DPP v Do [2025] ACTSC 99

1. When Kim Long Do appeared for sentence before me two days ago, no interpreter could be found to assist him. The matter was adjourned to today when an interpreter is available, despite this inconveniencing two juries, the one in the trial I am doing and the one in which counsel for the offender is currently involved. I am grateful for the assistance of the interpreter who was found at the last minute.

2. Fortunately, I am able to deal with this matter briefly indeed for the following reasons. (a) A co-offender was sentenced by McWilliam J. She was sentenced on the same factual basis as the present offender. Her Honour's judgment is a comprehensive analysis of the facts and the law and I adopt with gratitude what her Honour said in DPP v Duong [2025] ACTSC 14. (b) While there are limitations on the application of the principle of parity, as expressed by the High Court in Lowe v The Queen (1984) 154 CLR 606, none of those limitations apply in this case with the result that, to a large extent, that principle trumps other sentencing considerations. (c) Most importantly, the effect of the principle of parity on the orders I will make is that the sentence I will impose has already expired. There should be no delay in the pronouncement of these orders.

3. On 5 February 2024, police executed a search warrant at some residential premises. The offender and his co-offender were present at the time. When police entered the premises, they discovered a sophisticated hydroponic cannabis operation. There were a total of 141 plants seized from inside the premises. The police also discovered that rooms inside the house had been modified including the usual large-scale modifications to electrical wiring. The offender told police he had only been to the premises for the purposes of gardening and had never been inside the house. By his plea of guilty to the offence of cultivating a commercial quantity of a controlled plant, he now admits that that was not true. Forensic analysis of gardening gloves found inside the premises revealed DNA matching that of the offender and his co-offender.

4. There is nothing to distinguish between the offenders as far as the roles they played in the enterprise they were both a part of. They were equally culpable. There was no evidence presented on behalf of the offender but in this case I am content to accept what was said in the submissions filed on his behalf.

5. The offender has no criminal history. He was 52 years old at the time of his offending. He grew up in Vietnam and came to Australia in 2018 initially as a tourist before applying for a refugee visa. His parents have both died and he has no siblings. He does not remember completing school and in Vietnam worked primarily as a labourer and as a car mechanic. His lack of English skills make it difficult for him to obtain employment in Australia and has made his time in custody more burdensome. He has been in custody, bail refused, from 5 February 2024.

6. As with the facts, there is nothing of relevance to this sentencing exercise to distinguish between the offenders as far as their subjective circumstances are concerned.

7. Ordinarily I would set out the principles of law I have applied in determining the sentence I will ultimately announce. But in the circumstances of urgency which apply at the moment, I will simply say that McWilliam J has already accurately set them out, and applied them to the case of the co-offender whom she sentenced.

8. As I have already mentioned, I gratefully adopt what her Honour has said. I will apply her Honour's analysis of the legal principles to the almost identical case before me. I said “almost identical” because the only relevant difference between the cases of the two offenders is that one pleaded guilty at an earlier stage than the other.

9. While the offender sentenced by McWilliam J pleaded guilty at an earlier stage, albeit after committal for trial, and was given a discount of 25 percent, the offender before me pleaded several months after a criminal case conference. In such circumstances I regard a discount of 15 percent as appropriate and I refer to two cases, Blundell v The Queen [2019] ACTCA 34 at [12] and DPP v Padreny [2024] ACTCA 4 at [70] – [74].

10. As I mentioned earlier, there is no reason not to apply the principle of parity to this case, making appropriate adjustment to take account of the different stages at which the two offenders entered their pleas of guilty. The co-offender received a sentence of imprisonment of ten and a half months after pleading guilty early and thus getting a discount on sentence of 25 percent. Had there been no discount for pleading guilty, the sentence would have been 14 months.

11. As there is nothing to distinguish the two offenders, apart from the timing of their pleas of guilty, and the principle of parity applies, it is appropriate to take a similar starting point of 14 months and discount it by 15 percent. 15 percent of 14 months is 2.1 months, or 2 months and 3 days. Thus, the sentence I impose is one of imprisonment for 11 months and 27 days, to date from 5 February 2024, the day on which the offender was taken into custody. Thus, the sentence has already expired, it having expired on 31 January 2025. Orders

12. For those reasons, I make the following order: (1) For the offence of cultivating commercial quantity of controlled plant in count 1 (CC2024/1709), you are convicted. I sentence you to a term of imprisonment for 11 months and 27 days commencing on 5 February 2024 and expiring on 31 January 2025.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman Associate: Date: 24 March 2025