Director of Public Prosecutions v Duyen Ta

[2018] VCC 2299

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR‑18‑01646
CR‑18‑01645

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUYEN TA
KIEM TRAN

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 November 2018
CASE MAY BE CITED AS:	DPP v Duyen Ta & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 2299

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D Shivakumar	Ms Y Giannopolous
For Accused Ta	Mr G Davis	Mr C Metcalf
For Accused Tran	Ms D Dempsey	Ms S Gall

1HER HONOUR:  Duyen Ta and Kiem Tran, you have pleaded guilty to one charge of cultivate narcotic plants, being cannabis, and one charge of theft.  Those charges relate to your involvement in an elaborate hydroponic setup located in premises at Cranbourne.  Mr Tran, you have also pleaded guilty to one summary charge of deal with property suspected of being the proceeds of crime, relating to an amount of money found in your possession on arrest. 

2The maximum penalties are as follows.  For cultivating a narcotic plant, 15 years maximum; for theft, ten years maximum; and for dealing with property suspected of being the proceeds of crime, two years maximum. 

3You are both Vietnamese nationals, aged 27 years of age.  Both of you had been in Australia on student visas for a period of time prior to these offences.  You were living at premises at 7 Killeen Street, Sunshine West, with Mr Ta and his girlfriend in the house, and Mr Tran in a bungalow.

4Police conducted surveillance on a residential address situated at 33 Spurr Street, Craigieburn.  Those premises were leased in both of your names on 30 November 2017.  The prosecution accept that this was an arrangement made by other persons, that you then took out the lease in your names, and were given money to pay a bond.  It is not disputed by the prosecution that ongoing rent was paid by another person or persons for the lease of that property.  Those are significant concessions. 

5On 3 January 2018, at about 6.30 pm, police observed you both arrive and park at the Spurr Street residence.  You both went inside.  Shortly after, Mr Tran came out of the residence and put domestic garbage bins on the kerb, and then went back into the residence.  About 20 minutes later, you both left, carrying three garbage bags between you, and you placed those in the rear seat of the vehicle. 

6Soon after, you were intercepted by police, and Mr Tran stated to police that you had travelled from the Sunshine area to the Craigieburn just to have a look around, as you had not been there before.  The vehicle was searched.  Three garbage bags located on the back seat were found to contain industrial hose reels and empty plant pots.  A search of the boot of the vehicle located three bags of potting mix.  You were both released.  

7On 23 January 2018, police attended at the address in Spurr Street and saw a 2007 silver-coloured Holden Captiva van parked on the opposite side of the street.  That vehicle was registered to Mr Tran, but Mr Ta's girlfriend, Ms Dahn, was in the vehicle, and attempted to alert you both to police presence.  Police entered the garage and identified themselves to you both. 

8You both ran from the premises, but were soon after apprehended.  A warrant was then executed.  The entire premises had been converted to a sophisticated hydroponic system.  This was comprised of irrigation systems, growing lights, electrical transformers, the electrical meter bypass, fertilisers, and other chemicals for the growing of plants.  These were set up to provide areas for the growing of cannabis. 

9Cannabis plants were at various stages of the cultivation process.  In the lounge room was a tent containing numerous cannabis plants ready for harvesting.  There was another room, that appeared to have been recently harvested, and a third, which contained cannabis buds drying out.  The bathroom and laundry room were filled with chemicals used to cultivate the cannabis.  An electrical meter bypass had been installed, hence the theft of electricity charge. 

10Investigating police seized 68 plants in total, plus two bags containing cannabis buds and a bag of loose-form cannabis.  In the vehicle, police located $587.60 in Australian currency, suspected of being proceeds of crime. 

11Police later executed a warrant at 7 Killeen Street, Sunshine West.  During the search of Mr Ta and Ms Danh's bedroom, police located, inter alia, receipts for hydroponic equipment from Epping Hydroponics, being for flexi tubes, numerous black buckets, insulating tubes, rectangular tubes, measuring jugs, joiners, GI timers, LMU timer box, cable connectors, and Monsta Bud fertiliser 25 litres.

12In the rear bungalow occupied by Mr Tran, they located a quantity of Bunnings receipts, with items utilised for the cultivation of cannabis, being lead extensions, fertiliser liquid, containers, fans, digital timers, garden sprayer triggers, globes, and storage containers, as well as $1750 in Australian currency, suspected of being proceeds of crime.

13In the garage, investigators located stored hydroponic equipment, including electrical cabling, vents, carbon filters, which were the same as those located at the 33 Spurr Street, Craigieburn.  These discoveries may have suggested you both were the architects of this setup, hence the significance of the OPP's concessions. 

14Mr Tran, when you interviewed by police, you told a number of lies; in particular, that you had only attended the premises that morning, after an offer of work on that day by a man named John; that you did not know any other details of John, or his telephone number.

15You did admit that you knew the work offered was harvesting cannabis, and that this was against the law.  You admitted your awareness of the hydroponic setup at that address, and that you had previously fed and watered the plants.  You admitted that you and Mr Ta were harvesting the cultivated cannabis at that address that day, and that your reason for cultivation of the cannabis was money.  

16Mr Ta, you were interviewed by police.  You stated you knew Mr Tran and Ms Danh, but otherwise did not make any further comment.  Ms Danh was interviewed, but denied all knowledge and was not charged. 

17On analysis, the quantity of cannabis seized was 68 plants, with the total weight of 39.54 kilograms. Pursuant to the Drugs, Poisons and Controlled Substances Act 1981, the weight takes this in fact beyond a commercial quantity, which is 25 kilograms.  However, given the nature of the plants, the matter resolved to a cultivate simpliciter, and I will only sentence you on that basis.

18Role is always an important aspect when considering sentence in a matter such as this.  The prosecution concede that you are not principals in this organisation, but that there were persons above you responsible for the rental of the premises, the diversion of the electricity supply, and the setup of the hydroponics.  So you fall below those who are at the higher level of involvement in cultivation of cannabis. 

19However, you are not at the lowest end.  The lowest end of persons usually involves people paid a minimal amount to be present at premises, sometimes watering plants, but nothing more, and often only facing a charge covering the day of arrest.  Your counsel both sensibly concede that you are both more than crop sitters in that lowest form.  You were involved in attending the premises over a course of time, as covered by the indictment, between 30 November and 23 January.  On your admissions, Mr Tran, you had been there on at least three occasions, and at least one of those in relation to both of you was 3 January. 

20It is clear, and your plea acknowledges that you fed, watered, and generally tended the plants, at times purchasing equipment for that purpose, as demonstrated by the receipts.  At least two of those receipts, found in Mr Ta's room, cover purchases of equipment on 6 and 20 December 2017.  On the day of your arrest, you had both been involved in harvesting some of the crop.

21The amount of money located in Mr Tran's premises may also be suggestive of further involvement, though no conclusion can be drawn in that regard and so I only treat it as proceeds of crime in the general sense.  I note also that vehicles were registered in Mr Tran's name, which suggests perhaps he was financially better off than contended.  However, again although those facts raise question marks around the level of involvement with this crop, I can and do only treat the two accused as having cultivated the cannabis for persons unknown and for a limited amount of financial gain. Mr Tran stated he was paid $200 for taking out the lease and was to be paid $300 for his attendance and harvest on the day of arrest. 

22Nonetheless, your counsel rightly concede also that although mid-range players in a hierarchy, your willingness to be involved and perform your role was crucial to the overall success of this venture.  To this end you accept through them that any sentence must be a term of imprisonment. 

23Cultivation of cannabis is a serious and prevalent offence, and is often difficult to detect. The movement of cannabis through the community relies on persons such as you being willing to tend the crop as it grows and to harvest the product.  As in your case, that is usually a role for financial reward despite a lack of investment in the ultimate product.  I must reflect the community's denunciation of this type of enterprise and impose just punishment.  I must also impose a sentence which deters others from resorting to participating in and cultivating cannabis as a path to financial gain. General deterrence, therefore, must be at the forefront of the sentencing synthesis. 

24Turning to your backgrounds, Mr Tran you were born in the Hai Duong Province of Vietnam on 23 June 1991, and were 26 years of age at the time of the offending and are currently 27 years of age.  Your Father, Bien Tran, and Mother, Ngoan Tran, still reside in Vietnam.  They own a business selling wholesale seafood to restaurants.  Both your parents worked long hours in the business while you were growing up.

25You have an oder Brother, Ngoc Tran, who is 30 years old and works as an IT programmer, and a younger brother who lives with your parents and works with them, and he is aged 25. 

26You attended various schools in Vietnam and completed your secondary schooling at 18.  You attended the University of Commerce in Hanoi between 2009 and 2013 and obtained a Bachelor of Business in business administration.  After university you worked for an advertising company in Vietnam for 12 months before coming to Australia.

27You arrived in Australia with the financial support of your family in 2014 on a student visa.  Upon arrival you enrolled in an English course through Ozford English Language Centre, completing a 12 month course to satisfy English requirements.  Thereafter you enrolled at the St Peter Institute in a Certificate of Business.  You later applied for a bachelor degree placement, and I understand you were a month short of completing your course.  You had not been eligible for any financial assistance in relation to your studies and so you have self-funded your education with the assistance of your family in Vietnam. You have been self-employed as an Uber driver while on your student visa, as well as assisting at the Laverton Markets in a clothes store. 

28You have now been remanded for a considerable period.  You are currently remanded at Fulham Correctional Centre, where you are working full-time in the kitchen, and are housed in a self-sufficient unit with seven other prisoners.  To your credit you have taken the opportunity to continue your studies in custody, studying English and IT.  You have contact with your family every fortnight from prison and they are aware of the charges and are supportive of you.

29Your plans to remain in Australia are at an end due to your involvement in this enterprise, and you will likely return to your family at the end of your sentence. 

30In relation to you Mr Ta, you arrived in Australia on 10 September 2016 on a student visa.  You are a post graduate student, having qualified at tertiary level in Hanoi in mechanical engineering.  On arrival in Australia you were enrolled at Deakin University doing a Masters Degree in engineering.  You have two brothers, one who is older who is an engineer in Hanoi, and your younger brother is engaged in the building industry.

31When you left Vietnam you were given money by your parents to establish yourself in Australia.  This was significant as your parents are farmers and apparently not affluent.  The amount of money was the equivalent of approximately $AUD2,000.  For the initial part of your stay in Australia you were working in a chicken processing factory as you studied.  Money was difficult due to the restrictions on your ability to undertake paid employment on a student visa, hence apparently you succumbed to the temptation when recruited for this endeavour.

32At the time of your arrest you were still studying and in fact were only months away from completing your masters degree.  Your involvement in this criminality of course means you cannot complete that qualification.  The tragic waste of a young man with such potential is obvious. 

33I accept in relation to both of you that you were both here studying legitimately before involvement in this offending commenced.  I accept that you are both intelligent men who have potential.  That is, as your counsel concede, a double edged sword.  Namely, intelligent brings with it attendant resources to care for oneself without resort to criminal activity, but as a positive it means there is always potential for you both to rehabilitate yourselves. 

34Imprisonment for both of you has been difficult due to cultural and language barriers.  That fact demonstrates the resultant risk of involving yourself in criminal activity in a foreign country, namely that you will be isolated both within the prison and from your families.  You both face the prospect of being returned to Vietnam upon your completion of your sentence and I accept that that fact adds a particular burden to your time in custody.

35In relation to both of you, I consider, taking into account your past history and lack of any prior criminal activity, that your prospects of rehabilitation are good.  I take into account your early pleas of guilty and the fact that this demonstrates an acceptance of your responsibility for this criminal enterprise, as well as carrying with it the utilitarian benefit of avoiding a trial for these offences.  Specific deterrence in all the circumstances has likely been achieved by your period of time in custody, and now in my view forms a lesser role in the sentencing synthesis. 

36However, taking into account those prominent factors I referred to earlier, namely general deterrence, just punishment and denunciation, the only appropriate sentence is a term of imprisonment with a non-parole period, and as much was conceded by both of your counsel.  In light of the fact that there is great overlap between the offence of cultivating cannabis and the theft of electricity, I propose to impose an aggregate term in relation to those offences.  If you could both now stand please. 

37Mr Ta, in relation to the two charges, that is the cultivate cannabis and the theft of electricity, you are convicted and sentenced to two and a half years imprisonment, with a non-parole period of 18 months imprisonment. 

38Mr Tran, in relation to the charge of cultivate cannabis and the theft of electricity, you are convicted and sentenced to two and a half years imprisonment, with a non-parole period of 18 months imprisonment.  In relation to the summary charge; the additional summary charge in relation to you Mr Tran, you are convicted and sentenced to one month imprisonment.  I make no order for cumulation.

39In relation to both of you, the pre-sentence detention is 295 days and I declare that as a period of time served in relation to this sentence.  But for your pleas of guilty, the sentence I would have imposed in relation to both of you would have been three years and 10 months, with a non-parole period of two and a half years imprisonment. 

40I note the ancillary orders for disposal confiscation and the section 464ZF order were all made by consent and I propose to make those in the terms sought. 

41Thank you.  You can have a seat please.  Any issues, counsel? 

42MR Y:  No, Your Honour.

43HER HONOUR:  Thanks very much.  I'll sign those orders and then I'll leave the Bench.  I take it there was to be a 464ZF application in relation to Mr Tran also?  We just seem to have two in relation to Mr Ta and none in relation to Mr Tran.

44MS X:  I have one here, Your Honour, for Mr Tran.

45HER HONOUR:  Thank you.  Yes, thanks.

46MS Z:  Yes, Your Honour, we consented on the last occasion.

47HER HONOUR:  Yes, thank you.  All right.  Thanks very much. 

48MS Z:  If I could just ask the court that, because there's obviously one interpreter for both our clients, whether they could just be held in the court for a few moments after you leave the Bench.

49HER HONOUR:  Yes.  Yes, there's no difficulty with that I take it from a security point of view?  I was going to leave the Bench so that you don't have to go downstairs.  All right.  Thanks very much counsel for your assistance.  Half past ten, thanks.

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