Director of Public Prosecutions v Tran

[2020] VCC 1895

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-01142

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN TRAN

---

JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2020
DATE OF SENTENCE:	27 November 2020
CASE MAY BE CITED AS:	DPP v TRAN
MEDIUM NEUTRAL CITATION:	[2020] VCC 1895

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Cultivation of Narcotic Plant – Commercial Quantity – Crop sitter – Financial gain - Sophisticated grow house – Lowest in the chain - Imprisonment

Legislation Cited: s.72A Drugs, Poisons and Controlled Substances Act 1981

Cases Cited:Quy Nguyen v R [2017] VSCA 127 - Nguyen v The Queen [2019] VSCA 134 - R v D’Aloia [2006] VSCA 237 - Guden v The Queen [2010] VSCA 196 - R v Pidoto [2006] VSCA 185 - The Queen v McLeish (1982) 30 SASR 486

Sentence:Total effective sentence of three years imprisonment with a minimum term to be served before being eligible for parole of 2 years imprisonment. Declaration of 204 days of pre-sentence detention.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Singh	Office of Public Prosecutions
For the Accused	Mr C. Nikakis	Haines & Polites

HIS HONOUR:

1This plea was heard before this Court on 27 October 2020.  In addition, the Court has had put before it the matters relevant to the email sent to me today and the comments made by Mr Nikakis and the  reference to the most recent case that he has just made.  Firstly, I want to mark and note that this matter was heard, remotely, and I want to thank all involved, and most importantly, Mr Tran for cooperating in allowing that to take place during the crisis time that this Court has had or this community has had. Without people cooperating in such a manner this Court would not have been able to function so I do thank everyone in that instance. 

2Mr Van Tran pleaded guilty to the one charge in indictment No.L11104324. Ms Singh appeared on behalf of the Director, as she does today, and Mr Nikakis on behalf of Mr Van Tran, as he also does today. The offence on the indictment concerned cannabis found on 7 May 2020 at Ringwood. That cannabis being a commercial quantity pursuant to the provisions of the Act, the charge is pursuant to s.72A of the Drugs, Poisons and Controlled Substances Act of cultivate a narcotic plant, in this instance being cannabis.

3The weights involved and numbers are such that it is rendered as a commercial quantity by both measures, being that there were 85 kilos of cannabis whereby the qualifying figure is 25, hence over three times and insofar of the number of plants there was 106 being just over the qualifying figure.  There is no issue in the matters put forward in Exhibit A and agreed to by Mr Nikakis, on behalf of his client, as being the facts upon which I am to sentence Mr Tran.

4This crime was committed by Mr Tran for financial purposes.  Mr Tran suggests that he was to receive $5,000 for the work he would undertake to protect this sophisticated grow house which involved five rooms and a bypass of electricity. Mr Tran comes before the Court with no priors.  He comes before the Court to be sentenced, as accepted by the prosecution, for his role as a crop sitter. Based upon the observations that were made by the investigating police, of which I will make no further comments from what I did during the plea.  The best the Court can understand is that Mr Tran was indeed a crop sitter and committed the crime as I have indicated over a period of some two weeks.

5The pre-sentence detention served since his arrest is agreed, I understand at 204 days, is that correct.

6MR NIKAKIS:  That is correct, Your Honour.

7MS SINGH:  Yes, Your Honour.

8HIS HONOUR:  I have signed a disposal order in regard to the narcotic plant and some tablets found.  I accept that this was a plea made at the earliest time possible and it should be remarked that we are in November 2020 and this offending occurred in May of this year.  Insofar as the opening which I said was accepted by Mr Nikakis, also tendered were the photos of the premises, Exhibit B, and Exhibit C, tendered by the prosecutor a submission as to sentence.

9In particular, I take note of [11] and the reference made by the prosecutor to Quy Nguyen v R [2017] VSCA 127, [32] - [33]. There are additional paragraphs that are relevant to this sentence in that case, at [33], it was said:

'It was also open to the judge to form the view, that the maximum penalty of 25 years stipulated for the cultivation offence was informed by the need for general deterrence and that the prevalence of the form of offending involved in this case gave rise to greater sensitivity in this regard'.

10At [34] it was said:

'In particular, this was so because of the prevalent use of young persons with vulnerable immigration status to undertake the role of crop sitter or minder'.

11At [35], they continued:

'The consequential buffering from detection of the organisers or principals of the scheme was also correctly identified by the sentencing judge as an additional factor bearing on the importance of general deterrence'.

12And further at [36] the Court said:

'It follows that the characterisation of the appellant's role as that of a crop sitter does not of itself displace the need to look at the circumstances of the offending as a whole and to weigh competing sentencing considerations in determining an appropriate outcome'.

13Thinking again, given that this will be the only remarks recorded, I will confirm my concerns about this case, having just read out those comments from the Court of Appeal.  As I said during the plea, this Court is often hamstrung and I refer to the comments made by Judge Tinney in Nguyen v The Queen [2019] VSCA 134, [46] which went on appeal, that the Courts often have to sentence in a state of ‘unreality’. That unreality is caused, in my experience recently, generally by a failure of the investigators to properly investigate the crime scenes.

14This case is a classic example.  Having been alerted, no further investigation was done, which in my mind should have been done.  I have specifically asked Ms Singh, as I have specifically asked a number of prosecutors recently, to alert the Director, the police, and particularly the investigating squad appropriate to these matters, that the Court is not being appropriately served in these circumstances. In making such comments I do not under estimate the difficulties facing the police.

15I want to make it clear insofar as Mr Tran is concerned, all of those matters I have just referred to by way of general complaint as to the manner in which the Director, and in particular the investigators are serving these cases up to the Courts, does not reflect in any way upon Mr Tran, nor do I take such into account in his sentence.  I simply record my general unhappiness, if I put it that way. 

16Mr Nikakis, as to the role, while accepting that Mr Tran was a crop sitter, made a submission that really, given what Mr Tran was doing, he was even less than a sitter, because there was no direct evidence that he was actually tending the crop.  I do not know whether it is appropriate to be further defining roles, however, the fundamental point made by Mr Nikakis is that Mr Tran is certainly not a principal, I accept that.  I accept he has not priors.  I accept he has been cooperative.  I accept that Mr Tran’s plea has been made very early, that as such it is utilitarian and effects remorse and that he is entitled to the appropriate discount, which I will give as a result of such plea.

17Mr Nikakis submitted that it is low-end offending.  I do not accept that.  It is low-end offending in the sense that Mr Tran is an offender who is one of the lowest in the chain. I think that is exactly what was meant by Mr Nikakis, however, given the inherent seriousness of this offence, it cannot be seen as low-end offending, although one must sentence upon the role agreed by the parties. 

18I also accept that any period in gaol, not only on remand to date but in the short term one would hope, is going to be impacted by the effects of COVID-19.  There are currently lockdowns required which I understand is of half a day in all of the Correction institutions. There are restrictions of programs, total restriction of visitors and indeed ongoing risk of COVID-19 being passed within the prison.  I should say that risk is obviously very low given the excellent way the Corrections department has attacked this problem and, no evidence to date has emerged of any prisoner having been infected in prison. 

19I also accept that the principles of Guden v The Queen [2010] VSCA 196 are appropriate to this sentence. Mr Tran seems to have arrived as a married man, very shortly thereafter that marriage ceased, however, he became a permanent citizen in 2013. It is not my role to consider those circumstances, except to say that given the views of the current Minister, despite Mr Tran’s permanent residency being granted in 2013, there is clearly a grave risk of him being sent back to Vietnam as a result of this sentence. In that regard I do take into account the stress that that will create for Mr Tran whilst in gaol. And of course, no doubt, the stress brought about by the fact that Mr Tran will no longer be able to continue with his life in Australia.

20That brings me to the general relevance in sentencing of the structure of the Act itself.  The authorities of which the Court informs itself, begin firstly with R v Pidoto [2006] VSCA 185, [34], where four of the appeal justices in their joint judgment, noted the structure that Parliament had adopted is a hierarchy of seriousness defined by, and only by, the quantity of the drug that has been trafficked. We substitute the word cultivated in this case.

21Of course, circumstances of the cases I have been referred to are different to those here and obviously the difference here is, we are not dealing with a trafficking charge.  This case is clearly a cultivation case.  But the principles are still the same.  Again, at [62] in Pidoto the Court indicated that the ultimate question for a sentencing Court given such a structure is:

'It is not whether [in that case] trafficking in one drug is to be viewed more seriously than the trafficking of another but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed in dealing with the material itself'.

22Substitute in this case, the word in that quotation, cultivation for trafficking and as I have already remarked.

23Mr Tran, the maximum penalty in regard to your offence, given that it is a commercial quantity, is of significance in this sentence.  Further authority insofar as these sentences is concerned has been pronounced by Nette AJ as he then was, in R v D’Aloia [2006] VSCA 237, [56] which sets out the general approach of sentencing judges in these types of cases. I point out that His Honour was dealing with methamphetamine. However, he said as follows:

'As far as the effects of MDMA are concerned, the matter may still be approached in the basis that all of the drugs which are prescribed have  deleterious consequences of antisocial proportions and that trafficking [and I say substitute cultivation] in any of them is therefore appropriate to be regarded as a serious criminal offence'.

24As we discussed during the plea, and as I put to Mr Tran's counsel, albeit that it might be said that he is easy prey and his role was agreed, as a resident crop sitter, the fact is that anyone who performs any role in such a serious crime must suffer condign punishment.  This was pointed out in The Queen v McLeish (1982) 30 SASR 486, [492], when the Court spoke of the failure of Courts generally and the authorities to find the top persons, and how one should sentence recruits utilised, as Mr Tran has been in this crime. As I say, and I accept, in this case we are clearly dealing with a crop sitter or a minion. The following was said by the Court in McLeish:

'It seems to me to follow that after making all due allowance for the personal circumstances and antecedents of a prisoner, the facts of the particular case and the need to show such mercy as is compatible with the safety of the public, a Court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organisation for purveying drugs, as well as potential recruits, the simple truth that a man who participates in such an organisation at any level, and I stress, at any level, must expect and will receive a heavy penalty'.

25Now, as I have discussed this particular case, especially given, the weight and number of plants, is, subject to the influence of a recent decision which I discussed with counsel, of the Court of Appeal in Nguyen & Pham v The Queen [2018] VSCA 322, where for the cultivation of 182 plants I imposed six years gaol. Such was reduced to a period of three years and three months. That person was a crop sitter, which obviously presents a relevant guidepost to this case.

26The Court of Appeal in Nguyen & Pham referred to McClelland v R [2017] VSCA 124, a case which involved some 73 plants, where the original sentence imposed was five years with a minimum of three years. The sentence on appeal was reduced to three years and nine months with a minimum of two years and five months. Hence despite my inclination that sentencing for these crimes should be higher, one obviously has to follow the guidance given by the Court of Appeal and, I sentence accordingly.

27Mr Tran, you can remain where you are given the circumstances.  You will be convicted and sentenced to a period of imprisonment of three years.  The minimum period you are to serve before being eligible for parole is two years imprisonment. 

28The pre-sentence detention which will be recorded in the records of this Court and I declare, which has been served as part of this sentence, is a period of 204 days. 

29Can I indicate that had you not pleaded guilty in this matter, the sentence that I would have pronounced upon you, as I am required to tell you by Parliament, albeit it somewhat unrealistic, if I might put it that way, or somewhat difficult, it is a difficult assessment because the Court has to talk of one factor only, that is of your plea of guilty and none of the other factors that have been put on your behalf by Mr Nikakis. However, doing as best I can, the sentence I would have given you is not three years with a minimum of two but five years with a minimum of three and a half, had you not pleaded guilty.  Hence you will understand the benefit to you of your plea and no doubt the advice given by your counsel. 

30I have signed the disposal­ order.  Are there any other matters I need to attend to, Mr Nikakis or Madam Prosecutor?

31Thank you both for your assistance and good luck Mr Tran.

‑ ‑ ‑