Director of Public Prosecutions v Tran

[2017] VCC 726

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00855

DIRECTOR OF PUBLIC PROSECUTIONS

v

NUA VAN TRAN

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2017
DATE OF SENTENCE:	6 June 2017
CASE MAY BE CITED AS:	DPP v TRAN
MEDIUM NEUTRAL CITATION:	[2017] VCC 726

REASONS FOR SENTENCE
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Subject:Criminal law - sentencing – cultivate narcotic plant not less than a commercial quantity of Cannabis L – immediate custodial sentence imposed.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms N. Burnett	John Cain, Solicitor for Office of Public Prosecutions
For the Accused	Ms D. Lamovie	Victoria Legal Aid

HER HONOUR:

1Nua Van Tran, you have pleaded guilty to one charge of cultivation of a narcotic plant, in not less than a commercial quantity, the drug being Cannabis L.  The charge is serious and that is reflected in the maximum penalty that has been set by Parliament and that is 25 years imprisonment.

2I will now proceed to sentence you on the basis of the Crown opening that was read earlier this morning that sets out the circumstances of your offending.

3In essence, you are to be sentenced for your role as a crop-sitter, in respect to a hydroponic cannabis crop, that was located at 69 Rock Pool Road, Truganina, on 10 February 2017 (“the grow house”).

4The Crown case is that you were responsible for tending to the crop on
10 February 2017, which is the date of your arrest.

5Police arrested you at the grow house on that date and at that time, a sophisticated hydroponic cannabis crop growing set up was located in four of the six rooms of the house.

6In total, there were 122 plants, the combined weight of which was 43.99 kilograms, which exceeds a commercial quantity as defined by legislation, that being 25 kilograms.  All the usual equipment and paraphernalia for growing Cannabis L was located at the house.  On inspection, an illegal electrical bypass set up was also located in one of the bedrooms.

7You pleaded guilty at committal mention on 3 May 2017 and the Crown accepts that your plea was entered at the earliest opportunity.  When police arrested you, you were fully cooperative.  You informed police that there was another person who was present at the house. 

8Your co-accused, Van Tuan Nguyen, attempted to evade police by jumping out of a bedroom window, but was quickly apprehended.  He too has been charged with this offence, but has absconded and a warrant for his arrest remains outstanding.  Following your arrest, you were fully cooperative.  You were not interviewed because no Vietnamese interpreter was available.  Subsequently, through your lawyers, you offered to be interviewed, but this offer was not taken up because the police had already prepared a straight hand-up brief.

9In sentencing you, I consider your role to be crop-sitter.  As such, you were instrumental in ensuring that the crop was managed so that the mature crop could be harvested.  I do not accept that you were responsible for the set up and I accept that your role was caring for the plants on the instruction of others, who are unknown.  I assess your role at the upper end of the lowest category, for this type of offending. 

10I have been told briefly about your personal history and background.  You are a 54 year old Vietnamese national.  You were born in Binh Duong, which is a province in South Vietnam, just north of Ho Chi Minh City.  You were an orphan.  Your father died when you were aged three and your mother died when you were ten.  You were then placed in a state run orphanage.  Fortunately, you were able to complete high school and left school at aged 18 and commenced tertiary education in maritime studies in Saigon.

11On graduation, you left Vietnam and lived in Czechoslovakia, where you were trained in automotive industries. You stayed there from 1982 to 1987, working in automotive production.  You tried unsuccessfully to remain living in Czechoslovakia.  You then had to return to Vietnam where you began working as a labourer.

12You were married to your wife Nguyen Thi Phuong in 2008 and there are three children of your marriage aged nine, four and two years.  You first travelled to Australia on a tourist visa on 7 November 2015.  Through a labour agency, your trip to Australia was facilitated.  You paid $35,000 which you borrowed from a friend to pay for your passport and visas, airfares and the introduction to that agency.

13You arrived in Perth and then travelled to Melbourne, where you commenced working on farms doing fruit picking.  In November 2016, you were granted a Bridging Visa pending your application for a refugee status, on the basis that you could not freely practice Catholicism in Vietnam.

14You worked as a labourer and fruit picker from November 2015 to December 2016.  You earnt a modest amount of money, up to $100 a day for eight hours a day, which you used to service the debt that you owed to your friend in Vietnam and also to remit monies back to your family regularly.  You have repaid about $10,000 off the debt.

15In December 2016, a couple whom you had met whilst working on the farm, made you an offer of free board if you would look after some plants and sleep in a house.  You were then taken to the grow house which was already set up as a grow house, including all the plants and equipment and you were shown how to water the plants.  You remained at the house and undertook that task and received $3,000 in cash.  You have received no other payments for your involvement in this offending.

16I accept that you were in somewhat of a difficult situation at the time of the offending, having regard to your significant financial debt relating to the costs of relocating to Australia and your efforts to supplement your wife's financial circumstances back in Vietnam, such that you were vulnerable to the approach by the couple who provided you with an opportunity to make quick money.

17You have paid dearly for your lack of judgment and you now will be punished by the court for becoming involved in this criminal activity.  The context of the offending does explain your involvement, but in no way does it excuse your behaviour, and the court must emphasise deterrence in the sentence it is about to impose and also must formally, on behalf of the community, denounce your behaviour.

18You are a person who is otherwise of good character.  You have led an exemplary life.  You are now 54 and there is no prior criminal history.  That fact of itself is not an unusual feature of these sorts of offences.  It is often that people just like you, who are vulnerable without criminal history, are targeted by the criminals responsible for the establishment of these crops.

19Your situation following your arrest has been a difficult one.  You have no real connection with Australia.  Your wife, children and extended family members remain in Vietnam.  You have had limited social contacts in Australia.  You have had some involvement through the Catholic Church in St Albans. I accept being in custody, has been a lonely and isolating experience for you.

20Further, it is accepted that following your conviction for this offence, you will have lost your opportunity to remain in Australia.  Without there being any evidence, I am satisfied that it is likely, having regard to the nature of the conviction, that you will be ultimately deported back to your country, Vietnam.

21I have had regard to the mitigating factors that have been put on your behalf by Ms Lamovie.  I accept the fact that you have entered an early plea of guilty at the earliest opportunity, is evidence of your remorse and further, there is utility in your plea.  You have spared the state the expense and inconvenience of having to conduct a trial.  You have also facilitated justice.  Your sentence will be discounted accordingly.

22Having regard to your conduct in prison, whereby you have utilised your time spent in custody productively, undertaking work in the woodwork area, utilising your carpentry skills, and also undertaking and completing an occupational health and safety course at Fulham. I consider your rehabilitation prospects to be excellent.

23I accept that you now have real insight concerning the wrongfulness of your behaviour, and that you sincerely regret your involvement in this offending.

24Ms Lamovie, on your behalf, conceded that a term of imprisonment is appropriate in all the circumstances. 

25I have had regard to all the matters put in mitigation and in sentencing you, I have formed the view that this offending was offending that was out of character, driven by your financial circumstances and it is obvious that you are clearly distressed by your lack of judgment and the effects that that will have upon you forever more.

26In sentencing you, I must impose just punishment.  As I mentioned earlier, it is important for the court to emphasise general deterrence, given your attitude and conduct following your arrest, specific deterrence is of lesser importance.  There is still a need for the court to send a message to others like you, who might be attracted to undertaking this form of activity, that if you are apprehended for this sort of criminal act, then you will face stern punishment and that imprisonment is the likely outcome.

27I have had regard to the relevant Sentencing Snapshot for this sort of offence, that was provided to me as compiled by the Sentencing Advisory Council and also I have had regard to other sentences imposed by this court, relating to this sort of offending.

28I will now announce the formal orders.  If Mr Tran could you please stand. 

29On Charge 1, you will be convicted and sentenced to a period of two years imprisonment.  I order that you serve 12 months imprisonment prior to being eligible for release on parole. 

30Pursuant to s.6AAA of the Sentencing Act, I make the following declaration, but for your plea of guilty, I would have imposed a term of imprisonment of three years, with a minimum to be served of two years.

31I make a declaration pursuant to s.18(4) of the Sentencing Act, that you have already served 116 days pre-sentence detention and that time is to be reckoned as time served under the sentence I have just announced.

32I make the disposal order sought and I make the order for the taking of a forensic sample. 

33What that means Madam Interpreter is that Mr Tran will have to cooperate in providing a forensic sample to police or authorities.  He will be asked to provide a sample of a scraping from his mouth and if he does not consent, then under the supervision of an authorised member of the police force, the sample can be taken by way of a blood sample and police may use reasonable force to ensure that procedure is conducted.

34I have made the order for the forensic sample because of the seriousness of this offence, the fact that it was not opposed and the granting of the order is in the public interest.  That completes my sentencing remarks.

35MS BURNETT:  As Your Honour pleases.

36MS LAMOVIE:  As Your Honour pleases.  May I ask if - Your Honour, if I may just approach the accused.  Madam Interpreter has to leave shortly?

37HER HONOUR:  Yes.  Yes, you can have a ‑ ‑ ‑

38MS LAMOVIE:  So I can't go down to the cells. 

39HER HONOUR:  ‑ ‑ ‑ period of time ‑ ‑ ‑

40MS LAMOVIE:  I'll just do that for five minutes.

41HER HONOUR:  ‑ ‑ ‑ with the interpreter and Mr Tran whilst he's in custody at the back of the courtroom.

42MS LAMOVIE:  Thank you, Your Honour.

43MS BURNETT:  Your Honour, just one matter. 

44HER HONOUR:  Yes.

45MS BURNETT:  The date of Charge 1 was 10 February.

46HER HONOUR:  I was reading from the - it is 10 February 2017.  So I will amend my revised sentencing remarks.

47MS BURNETT:  Thank you, Your Honour. 

48HER HONOUR:  Yes, I thought I said 10 February 2017. 

49MS BURNETT:  I thought Your Honour had said 10 December.

50HER HONOUR:  Well I have written down 10 February.  If I did, that was a slip.

51MS BURNETT:  Thank you, Your Honour.

52HER HONOUR:  I have got 10 February in my notes.  All right, but that can be amended in the revised sentencing remarks.  So I will adjourn the court and you can stay in the courtroom ‑ ‑ ‑

53MS LAMOVIE:  Thank you, Your Honour.

54HER HONOUR:  ‑ ‑ ‑ and have that discussion.

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