Director of Public Prosecutions v Tran

[2018] VCC 185

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02057

DIRECTOR OF PUBLIC PROSECUTIONS

v

THUAN THI MY TRAN

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2018
DATE OF SENTENCE:	1 March 2018
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2018] VCC 185

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – cultivation of cannabis L (commercial quantity) – unlawful non-citizen – low level offending – custodial sentence imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Locke	John Cain, Solicitor for Public Prosecutions
For the Offender	Ms C. Woodward	Victoria Legal Aid

Pages 1 - 5

 

 

HER HONOUR:

1Thuan Thi Mai Tran, you have pleaded guilty to one charge of cultivating a narcotic plant, commercial quantity.

2The crime is objectively serious, and that is reflected in the maximum penalty that I can impose, and that is, 25 years' imprisonment.

3I will now proceed to sentence you on the basis of the opening that was read by the prosecutor, Ms Locke.  The opening was tendered as an exhibit in the plea hearing.

4Essentially, on 10 July 2017 police arrested you at a residential property in Frankston.  At that property police located a total of 229 cannabis plants that were in various stages of maturity, and they weighed 36 kilograms.  The property was not being used for residential purposes.  Rather, six rooms were being utilised to cultivate cannabis, and that crop was supported by an elaborate hydroponic set up.

5In sentencing you I must have regard to your role in the offending, and the gravity of your offending.

6In this case both prosecution and defence agree that your role was minimal.  You are to be sentenced on the basis of your criminality being restricted to that day only, 10 July 2017, for a period of approximately 40 minutes.

7Police were surveilling the property and observed that you were present there with another man; a co-accused, Mr Luu – Mr Dan Van Luu – who has pleaded not guilty to the charges that he has been charged with, including cultivating a narcotic plant in a commercial quantity. His matter is due to go to trial at a later date.

8Police observed that you were present at the property with Mr Luu and you are to be sentenced on the basis that you accompanied him to the crop house and helped him out on that day for those few hours only. 

9Overall, I consider your role to be minimal, and this is the lowest level of offending in respect to this charge.

10I note that you lived in a share house with the co-accused and his wife.  The Crown have not been able to demonstrate any evidence of reward or benefit, and I accept that your role was for the purposes of providing him assistance only.

11Notwithstanding all of that, because of the nature of the offending, and its prevalence, general deterrence, just punishment, and denunciation are all highly relevant sentencing considerations.

12I have had regard to your personal history and background.  You are a 25 year old woman who is a Vietnamese national.  You were born in Cam Ranh city, South Vietnam.  You are the youngest of seven siblings.  You grew up in Vietnam and your family life was simple, and described as impoverished.  Your father was a fisherman and your mother also supported the family by selling fish.  Your siblings and parents remain in Vietnam and you have no real connections to Australia.

13You are a person who has minimal education.  You completed the equivalent of Year 10 in a government school in Vietnam.  You left school early, at about 15, so that you could obtain employment to contribute to the household finances, and worked in a capacity in a local supermarket, demonstrating items.

14In 2014 you came to Australia on a tourist visa.  You were able to stay with a paternal aunt, with whom you had minimal previous relationship.  She was able to assist you to obtain labouring work on a farm, but that relationship broke down within a short time and you found yourself on your own, having to live and survive on your wits.  You found some work as a labourer and you also undertook training as a nail technician. At the time you were arrested you were working as a nail technician on a casual basis, earning just six to eight dollars per hour.

15Because you overstayed your visa you are an unlawful non-citizen.  The expectation is that you will be deported upon finalisation of your sentence.

16Your father is currently in poor health.  He has a documented heart condition, and also problems with his liver, and the fact that his health has deteriorated recently is weighing heavily upon you, and you are anxious to return home to provide him with support and care.

17You enjoy good physical health, but it is obvious that you are suffering a degree of anxiety in respect to your situation currently.  You are very isolated within the prison system insofar as you do not have any real connections with Victoria and have very poor English skills.

18I accept all the matters that have been put on your behalf by Ms Woodward in mitigation.  Firstly, you entered a plea at the earliest opportunity at committal mention.  Your plea has saved the community in terms of time – as well as expense – of conducting a trial.  I accept that it is of real utility, and also, it is consistent with you taking responsibility for your wrongdoing.  You have facilitated justice and your sentence will be discounted accordingly.  Secondly, you are relatively youthful, and therefore your rehabilitation is of some relevance in this sentence.  Thirdly, you are a person who comes before the court with no prior criminal history, and no previous history of being in custody.  Fourthly, I accept that your experience in custody is more arduous than otherwise, given your limited understanding of English, and also, lack of any real connections to the State of Victoria.  Fifthly, I accept that because of the fact that you are an unlawful non-citizen that ultimately you will be deported home.  This is not a case where the risk of deportation is weighing heavily upon you, because you would not have had a realistic expectation of staying in Australia given your migrant status.  However, it is the case, with a conviction of this nature, that you will lose a chance to ever return to Australia.

19I noted that currently in prison you are being productive, working as a kitchen hand.

20I accept that you are genuinely remorseful for this offending and sincerely regret your involvement in this offending.  I accept that you have good prospects of rehabilitation and the likelihood of you ever offending in this nature in the future is minimal.

21I must impose a sentence that is just in all the circumstances.  It is still necessary to emphasise general deterrence, because it is necessary for the message to be given to anyone in the community that does undertake a role in criminal operations associated with the production of the cannabis crop – they need to know – even if it is a minimal involvement, it is still a serious criminal offence that will be met with stern punishment.

22In all the circumstances I consider a term of imprisonment is the only appropriate disposition in all the circumstances. I will proceed to sentence now.

23In respect to the one charge on the indictment you will be convicted and sentenced to nine months' imprisonment, and I make a declaration that you have already served 234 days pre-sentence detention and direct that that be entered into the records of the court.

24Had you not pleaded today and been found guilty after a trial, I would have sentenced you to a term of 18 months' imprisonment with a minimum term of 12 months.

25Is there a disposal order being sought?

26MS LOCKE:  No, Your Honour.  No.

27HER HONOUR:  No?  Okay.  All right, so that concludes the sentence.

28MS LOCKE:  As Your Honour pleases.

29HER HONOUR:  Okay.  Ms Woodward, would you like to spend some time with Ms Tran in the courtroom with the assistance of the interpreter?

30MS WOODWARD:  I'd be very grateful, Your Honour.  Thank you.

31HER HONOUR:  Yes, all right.  Well, look, I'll leave the Bench so that you can speak with your client.  Otherwise my involvement is completed and I thank you both for your assistance this morning.

32MS WOODWARD:  As Your Honour pleases.

33HER HONOUR:  And thank you, Ms Tran.

34INTERPRETER:  Thank you.

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