Director of Public Prosecutions v Tran

[2018] VCC 1528

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00133

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHUONG DUY TRAN

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2018
DATE OF SENTENCE:	19 September 2018
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2018] VCC 1528

REASONS FOR SENTENCE
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Subject:         Cultivation of a narcotic plant
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Barry	OPP
For the Accused	Mr L. Richter	Nickolls & McAroe Lawyers

HER HONOUR: 

1Phuong Duy TRAN, you have pleaded guilty to three charges of cultivation of a narcotic plant.  The maximum penalty for cultivation is 15 years.  The details of your offending are set out in the Summary of Prosecution Opening (Exhibit A). 

2Between 23 May 2016 and 17 May 2017 you were involved in cultivating a significant amount of cannabis at three different properties.  Each of these properties is the subject of one of the charges.  Charge 1 relates to a property at Owl Road, Doreen; Charge 2, Isidore Drive, Doreen; and Charge 3, a property in Bundoora.

3You entered the lease for the property at Owl Road in May 2016.  Police conducted a search of that property on 17 May 2017, a year later.  The property had a sophisticated hydroponic cannabis setup across four rooms and contained lighting and other equipment to ensure optimal growth of the cannabis plants, and an electrical bypass was installed.

4A total of 91 cannabis plants and dried cannabis (at a combined weight 88.2 kg) were seized. 

5Similarly, you entered a lease on 29 September 2016 for the property at Isidore Drive.  On 26 April 2017 police conducted a search of that premises and discovered a sophisticated hydroponic cannabis operation organised in a similar fashion to that at the Owl Road property.  

6A total of 51 Cannabis L plants and dried Cannabis (or a combination weight of 49.62 kg) were seized.  This property was extensively damaged with a repair bill of about $30,000. 

7Both of the Doreen properties appeared to be set up for the sole purpose of cultivating cannabis, with neither being occupied by tenants. 

8On 24 April 2017 you entered a lease in a different name, Anh Duc TRAN, for the property located in Bundoora.  Some of the details you provided included your own phone number and email address.  On 19 May 2017, police searched that premises and a hydroponic setup was observed to be under construction.  Police seized 74 immature Cannabis L plants, for a total weight of 1.5 kg.

9Later, when conducting a search of your home, police found documents and keys connecting you to the properties.  Additionally, phones located at your home were later analysed and linked to calls in the vicinity of each of the three properties. 

10The amount of cannabis cultivated at each of the properties was not in dispute.  It was accepted by the prosecution that you were not directly involved in dealing with cannabis.  Further, although the weight of the plant discovered at the first and second properties was over a commercial quantity as that term is defined under the legislation, your plea to cultivation simpliciter was accepted on the basis that you did not intend to cultivate an amount not less than a commercial quantity.

11You were arrested on 17 May 2017 and have been in custody since that date.   

Personal Circumstances

12You are currently aged 26 years.  You are a Vietnamese national who came to Australia in 2012 to study English and then business management at La Trobe University.  Your parents run a jewellery store in Vietnam, but after you had come to Australia they encountered financial difficulties and could no longer support you adequately.  You found work in restaurants and labouring and ultimately ceased studying some time in 2013 or 2014, but you had always hoped to return to your studies.

13In 2014, you met your wife Sarah in Australia and you married in 2015.  She remains supportive of you and you have had regular contact since you have been in custody.  I was informed that your parents are aware of your situation and also remain supportive.

14I received a report from psychiatrist Dr Leon Turnbull dated 21 June 2018 and I take that material into account.  He diagnoses you as suffering a major depressive illness.  He notes:

"Its genesis lies in your current circumstances, but also in guilt and reminiscing about your mother – who was incarcerated in Vietnam for some time and for whom you previously expressed insufficient sympathy … You require considerable psychological assistance, and would likely benefit from medication.  Neither of those things are currently taking place in custody."

15Thus your condition appears reactive to your current situation, though it is nonetheless severe enough to cause concern about your welfare in a custodial setting.  Your counsel submitted that Dr. Turnbull’s opinion supported the application of some of the principles enunciated in Verdins, relating to the effect of your current mental condition on your time in custody.  The prosecution did not dispute that limbs 2, 4 and 5 had application.  I accept that your current level of mental functioning is such that, as a result of this condition, you are likely to find custody more burdensome, that imprisonment is likely to have a negative impact on your mental condition, and it is relevant to the sentence which I will impose.

16You have no prior criminal history, either in Australia or Vietnam.  I accept that you were previously of good character.  I received a number of documents relating to donations that you have made and also completion of courses whilst you have been in custody.  I take that material into account.

17I also take into account your immigration status.  I was informed that you are unaware whether you will be able to remain in Australia with your wife.  You have settled and set up a stable life and residence in this country.  You are currently on bridging visa awaiting determination of your application for a spousal visa.  You have the additional burden whilst you are in custody of the uncertainty as to whether you will be able to remain here with your wife and I take that into account. (see Guden)

18As to how you became involved in this offending, I was informed by your counsel that during 2015 and 2016 you assisted others in the Vietnamese community, communicating on their behalf in English, to find them rental accommodation.  You provided your details to the estate agent as the tenant and then you would sub lease the property to your Vietnamese contact, taking a fee or small amount of the rental payments.  It was in relation to three of those properties that you have pleaded guilty.

Plea of Guilty

19I take into account your plea of guilty.  Although it was not made at the first opportunity, it was prior to your trial commencing.  I accept that your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  It has saved the Court time and community the cost of a trial.  I accept that your plea is also indicative of some remorse.

Prospects of Rehabilitation

20Your counsel submitted that you had excellent rehabilitation prospects relying on :

(a) lack of prior criminal history;

(b) your reaction to you being incarcerated for the first time; and

(c) support of your family.

The prosecution did not dispute and I accept this submission.

Role

21It was not disputed that yours was an essential role.  You facilitated the use of three separate properties knowing that cannabis was to be grown at each of them. 

22Your counsel submitted that your involvement was not sophisticated, in the sense that you were easily traceable as the person responsible for leasing each of the properties.  In organising or entering the leases on the first two properties, you used your own name, and relevant identification documents were provided by you to the agent.  In respect of the third property, you entered the lease in another name, and provided supporting documents to establish that identity.   However, the relevant contact mobile phone number and email details were your own.  It was submitted that you were easy to identify as being involved, given the personal details provided by you in respect of each property.  Additionally, you were liable for the bond and rent payments.

23Ultimately your counsel conceded that your role was more than a mere crop sitter.  Typically a crop sitter looks after one property, has no knowledge of the level of criminality involved, and frequently is motivated by impecunious circumstances.  Your role was more sophisticated than that.  Your willingness and ability to enter into the relevant lease documents in respect of three separate properties, for periods of time that overlapped, was essential to the business.  Such operations require the availability of properties to grow cannabis and a preparedness of individuals to enter into what appear to be legitimate residential tenancies.  The total amount of cannabis found reflects the commercial or business nature of the whole operation.  That is, even accepting that you did not intend to cultivate a commercial quantity, you knew that cannabis was being grown at each property. 

24There are features of your offending relevant to an assessment of the objective seriousness of it:  Your offending needs to be viewed in the context of facilitating the use of three different properties for the purpose of the cultivating cannabis, in respect of one of the properties for approximately 12 months.  Your offending was not an isolated incident.  It was not suggested that any of the cannabis was for own personal use, rather your involvement was part of the business operation for growing the cannabis.    

25Your counsel submitted that taking into account all relevant sentencing principles you should be sentenced to either a combination sentence or a Community Correction Order.  I had you assessed by Corrections for such an order and you have been deemed suitable.  The prosecution submitted that the only appropriate disposition was a term of immediate imprisonment. 

26General deterrence, denunciation and just punishment are all important sentencing considerations.  I accept that given your good rehabilitation prospects and your experience in custody, that specific deterrence and community protection are of less significance.  These features must be balanced against matters in your favour as outlined above including your plea of guilty and current situation.

27However, given the objective seriousness of your offending and taking into account all of the relevant sentencing considerations, I am of the view the only appropriate sentencing disposition is a term of imprisonment.

28If you could please stand.

29In respect of Charge 1, you are convicted and sentenced to a term of imprisonment of 18 months.  In respect of Charge 2, you are convicted and sentenced to a term of imprisonment of 15 months.  In respect of Charge 3, you are convicted and sentenced to a term of imprisonment of 15 months. 

30Three months of the sentence imposed on Charge 2 and three months of the sentence imposed on Charge 3 will be cumulative on the sentence imposed on Charge 1, making a total effective sentence of 24 months. 

1	Cultivation Doreen 1	18m
2	Cultivation Doreen 2	15m	3m
3	Cultivation Bundoora	15m	3m

31I set a non-parole period of 18 months. 

ANCILLARY ORDERS

32I have the relevant disposal orders.  I do not have the 464s though, Mr Barry.  They were not filed so I do not have those.  Do you have one?

33MR BARRY:  I don't think my instructor does, Your Honour, but he will email them through.

34HER HONOUR:  That's okay, we can sort that out later.

35MR BARRY:  Yes, thank you.

36HER HONOUR:  I should indicate to you, Mr Tran, I propose to make the s.464 order and that you should be aware that the police can use reasonable force in obtaining a sample from you if you do not consent to that process being adopted. 

37Pursuant to s.6AAA of the Sentencing Act 1991, if you had not pleaded guilty to this matter I would have sentenced you to a term of imprisonment of three years and six months, with a non-parole period of two years and six months.

38Is PSD 489 days?

39MR RICHTER:  Four hundred and ninety, Your Honour.

40HER HONOUR:  Four hundred and ninety days.

41MR BARRY:  Four-ninety, yes.

42HER HONOUR:  All right.  I declare 490 days' pre-sentence detention.

43That is the disposal order.  Now, Mr Barry, this order, this form has to be filed with the Magistrates' Court - filed at the Registry.  So if you could just get your instructor to do that.  That's putting the relevant summary matter back in the Magistrates' Court. 

44MR BARRY:  Oh right, thank you very much.  Just on the disposal order, Your Honour, my learned friend has raised with me just before - - -

45HER HONOUR:  Do you want some of the items off it?

46MR BARRY:  Yes.

47HER HONOUR:  Right, okay.

48MR BARRY:  The passport apparently, my instructions are to agree to the passport.  Apparently there were some other matters that I'm not exactly aware of, but if he could - - -

49HER HONOUR:  If you can revise the disposal order as agreed and send it to me with the 464 I will sign both of those.

50MR BARRY:  Thank you, Your Honour.

51HER HONOUR:  All right.

52MR RICHTER:  As Your Honour pleases.

53HER HONOUR:  Thanks, I will stand down. 

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