Director of Public Prosecutions v Dinh
[2012] VCC 937
•25 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02205
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN DINH |
---
JUDGE: | Her Honour Judge Lawson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2012 | |
DATE OF SENTENCE: | 25 June 2012 | |
CASE MAY BE CITED AS: | DPP v. Dinh | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 937 | |
REASONS FOR SENTENCE
---
Catchwords: Criminal law – sentencing – cultivation of a narcotic plant in not less than a commercial quantity, namely Cannabis L – theft – term of imprisonment
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms T. Saville | Mr Craig Hyland, Office of Public Prosecutions |
| For the Accused | Mr A.L. Hands | Luat Tran & Associates |
HER HONOUR:
1 Van Dinh, you have pleaded guilty before me to one charge of cultivation of a narcotic plant in not less than a commercial quantity, the drug being Cannabis L; and one charge of theft. Those charges are serious and Parliament has prescribed maximum penalties; 25 years imprisonment for cultivation in not less than a commercial quantity and 10 years imprisonment in respect to the theft charge.
2 I shall now sentence you on the basis of the Crown Opening there being no exception taken to that opening at the plea hearing.
3 Briefly, following the execution of a search warrant at 15 Thistle Court, Delahey, police located a hydroponic cannabis crop growing in four rooms of a domestic dwelling. In total there were 78 plants located the total combined weight of which was 60.12 kilograms, which is in excess of a commercial quantity which is defined in legislation as 25 kilograms.
4 All the usual equipment and paraphernalia for growing Cannabis L were also located at the house. On inspection an illegal electrical bypass set-up was located. Powercor, the electricity supplier, estimates the loss of value of the electricity was $6903.66.
5 I note that you pleaded guilty at committal mention on 30 November 2011. Your plea of guilty was entered at the earliest opportunity. I note that the plea was subsequently withdrawn due to some issues concerning improper swearing of affidavits in relation to the search warrant that was executed. However following the introduction of remedial legislation your guilty plea was reinstated. I have nevertheless considered that this is an early plea of guilty, and you will therefore receive the full benefit of such early plea, and your sentence will be discounted accordingly.
6 When arrested by the police you were fully cooperative and made full and frank admissions in the record of interview.
7 The value of the yield of the cannabis has been estimated from $55,500 up to a value of $333,000. No evidence of sale was relied upon by the Crown, rather the charges are on the basis of cultivation only and you will be sentenced on that basis. You told the police that you were cultivating marijuana illegally and that you had been hired by others to work at the house, and that you had been there for just over two months. You would go there every day for about two to three hours. You were given $1500 prior to commencement, and you were promised following harvest that you would get 30 per cent of all sales. You were given instructions about how to feed the crop, and you were also aware of the illegal electrical bypass.
8 From your admissions you accept that you played an integral role in ensuring that the crop would come to its fruition. There was no suggestion by the Crown that you were the principal person responsible for the arrangements being put in place for the bypass of the electricity or in establishing the hydroponic set-up. There is no suggestion that you were doing this for anything other than commercial purposes. You told police you were an occasional drug user.
9 A report from Mr Patrick Newton, forensic and clinical psychologist, dated 1 February 2012, was tendered on your plea. It sets out in full detail your history and background. I have had regard to its contents.
10 In brief, he notes that you are a 51-year-old person. You were born in Hai Phong in the northern part of Vietnam. You left Vietnam in 1987 after being discharged from the army. You lived as a refugee in Hong Kong for several years prior to being accepted for resettlement in Australia in late 1989. You are the only member of your family who lives in Australia. You initially settled in Sydney where you obtained various casual jobs through your Vietnamese networks. You have only rudimentary English, and you have had very little by way of formal education or work skills.
11 In early 2011 you came to Melbourne. You Initially travelled to Melbourne with friends and then decided to stay, believing that there was more work available here in Victoria. However, the work opportunities did not eventuate, and you have only had relatively limited work. You began gambling excessively on electronic gaming machines. When Mr Newton assessed you in February 2011, you had some sporadic employment as a handyman.
12 You have had one relationship following arrival in Australia. There is one child born from that relationship, with whom you only have sporadic contact. You told Mr Newton that your present girlfriend is your main support.
13 Mr Newton described a relatively contained history of problematic gambling. You told him that you sold your car and had access to about $15,000 cash. You began frequenting various gambling venues, gambling on poker machines. You had a number of wins, but also a lot of losses and eventually you became indebted to money lenders. It was in this context, that is owing a considerable amount of money to money lenders, that you were pressured to repay the moneys and then you were recruited to assist in the cultivation of this cannabis crop.
14 Mr Newton noted that you told him you were adamant that your own drug use was not the motivation for your offending. You expressed remorse and regret at your actions. He notes symptoms of mild anxiety and depression and that they are sufficiently severe to warrant the diagnosis of an adjustment disorder with mixed anxiety and depressed mood. He said those symptoms were rather more severe than usual in a person facing the prospect of gaol. Further your gambling behaviour was sufficiently severe to meet the diagnostic criteria for pathological gambling. You have ceased gambling upon your arrest. He recommends structured gambling related education and counselling.
15 Having regard to those opinions I consider that your financial difficulties, exacerbated by your problematic gambling behaviour, did provide the context to this offending and provides an explanation for your offending.
16 I accept prior to this offending you were a person who was of good character and I have had regard to the evidence given by both Ms Nguyen and Mr Tran who have known you for some time and who both attested to the fact that they considered you in the past to be an honest person who was very kind and helped others.
17 Mr Hand submitted, having regard to all the mitigating factors, that a wholly suspended sentence was appropriate. I do not accept that submission.
18 The hydroponic cultivation set-up involving a number of grow rooms that were evident at the address in Delahey, together with the quantity of cannabis L upon which the cultivation charge was based being more than twice the commercial quantity as defined by the law, warrants the imposition of a gaol term. In addition there was almost $7000 worth of electricity that was stolen. I consider that no other sentencing disposition is appropriate.
19 In sentencing you I have had regard to your previous good character, the fact that you have been diagnosed with an adjustment disorder that will make prison time more difficult than it would otherwise be for a person of a normal disposition.
20 I have also had regard to your rehabilitation prospects. I consider them to be good given that you have insight into your offending, you accept what you did was wrong and you are genuinely remorseful.
21 I have further had regard to the early plea of guilty and the fact that there is real utility in your plea. You have spared the state the expense and inconvenience of a trial.
22 In sentencing you I must impose just punishment. I must emphasis the need for deterrence, both general and specific deterrence. There is a need for the court to denounce this behaviour and to send the message to others in the community who might otherwise be attracted to undertaking this form of activity that if you are apprehended then you will face stern punishment.
23 The Crown submitted a sentencing range of 14 to 18 months head sentence and a six to 10 month nonparole period.
24 Mr Hands provided the court with the relevant Sentencing Snapshot for cultivating a commercial quantity of narcotic plant to which I have had regard. Although, as noted in the past, courts must approach sentencing statistics with some caution as each case has its own unique characteristics.
25 Mr Dinh, you were engaged in this cultivation over a period of three months. You were actively participating, attending regularly each day, attending to the crop, you were aware of the commercial nature of the operation. In those circumstances, notwithstanding all the mitigating factors which I have referred to, I consider I have no other sentencing option than to impose an immediate custodial sentence.
26 The formal court orders are; Charge 1, you are convicted and sentenced to a period of 15 months imprisonment. Charge 2, you are convicted and sentenced to six months imprisonment.
27 I order that three months of the sentence imposed on Charge 2 be cumulative upon the sentence imposed on Charge 1 and that makes a total effective sentence of 18 months. I order that you serve a period of 10 months imprisonment prior to being eligible for release on parole.
28 Pursuant to s.6AAA of the Sentencing Act but for your plea of guilty I would have imposed a sentence of imprisonment of three years, to serve a minimum of two years imprisonment.
29 I make the order sought pursuant to s.464ZFB of the Crimes Act for the retention of the forensic sample. I note this order was not opposed and I consider it is in the public interest that it be granted.
30 I make the disposal order sought and I make the order for compensation in the sum of $6903.66 payable to AGL Proprietary Limited. I note that this order was not opposed. I think that covers everything.
31 15 days pre-sentence detention is declared and is to be reckoned as served.
---
0
0
0