Director of Public Prosecutions v Dang

[2021] VCC 1328

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00565

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUAN VAN DANG

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 September 2021
CASE MAY BE CITED AS:	DPP v Dang
MEDIUM NEUTRAL CITATION:	[2021] VCC 1328

REASONS FOR SENTENCE

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Subject:

Catchwords:            Cultivation of a narcotic plant in a quantity that was not less than the

commercial quantity of cannabis - theft of a quantity of electricity - 

dealing with property suspected of being proceeds of crime -

categorisation of the role in a criminal enterprise – higher than mere crop 

sitter- trusted participant in enterprise- no criminal history - low risk of

recidivism - risk of deportation -

Legislation Cited:

Cases Cited:

Sentence:               Total effective sentence of four and a half years' imprisonment with a

period of two years and six months before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Rutherford	Daniel Clark
For the Accused	Ms A. Hancock	Anh Liang

HIS HONOUR: 

1Tuan Van Dang, you have pleaded guilty to one charge of cultivation of a narcotic plant in a quantity that was not less than the commercial quantity of cannabis between 4 March 2020 and 25 April 2020.

2You also pleaded guilty to the theft of a quantity of electricity, in the same time period you also pleaded guilty to a summary offence, of dealing with property suspected of being proceeds of crime.  That was Charge 3, a summary charge  pertaining to $610 in cash.

3The circumstances of your offending are outlined in the prosecution document and those facts are agreed and I will summarise them for purposes of this sentence. 

4On 25 April 2020, premises at Portland were the subject of police surveillance.  You were observed by police to walk to the house in question and enter through the front door.  A few minutes later at about 7.40 pm, a number of police came to the house to execute a search warrant.  You did not open the door but you fled out of the backdoor.  However, as you were approaching a back fence, you fell and you were arrested.

5The search of your person found $610 in cash, the subject of the related summary charge, a phone and car keys.  Inside the house, police found a hydroponic cannabis crop which had been set up in the house involving nine separate rooms over two stories, with 154 light shrouds, six electric timers, three phase power supply unit connected to the mains power to the house illegally, and which created danger.

6Powercor the electricity company involved determined that the illegal meter bypass circuit which operated at the relevant dates suffered a loss of $9,932 which was effectively stolen. 

7The next day police re-entered the premises and seized 296 cannabis plants, ranging from seedlings to mature plants, weighing at 133.1 kilograms of cannabis.  You were charged and remanded, you were interviewed by police investigators, and you said to them that another man had given you the keys to the property. The cash had been given to you by a friend, you were planning to leave after a very short time at the premises, that you were dropped off there by a friend.  You did not know about the large amount of cannabis in the house and that the reason for going in the house was to get a vacuum cleaner.

8These were false answers and were given in an endeavour to minimise your role and knowledge of the cultivation.  In the relevant period, 4 March 2020 to 20 April 2002, police had intercepted a number of phone calls in which you had participated. 

9In these conversations which are briefly excerpted in the opening, you discussed the cultivation and they establish a number of propositions. 

(1)      That you would transport items from the house, including plants.

(2)      That you knew the price point in buying and selling cannabis.

(3)      That you were entrusted to purchase items and bargain for prices related to those items. 

(4)      You were entrusted to take money from the principal for purposes of the cultivation and would arrange for money pick-up. 

(5)      You would hire vehicles to transport plants and equipment. 

(6)      You would purchase equipment for the cultivation. 

(7)      That you informed the principal as to the plants you had brought into the premises. 

(8)      That you would facilitate the movement of plants out of the house and collection of plants.  See the phone call with reference to brother Dat. 

(9)      That you were tasked with organising the movements of plants and their storage. 

(10)     That you were a conduit of information to the principal Phan about the state of the plants and whether they were ready for use.

(11)     That you knew there were plants on both levels of the house.

(12)     You were entrusted with the key to the crop house; and

(13)     That you in fact cultivated the crop inside the house.

10Cultivation of cannabis in a commercial quantity is a serious criminal offence, it carries 25 years' imprisonment as a maximum, and by this the legislators have indicated the gravity of this offending.  Cannabis is a drug which wreaks havoc in the minds of users, in the lives of families and individuals, particularly the young and which often leads to criminality and progress to heavier drugs.

11It invariably involves criminal enterprises or groups, and those who involve themselves in it take a calculated risk in the face of its illegality because of its financial rewards. 

12General deterrence and community protection, loomed large in this sentence.  The court must denounce this continuing scourge in our society and deal with those who participate and promote it, again by just punishment.

13To assess the appropriate penalty to be imposed, the court must look at objective factors as to determine the gravity of your offending.  This task is essentially achieved by defining your role, that is sometimes not able to be done with precise categorisation.  Often it is difficult to assign a fully defined role to an offender in the structure of a criminal enterprise.  That role is best described by an understanding of what you actually did and what can be inferred from the actions which you performed in furtherance of the cultivation in question, rather than fitting your acts into a set term or definition or category.

14In my view your role was substantial.  While I accept that there is no evidence that you had a role in the setup of the crop house, or the electricity bypass, it is reasonably clear that you were a close subordinate to a principal to whom you reported frequently, but who in turn entrusted you with important duties as is shown by the intercept material. 

15That material shows that on the one hand you were reporting to a superior but on the other that you were trusted and had a significant amount of autonomous agency in the crop and how it was to be dealt with.  In that sense you were much more than a crop sitter, for example, or a mere guardian.  Your role was important and indispensable even if subordinate. Therefore your role was central to the enterprise of the cultivation.  So much was properly conceded during the plea.                 

16Another aspect of determining objective gravity is the quantity involved.  Both by weight, five times the prescribed value, and by number three times the prescribed value.  This was clearly a cultivation of a commercial dimension.  Another aspect is the time frame involved which is almost two months, with daily involvement, if the intercept material is to be a guide. 

17I take your plea into consideration, it was made a year after the charges and after three committal mentions, the matter resolved at the fourth committal mention with a hand-up brief.  I consider that it was made reasonably early.  Your plea has a utilitarian value of having avoided a criminal trial.  It was also made in expectation of probable incarceration and that is a relevant factor in these times of pandemic, when the burden of imprisonment is made heavier by requirements of quarantine, lockdowns, restrictions on movements and other aspects of reclusion.  And particularly in the enhanced prospect of infection as we have recently seen in New South Wales correctional centres.

18The plea has added value in this COVID-19 time because the delivery of justice has been severely impacted and the plea in this context is a resolution of which enables finality at a time when the court is beset by delays and mounting backlog.  Your plea will reduce your sentence.

19I accept that your plea is some evidence of remorse, but as is often the case it is difficult to assess the full extent of this sentiment.  I accept that you acknowledge your responsibility and that you did the wrong thing as you told Mr Warren Simmons, a consultant psychologist. 

20I take into account your personal circumstances, background and history.  You have no prior criminal history. You are 38 years of age. You were born in Vietnam and your family were rice farmers.  Your mother is 65 years old, your father died a few months ago.  Your family were essentially subsistence farmers and poor.

21All family activities revolved around the harvest season as crucial for the remainder of the year.  You recall little by way of childhood activities.  After you left school you and your siblings went different ways, you remained close to your parents.  You left school at the end of Year 9 with little academic progress thereafter.  You found work as a building labourer for the next ten years.

22You then did a two-year welding apprenticeship and worked in that job for a year, before travelling to this country.  While working as a welder in Laos you were involved in a motorcycle accident which required surgery on your face and which left you with visible deformation.  You left Vietnam by boat, it was intercepted and you were taken to an immigration detention centre in Darwin.  There you remained for several months but then absconded from there and went to the Northern Territory where you found work on farms.

23Later, having left that work, in Sydney, you were swindled out of most of your money by someone on the promise of being able to obtain a visa for you.  Eventually you made your way to Victoria in about January 2020.  Someone in Sydney had suggested that you should come to Melbourne to look for work and so you did. 

24You had married when you were 27 years of age and you and your wife travelled to Laos for work together.  You returned to Vietnam but you separated a year or so before leaving for Australia.  You have an 11-year-old son from this relationship, with whom you have had some telephone contact since you have been on remand.  You do not drink to excess or use illicit drugs, you have been on medication while in custody in all probability to deal with this predicament and mild depressive symptoms.

25You told Mr Simmons who wrote a report for the court dated May 2021, that a friend suggested to you when you arrived in Melbourne that you could look after a house.  You said you had no involvement with cannabis before and realised that what you were involved in was wrong and that you wanted to leave the operation.  You told Mr Simmons you had not been paid and had nowhere to go. 

26You indicated your concern about being returned to Vietnam because of your status here in Australia and you are apprehensive about what Vietnamese authorities will do when you return if you do. 

27Your mild depressive symptoms are situationally reactive to your current circumstances.  Your involvement is clearly tied to your financial needs. 
Mr Simmons assesses your risk of recidivism as low, I accept that.  I take into account your residential status in Australia which may expose you to deportation when you are released. 

28Although I do not speculate as to whether such a process will follow or whether a determination for deportation will be made, I take into account your concern for such an outcome, your fears for the consequences upon your repatriation and ongoing anxiety this process will engender during your imprisonment.  This concern is said to be related in particular because of your involvement in public demonstrations about freedoms to practice religion which caused you to flee Vietnam.

29I accept that your risk of recidivism is low.

30You worked in the community for about seven years with no criminal involvement.  You speak little English and you have maintained some communication with your family in Vietnam.  I accept that your lack of English may render your incarceration more burdensome. 

31Your prospects of rehabilitation are probably good.  Prospects of deportation would deprive you of the benefit of life in this country and I take that into account.

32In my view the circumstances of your involvement in this cultivation make very relevant the principle not only of general deterrence but also specific deterrence.  Although this is not a major consideration, certainly not as important as general deterrence and just punishment, however given your level of involvement it remains relevant.

33The period of incarceration in your case has probably already been salutary in this context.  On your part you have worked in the prison system when that activity has been available. 

34On cultivation of commercial quantity of cannabis, Charge 1, you are convicted and sentenced to four years' imprisonment.  On the theft of electricity, Charge 2, you are convicted and sentenced to 18 months' imprisonment.

35On dealing in proceeds of crime, the summary offence, you are convicted and sentenced to six months' imprisonment.  I order that five months on Charge 2, and one month on Charge 3, the summary offence be accumulative on Count 1, making a total effective sentence of four and a half years' imprisonment. I order that you serve a period of two years and six months before being eligible for parole.

36I declare that you have served 506 days by way of pre-sentence detention, excluding today and I will have that number noted in the court's records.  But for your plea I would have sentenced to you five and a half years with a non-parole period of three and a half years.  I will order the forfeiture of the cash, which was not opposed, and I will sign that order when it is available to me.

37Ms Hancock, are there other ancillary orders?

38MS HANCOCK:  No, Your Honour.

39HIS HONOUR:  Yes, thank you.   Is the sentencing order clear, are there any difficulties with it, Ms Rutherford?

40MS RUTHERFORD:  No, it's clear, Your Honour.

41HIS HONOUR:  All right.  Well given that you have Ms Trang available on line and I take it your client is still listening, I am happy for you to have an opportunity to speak to him and I will simply ask everyone else to either detach themselves from it or just go in the lobby, if you want to take that opportunity, otherwise I am happy to discontinue.  You may have made other arrangements to see him in any event.

42MS HANCOCK:  I will make other arrangements, Your Honour, but if I'm able to just have a couple of minutes now I can let Mr Dang know that, I would be grateful, Your Honour.

43HIS HONOUR:  Thank you, Ms Hancock, and thank you, Ms Rutherford.  All right. 

44MS RUTHERFORD:  Thank you, Your Honour.

45MS HANCOCK:  As Your Honour pleases.

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