Director of Public Prosecutions v Thi Hong Tran
[2014] VCC 1992
•28 November 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-01870
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THI HONG TRAN |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 November 2014 | |
DATE OF SENTENCE: | 28 November 2014 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2014] VCC 1992 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Kapitaniak for the plea Mr L. Crosbie for the sentence | OPP |
| For the Accused | Ms C. Woodward | VLA |
HER HONOUR:
1 Thi Hong Tran, you have pleaded guilty to a charge of cultivating a commercial quantity of cannabis. This offence has a maximum penalty of 25 years’ imprisonment. This is the second highest maximum in the State of Victoria, with only a life sentence higher on the scale. This shows the seriousness with which the law makers of this State treat the offence of cultivation of a narcotic plant in not less than a commercial quantity.
2 I proceed to sentence you on the basis of the summary read out in court by the prosecutor.[1]
[1] Exhibit A
3 Put briefly, you were in financial stress in early 2013, and when you were offered $2000 by an associate of a friend of yours to water cannabis plants, you agreed to do so.
4 You became what is often called a ‘crop-sitter’. You lived in one room of a large house in Cranbourne, the rest of which was devoted to a sophisticated hydroponic set up involving industrial lights and a watering system, with the electricity illegally bypassed to run all the equipment. You were given a precise formula by which to water and feed the plants.
5 There were 213 cannabis plants varying in size from seedlings to 58 mature plants, weighing a total of 53.83 kg. This is more than twice the amount required to reach a commercial quantity of cannabis[2], whether that is considered by weight or number of plants.
[2] 100 plants or 25kg – Schedule 11, Drugs, Poisons and Controlled substances Act
6 I sentence you on the basis that you were only there for a short period of weeks, and had nothing to do with the setup or illegal electrical bypass. I accept that you did not receive any of the promised payment, which was to be paid to you after the harvest.
7 I also accept your explanation for becoming involved. You arrived in Australia from Vietnam in late 2012 on a student visa, and immediately commenced English language courses which were necessary for you to complete before you could enter tertiary education here, which was your goal. You had been receiving some money to help with your school fees from your parents who run a small business in Vietnam, but in early 2013, this support was reduced, and you were unable to pay your fees. Apparently you asked friends to assist you with money, without success.
8 It seems however, that word got back to the sort of people who prey on vulnerable international students that there was a likely target to do their bidding in order to have access to quick money. I was told by your counsel that it was through an associate of a friend that you were approached. Despite this connection, or perhaps because of it, you were unable to give any information to the police about the man who approached you other than the name he gave you, ‘Teo’, and you stated in your interview that you met him three times.
9 On the day of your arrest, 21 May 2013, a man and a woman were seen leaving the house, but you exercised your right not to answer the question police later asked you as to who they were. It is a great pity that this man and woman were not arrested by the police when they were seen at the premises. All too often, this court is required to sentence a person with minimal involvement while those who are higher up in the cultivation business remain free to start a crop in another house with another crop-sitter, while keeping themselves away from detection. Arresting this couple may have provided information to enable those others to be punished for their crimes, including the couple if they were involved.
10 While I accept that you were in a vulnerable position when you chose to commit this criminal offence, there are two things I say about your choice. The first is that even though your tasks in the house seemed very minor, they were an important part of the cultivation. Without being looked after and watered, the crop would not be cultivated and the commercial goal would not be achieved. You were therefore playing a vital part in the cultivation.
11 The second thing is that it seems you did have a choice. Your financial situation has not improved much from early 2013, but you have been working two jobs to pay for your continuing education, since you were released on bail after your arrest. There is nothing before me to indicate that choice was not available to you in early 2013. You must have understood that in breaking the law, you were running the risk of being caught and being brought to court.
12 There are a number of factors I take into account in your favour in deciding the appropriate sentence.
13 The first is the fact that you have pleaded guilty. Because of your plea of guilty, the community has been spared the time and cost of a trial. As a result, the sentence I impose will be less than it would have been had you been found guilty after a trial.
14 Next, I take into account that you indicated your intention to plead guilty at an early stage of this process. I also accept that your plea of guilty is a demonstration of your remorse in committing this offence, and a further demonstration of your remorse is found in your letter to the court[3]. Also, when you were arrested, you admitted your part in the crime in your interview with police.
[3] Exhibit 4
15 I have been told something of your background and personal circumstances, which I also take into account in deciding the appropriate sentence. You are now aged 25 years and you were aged 24 at the time of the offending. You were born and grew up in a province in middle Vietnam, as the eldest of 5 children. Your family are of Catholic faith. You and your next brother were sent to Hue, 200 km away, to live in a convent and study at the high school there, with a view to gaining entry to Hue University. You did so, and were successful in graduating with a Bachelor degree in Tourism in August 2012. You immediately applied for and received a student visa, and arrived in Australia in November that year, beginning your English courses shortly after your arrival. Your plan was to undertake a Master degree in Economics, and either return with your qualifications to Vietnam with enhanced career prospects, or possibly obtain residency and employment in Australia.
16 Remarkably, you did not falter in your pursuit of higher education after your arrest. You were released into the CISP bail program after 16 days in custody, and after receiving support through that program[4], you obtained stable accommodation, and have been continually employed ever since in casual jobs including cleaning, waiting on tables, and more recently, babysitting for a single mother[5]. This stability of residence and income enabled you to firstly, complete your English studies, and then, to enrol in a Masters degree and pay the school fees from legitimately earned income. You changed from your intended course of Economics to Human Resource Management. You have completed your first year, with successful results in the first semester, and you are waiting for the results of second semester due out next month[6].
[4] Exhibit 6 – Letter from the manager of CISP 11 September 2013
[5] A reference from her is contained in Exhibit 5 – Bundle of character references
[6] Exhibit 2 – Certificates of completion of courses
17 The fact that you have managed to get back on track while facing a sentence for a serious offence is, in my view, quite exceptional. It shows a determination to make amends for your crime, and also a strength of purpose.
18 You have not achieved this alone. You have received excellent support from Mr Stephen Manteit, a student counsellor at La Trobe University where you are studying, from friends with whom you share a house, from one of your employers, and from your brother, who has recently arrived in Australia to support you. I note that that this is the first personal contact with a family member in two years, since you left home. Many of these people were in court.
19 I also received a number of references from these people who support you[7], and Mr Manteit also gave evidence, indicating that he was impressed by what he described as your deep courage and faith which led him to believe that you would never repeat your mistake. He also referred to how distressing you found it to be held in custody, and that it brought home to you how serious the offence was, also that you are deeply remorseful, and regret the shame it has brought on your family, and the potential consequences for you and your goals.
[7] Exhibit 5 – Bundle of character references
20 Apart from meeting regularly with Mr Manteit, you had a number of sessions with a psychologist at the university to whom he referred you, because you were struggling to deal with the anxiety and depression associated with this court process.[8] You also met with a priest through attendance in his congregation, and he has provided spiritual support, and kept in contact with you as he moved to other parishes and missions[9].
[8] Exhibit 7 – Letter from Maria Pavlou 13 May 2014
[9] A letter from him is included in Exhibit 5.
21 You have never been in trouble with police before, and you have not been in trouble since this offence. Taking your background, and your efforts since your release from custody into account, I am satisfied that your prospects of rehabilitation are excellent, and that you are extremely unlikely to offend again in any way, but certainly not by being involved again in cultivation of a narcotic plant. As a result, my sentence today does not need to have as one of its purposes a need to deter you from re-offending. That purpose has already been achieved.
22 It is 18 months since the offence, which is unfortunately not an unusual delay for a case to be finalised due to the workload of this court. However, the delay was not of your making, and I cannot ignore what you have done with your life in that period of delay.
23 However, in deciding the most appropriate sentence, I must consider not just the factors personal to you, but also the factors concerning the offence. As you are now well aware, it is a serious offence, and the courts have said that general deterrence is at the forefront of sentencing considerations. That means, that by my sentence of you, I must seek to deter others from committing such an offence, which is becoming more and more common, with crop-sitters being placed into houses in suburbs all over Melbourne. The courts have also said that in cases like this, there is “less room to give weight to considerations of youth and [good character and background] than would otherwise be the case”, and that “an immediate term of imprisonment would ordinarily be regarded as virtually unavoidable”[10].
[10] Tuan Doan v R [2010] VSCA 250 at [17]
24 Your counsel submitted that despite these statements from the courts, you were entitled to a chance, and that I should find that there is an alternative to a term of imprisonment, and place you on a Community Correction Order. She submitted that if I found that there is no alternative to a sentence of imprisonment, that it should be wholly suspended.
25 The prosecutor conceded that if a term of imprisonment was imposed, I have the option to suspend it, as the abolition of suspended sentences does not apply to this case, but submitted that your crime calls for a term of imprisonment to be actually served.
26 I ordered an assessment of you for a Community Correction Order as part of my consideration of whether a term of imprisonment was the only option in this case. I did so, mindful of Ms Woodward’s submission that with recent changes to the legislative scheme for Community Correction Orders, the law now regards that option as available for use “for a wide range of offending behaviours while having regard to and addressing the circumstances of the offender”[11], including where a suspended sentence may be imposed, or have been imposed before the ability to do so was abolished.
[11] Section 36 Sentencing Act (as amended)
27 You were assessed as being suitable for a Community Correction Order.
28 I have had regard to current sentencing practices as revealed in other cases including those supplied to me by counsel, and in the Sentencing Snapshots, while bearing in mind that each case has its own features to take into account.
29 I have carefully weighed up all the relevant considerations, and I have decided that the only appropriate sentence is a term of imprisonment. That sends a clear message that the court denounces your behaviour and seeks to provide to the community the protection it deserves. However, I have decided that there are special circumstances in your case, and as a result, I will wholly suspend the term of imprisonment that I am about to impose.
30 I am satisfied that such a sentence adequately manifests the denunciation by the court of your conduct, provides adequate deterrence, and adequately reflects the gravity of the offence. I think there is very little risk of you committing an offence punishable by imprisonment during the operational period of the sentence.
31 The purpose of imposing a sentence of imprisonment is to indicate how serious this offence is. The purpose of suspending it is to allow you to demonstrate your commitment to your rehabilitation.
32 During the period of suspension which I will announce in a moment, you must not commit another offence punishable by imprisonment (whether in or out of Victoria). If you do, you will be in breach of the terms of the suspended sentence and should expect to be brought back before the court. If that happens, not only will you be dealt with for breaching the terms of the suspended sentence, but you will also be ordered to serve the sentence that was suspended. Do you understand, Ms Tran, what will happen if you commit an offence during the period your prison sentence is suspended?
33 PRISONER: Yes, Your Honour.
34 HER HONOUR: The sentence of the court is as follows:
35 You are convicted and sentenced to 18 months’ imprisonment. The whole of that sentence is suspended for two years. So the two years is the period of time in which you must not commit another offence or you will serve 18 months’ imprisonment. Do you understand?
36 PRISONER: Yes.
37 HER HONOUR: If you had not pleaded guilty but had been found guilty after a trial, the sentence I would have imposed is 2 years 6 months’ imprisonment, with 18 months suspended.
38 I have signed the orders disposing of the cannabis plants and other items associated with the cultivation, to which you have consented.
39 In the event that it becomes necessary to re-visit this sentence, I note that you have served 16 days in pre-sentence detention, which I have also taken into account in deciding the appropriate sentence.
40 Yes, you can be released from the dock.
41 Yes, thank you very much, Madam Interpreter, for your assistance and Ms Tran, do you have any questions?
42 PRISONER: I just want to say thank you (indistinct).
43 HER HONOUR: Very well, I do hope that this has been the lesson that I think it has been and that we will not see you in front of a court again.
44 PRISONER: Thank you.
45 HER HONOUR: And once again I thank counsel for their assistance and those who are here to support Ms Tran. Yes, thank you.
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