Director of Public Prosecutions v Dinh

[2019] VCC 709

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-02182

DIRECTOR OF PUBLIC PROSECUTIONS

v

VIET DINH

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	9 May 2019
DATE OF SENTENCE:	17 May 2019
CASE MAY BE CITED AS:	DPP v Dinh
MEDIUM NEUTRAL CITATION:	[2019] VCC 709

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Devlin	Office of Public Prosecutions
For the Accused	Mr M. Sharpley	Valos Black

HIS HONOUR: 

1Viet Man Dinh, you have pleaded guilty to one charge of cultivation of cannabis simpliciter.  You are now 26 years of age, you are a citizen of Vietnam and have no prior convictions in this country.  Yours is a situation where deportation is likely but in circumstances where if you get a sentence of less than 12 months, you can at least fight that out.  I have now had presented to me a bridging visa and I take that into account.

2The circumstances of the offending are that in May 2018 police executed a search warrant at a property in Leongatha.  They smelled cannabis and announced their presence at the front door.  No one answered.  After a while, they forced the front door and entered and people were seen running out the back.  You ran and were effectively caught by police and were subsequently interviewed. 

3The reality of it all is, we know very little about the circumstances of all this.  A very significant amount of cannabis was found inside that house but of course, you are charged with simpliciter and I could not sentence you on the basis that you were aware of the extent of the 206 plants, as I recall or the level of your involvement.  You could have been there for 10 minutes for all I know.

4You, as I said are now 26 years of age.  You were born in Vietnam.  You came to Australia in 2015 on a student visa.  You have made payments of a lot of money since coming here which has probably been contributed to by your parents.  You were involved in a hospitality course in Adelaide while undertaking English studies.  You have got some level of success in that and in 2016, transferred to a course in Melbourne.  You continued with that course, you were living in rented accommodation in Sunshine and then you and the co-offender became friends.

5You had agreed to assist him with work on the farm and the plea obviously acknowledges that you were aware of the crop that you were assisted involving the cultivation of.  I, as I say, have got no idea surrounding backgrounds and give you the benefit of the doubt in respect to that.

6The circumstances are that you have now done 380 days in custody and in my view, that is more than sufficient for the crime that you have pleaded guilty to.  The prospects of your rehabilitation are really up to you.  The risk of you reoffending is problematic.  What I am going to do - your co-accused was sentenced to be imprisoned for 380 days.  That was at the request of his own counsel, so that he could do an extra week and be deported in a much more orderly fashion.

7You are in a different situation in that you actually have some chance of remaining in this county and I think that, in fairness to you bearing in mind you have never made a bail application, from what I can see, I should at least give you that opportunity of fighting it out.  The fact that I declare a period of time less than what you have served, does not change how long you have served and I think the period of time that I declare is ample. 

8What I am going to, as you have been spoken to by your counsel, is sentence you to be imprisoned for a period of 350 days.  In this situation, so to enable you to be released in Melbourne, I will direct that 349 days be reckoned as having been served under that sentence.  Section 6AAA, 18 months.

9MR DEVLIN:  Yes, Your Honour.

10MR SHARPLEY:  As Your Honour pleases.  I should (indistinct) that this fellow is a bit different where 464 comes into play, too.

11MR DEVLIN:  That is what I was going to mention.

12HIS HONOUR:  No, I will make a 464 for him.

13MR DEVLIN:  And that was not opposed.

14HIS HONOUR:  All right.  Well in these circumstances, I will grab the 464.  I must advise you, that order having been made, you provide a saliva sample to police within the next 28 days and you must understand that if you refuse to provide such a sample, police may use reasonable force to take it from you.  When that order is - when I have the actual paperwork of that order, I will sign that and forward it to your solicitors.

15MR SHARPLEY:  Yes, Your Honour.

16HIS HONOUR:  Yes.  And it will be for saliva only.

17MR SHARPLEY:  Yes.

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