Director of Public Prosecutions v Tran

[2022] VCC 497

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-21-02516

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

NGA THI TRAN

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JUDGE:	His Honour Judge Dean
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2022
DATE OF SENTENCE:	7 March 2022
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2022] VCC 497

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW          

Catchwords: Cultivating a commercial quantity of a narcotic plant - Early plea of guilty - No prior criminal history - General deterrence - Immigrant - Good prospects of rehabilitation - Possibility of deportation

Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981

Cases Cited: N/A           

Sentence: Total effective sentence – Imprisonment of 2 years and 9 months with a non-parole period of 1 year and 6 months – s.6AAA declaration – Imprisonment of 5 years with a non-parole period of 3 years

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms J. Van Dyk	Office of Public Prosecutions
For the Defence	Mr L. Barker	Emma Turnbull

HIS HONOUR:

1 Nga Thi Tran, you have pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant - namely, cannabis - contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is 25 years imprisonment.

2       You pleaded guilty at committal mention and your early plea was entered during the COVID-19 pandemic.  It has facilitated the administration of criminal justice and I accept that it is also evidence of remorse for your offending.  I have taken your high value early plea of guilty into account in your favour in mitigation of sentence. 

3       You have no prior criminal history and there are no subsequent charges or outstanding charges in your case. 

4       A prosecution opening which was agreed was tendered in evidence and your offending may be summarised as follows –

5       On 26 August 2021 police executed a search warrant at premises located at 7 Waterfront way in Keysborough.  You were residing there and had been in residence for approximately one year.  You were present when the police arrived and attempted to leave, taking with you your iPhone and iPad, but were arrested by police at the premises. 

6       The investigators located a sophisticated hydroponic cultivation system and 136 cannabis plants weighing in total approximately 96 kilograms, together with another small quantity of cannabis.  This quantity represents the total quantity of the cannabis but the usable quantity would have been somewhat less. 

7       You were conveyed to the Dandenong police station and interviewed by the investigators with the assistance of an interpreter.  You made full admissions to questions put to you by police.  You told them that you were paid between three thousand four thousand dollars on approximately six occasions by the person who had enlisted you to in effect maintain the crop.  You also resided at the premises rent free. 

8       This was therefore a profitable activity for you but it is accepted by the prosecution that you were not an organiser or principal involved in the cultivation of the crop, nor were you to be involved in its commercial movement following it being harvested.  Nevertheless, I accept that your role was more than a mere crop sitter although that term does not really helpfully describe the role of persons such as you in any event. 

9       The sentencing principles in relation to offending of this nature are well established.  General deterrence is a prominent sentencing consideration and this sentence must be calculated to deter others from offending in this way.  Nevertheless, I accept that specific deterrence is not a prominent consideration in this case and there is little likelihood of you reoffending.  However, you must be punished for what you have done. 

10      I now turn to your personal circumstances. 

11      You were born in Vietnam in March 1990 and are now aged 32.  You arrived here in Australia as a student in 2014 following your sponsorship by your parents in order to advance your education.  Your family in Vietnam are well regarded and engaged in rural activities, although after you left the country in 2014 they suffered a number of setbacks and became in part financially dependent upon you. 

12      You originally enrolled at RMIT in a Master of Commerce degree but were unable to complete that due to not having sufficient proficiency in the English language.  You left that educational institution and commenced work as a waitress.  Subsequently, health issues meant that you were unable to engage in that occupation and you were effectively left unemployed with no financial support whatsoever due to your status as a student in the country and not a permanent resident.  You were also faced with significant health bills which were again not the subject of any Commonwealth government support. 

13      The COVID-19 pandemic also meant that an occupation which you then became involved in as a nail technician came to an end, and due to your immigration status, you did not receive any Commonwealth or state financial support.  It is accepted by the prosecution that this is the context in which your offending took place and it is further supported by medical evidence which has been tendered on your behalf, together with character references from your parents and a former partner that both speak highly of you.  I accept that your prospects of rehabilitation may properly be described as very good, and as I have said, the likelihood - there is no likelihood of you reoffending. 

14      By reason of your immigration status or the fact that you are not an Australian citizen or permanent resident, you will face the prospect of deportation to Vietnam upon the completion of your sentence or release from prison.  I accept that this too is a further burden for you, as you had intended to reside in Australia permanently. 

15      Imprisonment has been arduous for you during the COVID-19 pandemic and by reason of the fact that you have limited English speaking ability.  You have in fact been isolated in prison for the entire time that you have been remanded in custody following your arrest. 

16      As I have said, the sentencing principles in relation to matters of this type are well established and I have also had regard to a judgment of the Court of Appeal, together with three sentences passed by this court, which are said by the Crown to be comparable to the circumstances of your case. 

17      In the result, the sentence of the court is as follows –

18      On the charge of cultivating a commercial quantity of a narcotic plant, you are convicted and sentenced to be imprisoned for 2 years and 9 months. 

19      I direct that you serve 1 year and 6 months before becoming eligible for release on parole.

20      I declare that you have served 194 days, not including today, by way of pre-sentence detention. 

21      But for your plea of guilty I would have imposed a total effective term of imprisonment of 5 years and fixed a non-parole period of 3 years.  I will make the ancillary orders sought on behalf of the prosecution. 

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