DPP v Do [2017] VCC 344

Mr Do, can you stand up. Quynh Khanh Do, you have pleaded guilty to one charge of use false document, one charge of cultivation of narcotic plant, namely cannabis L in not less than a commercial quantity, and one charge of theft.
You have no criminal history. The facts of the matter are set out in the summary of the prosecution opening, Exhibit 1. I will not go into the facts. It is a classic case of crop sitting. The summary is not disputed by your counsel. Any reader of these reasons can refer to that exhibit. I place the sentence in its factual contexts.
The electricity was for the purpose of growing the crop and the false document was partially used to enable the premises to be rented for the growing of the crop. Pursuant to s.9, sub-s.1 of the Sentencing Act, the offences are founded on the same facts and form a part of a series of offences of the same or a similar character. I may impose an aggregate sentence in my view. Obviously that is the case here. Thus, I will impose an aggregate sentence.
I have received written submissions and a table of current sentencing practices from the prosecutor, and I have considered all of those matters. I add, I received them prior to coming into court, thus I read them before I came into court. The case of Nguyen was referred too, [2016] VSCA 198. As I remarked during the plea, I have lost count of the number of crop sitting cases I have done and similarly, have lost count of a number of times I have read and been referred to the case of Nguyen. So, I am more than familiar with it.
An application is made pursuant to s.86(1) of the Sentencing Act for compensation from Origin Electricity or Origin Energy for the sum of $47,252.55. As part of the plea, I read the submissions of your counsel,

Your family are unskilled labourers in Haiphong in Vietnam. You basically do not have much education and are similarly unskilled. As it is likely you will be removed to Vietnam upon the expiry of your sentence, on what your counsel had told me, there is very little prospect of you having any financial circumstances so as to be able to meet the compensation order that is sort.
Pursuant to sub-s.2 of s.86, in order to make an order, I must take into account, as far as practical financial circumstances of the offender and the nature of the burden that its payment will impose upon you. In my view, your financial circumstances are so poor and if I was to impose the compensation order, the burden it would place upon you would really have no effect because you wouldn't be in the country, you don't have any skill, very little employment opportunities in Vietnam for an unskilled person to enable such a person to pay the money.
Having considered those matters, I decline for those reason to make the compensation order. Whilst in Australia, you have met a young lady to whom you have had two children. Your visa expired in 2012, thus at the time of this offending, you were not on a visa. You have been in custody for now 352 days awaiting this hearing. Mr Nikakis tells me that the relationship between you and the mother of your children is not as it should be. Children are aged two and five.
You were in this crop sitting business to obtain money to pay for your children. I do not know if you are sending any back to Vietnam or not. The prosecution submission is that you fall within the cluster one, which is the lowest cluster of cannabis cropper sitters as set out in the Nguyen, and I accept that.
The basic purposes for which a court may impose a sentence are punishment, general deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances are required to balance the interest of the community in denouncing criminal conduct, with the interest of the community to seek to ensure as far as possible you are rehabilitated.
I express my denunciation of your behaviour. I really have no idea when you go back to Vietnam if you will be rehabilitated or not. You have no other criminal history I am told. Taking all those factors into account and the matters put to me by both of the parties, I impose an aggregate sentence of 28 months, with a non-parole period of 13 months.
Clear that the period of 352 days that you have already served be reckoned to be part of the term of imprisonment I have just imposed. In formulating that sentence, I was very much guided by the issue of parity. That is, comparison that the sentence imposed on your co-accused, Mr Vu, who was sentenced to two years with a non-parole period of ten months. However, although the circumstances of the crop sitting are similar, he did not have the additional charges of using a false document and theft of electricity. Thus, it is for that reason that your sentence is more than what he got.
Have you got the other order there that you want me to sign? Declare pursuant to s.6AAA of the Sentencing Act, that if the matter had proceeded to trial and you were convicted, I would have imposed a sentence of five years with a non-parole period of three.
Have I missed anything?
COUNSEL: No, Your Honour.
HIS HONOUR: All right. You can take Mr Do out, thank you.
MR NIKAKIS: Well, I would ask that he would remain. The interpreter will not go down to the cells, so I just want to have a quick chat to him if it is possible.
HIS HONOUR: Yes. Well, fortunately or unfortunately, we have a direction. I must remain while you do that.
MR NIKAKIS: All right.
HIS HONOUR: I promise not to listen.
MR NIKAKIS: Thank you. I do not know whether that is a good thing or a bad thing. Thank you, Your Honour.
HIS HONOUR: Thank you. You can take Mr Do out, thank you.
MR NIKAKIS: Thank you, Your Honour.
HIS HONOUR: Not that I would know anything about anything, but if you got proactive, you might be able to circumvent any additional time between.
MR NIKAKIS: Well, the problem is
HIS HONOUR: The problem is the parole board.
MR NIKAKIS: Correct. Yes, and unfortunately, because he has the language barriers, he is going to face problems in doing the courses as it were that they require, and it may be that it takes a month or so before he gets to that point. I have had people who have had deportation orders on them. Sorry, removal orders, and
HIS HONOUR: So, it is not really Immigration Department. It is the Parole Board.
MR NIKAKIS: It is the Parole Board, yes.
HIS HONOUR: Perhaps he should meet Mr Cousins and have a discussion with him.
MR NIKAKIS: Well, I did tact on, on one occasion.
MS THORP: Your Honour, just from the way you sentence - realised that there was some written submissions tendered by defence in this case, which inadvertently we have not received a copy of.
HIS HONOUR: And I tender the just file.
MS THORP: Just file
MR NIKAKIS: I will make sure they get emailed to your instructor today, but I thought they had been done so at the same time. I was told that.
MS THORP: I take it there was nothing in there that has not been discussed.
MR NIKAKIS: No.
HIS HONOUR: You can have my copy. It is just a
MR NIKAKIS: It is just a chronology.
HIS HONOUR: My associate can print it off for you.
MS THORP: Brilliant, thank you.
MR NIKAKIS: No, that is okay.
HIS HONOUR: All right. Nothing else?
MR NIKAKIS: No, Your Honour.
HIS HONOUR: Adjourn the court, thank you.

At a glance

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Judgment (3 paragraphs)

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