Director of Public Prosecutions v Dang
[2022] VCC 1720
•5 October 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-00062
CR-22-00308
Indictment No. M11783494
M11783508
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUC DANG & ANH TUAN NGUYEN |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 July 2022; matter mentioned on 25 September 2022 | |
DATE OF SENTENCE: | 5 October 2022 | |
CASE MAY BE CITED AS: | DPP v Dang & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1720 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – each offender charged with cultivation of a narcotic plant in a commercial quantity – 939 plants – 192.72 kilograms of cannabis – charge in relation to one day only – pleas of guilty
Legislation Cited: Sentencing Act 1991 (Vic); s3(1); Crimes Act 1958; Drugs Poisons and Controlled Substances Act 1981, s72A
Cases Cited:Thanh Van Nguyen v R [2019] VSCA 134; Hieu Tran Dang v R [2020] VSCA 24; Worboyes v R [2021] VSCA 169; Le v R [2021] VSCA 220; DPP v Tennison [2020] VCC 343;
Sentence:Total effective sentences of 2 years 6 months imprisonment; non-parole period of 1 year 8 months imprisonment; 377 days of pre-sentenced detention administratively deducted from the sentence; forfeiture and disposal orders; 6AAA declarations – 4 years imprisonment with a non-parole period of 2 years 8 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z. Petric | Solicitor for the Office of Public Prosecutions |
| For the Offender Anh Tuan Nguyen | Mr A. Pattton | Gallant Law |
For the Offender Duc Dang Mr C Farrington Stephen Andrianakis &
Associates
HIS HONOUR:
1On 8 July 2022, you Anh Tran Nguyen (who I shall refer to as “Nguyen”), on Indictment No. M11783494 and you Duc Dang (who I shall refer to as “Dang”) on Indictment No. M1173508 have each pleaded guilty to the charge that each of you at Campbellfield on 23 August 2021 cultivated a narcotic plant, namely cannabis, in a quantity that was not less than the commercial quantity applicable to that narcotic plan.
2Such offence is contrary to s72A of the Drugs, Poisons and Controlled Substances Act 1981, with a maximum penalty of 25 years' imprisonment. Cultivation of a narcotic plan in a commercial quantity is a Category 2 offence as defined within s3(1) of the Sentencing Act 1991.
The circumstances of the offending
3
Counsel for the prosecution cantered initially a document headed
“Amended Summary of Prosecution Opening for Plea” (Exhibit 1) and I was informed by your counsel, Nguyen, and your counsel, Dang, that you agree with the contents of such document. In particular, I note the following important matters:
·You, Nguyen, are presently 26 years old, having been born in July 1996. At the time of the subject offending you were 25 years of age.
·You, Dang, are presently 32 years old, having been born in April 1990. At the time of the offending you were 31 years old.
·
On 31 December 2018, commercial premises situated at
18-20 Killara Road, Campbellfield owned by Stevicmar Nominees Pty Ltd were leased for a period of five years by a tenant Diep Cam Sieu, trading as Cam's Best Kitchen, such lease commencing on 31 December 2018.
·
On 19 August 2021 at approximately 10.11 am, police attended that
16-20 Killara Road, Campbellfield, observing the front gate of the premises open and a Toyota Yaris 1RM 4MZ parked in the centre of the carpark directly in front of the factory roller door.
·On 23 August 2021 at approximately 10.50 am, observations were made of both of you attending the premises with you, Nguyen, driving a white Mitsubishi truck and you, Dang, being a passenger in such vehicle.
·On arrival at the premises, you, Dang, were observed exiting the vehicle, opening the large roller door of the factory before the vehicle reversed into the factory and the roller door was shut. At approximately 11.48 am, a number of police approached the front of the premises and, as members approached the front door, you, Nguyen, were observed running out of the rear door of the premises. You were told to stop and get on the ground by a policeman but you did not comply, turning back into the premises.
·You, Dang, were then observed exiting the rear door of the premises and told to stop and get on the ground by a policeman to which you complied. When lying face down, you removed a set of keys from your left pants' pocket and placed it on the ground beneath you.
·At approximately 11.50 am, search warrants were executed at the premises by police personnel. Upon entering the premises, observations were made of a large quantity of what appeared to be cannabis growing hydroponically inside.
·On entering the premises, police located you, Dang, lying on the ground and you, Nguyen, walking around the corner from the dormant side of the premises. You were immediately both arrested and taken back to the front of the premises.
·At 12.02 pm, with the assistance of a Vietnamese interpreter, you, Dang, were informed that you were under arrest for cultivating cannabis and you were provided with a caution and told your rights. A search of you located the following items;
oone camouflage-coloured hat;
oone Apple iPhone 11 Pro;
oone Victorian driver's licence in the name of Dang and one Toyota vehicle key and house key.
· You, Nguyen, were also advised you were under arrest for cultivating cannabis and provided with a caution and told your rights. Police conducted a search of you, locating and seizing one Apple iPhone XS. Both of you were transported to the Broadmeadows police station by police and there both were interviewed by senior police with assistance of a Vietnamese interpreter.
· The crime scene officers took various photographs of the premises and, in particular, one of the police persons, the assigned exhibit officer, seized the following items from the premises
o white Mitsubishi truck IOQ SHV and vehicle keys containing a pallet of coco soil and coco liquid;
o one set of keys with remote belong to you, Dang;
o 939 cannabis L plants;
o one Wi-Fi modem SIM 5819545660358;
o one electrical bypass.
·The premises were partitioned into multiple rooms of the factory floor, constructed with plywood. Each room had electrical wiring connected to transformers outside the room and were visible from the factory floor. Fluorescent headlights and watering systems with black air ducts were connected to each room.
·On the second floor of the factory there were multiple air duct running form the factory space into the second floor office.
·Within the communal area of the factory, there was a table with two fresh McDonald's meals and adjacent to the table was a coffee table with a television displaying a live CCTV at the front of the factory.
·A total of 939 cannabis L plants weighing 192.72 kilograms were located across six floors within the factory and also on the main factory floor.
·Counsel for the prosecution prepared a table setting out the number and weight of plants found in various rooms at the premises and a description of the state of growth of the various plants. I set out the table as follows.
Exhibit No
Botanist Certificate Item No
Located
No. Plants
Weight
36
1A
Room 1
152
358.5 grams
37
1B
Room 2
176
344.5 grams
38
1C
Room 3
268
2.32 kilograms
39
1D
Room 4
144
25.40 kilograms
40
1E
Room 5
70
83.32 kilograms
41
1F
Room 6
70
80.72 kilograms
44
1G
Factory Floor
59
255.3 grams
Total:
939 plants
192.72 kilograms
a) Room 1: The plants appeared to be young seedlings arranged in two trays and stored under black plastic and directly under lights;
b) Room 2: The plants appeared to be young seedlings. They were stored on makeshift shelves covered in black plastic with the plants in vetted trays and directly under lights;
c) Room 3: The plats appeared relatively young. They were individually potted and arranged under several lights that were wired from the room and along the back left corner of the wall there was a black air duct with ducts also extending from the ceiling for ventilation;
d) Room 4: The plants were more mature, individually potted and arranged under rows of tube lighting with air ducts connected from the ceiling;
e) Rooms 5 and 6: The plants were the most mature in both rooms. They were arranged in individual pots and stored in water trays. Plants were arranged under rows of lights and there were multiple air ducts connected from the ceiling of each room;
f) Factory floor: These plants appeared to be relatively young.
·At approximately 2.43 pm on 23 August 2021, you, Dang, commenced a recorded interview with the assistance of an on-site Vietnamese interpreter. During the recorded interview, you stated, amongst other things:
- that an unknown male approached you in the street near Sunshine Bunnings approximately seven to eight days ago
- the person hired you to attend the factory and water the plants
- you put water into a container and then scoop the water out and watered the plants
-you stated you did not know what the plants were, however, you were told they had medicinal qualities
- you had been to the factory two or three times and the most recent time was four or five days ago in your Toyota Yaris and you had attended Tuesday, the Thursday the previous week with Nguyen
- you had never been to Campbellfield until you hired to attend the factory
- because of COVID, you had not been able to work and did not have money to cover your expenses
- you are friends with Nguyen and had known him for approximately one year
- Nguyen picked you up that day at approximately 10.30 am in his truck which he borrowed from you and after which you drove to a garden supply store in Sunshine and paid $500 for the liquid and approximately 50 bags of soil for the plants
- at approximately 10.30 am, you and Nguyen attended the McDonald's at Campbellfield before driving to the premises;
- Nguyen's role is also to water the plants
- a mobile phone located in your possession belonged to you and another person uses the phone; you stated that you had had the phone for two years
- you provided a PIN code 301290.
·At approximately 4.52 pm on 23 August 2021, police commenced a recorded interview with you, Nguyen, with the assistance of an on-site Vietnamese interpreter. During the recorded interview you stated, amongst other things:
- you lost your job at the Pho Restaurant approximately one year ago.
- you had been in Australia for eight years and do not study.
- you stated you met an unknown male less than a month ago at a unknown club and the male offered you $1000-$2000 to do a job.
- you stated your role was to attend the factory, go inside to pump the water and that you turned the tap on and switched it off before leaving.
- you stated you were only present for 15-20 minutes at a time and sometimes two to three days per week for two to three weeks.
- you stated that you did not know what was inside the factory because you never really find out what is there but you know there are some wooden boards.
- you do not know what people have done to set it up.
- you drove to the factory that day in a truck that does not belong to you but you could not remember who gave it to you.
- you stated you got the truck from St Albans and it was on the street near your house and the keys were inside it; the truck was always there and you knew to use it.
- you stated that when you woke up at approximately 10.30 am, you drove to McDonald's Campbellfield, entered the store and paid cash for two meals because one is not enough for you.
-some weeks ago you go there and some weeks you do not but always in the truck.
- you have not recovered any payment yet but you do not how to contact the unknown male.
- you stated that you do not know anything about Dang and had never met or seen him until today; you do not know how Dang got to the factory and you do not speak to him or pay any attention to him.
- you stated that you do not know Dang's role and did not know he would be there that day.
-you parked the truck, opened the door and parked inside.
-you were sitting there when the front door opened, saw police and was arrested.
- you had never been to Campbellfield, other than the last three weeks and never shopped, lived or worked in Campbellfield and do not know anyone in Campbellfield.
- the mobile phone in your possession belongs to you and no-one else uses it but you cannot remember the PIN code.
Chronology
4
Counsel for the prosecution set out a chronology of the events since the offending on 23 August 2021. In particular, you were both remanded on that date and on
14 January 2022, the prosecution made an offer to both of you and on 17 February the matter involving you, Nguyen, was resolved and on 18 February 2022, the against you, Dang, also resolved. I was informed by the parties that resolution in relation to both matters resolved, in part, by the Director of Public Prosecution alleging on the respective indictments only one day of cultivation of the cannabis crop.
5
Counsel for the prosecution note that you, Nguyen, and you, Dang, entered pleas of guilty at the earliest opportunity and for the purpose of 6AAA of the
Sentencing Act1991, are entitled to a sentencing discount.
6Counsel for prosecution noted that the offence of cultivating a commercial quantity of cannabis is a Category 2 offence and accordingly, the court must impose a custodial sentence unless an exception applies pursuant to s5(2) of the Sentencing Act 1991. Indeed, both your counsel accept that no exception applies and accordingly, the court must impose a custodial sentence.
7Both of you have been remanded in custody since 23 August 2021 and as at the date of the plea hearing on 8 July 2022 have served 319 days pre-sentence detention.
8Counsel for the prosecution also accepted that neither you, Nguyen, nor you, Dang, have any prior criminal history.
9Counsel for the prosecution seeks for forfeiture of disposal orders against you, Nguyen, and you, Dang, in relation to the drugs found on the property. Initially, there was an order sough for compensation to be paid but this, I was told at a mention on 25 September 2022, was “not pressed” by the prosecution.
10Counsel for the prosecution noted that the date of the offending on the Indictment is limited to one day, but when queried by the court about this, it was asserted that there was no other police surveillance of you being seen at the property or, indeed, cultivating the property at an earlier date. Furthermore, counsel for the prosecution also noted there was no evidence available about any profiteering involving you, Nguyen, nor you, Dang.
11The Court arranged for this matter to be mentioned on 25 September 2022 to seek submissions in relation to how the plea for one days' cultivation impacts on the sentence, bearing in mind the size of the enterprise and indeed, evidence in the record of earlier attendances at the premises and also obtaining store to be taken to the premises. Counsel for the prosecution informed the court that such matters were for context and that it was the vision of the prosecution - in part based on the apprehension of both of you on the premises on 23 August 2021 - that the charge be limited to one day for each of you.
12
In particular, counsel for the prosecution did note that the number of plants -
(939 plants) and the weight of the plants (192.72 kilograms) was “considerably larger” than a commercial quantity of cannabis, which is 25 kilograms or more and a hundred or more plants[1].
[1] See s 70(1) Drugs Poisons and Controlled Substances Act 1981 and Schedule 11, Part 2.
Background and personal circumstances of Nguyen
13Your counsel tendered the following documents:
a)
A document headed “Outline of plea submissions” dated 4 July 2022
(Exhibit A);
b) A translated letter from your mother dated 1 May 2022 (Exhibit B);
c)
A report from a psychologist Mr Matthew Staios dated 30 June 2022.
Mr Staios interviewed you on 29 June 2022 (Exhibit C).
14Partly on the basis of such documents which have been tendered and partly on the basis of various submissions made to me by your counsel, I note the following in relation to your background and personal circumstances:
·You were born and raised in a province in Vietnam and have an older brother. Your father is small business owner selling business materials and your mother assists in the running of the family business. On speaking with the psychologist, you characterises your upbringing in a 'positive light' and did not report any history of abuse, neglect or exposure to substances within the family home. Since being in Australia, you have had regular contact with your parents.
·Again, you reported to the psychologist that you completed your primary education and five years of secondary education in Vietnam. You immigrated to Australia in 2013 and completed your final year of high school via an exchange program at Stotts College Melbourne where you gained your Victorian Certificate of Education.
·On coming to Australia in 2013, you were placed with a host family and after completing your final year of high school moved in with your brother who had also immigrated to Australia in 2013. You remained living with your brother for about three years, noting that you found your transition to Australian society difficult, primarily as a result of language and cultural barriers, although, you noted that your host family continued to attempt to provide support during this transitional period.
·On leaving secondary school, you completed a one year Diploma in Business Management at the Menzies Institute of Technology and thereafter, in terms of employment, you informed the psychologist that you primarily worked in Vietnamese restaurants as a waiter, although, more recently, leading up to the interview with the psychologist, you reported that you established a small online business selling clothing and other items on Facebook Marketplace.
·As a result of the lockdowns due to the pandemic, you have been largely unemployed over the last two years leading up to the interview with the psychologist.
·You moved into your own rental property at approximately 23 years of age and have remained there for approximately two years. You again, subsequently reported commencing a relationship with Ngoc Tran and have been in a relationship with four years and living together for three, leading up to your interview with the psychologist. The court was informed by your counsel that since your incarceration, your brother has returned to Vietnam and your relationship with Ms Tran had come to an end.
·
Your partner, that is, Ms Tran, initially entered Australia on a student visa and gained a qualification in social work in aged care. You characterise your relationship as stable and positive and reported that, at that time, she continued to support you while in custody. I was informed by your counsel that recently
Ms Tran had been working in a restaurant up until March 2022, although, only working 20 hours, pursuant to the restrictions of her visa, but lost her employment when the restaurant was forced to close down due to COVID-19 restrictions.
·You originally entered Australia on a student visa and presently hold a partner visa, although, it was submitted by your counsel that such status was likely to be reviewed in light of the present charge before the court. Although you have returned home for short visits since your initial arrival in Australia, you have instructed your counsel that you intended seeking citizenship in Australia and to pursue employment opportunities here.
·You reported to the psychologist experiencing significant destabilisation in your mental state as a result of the lockdowns encountered in Melbourne as a result of the pandemic which impacted significantly on your ability to work and overall finances. Over this period, you and your then partner often struggled to pay rent and bills, leaving you and her to rely on family and friends for significant family support. This was also impacted by you having to pay for immigration lawyers and visa renewals.
·You informed the psychologist that your psychological state through the pandemic was depressed and anxious, primarily as a result of your ongoing financial stress. In particular, you experienced themes of helplessness and shame as a result of not being able to support yourself and your partner and concern about the future. He notes that neither you nor your partner were eligible for financial support via government schemes as you did not meet the criteria due to your visa status. You informed the psychologist that in part, because of your limited English skills, you largely socialised with individuals from your cultural background and, in particular, your primary social network consisted of your partner, brother and some other close friends.
·You denied to the psychologist any history of substance abuse or addition and described yourself as an occasional social drinker.
·In relation to the subject of offending, you instructed your counsel that some two to three weeks prior to your arrest, you were approached by a male and offered work tending to the cannabis crop at the premises. You were offered a sum of $1,000 to $2,000 for the work and you understood the work involving attending at the factory several times a week and activating the watering system. Beyond your role attending to water the crop on the premise, you had no involvement or interest in the crop itself.
·Since being on remand, as a result of your limited English language skills, you have been unable to mix socially with much of the prison population nor, indeed, engage in rehabilitation of vocational problems at the like. During the most part of your incarceration, you have been exposed to COVID-19 restrictions and have been “entirely isolated” since your remand, bearing in mind that your brother has now returned to Vietnam following COVID-related unemployment and your relationship with Ms Tran has ended. You have been able to make a small number of calls home to your family in Vietnam.
The evidence of your mother
The evidence of your mother by way of the translated letter from your mother dated 1 May 2022, I note your mother presently suffers from diabetes and osteoarthritis, while your father is seriously ill with high blood pressure, diabetes and heart disease. She describes you as being young and immature and becoming entangled with bad people to do illegal activities. She essentially seeks reduction in your punishment so you can return to Vietnam to help take care of your ailing parents.
The evidence of the psychologist Mr Matthew Staios
15Mr Staios interviewed you on 29 June 2022 and obtained a history involving your background (that is, family background, development and psychological history); your education and employment history and your substance use history.
16
Following a mental state examination, Mr Staios described you as a polite man who was dressed casually and with no obvious hygiene issues. You were socially appropriate and maintained eye contact during the session but he noted you were anxious and depressed. Mr Staios, following you interview and clinical assessment, opined that you met the criteria for adjustment disorder with mixed depressive and anxious features. Furthermore, in undergoing a test to assess your risk of further offending, Mr Staios came to the view that you were in the
low-moderate risk range.
17Mr Staios notes that during the course of his interview with you, you expressed:
'Significant remorse in regard to your current offending and 'was open and willing to engage in psychological intervention to assess with building insight into the factors surrounding your current offending, increasing your level of awareness, problem-solving skills, stress and general psychological health.'
18I do note that your counsel expressly disclaimed any reliance on the so called Verdins’ principles.
Matters in mitigation of your sentence
19Your counsel submitted the following matters are relevant in mitigation of your sentence:
a) That as accepted by counsel for the prosecution, your plea of guilty is a very early plea which has utilitarian value in that it saves the community the time and cost of a trial;
b) Furthermore, such plea was given:
“…at a time when the justice system has been greatly affected by the necessary response to COVID-19 warrants further moderation of sentence to acknowledge the benefits to the justice system from the expeditious resolution of outstanding matters”.
Reference was made for the well established case of Worboyes v The Queen[2];
c) It was submitted that the entry of such an early plea can be seen as evidence of a degree of remorse on your party. This was reinforced by your comments to the psychologist who characterised such comments as “significant remorse;
d) That you have endured hardship, taking into account the burden of being in custody during the uncertainty of the COVID-19 Pandemic and, in this respect, the Pandemic has resulted in the need of various lockdowns, less visitation rights and, indeed, the need to isolate when first arriving in prison. Furthermore, in the circumstances of this particular matter, because of your language difficulty, you had very little socialisation with other prisoners and had no particular support outside prison, given that your brother has now returned to Vietnam and your relationship with Ms Tran has come to an end;
e) Given the likelihood that your visa will be cancelled, the period of remand will be particularly anxious, awaiting the decision by the Department of Immigration in relation to your visa, potentially causing you to leave this country. As submitted by your counsel, the loss of opportunity to settle permanently in Australia should be seen as a form of “extra-curial punishment”, given that you have lived in Australia for almost a decade, built a new life here and attained a tertiary qualification here.
[2] [2021] VSCA 169 at paragraphs [17]-[39].
20I accept all these submissions in relation to the issue of mitigation.
21Ultimately, your counsel characterised your activities at the premises as being a “crop sitter”. It was submitted that you had no commercial interest in the crop, nor an expectation of profit. Your job was to “simply” water and attend the crops as required or as needed. Bearing in mind that you pursued such activities by financial need which, so it was submitted, lessened your moral culpability[3].
Your moral culpability here is at 'the lowest' level of moral culpability. Furthermore, your counsel stressed that the pleading on the indictment alleges the offending over only one day, that being the day police arrested you at the premises on
23 August 2021.
[3] Reference was made to Lee v The Queen [2021] VSCA 220 at paragraph [11]
Background and personal circumstances of Dang
22In relation to you, Dang, I set out details of your background and personal circumstances.
23Your counsel relied on the following material:
a) a document headed 'Outline of Submissions' dated 7 July 2022 (Exhibit X);
b)
a report from the psychologist Mr Matthew Staios dated 30 June 2022
(Exhibit Y).
24Partly based on some of the documents which were tendered on your behalf and partly on various other submissions made to me by your counsel, I note the following:
·You were born and raised in Vietnam and have an older brother. Your father, who is now retired, previously worked as a government official in his local town. Your mother was a stay-at-home care giver. Your brother continues to reside in Vietnam and operates his own small business selling homewares.
·You informed the psychologist that your upbringing was in a “positive light”. You did not report any history of abuse, neglect or exposure to substances within the family home and characterise your relationship in a positive light.
·
You completed your primary education and secondary education in Vietnam. Furthermore, on completing your secondary education, you completed a
three-year Diploma in Graphic Design and commenced working in this field for a period of two years.
·
You immigrated to Australia, arriving in Sydney in 2015 in the context of
post-graduate study. You completed a three-year Bachelor Degree in
Graphic Design at the Academy of Information Technology in Sydney, after which you reported to the psychologist that you worked as a graphic designer on a casual and very regular contractual basis, working no more than 8-10 hours per week.
·On arrival in Australia, you initially resided with relatives in the first year before moving out and into your own rental property and living independently. Although you had a small group of friends, they were from the same cultural background and you found that your limited language skills ultimately kept you with Vietnamese friends.
·You came to Melbourne in late 2019 in the context of a holiday, looking to relocate on a permanent basis. At that time, you were residing with friends and extended family members.
·As result of border closures during the pandemic, you were unable to return to Sydney and reported experiencing significant destabilisation in your mental health as a result of the lockdowns encountered in Melbourne which impacted on your ability to work and overall finances.
·You eventually moved into accommodation in Sunshine and despite efforts, were unable to obtain stable employment, ultimately causing you to struggle to pay rent and bills and relying on family and friends for significant financial support. You were approached by individuals when experiencing such financial hardship and reportedly was offered to be paid for crop sitting.
·You reported to the psychologist that you had no history of substance addiction and characterised yourself as an occasional drinker.
·You are presently on a bridging finance and it is assumed that you will be deported following your sentence.
Evidence from the psychologist
25Curiously, although both you and Nguyen had different instructing solicitors, each of you were interviewed by the psychologist Mr Matthew Staios- in your case on 30 June 2022. The two reports are extremely similar in their content. For example, under the heading “Mental state & presentation” set out in each of the respective reports, the wording is precisely the same.
26Furthermore, the risk assessment in relation to recidivism is also in the same terms - that is to say, low-moderate chance of recidivism.
27Again, in this report, Mr Staios also reported that you expressed significant remorse:
“…in regard to [your] current offending, there was open and willing engaging in psychological intervention to assist with building insight to the factors around [your] current offending… and general psychological health”.
28Notwithstanding their similarity, I take account of what Mr Staios has reported in relation to these matters to which I have made reference.
Matters in mitigation of your sentence
29Your counsel submitted the following matters are relevant in mitigation of your sentence:
a) That, as accepted by counsel for the prosecution, your plea of guilty is a very early plea, which has utilitarian value, in that it saves the community the time and cost of a trial. Furthermore, your counsel notes that you made “extensive admissions” in your record of interview;
b) That the matter was resolved, as I have already recorded, on the basis that cultivation was limited to a single date;
c) That you are entitled to a further moderation of your sentence consistent with the principles enunciated in the case of Worboyes v The Queen[4];
d) That you face the prospect of being deported back to Vietnam after having bee in Australia since 2015. Although you have no partner or child in Australia, you had good prospects if you had stayed in this country, given your graphic design degree in Australia;
e) That you have no criminal history;
f) That your role was limited to being a “crop sitter”;
g) Your offending was brought about by your “financial desperation” with the prospect of very small financial return.
[4]Op cit
30I accept all these submissions.
31I do note that your counsel also expressly disclaimed any reliance on the so-called Verdins’ principles.
32I should also add that I accept that you have some degree of remorse about your offending, consisting with the comments of the psychologist and, furthermore, I accept that you have endured hardship, taking into account the burden of being in custody during the uncertainty of the COVID-19 pandemic. In this respect, as I have already noted, the Pandemic has resulted in the need for various lockdowns, less visitation rights and the need to isolate when first arriving in prison.
Furthermore, in the circumstances of this particular matter, because of your language difficulties, you have had very little socialisation with other prisoners and had no particular support outside of prison.
Response of the prosecution
33
Counsel for the prosecution tendered a document headed,
“Prosecution Submission on Sentence”, dated 7 July 2022 (Exhibit 2).
34Counsel for the prosecution accepted the pleas of guilty were at the earliest opportunity and also accepted that the utilitarian benefit of such pleas are of greater weight in mitigation than a similar plea entered before the onset of the COVID-19 pandemic. Reference was made to Worboyes.
35Furthermore, counsel for the prosecution also accepted that the COVID-19 pandemic may make all or part of your time in custody more onerous due to the restrictions imposed by prisons and periods of quarantine[5].
[5] Reference was made to DPP v Tennison [2020] VCC 343 at paragraph [36]
36Counsel for the prosecution and submitted that:
a)
The charge of cultivation of cannabis in a quantity not less than a commercial quantity is a serious offence, as made clear by the maximum penalty of
25 years' imprisonment;
b) The subject offending can be characterised as significant, taking into account the following:
(i)the large scale of the operation;
(ii)the volume of cannabis located and seized;
(iii)the sophistication of the operation involving a factory partitioned in multiple rooms, lighting, ventilation and electrical transformers and plants of varying maturity; and
(iv)the entrusting of both of you to cultivate such a large scale operation.
c) The moral culpability in relation to both of you is high, given to matters to which counsel for the prosecution referred;
d) Counsel for the prosecution noted that this is a first offence- for any type of offending - and that there is a low risk of reoffending.
37In particular, counsel for the prosecution submitted that he did not distinguish between your culpabilities and each of you can be described as 'cross sitters'.
Conclusion
38The cultivation of a narcotic plant- in this case cannabis - in a commercial quantity, is a serious offence, as is made clear by the maximum penalty of 25 years' imprisonment. Obviously enough, the offence can extend to various people with different roles in the cultivation of a commercial quantity of cannabis.
39During the course of this plea, both of your counsel and, indeed, counsel for the prosecution have referred to you as 'crop sitters', that is to say, doing no more than performing a functionary role in the cultivation of the crop - in this case, merely watering the cannabis plants as and when required.
40I refer to the Court of Appeal decision of Hieu Tran Dang v The Queen[6]. The Court of Appeal noted that, wherein the sentencing judge in that matter described the offender as “just above that of crop sitter”, this does not take the matter much further. In particular, the Court of Appeal stated:
“In drug offences generally, including the cultivation of cannabis, the quantity of drugs and the role of the offender are important indicia of the gravity of the offending. The quantity of drugs is reflected in the statutory scheme and will reflect the dimensions of the enterprise and, in a general sense, the scale of profit that the enterprise may be expected to generate”. [7]
[6] [2020] VSCA 24.
[7] See Hieu Tran Dang v R (op cit) at paragraph [15]
41
There is no issue that police recovered 939 cannabis plants weighing
192.72 kilograms from the premises located at 18-20 Killara Road, Campbellfield where you were arrested on 23 August 2021.
42Pursuant to Schedule 11E, Part 2, of the Drugs, Poisons and Controlled Substances Act 1981, a commercial quantity of cannabis is defined to be 25 kilograms, or 100 plants, whereas a large commercial quantity of cannabis is defined to mean 250 kilograms, or 1000 plants.
43
The subject offending involving 939 plants is not that far short of a large commercial quantity, (being 1000 plants), and indeed, the weight of the cannabis plants 192.72 kilograms, is nearly eight times the commercial quantity of the
25 kilograms.
44Furthermore, the premises, which consisted of a factory, had been set up in a sophisticated manner, with partitioning across the factory floor, constructed with plywood, to create separate rooms. Each room had electric wiring connected to transformers outside the room, fluorescent heat lights and watering systems with black airducts connected to each room. On the second floor of the factory, there were multiple airducts running from the factory space not the second floor.
45
Cannabis at various stages of growth were spread through six rooms on the factory floor, together with the factory floor, and the cannabis ranged from young seedlings raised in true trays and stored under black plastic and directly under lights
(Room 1); further young seedlings which were stored on makeshift shelves covered in black plastic with the plants in littered trays and directly under lights (Room 2); Plants which were “relatively young” and individually potted and arranged under several lights that were wired from the room and along the back left corner of this wall were black air ducts which ducts also extended from the ceiling of the ventilation (Room 3); Plants which were more mature, again, individually potted and arranged under rows of tube lighting with air ducts connected from the ceiling (Room 4); and plants that were the most mature in two rooms, arranged in individual pots and stored in water trays with plants arranged under rows of lights with model air ducts connected from the ceiling of each room (Rooms 5 and 6). Finally, on the factory floor, these plants appeared to be relatively young.
46I consider that the premises were set up in a sophisticated manner consistent with a large number of cannabis plants which were cultivated there.
47On the material before me, bearing in mind that the charge is limited to one day, I accept the submissions of both your counsel that you were affectively crop sitters whose involvement was limited to watering plants as and when required.
48Again, as was stated in Dang:
“It is not uncommon to deploy hydroponic systems for the cultivation of cannabis and utilise entire premises for the purpose. This is inevitably requires someone to be present to look after the crop and secure the premises. Such crop sitters may be paid for their time and have no other organisational or financial interest in the operation. Their culpability, other things being equal, is properly seen as less than a person who financed, organised or which stands to benefit more substantially from the illicit activity.'
However, as was said in Hieu Tran Dang v R[8] :
'…it is important that any label that is attached to the offender's role should not obscure or distract attention for various factors that are relevant to a proper assessment of the gravity of the offending in a particular case. These factors ordinarily include matters such as the task performed by the offender in the enterprise, the nature of the relationship with the participants of leaders of the enterprise, the degree of trust and responsibility posed to the offender and the size, scope and sophistication of the enterprise and any expectation of the offender in respect of the rewards to be derive from the enterprise’”.
[8][2017] VSCA 286
49Dang[9] emphasises that a person who is characterised as a crop sitter in that sense does not mean there is a particular benchmark or character that must be rigidly applied in formulation of sentence. Again, it was stressed that the focus of sentencing an offender must remain on what the offender has done in relation to the cultivation that forms the subject matter of the charge, rather than the label to be applied.
[9]Op cit
50Although I do accept that you were both “crop sitters”, it must be seen in the context of being involved in a sophisticated enterprise involving a large number of cannabis plants in various stages of growth. To make clear, although you may have been informed that you would be paid for your time, I accept you have no other organisational or financial interest in the operation. In this sense, your culpability should be seen as less than a person who financed, organised or stands to benefit more substantially from the illicit activity.
51Notwithstanding, bearing in mind the sophisticated nature of the cultivation, I consider the gravity of your offending to be reasonably high and you would have had an understanding of the extent and nature of the premises.
52I do accept that in both your cases lack of work and financial pressures leading to day-to-day debts for living was most probably the major motivating factor in you accepting the role as a crop sitter. On the evidence before me, there is no suggestion that you had been involved in any shape or form in the drug industry prior to commencing work as a crop sitter. As submitted by your counsel, each of you were preyed on by unscrupulous individuals counting on your financial hardship
53In both your cases it is a tragic situation that you find yourselves in, given that you came to Australia to advance your education and to help support your families at home in Vietnam. Indeed, both of you obtained a tertiary qualification and, no doubt, you would have hoped to have exploited this in Australia.
54You, Nguyen, came into Australia in 2013, whereas you, Dang, came to Australia in 2015 and accordingly, have spent a relatively large number of years in this country. The probability will be that you will be deported back to Vietnam after your sentences have been served. In this respect, I accept there is extra hardship in not knowing whether you will definitely be deported. In the event that you are, again, it causes hardship and you will have to leave this country permanently.
55I note that neither of you have convictions of any type. Furthermore, I accept the evidence of the psychologist, Mr Staois, that both of you have expressed remorse about your offending. I have come to the view that both of you have reasonable prospects of rehabilitation, given your lack of criminal activity, your hitherto lack of involvement in the drug scene and your tertiary education status.
56As I have already indicated, in mitigation of your sentence, I do take into account your early pleas and, in particular, the plea given during the advent of COVID-19 pandemic which attracts a further discount based on the authority of Worboyes[10].
[10]Op cit
57Again, as I have already stated, I take into account the hardship you have experienced when on remand due to the COVID-19 pandemic involving shutdowns and various limitations which otherwise would not be present.
58Again, as I have touched on, you both face the prospect of being deported back to Vietnam where you will both have to recommence your lives.
59I consider that general deterrence in particular is an important factor in sentencing, as is denunciation of your crime and the protection of the community when one considers that ultimately cannabis was to be sold for profit to members of the community.
60I also take into account that your criminality is limited to one day pleaded on the indictment and this, of course, is but one factor to take into account when formulating an appropriate sentence.
61I intend to convict each of you of the offence and sentence you to a period of imprisonment with a non-parole period. I consider, consistent with the submission of counsel for the prosecution, there is no material difference between your culpabilities and each of you will receive the same sentence.
62In relation to Nguyen, please be upstanding:
a)
In relation to the charge of cultivating cannabis plants in a quantity that is not less than a commercial quantity on Indictment number M11783494 you are convicted of such offence and sentenced to a period of imprisonment of
two years and six months with a non-parole period of one year eight months;
b) I declare that you have served up to, but not including this day, 377 days of pre-sentence detention and such period should be administratively deducted from the sentence ordered against you.
63Dang, please be upstanding:
a)
In relation to the charge of cultivating cannabis plants in a quantity that is not less than a commercial quantity on Indictment number M11783508, you are convicted of such offence and sentenced to a period of imprisonment of
two years and six months with a non-parole period of one year eight months;
b) I declare that you have served up to, but not including this day, 377 days of pre-sentence detention and such period should be administratively deducted from the sentence ordered against you.
64I grant the application for the forfeiture and disposal orders made against you, Nguyen, and you, Dang.
65
I declare that, save for your pleas of guilty in relation to the charge, I would have ordered a period of imprisonment of four years with a non-parole period of
two years eight months.
66Yes, thank you. Gentlemen, anything to raise about that?
67MR FARRINGTON: No, Your Honour.
68MR PETRIC: No, Your Honour.
69HIS HONOUR: Yes.
70MR BRANCATO: No, Your Honour.
71HIS HONOUR: Yes, thank you, we'll adjourn sine die.
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