Director of Public Prosecutions v Duong; Director of Public Prosecutions v Hoang
[2016] VCC 885
•23 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00507
CR-16-00508
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GIANG TROUNG DUONG |
| and |
| VIET QUOC HOANG |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 June 2016 | |
DATE OF SENTENCE: | 23 June 2016 | |
CASE MAY BE CITED AS: | DPP v Duong; DPP v Hoang | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 885 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – cultivating a narcotic product - namely Cannabis L - in a quantity that was not less than a commercial quantity – possession of a drug of dependence – plea of guilty
Legislation Cited: Drug Poisons and Controlled Substances Act 1981 (Vic), s72A, s73; Sentencing Act 1991; Confiscation Act 1997, s77(1)
Cases Cited:R v Mills [1998] 4 VR 235; Azzopardi v R (2011) 35 VR 43; Phillips v R [2012] VSCA 140
Sentence: Each accused sentenced to 10 months’ imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Henderson | Solicitor for the Office of Public Prosecutions |
| For the Accused Duong | Ms M Mykytowycz | Valos Black & Associates |
| For the Accused Hoang | Mr J Kelly | Matthew White & Associates |
HIS HONOUR:
1 Both you, Giang Troung Duong, and you, Viet Quoc Hoang, have pleaded guilty to the following offences:
Charge 1
2 That each of you, at Narre Warren on 5 October 2015, cultivated a narcotic plant, namely Cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant.
The offence of cultivating a narcotic plant in a commercial quantity is contrary to s.72A of the Drug Poisons and Controlled Substances Act 1981 (Vic) and carries a maximum penalty of 25 years’ imprisonment.
Charge 2
3 That each of you, at Narre Warren on 5 October 2015, possessed a drug of dependence, namely Cannabis L.
The offence of possessing a drug of dependence is contrary to s.73 of the Drug Poisons and Controlled Substances Act 1981 (Vic) and carries a maximum penalty of 400 penalty units (the current value of a penalty unit being $151.67) or a maximum of five years’ imprisonment, or both.
The circumstances of the offending
4 Counsel for the prosecution tendered a document headed “Summary of Prosecution Opening” (Exhibit 1) which sets out the details of the subject offending. I was informed by both of your counsel that you do not dispute the contents of that document.
5 I will not repeat all the details in that document, but refer to the following important matters:
(a)In relation to Charge 1, there were 465 cannabis plants weighing
189.69 kilograms at 5 Vine Court, Narre Warren, and in relation to Charge 2, you had in your possession eight cannabis plants weighing a total of 2.18 kilograms;
(b)You, Giang Truong Duong, were born on 17 March 1988 and you are currently twenty-eight years old. At the time of the offending, you were twenty-seven years old. You are a Vietnamese citizen whose student visa was cancelled on 8 December 2015 and, accordingly, you have been unlawfully in Australia since that date;
(c)You, Viet Quoc Hoang, were born on 21 May 1996 and you are currently aged twenty years old. At the time of the offending you were nineteen years old. You are a Vietnamese citizen whose student visa was cancelled on 9 December 2014 and, accordingly, you have been unlawfully in Australia since that date;
(d)At approximately 2.30pm on Monday, 5 October 2015, a resident of Vine Court, Narre Warren, noticed a steady flow of water running down the driveway of 5 Vine Court, Narre Warren (“the premises”). Upon investigation, the resident unlocked a garage door at the premises and discovered a hydroponic cannabis set-up, and notified police;
(e)Later that day, police had circled the premises, when both of you arrived at the premises in Giang Truong Duong’s car. The garage roller-door opened as the vehicle was driven up the driveway and closed once the vehicle was in the garage. At approximately 6.40pm, police commenced to execute a search warrant, and as they approached the premises, both of you attempted to flee the premises. You were both subsequently apprehended and arrested;
(f)A preliminary search of the premises was conducted, revealing cannabis being grown in numerous rooms in the premises and the garage. Furthermore, your vehicle, Giang Truong Duong, was searched, and police found eight potted cannabis plants weighing a total of 2.18 kilograms in garbage bags on the floor behind the front seats and the boot. Police took a number of photographs of the external and internal areas of the premises and such photographs were tendered (see
Exhibit 2);
(g)During a search of the premises your car keys, Giang Truong Duong, were found in the house, with the house keys and the garage door remote, together with personal papers in your name;
(h)Under the premises, police found an irregular wiring connection to the unmetered mains cable which was supplying electricity to the hydroponic set-up in the premises.
(i)At 10.17pm on the same day, you, Giang Truong Duong, participated in a record of interview at Narre Warren police station, during which you stated, amongst other things that:
·you did not know who lived at the premises
·you drove your car to the premises with a friend (Viet Quoc Hoang)
·you did not know Viet Quoc Hoang very well
·you ran away from police because Viet Quoc Hoang asked you to run away
·the keys in your possession to open the doors of the premises were given to you by Viet Quoc Hoang so that you could drive into the garage
·you did not know what was inside the premises
·you slept at the premises, maybe once or twice, or a few times.
(j)At 11.53pm on the same day, you, Viet Quoc Hoang, participated in a record of interview at Narre Warren police station, during which you stated, amongst other things:
·a friend (Giang Truong Duong) drove you to the premises
·both of you were going to the premises to play
·this is the first time that you had been to the premises
·you helped Giang Truong Duong water the “coconut plants” in the garden
·you did not enter the premises at all
·you did not know what was in the premises
·you know Giang Truong Duong from having worked with him at a farm together
·you ran from police because Giang Truong Duong yelled for you to run
(k) Both of you were charged and taken into custody.
6
I was informed by counsel for the prosecution that this matter “resolved” on
31 March 2016 prior to the commencement of a committal hearing, and it is conceded by the prosecution that your pleas of guilty were “at the earliest opportunity”.
7 I was also informed by counsel for the prosecution that as at the date of the plea (9 June 2016), you had been in custody for 249 days.
8 Neither of you have any criminal record.
The personal circumstances, educational and vocational background of you, Giang Truong Duong
9 Your counsel tendered an “outline of submissions for plea” (Exhibit A) and, partly based on this document and partly based on further submissions made by her, I set out details of your personal circumstances, educational and vocational background.
10 Your counsel confirmed that you are presently twenty-eight years of age and were born in the central north region of Vietnam, where you lived until coming to Australia in late 2013. Prior to coming to Australia, you worked as a handyman in building construction and also as a storekeeper for approximately one year.
11 Your family remained in Vietnam, with your father now retired and living on a pension and your mother being a primary school teacher. You have one younger sister who is a student in Vietnam. In particular, you have no family members living in Australia.
12 You arrived in Australia in late 2013 on a student visa, with the intention to initially study English and then progress to studying a business course.
13 Your counsel informed me that you have no mental health issues. Furthermore, I was also informed that you neither use drugs nor drink alcohol.
14 On arrival in Australia, you initially lived in a shared house and began to learn English, during which time you were supported by your family. After your family support ceased, you began working intermittently, doing a variety of jobs – handyman, labourer and shop assistant, all within the Vietnamese community. You had borrowed money from other students in the share house.
15 At the time of the offending you were living in a small bungalow at the back of the house and were approached to participate in the offending for which you are pleading guilty. Your counsel also submitted that your motive for becoming involved in the offending was “financial”, as you were not earning enough money to live in Australia.
16 Since being remanded in custody on 5 October 2015, you have completed a drug and alcohol course and are partway through a domestic violence course. As pointed out by your counsel, such courses have been merely to keep you “busy” and you have no problems in either of these areas.
Your counsel’s submissions in regard to the offending and mitigating factors
17 I was informed by your counsel that the matter had been “resolved” with the Director of Public Prosecutions on the basis that:
(a) Cultivation was based on a single day of involvement;
(b)That you were not involved in the profits of the cultivation (that is, the sale or distribution of the cannabis);
(c) You were not involved in the setting up of the electrical bypass;
(d) You were a crop sitter;
(e)Any custodial sentence in relation to Charge 2 would be wholly concurrent with any sentence in respect of Charge 1.
18 In particular, your counsel submitted the following matters should be taken into account in mitigation of any sentence:
(a)Your pleaded guilty to the offences at the earliest possible time, which had the utilitarian benefit of saving the time and cost of a trial. In this sense, your plea of guilty facilitated the course of justice, with no witnesses being required to give evidence at committal or trial;
(b)You have no prior convictions whatsoever;
(c)The hardship that you are experiencing in prison. I was informed by your counsel that you speak little to almost no English and that you have no familial ties and links in Australia. Although you are able to call your family in Vietnam once a week, you have instructed your counsel you feel very isolated and “miss my family very much”. Again, you have instructed your counsel that your family in Vietnam are very upset and disappointed by your actions and you want to return home to them as soon as possible;
(d)Given the agreement with the prosecution, you should be viewed as a “crop sitter” who had nothing to do with the set-up of the premises and who had no prospect of financially benefitting from the crop of cannabis;
(e)Your counsel conceded that, given the nature of Charge 1, and in order to meet all the relevant sentencing principles including general and specific deterrence, denunciation and just punishment, a term of imprisonment must be imposed;
(f)Your counsel expressly disclaimed any suggestion that your period of incarceration was more onerous than on others because of uncertainty about deportation. In this respect, your counsel informed me that it is your strong desire that on the completion of any prison sentence, you wish to return to Vietnam and be reunited with your family. In such circumstances, your counsel submitted that a straight sentence of imprisonment (without any nominated non-parole period) would be appropriate.
The personal circumstances, educational and vocational background of you, Viet Quoc Hoang
19 Your counsel referred to a “plea outline” which has been supplied to me. I will have that document admitted and marked as Exhibit U. Partly based on that document and, more so, by various submissions made by your counsel, I set out your various personal circumstances, educational and vocational background.
20 Your counsel confirmed that you are presently twenty years of age, and were nineteen years old at the time of offending. You, also, have no criminal history of any description.
21 I was informed that you were born in Vietnam and came to Australia on a student visa, which did not permit you to work. You were required to reside with an Australian family and were charged rent and board of $1,300 per month which you found, perhaps understandably, onerous.
22 Your parents, who are estranged, continue to live in central Vietnam – your father is a fisherman and your mother works assisting fishermen. You also have a sister back in Vietnam, who works and has her own family.
23 Your parents considered that your prospects would be enhanced by coming to Australia for further education and they provided what they could. You initially enrolled in the Holmesglen College in Springvale, in a high school course with a heavy emphasis on English. You thought that by concentrating on your English, you would be able to integrate into the VCE at the end of the year.
24 Three months into the course, you found you could not fund your board and went to Robinvale, working in the vineyards for eight months and later, on your return, you were informed by an immigration agent that your visa had been cancelled because of such work in the vineyard. You then worked in a variety of market gardens and farms, during which time you met the co-accused on a strawberry farm through other members of the Vietnamese community.
25 Your counsel informed me that you strongly desire to return to Vietnam and continue your education on the basis that you understand that you have no future in Australia.
Submissions made by your counsel in respect of your offending and matters to be taken into account in mitigation of your sentence
26 Your counsel also submitted to the Court that a similar agreement had been reached with the Director of Public Prosecutions in relation to the disposition of this matter – that you were only involved for one day, you were a crop sitter and that any sentence in relation to the second charge would be concurrent.
27 In particular, your counsel made the following submissions in support of your plea in mitigation:
(a)You also pleaded guilty to the offences at the earliest possible time, which had the utilitarian effect of saving the time and cost of a trial. Furthermore, you have no previous criminal record of any type;
(b)Given your age, you must be viewed as a youthful offender. Reference was made to the leading cases of The Queen v Mills [1998] 4 VR 235 and Azzopardi v The Queen [2011] 35 VR 43, and it was submitted that the paramount consideration in the sentencing of young offenders was rehabilitation;
(c)Your time in custody has been exclusively spent in the Melbourne Remand Centre and since the riots in that particular prison in late June 2015, you have experienced 23-hour-lockdown conditions until about six weeks ago when it changed to 22 hours of lockdown. During this period of time, you have experienced a very onerous regime, having been able to call home only once a month, with no visits, because you have no friends or family here. During such time, you have undertaken workplace safety courses.
28 Your counsel also indicated that given your lack of any family in Australia, your desire to return to Vietnam to continue your education, and it was highly likely that you would be deported at the end of any particular prison sentence. In this sense, there was no particular hardship by facing deportation at the end of your prison sentence.
29 Your counsel also conceded that, given the nature of Charge 1, immediate incarceration was appropriate, but also asked that there be a straight sentence of imprisonment rather than the provision for a non-parole period.
The response of the prosecution
30 Counsel for the prosecution accepted that the prosecution reached an agreement with each of your representatives that the matter would be resolved on the basis that each of your involvements was limited to one day as a crop sitter in relation to Charge 1 and that, in respect of any penalty in relation to Charge 2, total concurrency was conceded. Counsel for the prosecution accepted, of course, that the Court is not bound by such an agreement.
31 Counsel for the prosecution also accepted that each of you can be classified as the classical “crop sitter” and that it was also accepted that neither of you had anything to do with the setting up of the premises or, indeed, had any expectation to any financial rewards as a result of the cultivation of the cannabis crop.
32 Given that you both will be facing deportation, counsel for the prosecution accepted that, in these circumstances, a straight sentence would be appropriate in each case.
Conclusion
33 Charge 1 – the offence of cultivating narcotic products – in this case, cannabis – in not less than a commercial quantity, is a serious offence, as clearly indicated by the maximum penalty of 25 years’ imprisonment. The potential sentence for such an offence reflects the community’s desire to rid the community of illegal drug use and the various criminal activities associated with it.
34 In this case, it is important to remember that you have pleaded guilty to an offence which, because of the number of plants and the weight of the plants, is considered to be of a “commercial quantity”.
35 I consider that the principles of general deterrence and denunciation are particularly important.
36 Notwithstanding the foregoing, I do accept, consistent with the submissions of each of your counsel that the following matters should be taken into account in mitigation of your sentence:
(a)Your pleas of guilty were accepted by counsel for the prosecution to be at the earliest possible time. Although the case against you would appear to have been reasonably strong, a plea of guilty, at the very least, has utilitarian value in saving the time and cost of a trial (see Phillips v The Queen [2012] VSCA 140 at [36]);
(b)Neither of you have any criminal record whatsoever;
(c)Counsel for the prosecution accepts, and I agree, that your roles in the cultivation of the cannabis plants can be described as “crop sitters”. In this sense, you were at the lower end of the chain and, no doubt, were only brought in to water the plants at a time when the criminal activity was well and truly established at the premises.
In this sense, your criminality was at the lower end, more so given that you had only then undertaken the watering for one day pursuant to the agreement reached between your respect legal advisers and the Director of Public Prosecutions. In the present circumstances, bearing in mind the extent of the evidence, I will sentence you on the basis of such agreement.
Of course, it must not be forgotten that your role was a necessary role for the plants to flourish and be available for sale.
(d)Consistent with my earlier comments, I do accept that you had no role in the preparation of the premises for the cultivation of the crop or, indeed, had any expectation of financially benefitting from the sale of the crop.
(e)I accept that your periods on remand have been probably more arduous than normal, given that each of your families are in Vietnam and that you have no particular friends in prison. Furthermore, and in particular, you, Viet Quoc Hoang, have experienced an arduous lockdown regime since the riot at the Melbourne Remand Centre in the middle of 2015.
(f)I consider that the motivation for each of you was to obtain monies to live in Australia rather than to promote any particular lifestyle. I consider that your prospects for rehabilitation are “reasonable”.
(g)Clearly, the principles enunciated in The Queen v Mills [1998] 4 VR 235 and Azzopardi v The Queen [2011] 35 VR 43 are relevant to you, Viet Quoc Hoang, given that you were nineteen years old at the time of the offending. Both these cases make clear that “rehabilitation” is of paramount importance when sentencing young offenders. However, given the nature of the offending, your desire to return to Vietnam immediately after your imprisonment is completed (with the prospect of you being deported in any event), I accept the submission of your counsel that there is no “substantial disparity” between you and the
co-accused, Jiang Truong Duong.
37 Consistent with the submissions made by your respective counsel, I consider a custodial sentence to be appropriate for each of you. Given that both of you are unlawfully in Australia and wish to return to Vietnam at the end of any prison sentence, I will accede to the request that you be sentenced to a straight period of imprisonment.
Sentence
38 Please be upstanding Giang Truong Duong and Viet Quoc Hoang.
(a)In relation to Charge 1, you are each convicted and sentenced to a period of imprisonment of ten (10) months;
(b)In relation to Charge 2, you are each convicted and sentenced to a period of seven (7) days’ imprisonment, to be served concurrently with the term of imprisonment in relation to Charge 1;
(c)I declare that each of you have served 262 days as presentence detention in relation to these offences and such period is to be administratively deducted from such sentence as time already served;
(d)Further, pursuant to s.77(1) of the Confiscation Act 1997, I order that the hydroponic equipment and related items used in connection with the cultivation of the crop be disposed of;
(e)Pursuant to s6AAA of the Sentencing Act 1991, I declare that, save for your respective pleas of guilty, you would have each been sentenced to a period of seventeen (17) months’ imprisonment.
(Disposal order signed and acknowledged.)
Yes.Anything to say, counsel?
COUNSEL:No, Your Honour.
HIS HONOUR: Before the prisoners are taken away, I will allow counsel to approach the prisoners and just confirm if there is any issues about what has happened.
COUNSEL:As Your Honour pleases.
HIS HONOUR: Yes. I will adjourn. We will adjourn temporarily.
- - -
0
2
0