Doan v The Queen

[2010] VSCA 250

SUPREME COURT OF VICTORIA

COURT OF APPEAL

TUAN DOAN	S APCR 2009 0811
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and HARPER JJA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 September 2010
DATE OF JUDGMENT:	20 September 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 250
JUDGMENT APPEALED FROM:	R v Doan (Unreported, County Court of Victoria, Judge Punshon, 4 September 2009)

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CRIMINAL LAW – Cultivation of a commercial quantity of cannabis – Appeal against sentence – Young offender – General deterrence significant sentencing factor – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Hughan	Robert Stary & Assoc
For the Respondent	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. I invite T Forrest AJA to deliver the first judgment.

T FORREST AJA:

1. In about mid-2008 the appellant assisted the cultivation of cannabis at rented houses in Kew and Hawthorn.  In both houses were sophisticated hydroponic systems involving watering systems, timers, lighting and arrangements for the bypass of electricity.  At the Kew premises there were 117 plants and loose cannabis weighing about 20 kilograms.  At the Hawthorn premises there were 145 plants.  It was common ground that the appellant’s role at the Hawthorn house was very peripheral[1] and he was dealt with on the basis that the vast majority of his culpability was to do with his participation in the Kew crop.

   [1]Extending no further than handling small items of equipment that he knew was destined for hydroponic cannabis cultivation at some unknown location.

1. The appellant was indicted with a co-offender Dat Trinh whose activities were confined to Hawthorn.  Both co-accused were no more than notionally paid assistants in the cultivation enterprises.  The appellant had incurred a debt of $4,000 to one ‘Jimmy’.  The appellant had taken out this loan to assist with his grandfather’s medical expenses.  ‘Jimmy’ offered him work assisting with the cultivation of the Kew crop as a means of repaying this debt.  The work involved topping up the hydroponic watering system every couple of days.  These duties extended over a period of about seven weeks.

1. The co-accused’s motivations for offending and his role in the Hawthorn crop were very similar.  He became indebted to one ‘Kenny’ for $5,000 and tended to the plants there as a means of repaying some part of the debt.  Neither the appellant nor Trinh had any involvement in the setting up of the cannabis houses nor were they to share in any profits realised.  Both were young, the appellant 20, Trinh 21 at the time of offending and both of good prior character.  Trinh had been remanded in custody since arrest.[2]  The appellant had been released on bail after serving 21 days of pre-sentence detention.  The appellant had built upon an impressive work history during his time on bail.

   [2]Trinh had overstayed his visa and did not apply for bail.

1. The appellant was sentenced as follows:

Count 1

Cultivating cannabis in a commercial quantity;  2 years’ imprisonment.

Count 2

Theft…