Director of Public Prosecutions v Tran

[2017] VCC 2022

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01093

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANH TRAN

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2017
DATE OF SENTENCE:	13 October 2017
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2017] VCC 2022

REASONS FOR SENTENCE

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Subject:Trial - sentencing

Catchwords:             Cultivation of narcotic plant - possession of drug of dependence - theft

Legislation Cited:     Drugs, Poisons and Controlled Substances Act 1981, Sentencing Act 1991

Cases Cited:            

Sentence:10 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lenthall	Office of Public Prosecutions
For the Accused	Mr R. Melasecca	Melasecca Kelly Zayler

195493  Pages 1 - 6

 

  

HIS HONOUR: 

1I will proceed with my sentence now.  Mr Tran, if you could just remain seated until I ask you to stand. 

2Anh Tran, you have pleaded guilty to one charge of cultivation of a narcotic plant, one charge of possession of a drug of dependence and one charge of theft. 

-    Cultivation of a narcotic plant carries a maximum penalty of 15 years' imprisonment, or if a trafficking purpose is excluded, 1 year’s imprisonment and/or 20 penalty units.

-    Possession of a drug of dependence carries a maximum penalty of 5 years' imprisonment, or if a trafficking purpose is excluded, 1 year’s imprisonment and/or 30 penalty units

-    Theft carries a maximum penalty of 10 years' imprisonment.

3By way of background, you were born on 8 October 1992 and are now 25 years old.  You were 24 at the time of the offending in February this year. 

4You have no prior criminal history. 

5You are a Vietnamese citizen.  You travelled to Australia on a student visa, arriving on 30 September 2012.  Your Australian visa was subsequently cancelled on 8 February 2016 and you were therefore unlawfully in Australia at the time of the offending.

6The victims, Ling Shen and her husband Xiangtan Lin, own the property where the offending occurred in Arthur Street, Wantirna South (“the premises”).  The premises consists of a three-bedroom single-storey residence with a rear shed. 

7In December 2016, Ms Shen advertised the premises for lease on a website called “buyMyplace”.  She was contacted by a female named Anh Pham who said she was calling on behalf of a family friend who was interested in renting the property but could not speak English. 

8On 14 December 2016, Ms Shen met Anh Pham, along with a young family who she believed would be the tenants.  The young family consisted of a man named Hung Nguyen, his wife and a six-month-old baby boy.  Another male was with them as well. 

9The following day a residential tenancy agreement was entered into and signed by Hung Nguyen and Anh Pham.  Hung Nguyen paid $1,900 in cash for the bond.  Ms Shen provided her bank account details for the rent to be deposited on the first day of each month.  She provided two sets of house keys. 

10In January and February 2017, the rent was dropped off in a cash payment to Ms Shen. 

11On 9 February 2017, police commenced an investigation into the premises due to suspicious electricity usage.  On Monday 27 February, members of the Croydon Divisional Tasking Unit attended the premises and conducted static observations.  At 8.15 pm they saw you, Mr Tran, arrive at the premises.  You took the garbage bin in from the front lawn and put it behind the fence. 

12About 25 minutes later police executed a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act 1981. You were arrested trying to leave the premises via the back door. You were carrying a wallet which contained various receipts for the purchase of timers, power leads, fans and face masks.

13A search of the premises was conducted.  In total, 95 cannabis plants were located in various stages of growth throughout the residence and the rear shed.  This material constitutes Charge 1: cultivate a narcotic plant. 

14Containers of loose cannabis were also found in the bedroom and shed, as well as in the kitchen, bathroom and laundry.  This material constitutes Charge 2:
possess cannabis. 

15The three bedrooms and shed contained relatively sophisticated hydroponic cultivation systems, including light globes, shrouds, ballasts, electrical timers, exhaust fans and water pumps.  An electricity bypass was located in the roof cavity. 

16The 95 cannabis plants and loose cannabis were later analysed by a botanist and their total weights were recorded as 25.06 kilograms of cannabis plants and 4.24 kilograms of loose cannabis. 

17It is estimated that 392.04 kilowatt-hours of electricity was bypassed each day that the hydroponic setup was in place.  This use of electricity constitutes Charge 3: theft. 

18The identities of Anh Pham, Hung Nguyen and the other two people who met Ms Shen when the premises were leased have not been confirmed. 

19Following your arrest, you were transported to the Knox police station where you participated in a recorded police interview with the assistance of a Vietnamese interpreter and you made various admissions concerning your involvement and background.  You were committed to the County Court on 31 May 2017 at the first committal mention.  You pleaded guilty and the matter proceeded by way of straight hand‑up brief. 

20I now turn to your personal circumstances.

21As I have indicated, you were 24 at the time of the offending and are now aged 25.  You were born and raised in Vietnam.  Your parents were both engaged in the medical profession, your father in the capacity of a doctor. 

22You completed two years of university in Vietnam and resolved to enrol in business studies in Australia. 

23You came to Australia at age 19 on a student visa in 2012 to study business.  You commenced study, but due to the subsequent bankruptcy of your parents, you lost financial support and could no longer afford the education fees. 

24Your visa was subsequently cancelled in February 2016 and your ability to maintain employment was frustrated because you could no longer have a tax file number. 

25You were unlawfully in Australia at the time of offending. 

26You have no family in Australia, but have received some good support from the friends you have made whilst here.  Some of them were present in court to support you today. 

27Following your arrest in February this year, you have remained in custody on pre‑sentence detention and have served 228 days in that detention up to but not including today.

28Cultivation and possession of cannabis as well as theft are all regarded as serious crimes.  They call for the application of principles of general deterrence, that is, to make an example of you as an offender to deter other likeminded persons, and also, where appropriate, specific deterrence by way of punishment.  The legislation is predicated on the proposition that cannabis is harmful and general deterrence is of special importance. 

29You took your chances for the simple purpose of financial gain, so matters of specific deterrence are important.  Furthermore, this type of exploitation and the consequent willingness of people to assist in the maintenance of relatively sophisticated cannabis plantations is not uncommon and principles of general deterrence are particularly important. 

30Despite the fact that because of your financial circumstances you were in a situation to be exploited by other more sophisticated and resourced criminals, you knew that what you were doing was wrong.  You knew you were engaging in assisting criminals in the drug trade in Australia.  It is very disappointing that you came to this country and engaged in this conduct after showing so much promise. 

31You remain a Vietnamese citizen and you will be deported to Vietnam on your release from prison. 

32In mitigation I take into account the matters urged upon me by your counsel in his comprehensive plea, including:

·    your plea of guilty and the early at that stage at which it was entered;

·    your lack of any prior offences;

·    your relative isolation in custody in a foreign country without close family support;

·    your relative youthfulness, particularly in the context of being in a foreign country and that you were vulnerable to having been exploited by others because of your difficult financial circumstances; 

·    the shame you have experienced in dishonouring your family; and

·    the loss you have experienced by the high likelihood that you will never be able to again maintain an education or life in Australia. 

33I am satisfied that in all the circumstances your role in this cultivation does call for the imposition of a sentence of imprisonment and your counsel responsibly conceded that the degree of the sophistication of the enterprise and its nature and seriousness does warrant a term of imprisonment to be immediately served. 

34Mr Tran, could you now please stand.

35On Charge 1 of cultivation of a narcotic plant, you are convicted and sentenced to 7 months' imprisonment. 

36On Charge 2 of possession of a drug of dependence, you are convicted and sentenced to 5 months' imprisonment. 

37On Charge 3 of theft, you are convicted and sentenced to 4 months' imprisonment. 

38Charge 1 is the base sentence. 

39I direct that 2 months of the sentence imposed on Charge 2 and 1 month of the sentence disposed on Charge 3 be served cumulatively on the sentence imposed on Charge 1 and upon each other.  The sentences are otherwise concurrent. 

40The total effective sentence is 10 months' imprisonment. 

41Pursuant to s.18(4) of the Sentencing Act, I declare that the period of 228 days, not including today, be reckoned as time already served under this sentence and I direct the fact of this declaration and its details be noted in the records of the court. 

42Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is 20 months' imprisonment with a minimum period of 15 months to be served before eligibility for parole. 

43You may be seated, Mr Tran. 

44At the plea hearing the Crown sought disposal and compensation orders to which you consented and I have made those orders today.

45COUNSEL:  May it please Your Honour.

46HIS HONOUR:  No further matters from either counsel? 

47COUNSEL:  No, Your Honour.

48HIS HONOUR:  Thank you. 

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