Director of Public Prosecutions v Dang

[2020] VCC 1408

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00629

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRAN CHINH DANG

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2020
DATE OF SENTENCE:	4 September 2020
CASE MAY BE CITED AS:	DPP v Dang
MEDIUM NEUTRAL CITATION:	[2020] VCC 1408

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW – Sentence

Catchwords:  Cultivation of a narcotic plant – commercial quantity – unlawful non-citizen - deportation

Legislation Cited:  Sentencing Act 1991; s. 5(2H)

Cases Cited:Nguyen v The Crown [2016] VSCA 198, Nguyen v The Queen [2010] VSCA 11, DPP v Duong [2010] VSCA 250, Tuan Doan v The Queen [2010] VSCA 250

Sentence:Total effective sentence of two years’ and nine months’ imprisonment with a non-parole period of 20 months’ imprisonment

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Davison	Director of Public Prosecution
For the Accused	Ms S. Wallace	Paul Vale Criminal Law

HIS HONOUR:

1Tran Ching Dang, on 4 September 2020, which is today, at the County Court of Victoria at Melbourne, you pleaded guilty to one charge of cultivation of a narcotic plant, namely Cannabis L, in not less than a commercial quantity on indictment No. K12376229. This offence has a maximum penalty of 25 years' imprisonment.

2Your plea hearing by your consent, was conduct remotely from the Melbourne County Court with you appearing via video link from Fulham Prison.  You were assisted by a Vietnamese interpreter.  Counsel in the plea hearing appeared and made submissions remotely over the WebEx virtual platform used in courts during the COVID-19 lockdown.

3Mr Dang, you have no prior criminal convictions.  As of this day you have spent 359 days pre-sentence detention on this charge. 

4You are an unlawful non-citizen of Australia.

Circumstances of your offending

5The prosecutor read from and tendered a summary of prosecution for plea dated 7 August 2020.  This was Exhibit “A” on the plea.  I will refer to it extensively in these reasons for sentence.

6On 11 May 2019, Citipower employees attended at a premise rented by you in North Balwyn, Victoria.  They attended to repair a power outage at that address.  Upon observing the meter box at the address and noting the smell of cannabis coming through a hole in the meter box, the Citipower employee suspected the premises was being used for the cultivation of cannabis and notified Victorian Police.

7At approximately 11.15 am, Constables Lougheed and Wiesner attended at the premises and observed you standing in the driveway of that address.  The police approached you and had a conversation with you, and you posed as being the landlord of the property.

8The following exchange happened between you and the police: they asked you if you were the owner; You answered that you were and asked what was happening;  The police asked you if it was a rental, meaning the property?;  You responded, 'Yes'; You were then asked if you had keys to the house itself?; and you responded ‘no, they changed the locks’; You then told the police that ‘the tenants had called you the night before and said that the power was out’.

9The police then confirmed the smell of cannabis coming from the house and not knowing if anyone was in occupation of the premises, entered the premises for the purposes of confirming that no one was inside.  The police did not locate any other person at the premises at that time. You fled the scene whilst the police were inside the premises. 

10A search warrant was obtained by the police and executed at approximately 2:30pm, on the same day, 11 May 2019.

11Police located a sophisticated hydroponic setup where numerous cannabis plants in different stages of growth were being cultivated across three rooms in the house.  Room 1 contained 25 mature cannabis plants.  Room 2 had 40 small cannabis plants.  And, room 3 had 15 mature cannabis plants, together with a plastic bag of fresh cannabis leaf.  The police also found a plastic bag of dried cannabis buds and a black bag containing loose cannabis in it.  The hydroponic setup included lights, power system, air filters and an irrigation system.

12On 15 May 2019, a botanist examined the plants and found that there were a total of 80 cannabis plants.  The total weight of all cannabis seized at the premises was 60.7 kilograms.

13Based on the number of plants, 80 in this case, that amount is 0.8 of a commercial quantity by number of plants.  However, based on the total weight of cannabis, which was 60.7 kilograms, the amount seized is 2.4 times the commercial quantity for cannabis.

14After the police made further enquiries and investigations, they arrested you on 10 September 2019.  You were interviewed by police in the early hours of
11 September 2019, and that interview took place without you seeing a solicitor or with the assistance of an interpreter.

15In the course of the interview you told the police that:

a) You had been renting the premises;

b) You could not remember when you moved into the premises, but it was last year;

c) You did not remember the landlord's name; 

d) You signed a rental agreement and that you were paying $1,200 per month for the property;

e) You had made all of the rental payments;

f) That after two or three months you had sublet the premises to two other persons;

g) Initially you told police you could not remember the names of the sublessees, but later told them that one was named Drung or Chung and the other Dan;

h) That sublessees were living at the premises for a long time;

i) That you really did not know them;

j) That your subtenants were in their 30s and were from Vietnam;

k) That you had lived with your subtenants for one to two months before you moved in with your girlfriend in Box Hill; 

l) You said that Mr Chung had rung you about the power being off;

m)You had then called the power company; 

n) You did not know why the power was off because you had not been living at the premises;  

o) You said that on the day of the search, that is when the police arrived, that you did not have a key to the premises because you did not actually have one;

p) You ran away from them on the day of the search because you thought if they caught you, they would send you back to Vietnam;

q) When you were shown photographs of the cannabis, you just said you did not know what it was other than to call it a ‘green tree’.

16As I started earlier, you have been in custody since the day of your arrest, a total of 359 days.  There are no co-accused charged with this offending, but I note that there is forensic evidence to suggest there were other people involved.

Personal circumstances

17You were born Hanoi, Vietnam in 1984.  You are now 36 years of age.  You are the only child of your now retired parents.  Your mother worked as a nurse; your father was in military service in Vietnam.  Your parents both now live in Vietnam.

18You have a tertiary education, having completed a finance degree at university in Vietnam in 2007.  After completing your degree, you worked in the finance sector in Vietnam until you came to Australia in 2013.

19In 2013, when you came to Australia, you came here on a student Visa to study a Masters’ degree in accounting, initially at La Trobe University.  You did not complete that degree but transferred to Swinburne to continue your studies.  You never completed your course at Swinburne and have overstayed your student Visa.

20Whilst in Australia you have worked in a number of casual jobs, which included cooking, warehouse work and deboning chickens.  You have a domestic partner here in Australia.  Your partner is of Vietnamese background and she works as a nail technician.  Prior to your arrest you lived with her and her four children.  The children are aged between 17 and two years.  None of the children are your children.

21In the years 2017-2018 your father required stomach surgery.  You were sending money home to Vietnam to support your parents.  I have been told that you sent $10,000 to them over a period of time.

22In 2018, your parents came to Australia and lived with you at the property for a period of three months, which concluded in November 2018.

23You have told police that you sublet the property to other people in
December 2018.  You had signed a lease on the property on 5 August 2018.

24You are currently in custody at Fulham Prison with the prospect of deportation to Vietnam on the completion of your custodial sentence.

Sentencing considerations

25The basic purpose for which a court may impose a sentence of imprisonment are just punishment; deterrence, both specific and general, your rehabilitation and denunciation of your actions, and the protection of the community. 

26I have to have regard to the seriousness of the offence, your culpability for it and your personal circumstances.  I am required to balance the interest of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible an offender such as yourself is rehabilitated and reintegrated into society, either here or elsewhere.

27You have no prior convictions here in Australia and as far as I know nothing contrary to your prior good character in Vietnam.  This is your first period of incarceration.  You have been in custody for a total of 359 days.

28I take into account your plea of guilty to this offence.  Your plea of guilty is at an early stage.  In the sentencing process you are entitled to the full benefit of an early plea of guilty.

29Your plea of guilty to this charge has utilitarian value to the community.  Your plea of guilty has saved the community the expense of court proceedings, including a trial.  Your plea of guilty has given a certainty of outcome for this case and your plea of guilty is evidence of your remorse.  I accept that you are remorseful for this offending.

30Your plea also demonstrates you are willing to facilitate the course of justice in this community and it clearly indicates that you accept your responsibility for the criminal conduct.

31As part of the governing principles to be considered in sentencing I must take into account the current sentencing practices.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases.

32The prosecution submitted three comparable cases for my consideration in this case.  I have considered those cases and the statistics in relation to sentences and the current sentencing practices.  I am mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.

33Current sentencing practices are but one of the factors I am required to have regard to in fixing your sentence. Section 5(2H) of the Sentencing Act is relevant because this offence is described as a category 2 offence. Your counsel, Ms Wallace, appropriately conceded that you could not satisfy the requirements under s.5(2H) (a), (c), (d) or (e), which means a period of imprisonment is the only appropriate sentence.

34The objective seriousness of your offending is indicated by the following factors:

(a) You were the person who rented the premises in August 2018 and maintained the lease in your name up to the time the cannabis crop was discovered at the property;

(b) You are to be sentenced for a single day cultivation, being the day, the police attended to find you at the premises on 11 May 2019;

(c) The crop found on 11 May 2019 was a substantial cannabis crop, consisting of 80 plants and 60.7 kilograms of cannabis;

(d) This amount of cannabis is 2.4 times the commercial quantity by weight;

(e) The setup in the premises leased by you was a sophisticated hydroponic crop in three separate rooms of the house.  Including lighting, power system, air filters and an irrigation system all in place;

(f) It cannot be established that you setup the hydroponic crop personally.  You are part of the cannabis growing enterprise, you rented the property and you admit to cultivation of the crop on 11 May 2019.  None of this activity happens in a vacuum; and

(g) It is unclear what financial benefit you received as a result of your involvement in the cannabis crop.  You paid the rent on the premises.  There is no evidence of how you were reimbursed for that expense or any other financial benefit you received from the criminal activity.

35I assess your role as above that of a crop sitter.  The basis for that assessment is that you had rented the property and were the contact person for the power at the premises.  You were also alone and present at the premises on the day the police attended on 11 May 2019.  I assess your role as the lower end of what is described in the authorities as the 'mid-range' for this type of offending.  In summary, without your involvement in this criminal enterprise a cannabis crop cannot be grown.

36The Court of Appeal in Victoria has made a number of pronouncements on the seriousness of the charge of cultivating a commercial quantity of Cannabis L.  Maxwell P of the Court of Appeal in the case of Nguyen v The Crown [2010] VSCA 11 said about the seriousness of the offence as follows,

'As has been readily pointed out in sentencing decisions, this is an offence for which Parliament has set the highest maximum penalty in the criminal calendar, 25 years' imprisonment'.

37In a later case of the DPP v Duong [2010] VSCA 250, Buchanan JA stated as follows,

'The maximum penalty of 25 years shows unambiguously how seriously the community, through Parliament, view this conduct'.

38The case of Duong was followed by a case of Tuan Doan v The Queen, where Forrest JA stated as follows:

'The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum of 25 years' imprisonment.  Whilst there is no doubt that the role played by the appellant was of a menial nature, it was nonetheless necessary for the crop to flourish.  The maximum penalty fixed by Parliament unambiguously demonstrates how seriously the community views this conduct.'

39Forrest JA then referred to the case of Duong, and said as follows:

'Recently in this Court, emphasis has been placed upon the importance attached to sentencing, judges having to have regard to the maximum sentences fixed by Parliament.  This Court has also emphasised recently that general deterrence is an important consideration in this type of offence, and that the link between general deterrence and the increasing prevalence of the offence is readily apparent.'

40In the case of Doan, Nettle JA, as he then was, stated as follows:

'I wish only to add a brief observation concerning the submissions advanced on behalf of the appellant that the judge had erred in the emphasis which His Honour placed on the importance of general deterrence.  In my view, less there be any doubt about it, there should be no doubt that in cases involving the cultivation of narcotic plants in not less than a commercial quantity general deterrence is at the forefront of the sentencing considerations.  Consequently, as the judge rightly observed, in cases of this kind there is less room to give weight to the considerations such as youth and antecedents that would otherwise be the case.  In the result the judge also correctly found in the case of this kind that an immediate term of imprisonment should ordinarily be regard as virtually unavoidable'.

41I also refer to a case of Nguyen v The Crown [2016] VSCA 198. This case was also referred to by your own counsel. In that case, the Court of Appeal found that the current sentencing practices for this offence did not reflect the objective seriousness of mid-range offending.

42In a sentencing regime based substantially on quantity of the narcotic plant you have pleaded guilty to cultivating a crop of 80 plants, which weighed
60.7 kilograms of cannabis.  The weight of the crop is 2.4 times the commercial quantity.  It was a substantial crop.

43I assess your prospects of rehabilitation as being good.  You are clever and have the advantage of a tertiary education in Vietnam.  You have a supportive family who will assist you to resume your normal life upon your return to Vietnam.  My assessment of your rehabilitation prospects is further supported by your plea of guilty here and your lack of any prior criminal history.

44I also accept that your plea of guilty in the circumstances of the COVID-19 pandemic has substantial utilitarian value.  I note that the practical management of a jury trial has yet to be resolved in this State.  You have not sought to delay the finalisation of this prosecution by conducting a trial on an unknown future date.

45In addition, it is relevant to take into account the impact of the lockdown restrictions that have been imposed as a result of the COVID-19 pandemic and that will be applicable to you and indeed upon all prisoners in the State of Victoria for an uncertain time in the future.

46I have noted the contents of an affidavit unsworn by Jennifer Ann Hosking, who is the assistant commissioner of the sentencing management division of Corrections Victoria which was filed this morning.  I take into account the information in that affidavit in assessing the impact of the COVID-19 pandemic on your incarceration.

47As a result of those restriction you will not have the opportunity of contact visits from your partner.  There is the risk of you having to spend more time in your cell than otherwise would ordinarily be the case.  And that because of the isolation that you suffer from your parents, you do not receive any visits from any members of your family.

48Your placement and the COVID-19 restrictions also means that you have limited opportunity to participate in courses during the course of time in prison, which will limit your rehabilitation in these early stages.  You will also be suffering some anxiety or more anxiety due to the COVID-19 risk to yourself personally as you have no control over that risk or methods of controlling the risk whilst you are in custody. All of those circumstances will mean that your time in custody will be and continue to be more onerous than otherwise be the case for a prisoner in normal times.

49I accept that your time in custody will be accompanied by a degree of hardship due to the isolation from your family in Vietnam.  As I understand it, your contact with your family is limited to phone calls only and I take this element of hardship into account when fixing the appropriate sentence.

50I also take into account the fact that  most likely you will be deported once you have completed your sentence.  The uncertainty of your future is a further matter that will make your time in custody more onerous.

51The principles of sentencing, of general and specific deterrence, denunciation of your actions, and the protection of the community are the most important considerations in your case.  A term of imprisonment is the appropriate and just sentence.

52On the charge of cultivating cannabis in not less than a commercial quantity, you are convicted and sentenced to a serve a term of imprisonment of two years and nine months.

53I fix a non-parole period of 20 months' imprisonment.  But for your plea of guilty I would have sentenced you to four years' imprisonment, with a minimum

non-parole period of two years and nine months.

54I declare that you have served 359 days presentence detention in respect of this sentence.

55And I will make the disposal order which you have consented to in relation to the matters attached to that disposal order.

56Does that cover everything, counsel?

57MS WALLACE:  Just to check in relation to money, Your Honour, I understand that might be a forfeiture rather than disposal.  I understand ‑ ‑ ‑

58HIS HONOUR:  All right, I have just got a disposal order in front of me.

59MS WALLACE:  I'll just doublecheck, only because if it's disposed of it might be destroyed ‑ ‑ ‑

60HIS HONOUR:  Yes.

61MS WALLACE:  ‑ ‑ ‑ rather than forfeited to the state.

62HIS HONOUR:  Yes.  No, so ‑ ‑ ‑

63MS WALLACE:  Which I'm certain Mr Davison might have something to say about.

64HIS HONOUR:  Thanks.  Let me tell you, I have got a disposal order that does not mention money, but I have not got a forfeiture order in respect of money yet.  So perhaps that will be sent.

65MR DAVISON:  I can confirm that that money's not being applied for at this juncture, those are my instructions.

66HIS HONOUR:  Right, so you are just seeking the ‑ ‑ ‑

67MS WALLACE:  Well, there is an application ‑ ‑ ‑

68HIS HONOUR:  Sorry.  I just want to clarify.  So you are just seeking a disposal order, Mr Prosecutor?

69MR DAVISON:  Yes, thank you, Your Honour, just the disposal order.

70HIS HONOUR:  Yes, thank you, that is what I will make.

71MS WALLACE:  Thank you, Your Honour.

72MR DAVISON:  As Your Honour pleases.

73HIS HONOUR:  Otherwise is the sentence, the details I read out to you, clear enough?

74MR DAVISON:  Yes, thank you, Your Honour.

75MS WALLACE:  Yes, Your Honour.

76HIS HONOUR:  Yes.  Mr Dang?

77OFFENDER:  Yeah?

78HIS HONOUR:  Thank you.  What that sentence means is, in the parlance - the talk around where you now live.  On the top you have got two years and nine months and on the bottom you have got 20 months.

79OFFENDER:  Yeah, I understand that.

80HIS HONOUR:  Yes, thanks.

81OFFENDER:  Thank you, Your Honour.

82HIS HONOUR:  You look after your parents when you get back to Vietnam.

83OFFENDER:  Yep.  That's it?

84HIS HONOUR:  I will close the court now, thank you, and I will discontinue the links.  Counsel, thanks very much for your assistance.  Very direct and to the point submissions and it is always of great assistance to me, so thank you very much.  Both of you.

85MR DAVISON:  As Your Honour pleases.

86MS WALLACE:  Thank you, Your Honour.

‑ ‑ ‑