Director of Public Prosecutions v Tran

[2017] VCC 1663

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00677

DIRECTOR OF PUBLIC PROSECUTIONS

v

LONG DUC TRAN

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2017, 7 September 2017.
DATE OF SENTENCE:	13 November 2017
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2017] VCC 1663

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – cultivate a narcotic plant commercial quantity.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic).
Cases Cited: R v Nguyen [2017] VSCA 127, R v Nam Son Nguyen [2016] VSCA 198, R v Bich Nguyen [2016] VCC 280, R v Vo and Dong [2016] VCC 199, Guden v The Queen [2010] VSCA 196, DPP v Charles Dalgliesh (a pseudonym) [2017] HCA 41.
Sentence: Convicted and sentenced to a term of imprisonment of 3 years with a non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Goliszek	Office of Public Prosecutions
For the Accused	Mr C. De Francesco	C Marshall and Associates Criminal Lawyers

HIS HONOUR:

1In this matter, Mr Long Duc Tran, who is 19, having been born on the
4 September 1998, at the age of 18 committed the crime to which he pleaded guilty.  This matter was first heard by me on 10 August 2017 and given the issues that surrounded him, the matter was further adjourned to 7 September 2017.

2There is one other query I have got actually, Mr De Francesco.  What is his position of immigration status at the moment, because he had lodged an appeal but then I was told by Mr Toohey in fact the sooner he gets home to Vietnam the sooner that is what suits him.  So does that mean the appeal is not being pursued?

3MR DE FRANCESCO:  I have no further instructions on that, Your Honour.

4HIS HONOUR:  Yes, thank you.

5MR GOLISZEK:  Your Honour, I can assist if that is appropriate?  Our office has made contact with the department and it has been noted that Mr Tran is lawfully in Australia on a bridging visa.

6HIS HONOUR:  Yes, I understand that.

7MR GOLISZEK:  I am instructed that the appeal is still on foot.

8HIS HONOUR:  Still on foot?

9MR GOLISZEK:  Yes.

10HIS HONOUR:  That is why I found it a little difficult in that his instructions are he was keen to get out of the training centre or gaol as soon as possible to return.  So we will presume, even though that is refused, that the appeal is still going.

11MR GOLISZEK:  Yes, Your Honour.

12HIS HONOUR: Mr Tran pleaded guilty on 10 August 2017 to the crime in indictment number H10081430. There was only one charge in this indictment. The circumstances are depressingly simple. The charge is cultivate a narcotic plant, being a breach of s.72A of the Drugs, Poisons and Controlled Substances Act 1981.

13The period of cultivation to which you have pleaded guilty is a period of
7 January 2017 to 9 January 2017, a period of only two days.  The maximum penalty prescribed for such a crime is the highest penalty that is prescribed in our various criminal jurisdictions, either in the Crimes Act or under this Act, and that is a period of 25 years' gaol.

14Exhibit A was tendered, and Mr Toohey accepted to that document as detailing the full circumstances and the facts upon which I have to sentence Mr Tran.  The premises where this cannabis was located are respectively Unit 1 and 2/40 and 40A Heatherhill Road, Frankston.

15Exhibit B was tendered, which were photographs of the crop.  The analysis tendered and the facts set out in Exhibit A show that on both bases, of coming within the definition of commercial quantity, the amounts found at the premises qualified.

16That is the commercial quantity by way of plant numbers under the Act is 100.  189 plants were found at these premises.  By way of weight the commercial quantity is 25 kilograms, found at these premises was the weight of 79.92 kilograms.

17In the record of interview, in which Mr Tran freely admitted his guilt, he said he had only been there a couple of days and that is the manner in which this case has been put.  He had been given some money.  He suggested only $150.  He denied knowing or able to give the phone number of the person who had placed him there, an answer is seems totally incredible.

18He said that he was only there for the weekend, and there is no evidence, as I have said, that indicates he was there for any longer.  The car at the premises was bought in his name with the use of his licence.  It was bought, he suggested, by them and they bought it and that is why it was there.

19Mr Tran entered as a visitor into Australia on 1 September 2016.  It is suggested he entered for genuine visitor purposes with his father.  That is probably questionable, although that issue is not a matter that impacts on this sentence.

20He, subsequent to his father going back to Vietnam, applied for a protection visa on 25 November 2016 and in so far as that protection visa was concerned Exhibit 3 was tendered, which is a letter of refusal dated 20 June 2017 indicating the application had been made, that is the application for the protection visa of 25 November 2016 had been refused.

21An appeal was lodged.  The advice today is that appeal is still in place.  However, this Court has been advised by Mr Toohey, and there is no further or counter submission from Mr De Francesco, that instructions to his legal advisers are that he wishes to return to Vietnam as soon as possible and undertake studies.

22The plea was made as early as possible at the committal mention on 4 April 2017.  The pre-sentence detention to date is agreed at 308 days.  I have signed disposal and forfeiture orders.  In so far as the plea put by Mr Toohey,
Mr Toohey did his best on behalf  of Mr Tran, given the seriousness of this crime.

23Mr Tran is apparently quite gifted academically, certainly on the instructions, if they are correct, he was gifted such as to be able to get into the study of medicine in Vietnam.  He is very young.  I might have even called him childlike during the plea, but certainly he appears to be quite young.  As Mr Toohey said, his intent is to return to Vietnam as soon as is possible.

24The circumstances put by Mr Toohey were that apparently he met a person in Springvale as some time prior to the happening of this criminality.  As I said, he was apparently paid $150 for the weekend.  However, there was no mention of the car which clearly was put in his name and bought.  There is no satisfactory explanation of what was the relationship.

25The fundamental matters put on plea were that Mr Tran is a young person, still now a young offender, as defined under the Act, and as I said, has now turned 19. He comes before the Court with no priors.  There is no known evidence of enrichment, apart from the fairly paltry sum proffered in the record of interview, and as the Crown has put, he is to be sentenced essentially as what we describe as a "crop sitter".

26He has now had some ten months in gaol, a little over.  He has had a somewhat difficult time in gaol, given his limitations in language.  As I said, he is a young offender and as a result the provisions set out in the Sentencing Act, s.32 to s.35 apply.

27Mr Toohey gave to the Court a summary of sentences provided from a download from the Judicial College.  The prosecution put to the Court the fundamental principles set out in the case of R v Nguyen [2017] VSCA 127, in so far as they relate to a crop sitter, given the seriousness of this crime, are detailed.

28The circumstances were that in that case considered by the Court of Appeal there had been a three month admitted period in which the accused in that case had tended the crop, and the amounts involved in so far as plants were more significant.

29The general principles, however, relied upon are appropriate and I quote in particular paragraph 33, where the Court of Appeal said this:

30"It was also open the judge to form the view that the maximum penalty of
25 years' imprisonment stipulated for the cultivation offence was informed by the need for general deterrence and that the prevalence of the form of offending involved in this case gave rise to greater sensitivity in this regard."

31At paragraph 34 the Court said this:

32"In particular this was so because of the prevalent use of young persons with vulnerable immigration status to undertake the role of crop sitter or minder."

33It seems to me all those comments are most appropriate here.  Further at paragraph 36 the Court said:

34"It follows that the characterisation of the appellant's role as that of a crop sitter does not of itself displace the need to look at the circumstances of the offending as a whole and to weigh competing sentencing considerations in determining an appropriate outcome”. 

35I do of course take into account all the matters set out by Mr Toohey, and put to me on behalf of Mr Tran.

36I refer finally to paragraph 75 where the Court said:

37“On appeal, Pham’s sentence was reduced to two years and nine months’ imprisonment with a non-parole period of 19 months. The Court of Appeal was satisfied that the sentencing judge had reached a conclusion with respect to the extent of the reward which Pham expected which was not open on the evidence.”

38The Court went on to say at paragraph 76:

39"If the theft component," that which involved in that case electricity, "is notionally disaggregated, to use their words from the sentence, in the present case it can be seen that the sentence for cultivation is directly comparable to a further case that was discussed which was a case of Pham."

40All of those comments are directly relevant here.  I note in addition I was provided with a further case of Nguyen, being R v Nam Son Nguyen [2016] VSCA 198. That was a determination of Judge Carmody, a determination of Judge Smallwood in R v Bich Nguyen [2016] VCC 280, Judge Lawson in R v Vo and Dong [2016] VCC 199.

41As a result of consideration of all of those matters there was discussion with
Mr Toohey as to what one does given the particular circumstances and his youth.  In particular it was the instructions of Mr Toohey from Mr Tran that there was no Guden principle involved in this case because the instructions, which have been confirmed today, of Mr Tran were that he wanted to return to Vietnam to undertake his medical studies as soon as possible.

42The Guden case of course is reported [2010] VSCA 196. It was an old case of the now deceased Judge Barnett. It was a result of the totality of circumstances in the case that given the consideration that is required by the Sentencing Act for a youth sentence the matter was referred off for an appropriate report and that report was obtained by the Court.  That report is dated 4 September 2017.

43I do not think, Madam Associate, that we have given that report an exhibit number and it seems to me that should have Exhibit C.  As I said the report from Mr Riordan - I think Mr Riordan has been around almost as long as I have - but at any rate, as I said, Mr Riordan is the senior court advice officer.  He took particular time to consider these issues and interviewed Mr Tran via video.

44He raised very particular issues in so far as Mr Tran is concerned.  He noted that he was currently at Fulham Corrections Centre and in lodge accommodation with his own bedroom in a unit with five other Vietnamese men ranging in age from 25 to 50.

45Mr Tran advised him that he was relatively happy in that unit and feels safe as the other men look after him.  One particular person is a cook and cooks for
Mr Tran.  He was spending 12 hours a day studying English, IT and mathematics and working in the industries and when not studying was in the gym.

46The issue as to suitability which must be considered by the court under s.32 relates of course to the undesirable influences in an adult prison.  Mr Riordan realistically took the view that whichever gaol or youth corrections centre that Mr Tran would be deported at the end of his sentence.

47In regard to the above criteria he referred to his current position, his current cultural appropriateness with people where he is.  The problem at Malmsbury at the moment is that if he received a term of detention in a youth justice centre he would have to be in a secure unit due to his immigration status and would remain in that unit for the duration of the sentence.

48As a result he would not be afforded access to the usual rehabilitative programs.  The unit operates for the purpose of assisting young men with behavioural difficulties and cannot be managed in the open units, and young men on remand or those lacking the appropriate visas for release in the community.  He would also be the only Vietnamese client at Malmsbury Youth Justice Centre and Malmsbury does not have an in-house interpreter.

49Mr Riordan raised the question as to whether the system is suited for this particular young man.  He stated at the third page, "I do not believe that the youth justice system will provide any further benefit to Mr Tran than what he is already receiving in the adult prison.  Mr Tran cannot speak English and would be the only Vietnamese person at Malmsbury if he is placed there. He will be culturally isolated in a secure unit with potentially troubled men with behavioural difficulties.  He would not have access to a full range of programs at Malmsbury and he would not be afforded a period of youth parole.  I wonder if moving him from the environment where he is reasonably settled, engaging in rehabilitative programs in a unit with other Vietnamese men to a regime where he may feel isolated and marginalised, clearly this situation would not be of benefit to his overall rehabilitation and wellbeing."

50As I said, the matter was relisted, because of my concerns, on
7 September 2017.  Again there was some concerns as to what would be the issue of parole and the matter was further adjourned to today.  The result of course is that no-one can be sure in so far as a youth training sentence is concerned.  Experience is that he would serve a period of about one third of a sentence.

51Given that he has served nearly a year, it may well be that within the six months he would be released but no-one of course can be sure.  The matter was relisted for today to allow further consideration.  As I say, there was a letter received from his solicitors which has been confirmed today.  That email was dated
9 November.  The first paragraph confirmed the matters I spoke about in so far as parole and in so far the work of a Youth Parole Board in so far as a youth justice sentence order.

52However, it was put - this is signed by Felix Ralph of the firm C. Marshall and Associates:  “I do not anticipate the need for further submissions of any length or complexity.  The instructions from Mr Tran were that he would prefer a YTC sentence”.  As I can perceive it the purpose of those instructions was in the contemplation that he would return to Vietnam quicker than if he had an adult sentence.

53It is a very difficult sentencing determination in a case such as this.  The Court is not unaware of the problems of young men culturally isolated in gaol.  I must say, giving the matter further consideration, it seems to me that the views of
Mr Riordan expressed are views which I should accept.

54Mr Tran seems, as indicated, to be well catered for, being looked after by a like cultural group in prison.  The risks to him, it seems to me, are immense of changing that situation.  Despite his view expressed to me in that email by his solicitor and despite the maintenance of that view by Mr De Francesco today, I have concluded that based in particular upon consideration of the relevant sections of the Sentencing Act, and as informed by Exhibit B, Mr Riordan’s report, that I should not make a youth sentence order in this case.

55I might say it is a particularly unusual determination for me because I have always been of the view that it is most important to keep young men of Mr Tran's age out of gaol.  However, it seems that in the particular circumstances of this case in trying to cater for his particular cultural difficulties that the Court is required to make a determination which it would not normally make, and that is to place Mr Tran and leave him in an adult gaol situation.

56In determining this sentence I should not in any way be seen to underestimate the seriousness of the matter.  Parliament has prescribed such period of imprisonment to indicate the seriousness of people who become involved at any level in this type of crime.  Any involvement in this type of crime results in a significant sentence.

57The precise sentence that relates to a crop sitter must be informed by the particular cases that I have been referred to, but as recently been commented on in the case of DPP v Charles Dalgliesh (a pseudonym) [2017] HCA 41 in the High Court, that is simply one matter that one takes into account in coming to a determination as to the appropriate sentence, given the circumstances of this particular crime.

58As I say, the first consideration is the view of Parliament as to its significant seriousness and to the sentence prescribed.  However, at all times such must be balanced the matters that I have referred to and in regard to that the particular matters that relate to Mr Tran.

59Mr Tran, would you stand up please?  In this matter I propose to sentence you to a period of imprisonment for three years.  The period that you will be required to serve before being eligible for parole is a period of 18 months.

60Pursuant to s.18 of the Sentencing Act, I take into account that the period that you have served which amounts essentially to between ten and eleven months, is deemed to be part of this sentence, and a declaration to that effect will be made in the records of this Court.

61The end result of that will be that you will have to serve a further period of approximately eight months, give or take the maths, before you will be eligible for parole.  I would imagine that as soon as you have served that period you will be deported from this country.

62There is one matter that I would point out. And I would ask for this matter,
Mr Prosecutor, to be specifically conveyed to the Parole Board, that the sentencing remarks be conveyed as soon as possible, that the particular nature of this sentence be pointed out to the Parole Board, and that everything be done as is possible to be done, so that the minimum parole period is the maximum that he serves in gaol.

63I know that is an unusual request, but this is an unusual case.

64MR GOLISZEK:  Yes, Your Honour.

65HIS HONOUR: It is very difficult in a case such as this to comply with the requirements of Parliament as to s.6AAA of the Sentencing Act given the multitude of factors, apart from just the fact that he has pleaded guilty. However, doing as best I can had he not pleaded guilty, the sentence I would have imposed upon him would be a period of four years with a minimum period of three years.

66Madam Interpreter, if you could explain to Mr Tran had he not pleaded guilty the sentence imposed would not have been three years with a minimum of
18 months, but a sentence of four years with a minimum of three years.  Do I need to make any further comments in regard to any matters from either counsel?

67MR GOLISZEK:  No, Your Honour.

68MR DE FRANCESCO:  No, Your Honour.

69HIS HONOUR:  Mr Tran, we wish you the best.  The prisoner can be removed.

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