Director of Public Prosecutions v Tran

[2018] VCC 125

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02114

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUAN TRAN

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2018
DATE OF SENTENCE:	22 February 2018
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2018] VCC 125

REASONS FOR SENTENCE
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Subject:        Criminal law.

Catchwords:  Sentencing – cultivation of drug of dependence in a commercial quantity – early plea of guilty – no prior convictions – young children and child due to be born soon – prison likely to more burdensome for offender.

Legislation Cited:           Sentencing Act 1991
Cases Cited:                   Nguyen v R [2016] VSCA 198
Sentence:  10 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Harrold
For the Accused	Mr A. Patton

HIS HONOUR:

1Tuan Viet Tran, you have pleaded guilty to one charge of cultivation of a narcotic plant in not less than a commercial quantity, contrary to s.72A of the Drugs, Poisons and Controlled Substances Act 1981.

2You have also pleaded guilty to one count of possession of a drug of dependence, namely cannabis-L. 

3The circumstances of your offending were set out in some detail in the summary of the prosecution opening, which was tendered at your plea hearing as Exhibit A.  In short, you were present on 19 July 2017 at premises in Ringwood East, which were used as a facility for the cultivation of a large quantity of cannabis-L.

4You were observed by police leaving that property, and intercepted by police shortly afterwards.  A quantity of cannabis, namely two plants of cannabis, weighing as I understand it a total of 1.37 kg were located in the rear of that vehicle.

5Upon searching the premises in question, a sophisticated cannabis cultivation operation was discovered.  In all, there were 94 cannabis plants at various stages of growth, weighing a total of 66.95 kg, which is over two and a half times the weight at which such quantity would be deemed to be a commercial quantity.

6I should make it clear that notwithstanding that there were three Bunnings invoices found in your possession relating to purchases made one day, two days and ten days prior to the police arresting you, and which may have been thought by some to be the purchases of equipment later found in the house, the prosecution case does not rely on such evidence, and the charge against you in respect of cultivation is limited to one day, namely 19 July of 2017.

7Further, although police found that the electricity meter had effectively been bypassed, there is no charge against you here in respect of theft of electricity.  I note that you did agree to participate in a record of interview with police later that day, or at least soon after.  In that record of interview, you denied ever having been to the house in question, or having anything to do with the cultivation of any cannabis.

8Nevertheless, you did plead guilty to these charges at the committal mention.  That is, at an early stage of the proceeding. 

9The purposes for which a court may impose a sentence in respect of an offence include a number of different matters, including the denunciation of your offending conduct, to deter you and others in the community from committing such offences in the future, and the like.

10I am required by s.5 of the Sentencing Act to have regard to a number of matters, including the seriousness of your offences, your culpability for them, and your personal circumstances, and I have taken into account each of the matters set out in sub-s.2 of s.5 of that Act.

11The maximum penalty prescribed for cultivation of a narcotic plant in not less than a commercial quantity is 25 years' imprisonment.  The maximum penalty for possession of a drug of dependence in these circumstances is five years' imprisonment.  Those maximum terms do reflect the seriousness with which Parliament views these offences.

12Your counsel has submitted, and I accept, that there are a number of mitigating factors relating to your sentence.  Firstly, as stated, you did plead guilty at an early time.  Such a plea had utilitarian benefit, in that witnesses were not required to give evidence at a committal or at trial.  It may also be demonstrative of some remorse on your part, although I do note that the Crown case appeared to be very strong.

13You have been in custody since 19 July last year, a little over seven months, and I was advised by your counsel that during that time you have engaged in a number of educational courses, which is to your credit.  Certificates relating to those courses were tendered this morning. 

14You have no prior convictions.  You are to be sentenced as a person who has previously been of good character.  I understand that this has been your first time in custody.  Whilst your age does not permit me to classify you as a youthful offender as defined in the Sentencing Act, you are nevertheless still of an age where the vast proportion of your life lies ahead of you.

15I have been provided with a number of sentencing snapshots in relation to the offence of cultivation of a drug of dependence in a commercial quantity, and I have perused a number of sentencing decisions referred to.  Those sentencing snapshots are of limited assistance to me. 

16Firstly, there is a shortage of information in them, in that prior convictions and the like are not detailed or specified in such cases, and also the data behind those statistics relates to sentencing between 2008 and 2013, and there have been significant changes to the Sentencing Act since that time.

17An example is that when I look at sentencing statistics in the period that I have referred to, more than 40 per cent of the sentences for this offence were wholly or partially suspended, which would not be possible at this time.

18Your counsel submitted - and the prosecutor conceded, that your role in this offending can fairly be described as that of a crop-sitter, which I understand would consist of the basic minding of the crop, including some care and maintenance of it, details of which are not before me.  There is no suggestion made by the prosecution that you were involved in any of the entrepreneurial aspects of the operation, or in the design or installation of any of the equipment found at the premises. 

19The prosecutor conceded that your rule would be at the lowest end of what has been described in some decisions of the Court of Appeal as "Cluster 1", that is effectively the role of a crop-sitter.

20Nevertheless, I am satisfied that your role was vital for the cultivation, harvesting and eventual sale of the crop, and the anticipated profits that would result from such sales.  Having said that, the fact that the offence is limited to cultivation for one day and one day only does put that offending conduct in some proportion.

21The prospect of deportation in the future is a factor that may bear upon the impact of a sentence of imprisonment on you.  I accept that an offender who serves a term of imprisonment in expectation of being deported following release may experience a greater burden whilst serving that sentence.

22I was referred to the decision of the Court of Appeal in Nguyen v The Queen in 2016, which involved an offender who had overstayed his visa and faced possible deportation arising from a sentence of imprisonment.  Redlich JA stated as follows:

"It is entirely speculative whether the Minister may grant a waiver of the no further stay condition, so as to enable the appellant to pursue an application for a partner visa, even if the appellant's risk of deportation was a relevant, mitigatory factor.  It was not of an order that leads me to conclude that a different sentence should be imposed."

23I am also conscious of His Honour's comments at paragraph 36 of that judgment.  The same comments I consider will apply in your case.

24Whilst your prospect of settling in Australia, if that was your intention, upon completion of a sentence of imprisonment may be diminished, I am disinclined to speculate on the outcome of any decision of the relevant Minister in respect of your visa or prospects for citizenship.  Nevertheless, I accept that the uncertainty and prospect of deportation is likely to make the service of a prison sentence considerably more burdensome upon you.

25I consider that there are some unusual circumstances associated with your case.  You are 32 years old and married.  You have a seven-month-old child.  You have three stepchildren, two of whom are effectively part of your family, and for whom, I infer, you are effectively responsible.

26Whilst any upset or stress to members of your family is not a matter that I would take into account, the fact that you have a wife and effectively, seven-month, five years, and seven year-old children left at home would in my view make the service of any prison sentence considerably more burdensome upon you than would otherwise be the case.

27Taking all the circumstances into account, in relation to Charge 1, cultivating a commercial quantity of a narcotic plant contrary to s.72A of the Drugs, Poisons and Controlled Substances Act 1981, you are to be convicted and sentenced to a term of imprisonment of ten months.

28In relation to Charge 2, possession of a drug of dependence, you are convicted and sentenced to imprisonment for three months.  Such term to be served concurrently with the sentence in respect of Charge 1.

29Now, Ms Harrold, pre-sentence detention?

30MS HARROLD:  Two-hundred and eighteen days, Your Honour.

31HIS HONOUR:  Thank you.

32MR PATTON:  I agree with that Your Honour.

33HIS HONOUR:  Thank you.  I declare that 218 days of pre-sentence detention, not including today, be reckoned as having been served under that sentence, and I direct that a declaration to that effect be recorded on the records of this court. 

34Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these charges, I would have sentenced you to a total effective sentence of 22 months on an aggregate basis.

35Now, in terms of ancillary orders sought, Ms Harrold, I think you indicated that there was ‑ ‑ ‑

36MS HARROLD:  Disposal, forfeiture ‑ ‑ ‑

37HIS HONOUR:  Disposal, forfeiture and ‑ ‑ ‑

38MS HARROLD:  Forensic sample.

39HIS HONOUR:  Yes, thank you.  I note that Mr Patton has indicated that there is consent to each of those orders.  I will make the - have you seen the nature of the orders?

40MR PATTON:  I know what they are forfeiting and disposing, I have not seen the physical orders, but I take no issue with them, Your Honour.

41HIS HONOUR:  All right, thank you.

42MR PATTON:  My instructor has.

43HIS HONOUR:  I will make those orders as - how many do you require of each of those signed, Ms Harrold?

44MS HARROLD:  I believe we hand up three, because the court retains one, we take one, and the informant is provided with one.

45HIS HONOUR:  Well I have right in front of me - there is one of each.  That does not mean to say there are not more tucked away here.

46MS HARROLD:  I understand that my initial thought was wrong.  The practice is now that we provide one for Your Honour to sign, and then we make copies, so I apologise for that.

47HIS HONOUR: There you are, times are changing, good. Now, Mr Tran, I will also order, pursuant to s.464ZF of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample in accordance with subdivision 30A of Part 3 of the Crimes Act, until a sufficient sample or standard is obtained for placement on the database.  I understand that you consent to such sample being taken.  Nevertheless, I am required to tell you that if you do not consent to a sample being taken from you, police may use reasonable force to enable that forensic procedure to be conducted.  What is the date today?

48MR PATTON:  The 22nd.

49HIS HONOUR:  The 22nd.  I make that order accordingly.  Are there any other matters that either counsel wish to raise?

50COUNSEL:  No Your Honour.

51HIS HONOUR:  Mr Tran, can I just say one final thing to you.  Should you come back before this court in relation to any similar charge to these, you are almost certainly likely to spend a long time in prison.  Keep that in mind.  Yes, Mr Tran should be taken downstairs, thank you.

52INTERPRETER:  Just a moment Your Honour, can the ‑ ‑ ‑

53MR PATTON:  Can I just approach my client in the dock please?

54HIS HONOUR:  Yes, just talk to Mr Patton about it, I think.

55MR PATTON:  Thank you Your Honour.

56HIS HONOUR:  All sorted?  Thank you.

57MR PATTON:  Yes, the three months on Charge 2 was concurrent, thank you Your Honour.  That is where the confusion was.

58HIS HONOUR:  Yes, adjourn until 10.30 tomorrow, I think.  9.30 tomorrow.

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