Director of Public Prosecutions v Phuong Tran
[2019] VCC 569
•29 April 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-00382
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHUONG TRAN |
---
| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 April 2019 |
| DATE OF SENTENCE: | 29 April 2019 |
| CASE MAY BE CITED AS: | DPP v Phuong Tran |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 569 |
REASONS FOR SENTENCE
---Subject: Criminal law - sentence
Catchwords: pleas of guilty to one charge of cultivation of a narcotic plant in a commercial quantity, one charge of theft and one charge of possessing a forearm as a prohibited person – crop was a business enterprise run by offender alone – mid-range offending – whether s.5(2H) of the Crimes Act applied – circumstances do not meet test of “substantial and compelling circumstances that are exceptional and rare” – Verdins principles apply only as to experience of imprisonment – mitigating circumstances – remorse and shame – high prospects of rehabilitation.
Legislation Cited: Sentencing Act 1991, ss 5(2H) and (2I), 10A, Firearms Act s3(1)(c)
Cases Cited:Verdins v R [2007] VSCA 102, Nguyen v R [2016] VSCA 198, DPP v Thanh Lu [2017] VCC 958, DPP v Hudgson [2016] VSCA 254, Ngoc Nguyen v R [2017] VSCA 286
Sentence: 5 years with non-parole period of 2 and a half years.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K Hamill | OPP |
| For the Accused | Ms C Randazzo SC with | Defteros Lawyers |
HER HONOUR:
1Phuong Tran, you have pleaded guilty to: one charge of cultivating a narcotic plant in a commercial quantity; one charge of theft; and one charge of being a prohibited person in possession of a firearm. I have determined that a prison sentence of five years with a minimum period of two and a half years to be served before you will be eligible for parole will be imposed. I shall explain my reasons.
The Offending
2The offending occurred in the following circumstances. You were renting the house at 23 Newton Street, Thomastown, where you grew a crop of cannabis. On 15 November 2017 when police attended with a warrant you opened the door and police found a hydronic set-up in the third bedroom of the house and in an external garage, the latter being secured with a number of padlocks. A total of 202 cannabis plants were located at the premises, weighing
22.62 kilograms. The threshold amount for a commercial quantity of cannabis is 25 kilograms or 100 plants, so this quantity was just over twice the threshold amount in terms of number and just under it in terms of weight.3In the house itself there were 92 seedlings in a box, 41 small plants in individual pots, 31 medium sized plants in individual pots and five large plants in individual pots. In the garage there were 33 large plants, each in individual pots. The 92 seedlings were generally in poor condition. Indeed, many, if not most of them, were dead, an observation discernible from the coloured photograph tendered as Exhibit 1.
4The lighting system had been set up with an electrical by-pass fitted to the electricity meter, with each of the 34 lights connected to a timing device and switchboard set for 12 hours of operation per day. Exhaust fans and water pumps were also connected to the hydroponic set-up and electricity bypass system. The stolen electricity was valued at $8273.53.
5Near the bedroom door, leaning against a wall, police found a bolt action rifle, a .223 Ruger M77, single barrel firearm fitted with a top mount scope. It was unregistered and you are a prohibited person not permitted to possess a firearm, because an intervention order was made against you on 27 November 2012 lasting for one year. The relevant legislation provides that you are a prohibited person who is not permitted to possess a firearm for five years after the expiry of that order.[1]
[1] Firearms Act s.3(1)(c) Definition of “prohibited person”
6You were arrested and interviewed and you made admissions as to cultivating the cannabis, preparing it and selling it. You said you had learnt how to grow it from a book. You had set up the hydroponic system and the electrical bypass system yourself and soon afterwards you planted a crop, hand watering and fertilising the plants yourself. You said the first crop died and the second one you sold for $6000 at the local pub. The third harvest had been stolen by robbers who did a run through of the house the previous week. You said you had chopped and put out approximately half a kilogram to dry and this had been stolen he previous Friday.
7You said you had spent the $6000 on rent and bills as you were struggling financially and that was the reason for cultivating cannabis. You said that after the robbery you only had 15 plants left as well as the seedlings which were dying and were no good. When the police put to you that they had found over 100 plants in addition to the seedlings you said that was impossible. The prosecution has described this claim by you as an example of evasive answering of the questions by the police in an effort to distance yourself and minimise your involvement.
8The defence sought to rebut this inference by your knowledge that the police having seized the crop, it was pointless to deny the quantity of plants and you were merely saying what you believed to be the case. You told the police that you had bought the gun to scare people for fear that the people who robbed you came back, as they told you they would. The gun was not loaded and you had no ammunition, nor did you intend to get any. You said you were most embarrassed about having been found growing cannabis, that it was a big mistake and that now your children would know.
9The offence of cultivating a commercial quantity of cannabis is very serious, as is clear from the maximum penalty of 25 years' imprisonment. In addition, it is a Category 2 offence as defined by s.3 of the Sentencing Act. Under s.52H of the Act a custodial order must be imposed unless the circumstances set out in paragraphs (a) to (e) of that section apply. The prosecution sentencing submission was that these circumstances do not apply and that only an immediate custodial sentence is appropriate in this case. I note that ten years is the maximum sentence for the other two charges.
Gravity of the offending
10You were the principal and only offender, having set up the cultivation yourself including, unusually, the electrical bypass. You attended to every aspect of the cultivation yourself, including the sale of the earlier crop, although of course you are not charged with trafficking. You went so far as to obtain a firearm to protect the crop following the robbery. The enterprise was a business in the sense that your motive was to make a profit; you had already sold a crop. In your interview with the police in answer to a question as to whether you had bought anything with the proceeds of the crop you sold, you said, "Not yet. Just spend", meaning you had put the money back into the enterprise.
11This involvement places your criminality at a substantially higher level than, for example, a crop sitter, in other words, someone employed to look after the crop. The prosecution has submitted that this represents mid-range seriousness, relying on the analyses of somewhat similar crops and attendant circumstances in cases of Nguyen v R[2] which was followed by Ngoc Nguyen v R[3]
[2] [2016] VSCA 198
[3] [2017] VSCA 286
12Ms Randazzo S.C., who appeared on your behalf, submitted that the circumstances in Nguyen were very different ,in that two properties were under cultivation in that case, a syndicate was involved, the period of offending was longer and it was a very sophisticated enterprise. The number of plants and their weight was greater than in this case. Similarly, in the case of Ngoc Nguyen, Ms Randazzo submitted that there were greater elements of sophistication and the enterprise was a syndicate. While there were fewer plants, the weight was much greater, five times what qualifies as a commercial quantity. Ms Randazzo submitted that, accordingly, the circumstances of this case were very different. She further submitted that the poor condition of almost half the plants and the combined weight being just under the weight for a commercial quantity made your case distinguishable from the other authorities under discussion. In addition, it was not a business in the sense of others being involved as a syndicate.
13My conclusion is that while the enterprise was indeed a business, its scope was somewhat limited as indicated by its reduced success, but your admissions as to the success of previous crops suggested otherwise. Accordingly, the gravity of your offending on this occasion was at the mid-range of seriousness.
Comparison of cases for sentencing purposes
14The sentence in the case of Thanh Lu by a judge of this court[4] post-dated the sentence of Nguyen but preceded the sentence of Ngoc Nguyen. The circumstances in Lu are very similar to this case and the prosecution relied on it for that reason. Mr Lu was sentenced to four years' imprisonment with a non-parole period of two years and eight months for a charge of cultivation and for theft of electricity.
[4] DPP v Thanh Lu [2017] VCC 958
15Ms Randazzo submitted that while there are some similarities the circumstances in this case should be weighed differently. She submitted that the duration of offending in that case was longer and the set-up was more sophisticated. Broadly speaking, there were half the number of plants than in this case but the weight was about double. In other words, the plants were much healthier.
16Additionally, in Lu the principles in Verdins did not apply, either as to the moderation of general deterrence or the possible greater burden of imprisonment, as Ms Randazzo submitted do apply in this case.
Discussion regarding application of s.5(2H)
17Before dealing with the Verdins principles I turn to consider the submissions dealing with s.5(2H) Ms Randazzo submitted that your offending does not warrant a sentence of imprisonment. In considering her submissions I have found it convenient to follow the order of her submissions made orally during a plea hearing and focus on s.5(2H)(e) first and then turn to paragraph (c) of that section.
18Ms Randazzo submitted that the meaning of the words, "substantial and compelling circumstances", that are exceptional and rare in s.5(2H)(e), should not be interpreted so as to close the door on avoiding a prison sentence. She referred to a possible interpretation of the same wording in s.10A(2)(e) in the Second Reading Speech as providing for such exceptions. She also referred to the qualification provided in s.5(2I), that in determining whether there are substantial and compelling circumstances under s.(2H)(e), the court must have regard to whether the circumstances of the case would justify a departure from such a sentence.
19Ms Randazzo submitted that the crop you cultivated should be regarded as very much less successful than in the other cases under discussion and it can be inferred from the circumstances that your intention was not to cultivate a crop of commercial size. She submitted that your intention in cultivating the plants is evident from your answers in the record of interview, that you did not intend to cultivate more than 100 plants and were genuinely unaware of how many there were in the crop. This, she submitted, could be said to constitute “substantial and compelling circumstances that are exceptional and rare”, so that a sentence of imprisonment could be avoided.
20I turn now to Ms Randazzo submission as to the application of s.5(2H)(c). That paragraph allows for a prison sentence to be avoided if:
"(i) . . .at the time of the commission of the offence [the offender] had impaired mental functioning that is causally linked to the offence and substantially reduces the offender's culpability; or
(ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden of risks or imprisonment".
21Ms Randazzo's submission in this regard was two-pronged in the sense that impaired mental functioning might relate to this provision to avoid imprisonment, as well as to the application of the Verdins principles, to reduce the level of your culpability.
22A clinical psychologist, Ms Alison Mynard, assessed you in August last year and diagnosed an Adjustment Disorder with mixed anxiety and depression. She considered that this originated from your childhood when you were severely abused by your father and also later when as a young man you were forcibly removed by boat from your home with your family in Vietnam, eventually spending three years in a refugee camp in Thailand before coming to Australia.
23You are now aged 54 and you were sponsored to come to Australia in 1986 when you were 22. You worked and sent money back to Vietnam to enable your mother and extended family to buy a house. In your 30s you married and you and your wife raised three children, all in their 20s now. The marriage broke down about seven years ago. In your late 30s you began a cabinet making business which was successful but unfortunately you suffered a very bad accident in 2005, resulting in your thumb and little finger being cut off, and your carpentry business deteriorated. Your thumb was reattached but your little finger had to be amputated as it was so severely damaged. A report from a surgeon who assessed you recently stated that as a result your right arm is weaker than your less dominant left arm and this interferes with your work ability, causing you to worry about your future. In fact there is no function in your reattached thumb.
24In Ms Mynard's opinion these significant stressors in your life have led to the mental health condition she has diagnosed. In her supplementary report dated 30 November 2018 Ms Mynard stated:
"…his intention to grow marijuana was clouded with his depressive and anxiety symptoms. For Mr Tran, he was operating from a viewpoint of being highly agitated, nervousness and panic. He felt helpless, hopeless about his future and lost without his family. Whilst his racing thoughts and anxiety were constant, he had great difficulty making clear and reasoned decisions. It is the writer's opinion that he became more impulsive than he had in the past, making decisions based on poor judgment"[5].
[5] Supplementary report of Alison Mynard dated 13/11/18 p2
25Ms Mynard measured your anxiety and depression as being in the severe range of these clusters of symptoms but this aspect of the diagnosis does not distinguish between the severity of the disorder before the offending and at the time of testing, while awaiting the conclusion of this case in court. Nonetheless Ms Mynard stated:
"…since his breakup of his long term relationship and the loss of his finger, Mr Tran appears to have really struggled to make good decisions and been more impulsive, driven by his anxious and depressed (sic) growing marijuana in a misguided and unsuccessful venture"[6].
[6] Loc cit
26The prosecution response to these submissions was that it has not been established on the balance of probabilities that paragraph (c) and (e) of s.5(2H) apply. On the contrary, Ms Hammill submitted Charge 1 ought to be considered mid-range offending with high moral culpability and you should be sentenced accordingly as being a principal in a sophisticated enterprise, such that a firearm was obtained to protect the crop and you performed all aspects of the cultivation yourself. She submitted that you clearly knew that what you were doing was wrong, and this can be confirmed from the contents of your record of interview.
27Ms Hammill agreed that there is no authority dealing with the application of s.5H in interpreting the meaning of the words, "substantial and compelling", but in regard to that meaning and in regard to reliance on impaired mental functioning, she submitted that the approach should be the same as applies to s.10A of the Act. The court in DPP v Hudgson[7] noted that the offender bore the onus of proof and that the evidence must be clear and convincing that a medical condition[8] existing at the time of the offending amounted to a special reason under s.10A.
[7] [2016] VSCA 254
[8] S.4 of the mental Health Act 2014 defines mental illness as “a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.”
28It is noted in the Second Reading Speech that the special reason provisions of the legislation provides the courts with scope in limited circumstances to consider factors that either substantially reduce the offender's moral culpability or provide a strong public policy reason for imposing a lesser sentence than the statutory minimum[9]. It was stated that the special reasons provisions in the bill were limited and specific and not intended to be interpreted broadly, as occurred with the exceptional circumstances test. The bill also recognised that some offenders suffer from impaired mental functioning, such as they should not be subject to the statutory sentence.
[9]Second Reading Speech Hansard 13 Dec 2012 p5548 ff
29However, according to the Second Reading Speech, impaired mental functioning is itself not enough to exempt the offender from being liable to the statutory sentence. Special reasons relating to impaired mental functioning were not intended to allow offenders to avoid a statutory minimum sentence through excuses such as claiming that they were depressed at the time of the offence. Rather, the Bill required the offender to prove on the balance of probabilities that at the time of the offence he or she had impaired mental functioning that was causally linked to the offending and substantially reduced his or her culpability.
30Alternatively, offenders must prove that they have a mental impairment at the time of sentencing that would result in them being subject to substantially more than the ordinary burden of risks of imprisonment. These principles are drawn from the common law and mirror the exiting considerations that courts must take into account when dealing with offenders who have a mental illness. Ms Hammill argued that the test set out in Hudgson is not met in this case. The court said in that case that:
"…the burden imposed upon an offender who sought to escape the operation of s.10 should be a heavy one and not capable of being lightly discharged"[10].
[10] DPP v Hudgson [2016] VSCA 254 at [111]
Further on the court said that the evidence must be clear and convincing[11]
[11] Ibid [114]
31. Applying this test I am not satisfied that your condition of depression and anxiety, as diagnosed and described by Ms Mynard, amounts to mentally impaired functioning that meets the requirements of s.5(2H)(c)(i) or (ii) or the requirements of paragraph (e). My conclusion is that there are not substantial and compelling circumstances that are exceptional and rare in this case that would justify the avoidance of a prison sentence.
32In this regard I have also considered whether s.5(2I) applies. In determining that there are not substantial and compelling circumstances, I have had regard to Ms Randazzo's submission as to the size of the crop. That is whether the failure of the 92 seedlings meant that on one view the size of the crop was 110 rather than 202 plans, and so was just over the commercial quantity. My conclusion is that the submission does not succeed, that the state of the plants does diminish your culpability somewhat because of the reduced weight of the crop overall, which is a matter I can take into account.
33Similarly, I do not accept that your answers in the interview indicate that you had not intended to grow a commercial size crop. You did say that you thought there were only 15 plants apart from the 92 dead or dying seedlings, but that is still a total over the commercial quantity threshold and, clearly, you did intend to grow them. In any event, it is implausible that you did not intend to grow the entire crop of 202 plants which you were nurturing yourself.
Verdins principles
34The submission as to whether the principles in the case of Verdins apply is also to be determined. The test in establishing a causal link between your depression and anxiety and the cultivation of the crop differs from the presence or assessment of a mental health condition for the purposes of satisfying s.5H(2).
35
Ms Hammill submitted that the symptom of impulsivity as part of your psychological state could not be said to account for your poor judgment in growing the crop, given that this took place over a three month period.
Ms Randazzo relied upon Ms Mynard's opinion as to your clouded judgment operating throughout the period during which she said you had difficulty making clear and reasoned decisions and indirectly prevented you from reflecting on your impulsivity in deciding to grow the crop. I am not satisfied that this establishes a nexus between your condition and the offence. It does no more than provide an explanation for your conduct in the broader circumstances of your marriage breakdown and your injuries some years ago which left you with difficulties earning a living. All these factors in combination help explain why you turned to an illegal enterprise but they do not reduce your moral culpability.
36As to whether prison will be more burdensome by reason of your anxiety and depression, Ms Mynard expressed the opinion that you are at risk of deteriorating if you are incarcerated, given that you had a very difficult time when you initially spent time in custody. In my view, this should be taken into account in determining the length of your sentence.
37The maximum sentence for cultivation of a commercial crop of a narcotic plant is, as I said earlier, 25 years' imprisonment, and for theft and for being a prohibited person in possession of a firearm it is ten years in each case.
Mitigating circumstances
38Having determined that imprisonment is the only appropriate sentence which cannot be avoided under s.5(2H) of the Act, I turn to consider several mitigating circumstances.
39You have pleaded guilty and so have avoided the need for the expense and the inconvenience of a trial. The plea of guilty in respect of charges 2 and 3 was an early plea but the plea in relation to Charge 1 was delayed, albeit entered at the first possible opportunity after negotiations concerning the 92 seedlings. You expressed your remorse and insight not only through your plea but also by taking responsibility for your criminal activity and cooperating by telling the police of the previous crops and the longer duration of the offending period. I accept that your stated belief that the crop was less than 100 plants was your genuine belief and you were not lying to the police, even though your intention was actually to grow the greater number. If you had lied about your belief that would count against any remorse you may have indicated.
40You have no previous convictions, although you appeared in court on a charge of intentionally destroying property in 2012 and you were placed on an adjourned undertaking to be of good behaviour. This occurred in the context of an argument between you and your then wife while you were still living together. During the argument you slammed your hand on a table and some glasses were knocked onto the floor and broke. A piece of glass cut your wife's leg, causing a small laceration whereupon she called the police. The police took out a one year intervention order, against her wishes, which expired in November 2013.
41Hence with no previous convictions your good character is not in issue. You have no problems with any kind of substance abuse. Five people who have been friends and colleagues have provided references for you, describing your good character, your hard work in a variety of different areas, your generosity of spirit and devotion to your children. Two friends and your ex-wife came to court to support you.
42While general deterrence must be the dominant sentencing focus, the need for specific deterrence is very much reduced by these matters. It is very unlikely you will offend in this way again, and Ms Mynard concluded that that risk is low.
43Your prospects for rehabilitation are high. You remain on good terms with your ex-wife and you have a close relationship with your children. Despite your lack of formal education you acquired many skills over your working life, although they are restricted now by your injury. You are very saddened and ashamed by your offending and you place a high value on the respect of others, which you now fear that you have lost.
44I have had regard to the prosecution's submission that mid-range seriousness of the offending, if that is established, should elevate the offence and result in a higher sentence, consistent with the decision in Nguyen v R[12]. In that case the Court of Appeal held that a sentence of three and a half years with a non-parole period of two and half years was not manifestly excessive. I have already indicated that the sentence imposed in the case of Thanh Lu was, although different from this case, closer in similarity than the other cases referred to in the plea hearing.
[12] [2016] VSCA 198
45Taking all these matters into account I determine an appropriate sentence is as follows. I will ask you to stand now, please? Thank you, Mr Tran.
For Charge 1, cultivation, four years' imprisonment.
For each of charges 2 and 3, theft and possession of a firearm by a prohibited person, two years' imprisonment.
The sentence for Charge 1 will be the base sentence and six months of each of the sentences for charges 2 and 3 will be served in cumulation upon the base sentence. That results in a total effective sentence of five years.
I order that you serve a minimum of two years and six months before being eligible for parole.
If you had pleaded not guilty to these charges I would have sentenced you to seven years' imprisonment with a non-parole period of three years and six months.
46The prosecution seeks an order for a forensic sample of saliva to be obtained under s.464ZF of the Crimes Act and through your counsel you have consented to that. I must advise you that the police have the power to use reasonable force to obtain the sample but I trust that will not be necessary.
47The prosecution also seeks orders for forfeiture and disposal in relation to the firearm and the cannabis, and I make those orders, which are not opposed by you.
48You have spent 68 days in pre-sentence detention and I declare that time to be reckoned as already served and I shall cause that to be noted on the court record.
49First of all, Ms Gillis, are there any other matters? Any things I have neglected?
50MS GILLIS: No, Your Honour.
51HER HONOUR: Mr Cunningham?
52MR CUNNINGHAM: No, Your Honour.
53HER HONOUR: Thank you. Officers, thank you, you may take Mr Tran.
- - -
5
0