Director of Public Prosecutions v Duong and Trinh
[2012] VCC 1592
•4 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 12-01341 and CR-12-01342
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUYEN THANH DUONG |
| and |
| VAN BINH TRINH |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 September 2012 | |
DATE OF SENTENCE: | 4 October 2012 | |
CASE MAY BE CITED AS: | DPP v Duong and Trinh | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1592 | |
REASONS FOR SENTENCE
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SUBJECT – CRIMINAL LAW
CATCHWORDS – Sentence – Pleas of guilty - Cultivation of Narcotic plant (commercial quantity) – Theft of electricity
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cronin | Solicitor for Office Public Prosecutions |
| For the Accused Duong | Mr C. Nikakis | Haines & Polities |
| For the Accused Trinh | Mr P. Bourke | TM Lawyers |
HER HONOUR:
1 Huyen Thanh Duong, you have pleaded guilty to two charges of cultivation of a narcotic plant in a commercial quantity and two charges of theft. Van Binh Trinh, you have pleaded guilty to one charge of cultivation of a narcotic plant in a commercial quantity and one charge of theft. Cultivation of a narcotic plant in a commercial quantity carries a maximum penalty of twenty-five years' imprisonment, whilst theft has a maximum penalty of ten years' imprisonment.
2 The learned Prosecutor on the plea, Mr Cronin, opened the plea as follows:
3
He said that you, Huyen Thanh Duong, were fifty-one years old and resided
at 51 Belmore Street, Sunshine at the time of the offending. You, Van Binh Trinh, were aged fifty-nine years at the time of offending and resided at
11 Clare Brennan Drive, Cairnlea.
4 Police from the Moorabbin Divisional Response Unit conducted an investigation into the cultivation of cannabis at a number of addresses in Greater Melbourne and as a result of the investigation, a number of addresses were searched by police.
5 I now go to the factual basis for Charge 1 - Cultivation of a Narcotic Plant in a Commercial quantity which concerns both of you.
6 At about 7.30 am on Thursday, 29 September 2011, police executed a search warrant at your premises, Mr Trinh – that is, in Clare Brennan Drive, Cairnlea. They entered via a garage door, through a side entry into the main house. You Mr Trinh were in the lounge room and ran towards the front door, where you were arrested.
7 Police began to search the premises and in an upstairs area, they saw four bedrooms with cannabis plants being grown hydroponically. Each of the plants was growing in plastic pots with lights suspended above them. Transformers with electrical timers were found in the robe area of each of the bedrooms. The transformers were used to regulate the electricity to the lighting system. Each of the rooms had a recirculating watering system to supply water to the plants. In the linen closet a smaller hydroponic set up was found. In the upstairs bathroom there were large containers of nutrients.
8 Botanist, Scott Azzopardi, attended your premises, Mr Trinh, and examined the cannabis plants.
9 In Bedroom 1, he found 35 cannabis plants measuring approximately 70 to 90 centimetres in height. These were slightly bushy female plants which were close to maturity and weighed 42.42 kilograms, excluding their roots. They were estimated to be 11 to 13 weeks old.
10 In Bedroom 2, he found 41 cannabis plants measuring about 75 to 90 centimetres in height. These were slightly bushy female plants which were close to maturity and weighed 59.34 kilograms, excluding their roots. They were estimated to be 11 to 13 weeks old.
11 In the third bedroom, he found 64 cannabis plants measuring about 60 to 90 centimetres in height. These were slightly bushy immature plants and weighed 20.06 kilograms, excluding their roots. They were estimated to have grown for approximately five to seven weeks, which is regarded as the post-nursery phase.
12 In the fourth bedroom, he found 25 cannabis plants measuring about 70 to 90 centimetres in height. These were slightly bushy female plants that were close to maturity and weighed 27.02 kilograms, excluding their roots. They were estimated to be 11 to 13 weeks old.
13 In the hallway cupboard, he found 70 plants and two leafy stems. The plants were 10 to 21 centimetres in height, were immature and weighed 466.7 grams. It was estimated that these had been propagated up to four weeks beforehand.
14 In total, 235 plants weighing approximately 150 kilograms were seized from this address.
15 Toothbrushes seized from the Cairnlea address were analysed and DNA profiles which matched the profiles of each of you were obtained. Medication in the name of each of you was also found at the address.
Charge 3: Theft (Duong and Trinh)
16 A revenue protection officer attended and found an electrical bypass. It is estimated that the loss to AGL in relation to the illegal usage of electricity is $7573.62.
Charge 2: Cultivation of Narcotic Plant – Commercial Quantity (Duong)
17 At about 7.00 am on Thursday, 29 September 2011, police executed a search warrant at 11 Truslove Court, Endeavour Hills. No one was at home at the time of the search. Police found cannabis plants being grown hydroponically in the house.
18 Each of the plants was growing in plastic pots with lights suspended above them. Transformers with electrical timers were attached and used to regulate the electricity to the lighting system. Each of the rooms had a recirculating watering system to supply water to the plants via interconnected plastic tubing.
19 Again, Scott Azzopardi examined the plants.
20 In the kitchen, police found 47 cannabis plants measuring about 80 centimetres to 1 metre in height. These ranged from slightly bushy to bushy female plants which were mature and weighed 52.20 kilograms, excluding their roots. They were estimated to be 12 to 14 weeks old.
21
In a bedroom, 17 cannabis plants were found and they measured about
90 centimetres to 1.1 metres in height. These were slightly bushy to bushy female plants which were mature and weighed 25.05 kilograms, excluding their roots. They were estimated to be 12 to 14 weeks old.
22 In another bedroom, a further 17 cannabis plants were found and they measured about 80 centimetres to 1 metre in height. They were slightly bushy to bushy female plants which were mature and weighed 24 kilograms, excluding their roots. These were estimated to be 12 to 14 weeks old.
23 In another bedroom, 64 cannabis plants were found and they measured about 1.1 to 1.3 metres in height. These were slightly wilted and were slender to slightly bushy, immature plants and weighed 37.05 kilograms, excluding their roots. They were estimated to be six to eight weeks old – that is, in the post-nursery phase.
24 In another bedroom, 70 cannabis plants were found and they measured about 12 to 21 centimetres in height. They were immature and weighed 268.2 grams, excluding their roots. These were estimated to have been propagated up to six weeks before seizure.
25 In total, 215 plants weighing approximately 140 kilograms were seized from this address.
26 A toothbrush seized from this address at Endeavour Hills was analysed and a DNA profile was obtained which matched your profile, Ms Duong.
Charge 4: Theft (Duong)
27 A technician from Formway Metering Group attended the property and found an illegal electrical bypass connected to the mains cables in the roof space. It is estimated that the loss to AGL in relation to the illegal usage of electricity is $6541.71.
Items found at 1012 Nepean Highway, Highett.
28 At 8.33 am on 29 September 2011, police attended 1012 Nepean Highway in Highett and arrested you, Ms Duong. The house where you were found had a “For Sale” sign out the front of it. You, Huyen Thanh Duong, emptied your handbag and police found a set of keys which opened a shed in the back yard. Stored in the shed was a large quantity of hydroponic equipment, including 62 transformers, 61 light shades, four carbon filters, empty black plant pots, a large quantity of electrical leads and irrigation pipes.
29 A light bulb found in the shed was fingerprinted and matched your print profile, Ms Duong. Shrouds and transformers from the shed were also fingerprinted and matched your print profile, Mr Trinh.
30 On 5 September 2011, police had observed you, Mr Trinh, at the house on Nepean Highway, while the property was open for inspection in respect of the proposed sale.
31 Mr Cronin indicated that the possession of the equipment at this address in Highett was not alleged as a separate charge but formed part of the alleged facts in relation to each of the commercial cultivation charges. In dealing with this aspect of the evidence I have borne in mind that in your case, Mr Trinh, the evidence can only be relevant to the one charge for which I am sentencing you.
Records of Interview
32 You, Ms Duong, were transported to the Moorabbin Police Station and interviewed on 29 September 2011 with the assistance of a Vietnamese interpreter. You exercised your right to make a “no comment” record of interview.
33 You, Mr Trinh, were interviewed on 29 September 2011, again with the assistance of a Vietnamese interpreter. You also exercised your right to make a “no comment” record of interview.
34 Both of you were charged on 29 September 2011 and were remanded in custody. Hence, at the time of the plea, pre-sentence detention was 365 days and is now 371 days. I was told that you, Ms Duong, made an application for bail in November of last year, which was refused. You, Mr Trinh, have not made an application for bail.
35 [Sorry Madam Interpreter I just want to interrupt for a moment, do you have a glass of water there?
36 INTERPRETER: I'm all right Your Honour.
37 HER HONOUR: Are you all right?
38 INTERPRETER: Yes.
39 HER HONOUR: All right, thank you, I will continue.
40 You, Ms Duong, have prior matters as follows:
41 On 29 August 2000, you were fined without conviction at the Sunshine Magistrates’ Court for theft which was an instance of shoplifting.
42 More relevantly, on 21 October 2003, in this Court, you were convicted of trafficking heroin and sentenced to nine months' imprisonment which was wholly suspended for two years, you having served 49 days in custody according the sentencing remarks of his Honour Judge Coish. I shall refer to his sentencing remarks further in a moment.
43 On 24 July 2007, at Castlemaine Magistrates’ Court, you were convicted of possess cannabis and fined $350.
44 You, Mr Trinh, have the following prior matters.
45 On 9 March 1985, you were convicted at the Sunshine Magistrates’ Court of wilfully damaging property and fined $150.
46 More relevantly in your case, on 5 November 2003, in this Court, you were convicted of trafficking heroin and sentenced to three years' imprisonment with a non-parole period of two years.
47 In relation to the trafficking heroin convictions that you each have, you were co-offenders in relation to that offending to an extent - you Ms Duong were involved to the extent of one instance of possessing heroin which gave rise to a presumption of trafficking, while you Mr Trinh sold heroin to an undercover policeman on a number of occasions. I take into account that these prior matters occurred about eight years before you committed the offences for which I now sentence you. This is a not an insignificant gap in time, which I take into account. However, it is of concern that you each chose to re-offend in a serious and relevant fashion on the occasions for which I now sentence you.
48 In each of your cases, the offending is serious. In respect of Charge 1, the total number of plants was more than double the threshold quantity for commercial quantity and their weight was six times that of the threshold weight for commercial quantity. However, in my overall assessment of the seriousness of the offending, I also take into account the dry weight of the cannabis, which in respect of Charge 1, was predicted to be 27.4 kilograms; although this excludes 70 plants, being Item 3, in the relevant statement of Scott Azzopardi, and also appears to exclude ‘Item 6’- 64 plants being 64 slightly bushy immature plants and ‘Item 4’, being two leafy stems found amongst plants from Item 3.
49 In relation to Charge 2, which concerns you alone, Ms Duong, the total number of plants was slightly more than double the threshold quantity for commercial quantity and the total (wet) weight was approximately five and a half times the threshold weight for commercial quantity. However, I also take into account the dried weight of 21.9 kilograms pertaining to Items 1, 2 and 3 referred to in the relevant statement of Mr Azzopardi, although this does not include ‘Item 4’, being 64 slender to slightly bushy immature plants, and ‘Item 5’, being 70 plants which were slightly wilted and immature.
50 Insofar as the dried weights are concerned, it has some bearing on the level of commerciality involved in the offending and therefore the seriousness of the offending. So, as I say, I am prepared to factor this in but also have regard to the wet weight of the total number of plants and the total wet weight in respect of each of the crops; again, I make it clear that in doing so, I am most conscious of the fact that I am sentencing you, Mr Trinh in respect of the Charge 1 only insofar as commercial cultivation is concerned.
51 In sentencing each you, I must place significant weight on the principle of general deterrence – that is, the sentences which I impose in respect of each of you for the offences you have committed must serve to deter others from offending as you have. In each of your cases, I must impose a sentence which serves to justly punish you and denounce your conduct in committing these offences. Again, in doing so, I make it clear that I am mindful that I am sentencing you, Ms Duong, in relation to two charges of cultivating a commercial quantity of cannabis and two charges of theft, whilst in your case, Mr Trinh, I am sentencing you in relation to Charge 1 and Charge 3 only.
52 In your case, Mr Trinh, you offered to plead guilty to the present plea indictment against you at the earliest opportunity, being at committal mention in February 2012. However, the Crown rejected your offer to plead guilty to the offences at that time, and it was not until the committal hearing that the offer was accepted by the Crown without the need for the committal to go ahead. Therefore, you are entitled a substantial discount in the sentence that you would otherwise receive, as you have saved the community the time and expense that contested proceedings would have involved, and you have saved the witnesses the time and trouble of giving evidence at such proceedings.
53 Mr Bourke submitted that your offer to plead guilty at an early stage also manifested your remorse. You did offer to plead guilty at a stage before the DNA and fingerprint results were in, but in circumstances where, as Mr Nikakis said, you were found at the premises where the marijuana was growing. Further, you tried to flee as the police entered the premises. You then made a “no comment” record of interview, which is your right, but again this does not signify remorse, at least at that stage. Whilst an early plea of guilty may signify remorse, this is not automatically the case; an assertion from the Bar table that this is what it signifies is not sufficient in my view, especially in circumstances where your implication in the offending was strong from the outset. Albeit that it is eight years since your prior conviction for drug trafficking, I also factor this in when looking at the question as to whether you are sorry for what you have done on the occasion for which I sentence you. Whilst I have no doubt that you are sorry that you were caught, I am not satisfied in all of the circumstances, that you are remorseful for your criminal conduct; nor was anything put before me which suggested that you had any concern for the ultimate consumers of the substance you were cultivating.
54 Whilst I take into account that you trafficked in heroin eight years before this offending, it is of concern to me that you have embarked on an activity which is similar in nature, apparently not deterred by the prison sentence which you had previously received. In relation to the prior matter, you pleaded guilty to trafficking a total of 182.1 grams of heroin between 22 March 2002 and 6 May 2002, selling to an undercover operative on five occasions, who paid a total of $47,200 for the heroin you supplied to him. I make it clear that I do not sentence you in relation to that prior matter. However, I factor it in when assessing your prospects of rehabilitation and the weight I need place on specific deterrence.
55
You have been in custody for over a year now without knowing your fate.
I understand that you did not apply for bail at any stage. You have a 24 year old daughter and a 26 year old son, both of whom have responsible positions in the workforce, and have done very well. They have been visiting you in prison and it appears that you can look to them upon your release for support in the community. I was told that you have no relationship with your former wife as you have not spoken to her for ten years.
56 Your command of English is limited and although there are others in the gaol population who speak Vietnamese, I accept that there will be a degree of isolation for you in gaol because of the language barrier. Another aspect of this is that, you have and will be limited in the courses which you undertake while you are in gaol. Therefore, I accept your counsel’s submission that you will find imprisonment slightly more difficult than those who understand and speak English fluently and I take this matter into account in sentencing you.
57 You were born in Vietnam and have five siblings. Both of your parents were factory workers. You attended school until Year 11 then worked as a trainee carpenter. Attempts were then made to conscript you into the Vietnamese army, but you resisted this, with the result that you spent two years in a re‑education camp in Vietnam. You married whilst in Vietnam and had two children, to whom I have previously referred. Your family fled by boat to Hong Kong, and you spent two years in a refugee centre there before being accepted into Australia in 1984 and 1985. The family settled in Springvale then moved to the Footscray/Sunshine area.
58 Your work history has been sporadic. You worked as a handyman and factory worker from time to time, but found obtaining stable employment difficult.
59 I was told that about ten years ago, your marriage collapsed and you left the family home, leaving your former wife and children to live there. According to the sentencing remarks of His Honour Judge Gullaci dated 5 November 2003, your marriage broke down in 1994 and you divorced in 1996, so it may well be that these events occurred between 16 and 18 years ago.
60 I understand from discussion this morning that you accept that you may have been mistaken about the dates in relation to when it was that these events occurred. In any event, since the time that you left the family home, accommodation for you has been variable.
61 You have remained single since your marriage broke down, but you and Ms Duong have had an “on and off” relationship. Your mother still lives in Vietnam and your father passed away a few months ago. I was told that in 2009, you suffered a stroke. I understood from Mr Bourke's plea that it was after your marriage breakdown, that you then commenced consuming marijuana, but as a result of discussion this morning, and Mr Parker's instructions from you, I understand that it was towards the end of 2004 or 2005 that you then commenced marijuana use.
62 His Honour Judge Gullaci remarked in the course of his sentencing remarks that Ms Northey, a psychologist who had prepared a report on that occasion, concluded that in relation to your offending at that time you had: "lost perspective due to family problems, gambling and financial pressure, anxiety and loneliness and boredom” (S. p4).
63
These were not advanced as motivations for your current offending. In this regard, no motivation was really advanced, although the commerciality of
your activity suggests that you simply wanted to make money. That was the motivation that His Honour found in respect of your previous offending, although he did find that you offended on that occasion after your marriage had broken down, you lost direction, were living in shared accommodation and "suffered from anxiety and probably depression.” (S. pp4-5)
64 It was not put by Mr Bourke that any of these factors were operating in respect of your current offending. In all the circumstances, I find that your moral culpability is high.
65 I was told that you will live with your son upon release from gaol. Mr Bourke said that hopefully you would settle back into the community, find some work and would not re-offend. I share that hope, Mr Trinh, and make it clear that if you choose to re-offend, you face the very real prospect of spending a good deal of your remaining life in gaol.
66 While in custody on this occasion you have participated in some English language classes and have attended an alcohol and drug awareness seminar. Hopefully, the latter course has helped you to appreciate the evil scourge that drugs have upon our community, if you needed a course to make you realise this.
67 Certainly, the sentencing remarks of His Honour Judge Gullaci should have brought that message home to you, notwithstanding that he made remarks specifically in respect of heroin. You have instructed Mr Bourke that you wish to pursue your study of the English language in a bid to become more fluent. Hopefully, this will assist you in engaging in and contributing to the community in a positive way when you are released from gaol.
68
Mr Trinh, although you are advancing in years, in circumstances where a significant gaol sentence did not serve to deter you from re-offending in a relevant way, and in view of your limited work history and the fact that your children’s support in the past has not assisted you to abstain from offending,
I find that your prospects of rehabilitation are fair at best. The only matter which really gives me some assurance that you will not re-offend is the fact that you are in advancing years and may not be as physically capable in
the future to commit further offences. In assessing your prospects of rehabilitation, I have taken into account the fact that there was an eight year gap which does show that you are capable of not committing offences for a significant period. However, of concern is the fact that not only did you re-offend, but you did so in league with Ms Duong who was your partner in crime to some extent, on the previous occasion. I must also place not insignificant weight upon specific deterrence.
69 In your case, the learned prosecutor submitted that a head sentence of four to five years with a non-parole period of two to three years was appropriate. Mr Bourke submitted that the lower end of the range was in keeping with current sentencing practice when regard was had to your particular circumstances. However, when asked, he submitted that the upper end of the range was not in keeping with current sentencing practice. I was not provided with any authorities in respect of this matter by any counsel, but I have had regard to the Victorian Sentencing Manual and a number of authorities referred to therein when considering this aspect.
70
I now turn to you, Ms Duong. You also made a "no comment" record of interview. You entered a plea of guilty to the charges before me at the committal hearing, which was at a stage when all material including DNA evidence and fingerprints were to hand. I was told that the informant, who was the only witness required to attend at the committal hearing, was not required to give evidence. As I understand the position, you waited until you knew the results of the forensic evidence before entering your plea. Of course, this is your right and you are not to be punished for this. But these are relevant matters when looking at the question of remorse. Like Mr Trinh, you have a relevant prior matter, again bearing in mind that it occurred about eight years before you committed these offences. In these circumstances, a simple assertion from Mr Nikakis that your plea of guilty signifies remorse is not sufficient for me to find this. In my view, you indicated your preparedness to plead guilty at a stage when you were aware of the strength of the case against you. There has been nothing put in your plea which manifests remorse and in the circumstances I am not prepared to find this. As with
Mr Trinh, it appears to me that you are remorseful that you have found yourself in this predicament, but as to regretting your criminality and those it may have affected, there is nothing which indicates this to me.
71 However, I do have regard to the fact that you have entered a plea of guilty at a fairly early stage, albeit that this was not at the earliest opportunity. In the circumstances, you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense that comes with contested proceedings. You are entitled to a not insubstantial discount because of this.
72 In relation to your prior matter, I accept that you played the inferior role on this occasion, which is reflected in the sentence that you received, as well as the sentencing remarks of his Honour Judge Coish of 21 October 2003. Indeed, your offending was a single incident of trafficking whereby you were in possession of 3.5 grams of heroin, which gave rise to prima facie evidence of trafficking and formed the basis for the charge. It appears from the sentencing remarks of His Honour that you "attempted to conceal your wrongdoing by flushing the drugs down the toilet.” (S.p1).
73 Again, I do not take into account the circumstances of this offending in an impermissible way so as to effectively re-sentence you for it.
74 However, it is important for me to be aware of these circumstances when assessing your prospects of rehabilitation and the weight that I need place on specific deterrence. On that occasion you pleaded guilty and His Honour accepted that 49 days which was spent in custody following your arrest: "had a significant impact upon you and has served to emphasise to you in an immediate and direct fashion the seriousness of your criminal conduct.” (S. p2).
75 On that occasion you received the benefit of a wholly suspended sentence of nine months' imprisonment. Unfortunately, the sanction that was imposed on that occasion, did not serve to deter you from offending because I now sentence you for relevant offending, albeit eight years later.
76 Again, I take into account that there has been a significant gap in time between that offending and this; however, you have chosen to embark on similar offending, and on one of these occasions, you have done so in partnership with the same co-offender as the last time, namely Mr Trinh.
77 On the occasion for which I now sentence you, you have cultivated a commercial quantity of two separate crops, which is especially concerning.
78
Mr Nikakis submitted that I could balance this against your lesser role in relation to the prior offending compared with that of Mr Trinh. Whilst I have factored this in, I am not of the view that this places you on an equal footing with Mr Trinh in terms of the sentence that I impose. I did not understand
Mr Nikakis to be submitting this, in any event.
79 By way of background, I was told that you are the sixth of seven children in your family. You completed Year 12 while living in Vietnam, then studied teaching and became a kindergarten teacher. You married in Vietnam but despite your qualifications and those that your husband had, you chose to escape. You purchased a ticket on a refugee boat and travelled to Hong Kong where you remained for two years. You were then sponsored to come to Australia by an aunt who previously came here from Vietnam. When you and your husband arrived in Australia, you lived with your aunty then lived in a caravan. The only work that you and your husband could find was in a garment factory in Springvale. All of the workers there were Vietnamese. You worked as a finisher.
80 Mr Nikakis said that your direct employer raped you while you were working at the factory. You complained to your husband about this but you had no concept of going to the police. Notwithstanding that you yourself have had experience with the Victoria Police on several occasions now, you still have not made any complaint to them about this occurrence. Moreover, in the sentencing remarks of his Honour Judge Coish, this matter is not referred to. For some reason, Mr Nikakis was not able to ascertain whether the matter had been raised by you with your previous counsel in presenting your plea in 2003. I must say that I am somewhat troubled by this, as it is a matter of such significance that it is astonishing that it was not raised, or if raised, was not referred to at that time of your previous sentence. Mr Nikakis suggested that it may have been because your counsel only met with you on one occasion, rather than having the level of contact that he has had with you. This aspect of the plea before me is not satisfactory. However in the circumstances I am prepared to accept, even if somewhat reluctantly, that this event did occur, as part of your background, which I will take into account.
81 I was told that your husband’s reaction to being told of this incident, in combination with your inability to have children, probably led to the disintegration of your marriage. You have had no contact with your husband since 1994.
82 After your marriage broke down, you sought any work that you could perform and your personal life was most unstable. Between 1994 and 2003, you led a transitory existence, moving from place to place on many occasions. You shared accommodation numerous times and in this way you came to know a number of people. You were unable to qualify for Centrelink payments for various reasons, including your inability to study English at that time. I was told that you were unable to study English because of your quest for work.
83 It was in this setting that you met with Mr Trinh and have had an “on and off” relationship with him. Mr Nikakis submitted that your attraction to offending on the occasion for which I now sentence you was partly to do with your relationship with Mr Trinh, but also because of the promise of a better lifestyle.
84 Before going into custody you were living with some family in Sunshine, including your brother-in-law who was widowed when one of your two sisters died of cancer. Your niece, who lives in that household, visits you in prison and your relationship with her has become stronger. Mr Nikakis said that you would probably live in that household once more upon your release from gaol.
85
As I have previously indicated, your offending is serious, notwithstanding that
I factor in the dried weight of the cannabis which relates to each of the properties.
86 In the circumstances, I find that your prospects of rehabilitation are fair at best, as you, like Mr Trinh have been prepared to commit a not dissimilar offence to that which you committed some years ago, and in your case, your conduct can be seen as having escalated. In the circumstances I place not insignificant weight upon specific deterrence.
87 The learned prosecutor submitted that a sentence of between five to six years with a non-parole period of three to four years imprisonment was appropriate in your case, Ms Duong.
88 Mr Nikakis seemed to acknowledge that your sentence should be higher than that of Mr Trinh’s but that I ought bear in mind the principle of parity insofar as this applied. Of course, I do bear this principle in mind as well as the principle of totality. It was accepted by both defence counsel that a level of cumulation was warranted in relation to the theft charges. Again, I will do so but bearing in mind the principle of totality. Of course, in your case, Ms Duong, because there are two separate episodes of offending in terms of the cultivation, cumulation is also warranted as between charges pertaining to these.
Please stand up Huyen Thanh Duong.89
90 You can take a seat for a moment Mr Trinh, I am just talking to Ms Duong.
91 Firstly, I make compensation orders as follows:
I order that you and Mr Trinh pay the sum of $7573.62 to AGL Energy Limited, Level 22, 120 Spencer Street, Melbourne, and that you alone pay the sum of $6541.00 to this company.
92 Further, I make the disposal order sought by the Crown, which is not opposed by you.
93 In relation to Charge 1, you are convicted and sentenced to four years' imprisonment.
94 In relation to Charge 2, you are convicted and sentenced to four years' imprisonment.
95 In relation to Charge 3, you are convicted and sentenced to six months' imprisonment.
96 In relation to Charge 4, you are convicted and sentenced to five months' imprisonment.
97
The sentence on Charge 1 will be the base sentence. I direct that ten months of the sentence from Charge 2 and one month from each of the sentences
on Charges 3 and 4 be served cumulatively with each other and with the sentence on Charge 1, resulting in a total effective sentence of five years' imprisonment. You are to serve three years four months’ imprisonment before becoming eligible for parole.
98 If not for your plea of guilty, I would have sentenced you to six and a half years' imprisonment with a non-parole period of four years five months.
99 I declare that you have already served 371 days by way of pre-sentence detention which will be calculated as part of the sentence already served.
100 Please take a seat Ms Duong.
Please stand up, Van Binh Trinh.101
I make the following compensation order: I order that you and Ms Duong pay the sum of $7573.62 to AGL Energy Limited. I make it clear that this is not an additional order to the first compensation order that I made when sentencing Ms Duong, it is an order which applies to both of you.
102 Further, I make the disposal order which is sought by the Crown, and not opposed by you.
103 In relation to Charge 1, you are convicted and sentenced to four years' imprisonment.
104 In relation to Charge 3, you are convicted and sentenced to six months' imprisonment.
105 The sentence on Charge 1 will be the base sentence.
106 I direct that one month of the sentence on Charge 3 be served cumulatively with the sentence on Charge 1, producing a total effective sentence of four years one month and I order that you serve two and a half years' imprisonment before becoming eligible for parole.
107 If not for your plea of guilty, I would have sentenced you to five years two months' imprisonment with a non-parole period of three and a half years.
108 I declare that you have already served 371 days by way of pre-sentence detention which will be calculated as part of your sentence already served.
109 You can take a seat. Is there anything further, counsel?
110 COUNSEL: No, Your Honour.
111 HER HONOUR: Thank you. You can remove the prisoners, thank you. Thank you for your assistance Madam Interpreter, I will now leave the bench.
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