Director of Public Prosecutions v Do

[2019] VCC 1841

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-02365

DIRECTOR OF PUBLIC PROSECUTIONS

v

VIET DO

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	23 July 2019
DATE OF SENTENCE:	11 November 2019
CASE MAY BE CITED AS:	DPP v Do
MEDIUM NEUTRAL CITATION:	[2019] VCC 1841

REASONS FOR SENTENCE
---

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry	Office of Public Prosecutions
For the Accused	Mr M. Tovey QC	Melasecca Kelly and Zayler

HIS HONOUR: 

1Viet Van Do, you have pleaded guilty to one charge of cultivation of cannabis in not less than a commercial quantity and one summary offence of dealing with property, namely cash, suspected to be the proceeds of crime.

2On 13 March 2018, police observed two cars, one red and one a silver Volkswagen, at a rural property in Farrells Road, Warrion.  Warrion is a small town about 20 kilometres from Colac.  A warrant to search the premises was then obtained and police arrived back at about 5 pm.  The red car was still there but the silver VW had gone.  Police hid and kept the premises under surveillance.  Eventually, the silver VW returned to the property driven by you.  A female passenger was also present.  You got out of the car and went towards the buildings.  When the police came towards you, you ran, eventually being caught in the nearby paddocks.  The female passenger tried to drive the VW away but was stopped before she could get the car started.  A third person, a female, ran from the property and disappeared into the paddocks.  She was not arrested.

3When you were arrested, you had $2,740 in cash on you.  A search was then conducted of a large shed.  It had been converted into a sophisticated cannabis production factory or indoor hydroponic cultivation operation.  There was a total of 371 cannabis plants and a significant amount of drying cannabis in plastic bags.  The total weight of the plants and drying cannabis was 122.47 kilograms.

4As mentioned the cultivation methods were sophisticated.  The lighting that had been installed was such as to allow these plants to be grown indoors and out of sight.  The power had been bypassed to allow for higher volumes of electricity to be consumed without detection and without cost.  The whole operation involved expensive equipment, indicating that significant resources had been expended on the basis that large quantities of cannabis would be cultivated, leading to significant profit.

5All the features of this property are what is often found in suburban or country houses or sheds that have been converted into cannabis production factories.  The crime is hard to detect and it is very difficult to establish who are the main or central players in the cannabis production and distribution chain.  I will discuss in more detail your role shortly.

6Before dealing with that, it should never be forgotten that the cannabis that is grown by the cultivators ultimately has serious effects upon many users and our community bears a great cost while the entrepreneurial cannabis cultivators profit significantly.

7You were charged with cultivating not less than a commercial quantity of cannabis on the day of the police raid, being 13 March 2018.  You claimed in your record of interview that you had never been to this property before.  You claimed you were in Colac to go fishing with friends through the day and for unknown reasons, you went to find and look for a female acquaintance of your fishing group and to assist her in restarting her car, which had a flat battery. 
It was this, you said, that brought you to the property for the first time.  All of that was completely false.

8The prosecution investigations including DNA items found in and around the cannabis shed makes it plain that you had been on the property and for purposes connected with the cannabis production and more than just 13 March 2018.

9The tools found in your car on 13 March together with purchases from a Bunnings store make it clear that you were involved in what was needed to assist in the cultivation of this cannabis, using the hydroponic methods that were detected.

10The prosecution case was set out at paragraph 31 of the Crown opening.  It has been referred to on a number of occasions and was expanded upon by the prosecutor in the course of the plea.  I will incorporate paragraph 31 into these reasons, which presently is not in front of me.

11On the plea, it was said by the then prosecutor, Mr Moore, that there were purchases and supplies from Bunnings and your assistance to others was through this process and you became aware that the cannabis crop was as large as it was.  As it was, the assistance that you provided in buying equipment and transporting it to the site.  It was put by the prosecution that you were not at the level of a principal and you cannot be dealt with as a principal. 
The prosecution said that you were a cog in the wheel of the cannabis production but an essential cog.  I will return to findings of fact shortly.

12The crop at the point of the raid was 3.7 times the commercial quantity measured by plants and 4.88 times the commercial quantity measured by weight.  Of course, the weight at the time of the raid is an artificial construct because the intent was to grow the plants to as big as and as productive as they could get before harvesting.  Thus, in this case, the fact that there was so many plants is indicative of the very significant size of this criminal enterprise.  However, as with other drug offences, the seriousness of cannabis cultivation is measured very much by quantity.  As such, you will be sentenced for the quantity at the time of the raid, no more, no less.

13As to your involvement, the Court of Appeal in July 2019, just prior to when your plea commenced in the case of Nguyen v The Queen and Ho v The Queen [2019] VSCA 134 at paragraph 59 emphasised that in assessing the gravity of an offence of cultivation of cannabis, a sentencing judge must look at all of the facts and circumstances rather than rely on shorthand ways of describing the role of an accused. The joint judgment of Priest and Beach JJA stated at a paragraph 59:

'While cases involving the commercial cultivation of narcotic plants are often categorised by reference to whether the accused is, on the one hand, a crop sitter or played some ancillary role or, on the other hand, was an organiser or played a principal or proprietary role, the issue of the role of an offender involved in such offending is not a binary one.  Moreover, while the term "crop sitter" may be a useful shorthand description in a case where it is clear that the offender's role is a low-level one, it is not a term of art of fixed and precise meaning.  A sentencing judge is required to sentence an offender found guilty of commercial cultivation of a narcotic plant by reference to all the facts of the case (including all of those able to be gleaned about the offender's role and involvement) and not by reference to whether the offender can be given some particular appellation.'

14In an earlier cultivation case, our Court of Appeal cited the important High Court decision of Olbrich in which the plurality in the High Court stated as follows:

'It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution.  Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals.  However, the utility of such an exercise is necessarily limited by the extent by which the material facts are known.  What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate.'

15In my respectful opinion, there is further assistance to be gained with respect to fact finding in cases of this kind via the expanded reasoning of the High Court in Olbrich.  Olbrich was a case of importation of heroin.  Mr Olbrich was arrested at the airport with heroin in his luggage.  Mr Olbrich claimed his role was merely as a courier and not a principal in the importation enterprise.  He said as much at the airport upon arrest and he gave evidence on his plea.  The sentencing judge did not accept Mr Olbrich's evidence.  The New South Wales Court of Criminal Appeal allowed his appeal.

16I interpose here that Olbrich was about importation but references from the High Court decision that I am about to cite can be adapted to this case of cultivation.  In Olbrich, the High Court noted that the New South Wales Court of Criminal Appeal held:

'The identification of the precise nature of the involvement of the accused in an active importation of drugs is an essential aspect of the sentencing process.'

17In respect of this and in contrast, the High Court held as follows:

'We do not accept that the identification of the precise nature of an accused's involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process.'

18The High Court then went on to set out its reasons at paragraph 14 what I have already cited in these reasons.  The High Court then went on:

'In the present case, the precise nature of the involvement of the respondent in the act of importation was known at least in the sense that it was known that he had brought drugs into Australia.  He was the importer.'

19The High Court then went on:

'Whether others stood to gain from the respondent's conduct does not, it seems to us, affect what sentence should have been passed on him.  That depended on what he had done and who he was, not on what others may have hoped to gain from his activity.  But even if this were thought to be a useful inquiry, it was one that could not be pursued in this matter because there was no evidence about it.'

20As to the determining of the role of the accused man in this case or indeed any offender, it depends on the evidence or what, if anything, can be properly inferred from the evidence including though with necessary caution the absence of evidence.  As to the onus and standard of proof in sentencing in Olbrich, the High Court stated:

'Courts of Criminal Appeal in Australia have considered the subject of fact finding for sentencing many times in the last 30 years.  Not all of the questions that have been examined in those decisions must be must be considered now.  For present purposes, it is enough to say that we reject the contention that a judge who is not satisfied of some matter urged in a plea of behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt.  The incongruities that would result if this submission were accepted are well illustrated by the present case.  The respondent swore that he was a courier but the judge disbelieved him.  To require the judge to sentence the respondent on the basis that he was a courier is incongruous.'

21In this case, you have pleaded guilty, Mr Do, to cultivation of 371 cannabis plants weighing 122 kilograms.  On arrest, you were at the site where the plants were growing in a secretive, sophisticated way that has been described. 
You are a man that has lived in this country for over 20 years.  You were an astute successful businessman.  This is a small part of the background to the next fact which was that when you were discovered by the police at the site where the cannabis was being cultivated, you ran.  Endeavouring to escape the police through the paddocks for some time. 

22In my view, your immediate conduct is because you knew what you had been doing was plainly criminal.  Further, the physical evidence revealed that you had driven in the direction of the shed full of cannabis on a number of occasions.  The DNA evidence revealed that you had been in the vicinity of the shed in the past.  Your explanations at the time as to why you were there were nonsense explanations and your denials of being on the site only once were outright lies.  I have no doubt that you told these lies because you knew your attendance at the site was because you were involved in the cultivation.

23That said, the prosecution has put the case against you in a particular way as I set out earlier or referred to earlier in paragraph 31.  This was said to be the agreed basis as to your role.  You pleaded guilty on this basis.

24As discussed in Nguyen, a case referred to earlier, Priest and Beach JJA said the sentencing judge is not bound as to the facts.  It is necessary that counsel for an accused is well aware of a sentencing judge's concerns as to any agreed facts and is provided full opportunity to deal with all those matters by reference to the evidence or by calling evidence on the plea.  Counsel in this matter was provided with that opportunity to deal with any concerns that I had as to your role.

25Your counsel, Mr Tovey QC, made clear by reference to the Court of Appeal decision in Ristevski that only rarely may a sentencing judge find an aggravated fact against an accused by going behind an agreement as to the facts.  As to what the Court of Appeal said in Nguyen, paragraph 62, the following was set out by Beach and Priest JJA:

'Before the judge, and in this Court, the parties accepted that the judge was not bound by any agreement that they may have made as to the facts upon which the applicants fell to be sentenced.  The applicants' position was, however, that caution needed to be exercised before there was any departure from the factual basis agreed between the parties.  So much may be accepted.'

26The third point that can be derived about this matter of agreed facts is set out in Best v The Queen [2015] VSCA 151 at paragraph 65, where the Court said the following:

'Similarly, where the parties have, for the purposes of sentencing, agreed upon an agreed factual basis of an offence, although a judge is not necessarily bound by the agreed facts, such agreed facts should not be departed from without the matter being raised with counsel, and counsel give the opportunity to address [the] argument.  And, of the utmost importance, a person cannot (generally speaking) be sentenced for conduct which might constitute [another crime].'

27Your counsel submitted that you were involved in the cultivation of this cannabis solely because you had formed an extramarital affair with the woman that was in the VW car with you.  It was said while you were infatuated with her, you blindly and foolishly helped her with her role with the crop.  It was said that the cultivation more her undertaking and you were at the very margins as a helper.  The evidence relied upon was what you said at an interview with a medicolegal psychologist, Mr Armstrong.

28As noted, your record of interview contained false denials as to why you were in the area and at the crop site.  Your explanations do not give me any confidence as to your credit or reliability.  What was reported to the psychologist does not advance matters much at all.  Indeed, the psychological report and opinions itself had aspects that caused me concern but in the end I am unable to determine what was the roles of anyone connected with this crop.  I am unable to say who led and who, if anyone, was subservient to anyone else. 
You were someone who at some point purchased equipment and assisted. 
You were a cog in a wheel, an essential cog.  You are not a principal and I do not find that you were or sentence you on that basis.

29Thus, as set out in Olbrich, I simply deal with the facts and circumstances of this enterprise and what can be safely concluded as to your connection to it.  This was a very sophisticated and large cultivation.  In my analysis of other cases of cultivation in terms of quantity, this case looms as up with the largest.  The purpose was to make significant profit for those connected to the crop, whoever that was.

30As the Court of Appeal made clear, deterrence must be the primary sentencing purpose for all those involved in cultivation at whatever level of the participation.  Every participant plays a role in what is a significant criminal undertaking.

31As to your personal circumstances.  You are now 37.  You have never been convicted of any offences in the past.  This is a matter important in mitigation of penalty.  Your upbringing involved dedicated, hardworking parents in Vietnam who sent you and your siblings to Australia in the 1990s to study.  You and your siblings then sponsored your parents to join you in Australia.

32You arrived in Australia from Vietnam at the age of 17.  To your credit, you studied English and then completed a degree in engineering, graduating in 2006.  You took up full time work after graduating with a solar panels firm that provided you with work experience while in the third and fourth year of your degree.  You remained with that company for seven or so years.  You then set up your own successful solar panel business.

33You married after graduation and have been in a relationship with your wife for many years.  You have two children.  She too is successful in business. 
You and she have been able to purchase and own a folio of properties rented out through Airbnb.

34You kept the reason for your initial incarceration from your children.  That was complicated by your return to custody after the plea.  Thus, I am of the view that you do prison harder because of your concerns about your children.

35Your wife stands by you, notwithstanding the circumstances of your offending in which you say that you were having an affair with the woman who was in the car when you were arrested.  As mentioned, you were referred to a psychologist, Mr Armstrong, for a medicolegal report which was tendered on your plea.  I did not find the report of much assistance.  You do not have any psychological or mental health problems of relevance to your offending or my sentencing task.

36For some reasons connected with the variable testing results across the standard sub-testing domains, a full scale IQ could not be determined by the psychologist.  That said, he then went on to conclude that you were of
low-average to average range of intelligence.  Putting that inconclusive testing to one side, in practical terms, you are a qualified engineer having secured a degree in a very short time after taking up English as your second language.  You have worked in the engineering industry for around a decade.  You have established and operated profitable businesses.  I have no doubt that you are an intelligent, astute businessman who would have had no doubt as to the criminality of the cultivation that you were involving yourself in.  There is nothing in your psychological make up that in any way diminishes your moral culpability, which remains high.

37While in custody, you have busied yourself since your arrest and on the recommendation of your medicolegal psychologist, you plan to undertake psychological treatment.  There was a letter from the proposed psychologist but it was of limited value to my sentencing task, save that you were willing to take up psychological treatment for what the psychologist sees as your problems in coping with the death of your father and the like.

38In the course of these reasons, I refer to the sentencing purposes of denunciation and deterrence.  These are the principal sentencing purposes.  There must be no ambiguity that cultivation of this pernicious drug of addiction warrant significant punishment.

39Your rehabilitation is not overlooked.  It would seem likely that you would have the capacity to be a law abiding citizen into the future.  I am confident you will do so and that you yourself are deterred from further involvement in crime of any sort by reason of your involvement in this case and your incarceration.

40Your counsel initially submitted that the time that you had served in custody to that point ought serve as the minimum non-parole period.  In my view, the time on remand at that point fell short of what was required to meet the sentencing purposes for this substantial crop.  For the summary offence, in my view, the proposition that there be a fine is an appropriate one.

41You indicated a plea of guilty after the committal and following negotiations with the prosecution and came up with the agreed statement of facts that I have referred to.  Yours is not the earliest plea however, you will receive a benefit because of your plea and the consequent savings to the community.  Your plea does indicate that you take responsibility for your offending.

42The Court of Appeal has in recent decisions confirmed penalties for the cultivation of commercial quantity for those who were found to be at the very lowest level of cultivation enterprise in a range of near on four years or three years and nine months and minimum terms, two years and four months and the like.  But as the High Court emphasised, it is individualised sentencing that I must impose.  What is just and appropriate for this serious example of cultivating a commercial quantity committed by you as a man who has no prior convictions, who has established himself as a law abiding citizen.

43Doing the best I can, Mr Do, taking into account all matters for you and against you, I impose the following sentence.  For cultivation of not less than the commercial quantity, I sentence you to two years and nine months and I fix a minimum non-parole period of 18 months.

44I declare that you have served 379 days.  This figure having been reckoned,
I will enter that declaration into the records of the court so the prison authorities are left in no doubt that you are served 379 days of the sentence that I have just imposed. 

45In respect of the summary offence relating to the proceeds of crime, you are convicted at fined $3,000.

46Had you pleaded not guilty to these offences and been found guilty of them,
I would have imposed a sentence of four years and nine months with a minimum term of three years.

47There is a range of applications made for forfeiture and the like, and I will sign those documents.

48MR McKENRY:  If Your Honour please.

49HIS HONOUR:  The disposal order is made in respect of this matter,
Mr McKenry.  All aspects of this crop have been dealt with by the courts?

50MR McKENRY:  They have.

51HIS HONOUR:  All right.  In respect of the forfeiture order, it is a range of materials that are going to be forfeited.  They are the only orders sought?

52MR McKENRY:  Is the money included in the forfeiture order?

53HIS HONOUR:  I do not know that it was.  Yes, it is.

54Mr Do, thank you.  You have to head downstairs and return back to the prison and matters of parole and all that will be explained to you by your solicitors. 

55Thank you very much for your assistance, Mr Tovey, in a matter that I found a little bit more difficult than others.

56MR TOVEY:  Thank you, Your Honour.

57HIS HONOUR:  Thank you.

‑ ‑ ‑