R v Dinh

[2021] NSWDC 678

District Court

New South Wales

Medium Neutral Citation:

R v Dinh [2021] NSWDC 678

Hearing dates:

26 November 2021

Date of orders:

26 November 2021

Decision date:

26 November 2021

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

I impose a term of imprisonment of 28 months with a non-parole period of 18 months: at [27].

Catchwords:

SENTENCING — Aggravating factors — Planned or organised criminal activity

SENTENCING — Mitigating factors — Good character — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Co-offenders — General principles — Maximum penalty — Objective seriousness — Objective seriousness — Sentencing statistics

SENTENCING — Subjective considerations on sentence — Age of offender — Deportation — Hardship — Special circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act1985

Cases Cited:

R v Choo [2021] NSWDC 351

R v Duong; R v Phan [2016] NSWDC 414

R v Huat [2021] NSWDC 87

R v Tan [2021] NSWDC 355

Category:

Sentence

Parties:

Regina (Office of the Director of Public Prosecutions)

Nam Son Dinh (Offender)

Representation:

Mr K Gilson (Crown Prosecutor, Office of the Director of Public Prosecutions)

Mr R Keller (Counsel for the offender)

File Number(s):

2020/125670

Judgment

1. Nam Son Dinh arrived in Australia from Vietnam on a student visa in 2014, aged 20. He says that he stopped studying because his family could not afford to continue paying his fees. He has been employed since then. He is, according to the Australian Border Force, an unlawful non-citizen and he is liable for immigration detention upon his release from custody and likely to be ultimately deported, but that, of course, is not of any relevance in the sentencing process.

2. He pleads guilty to one count of cultivating a prohibited plant in excess of the large commercial quantity, namely 2,441 cannabis plants contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act1985. The offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period ten years. The maximum penalty and standard non-parole period are important yardsticks in the sentencing process, as are the purposes of sentencing to be taken into account under s 3A of the Crimes (Sentencing Procedure) Act 1999.

3. There is a related offence on s 166 certificate of possessing 9.1 grams of cannabis. I will deal with that offence pursuant to under s 10A of the Crimes (Sentencing Procedure) Act 1999.

4. Nam Sun Dinh has been in custody since his arrest on 27 April 2020. It is acknowledged by Mr Keller that a term of full-time custody is required, and that the term should commence on that date.

5. There are a number of co-offenders whose matters have not yet been dealt with.

6. The plea of guilty was entered in circumstances justifying 25% discount for the utilitarian value of the plea.

7. The offending concerns a rural property of almost 400 hectares at Ballymore. The property was in…