Director of Public Prosecutions v Ha
[2013] VCC 696
•21 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
Case No. CR -13-00387
CR-13-00388
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANH HA THI TRAN |
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JUDGE: | HER HONOUR JUDGE COTTERELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2013 | |
DATE OF SENTENCE: | 21 May 2013 | |
CASE MAY BE CITED AS: | DPP v Ha & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 696 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Bosso | Office of Public Prosecutions |
| For the Accused Ha For the Accused Tran | Ms D. McCann Ms B. Coath | Victoria Legal Aid Pica Criminal Lawyers |
HER HONOUR:
1 Thi Tu Tran and Anh Ha, you have each pleaded guilty before me to one charge of cultivating a narcotic plant in a commercial quantity. The maximum penalty for that offence is 25 years imprisonment. Further, you have each pleaded guilty to one charge of theft. The maximum penalty for that offence is ten years imprisonment. You, Thi Tu Tran, have also pleaded guilty to one summary charge of dealing in property suspected of being the proceeds of crime. The maximum penalty for that offence is two years imprisonment.
2 The facts of the matter were set out in the prosecution opening and a summary of the opening was tendered as Exhibit A on the plea. A copy of that opening is attached to these sentencing remarks. In brief, on 12 October 2012 a search warrant was executed at the property at 7 Jennifer Court, Derrimut, where you both resided. On attending the property, police found four rooms of the house dedicated to the cultivation of cannabis. They found 41 mature plants with a total weight of 57.7 kilograms and 43 seedlings which weighed in total 832.8 grams. The cultivation set-up was sophisticated, including lights, exhausts, wall coverings, and of course the potted plants.
3 Thi Tu Tran, at the execution of the warrant, the sum of $1410 was located in your handbag and that is the subject of the summary charge to which you have pleaded guilty, albeit reluctantly. As part of the cultivation enterprise an electrical bypass had also been installed.
4 You are both Vietnamese nationals and you are here on visitor visas. You speak little or no English and it would appear that neither of you has a criminal record either in Vietnam or in Australia. I note that you both pleaded guilty at your committal on 4 March of this year without any witnesses being cross-examined. You are entitled to a discount on your sentence for those pleas of guilty and you will receive one.
5 You both gave lengthy answers and cooperated fully in your records of interview. This is objectively serious offending given the penalties parliament has seen fit to impose in relation to the main charge of cultivation of a commercial quantity of a narcotic plant. I will now deal with each of you individually in relation to your personal circumstances.
6 Anh Ha, you are 35 years old, unmarried, and have a good work history both in Vietnam and in Australia. Having completed high school you studied marketing in Vietnam, and although there was a shortage of work, you eventually obtained a number of short term contracts which kept you employed. From 2007 you had permanent employment with a large company until you came here. Your family has relied on you to provide money ever since you were able to work, but more so since your mother suffered a stroke and other complications in 2012. She also suffered heart failure and has some brain dysfunction. Tendered as Exhibit 1 on the plea was a medical certificate translated and certified which attests to those matters and also to a debt of the equivalent of some $4000 in relation to her treatment in Vietnam.
7 Your parents both worked as bowl makers in your home town in North Vietnam but they are no longer physically able to do so. Your mother's treatment was, as I indicated, expensive, and as financial pressures mounted you were lured by the promise of the financial reward that one of your fruit-picking co-workers in Australia described to you. I further note your only sibling suffers from schizophrenia, is unable to work and assist with the support of your parents. He lives with your parents in Vietnam and is also dependent on your income as I understand it.
8 In that family context your counsel submitted, lies the explanation for your involvement in this offending. Although not an excuse, it does provide some explanation why a normally law-abiding person would become involved in the offending which brings you before this court. Your counsel further submitted on your behalf that your substantial admissions in your record of interview and your early plea have facilitated the police investigation of this matter and its early resolution. Further, that your previous good character and work ethic are both indicative of your good prospects of rehabilitation. Your counsel further submitted in mitigation that any time that you serve in prison is more onerous for you than for a normal member of the prison population as you speak no English, you have no family here, and have the additional concern that you are unable to support your mother and your family who are enduring hardship and are dependent on you. That submission I accept, I take that into account; however, that is tempered with the fact that you elected to commit criminal offences in a foreign country and therefore some of those matters may have been expected.
9 Finally in relation to mitigation, your counsel submitted that your role in the offending places you at the lower end of persons charged with this type of offence. It appears that your role was to follow the directions of another person as to whom you should contact in order to establish the hydroponic set-up and you were directed by others as to how to grow the plants. It is conceded that you assisted in the set-up and planting and that you contributed some $1500 to the enterprise. Your role then was mainly watering the plants. You were to receive an unspecified sum when the plants were harvested and sold as your reward in this enterprise. You also paid rent and contributed to electricity costs at the property.
10 It was put on your behalf that your financial contribution, however, gave you no power in the organisation and that you understood that other people were to return to collect the harvest when the plants were mature. It is conceded by your counsel that a custodial sentence is the only appropriate one in the circumstances and he urged me in balancing the objective gravity of your offending and the mitigating circumstances to sentence you in a way that you would be released as soon as possible. I take all those matters into account. You do indeed find yourself in a very unfortunate situation, and I understand that when you have completed any sentence that I may impose you will be deported and sent back to Vietnam.
11 I now turn to you, Thi Tu Tran. You too are from Northern Vietnam from a town near Hanoi. Your family all live in Vietnam: your parents, your brother, who is a teacher, and your two sisters, one of whom is employed in a factory and the other who is an invalid and lives with your parents. The only member of your family in this country is your oldest son, who as I understand was present at the premises when the warrant was executed and he is in custody in relation to cultivation matters.
12 You were educated to year 12. You married when you were very young and you worked with your husband in a ceramic business which ran for some ten to 15 years. In 2007 to 2008 there were a number of financial difficulties which affected your business very badly and your husband's serial infidelity was revealed as you discovered he had had numerous affairs and he in fact had other children. Your marriage broke up in those circumstances and you returned to live with your parents, taking your two younger children with you. Your oldest son came to Australia to study business management. He then married an Australian girl and has been here since 2009.
13 Following the dramatic breakdown of your marriage you came to visit your son in about April 2010, leaving your two younger children, a boy of 19 and a girl of nine, living with your parents. You came here and undertook work as a fruit picker. You earned cash in hand for that employment and you stated to the court that the money for which you have pleaded guilty, representing the suspected proceeds of crime, was in fact money that came from that employment, but that you have pleaded guilty on a practical basis so as to deal with all the matters before the court as expeditiously as possible. You did not know any of the people involved in the set-up of the crop in the house in which you lived with Mr Ha, and any instructions on what you were to do came to you through Mr Ha. You had no direct contact with the people who were in control.
14 You had met Ha at the farm where you were co-workers and in March 2012 you became co-tenants at the house in Derrimut. It appears that you too were lured by the possibility of earning extra money and you were sending money back to your parents in Vietnam to help with their care, the care of your invalid sister and your children. You also continued to work on the farm during the period that you were in this house.
15 Your job, you said in your record of interview, was to feed the plants, and you indicated in your record of interview that you did not know what the plants were or what their name was, but you were hopeful that you were going to receive an unspecified sum of money eventually. You were more frank, as in your report from the psychologist Jeffrey Cummins you indicated that you were aware that the crop was to produce money eventually and that you knew it was illegal.
16 Your involvement was over the period of a month, which is covered by the charges you face. You are a first time offender and you have now spent your first time in custody which is in excess of seven months today. It was submitted on your behalf that you undertook this enterprise due to naivety and ignorance and that you are now suffering from genuine remorse and shame. You indicated that any money that you were to receive was to go directly to assist your family. You are clearly a person of principle, as when you were interviewed by police immediately following the execution of the search warrant you indicated that you intended to accept your responsibility. Your intention was always to plead guilty and the only aim of the committal was to cross-examine the scientist who provided the certificate in this matter, and that cross-examination did not eventuate.
17 Submissions made on your behalf were that you have had a difficult time in custody and that you have been suffering migraines. You remain a diligent and hardworking person, and indeed you work in the prison factory and you have engaged yourself in undertaking courses in the English language and first aid. On your behalf your counsel argued that based on the evidence of the witness Scott Azzopardi in his statement and certificate, the yield from what was recovered from the premises at Jennifer Court was something in the area of 11 kilograms. However, on my understanding the yield is not the determining factor in this type of offence.
18 Counsel referred to case law and made submissions as to your position on the scale of sentencing where the maximum penalty as I have indicated is 25 years. He submitted that this is at the lower end of this type of offending and I accept that. Your counsel urged me to take into account the fact that you have spent over seven months in custody, that you pleaded guilty at the earliest opportunity, that you have expressed remorse, and he further submitted that your four decades of good character must earn you some credits when you come to face judgment for this offending. I accept all those matters.
19 I further accept that you played a limited role in this operation and that any time you spend in prison will be more burdensome for you than for other members of the prison population due in part to your isolation where you do not speak English and where you are aware that your nine-year old and 19-year old children are living with your parents and are all in need of financial assistance, although as with Mr Ha, these are matters that you should have anticipated when you embarked on this enterprise in a foreign country.
20 These matters are all attested to in the psychological report of Jeffrey Cummins which I referred to earlier and which was tendered as Exhibit 2 on the plea, and I take all the contents of that report into account. In relation to both of you, you have embarked on an enterprise to cultivate these plants for financial gain and the extent of the cultivation would appear to be part of an ongoing operation in that you have the larger plants almost ready for harvest, some a little behind them, and you have the seedlings which would appear to represent a replacement crop. I accept, however, that both of you are not principals in this enterprise. There is no evidence as to what you are entitled to receive for your participation, only that it was to be paid to you at the end of a successful cultivation.
21 In addition to those matters which are personal to you, I am also required to denounce your conduct on behalf of the community. The community will not tolerate people who come here as visitors and embark on the illegal cultivation of narcotic plants which form part of the drugs market in this country, and I denounce that conduct absolutely. I am also required to take into account the principle of general deterrence, that is that others who engage in similar conduct must understand that serious consequences will flow. They must understand that you cannot come here and engage in illegal activities without incurring a form of appropriate punishment.
22 I am further required to consider specific deterrence, that is that you yourselves be deterred from engaging in such behaviour in the future, and I am satisfied given your prior good records and the other responsibilities that you have in Vietnam that you would already be sufficiently deterred by the experience you have had through the justice system in this country and that you are most unlikely to engage in any such enterprise again.
23 I have also taken into account current sentencing practices and the fact that you will be deported as soon as your sentences are completed. Finally, I am required to impose a just sentence in all the circumstances and in doing so I balance against the seriousness of your offending the matters put in mitigation on your behalf. I have reached the conclusion, taking all those matters into account, that the only appropriate sentence which is conceded by counsel for each of you is a term of imprisonment, part of which must be served immediately.
24 Anh Ha, could you stand up for me, please.
25 On Charge 1 you are convicted and sentenced to two years imprisonment.
26 On Charge 2 you are convicted and sentenced to eight months imprisonment.
27 I order that two months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
28 Thi Tu Tran, if you can stand for me, please.
29 On Charge 1 you are convicted and sentenced to two years imprisonment.
30 On Charge 2 you are convicted and sentenced to eight months imprisonment.
31 I order that two months of that sentence is to be served cumulatively on the sentence imposed in Charge 1.
32 On the summary charge you are convicted and sentenced to three months imprisonment and that is to be served concurrently with the sentences already imposed. Take a seat, thank you.
33 That means for each of you that is a total effective sentence of two years and two months and I order that you each serve 11 months before being eligible for parole.
34 Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty I would have ordered that you serve two years and nine months with a minimum non-parole period of 15 months.
35 I will now ask for an updated estimation of pre-sentence detention.
36 MR BOSSO: It is 221 days as of yesterday, Your Honour.
37 HER HONOUR: Each?
38 MR BOSSO: Yes.
39 HER HONOUR: I declare that the 221 days of pre-sentence detention in relation to each of you be deemed time served, and I order that the records of the court reflect that matter. I further make the ancillary orders that I have been asked to make. I understand they are all made without opposition. I make an order pursuant to s.464ZF(2) of the Crimes Act, that is that each of you undergo a procedure for taking the scraping from the mouth. I do so because I am satisfied that the making of the order is justified based on the seriousness of the circumstances of the offending, the order is not opposed and the granting of the order is in the public interest. I also inform each of you that if at the time of a request for the taking of the sample you do not consent, an authorised member of the police force may use reasonable force to ensure that the forensic procedure be conducted.
40 The other ancillary orders I make are the forfeiture order, a disposal order, and a compensation order in relation to the repayment of the money stolen from the electricity company. I think that is sufficient to identify those orders. I have signed them all and they will be handed down.
41 Ms Tran and Mr Ha, those are the orders I am going to make. You will be released in approximately four months and then as I understand it you will be deported to Vietnam. Thank you. Thank you, Madam Interpreter.
42 COUNSEL: As Your Honour pleases.
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(See Crown Opening Attached.)
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