Director of Public Prosecutions v Phan
[2018] VCC 1860
•13 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL JURISDICTION
CR 17-01158
CR 17-01159
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TU PHAN HUNG TRAN |
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| JUDGE: | HIS HONOUR JUDGE WRAIGHT |
| WHERE HELD: | Shepparton |
| DATE OF HEARING: | 13 November 2018 |
| DATE OF SENTENCE: | 13 November 2018 |
| CASE MAY BE CITED AS: | DPP v Phan & Anor |
| MEDIUM NEUTRAL CITATION: | [2018] VCC |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – guilty plea – cultivation of narcotic plants – cannabis L – cultivation of a commercial quantity of cannabis – sophisticated hydroponic operation – offender’s role at the lower end – offender involved in the management of the 3 properties used for cultivation – deportation of the offender post sentence is a relevant consideration.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), Sentencing Act 1991 (Vic)
Cases Cited: Guden v The Queen [2010] VSCA 196
Sentence:Total effective sentence of 3 years and 6 months imprisonment, non-parole period of 2 years and 3 months imprisonment (Tran). Total effective sentence of 3 years and 3 months imprisonment, non-parole period of 2 years imprisonment (Phan).
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D O'Doherty | Office of Public Prosecutions |
| For Accused Phan | Ms K Paull | Tony Hannebery Lawyers |
| For Accused Tran | Mr C Hooper | Richard Revill Lawyers |
HIS HONOUR:
Introduction
Hung Van Tran and Tu Truong Phan, you have each pleaded guilty to one charge of cultivation of narcotic plants, namely cannabis L commercial quantity contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 which carries a maximum penalty of 25 years imprisonment.
You both have no prior criminal history.
Circumstances of the offending
A detailed prosecution opening was tendered on the plea and will be attached to these sentencing reasons, however the circumstances may be briefly summarised as follows:
On 6 February 2015, 13 Pell Crescent, Mooroopna was purchased by Xuan Thi Tran for $385,000.
In November 2014, 31 Kialla Lakes Drive, Kialla was purchased by Anh Tuan Nguyen for $369,000.
In October 2014, 23 Kestrel Drive, Shepparton was purchased by Van Lum Huynh for $369,000.
In relation to the Mooroopna property, on 13 July 2016 as a result of information obtained by the police a search warrant was executed at that address. A hydroponic system was operating to grow cannabis L plants in several rooms of the house. An electrical bypass was also located. The cannabis was seized from the house and analysed. In total 193 cannabis L plants with a weight in excess of 75 kilograms was seized.
In relation to the Kialla property, following surveillance of you Mr Tran and Mr De Van Nguyen together with other information obtained by the police, a search warrant was executed at that property on 9 November 2016.
A hydroponic system was operating at the house to grow cannabis L plants in several rooms. An electrical bypass was located. The cannabis seized from the property amounted to 302 cannabis L plants with a weight in excess of 90 kilograms.
In relation to the Shepparton property, following surveillance of both of you together with Mr Nguyen, police attended at the Shepparton property on 6 December 2016. A hydroponic system was operating and cannabis L plants were found in several rooms of the house. An electrical bypass was also located at the property.
It appeared that the plants in this instance had not been tended to in some time. The cannabis seized from the property amounted to 351 cannabis L plants with a weight in excess of 30 kilograms.
On 10 November 2016, police attended at Unit 2, 50 Sutherland Avenue, Shepparton to execute a search warrant. You were both arrested at the premises. Police enquiries revealed that both of you were unlawfully in Australia.
Also on 10 November 2016, you Mr Tran were interviewed by the police. You stated that you had never been to the Mooroopna property, that you helped a guy fixing two or three houses in the area, that you had been to the Shepparton property and that while you had been to a few houses to repair them you were not involved in cultivation.
On 10 and 11 November, you Mr Phan were interviewed by the police. You stated that you went to the Mooroopna property a few times to help move things around and mow the lawn. You stated that they paid your food and rent and that you had done the same at the Kialla Lakes property. You said that you moved rubbish, tools and equipment including light globes and transformers. You said you had been helping for 12 months and that you would sleep at the Mooroopna property. You made admissions to your knowledge of the plants at the Mooroopna property.
Following the search warrants on the three properties various personal items were later analysed for DNA which has been summarised in detail in the prosecution opening. In short personal items that were taken from the three properties detected DNA relating to each of you.
Objective seriousness of the offence
By its very nature the offence of cultivating a commercial quantity of cannabis is a serious offence. The offence carries a maximum penalty of 25 years imprisonment. In this instance the total number of plants over the three properties was 846, which clearly exceeds the commercial quantity which is 100 plants. The total weight of cannabis found was in excess of 195 kilograms, 25 kilograms being a commercial quantity.
When an assessment is undertaken in relation to the combination of the various items and cannabis found at the three properties, it is clear that this was a sophisticated hydroponic cannabis operation. In each case an established hydroponic system was discovered together with an electrical bypass in order to avoid detection.
As to your respective roles it appears that each of you played a role in maintaining the properties that were used to grow the cannabis. In relation to you Mr Tran, it was submitted by Mr Hooper on your behalf that you performed the role of a handyman in the three properties.
As to you Mr Phan, you played a similar role and I accept that your role is as you described in your record of interview, that you would move items around including rubbish, tools and equipment, lights and transformers.
It is self-evident that an operation like this, where homes are converted in order to establish hydroponic systems to grow cannabis, involve a number of people. It is also clear that Mr De Van Nguyen played a significant role in these offences. Mr Nguyen was sentenced by His Honour Judge Gamble on 24 October 2018 in relation to a number of cultivation charges including two charges of cultivation in not less than a commercial quantity.
Except for one property, the Kialla property, Mr Nguyen's charges related to properties other than the ones that are relevant here. He too played a role of managing properties including organising the disposal of waste cannabis at the various locations. I have read those sentencing remarks and taken them into account however I note that they relate to offending in relation to a large number of properties.
I accept that the role that each of you played was that of a labourer or handyman in relation to management of the properties. I accept that there is no evidence directly linking you to the establishment of the cannabis rooms or indeed the nurturing of any of the plants involved in the houses. That said I accept the submission put by Mr O'Doherty who appeared on behalf of the Director of Public Prosecutions, that there was significant activity around all the properties that involved both of you.
In my view based on the evidence I am unable to distinguish your roles. You each had a similar function in maintaining the properties. I accept the submission put by Mr Hooper that the role of Mr Tran and likewise Mr Phan can be assessed as being at the lower end, but not at the lowest.
Personal circumstances
First turning to you Mr Tran. You are now aged 41 years. You came to Australia in 2011 on a temporary protection visa with your eldest son, who as it turns out is a co-accused in these proceedings. You made an application for a refugee status but were refused. You were given a bridging visa to leave the country however that lapsed and you became an unlawful citizen in 2014.
You worked in the construction industry in Vietnam before coming to Australia and have sought work as a farm hand in a general domestic assistance capacity since coming to Melbourne from Adelaide in 2016. You maintain weekly contact with your wife in Vietnam and I was also told that you suffer from and have been receiving medication for Hepatitis B since being diagnosed in early 1993.
In relation to your son, the prosecution opening referred to him his name being Tuang Ann Tran. He was sentenced in the Children's Court in relation to cultivating, trafficking and theft of electricity in relation to the three properties that you are also involved in. I was told that your son was 16 years of age when he became involved in these offences.
While I do not treat these facts in any way as aggravating your offending, it is disturbing that your own son was involved in the same offences that you are involved in. However I am told that as a result of his offending and since his release from the Youth Justice Centre he has been deported back to Vietnam. Whatever his role in the offending or the connection to you, it is a matter of great regret that he became involved and as a result has now been separated from you.
Turning to you Mr Phan. At the time of these offences you were only 19 years old. You are now 21. You wrote a letter to the court which was interpreted and tendered on the plea. It provides detail as to your history as follows.
You were born and raised in Nghi Van village, a poor village in the highlands in Vietnam where people mainly survive on farming. You were an orphan and raised by your grandparents who looked after you when you were young. At the age of seven you were able to go to school however you were only there for a year because of your grandmother being unwell. You were asked to assist with the farming and as a result left school and stayed home to tend to the animals on the farm. However your grandparents were good to you and as you were not able to go to school your grandfather bought you books and taught you at home when he had time.
As time went on your grandparents became concerned for you as they were getting older and unable to continue caring for you. As such, your grandfather arranged for your transport to Australia and in April 2013 you arrived in Darwin after boarding a boat from Vietnam. You were taken to a refugee camp and stayed there for some five months until you had approval to live in the community and settled in South Australia.
As part of the type of visa that you were on you were required to remain in South Australia and attend school however as you noticed many of your friends being deported back to Vietnam you decided to leave the school. You had met a friend in Adelaide who drove you to Melbourne and introduced you to a friend in Springvale who could look after you.
You became acquainted with a man that you refer to as Calvin who took you to Shepparton and it would seem connected you with the people that were involved in these offences.
Sentencing considerations
As already noted cultivation of a commercial quantity of a narcotic plant is a serious offence. In these cases general deterrence is a primary sentencing consideration together with just punishment and denunciation of your conduct. However in all the circumstances specific deterrence does not in my view play a prominent role.
First, in relation to both of you, I take into account your pleas of guilty. I accept that there was delay in obtaining the DNA evidence and thus in each case you were not seized of all the evidence before an informed decision could be made. In the circumstances I accept the pleas of guilty have been made at an early stage which has of course saved the community the cost and burden of a trial and as such it has facilitated the course of justice.
Also in relation to both of you, I accept that as a result of the delay in obtaining the DNA evidence there has been a consequential delay in bringing your matters to a conclusion. I therefore take into account the principle of delay particularly where as non-Australian citizens your status was uncertain while awaiting the conclusion of this matter.
It would appear that as a result of the sentence I impose you will most likely be deported at some point in the future. The prospect of your deportation is a relevant consideration in the sentencing process.
As was noted in Guden v The Queen:
Like so many other factors personal to an offender which conventionally fall for consideration, the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release.
It follows that, subject always to the state of the evidence before the sentencing court, the prospect of deportation of the offender is a proper matter for consideration in determining an appropriate sentence.
Specifically in relation to you Mr Phan is your age. At 21 you are a young man. You come before the courts with no prior history and it would seem inevitable that you will be deported to Vietnam at some point. Given the history in relation to your family, you face many uncertainties upon your return.
Also because you are a young man with no prior convictions, your prospects of rehabilitation must be assessed as very good. I also take into account the matters outlined in your letter to the court where you demonstrate a genuine remorse and insight into why you became involved in this offending.
As to you Mr Tran, you are a mature aged man and as noted it appears that you were involved in this offending together with your son. Because of his own offending your son has been deported to Vietnam and it is inevitable that you also at some point will be deported.
That said you come before the court with no prior convictions and in all the circumstances I assess your prospects of rehabilitation as very good.
Finally, I note that s 5(2)(h) of the Sentencing Act 1991 applies in this instance as charge 1 is a category 2 offence and therefore the imposition of a sentence of imprisonment is mandatory. So much was conceded by your counsel.
Sentence
Mr Tran, please stand.
Hung Van Tran, on charge 1, cultivating a narcotic plant in not less than a commercial quantity, you are convicted and sentenced to 3 years and 6 months imprisonment. I direct that you serve 2 years and 3 months imprisonment before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 733 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 4 years and 6 months with a non-parole period of 3 years.
Mr Phan, please stand.
Tu Truong Phan, on Charge 1, cultivating a narcotic plant in not less than a commercial quantity, you are convicted and sentenced to 3 years and 3 months imprisonment.
I direct that you serve a period of 2 years imprisonment before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 733 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 4 years and 3 months with a non-parole period of 2 years and 9 months.
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