Director of Public Prosecutions v Dau

[2017] VCC 25

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

AT GEELONG
CRIMINAL JURISDICTION

CR 16-01968

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUAN DAU

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Geelong
DATE OF HEARING:	13 February 2017
DATE OF SENTENCE:	14 February 2017
CASE MAY BE CITED AS:	DPP v Dau
MEDIUM NEUTRAL CITATION:	[2017] VCC 25

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: pleaded guilty to cultivation of cannabis L  – 20 year old Vietnamese crop sitter – expired visa  - no priors – deportation imminent – physical and emotional hardship due to violence in prison.
Sentence: 9 months imprisonment with 385 days of pre-sentence detention.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms A. Moran	OPP
For the Accused	Mr D. Gray	Michael Brugman solicitors

Pages 1 - 7

 

 

HER HONOUR:

1Tuan Dau, you have pleaded guilty to one charge of cultivation of a narcotic plant namely cannabis.  After conducting surveillance outside a house at 149 Morgan Street, Sebastopol and having observed a green Mazda parked at the address, police followed the car being driven away from the address on 20 January 2016.  It was intercepted on the Western Highway at Hopetoun Park.  Four people were in the car including you, seated in the back.

2You told the police that your name was Rin Van Tran and you produced an image on your phone of a Vietnamese driver's licence.  You and the other occupants of the car were allowed to continue and later police found that the car was registered to you in your correct name, Tuan Dau.

3The search also disclosed that you were the holder of a Victorian driver's licence and the photograph on the licence was a photograph that the police officer recognised as you, the person who had been seated in the back of the car and who had given the name Rin Van Tran.

4Five days later on 25 January 2016 a fire broke out at the Morgan Street address.  Fire crews extinguished the fire and in doing so, they located what appeared to be a hydroponic set-up in the house and alerted police.  In the house were found burnt electrical transformers, charcoal filters and cannabis remnants.  Three rooms contained fire-damaged cannabis plants in pots, light shrouds, light globes, charcoal filters and other commonly used hydroponic growing equipment.  A bypass of the electricity supply was also found.  

5A further three rooms containing pots of cannabis plants and equipment were found in the shed at the back of the property.  A search warrant was executed early the next day and a total of 209 cannabis plants were located weighing 9.824 kilograms.  That afternoon police saw your car in Sebastopol and intercepted you.  You were arrested and later interviewed.

6You are aged 21 now.  You were 20 at the time, a Vietnamese national who came to Australia at the age of 17.  Your father is a farmer in central Vietnam and you are the eldest of four children.  You completed secondary school in Vietnam and came here to expand your opportunities, supported in part by your parents and by working as a kitchen hand.  You studied business at Swinburne University for a year and initially you boarded with a couple but when you turned 18 you moved into your own accommodation.  It was then that you were introduced to gambling and began to accumulate debts.  You were recruited to look after the cannabis crop in Sebastopol and had been doing so for about a month when you were arrested.  You spent the first seven months at Barwon Prison without the company of any other Vietnamese prisoners and suffering physical and emotional hardship due to the violence that was prevalent.  For the last five months, you have been in Port Phillip Prison which has been less difficult for you as you have befriended a number of other Vietnamese youths who were also recruited as you were and there has been less violence.

7At the age of 21 you are a young offender and you have no prior convictions in Australia and it would appear, none in Vietnam.  Your rehabilitation is therefore to be considered as an important aspect of sentence.  You made a serious mistake in agreeing to look after the cannabis crop and that deserves punishment but the severity of that punishment should be reduced because of your circumstances. 

8I am told that you are ashamed of your actions and as the eldest in the family you are aware that your father is particularly upset and disappointed in you.  A term of imprisonment is commonly imposed for this crime because such offending must be condemned by the courts so that others who attempt to offend in this way understand that punishment will be severe.  I take into account that you have pleaded guilty and so have avoided a trial even though it was a plea at the last minute on the first day of the trial. 

9I understand that you had given early consideration to pleading guilty although no formal written offer was made.  The plea means that you are entitled to a discount on your sentence as considerable expense and inconvenience has now been saved.

10You have been in custody for 385 days, just over a year which is a long time for a young offender, particularly in the conditions of detention described to me by your counsel.  I also take into account that you have no family members here and may have been somewhat isolated until conditions improved at Port Phillip. 

11The maximum penalty for cultivation of a narcotic plant in circumstances where the cultivation was not for personal use but for trafficking purposes is 15 years' imprisonment.  In this case, the quantity and weight of the cannabis plants meets the criteria for a commercial quantity, but that has not been the prosecution case because of lack of evidence of intent.  Nonetheless, the quantity and weight make it clear that the crop was not for personal use and accordingly the higher penalty applies.  The lower penalty would be that of 12 months imprisonment where personal use was indicated.

12That being said, the circumstances of this case warrant a considerably lenient sentence.  Those circumstances, particularly your youth and previous good character, justify a term of imprisonment of less than 12 months.  I am told that your deportation is imminent given that your visa has expired.  Because that is an administrative decision it is not for me to consider but I can take into account that although you want to return home to Vietnam you also wish to preserve your freedom to travel back to Australia one day.  Again, that decision is not a matter for me and I take it into account only in so far as the uncertainty of the future has weighed upon you and may continue to do so.  It is a very small part of the mitigating circumstances.

13Your criminality when weighed against those mitigating circumstances calls for a prison sentence but a shorter one than the time which you have already served.  Would you stand now please, Mr Dau?

14I sentence you to nine months' imprisonment.  I declare that you have spent 385 days in pre-sentence detention and I shall cause that to be noted on the court record.  It means that you will be released immediately.

15If you had pleaded not guilty I would have sentenced you to 12 months' imprisonment. 

16The prosecution seeks an order under 464ZF of the Crimes Act that a forensic sample of saliva be obtained and that is not opposed .  I have to advise you that the police have the power to use reasonable force to obtain the sample but I trust that will not be necessary.

17The prosecution also seeks orders for the forfeiture of $200 cash seized from you and for the disposal of items including a laptop and a mobile phone.  You do not object to the forfeiture of the cash and I make that order.  I will hear further from Mr Gray in a moment about the laptop and the mobile phone and I will also discuss with him the obtaining of the forensic sample in the circumstances of your immediate release but likely detention.

18Mr Gray, have you had a chance to consider and discuss with Ms Moran the laptop and the phone?

19MR GRAY:  Well, I haven't actually discussed it with Ms Moran but I  don't think her position has changed.

20HER HONOUR:  Perhaps I will hear from you, Ms Moran.

21MS MORAN:  Upon reflection, it is probably difficult for Your Honour to be satisfied on the balance of probabilities in relation to the phone, seeing as it was simply a mobile phone found on his person.  However, the Crown submits that Your Honour could be satisfied on the balance of probabilities that the computer was tainted property given that it was located inside the crop house, but that's really the extent of the evidence to support that connection.

22HER HONOUR:  In circumstances where, as I said before, the presence of the computer is often accompanied by other material that does indicate its use and that was not the case here, I will not include the laptop or the phone in the list of items to be part of the disposal order.

23MR GRAY:   Thank you, Your Honour.

24MS MORAN:  As Your Honour pleases.

25HER HONOUR:  Ms Moran, given that Mr Dau will now be released ‑ ‑ ‑

26MS MORAN:  I have a feeling he may have to be processed through the prison so I don't know that he'll be released immediately.  He will be released today but I think they've got to take him back and release him from wherever he is. 

HER HONOUR:  It may be that part of that process will see him being able to go to the police station to provide the forensic sample. It is a matter for him, actually because he's being - he's being released and so it's the non-custodial form that I have signed.

27MS MORAN:  Yes, whether he is actually technically released at all but Your Honour has certainly signed the right form.

28HER HONOUR:  In any event the order is made, it is not up to me to follow that up.  Nor you, probably.

29MS MORAN: it's beyond my control now.  It might be something that Mr Gray can liaise with the relevant authorities on behalf of his client to ensure that he is sampled before he's deported but I think my role in that is concluded.

30HER HONOUR:  I think so, yes.

31MR GRAY:  I think it's a matter for the authorities, Your Honour.  They are the ones that want the sample. 

32HER HONOUR:  Well, I'll leave it there.

33MR GRAY:  Yes, Your Honour.  Thank you.

34HER HONOUR:  Now, I have signed everything except that disposal order so I will hand that back to you, Ms Moran and that can be amended.

35MS MORAN:  Yes, Your Honour.

36HER HONOUR Ms Moran, I will sign that order now if it's just a matter of crossing out those ‑ ‑ ‑

37MS MORAN:  If you're happy to do that.  I've got no issue with that, Your Honour.

38HER HONOUR:  All right, and I wonder if my tipstaff could obtain from the interpreter the sentence that has been used.

39Mr Interpreter, I will just take this opportunity to thank you for your assistance in this case.

40INTERPRETER:  No problem, Your Honour.

41MR GRAY:  Could I just approach my client, Your Honour?

42HER HONOUR:  Certainly.

43MR GRAY:  Thank you.

44(At this stage the court proceeded with another matter.)

45HER HONOUR:  Now, is everything complete in the matter of Dau?

46MR GRAY:  Yes, Your Honour.

47MS MORAN:  Yes, Your Honour.

48HER HONOUR:  Thank you.

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