Director of Public Prosecutions v Tran

[2018] VCC 1387

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-17-01762
Indictment No. H10485218

DIRECTOR OF PUBLIC PROSECUTIONS

v

HIEU TRAN

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JUDGE:	HIS HONOUR JUDGE TRAPNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	6 July 2018
DATE OF SENTENCE:	22 August 2018
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2018] VCC 1387

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Criminal law – Sentence – Cultivating a narcotic plant in commercial quantity – Theft of electricity – Dealing with property suspected to be proceeds of crime – Single date offence – 493 plants – 286 kilograms – Employee worker – 47 year old offender – No prior convictions – Early plea

Legislation Cited:     Crimes Act 1958 ss 74(1), 194, 323 – Criminal Procedure Act 2009 s 145 – Drugs, Poisons and Controlled Substances Act 1981 s 72A

Cases Cited:Barbaro v The Queen (2012) 226 A Crim R 354 – Doan v The Queen [2010] VSCA 250 – DPP v Dalgleish (a Pseudonym) (2017) 91 ALJR 1063 – Nguyen v The Queen (2010) 208 A Crim R 464 – Nguyen v The Queen (2016) 311 FLR 289

Sentence:                  Total effective sentence of 3 years’ imprisonment – Non-parole period of 18 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A Buckland (Plea) Ms R Yousuff (Sentence)	Mr J Cain, Solicitor for Public Prosecutions
For the Accused	Mr S Tovey	Milides Lawyers

HIS HONOUR:

1       Hieu Tran, you have pleaded guilty to an indictment containing one charge of cultivating a narcotic plant in a commercial quantity and one charge of theft of electricity. Additionally, you have consented to have this Court deal with two related summary offences;[1] namely, two charges of dealing with property suspected to be proceeds of crime, and you have pleaded guilty to these charges.

[1] Pursuant to s 145 Criminal Procedure Act 2009 (Vic).

2       The maximum penalty for cultivating a narcotic plant in a commercial quantity is 25 years’ imprisonment.[2] The maximum penalty for theft is ten years’ imprisonment.[3] The maximum penalty for dealing with property suspected to be proceeds of crime is 2 years’ imprisonment.[4]

[2] Pursuant to s 72A Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[3] Pursuant to s 74(1) Crimes Act 1958 (Vic).

[4] Pursuant to s 194 Crimes Act 1958 (Vic).

3       The prosecution filed a summary of prosecution opening dated 27 June 2018, which I have been told by your counsel I can treat as a statement of agreed facts.[5]

[5]     Exhibit P1.

The facts

4       In August 2016 Quoc Dang advertised his residential premises at Wembley Road, Kallista, for rent. The house comprised three bedrooms with two bathrooms and the property also included an adjoining two bedroom cottage.

5       On 16 August 2016 Dang commenced letting the property to a Vietnamese man named ‘Long Nguyen’. Long Nguyen paid $2,000 by way of a bond, $1,600 in advance for a month’s rent, and thereafter paid $1,600 in cash on a monthly basis to Dang.

6       On 12 January 2017 police commenced an investigation into the possible cultivation of cannabis at the Wembley Road premises. Over the course of the following month investigators noted the attendance of a number of different vehicles at the property, three of which were registered in your name.

7       On 13 February 2017 police went to the property to conduct enquiries but no one was home. However, police saw mould on the bottom of the closed curtains and noticed a distinct smell of cannabis coming from the premises. Police could also hear humming sounds coming from the rear of the property.

8       On 20 February 2017 investigators executed a search warrant. Upon entering the house police located a false plaster wall, which they broke in order to gain entry to the room behind. Once access was gained police discovered a bedroom filled with mature cannabis plants growing under lights. A large quantity of cannabis was found growing within several rooms of the house.

9       Whilst police investigators were inside the property you and your co-accused Ho and Nguyen arrived in a Toyota Hilux. Nguyen got out of the car to unlock the front gate, whilst Ho collected the rubbish from a grassed area near the driveway. Once the gate was opened you drove the car up the driveway and parked in front of the garage of the house. All three of you walked up the stairs to the property, whilst under the surveillance of police who were at the front of the premises.

10      Nguyen and Ho opened the front door to find police waiting for them. Upon identifying themselves police asked your co-accused not to move, however they immediately ran away in an attempt to escape. Nguyen fled back out the front door and towards the front gate. You followed him down the driveway and climbed over the front gate.

11      You escaped in the opposite direction to Nguyen and disappeared into dense bushland. You were eventually apprehended by police and returned to the property. Upon being searched, police discovered you in possession of $375 in cash, which is suspected of being the proceeds of crime. You have pleaded guilty to a summary offence (charge 5) in relation to this.

12      Investigators continued searching the premises the next day. Effectively eleven rooms of the house and cottage (including a bathroom and pantry) contained cannabis plants at varying stages of growth. I have viewed a large number of photographs of the crop in situ.[6] It is clear this was a sophisticated and extensive hydroponic cannabis growing set-up.

[6]     Exhibit P4 – Victoria Police, Forensic Services Department, photograph booklet labelled ‘Photo Series #1 – Overall Photos’, containing 293 photos depicting the scene and all property seized relating to the cultivation of cannabis taken at 2 Wembley Road, Kallista produced by Sergeant Clayton Bickerton (see depositions page 139).

13      The total number of cannabis plants located was 493 (nearly five times the commercial quantity). The total weight was over 286 kgs (well over 11 times the commercial quantity). A yield statement prepared by a botanist opined that the leaves and flowering heads of the plants found in three rooms constituted approximately 151 kgs, equating to an air dried weight of approximately 37.8 kgs. The botanist further opined that if the 424 remaining plants had reached maturity, they would have been likely to yield in the vicinity of 231 to 257 kgs of leaves and flowering heads.

14      The Crown has accepted your plea on the basis of cultivating a commercial quantity of cannabis, rather than a large commercial quantity, as it is accepted in your case the mental element for the more serious offence could not be proved. Moreover, you are charged on the basis that your involvement in the cultivation is confined to a single date, being the day of your arrest. These facts comprise charge 1 on the indictment.

15      An irregular wiring connection was found in the hallway outside two of the rooms, which was connected to a number of switchboards throughout the premises used to supply electricity to each room. This wiring connection was traced back to unmetered supply cables installed outside the premises on a pole at the front of the property. Any electrical consumption supplied from the illegal wiring connection bypassed the meter installed in the premises. This gives rise to charge 2 on the indictment, which is theft of the electricity, also on a single day, the day of your arrest.

16      An inspection of the lamps and ballasts located in each room revealed that all rooms except one were connected to timing devices on the switchboards set for 12 hours of operation per day. The timing device in the remaining room was set for 18 hours of operation per day. Based on the wattage of the lamps and timings, it is estimated that the equipment would have used approximately 1,770 kilowatt hours per day. The value of the electricity stolen through the use of the bypass is unknown.

17      A search of the Toyota Hilux, in which you and your co-accused arrived, revealed various documents in your name, keys and an invoice from Fry’s Storage Lockers, in Canterbury Road, Bayswater, in the name of Van Nguyen.

18      A search conducted at Fry’s Storage Lockers on 2 March 2017 of a storage locker connected to you revealed 25 ballasts of a type similar to those commonly used in hydroponic plant cultivation. This gives rise to summary charge 7 (dealing with property suspected of being proceeds of crime).

19      You were interviewed by police on 20 February 2017 and exercised your legal right to not answer questions.

Offence seriousness

20      Cultivating a commercial quantity of cannabis is a serious criminal offence as indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum sentence in the criminal calendar. The maximum penalty ‘shows unambiguously how seriously the community, through the Parliament, views this conduct’.[7]

[7]Nguyen v The Queen (2010) 208 A Crim R 464, 468 [18] (Maxwell P and Buchanan JA agreeing).

21      You fall to be sentenced for a single date offence. It was accepted by your counsel on the plea that on the day of your arrest you had entered into an agreement, arrangement or understanding with your co-accused to commit the offences of cultivate a narcotic plant (being cannabis) in a quantity not less than the commercial quantity and to steal electricity in connection with the commission of the former crime.[8]

[8]See Crimes Act 1958 s 323 et seq.

22      Your counsel described your role as being akin to that of a crop-sitter who does not reside at the premises where the crop is growing. He submitted that you were ‘essentially an employee worker’ who was ‘paid to attend and undertake work on the day in question, knowing that that work would include cultivation of cannabis’.[9] The Crown accepts this characterisation of your role and, further, that you played no part in setting up the enterprise, nor did you stand to profit from it, over and above the payment for your services. Nonetheless, you played an integral role in this nefarious trade, which wreaks havoc on our youth, in particular, and causes enormous damage to the community at large. Moreover, your counsel accepted, that whilst you were not aware of the precise magnitude of the crop, you were aware it was ‘well over 25 kg’ in weight.

[9]Outline of Submissions on Behalf of the Accused, dated 5 July 2018 (Exhibit D1) [8]–[9].

23      In Doan v The Queen T Forrest AJA (with whom Harper and Nettle JJA agreed) said:

The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum of 25 yeas [sic] imprisonment. Whilst there is no doubt that the role played by the appellant was of a menial nature, it was nonetheless necessary for the crop to flourish. The maximum penalty fixed by parliament unambiguously demonstrates how seriously the community views this conduct. Recently in this Court emphasis has been placed upon the importance attached to sentencing judges having regard to the maximum sentence fixed by Parliament. This court (sic) has also emphasised recently that general deterrence is an important consideration in sentencing for this type of offence and that the link between general deterrence and the increasing prevalence of this offence is readily apparent.[10]

[10] [2010] VSCA 250 [11] (citation omitted).

Nettle JA added:

In my view lest there be any doubt about it, there should be no doubt that in cases involving cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of sentencing considerations. Consequently, as the judge rightly observed, in cases of this kind there is less room to give weight to considerations of such as youth and antecedents that would otherwise be the case. In the result the judge also correctly found in a case of this kind an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.[11]

[11] Ibid [17].

24      Whilst your offending conduct is encompassed only by you assisting your co-offenders on one day, this was a large crop, both in number of plants and in weight. The set-up was large and highly sophisticated and clearly the crop was being grown by your co-accused for a commercial purpose. I accept that you fall to be sentenced on the basis that your state of knowledge was that more than a commercial quantity of cannabis was being grown within the premises, but you were unaware of the precise amount, either in number of plants or weight.[12] Nonetheless, your counsel accepted this was ‘serious criminal offending’.[13]

[12]Outline of Submissions on Behalf of the Accused, dated 5 July 2018 (Exhibit D1) [10].

[13]Ibid [3].

25      Clearly, general deterrence, denunciation and just punishment are significant sentencing considerations in your case.

Personal circumstances

26      You were born in Vietnam on 20 September 1970 and you were 46 years old at the time of the offending. You are currently 47 years old. You grew up in Nighe An province in Northern Vietnam in what your counsel described as supportive, but deprived, circumstances. You are one of five children. Your father was a labourer and your mother worked in the rice fields. Your early years were marked by a scarcity of food and money and a lack of stability.

27      You began working when you turned 14 years of age. Your desire to assist your family was the primary concern in your life and overtook your education. This became an enduring theme for you. You worked as a labourer in construction for several years, before you spent time in the military. After this you returned to your home town to work in rice fields. You remained there for a further ten years.

28      During this period you married and fathered two children, now aged 22 and 24 years. You have had some contact with them and your wife whilst you have been in custody.

29      While working in Vietnam you earned an average annual wage equivalent to about USD 2,200. You saw an opportunity to travel to work in Australia and earn $400 to $500 per month.

30      You entered Australia approximately four years ago on a short term work visa. You came to Australia in search of better opportunities to financially assist your wife and children, as well as your parents, who all remained in Vietnam, where they reside to this day. The cost of your passage to Australia, including a visa and sponsorship supporting documentation, was about $20,000. This required that your family raise a loan, using the title to their land as collateral.

31      Upon the expiry you visa, after a couple of months, you deliberately overstayed so you could work to pay off the debt that was incurred by your family in Vietnam in funding the cost of your travel to Australia.

32      Whilst in Australia you obtained work as a handyman and as a casual labourer. You would perform this work as often as possible and this enabled you to send money back to your family in Vietnam.

33      You admit that you have overstayed your visa to continue working and providing financial support to your family. It is in this context that the current offences occurred. Your motive in committing the present offences was to earn money to send back to you family. Apparently, you expected to receive only a modest financial gain through payment for the work you performed in relation to the cannabis crop, however, this was more than you could expect to earn otherwise.

34      Your counsel told me you remain indebted in an amount between $5000 to $10,000, on which interest is accruing at an alarming rate. Your move to Australia has been a financial disaster for you and your family. Your parlous situation provides a salutary lesson to others who may contemplate following your example.

Mitigating circumstances

35      You have no prior or subsequent offences and there are no matters pending against you. You fall to be sentenced as a person of prior good character, although as noted above, in cases of this type that factor does not carry the weight it might have otherwise. Nonetheless, in your case specific deterrence and protection of the community need be given little weight. I accept you have a good work history and I take the view that you have reasonably good prospects of rehabilitation.

36      You have pleaded guilty at an early opportunity. Your pleas have utilitarian benefit in saving the time and cost of a trial. They also indicate an acceptance by you of responsibility for your offending conduct and your willingness to facilitate the course of justice. However, whilst you are regretful for the situation in which you find yourself, there is no evidence of remorse beyond what is reflected in your pleas. There is therefore insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse.[14]

[14]See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).

37      I accept that your offending was not driven by greed, but by a desire to improve the impoverished circumstances of your family back in Vietnam. Unfortunately, this is an all too familiar story in this community. I also accept that you had a deprived upbringing, which provides some explanation for your current predicament.

38      Upon your release from custody you will in all likelihood be taken into immigration detention and deported back to Vietnam. This is not a mitigating circumstance in and of itself. Moreover, I do not accept that the likelihood of your deportation means that any sentence of imprisonment will weigh more heavily on you, since it is your desire to return to Vietnam, where your family awaits you. I do accept, however, that whilst in custody on remand for these offences, you have been socially and, to some extent, culturally isolated. Whilst you have had regular telephone contact with your wife and children in Vietnam, you have had no visitors.

Application of sentencing principles

39      I have had regard to current sentencing practices in relation to the offences before me in light of the decisions of the High Court of Australia in DPP v Dalgliesh(a Pseudonym)[15] and the Victorian Court of Appeal in Nguyen v The Queen.[16] You counsel provided me with a table of so-called ‘comparable cases’.[17] It is difficult to gauge more than a very general yardstick from these and other cases given the wide range of offending conduct which can constitute the offence of cultivate a commercial quantity of cannabis, and the myriad of personal circumstances pertaining to individual offenders. For the reasons given earlier, I am of the view that your offending is a serious enough example of this offence. To the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.

[15] (2017) 91 ALJR 1063.

[16](2016) 311 FLR 289.

[17]Exhibit D2.

40      It goes without saying, that by reason of the serious nature of your offending conduct, the only sentence I can impose upon you is one of immediate imprisonment. You counsel accepted this was so. Ultimately, your counsel submitted that I should impose a longer non-parole period than I might have imposed otherwise. In light of your lack of prior convictions, your reasonably good prospects of rehabilitation and your low-risk of reoffending, I accept this submission.

41      The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, and your personal circumstances.

42      I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.

43      General deterrence is an important sentencing consideration in sentencing you on charge 1. Just punishment and denunciation must also be given significant weight. I am of the view that, in your case, specific deterrence and protection of the community are not required to be given significant weight. I assess your prospects of rehabilitation as being reasonably good.

Stand up Mr Tran

On the charge of cultivating a narcotic plant in a commercial quantity (charge 1) you will be convicted a sentenced to 3 years’ imprisonment.

On the charge of theft (charge 2) you will be convicted and sentenced to 14 days’ imprisonment.

On the charge of deal in property suspected of being proceeds of crime; being the $375 (related summary charge 5) you will be convicted and sentenced to 7 days’ imprisonment.

On the charge of deal in property suspected of being proceeds of crime; being the 25 ballasts (related summary charge 7) you will be convicted and sentenced to 7 days’ imprisonment.

I order that the sentences imposed on charge 2 and related summary charges 5 and 7 be served concurrently with the sentence imposed on charge 1 and with each other. This makes a total effective sentence of 3 years’ imprisonment. I order that you serve a minimum term of 18 months’ imprisonment before becoming eligible for parole.

I declare the period of 548 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that the fact that declaration was made and its details be noted in the records of the court.

The effect of that declaration is that you are now eligible for release on parole. It will be a matter for the Adult Parole Board whether or not you are released on parole, and if you are, in all likelihood you will be taken immediately into immigration detention prior to your eventual deportation from this country.

Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a sentence of 4 years’ imprisonment with a non-parole period of 2½ years’ imprisonment.