Director of Public Prosecutions v Dinh
[2020] VCC 1083
•22 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00537
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NHU HO AI DINH |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 July 2020 | |
DATE OF SENTENCE: | 22 July 2020 | |
CASE MAY BE CITED AS: | DPP v Dinh | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1083 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: cultivate narcotic plant in not less than a commercial quantity - 36 cannabis plants weighing 64.50 kilograms – 2.58 times the commercial quantity - theft of electricity – hydroponic system - role below that of organiser - early plea of guilty - prior good character – no previous criminal convictions – first time in custody - very good prospects of rehabilitation.
Legislation Cited: s.72A Drugs, Poisons and Controlled Substances Act 1981, s.74 Crimes Act 1958
Cases Cited: Brown v The Queen [2020] VSCA 60
Sentence: Total effective sentence of 24 months’ imprisonment with a non-parole period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Singh | Office of Public Prosecution |
| For the Accused | Mr L. Dean | Slades & Parsons Solicitors |
HIS HONOUR:
1 Ms Dinh, on 6 July 2020 you pleaded guilty to a charge of cultivation of a narcotic plant, namely cannabis L, in a quantity that was not less than the commercial quantity. You also pleaded guilty to a charge of theft of electricity. Both offences occurred on 30 October 2019.
2 A summary detailing your offending is set out in the Prosecution Opening on Plea which was tendered and marked Exhibit P1. The matters contained in that summary were not disputed by Mr Dean, who appeared on your behalf.
3 On 22 March 2019 you and your co-accused, Phat Duong, leased residential premises located at Salvia Avenue, Pakenham. On 30 October 2019, police executed a search warrant at your address. The execution of the search warrant was part of a wider police operation relating to cannabis crop houses. Police knocked on the door, which was answered by your co-accused. He was asked if there were any drugs on the premises and replied that there were. Police entered the house. You were found in the lounge room. Cannabis plants were found to be growing in three rooms. A hydroponic system was set up in each of the three rooms.
4 In room 1, there were 12 cannabis plants growing which weighed 22.7 kilograms. In that room were twelve 660 watt lamps and ballasts and a 160 watt carbon filtered exhaust fan.
5 In room 2, there were 12 cannabis plants weighing 21.62 kilograms. There were twelve 660 watt lamps and ballasts and a 160 watt carbon filtered exhaust fan set up in that room.
6 In room 3, there were 12 cannabis plants weighing 20.18 kilograms. There were also twelve 660 watt lamps and ballasts and a 240 watt carbon filtered exhaust fan. An irrigation system utilising water pumps was also installed.
7 The total weight of the 36 cannabis plants seized was 64.50 kilograms. A commercial quantity of cannabis L under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) is 25 kilograms or 100 plants. The weight of plants you cultivated on that day is 2.58 times the commercial quantity.
8 An electrical bypass system was found to be installed in the main bedroom. An AusNet electrician attended and measured the electricity in actual use at 32.48 amps, whilst the meter only recorded 4.23 amps of electricity in use. He estimated that the hydroponic system would use approximately 298.56 kilowatt-hours per day. There was no estimate provided as to the value of electricity stolen.
9 You were arrested and interviewed by police with the assistance of an interpreter. You exercised your right to silence in relation to the allegations.
10 It is not suggested that you were responsible for the setting up of the hydroponic system or the electrical bypass.
Personal circumstances
11 You were born in the Tra Vinh Province of South Vietnam and you are now 27 years of age.
12 You are an only child in what was described as a stable family. Your mother ran a business selling rice and your father, who is now deceased, assisted in that business as well as carrying out domestic duties and your daily care. As a result, you formed a very close relationship with your father.
13 You completed Year 12 of secondary education and then moved to Saigon to study accounting. However, your studies were interrupted by your father’s sudden illness. You had completed 12 months of your course before returning home to care for your father, who died within one month of your return, of a cancer related illness. The death of your father has had a profound impact on you. In order to deal with his death, you decided to leave Vietnam and continue your studies in Australia. You arrived here in 2012 at the age of 19 on a student visa.
14 A psychological report prepared by Carla Lechner, clinical psychologist, was tendered on your behalf. You told Ms Lechner that the impact of your father’s death was significant and you came to Australia in need of a change.
15 You were granted a four year student visa and you enrolled in English and Accounting at Victoria University. After approximately six months you sought to transfer to a smaller college unaware that in so doing you would be in breach of your visa. You told Ms Lechner that although your visa was cancelled you felt you were not able to return home on account of the associated shame. You said there was a high expectation that you would perform well as an international student and you did not wish to disappoint your mother. For that reason, you did not return to the family home.
16 In order to survive you obtained whatever work you could find. That work included employment at a nail salon for approximately eight months, in restaurants for approximately six months, and in a Chinese grocery store for approximately 12 months. The wages you earned were low and there was pressure for you to send money home to provide financial support to your mother and grandmother.
17 You then moved to a job in the massage industry, which paid a higher wage than what you had previously been earning. You reported that the work involved “normal massage” in your first two years of such employment. You were then transferred by your employer to another workplace where it was explained to you that you would be expected to perform sexual services. You stated to Ms Lechner that you were very hesitant but felt that you had no choice.
18 You reported to Ms Lechner that on two separate occasions you were raped by your customers and although you reported these to your employer, you were told that if you could not tolerate such behaviour you should leave the industry. You were traumatised and demoralised by the rapes and the lack of support from your employer. You did not report the matters to police, but you did leave the industry and returned to work in a much lower paid job at a nail salon. It was whilst you were employed at the nail salon, and not long after you left the massage job, that you and your boyfriend were approached by a third party who suggested that you rent a property that could be used as a place to grow cannabis.
19 You told Ms Lechner that you saw this as a preferable option to that of working in the massage industry.
20 You and Mr Duong have been in a relationship for approximately five years. He is on bail, and I am told that his plea hearing is listed for 3 September 2020. I raised with the learned prosecutor why he was not being dealt with at the same time as you, and was told that he refused to have his plea hearing brought forward. I am told that your partner is not aware of your involvement in the sex industry. You have not had contact with him since the day of your arrest.
21 Ms Lechner noted that your mood was lowered and that you displayed symptoms of depression at a clinical level. She stated that you fulfil the criteria for Adjustment Disorder with Depression.
22 You are described as being at least of average intelligence with the capacity to reflect on the impact that your behaviour has had on both yourself and others. However, you were also described as currently highly emotionally distressed, preoccupied with thoughts about your own unknown future, and that these impact on your ability to think clearly.
23 With regard to your offending, you told Ms Lechner that you were approached by a “friend” and asked “if we want to do a job, rent a house … they set up everything … just stay there and look after the plants and friend give money to us after the sale”. You acknowledged that what you were being asked to do was illegal and when asked why you would take such a risk you told Ms Lechner “no choice … make life look good with boyfriend, if he know about massage job we not be together … I need the money to live and send to mum … we can live together as a happy couple”. You also told Ms Lechner that you now deeply regret your decision to become involved in the cannabis cultivation.
24 Ms Lechner was of the view that you had limited insight regarding the serious nature of your actions.
Defence Submissions
25 Mr Dean submitted that you had been experiencing a high level of disadvantage before agreeing to undertake the offending. He submitted that you were in a difficult financial position as an illegal citizen where your status was exploited by employers paying you very low wages. It was not long before your employment at the nail salon that you were employed in an occupation where your employers expected you to perform sexual services for customers. Through your sense of shame you felt you could not confide in your boyfriend or anyone else. It was whilst in that vulnerable state that you and your boyfriend were approached to cultivate cannabis. Mr Dean submitted that these matters operate to reduce your moral culpability and distinguish your case from others.
26 It was not in issue that you and your boyfriend were expecting to profit from the sale of the cannabis. You intended to use some of the proceeds to send to your mother in Vietnam and hoped that it would enable you and your boyfriend the opportunity of a happier life.
27 With regard to your offending, Mr Dean submitted that you allowed others to use the house to grow the cannabis and that you cultivated the plants. He acknowledged that in renting the premises for the purpose of cultivation there was an element of planning. You and your partner lived at the premises and paid the rent.
28 Mr Dean further submitted, based on your instructions, that the crop and hydroponic set-up were installed by others, and once mature would be taken away and sold by others. That, of course, did not eventuate because of the execution of the search warrant and your arrest. It was put that you were not the organiser of the operation. Further, you have pleaded guilty to offending on a single day only.
29 It was submitted that you are still relatively young and have no previous convictions. Your offending is out of character. Your remorse is evident, he submitted, through your early pleas of guilty and your expression of deep regret to Ms Lechner. In the circumstances, it was submitted that your prospects for rehabilitation are very good to excellent.
30 Mr Dean also submitted that there were significant utilitarian benefits attached to your early plea of guilty, including the fact that there was no committal hearing or trial. Your pleas of guilty were entered on 25 March 2020 at a committal mention and it was accepted by the learned prosecutor that they were early pleas of guilty, albeit not at the earliest time.
31 It was also submitted that your time in custody will be particularly difficult for you given your limited ability to speak English; no family support in Australia; and the impact that the COVID-19 pandemic has had on those in custody, including the anxiety associated with contracting the virus whilst in custody and the prospect of further restrictions being imposed. Mr Dean also relied on the uncertainty and anxiety you have about the likely deportation once your sentence is complete. He stated that you are particularly anxious about being returned to Vietnam in circumstances where the expectations of your family will not have been fulfilled.
32 The learned prosecutor, Ms Singh, submitted the following matters as relevant to your culpability and the seriousness of the offences:
(i) The residence in which the cannabis was found had been rented by you and your partner so that it could be used as a crop house;
(ii) You organised the rental of the premises;
(iii) The hydroponic set up was sophisticated;
(iv) An illegal electrical by-pass had been installed in the main bedroom;
(v) Your role in the offending was not that of ultimate organiser;
(vi) The total weight of the 36 cannabis plants was over 2.5 times the commercial quantity;
(vii) Your offending was for profit; and
(viii) You are charged in respect of a single day only.
33 Ms Singh did not dispute matters relating to your personal circumstances set out in Ms Lechner’s report and in Mr Dean’s submissions.
34 Ms Singh submitted that the sentencing consideration of general deterrence is of primary importance for this type of offending, particularly given that it is prevalent offending.
35 Ms Singh referred to the Court of Appeal decision in Brown v The Queen [2020] VSCA 60, noting the Court’s comment that the COVID-19 situation is causing additional stress and concern for prisoners and their families, and that the extent to which it may be taken into account, if at all, will be a matter to be resolved on the particular facts of each case.
Sentencing Considerations
36 You have pleaded guilty at a relatively early stage to the two charges on the indictment. The seriousness of those charges may be gauged by reference to the maximum penalties available. In the case of cultivation of a narcotic plant in a quantity not less than the commercial quantity, the maximum penalty is 25 years’ imprisonment. In relation to the theft charge, the maximum penalty is 10 years’ imprisonment.
37 The system in operation was a sophisticated one and the quantity cultivated was, by weight, 2.58 times the commercial quantity. You were to receive some of the proceeds from the sale of the cannabis cultivated but because of police action the cannabis was not sold and you did not receive any financial benefit. I am not aware of what the proceeds would have been. I have significant regard to the fact that you are charged with offending on a single day only, and that your role in cultivating was tending the plants.
38 I accept that you were not the organiser of the crop and that your role was at a lower level than that of the organiser. There is little utility in attempting to place a label to your role. By renting the premises where the crop was to be grown there was planning for the cultivation but I also note that by living there you and your boyfriend were most exposed to the risk of apprehension.
39 I accept Mr Dean’s submission that, by reason of your background and personal circumstances at the time you agreed to the cultivation, your moral culpability is reduced. You were in a difficult financial position, your student visa was revoked, you were exploited by employers and you felt you could not return to Vietnam because of the shame that would bring you and your family.
40 I accept that you were experiencing a high level of distress immediately before your offending. You had experienced two violent rapes, you had no family support and you felt you could not confide in your boyfriend for fear of exposing your former sex work. You saw the proposal that you cultivate cannabis as an opportunity to escape your difficult financial circumstances and your lowly paid employment.
41 You naively accepted the reassurances of the organiser of this crop that your actions were not that serious and that you would be assisted if there was any trouble with the law. Nevertheless, you knew that your conduct was illegal; planning was involved; you and your partner took steps to rent the premises at which the cannabis was to be grown; and you expected to make money from your illegal conduct.
42 Your pleas of guilty have provided utilitarian benefits and you have facilitated the course of justice. You have accepted responsibility for your offending. You have spared the need for a committal hearing and trial, and witnesses have been spared the need to give evidence. I also accept that your pleas are an indicator of your remorse.
43 I have regard to your prior good character and lack of previous convictions. I have regard also to the fact that this is your first experience of imprisonment and, for the reasons advanced by Mr Dean, you will experience additional hardships.
44 You have had no contact with your boyfriend since your remand. You have no other family in Australia and you are not fluent in the English language. You do, however, have telephone contact with your mother on a weekly basis.
45 I also accept that your incarceration is made more burdensome by reason of measures taken by Correctional Services to deal with the COVID-19 pandemic. It is well known that visits by friends and family have been suspended, and that there has been a reduction in work and educational opportunities available to prisoners. I am not aware if there are any other impacts in your case by reason of the restrictive measures. I accept, however, that the pandemic has added generally to the stress you experience as a prisoner.
46 As to your prospects of rehabilitation, I consider them to be very good.
47 You are still a young person. You have no previous convictions. You started tertiary studies which were unfortunately interrupted by your father’s illness and your returning home to care for him. You have completed some courses in custody. I have little doubt that this, your first experience of incarceration, has had a significant deterrent effect upon you. I am told that you will be deported once your sentence is completed, you will return to your mother and will have the opportunity to start afresh in Vietnam. The fact of deportation adds to your anxiety.
48 I will moderate the need for specific deterrence, given my assessment of your prospects for rehabilitation and the fact that you have no prior convictions.
49 I agree with the learned prosecutor’s submission that general deterrence is of primary importance in cases such as this. I am also required to have regard to the need to denounce your conduct and to impose just punishment. The offence of cannabis cultivation is prevalent within the Victorian community. It is often associated with theft of electricity. People who engage in such activity must understand that they will be met with stern punishment.
50 I am also required to have regard to current sentencing practice. Most persons convicted of these offences receive gaol sentences of varying lengths, reflecting no doubt the myriad different objective and subjective circumstances of each case.
51 I have considered the sentencing cases provided by the learned prosecutor, the Sentencing Advisory Council’s sentencing snapshots for the offences of cultivating a narcotic plant and theft of electricity, as well as the many cases set out in the Judicial College of Victoria’s Sentencing Manual. In Quy Nguyen v R[1] Osborn JA stated the “[s]entencing decisions in comparable cases must be had regard to as ‘yardsticks’ that may serve to illustrate (although not define) the possible range of sentences.”
[1] [2017] VSCA 127 at 41
Sentence
52 Ms Dinh, would you please stand? Thank you.
53 On Charge 1, you are convicted and sentenced to 22 months’ imprisonment.
54 On Charge 2, you are convicted and sentenced to 6 months' imprisonment.
55 Two months of the sentence imposed on Charge 2 is to be served cumulatively on the sentence imposed on Charge 1. This makes a total effective sentence of 24 months’ imprisonment.
56 I turn now to the non-parole period which I will impose. The purpose of parole is to provide for mitigation in punishment in favour of rehabilitation through conditional release where appropriate. A non-parole period is the minimum time that justice requires you to serve taking into account all of the circumstances of the case. Having regard to the fact you have no prior convictions and to what I find are your very good prospects of rehabilitation, I set a non-parole period of 12 months.
57 What is the pre-sentence detention please?
58 MS SINGH: Your Honour, it is 266 days.
59 HIS HONOUR: Mr Dean, do you agree?
60 MR DEAN: Yes, I do agree, Your Honour.
61 HIS HONOUR: Thank you.
62 Pursuant to s 18 of the Sentencing Act I reckon as the period of imprisonment already served under the sentence to be 266 days not including today.
63 Pursuant to s 6AAA of the Sentencing Act had it not been for your pleas of guilty the sentence I would have imposed is one of 30 months with a non-parole period of 20 months.
64 I make the forfeiture order and the disposal order that have been sought by the prosecution.
65 Mr Dean, I apologise, I cannot recall; did you consent to those orders being made on the last occasion?
66 MR DEAN: They are by consent, Your Honour.
67 HIS HONOUR: Thank you very much.
68 Are there any other matters that I need to address?
69 HIS HONOUR: All right. Well, I am grateful to both of you for the assistance you have given. I will adjourn the court.
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