R v An Dihn Dang
[2013] VCC 1281
•3 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00864
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AN DIHN DANG |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 August 2013 | |
DATE OF SENTENCE: | 3 September 2013 | |
CASE MAY BE CITED AS: | R v An Dihn Dang | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1281 | |
REASONS FOR SENTENCE
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Subject: Cultivate a commercial quantity of a narcotic plant and theft.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Baker | |
| For the Accused | Ms T. Sharp |
HER HONOUR:
1 You, An Dinh Dang have pleaded guilty before me to one count of cultivate a commercial quantity of a narcotic plant and one count of theft. The maximum penalty for cultivating a commercial quantity of a narcotic plant is 25 years' imprisonment. The maximum penalty for theft is ten years' imprisonment.
Circumstances of offences:
2 On 11 February 2013, the police executed a search warrant at a residential property at 10 Langford Drive, Craigieburn at about 1.30 pm. You unlocked the glass doors at the rear of the premises and opened the door. Upon seeing the police, you tried to lock the door again. However the police were able to enter the house. You ran along the hallway and into the garage. You tried to unlock a door in the garage. The police grabbed you and you were handcuffed after a short struggle.
3 The police located 457 cannabis plants weighing 124.99 kg. The plants were growing in eight rooms throughout the house. Modifications had been made to the inside of the house to segregate the growing rooms. Each room was ventilated with carbon filters. The windows had been covered with plastic sheeting which prevented light from being seen from the outside.
4 The plants were of varying sizes. The smaller plants were grown in tubs. The larger plants were grown in pots. They were grown under high-powered lighting suspended from the ceiling. A reticulated watering system had been set up.
5 An electric bypass had been installed in the study. It diverted electricity around the meter box. As a result power used in the cultivation process was not recorded by the electricity retailer, Jemena Electricity.
6 Items seized from the property included electrical transformers, water pumps, charcoal filters, high-powered light globes and light shades, electrical timers, power boards, fans and bags of fertiliser. Latent fingerprints were lifted from two of the light shades seized. These fingerprints were matched to your fingerprints.
7 Police also located two large bags containing 4.34 kg of dried cannabis.
8 You were arrested and taken to the Fawkner Police Station where you were interviewed. You told police that you moved into the house in June 2012. You said that you were staying there, looking after the house for a friend who went back to Vietnam in November 2012. You made no further comment.
9 You instructed your counsel that you stayed in Australia after the expiry of your visa because you are the primary breadwinner and bear the responsibility of supporting your family in Vietnam. That concern was at the forefront of your mind when you were approached by a co-worker to be involved in the offending the subject of these proceedings.
10 You found living at the Craigieburn property very stressful. You received no payment beyond free rent at the Craigieburn property. You did not receive any other financial benefit in relation to your criminal conduct. You were in Australia for a significant period of time before you were involved in criminal activity. You did not come to Australia to commit a criminal offence.
11 Your counsel conceded that you were responsible for cultivation of the crop for the period specified. Your role was that of a crop sitter who acted under the instruction of another. You were responsible for the daily care of cannabis plants. The equipment related to cultivating cannabis was already set up when you arrived at the house. The electricity bypass was evident in the house. You were aware of that occurring. The period of your offending spans from 1 November 2012 until the time of your arrest on 11 February 2013.
12 On 16 April 2013, you made an offer to the prosecution to assist in their further investigation of the offending in which you had been involved. The informant interviewed you whilst you were in custody. No effective information that the prosecution could utilise was obtained. I accept your counsel’s submission that the offer of assistance reflects a sign of remorse.
13 The facts in this case are very serious. As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated your intention to plead guilty to these charges at the first reasonable opportunity.
14 I accept the evidence contained in a reference by Reverend Thanh Tran dated 22 July 2013 that you have shown remorse for your actions.[1] The prosecutor conceded that the attempts to assist authorities are a reflection of remorse. In the circumstances, I accept the submission made by your counsel that your plea and attempt to assist authorities indicate remorse for your actions.
[1]Exhibit 2.
15 I have been told something of your personal history and your circumstances. You were born in Vietnam on 25 April 1981 and are 32 years old. You are the eldest son of seven children. Your family have always been rice farmers living in primitive conditions. Your family are devout Catholics who attend church regularly. Your mother suffers from a life-long heart condition and has been admitted to hospital on several occasions. Your father also suffers from health conditions.
16 You attended school at the nearest small town in rural Vietnam from prep to Year 12. You were an average student with an interest in history and geography. The completion of Year 12 was unusual for children living in your area and your parents worked hard to pay for your education.
17 After you completed your education, your family raised a significant amount of funds for you to be placed on a list to obtain a working visa for employment in Malaysia. The agency assisting your parents was corrupt, closed its shop and took your parents’ money, with no further contact.
18 You returned to work as a rice farmer with your family for seven years in order to support your family and to assist in the payment of schooling for your siblings. This work involved manual labour for 13 hours a day in difficult conditions. Your responsibility was significant because of your role as the eldest male child.
19 You arrived in Australia on a tourist visa. On arrival in Australia, you obtained employment as a chicken boner in Bunbury, Western Australia, for a period of two and a half years. When the factory in Bunbury closed, you moved to Melbourne and obtained employment in a similar role and remained employed until your arrest. During this time, you were providing significant financial assistance to your family. You saved 3000-4000 dollars a year and sent this money back to Vietnam to your family and to your church.
20 Your counsel submitted that you now believe that you put too high an emphasis on providing financially for your family rather than observing the rules of the country.
21 You have no prior convictions. I sentence you as a person of previous good character. Evidence has been led on your behalf. I take into account the references by Sister Mary O’Shannassy (Director of Catholic Prison Ministry, Victoria)[2], Reverend Tranh Tran dated 22 July 2013[3], Reverend Anh Nguyen dated 20 August 2013[4], Duc Long Nguyen[5] and the Parish Priest and Committee in Vietnam[6]. The references refer to expressions of remorse about your criminal conduct and also your intention in the future to comply with the law and to be a good citizen. The reference by the parish council and parish priest in Vietnam was translated in court and stated that you were a model young person who participated in Church activities when you were living in Vietnam.
[2]Exhibit 1.
[3]Exhibit 2.
[4]Exhibit 3.
[5]Exhibit 4.
[6]Exhibit 5.
22
You have been in a relationship with your partner Ms Hien for 4 years. You have not been able to marry Ms Hien because you are unlawfully in Australia.
Ms Hien is in Australia on a student visa for four years. She proposes to return to Vietnam to continue your relationship. Ms Hien attended court to support you.
23 You have been learning English whilst in custody. You have also undertaken a woodwork course whilst on remand at the Metropolitan Remand Prison.
24 However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the sentencing act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
25 I take into account in your favour that the impact of incarceration is more burdensome for you because of your lack of English and separation from your family. When you were remanded in custody, you spoke little English and were unable to communicate with prison authorities and other prisoners.
26 Your counsel referred to Guden v R[7]. In that case, the Court of appeal stated that “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.”[8]The prosecution concedes that your time in custody will be more onerous because you fear that you will be deported.
[7](2010) 28 VR 288.
[8][2010] VSCA 196.
27 The letter from the Parish Priest and Committee in Vietnam also states that in 2007 the authority of the province used its power to confiscate the parish land to give it to other organisations. You and others were involved in the defence of the rights of your Church. Others who remained in Vietnam involved in similar activities have been imprisoned. The letter states that you would also have been in prison in Vietnam for your actions on behalf of the Church.
28 The prosecution conceded that the threat of deportation may well mean that the burden of imprisonment on you may be greater because of the expectation in your mind of imprisonment when you return to Vietnam.
29 I accept your counsel’s submission that your offer of assistance to the police is reflective of a sign of remorse in terms of offending and makes your time in custody more onerous because of your efforts to assist authorities.
30 I accept that your offer to assist police, the isolation from your family and limited knowledge of English, the apprehension that you will be deported and your perception that you may be imprisoned upon your return to Vietnam would make it more difficult for you to serve a term of imprisonment. I take these matters into account when sentencing you.
31
Your counsel referred to Applewaite[9] and submitted that your offending is at the lower end but conceded that an immediate term of imprisonment is an appropriate disposition in this case. As stated by Forrest AJA in
Tuan Doan v R[10]:
[10][2010] VSCA 250.
The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum of 25 years' imprisonment. Whilst there is no doubt that the role played by the appellant was of a menial nature, it was nonetheless necessary for the crop to flourish. The maximum penalty fixed by parliament unambiguously demonstrates how seriously the community views this conduct (see DPP v Duong[11]). Recently in this Court, emphasis has been placed upon the importance attached to sentencing judges having regard to the maximum sentence fixed by Parliament (see Nguyen v R [12], DPP v CPD[13]). This court has also emphasised recently that general deterrence is an important consideration in sentencing for this type of offence (R v Mason[14] ) and the link between general deterrence and the increasing prevalence of this offence is readily apparent.[15]
[11][2006] VSCA 78.
[12][2010] VSCA 127.
[13][2009] VSCA 114.
[14][2006] VSCA 55.
[15]Nguyen v R [2010] VSCA 127.
[9](1996) 90 A Crim R 167.
32 The prosecutor submitted that cultivating a commercial quantity is a serious offence which is reflected in the penalty. Plants four times the commercial quantity were seized. The weight of the plants was 125 kg, which is five times the commercial quantity. The hydroponic set up was sophisticated. The offending occurred over a period of three months. Your role was that of a crop sitter. Even roles which are menial in nature are nonetheless necessary for the crop to flourish. Courts have said that there is a need for deterrence and denunciation in these types of cases, such that a term of imprisonment is the only sentencing option.
33 The prosecutor, in sentencing submissions, submitted that the appropriate sentence would be a head sentence in the range of two to three years' imprisonment and that the appropriate non-parole period is within the range of 12-18 months.
34 This is without doubt a serious offence. In all the circumstances, I have no alternative to the imposition of a custodial sentence. I propose to record convictions on both charges and sentence you to be imprisoned as follows:
· Charge 1 –cultivating a narcotic plant – commercial quantity – to a term of imprisonment of 30 months.
· Charge 2 – theft –to a term of imprisonment of three months.
35 The base sentence is the sentence imposed on Charge 1. I direct that two months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1. That results in an effective sentence of 32 months.
36 In preliminary written submissions, the defence submitted that it was open for the Court to consider a partially suspended sentence. Cultivate commercial quantity is not defined as a significant offence in the Sentencing Act 1991 and accordingly s.27(2B) of the Sentencing Act does not apply. That submission was not pursued at the hearing of the plea and your counsel conceded that the range proposed by the Crown was appropriate in the circumstances of this case. In my judgment, a partially suspended sentence in this case would not give sufficient effect to the community’s denunciation of your conduct and the need to impose a just punishment.
37 Your counsel submitted that because of your plea of guilty at an early stage, your remorse, the offer of assistance to prosecution reflecting your willingness to take responsibility for offending, the lack of prior history, the issues of character referred to in the references provided, your experience in custody of not being able to speak English and your not being able to communicate your needs, the apprehension that you face deportation upon your release from custody and your fear that you will be imprisoned if you are returned to Vietnam, I should fix a longer than normal non-parole period. The matters I have mentioned lead me to the view that I should fix a non-parole period that is shorter than might be appropriate in other circumstances.
38 I direct that you serve a minimum term of 16 months before becoming eligible for parole.
39 I declare that you have served 204 days by way of pre-sentence detention in relation to this sentence, and direct that that declaration be recorded in the records of the Court.
40 Section 6AAA of the Sentencing Act 1991 requires me to state the sentence and non-parole period that I would have imposed but for the plea of guilty. Your plea has saved time, expense and the need for witnesses to give evidence, and is reflective of remorse. But for your plea of guilty, I would have sentenced you to a term of imprisonment of 48 months with a non parole period of 32 months.
41 The prosecutor has sought ancillary orders for the disposal of property. That application was not opposed. I make an order pursuant to s.78(1) of the Confiscation Act 1977 for the forfeiture to the State of the property referred to in Schedule 1 of the Order I have signed this day.
42 I am satisfied that the property referred to in the schedule of the Forfeiture Order which I have signed today is tainted property and I order that it be forfeited to the Minister. This application was not opposed.
43 Finally, I make an order pursuant to s.464ZF that you provide a sample of your saliva. I am required by law to say to you that those charged with taking that sample are authorised to use such force as may be necessary to effect the taking of the sample.
44 I have signed those orders. I will have them handed to you. Does that take care of all matters?
45 MR BAKER: Yes, it does, Your Honour.
46 MS SHARP: Yes, thank you, Your Honour.
47 HER HONOUR: Yes, thank you. Those orders, if you could just hand them over to make sure that everything is in order.
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