Director of Public Prosecutions v Dinh
[2016] VCC 1867
•3 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-16-01423
Indictment No. G11359739
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| XUAN LONG DINH |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 October 2016 |
| DATE OF SENTENCE: | 3 November 2016 |
| CASE MAY BE CITED AS: | DPP v Dinh |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1867 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Cultivation of a commercial quantity of cannabis – plea of guilty – crop sitter – no prior convictions or anything pending – sentencing principles – whether to impose a sentence without a non-parole period – these are expired in 2012 – desire of the accused to return to Vietnam – strong likelihood accused will be deported
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, s72(A); Crimes Act 1958, s464ZF
Sentence:Total effective sentence of 18 months’ imprisonment without parole. Section 6AAA declaration: 3 years’ imprisonment with a non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Lisa Andrews | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr Chris Hooper | Richard Revill Lawyers |
HIS HONOUR:
Introduction
1Xuan Long Dinh, you have pleaded guilty to one charge that between 10 April 2016 and 22 May 2016, you cultivated a narcotic plant, namely Cannabis L, in a quantity that is not less than the commercial quantity applicable to that narcotic plant.
2That offence is contrary to s72A of the Drugs, Poisons and Controlled Substances Act 1981 which carries a maximum penalty of 25 years’ imprisonment.
The facts
3On 22 May 2016, police obtained a Search Warrant to search premises at 32 Kuranda Street, Langwarrin.
4At about 2.20pm on that day, were you seen in the driveway of those premises. You were approached by police, who informed you that they had a Search Warrant. When you were asked what was in the premises, you replied “marijuana”. You were placed under arrest, and you were conveyed to a police station, where you were interviewed.
5Police entered the premises. What they observed was that seven rooms in the premises were set up with a hydroponic system to grow marijuana. There was also a nursery in which seedlings were grown.
6There were a total of 274 plants growing at the premises with a total weight of 105.5.05 kilograms.
7The setup at those premises was sophisticated. Each of the seven rooms were set up with hydroponic light shades, blinds and transformers, charcoal filters and extraction fans. The electricity fed into each of the rooms was subject to an electrical bypass.
Your admissions
8During the record of interview you admitted the following:
·The plants had been growing at the premises for about six weeks.
·The plants were delivered to the property by another person who gave you instructions on how to grow the plants.
·You were unaware of the identity of the person who delivered the plants and provided you with growing instructions. Any contact that you wanted to have with that person was through an intermediary.
·Those premises were leased from another person. You were the lessee, but you did not pay the rent.
·You attended those premises most days to tend the plants, and do work necessary to maintain their growth.
·You were not aware that an electrical bypass had been installed.
·You were to receive twenty per cent of the profits from the sale of the crop.
·Your decision to involve yourself in the cultivation of the crop was due to the poor financial circumstances of your family and your own difficult financial circumstances.
The level of involvement
9The prosecutor submitted that you ought to be regarded as a crop sitter and not as an intermediary or principal in this cultivation operation.
10Therefore, I accept that the admissions you made should properly characterise you as a crop sitter. I also accept that what you were to be paid was uncertain, and dependent upon the size of the crop and what it could be sold for. This is unlike many situations of crop sitters who are paid an amount for cultivating a crop.
Your plea
11It is clear you made full admissions of your involvement in the cultivation of the crop during the record of interview.
12At a committal mention on 15 August 2016, you pleaded guilty to the charge. What is clear from the record of interview is that once you made those admissions, you realistically had no defence to the charge, and it was inevitable that you would plead guilty.
13You were born on 19 August 1974. You are now 42 years of age. You are a married man with a child. Your wife, your 14-year-old daughter, your parents and other members of your family reside in Vietnam. You apparently have no family or friends in Australia and, indeed, your connection with Australia appears to be insignificant.
14You came to Australia in about 2008 on a student visa. You attended a college at some expense to your family. They paid $15,000 but you did not complete the course you enrolled in, with the result that the investment made by your family was lost.
15In Vietnam you worked in very basic jobs in restaurants as a fish scaler and in other similar employment. It was described by your counsel as low‑level survival work, and it would appear that is also an apt description to apply to the life your family has in Vietnam.
16Your father is 87 years of age. He suffers poor health. Your mother is 86 years of age. You are one of a family of ten members. It would appear that the plan was for you to earn income which would able them to survive at a decent level. Your counsel told me that there is no equivalent to the medical care or social security safety net in Vietnam which is available in Australia. You felt some responsibility to financially support your family as a result.
17Your visa expired in 2012. You have remained in Australia unlawfully since that time. Your counsel told me that you will leave Australia and return to Vietnam as soon as you are able to. It would appear from the material I have been provided recently that the relevant federal minister will probably deport you in any event.
18You have no prior convictions. You have nothing pending. Other than your involvement in this episode of cultivation, you appear to have lived in Australia unnoticed by policing authorities.
19I accept that you are remorseful and that you were candid in the admissions you made when were you interviewed by the police.
20Your counsel submitted that I should sentence you to a term of imprisonment without a parole period because no point will be served by you being on parole, because you propose to leave Australia as soon as you have served your sentence of imprisonment. That appears to me to be a sensible way to sentence you.
21I can understand why you were attracted to the easy and quick money that can be earned through cultivating drugs of this kind. It would appear that you did so because you were living in circumstances which were close to poverty, and you were unable to support your family as you hoped you could; however, cultivation and the trafficking in drugs which follows successful cultivation cannot occur without the involvement of people like yourself. You obviously gave no thought to the scourge that drugs bring to our society, particularly to our youth. Your interest in easy and quick money resulted in you engaging in this conduct without any thought for the damage that drugs cause when they hit the streets.
22The principal sentencing consideration in your case is general deterrence. Individuals who think that they can pick up easy and quick money by engaging in the drug trade need to think again, because they will face an immediate and perhaps stern sentence of imprisonment. Your conduct must be denounced and the community must be protected from persons who are involved in all levels of the drug trade.
23I accept that your involvement in cultivation is at the lower end of seriousness for an offence of this kind.
24I have made paid due regard to the plea made your behalf by your counsel and the factors which I consider are appropriate to moderate the sentence which I must impose on you.
25The sentence I now impose on you is proportionate to the gravity of the offence in the light of the objective circumstances of its occurrence.
26I would now ask you to stand, please.
27On the charge of cultivation, you are sentenced to eighteen (18) months’ imprisonment.
28I declare that the time you have spent in pre‑sentence custody of 165 days is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the Court.
29If it had not been for your plea of guilty I would have sentenced you to three years’ imprisonment with a minimum of 18 months before you would become eligible for parole.
30You can now be seated.
31Ms Andrews and Mr Hooper, anything else?
32MS ANDREWS: Your Honour, there was a Forfeiture Order and a Forensic Sample Order sought.
33HIS HONOUR: Mr Hooper, do you have any submissions you want to make about the application now being made for a Disposal Order?
34MR HOPPER: No, Your Honour.
35HIS HONOUR: Any other order?
36MR HOPPER: The Forensic Procedure Order, I just submit to Your Honour that, given Mr Dinh is to be deported immediately upon his release it would, in my submission, seem to be rather unnecessary, he wouldn’t be allowed back into Australia in any event and, therefore, the execution of the Order would serve no utility or purpose, but it, of course, remains a matter for Your Honour.
37HIS HONOUR: You can take a seat. This is all about collection of intelligence for the purpose of regulation, and the fact that you may well be very right in saying that he will not be allowed back into the country, why does that of itself stand in the way of the purpose served by orders of this kind? Does it?
38MR HOPPER: In my submission it does. The purpose of s464ZF applications are for the detection of future crime. If he is not going to be allowed back into Australia he is not going to be able to commit any crimes in the future, and further, Your Honour, the detection of this offending wouldn’t have been assisted by the use of forensic material. At any event, Mr Dinh was found on the premises and made full admissions. It is not offending of the kind where, in my submission, forensic samples are usually of assistance in the identification of offenders. But my main submission, Your Honour, is that if it is for the detection of future crime, he is not going to be allowed back into Australia, so there will be no future crime.
39HIS HONOUR: Yes, well I am against you, Mr Hooper.
40MR HOPPER: A matter for Your Honour.
41HIS HONOUR: I think all I will do is simply repeat what I said earlier about what I consider to be the purpose of the making of an order of this kind. I will just sign these Orders and I will give him the customary warning.
42Madam Interpreter, I just ask you to remain seated. I am going to give Mr Dinh what is called a forensic warning. If you could just tell him that that is what I am about to do. I have signed an Order which will allow a forensic sample to be taken from you.
43This is a warning that I am obliged to give you. Application was made by the prosecution for the provision of a forensic sample by taking a scraping from your mouth or a blood sample. Having regard to the seriousness of the circumstances of the offending, I find that the granting of the Order is in the public interest, and I note you have opposed that Order. I have made the Order and I have signed it.
44I am required to warn you that if, at the time you are requested to supply a sample of your DNA by a scraping from the inside of your mouth under supervision by an authorised member of the police force, then the sample will be taken in that way. But if, when requested by the officer to provide the sample in that way you either fail or refuse to take the sample, the officer is authorised to obtain a blood sample and to use reasonable force to obtain that blood sample. Do you understand that?
45OFFENDER (through Interpreter): Yes, Your Honour.
46HIS HONOUR: Ms Andrews, Mr Hooper, anything else?
47COUNSEL: No, Your Honour.
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