Director of Public Prosecutions v Dao
[2018] VCC 716
•9 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02397
Indictment No. H12460541
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BANG DAO |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April 2018 | |
DATE OF SENTENCE: | 9 May 2018 | |
CASE MAY BE CITED AS: | DPP v Dao | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 716 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Cultivation of a narcotic plant – 51 year old offender – low-level role in offending – No prior convictions – Early plea of guilty
Legislation Cited: s72B Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Cases Cited:
Sentence: 252 days imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Trotman | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms E Byrt | Papa Hughes Lawyers |
1 Bang Dao, you have pleaded guilty to an indictment containing one charge of cultivation of a narcotic plant.[1] The maximum penalty given the circumstances of this offending conduct is 15 years’ imprisonment.[2] Your counsel agreed this was the case.
[1] Contrary to s72B Drugs, Poisons and Controlled Substances Act 1981 (Vic)
[2] Pursuant to s72B(b) Drugs, Poisons and Controlled Substances Act 1981 (Vic)
2 The prosecution has filed a summary of prosecution opening, dated 27 March 2018, which I have been told by your counsel I can treat as a statement of agreed facts.[3]
[3] Exhibit P1
The facts
3 At the time of the offending, you were 51 years old and resided at 132 Point Cook Road, Seabrook. You are currently the same age.
4 On 24 August 2017, police were conducting surveillance at 3 Mopane Circuit, Wyndham Vale in relation to a possible hydroponic cannabis crop located at that address.
5 During this time, police observed a white sedan arrive and park in the driveway of the premises. You alighted from the vehicle, placed a green environmental bin onto the nature strip, re-entered the vehicle and closed the garage door. You then left the premises.
6 Police continued their surveillance of you as you drove from 3 Mopane Circuit to 132 Point Cook Road, Seabrook, where you parked and entered those premises.
7 On 31 August 2017, police executed a search warrant at 3 Mopane Circuit. Inside, police found cannabis plants growing in six rooms. Hydroponic equipment was being used to grow the cannabis plants. An electrical bypass had been installed at the address. I note you are not charged with theft of electricity and you will not be punished for this crime. Nobody was present at the address. Police seized 223 cannabis plants weighing 38.85 kilograms.
8 Later that day, police conducted further surveillance of the premises. At approximately 4:10pm, police observed you attend the address in the same white sedan. You returned in the company of a female passenger, Ms Van Diep.
9 You and Ms Diep were then arrested. You had in your possession a key for 3 Mopane Circuit. Inside the passenger door of the vehicle was another set of keys for those premises. On the back seat of the vehicle, was a set of digital scales and an electric fan speed controller, albeit not of the same type as that found inside the premises.
10 Both you and Ms Diep were charged in relation to the cultivation of cannabis. However, the charges against Ms Diep have since been withdrawn.
11 On 31 August 2017, you participated in a recorded interview in which you denied any involvement in the offending. During the interview, you told police:
(a) Your address is 132 Point Cook Road, Seabrook.
(b) You were paid to mow the lawn at the house. The landlord was not happy with your mowing, so you returned to mow the lawn again that day. He gave you the key and gave you the controller to the garage to retrieve the key and mow the lawn. As soon as you got there, you were arrested by police.
(c) This is the third time you had been to the house to mow the lawn. You first attended a month ago (I note you are not charged in relation to this attendance), secondly on 20 August to mow the lawn and on this day to finish the mowing.
(d) The landlord’s name is Hung and you thought he was Chinese.
(e) You were paid $150 last time you mowed the lawn.
(f) The female passenger that you were with was your girlfriend, and she asked you to go Bunnings with her to buy her some soil for planting at home.
12 A search warrant was then executed at your home at 132 Point Cook Road, Seabrook. Police spoke with Thuy Nguyen and her son Nam Tran at that address. Nothing relevant to this offending was discovered.
13 You have been in custody since your arrest on 31 August 2017, a period of 252 days, including today.
Nature and gravity of the offence
14 While cultivating cannabis for a purpose related to trafficking in that plant is a serious criminal offence as indicated by the maximum penalty of 15 years’ imprisonment, and this was a relatively large crop, both by number of plants and weight, I accept that your role was that on two occasions you added water to a tank in the bathroom (your act of ‘cultivation’), and you put out the rubbish bins and mowed the lawns (ancillary related conduct).
15 Accordingly, I find your role was at the very lowest level of participation in crimes of this nature. It was also short lived. The charge period covers only eight days.
Personal circumstances
16 Your personal circumstances are set out in an outline of defence submissions on plea of guilty dated 23 April 2017.[4]
[4]Exhibit D1
17 You were born on 23 May 1966 in Hai Phong, a major industrial city in the northern part of Vietnam. In that year, northern Vietnam was winning the Vietnam War and the communist Viet Cong was gaining influence over the north.
18 Your mother was from a low income family, whereas your father was part of an intellectual and social class that was opposed to the communist system. Your parents were unable to be married under communist law and your mother, when pregnant with you, was told to terminate the pregnancy. However, your mother defied this edict and married before you were born in order to legitimise the pregnancy and to avoid criticism.
19 Your mother and stepfather were employed as factory workers and your family earned a low income. You have three step-brothers.
20 You attended the local primary school and high school, eventually completing year 10. You worked after school every day and on weekends at a factory and in construction. Your stepfather was an alcoholic and you were required to work hard to support your family.
21 In 1980, your biological father was shot and killed trying to escape from Vietnam by crossing over the border with an organised party of approximately 100 people. Your paternal family was punished due to this attempted escape and all their assets were seized.
22 In 1983, you went to live with your paternal grandmother until aged 17 years to relieve your mother from having a son who was not part of the family she married into. You lived with your paternal grandmother for five years, working diligently as the government had confiscated all of their property.
23 In 1987, you met your first wife, Thi Thuy Vu and you have two children. You moved out of your grandmother’s home in 1988. You and Ms Vu lived together until 1993 when you separated as a consequence of her gambling addiction and mounting debt. During this period, you worked as a labourer and a handyman, eventually managing construction projects. You were the main bread winner for your entire extended family.
24 Ms Vu and you divorced in 2004, after 10 years of being separated.
25 In 2004, you met your second wife, who was visiting Vietnam on holiday from Australia. You had a long distance relationship until 12 March 2012, when you left Vietnam and arrived in Australia on a spousal visa. You then worked in your wife’s Laundromat business.
26 In 2014, your step-son committed suicide in drug fuelled circumstances and your wife subsequently become addicted to gambling. You began working in Melbourne for further financial stability and worked as a handyman, regularly returning to Sydney to visit your wife. Your wife blamed you for her son’s death and your relationship eventually deteriorated in 2015 when your wife ‘kicked you out of the house’. You remain married but are separated.
27 You had a good employment history until the time of your arrest.
28 You are not an Australian citizen. You believed that you became a permanent resident in 2015. However, at the time of the plea, you discovered that your spousal visa has been cancelled and you are now unlawfully in Australia. In all likelihood, following your release from custody, you will be deported to Vietnam where you have a son and daughter and five grand-children living. You are concerned you will become a burden on your family in Vietnam. I accept that there is an element of custodial hardship in your case and I will factor this in as a mitigating circumstance.
Mitigating circumstances
29 Your counsel conceded that a term of imprisonment is appropriate in all the circumstances, and that denunciation, general deterrence and just punishment are important sentencing considerations.
30 You have no criminal history.
31 You pleaded guilty at the earliest opportunity and you will receive a significant discount on account of your early plea.
32 Your counsel submitted that your time in custody has been particularly onerous, as this is your first time in custody and you speak no English. Furthermore, you have had no family members visit you as your children reside in Vietnam and you have no other family in Australia. You have been reactively depressed during your time on remand.
Application of sentencing principles
33 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
34 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society, although it will in all probability not be into this society.
35 Your counsel submitted that a sentence of immediate imprisonment equivalent to the time you have already served in custody is an appropriate disposition in all the circumstances of your case. The Director agreed with this submission. I propose to sentence you on that basis.
Stand up Mr Dao
On the charge of cultivating a narcotic plant you are convicted and sentenced to 252 days’ imprisonment.
I declare the period of 252 days (including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that the fact that declaration was made and its details be noted in the records of the Court.
Pursuant to s 6AAA of the Sentencing Act 1991, I state that the sentence I would have imposed on you but for your plea of guilty would have been a sentence of 12 months’ imprisonment with no non-parole period.
Remove the prisoner.
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