Director of Public Prosecutions v Tran

[2018] VCC 595

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02439

DIRECTOR OF PUBLIC PROSECUTIONS

v

CUONG TRAN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April 2018
DATE OF SENTENCE:	30 April 2018
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2018] VCC 595

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Cultivate narcotic plant (commercial quantity) – Role as a crop sitter for one day – Inevitable deportation

Cases Cited:            Ngoc Nguyen v Queen 2017 VSCA 286

Sentence:Convicted and sentenced to a Total Effective Sentence of 16 months’ imprisonment with a non-parole period of 10 months’ imprisonment – Pre-sentence detention of 234 days declared as having already been served – Ancillary orders of Forensic Sample and Disposal – s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms V. Morkos ( Plea) Ms R. Muchinguri (Sentence)	Solicitor for Public Prosecutions
For the Accused	Ms K. Mildenhall	VLA

HER HONOUR

1Cuong Van Tran, you have pleaded guilty to one charge of cultivation of a commercial of quantity of cannabis.  The offence has a maximum penalty of 25 years' imprisonment which reflects the seriousness with which Parliament regards this offence.

2The prosecution told me the following things about the circumstances of your offending.  I was told that you were 55 years old at the time that you committed the offence and that you are still 55 years old.  You are a Vietnamese citizen who first entered Australia on a tourist visa which expired in January 2015.  You remained in Australia unlawfully since the expiration of your visa.

3In about June 2017, police commenced an investigation into premises in Stewart Street, Braybrook following receipt of information of a hydroponic cannabis crop.  At about 7.00am on 8 September 2017, police attended these premises to execute a search warrant.  Upon attempting to gain entry to the front of the house, police at the back of the property saw you running through the backyard.  As you were jumping the back fence into a property next door, a police officer managed to grab you and you were arrested.

4The search warrant was then executed and the following items and equipment were found at the house that you had run from.  Firstly, a sophisticated hydroponic setup for growing cannabis in four bedrooms along with the laundry being used to store the water pump and reservoir system with hydroponic chemicals.  The four bedrooms contained cannabis in pot plants which were in various stages of growth.

5Secondly, a quantity of dried cannabis was found in a plastic bag in the top shelf within the laundry cupboard.  This plastic bag containing cannabis mixed with an unidentified component weighed 4.87 kilograms.  This evidence was led by the prosecution for the purposes of context only and the cannabis in the mixture is not part of the commercial quantity which you cultivated.

6Thirdly, an electrical bypass was installed in the house which was used to grow the crop hydroponically and fourthly, numerous further items were found by police, those items being commonly used to grow cannabis hydroponically.

7One hundred and forty seven cannabis plants were growing in the house, the total weight of the cannabis throughout the premises was 72.51 kilograms however the prosecution was unable to tell me if this was the dried or wet weight although the prosecutor said that she thought it was the dry weight.

8Having viewed the botanist's certificate, I do not believe that this is the case, as it appears that the plants were weighed on the day of the search although I cannot be sure about this.

9In any event, a commercial quantity of cannabis is 25 kilograms or one hundred plants.  Therefore, you are involved in cultivation of a quantity of plants that was well in excess of the threshold for commercial quantity on any view of things.  In particular the weight of the plants was nearly three times the threshold.

10You were arrested and taken to the local police station.  You were not interviewed by police as an interpreter could not be found.  You were subsequently charged with the offence for which I now sentence you.

11I sentence you on the basis that your role was that of a crop sitter in that you were attending the commercial quantity of plants for one day as the indictment asserts.  Although the prosecution referred to evidence that you were living at the house, I have charged you with one day of crop sitting and so, I sentence you on that basis.

12Although your role was a rather lowly one, at the bottom of the hierarchy for this type of matter, it was still an important one which helped make the cultivation of the crop possible.  I have also factored in that the setup of the crop was a sophisticated one although you had no hand in setting it up.

13In all of the circumstances, your offending is serious and deserving of a punishment which is just in all of the circumstances and your conduct must be denounced.  Also, strong weight must attach to general deterrence in a bid to deter others from behaving as you have.

14In your favour, you pleaded guilty at early stage which entitles you to a significant discount in the sentence that you would otherwise receive.  This is because you have saved the witnesses the time and trouble of giving evidence in contested proceedings and you have saved the community the time and expense of these.

15On your behalf, Ms Mildenhall submitted that your early plea was also indicative of remorse and told me that you had expressed your regret to her that you had accepted the job offer at the house and had become involved in illegal activity.  I accept that you had these regrets in respect of your own situation rather than any insight or regret in respect of those who might be affected by a cannabis use which you had a hand in facilitating.

16In the end, I accept that you have a limited degree of remorse.  You have spent a substantial time in custody already and have no family or friends here.  You do not speak English although there are other prisoners, as I understand the situation, who speak your language.

17Still, I have factored in that this is your first time in gaol and that in all your time in gaol has been and will be somewhat harsher than for others who have no language barrier and who have family and friends to visit them.

18I take into account your background.  You were born in a coastal province of Vietnam and completed the equivalent of primary school there.  You moved to another province and commenced work as a fisherman when you were only 13 years old.  When you were 21, you married and you have five children all of whom are now adults.

19You supported the family by working as a fisherman and your wife was a street vendor who sold fish.  I was told that your youngest child is in the military service.  Sadly, your eldest child lost her husband in 2015 and returned to the family home.  She has a young daughter and helps support the household by working as a nail technician.

20All of your family remain in Vietnam.  In 2014, you travelled to Australia in the hope of obtaining farm work for better money than you received at home so, as to send the money back to your family.  Although you had a one month tourist visa, it was your intention to come to Australia to work.

21I was told that very soon after you arrived here, you obtained work in Geelong as a vegetable cutter.  About two months before your arrest, you travelled to Bundaberg Queensland to pick beans.  You were paid by the kilogram and so received about one hundred to one hundred and twenty dollars per day, working six days a week.

22You lived in a share house with six other people.  I was told that it was while you were working in Bundaberg that you were approached by a co-worker who told you that you could earn some money by doing some work at a house in Melbourne.  I was told that the idea of working inside was appealing to you and you travelled to the crop house without knowing what work you would be doing.  You quickly found out, knowing that what you were doing was illegal, which is readily apparent by your actions when the police came to the door.

23You are looking forward to going home to be with your family.  You have no prior convictions and have been working as a window cleaner whilst on remand.  There have been no incidents while you had been in gaol.

24In view of your offending on the occasion before me, your lack of criminal history, your good behaviour in gaol, your strong work ethic and inevitable deportation, I find that your prospects of rehabilitation are excellent and I need only place very minimal weight on specific deterrence.  Ms Mildenhall referred me to a recent case in our Court of Appeal of Ngoc Nguyen v Queen 2017 VSCA 286 and a relevant sentencing snapshot, although she accepted that the latter was of limited utility.

25In relation to current sentencing practice, which is one of the matters I must have regard to, she pointed to one of the cases referred to in a chart attached to the Court of Appeal decision.  The learned prosecutor also referred me to some cases in the chart.  I have had regard to these cases and have considered the chart more generally, bearing in mind that current sentencing practice is but one of the matters which I must take into account when sentencing you and is not a controlling factor.

26Ms Mildenhall submitted that in all of the circumstances, I ought to impose an immediate gaol term of imprisonment which reflected the time in gaol that you have already served.  Her secondary position was that I ought to impose a period of imprisonment with an non-parole period which was not much more than the time that you have already served.

27Ms Morkos, for the prosecution, submitted that your offending was not at the lower end of the range, that it was between low and mid-range such that the time already served would not suffice to do justice to the need to impose a just punishment and denounce your conduct.

28Without making any express finding about the range that your offending falls into, I am of the view that in all of the circumstances I cannot do justice to all relevant sentencing principles without imposing a sentence which requires you to serve a further term of imprisonment.

29However, in view of your limited involvement in the cultivation and the matters in mitigation in your case, I am going to impose a sentence which will see you becoming eligible for parole in the not too distant future.

30Could you please stand up?  You are convicted of the offence.  I make the ancillary orders which are sought by the prosecution and which are not opposed by you.  I make an order for a forensic sample because it is not opposed and because of the seriousness of the offence.  I direct that the sample be taken by way of a swab from the mouth and I must warn you that if you do not cooperate in the taking of the sample, reasonable force may be used by the authorised officer to obtain the sample from you.

31I make the disposal order which is sought by the prosecution and not opposed by you.

32You are sentenced to 16 months’ imprisonment and I direct that you serve ten months’ imprisonment before becoming eligible for parole.

33I declare that you have already served 234 days by way of presentence detention.

34If not for your plea of your guilty, I would have sentenced you to three years' imprisonment with a non-parole period of two years’ imprisonment.

35Take a seat for a moment please, Mr Tran.  Is there anything arising out of those remarks?

36MS MICHINGURI:  No, Your Honour.

37MS MILDENHALL:  No, Your Honour

38HER HONOUR:  All right.  Now, Ms Mildenhall, would you like the opportunity to speak with Mr Tran with the benefit of the interpreter here or what would you like to do in that regard?

39MS MILDENHALL:  Just very briefly, if I could, Your Honour.

40HER HONOUR:  All right.

41MS MILDENHALL:  But that does not require Your Honour's presence.

42HER HONOUR:  All right.  Do you want me to stand down for a moment or what do you want?

43MS MILDENHALL:  If I could just quickly approach him?

44HER HONOUR:  All right.

45MS MILDENHALL:  Thank you, Your Honour.  Thank you for that time, Your Honour.

46HER HONOUR:  All right.  Yes, thank you very much.  If Mr Tran could be removed.  Thank you very much.  Thank you counsel and thank you Madam Interpreter.  We will now adjourn.

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