Director of Public Prosecutions v Tran
[2023] VCC 734
•8 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Latrobe Valley AND MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CR-21-02639
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOA VAN TRAN |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Latrobe Valley and Melbourne | |
DATE OF HEARING: | 23 March & 8 May 2023 | |
DATE OF SENTENCE: | 8 May 2023 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 734 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Cultivation of commercial quantity of cannabis, menial role for a day for promise of modest recompense, plea of guilty during pandemic, isolation in custody, prospect of deportation, current sentencing practices, significant period of Renzella time to be declared on another matter that was discontinued.
Legislation Cited: Drugs, Poisons and Controlled Substances Act1981 (Vic), Migration Act 1958 (Cth), Sentencing Act1991 (Vic).
Cases Cited:Nguyen v The Queen [2017] VSCA 286, Philips v The Queen (2012) 37 VR 584, Worboyes v The Queen [2021] VSCA 169, The Queen v Renzella [1999] VSCA 85, Hague v The Queen [2022] VSCA 17, Karpinski v The Queen [2011] VSCA 94, R v Stares [2002] VSCA 70, The Queen v Chimirri [2003] VSCA 45, The Queen v Wade [2005] VSCA 276, The Queen v McMahon [2006] VSCA 240, Warwick v The Queen [2010] VSCA 166, Quy Nguyen v The Queen [2017] VSCA 127, Dang v The Queen [2020] VSCA 24, Jones v The Queen [2021] VSCA 114 , Selaci v The Queen [2020] VSCA 276, Nguyen v The Queen [2019] VSCA 134, Guden v The Queen[2010] VSCA 196.
Sentence: 7 months imprisonment. 98 days PSD reckoned as served.
Section 6AAA – 4 years 6 months with non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. D’Arcy | Office of Public Prosecutions |
| For the Accused | Ms R. Champion | McFarlane Criminal Lawyers |
HIS HONOUR:
INTRODUCTION
1The accused in the matter is Hoa Van TRAN and the co-accused is Bac Tsanh CHU.
2TRAN was born in Vietnam in August 1994 and was residing at in St Albans on a temporary visa at the time of the offences in July 2021. He has pleaded guilty to one charge of cultivation in a commercial quantity of cannabis, the maximum penalty for which is 25 years' imprisonment. The circumstance of that offending is set out below.
EARLY INVESTIGATION
3On 30 July 2021, the informant, Leading Senior Constable DAVIES, received an anonymous complainant.
4The following day, on 31 July 2021, the informant conducted a walkover of factories 1 and 2 of 44 Weerong Road Drouin. He was able to look through the window of factory 1 and see the inside of the factory. Several large plastic water tanks were visible. These water tanks were stacked on top of each other and appeared to be partially filled with water. When standing next to factory 2’s roller door, a low electrical hum could be heard.
5On 25 August 2021, an employee of SP Ausnet (CARRIG) notified police that a large amount of electricity was being used in the vicinity of factories 1 and 2. He explained that the large amount of power being used, was causing the fuses to blow in the transformers that supply power to the factories in the vicinity.
ATTENDANCE AND SEARCH
6On Friday 27 August 2021 at approximately 8.30 am, the informant attended in the company of other police officers at factories 1 and 2 in order to execute a search warrant under the Drugs, Poisons and Controlled Substances Act 1981 (DPSCA). Also present was the SP Ausnet employee who disconnected the power before entry was gained through the front door of factory 1.
7On entry into factory 1, the informant observed two rooms made from timber and plaster board, and several large water tanks. He entered the second room and observed numerous plants in pots, which he believed to be cannabis plants, growing hydroponically under grow lights. He then observed an entry point which led into factory 2. A section of the corrugated iron wall was cut out to make this entry point.
8On entry to factory 2, the informant observed four rooms and a toilet area containing numerous plants in pots, which he believed to be cannabis, growing hydroponically. He also observed a large open-faced box containing small seedlings, which he believed to be cannabis, growing in a seedling tray within a clear lid.
9The informant also observed numerous transformers and electrical leads in factories 1 and 2, connected to the rooms which were growing the plants hydroponically. The informant was told by CARRIG that there was an electricity bypass in operation. I note that TRAN has not been charged and will not be sentenced for theft of that electricity.
10In factory 1 a microwave was discovered with a number of black gloves with a blue edging around the openings and a facemask located nearby.
11Fred SIMONIC, the owner of the two factories, attended during the search as he had been contacted by someone who had told him that there were police vehicles outside his factories. He told police he had leased the factories to a male by the name of Dung DANG. SIMONIC stated later that he was not aware of the cannabis crop growing inside.
12At around 10.30 am Zac SMITS attended the factories and advised the informant that he had just seen a silver van drive past that he had seen parked outside the factories on previous occasions. He also stated that the driver and the passenger in the van were the two people that he had seen attend the factories on numerous, previous occasions. SMITS occupies a factory next door.
ARREST
13Sergeant Lachlan BELL and Sergeant John ROBERTS set off in a police vehicle after hearing this, activating the emergency lights a short time later. They located the van in front of their vehicle on Princess Freeway three to four minutes later and the van pulled over upon seeing the police vehicle.
14There were two males in the van. TRAN was the driver and registered owner of the van. CHU was his passenger.
15The van was searched later in the day and a key was located in a pocket in the front passenger side door. Two sets of keys were also discovered in a centre console. One set of keys had a Toyota car key and a remote central locking control unit on it ,as well as other keys and another set had a BMW car key on it. A number of gloves, identical to the ones found in the factory, were found in the rear of the van and in a pocket in the front passenger door. Remnants of cannabis plants were also located in the rear of the van and throughout it. It was later discovered later in the day that one of the keys from the Toyota set of keys opened the door to factory 1.
16The plants discovered at factories 1 and 2 were removed and taken away for analysis by police, along with the other items that were discovered.
WEIGHT OF SEIZURE AND FURTHER ANALYSIS
17The plants seized from factories 1 and 2 were counted and analysed. The plants were found to be cannabis L. and there was a total of 304, weighing a total of 165kg. Charge 1 – Cultivate a narcotic plant in not less than a commercial quantity.
18Analysis was conducted on some of the items that were discovered and seized from the factories. Two palm prints were lifted from the door of the microwave that was located inside factory 1. These were matched to the accused TRAN. Two of the gloves were analysed and a mixed DNA profile was obtained indicating three contributors. On one of the gloves, the evidence is that it is 100 billion times more likely that both TRAN and CHU were contributors. In relation to the other glove the evidence is that it is 100 billion times more likely that TRAN was a contributor and 4,000 times more likely that CHU was a contributor. The analysis of the facemask indicated that a mixed DNA profile was obtained indicating three contributors. The evidence was that it was 100 billion times more likely that both TRAN and CHU were contributors.
19Considerable damage has been caused to both factories 1 and 2 as a result of the crop and the set up to sustain it. I stress TRAN has not been charged in relation to this damage.
20TRAN was arrested by police on the 27 August 2021 and provided no comment responses to questions. He was remanded on that day.
CASE HISTORY
21The way that this matter progressed through the criminal justice system is highly relevant to the penalty I impose. It has unfolded in the following way.[1]
[1]Matters where the informant is YOUNG are italicised.
Date Event 27 Aug 2021 Arrest and interview and remand
informant DAVIES
30 Aug 2021 Filing hearing 1 Oct 2021 Bail granted after 35 days in custody 9 Dec 2021 Committal mention
Committed for trial
Straight hand up briefPlea of Not Guilty
9 Jan 2022 TRAN arrested and remanded on other matter – Informant YOUNG
Charged with cultivate cannabis (commercial quantity) at MorwellInexplicably bail continued on DAVIES matter
27 Jan 2022 Initial directions hearing
Dates set for filing of documents and further directions hearing
18 May 2022 Further directions hearing
Adjourned on Crown application
14 July 2022 Further directions hearing
Adjourned administrativelyDefence application
23 Aug 2022 Further directions hearing
AdjournedDefence application
29 Aug 2022 Matter resolved 15 Sept 2022 Arraignment
Pleaded guiltyMatter listed for plea
14 Dec 2022 Co-accused CHU matter discontinued 6 Mar 2023 Bail revoked on indictment C2114744.1 23 Mar 2023 Latrobe Valley County Court
Plea· Total of 52 days PSD on this matter
o 35 days PSD accrued from arrest in August 2021 until bailed in October 2021
o 17 days PSD accrued since bail revocation on 6 March 2023
· 421 days PSD since arrest on 9 January 2022 (‘Renzella’ time).
· 473 days in custody in total
29 Mar 2023 Further DH
Informant YOUNGMatter discontinued
8 May 2023 Melbourne County Court
Further plea and sentence· Total of 98 days PSD on this matter
o 35 days PSD accrued from arrest in August 2021 until bailed in October 2021
o 17 days PSD accrued since bail revocation on 6 March 2023
o An additional 46 days accrued
· 421 days PSD since arrest on 9 January 2022 (‘Renzella’ time).
· 519 days in custody in total
CO-ACCUSED
22CHU had a s198B hearing listed in the County Court at Melbourne on the
27 October 2022 with Zach SMITS and the informant being called. His matter, as I said, was discontinued in December 2022.
PRE-SENTENCE DETENTION
23TRAN has spent a total of 519 days in custody (or approximately 17 months). He has spent 421 days (or around 13 months) in custody for a matter that was ultimately discontinued. A total of 98 days (little more than three months) of his time in custody are strictly in relation to the matter I am sentencing for. How I accommodate for this state of affairs is dealt with further in my reasons below.
MATTERS PERSONAL TO THE ACCUSED
24TRAN is now 29 years of age. He has no prior convictions of any kind, either here, or in his native country Vietnam.
25He was born in the south of Vietnam. His parents sold clothes and his siblings were also employed. He studied engineering and accounting.
26He came to Australia on a student visa to study English and accounting in 2013, aged just 19. He is not an Australian citizen.
27He ceased study a year later as he married and set about to work. He worked as a butcher until his arrest in 2021. He mainly lived in Sydney until his divorce at the end of 2015. A year later he moved to Melbourne, for a fresh start.
28By 2016 he was working as a butcher at Footscray Market. I am told his mother was diagnosed with bowel cancer at around this time.
29His parents, who had opened a clothing business began to wind that business down.
30That clothing business was still operating at the time of the pandemic when it finally ended. His parents struggled financially (as did many people) over the years from 2020 and 2021.
31I note that this offending took place in August 2021. I am informed that TRAN’s motivation for that offending was to assist with his mother’s medical expenses.
32This assertion was initially made solely form the Bar table. TRAN’s mother has been unwell it seems for five years before this offending. No evidence was presented that the state of her health become more fraught in 2021, nor that it operated more onerously on the accused to motivate him to offend the way he did at the time he did. I was informed that his mother has quarterly check-ups but he is reluctant to seek any more information about her prognosis.
33I adjourned the matter to enable his diligent legal representatives to obtain anything by way of confirmation as to his mother’s ill health or his own parlous financial state.
34On the morning of the further plea I was informed about his mother's health.[2]
[2]Exhibit 4 – Original and Translated Medical Documents from Vietnam.
35There was confirmation as to the state of his mother's health, but not how diabolical his own financial situation was when he made the decision to involve himself in this particularly serious offence.
36I was informed from the Bar table that he had no savings, and could not undertake a second job. He owned two vehicles, but they were of modest value and one at least was necessary for his work. I was informed, and I accept, that he was renting a townhouse, owned no property and was simply renting.
37It is still difficult to come to a truly informed view about his reasons for involving himself in this offending. The plea has been presented in such a way that a decent, caring son has acted aberrantly for the selfless and understandable reasons of distress about his mother’s health. It is an emotive issue, which is not outlandish, nor is it confirmed in any way by way of extensive evidence in medical or financial form, but to the extent this concern for his family, particularly his mother, explains why he would involve himself in this criminality. On balance I accept that that is so, and I take that matter into account.
38Importantly TRAN has other discernible vices, or barriers to reform.
OFFENDING
Context of involvement, role and gravity
39I have touched on the reason for the accused’s involvement in this enterprise already.
40I was informed that he was approached by a friend who knew something of his financial position. TRAN has declined to name that person. TRAN did not know the tenant himself. Oddly, he decided to take along a friend (CHU) when he offended.
41By his plea to this indictment, he admits he intentionally cultivated a narcotic plant, that the plant was in fact a narcotic plant, and that he intentionally cultivated a commercial quantity of same.[3]
[3] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s. 72A.
42Critically this involves an acknowledgement of at the very least the planting, growing, tending, nurturing, harvesting or sowing the seeds of a plant.
43Of course by his plea he acknowledges that he intended to cultivate not less than a commercial quantity – in this case that means more than 25kg or 100 plants.[4]
[4]Ibid Part 2 of Schedule 11.
44In this particular case, his role is said to be no more than to water than plants on a single day. All up 304 plants were grown, weighing at least 165kg.
45TRAN was not a tenant of the factories nor the lessee. There is no evidence he lived there. As I said, his purported sole duty given was to water the plants on a single day and it was submitted that the items tied to him in the factory (face mask, gloves) are not inconsistent with that role. The seeming presence of his van at the location at times earlier than his arrest is not, I stress, a matter I take into account to broaden the duration or role of his offending.
46It was submitted that this offender’s role was even less than that of a crop sitter. Adjectives such as menial and ancillary were used as a way to give nuanced meaning to the role he actually performed, bearing in mind that the notion of a ‘crop sitter’ is not always a useful way to analyse an offender’s criminality. It was further submitted that this was low level offending.
47TRAN was detected in the vicinity of the factories, in his own van in which keys to the factory were located and gloves of the kind found at the factory found in it, along with remnants of cannabis suggestive that the accused’s car, was used to transport cannabis, though it cannot be established that was by him. I do not sentence him on the basis he did.
48I am told that he was to receive a paltry reward, I am told of a few hundred dollars, though there is no evidence of this of course.
49The enterprise as a whole is anything but low level, and it is offending of the kind that cannot be established and proposer by organisers and financiers without the willing assistance of those like TRAN who are prepared to involve themselves in it.
50That the crop was three times the commercial quantity by number of plants and more than six times the commercial quantity by weight alone informs the Court of its scale and level of planning that must have gone into it.
51As the Court of Appeal said in Nguyen v The Queen:
it is important that any label that is attached to the offender’s role should not obscure, or distract attention from, the various factors that are relevant to a proper assessment of the gravity of the offending in a particular case. Those factors ordinarily include matters such as the tasks performed by the offender in the enterprise, the nature of his relationship with the principals or leaders of the enterprise, the degree of trust and responsibility reposed in the offender, the size, scope and sophistication of the enterprise, and any expectation of the offender in respect of the rewards to be derived from the enterprise.[5]
[5][2017] VSCA 286 at [27] per Kaye JA and T Forrest AJA see alsoNguyen v The Queen [2019] VSCA 134 at [59].
52Bearing the above in mind, I am compelled to sentence this offender for acts of cultivation that occur on a single day, taking the calculated risk he did for monetary reward, in circumstances described above that cannot be refuted.
MATTERS OF SENTENCING PRINCIPLE
Cultivation of commercial quantities of cannabis
53Cultivation of a commercial quantity of cannabis is a serious offence, evidenced by the maximum penalty that Parliament has prescribed for it. It is an important way in which drugs enter our community doing great societal harm.
54As is common for offending of this kind, three aspects featured prominently in the plea and in the formulation of sentence: the quantity of the drugs, the degree of sophistication of the operation and the role of the applicant.
Plea of guilty
55The Court is entitled to reduce a sentence to account for the utilitarian value of the plea.[6] Pleas of guilty during the Covid-19 pandemic are clearly of higher utilitarian value.[7] I note that the authority of Worboyes mentions that the discount must be a perceptible one. I can assure TRAN will be. I also find it is accompanied by remorse.
[6] Phillips v The Queen (2012) 37 VR 594, 608 at [47] per Redlich JA and Curtain AJA, Maxwell P
agreeing.
[7]Worboyes v The Queen [2021] VSCA 169 at [35] per Priest, Kaye and T Forrest JJA.
Circumstances in custody
56Increased periods of lockdown (namely confinement to cells) have been applied by prison authorities since 2020. Significant hardship has become more onerous during the Covid-outbreak, including the curtailment of prison programs and the prevention of family visits during lockdowns. Prisoners are usually highly anxious that there is a risk of contracting the disease in custody and there is additional stress that needs no further authority or example experienced by members of the community for are the prisoners' families for those prisoners. I will take into account the fact that there has not been a harder time in recent memory to be a prisoner or remandee in the State of Victoria.
57I take into account the additional punitive and aversive nature of remand for such an extended period of time on this accused as someone who is isolated from family and friends, and the worry for his mother which was the catalyst for this offending will have no doubt been exacerbated over the past year or more.
58For TRAN, despite being in Australia for some time, he still has a limited grasp of English which leaves him somewhat isolated in prison. He does have contact with his family thankfully, via phone or Zoom. There have been extended periods of lockdown in prison where he has been unable to properly socialise with others or advance his English skills.[8]
[8]Exhibit 3 – Kangan Institute Student Report dated 31 March 2023.
59To his credit, he has worked as a billet in prison displaying the kind of work ethic he possessed prior to his remand. This is one of the matters I take into account when assessing his prospects for reform. He, as I said, suffers from no vices that would impede his path to reform and I could see little to no utility in subjecting him to supervision or treatment to guard against the risk of further offending in the unique circumstances of this case.
60I can add to my assessment of his prospects by reference to the fact that he is still a relatively young man at 28, he has not offended before or since, he has no ostensible barriers to reform (such as poor mental health, entrenched prior criminality, or substance abuse problems). I expect he has been very much specifically deterred and my sentence need not be weighted in such a way as to emphasise that sentencing objective.
61The punitive nature of his time in custody thus far is self-evident and there is little more for me to do in that regard to give effect to that sentencing objective. The same can be said for principles of denunciation and general deterrence.
Delay
62I take into account the time between arrest and interview and the final disposition of this matter into account. It is intertwined with issues such as the Renzella PSD issue and the manner in which TRAN has served a substantial period on remand.
Prospects of deportation[9]
[9]Guden v The Queen[2010] VSCA 196.
63The prospect that an offender will be deported following sentence is relevant to sentence if it will make the burden of imprisonment more onerous or may result in the offender losing the opportunity to settle permanently in Australia.
64This depends on the personal circumstances of the offender and a court should not consider the possibility of deportation as a mitigatory factor unless it will actually be a hardship for the offender. Moreover, it will be given limited weight in cases where the offending is particularly serious.
65There must also be evidence of both the likely risk of deportation and the impact of that risk. Specifically, the evidence must be ‘sufficient to permit a sensible quantification of that risk to be undertaken’.[10] A reduction will be permissible and appropriate where the prospect of deportation (and its impact) is certain. It may also be appropriate where deportation and its adverse impacts are probable.
[10] Ibid at [29].
66A court cannot be asked to speculate. Without evidence or a prosecution concession, a court need not consider the possibility of deportation. However, where there are unusual circumstances demonstrating a connection to Australia, such as a lengthy period of residency before the commission of the offence, or where the offender’s family have made considerable financial sacrifices to send the offender to Australia, the court should consider these matters.
67The Migration Act 1958 (Cth) make visa cancellation mandatory for an offender sentenced to one year of imprisonment or more, unless the relevant Minister is satisfied there is a reason to revoke the cancellation. There are also provisions that make visa cancellation mandatory for specific kinds of offences, including child sex offences. But these provisions do not remove the prospect of deportation as a proper matter for consideration at sentence.
68As I said in this case, TRAN is not an Australian citizen. He has been in Australia for a decade and has endeavoured to make a life for himself here.
69There is, I gather a sense of ambivalence about the prospect he will be deported to Vietnam. On the one hand he loses that opportunity to settle here that he seems to desire. Further I am told that there has been some unrest (based on religious lines) where his family lives that causes him trepidation and anxiety about returning. Ms Champion concedes that a return to Vietnam is not necessarily the severe outcome deportation might be for others. That does not mean of course it is unimportant.
70On the other hand, he would be near his mother, whose state of health concerns him enough to involve himself in this offending.
71While I find it difficult to accept that the prospect of deportation constitutes an actual hardship, I do accept the uncertainty of this position causes him understandable anguish and disquiet.
72The sentence I impose will not be of a magnitude that automatically triggers the Migration Act provisions, in any event.
Pre-sentence detention
73As I said, TRAN has served in excess of 400 days that is not PSD pursuant to s.18 Sentencing Act 1991 (Vic). No sound forensic decision appears to underly the decision not to have his bail revoked once he was arrested on the Young matter.
74This unaccounted for time is properly described as ‘Renzella’ time,[11] which the Court is bound to take into account.[12] It ought to be taken into account at the first opportunity (i.e. now) and not left to any Court imposing any later sentence.[13]
[11]Karpinski v The Queen [2011] VSCA 94 (‘Karpinski’) at [36], [39], [49] – [53], [61] – [62], [69]; The Queen v Stares [2002] VSCA 70 (‘Stares’) at [27]; The Queen v Chimirri [2003] VSCA 45 at [5]; The Queen v Wade [2005] VSCA 276 (‘Wade’).
[12]Wade at [7], [11], [13], [16], [22]; The Queen v Renzella [1999] VSCA 85 (‘Renzella’) at [11]; Karpinksi at [3] and [49]; Stares at [27]; The Queen v McMahon [2006] VSCA 240 (‘McMahon’) at [22].
[13]Renzella at [11]; Karpinski at [49] – [52]; Wade at [11].
75This ‘dead’ time can operate to reduce head sentence and the non-parole period.[14] It is acknowledged that there is no entitlement to a discount of any particular percentage of the period spent in custody, though I indicate for the sake of clarity I take into account all of 13 plus months of it[15]
[14]Karpinski at [1]; Stares at [27]. Though in this case I have been invited to impose a straight sentence and not impose a non-parole period.
[15]McMahon at [21]; Karpinksi at [51], [57] and [60].
76It is necessary for me to substantially reduce the sentence imposed here in order to prevent ‘an obvious injustice where a person has served a term of imprisonment which he should never have served’.[16]
[16]Karpinski v The Queen [2011] VSCA 94 at [62] per Maxwell P and Weinberg JA’s remarks in Warwick v The Queen [2010] VSCA 166.
Current sentencing practices
77Whilst each case must, of course, be assessed on its own facts and circumstances, other sentencing cases may be of assistance in guiding the Court where such cases bear similar features or where such cases deal with relevant sentencing principles.
78I was provided with a number of cases where the accused were wildly different people, who offended in a myriad of ways. The cases were comparable though in the sense that they all concerned pleas of guilty to the charge of cultivation of commercial quantities of cannabis, and the role of the offender was said to be anything between principal offender, just below a crop sitter, a crop sitter or slightly more than a mere crop sitter.
79Specifically, in this case I was referred to the following:
(a) Quy Nguyen v The Queen [2017] VSCA 127
(3 years 3 months with non-parole period of 2 years)
(b) Dang v The Queen [2020] VSCA 24
(3 years 6 months with non-parole period of 2 years and 7 months)
(c) Jones v The Queen [2021] VSCA 114
(2 years and 10 months for the relevant charge)
(d) Selaci v The Queen [2020] VSCA 276
(3 years 10 months with non-parole period of 2 years 3 months)
(e) Nguyen v The Queen;Ho v The Queen [2019] VSCA 134
(3 years 8 months, non-parole period of 2 years 4 months and 2 years
3 months respectively)
80I have approached the use of the above comparative cases with caution. They are certainly informative and instructive, but I do not consider that they set the outer limits for the exercise of my sentencing discretion, and in fairness to the parties, I was not invited to treat them that way.
81It would be fair to describe the role of the accused/appellant in each of the above matters as being greater than that of TRAN by any measure of culpability and criminality.
82Further, and importantly, none of the cases involved pleas of guilty during the pandemic warranting the Worboyes discount and none of them had the unusual feature of the Renzella issue that TRAN has.
Disposition
83That a term of imprisonment ought to be imposed was called for by Mr D’Arcy and was conceded by Ms Champion. Once that concession was properly made by
Ms Champion, Mr D’Arcy did not seek to address me any further as to the structure of such a sentence.84There are unusual features of this case though that warrant the imposition of a term that may, may first blush appear completely out of kilter with current sentencing practices.
85The principal reason for the imposition of the sentence I impose is shaped very much by the Renzella issue.
86The justice of the matter compels a sentence that is measurable in months and is not of such a magnitude that would permit me to impose a non-parole period of I was minded to.[17]
[17]Sentencing Act1991 (Vic) s.11
SENTENCE
87On the charge of cultivate a commercial quantity of cannabis, TRAN is convicted and sentenced to 8 months' imprisonment.
88Pursuant to s.18 of the Sentencing Act, I declare that he has served 98 days in satisfaction of that sentence I have just imposed. Those details will be entered into the records of the Court. I feel compelled to add this explanation.
89The total effect of this is that he still needs to serve approximately another 145 or so days (4 months) to satisfy the sentence I have imposed. By the conclusion of that time he will have served in total served 664 days or close to 22 months in prison.
90Pursuant to s.6AAA of the Sentencing Act, but for the plea of guilty, I would have sentenced TRAN to 4 years 6 months with a non-parole period of 3 years. Do my calculations accord with your understanding of it?
91MR D'ARCY: The 6AAA non-parole period, Your Honour?
92HIS HONOUR: Three years.
93MR D'ARCY: Thank you.
94HIS HONOUR: Were there any ancillary orders, Mr D'Arcy?
95MR D'ARCY: I do not believe so, Your Honour.
96HIS HONOUR: Ms Champion, is there anything that you need to raise?
97MS CHAMPION: No, Your Honour.
98HIS HONOUR: Thanks for your assistance, both of you, and I am sorry to put you under pressure this morning, Ms Champion.
99MS CHAMPION: Not at all, Your Honour.
100HIS HONOUR: Can I just ask a favour to the custody officer? Would you allow the interpreter and Ms Champion just to have a discussion when I leave the Bench? Thank you. We will adjourn then.
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