Director of Public Prosecutions v Dang

[2022] VCC 279

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BALLARAT

CRIMINAL JURISDICTION

CR 21-01505

DIRECTOR OF PUBLIC PROSECUTIONS

v

MINH DANG

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Ballarat
DATE OF HEARING:	7 February 2022
DATE OF SENTENCE:	10 March 2022
CASE MAY BE CITED AS:	DPP v Dang
MEDIUM NEUTRAL CITATION:	[2022] VCC 279

REASONS FOR SENTENCE

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Subject:                Criminal Law – Sentence upon plea of guilty.

Catchwords:         Cultivation of a narcotic plant – Theft – Early plea of guilty – Principal

role in the cultivation – mid-level offending - risk of deportation - Good

prospects of rehabilitation

Legislation Cited:  Migration Act (Cth) 1958.

Cases Cited:         Konamala v The Queen [2016] VSCA 48; Guden v The Queen [2010]

VSCA 196; Allouch v The Queen [2018] VSCA 244; Nguyen v The

Queen [2021] VSCA 346; Matamata v The Queen [2021] VSCA 253;

Akot v The Queen [2020] VSCA 55; Van Pham v The Queen [2020]

VSCA 114; DPP v Lam & Bui [2019] VCC; Kennedy v The Queen [2019]

VSCA 127; Nam Song Nguyen v The Queen [2016] VSCA 198;

Quaresima v The Queen [2017] VCC 687

Sentence:            Total effective sentence of 11 months imprisonment. Community

corrections order for 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Van Dyk	Office of Public Prosecutions
For the Accused	Mr D. McNally	Michael J. Gleeson & Associates

HIS HONOUR: 

1Minh Fook Dang, you pleaded guilty to cultivating a narcotic plant under s72B of the Drugs, Poisons and Controlled Substances Act 1981 before me on 7 February 2022 as well as to a charge of theft of a quantity of electricity belonging to AGL Retail Emergency Ltd.

2The circumstances of your offending were outlined in a prosecution opening upon the plea, which was exhibited.  I will summarise these circumstances.  At the time of the offending you were 41 years of age.  From June 2020 until your arrest on 12 November you leased a property in Derrimut, a house which was owned by your niece.  You paid rent of $1,500 per month, never missing a payment. You would sometimes stay at an address nearby in which you resided with your wife, but your niece stated that you had moved into the Derrimut property that you leased from her in June 2020.

3At some stage after the arrangement began, unusual power consumption patterns were noted by a Powercor employee as well as illegal wiring consistent with an electrical bypass installed at the house being leased by you.  Unusual heat signatures were then detected by the police air wing by flyover above the property.

4A search warrant was executed on the house in question on 12 November 2020.  A car registered in your name was at the property.  Upon entering into the property police found a hydroponic system and cannabis plants, which were growing inside the house.  Three rooms contained cannabis plants, 31, 11 and nine plants respectively.  Bags of loose cannabis matter were also found.  In total 51 cannabis plants of various maturity were found and seized to a total weight of 36.55 kilograms.  That included some 3.37 kilograms of loose matter.  You were inside the house and you were arrested there. 

5The hydroponic system in place consisted of electrical outlets and cabling, transformers, grow lights, fertilisers, hoses, buckets, chemicals used to assist in the cultivation, gloves and a power bypass installed into the electrical system in the front room.  Items belonging to you were found in the house.  A Medicare card in your name was on the kitchen bench.  VicRoads documentation also on the bench was in your name, addressed to your own home address and a tax invoice from Smart Electrical Clearance Outlet in your name was also found.

6A Power Corp inspector attended at the house later and identified an illegal connection into the unmetered section of the consumer mains.  The electricity used by the equipment was not measured or recorded. 

7When you were taken back to the police station at Sunshine police, the police endeavoured to interview you with the use of a Vietnamese interpreter but you made no comment answers.  You were bailed to appear in early February when a committal mention date was fixed on 29 April 2021, but a plea offer was made on the 27th, which resolved the matter.  A plea was listed before a magistrate on the 29th, but the summary jurisdiction application was adjourned and you elected to proceed with a plea hearing in the County Court first listed in July 2021 and heard by me, as I have indicated above, in February 2022.

8The maximum penalty for cultivation is 15 years' imprisonment and/or a fine not exceeding 1800 penalty units. The maximum penalty for theft is 10 years' imprisonment and/or a fine not exceeding 1200 penalty units. The maximum penalty in relation to cultivation of a narcotic substance is one indicator of how seriously the legislators and the community regard this offence, requiring stern punishment. 

9The offence of cultivation of a narcotic plant under s7B simply prohibits - just a moment, that should read 72B - simply prohibits cultivation of a narcotic plant and is not quantity based. The offence allows prosecution of a potentially wide range of circumstances from those where intention to cultivate large amounts cannot be proved to offenders who cultivate a small quantity. It is not in dispute that the 15-year maximum applied in this case, which reflected by operation of s72B(a) and (b), where the accused cultivated for a purpose related to trafficking and so intended to so cultivate for such a purpose.

10It is not an element of the offence that the offender cultivated a narcotic plant in a specified quantity.  However, this does not mean that quantity is irrelevant.  Therefore, you fall to be sentenced for an intention to traffic in cannabis, cultivate above a particular prohibited quantity or an offence involving knowledge that the cultivation would produce a particular quantity.  A lower penalty applies where a sentencing judge is satisfied on the balance of probability that the offence was not committed for any purpose related to trafficking in the point and I am not so satisfied and therefore the higher penalty applies, as was conceded. 

11The quantity grown by you and seized by police was prima facie a commercial quantity, which under the Act comprises not less than 25 kilograms.  The quantity seized was above the weight, at 36 and a half kilograms.  However, you are charged with cultivation simpliciter and I sentence you for that offence.  That is not on the quantity but on the element relating to your intention. In this sense the weight of the crop was at a relatively high end of the range for this offence.

12In my view this enterprise, though limited to one property, was of a significant scale and sophistication.  You leased the property and regularly paid 1,500 in cash for its use.  Your cultivation, as noted, used the usual accoutrements for a proficient hydroponic set-up and a system of bypass of electricity had been installed to facilitate the operation. 

13Although I sentence you for a cultivation on one day, that is 12 November, although indeterminate in terms of the age of the plants, the photos related to them demonstrate adequately enough that the process of growth had begun some time before that date.

14In assessing the objective gravity of your offending, I examined your role in this enterprise.  It was said by the defence submissions that you were advised by associates that a cultivation of cannabis would be a solution to your financial circumstances but that you had had a limited role which was described 'as a crop sitter' indicating this offending fell at the lower end of the offences of this type.  This was a submission that I rejected and I make clear during the plea. 

15After discussion, it was accepted by the defence that this was not a description of your role.  In my view your role was that of a principal in this cultivation.  You had persuaded your hesitant niece to lease her investment property to you.  She attests to you having moved into the house in June 2020 and having your belongings there.  You never missed your monthly payments and she noted you sometimes stayed with your wife at your home.  She visited in June 2020 after you moved in and at that time there was no cannabis cultivation, but she did not return before your arrest. 

16I note that she is left with a mortgage to pay and her statement indicates the property was left in an uninhabitable state due to the damage and this may have been a temporary setback.  You installed the equipment and cultivated the plants for financial gain, that is an expected profit or income from it; however, I accept that there was no evidence led by the Crown that you had a lavish lifestyle or that you had already profited somewhat from this cultivation. 

17At the point of the cultivation and during this time you were in financial difficulties, but this was not, in my view, a momentary lapse of judgment; rather, it was a conscious decision to embark upon a course of conduct leading to the charge on the relevant day.  The fact that you engaged in this offence in order to provide for your wife and child during difficult financial circumstances indicates the offending was not motivated by sheer greed alone.

18Nevertheless, as with most drug cultivation enterprises of this type, the underlying objective was financial gain.  This in my view is a mid-level offending without resorting to that moniker as some precise categorisation but to indicate that your case sits above the sentencing of crop sitters or mere guardians, who have no real stake in the crop and who have no proprietary interest in the cultivation and its outcome of gain.  I consider that your moral culpability in relation to the offence therefore is relatively high.

19I take your plea into account.  You did so at the earliest opportunity prior to the first committal mention.  I accept that your plea of itself is some evidence of remorse and that you have expressed your remorse to a number of people.  I accept you are remorseful for your conduct.

20The plea has utilitarian value of having avoided a criminal trial and having brought finality to this matter.  This is of particular value at this period when COVID-19 pandemic has rendered difficult the delivery of justice outcomes and has meant delays and restrictions to the criminal justice system.  Further, the plea was made with the prospect of incarceration at this time when the same obstacles and strictures of the pandemic have impacted all aspects of Correctional services. 

21I take into account in this sentence that the burden of imprisonment has been rendered or will be rendered greater by the restrictions of movement and gathering, the limitations on work and educational services, the lockdowns and isolation periods required and the curtailing of services and in-persona contacts and visits available at Correctional facilities. Your plea will reduce your sentence.  Your plea during the currency of the pandemic will result in a more significant amelioration of sentence than in normal circumstances. 

22You have criminal history of prior offending and this is a significant matter in mitigation to be taken into account and I do so.  You have been a person of good character and I consider that your prospects for rehabilitation are good. 

23I take your personal circumstances into account.  You were born in Vietnam in 1979 and you are 42 years old.  You are the youngest of five children.  Two of your siblings live in Melbourne, but you have had limited contact with them since 2020, although you have remained in telephone contact with them. 

24Your father died at age 38 and your mother died in 2017, aged 76.  You have limited education, having left school at age 15.  You worked as a fisherman with your father.  In 2009 you came to Australia, having come two years earlier in 2007.  During that first visit you met your future wife, who sponsored your migration and whom you married in 2010.  However, in 2012 you separated and she relocated to Queensland.  A daughter from that marriage, who is now nine years old, resides with her mother.  You are said to be still distressed by the breakdown of that relationship and particularly the difficulty of contact with your daughter. 

25You visited Vietnam in 2015 and married again.  You divorced, however, in 2019 and there is a five-year-old of that relationship.  Although you have little contact with either your second wife or your son, you have apparently contributed financially for him despite his mother remarrying.  You are hopeful of continued contact with your son.  You married again in 2019 and have no other children. 

26You have no formal qualifications and have worked in the cabinet making industry, employment which you had to give up due to a persistent shoulder injury.  From early 2019 to August 2020, you had casual employment as a handyman and a farm labourer casually.  Your limited English has also hampered your ability to obtain other types of work. 

27However, the casual work and consequent income was lost to you because of pandemic restrictions.  Your status meant governmental assistance by way of financial support was said to have been limited, although I was not provided with more specific details.   The financial hardship was exacerbated when your wife's employment in a nail salon was also interrupted through the years 2020 and 2021.  In 2021 you returned to work, the same work that you had had for some time, for a company which manufactured and fitted out caravans.  This continues up to this point. 

28A report was received by the court from Mr Watson-Munro, an experienced consultant psychologist. He noted the financial stresses you described in relation to your capacity to support your current wife and your second child.  This financial insecurity, he writes, stems from your early family experiences and established the platform for your continuing insecurity and escalating anxiety and depression, which has tended to fluctuate according to your financial position but was exacerbated by the loss of contact with your children.

29He writes that your offending in part was in relation to secure funds to support your son.  He says you are appropriately remorseful for your actions and that your exposure to the criminal justice system has had a salutary effect on you and you express a strong desire not to reoffend and a desire to undertake treatment.  Although at the time of his report dated July 2021, Mr Watson-Munro noted you had not commenced psychological treatment.  By the time of the plea, I was told you had attended six sessions but had ceased attending after time.

30The Verdins principles are not said to be present in your case by the defence.  The report indicated you are psychologically a troubled man with escalating low self-esteem, depression, anxiety, feelings of failure, guilt and pessimism.  Financial insecurities are said to have formed the essential context in which these symptoms caused your judgment to falter.  You are said to have a prosocial character and would benefit from ongoing dialectical behaviour therapy.

31This report was relied on to support the proposition that specific deterrence is not a prominent sentencing consideration because of the nexus between your declining mental health and steps taken to address these concerns.  I am of the view that, given your low level of planning and the way in which you carried out this enterprise, specific deterrence is - I should start that again.  I am of the view that given your level of planning and the way in which you carried out this enterprise that specific deterrence is relevant as a sentencing consideration.  It may not be a prominent consideration, but I am of the view that you nevertheless require some deterrence in response to your criminality. 

32I take into account, given this aspect and the aspect of general deterrence, the appropriate weight, the references which have been tendered on your behalf.  That is the seven letters of support prepared in June 2021 by various persons including your wife and brother. They attest to your remorse and good character and recent stability and hope for the future.  These letters demonstrate that you have a network of family and friends that are supportive and this augments your prospects of rehabilitation, which, I repeat, I consider to be good.

33Your position as a permanent resident since 2012, having moved to Australia in 2009, is relevant to the sentencing disposition.  The defence outline of submission referred to s200 of the Migration Act (Cth) 1958 as conferring a discretion which would be enlivened if you were sentenced to a term of imprisonment in excess of 12 months, providing, it was said, that the minister with discretionary power to deport persons in your circumstances.

34There is a sub-note, sub-note 3 on p5 of the submissions, which refers to s201.  That is the section at sub-paragraph (c) which makes the earlier s200 applicable, where a person is convicted for not less than one year's imprisonment.  However, this is not applicable to you, as this refers to deportation of non-citizens in Australia for less than 10 years who are convicted of crimes.  I will take a little time to describe the law as it pertains to deportation, as it is of relevant importance in this sentence.

35It was said in the defence submissions that, there being a discretionary power, your prospect of deportation was speculative but likely nevertheless.  The summary of the statutory provisions is not quite accurate.  Section 200 of the Act simply provides that the minister may order the deportation of a non-citizen to whom division 9 applies but says nothing more that is applicable to your situation as far as the rest of the section in that division is concerned.  The section simply empowers the minister to deport by his order.

36Section 206 mentions the revocation of the order in the context of the order's execution. More relevant to this submission is part 9 of the Act, the miscellaneous provisions in division 2, particularly s501 and following.  This is the provision and following which are applicable to your situation. 

37Section 501 gives the minister the power to cancel visas to people who are not Australian citizens if they do not pass the character test defined in s501(6), which sets out a number of situations in which the minister may cancel a visa.  This aspect then proceeds through s501(3A)(1)(a)(i), which deals with the cancellation which must proceed if the failure of the character test takes place because of a relevant 'substantial criminal record', which is defined in s501(7), to include at sub-s(c) that a person has been sentenced to a term of imprisonment of 12 months or more.

38The minister I note can revoke the cancellation of a visa under s501CA and pursuant to that section a person can seek to have the cancellation revoked.  These provisions were analysed by the Court of Appeal in Konamala v The Queen [2016] VSCA 48. As is readily apparent, there are a range of considerations which can influence a decision to revoke a cancellation. When the defence submits that the prospect of you being deported is speculative, I understand that therefore to be a shorthand way of describing both the way in which the minister may exercise his or her power to cancel or revoke such cancellation.

39The court should neither therefore be obliged or entitled to speculate what might or might not materialise. See Guden v The Queen [2010] VSCA 196 at paragraph 21. It would be futile to attempt to determine whether you would ultimately be successful in having a visa revocation rescinded.

40However, as far as this sentencing is concerned, the principles are reasonably clear.  The risk of deportation can mitigate penalty.  It is a factor which may bear on the impact which a sentence of imprisonment will have on you during your period of reclusion and upon your release.  The two limbs of this sentencing consideration, as outlined in Guden, are: (1) that in order for a sentence reduction to be accorded it is necessary either for the prosecution to concede that deportation may occur or for the offender to establish the nature of the risk; and (2) that deportation would constitute a hardship to the offender.

41In Allouch v The Queen [2018] VSCA 244 it was similarly said that:

'A court should only reduce a sentence based upon the prospect of deportation where there is sufficient evidence of both the risk, and the impact of that risk'.

42Of course, assessing or defining the level of risk before mitigation can occur must be part of that instinctive synthesis which the court engages in, given known current and likely factors, but it remains steadily not an anticipation of an outcome.  In my view the likely sentence would have triggered the substantial criminal record cancellation provisions.

43Further, in its submission to the court the prosecution conceded such a possibility.  Although there is difficulty therefore in evaluating the value of the risk of deportation within the framework of mitigatory factors, in my view here the risk not only exists but should reduce the severity of the penalty.  As to the second limb, although similarly an evaluation on hardship is inherently difficult, some definition of this hardship is possible in order for mitigation to occur.

44There are two aspects which were examined with differing results in Nguyen v The Queen [2021] VSCA 346 and Matamata v The Queen [2021] VSCA 253. In Matamata the court examined these aspects in a case involving theft and obtaining a financial advantage by deception, in which the total effectively sentence had been fixed at 12 months with a two-year community corrections order. The offender held permanent residence in Australia, being a New Zealand citizen.

45The court referred to Akot v The Queen [2020] VSCA 55 in which the Court of Appeal had elaborated upon the Guden principles.  It described the first limb as relevant to sentencing because the prospect of deportation renders the imprisonment more onerous and the second limb should deportation occur that would constitute an additional punishment because it destroys the opportunity for the offender to settle permanently in this country.

46The court in Akot had noted the extent to which the potential for deportation moderates a sentence in a given case as very difficult to calibrate, that no fixed rule can be formulated.  The court also noted statements in Konamala v The Queen supra in which this second limb of additional punishment would make imprisonment more onerous depending on the prisoner's personal circumstances, particularly if the offender had aspired to make Australian his home, had a spouse, had children or other family members here or had other ties to the Australian community such as employment.

47In Matamata the court noted the offender's ongoing connection to New Zealand was tenuous compared to the substantial connection he and his family had here in Australia.  In that case the court, in view of this and other factors, decided that sentence of 11 months with a two-year community corrections order was appropriate without adversely affecting any other sentencing purpose, as well as avoiding deportation and promoting the appellant's rehabilitation.

48The opposite outcome followed in Nguyen v the Queen supra, a case concerned with a cultivation simpliciter charge where it was said that a sentence of 18 months with a non-parole period was not manifestly excessive.  Just like in Matamata, the prosecution had conceded that a sentence of less than 12 months and a community corrections order was open; however, the court found that there was no evidence to make out the basis of the deportation as a mitigating factor, that the appellant had an expectation of permanent residence or that the prospects of deportation weighed heavily on him.  He had no real support in the community, no spouse, no children, no close ties.  These factors distinguished it from Matamata.

49These two decisions are useful in this context.  In your case you have a wife in Australia and, as evidenced by the references, a network of friends and family.  All your immediate family resides in Australia.  You have two children who lived in Australia and any ability to have any contact or maintain a relationship with either of them would be undone by deportation.  You are the primary financial support of your wife.  You have a history of work which means your prospects for current and future employment is good. 

50In my view there is sufficient evidence of both the risk of probable deportation and the impact of that risk.  The impact would increase the burden of your imprisonment.  Deportation would deprive you of the opportunity to continue living in this country, in which you have now lived for some 13 years.  The consequences of the deportation create a significant hardship in your situation.  This hardship or additional burden stems from the offence committed and therefore constitutes a form of punishment.

51In Nguyen the deportation was not a meaningful detriment to the offender.  In your case here it is.  In my view the anxiety and stress about whether you will be deported is a mitigatory consideration.  Reducing penalty severity by reason of this risk fairly recognises that this incidental hardship is relevant to take into account and is consistent with two important principles: (1) of rehabilitation; and (2) of proportionality.  I have found your prospects of rehabilitation are good.

52In my view a combination sentence is an appropriate sentence to achieve not only rehabilitative prospects but also to ensure that principles of general deterrence, specific deterrence, denunciation of your conduct and punishment are properly met.  The prospect of consequences of deportation, as noted by the court in Matamata, do no replace the imposition of an appropriate sentence by a court.  The sentence must still reflect the nature and gravity of the offending.

53It is inappropriate for this court to manipulate a sentence in order to avoid an offender being deported.  Here, although I found both limbs of Guden are engaged and fulfilled, the outcome is not dictated or overwhelmed by the considerations which I have discussed as to deportation, because this aspect is only one of many factors which are relevant.

54I am also conscious that in such offending such as yours, due to the nature and circumstances of the offending, mitigating factors upon which you could rely must be given a relatively lesser weight than general deterrence.  This is so particularly as in this offence it is common for offenders to have no prior criminal history, have good character references and have good prospects of rehabilitation. 

55I am also conscious of the principle of proportionality as a central principle in sentencing under which a criteria caught is to endeavour to impose a sentence in an appropriate range of penalties.  In my view the sentence I will impose meets all the sentencing purposes which inevitably involve the simultaneous pursuit of a number of objectives.

56Apart from the cases mentioned, in order to take into consideration current sentencing practices as but one factor, although not a controlling factor, I have reviewed a number of cases which were raised during your plea:  Van Pham v The Queen [2020] VSCA 114; DPP v Lam & Bui [2019] VCC; Kennedy v The Queen [2019] VSCA 127; Nam Song Nguyen v The Queen [2016] VSCA 198; and Quaresima v The Queen [2017] VCC 687. These cases, in my view, and others I have reviewed, do not provide real indication of a specific range except to indicate that such a range is relatively board, essentially reflective of the various circumstances and variations which exist. In most criminal cases of this kind they are yardsticks towards individualised justice.

57Despite the relative sophistication of the cultivation and your moral culpability, I am to sentence you for a cultivation simpliciter on 12 November 2020 and theft on the same day.  In my view a sentence which includes a period of imprisonment and a community corrections order meets the purposes of a proportionate sentence in your case.  I will cumulate a part of the theft charge in recognition of the discrete offending which, however, is inherently related to the first charge.

58On the charge of cultivation you are convicted and sentenced to nine months' imprisonment to be followed by a community corrections order for two years.  I will outline the conditions of the order in a moment.

59On the charge of theft you are convicted and sentenced to five months' imprisonment.  I order two months of this sentence to be cumulative on Count 1, making a total effective sentence 11 months' imprisonment. 

60You were assessed as suitable for a community corrections order upon release with a low risk of reoffending.  You have stable accommodation and are currently fully employed with employers who are aware of your current situation. 

61You will be, upon your release from prison, subject to supervision by Correctional services.  You will perform 180 hours of unpaid community work.  Upon your release you will report to the Sunshine Correctional services.  I note your consent, in writing, to this order upon your assessment.

62During the duration of the order you will be of good behaviour and not commit any criminal offences punishable by imprisonment for 24 months and you will obey all lawful directions and attend your supervision appointments as directed. 

63But for your plea I would have sentenced you to two years' imprisonment with an 18-month non-parole period.  I will sign the disposal orders which were drafted and sent to me.

64Is the sentence of the court clear, Mr McNally and Ms Van Dyk?

65MS VAN DYK:  Yes, Your Honour.

66MR McNALLY:  Your Honour.

67HIS HONOUR:  Just pardon me for a moment.  I understand that there is an associate in court who has kindly agreed to sit in and she has the documentation which will require the signature of your client, Mr McNally, before he is taken. So if that can take place now, he will be able to sign that order.  I am content for you to explain if you need to the consequences of the sentence to him before you leave and before he is taken down.  Once he has signed he can be taken down.

68MR McNALLY:  Yes.  Thank you, Your Honour.

69HIS HONOUR:  Thank you.  All right, I'll adjourn.  Mr Schornikow, adjourn to the Melbourne court tomorrow morning at 9.30.

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