Director of Public Prosecutions v Dang
[2021] VCC 1729
•7 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-21-01548
| Director of Public Prosecutions |
| v |
| Ly Dang |
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JUDGE: | Her Honour Judge Brimer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October 2021 | |
DATE OF SENTENCE: | 7 October 2021 | |
CASE MAY BE CITED AS: | DPP v Dang | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1729 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentencing
Catchwords: Plea of guilty – one charge of cultivating a commercial quantity of a narcotic plant – crop house – single premises – commercial quantity of cannabis – 193 plants or 59.7 kilograms – cultivation period of one week – offender’s role – crop house rented by someone else – higher end of the lowest level – one charge of theft – theft of electricity – electrical bypass – theft period of one week – value of electricity uncertain – one charge of trafficking in a drug of dependence – 3.8 kilograms of dried cannabis – dried cannabis found at crop house – offender’s fingerprints on jar containing dried cannabis – prior drug offences – serious drug offender – degree of cumulation
Legislation Cited: Crimes Act 1958 (Vic) s 74(1); Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss s71AC, 72A
Cases Cited:DPP v Dalgleish (2017) 262 CLR 428; Nguyen v The Queen [2021] VSCA 211
Sentence: Total effective sentence of 3 years and 3 months’ imprisonment, eligible for parole after a period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Keks | OPP |
| For the Accused | Ms N. Low | Victoria Legal Aid |
HER HONOUR:
1Ly Dang, you have pleaded guilty to:
(a) one charge of cultivating a commercial quantity of a narcotic plant contrary to s72A of the Drugs, Poisons and Controlled Substances Act 1981;
(b) one charge of theft contrary to s74(1) of the Crimes Act 1958; and
(c) one charge of trafficking in a drug of dependence contrary to s71AC of the Drugs, Poisons and Controlled Substances Act 1981.
2The maximum penalties for these offences are imprisonment of 25 years, 10 years and 15 years respectively.
Circumstances of the offending
3I will summarise briefly the circumstances of your offending.
4On 20 April 2021, police received information that a house at 427 Burwood Highway, Vermont South may be a cannabis crop house.
5Surveillance was conducted at the house on four occasions: 21, 22, 26 and 27 April 2021. On each occasion, a Honda sedan registered to you was parked in the driveway of the house.
6During the surveillance, police observed foil wrapping on all windows on the east side of the house, as well as a vent in one of the windows.
7On 27 April 2021, a search warrant was executed. When police knocked on the front door of the house, you answered and identified yourself.
8Upon examination of the house, police discovered:
(a) A hydroponic setup involving a watering system, lights and ventilation.
(b) Items relating to the cultivation of cannabis including pots, plastic piping, dead plants and potting mix in the rear enclosed outdoor area.
(c) A total of 193 cannabis plants located in six rooms and a hall cupboard. The plants were in various states of maturity. The total weight of the plants was 59.7 kilograms.
(d) An electrical bypass in a ceiling cavity.
(e) Eight bags of dried cannabis, each weighing 450 grams, in an unplugged fridge in the front loungeroom. Two jars of dried cannabis were also discovered. The total weight of dried cannabis was 3.8 kilograms.
9Police seized your iPhone, which contained:
(a) photographs of cannabis plants taken between 5 April 2021 and 12 April 2021; and
(b) text messages between 14 March 2021 and 26 April 2021, which appear to relate to the trafficking of cannabis.
10Following the execution of the search warrant, you were arrested. You declined to be interviewed.
11Forensic analysis revealed your fingerprints on one of the jars containing dried cannabis.
12Investigations revealed the house was privately rented on 20 March 2019. The lessor, who was named in the lease as La Tu, paid rent monthly in cash.
Charges
13Cannabis L is a narcotic plant and a drug of dependence. A commercial quantity is 25 kilograms or 100 plants. A trafficable quantity is 250 grams or 10 plants.
14Charge 1 relates to the 193 cannabis plants located at the house between 21 April 2021 and 27 April 2021.
15Charge 2 relates to the electrical bypass located in a ceiling cavity. You dishonestly appropriated electricity from AGL with the intention of permanently depriving AGL of it. AGL estimate that its loss from the electricity stolen throughout the rental period was $76,560.91. The value of the loss during the charge period is unknown.
16Charge 3 relates to the 3.8 kilograms of dried cannabis located at the house.
17The estimated cost to repair the property is $100,000 to $130,000. The owner is insured, though she will lose rental income from the property during the period of repair.
Plea of guilty
18You pleaded guilty at the committal mention on 20 July 2021. I accept that by your early plea, you have saved the community the time and expense of a trial, shown willingness to facilitate the course of justice and demonstrated remorse. In the letter of support written by your son, he said that you expressed to him that you feel very sorry for what you have done.
19I have had regard to what has been said by the Court of Appeal that a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not impacted by the pandemic.
Pre-sentence detention
20Total pre-sentence detention in this matter is 163 days.
Prior convictions
21You have a relevant criminal history. On 25 March 2013, you pleaded guilty to three drug offences:
(a) trafficking in a drug of dependence (methylamphetamine);
(b) trafficking in a drug of dependence (heroin); and
(c) trafficking in a commercial quantity of a drug of dependence (methylamphetamine).
22On appeal, you were re-sentenced to a total effective sentence of imprisonment of six years and six months, with a non-parole period of four years.
Personal circumstances
23You are currently 49 years old. You were born in Vietnam as the twelfth of 16 children. Your father was in the Vietnamese navy and was away for work during your childhood. You commenced primary education in Vietnam, but did not study beyond Grade 7. After you left school, you worked as a welder in your brother’s business.
24When you were 22 years old, you migrated to Australia with your parents and half of your siblings. You are now an Australian citizen but do not speak English well and require a Vietnamese interpreter.
25You met your ex-wife in Australia. You have two children together, a son and a daughter.
26You maintained stable employment as a baker for approximately 10–11 years until your arrest and remand in 2012. Around this time, you and your wife separated after 15 years of marriage. She offered you support in the community but speaks limited English.
27In April 2016, you were released from custody and completed your sentence on 21 September 2018. You worked as a ‘handy man’ alongside your brother for approximately four years, until the start of the COVID-19 pandemic.
28You have maintained contact with your ex-wife whilst on remand.
29You have maintained close contact with your son and he has provided a character reference.
30Before being remanded, you helped care for your now elderly parents by taking them to appointments and assisting around the house. Your parents and other siblings are unaware of your remand and these criminal proceedings.
Objective gravity of the offence
31Cultivating a commercial quantity of a narcotic plant, theft and trafficking in a drug of dependence are serious offences, as reflected by the maximum penalties.
32Factors relevant to assessing the gravity of a particular cultivation offence include the quantity cultivated, your role, the scale, sophistication and duration of the cultivation activity.
33Objectively, your offending is serious taking into account:
(a) The quantity of cannabis cultivated:
(i)193 plants (1.93 times a commercial quantity by number of plants); or
(ii)59.7 kilograms (2.39 times a commercial quantity by weight); and
(b) The relative sophistication of the cultivation, involving growing spaces across six rooms of the house and the use of a hydroponic setup involving a watering system, lights and ventilation.
34Your counsel, Ms Low, accepted that the assessment of objective gravity is determined by reference to factors including the total number of plants. She conceded that the quantity and weight reflect a relatively serious commercial operation, but submitted that there are cases of cultivation with higher numbers of plants and weight. It is not unusual or uncommon to see three to four times the commercial quantity over multiple premises. This was a single premises.
35Ms Low submitted that you were not the principal in the operation, rather a ‘crop sitter’ who was asked to engage in some transactions. I can infer there was a principal and it was not you given that the property was leased in someone else’s name and someone else paid the monthly rent.
36At the plea hearing, you accepted you were more than a mere crop sitter because you were asked to engage in some transactions. You pleaded guilty to the trafficking charge on the basis that you were in possession of cannabis. Your role in respect to Charge 1 can be characterised, as submitted by Ms Low, as being at the higher end of the lowest level.
37Ms Low submitted and I accept that the prosecution cannot prove that you organised the leasing of the property, set up the cultivation of the plants, or how long the plants had been there, although their size would suggest they had been growing for more than one week. There is no evidence that you purchased or installed the hydronic equipment or the electrical bypass or, for example, that you carried the equipment into the property. There is no evidence that you were involved in the business enterprise. There is no evidence that you were involved for longer than the one week the house was under surveillance. This case, submitted Ms Low, can be distinguished from those cases in which the premises used was in the offender’s name, from which an inference of involvement in the set up could be drawn. The cultivation and theft charges relate to a relatively short period of one week.
38In relation to the trafficking charge, Ms Low accepted that the 3.8 kilograms of dried cannabis is significantly over the traffickable quantity. She conveyed your instructions that you agreed to cultivate and engage in some trafficking transactions at the direction of the principal to pay off a gambling debt. She conceded that objectively, the fact the property was leased in someone else’s name is less supportive of those instructions than in respect of your role in the cultivation charge.
39Mr Keks on behalf of the Crown did not accept the evidence is consistent with you performing a limited role in the cultivation exercise. He submitted that you cannot rely on your purported role as a factor in mitigation of sentence, because, given the paucity of evidence, you cannot prove mitigating circumstances on the balance of probabilities. Mr Keks contended that given the insufficient evidence in this respect, it is not possible to label your role. He submitted I can infer you were centrally involved in the maintenance of the crop and were in some position of trust, having been left in control of a significant quantity of dried cannabis. At least to some extent, your role went beyond mere maintenance of the crop into trafficking. The Court cannot make positive adverse findings against you in these respects, nor can your role be relied on as a factor in mitigation of your sentence.
40Mr Keks submitted the theft was relatively sophisticated and it can be inferred it was done for the purposes of concealing and increasing profitability. In respect of the trafficking, you had possession of the cannabis for sale and there were text messages indicative of trafficking found on your phone demonstrating it was not a theoretical possibility.
41There is indeed limited evidence as to your role. It is apparent however, that on each occasion surveillance was conducted, your car was parked in the driveway of the property. The photographs show that you had a bedroom set up in the front loungeroom of the house. It appears that at least for the period during which the house was under surveillance, you were living there. There is no evidence as to any criminal syndicate or any criminal enterprise, although it may be inferred from the sophistication of the set up and the size of the crop that it is likely there was a broader enterprise or syndicate.
42I agree with both Counsel that on the evidence, I cannot be satisfied beyond reasonable doubt that you were a principal. Nor can I be satisfied on the balance of probabilities that you were merely a crop sitter as a factor in mitigation. The cultivation and theft charges relate to a period of about one week. I accept Ms Low’s characterisation of your role in the cultivation as being at the higher end of the lowest level.
43I consider the trafficking charge be a serious example of the offence given the quantity involved, however I accept and have had regard to the fact that the charge relates to trafficking on one day.
Moral culpability
44I consider your moral culpability to be high. In 2013 you pleaded guilty to engaging in a business of trafficking methylamphetamine and heroin and separately, trafficking in a commercial quantity of methylamphetamine.
45At the plea hearing for your prior offences, you relied on a number of mitigating factors including that you had no prior convictions. The sentencing judge accepted you had a genuine desire to resolve all matters and you demonstrated real remorse. The said motivation for your offending was that you had accumulated significant gambling debts having begun using methylamphetamine with your circle of friends in 2010. Gambling had become a large part of your social activities. After your creditors started calling in their debts you found yourself in trouble. Your father was ill at the time. The sentencing judge accepted that you had a desire to be a law-abiding person and did not wish to reoffend in the future and considered you to have reasonable prospects of rehabilitation.
46Despite your stated desire to be a law-abiding person and to not reoffend in the future, you are now before me to be sentenced in respect of further serious drug offences. Your sentence ended on 21 September 2018. These offences were committed in April 2021. Ms Low submitted that shortly before the offending you accrued significant gambling debts of around $10,000-$20,000 and you were unable to repay the debt without any employment in the COVID-19 climate. It is said you agreed to cultivate cannabis in order to repay the debts quickly and that this is consistent with your low-level role. There is no evidence of any profits consistent with your personal gain.
47Even accepting your counsel’s submission as to your motivation for the offences, its mitigatory value is low in light of your reliance on the same or similar factors in relation to your prior offending.
Relevant sentencing principles
48General deterrence is a significant sentencing consideration for offences of this kind. Specific deterrence is also important given your prior history.
Prospects of rehabilitation
49I consider your prospects of rehabilitation are poor in light of your prior offending, and in the absence of evidence of rehabilitation.
50Ms Low contended that you have the ability or capacity to live in the community as a law-abiding citizen. You committed your first offence later in life at approximately 40 years old and had a history of stable employment and good character prior to that. You have had significant periods of time where you have lived in the community as a law-abiding citizen. There has not been consistent offending.
51You have family support in the community from your son and ex-wife with whom you have been in phone contact. I have had regard to the letter of support from your son in which he says he strongly believes that you are a good person at heart. He described this offending as shocking to him. It was submitted that you will have support of your siblings and parents, however the force of this submission is somewhat undermined by the fact that you have not disclosed the offending to them. At the plea hearing, your counsel conceded that it is your expectation that you will have their support when you tell them of your offending.
52Ms Low contended that you are remorseful and that your failure to tell your family comes from a sense of shame. Your son wrote that you feel very sorry for what you have done through your conversations with him over the phone. He said he hears the sorrow in your tone and feels very disgraced. You are concerned for the health of your ageing parents.
53You refused to take part in a record of interview however, I have had regard to the letter of support from your son, which speaks to your expressions of remorse to him. Mr Keks described the lack of evidence of your personal circumstances as a striking feature. I agree. In the absence of further evidence to support fair prospects of rehabilitation and in light of your prior offending, I consider your prospects of rehabilitation are poor.
COVID-19 and experiencing custody
54You have spent the majority of your remand at Fulham Correctional Centre working as a cleaner. You have not been involved in any incident in custody. Your lack of proficiency in English also means that you have undergone remand with an element of isolation.
55Your counsel submitted that the COVID-19 pandemic has had a detrimental impact on your conditions in that you served your initial 14 days in isolation due to quarantine measures, and served a further eight days in isolation when you were transferred from Fulham Correctional Centre due to quarantine measures. Your personal visits have been suspended and education and rehabilitative services have been unavailable for significant parts of your remand.
56I accept those submissions and that these restrictions are relevant to sentencing and should be given some weight in moderating the sentence imposed.
Serious drug offender
57Because you are to be sentenced as a serious drug offender in respect of charge one, I must regard the protection of the community as the principal purpose of sentencing in determining the length of any term of imprisonment on that charge. The Crown does not submit that a disproportionate sentence is required to achieve that purpose and I will not impose a disproportionate sentence.
58Another result of your characterisation as a serious drug offender is that there is a presumption of cumulation between the sentence imposed on charge one and any terms of imprisonment imposed on Charges 2 and 3. The Crown does not submit that any cumulation other than that which would be required by ordinary principles should be imposed, however the Crown submits substantial cumulation is required between each of Charges 1, 2 and 3 to reflect the different criminality involved. The cannabis which is the subject of Charges 1 and 3 is different.
59Section 5(2H) of the Sentencing Act 1991 provides that the Court must make a custodial order in respect of Charge 1 unless one of the circumstances listed in that section is established. There is no submission that any of those circumstances are established.
Current sentencing practices
60I am obliged to have regard to current sentencing practices in determining the sentence, though I note the guidance of the High Court in DPP v Dalgleish that current sentencing practices are one of the many factors that must be taken into account in sentencing.[1]
[1] (2017) 262 CLR 428.
61I have looked at the Sentencing Advisory Council Higher Courts Statistics for these offences. I have also had regard to the comparable cases summarised in the submissions on behalf the prosecution and also the table of comparable cases provided on your behalf.
62Whilst I have had regard to all of the material provided to me, every case is different and the Court must have regard to the individual circumstances of each case.
Sentencing submissions
63Ms Low contended that any sentence I impose ought reflect your role as described by her. There ought be substantial concurrency on the theft charge with any sentence imposed on the cultivation charge.
64
Mr Keks submitted that taking into account the inherent seriousness of the offences, gravity of the offending, importance of deterrence and protection of the community in light of your criminal history, a term of imprisonment with a
non-parole period is required. The theft and trafficking charges are serious offences which warrant cumulation, especially the trafficking as it relates to different cannabis. Mr Keks submitted I ought have regard to expressions by the Court of Appeal that sentencing practices in respect to cultivation of a commercial quantity of cannabis are inadequate.[2]
[2]Nguyen v The Queen [2021] VSCA 211, [44]-[48].
Consideration
65Having carefully considered, balanced and weighed all of the matters referred to during the course of the plea and in the written submission, I sentence you as follows:
Orders
66On Charge 1 (cultivation), I sentence you to a term of imprisonment of 2 years and 10 months.
67On Charge 2 (theft), I sentence you to a term of imprisonment of 3 months.
68On Charge 3 (trafficking), I sentence you to a term of imprisonment of 12 months.
69Charge 1 is the base sentence. I direct that one month of the sentence on Charge 2 and four months of the sentence on Charge 3 be served cumulatively upon the sentence imposed on Charge 1 and upon each other.
70The total effective sentence is a term of imprisonment of 3 years and 3 months.
71I direct that you are to serve a period of 2 years before being eligible for parole.
72I declare that there are 163 days of pre-sentence detention to be reckoned as having been served.
Section 6AAA declaration
73Pursuant to s6AAA of the Sentencing Act1991, I declare that had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 4 years and 6 months with a non-parole period of 3 years and 3 months.
74I direct that the fact that you were sentenced on Charge 1 as a serious offender be entered in the records of the Court.
75And I will make the disposal order.
76Mr Keks, can I just check the number of days for pre-sentence detention please?
77MR KEKS: One hundred and sixty-three not including today.
78MS LOW: That is agreed.
79HER HONOUR: Yes. Thank you.
80Are there any other matters, Mr Keks?
81MR KEKS: Your Honour, if I could just raise two minor matters which arose in the course of those reasons.
82HER HONOUR: Yes.
83MR KEKS: The first in relation to Charge 1, I believe Your Honour might have said at the very start that the maximum penalty is 20 years; it is 25.
84HER HONOUR: Yes. Thank you. I will make that correction to the written reasons for sentence. I am sorry, Mr Keks, you are just freezing.
85MR KEKS: And Your Honour may also have said that - - -
86HER HONOUR: I am sorry, Mr Keks, you just froze before.
87MR KEKS: I am sorry, Your Honour, can you hear me now?
88HER HONOUR: I can hear you now.
89MR KEKS: I have turned off my video in case that improves the connection, if it please the court. Can you hear me now?
90HER HONOUR: Yes, I can. Thank you.
91MR KEKS: And I apologise for that. Your Honour did say that the non-parole period expired in September 2018.
92HER HONOUR: Yes.
93MR KEKS: On my reading of the remand history, the non-parole period expired 22 March 2016 and the sentence itself expired on 21 September 2018.
94HER HONOUR: Yes. So that is - - -
95MR KEKS: I should correct that. In fact, the first date was when he was released on parole.
96HER HONOUR: It is the second date. So it is the completion of his sentence is 21 September 2018.
97MR KEKS: That is correct, Your Honour.
98HER HONOUR: Yes, and I will make that clear if it was not clear on the reading of my reasons. So I will correct that to April 2016, you were released from custody and completed your sentence on 21 September 2018.
99MR KEKS: Yes, that is my understanding, Your Honour, and there is nothing further arising.
100HER HONOUR: Yes. Thank you, Mr Keks. Ms Low, is there anything arising?
101MS LOW: Nothing, Your Honour.
102HER HONOUR: Thank you both for your assistance and thank you, Ms Duong, for your assistance.
103Please adjourn the court sine die.
104MR KEKS: If it please the court.
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