Director of Public Prosecutions v Tran

[2017] VCC 1362

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-02146

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRAN SOM NAM

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 September 2017
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2017] VCC 1362

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:  Cultivation of Drug of Dependence; Commercial Quantity; Cannabis; House Sitter

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

Cases Cited:

Sentence:Convicted and Sentenced to 2 years imprisonment with 18 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Karamitos	Solicitor for Public Prosecutions
For the Accused	Ms G. Donohoe

Pages 1 - 7

 

 

HIS HONOUR: 

1Tran Som Nam, you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis.  The date of the offending is from 13 July to 3 August 2016.  The maximum penalty for this offence is 25 years' imprisonment.

2The circumstances of your offending are as follows.  On 25 July 2016, police, acting upon information, observed a silver Toyota Camry, registration 1ET 9HD, in the drive way of 11 Abbington Drive, Truganina.  On 3 August 2016, at
10 am, police observed you leaving that address in the silver Toyota Camry that had been observed on 23 July.  The police followed your vehicle and it was intercepted close by.  You were arrested and a search of your vehicle was conducted.  The following items were located, a remote with keys attached, letters addressed to 11 Abbington Drive, Truganina, but not in your name, and a black backpack containing a mobile phone, an iPad and your wallet, which contained cash.

3You were taken back to the Abbington Drive address where police executed a search warrant.  Entry was gained to the premises using the keys that had been taken from you.  The search revealed that five of the rooms in the property had been adapted for the growing of cannabis with artificial lighting, transformers and other equipment so as to allow the plants to be grown indoors. 
Other paraphernalia associated with cannabis cultivation was also found including power boards and an electrical bypass.

4In addition, police located a plain white coloured latex glove in the lounge room, a toothbrush in the kitchen and a further toothbrush in the bathroom, to which I will return shortly.

5In total, 128 cannabis plants and 56 light shrouds were seized.  Upon analysis, the total weight of the cannabis plants seized was 60.8104 kilograms. 
I note that the threshold for a commercial quantity of cannabis under the legislation is 100 plants or 25 kilograms in weight.

6Enquiries revealed that the silver Toyota Camry was registered in your name with a residential address in Deer Park.  The glove and two toothbrushes seized were tested for DNA.  For all three items, it was found to be  100 billion times more likely if you were the source.  In short, they had been used by you.

7When interviewed about the matter, you exercised your right to silence as I stress you were perfectly entitled to do.

8I turn now to your personal circumstances.  Tran Som Nam, you were born in Vietnam on 23 February 1990.  You were thus 26 years of age at the time of this offending and are now 27 years old.  You are a single man without dependents.  Prior to your arrest in relation to this offending, you had been in Australia for approximately 18 months.  You entered Australia on 16 February 2015 on a medical treatment visa that expired on 16 March 2015.

9I am told and accept that you were raised in Ha Nam Province, northern Vietnam by your parents, Doc Dao and Tien Tran in a family of six children and where you lived until you began university studies.  Your mother is now retired and she is aged 62.  Your father, also retired, is now aged 63.  He was recently diagnosed with throat cancer.  Both your parents were rice farmers. 
Your older sister is a Catholic nun, residing in France.  Three other siblings have located to Hi Chi Minh City with their families.  There is only the youngest child, a sister, that remains at home.  I am told that only you and your younger sister are now on speaking terms with your parents.

10You and your younger sister are the only two of your family to have undertaken tertiary education.  Your parents drew down on their retirement savings to enable you to fund your studies. 

11Following your secondary education, you moved to Hanoi and completed undergraduate and post-graduate qualifications in accounting at Hanoi Commercial University.  After graduation, you found work as a sales representative for a medical instruments company.

12I am told that it was through your work that you met in or around 2015 an Australian doctor, with whom you discussed a medical condition that you were then experiencing.  That doctor arranged for a medical treatment visa for you to travel to Australia so that you could receive treatment.  It is not clear to me what treatment you in fact received.  What is clear is that you stayed in Australia without legal status after the expiration of that visa.

13Soon after arriving in Australia, you met some friends and enjoyed the lifestyle in Australia and sought to remain.  You performed a variety of labouring and handyman type roles which permitted you to send money back home to your parents. 

14In mid-June 2016, you received a call from Vietnam and learnt that your father had been diagnosed with throat cancer.  You told a friend of your predicament and your friend loaned you $2,000 to send to Vietnam.  You then paid back that money to your friend and continued to work.  This friend then also suggested that you could earn additional money by minding a house in Truganina. 
I understand that you were offered the sum of $150 per day to look after the house.  That was no doubt to you a sizable sum irrespective of what you intended to do with it.  It is not clear whether you received any of the promised payment.  I am told that you now wish to return to Vietnam upon your release.

15Tran Som Nam, the cannabis yield that is grown by cultivators has serious adverse effects upon many users and thus for the community at large, which bears a great cost whilst cultivators reap significant profits.  I was informed on the plea that the commercial value of the crop should be measured in the tens of thousands of dollars.  All of the features found in this property are common with suburban houses that have been converted into cannabis production houses.  The use of suburban houses for the commercial growing of cannabis for onward sale and profit is all too prevalent.  So is the use of individuals such as yourself, who have no legal status in Australia and thus may live in the margins to act as front persons for the enterprise.

16It is in order to avoid detection that individuals are recruited to mind the crop by those who organise this trade.  Crop sitters, to use the accepted term, ensure that the equipment continues to function and that the crop reaches fruition and can be harvested.  Such deployment, employment I suppose, not only ensures a yield but crucially helps to ensure that the organisers of the production and distribution chain and those who profit from it avoid detection.

17The objective gravity of your offending falls to be determined of course by reference to all of the facts of this case.  Your counsel, on the plea, realistically accepted that you were not placed under pressure to participate in this criminal enterprise.  You were the crop sitter for this particular site and the lure quite simply was money.  It is common ground, Mr Tran, that you were a crop sitter.  The evidence and common sense point to that conclusion and you will be sentenced as such.  But wherever you precisely fit in the classification of offenders, the role you were playing was integral and cannot be under estimated.

18Every role, no matter how small, contributes to the success of the criminal enterprise.  Most importantly, it keeps the entrepreneurs at arm's length from the crop while it grows to a saleable product.  Your involvement in this criminal commercial enterprise extended over a three week period and was motivated by a financial reward.  Your culpability for the offending is informed by those simple facts.

19In terms of the crop, we have 128 plants and 60.8104 kilograms.  So 1.28 times the commercial threshold in terms of the number of plants but 2.4 times the commercial threshold in terms of weight.  The gravity of the offending is clear.

20On the plea, the prosecution submitted that this is an inherently serious offence by virtue of the 25 year maximum penalty and thus consideration of general and specific deterrence, just punishment and denunciation come to the fore in my sentencing considerations.  The prosecution accepted that there had been a plea at an early opportunity and also I was informed that you have been in custody since your arrest on 3 August 2016.  By my calculations, some
406 days of pre-sentence detention up to and including 12 September 2017.

21The prosecution, in short, submitted without objection that time served was not enough to reflect the gravity of the offending.

22Your counsel conceded in realistic and succinct submissions that deterrence and denunciation come to the fore as sentencing considerations in your offending.  With respect to him, I agree.  In mitigation, your counsel relied upon your early plea of guilty, your absence of criminal history, your relative youth and the remorse expressed in a letter written by you dated 25 April 2017, which was Exhibit 4NST on the plea.

23Tran Som Nam, the basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it and your personal circumstances.  I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure as far as possible that offenders are rehabilitated. 
That is to say reintegrated into society.

24Clearly, in your case, principles of general deterrence and denunciation are the primary sentencing considerations.  I express my denunciation of your behaviour.

25In sentencing you, I have taken into account expressly the following matters.  Firstly, your early plea of guilty.  This has both a utilitarian benefit, meaning it saves time, costs and I accept that the plea, in addition, is indicative of remorse.  I further accept in addition to the plea that you are now remorseful for the offending.  I accept that you have good prospects for rehabilitation and I accept that by virtue of isolation from your family overseas that prison is more onerous for you.

26Tran Som Nam, on the charge of cultivation of a commercial quantity of cannabis, you are sentenced to a term of imprisonment of two years and I fix a non-parole period of 18 months.

27Pursuant to 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, you would have been sentenced to a term of 32 months' imprisonment with a non-parole period of 24 months. Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have served, and counsel, my calculation now is, 416 days but I look to the Bar table.

28MS KARAMITOS:  Four hundred and fourteen days.

29HIS HONOUR:  Four hundred and fourteen.  I see my associate nodding. 
So there you go, my maths remains as bad as it always has been. 

30Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have served 414 days of the sentence I have imposed and direct that this be recorded in the records of the court. That means that in terms of the sentence that you have to serve, Mr Tran, the time that you have already spent in custody will be deducted from it, but I know that your counsel will explain matters to you when you are taken down.

31Ms Donohoe, are there any custody matters or issues that I need to notice?

32MS DONOHOE:  No, Your Honour.

33HIS HONOUR:  No.  Ms Donohoe, Ms Karamitos, any other issues arising?

34MS KARAMITOS:  No, Your Honour.

35HIS HONOUR:  As I say, in terms of my calculations, if I have made an error, just contact my associate and I will perfect it when I revise the grounds. 
Yes, all right officer, you can take him down.

(Offender removed.)

36Thank you for your assistance.

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