Director of Public Prosecutions v Tran

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR-18-00371

DEPARTMENT OF PUBLIC PROSECUTION

TAN VAN TRAN

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 July 2018
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2019] VCC 1074

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown (Plea) (Sentence)	Ms T. Saville Ms Hunter
For the Accused (Plea) (Sentence)	Mr R. De Kretser Ms Grey

HIS HONOUR:

Tan Van Tran, you have pleaded guilty that between 11 June 2016 and 12 August 2016 you cultivated a commercial quantity of cannabis. The maximum penalty for this offence is 25 years imprisonment.
The prosecution tendered a summary of prosecution opening on plea as Exhibit A. A brief summary of your offending is as follows.
On 11 August 2016 police executed a warrant at 131 Eastbourne Road Rosebud. At that address they located a sophisticated hydroponic cannabis set up in 6 rooms of the house. Within each room, plants were potted inside black plastic pots interconnected with irrigation pumping throughout the floor and walls. Plants of moderate size were supported by bamboo sticks and metal wiring in each pot. Each room also contained white hydroponic light shades with industrial globes and transformers.
The police located across the 6 rooms a total of 235 plants with a combined weight of 65.81 kg.
Inside the hallway cupboard police found 3 power boards with 28 power points on each and multiple extension leads threaded through the ceiling cavity and an electrical bypass was located within that roof cavity.
Finally, police located various growth chemicals, soils and accessories. There was a notice from Avon fencing containing your contact details. A bin hire invoice was examined and found to bear your fingerprint.
You were arrested in Shepparton about a month later. When police searched the vehicle in which you were a passenger, they found water tubs and pots. You were interviewed by police on 13 September 2016 but denied knowledge of the crop or the address. You told police that you had not been to Rosebud previously.
Charges were issued on 23 November 2016 but were not served on you until 12 April 2017. The matter resolved on 20 February 2018 at committal but before witnesses were cross-examined. I accept that the plea was entered at an early time.
You were remanded in custody on 18 April 2018. You have now served a total of 85 days by way of pre-sentence detention, but only 6 relating specifically to this matter. I consider that the matter for which you were remanded, given your lack of prior convictions, is unlikely to result in a custodial sentence, certainly not one of 85 days. I will generally take into account the period you have been in custody, in fixing the sentence; not by way of a specific calculation of pre-sentence detention, but to generally ensure that an overall just and proportionate sentence is imposed.
I turn now to your personal circumstances.
You are 36 years of age and you were born in June 1982. You are the oldest of 3 children born to a family who lives in one of the poorest provinces in Vietnam. You finished your secondary schooling and attended university, completing a construction and building course. You worked in the construction and building industry and then you worked for a government department which looked after waterways in Vietnam.
You have 2 children from a previous marriage. They are now aged 10 and 7. They live with your parents in Vietnam.
You arrived in Australia on 1 November 2013 on a student visa in order to learn English. You stopped classes after only 3 weeks and instead worked odd jobs through South Australia.
You instruct that you were approached in June 2016 to become involved as a crop sitter for a cannabis cultivation operation.
In that same month, and on 12 June 2016 you married your current wife, Jenny Doan. Ms Doan is an Australian citizen. At the time of your arrest, you remained in Australia on a spousal bridging visa.
Mr De Kretser submitted that your sentence should be mitigated in light of:
·first, your early plea of guilty;
·second, your low role in the offending;
·third, your lack of prior criminal history;
·fourth, your prospects for rehabilitation;
·fifth, the fact that you almost inevitably face deportation for this offending; and
·sixth, the fact that your time in prison has been more burdensome due to your lack of family support, your limited English skills and your uncertainty over whether you will be returned to Vietnam at the end of your sentence; and
·finally, you feel the burden that you are unable to support your 2 daughters in Vietnam or your wife Ms Doan and her 2 young children since your imprisonment.
The courts have recognised that there are 2 relevant clusters of cases involving commercial cultivation. In the first cluster of cases where offenders were crop sitters or playing an ancillary role, there is typically involvement for only a relatively short period of offending, and the offenders were less likely to have previous criminal convictions. In those cases, the offenders did not hold a proprietary or financial interest in the crop outcome.
Mr De Kretser submitted that you should be sentenced as a crop sitter and not as a principal, or a person with a financial interest in the outcome of the crop cultivation. Mr De Kretser referred to the Court of Appeal case of Ngoc Nguyen [2017] VSCA 286; and particularly to Annexure A to that judgment where the Court set out a comprehensive summary of sentences passed in this court in the last 2 years on persons charged with cultivation of cannabis in hydroponic setups. Mr De Kretser particularly referred to the sentences passed by Judge Montgomery in the matter of Van and by Judge Lawson in the matter of Tran in the summary of sentences found at p. 45 of the Court of Appeal judgment. In each of those cases, a sentence of 2 years with 12 months to serve was passed.
In response to the defence submissions, Ms Saville of counsel on behalf of the Crown submitted that she agreed with the defence submissions. In all of the circumstances, I consider that it is appropriate to sentence you as a crop sitter. It is recognised that this category or cluster is in the lowest category of seriousness. As such, you must be considered to be low down on the hierarchy of moral culpability.
Of course, the only conclusion that I can reach is that you were to be paid for the work of tending the crop; but that payment was to be modest compared to the profits to be made from the sale of the cultivated crop. It is not necessary for me to find that according to your counsel you were to be paid $900 a week. I am simply satisfied overall that the amount of your payment was fixed and relatively low.
Nevertheless, those who participate in the cultivation of commercial crops of cannabis for financial reward must expect to receive terms of imprisonment. The number of plants found at the house, the quantity of marijuana recovered and the sophistication of the setup for growing the drug speaks of the profits expected to be made by others from such a venture. You willingly played your role in that venture in expectation of reward. Your conduct must be met through the principles of general deterrence, denunciation and just punishment.

I accept the submissions put on your behalf by Mr De Kretser as to the mitigation of your sentence, and I will ensure that the sentence I impose takes into account some mitigatory effect on the sentence I must impose. Nevertheless, general deterrence, denunciation of your criminal conduct and just punishment remain the paramount considerations in fixing the appropriate sentence upon you.
But for your plea of guilty, there is little or no evidence of remorse. The denials made by you to the police of your illegal involvement are contradicted by your plea of guilty. Your plea of guilty does however have utilitarian benefit. It has saved the resources required to run a trial. In this way there is a saving to the community. I am also prepared to find that your plea should mitigate your sentence.
I have no doubt that your time in custody is made more difficult by your lack of English skills and your lack of wider family support, although it seems that you have some limited support from your wife.
Further, in the absence of you having prior convictions, it is to be hoped that this matter will stand as an isolated incident your life. In the circumstances, although I have relatively little information about you, it must be hoped that your prospects for rehabilitation are good.
Whilst I have considered the cases referred to on your behalf by Mr De Kretser, I must be careful to come to my own conclusion as to the appropriate sentence in this case.
Could I asked you to stand please, Mr Tran. On the charge of cultivation of a narcotic plant in a commercial quantity, you are convicted and sentenced to 20 months imprisonment. I order that you serve a non-parole period of 10 months before you are eligible for parole. I declare the period of 6 days pre-sentence detention, not including today, reckoned as already served. The 6AAA declaration is that but for your plea of guilty, I would have imposed a sentence of 3 years, with 2 years to serve.
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[2019] VCC 1074

12 July 2018