Director of Public Prosecutions v Dinh

[2016] VCC 2105

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

AT BALLARAT
CRIMINAL JURISDICTION

AP-16-0925

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIN DINH

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Ballarat
DATE OF HEARING:	24 May 2016
DATE OF SENTENCE:	24 May 2016
CASE MAY BE CITED AS:	DPP v Dinh
MEDIUM NEUTRAL CITATION:	[2016] VCC 2105

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

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms D. Caruso
For the Respondent	Mr A. Albert

Pages 1 - 4

 

 

HIS HONOUR: 

1I will order that the Magistrates' Court order of 11 April 2016 be set aside.  In its place, you are convicted and sentenced to four months' imprisonment.  I declare that you have served pre-sentence detention of 103 which will be deducted from your sentence of four months.  On my rough calculation, that means you have got about three more weeks in prison and then you will be moved off to a detention centre and sent home.

2I also order that a forensic sample order and a forfeiture order in respect of the equipment that was found at the premises.  I do not know whether a forensic sample order was taken last time.  Mr Interpreter, can you ask him if a sample was taken?  No.

3OFFENDER:  (Through interpreter)  I'm not aware of it.

4HIS HONOUR:  All right, thank you.

5I will just explain to you, Mr Dinh, if you would not mind interpreting please.  The order I am making in respect of the forensic sample order is that the authorities, I am empowering the authorities to take a swab from your mouth in order to obtain your DNA.  If you refuse to do that, they are empowered to use reasonable force to obtain a sample.  You understand that?  Thank you.

6I think I have to make a s.6AAA declaration.  In your circumstances, but for your plea of guilty, I would have sentenced you to eight months' imprisonment.

7MS CARUSO:  As Your Honour pleases.

8HIS HONOUR:  What that means, Mr Interpreter, if you can tell him, is that his plea of guilty has in effect halved the sentence he would have otherwise got from me because I accept that he is sorry that he has been involved in this and that he is remorseful for where it has left him.  Thank you.

9MR ALBERT:  Yes, Your Honour.

10HIS HONOUR:  Thank you.  Mr Interpreter, thanks very much for your assistance and Ms Caruso, thank you.  I will get these orders signed and then you can take the prisoner.

11MR ALBERT:  On my notification of appeal, Your Honour ‑ ‑ ‑

12HIS HONOUR:  It is just the one, is it?

13MR ALBERT:  It is possess cannabis, Charge 2, struck out, that is the note that I've got.

14HIS HONOUR:  Yes.

15MR ALBERT:  Charge 3, theft.  See Charge 2, which means struck out as well.

16HIS HONOUR:  Yes.  The problem is it is on the appeal paperwork.

17MR ALBERT:  It is on the notification, I am not sure if that is just the record of it.

18HIS HONOUR:  I am assured it has been appealed.  I know under this computer system, two things have got to happen with these other two charges, one or either of the two things.  One is, you can withdraw them or alternatively, I will dismiss the appeal.

19MR ALBERT:  I will withdraw them, Your Honour.

20HIS HONOUR:  Thank you.

21MR ALBERT:  It is interesting because sometimes they do appear, sometimes they do not appear.

22HIS HONOUR:  I know.

23MR ALBERT:  When they do appear, it is usually we have a look at it and it is not appealed.

24HIS HONOUR:  It is a mistake, yes, I know.  It has been common up here, I have noticed, in Ballarat.  It is just how it is done.

25MR ALBERT:  It is not a major problem except when it is an aggregate sentence or an aggregate fine which we have with the next one.

26HIS HONOUR:  It is always difficult with aggregate fines or aggregate sentences generally.  I will have to deal with that in due course.  So I will just mark Charges 2 and 3 withdrawn.

27MR ALBERT:  We will need to create them and send them up here, Your Honour.

28HIS HONOUR:  Yes, I understand that.  Are you happy with that process, Ms Caruso?

29MS CARUSO:  Yes, Your Honour.

30HIS HONOUR:  I will sign the orders.

31MR ALBERT:  The other possibility why they are there, just thinking about it, Your Honour, the recent authorities which say that in a situation where charges are withdrawn for example on the basis of an agreement, there is power now to reinstate them.

32HIS HONOUR:  Yes.

33MR ALBERT:  Maybe that is the reason why they are there, but if the appellant decides not to appeal the charges, you cannot force them to.

34HIS HONOUR:  No, I know.  Absolutely not.

35MR ALBERT:  So it is a bit of a quandary.

36HIS HONOUR:  It is.  Do you need to see your client?

37MS CARUSO:  Yes.

38HIS HONOUR:  Officers, would you just leave Mr Dinh here for a short time so Ms Caruso can speak with him and then you can take him.

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