Director of Public Prosecutions v Doan

[2015] VCC 1515

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

AT GEELONG
CRIMINAL JURISDICTION

CR 15-00190

DIRECTOR OF PUBLIC PROSECUTIONS

v

TOAN QUOC DOAN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	29 September 2015
DATE OF SENTENCE:	29 September 2015
CASE MAY BE CITED AS:	DPP v Doan
MEDIUM NEUTRAL CITATION:	[2015] VCC 1515

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.B.B. Lewis	Office of Public Prosecutions
For the Accused	Mr A.V. Chernok	Valos Black

HIS HONOUR: 

1On 3 November 2014, Toan Doan, police arrested you in the roof cavity of a house at 415 Princes Highway, Corio.  Beside this house there were 214 cannabis plants under hydroponic cultivation.  There were five rooms in the house and each had been converted and dedicated to growing cannabis.

2The cultivation methods were sophisticated.  The lighting that was installed was such to allow plants to be grown indoors.  Power had been bypassed to allow for higher volumes of electricity to be consumed without detection or cost.  There were filters, timers for watering, transformers and reflectors.  These are all expensive items indicating that there were significant resources and determination to grow large quantities of cannabis for profit.

3Given the considerable efforts and expenses setting up this indoor horticultural enterprise, the plants were strong and healthy.  The photographs tendered on the plea reveal this.  The yield of usable drugs was likely to be very high.  There were plants at various stages of growth indicating that the harvest would be planned to be regular in the form of a crop rotation system providing ongoing cash flow.  The weight of the plants once roots were removed was 69 kilograms.

4All the features found in this house are common with suburban houses that have been converted into cannabis production houses.  The crime is hard to detect, and even harder to establish who are the main players in the cannabis production and distribution chains.

5The product grown by the cultivators has serious adverse effects on the many users.  The community bears at great cost as entrepreneurial cannabis cultivators profit significantly.

6The entrepreneurial cultivators have for some time sought to avoid their own detection by having vulnerable individuals mind the crops.  These crop-sitters, as they have become known, ensure the equipment continues to operate.  They provide, it would seem, from time to time, a degree of security for the crop, but most importantly they keep the entrepreneurs at arm's length from the crop while it grows to a saleable product.

7When the sitter is arrested with the crop, as is the case here, the entrepreneur often avoids detection.

8In this case, the gravity of this offending is clear.  It was a significant operation worth large amounts of money.

9You, Mr Doan, made no comment to the police.  You are not to be punished more for exercising your rights.  You told your counsel, who told me, that some months before your arrest you met a stranger at St Alban's market, and told him there of your unhappy circumstances brought about by financial difficulty and your ill-health.

10In addition, studying at Swinburne University at the time and an engineering degree, you were working for a business involved, it seems, in chicken production.

11You became unwell and could not work.  You fell behind with rent.  You knew your parents were unwell in Vietnam.  These were difficult times for you.  This stranger offered you a chance to look after the cannabis crop, it seems.  Oddly, given your intelligence that has brought you a tertiary degree, you took up that offer so you became involved in the cultivation and, on the prosecution case, for a short period of time.

12You did so because a stranger asked you to do that, and because of your particular circumstances at the time.

13I will sentence you as a crop-sitter and not someone to profit from this criminal enterprise.  The mysterious man who you met at the market remains a mystery.

14You were raised by hard-working parents in Vietnam.  They are worried for you, as expressed in their letter that I read.  You are now 28.  You worked hard in Vietnam and, ultimately, obtained a tertiary degree in engineering.  You worked in Vietnam and I think in China as well in your professional area.  You came to Australia to study further at university in Melbourne, that is, Swinburne University in engineering.  You have a cousin who supports you and is here in court.

15You will do prison harder because you have limited English and I have taken this into account.  Prisons have been harder of late because of the riots in late June and I factored that into the equation as well.

16Your sentence will be less because of your plea of guilty.  You have no criminal history and I have taken that into account in your favour.

17Your prospects for rehabilitation are very good providing you settle into your previous lawful ways in Vietnam.

18You will by operation of the Migration Act, it seems, to be deported if you are sentenced to longer than one year imprisonment.  Your counsel urged I keep the sentence under one year and with no minimum term.  The prosecution submitted this sort of sentence would be inadequate.

19The crime of cultivating cannabis in a commercial quantity is punishable by a maximum term of 25 years' imprisonment.  Deterrence is of primary importance given the prevalence of this offence.

20Also important is denunciation of your crimes, that is, you became involved in criminal activity which has a detrimental effect upon many in this community, but as noted your rehabilitation is not overlooked and if you, on return to Vietnam, take up looking after your parents and taking up your career as an engineer if that is open to you, you are likely to stay out of trouble.

21The only appropriate sentence is a sentence of imprisonment, grave as that always is.  In this case it will be for a period longer than your counsel urged.  I will fix a non-parole period.  Whether you are released on parole is a matter for others, not me.  I do take into account you will do prison harder because of the prospect that you will be deported and that is a factor that may weight upon you in prison because you have lost an opportunity that you had been given to study in Australia.

22However, I note both from your cousin's letter and from your mother's letter on behalf of her and her husband, that they are very keen that you return back to Vietnam to be back with the family in their difficult times.

23Can you please stand, Mr Doan. 

24For committing the crime of cultivating a commercial quantity of cannabis, you are sentenced to two years' and three months' imprisonment.

25I fix a non-parole period of one year and four months.  You have already served 330 days in prison and that figure being reckoned, I will declare that that 330 days as part of the sentence I have just imposed.

26I will ensure this declaration is entered into the records so the prison authorities are left in no doubt that you have already served 330 of the sentence I have just imposed. 

27Had you pleaded not guilty to these offences and been found guilty of them, I would have sentenced you to three years' and six months', with a minimum period of two years' and six months'.

28There are other orders, are there, Mr Lewis, relating to ‑ ‑ ‑

29MR LEWIS:  No, Your Honour.

30HIS HONOUR:  I propose to make the orders that are sought relating to disposal of the items connected with this cultivation.

31MR CHERNOK:  May it please the court.

32HIS HONOUR:  Is there anything further required in this matter?

33MR LEWIS:  No, Your Honour.

34HIS HONOUR:  Thank you.  Mr Doan can be removed.

35(Offender removed.)

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