Director of Public Prosecutions v Duong
[2020] VCC 1440
•11 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00401
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHAT DUONG |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 September 2020 | |
DATE OF SENTENCE: | 11 September 2020 | |
CASE MAY BE CITED AS: | DPP v Duong | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1440 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Cultivate cannabis L in a quantity not less that a commercial quantity – total quantity of cannabis 64.50 kilograms - 2.58 times the commercial quantity - theft – summary charge - possess prohibited weapon, namely, Oleoresin Capsicum spray – plea of guilty at committal mention – no criminal history – youthful offender – for profit offending – role of ‘crop sitter’ – burden of imprisonment greater than ordinary prisoner as a result of prospect of deportation and being ineligible for parole because of prospect of deportation -
– migrated to Australia at the age of 9 from Vietnam – no close family or ties to Vietnam – parity – co-offender sentenced to 24 months imprisonment with a non-parole period of 12 months - parity.
Legislation Cited: s5(2AA)(a) Sentencing Act 1991
Cases Cited: DPP v Dinh [2020] VCC 1083 Azzopardi v The Queen (2011) 35 VR 43, The Queen v Mills (1998) 4 VR 235 Guden v The Queen (2010) 28 VR 288, Zhao v The Queen [2018] VSCA 267, Quy Nguyen v The Queen [2017] VSCA 127, Brown v The Queen [2020] VSCA 60
Sentence: total effective sentence of 24 months' imprisonment with a non-parole period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Singh | Office of Public Prosecutions |
| For the Accused | Mr T. Kassimatis QC | James Dowsley and Associates Pty Ltd |
HIS HONOUR:
1 Phat Duong, you have pleaded guilty that at Pakenham on 30 October 2019 you cultivated a narcotic plant, namely cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant. You have also pleaded guilty that at Pakenham on 30 October 2019 you stole electricity belonging to Click Energy Pty Ltd.
2 A summary charge of possessing a prohibited weapon, namely Oleoresin Capsicum spray, without an exemption or approval under the Control of Weapons Act 1990 was transferred to this Court pursuant to s145 of the Criminal Procedure Act. You pleaded guilty to that summary charge.
3 The circumstances of your offending are set out in the Summary of Prosecution Opening on Plea which was tendered and marked Exhibit P1.
4 Your offending on the indictable charges was committed with a co-offender, Nhu Ho Ai Dinh. On 22 July 2020, I sentenced Ms Dinh to a total effective sentence of 24 months’ imprisonment with a non-parole period of 12 months.[1]
[1]DPP v Dinh [2020] VCC 1083
Circumstances of offending
5 On 22 March 2019, you and Ms Dinh leased residential premises at 26 Salvia Avenue, Pakenham. You were both living at that address when on
30 October 2019, police executed a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act 1981. The execution of the search warrant was part of a wider police investigation in relation to cannabis crop houses.
6 At approximately 9.00am that day, you answered a knock on the door. You were met by a police officer who asked whether there were any drugs in the house. You said there were.
7 Police entered the house and saw a room off the main hallway that was full of plants believed to be cannabis in a hydroponic set-up.
8 A forensic botanist attended the house and examined the plants in each of the rooms. She found the following:
(a) in room 1, 12 cannabis plants weighing 22.70 kilograms;
(b) in room 2, 12 cannabis plants weighing 21.62 kilograms;
(c) in room 3, 12 cannabis plants weighing 20.18 kilograms.
9 The total quantity of cannabis plants growing at the residence weighed 64.50 kilograms and forms the basis of Charge 1.
10 An AusNet electrician also attended at the residence and examined the hydroponic set-up. He identified in each of the rooms where the cannabis plants were growing the following:
(a) in room 1, 12 x 660 watt lamps and ballasts and a 160 watt carbon filtered exhaust fan;
(b) in room 2, 12 x 660 watt lamps and ballasts and a 160 watt carbon filtered exhaust fan;
(c) in room 3, 12 x 660 watt lamps and ballasts and a 240 watt carbon filtered exhaust fan.
11 Also found were water pumps for irrigation of the plants.
12 An electrical bypass was found installed in the main bedroom. The electrician identified irregular wiring had been connected to the unmetered mains cables. It was estimated that, on the equipment installed, the system would use approximately 298.56 kilowatt hours per day. Click Energy is the retailer of the electricity at this residence. Charge 2 is based on the theft of electricity by means of the electrical bypass.
13 Police also located a can of capsicum spray in a kitchen drawer. You told the police when interviewed that you found the spray in the park. Your possession of that spray forms the basis of the summary charge.
14 You were arrested by police and taken to the Dandenong Police Station. You mostly answered “no comment” during the interview.
15 You were remanded in custody. On 21 January 2020 you were granted bail. Following negotiations with the prosecution, a plea of guilty to the charges was entered at a committal mention on 5 March 2020.
Background and personal circumstances
16 You were born in Vietnam in 1985. Your parents separated when you were two years of age, and you were raised by your father. You have had no contact with your mother since your parents’ separation.
17 At the age of nine, you migrated to Australia with your father and older sister. Your father has mostly worked as a farm hand since your arrival and is now on the pension. Your sister is employed as a nurse with Northern Health and has a young child. They continue to live in Australia although, because of the COVID-19 pandemic, your father is currently stranded in Vietnam. He will be returning to Melbourne when he is permitted to do so.
18 Upon arrival in Australia, you lived in the Deer Park and St Albans areas of Melbourne. Like many migrant children before you, you did not speak English upon your arrival. Despite that, you persisted with your education and managed to complete year 12 at Deer Park Secondary College.
19 On leaving school, you have had a number of jobs including working on a mushroom farm for some 12 months, work in the hospitality and restaurant industries, and work with a flooring company.
20 You are a permanent resident of Australia but not an Australian citizen. You face the prospect of deportation to Vietnam at the expiration of your sentence despite, in effect, now having no family or social ties to Vietnam.
21 You are a person without previous criminal convictions, and I have had regard to the character references tendered on your behalf. Your character referees, most of whom you know through your involvement in badminton, speak very highly of you.
22 Chau Le stated that you have always been a trustworthy and loyal friend, who is always willing to help out if any of your friends need help. She was in shock and disbelief when she became aware of the charges against you. She stated that you are regretful for your behaviour and you have acknowledged your wrongdoing.
23 Xavier Vuong also wrote of your willingness to assist others and gave examples of occasions when you have helped a friend and a stranger. He also speaks of the regret and shame you have shown for your offending behaviour.
24 Sang To also met you through badminton. You have worked for him on a part-time basis over the last four years as a “steel fixer”. He describes you as loyal and hardworking.
25 There was a reference from Trung Pham, Director of Click Flooring Pty Ltd. He has also employed you and stated that you are hardworking and often the last person to leave the office. You have worked with him during your time on bail and have demonstrated a positive work ethic.
26 Finally, a reference was provided by your sister, Tien Duong. Your sister writes of the sacrifice you made for her and your father. On completing
Year 12, rather than continue with your studies, you obtained work in order to help her and your father financially. She writes that you feel shame and regret for your actions, and that you know that your actions were wrong. Your sister also writes that you are frightened at the prospect of being deported from the country in which you have spent most of your life.
Defence Submissions
27 Mr Kassimatis, of Senior Counsel, relied upon a number of factors in mitigation of penalty.
28 First, he called in aid your youth at the time you committed the offences. You were 23 years of age at the time you offended. You are properly to be regarded as a youthful offender. Mr Kassimatis relied on the well-known principles regarding young and youthful offenders set out in cases such as Azzopardi v The Queen[2] and The Queen v Mills.[3]
[2](2011) 35 VR 43
[3](1998) 4 VR 235
29 He submitted that as a youthful offender, you should not be dealt with in the same manner as an adult for the following reasons:
(i) Your immaturity at the time you committed the offences rendered you less able than the average adult to analyse the consequences of your actions and to control your impulses;
(ii) As a youthful offender you are less amenable to principles of either general or specific deterrence;
(iii) Because of your immaturity, you are liable to be more vulnerable to the polluting influences of gaol; and
(iv) as a youthful offender you must, except perhaps in the most exceptional of circumstances, be seen as being capable of reclamation.
30 Mr Kassimatis submitted that a sentence which promoted your rehabilitation will best serve the aim of protecting the community. He submitted that despite the seriousness of your offending, the sentence to be imposed should have at its forefront, your rehabilitation
31 The next matter relied upon by Mr Kassimatis related to the prospect of your deportation at the expiration of any sentence that I impose.
32 It was submitted that the sentence you will attract will cause you to fall foul of the “character test” in s.501 of the Migration Act and trigger the automatic cancellation of your permanent residency visa. As you have a right of review, it was put that you face the prospect of deportation at the expiration of your sentence.
33 Mr Kassimatis submitted that, in the knowledge that you may be deported, the burden of imprisonment will be greater upon you than on an ordinary prisoner. Furthermore, that the sentence may mean, if it does result in your deportation, that you will lose the opportunity to remain in the country to which you and your family migrated when you were a mere child.
34 In Guden v The Queen,[4] it was stated:
“As the Crown properly conceded on this appeal, the fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. Moreover, … in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. Taking a practical approach, as the Court there did, this may well be viewed as a serious ‘punishing consequence’ of the offending.”
[4](2010) 28 VR 288 at [27]
35 Your counsel further submitted that the burden of your sentence will be greater in the knowledge that you will be unlikely to be granted parole after serving your minimum term. Reliance was placed upon the Court of Appeal decision in Zhao v The Queen.[5]
[5][2018] VSCA 267
36 Mr Kassimatis next relied on a number of other matters in further mitigation which I summarise as follows:
(i) you have pleaded guilty to a single day’s cultivation only;
(ii) you pleaded guilty at the earliest possible time, and this has utilitarian benefits;
(iii) your remorse and “self-castigation”;
(iv) your age and immaturity now and at the time of your offending;
(v) you have no criminal history and are a person otherwise of good character;
(vi) you accept responsibility for your offending;
(vii) your role in the offending overall;
(viii) parity with your co-offender, Ms Dinh;
(ix) your insight into your offending and its actual and potential impacts, including gaol and deportation;
(x) the impact that the COVID-19 pandemic will have on your period in custody;
(xi) your prospects of rehabilitation are to be regarded as excellent.
37 With regard to the issue of parity, Mr Kassimatis submitted that the circumstances of your case do not necessitate that you be sentenced to a term of imprisonment that exceeds the sentence imposed on your co-offender.
Prosecution submissions
38 Ms Singh, who appeared on behalf of the Director of Public Prosecutions, submitted that, in the circumstances of your case, the only appropriate sentencing outcome was that requiring a head sentence with a non-parole period.
39 Ms Singh relied on the quantity of cannabis cultivated in what she described as a sophisticated hydroponic set-up comprising lamps and ballasts, water pumps for irrigation, and an illegal electrical bypass system.
40 Ms Singh submitted that the quantity of cannabis you cultivated was 2.58 times the commercial quantity and that your offending was for the purpose of making a profit. However, she accepted that your role was not one of an ultimate organiser and did not dispute Mr Kassimatis’ description of your role as one of ‘crop-sitter’. Ms Singh submitted that it was, nevertheless, important to have regard to all the circumstances involved in your offending, including the fact that you leased the premises and that several rooms in your house were given over to the cultivation of the cannabis.
41 With regard to your counsel’s submissions concerning your deportation,
Ms Singh referred to s5(2AA)(a) of the Sentencing Act 1991 submitting that I must not have regard to any possibility or likelihood that the length of time actually spent in custody by you will be affected by executive action of any kind. I am to assume, when sentencing you, that you will serve each and every day of the total effective sentence. Otherwise, it was accepted by
Ms Singh that the prospect of deportation may be considered in the manner raised by the Court of Appeal in Guden.
42 Ms Singh submitted that, consistent with Quy Nguyen v The Queen,[6] general deterrence is of primary importance for the offending in which you were engaged. It was further submitted that other sentencing purposes include community protection, just punishment, rehabilitation and parity.
[6][2017] VSCA 127
43 Ms Singh pointed to the fact that you were a “youthful” offender at the time you committed the offence but not a “young offender” within the meaning of the Sentencing Act.
44 With regard to the impact of COVID-19 on prisoners, Ms Singh referred to the Court of Appeal’s decision in Brown v The Queen[7] to the effect that the extent to which the impact may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.
[7][2020] VSCA 60
Sentencing Considerations
45 You have pleaded guilty to the two charges on the indictment as well as the summary offence. The seriousness of the charges on the indictment is reflected in the maximum penalties applicable to each offence. On charge one the maximum penalty is 25 years' imprisonment. On charge two, the maximum penalty is 10 years' imprisonment. On the summary charge, the maximum penalty is 240 penalty units or two years' imprisonment.
46 The quantity of cannabis which you and your co-offender cultivated was, by weight, 2.58 times the commercial quantity. It was submitted, and not disputed, that you were to receive some of the proceeds from the sale of the cannabis. You instructed your counsel that the reason you became involved in the cultivation was “to make a bit of money”.
47 In assessing the nature and seriousness of your offending I have regard to the fact that it involved cultivation on a single day only. I accept that you were not the organiser of the crop and there is no evidence to suggest that your role was anything other than that of a “crop-sitter”. Nevertheless, the role of a crop-sitter is an important one enabling cannabis cultivation and trafficking enterprises to succeed and shields those higher up from the risk of detection.
48 The premises at which the cultivation took place were those in which you were living and hence you and your co-offender were most exposed to the risk of apprehension. A point of distinction between you and your co-offender was that you do not accept that you leased the premises for the purpose of cultivation. Had you conceded the point then your offending would have involved an element of planning for the cultivation. The learned prosecutor accepted that the evidence in your case did not disclose that your purpose in renting the premises was for the purpose of cultivation.
49 In assessing the seriousness of your offending I also have regard to the quantity of cannabis being cultivated as well as the sophisticated nature of the hydroponic system. It was not suggested, however, that you set up the hydroponic system or installed the electrical by-pass.
50 I also have regard to the fact that the offence of cannabis cultivation is prevalent within the Victorian community and is one which is difficult to detect. It is often associated with the theft of electricity.
51 Your pleas of guilty have provided utilitarian benefits and, in pleading guilty, you have facilitated the course of justice. Your pleas also mark your acceptance of responsibility for your offending. You have spared the need for a committal hearing and trial, and witnesses have been spared from having to give evidence. I also accept that your pleas are an indicator of your remorse. Your remorse is also evident in the character references tendered on your behalf. I find that you are genuinely remorseful for your conduct.
52 I have regard to the fact that you have no previous convictions and the references provided show that you are a person of otherwise good character. These matters bode well for your prospects of rehabilitation.
53 As to those prospects, I also have regard to your relative youth, your good work history, your strong family support and your compliance with your bail undertaking since January this year. I consider that you have very good prospects of rehabilitation.
54 In R v Mills,[8] Batt JA, with whom the other members of the court agreed, accepted the following propositions:
[8] Ibid at [241]
(i) youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where the matter properly arises;
(ii) in the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending; and
(iii) a youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.
55 In your case, it was properly accepted by your counsel that a term of imprisonment, with a non-parole period, was the only sentencing disposition realistically open. However, that is not to say that the consideration of youth becomes less important. In my opinion, having regard to all of the circumstances, particularly your youthful age at the time you offended, the fact that you are charged with a single day’s cultivation only, and the fact that you have no previous convictions, your rehabilitation is the primary sentencing consideration.
56 I have regard also to the fact that this is your first experience of imprisonment and have little doubt that it will have a significant deterrent effect upon you. Given this, as well as my findings with regard to your rehabilitation prospects, I consider that the need for specific deterrence is to be moderated.
57 I also have regard to the fact that your experience of imprisonment will be more burdensome by reason of the anxiety you will experience as a result of the prospect of deportation; the potential loss of opportunity to remain in Australia; and the prospect that you may not become eligible for parole by reason of your possible deportation. In making this finding I have regard to the fact that you have lived in Australia since the age of nine; you have made your life in Australia; it was your plan to continue living here; your immediate family live here; and that you effectively have no close family or ties to Vietnam. I also have regard to the fact that whilst a court must assume that an offender will serve each and every day of the total effective sentence, as was recognised by the Court of Appeal in Zhao, the reality for most prisoners is quite different. Most prisoners have the expectation that they will be granted parole at the expiration of their minimum term and it is that minimum term which is the focus of their interest and concern.[9]
[9] See Zhao [67]-[69]
58 General deterrence and denunciation remain important factors. I am required to have regard to the need to denounce your conduct and to impose just punishment. As earlier mentioned, the offence of cannabis cultivation is prevalent within the Victorian community and is often associated with the theft of electricity. Persons who are minded to become involved in such illegal activity must understand that if they do so they risk the imposition of stern punishment.
59 Section 5(2)(b) of the Sentencing Act 1991 requires that I have regard to current sentencing practice. I have done so and note that most persons convicted of the offences that form charges one and two on the indictment receive gaol sentences of varying lengths. Current sentencing practice is, of course, but one of the many factors to which I am to have regard in determining an appropriate sentence. In Quy Nguyen v R[10] Osborn JA stated the “[s]entencing decisions in comparable cases must be had regard to as ‘yardsticks’ that may serve to illustrate (although not define) the possible range of sentences.”
[10] [2017] VSCA 127 at [41]
60 I am also required to have regard to the sentence imposed on your co-offender. The principle of parity is an aspect of equal justice which requires that like offenders should be treated alike save where there are relevant differences. In this case there are a number of differences between you and your co-offender in both the offending (the purpose for which the lease of the premises was entered) and your personal circumstances. With respect to the latter, you are younger than your co-accused and whilst she too was relatively young, she was not sentenced as a youthful offender. However, when I sentenced her, I considered that her moral culpability, unlike your own, was reduced by reason of her personal circumstances shortly before the offending was committed. Neither counsel pressed strongly that I should treat you differently from Ms Dinh. I do not consider the differences between you to be such that a different sentence ought to be imposed on you from that imposed on your co-offender.
Sentence
61 Having regard to all of the matters, I sentence you as follows:
- On charge one, you are convicted and sentenced to 22 months' imprisonment.
- On charge two, you are convicted and sentenced to 6 months' imprisonment.
- On the summary charge, you are convicted and fined the sum of $300.
62 I direct that two months of the sentence imposed on charge two is to be served cumulatively on the sentence imposed on charge one. This makes a total effective sentence of 24 months' imprisonment. Having regard to my finding with respect to your prospects of rehabilitation, I set a non-parole period of 12 months.
63 Pursuant to section 18 of the Sentencing Act I declare the period of imprisonment already served under the sentence to be 91 days not including today.
64 Pursuant to section 6AAA Sentencing Act had it not been for your pleas of guilty the sentence I would otherwise have imposed is one of 30 months with a non-parole period of 20 months' imprisonment.
65 Ms Singh, are there any other orders that are sought?
66 MS SINGH: A disposal order is sought, Your Honour.
67 HIS HONOUR: A disposal order? Right. Mr Kassimatis, no issue?
68 MR KASSIMATIS: No issue, Your Honour.
69 HIS HONOUR: I will make the disposal order that has been sought by the prosecution.
70 MS SINGH: As Your Honour pleases.
71 HIS HONOUR: Are there any other matters which I need to address?
72 COUNSEL: No, Your Honour.
73 HIS HONOUR: I am grateful to both of you for your assistance in this matter. Mr Kassimatis, would you like some time to speak in private with your client?
74 MR KASSIMATIS: We managed to have a chat before Your Honour came onto the Bench but yes, a few words perhaps now that sentence has been passed. Yes. I'd be grateful.
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