Director of Public Prosecutions v Dinh

[2015] VCC 221

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-02366

DIRECTOR OF PUBLIC PROSECUTIONS

v

TY KHAC DINH

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2015
DATE OF SENTENCE:	27 February 2015
CASE MAY BE CITED AS:	DPP v Dinh
MEDIUM NEUTRAL CITATION:	[2015] VCC 221

REASONS FOR SENTENCE
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Subject: Cultivation of a narcotic plant – cannabis – 56.03 kilograms cannabis.
Catchwords: Criminal law – sentencing – drug offences – cultivation of a narcotic plant – cannabis.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited: R v Verdins (2007) 16 VR 269.
Sentence: 515 days imprisonment, and 12 months Community Correction Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Skepper	Office of Public Prosecutions
For the Offender	Ms C. Lynch	Revill and Papa

HER HONOUR:

CHARGE

1Ty Khac Dinh, you have pleaded guilty to one charge of cultivation of a narcotic plant, cannabis, between 26 August 2013 and 30 September 2013, in a commercial quantity.  The maximum sentence for cultivating a commercial quantity of cannabis is 25 years' imprisonment.

CIRCUMSTANCES OF OFFENDING

2The circumstances surrounding your offence are set out in the prosecution opening.

3When the police searched a property owned by your wife, at 2 Newark Court, Allanvale, they located an elaborate hydroponic system for growing cannabis.  The system was set up in four rooms of the house.  The rooms were sealed with plastic lining and contained sophisticated lighting, watering and air flow systems. 

4A total of 92 growing cannabis plants were seized from the property, having a combined weight of 49.0801 kilograms.  Police also found cannabis plant material in the process of being trimmed and dried, the total weight being 6.95 kilograms.  Total weight of the plants and cut and drying material was 56.03 kilograms.

5You were found at the property and you were arrested and transported to the Keilor Downs Police Station.  When you were interviewed you denied any knowledge of the hydroponic system and you denied cultivating the cannabis in the house.

6You have been in custody since your arrest on 30 September 2013. 

7You and your wife were separated at the time of your offending. 

8You instructed your counsel that your motivation for performing the function of a crop sitter was in order to pay gambling debts in the vicinity of $4,800.  In return for your role as a crop sitter, your debt was to be wiped out and you would also receive $5,000 on completion of the harvest.  You planned to use the money you received on the cultivation of the crop to go back to Vietnam to visit your elderly mother.

PRIOR OFFENCES

9You have two relevant priors.  On 5 August 2010, at Sunshine Magistrates' Court, you were charged with cultivate cannabis.  You were sentenced to five months' imprisonment to be served by way of an intensive corrections order.  On 18 February 2005, at Sunshine Magistrates' Court, you were charged with traffic cannabis, possess cannabis and theft.  Without conviction, you were sentenced to pay an aggregate fine of $1,000.

PERSONAL CIRCUMSTANCES

10Your personal circumstances are that you were born on 20 February 1969 in Vietnam.  You attended school until Grade 6 and worked as a fisherman.  You married your wife in Hong Kong in 1992 and came to Australia with her in 1993.  You have three daughters aged 20, 14 and 12.

11After your move to Australia you set up a sewing business, sub-contracting to a number of clothing factories.  Unfortunately that business ceased in 1997 due to most clothing being outsourced to China.  Since that time you have worked in poultry factories and at the time of your arrest you were employed by Videra factory as a chicken boner.

12Since your remand, your wife has continued to support you and has visited you in prison.  It is anticipated that you will reside with her and your children upon your release.

13You do not suffer from drug addiction of any kind, nor do you suffer from any known psychological or psychiatric illnesses.

MITIGATING FACTORS

14In mitigation of your offending, your counsel relied on a number of matters.  They included your plea of guilty which the prosecution accepted have been made at the earliest opportunity.  The fact that there has been considerable delay in the resolution of this matter.  A search warrant was executed on 30 September 2013.  At the committal hearing a plea was entered on 9 December 2013.

15Counsel also submitted that you had difficulties with the English language so that your experience of the prison environment on remand was more burdensome or more difficult for you than others given this language difficulty.

16Your prospects of rehabilitation were submitted to be good.  You had no issues with drug or alcohol.  You had a good work history and an offer of employment upon your release.  This was confirmed in a letter from the manager of a juice and food bar in West Sunshine.  He stated that a job would be available for you on your release.

17Counsel also pointed to the fact that while you have been in custody, you have availed yourself of an opportunity to engage in programs in prison, including creating simple text for employment purposes and doing course in hygiene practice for food safety.

18It was submitted that your first experience of custody had been a salient one and that a term of imprisonment equivalent to your total pre-sentence detention, together with a community corrections order would be an appropriate disposition.  The prosecution appeared to accept that this was not inappropriate.

SENTENCING REMARKS

19In sentencing you, I have taken into account the provisions of s.5 of the Sentencing Act and all the mitigating factors mentioned by your counsel.  I accept that you entered your plea of guilty at the earliest opportunity and I have given you a discount.  In doing this, I have accepted that your plea of guilty is an indication of your remorse.  I have accepted that there was a considerable delay in this matter and I have taken this into account.

20I have made some small allowance for your language difficulties, however I note that you have been in Australia for 22 years and I find it a little bit difficult to accept that the language skills necessary in the prison environment would be beyond your grasp.

21I accept that your prospects of rehabilitation are good, given your history of good employment and your lack of psychological and drug related problems.  However, I do have some concerns in relation to the fact that you committed this crime in order to deal with a gambling debt.  It is for this reason that the community corrections order will contain a stipulation that you attend for counselling and/or treatment in relation to gambling.

22Before I sentence you, I just want to remind you that although it is not alleged that you had any financial interest in the cannabis crop that was grown at the house, you played an important role in acting as a crop sitter.  Unfortunately your motive to pay off gambling debts is not uncommon in cases such as this.

23General deterrence has to be an important sentencing consideration in this case.  I consider that general deterrence has been achieved by the fact that you have served 515 days in custody.  I accept that this has been difficult for you and that you have learned your lesson.  I accept that it is in the best interests of both yourself and the community that the rest of your sentence be by way of a community corrections order.

24I sentence you to 515 days' imprisonment.  On your release you will be placed on a community corrections order for 12 months.  Special conditions will be that you attend for treatment and rehabilitation to reduce re-offending, that you attend offending behaviour programs and that you accept supervision.

25In relation to pre-sentence detention, I declare 515 days pre-sentence detention, 6AAA is five to serve three and a half. 

26Effectively we have got a community corrections order if you can take it to your client and perhaps have it explained to him.

27MS LYNCH:  Certainly.

28HER HONOUR:  You will note that the treatment program is in relation to his gambling issues.

29MS LYNCH:  Certainly, Your Honour, I'll explain that to him.  If I could just approach him, Your Honour.

30(Community corrections order signed and acknowledged.)

31HER HONOUR:  It is important that you realise that if you were to commit another offence while you are on this community corrections order, you would come back before this court and you would go in and serve more time.  He has got to keep on the straight and narrow.

32Is there anything arising?  Are there any compensation or forfeiture of anything?

33MS SKEPPER:  No, Your Honour, he has already been profiled and the items were already (indistinct words).

34HER HONOUR:  All right, thank you.

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