Director of Public Prosecutions v Dao

[2015] VCC 1698

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01500
CR 15-01978
CR 15-01979

DIRECTOR OF PUBLIC PROSECUTIONS

v

NHAT DAO
HUY LE
QUANG LE

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 November 2015
CASE MAY BE CITED AS:	DPP v Dao
MEDIUM NEUTRAL CITATION:	[2015] VCC 1698

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Mahady
For Accused Dao	Mr W. Grimshaw
For Accused Huy Le	Mr M. McGrath
For Accused Quang Le	Mr R. Melasecca

HIS HONOUR:

1

By indictment the prosecution has charged you; Nhat Dao, Huy Le and Quang Le, each with a count of cultivating a narcotic plant that was not less than a commercial quantity applicable to Cannabis L; a charge which carries

25 years as a maximum period of incarceration.

2The prosecution tendered a summary of the offences which was exhibited and will be retained in the court file.  For the purpose of this sentence it suffices to say that on 20 April 2015 police conducted surveillance at an address in Hallam.  When a car left those premises the vehicle was intercepted and the three of you were found in it.  You, Quang Le, then accompanied police back to the address under surveillance, where a search warrant was executed.

3Inside the house was a sophisticated hydroponic cannabis setup with cannabis plants growing at different stages of maturity; from seedlings to mature plants.  Some plants had been recently harvested.  In each of the five bedrooms police located cannabis being grown in pots, and the usual apparatus were found including light shades, heat globes, electrical timers, a watering system, transformers, exhaust ducts and filters.

4For the purpose of this sentence it is essential for me to outline the basis on which the plea of guilty to cultivation was made.  Surveillance had been conducted on that day - and only on that day - and you are charged with cultivation on that day alone.  Your participation is specifically described by the prosecution to only encompass the removal or harvesting of the leaves and flowering heads for established plants in two of the five rooms; Rooms 4 and 5.  It is not suggested that this and the rest of the crop was, in that sense, yours, or that you had a managerial involvement in setup in any way, and in effect I was asked to deal with you as fruit pickers or seasonal workers, recruited to perform a specific task for which you would have received some small financial reward.  It appears from what the police found that the buds you had harvested were laid out on the floor, and the heat globes.  15.71 kilograms were found in Room 4 and 28.41 kilograms in Room 5; making a total of 44.11 kilos.

5The commercial quantity of cannabis is 25 kilograms or 100 plants.  Inside the living area there was a bed, a television and several drink bottles on which your DNA was found.  None of you have a prior criminal history.  In these types of cases, however, such a past clean record is often a factor which assists the enterprise; much like in the case of couriers and house sitters.  So despite the fact that past good character remains a relevant factor which I take into account, the weight of this factor is somewhat diminished by the fact that the criminal enterprise which employed you benefits from that background by diminishing suspicion in your involvement, being able to deal with inexperience and perhaps naïve persons.

6Cannabis remains an insidious drug which of itself not only seriously effects the health and mental state of many people - especially the young - but generates damage, cost to the community and criminal conduct, and frequently leads to the use of other drugs.  The community rightly looks to the court to denounce the conduct of those who seek to profit from this blight, and to appropriately punish all involved in its cultivation.

7I take into account your plea of guilty.  I accept that it is offered to facilitate the course of justice and is accompanied by remorse.  The plea has saved the cost of a trial and a discount on your sentence by law will be applied because of the plea, which was often at the earliest opportunity.  In this context it is noteworthy that there was no committal hearing and the plea has taken place within seven days.  I take into account the background and personal circumstances of each of you.

8

Quang Le, this is your first criminal offence.  You are 42 years of age.  You have been in custody since 20 April 2015, which means you have spent

213 days by way of pre-sentence detention, excluding today.

9You were born in Vietnam; the second oldest in a family of six children.  Your mother lives there and receives financial support from you.  Your parents were farmers and your siblings all live in Australia or New Zealand.  You were educated to the equivalent of Year 10.  Your father died in 2003.  You took over looking after the family after this, being the oldest man in the family.  You were in New Zealand at the time and married to a woman you had known from a time when you were young, however you found it difficult to secure permanent employment, so in 2007 you and your wife migrated to Australia.  You found full employment, however you divorced in 2008 and thereafter you travelled back to Vietnam in 2009 and you remarried in 2012.

10You spent considerable time and effort trying to get your wife and son to New Zealand.  You began experiencing stress and anxiety, and I received a letter from a doctor in Christchurch, New Zealand, which attested to the fact that in 2011 you were diagnosed with moderate depression, which continued until February 2013, with prescription medication having been prescribed.  Eventually your wife and son came to New Zealand, but the pressures and expectations took their toll and in 2013 you separated.  You have two sons of that relationship and you are devastated by this separation.  I received a report by Sandra Nguyen; a psychologist, stating that you suffer from severe psychological distress, severe anxiety and depression; and it can be stated that you have a major depressive and anxiety disorder.  You expressed what she thought to be genuine remorse and shame.

11It is said, and I accept, that reclusion has, and would continue to escalate your symptoms, putting you at risk of developing additional mental health issues.  You worked as a labourer, painter, chicken boner and factory worker, and at all times it appears you were endeavouring to provide for your family.  In this instance your wish for some reward has led you to a very bad judgment on your part.

12A submission was made that together with time served I should impose a community corrections order in your circumstances.  I have considered this submission but I am of the view that incarceration must follow the criminality as the only disposition.  This disposition is ultimately adequate to respond to all the sentencing considerations.

13I accept that the psychological report enlivens some matters within the principles raised in Verdins to the extent that I accept that reclusion would be more difficult in your case because of your psychological difficulties, thus moderating both general deterrence and specific deterrence in your case.

14Apart from this consideration your English is very poor and you are removed from your family.  Though you have some siblings in Australia the effect on you is the knowledge of your family's hardship because of your absence, and I take that into account.  You have been a good prisoner; being of good behaviour and undertaking a number of educational courses, which I also take into account.

15I was told of some provisions which may apply in relation to New Zealand citizens and the issue of deportation.  I cannot pre-empt the decision of the Minister under the Migration Act, but I accept that deportation may be a consequence of the sentence and I have taken this further matter into account as an exacerbation of the punishment imposed, which may impact on your state of your mind, and if implemented, on your life more generally in the near future.

16It appears that with a sentence less than 12 months the Minister has the option to cancel the visa on the bad character test.  This is the sentence I intend to impose not because of consequences that have to do with deportation, but because of the view that it is appropriate under the circumstances in response to your criminality.  This matter is therefore different from the matters discussed in Zhang by the Court of Appeal, where it is said that in the appellant's case the expectation of deportation was certain, and therefore of significant mitigatory weight.  I take into account also that your incarceration has been particularly harsh since June 2015, when you went into a lockdown regime for 23 hours per day.  I consider this practice to be a deal harder than normal reclusion and I therefore take that into account.

17Huy Le, you are 25 years of age.  You were born near Hanoi in Vietnam.  Your education continued until you were 19 years old, and in 2009 you came to Australia on a student visa and studied English for six months.  Your visa expired in August 2012 and you did not renew it.  It has now been cancelled.  You worked in factories after you completed the course.  You had a relationship with a woman you met prior to your arrest, but it is now completed.

18You made an early plea and I will take that into account.  You have also spent 213 days by way of pre-sentence detention and your time in custody has been difficult.  You have had no visitors and the lockdown regime has meant you have also been in 23 hour lockdown for three months.

19Your work as a prison chef and undertaking courses whilst incarcerated is to your credit.  You will be deported as a matter of certainty and I take this matter into account in mitigation; a factor which will increase the burden of your sentence, although I note that your circumstances in Vietnam, according to submissions made on your behalf, will be that you have hopes of employment there - apart from which your mother works in the hospitality industry and earns a modest income.

20No reward was identified as having been either in fact, or potentially, earnt by you.  It is probably correctly noted that it would not have taken more than one day of harvesting to gather the cannabis which you collected in those two rooms.  You too have no criminal history and a number of mitigatory factors, which I have outlined.  I have perused and analysed the cases which were submitted for consideration in relation to my decision.

21Nhat Dao, your plea was also early and a discount will be imposed on your sentence as a result.  You are 26 years old and single and have no prior criminal history.  It is agreed that you played exactly the same role of harvester as the other two co-accused for moderate but unstated remuneration for your involvement in harvesting on that day.

22You too are Vietnamese.  You came to Australia in 2013 on a student visa.  You speak little English and have been effectively isolated during your period of pre-sentence detention.  You have no family in Australia and you have only been able to access short calls to your family in Vietnam.  This means your isolation during incarceration is increased.  You were an inmate in June 2015, when there was a riot at the Metropolitan Remand Centre.  You did not riot, but evacuated with others to a sports field and waited.  You did inhale tear gas deployed on rioters and on 1 July 2015 you were transferred to Port Phillip, where you were locked down for ten days.  It is inevitable that as a result of this conviction and sentence you will be deported, extinguishing hopes of settling in Australia.

23While on remand you worked in metal and furniture workshops and have attended courses, and I take this into account to your credit.  I consider that each of you is equally culpable in relation to the job you were recruited to do, in which you performed, and it is therefore appropriate to sentence you for the same offence by way of the same penalty.

24I note that you have served, for the records of the court, 213 days, excluding today, by way of pre-sentence detention.  But for your plea I would have sentenced you to 15 months' imprisonment.

25Nhat Dao, Huy Le and Quang Le, you are each convicted and sentenced for cultivation of a commercial quantity of cannabis to ten months' imprisonment.  Madam Prosecutor, are there any other ancillary orders that need signing?  Such as forfeiture or disposal orders?

26MS MAHADY:  Just before we get to that, Your Honour, with the pre-sentence detention my calculation was 214 not including today?  I am not sure what my learned friends ‑ ‑ ‑ 

27HIS HONOUR:  I thought that it was 211 at the time of the plea?  I may be wrong in that calculation.  Perhaps you can all look over it?  I think I was told it was 211 excluding that day.

28MS MAHADY:  So Your Honour has just said 213 including today?

29HIS HONOUR:  No, I said excluding.

30MR McGRATH:  Excluding today.

31HIS HONOUR:  So the day of the plea would have been 212.

32MS MAHADY:  That's right, and then yesterday ‑ ‑ ‑ 

33HIS HONOUR:  And then there was yesterday.

34MS MAHADY:  Two-thirteen.

35HIS HONOUR:  And today.

36MS MAHADY:  And today.

37HIS HONOUR:  So it is 213 excluding today.

38MS MAHADY:  Not including today.  I am sorry, Your Honour, we are at cross purposes.

39HIS HONOUR:  So is that correct?

40MS MAHADY:  Yes, Your Honour.  I was not good at maths at school.

41HIS HONOUR:  Right.

42MS MAHADY:  Just in terms of - I am pretty sure that we handed to Your Honour's associate the forfeiture for the phones?

43HIS HONOUR:  Thanks.  I've signed that, yes.

44MS MAHADY:  And disposal for drugs and equipment on the last occasion?

45

HIS HONOUR:  Yes, I have signed those orders.  Thank you,

Ms Mahady.

46MS MAHADY:  Thank you.

47HIS HONOUR:  I'll hand them back.  Are there any other orders?

48MS MAHADY:  No, Your Honour.

49MR McGRATH:  Your Honour, maybe I made an assumption, but is the - that time as reckoned as served?  The pre-sentence detention is reckoned as served?

50HIS HONOUR:  Of course.

51MR McGRATH:  Yes.

52HIS HONOUR:  Yes.  Well that goes without saying.

53MR McGRATH:  Yes, certainly.

54HIS HONOUR:  So from my understanding they've served about seven months.  I order that they serve ten months; they have about three months to go.

55MR McGRATH:  Yes, Your Honour.

56HIS HONOUR:  Yes, all right.  Unless there's something else?

57MR McGRATH:  The only thing, Your Honour, is just given the number of interpreters, if they could just remain only for a couple of minutes after Your Honour has left the Bench. That would be of assistance.

58HIS HONOUR:  Yes.  Well I think it is important that they understand, given that the English of the prisoners is poor.  If the interpreters could assist in just one final communication with counsel I would appreciate that.

59MR McGRATH:  Thank you.

60HIS HONOUR:  I do not think there's going to be any problem in terms of order of the court.

61MR McGRATH:  Thank you, Your Honour.

62HIS HONOUR:  Yes.  I have got a matter at 10.30 so I'll stand down.

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