Director of Public Prosecutions v Duong
[2012] VCC 1908
•21 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01377
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN LONG DUONG |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 21 November 2012 | |
CASE MAY BE CITED AS: | DPP v. Duong | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1908 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Zammit | |
| For the Accused | Ms K. Wait |
HER HONOUR:
1 Van Long Duong, you have pleaded guilty to one charge of cultivation of narcotic plants in not less than a commercial quantity. The maximum penalty for that offence is 25 years' imprisonment.
2 The prosecution has sought orders for the disposal of certain items and for the retention of a forensic sample taken from you. The making of those orders was consented to.
3 The circumstances of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A. In summary, the circumstances are as follows: On 18 April 2012 police executed a search warrant at 4 Palm Court, Campbellfield. The police knocked at the front door. Your co-accused and partner, Van Tran, was observed to look through the front curtains of the bedroom window. A short time later you opened the front door and allowed the police to enter the property.
4 The police searched the property. They found a total of 310 cannabis plants, in various stages of growth, in ten rooms of the house. The total weight of cannabis plants was 52.2 kilos. The cannabis plants were growing in a sophisticated hydroponic set up with an electronic bypass system in place. Police also found a further 1.7 kilograms of loose cannabis in another room of the house. The estimated yield of the mature plants is 5.3 kilograms.
5 You were arrested and a record of interview was conducted with the assistance of a Vietnamese interpreter. In the record of interview you made full admissions. You said you were engaged in looking after the crops to make money to repay your debts. You said you had been cultivating cannabis at the house for the last two to three months. You said you were offered the opportunity by a man you met at the Casino. You were told you would receive a 30 per cent share. You were present when the hydroponic system was set up by other people. You also said there had been a previous harvest of half the plants and you had received $8,000.
6 Your plea of guilty was entered at the first committal mention, on 31 July 2012.
7
You have spent 217 days, up to and including 20 November 2012, in
pre-sentence detention.
8
I have taken your personal circumstances into account in sentencing you. You were born in South Vietnam and are one of ten children. You are now
54 years old. You came from quite an impoverished background. Your father was a farmer. You were educated to about Grade 6 level. In 1987 you fled Vietnam on a boat. You took with you your two children from a previous relationship and were in a refugee camp for about three years. You developed another relationship in the camp and had a child with that partner. She already had two children. You and that partner came to Australia, in January 1990, as refugees.
9 You are an Australian citizen. You worked in factory work and then between 1992 and 2009 had your own pressing factory. That business was successful but then that business failed and you were left with debts. Since then you have found it hard to get work. You have done some factory work.
10
You met your current partner, Ms Tran, after 2009. You and she have a
14 month old child. She has also been charged in relation to this matter. Your other children are grown up and you have had no, or limited contact with them.
11 You have no prior criminal history.
12 Ms Tran has been in court to support you with a friend. One of your sisters has also been in court, she lives in Melbourne.
13
A report from Mr Tim Watson-Munro, forensic psychologist, dated
12 November 2012, was tendered as Exhibit VD1. According to Mr Watson-Munro, you told him that you had had increasing financial pressure because of your debts and living expenses. You then became involved in gambling and had further debts. You were approached by a person offering you an opportunity to get out of your financial situation and you accepted that offer. You told him you deeply regret that decision.
14 It is Mr Watson-Munro's opinion that you were suffering from a gambling disorder and a major depression and anxiety disorder. He says you require treatment. He says you would benefit from cognitive behaviour therapy and psychotherapy. It is his opinion that with support, supervision and treatment your prognosis is positive. He says you are unlikely to get appropriate treatment in gaol, especially in view of your poor command of English. He says: "It is clear that his symptoms had a significant impact on his judgment, but not to the point he was unaware of his wrongdoing."
15 Two personal references, tendered as Exhibit VD2, speak positively of your personal qualities. Each of the writer's comments on the negative impact of your business failure on you. They also write of your regret and remorse for your actions.
16 Your counsel accepted that a custodial sentence would be warranted for the purposes of general deterrence. Your counsel particularly relied on the following in mitigation of sentence:
(a) Your plea of guilty at an early stage.
(b) That you are a mature man with no prior criminal history.
(c) Your admissions and co-operation with the authorities.
(d) Your good prospects for rehabilitation.
(e) Your difficulties in custody, as you have not received treatment for your underlying mental conditions.
(f) That the offending occurred in the context of financial hardship.
17 The prosecutor submitted that general deterrence was a particularly important matter in sentencing you. She submitted that it should be taken into account that you were involved in the offending for financial gain and that you had previously received some moneys. The prosecutor's instructions were that the appropriate range for sentence would be a sentence of between two and two and a half years, with a non parole period of ten to 13 months.
18 The cultivation of narcotic plants, in not less than a commercial quantity, is a very serious offence. The maximum penalty of 25 years' imprisonment reflects the seriousness with which Parliament, on behalf of the community, takes this offending. The enterprise in which you were involved was a business enterprise. The setup was a sophisticated one. 310 plants were found growing in ten rooms. The business of the production of illegal drugs is an evil one. The evil trade of producing and selling illegal drugs makes money out of the weaknesses of others. Illegal drugs cause harm to individuals, families and the community.
19 Your role was a menial one but was crucial to the growing of the crops. You engaged in it over a period of time and had received significant payment. General deterrence needs to be given great weight in sentencing you. Other people who might become involved in this business need to factor in the risk of going to gaol if they are caught. Perhaps at least some people will decide that it is not worth it.
20 A sentence of imprisonment is warranted for the purposes of denunciation, punishment and general deterrence. Specific deterrence ought to also be given some weight in your sentence. I accept that to a degree you have already learnt your lesson, but you need to understand that you must not get involved in any offending like this in the future. If you do you will receive harsher penalties.
21 I have taken a number of matters into account in mitigation of sentence. You are entitled to a significant discount for your early plea of guilty. That plea of guilty has saved the cost and inconvenience of a trial. It is also an expression of your remorse. You provided significant admissions and cooperation. You are a mature man with no prior criminal history. You have a history of hard work. Those matters go to your credit.
22 The offending occurred in the context of financial difficulties. I accept that, but I would not describe your difficulties as financial hardship. I accept that your depression and anxiety also played some role in your offending but reduced your moral culpability only to a very minor degree. I accept that those conditions have made imprisonment more difficult for you.
23 I consider that you have good prospects for rehabilitation given your lack of prior history and your remorse. I also take into account the positive references. I consider that your prospects for rehabilitation would be enhanced if you were able to receive treatment and support of an appropriate kind.
24 I have taken these matters in mitigation into account in determining the appropriate sentence and in setting the non parole period. I note the treatment recommendations made by Mr Watson-Munro. I have set a somewhat shorter non parole period than I would have otherwise.
25 Van Long Duong, on one charge of cultivation of narcotic plants in not less than a commercial quantity, you are convicted and sentenced to 24 months' imprisonment. I fix 12 months as the period that you are required to serve before being eligible for parole. But for your plea of guilty, I would have sentenced you to a term of imprisonment of 36 months, with a non parole period of 24 months.
26 I make the order for disposal that were sought.
27 I also order that the forensic sample taken from you be retained, that is because of the seriousness of your offending, your consent to that order being made and it being in the public interest given that you are a continuing resident of Australia.
28 I declare that you have served 217 days by way of pre-sentence detention.
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