Director of Public Prosecutions v Tran
[2020] VCC 522
•30 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-19-01983
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN NHAT TRAN |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2020 | |
DATE OF SENTENCE: | 30 April 2020 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 522 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Guilty plea – One charge of cultivation of a narcotic plant – One charge of possession of counterfeit money – 84 cannabis plants located – Limited role – No prior criminal history – Very strong prospects of rehabilitation – Offender faced prospect of deportation – COVID-19 custody regime taken into account.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Crimes (Currency) Act 1981 (Cth); Sentencing Act 1991.
Cases Cited:DPP v Weybury [2018] VSCA 120; Guden v The Queen [2010] 28 VR 288.
Sentence: Imprisonment for a period of 363 days and a $500 fine.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L Dawson | Office of Public Prosecutions |
| For the Accused | Ms S Joosten | Victoria Legal Aid |
HIS HONOUR:
Introduction
Van Nhat Tran, you have pleaded guilty to one charge of cultivation of a narcotic plant, namely Cannabis L, contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 15 years imprisonment (Charge 1), and one charge of possession of counterfeit money, contrary to s 9(1) of the Crimes (Currency) Act 1981 (Cth), which carries a maximum penalty of 10 years imprisonment (Charge 2).
You have no prior criminal history.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
On 3 May 2019, at approximately 9.20am, police investigators executed a search warrant pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act 1981 at a residential property at 6 Independence Avenue, Point Cook.
Upon entry, police observed you inside at the rear of the property, hiding behind a black tent set up in the main living area. Once you saw the police, you attempted to flee by running outside through the rear door. Police pursued you and secured you in the backyard before arresting you.
You were searched and a black leather wallet was located in your pants pocket, containing an identification card in your name and a counterfeit $100 note.
Police searched the property and located 84 cannabis plants of varying maturity growing in hydroponic conditions. Bedroom 1 contained 54 plants, bedroom 2 and 3 contained nine plants in each room, and 12 plants were found in the black tent set up in the living room.
Each room had been modified with multiple light shrouds with high wattage globes, pots, electrical wiring, power transformers and watering systems. Air filters had been installed to cover the scent of the cannabis, and windows and doors had been covered to conceal the grow rooms.
Police also located an electrical bypass concealed inside the main bedroom wall behind the meter box. Organised electrical wiring systems were also located in the hallway of the property and on the outside of the black tent. Police found no evidence linking you to the installation or maintenance of the electrical bypass.
Police located various bottles of chemicals and what appeared to be a watering system in the bathroom. The bathtub was full of a brown watery substance and there were black hoses leading from the bathtub to the corridor nearby.
On 10 May 2019, the seized cannabis plants were examined by a botanist and confirmed to be Cannabis L, weighing a total of 62.28 kilograms.
Police investigations confirmed that the property had been tenanted since
18 March 2019. The purported tenants on the rental documents are suspected by police to be falsified identities, and the contracted tenants have not been identified.
You were interviewed following your arrest, where you answered 'no comment' to the allegations put to you.
Nature and gravity of the offending
The offence of cultivating cannabis is a serious offence which is reflected by the maximum penalty of 15 years imprisonment if the court is satisfied that that the cannabis was being grown for a purpose related to trafficking. In this instance, the total number of plants found at your property was 84 plants with a total weight of 62.28 kilograms. While 25 kilograms amounts to a commercial quantity, the prosecution accepts that you did not intend to cultivate a commercial quantity, and thus the charge is one of simple cultivation. That said, it is clear in my view that given the amount of cannabis and the nature of the hydroponic setup, the cannabis was being grown for the purpose of trafficking, and the 15 year maximum therefore applies.
It was submitted on your behalf that your role was limited, in the sense that the property was not rented or owned by you and that you were simply tending to the crop. You are charged as being involved on one date, being 3 May 2019, and that you were at the premises on that day to water the plants. Further, the prosecution accepts that your role may be described as that of a 'crop sitter'.
However, the amount of cannabis found, being 62.28 kilograms, is clearly more than double the weight of the commercial quantity, being 25 kilograms. In that context, the prosecution submits therefore that the offence falls within the middle of the range for a simpliciter cultivation. The use of phrases that place the offending in certain categories can be problematic, as the Court of Appeal has identified in DPP v Weybury[1] and, in my view, in all the circumstances presented, the weight simply demonstrates that this was an operation where the crop was clearly intended to produce a significant amount of cannabis to be sold into the community, and thus the offending in that sense is serious.
[1] [2018] VSCA 120 at [54].
As to the second charge of possession of counterfeit money, while it is a serious charge, carrying 10 years imprisonment, in my view in this instance, being in possession of one note does not represent a serious example of the offence. In this case, you instructed that you were paid this note by your employer and had intended to ask him to replace it once you realised it was counterfeit.
Personal circumstances
You are 29 years of age and were 28 at the time of the offending.
You were born in Vietnam and you have a younger sister. When you were nine years of age, your father passed away and approximately one year after your father's death, your mother abandoned you and your sister. You and your sister were taken in by family friend and you have had no further contact with your mother. You attended a Catholic school and it would seem that you learned limited English as part of your education.
In 2004, at the age of 13, you moved to another province in Vietnam to work. You lived with a friend in that province and worked on a farm.
Your sister remained in your hometown and eventually became a Catholic nun. You remained in contact with her up until the time of your arrest, however you have been unable to contact her since you have been on remand.
In 2013, while you were visiting your hometown, police became aware that you had been distributing anti-Communist leaflets. As a result, you fled the country in fear of being arrested because of your political beliefs. You travelled to Australia by boat as an asylum seeker, arriving in 2013. You were detained in various immigration detention centres for approximately three and a half years while you waited for your visa. You were granted a visa in 2017 and subsequently moved to Queensland.
In early 2019, you moved to Melbourne to pursue a relationship. You worked as a tiler in Melbourne and lived with your partner at her address in Sunshine West before moving to another address in the same suburb.
You have worked consistently since the age of 13, predominately in farming work in Vietnam, and since arriving in Australia you have worked as a tiler and have been involved in other handiwork.
Since being on remand you have completed a number of courses and certificates in relation to those courses were tendered on the plea.
You have no physical or mental health issues, nor do you have any issues with drugs or alcohol.
A number of references were tendered on your behalf at the plea. The writers of those references speak with a united voice that you are an otherwise good natured person, and each are of the view that your involvement in this offending is entirely out of character. One of the writers has in her letter offered you accommodation upon your release.
You wrote a letter to the Court which provides some background history in relation to your life in Vietnam and the experience of spending time in detention for a number of years. You state that you were naïve and that was why you became involved in the offending. You state that being in custody for approximately 12 months has made you a more tolerant and mature person and has taught you to be more responsible. You confirm that you have engaged in a number of courses in custody. You also state that you attend mass in the prison every week and have developed close friendships with others who you pray with every night.
Relevant sentencing considerations
Ms Joosten, who appeared on your behalf, highlighted a number of matters to be taken into account in mitigation.
The first of those matters is your plea of guilty. While you conducted a contested committal hearing, it was a submissions only hearing. The matter proceeded to a directions hearing, where the contested issue was in relation to the prosecution's persistence with a commercial quantity cultivation charge. Ultimately, the matter resolved earlier this year. In the circumstances, while the plea is not an early plea, it has still saved court time and expense and the process has not involved the cross-examination of any witnesses either at committal or trial. Your plea therefore still demonstrates a willingness to facilitate the course of justice. As to Charge 2, I note that the plea was entered in relation to that charge at the conclusion of the committal hearing.
You come before the court with no prior criminal convictions, you have an excellent work history and have demonstrated good character, which is supported by the character references that have been provided.
Since being in custody, rather than simply waiting for your matter to be determined, you have engaged in education and have been involved in the church community within the prison system. You also have strong community support. Thus, in my view, your prospects of rehabilitation, in all the circumstances, are able to be assessed as very strong.
General deterrence is of course a prominent sentencing consideration in cases such as this. A message needs to be sent to others in your position who may be tempted to engage in the cultivation of cannabis, even as a crop sitter, that they will face gaol terms. Just punishment and denunciation of your conduct are also relevant sentencing considerations, so much was conceded by your counsel. However, in the circumstances for the reasons already outlined in relation to your prospects of rehabilitation, in my view, specific deterrence need not carry weight in the sentencing discretion.
It was also submitted on your behalf that the circumstances in relation to your visa have created great uncertainty for you, given you face the prospect of deportation. I accept this concern has weighed heavily during your time on remand, and that the principles outlined in Guden v The Queen[2] have application in this instance.
[2] [2010] 28 VR 288 at [25]-[28].
I take into account the current regime surrounding the COVID-19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prisons have been suspended, there has been a reduction of services and programs, and prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families, and also affect the programs and supports in prison designed to assist in rehabilitation and transition into the community. In my view, these matters have application in your case, as the programs you were involved in have been suspended. Further, you were receiving regular visits from your friends, which have also been suspended since mid-March.
I was provided with a number of comparable cases which I have considered. While each case turns on its own facts, in all the circumstances, in my view, in relation to Charge 1, the time you have served on remand in relation to this matter is sufficient to meet the relevant sentencing considerations.
Sentence
Mr Tran, would you please stand.
Van Nhat Tran, on Charge 1, cultivation of a narcotic plant, you are convicted and sentenced to 363 days imprisonment.
On Charge 2, possess counterfeit money, you are convicted and fined $500.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 363 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today and therefore you have completed your sentence.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 18 months, with a non-parole period of 12 months.
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