Director of Public Prosecutions v Anh Hue Tran

[2016] VCC 650

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00127

DIRECTOR OF PUBLIC PROSECUTIONS

v

Anh Hue TRAN

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JUDGE:	HIS HONOUR JUDGE HOWARD
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2016
DATE OF SENTENCE:	28 April 2016
CASE MAY BE CITED AS:	DPP v Anh Hue TRAN
MEDIUM NEUTRAL CITATION:	[2016] VCC 650

REASONS FOR SENTENCE
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Catchwords:  CRIMINAL LAW - sentence - plea of guilty to cultivating a commercial quantity of cannabis - 307 plants weighing 103.87kg - sophisticated hydroponic system set up in a factory – TES 3 years’ imprisonment with minimum of 2 years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms J Malobabic	Office of Public Prosecutions
For the Offender	Mr A McMonnies	Allan McMonnies Solicitor

HIS HONOUR:

1           Anh Hue TRAN, you have pleaded guilty to cultivating a commercial quantity of cannabis, for which the maximum penalty is 25 years’ imprisonment.  

2           I must now sentence you on behalf of the community.

Circumstances of offending

3           The circumstances of your offending are set out in an agreed prosecution opening which has been read out in court, so a summary will suffice.  
On 4 November 2015, police saw your vehicle outside a factory in Craigieburn.  You were not observed at that time. On 9 November, at about 8.44 pm, police saw you arrive at the factory in your vehicle and unlock a padlock and open an electronic gate to the factory.  You then opened a roller door.  A short time later police executed a search warrant, and you refused to open the door.  You were seen to be running to a door on the opposite side of the factory and only stopped when called upon to do so by police.

4           Inside the factory police discovered the premises were dedicated to, and being used solely, to cultivate a commercial quantity of cannabis.  The factory had been divided up into three rooms by plasterboard, each fitted with a complex hydroponic system.  This is all shown graphically in a number of photos provided. Within two rooms were a total of 307 cannabis plants in different stages of maturity weighing a total of 103.87 kilograms.  Police also found power transformers, light shrouds, globes and hydroponic chemicals. You were found to be in possession of $820 cash.

5           As often happens in these cases, an illegal electrical by-pass had been installed and it was clear from a number of empty growing pots, and conceded by you, that a crop had been harvested in the third room. But, you are not to be punished for those two matters.

6           A commercial quantity of the drug is not less than 25 kilograms or 100 plants, so you were cultivating well over the threshold in each case.  This is to be compared with a large commercial quantity which is not less than 250 kilograms or 1,000 plants and a trafficable quantity which is not less than 250g or ten plants.

7           You were arrested and interviewed by police.  You said it was your first visit to the factory and you did not know anything about your car being there on 4 November.  You claimed to have no knowledge of what sort of substance cannabis was.  You said that other people whose names or contacts you did not know or could not remember had left the keys to the factory for you at the front gate and instructed you to pump water into a barrel in the middle of the factory, although you did not know if that was an order to water the plants, which you had never seen.  You claimed the only thing you had done was to fill the barrel as a favour for someone but you were not paid, even though you were then unemployed.

8           You were charged and have been held in custody from that time until the present.  You did not apply for bail.  There is 171 days’ pre-sentence detention up to, but not including, today.

You pleaded guilty at committal mention on 3 February 2016, which was the earliest time.  No one else has been charged over the matter.

Background and personal circumstances

9           Your background and personal circumstances have been set out in a helpful written submission provided by your counsel.  I have not received any reports or personal references and no evidence was called on the plea hearing by you.

10        You are now 36.  You were born in Vietnam, one of two children; you have an older brother who lives in Vietnam with your parents, who are retired garment workers.  You completed Year 12 equivalent at high school.  You came to Australia in 1998, aged 19 so you could study English.  You did a 12 month English course but instead of returning to your homeland, you settled in Sydney and worked for a number of years as a butcher.

11        You married an older Vietnamese lady in 2003, with whom you lived until your arrest.  You have two stepdaughters, now aged 15 and 17 at school and a son, aged ten, from your relationship.   

12        You never returned to Vietnam and are now an Australian citizen with permanent residency.  No question of deportation arises.

13        You keep good health and have no alcohol or drug issues, and no mental health problems.

14        Regrettably you have a most relevant criminal history.  In June 2011, in the District Court of New South Wales, you were convicted of enhanced indoor cultivation of cannabis for commercial purposes - an offence which sounds exactly the same as the present. You were sentenced to imprisonment for a term of one year and three months with a non-parole period of 11 months and seven days. With what I infer to be pre-sentence detention from the date of 23 September 2010, it appears you were released on or about 30 August 2011. No details of the matter have been explained other than your claim that you were just “helping a friend” on that occasion.  I have not received the sentencing remarks.

15        On your release from prison in New South Wales, you kept parole and worked again as a butcher in Sydney and for a short time in Victoria in 2014, but ultimately you were retrenched in March or April 2015.  There were arguments with your wife over lack of money and ultimately, you returned to Victoria on 3 November 2015 to look for work.  This was said to be the context in which you offended.

16        On 27 October 2015, you purchased the vehicle seen at the factory on both days for $25,000 cash and drove the vehicle to Victoria.  It was seized and searched by police on the day of your arrest. The prosecution indicates on advice of the informant that following your arrest, the car was kept at the factory behind the locked fence.  When the informant arrived the next morning, the car was missing and he confirmed it was not taken by a police officer.  The informant believes that someone with access to the factory may have taken the vehicle as they would have been able to unlock the fence. Following the disappearance of the car, police pursued several lines of enquiries for a couple of weeks, however were unable to find the vehicle.  To date, no “whereabouts” has been placed on the vehicle.  This all seems rather extraordinary as the prosecution conceded that the vehicle was going to be the subject of an application for confiscation, particularly in the circumstances of its most recent purchase and connection to the offending.  I am prepared to proceed on the basis that it was likely to have been made the subject of a confiscation order.

17        Turning to more recent matters, since you have been in prison for the last five months, you have had no visitors, particularly you have not seen your wife and children.  Your wife speaks little English and is not in paid work and substantially cares for the three children at your rented premises in Sydney.  She is on Centrelink benefits and does not have enough money to come to Melbourne to visit you.  You have had regular phone contact with her.  Nothing was said about the children.  Otherwise, you have been socially isolated from other prisoners.

18        You were in lock down at MRC for six to eight weeks because of the recent prisoner riots.  Counsel confirms you will be entitled to apply for remissions on your sentence for that period of lock down once pre-sentence detention is declared. But no assumption can be made about that matter.

19        To your credit, you have done a one-day course in occupational health and safety and obtained a certificate.  You have produced a clean drug screen from 3 December last, but counsel has made clear that you do not have any drug issues. 

Mitigating circumstances

20        There are a number of mitigating circumstances relied upon which I accept. You come from a simple background in Vietnam, with a basic education and, other than your immediate family, have no other family contacts in Australia. To your credit, you have been fully and productively employed all of your adult life, including working consistently in Australia other than when in prison or looking for work. I gather you have a close marriage and family life but have little detail about that aspect.  You will have the anxiety of not having immediate contact with your wife and children whilst you are in custody in Victoria.

21        You have no alcohol, drug or mental health issues as noted.

22 Next, you have pleaded guilty at the earliest time, thereby saving considerable court time, inconvenience and expense. This utilitarian benefit has served the ends of justice, for which alone there should be a significant discount in penalty. Your counsel argued that your decision not to apply for bail demonstrates, along with the plea of guilty, that you are remorseful for your offending. I am unable to reach that conclusion. There is no evidence to support remorse, especially not in your police interview or on the hearing. Remorse simply does not follow a guilty plea. I consider the failure to apply for bail and your plea were a practical response to the fact that you were caught red-handed. And that you would have been most unlikely to have been granted bail as you were, it is conceded, required to demonstrate exceptional circumstances to obtain bail given that you were charged with an offence under s.72A of the Drugs, Poisons and Controlled Substances Act.[1] Additionally, you were from interstate with no ties in Victoria and were a person with a significant prior conviction for the same offence in New South Wales. Finally, you were in circumstances where you must have expected to be sentenced to prison for a substantial period where pre-sentence detention would be declared in your favour.  Indeed, your counsel has conceded there would have been no merit in a bail application.

[1] See: s.4(2)(aa)(i) of the Bail Act 1977.

23        Next, I am prepared to assume you have lost the value of the missing vehicle you purchased, namely $25,000.

24        Since you have been in custody, you have done one course and I accept that there are probably limited opportunities available to you in that regard.  There has been some rehabilitation.  You have no doubt felt socially isolated and found prison difficult.  Your foreign background will contribute to that situation.  Your English is not greatly proficient and so long as you serve a sentence in Victoria you will have no family support other than the occasional phone calls to your wife and perhaps your children.  It is, in my view, highly desirable, if possible, that once sentenced, you be transferred to New South Wales to serve out the sentence so that you can have meaningful contact with your wife and family. 

25        Upon your ultimate release from prison it can be expected you would get work again as a butcher.

26        Presently I must remain guarded about your prospects of rehabilitation, given your criminal history and the lack of supports while you are in a Victorian prison.

Other sentencing considerations

27        There are of course, other important sentencing considerations.  You have committed a very serious offence, which is reflected in the very high maximum penalty of 25 years’ imprisonment, to which I must pay due regard.  Obviously that maximum is reserved for the worst case, which category yours is not in, but it does demonstrate community concern for this type of offence.

28        Your counsel indicated that you should be sentenced on the basis that you played a limited role of watering the crop on one day only, in conformity with the claim you made in your record of interview.  I accept that I must sentence you for committing the offence on one day only, as I do, but I am unable to accept that you played that limited role in the matter.  You gave what I consider to be a ridiculous account to police, claiming you were unable to identify others involved when you obviously could; that these people had left a key out for you to gain access to the factory when criminals would hardly provide such access to such a valuable product to others who might just happen to come along; that you did not know what sort of substance cannabis was when you had a prior conviction concerned with that very drug; that you had simply put water into a barrel when no such barrel was discovered by police in the middle of the factory as suggested, and the hydroponic system was set up in each room; that you had not even seen the plants which were so obviously in the two rooms, and when five were in a bin in the middle of the factory floor; and that you were doing an unpaid favour when you were unemployed and concede you needed money to support your family.

29        You are not to be punished for failing to give evidence on the plea hearing, however, I would adopt the observations of the Court of Appeal in Dao v The Queen,[2] where the Court made clear that whilst an offender is entitled to say nothing, whether that be to police or at the plea hearing, and to rely on the fact of there being no evidence of aggravating factors as to role, where there is not otherwise acceptable evidence of mitigating circumstances the judge is bound to proceed on the basis that there are no mitigating factors of which evidence might have been given.  Here, there is no sound evidentiary basis to conclude that you played the limited role which has been claimed.  Although it cannot be found that you were at the top of any hierarchy involved with these drugs, you were clearly involved in this significant enterprise.  Put another way, you have not satisfied me, on the balance of probabilities, of the mitigating factor that you had the low involvement in the cultivation as submitted.  This is so whether or not others were involved in the enterprise with you.

[2][2014] VSCA 93, [17] per Nettle JA and [37]-[40] per Redlich JA, with whom Priest JA agreed.

30        The offence involves a substantial amount of the drug, well over the commercial quantity thresholds, three times the number of plants and four times the weight.  The nature of the commercial quantity is one factor of importance to be considered, although not the only one.  As a cultivator you played a crucial role in the highly planned and sophisticated commercial enterprise. By your presence alone, you have possibly helped to shield the principals from detection, if there be such other persons. No valuation statement was provided, but this amount of the drug would be worth a great deal on the commercial market.  Significant profits were to be made following the harvest of the crop and its distribution into the community, which is a socially-destructive activity with all of its pernicious social consequences.  I have no doubt you well understood all of this. 
It is not suggested that you lack intelligence.  I do not proceed on any basis that you would have been involved in the harvest or distribution of the crop.

31        You claimed you had not received any financial benefit for your involvement.  I do not accept this claim.  Persons committing this offence, who, like you, are not drug addicts, simply do not expose themselves to a maximum penalty of 25 years' imprisonment without being paid or having the expectation of being paid, particularly if they were unemployed like you and desperate to get some money.

32        Whilst I must have regard to the mitigating circumstances in your favour and the desirability of achieving your rehabilitation, which is in your interests and those of the community, the principles of general deterrence, protection of the community and just punishment all loom large in this serious offending.  Additionally, the principle of specific deterrence is of importance, given your previous conviction and sentence of immediate imprisonment for cultivating a commercial quantity of the same drug in New South Wales in 2011.  You have a very significant prior conviction for the same type of conduct and clearly have failed to learn an important lesson from that involvement with the criminal law.  You are not to be punished for your criminal history but you are not to be treated as a first offender going to prison for the first time and such a history is relevant to your prospects of rehabilitation.  Your drug offending has now escalated in seriousness and your moral culpability is high indeed.  There has been no assistance provided by you to authorities.  You are not to be punished for failing to volunteer meaningful information but you are not in the category of offenders who merit very substantial sentence discounts for genuine and meaningful assistance and co-operation with authorities. 

33        I must also consider current sentencing practice.  No material on this topic and no comparable cases were presented. Nevertheless, I have considered the Sentencing Advisory Council's most recent report for this offence (March 2015, Major Drug Offences - Current Sentencing Practices). Without the advantage of submissions on the point, I am unable to reach a conclusion as to whether you fall within Cluster 1 or Cluster 2 category, or somewhere in between, but the median sentence for these two categories was, respectively, 2-3 years' imprisonment, these are pre-Boulton figures, but the figures seem to bear little relativity to the maximum of 25 years' imprisonment. The limitations of these figures are well-known and they are not to be regarded as a benchmark, but they do provide guidance and stand as a yardstick against which to examine a particular sentence.[3]  At the end of the day, every sentence must turn on its own facts and circumstances and that is true of yours.

[3]Bui v The Queen [2015] VSCA 313, [27], per the Court (Redlich and Whelan JJA), 25 November 2015, where the Court considered recent SAC figures.

34        Not surprisingly, you concede you should be sentenced to an immediate term of imprisonment.  It was not submitted that your release at any time on a community correction order would be appropriate.  You want to return to the influence of your family in New South Wales as soon as possible.  Imprisonment must be a last resort of course, and I must also apply the principle of proportionality and ensure that I do not pass a crushing sentence upon you.

35        Finally, on behalf of the community, I strongly denounce your offending.

Sentence

36        Mr Tran, please stand up.  On the charge of cultivation you will be convicted and sentenced to three years' imprisonment.  I fix the period of
two years before which you shall not be eligible for parole.  I declare that 171 days’ pre‑sentence detention be reckoned as already served under that sentence and direct that such declaration be entered in the records of the court.

37        But for your plea of guilty, I would have imposed a sentence of four years' imprisonment with a minimum of three years.

38 You have agreed to the making of a forensic sample order. Given the seriousness of the offence, your prior conviction, the fact that the order is by consent and in the public interest I will make the order. Accordingly, pursuant to s.464ZF(2) of the Crimes Act 1958, I order that you provide a scraping from your mouth and/or a blood sample in accordance with sub-division 30A of Part III of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I should warn you that if at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, which is a quick and painless process, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. 

39        I will also make the disposal order sought which is also agreed to by you. Please sit down for the moment. 

40        I hand down the signed orders and I ask counsel, are there matters arising?

41        COUNSEL: No, your Honour.

42        HIS HONOUR:  I have also signed the gaol orders and copies can be made available to the parties. Mr McMonnies, do you want to speak to your client here or would you rather go down to the cells to do that?

43        MR McMONNIES:  I'm happy to go down to the cells now, your Honour, now we have completed that.

44        HIS HONOUR:  Yes all right.  Thank you to both of you for your assistance. Mr Tran, you need to go now with the prison officer now.  Mr McMonnies will come down and speak to you downstairs.  Thank you, please remove the offender.

45        [Offender removed]

46        Thank you for your assistance too, Ms Tran [interpreter].  It's been a long day for you.

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