Director of Public Prosecutions v Tran

[2019] VCC 1485

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00713

DIRECTOR OF PUBLIC PROSECUTIONS

v

HIEU TRAN

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2019
DATE OF SENTENCE:	13 September 2019
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2019] VCC 1485

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Rooney	Office of Public Prosecutions
For the Accused	Mr S. Kenny	Stary Norton Halphen

HIS HONOUR:

1Hieu Dwin Tran, you have pleaded guilty on indictment J13142834 to one charge of cultivation of a narcotic plant, and on indictment J13143805 to one charge of cultivation of a narcotic plant, commercial quantity, and one charge of theft.

2These offences carry the following maximum penalties:  cultivation of a narcotic plant in the circumstances of this case, 15 years' imprisonment; cultivation of a narcotic plant, commercial quantity, 25 years' imprisonment; theft, 10 years' imprisonment.

3It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, 'Summary of Prosecution Opening'.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor, which I shall now summarise.

4On 30 January 2017, Victoria Police commenced an investigation into the cultivation of cannabis at 269 Grimshaw Street, Watsonia.  On 10 February 2017 police executed a search warrant at that address.  There were no persons in the house at the time of entry.

5During that search police found a sophisticated hydroponic setup for the cultivation of cannabis in three rooms.  Eighty-one cannabis plants were seized.  The plants had a total weight of 61.43 kilograms.

6Later on the morning of 10 February 2017 police executed another search warrant at 102 Broadway, Reservoir.  You were not present at that address.

7Your fingerprints matched those found on two lampshades and a charcoal filter box.  You were eventually located on 3 December 2018.  On that day police received information about a possible hydroponic cannabis crop being grown at 49 Glencannon Crescent, Clayton South.  Two vehicles sighted in the driveway and front yard of that property were registered in your name.

8A search warrant was executed at that property on 3 December 2018.  The house was empty when the search warrant was executed.  Police discovered a hydroponic setup for the cultivation of cannabis in three rooms of the main house and the granny flat located at the rear of the property.  An illegal electrical meter bypass was also located.  One-hundred and seventy-nine cannabis plants were seized.  The total weight was 74.68 kilograms.  A plastic bag containing 80.9 grams of cannabis was also located in the granny flat.

9Later that morning police intercepted a BMW motor vehicle near the Clayton South property.  You and the co-offender, Q Le, were in that black BMW.  You were arrested and searched.  You had in your possession three sets of keys and $710.  One of the keys unlocked the motor vehicle that was parked in the front yard of the Clayton South property.  Another key unlocked the front door of that property.  One of the keys found on Q Le also opened the front door of the property.  Fingerprints found on a drinking glass located on a coffee table in the loungeroom matched your fingerprints.

10You were interviewed in relation to both offences on 3 December 2018 and you made a no comment record of interview.

11All the charges of cultivation and theft refer to a single date.  It was agreed, and I accept, that your role in respect of this offending was as follows.  In respect of the crop at Watsonia you were involved in the installation of the hardware or hydroponic equipment to grow the crop.  You knew the crop was cannabis but you were not aware of the quantity or size of that crop.  You were paid $300.  You had been introduced to this activity by the co-offender, your friend, A Le.  You were acting in concert with A Le and Tran.

12In respect of the offending at Clayton South your role was one of assistance in the cultivation and watering of the crop.  You did not live at this address but you visited the address about three times per week and occasionally stayed over at that property.  You were acting in concert with Q Le.  You were given access to a motor vehicle and cannabis for your own use.

13I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has by your plea been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  You pleaded guilty at an early stage in all the circumstances.  I accept that you are genuinely remorseful.  You have no prior convictions.  I sentence you as a person of previously good character.

14I have been told something of your personal circumstances and these matters are set out in the defence plea submissions.

15You are 34 years of age having been born on 2 December 1984 in Vietnam.  You were educated to the equivalent of Year 12 and you then undertook tertiary study in construction.  You have worked in the construction industry.

16You married in 2010.  You and your wife have two children aged seven and four years.  You came to Australia from Vietnam in 2016 a tourist Visa.  You hoped to eventually settle in Australia.  Your wife and children remained in Vietnam.  In Australia you undertook some casual work.  Through your social circle you started to consume alcohol more often and you experimented with cocaine and cannabis.

17You are a citizen of Vietnam.  You entered Australia on a tourist Visa in 2016.  Upon the expiration of your sentence you will be deported and you will be ineligible for a further Visa.

18In oral submissions it was submitted on your behalf that as a factor in mitigation deportation and loss of opportunity to settle in Australia was, 'Not of great moment', and was, 'Slightly relevant'.  This is to be compared with the written submission which was that - 22,

'Mr Tran will serve his sentence with the expectation that he will never again be permitted to enter Australia weighing upon him.  The prospect of deportation should therefore be taken into account as a serious punishing consequence of Mr Tran's offending'.

19The prosecution submitted any weight to be given to deportation should be very slight indeed.

20As you have only been in Australia since 2016, having arrived here on a tourist Visa, and your wife and children remain in Vietnam, I place very little weight upon your deportation and likely loss of opportunity to settle in Australia as factors in mitigation.

21I was provided with submissions on current sentencing practice, including recent relevant authorities, sentencing snapshots and an extract from the JCV Sentencing Manual (33.13.15.1).  I have had regard to this material.

22I assess your prospects of rehabilitation as being good.

23Against these matters in mitigation, however, your actions were very serious indeed.  I accept the submissions made on your behalf in respect of the gravity of the offences and I quote from the defence plea submissions - 15,

'It is acknowledged that because of the inherently serious nature of the offence of cultivating a commercial quantity of cannabis, principles of general deterrence, just punishment and protection of the community must play an elevated role in the instinctive synthesis.  In assessing the seriousness of the offending regard must be had to the objective features of the conduct and to the degree of aggravation'.

'[16]  It is acknowledged that the following features are present in this case.  [16.1]  The quantity of cannabis cultivated was significant'.  [16.2]  The hydronic systems with which the cannabis was cultivated was moderately sophisticated'.  [17]  It should also be noted that [17.1] each of the charges of cultivation is alleged on a single date.  [17.2]  Whilst the offender's role is difficult to ascertain, there is no evidence that the offender was an apex trafficker or the mastermind of either cultivation.  [17.3]  There is no evidence of financial betterment on the part of the offender'.

24In assessing the seriousness of the offence of theft of electricity there is no evidence as to the value or amount of electricity stolen, however the theft of electricity was an integral part of the hydroponic setup.  It is appropriate that there be a degree of cumulation in respect of that sentence.

25I was provided with the sentencing remarks of Her Honour Judge Lawson in respect of V Tran and the Sentence of His Honour Judge Wraight in respect of A Le.  The principle of parity has little application given the different charges and circumstances.

26I have had regard to the principle of totality.

27It is agreed the pre-sentence detention is 284 days.

28As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence.  Specific deterrence is less relevant as you have no prior convictions.  General deterrence is of considerable importance in a case such as this.  This type of offending must be discouraged.

29I am called upon by the Sentencing Act to manifest the communities denunciation of your conduct and generally to impose a just punishment.  It was not in issue that an immediate custodial sentence is required.

30Having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows:  on indictment J13142834, Charge 1, cultivation of a narcotic plant, convicted and sentenced to 12 months imprisonment.  On indictment No.J13143805, cultivation of a narcotic plant, commercial quantity, convicted and sentenced to two years and six months' imprisonment. 
Charge 2, theft, convicted and sentenced to six months' imprisonment.

31I direct that four months of the sentence imposed on Charge 1, of indictment No.J13142834 and two months of the sentence imposed on Charge 2, on indictment No.J13143805, be served cumulatively upon the sentence imposed on Charge 1 of indictment No.J13143805 and upon each other.  Otherwise the sentences be served concurrently.

32The total effective sentence is three years' imprisonment.  I fix a non-parole period of two years.

33As prescribed by s.18(4) of the Sentencing Act I declare that the period of time that you have spent in custody is 284 days, which is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court.

34There is an application made by the prosecution for a forensic procedure, for the taking of samples, pursuant to s.464ZF of the Crimes Act.  In intend to make an order that you undergo a forensic procedure for the taking of samples in accordance with sub-division 30A of part three of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.  The reasons for making the order will be published on the order which I will sign.

35I must inform you as a matter of law that a member of the police force may use reasonable for to enable the procedure to be conducted.

36I shall also make the disposal and forfeiture orders sought by the prosecution.

37Pursuant to s.6AAA of the Sentencing Act I stated that the sentence and
non-parole period I would have imposed, but for the plea of guilty, is four years with a  non-parole period of two years and six months.

38Mr Rooney, Mr Kenny; does that cover the formalities?

39MR ROONEY:  It does, Your Honour.

40MR KENNY:  Yes, may it please the court.

41HIS HONOUR:  Thanks a lot for your help.  The prisoner can be removed and I'll just adjourn till 10.30 Monday.

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