Director of Public Prosecutions v Tran
[2024] VCC 942
•21 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01852
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BINH TRAN |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2024 | |
DATE OF SENTENCE: | 21 June 2024 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 942 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - sentence
Catchwords: Plea of guilty - cultivate cannabis – provision of location - grave example of the offence of cultivation simpliciter - large and extensive hydroponic set up – 296 plants - total weight 133.1 kilograms - offending a scourge on the community - need for general deterrence high - prospects for rehabilitation very good - unusual case by reason of the long delay between offending and sentence (4 years) – rehabilitation – 20 years' prior good character - period of unlawful immigration detention in past - late plea but considerable utilitarian benefit
Legislation Cited: Sentencing Act 1991, Crimes Act 1958
Cases Cited:
Sentence: 24 Month Community Corrections Order, 200h of unpaid community work.
6AAA – but for plea of guilty, 12 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J.D. Singh | Office of Public Prosecutions |
| For the Accused | Mr M. Page | Leanne Warren & Associates |
HER HONOUR:
Introduction
1Binh Tran, you have pleaded guilty to an indictment containing one charge that on 25 April 2020 you cultivated a narcotic plant, namely Cannabis L, which carries a maximum penalty of 15 years' imprisonment.
2The circumstances in which you came to commit that offence are set out in the Prosecution Opening for Plea dated 31 May 2024, which was in part read into evidence, and received as Exhibit A. Since the hearing of the plea in mitigation of penalty, I have received a series of photographs of the crime scene at 3 Briar Lane, Portland, which I will now receive and mark as Exhibit B.
3In addition to the matters developed in oral argument, your counsel relied on Outline of Submissions for Plea (Exhibit 1); the character reference of Chi Nguyen dated 31 May 2024 (Exhibit 2). I have since the conclusion of the plea received further submissions regarding financial circumstances, which I will now receive and mark as Exhibit C; and further submissions regarding application for forfeiture, which I will now receive and mark as Exhibit D.
Circumstances of the offending
4On the date of your offending, 25 April 2020, you owned a residential property at 3 Briar Lane, Portland. You resided at a different address, in Tamar Drive in Deer Park. On that date, police entered the property and executed a Search Warrant issued under Victorian legislation, and located 296 cannabis plants in various stages of maturity, with a total weight of 133.1 kilograms. I have seen photographs of the scene as I have mentioned, which show a large and extensive hydroponic set up and the many plants.
5The prosecution alleges that your offending resulted from your agreement with a gentleman named Minh Pham, and others some of whom were unknown to you, to cultivate cannabis at the property. Minh Pham was the subject of police surveillance in the period leading up to the date of your commission of this offence, which is confined to that single day.
6In an intercepted conversation on 27 February 2020 at 11.45am, you contacted Minh Pham, and told him in Vietnamese that 'the guy has paid already if [Minh Pham] wants to go out Saturday', to which Minh Pham replied 'must go for sure but let him organise a day', to which you replied 'can only go Saturday arvo'. Mr Pham said, 'he can’t this Saturday so leave it a few more days'. Police intercepted other conversations involving Minh Pham and others, not yourself, in ensuing days where references are made to attending 'that place'.
7On 2 March 2020, Minh Pham and others arrived at the Briar Lane, Portland address and during the journey they discussed taking measurements of the property, and discussed cannabis seedlings and how many they might need. At 8.16pm whilst in the vehicle, Minh Pham contacted you and told you to leave the car keys home with your wife, to which you agreed and said if anything you would go on your own without the kids. Minh Pham said, 'tomorrow afternoon with the horse [which is alleged to be your van] he might pick it up' and you agreed.
8On 4 March 2020, Minh Pham again contacted you and asked, 'that order the other day, is it done yet?' You replied that you made the call yesterday so it should be. Other calls ensued between you and Minh Pham on 6 and 7 March 2020, apparently arranging an attendance upon the premises, and suggesting that you had loaded up everything already.
9On 8 March 2020, your 2015 Toyota HiAce van was noted by police as parked in the driveway of the Portland address. This is an occasion approximately seven weeks prior to the single date of your cultivation offence.
10Subsequent calls ensued between you and Minh Pham on 13 and 14 March 2020, and 19 March 2020 in which reference was made indirectly as to attendance at the house, and on 21 March 2020, police observed your Toyota HiAce van parked in the driveway at Briar Lane, Portland.
11A number of intercepted calls ensued after this date and prior to the date of your offending, however, none of those telephone calls involved you in any way.
12On 25 April 2020, which is the date of your act of cultivation of cannabis, a Search Warrant was executed by police at the property, and a person named Tuan Dang was arrested at the premises. A search of the property was conducted, and police located 296 cannabis plants, with a total weight of 133.1 kilograms. Approximately 110 of these plants on average weighed between one and three grams, another 15 plants on average weighed less than 10 grams, and the remaining plants were of significant size and maturity.
13154 hydroponic lights were found throughout the house and shed, false walls had been constructed to cover any windows so that no light would be emitted, a ventilation and watering system was erected throughout the house, and a power bypass was being used to steal electricity, though here I note that you are not charged with any offence of theft.
14After the execution of the search, telephone contact occurred between yourself and Minh Pham.
15On 11 June 2020 at approximately 4.00pm, you attended at the Portland Police Station where you provided a signed statement to Detective Sergeant Von Tunk which was untrue in many respects. You correctly and appropriately claimed ownership of the house, but falsely claimed that the property had been rented through some agents, that you attended the property in March 2020 and noticed that the rooms were repainted and the upstairs level had marks on the ceiling, that on 4 April 2020 you signed a Tenancy Agreement, and that when you attended the address on 11 June 2020 you noticed that it was trashed inside and out. Whilst this behaviour occurred after the date of your charge, and is not the subject of any criminal charge, it does not reflect well upon your character in the period after your offending.
16You were informed by the Detective Sergeant that police had executed a Search Warrant on the house on 25 April 2020 and had located cannabis there, and you falsely told police that you knew nothing about the cannabis.
17On 18 August 2020, your residential property was searched, and items were located by police including receipts from Warrnambool Bunnings in connection with the offending. You were arrested and transported to the Melbourne West Police Station, and during that interview you provided further untrue statements, including that you did not know Minh Pham, that you had no knowledge of the cultivation of cannabis occurring at your address at Briar Lane, Portland; that you did not recall speaking to Minh Pham or any person on the telephone in relation to the cultivation of cannabis at that address; that you did not attend the address on 27 April 2020 and did not make a phone call to Minh Pham while in Portland; and essentially that you again falsely claimed that the false statement you provided to police on 11 June 2020 was accurate.
18I have been provided with the details of sentences imposed upon your co-accused including Minh Tran and others, and whilst I am of course familiar with the parity principle of sentencing and my obligations thereunder, I note in respect of each of the co-accused and others involved in this scheme that they faced more serious charges than yours, that those more serious charges are alleged to have occurred on more than one occasion, and those charges were committed in combination with other drug offences. For present purposes, I will put cross case comparisons to one side.
Plea of guilty and timing
19You were remanded into custody on the day of your arrest and interview, and spend a night in custody before entering bail on 19 August 2020. The matter proceeded in the committal stream of the Magistrates' Court on a more serious charge than that which you currently face, with the police informant the only witness cross examined. You were committed to this court on that more serious charge in August 2021, and the matter was then managed to trial readiness and was listed for a 10-week trial involving you and your co-accused commencing 29 January 2024.
20The matter resolved on 31 January 2024 by way of your plea of guilty to the present charge. Whilst this plea was entered at a late stage, it was still of considerable utilitarian benefit, as it has saved the witnesses the inconvenience of needing to come to court to give evidence against you, and it has saved the court, and the community the inconvenience and considerable expense of a trial. You have acknowledged your offending, which is reflective of some remorse. I attach mitigatory weight to each of these factors.
21I must pass sentence upon you, over four years since your commission of this offence, as a result of delays to court proceedings occasioned by the unfortunate impact of COVID-19 delays upon trials in this court. This represents a long delay since your offending, which has led to stress and uncertainty upon you as to the penalty that you face, including, perhaps, confiscation processes in the future. During this period, you have not reoffended. I take into account in considerable mitigation of sentence this delay, and your rehabilitation in the meantime.
Personal circumstances
22You are now 52, and were 48 at the time of your offending.
23You were born in Saigon, Vietnam. Your mother was a homemaker, and your father worked for the intelligence service for the United States in Vietnam.
24You attended school in Vietnam, and then in the United States when you were aged eight or nine. You settled in Southern California and finished high school there, then studied at Fullerton University and Orange Coast College, before coming to Australia in 1992, sponsored by your romantic partner, when you were aged about 20. You then separated from that partner, and married a new partner, and welcomed a son in Australia in 1997. Due to your apparent misunderstanding about the effect of your earlier separation on your right to stay in Australia, your bridging visa was revoked, and you were sent to Immigration Detention where you stayed for five years, and your son was placed in the care of a foster family. You then divorced.
25Your time in immigration detention involved some deeply unpleasant moments, and you were violently assaulted, leading to treatment in hospital for stab wounds and a skull fracture.
26You were eventually released from detention in May 2005, after a ruling that your detention was unlawful, and your son was returned to your care.
27The two of you moved into your niece's garage, and you found work as a farm hand, then in an air conditioning firm in Keysborough. You enrolled in a Bachelor of Applied Science at RMIT in 2006, and gained housing through the Uniting Church in Seddon.
28You then commenced work as a limousine driver, which continued until you received a payout for your wrongful detention.
29In 2011, whilst visiting Vietnam, you met and married your current wife and returned to Australia, to complete your qualifications as a radiographer. You worked in this field and supplemented your income with manual labouring work. Through the labouring, you met some of your co-accused.
30Your son later received a payout from the Department of Immigration, and he now works for a Commonwealth Government department. You have three younger children, who are now 13, 10 and 8.
31You have been diagnosed with issues relating to your heart, which have necessitated surgery. You continued to work as a radiographer, but this work was interrupted for a six month period in 2019 as a result of your health issues. Since being charged in connection with this offending, you have worked for an agency as a forklift driver and you now work three hours a day in this capacity, which provides you with some income, supplemented by a government benefit. You and your wife are paying a mortgage on your home assisted by your son, and there are also mortgage responsibilities on the Portland property. It appears that your family including your three school aged children are reliant on your income, and the prospect of returning to custody would weigh upon your mind given that it would interrupt your capacity to continue providing as you need to.
32You have appeared before the court on a number of occasions, including an appearance in the Brisbane District Court in May 1995 for offences of deprivation of liberty and unlawful assault, which resulted in the imposition of a community service order which was subsequently breached; an appearance in Brisbane Magistrates' Court in February 1996 for breach domestic violence order, on which you were convicted and fined; and an appearance in Brisbane Magistrates' Court in January 2000 for possess restricted item without reasonable excuse, on which you were convicted and fined. I will, for present purposes, put a subsequent speeding charge to one side.
33At the time of committing this offence, you were largely of good character, with the Queensland history occurring twenty plus years earlier, and I attach some mitigatory weight to the fact that this offending is well outside your general character. I have received a reference from your friend Chi Nguyen, who has told me of your setbacks, your resilience, and your family values.
Objective gravity of your offending; moral culpability
34Mr Tran, I accept the prosecution contention that the cultivation of drugs of dependence is a scourge on the community, affecting the health and wellbeing of members of society. In your case, your offending involved sophistication involving hydroponics. Two hundred and ninety-six plants in total were in various stages of growth in the house with a very significant weight of 133.1 kilograms. Here, I note that some of these plants were at a stage of relative immaturity, but it is a grave example of the offence of cultivation simpliciter. By the prosecution charging you with this offence rather than cultivation in a commercial quantity of cannabis, it is accepted that you knew or suspected that a simple quantity would be cultivated such as for instance less than 25 kilos or less than 100 plants which is the commercial quantity, rather than the enormous quantity that was in fact cultivated.
35I find your role to be that of providing the location for the others to cultivate the plants there, and I have noted and taken into account that your offending is confined to a single day, and there is no evidence of your attendance on the house in the approximately five weeks prior to that date. You were not involved in any ongoing maintenance of the crop in the month prior to detection. I infer that you participated in the offending for some potential financial gain. I have not been shown any evidence to demonstrate that your involvement actually resulted in any payment to you.
36I am prepared to infer that your involvement was situationally motivated, and that the day that you spent on remand, the court proceedings occurring as they have over the four years since your offence, the uncertainty as to future civil proceedings over the property, and the sentence I am obliged to impose have all had a powerful salutary effect upon you and act as their own deterrent from future offending. I consider your prospects for rehabilitation to be very good, based on your 20 years' prior good character, your family circumstances, and the four years that have passed without further offending.
Relevant sentencing principles; sentencing submissions
37In respect of your charge, the case is one in which the need for general deterrence is high; in other words, I am required to send a message to the community generally, through imposing sentence on you, to deter others from engaging in this type of behaviour. I am obliged to give significant emphasis to this objective of sentencing, as well as to the need to denounce your behaviour and punish you for your offending.
38I have found this offending to be situationally motivated, and out of your general character. Accordingly, I am prepared to attach more modest weight to specific deterrence in imposing sentence in your case, and I intend to emphasise rehabilitation in the sentencing exercise.
39Your counsel submitted that the purposes for which sentence must be imposed in your case could be satisfied by my convicting you, and imposing a significant burden of unpaid community work upon you over a long period of time on a community corrections order. The prosecutor respectfully disagreed, submitting that a combination of gaol, and a community corrections order needed to be imposed in the proper exercise of my discretion.
40This has been a difficult balancing exercise over which I have very carefully reflected, given my obligations under the parsimony principle of sentencing. As I have said, you spent a day in custody prior to being granted bail. Yours is also a very unusual case by reason of the long delay between offending and sentence. In my view, the unusual circumstances of this case lead me to conclude that I should not impose a sentence that involves your return to custody, four years after your commission of this offence, where there is a suitably onerous disposition that does not involve your confinement. In other words, I will agree to the course proposed by your counsel as to a suitably 'hefty' community corrections order. This is at the lowest end of the range of sentences properly available to me in the exercise of my discretion, and if you contravene the order, I will be obliged to resentence you on this offence to a sentence which one might expect would involve a fair period of immediate custody.
Sentence
41Mr Tran, on your charge of cultivation of a drug of dependence, you are convicted and, subject to your agreement, you will be released on a community corrections order for a period of 24 months from today, with a condition that you undertake 200 hours of unpaid community work. Were it not for your plea of guilty, I would have imposed a sentence of imprisonment of 12 months upon you.
42Mr Tran, I cannot force you to do this order. You must willingly agree to do this order. You will need to undertake 200 hours of unpaid community work over two years and there will be other conditions that are attached to every community corrections order that I will ask your barrister to go through with you. Are you willing to agree to enter into that order?
43OFFENDER: Yes Your Honour.
44HER HONOUR: Yes, thank you very much. You may be seated.
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