Director of Public Prosecutions v Tran
[2019] VCC 995
•27 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-00243
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SI HIEU TRAN |
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JUDGE: | HER HONOUR JUDGE BRIMER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2019 | |
DATE OF SENTENCE: | 27 June 2019 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 995 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence - plea of guilty to cultivate narcotic plant in a commercial quantity - role characterised as that of a “crop sitter” – requirement to impose a custodial order unless special reasons exist - foreign national - liable to deportation
Legislation Cited: Drugs, Poisons and Controlled Substances Act1981
Cases Cited:Guden v The Queen [2010] VSCA 196; Allouch v The Queen [2018] VSCA 244; Loftus v The Queen [2019] VSCA 24
Sentence: 20 months’ imprisonment with a non-parole period fixed at 14 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Ellis (plea) Ms L. Stevenson (sentence) | Office of Public Prosecutions Victoria |
| For the Accused | Mr D. Gibson (plea & sentence) | Victoria Legal Aid |
HER HONOUR:
1 Si Hieu Tran you have pleaded guilty to an indictment containing one charge of cultivation of a narcotic plant namely cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant contrary to section 72A of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is level 2 imprisonment or 25 years. This is a category 2 offence under the Sentencing Act 1991 which, it was conceded by your counsel, means that I must impose a term of imprisonment. No submission was made that the exceptions in s5(2H)(a)-(e) of that Act apply.
2 You have also pleaded guilty to a related summary offence of driving a motor vehicle whilst unlicensed. The maximum penalty for that offence is a penalty not exceeding 60 penalty units or six months' imprisonment.
3 The circumstances in which you committed this offence are set out in the Amended Summary of Prosecution Opening Upon Plea dated 3 June 2019 which was read into evidence on your plea. The prosecution also tendered a number of photographs depicting parts of the house, cannabis plants and equipment used in their cultivation. In addition to making oral submissions, your Counsel relied on a written Outline of Defence Submissions and chronologies dated 28 May 2019. I have had regard to the opening, the oral submissions of both Counsel and the outline of plea submissions, authorities referred to and documents tendered on your behalf in determining the appropriate sentence in your case.
Circumstances of the offending
4 On 16 October 2018, Victoria Police Air Wing Unit detected irregular heat emissions at 32 Dalkeith Road Wantirna. The property is a four bedroom single story brick veneer house. It was purchased in 1995 and is owned by Ms Cecere who lives interstate.
5 Enquiries conducted by investigators with the Residential Tenancy Bond Authority regarding the property reveal that Nguyen Anh Son Nguyen held the bond for the property.
6 On Friday, 26 October 2018 at approximately 9:30 AM, Sgt Elliott McGibbony and senior Constable Simon Rayner conducted surveillance at the property. A blue Toyota sedan was observed parked in the driveway. A walkover of the property was conducted and a strong smell of cannabis was detected.
7 On Thursday, 14 November 2018 at approximately 6:50 PM, Sgt McGibbony and Senior Constable Rayner again attended the property to conduct surveillance and saw the vehicle in the driveway, unoccupied.
8 At 7:01 PM the vehicle was observed leaving the property driven by a male of Asian appearance. Sgt McGibbony and Senior Constable Rayner followed the vehicle south on Stud Road, Wantirna before intercepting and arresting you at the Burwood Highway intersection with the assistance of another police vehicle.
9 Your slip on sandals fell off during the arrest and you were seen to be wearing socks. The bottom of your socks were stained green, your sandals appeared to have soil and green vegetable matter stuck underneath and you smelled strongly of cannabis.
10 A search of your car was conducted and the following items were located: $500 in cash in the driver’s side door, an Apple iPhone mobile phone in a phone holder, a set of keys in the driver’s side door which was for the security door and front door of the property, a set of car keys and assorted keys which were removed from the ignition, and a receipt from Bunnings warehouse Springvale dated 11 October 2018 for the purchase of 20x14 cm black grow pots and 32x10 cm green grow pots totalling $40.80.
11 You were conveyed to the Croydon police station for interview.
Investigation, arrest and interview
12 Later that evening, police went to the property and executed a search warrant. No one was present at the home. Police entered the house using the key located in your possession on arrest which opened both the security door and main wooden door to the property.
13 There was a mattress on the floor of the dining room and multiple garbage bags piled up in the kitchen, some of which contained green waste, pots, empty bags of fertiliser and soil. Bags of soil and pots were located in the hallway of the address.
14 The bathroom of the property stored containers of liquid fertiliser and hoses which were used as part of the irrigation system.
15 In room one of the property police found 89 cannabis plants. Police found 12 cannabis plants in each of rooms 2 and 3. In room 4 of the property police found 16 cannabis plants. In each of the rooms these plants were growing in hydroponic equipment including overhead lighting, water supply, fan and reflective material. A total of 129 plants were removed from the property. Following analysis of the plant material, the quantity of cannabis was determined to be 39.5227 kg comprised of 125 cannabis plants and two leafy stems.
16 Police found an electrical bypass in the roof cavity of the property.
17 You participated in a record of interview assisted by a Vietnamese interpreter. You answered questions put to you and made admissions to cultivating cannabis. As part of these answers you stated that you attended the property every 2 to 3 days and your job was to water the plants. You had been doing this for 2 to 3 months since you started and $5000 was to be payment for the work. Unknown persons would attend, cut the plants and take them away. You didn’t purchase the pots listed on the Bunnings Warehouse receipt. Someone else bought them and delivered them. You didn’t set up the plants.
18 You told the police that you met the people that employed you in St Albans and that you didn’t know it was illegal to cultivate cannabis. The vehicle was someone else’s car and you don’t know where the money came from. You had not yet been paid for attending to the cannabis plants.
Plea of guilty
19
You were arrested on 14 November 2018. A filing hearing took place on
15 November 2018. Two committal mention hearings took place on the 1st and 7th of February 2019 and guilty pleas were entered at the latter hearing and proceeded by way of straight hand-up brief in the Melbourne Magistrates’ Court.
20 I accept and take into account that you pleaded guilty, which is indicative of remorse. Further your plea of guilty has facilitated the course of justice by preventing community expense and the need for witnesses to come and give evidence in a trial of your matter.
Pre-sentence detention
21 As of 27 June 2019 you will have served 226 days by way of pre-sentence detention.
Prior convictions
22 You have no prior convictions.
Personal circumstances
23 You were born on 23 April 1996 in Ha Tinh, North Vietnam. You are 23 years old. You have one brother, Van Cung Tran with whom you came to Australia in October 2012 when you were 16 years old. Your parents live in Vietnam. You have a girlfriend Hue Thi Hoang, who has been your girlfriend for five years whilst in Australia.
24 You arrived in Australia by boat. You spent a period of time in detention in Christmas Island before being transferred to detention in Darwin. In approximately February 2013 you were released on community detention in Brisbane with your older brother. You went to Milperra High School in Brisbane for one year but was unable to finish secondary school and you have no formal qualifications.
25 One year after arriving in Brisbane your older brother abandoned you. You did not know what to do when your brother abandoned you. You spoke with a friend who told you could work in a farm on Queensland. This began a period of some years where you worked amongst different farms picking fruit for a living. You travelled through Townsville, Darwin, rural Queensland and Victoria depending on the fruit season. You finished doing this work just before the period of your offending.
Objective gravity of the offence
26 It was conceded by your Counsel, that the principles of general deterrence must be given full effect in sentencing you for this prevalent offence. The legislature has made it clear that it regards this offence as serious, which is reflected by its maximum penalty of 25 years' imprisonment.
Relevant sentencing principles
27 Although the offence of cultivating a commercial quantity of cannabis is a serious offence which calls for denunciation by the courts, there is however a range in which to assess the gravity of the offending depending on the circumstances. The prosecution conceded that your role can be characterised as that of a “crop sitter”, falling in the lowest category of seriousness. You had no role in the leasing of the property, bypassing the electricity meter, you had not invested funds in the cultivation of the crop nor did you stand to profit from the crop over and above the payment for your services.
28 Nevertheless, you played an integral role in the operation, which was sophisticated as is evidenced by the hydroponic setup comprising of irrigation systems, grow lights and fans with an electricity bypass in the roof. Performing your role enabled others to profit from the offending. The course of your offending was over a period of 2-3 months, every 2-3 days.
29 Mr Gibson accepted that your involvement over a period of 2-3 months was involvement over a significant period of time. He said that you were promised that the work was not illegal, but also referred to question 64 in the record of interview in which you told the police that you didn’t know whether it was illegal. Nevertheless you made frank admissions against interest about the extent of your involvement and that you were to be paid money. Mr Gibson submitted that there was an element of naïveté about the risks associated with doing this work and that this is commensurate with someone from a noncriminal background of a young age.
30 I accept the prosecution’s submission, adopted on your behalf that, given the circumstances of your offending, your conduct can be characterised as being in the lowest category of seriousness.
31 Mr Gibson referred to your personal circumstances for the purpose of providing the context in which your offending occurred. Notably, you became involved in the offending because you were offered more money than you were able to earn picking fruit from season to season. You have no issues with drug or alcohol abuse. Although you have hepatitis B, this is not attributable to drug use or other illicit behaviour. You have no significant mental health issues. You were not motivated by greed rather by need; to earn money to live on. You were promised $5000 for three months' work. You never received the $5000.
32 Your moral culpability must be assessed in light of the prosecution’s submission in relation to your role in the offending and the underlying motivation being one of need.
33 Mr Gibson submitted that you have good prospects for rehabilitation. Although you were in Australia unlawfully and took no steps to obtain official recognition of a right to live or to drive a car, nevertheless you were self-sufficient and never sought to obtain government benefits. You had no access to Centrelink. Whilst you have been in custody you have taken a positive approach towards work and are not suffering adverse mental or physical effects. You work in the kitchen and you use the library facilities to study English. You have a positive attitude. Mr Gibson referred to your family in Vietnam with whom you have had contact. He said that they are disappointed and that you are ashamed that you have put them and yourself in this position. I have had regard to these matters as positive indications of your prospects of rehabilitation.
34
There was a lack of clarity regarding the extent to which you assisted the police. In the written outline of defence submissions, it was asserted that you cooperated with Police and nominated a co-offender as being involved.
Mr Gibson was instructed that you had nominated a co-offender at the time of the arrest. Ms Ellis conveyed instructions from the informant that you nominated another person, the person whose identification was found in the car at the time of your arrest, only in the last few weeks. She noted that throughout the interview you did not nominate any co-accused, and that there is no way of evaluating the value of your provision of the name of a co-offender in the last few weeks.
35 There is no evidence before me as to the timing and value of the information that you provided to the police. I note the informant was not called to give evidence. On the basis that it is in the public interest that those who commit offences be encouraged by the courts to inform upon their co-offenders I have had regard to the common ground that you provided a name to police, albeit at some point in time which was not agreed.
36 Mr Gibson urged me to take into account your isolation as a foreign national in prison. You have received no visitors. You found it difficult going into custody but have now connected with some other Vietnamese prisoners. However, isolation adds to the burden of imprisonment. Ms Ellis accepted to a degree, that there is a greater custodial burden on you given your isolation, however this is not a large matter in mitigation because it is the inescapable consequence of your conduct. I have had regard to the added burden on you of isolation as a foreign national in mitigation.
37 Mr Gibson accepted as part of the plea that you will be deported. In the written submissions on your behalf, it was noted that there is no uncertainty that you will be placed in immigration detention until you are removed from Australia and returned to Vietnam. He nevertheless submitted that in the absence of a final decision to deport you, facing that prospect is still an added burden. In reply, Ms Ellis submitted that deportation is a certainty. You have lived unlawfully in Australia the whole time you have been here. When you were released into the community it was under community detention arrangements and as such you have never held a visa.
38 The prospect that an offender is liable to deportation following sentence is a relevant sentencing factor in two ways. One is hardship to the offender, uncertain as to whether at the end of his sentence he will be required to return to his country of origin. The other is the additional punishment to the offender because of a lost opportunity to settle permanently in Australia (Guden v The Queen [2010] VSCA 196, Allouch v The Queen [2018] VSCA 244 (24 September 2018), Loftus v The Queen [2019] VSCA 24). Mr Gibson’s submission was put on the basis that, although deportation is a certainty, in the absence of a final decision to deport it is still a prospect or risk that you are facing, thus increasing the burden of imprisonment. Mr Gibson submitted that the second basis is not relevant in your case. He acknowledged, however, that this is not the category where someone has a permanent visa and then by virtue of the offending has to sit in prison knowing he’s going to be deported.
39 I don’t consider that your circumstances fit neatly into the recognised categories for dealing with the impact of the prospect of deportation given the position of both counsel that deportation is inevitable on the basis that you are in Australia unlawfully and have never held a visa, according to Ms Ellis. No evidence was called as to the impact of the prospect of deportation on you. I note that you have family in Vietnam with whom you have been in contact. I have considered the submission and had regard to the burden on you of the uncertain future that you face in returning to Vietnam.
Current sentencing practice
40 I am obliged to have regard to current sentencing practices in determining the sentence, though I note the guidance of the High Court in DPP v Dalgleish (pseudonym) (2017) HCA 41, that current sentencing practices are one of the many factors that must be taken into account in sentencing. Ms Ellis on behalf the prosecution drew my attention to 3 cases which she contended gave an indication of the sort of range in which this matter sits (DPP v Nua Van Tran [2017] VCC 726, DPP v Khoa Do [2017] VCC 578 and DPP v Hoang Nguyen [2017] VCC 510). In two of the cases the accused was a “crop sitter”, not the principal person responsible for the establishment of the crop and similar in amounts of plants and weight. The sentences in those cases were two years' imprisonment, two years' imprisonment and 27 months respectively. I was referred by Mr Gibson to 3 sentences imposed in this court on offenders in a similar position to yourself (DPP v Vo, Su Van [2016] VCC 1078, DPP v Dai Duy Le [2016] VCC 557 and DPP v Hoang [2016] VCC 233). The terms of imprisonment imposed in those cases were 18 months, 15 months with a non-parole period of nine months and 12 months. Ms Ellis noted that in case of Hoang, the accused was sentenced as a young offender, in Le there were less plants in number however a similar weight of cannabis and in Vo, the amounts and the weights of Cannabis differed.
41 I have had regard to the cases provided to me, their similarities and differences. Of course, every case is different, and the court must have regard to the individual circumstances of each case. In respect of this case, that includes the particular circumstances of this offending, your personal circumstances and the relevant sentencing principles that arise for consideration. This is what I have done.
42 I have considered carefully, balanced and weighed all of the matters referred to on your plea. I have had regard to the need for general deterrence in relation to this prevalent offence as is reflected by the maximum penalty of 25 years' imprisonment. However, I have balanced this against the factors put by your Counsel on your plea.
43 Please stand Mr Tran. On the charge of cultivating a narcotic plant in not less than a commercial quantity of cannabis and the related summary offence of unlicensed driving, I sentence you to an aggregate term of imprisonment of 20 months. I will impose a non-parole period of 14 months. I declare that there are 225 days of pre-sentence detention to be reckoned as having been served pursuant to section 18 (1) of the Sentencing Act.
44 Pursuant to s6AAA of the Sentencing Act 1991(Vic), I declare that had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to a term of imprisonment of 24 months with a non-parole period of 18 months.
45 I understand there is a disposal order that is not opposed, as there is a forfeiture order.
46 MS STEVENSON: Yes, Your Honour. And a 464ZF order, yes.
47 HER HONOUR: Section 464ZF order. You may be seated. Yes, I make those orders. Mr Tran, just in relation to the s.464ZF order, which is the taking of a sample, a forensic sample, I have to tell you that if at the time of the request, you do not consent to the taking of a mouth scraping, under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Yes, thank you.
48 MR GIBSON: Your Honour, I think the related summary offence, did I - - -
49 HER HONOUR: Yes, I said I imposed the term of imprisonment as an aggregate term in relation to - - -
50 MR GIBSON: I beg your pardon, I'm sorry Your Honour, yes.
51 HER HONOUR: - - - both the cultivate on the indictment - - -
52 MR GIBSON: Yes.
53 HER HONOUR: - - - and the related summary offence of unlicensed driving.
54 MR GIBSON: Thank you, Your Honour. Thank you.
55 HER HONOUR: Thank you. Are there any other matters you need to raise?
56 MS STEVENSON: No, Your Honour.
57 HER HONOUR: Yes, Mr Tran may - - -
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