Director of Public Prosecutions v Tong

[2021] VCC 362

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01247 &

CR-20-00239

DIRECTOR OF PUBLIC PROSECUTIONS

v

THI HONG THAM TONG

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2021
DATE OF SENTENCE:	30 March 2021
CASE MAY BE CITED AS:	DPP v Tong
MEDIUM NEUTRAL CITATION:	[2021] VCC 362

REASONS FOR SENTENCE

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Subject: Cultivating cannabis – trafficking cannabis

Catchwords: guilty plea – crop sitter and courier – 2 separate incidents - mid range offending – cooperation with authorities – isolation and financial stress – dependent personality disorder – good rehabilitation prospects

Legislation Cited:

Cases Cited:

Sentence: Aggregate sentence of 226 days imprisonment with a 30 month community correction order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Davison	The Office of Public Prosecutions
For the Accused	Mr R. Melasecca	Melasecca Kelly & Zayler Barristers and Solicitors

HIS HONOUR:

1Tham Tong, you have pleaded guilty to one charge of cultivation of a narcotic plant, namely cannabis, on 22 February 2018 and one charge of trafficking in a drug of dependence, namely cannabis, on 14 August 2019. 

2The maximum penalty for each of the two offences is 15 years' imprisonment.

3You have also pleaded guilty to the related summary offences of dealing with property, $15,900 in cash, suspected of being proceeds of crime, committing an indictable offence, that is trafficking in a drug of dependence while on bail, and contravening a conduct condition of bail by leaving the State of Victoria.

4The circumstances of your offending are set out in a summary of prosecution on plea dated 11 September 2020.  They are agreed facts. 

5Sang Van Ha owned a property at Sunshine West where his two children were living.  He was living and working in South Australia with his wife.  Periodically they returned to Melbourne to visit their children.

6On 22 February 2018 police went to the property with a search warrant.  In the garage and shed at the back of the property they found cannabis plants which were growing hydroponically under lights.  Ha's children were home.  They told police they did not know about the cannabis crop.  They said their grandfather had lived in the garage and, after he died, you, whom they knew as a family friend, came to the house every three to four days and went to the garage.

7On 16 January 2019 Ha made a confessional statement to police.  He said he had known you for four years.  He said you had worked for him and became his wife’s friend.  He said you are a single parent who was struggling financially and, when you lost your home, he agreed to let you live in the garage and store your property there.  He said, in July 2017, he came to Melbourne and went to the garage to get some tools and saw cannabis plants growing there.  He said you told him you had let someone set up the crop as you were desperate for money to pay debts.  He said he allowed you to continue growing cannabis because he felt sorry for you.

8On 21 February 2019 you gave police a statement admitting your involvement.  You told police when you lost your home because of gambling debts, Ha let you use his garage to store property.  You said someone offered you money to set up a cannabis crop there.  You said someone else set up the operation and your job was to water and feed the plants.  You said you were told you would get some payment when the crop was harvested.

9The total number of plants was 69.  The total weight was 57.16 kilograms.  A trafficable quantity of cannabis is 10 plants or 250 grams.  A commercial quantity is 100 plants or 25 kilograms.

10On 22 March 2019 you were charged with cultivating cannabis and released on summons. 

11On 18 April 2019 at a filing hearing you were admitted to bail on that charge.

12On 14 August 2019 police stopped a car driven by Ha, at Miram, in regional Victoria.  You were a passenger in the car.  You had travelled with him from South Australia to Victoria.  In the car boot police found 27 one-pound packages of cannabis, which weighed 12.247 kilograms, and $15,900 cash.  You were on bail when police intercepted you with the cannabis and cash and you had travelled outside Victoria in contravention of a bail condition.  Ha and you were both charged with drug related offences and remanded in custody.

13On 26 March 2020 you were admitted to bail on the trafficking charge.  You had spent 226 days in prison on remand until your release on bail. 

14On 28 May 2020 you accepted responsibility for the cannabis and cash and indicated an intention to plead guilty to the trafficking charge.  By your guilty plea you accept you were in possession of them for trafficking purposes.  Police then withdrew the charges against Ha.

15You have no criminal record. 

16Mr Melasecca, who appeared on your behalf, and who also appeared for Ha when he pleaded guilty to cultivating a narcotic plant, relied on the following documents in support of his submissions:  (1) a written outline of submissions; (2) a report dated 10 August 2020 of Luke Armstrong, consultant psychologist; (3) a report dated 22 November 2019 of Tao Hung, gambling counsellor and a supplementary report; (4) a report dated 19 January 2021 of Tracey Allen, psychologist; (5) Ms Allen's addendum dated
4 March 2021 to her report; (6) a letter dated 21 November 2019 of Anh Nguyen, (indistinct) chaplain; (7) prison program certificates; (8) your confessional statement dated 3 December 2018; and (9) a bundle of photos.

17You were born on 6 June 1972 in Saigon.  You were 45 when you were involved in the trafficking of cannabis and 47 when you were involved in trafficking cannabis.  You are now age 48 years.

18Your personal circumstances are set out in Mr Armstrong's report.  You are the second youngest of eight children.  Your mother worked part time baking and selling bread.  Your father worked for an uncle who ran a perfume business.  When the uncle was imprisoned during the civil war your family struggled financially.  You attended local schools until Year 12.  When you left school you helped out at home.

19When you were around 20 years old you immigrated to Australia with your parents.  Your family settled in Adelaide and you repeated years 10, 11 and 12.  When you were 24 years old you married Ton, with whom you had two children.  You told Mr Armstrong he was a heavy drinker and neglected you.  In early 2000 to combat your loneliness you started gambling.  By 2016 your gambling was out of control, your relationship ended and, in early 2018, you had to sell your house to pay your debts.

20In the context of your isolation and financial stress you committed these crimes.

21The history you gave Mr Armstrong described a gambling disorder.  In his view, as a result of your neglectful marriage you have also suffered from a dependent personality disorder.  With the assistance of a gambling counsellor, Tao Hung, and a psychologist, Tracey Allen, your disorders are in remission.  According to Ms Hung you have been very engaged in your counselling and you do volunteer work to help other Vietnamese women with gambling problems.  According to Ms Allen, you have taken responsibility for your actions and show an insight into your wrongdoing and shame for it.  In Ms Allen's opinion, if you continue your high-level participation in the therapeutic process your risk of reoffending is low.

22When you were in custody at the Dame Phyllis Frost Centre you attended weekly Buddhist services and you completed the vocational and behavioural programs made available to you. 

23You were supported in court by your two sons who are now aged 21 and 23.  The three of you have lived in a rented home since your release from remand custody in 2020.  One of your sons is a tiler.  The other is a university student with a part time job.  You have part time cleaning work and, when this proceeding concludes, you aim to undertake training in aged care.

24In mitigation of penalty Mr Melasecca relied on:  firstly, your limited role as a crop sitter for the cannabis under cultivation, and as a courier of the cannabis and cash found in the car; secondly, your early guilty plea for its utilitarian value and for its demonstration of remorse; thirdly, your cooperation with police; and fourthly, your good prospects of rehabilitation. 

25He submitted I should impose a sentence of a prison term equivalent to your pre-sentence detention combined with a community correction order.

26Mr Davison, who appeared for the prosecution, submitted your offending by your participation in a relatively sophisticated hydroponic growing operation was mid-range.  He accepted there was no evidence you set up the cannabis cultivation or owned the crop.  Your role was to look after it.  He submitted your trafficking, possessing packaged bags of cannabis ready for sale also showed a degree of sophistication.  He accepted there was no evidence that the drugs and cash were yours and you may have simply been a courier.  He submitted your offending involving a greater role in the cannabis cultivation and the additional trafficking charge was objectively more serious than that of Ha, your co-offender.

27He also referred me to Judge Chettle's composite sentences of Chau and Dunh Nguyen for cannabis cultivation as a comparator. 

28Overall he submitted a composite sentence would properly reflect the objective gravity of your offending and other factors including your early guilty plea, your cooperation with authorities, your lack of any criminal record, your reasonable prospects of rehabilitation and current sentencing practices.

29The maximum penalty of 15 years' imprisonment shows the crimes of cultivation and trafficking cannabis are serious offences.  While you are to be sentenced for your involvement in each crime on a single day, considering the cultivation of cannabis in the garage was relatively sophisticated, as was the trafficking which involved transporting cannabis and cash from South Australia to Victoria, I assess your offending as mid-range for offences of the type.  It is an aggravating feature of your trafficking that when you offended you were on bail for the cultivation offence and you contravened a conduct condition of your bail.

30I accept your role in both episodes was limited, that you were acting at the direction of others and, given your loneliness and financial stress, you were vulnerable to the offer of money to look after a cannabis crop and to courier cannabis into Victoria.  You nevertheless took the risk and accordingly must be punished for your crimes.

31You deny any alcohol or drug abuse and accept your motivation for your involvement in the crimes was financial benefit.  You are entitled to a demonstrable sentencing benefit for your cooperation with authorities and your early guilty plea.  You have used your time in remand custody and subsequently in the community to advance your reformation.  I accept you are remorseful, you have successfully re-established yourself with your sons and, provided you continue to address your gambling and psychological problems, you are unlikely to reoffend.

32I have had regard to the sentences of Ha and Chau & Dunh Nguyen in determining the proper sentence for you.  Ha was sentenced on the basis he did not benefit financially from the cannabis cultivation and was not criminally concerned in the movement of the cannabis from South Australia into Victoria.  Your offending was objectively more serious than his but you have no criminal record and you can rely on some extenuating circumstances for your reasons to offend.

33In all the circumstances of your case I am satisfied all sentencing purposes can be achieved by the imposition of a composite sentence, comprising a term of imprisonment equivalent to the time you have already served in custody, and a lengthy community correction order which has punitive and therapeutic conditions. 

34I have had you assessed for a community correction order and you have been found suitable.  You were assessed as a low risk of reoffending.  The assessing officer recommended only the additional condition of unpaid community work.  You said you are able to complete such work if required.

35A senior psychiatric nurse also assessed you.  In her opinion, you must continue your engagement with your psychologist, Ms Allen, with your involvement of your general practitioner, Dr Hunyh, to maintain your good mental health and help you cope with life stressors.  I accept her assessment.

36Because of the similarity of the offending between the cultivation and the trafficking charges, both involving cannabis, and because the related summary offences are founded on the same facts as the trafficking charge, I will impose an aggregate sentence in respect of all charges.

37Please stand, Ms Tong.

38By the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind and I must also look to your rehabilitation. 

39Taking into account the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, you are convicted of all five charges and sentenced to 226 days' imprisonment which I declare you have already served by way of pre-sentence detention and a community correction order.  The order will commence today and its duration will be 30 months.

40In addition to the core conditions I impose the additional special conditions.  Firstly, that you are to perform 175 hours of unpaid community work, and secondly, you are to undertake treatment for your mental health.  Fifty hours of the mental health programs you undertake can be credited towards your community work.

41I declare but for your plea of guilty I would have sentenced you to two years' imprisonment and fixed a minimum non-parole release period of 12 months.

42I make orders for the disposal of the cannabis seized on 22 February 2018 and the cannabis seized on 14 August 2019 and forfeiture of the cash in the sum of $15,900 seized on the same day.

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