Director of Public Prosecutions v Dong

[2016] VCC 410

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00653

DIRECTOR OF PUBLIC PROSECUTIONS

v

GIANH THI DONG

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 & 26 February 2016
DATE OF SENTENCE:	8 April 2016
CASE MAY BE CITED AS:	DPP v Dong
MEDIUM NEUTRAL CITATION:	[2016] VCC 410

REASONS FOR SENTENCE
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Subject:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Shaw	Office of Public Prosecutions
For the Accused	Mr A. Sharp

HER HONOUR: 

1Gianh Thi Dong, you have pleaded guilty before me to one charge of cultivating a narcotic plant in a commercial quantity contrary to s.71AA of the Drugs Poisons and Controlled Substances Act 1981. 

2This is a serious charge and that is reflected in the maximum penalty prescribed by law, 25 years' imprisonment.

3Ms Dong, you are a Vietnamese national.  You are currently in Australia on a Bridging C visa.  You are lawfully in Australia and you have made application to remain permanently in Australia. 

4You come from the Nghe An Province, a province in the north central coastal region of Vietnam.  You are aged 24; you were born on 15 August 1992 and you were aged 22 at the time of your arrest. 

5When you were 15 you married Ngu Dung Trung, he was 18.  There are two children of the marriage.  The eldest child lives in Vietnam and the younger child is currently being cared for by your husband here in Victoria. 

6I shall now proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing and it has been marked as an exhibit.

7Briefly, as part of Operation Re-exposing, on 19 January 2015 at about 9.05 am police executed a warrant at a factory located in an industrial area of Springvale.  There they found a factory with a sophisticated hydroponic set up for growing cannabis L.  In total, there were eight rooms that were set up dedicated to growing cannabis L.  Police found juvenile cannabis plants to more advanced plants in the various rooms, demonstrating different stages of production.  In Room 8 they located a shredder machine.

8Police first located and arrested your co-accused Mr Vo in the garage area of the warehouse.  You were found in Room 8, seated at the shredder, stripping and processing cannabis leaf and you too were arrested. 

9Photographs that were tendered at the plea hearing depict a large industrial warehouse with the front roller door open, exposing a facade of empty cardboard boxes that were taped together and that facade blocked the view of the internal rooms and the set up for the cannabis crop.

10Police located 468 cannabis L plants weighing 66.36 kg in various stages of growth from immature to fully mature and some plant material weighing
53.12 kg that had been harvested.  The number of plants and the weight of material exceeds a commercial quantity as defined by law, being in excess of 100 plants and 25 kg respectively. 

11Kylie Slattery, botanist, provided a report dated 16 April 2015 where she records her findings and analysis of the cannabis material that was located.

12The Crown accept, Ms Dong, that your role was that of harvesting the cannabis by stripping leaves from cannabis L branches for the one day only, being 19 January 2015.  On that day you harvested two bags of material, total weight 22.12 kg, and the cannabis leaf found in the bin of the shredder, total weight 6.58 kg, and the total of the harvested matter is therefore 28.7 kg of cannabis, which is not less than a commercial quantity, and I have already said that a commercial quantity is 25 kg.

13Following your arrest a formal record of interview was conducted during which you made no comment.  You do not have any prior criminal history. 

14You have remained in custody following your arrest on 19 January 2015.  You do not speak English and a Vietnamese interpreter has been assisting you with the plea hearing and sentence.

15In terms of the timing of your plea, you entered a plea on 29 October 2015 prior to the trial date that was due to proceed on 9 November 2015. 

16The Crown sought orders for forfeiture, disposal and the obtaining of a forensic sample with respect to you and those orders are not opposed and will be made.

17Your co-accused, Mr Vo, who was aged 57 and a fisherman by occupation, has been sentenced by this court.  His family, including his wife and three children aged 21, 18 and 14, all live in Vietnam.  Mr Vo is a friend of your husband and comes from the same region.  He was sentenced on 26 January 2016 and was convicted and sentenced to two years nine months' imprisonment with a non-parole period of one year and three months being fixed.  Mr Vo was sentenced on the basis that he was the crop-sitter and his involvement was only two days.  It was accepted that Mr Vo had commenced working at the location on the day prior to the raids.  Mr Vo was unlawfully in Australia having overstayed a short stay business visa, and it was anticipated that he would be deported back to Vietnam on completion of his sentence or grant of parole.

18He became involved in this criminal behaviour when he was approached by a person whilst he was having coffee one day and it was suggested to him that he could make money by crop sitting.  He did so fully knowing that the crop was established because he wanted the money, so his motivation for the offending was profit.

19In contrast, Mr Sharp emphasised your role was more limited, that is that you assisted for the one day only by shredding the cannabis leaf.  You became involved incidentally when you were asked to drive Mr Vo to the factory.  Your husband was not available to drive Mr Vo because he had been detained due to an immigration irregularity.  He was in immigration detention because he had breached the terms of his student visa.  He has subsequently been released from detention and is now on a bridging visa pending regularisation of his migration status.

20It was only when you were at the factory that you were asked by Mr Vo to strip the cannabis and you did so as requested.  You did not question Mr Vo why he asked you to do this task and you were not expecting anything in return. 

21You strike me as being a very naive, unsophisticated and vulnerable young woman. 

22I accept that you performed this role at the request of Mr Vo, an older man who was a family friend.  It was situational and opportunistic offending.  I accept your role was a very limited one but nonetheless serious given that you shredded 28.7 kg of cannabis leaf which, as I have already stated, is not less than a commercial quantity.

23Given your involvement for the one day only, I consider that the offending is at the lower end of scale of seriousness for this type of serious offence. 

24I noted your background whereby you were born in Vietnam and stayed there until about aged three or four and then your parents relocated to the Czech Republic, leaving you to be raised by an auntie.  You have only rudimentary education, having attained Year 7 schooling level, and in the past there were difficulties in obtaining employment.

25In 2009 your husband travelled to Australia on a student visa.  At that time you were pregnant with the first child of the marriage and remained in Vietnam, living with your husband's parents.  Your first child was born some months after his departure on 4 November 2009. 

26In 2010 you came to Australia to live and your infant daughter was left behind in Vietnam because of visa restrictions.  She continues to live with her paternal grandparents.  Whilst in Australia your second child, Tu Truong, was born on 8 January 2013. 

27Prior to your arrest you had had regular contact with your eldest daughter and parents-in-law in Vietnam.  Following your arrest and remand your infant child, Tu, was placed temporarily in foster care but is now with her father following his release from detention.

28I note that you are on a bridging C visa granted on 24 June 2013 and that visa is linked to your application to remain in Australia permanently.  You are currently lawfully in Australia.  It cannot be determined at this time whether your visa will be cancelled or whether you will be deported following the imposition of this sentence.  It is possible that in the long term you may be granted a visa to remain in Australia.

29I accept as a result of the time that you have spent in custody, and also anticipating sentence for this matter, that it has been a considerable cause of concern for you and you have suffered a greater burden by reason of the uncertainty because of your status which is not clear, and I have taken that into account.

30Having regard to the particular facts and circumstances of this case I do not consider that a term of imprisonment of more than 12 months is warranted.  I consider that these circumstances are highly unusual, that you were exploited by an older man and that you did not have the wherewithal to be able to disassociate yourself from Mr Vo and therefore, you were drawn into this offending which, as I have already characterised, was situational and opportunistic.

31It is intended that you will remain here in Australia with your husband and younger daughter and in time you wish to reunite with your older child. 

32It has been a very difficult time for you whilst in custody.  You have been and remain isolated and have only had very limited contact with your husband and infant daughter.  I have taken into account all those factors.

33Mr Sharp on your behalf agreed that general deterrence is an important consideration but specific deterrence less so given the salutary effects of the imprisonment, that is, the time that you have spent on remand, has had on you.

34Given your relatively limited role, your relative youth, the fact that you have no prior criminal history, together with the time that you have already spent in custody, he submitted that a sentence of imprisonment of less than 12 months was warranted, or alternatively a term of imprisonment to be followed by a Community Correction Order if that was not accepted by the court.

35Mr Shaw, the prosecutor, emphasised in his submissions that current sentencing practices mean that a high proportion of people who are charged with this serious offence are imprisoned and the length of term of the imprisonment is reflected in the different roles and the quantity of the drugs involved.  That is self-evident.  He accepted that you played a limited role in this offending but nonetheless he emphasised it was a substantial operation and you were a willing participant.  He accepted that there is a basis for disparity in sentence between yourself and Mr Vo having regard to the particular features of your offending.  He submitted that an immediate custodial sentence was the appropriate sentence and submitted that a combined term of imprisonment to be followed by a Community Correction Order was not appropriate.

36Overall, having regard to the factors put in mitigation, namely your plea of guilty which was entered at a late stage, but nonetheless I accept there is real utility in that, I accept that a sentencing discount is warranted.  By your plea you have facilitated justice and you have acknowledged what you did was wrong.  I also accept you are remorseful for your participation in this criminal enterprise.  You are a person who otherwise had previous good character.  You are a person who I consider to have good rehabilitation prospects and that you have learned from your involvement in this episode of criminal offending.

37Having characterised the offending as situational and opportunistic and offending that arose by reason of an older more powerful man exerting influence over you to make the decision to participate, I have found your moral culpability insofar as the offending is concerned is at a lower scale than that of your co-accused Mr Vo, who undertook his role in this enterprise deliberately.  He knew it was illegal and he was doing it for profit so his situation is characterised as more serious in my view and therefore I am justified in imposing a sentence that is not of the same kind as that that was given to Mr Vo.

38I must nonetheless formally on behalf of the community denounce your behaviour.  I must impose just punishment and emphasise general deterrence.  It is important that the court sends a message to people that if they get involved with this sort of drug offending that they will be punished.  I consider that you have already been severely punished for your role in this offending and therefore I have concluded that the appropriate sentence is a sentence of nine months' imprisonment.  You will be convicted and sentenced in respect to the charge on the indictment to a term of imprisonment, nine months.  I note that the time already spent in custody is 445 days so that is pre-sentence detention to be declared, and I direct that that be entered into the records of the court.

39The s.6AAA declaration.  But for your plea of guilty I would have imposed a term of imprisonment of 15 months to serve ten months. 

40I make the Forfeiture Order and the Disposal Order sought, and in respect to the application for a forensic sample, have those orders been prepared?

41MR SHAW:  I believe they have been sent to the court.

42HER HONOUR:  All right.  Pursuant to s.464ZF(2) I will make the order for the taking of a forensic sample.  That will be a non-custodial one.

43MR SHAW:  It will.

44HER HONOUR:  Yes.  I do not believe there is anything else that I need to cover in the sentencing remarks?

45COUNSEL:  No, Your Honour.

46HER HONOUR:  It is clear from my sentencing remarks that
Ms Dong has already served her sentence and that she should be released today.  She will probably be released from prison.

47MR SHARP:  As I understand it, yes, Your Honour.

48HER HONOUR:  She will have to go through the processes.

49MR SHARP:  Yes, Your Honour, she will go back there and the paperwork will be completed and done as I understand it, yes.

50HER HONOUR:  All right, good.  Do you have those orders for me to sign? 

51MR SHARP:  Could I just ask Your Honour's indulgence when Your Honour finishes if Ms Dong could remain in court so I can have a conversation with the interpreter?

52HER HONOUR:  Yes, that is fine.  If Ms Bui is available and can assist you, that is fine, you can have a conversation with Ms Dong.  Ms Bui, while we are waiting for the orders can you just explain to Ms Dong that once she is released she will have to go to a police station.  What is her address, is it near Altona,
Mr Sharp?

53MR SHARP:  Yes, Your Honour, I think Altona would be the closest station but I will verify that and make sure she understands that.

54HER HONOUR:  All right.  She will have to attend the Altona Police Station and provide a forensic sample, so that will involve her being given a cotton bud to place inside her mouth to scrape on the side of her mouth.

55INTERPRETER:  Your Honour, Ms Dong requested a copy of the order so that she knows where to go.  I have told - - -

56HER HONOUR:  Yes, we are just attending to that now.

57INTERPRETER:  Okay.

58HER HONOUR:  In the event that she does not cooperate, police can use reasonable force to do that to take the forensic sample.  I have made that order because I consider it is in the interests of the community that the order is made and also she has consented to the making of the order. 

59Mr Shaw, we do not have a copy of the forensic sample order for the taking of a sample where a person is not in custody in original form.  It was one that was only for custodial purposes.

60MR SHAW:  In custody.

61HER HONOUR:  So if your instructor could send that through today, that can be made.

62MR SHAW:  Yes, she will do that.

63HER HONOUR:  It will be made today, so if you explain to Ms Dong that the actual order will be signed today and I will sign it and we can scan the order and send a copy to you.

64MR SHARP:  That would be fine, Your Honour, I will make sure it is delivered to my client.

65HER HONOUR:  Yes, and that way she will know where to go, it will be the Altona Police Station.  I will adjourn the court and you can spend the time with your client.

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