Director of Public Prosecutions v Tran
[2021] VCC 101
•11 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00680
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TUAN KHANH TRAN |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2021 | |
DATE OF SENTENCE: | 11 February 2021 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 101 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence.
Catchwords: Plea of guilty – Cultivation of a commercial quantity of cannabis – Theft – Sophisticated commercial hydroponic cannabis setup – 484 plants weighing 51kg – Offender expected to profit from sale of cannabis – Doran discount – Limited prior criminal history – Significant health issues – Reasonably good prospects of rehabilitation – COVID-19 taken into account.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 s 72A; Crimes Act 1958 s 74; Sentencing Act 1991 ss 5(2H), 6AAA, 18.
Cases Cited: The Queen v Doran [2005] VSCA 271.
Sentence: Imprisonment for a period of 2 years and 6 months, with a non-parole period of 16 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms H Whalley | Office of Public Prosecutions |
| For the Accused | Mr G Cooper | Victoria Legal Aid |
HIS HONOUR:
Introduction
Tuan Khanh Tran, you have pleaded guilty to one charge of cultivation of a commercial quantity of a narcotic plant, namely Cannabis L. contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 25 years imprisonment (Charge 1) and one charge of theft contrary to s 74 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 2).
You have admitted your prior criminal history.
Circumstances of the offending
At the time of the offending, you were 52 years of age and residing at 23 Henderson Street Ararat, having commenced a rental lease at that property on 22 July 2019.
On 11 February 2020 at 9 am, members from the Ararat Police Station executed a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act 1981 at your address. Upon entering the front door of the property, police found you asleep on a single mattress in the entry way and located no other occupants.
Police found a sophisticated hydroponic cannabis crop in the property. Three rooms were fitted out with complex electrical lighting and watering systems. During the execution of the warrant police seized a total of:
· 484 cannabis plants varying in maturity weighing 51 kilograms;
· Small quantity of chopped cannabis weighing 16.9 grams; and
· Loose cannabis leaf weighing 24.3 grams.
Mr Baz Rompa, electrical contractor for Victoria Police, was on site and located two unmetered electrical connections within the roof cavity, one at the front of the house and one at the side of the house.
Mr Bruce Paton, a licensed electrical inspector employed by Powercor Australia, identified two connections into the unmetered consumer mains between the fused overhead connector box and the metering enclosure. Mr Paton removed the spliced connections and handed them to Leading Senior Constable Narelle Smart.
You were arrested at the property and taken to the Ararat Police Station where you were interviewed. During your interview with police you stated that you rented the house from a Vietnamese male and had been living there for the last two to three months. You stated that a friend of yours came from Vietnam, supplied all the equipment, set up the lighting hydroponics and grafted the plants. Your friend also taught you how to tend to the plants before he returned to Vietnam. You admitted that you had paid this friend and were due to send more money to him once you had harvested the plants. You admitted that you had planned to harvest the plants and that you alone looked after the plants because you were too sick to work another job. You stated that you knew cannabis was illegal but that you wanted to do this once.
You were then remanded in custody.
Nature and gravity of the offending
As cultivating a commercial quantity of cannabis carries a maximum penalty of 25 years imprisonment, it is by its nature a serious offence. It is also classified as a Category 2 offence requiring that a custodial sentence be imposed unless an exception pursuant to s 5(2H) of the Sentencing Act 1991 can be established.
In this instance, the total number of plants seized was 484 plants with a total weight of 51 kilograms together with small amounts of chopped cannabis and cannabis leaf. Therefore, the number of plants equates to almost five times the commercial quantity while the weight of the cannabis is approximately two times the commercial quantity.
Further, when an assessment is undertaken in relation to the combination of the various items and cannabistre://ftr/?label="SHEP SH3.2"?datetime="20181113154142"?path="\\svr_vgrs_fs01\Civil"?Data="67ef260b" found at the property, it is clear that this was a sophisticated commercial hydroponic cannabis operation involving three rooms of the house as well as a two electrical bypass systems that had been installed in order to avoid detection.
Mr Cooper, who appeared on your behalf, conceded that your role was beyond that of a ‘crop sitter’. Indeed, in your record of interview, you admit that you were entitled to fifty percent of the proceeds of the sale of the cannabis. Mr Cooper submitted however that the evidence supports the proposition that you were not the sole offender or the organiser of the operation. He points to the fact that although you were the lessee of the property, there is no evidence that you financed the operation. Further, the prosecution acknowledged that the owner of the property was observed attending the property during the time of the cultivation. In your record of interview, you state that you were instructed by a man from Vietnam who also supplied all the equipment and plants. You also state that the man from Vietnam and the owner of the property are known to each other.
As with many commercial hydroponic setups, there is a hierarchy of persons involved. While the evidence is not clear as who was above you in the operation, in your case, by your own admissions, you played an important role. You were hired for a specific role to stay at the property and undertake the day to day tending of the crop while expecting to gain from the proceeds of the sale. You state that due to your medical condition, you were unable to maintain formal employment and that you needed money for medication. Nonetheless, you acknowledge that you knew what you were doing was illegal.
As to Charge 2, while it is self evident that the hydroponic set up required the use of electricity and that there were two electrical bypasses installed, the theft charge is particularised as having occurred on a single date, the date of detection. Even so, that fact that the set up consisted of two electrical bypasses further demonstrates the sophisticated nature of the operation.
Personal circumstances
You were born on 8 May 1967 in a southern province of Vietnam and are currently 53 years of age. Your parents both died a number of years ago and you have no family in Australia. You ceased contact with your brother in Vietnam, your only sibling, when you were remanded in custody.
You described your upbringing as average. Your father owned and ran a welding business for approximately 10 years and also ran a small retail store where your mother assisted. Your family had enough money to survive but there was no surplus. You attended school in Vietnam to the equivalent of Year 9.
You married your first wife approximately 20 years ago in Vietnam and you were neighbours there, before she sponsored you to come to Australia on a Partner visa in 1995. Your relationship ended after three or four years. You were granted Australian citizenship in 2000.
You married your current wife in 2016 in Vietnam. Around two to three years ago you paid for your wife to come to Australia on a partner visa with a $7000 loan. You do not have any children and your wife currently lives in a share house in Springvale.
You have had a relatively strong work ethic since leaving school. Your first job was with a local water authority, connecting water supply to houses, for approximately three years. You then trained as a welder and assisted your father in his business for around seven years, whilst also assisting your parents at their family store. After moving to Australia, you almost immediately gained employment as a fruit picker in the Lilydale area and continued in this job for a number of years. You had to stop working because you were attending hospital emergency department with asthma two to three times per month. You have not worked since and have been in receipt of Centrelink payments including the Disability Support Pension until you were remanded.
In terms of substance use, in 2008 you were introduced to heroin by friends and used heroin for around 6 months, during which your prior offending took place. After your court appearance you returned to Vietnam and managed, with the support of your brother and sister-in-law, to stop using heroin and to your credit you have remained drug free since. You and your family do not have any history of mental health issues.
You have unfortunately experienced a number of physical health issues which have also adversely impacted you socially and financially. In late 2017 or early 2018 you developed severe headaches and vision issues arising from a large tumour in your brain. In February 2018 you underwent brain surgery to remove the tumour however it left you with ongoing vision impairment and blurriness, especially with central vision and seeing faces. You are unable to work as a result of your vision issues and have become socially isolated as a result. You also suffer from asthma and have had regular admissions to hospital, sometimes as frequent as twice a week, due to severe asthma and breathing difficulties. The medication you take has created a financial strain on you and in the period leading up to your offending you were experiencing housing instability.
In March 2020 whilst on remand you were diagnosed with pneumonia and adrenal insufficiency and spent five days in St Vincent’s Hospital.
Your offending occurred in the context of you having accumulated debt, including the $7000 you had borrowed to sponsor your partner together with other debts arising from your poor health and inability to work. However, I note that while you were suffering the health conditions described you were able to maintain the work involved in maintaining the cannabis operation.
Sentencing considerations
Mr Cooper highlighted a number of matters that he submitted can be taken into account in mitigation.
First, this matter resolved before the initial committal mention on 20 May 2020 and as such your plea of guilty is a plea at the earliest opportunity. Your early plea has spared court time and expense and avoided the need for witnesses to be cross examined at committal or trial. You also cooperated with the police making admissions in your record of interview. In all the circumstances your plea and cooperation have facilitated the course of justice and you are entitled to have that taken into account.
It was submitted on your behalf that the nature of your admissions enlivens a ‘Doran’[1] discount. However, the prosecution submit that your admissions did not lead to you being charged with a between dates charge nor to more serious offending that was not already disclosed when the investigation was undertaken. That said, when detected, it is you who volunteered the fact that you were to share in the profits for the cultivation necessarily aggravating your role from that of a mere crop sitter. In the circumstances you are entitled to have that fact taken into account in the Doran sense together with your full and frank admissions.
[1]The Queen v Doran [2005] VSCA 271.
Secondly, you come before the court with a limited prior criminal history comprising charges of possession and trafficking heroin in 2008, for which you received a period of 3 months imprisonment, wholly suspended. While the fact that you have prior criminal history is relevant, the charges relate to a period in your life when you were suffering from a heroin addiction which you overcame following that conviction.
Thirdly, that the burden of imprisonment for you is increased as a result of the COVID-19 pandemic. It was submitted that in addition to the general restrictions that have been placed on prisoners, in your case because of your medical vulnerabilities, the impact of the pandemic has greater significance. I accept that the impact of the pandemic can be taken into account generally and specifically in your case. Further, while services remain restricted, correctional facilities are adapting and some educational and rehabilitative services have resumed.
As to your prospects of rehabilitation, at 53 years of age you have a limited prior criminal history. You made full admissions and you cooperated with police upon your arrest. While you have limited support in the community I accept that in all the circumstances your prospects of rehabilitation are reasonably good.
Ms Whalley who appeared on behalf of the Director of Public Prosecutions submitted that general deterrence must be the primary sentencing consideration. I agree. That is, a message must be conveyed that persons who choose to be involved in commercial cultivation of cannabis will inevitably face terms of imprisonment regardless of their motivation for being involved. Denunciation of your conduct is also a relevant sentencing consideration in this instance. Specific deterrence is a relevant sentencing consideration however in my view in all the circumstances it is of more limited weight. Your prior conviction was related to your then heroin addiction and it is clear that you did not go on to offend further in that context. However, you did make a clear choice to cultivate cannabis in circumstances where you knew it was illegal and you must be deterred from that temptation in the future.
Sentence
Mr Tran, would you please stand.
Tuan Khanh Tran, on Charge 1, cultivating a narcotic plant in not less than a commercial quantity, you are convicted and sentenced to 2 years and 6 months imprisonment. On Charge 2, theft, you are convicted and sentenced to 3 months imprisonment. I direct that you serve 16 months imprisonment before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 366 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 3 years and 6 months with a non-parole period of 2 years and 6 months.
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