from Brisbane and you were collected by “Michael”, who drove you to Furlong Road. I made some enquiries about the documentation concerning this flight but none was forthcoming at the plea hearing. I was told that this was all arranged for you but I must say I would have thought that you must have had something yourself in order to take the flight. Interestingly, you reported to
Mr Simmonds, psychologist, who prepared a report on your behalf, that you came to Melbourne on the Tuesday and were arrested the following Friday. This seems to be in conflict with what your counsel said, namely, that you were taken to the cannabis crop to work on the very day that you arrived, being 2 March 2012.
49 In Mr Simmonds' report you said that you only undertook the criminal activity in order to return to Queensland as you had no money to return there. It does not make much sense that you would come to Melbourne in order to make some money to return to the very place that you had come from. I queried this apparent conflict with your counsel via email through my associate. Your counsel advised that despite what she had submitted at the plea hearing, a review of her instructions revealed that you had arrived here on the Tuesday then went to Robinvale, where you were unable to find work, then this person, ‘Michael’ took you to the crop house on the morning of Friday 2 March 2012. I make the comment that this aspect of your plea is somewhat unsatisfactory. I can only hope that something has been lost in translation. However, I will put my concerns to one side in sentencing you and make it clear that I do not sentence you in relation to any other period than the one day on 2 March 2012, despite perhaps a different impression that might have been gained by an aspect of Mr Simmonds' report, and what you reportedly said to him.
50 In any event, you were introduced to others in the house in Furlong Road, being the five other co-accused/co-offenders. You said you did not know any of these people before meeting them on this day. Several hours after you commenced work at the house, the police arrived and you were arrested.
51 Before coming to Australia, you lived near Ho Chi Minh city. You are married with two children. You are a carpenter by trade, you worked in this occupation in Vietnam.
52 Ms Wendlandt submitted that your life had been significantly disrupted by the war years in Vietnam, which was referred to in a psychological report tendered on your behalf. Your family was always on the move because of government forces which meant that your education was somewhat hampered. However, you did manage to complete the equivalent of Year 12. You were raised in a family of modest means. Your parents started their own farming business after the fall of the South Vietnamese government, having worked for the government before this time. Your mother is 82 years old and suffers from dementia and, sadly, your father died in 1997 at the age of 79 years old. Whilst your parents were not well off financially, you were close to both of them and to your siblings. Your parents’ relationship was a very positive one. You reported to psychologist Warren Simmonds, who saw you on 1 October 2012, that you felt that there was little direct impact of the war upon your family. Your own children are 19 and 16 years old.
53 You have not consumed alcohol since coming to Australia and you denied any drug use when interviewed by Mr Simmonds.
54 When interviewed by Mr Simmonds, you became tearful when talking about your daughter in Queensland, but denied any tearfulness or irritability in general. There was no evidence of any suicidal thoughts and no report of psychotic phenomena. You have no psychiatric history. Whilst in custody you have suffered sleeplessness and problems with your concentration, but your appetite and weight are stable. You experience headaches every couple of days which seems to radiate from pain in your shoulder and back.
55 Sorry Madam Interpreter do you have a glass of water there, you're all right. All right.
56 INTERPRETER: Yes I have, but yes I need to (indistinct)
57 HER HONOUR: You need some more, yes, thank you.
58 INTERPRETER: Thank you.
59 HER HONOUR: I take into that your time in gaol is difficult because of your language and cultural barriers. This makes gaol harder for you than for someone not in this position. However, you have been able to engage in carpentry whilst in gaol and you used a portion of your three dollars a day to purchase Vietnamese food. You also used these limited funds to have some telephone contact with your wife and daughter.
60 I was told that you will be deported upon your release at the plea hearing, but no documentation was produced in respect of this. However, in the circumstances, as I have already indicated, I accept that deportation appears to be more than a possibility, and indeed appears to be almost a certainty. I take this matter into account insofar as I can, although it did not appear to me that your counsel was particularly submitting that your deportation would be a hardship upon you. You appeared distressed to Mr Simmonds in respect of the impact that your criminal actions have had upon your family “given that there has been no income” for your daughter or any other members of your family. I do take into account the isolation from your family and friends which has been caused by your incarceration, making time in gaol harder for you than for someone who lives here. On the other hand, it has to be said that in choosing to come here and then deciding to commit a criminal offence, you chose to take the risk of such isolation. I also factor in that you remained here illegally. I take into account that your daughter is studying in Queensland, which may mean that you have the prospect of her visiting you, although it did not appear that she has or can visit you in gaol.
61 When you return to Vietnam you will live with your wife and elderly mother.
62 In your favour, you pleaded guilty at the earliest opportunity and made some admissions in your record of interview; although, it would also appear that you gave a disingenuous account to the police to some extent. You have reached the age of 45 without any prior convictions and your offending arose out of financial difficulties rather than greed. In pleading guilty at an early stage you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contesting the matters. This entitles you to a significant discount in the sentence that you would otherwise receive. It would also appear to signify a level of remorse in that you regret the predicament you are in and the financial impact this has had upon your family. I do hope that you are able to reflect in the future as to the seriousness of your offending and the potential impact the distribution of the drug you were harvesting has upon others in this community.
63 In your case, in all of the circumstances I regard your prospects of rehabilitation as good and I need only place minimum weight upon specific deterrence.
64 I was referred to a recent sentence by His Honour the Chief Judge of DPP v Ha [2011] VCC 782. It was submitted that Mr Ha’s position was very similar to yours insofar as lack of prior convictions and being here illegally was concerned. However, it was submitted that Mr Ha’s offending was more serious than yours as he had cultivated a crop which was three times the commercial quantity that you had cultivated, and that he were paid $2,000 per month, apparently notwithstanding that his involvement for which he was charged occurred on one day. Mr Ha played the role of a crop sitter in that case. It was submitted to me that I ought to be guided by the sentence imposed by His Honour being 20 months’ imprisonment with Mr Ha being required to serve 8 months immediately, the remaining 12 months being suspended for a period of 2 years.
65 In Mr Ha’s case, he suffered from a number of medical conditions, which is not your situation, but I take into account the sentence imposed in that matter, as well as other cases which reflect current sentencing practice.
66 I will return to you and your position Mr Dang the sentence which I shall impose after dealing with the other prisoners’ situations.
Hung Nguyen
67 Hung Nguyen, Mr Podmore submitted on your behalf that you would be taken into custody upon your release from gaol and that you had been given notice in this respect from the Department of Immigration. As in every offenders case, this position has been clarified by the Department of Immigration insofar as it can be. Mr Podmore submitted that I ought factor this matter in as being central to your circumstances. He submitted that you are a victim of a worldwide phenomenon of people smuggling. He said that you were not aware of the proper processes involved in travelling to Australia, having lived in a poor rural community, working with your father as a fisherman. You dreamt of a university education and of pursuing sporting activity in particular.
68 When your father died, the family business came to an end and your mother then arranged for you to come to Australia because of the lack of prospects for you in your own country. She arranged for your passage to Australia with people smugglers who charged her AUD$10,000. She could only pay a small amount of this at the time and there is a large balance outstanding. You travelled on a boat for nearly a month when the vessel was intercepted by the Navy. You were most grateful for the intervention as there was no longer any food or water for you or for the other passengers. The interception occurred in March 2011 and following it you were taken to Christmas Island. After two months you were transferred to Geelong Detention Centre where you remained for a number of months. You contacted your mother and learned that the people smugglers were pressing her for payment of the outstanding sum owed to them. You also learned that you would be transferred to Western Australia, having been told that an application which you had made for asylum was unlikely to be successful.
69 I was told that the prospect of failing in your application for asylum and of being transferred to Western Australia as well as the difficulties your mother was suffering, led you to escape from the Geelong Detention Centre. This was a relatively easy thing to do, as residents were allowed access into the community. I was told that you quite liked the time that you spent at the Detention Centre and were very grateful for the treatment you received there. I take into account in a general sense that some of your time has been spent in detention whilst you were living in Australia, notwithstanding that you apparently did not find the detention too onerous. While you came to Australia without applying to migrate here, I take into account that you did so in circumstances where you had been persecuted in Vietnam and had applied for asylum upon arrival here.
70 You left the Detention Centre when a friend called you and said he had some work for you and would come and pick you up. So, after being at the Detention Centre for seven months, you were able to leave with relative ease. From December 2011, you were in the community for about three months and found it very difficult to survive. You had no money, and nowhere to live. You could not speak English and could not readily obtain employment, hampered by the fact that you were in Australia illegally. You worked in market gardens, picking flowers, but this work, which was seasonal, ran out.
71 You then went to Melbourne in about February 2012, to look for further work. Again, this proved most difficult for you for the same reasons previously mentioned. You were then introduced to a man whom you knew as “Uncle”. He offered you a well paid job and, I was told that your situation was so dire, that you did not ask too many questions. Shortly after meeting this man, he took you to the house in Furlong Road, Cairnlea. You first attended that house on the day that police arrested you, namely 2 March 2012. I was told that you were shown what to do in terms of stripping the leaves from the cannabis plants and putting these into various piles. I accept that you provided a very full record of interview and were apparently candid with police about your involvement in the offending. This contrasts with the approach taken by your co-offenders.
72 Insofar as your own involvement in the offending was concerned, you did give a full account to the police, including your expectation of being paid $200 or $300 for the work. Unfortunately, your level of knowledge or preparedness to cooperate did not include details in relation to the identity of your boss, but I do not count this against you. Your early plea of guilty and preparedness to cooperate with police from the outset entitles you to a significant discount in the sentence that you would otherwise receive, and is indicative of an expression of remorse to some extent at the earliest stage. I will not repeat the reasons for which you are entitled to a significant discount insofar as your early plea of guilty is concerned, but these are the same reasons as those I expressed to your co-offender, Hung Dinh Dang.
73 You are now 24 years old and were 23 at the time of offending.
74 In your case, I also take into account that your time in custody is harder than for someone without cultural and language barriers such as you possess, and that you have found imprisonment a most isolating experience. I also factor in that you have no relative or friends in Australia but, again, I also factor in that you knew this when you decided to come here and then decided to embark on criminal offending.
75 To your credit, while in gaol, you have worked on your English language skills and you are learning carpentry. You have been entrusted by the prison authorities with a range of power tools and other items, which is a testament to your good behaviour whilst in prison.
76 In all of the circumstances, such as I know these to be, I find that you have good prospects of rehabilitation, and I also take into account that you are a relatively young man. I need place little, if any, weight on specific deterrence, especially in circumstances where from the outset you were prepared to cooperate with police.
77 In coming to Australia, the objective for you was to be granted asylum and having done so, to be in a position to send money back to your mother. I was told that you feared persecution when you return to Vietnam as you had previously spent one week in gaol for observing your religious beliefs. Further, you feared repercussions from the people smugglers who were still owed moneys for your passage. Mr Podmore also posited that the people smugglers may be wanting to silence you, as your return home may well be seen by them as detrimental to their business. Insofar as I can, I take into account your fears and the potential hardship that you will face as a result of deportation.
78 These matters are to be tempered against the fact that you were apparently in a detention facility with an asylum application pending at the time you decided to leave, notwithstanding the pressures that you perceived at that time. Moreover, it would have been open to you to return to the facility, one would have thought, but your decision to stay away and attempt to earn money in Australia put you on an inevitable path to being deported, as best I can understand the situation. However, in your case, the prosecution accepts that, given your report of being detained in Vietnam due to your religious beliefs, coupled with the fact that you do not wish to return home, that your deportation will weigh more heavily upon you than it would weigh on other offenders who were not in this position.
79 I take into account the report of Carla Lechner psychologist dated
23 September 2012. According to Ms Lechner, you are cognitively and emotionally immature, and while capable of reflecting on the impact of your behaviour on yourself and others, you are a person who lives without thinking through longer term consequences. She was of the view that you currently showed symptoms of extreme depression and that you fulfilled a diagnosis of adjustment disorder with disturbance of mood. Ms Lechner made these findings on the basis of an interview with you and an assessment at that interview based on a self-report questionnaire. Your counsel submitted that this impairment of mental function will make time in gaol more difficult than for someone not suffering from such a disorder. I make some allowance for this in your case.
80 Your mother is unaware that you are in gaol and you have had no contact with her for the past month as at the time you were speaking with Ms Lechner. You have found it difficult to earn sufficient money to make telephone calls which is adding to your sense of isolation.
81 You appear to have a good deal of insight into your offending, although you have some way to go. You expressed to Ms Lechner that you regret your actions and are ashamed of them.
82 While your role was no different to that of your co-offenders, I am prepared to make a greater allowance in respect of the non-parole period in your case because of your preparedness to be cooperative with the police from the outset and the hardships that you suffer because of impairment of mental function, and the hardship that you face as a result of your deportation which appears to be a most likely eventuality.
83 Your counsel submitted that in all of the circumstances an appropriate sentence would be one which was partially suspended, such that the time in gaol which you have already served would be sufficient.
84 I shall return to you and the sentence which I will impose after I have dealt with the other prisoners.
Van Loi Nguyen
85 Van Loi Nguyen, you have just turned 30 and were 29 years old at the time of the offending.
86 You, like your co-offenders, were born in Vietnam. You lived in an area of Vietnam just north of the seventeenth parallel. The area is one which comprises mainly rice fields. Both of your parents taught in the local school. You have two brothers who are now 33 and 31 and who both work in your home village in textile factories. They are technicians, having undertaken trade courses.
87 After you were born, your parents stopped teaching then commenced selling fruit and vegetables. They worked long hours for poor pay and whilst Mr Bloeman said that you did not experience hardship, in that you never wanted for food, your life was far from luxurious. You lived in a community type house, sharing housing with your two brothers. You completed your education in Vietnam and then completed a course in accounting, undertaking employment as a payroll clerk for two years. You then helped your parents with the fruit business in a bid to assist them with their financial struggle. I was told that you dreamt of a better life and better employment and to pursue this dream, you came to Australia in 2008, entering on a student visa. Your parents had borrowed a large sum of money in order to pay for your air fare and expenses, using their home as security. The money they borrowed also paid for an English course which you were to study while in Australia.
88 Upon arrival here, as well as studying English, you attempted to find work. You had two trial jobs, one as a kitchen hand and one as a waiter. Your English course concluded after two months and while living in share accommodation in Collingwood, you read an article in a Vietnamese magazine about employment opportunities in the country. You obtained a job in Robinvale picking grapes, working there for three and a half years. You worked long hours, between nine and twelve hours on any given day, and you worked from five to seven days per week. You initially earned about $30 per day, but as your skills improved, you earned $80 per day. Your employers were apparently aware of your illegal immigration status, as your visa had well and truly expired at the time that you were working for them.
89 Notwithstanding this, they employed you providing deplorable accommodation for you to live in. This comprised of a filthy rat infested caravan. They provided you with the caravan as accommodation rather than the share house where others lived so as to avoid you being detected by immigration authorities. During this period, you worked hard and earned about $20,000 in total which you sent home to your family to help in the payment of their debts which they had incurred in order to send you here. I was told that your employer arranged for the money to be sent, requiring payment of $2,000 for this ‘service’.
90 I was told that in March 2012, a fellow employee from this vineyard invited you to come to Melbourne to take advantage of an employment opportunity, where you would be paid between $200 and $300. You were told that your work would involve clipping and cutting plants but you did not realise that this involved harvesting cannabis until you attended the premises on 2 March 2012.
91 I accept that you were not enriched by working at the crop house and that your expectation of payment was fairly modest.
92 You are not addicted to any drugs and you have no psychological difficulties. No report was provided from a psychologist in your case.
93 Your counsel submitted that you have found your time in custody a confusing and isolating experience; again, this is due to the culture and language barrier. I take this matter into account in the ways that I have previously expressed concerning your co-offenders, Mr Dang and Mr Nguyen. While in gaol, you engaged in an English course but, as this was above your level of comprehension, it has been of limited benefit for you. Because of your difficulties with English, you have not engaged in any form of particular employment while in gaol. I was told that your lack of activity has resulted in you becoming forgetful and that you have been somewhat idle.
94 You, like your co-offenders, have suffered hardship because of the lack of family and friendship support that prisoners living here might enjoy. I take this matter into account in the same way as I have for your co-offenders.
95 The prospect of deportation was also relied upon as a hardship in your case. Again, I take this into account insofar as I can, although in circumstances where you chose to outstay the duration of your student visa without any apparent real or legitimate expectation to remain here in the long term.
96 In your case, I take into account your early plea of guilty and for the same reasons as I have previously explained, you are entitled to a significant discount in the sentence you would otherwise receive. You gave a “no comment” record of interview, as is your right, and although it may be that you are regretful of your offending because of the predicament you are now in, I am unable to find anything beyond this in terms of remorse, notwithstanding your early guilty plea.
97 However, in all of the circumstances, I find that you have good prospects of rehabilitation and I need place little weight upon specific deterrence. Your counsel submitted that in all of the circumstances I ought impose a sentence which resulted in your being released on the basis of time already served with a remaining period to be suspended. He referred and contrasted your offending to that in relation to that in the matter of Ha and gained support for the proposition from this case, that your offending was at the lower end of the spectrum for this type of offence.
98 Again, while I accept that this is the case, I do not accept that your activity was any less engaging than that of a crop sitter. Further, as I have already said, your role, like that of your co-offenders, was an important one in the overall commercial cultivation which took place. As I have already said, I have had regard to the sentence imposed in DPP v Ha and I have also had regard to other cases in considering current sentence practice.
99 I will tell you the sentence that I will impose in your case after dealing with matters relevant to The My Tran.
The My Tran
100 The My Tran, you had just turned 25 years when you committed the offence which is the subject of Charge 1. In relation to all of your offending you were 24 or 25 at the time you committed these, having been born on 3 February 1987.
101 Whilst your role in relation to Charge 1 is the same in essence as that of the other prisoners, you are in a more serious position than they as you have also pleaded guilty to five charges of cultivation simpliciter, and you committed the offences giving rise to Charges 1, 4, 5 and 6 after you had been released on summons on 11 December 2011 for similar matters. As I have already said, whilst you did not breach a bail undertaking in doing so, your decision to return to the same type and even more serious offending on one occasion, aggravates your offending in my view.
102 In sentencing you I make it clear that I do so on the basis that in respect of Charges 2 to 6 your role was limited to assisting in the set-up of the crop house at the outset, such that you did not know what quantity of cannabis was to be grown. I am also mindful of the fact that you are to be sentenced in respect of one day only in relation to each of the charges, including Charge 1.
103 You, like your co-offenders have no prior convictions but you, unlike your co-offenders had been placed on notice in December 2011 that your activity was illegal. However, the fact that you have no prior convictions is a matter which I take into account in assessing your prospects of rehabilitation and the weight I need place on specific deterrence.
104 I also accept that in your case there is no evidence of enrichment. Although your co-offenders were told to expect payment, I was told that your expectation was accommodation and food in exchange for your assistance. Whilst I must say I have some scepticism about this, I accept that on any view you were not engaging in the illegal activity for any lavish reward.
105 The dates on the indictment in relation to Charges 2 to 6 reflect the approximate date upon which you set up the particular crop which was assessed on the basis of the age of the plants when the police found them. Therefore, as at 18 April 2012, when some of the crops were discovered, you had been in custody for about six weeks following your arrest on 2 March in relation to the Furlong Road property.
106 As I have previously indicated, I put to one side the incident involving your co-offender who threatened the police with a sword.
107 In assessing your level of cooperation and remorse I take into account that you exercised your right to make "no comment" on the first two occasions that you were interviewed by police. This is your right, but I take it into account when assessing your level of remorse at that stage and your level of cooperation. However, after your fingerprints were found you decided to give a responsive record of interview in June 2012. Therefore, you showed a level of cooperation at this stage, notwithstanding that you cooperated at a time when police had a good deal of evidence against you.
108 You subsequently indicated a preparedness to plead guilty at an early stage, with that indication coming first in relation to Charges 2 to 6. You initially sought to contest Charge 1 which was booked off for a committal hearing but in the end you pleaded guilty to all matters on the second committal mention date being 18 September 2012. In all of the circumstances, you have pleaded guilty at an early stage, and are entitled to a significant discount in the sentence you would otherwise receive in relation to all matters as you have saved the witnesses the time and trouble of giving evidence, and you have saved the community the time and expense of running contested proceedings.
109 As to remorse, I accept that you are regretful of your actions insofar as they have placed you in a predicament; but in circumstances where you continued to offend after being released in December 2011, and where you only chose to cooperate with police at the third record of interview stage, I am unable to find that you have genuine and complete remorse for your criminal conduct.
110 Mr Johnson, who appeared on your behalf, described you as an unlawful non-citizen of this country. You fled a detention centre in June 2011 and Mr Johnson remarked that despite providing your correct name and date of birth in December 2011 you were released by police at that time. Evidently, it was not clear to police at that time that you had escaped a detention centre. Obviously you did not enlighten them in this regard.
111 You were born in 1987 and were 24 years old when you committed the offences giving rise to Charges 2 and 3. Otherwise you were 25 at the time of the other offences.
112 I was told that you are in a relationship with a woman from your village in Vietnam and that both of your parents who are in their early 50s are living in Vietnam.
113 I was told that your family are devoted Catholics and that one of your sisters is a nun who lives in Saigon. An older brother lives away from the family and your two younger siblings live in the same village as your parents.
114 You were born in Ha Tinh and when you were seven or eight years old your family moved to the south-eastern part of Vietnam to Hoh Hiep. You and your family were farmers and lived in poor circumstances in a village which had no running water, electricity or sanitation. You and your family worked long hours for low pay. You reported to Michael Bilyk, psychologist in a report dated
15 October 2012, that although you lived in a family home you survived on very little and your parents acquired significant debt in order to survive. Your parents continued to work long hours in physical labour to attempt to repay financial debts. Your family had no property of their own.
115 You left school between the ages of seven and eight in order to help your parents as farmhands and returned to school when you were 15 years old. Between the ages of 15 and 17 you worked during the day as a farmhand then attended night school in order to complete your education. I was told that you sacrificed a number of years of schooling between the ages of 8 to 15 years so that your youngest siblings could attend. Mr Johnson said that in these circumstances it was difficult to say how educated you were and that Mr Bilyk’s statement that you reported a year level of education should be seen in the context of the gap in your education to which I have previously referred. He said that you had some command of basic numeracy but that your education appeared to be at a basic level in general.
116 Your English is very poor. It was not something that was taught at school and is not something that you have been able to learn to any significant extent whilst living here.
117 In Vietnam, you shared a very basic house with your family and the same impoverished conditions endured until you decided to come to Australia at the age of 24.
118 I was told that you had a most impressive work ethic in Vietnam. After completing your education at 17, you worked as a farmhand full-time being seven days a week from 7.30 to 5 pm. You did this until you left Vietnam. The conditions in your village were such that people would often become unwell, probably because of poor sanitation.
119 You have never used drugs and you do not have a history of mental health problems.
120 I was told that you decided to come to Australia in search of a better life. You were approached by a person who advised you of the promise of employment and accommodation here. Your family incurred further debt in a bid to have you travel here. You boarded a fishing boat which had travelled for about 20 days before being intercepted by the Australian Navy. You were then taken to Christmas Island where you remained for about one month. Then you were transferred to Maribyrnong Immigration Detention Centre.
121 When undertaking the journey you were aware of the risk that you were taking in terms of the danger of the journey. Mr Johnson said that the Maribyrnong facility had a lower level of security which enabled you to escape rather readily after being in detention there for four months. You left the facility having been told by an associate at the centre that he had connections in Melbourne who could assist you with accommodation and employment. However, after you escaped you were abandoned by this person.
122 For about two weeks following your escape you were living on the streets and survived on discarded food. You met a Vietnamese man during this period who apparently assisted you with a train ticket and a small amount of money to get to Robinvale. It was here that you met some other Vietnamese people and stayed for about two months picking fruit. When this work finished, you returned to Melbourne and again found yourself homeless. Despite approaching a number of local business owners in the Vietnamese community, you were rejected as you had no formal identification or "work permit" according to Mr Bilyk’s report.
123 Mr Johnson said that it was unclear as to whether you had applied for asylum or not whilst in detention. It was not made clear as to what the basis for such an asylum application would be in any event. I have not received anything further in this regard, and so I do not speculate as to whether you had made such an application or not, and I cannot speculate as to the basis for this.
124 I was told that you now wish to return to Vietnam at the earliest opportunity in order to assist your family with paying off the debt which you have helped to incur.
125 Mr Johnson had ascertained from the relevant authority that as soon as you are released on parole you would either be deported immediately or taken back into custody pending the outcome of any asylum application. A letter from the Department of Immigration was tendered on your plea which indicates that you are liable to deportation. Again, this situation has been clarified to some extent by the enquiries made by the prosecution, and as I have said it is accepted that it is more than likely that you will ultimately be deported.
126 I was told that during the time that you worked in Robinvale you saved the moneys that you could and sent these back to your parents.
127 Mr Johnson submitted that the majority of your time in Australia had been spent in some type of custodial setting which is a matter that he said I could take into account in a general sense. Whilst I do take into account the fact that you have been in detention centres for a not insignificant period, I must also factor in that the reason you were there was because you had come here illegally. I also factor in that your experience of detention here does not appear to have been as onerous as might have been perhaps for some who come to this country illegally.
128 Mr Johnson relied on the report of Mr Bilyk insofar as his assessment of your mental health was concerned. He found that you had symptoms consistent with a major depressive episode which he thought was likely to be a reaction to your lack of capacity to form a life in Australia as you expected, your subsequent circumstances since arrival and your present concern in relation to your parents' welfare in Vietnam. He assessed you as being in the extremely severe range of experienced depression and anxiety. He said that your psychological problems did not appear to be causally linked in any way to your offending behaviour.
129 In these circumstances I am prepared to moderate your sentence somewhat because the psychological difficulties that you are suffering will make your time in custody harder than for someone who does not suffer from these.
130 You have found your time in custody a most frightening experience which appears to have had a salutary effect upon you. I take this matter into account when assessing the weight I need to give to specific deterrence in your case.
131 You have been limited in your ability to undertake particular courses whilst in gaol because of your limited English. However, you have attempted a work safety course, and reflective of your solid work ethic, you work as a carpenter in the prison Monday to Friday from 9 am to 3 pm. You earn $25 per week which is largely spent on phone calls to your parents.
132 I make allowance for the fact that your time in custody will be harder than for someone who has family and friendship support, but again I do so whilst bearing in mind that you chose to commit these offences when away from your home, taking the risk that your current situation would result. I also allow for the fact that time in custody is harder for you than for others because of language and cultural barriers.
133 You are now 25 years old and it is most desirable that I maximise your chances of rehabilitation as you are still a fairly young man.
134 In all of the circumstances of your case, including the fact that you chose to reoffend after being arrested and released, but also bearing in mind your lack of prior convictions and experience in gaol, as well as your desire to return home to lead a productive life, I assess your prospect of rehabilitation as being fair. I bear in mind Mr Bilyk’s assessment that you are at low to moderate risk of reoffending. The fact that you continued to offend after being arrested for similar offending, and taking into account all of the circumstances in your case, I attach some weight to specific deterrence, albeit not significant weight.
135 Insofar as the prospect of deportation is concerned, whilst this can be a hardship which can mitigate a sentence, in your case I find this is a rather vexed question. You presently wish to return to your homeland in order to assist your parents on the one hand, but on the other you had hoped to build a life for yourself in Australia. You would only have been able to do so in a legitimate way if you were to be granted asylum and this depends upon whether in fact you had applied for such a status. But as I have already said, I cannot be satisfied that you have applied for this. I was told that if you were not able to establish your identity at the time that you were to be released from gaol on parole, or by virtue of a partially suspended sentence, this would result in you being returned to custody until such time as this could be established.
136 I was told by Mr Johnson that Department of Immigration has overriding authority to deport in circumstances where someone in your position is released on parole but is subject to a deportation order. Indeed this appears to be the case. Consequently if I were to order a sentence which involved a parole period you would be serving that parole period in your own country. However, if released from gaol and identity is not established then apparently this can result in you having any parole revoked and having you return to custody.
137 In the end, the situation in this regard is of a somewhat speculative nature. I cannot foresee what the situation will be ultimately insofar as establishment of your identity, and cancellation of parole and the like is concerned. All I can do is apply appropriate weight to all relevant sentencing considerations in your case which are not speculative in nature, and impose a sentence with an appropriate non-parole period in all the circumstances.
138 However it appears that in your case as well as in your co-offenders, that the Department of Immigration may well detain you before you are deported. So I take this prospect into account in your case and in the case of all of the offenders.
139 Mr Tran, your counsel referred me to the appropriate sentencing snapshots concerning the offences which you have committed. I take these into account insofar as statistics are of some assistance. I have also had regard to recent cases in relation to other matters concerning these offences but, as is often the way, it is very difficult to find a case which is similar to yours. On the one hand, you have committed serious offences and have done so repeatedly but, on the other hand, your role was a limited one and the period of offending was extremely limited. There are also mitigating factors which apply to you ad to which I have previously referred.
140 Your counsel also referred me to the decision of DPP v Ha and made comparisons and contrasts in relation to it. I have considered these submissions.
141 In your case the prosecution submitted that given the psychological material the range of sentence might be deserving of some moderation but that this could still be achieved within the range that they had previously expressed, being between four to six years with a non-parole period of between two and a half and four years. As I said in discussion with the learned prosecutor at the plea hearing, I found this a rather puzzling approach as one would have thought that such a concession by the Crown would have resulted in the range submitted being a somewhat lesser one, especially insofar as the upper end of it was concerned. In any event, the submission made by the learned prosecutor is just that, and ultimately it is my decision as to the appropriate sentence which should be imposed in your case.
142 Your counsel submitted, although your offending was serious, that I could impose a sentence which was within a three year maximum and this would enable me to partially suspend any gaol term which I impose.
143 I now address all four of you and indicate that in respect of all of you I have considered current sentencing practice including a table of sentences arising from an operation called Operation Entity which was provided to me by the learned prosecutor. The matter of DPP v Ha was one of the cases in this operation. I have carefully considered the relevant sentencing considerations in respect of each of you, and the weight which I should attach to these. I have also carefully considered the submissions made by the Crown and by your counsel.
144 I am now going to proceed to sentence, but please remain seated until I ask you to stand up.
145 Firstly I make the disposal orders sought by the Crown and I also make the forensic sample orders in respect of each of you. Neither of these orders are opposed by any of you. I make the forensic samples orders, being a sample of saliva being taken from the mouth, on the grounds that the offences which you have each committed is serious, and that you do not oppose the order, and that it is in the public interest to make the order. If you do not cooperate in the taking of the sample, reasonable force can be used by the authorised officer to ensure that you comply.
146 In respect of the forfeiture order which was sought by the Crown to be made in relation to the unclaimed moneys found at the house, I have considered the matter and I am not prepared to make the forfeiture order because these would be orders made against you and each of you have indicated through your counsel that you do not own these moneys. It may be that the moneys have a legitimate owner, or that a contested forfeiture order proceeding might occur in the future in relation to co-offenders. I also note that the Crown withdrew the application to forfeit a wallet and moneys which are yours, Van Loi Nguyen, and so unless there are further proceedings in relation to this aspect, or to this matter, these moneys will be returned to you.
147 I now proceed to your individual sentences.
I ask that you stand up please Hung Dinh Dang
148 Hung Dinh Dang in relation to Charge 1 you are convicted and sentenced to 2 years imprisonment and I order that you serve 9 months imprisonment before becoming eligible for parole.
149 If not for you plea of guilty I would have sentenced you to 3 years imprisonment with a non-parole period of 18 months.
150 I will make a declaration in relation to time served in relation to all of you at the end of the sentence. For the time being could you please sit down.
Would you please stand up Hung Nguyen
151 Hung Nguyen you are convicted and sentenced to 2 years imprisonment and you must serve 8 months before becoming eligible for parole. If not for you plea of guilty I would have sentenced you to 3 years with a non-parole period of 17 months. Please sit down.
Please stand up Van Loi Nguyen
152 Van Loi Nguyen you are convicted and sentenced to 2 years imprisonment and you must serve 9 months imprisonment before becoming eligible for parole. If not for you plea of guilty I would have sentenced you to 3 years imprisonment with a non-parole period of 18 months. You may sit down.
Please stand up The My Tran
153 The My Tran you are convicted and sentenced as follows:
Charge 1: 2 years imprisonment, which will be the base sentence.
Charge 2: 6 months imprisonment
Charge 3: 8 months imprisonment
Charge 4: 12 months imprisonment
Charge 5: 12 months imprisonment
Charge 6: 12 months imprisonment.
154 I make orders for cumulation as follows. I direct that 4 months from the sentences imposed on Charges 4, 5 and 6 be served cumulatively with each other and with the base sentence, producing a total effective sentence of 3 years imprisonment.
155 I direct that you are to serve 2 years imprisonment before becoming eligible for parole.
156 If not for your pleas of guilty I would have sentenced you to a total effective sentence of 4 years 3 months with a non-parole period of three years imprisonment. You may take a seat.
157 In each of your cases I declare that you have already spent 242 days in custody which will be reckoned as already served.
158 On my calculation Mr Hung Nguyen that would make you eligible for parole at this stage, but that is a matter as I understand it for the authorities.
159 Is there anything further counsel?
160 MS BHAI: No.
161 MR JOHNSTON: If I can clarify if I may, just in relation to Counts 2 and 3, they are obviously wholly concurrent with the base sentence, is that right?
162 HER HONOUR: Yes, unless I've said cumulative, everything else is concurrent.
163 MR JOHNSTON: As Your Honour pleases.
164 HER HONOUR: Yes, thank you. Thank you, you may remove the prisoners. Thank you for your assistance Madam Interpreter, we'll now adjourn.
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