Director of Public Prosecutions v Tran
[2020] VCC 1348
•27 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-01769
Indictment No: K10707141
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUNG VAN TRAN |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 August 2020 |
| DATE OF SENTENCE: | 27 August 2020 |
| CASE MAY BE CITED AS: | DPP v Tran |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1348 |
REASONS FOR SENTENCE
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Subject: Cultivation of cannabis. Just over commercial quantity by weight but non-commercial quantity charge. Residential premises converted into crophouse. 52 years of age, no relevant prior convictions. Profit was motivation. Not a crop sitter. Crop set up in wife’s recently purchased home. Developmental years significantly disadvantaged.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Webster | OPP |
| For the Accused | Mr D. Sala | James Dowsley & Associates |
HIS HONOUR:
1 Hung Van Tran, you have pleaded guilty to one charge of cultivation of cannabis as well as one charge of theft. Each charge is laid on a between dates period spanning the period from 1 November 2018 to 10 December 2018. The maximum penalty for this non-commercial quantity cultivation charge is
15 years’ imprisonment. The theft has a 10 year maximum term of imprisonment.
2 You were born on 1 January 1968, though that is likely an approximate date of birth. You are now around 52 years of age. You have one prior matter, it is a driving matter, and it is of no relevance at all to my task. So I will be referring to you really as a first offender in the course of my reasons.
3 Though born in Vietnam, you are an Australian citizen so the spectre of deportation does not hang over your head, as it often does in this sort of case. Let me just enquire very directly, I meant to yesterday. Mr Sala, there is no doubt about that. He is definitely an Australian citizen?
4 MR SALA: Yes, Your Honour.
5 HIS HONOUR: Yes, all right, thank you.
6 MR SALA: Thank you, Your Honour.
7 HIS HONOUR: The only reason I make that enquiry, as I meant to yesterday, Mr Tran, is that if you were not an Australian citizen you would have the risk of deportation at the end of any sentence potentially.
8 Ms Webster appeared on behalf of the Director of Public Prosecutions and opened the case to me yesterday in accordance with an amended summary of prosecution opening dated 25 August 2020. Your counsel, Mr Sala, advised the court that the written opening was agreed and so that opening was marked as Exhibit A.
9 In those circumstances, I see no need to set out the full factual basis of sentencing. It is contained in that agreed summary and I will not stray beyond the agreed facts. It is pretty straightforward.
10 Very briefly, this crop set up in your wife’s house in Wyndham Vale, came to light as a result of an aggravated burglary committed upon the premises on the evening of 10 December 2018. The masked burglars entered with machetes and you fled on foot. You reversed your car into the garage and presumably then left on foot before the police arrived. Some people in some of the neighbouring properties witnessed the event and rang the police. The police attended and found a sophisticated set-up in multiple rooms with 50 plants and numerous cuttings. All the usual array of material to conduct such a set-up: globes and lighting shrouds, transformers, power boards, fans and filters. Four bedrooms and a living space under cultivation. There was a bypass of the power meter, hence the theft charge. Your car was located in the garage. It had multiple cannabis cuttings in the boot and an HD mirror camera, the memory of which showed some of the times you had attended these premises.
11 The total weight of cannabis was 28.968 kilograms, which is over the commercial quantity threshold, but the Crown accept that you would not have known the precise weight, hence the non-commercial charge for which I must deal with you.
12 A warrant was executed upon your premises in Cairnlea on 23 January 2019. You were not there. You attended the police station a couple of months later in March, were arrested and made a no comment interview, as was your right. You were charged and bailed and have spent no time in custody. The plea was first listed in February of this year but was adjourned on your application to yesterday’s date to obtain a psychological report.
In Mitigation
13 Mr Sala appeared on your behalf and he conducted a thorough plea. He had prepared some impressive written submissions, which were marked as
Exhibit 1, which were very much a model of the way written plea submissions should be prepared. They made a number of sensible concessions.
14 Your counsel made submissions about the relative gravity of the offence and your role. To his credit, he had spent considerable time looking into your background. It was important, and he had perused some 200 pages in the files relating to Department of Health and Human Services' involvement. He was therefore in a superior position to place before the court the details of your personal background and made submissions as to your very favourable rehabilitative prospects. He placed before the court a report from Mr Newton. Also references from a past employer, Mr Peter O’Brien, and from Ms Bronia Witorz, who taught you English at a basic literacy program at the Collingwood Language Centre when you were 14. There were also references from your two daughters. Mr Sala called you to give evidence on the plea to explain how and why you became involved in this crime.
15 He relied upon a number of matters in mitigation including:
· your early guilty plea;
· the presence of remorse;
· your age and the absence of any relevant prior appearances;
· the disadvantaged developmental background you had experienced and your successful endeavours to rise above it over the last 30 plus years;
· an increased burden if imprisoned owing to:
(i) your understanding of your 16 year old son’s predicament;
(ii) the COVID-19 virus and the way that impacts upon prisoners in this State; and
(iii) your Post Traumatic Stress Disorder and the application of the fifth limb from the case of Verdins[1].
Your counsel conceded the seriousness of the offending and the importance of denunciation, punishment and general deterrence. He conceded that offending of this magnitude would ordinarily be rewarded with a prison term. However, he argued for a stand-alone community corrections order or, failing that, a prison term with release on to a community corrections order. The third and least preferred option was a prison term with a non-parole period being fixed.
[1][2007] VSCA 102
Prosecution
16 The prosecution argued that this was a serious example of cultivation simpliciter, owing to the amount, the sophisticated nature of the set-up and the fact that plainly you were not a mere crop sitter. They argued that your precise role was not entirely clear. Having seen you give evidence they suggested that you fell somewhere below that of being a principal (if I accepted that evidence) but were well above a crop sitter with the provision of the house and also a role in maintaining the crop. All of this for a reward. Though accepting there were matters in mitigation and accepting your significantly disadvantaged background had a role in the sentencing process, the Director of Public Prosecutions argued that a prison term was required here. The prosecution submitted that it would be open to order a prison term combined with a community corrections order, that is a combination type order. A prison term was required here, they argued, owing to the importance of punishment and denunciation as well as the high importance of general deterrence in this sort of case.
Background
17 I turn now then to your background. It is set out in quite some detail in
Mr Newton’s report as well as in your counsel’s written outline. The sad reality of it is spelt out in Ms Witorz’s excellent letter. I accept the personal background placed before me and see no need to set it all out. It makes for very grim reading. It was a disastrous upbringing actually and my abbreviated treatment of it in these reasons is only as a result of my acceptance of the submissions made as to the relevance of your background to my task as a sentencing judge.
18 Very briefly stated then, you were born in 1968 in Vietnam, so are 52 years old now. As I said earlier, the date of birth is likely an approximation. You are an Australian Citizen but the path to that status was a long and tortured one. You were born in South Vietnam and were one of eight children to poor parents involved in a subsistence existence. No formal education and given the timeframe and the country you lived in, much by way of trauma, calamity and the witnessing of carnage. So a disadvantaged and traumatic first phase of your life, without any doubt.
19 You fled Vietnam, seemingly placed aboard a boat by your mother. Now, there is reference to that occurring when you were either eight or twelve, and I asked about that issue. I wanted to know if there had been a large hiatus in a refugee camp. I was told there had not been and the reason there was reference to you being either eight or twelve is because of the uncertainty as to your actual chronological age. I was told that once you left Vietnam you arrived reasonably quickly in this country, with the distressed boat being rescued by the Australian Navy, and a short period in a refugee camp in Hong Kong. You arrived in Australia at the age of 12. You were alone. Again, there is that uncertainty as to your true age. It is easily possible you were younger. Whatever age you were, you arrived in this country knowing not a soul in this country or the language. So you then had accommodation in hostels and at one point down the track, admission to care as a ward of the State. You wound up being taken in by a family. That was when you were about 13 or 14. That was on one level an improvement but there was abuse of alcohol by the male head of that household. There was some violence and you ran away after 12 or 18 months. Then there was homelessness. That is spoken of in Ms Witorz's reference. There were periods in Turana and very much interrupted schooling throughout. The forms may say you attained Year 10 but that is not the reality. In short, you had no role models at all, no support, no structure, no safety net. No doubt your parents wanted you to survive, hence took such a desperate gamble, but your early years in no way prepared you for adult life.
20 So there is nothing much to like or envy in terms of that second phase of your life either.
21 It really would not have been too surprising if you had run right off the rails and offended as a teenager or young man. You did not. You are justifiably proud of a very decent employment record in a number of occupations with long term jobs, most recently as a traffic controller. Mr O’Brien’s reference is an excellent one, though it is written without knowledge of this matter. Sixteen years in one job and very well regarded in that job. You are proud also of a marriage which produced three children, two of whom are grown up and doing well in paid employment. You also have a 16 year old boy from that relationship. He is a student. The marriage failed in 2012 and you took on the principal carer’s role for your youngest child, as well as your former wife’s child, Viet. Viet is now 30 and is at home with your son, Jayden.
22 You remarried in 2014. That relationship has failed.
23 Ms Witorz has written a very impressive letter. She describes the person she first saw as teenager all those years ago at the literacy program and all she has seen since in the way you have developed. She speaks of the challenges that you faced. She speaks of seeing you take on the responsibilities as a parent more than adequately. Your two daughters speak highly of you and recognise the efforts you have taken as a low income worker to provide for them as well as supporting them in their journey to adulthood. To give them the things that I suppose were so notably lacking in your own formative years. So they know and appreciate the sacrifices you have made and recognise that you have instilled in them a strong work ethic, something you obviously do have yourself.
24 You have only one appearance before the courts and, as I have said, it is of no relevance to my task at all. I put it aside and deal with you as a first offender, one who calls in aid his past good character. Not just that, but to have those good efforts seen in light of the very significant disadvantage that undoubtedly was your sad lot in your developmental years.
25 No one would choose such a background. You had no say in it. It is just the way the cards fell for you and it was a very bad hand to be dealt. It was a background of dysfunction, trauma, disadvantage and distance from positive role models and you have not done too badly at all. In fact, up until this offending that I am dealing with, you had actually done very well. How then do I have regard to this background as a sentencing judge?
26 An offender’s individual circumstances will always be of importance. Your background was one of significant deprivation and disadvantage. It is never any answer to say that those events occurred all those years ago as they did. The effects of childhood deprivation do not diminish with the passage of time. The case law recognises that they leave their mark. Your background does not actually explain this offending in any way, but that is not to say that it is then permissible for me to then somehow disregard it. It is your background and I am, after all, sentencing you. It may explain a fair bit about the trajectory of your life. You were certainly not well equipped for adulthood and yet you have done pretty well.
27 There is no direct link or nexus between your background and the crimes you have committed, as there sometimes is. Here the crimes are said to arise out of financial need committed by a man who has, despite his background, established a decent and ordered life.
28 What the case law in this area makes clear is that it will always be matter of what weight to attribute to the evidence of a disadvantaged background. The cases stress that social disadvantage will not attract the same weight in every case or in the same way. Sometimes it might lead to reduction or even a substantial reduction in moral culpability and also sizeable reduction in the weight to be given to general and specific deterrence. Sometimes it might be enough to take it into account in a general way without those sizeable reductions. These things will be determined by the nature of the evidence. It will depend on the nature and the extent of the disadvantage, the nexus, if any, with the offending, but also the nature of the crime and the relative importance in a particular case of sentencing considerations, including deterrence, community protection and rehabilitation. See the case of Terrick[2]. It is clear from the case law that where there is a strong nexus between the background and the offending, then the mitigatory value will rise. See the case of Snow[3].
[2]DPP v Terrick [2009] VSCA 220 (“Terrick”)
[3]DPP v Snow (a pseudonym) [2020] VSCA 67 (“Snow”)
29 They will plainly be given much greater weight where there is a direct nexus. However, the Bugmy[4] principles you heard discussed do not depend on such a direct nexus.
[4]Bugmy v The Queen [2013] 249 CLR 571 (“Bugmy”)
30 I do not believe that there can be any significant reduction in your moral culpability on the Bugmy principles.
31 I will still give full weight to your background and act pursuant to the principles set out in cases such as Bugmy, Marrah[5], Snow and Terrick.
[5]Marrah v The Queen [2014] VSCA 119 (“Marrah”)
32 I accept that your disadvantaged background is something that can be taken into account in this case in the way urged upon me by your counsel. It also permits me to look at how well you have done from such modest beginnings and to consider the exercise of some level of mercy or leniency in this case. I think that is not an unreasonable approach.
33 I turn now then to the various other matters raised on your behalf.
Guilty Plea
34 The first of those is your guilty plea. You have pleaded guilty and at an early enough stage. The commercial quantity charge was withdrawn when you pleaded at the time of the committal mention. No witnesses were called. In those circumstances I will treat it as a very early plea and it must be adequately rewarded.
35 You have facilitated the course of justice. You have taken responsibility for your offending. There was no need for witnesses to be called. The community has, as a result, been spared the time, the cost and the effort of a committal hearing in the Magistrates' Court and a jury trial in this court. I take those matters into account in mitigation.
Remorse
36 Your counsel argues that you have a level of remorse. A guilty plea is often an indicator of some remorse but that is not always the position. Your guilty plea was entered at a very early opportunity but the case against you was a powerful one. I should say that does not reduce the weight I give to your plea. The level of that discount is not dependent upon whether I find the presence of remorse or not.
37 However, given the strength of the case against you, it is less easy to infer remorse from your plea. This was a calculated and serious crime committed over a between dates period. Mr Sala pointed to the guilty plea but also to your, ‘frank’, instructions and your expressed remorse to Mr Newton. Also to
Ms Witorz’s observations and those of your daughters. Up until your entry into the witness box, I had no real reason to question the presence of remorse in this case. Your evidence gave me some cause to question it, for as I will announce later, I was not that impressed by your evidence. However, I do not want to focus too heavily on your evidence. You were called at pretty short notice. I have the other materials suggesting remorse.
38 You do not need me to tell you that you have made an awful decision to be caught up in such serious offending but ultimately I do sense you are actually remorseful.
39 Ultimately, I am then prepared to find the presence of remorse here, and I take that into account in your favour.
Rehabilitation
40 Your counsel suggested you had excellent prospects of rehabilitation. He pointed to the absence of any relevant criminal history, your age and background and the demonstrated ability to work and to hold down a job. You had risen above adversity and would do so again. He relied upon your frank instructions and the presence of remorse. Also the impact of being arrested, charged and facing the outcome here in Court. It is true that those things all run in your favour other than perhaps your instructions to counsel and the evidence that you gave. Of course, you chose to commit an unmistakably serious crime here. It was not spontaneous or opportunistic but very deliberate. You were no silly teenager but a mature man making a very calculated decision. You said in your evidence that you knew you would be in significant trouble if caught.
41 I accept that all that has occurred to this point with your arrest and charges as well as the sentence I will impose, will have a salutary effect upon you. I find that you have very good prospects of rehabilitation and a low risk of reoffending in this way ever again.
42 I turn now then to the increased burden arguments that have been placed before me.
Increased Burden - COVID-19
43 I accept that the COVID-19 virus and the response to it by those running the prisons would increase any prison burden to some extent. It produces anxiety, tension and stress. It is impossible to know precisely how it will impact upon a prisoner in the future. There are some lockdowns but they are not across all prisons so I really cannot assume that they will apply to you into the future if imprisoned. Visits have already been suspended and so have some courses and programs. I cannot know how long those things will persist. It seems reasonable, though, in light of the state of disaster declared in this State, to conclude that it is highly unlikely that the prisons will return to a pre-COVID-19 setting in the short term. There will typically be more time in cells, less access to courses and programs and no in person visits. These things would increase your burden. So too the anxiety and stress and the inability to self-isolate or to meaningfully socially distance. Further, you would be isolated for 14 days upon reception, which is a tough initiation, especially for a first time prisoner. I accept that there would be an increased custodial burden in this case. I take that into account in mitigation.
Increased Burden - Distanced from Son
44 Quite aside from that, you would be serving a prison term in the knowledge that your 16 year old son is in the community and not falling under your protection. Now, I cannot take into account third party hardship unless the circumstances are exceptional, and Mr Sala conceded they were not exceptional here. Your son is at home. He has another adult in the house and two sisters who are in the community and who no doubt can step up to the plate to provide some support, if required.
45 However, I do not doubt that you will worry about your son’s predicament and that would make it tougher to serve a prison term and that increased burden upon you is something I can and do have regard to. You will not even be able to see him in person owing to the suspension of visits that I have spoken of earlier.
Increased Burden - Verdins Fifth Limb and Report of Mr Newton
46 I have already mentioned the report of Mr Newton. It is of use to me. He sets out the details of your background and his opinion as to the existence of post-traumatic stress disorder. You have no intellectual disability or inability to contemplate the seriousness of your conduct. You have an understandable concern as to the outcome of the proceedings. There is in that way an aspect of reactive anxiety. But that is in a setting of residual issues in terms of post-traumatic stress disorder. The anxiety you experience and the residual post-traumatic stress disorder will make it tougher for you to serve time in prison and I take that into account in the way urged upon me by Mr Sala. The fifth limb of the case of Verdins is enlivened here but it is not a particularly large matter in my task. I give it some weight. The report also comments on your treatment needs and the more limited treatment available in a custodial setting. It is a sensible and well-balanced report and I take it into account in the way asked of me by your counsel.
General Remarks
47 I have to consider the nature and the gravity of the offending. I must take into account the maximum penalty. It is 15 years for the cultivation as it is a non-commercial quantity charge that I am dealing with.
48 Here, you were no low level crop sitter. That much is conceded. You had a connection to this property. This was an unmistakably commercial set-up with four bedrooms and a living space under cultivation though, of course, I deal with you for a non-commercial charge. That is what you have pleaded guilty to. Hence the lesser maximum applies.
49 But it was essentially a cannabis crop house. It was obviously set up with reward in mind. There was a power bypass and related theft.
50 Everyone involved in this sort of crime at every level is doing so for a financial reward of some description. Sometimes there is need, sometimes greed. Sometimes a bit of each.
51 You gave an account to your counsel and to Mr Newton of your mother being sick and the need for quick money to send back to Vietnam. I flagged some of my concerns as to your instructions in that regard. This house was one purchased in July 2018 by your wife. I was told it was an investment property. She paid, it would seem, $520,000 for it, and though there was a mortgage in favour of Westpac, there must have been some equity. I was not told the extent of that equity, but it was not a setting highly suggestive of grave financial need, that is using your wife’s investment property to cultivate cannabis, owing to a financial need.
52 She would be one obvious person to turn to if there was a pressing financial need. Further, you have and had two daughters. They would surely be the next port of call, though I accept it is not an easy business making that sort of a request of your young daughters. Anyway, I flagged my concerns as to accepting your account. I say your account, but you had, of course, provided no account in the interview at all.
53 Your counsel chose to call you. You gave sworn evidence. It did not hang together that well and I am not going to work my way through it chapter and verse. You gave an account of meeting someone at a restaurant. A complete stranger to you happened to approach you and ask you whether you happened to know of any houses for rent. It just so happened that you had access to such a premises, your wife’s new house purchased a few months earlier. That had been purchased as an investment property and she needed a tenant. You said that she had no knowledge of what was going on inside the house, her house. You had learnt the intended scheme on that first night, as I understand your evidence.
54 She jumped at the offer of a tenant, you prepared a lease and leased it with your wife signing the lease and receiving $1600 to $1800 per calendar month by way of rent, paid in cash by that man Canh, to your wife.
55 You, and only you, it would seem on your account, knew that this mystery tenant, Canh, was going to set up a crop within the house. The lease was signed in person in front of your wife and there were two occasions in which the monthly rent was dropped off by way of cash by that man, a person who would want to make himself scarce. You were involved then in providing access to the property and to enable the set up by others. You provided, presumably, the keys. The crop was to be set up by others, you say, with you having no control as to the sort of damage that might be wreaked on the house, your wife’s house. Despite the active role played by these others, you were there to maintain the crop. All of your services in arranging the lease and then maintaining the crop were to be rewarded with the additional amount of $5,000. That is additional to the rent being paid by cash to your wife. You said that you were not involved in the set-up or the power bypass or ever there with anyone else, and when asked how you knew what to do, you said you received instructions by text as to what to do. This crop was raided by aggravated burglars on the night of
10 December. That is what brought you undone, and when the police turned up they found cannabis cuttings in the boot of your car. You said in your evidence that you rang the principal in the face of that aggravated burglary, this is with people entering with machetes, and he told you to put some cannabis in your boot and the police then arrived. You said that you were doing all of this as your mother had been sick and that there were some hospital bills. You needed quick money and yet your understanding was that the crop would take three or four months and you were not to be paid until the end.
56 That is all a very strange arrangement, if I may say so, and I do not accept many aspects of your account on the balance of probabilities.
57 Maybe your mother was sick but she had been for some time, as I understand it. Maybe you were wanting to send money back to her. You were the oldest son and had been in the habit of doing that over the years, but what was the actual financial pressure upon you? It is hard to see how this set-up could be done without the knowledge of your wife who was, after all, the owner of the house. The suggestion that you would just surrender the premises to a complete stranger, one who was going to set up and convert the house into a crop house in your wife’s house without your wife having a say in that, is just not realistic, in my judgement. Mr Canh would wish to be a spirit in the night, known only to you and yet he was present in your wife’s company, signing the lease and paying the cash. You say that you had concerns about asking her for the sum needed for your mother, of not wanting to be a burden. What about the burden imposed on an uninvolved owner learning of the damage committed upon her new investment property? I do not accept your account in many of the key areas. I am not here to sentence your wife, she is not charged. The charges were withdrawn. She may be quite lucky in that regard. I suspect that she must have had some understanding of what was to take place in the house.
58 I am not able to find against you that you have set up the crop yourself or established the bypass. Nor am I prepared to find that you are at the very top of the hierarchy. I do not find that you are the principal here. I am at least prepared to find that you were acting in an arrangement with another but that is about all I can accept from your account. I am, for instance, unable to reach any conclusion as to how much you were actually going to be paid other than being very confident indeed that it was more than $5,000. I do not accept your account on that score to the requisite degree.
59 In a way, I wish you had not been called. It is one thing to not accept instructions to your counsel urged upon the court. It happens all the time. It is quite another to have an accused called, give sworn evidence and for a judge not to fully accept the sworn account provided, which is regrettably the position I find myself in here. However, I do not want my rejection of aspects of your account to overshadow the matters in mitigation and, after all, even before calling you, your counsel was conceding the seriousness of this cultivation.
60 The case law makes it clear that it is best not to get too caught up on terminology and trying to place an offender into a particular category, for instance, principal. It is more profitable to examine what you actually did. Even on your own version, you have totally facilitated the establishment of a sophisticated crop by having dealings with the principal, providing the house, having a dummy lease, lying to your wife about the nature of the tenant and then maintaining a sizeable crop, all of this for profit. There is not a lot of mitigation lurking in that account actually, but ultimately I am not satisfied of your account on the balance of probabilities. You are franker than some, asserting the profit motive here and lack of drug use as an explanation but I am not satisfied you have been fully frank in your account given to the Court. You may well, of course, be shielding your wife, which is perfectly understandable. As I said earlier when dealing with remorse, I do not let your account to me and my rejection of it expunge remorse, as it so easily could have done.
61 Back then to your crimes. You were taking a calculated risk. You must have weighed up the risks. It would seem that you did, as you said that you knew you would be in significant trouble if caught. Well, you were right. You are.
62 I have no doubt at all that you knew that you were embarking upon a very serious crime, doing so for money. It is just that simple. What a gamble you took.
63 You do not fall to be sentenced for commercial quantity cultivation but as far as I am concerned, given the set-up and scale, and your role, this is a high enough level example of simpliciter cultivation. How can it not be? See the case of Kennedyv The Queen [2019] VSCA 127 (“Kennedy”).
64 Your culpability was high enough. It was an obviously professional set-up and that would be obvious to you the first time you set eyes on the converted house. You were not some lowly crop sitter being paid a pittance to tend the crop and assume the risk, as often enough is the position.
65 This cultivation carries a maximum term of 15 years’ imprisonment. The theft a 10 year maximum, and I must pay regard to the maximum sentences.
66 Sentencing is never an easy task and that is because it typically involves the balancing of a number of purposes. So punishment, rehabilitation, deterrence of you and of others, denunciation of your crime and community protection. Each case will have differing weight attached to the sentencing purposes and that is because each crime and each offender is unique. Your background, for instance, is quite unique.
67 I must take into account your prospects of rehabilitation and I believe they are very good. If I just focused on rehabilitation, then sentencing would be so much easier than it is but I am trusted as a judge to look to the other purposes as well. To give them adequate weight in all the circumstances of the case.
68 Punishment is an important sentencing purpose for these crimes, the cultivation in particular.
69 Denunciation is also important.
70 This brings me to deterrence. Deterring you and others. Specific deterrence relates to the need to deter you from future offending. Though obviously of at least some relevance to my task, it would make no sense to give it the same weight as it would be given in a different case where, for instance, an offender has highly relevant criminal prior history, or a history of disobedience to Court orders, or demonstrably less favourable prospects of rehabilitation. You have very good prospects into the future and, in my view, a low risk of reoffending in this way again, and so it just stands to reason there can be some significant moderation of specific deterrence and, for that matter, community protection in this case. Mr Sala conceded that I cannot ignore either of these purposes, that they each must be given some weight. He is right. Plainly each purpose would be given far more weight if I found less favourable prospects of rehabilitation and a greater risk of re-offending. So I believe there can be some significant moderation of those two purposes and I do not understand the Crown to challenge that suggestion.
71 General deterrence is, though, in a quite different position. There is no basis to greatly moderate the weight given to this purpose. Indeed, it is an important purpose of sentencing in a case such as this. Again, that is conceded. The message must be sent to other people not to engage in this sort of crime at any level or for any reason. I am speaking here of the cannabis cultivation obviously. Likeminded potential future offenders must be deterred. There are plenty of them out there, as this is unmistakably a prevalent crime, as was directly conceded by Mr Sala.
72 Those who choose to engage in this activity are always taking some form of calculated risk, as you were. That risk is always taken on because of the hope of some financial reward. Sometimes there are debts. Sometimes there is just the hope of gain. Sometimes there is need. Sometimes just the taking of a shortcut out of greed.
73 This is a common enough crime and is always motivated by the hope of financial gain. The Courts must send out a loud message to others in an endeavour to have those others perhaps reconsider their position. To not be seduced by the lure of what appears to be easy money. People must understand that whatever their motivation, with that potential reward comes a significant and a real risk of detection, of prosecution, and then the likelihood of the imposition of a significant sentence, often enough a sizeable term of imprisonment. That message must be conveyed by the sentences imposed by the Courts. The need for general deterrence is important here.
Current Sentencing Practice
74 I must take into account current sentencing practices, though it is not a single controlling factor. It is only one of the many matters that I must take into account.
75 I have looked at the Sentencing Advisory Council’s Sentencing Snapshot
No. 246 of 2020 for the offence of non-commercial cultivation. It relates to the sentences imposed in the higher courts in the period from 2014/15 to 2018/19. It discloses that not many cases are dealt with in the higher courts. Very often cases dealt with in the higher courts involve a committal to this Court on a commercial quantity charge but then some resolution of the matter on a lesser basis as happened here. The snapshot discloses that not every person was sent to prison. It also discloses an average prison term of 18 months where prison was selected in the year from 2018/19, with sentences spanning the period of less than a year to between four to five years over the full period covered by the Snapshot.
76 I have also looked at some of the material held at the Judicial College of Victoria new sentencing manual, including the non-commercial cultivation sentences dealt with in the Court of Appeal, referred to at 7.7.1.1.
77 I have looked at the case of Kennedy to which I referred earlier. Plainly, it was a more serious example of cultivation by a man with relevant history, so the actual sentencing outcome is not what is important. The matters of principle spoken of are of importance. See paragraphs [44], [45], [46], [47], [54] and [55].
78 There is little point looking at statistics for theft as the offence of theft covers a multitude of settings.
79 I acknowledge that statistics have inherent limitations. So for that matter do other examples of sentences which have been passed. Every crime is different and so too is every offender. There is no such thing as one correct sentence. The statistics do not contain any of the unique features in mitigation and aggravation. They are just numbers and it is not my job to select some statistical measure and, for instance, to sentence you on the basis of the most common or the average sentence disclosed in the statistics. I am exercising a sentencing discretion and must sentence you for your crimes, taking into account the unique features of this case. Your case, your background, your crimes.
80 It is as clear as day, though, from the very many cases in this area that cultivation of cannabis is a serious and prevalent crime. That is not dependent upon a commercial quantity being achieved and alleged. I remind you, cultivation of a non-commercial quantity, as here, carries a 15 year maximum term, and this is a serious enough example of it. It is a quantitative based regime. Such an offence could relate to a single plant or to an unsophisticated, non-hydroponic outdoor set-up with no commercial aspect at all. That is not what I am dealing with. This was clearly a professional undertaking, four rooms and a living area under cultivation in a between dates, sophisticated set-up with power bypass and with pure profit the motivation. It plainly is high end in terms of quantity, as it actually exceeds the threshold for commercial quantity by weight. That is a matter of fact, though I repeat that, of course, I am sentencing you for non-commercial cultivation with that the lower maximum penalty. But that case of Kennedy refers to the relevance of the quantity of the plant by number or weight and the sophistication of the set-up. Those things speak of the nature and the dimension of the enterprise.
Totality
81 I take into account the principle of totality. I have considered the overall effect of the sentences imposed by me to ensure that it is commensurate with your overall offending. I have taken a last look at the sentences to avoid imposing a crushing outcome. There must be some cumulation here as between the sentences. There are many cases which spell out that need and it is not seriously in dispute here at all. Indeed it was reaffirmed in that case of Kennedy[6]. Obviously though, there is the very strong relationship between the two charges.
[6] Ibid at paragraph [46]
82 Now, Mr Sala was arguing that a standalone Community Corrections Order was open here. So an outcome where there was not one day of prison to be served by you. He conceded that it would be a lenient outcome but that it was open in all the circumstances. That it would permit you to continue looking after your son, and though a merciful outcome, it would sufficiently reflect the hardships experienced by you in your early days and adequately recognise your very difficult background, the efforts you have made, and your favourable prospects of rehabilitation.
83 Prison is a disposition of last resort. Mr Sala was arguing then that a suitably conditioned Community Corrections Order on its own might achieve all the purposes of sentencing here. The Director of Public Prosecutions challenged the availability of such an outcome and said that prison was warranted here. The prosecution submitted that a prison term in conjunction with a Community Corrections Order would fall within my sentencing discretion.
84 Well, those are just the arguments of the parties as to the sentence that might be imposed. They do not bind me. I take them into account as I take into account all the matters raised before me but I have to then exercise my own sentencing discretion as the Judge in this case.
85 I have had you assessed for your suitability for a Community Corrections Order and you are judged to be suitable and to have a medium risk of reoffending. Your suitability for such an order does not in any way surprise me. I would have been surprised if you had been judged unsuitable.
86 I told you yesterday that you should take no comfort at all from the fact of the assessment being undertaken.
87 I said that I wanted to re-read all of the materials. I made it plain that my calling for the report did not signify that I would necessarily release you on such an order and that being sent to prison was a real risk here, either in combination with a Community Corrections Order or with a non-parole period being fixed. Though a standalone Community Corrections Order seemed an extremely unlikely outcome, because I could not then positively rule it out, I extended your bail and I did have you assessed. Unless poor performance on bail requires it, as a matter of practice, I never remand a person in custody if there is any possibility of prison being altogether avoided.
88 The case of Boulton[7], which was obliquely referred to by Mr Sala towards the end of the plea, does not, and never did, stand for the proposition that every offender for every crime can or should be admitted to a Community Corrections Order either on its own, or in combination with a prison term.
[7]Boulton v The Queen [2014] VSCA 342 (“Boulton”)
89 If a suitably conditioned Community Corrections Order would achieve all the purposes of sentencing in this case, then I would be required to proceed in such a way or at least in a way not involving confinement.
90 Section 5(4C) of the Sentencing Act 1991 is the provision spelling out that prison is a disposition of last resort. If confinement is not required to achieve the purposes of sentencing then it simply must not be selected. That is very simple. That is because we as Judges must never select a sentencing outcome that is more onerous than is required to achieve the purposes of sentencing in the given case.
91 Sending a person to prison really is a disposition of last resort. Dealing with first time offenders who have committed serious offences is one of, if not the hardest, sentencing tasks which a Judge must perform. If all I was required to have regard to was your rehabilitation, well, as I have said, sentencing would be easy enough, but that is not the only sentencing purpose here.
92 Generally speaking, the more serious the crime, the less weight can be given to rehabilitation. The cultivation was a serious and calculated crime. There are some obvious tensions in play in this case as between rehabilitation on the one hand and general deterrence on the other. Your rehabilitation must surrender some ground to general deterrence, punishment and denunciation in this case.
93 The Court of Appeal in the case of Boulton referred to by your counsel suggested that judges ask the following question:
'Given that a community corrections order could be imposed for a period of years with conditions attached, which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?'[8]
[8] Ibid at [121]
94 Well, the answer, regrettably in your case, is yes. Prison is unavoidable here. I do not believe that a standalone Community Corrections Order for this serious offending is available to me in the sound exercise of my sentencing discretion.
95 Such an outcome could not achieve the various purposes of sentencing. General deterrence is, as I have said, a significant sentencing purpose for the cultivation offence and it would not be adequately recognised by such an outcome. Nor would the need for punishment or denunciation. I should make plain, I made it plain earlier in discussions with the parties, that this decision is not influenced in any way by the current stance taken by Corrections as to unpaid work. The current suspension would in no way impede me from imposing unpaid work as a condition of a lengthy Community Corrections Order.
96 I must impose an appropriate sentence and I believe that the only appropriate sentence in this case involves sending you to prison for a period.
97 The question then is the duration of that prison term and whether it permits me to combine it with a Community Corrections Order. I must say my provisional view was that a combination type order was a most unlikely outcome. You had no pre-sentence detention to call upon and it was, as was conceded, a serious instance of cultivation. My provisional view as I left the Bench was that it was far more likely that you would come away from this case with a head sentence requiring the fixing of a non-parole period.
98 Well, provisional views are just that. They are provisional. They are not fixed and they can change and mine has, upon rereading the materials, as I did late into the night. I kept coming back to your background and your efforts. To
Ms Witorz’s letter. To your eldest daughter’s letter. I can tell you, it is your background that I pay particular regard to. A background where you have really never been given much. One where you worked against the odds. You have done your best to rise above your background for so many years, something which causes me to exercise a level of leniency in this case.
99 I believe then that owing to the various matters in mitigation, it is open to admit you to a suitably conditioned Community Corrections Order to take effect upon your release from prison. In this way, I will provide for your guaranteed release. That will probably not seem much to you now as you learn that you are going to prison. You will soon enough learn how much better it is to have that guaranteed release mechanism. You will have some certainty in your life. So will your son. You and your family can plan for your release. Your release will not be dependent on the Adult Parole Board making a judgement in your case. You will just be released at the lapse of this sentence and will know soon enough your precise release date. A circle can be placed around a date in the calendar.
100 I can, in this way, significantly limit your exposure to prison. Significantly reduce the time away from your family. Prison will not be easy for you at all. You have expressed a fear of it. It is not a good time to be sending any person to prison, much less a first offender and one with a history of post-traumatic stress disorder and anxiety, as you have. I can significantly shorten your exposure to prison whilst providing for your treatment, rehabilitation and ongoing punishment in a much less punitive and damaging setting, upon your ultimate release, in the not too distant future. I believe when regard is had to the horrible background you had in those first two phases of your life and your very decent efforts to overcome it over the next 30 years of your life, that there can and should be a level or mercy or leniency brought to bear in this case.
101 Whilst I do not accept that a community corrections order on its own can pay sufficient weight to the need to punish you, deter others and to denounce your conduct. I believe that the term of imprisonment that I propose in conjunction with a suitably conditioned Community Corrections Order can achieve these various purposes.
102 Now, before pronouncing sentence, I should say this. It is possible that the sentence imposed in this case may be used in other cases by other legal practitioners as indicative of the sort of disposition or sentencing outcome generally open for this style of cultivation. It is not. But for that quite unique background which was so appropriately researched and placed before me by Mr Sala and your legal team, let me make it very plain to you and to any others that might be reading these reasons, that for offending as serious as this, I would have imposed a head sentence of a dimension where I was required as a matter of law to fix a non-parole period. That is to say a head sentence north of two years' imprisonment.
Ancillary Orders - Compensation
103 There are two ancillary orders that I am asked to sign. There is no issue taken with either of these orders. The first of them is a compensation order relating to the theft of electricity. Again, there is no opposition to the making of this order. I am satisfied that on convicting you of the charge of theft of electricity that there has been the loss referred to and that it is appropriate to make the order under the provisions of s.86 of the Sentencing Act1991 that you pay to Origin Energy, at the address on the document, the sum of $4,261.26. I have signed that formal order.
Ancillary Orders – Forfeiture/Disposal
104 Secondly, there is an order sought under the provisions of s.78 of the Confiscations Act 1997 relating to an application to forfeit and dispose of the cannabis. There is no issue taken with that, of course. I order, pursuant to the relevant provisions of the Act the forfeiture to the State of that property and I direct that it be handled and dealt with in the manner contemplated by the signed order. So I pronounce that as well.
105 I am going to have you remain seated in the circumstances. I am sorry that I have taken so long getting to this point in my sentencing remarks. It is now time for me to actually pass the formal sentence of the Court.
Sentence
106 In the circumstances then, what I am going to do is I am going to pass an aggregate prison sentence in relation to Charge 1 and Charge 2, and that is because, of course, the prison term is only part of the sentence of the Court in relation to each of those charges.
107 On Charge 1 and 2 on the indictment, so cultivation of cannabis and theft of electricity, you are convicted and sentenced to an aggregate of seven months' imprisonment.
Community Corrections Order
108 In addition, on those same two charges, I am going to convict and admit you to a Community Corrections Order. It is for a period of two and a half years. That order will commence upon your release from custody in approximately seven months from today.
109 I say approximately, as it is possible that there may be some allowances made by way of emergency management days for the disruption brought about by the COVID-19 virus. I cannot, and do not, take that into account but I only mention it now to make clear that this Community Corrections Order will take effect at the time of your release from prison, whenever that is. We know that it cannot be longer than seven months but there is always the possibility of there being some emergency management days declared.
110 Now, I have to explain the community corrections order in some level of detail, because I can only place you on this order if you consent to it. My practice is to go through these matters in some detail to understand myself that you are giving informed consent. I will give you a chance at the end of my explanation to have a chat to Mr Sala to make sure that you understand what it all involves and for me to be satisfied that you consent to this order.
111 The last thing I want to do is to place someone on an order such as this and have them back by way of breach and have them say to me when they come back by way of breach, 'I didn't know what could happen'. You will know because I am explaining it to you right now. So there is the term of seven months' imprisonment which you will have to serve and then you will be released on this order and, as I say, it will commence upon the completion of your term of imprisonment. Your obligation will be to report to Corrections upon your release and to do so within two working days of your release. So that when you are released report to Corrections.
112 At the moment those reports are being done by way of phone. So there is a phone number on the document, I believe, and that will be the number that you are to ring. They will then give you instructions. By that stage of course, COVID-19 might be a distant memory and you might be told to get down to the office at Werribee. The address is on the document. You will get a copy of this. So it is an order that runs for two and a half years from the date of your release.
Mandatory Terms
113 These orders have mandatory terms. These things have been explained to you, as I understand it from the assessment report, and I understand from the report that you consent to it being made, but I still need to satisfy myself that you understand. So the mandatory terms. They apply to every person who gets one of these orders. They apply to you because you are getting one of these orders.
114 The first of them is this:
· you must not commit another offence for which you could be imprisoned in the period that the order is in force. So it will be in force for two and a half years upon your release. You stay out of trouble, you do not commit any crimes. That should not be a problem for you. It has not been a problem for your whole life really. So you stay out of trouble. If you commit any offence which could be punished by a term of imprisonment, and that is virtually every offence actually and every criminal offence, then you will breach this order. That is not dependent upon a Magistrate sending you to prison for a fresh offence. If you went and committed - I am not suggesting you are going to do it but if you went and stole a Freddo Frog worth 30 cents that is a charge of theft. No Magistrate in their right mind would lock someone up for that, but a charge of theft would breach this order. So would a charge of possession of drugs. Obviously cultivation would as well. So you stay out of trouble. Pretty straightforward;
· you have to comply with your obligations under the Sentencing Regulations and that really relates to your need to turn up totally unaffected by drugs or alcohol or any substances, turning up on time and in a fit state to comply with any aspect of the order;
· you have to report to and receive visits from the Community Corrections officer. As I have said, you have to report within two clear working days of the order starting, by phone initially, within two days of your release;
· you have to let them know within two clear working days of changing your address or job, right. Now, you are not a person who has been flitting around the community, moving from house to house, and you have been pretty stable in terms of your jobs. Just let them know. Keep them up to date in terms of where you are living, where you are working. If there is any change, get on the phone immediately. Let them know. Do not just move and not tell them or you will be in breach of this order;
· you must not leave Victoria without first getting permission to do so. So that is for the period of this order. Well, at the moment no one can leave Victoria but if you get up and just leave the State you will breach the order. If there is some good reason you need to travel, maybe there is a holiday you want to go on with your son or something like that, I am not saying they will not give you permission, maybe they will, but if you just get up and leave you will breach the order. If you are doing well on the order and you are ticking all the boxes, I do not doubt that they would give you leave then to go for a holiday or something like that, but do not just get up and leave;
· Finally, you have to obey all their lawful instructions.
So they are the mandatory terms. Breach any of those, you breach the order.
Tailored conditions
115 Then there are the tailored conditions that I apply, both for your purposes, for the purposes of your treatment and rehabilitation, but also, obviously, to reflect the various other purposes of sentencing. One unmistakably punitive condition that ordinarily exists, unpaid work. I have considered whether I should impose it. Corrections recommend against that. That is not the reason why I am not imposing it. I am not imposing it because there is a decent punitive component in sending you to prison in the way that I am. What I want you to do is to get out of prison and not to have to deal with unpaid work but to deal with your other obligations under this order. So I am not going to impose unpaid work, which is an unusual thing for me in the setting of this sort of order, but there will be no unpaid work.
116 I am going to have you, under supervision of Corrections, for the period of the order, so they will be working out a supervision regime. They will say turn up at whatever time. You just turn up, right? It is not that difficult but you have to turn up when they tell you to turn up.
117 Then there are going to be treatment and rehabilitation conditions. One of them is - it does not seem to really arise from the materials, but it is connected up to your connection to a crop house and Corrections' concerns about that. I am going to impose the drug assessment and treatment and testing condition. So you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager, and you must undergo any mental health assessment and treatment as directed. It is a longer provision than that but I do not need to go through the full wording of it.
118 So I do not know what they are going to ask you to do in terms of the drug assessment and treatment. Maybe not that much, but whatever they ask you to do, you do. I do not know what they are going to recommend you do in terms of the mental health assessment and treatment. They have got the report from Dr Newton. Again, whatever they say, that is what you have to do.
119 That is the full suite of mandatory terms and tailored conditions. So as I say, no unpaid work. You serve this term of imprisonment. You get out on this order. It is still a punitive order because if you breach it you come back to court and you still have to do things under the order, but there is no unpaid work.
120 You have not had one of those orders before. You really have only been to court on that one occasion for something of no relevance at all to this task. So you have no understanding as to how these things are breached. I do. I have seen them breached all the time.
121 You need to form a decent relationship with your Community Corrections officer. That is the best way of avoiding breaching this order. Treat them respectfully and they will treat you respectfully. If you have got some particular reason why you cannot turn up for some component of the order, it may be there is an appointment made on a particular day, maybe you have got to go to a parent/teacher night or afternoon for your son at school, maybe there is some work commitment, there might be some good reason why you cannot actually turn up for supervision or for treatment. Get on the phone. Ring them there and then. In advance if you can, but if it is something that crops up on the day, ring them there and then. Do not just do what so many people do and do nothing and then bob up three months later saying, 'Oh, well, the reason I did not turn up on that occasion three months ago was because'. That will never pass muster. So treat them decently. They will treat you decently.
122 If you are having issues, any mental health issues, the anxiety is causing you strife, seek assistance from them. They will give you a direction. They might be able to put you in contact with someone to treat you, get a mental health plan and the like. So, you know, that is something that you can actually usefully achieve out of this sort of order.
123 So how are you best to comply? Well, the best way to view this order is the way that most people do not view it.
124 You are going to prison. That is an unhappy outcome for you. You were hoping you would not have to, that you might scoot away from court with a standalone order. Well, that is not happening. It is simply not open to me to deal with you in that way. You have to serve that term. I have had people who I have put on these combination type orders who in a way, then get out of prison and they resent being on the order. They ask why am I on the order? I went to prison, and the answer, of course, is this. They would have gone to prison for much longer but for the fact that there is this combination order, and that is the position with you.
125 So do not think this case is finished because it is not. You will have served seven months. You will get out of prison. That will be automatic and then you will have this order for the next two and a half years. So this case will be finished if, in two and a half years, you have complied with this order. If you have not, I can assure you, it will not be finished. We will meet again, and that is because breaching one of these orders is itself a criminal offence. You breach it by breaching any of those mandatory terms. If you commit any crimes you are going to breach it. Commit any other breach of any of those mandatory terms, do not turn up for supervision, do not turn up for reporting, leave the State, all those things that I have mentioned, you will breach the order, and breaching an order is itself a criminal offence. It is punishable by up to three months' imprisonment, but that is not the real sting. If you breach this order you get brought back to court for breaching it, and you get brought back not to the Magistrates' Court, not just to this court, you get brought back in front of the same judge. In front of me.
126 So I would be coming on to the Bench, I would have my sentencing remarks that I am referring to now. I would have the book that I have made the various notes in. I would have the various documents that have been provided, the various judgments I have made about your prospects of rehabilitation, and I will then hear what is said on your behalf on the breach.
127 You do not want to see me again. You do not want to meet me again in a court. I do not want to see you again. Regrettably, I have to send you to prison but my hope is that you will serve that relatively brief term of imprisonment, emerge on this Community Corrections Order and move forward in the way that you have previously lived your life, with the exception of these events, of not breaching this order. But if you breach the order, you will come back before me. I cannot tell you exactly what I would do if I see you again by way of breach. How could I? I would need to know how you had gone on the order, I would need to know the nature of the breach. Was it a breach by offence? Was it a breach by non-compliance? Was it something that was relatively trivial? Was it something that was actually serious? Had you made efforts on the order? Had you made no efforts? Had you defied it? Had you complied with it? How could I know now? I could not.
128 I hope I do not see you but I would need to listen to what was said on your behalf at the time of any breach proceeding and then make a judgment as to what I could do, but I tell you out of an abundance of caution and to be fair to you, work on the theory that - because this is the truth, there are very limited options open to a court for someone who breaches one of these orders. The most commonly exercised option, the thing that judges most commonly do when a person comes back by way of breaching the order is to cancel it, and if I cancel this order you will find yourself back in the dock of the court. If a Judge cancels the order, that Judge then has to re-sentence for these same two offences, taking into account the extent of the compliance with the order.
129 As I say, I cannot say exactly where that would land you but, really, what you should do is work on this theory, on this hypothesis; if you breach this order do not expect that you can come along to court and get a second such order. You should expect that if you breach this order that I will re-sentence you, that I will cancel the order, and it is most likely that you would be then re-sentenced to a term of imprisonment with a head sentence and with a non-parole period. So that is what you should factor in. So if at any stage in the next two and a half years beyond your release from custody you start wondering whether you really need to comply with the order, just remember those words. If you breach it, your expectation should be that you will be sent back to prison, and you can avoid that just by complying with this order upon your release.
130 All right. Let me just - Mr Sala, I have spent a long, long time going through all that. Do you want to go down and have a chat to your client?
131 MR SALA: I will do it while he signs it, Your Honour.
132 HIS HONOUR: Well, maybe just do it before then.
133 MR SALA: Sure.
134 HIS HONOUR: So just make sure he understands. If he has got any questions this is the time. I have got to be satisfied that he consents.
135 MR SALA: Excuse me for a moment.
136 HIS HONOUR: Yes, of course, yes.
137 MR SALA: No issue there, Your Honour.
138 HIS HONOUR: All right. Look, I might have the order brought down to you then. If you can have it and sign it if you would. We will have copies made of it obviously, yes.
139 MR SALA: Thank you.
140 HIS HONOUR: All right. Mr Tran, could you just stand up just briefly, please? Do you confirm then that you have signed this order?
141 ACCUSED: Yes, I did.
142 HIS HONOUR: All right, and you consent to this Community Corrections Order?
143 ACCUSED: Yes, sir.
144 HIS HONOUR: And you understand what it involves?
145 ACCUSED: Yes, I do.
146 HIS HONOUR: Yes all right. Look, I have signed that myself. I will have a copy of that run off and that will be then available to you. Grab a seat again then, thank you.
Section 18 pre-sentence detention
147 There is no pre-sentence detention to declare in this case at all, is there?
148 MR SALA: No.
Section 6AAA
149 HIS HONOUR: I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences I would have convicted and sentenced you to four years' imprisonment. I would have fixed a non-parole period of two and a half years if you had pleaded not guilty and been found guilty.
150 Let me just see if there are any other matters from either of you. Anything I have overlooked or - - -
151 MR SALA: No, nothing.
152 HIS HONOUR: What about custody matters? Are the any matters you want me to raise, Mr Sala?
153 MR SALA: There is nothing that leaps out. The PTSD issue does not form itself into a custody matter issue in my experience, Your Honour.
154 HIS HONOUR: Yes. Let me just have a look at it. All right. The Adult Parole Board will be sent the report of Mr Newton. Look, it is a matter for you as to whether you want me to alert them to his post-traumatic stress disorder or not really.
155 MR SALA: No, Your Honour.
156 HIS HONOUR: No, you do not. All right. Do you want me to mention this is his first time in custody or not?
157 MR SALA: I mean certainly, Your Honour, there is no issue with that. I understand that that - there is no issue with that.
158 HIS HONOUR: It is really - it is what you want me to do. I mean I am not going to - I am happy to do that. I am happy to refer to his having post-traumatic stress disorder and to see the report of Newton, or happy to do none of those things. What do you want?
159 MR SALA: None of those things are called for in this instance, Your Honour.
160 HIS HONOUR: But just the first time in custody.
161 MR SALA: Yes, Your Honour.
162 HIS HONOUR: All right. I will have endorsed it is his first time in custody and to take all care, all right. Well, he is going into custody for the first time and you will go down and see him downstairs anyway.
163 MR SALA: I have just been told I can.
164 HIS HONOUR: You can, all right.
165 MR SALA: So I shall take that opportunity.
166 HIS HONOUR: So you will have to try - and I do not know how it is done these days. I can remember these discussions myself but it is a bit harder at the moment because there are no visits, so how people get on any sort of roster so they can actually even have video conferencing calls. Do you know any of that sort of detail?
167 MR SALA: Are you talking about professionals, Your Honour or personal?
168 HIS HONOUR: Yes. Well, no, no, no, family and the like.
169 MR SALA: The prison phone system is still operating in its traditional fashion.
170 HIS HONOUR: Yes.
171 MR SALA: And I will be speaking to Mr Tran about that.
172 HIS HONOUR: About all of that.
173 MR SALA: Yes, yes.
174 HIS HONOUR: That is all right. All right, that is - just as long as they know. They do not have any idea about any of these things, so you will take them through that as far as you can.
175 MR SALA: Yes, Your Honour.
176 HIS HONOUR: Yes, all right. All right, well, I will sign the formal order. Let us have a look at it. I have signed that formal order then, so thanks very much each of you for your efforts. So, Mr Tran, you will be taken downstairs now and Mr Sala will come down and have a chat to you about what has occurred, all right?
177 ACCUSED: (Indistinct words).
178 HIS HONOUR: Yes, all right.
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