Director of Public Prosecutions v Doan
[2018] VCC 1362
•24 May 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-18-00017
CR-18-00018
CR-18-00019
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HANG THI DOAN |
MAI THI NGUYEN
THI THU NGUYEN
‑‑‑
| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 May 2018 |
| DATE OF SENTENCE: | 24 May 2018 |
| CASE MAY BE CITED AS: | DPP v Doan & Ors |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1362 |
REASONS FOR SENTENCE
‑‑‑
Subject: CRIMINAL LAW
Catchwords: Sentence – three co-accused – plea of guilty – one charge of cultivating a narcotic plant in a commercial quantity – crop-sitters
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991
Cases Cited:
Sentence:Total effective sentence of two years and six months’ imprisonment with a non-parole period of 18 months
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| APPEARANCES: For the Director of Public | Counsel Mr P. Pickering | Solicitors Office of Public Prosecutions |
| Prosecutions | ||
| For Accused Doan | Ms A. Liang | Giorgianni & Liang Lawyers |
| For Accused Mai Nguyen For Accused Thi Nguyen | Mr J. Miller (Plea) Mr J. Valos (Sentence) Mr M. Sharpley (Plea) Mr J. Valos (Sentence) | Valos Black & Associates Valos Black & Associates |
HIS HONOUR:
1Hang Doan, Mai Thi Nguyen, and Thi Thu Nguyen, you have each pleaded guilty to one charge of cultivating a narcotic plant, namely cannabis, in a quantity not less than the commercial quantity applicable to that narcotic plant. The maximum penalty for this offence is a term of imprisonment of 25 years.
2The facts of the offending are as set out in the prosecution opening which was tendered upon your plea as Exhibit 1. I do not propose to recite those facts in full, but I direct that a copy of the prosecution opening be annexed to these reasons for sentence as the agreed factual basis upon which you have pleaded guilty.
3In short, on 5 June 2017, police attended at a residence in Williams Landing with a search warrant. Your co-accused, Quan Nguyen, was present at that address, and upon discovery of 50 cannabis plants at the property, he was arrested. Police officers analysed mobile phones found at the address and identified a number of addresses of interest in the suburb of Point Cook.
4A few hours later on that day, police attended one of the properties of interest located at 5 Marble Road in Point Cook. Police observed you, Thi Thu Nguyen, driving your gold 2004 Volkswagen away from the property with Mai Nguyen in the passenger seat, and the vehicle was intercepted. A search of the vehicle was conducted, and police located keys and garage remotes to four residences.
5Police officers searched the property at 5 Marble Road, locating 140 plants with a total processed weight of 12.79 kilograms. These plants were found in two rooms with heating, plumbing, and electrical works in place so as to facilitate the cultivation of cannabis. Thi Thu Nguyen and Mai Nguyen were arrested. Various pieces of correspondence addressed to Thi Thu Nguyen and Mai Nguyen were also located, along with the tenancy agreement for the property. The tenancy agreement named Qui Nguyen and Thi Thu Nguyen as tenants of the property.
6The following day, 6 June 2017, police attended at the property at 7 Santander Crescent in Point Cook. 136 cannabis plants, with a total processed weight of 42.81 kilograms, were located across four rooms with similar cultivation facilities to those found at the Marble Road property. Police also located documents in the name of Mai Nguyen and Thi Thu Nguyen.
7On 14 June 2017, police attended the Sunshine Motor Inn where they located Hang Doan and co-accused, Qui Nguyen. Ms Doan and Qui Nguyen were arrested, and a subsequent search revealed that Ms Doan had $10,060 cash hidden in her undergarments.
8The threshold for a commercial quantity of cannabis is 100 plants or 25 kilograms in weight.
9Ms Doan, you plead guilty to involvement with the properties at 5 Marble Road and 7 Santander Crescent. Ms Thi Thu Nguyen pleads to her involvement with the properties at 5 Marble Road and 7 Santander Crescent. Ms Mai Nguyen's plea relates to her involvement with the property at 5 Marble Road.
10For completeness, I note that Qui Nguyen and Quan Nguyen were sentenced by His Honour Judge Dean on 26 February 2018. Qui Nguyen received a sentence of six years' imprisonment, with a non-parole period of three years and nine months, following a plea of guilty to commercial cultivation. He was sentenced as a middle manager of the entire criminal enterprise and motivated to share in the profits. Quan, his son, was sentenced as a crop-sitter recruited by his father. He pleaded guilty to cultivation simpliciter, and was sentenced to a term of two years and three months' imprisonment, with a non-parole period of nine months.
11I turn now to your personal circumstances and to the submissions of your counsel on the plea.
12Mai Thi Nguyen, you were born in North Vietnam on 11 June 1961, and are now aged 56 years of age. You completed Year 10 schooling before moving into a vocational learning institution, and you then worked for 27 years in a statistics office of a coal mining company.
13You are currently separated and have two children who both now live in Bournemouth in the United Kingdom, and you are a grandmother twice over. You have been remanded since your arrest, and as a result, have missed the birth of your second grandchild. Your 17-year-old son, Loc, lives with your daughter, Hong, in Bournemouth, as I have stated, in the UK.
14You divorced your husband in Vietnam, and later met and married an English man in 2010, who sponsored your move to the United Kingdom. You lived in Bournemouth together with your children from your first marriage, and continued to live there after your second marriage ended in 2017. I was told that you most recently worked part-time as a nail technician. You suffer from high blood pressure, and you have hearing problems, however you do not require medication for either of those conditions. You monitor your diet in order to manage your symptoms, and you are otherwise in good health. I am told that your English language skills are poor.
15On the plea, your counsel, Mr Miller, informed me that you had come to Australia on a short-term visa to persuade your brother and co-accused, Qui Nguyen, to return to the United Kingdom. He, as I said, was a middle manager of the overall criminal operation. Mr Miller described to me your getting "caught up in this operation”. When pressed to describe how precisely you had been caught up in this operation, he described you being recruited by your brother in the same way that your brother had recruited his own son and his own daughter. It seems that all of the family that you knew in Melbourne were involved in this criminal enterprise, and you were thus drawn into it. I must say, it is unclear why a woman of your age and of your prior good character should have allowed herself to be used for the purposes of this criminal enterprise.
16Mr Miller submitted that your plea as to involvement in the cultivation of cannabis plants at 5 Marble Road was an early plea, and your role is that of a crop-sitter. You are of previous good character, and you will be socially and linguistically isolated whilst in prison, given your English skills and that your family remain in the United Kingdom. As such, prison, he submitted, will be more burdensome for you.
17Mr Miller also pointed to your nephew Quan Nguyen's sentence and to the amounts involved. This was provided to me in the interests of parity between the various defendants involved in this operation. Your nephew, Quan, pleaded to 0.84 of a commercial quantity by weight and 0.5 of a commercial quantity by number of plants. You, Ms Mai Nguyen, have pleaded guilty to 0.51 of a commercial quantity by weight, but 1.4 times the commercial quantity by number. In other words, you pleaded guilty to two-thirds of the weight to which Mr Quan Nguyen pleaded, but nearly three times the number of plants.
18Mr Miller pointed correctly to there being no charge relating to unlawful extraction of electricity, and that you had indicated your plea before the contested committal. Such a plea attracts utilitarian benefit, and can be viewed by me as an indication of your remorse or your acceptance of responsibility, and your willingness to facilitate the interests of justice.
19In relation to your personal circumstances, you are now, I am told, a British national. It is your wish to be deported back to the United Kingdom after completion of your sentence. Mr Miller accepted that a term of imprisonment is the only appropriate disposition, but submitted that I should fix a non-parole period to enable your release in the not-too-distant future.
20Thi Thu Nguyen, you were born on 2 November 1992, and are 25 years old. You also have been in custody since your arrest. You were born in North Vietnam and came to Australia in 2013 on a student visa to further your studies in accounting, after having completed a three-year diploma in accounting in Vietnam. You were enrolled in an accounting degree course at Sydney University of Technology. Your parents divorced some years ago, and since their separation you have had no contact with your father. You have one brother, who is 32 now and married with children, and your mother runs a small café business. I am told you have been in regular contact with your mother, and that your family were unable to continue meeting your school fees. And thus, after six months, you were compelled to withdraw from your course due to lack of funds. You then tried to find work in Sydney, but were unsuccessful, and came down to Melbourne. Initially, you worked as a low-wage kitchen hand in Footscray for a short time, which you recognised as being in breach of the terms of your visa. You then did manual work at vegetable farms, again, for low wages, in light of your illegal status. There followed an extended period of you being out of work, and I understand you were effectively homeless.
21You met a man who offered you accommodation, and that man was Qui Nguyen, the middle manager of this entire operation. You became a resident at 5 Marble Road. It must have become very clear to you that you were playing a part in a criminal enterprise. Whilst falling into the category of a crop-sitter, it seems that your involvement in this matter included permitting your name to be on the lease of 5 Marble Road. You were expected to do cleaning, and in return for cleaning and other incidental duties, you received food and your accommodation. I am told you received no other financial benefit for your participation in the criminal enterprise.
22You will be deported upon your release back to Vietnam, and I am told you intend to join your mother and work in the family business, and may, in time, continue with your accounting studies.
23Your counsel's primary submission was that your sentence should reflect the time that you had already served, enabling your immediate deportation. Your counsel, Mr Sharpley, submitted a sentencing snapshot, but quickly conceded that it was not of much assistance given that the snapshot did not identify particular roles.
24Hang Doan, you were born on 16 September 1987, and you are 30 years old. You were born and raised in North Vietnam. You have one older brother, who is a policeman, and your father is a retired policeman. Your mother is a housewife. You have a seven-year-old daughter that resides in Vietnam with her maternal grandparents, your mother and father. You were in a relationship with the father of your child from 2007 to 2012.
25Your counsel, Ms Liang, informed me that you came to Australia in 2013 on a student visa, and were initially enrolled in a Bachelor of Accounting degree at RMIT. Before commencing the degree course, you completed an English language course which lasted for some 40 weeks.
26In 2014, you met an Australian named Mr Pham, and you were married to him in December 2014. In August 2015, you submitted an application for a partner visa whilst you were still in Australia under the student visa, which only expired in March 2017. After that date, March 2017, you were on a bridging visa pending the resolution of your application for a partner visa.
27Your relationship with your husband broke down in mid-2016, and after that you moved out and lived in shared accommodation at Point Cook. You obtained employment in a nail salon in Point Cook, and it was whilst working there that you met Qui Nguyen in 2017. Your involvement in this offending came about as a result of your association with him. Your counsel described it as "opportunistic offending" to make some quick money, so that you could send it home and thus contribute to the maintenance of your daughter. I am told that you were promised the sum of $200 for your assistance in the enterprise.
28I am told that you attended properties on occasion, providing some unspecified services. You were not on any of the leases, however $10,060 was found concealed in your underwear at the time of your arrest. Your counsel informed the court that the money had been given to you by Qui for his daughter's legal fees. You were not arrested at either property, nor, as I said, was your name on either lease.
29Your counsel submitted that your plea of guilty represents an expression of remorse. You pleaded guilty at the committal hearing, and I was urged to recognise the utilitarian benefit of the plea.
30You have no prior convictions either here or in Vietnam, as indeed do none of you. Ms Liang submitted that your prospects of rehabilitation are good, that you are educated, you have a good family, and it is quite unlikely that you would engage in this type of offending again. You have been using your time in custody by engaging in programs, certificates in respect of completion of which were tendered on your plea. I am told that your English is much improved. You do not have any significant supports here in Australia.
31Your counsel, again, recognised that an immediate term of imprisonment is the only sentencing option, but urged a non-parole period that could provide for your release again in the near future.
32The prosecution rightly submitted that this operation was commercial in extent, that is to say, its purpose was the making of financial profit for those who managed the enterprise. The prosecution concedes, fairly and correctly, that none of you had a financial interest in the operation, nor were any of you involved in the management of it. All three of you, said the prosecution, were to be dealt with, therefore, as "crop-sitters" as that offender category has come to be understood.
33Mr Pickering, learned counsel for the prosecution, further submitted that in the case of crop-sitters such as yourselves, deterrence and denunciation come to the fore. He observed that you had become involved in this matter for very little apparent gain. Whilst there may be a reduced need for specific deterrence, general deterrence and denunciation are to the fore.
34Your counsel conceded that an immediate term of imprisonment was the appropriate disposition. Offending of this kind will lead to an immediate loss of liberty for those who are caught.
35Hang Doan, Mai Nguyen, and Thi Thu Nguyen, your offending is by its very nature serious, as is clear from the maximum penalty imposed by Parliament. Cannabis is not a benign drug. The use of a suburban house for the growing of cannabis for onward sale and profit is all too prevalent. So is the use of often-marginalised individuals to act as front persons for the enterprise, and such employment helps to ensure that the organisers of these criminal enterprises are rarely, if ever, caught.
36Each of you had a role to play. No matter how small the particular role, every single role is essential to the success of the overall criminal enterprise. Quite simply, without your participation, the criminal enterprise could not succeed.
37I sentence you on the basis that you were all employees of the criminal syndicate at a low level, well below management. It is manifestly clear that none of you had any proprietary or financial interest in the enterprise. I accept that each of you played your role at the direction of others over a relatively short period of time in relation to the respective properties. I repeat, you have no financial interest in the enterprise, but there can be no doubt that each one of you knew - from the beginning, in my view – that you were engaging in an unlawful criminal enterprise, the purpose of which was the growing of the drug cannabis for onward sale for profit.
38The basic purpose for which a court may impose a sentence include punishment, general and specific deterrence (that is, to deter others from behaving as you have done, and to deter you from behaving as you have done again), rehabilitation, denunciation, and protection of the community. In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, and your personal circumstances. I am required to balance the interest of the community at large in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and reintegrated into society. I express my denunciation of your behaviour.
39In sentencing each of you, I take into account the following matters:
(i) Your lack of prior convictions and your general antecedents;
(ii) Your early plea of guilty; this has both a utilitarian benefit, that is to say, the benefit in terms of savings of time and costs of a trial, and is indicative of remorse;
(iii) Each of you is now remorseful for your offending;
(iv) Each of you has good, if not excellent, prospects for rehabilitation;
(v) The sentences imposed upon your co-defendants, Qui and Quan Nguyen, and the principle of parity that is therefore engaged;
(vi) The fact that this period in custody is the first time that you have been in prison; and
(vii) By virtue of your lack of sufficient English and the separation from your families overseas, that imprisonment will be more onerous for each of you.
40Mai Thi Nguyen, on the charge of cultivating a narcotic plant not less than a commercial quantity, you are sentenced to a term of imprisonment of two years and six months.
41I fix a non-parole period 18 months.
42Pursuant to s.18 of the Sentencing Act 1991, I declare that you have served 353 days of the sentence that I have imposed upon you, and direct that this be recorded in the records of the court.
43Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, you would have been sentenced to a term of imprisonment of three years and six months with a non-parole period of 27 months.
44Thi Thu Nguyen, on the charge of cultivating a narcotic plant not less than a commercial quantity, you are sentenced to a term of imprisonment of two years and six months.
45I fix a non-parole period of 18 months.
46Pursuant to s.18 of the Sentencing Act 1991, I declare that you have served 353 days of the sentence that I have imposed upon you, and direct that this be recorded in the records of the court.
47Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, you would have been sentenced to a term of imprisonment of three years and six months with a non-parole period of 27 months.
48Hang Doan, on the charge of cultivating a narcotic plant not less than a commercial quantity, you are sentenced to a term of imprisonment of two years and six months.
49I fix a non-parole period of 18 months.
50Pursuant to s.18 of the Sentencing Act 1991, I declare that you have served 344 days of the sentence that I have imposed upon you, and direct that this be recorded in the records of the court.
51Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, you would have been sentenced to a term of imprisonment of three years and six months with a non-parole period of 27 months.
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Court Reference: CR-18-00017/18/19 Indictment No:C1711286 |
CRIMINAL JURISDICTION
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
| Prosecution of Hang DOAN, Mai NGUYEN & Thi NGUYEN |
SUMMARY OF PROSECUTION OPENING
| Date of Document: Filed on behalf of: Prepared by: JOHN CAIN Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | 23 April 2018 Director of Public Prosecutions Solicitors code: 7539 Reference: Telephone: File Number: |
Background
The Accused presently before the Court are Hang DOAN (aged 31), Mai Thi NGUYEN (aged 57) and Thi Thu NGUYEN (aged 26). Co accused Qui Nguyen and his son Quan Nguyen pleaded guilty and were sentenced by His Honour Judge Dean on 26 February 2018.
All accused and co-accused are members of an organised cannabis cultivation syndicate.
Qui Nguyen is the head of the syndicate with ultimate responsibility and control over all properties.
Quan Nguyen was responsible for the property at Caldwell Road. Accused Hang Doan, Mai Nguyen and Thi Nguyen are alleged to be ‘crop sitters’.
First Police Attendance
Property 1 - 11 Caldwell Road, Williams Landing
Arrest of Accused – Quan Nguyen & Co-Accused Quynh Nguyen
On Monday the 5th of June 2017 Police attended at 11 Caldwell Road, Williams Landing.
Investigators forced entry to the premises at approximately 8.04am in possession of a search warrant, pursuant to the Drugs Poisons & Controlled Substance Act.
Enquiries revealed the address was subject to a Residential Tenancy Agreement naming Quan Nguyen, Qui Nguyen and Yen Mai as tenants as at the 18th of March 2017. A bond of $2260 had been lodged.
Following the review of both Quan and Quynh Nguyen’s mobile phones, police identified 6 other addresses of interest. Search warrants for each of these properties were obtained and they were subsequently searched.
The results of each attendance and subsequent search is set out below;
Property Number 2 - 5 Marble Road Point Cook
Arrest of Co-Accused Thu Thi Nguyen & Mai Thi Nguyen
Police attended at this property at 11.40am on the 5th of June 2017.
Police observed a blue 2004 Volkswagen driven by Thu Thi Nguyen driving into the garage.
The vehicle was registered to Thu Thi Nguyen.
Approximately 11.45am the same vehicle excited the garage driven by Thu Thi Nguyen, with Mai Thi Nguyen in the front passenger seat.
The vehicle as subsequently intercepted at the intersection of Circus Avenue and Solo Street in Point Cook.
The vehicle smelt strongly of cannabis. A search of the vehicle was conducted and police located 4 sets of keys and garage remotes belonging to 16 Freshnet Ave, 7 Florey Ave, 183 Dunnings Road and 7 Santander Crescent. Cannabis residue was visible throughout the vehicle.
A search warrant was then executed at 5 Marble Road where they located 2 rooms set up with sophisticated heating, plumbing and electrical works facilitating the cultivation of cannabis.
The first room contained 50 cannabis plants and the second room contained 90 cannabis plants.
Police also located;
- an electrical bypass
- Medication prescribed to Qui Van Nguyen;
- A traffic infringement withdrawal notice addressed to Thu Thi Nguyen;
- Letters from Ace Real Estate addressed to Qui Nguyen and Thu Thi Nguyen;
- Letters from City West Water addressed to Thu Thi Nguyen;
- A letter from the Commonwealth Bank addressed to Mai Thi Nguyen;
- Several letters from VicRoads addressed to Thu Thi Nguyen relating to her blue 2004 Volkswagen
A Residential Tenancy Agreement relating to the address named Qui Nguyen and Thu Thi Nguyen as tenants as at the 7th of June 2016. A bond of $2050 was lodged with respect to the property.
The cannabis plants located within the premises were seized and processed onsite by a botanist. The total processed weight of the plants was 12.79 kilograms.
Property Number 2 - 7 Santander Crescent, Point Cook
At approximately 4pm on the 6th of June 2017 in possession of a search warrant.
Access to the property was gained using the keys seized from the vehicle of Thu Thi Nguyen 2 days prior.
This property contained 4 rooms all set up with sophisticated heating, plumbing and electrical works to facilitate the cultivation of cannabis. Part of the set up was an electrical bypass.
The first room contained 89 plants. The second room contained 12 plants. The third room contained 10 plants and the fourth room contained 25 plants.
The 136 plants were seized and processed at the scene by a botanist.
The total weight of the processed plants was 42.81 kilograms.
Also located at the address were documents in the names of Qui Nguyen, Mai Thi Nguyen and Tji Thu Nguyen. Numerous forms of identification in the name of Thi Thu Nguyen.
The residential tenancy agreement in relation to this property named Qui Nguyen, Thu Tran and Yen Mai as tenants from the 22nd of November 2017. A bond of $1934 was lodged with respect to this property.
Arrest of Accused Qui Nguyen & Co-Accused Hang Doan
On the 14th of June 2017 Police attended Room 21 of the Sunshine Motor Inn. Inside the room was Qui Nguyen, Hang Doan and the 5 year old son of Quynh Nguyen.
Qui Nguyen and Doan were both arrested and a subsequent search of the motel room revealed;
- Several rental applications in the name of Qui Nguyen and Hang Doan;
- $10060 cash hidden in the undergarments of Doan; and
- 5 mobile phones.
In the car park of the Motel, Police located a 2003 Lexus RX330 registered to Thu Thi Nguyen and a 2000 Lexus IS200 registered to Hang Doan.
Doan and Qui Nguyen were conveyed to the Werribee Police Station whilst the child was placed into the care of the Department of Health & Human Services.
Record of Interview
The Accused were not interviewed due to the lack of availability of Vietnamese Interpreter.
Resolution of the Matter
On the 2nd of October 2017, prior to the committal mention, Qui Nguyen offered to plead guilty to the current charge being, the cultivation of a commercial quantity of cannabis across each of the addresses. The total number of plants located across the properties was 622 plants. The total weight is 229.8 kilograms.
The Accused Quan Nguyen was listed for a contested committal on the 9th of January 2018 together with the other co-accused. All matters resolved on this date prior to the cross examination of any witnesses.
Hang Doan entered a plea of guilty on this date to a single charge of cultivation of not less than a commercial quantity of cannabis in relation to involvement with the properties at 5 Marble Road and 7 Santander Crescent.
Mai Nguyen entered a plea of guilty on this date to a single charge of cultivation of not less than a commercial quantity of cannabis in relation to involvement with the property at 5 Marble Road.
Thi Nguyen entered a plea of guilty on this date to a single charge of cultivation of not less than a commercial quantity of cannabis in relation to involvement with the properties at 5 Marble Road and 7 Santander Crescent.
It is conceded that the plea in relation to all accused was entered at an early stage and s6AAA applies.
Sentence of Co-Accused
Quan Nguyen was permitted to join his father’s plea date of the 22nd of February 2018 however the other co-accused were unable to be accommodated until the 15th of May 2018.
On that date Qui Nguyen pleaded guilty to cultivation of cannabis in not less than a commercial quantity in relation to playing an organisational role in relation to all properties. He was sentenced to a total effective sentence of 6 years imprisonment with a non parole period of 3 years and 9 months.
Quan Nguyen pleaded guilty to cultivation of cannabis in relation to the property at Caldwell Road only and was sentenced to a total effective sentence of 2 years and 3 months imprisonment, with a non parole period of 9 months.
Maximum Penalties
Cultivation of a Narcotic Plant in not less than a commercial quantity is punishable by level 2 imprisonment – 25 years
Custody status & pre sentence detention
Mai and Thi Nguyen were unlawfully in Australia when arrested on 5 June 2017. Both have spent 344 days in custody not including 15 May 2018.
Hang Doan was unlawfully in Australia when arrested on 14 June 2017. She has spent 335 days in custody up to but not including 15 May 2018.
Ancillary Orders
Upon conviction orders will be sought for DNA retention, forfeiture and disposal.
Prior Convictions
The accused have no prior criminal history.
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PLEA PROSECUTOR
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