Director of Public Prosecutions v Duong

[2018] VCC 1018

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-18-01092

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANH THI DUONG

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JUDGE:	HIS HONOUR JUDGE C RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2018
DATE OF SENTENCE:	28 June 2018
CASE MAY BE CITED AS:	DPP v Duong
MEDIUM NEUTRAL CITATION:	[2018] VCC 1018

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:             PLEA – Possess drug of dependence – Cannabis L – Plea of guilty.

Legislation Cited:     Sentencing Act 1991

Sentence:                 18 months’ imprisonment with a non-parole period of 12 months’ imprisonment; 234 days pre-sentence detention; Forensic sample order; 6AAA declaration: 2 years’ and 6 months’ imprisonment with a non-parole period of 18 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms P. Thorpe	Office of Public Prosecutions
For the Accused	Mr A. Dickenson	Giorgianni & Liang Lawyers

HIS HONOUR:

1       Anh Thi Duong, on 22 June 2018 you pleaded guilty to one charge that between 28 August 2017 and 6 November 2017 you possessed a drug of dependence, namely Cannabis L.  The maximum penalty for this offence is five years’ imprisonment.

2       You are a woman without prior conviction.

3       Tendered as Exhibit A and read aloud in court was the summary of Prosecution Opening upon Plea.  In summary, you resided with your child at 9 Treeve Parkway in Werribee.  The purpose of you residing at that residence was to provide to the outside world a sense of normality about that residence.  In combination with the presence of your co‑offender, Cuong Thanh Nguyen, and your child, you represented to the outside world that the address at Werribee was occupied in a normal lawful way.

4       It was put on your behalf by your counsel that you were present at the Werribee address prior to the establishment of the cannabis crop.  However, you played no part in setting up the crop, but plainly, by your plea, were in possession of it.

5       When police executed a search warrant at the Werribee address on 6 November 2017 they found everyday household items, including couches, beds, and the like, together with child’s toys and baby formula.

6       You were arrested, but, like your co‑offender, owing to the unavailability of a Vietnamese interpreter you were not interviewed under caution.

7       Like your co‑offender, you had overstayed your visa and were illegally in Australia.  You were remanded in custody and have remained so since the date of your arrest.

8       Like your co‑offender, this matter resolved on the day of your committal hearing, and accordingly your plea is to be taken as an early one.  Accordingly, you are entitled to the benefits that flow to you from your plea; namely, that it is some evidence of your remorse, and that it has utilitarian benefit.

9       You were born in Vietnam on 12 September 1990, and accordingly are 27 years of age.  Your family were farmers.  Your father died whilst you were in custody, and this has caused you to grieve.  Your mother is 49 years of age and still works the family farm.  You are the eldest of five siblings, having two brothers and two sisters.

10      Your husband, Minh Van Nguyen, came to Australia at the end of 2014 pursuant to a student visa.  You followed your husband to Australia on a spousal support visa.  You were not entitled to any government assistance arising from this form of visa.  Initially you lived with your husband in St Albans and you worked at a bakery in St Albans until the end of 2015.  You stopped work when you became pregnant with your son, and after his birth you remained at home to care for him.

11      In October 2016 your husband was arrested for his involvement in a hydroponic cannabis crop.  On 24 March 2017 His Honour Judge Maidment sentenced your husband to three years’ imprisonment with a non-parole period of 20 months’ imprisonment for cultivating a narcotic plant in not less than a commercial quantity between 5 June and 5 October 2016, as well as stealing electricity between those dates.

12      You have two children: a daughter aged 4½ years who lives with your mother in Vietnam, and your son, who is now 23 months old, who is living with you at the Dame Phyllis Frost Centre.

13      It was put on your behalf that you have had a difficult time in custody because have little or no English.  Also, the untimely death of your father, and your inability to attend his funeral, has added to your difficulties on remand.  You are isolated from your family and friends.

14      I was informed that you have used your time in custody fruitfully by studying English, undertaking a drug education course, and working within the prison packing headphones for Qantas.  However, this last aspect of your time in prison stopped when you were reunited with your son.

15      The role that you played in the criminal combination taking place in Werribee was an important one, in that you provided the appearance of normality to the house by your presence with your child.  However, I was informed by your counsel that with the imprisonment of your husband you had no source of income from government sources because of the nature of your visa.  You lost your rented accommodation, and you were approached by the ubiquitous stranger to live at the Werribee address, which offer you accepted.

16      It was conceded that the only appropriate sentence in your case was a term of imprisonment; however, it was submitted that time served met all the purposes of sentencing in your case.  You will be deported at the end of your sentence.

17      In my view, general deterrence plays an important role in arriving at an appropriate sentence in your case.  Your role in the criminal enterprise was not insignificant.  I am of a view that the time which you have served is not sufficient to meet the proper purposes of sentencing.

18      Doing the best I can, taking into account your personal circumstances and the objective circumstances of your offending, and applying the sentencing principle, I sentence you to a term of imprisonment of 18 months and order that you serve 12 months’ imprisonment before you will become eligible for parole.

19      I declare that you have spent 234 days by way of pre-sentence detention, not including today.

20 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to two years and six months’ imprisonment with a non-parole period of 18 months’ imprisonment.

21      MS THORP:  Your Honour, there are two orders.

22      HIS HONOUR:  I understand that.

23      In respect of you, Ms Duong, the Crown have made a similar application, that is for a forensic sample being a scraping from your mouth.  I have granted that order because of the seriousness of the circumstances of your offending warrant the order and further, that the granting of the order is in the public interest.  I must inform you that if at the time of request, you do not consent to taking of a mouth scraping under the supervision of an authorised member of the police, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.  I have signed three copies of that order.

24      Are there any other matters that arise?

25      MS THORP:  No, Your Honour.

(Prisoner removed.)

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