Director of Public Prosecutions v Anh Tran

[2021] VCC 224

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01502

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANH TRAN

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 January 2021
DATE OF SENTENCE:	10 March 2021
CASE MAY BE CITED AS:	DPP v Anh Tran
MEDIUM NEUTRAL CITATION:	[2021] VCC 224

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Cultivate Narcotic Plan Commercial Quantity – Cannabis – Crop sitter – Offence occurring on one day only – No prior offences – Economic desperation – Imprisonment – Non parole period

Legislation Cited: s.72A Drugs, Poisons and Controlled Substances Act 1981

Cases Cited:            R v McLeish (1982) 30 SASR 487 - DPP (Cth) v Omar [2019] VSCA 188 - The Queen v Pidoto and O’Dea [2006] VSCA 185 - Dao v The Queen [2014] VSCA 93 - Nguyen v The Queen [2017] VSCA 127 - Dao   & Tran v The Queen [2014] VSCA 93- Topal v The Queen [2019] VSCA 289 - Guden v The Queen (2010) 28 VR 288 - Nguyen & Pham   v R [2018] VSCA 322 - Allouch v The Queen [2018] VSCA 244 - Loftus                   v The Queen [2019] VSCA 24

Sentence:Total effective sentence of 3 years and 6 months with a minimum of 2 years imprisonment before being eligible for parole. Pre-sentence detention of 44 days.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Ironside (Sentence) Mr S. Davidson (Plea)	Office of Public Prosecutions
For the Accused	Mr C. Nikakis	Haines and Polites Lawyers

HIS HONOUR:

1Mr Anh Tran, a labourer, comes before the Court aged 26.  He was 25 at the time of this crime, having been born on the second of March 1995.  In this matter Mr Davison appeared on behalf of the Director and Mr Ironside appears today; and Mr Nikakis appeared on behalf of Mr Tran.

2I record that these proceedings have been conducted by way of Webex.  I thank everyone involved.  Due to the crisis that this community has been enduring there has been no other way to finalise legal proceedings.  With the aid of technology and, in particular, the Webex system, we have been able to finalise this plea.  It has, unfortunately, meant that people have not been present in Court, which is clearly the preferred manner in which a sentence of this importance should take place and the plea.  However, we have had to cope with that.

3Mr Tran pleaded guilty to one charge in Indictment No.L11445003.

4The plea took place on 27 January 2021.

5Exhibit A, was accepted by Mr Nikakis on your behalf, Mr Tran, as disclosing the facts upon which I am to sentence you.

6Charge 1 is a breach of s.72A of the Drugs, Poisons and Controlled Substances Act 1981, being to cultivate, on the 16 June 2020 at Rochester, a commercial quantity of a narcotic plant for which the maximum sentence prescribed by Parliament is 25 years' imprisonment, hence the offence is inherently serious.

7Parliament has classified, since 28 October 2018, this offence as a Category 2 offence, which pursuant to s.5(2H)[1] must be met with a custodial sentence.

[1]Sentencing Act 1991.

8Exhibit A demonstrates that while living in St Albans you were apprehended on the 16 June 2020 committing this offence at 26 Railway Road, Rochester.  Conducted there was a sophisticated hydroponic setup in six rooms, and three further areas in outside sheds.

9Data concerning the location of your mobile phone show you to have been in Rochester on 14 occasions, including five occasions where you remained there overnight, for a period of four weeks, between the 18 May and the
16 June 2020.

10On the day the warrant was executed two cars, registered in your name, were at the property.

11In one of the cars, a wallet was found which contained handwritten instructions in Vietnamese as to how to cultivate cannabis.  Electricity had been bypassed and the botanist evidence is that the plants were between 10-14 weeks of age.

12The botanist identified 221 cannabis plants with a weight of 197.7 kilograms, the threshold level for commercial quantity of cannabis, pursuant to Schedule 11, part 2, is respectively 100 plants and 25 kilos, hence the amount found was double the amount of plants and just on eight times the weight.

13Pre-sentence detention was 44 days before Mr Tran was bailed.

14Mr Tran arrived in Australia on a Temporary Activity Visa on 2 January 2018, since his arrest he has  been on a Bridging Visa.

Criminality

15Albeit Mr Tran's role is accepted as a crop sitter only, it is important to understand that any role in such criminality is subject to condign punishment, as was said in R v McLeish (1982) 30 SASR 487, [492]:

'It seems to me to follow that after making all due allowances for the personal circumstances and antecedents of the prisoner, the facts of the particular case, and the need to show such mercy as is compatible with the safety of the public, a Court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organization for purveying drugs, as well as to potential recruits, the simple truth, that a man who participates in such an organization at any level – I repeat at any level – must expect, and will receive, a heavy penalty.  … .'

16The maximum penalty prescribed is always a yardstick, especially in a quantity-based scheme, see the Court of Appeal in Director of Public Prosecutions v Condo [2019] VSCA 181, [28]. The Court of Appeal said in Nguyen v R [2010] VSCA 127, [18]:

'… the maximum of 25 years shows unambiguously how seriously the community, through the Parliament, views this conduct.'

17And at [19]:

'…it is of course irrelevant which drug is being cultivated.  So much was made clear by the decision of this Court in Pidoto.  Since that 2006 decision the sentencing regime has remained unchanged….  As the Court said in Pidoto, this is a quantity-based sentencing regime.  Although quantity will not bear an arithmetical relationship to sentence, the quantity involved is a very significant matter in sentencing for these offences.

18Further, in DPP (Cth) v Omar [2019] VSCA 188, [8] the Court of Appeal said:

'..the amount…involved…will ordinarily be a highly relevant factor in determining the objective seriousness of the offence.  As this Court has previously suggested, making comparative judgments about offence seriousness is made easier when the quantity involved is expressed as a percentage, or multiple, of the commercial quantity.'

19Of course, quantity is not the sole determinant of a sentence, but of utmost significance[2].

[2]Dao v The Queen [2014] VSCA 93.

20The quantity here was considerably in excess of the threshold by weight, and double the threshold by the number of plants, and the Court in this matter is dealing with a commercial quantity.

21Gaol is virtually unavoidable due to general deterrence being so important, as said in Nguyen v The Queen [2017] VSCA 127, [33] and [64], cultivation of a commercial quantity of a narcotic plant (cannabis):

'… was informed by the need for general deterrence and that the prevalence of the form of the offending involved in this case gave rise to greater sensitivity in this regard.

In particular, this was so, because of the prevalent use of young persons with vulnerable immigration status to undertake the role of crop sitter or minder.

The consequential buffering from detection of the organisers or principals of the scheme was also correctly identified by the sentencing Judge as an additional factor bearing on the importance of general deterrence.'

22At [36]:

'It follows that the characterisation of the appellant's role as that of a crop sitter does not of itself displace the need to look at the circumstances of the offending as a whole and to weigh competing sentencing considerations in determining an appropriate sentence.'[3]

[3]Nguyen v The Queen [2017] VSCA 127, [36].

23The prosecution has accepted Mr Tran as a crop sitter and charged him as to an offence occurring on one day only. Such approach is in my view very generous in the circumstances where there is evidence of involvement for a period of approximately one month, and the crop was aged between ten and fourteen weeks.  While I respect that such is accepted by the prosecution, and I sentence accordingly, I consider the correct approach that should have been taken to this is to proceed on basis that there was uncertainty as to Mr Tran's role[4].  Hence the Court would proceed to sentence on the basis of the facts which are known.

[4] See Dao & Tran v The Queen [2014] VSCA 93, [8] and [38]-[41].

24As I said in the plea, and have said on numerous occasions over the last year, this is a very serious offence, categorised by the Parliament as Category 2 offence under the Sentencing Act, and carrying a maximum penalty of 25 years' imprisonment.  Investigators and the Director should do all that is possible to ensure that Courts are not presented with pleas which have a sense of unreality about them[5].  If the reality is that the police, or the Director, do not have the resources to properly investigate these crimes then relevant submissions should be made to the Attorney-General.  I ask once again that these remarks, in particular this is addressed to you Mr Ironside, are brought to the attention of the relevant authority by the Prosecutor and informant.  I make it clear that my comments as to this ongoing situation which this Court has observed has no impact upon my sentencing of Mr Tran.

[5] See Nguyen v The Queen [2019] VSCA 134, [46] and [59].

25Mr Nikakis was at pains to submit that owing to having lost employment,
his immigration status and having no income Mr Tran was desperate to earn income to support his partner and young child, who had been born in April of 2020.  Mr Nikakis stated his client was used as a 'dupe' by those higher up in the chain.  As said in Omar[6], relevant to a courier (but by analogy equally relevant here):

'the role of the courier is indispensable……illicit drug syndicates are only able to prosper because people like [sic] [in this case Mr Tran] are "ready, willing and able to undertake these types of roles."'

[6]DPP (Cth) v Omar [2019] VSCA 188, [9].

26I am unaware of what Mr Tran's financial reward was, however even accepting the motivation as put Mr Nikakis, this Court must always bear in mind the need to impose a sentence which is a 'counterweight to reward'[7] and which will support an appropriate 'risk reward calculus'[8].  This is important here as clearly, given Mr Tran's accepted role, unknown persons or syndicates have used his situation to protect themselves from detection.

[7]Topal v The Queen [2019] VSCA 289, [34].

[8]DPP (Cth) v Omar [2019] VSCA 188, [13].

27In sentencing in this case I am obviously subject to the recent guidepost of the Court of Appeal in Nguyen & Pham v R [2018] VSCA 322 where for the cultivation of 182 plants as a crop sitter, I imposed a sentence of six years imprisonment. Such was reduced to three years and three months by the Court of Appeal. The Court referred to McClelland v R [2017] VSCA 124, a case involving 73 plants, where the original sentence imposed was five years with a non-parole period of three years. On appeal that sentence was reduced to three years and nine months with a minimum of two years and five months. Hence despite my inclination to impose a higher sentence for this crime, one obviously has to follow the guidance given by the Court of Appeal, and I sentence accordingly.

Submission of Prosecution

28The Prosecutor submitted that given the seriousness of the crime general deterrence has particular prominence here, and further that the significant amount of the drug should also be taken into account in any sentence pronounced.

Plea of Mr Anh Tran

29Coming to the plea presented Mr Nikakis, his written submissions were tendered as Exhibit 1 and he spoke to them.

30Also tendered as Exhibit 2, were two personal references.

31Mr Nikakis detailed Mr Tran’s personal background set out in Exhibit 1, [2]-[12] and noted his client had no prior offences, and again stated the explanation for the crime being his need to support his family. Mr Nikakis submitted this crime was committed out of economic desperation as Mr Tran could not get benefits as he was awaiting a visa, and the pandemic had eliminated his ability to work, creating a state of desperation. Since being bailed Mr Tran has now found employment, and as the references tendered attest to him he is considered to be a hard worker.

32Mr Nikakis also raised the issue of the plea, that it was an early plea in the circumstances, which was indicative of remorse, was utilitarian and also he referred to the fact that this plea was made and is taking place during particularly difficult times for this Court when listing pleas and trials is impacted by the COVID-19 and the circumstances are as reported and taken into account, in Re Bourke [2020] VSC 130, [32], were relied upon by Mr Nikakis. For all of those matters I provide an appropriate discount.

33I also accept that any period in gaol, not only during the period he was on remand but in the short term one would hope, is going to be impacted by the effects of COVID-19.  There are currently lockdowns required which I understand are still half a day in the Correction institutions.  There are restrictions of programs, total restriction of visitors and indeed ongoing risk of COVID-19 being passed within the prison.  I should say that that risk is obviously very low given the excellent way the Corrections department have attacked the problem and there is no evidence to date which has emerged of any prisoner having been infected in prison.

34As a matter of principle, the prospect of deportation is a factor which may bear on the impact which the sentence of imprisonment will have on Mr Tran, both during the currency of the incarceration and upon his release.

35In Guden v The Queen, the Court of Appeal said[9]:

'As the Crown properly conceded on this appeal, the fact that an offender will serve his term of imprisonment in expectation of being deported following release may well mean the burden of imprisonment will be greater for that person than for someone who faces no such risk.  Moreover, we respectfully agree with the view expressed by the New South Wales Court of Criminal Appeal in Kwon that, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the prisoner losing the opportunity of settling permanently in Australia.  Taking a practical approach, as the Court there did, this may well be viewed as a serious "punishing consequence" of the offending.'

[9]Guden v The Queen [2010] 28 VR 288, [27].

36Mr Nikakis instructed his client had a holding visa pending determination of this sentence.  The reality is that his client will then spend a lengthy period in detention if he lodges an appeal against such detention, or more likely he will be deported.  I am of course unsure what will the happen to his partner and child.

37I do take the above into account in the Guden sense both and as to the impact on him serving the offence, and thereafter the ending of any hope of his settling in Australia, if that was his aim.

Sentence

38I now come to sentence Mr Tran.  In the circumstances you can stay where you are.

39Mr Tran having taken account of all the factors put to me; you will be convicted on this charge.

40On Charge 1, I sentence you to imprisonment of three and a half years.

41I order the non-parole period, that is the period you must serve prior to being eligible for parole, is two years.

42Pre-sentence detention of 44 days is deemed service of this sentence and I order that a declaration to that effect be entered in the records of this Court.

43In regard to s.6AAA of the Sentencing Act, which is probably not something you want to hear from me having just been sentenced, but I am required to tell you what the benefit of your plea would be.  Insofar as the sentence passed upon you,  you know I have given you a total effective sentence of three and a half years and I indicate, as required by Parliament, what you would have received had you not pleaded guilty.  Also can I indicate how difficult this is because your plea of guilty is one of the multitude of factors put by Mr Nikakis on your behalf that I have taken into account.  However, doing as best I can to comply with Parliament's wishes, can I indicate to you that had you not pleaded guilty the sentence that would have been imposed on you is not one of three and a half years with a minimum of two years, but I would have imposed a sentence of five and a half years with a minimum of three and a half years.

44I have signed Disposal and Forfeiture orders, which were done by me by consent.

45Do I need to clarify any matter for either counsel?

46MR NIKAKIS:  No, Your Honour.

47HIS HONOUR:  Yes.  Can I thank everyone for their assistance in this matter and Mr Tran, good luck, once you've served your sentence.  But the reality probably is that you will not, unfortunately, be in Australia.  But who knows, that is a matter that you may have to take up, and no doubt Mr Nikakis will look after you in that instance.

48Yes, thank you, the prisoner can be taken away.

49Thank you, madam interpreter.  Yes, madam associate.

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