Director of Public Prosecutions v Tran

[2016] VCC 926

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00248

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN TRAN

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	1 July 2016
DATE OF SENTENCE:	1 July 2016
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2016] VCC 926

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan
For the Accused	Ms Z. Broughton

Pages 1 - 12

 

 

HIS HONOUR:

1Mr Tran, you have pleaded guilty to one count of cultivating a narcotic plant, that narcotic plant being of a commercial quantity.  You may have heard me a few moments ago speaking with Ms Hogan.  Ms Hogan mentioned the weight of the plants and leaf material.  That weight by itself categorises these plants as being of a commercial quantity.

2Further, the number of plants, without even taking into account the weight also qualifies this crop as being of a commercial quantity.

3I am making that point clear I hope, because you have also heard Ms Hogan, I am going to repeat it shortly, that being a commercial quantity, the Parliament of this state have made such an offence very serious if one judges by the prison term that can be imposed for such an offence.

4You have heard the learned prosecutor Ms Hogan tell this court that the maximum sentence that can be imposed is that of 25 years' imprisonment.  That maximum sentence should indicate to you and all those in the community, that this is indeed a very serious matter.

5For having pleaded guilty, I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty.

6The cultivation of these marijuana plants took place at a house in Hound Court, Pakenham.  The residential property was at 18 Hound Court in Pakenham and was a rental property.  The property was managed by Kelly Jaye Property Management and as is said by the prosecutor in her summary that I am quoting directly from, it was on 10 November of last year, a managing agent from Kelly Jaye Property Management attended at 18 Hound Court in Pakenham to conduct a housing inspection.

7Upon arrival at the house, the agent found that the locks had been changed.  The agent then accessed the property through the garage and observed intense light coming from the bathroom and saw two buckets of cannabis.

8The agent also observed that a door had been erected separating the kitchen from the lounge.  That door was not there prior to the house being leased.

9Not surprisingly, the managing agent then contacted the police and told the police of the presence of a cannabis crop.

10On the following day at 6.25 am in the morning, police officers attended at 18 Hound Court in Pakenham.  Detectives from the Cardinia CIU entered the premises, having previously obtained a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act.

11The police officers entered the house via the garage and discovered two men; you Mr Tran and Mr Chan Vu Truong.  You were in the master bedroom.  Both of you were arrested and taken back to the Pakenham Police Station.

12The investigating police officers located six rooms with cannabis plants being hydroponically grown in various stages of maturity.  Those plants were growing under heated lamps and shrouds and were connected to an automatic watering system.

13The police officers located 188 plants weighing 68.4 kg.  The total weight of all the cannabis found including plants and loose cannabis leaf totalled 73.1 kg.

14As Ms Hogan the prosecutor, said in bedroom no.2, there were 16 plants weighing 6.06 kg.  In the kitchen and meals area, there were 73 plants weighing 8.42 kg.  In the third bedroom, there were 15 plants weighing 16.74 kg.  in the family room, there were 16 plants weighing 24.64 kg.  In the fourth bedroom, there were 16 plants weighing 22.46 kg.  In the laundry, there were 52 plants weighing 98.2 grams.  They had to be smaller ones if they are grams only.  In the hallway there were three black pots that contained cannabis leaf.  The weight of the cannabis leaf was 4.73 kg found within those pots.

15The police officers also seized from the house numerous items associated with the cultivation of cannabis.  Those items included fertiliser, shrouds, light globes, timers, transformers, power boards and carbon filters.

16Also located were garbage bags; they were found in the meals area.  Those garbage bags contained cannabis leaf with other mixed material.  An electrical bypass was found in the en suite bathroom.  This is obviously a sophisticated setup. 

17The police officers seized two toothbrushes from the property.  They were forensically examined and tested.  Your DNA was found on both of the brushes and a fingerprint identification was prepared.  That fingerprint was found to be yours.  It was found on a lamp shade.

18On 11 November 2015, you were interviewed by the police officers and you co-operated and you revealed numerous things, some of which are that you resided obviously when you are not at the 18 Hound Court, at
Unit 2 5 Alma Court in Springvale.  You had known about the house for over two weeks.  That you had met Tam at a café in Sunshine.  Tam introduced you to the house.  Tam asked you to stay at the house for four or five nights a week and during the record of interview, among other things, you said, "At daytime there would be someone else to mind the house and then we would be there at around 8 or 9 o'clock.  And then in the morning when we wake up, we would leave."

19You also told the police officers that you could stay at the property for about two months and then you would be paid $6,000 but you had not at that time received any money.

20You knew there were cannabis plants there and they were already there when you arrived.  I again quote as the prosecutor did, from your record of interview.  You said, "I know that growing these plants is illegal.  So when I stay there and mind the plants for them - so that's what I will be paid for."

21The system that was setup was an automatic system so you did not even have to water the plants.  So as I said before, it was quite a sophisticated system apparently.

22Mr Tran, you are now aged 21.  In over nine days' time, you will turn 22 on
10 July.  You were born in Nghệ which was in Central Vietnam and you grew up in a small rural village named Yuan Khanh.  It is a small village with approximately 300 people resident there.  That village depended on farming and fishing and it was a safe environment and you enjoyed your life there.  You helped your mother and played as other children did after school, soccer in particular.

23Your father at that time, was working in Korea or for a period of time, being eight years, to financially support your family.

24There were no drugs in the village.  I wish I could say that in this state.  There were very few motor vehicles.  You were apparently a good Christian family and you all attend church regularly.

25You have two younger brothers.  The older one being Van Gun Tran. 
Ms Broughton tells me he is 18 this morning.

26HIS HONOUR: ‑ ‑ ‑ and you have a younger brother now aged 16.  These fellows live with your parents in the village.

27You completed your education in Vietnam when you were 18 and you came to Australia in April 2013.  You had obviously recently turned 19.  You came here on a student visa to study business management.

28Unhappily you ceased studying three months after you arrived and commenced.  Your family in Vietnam had undergone substantial financial difficulties. 
Ms Broughton tells me this morning that your father had invested in business opportunities or things of that nature and unhappily they did not work out, and thus unfortunately through no assistance financially from home, you could not afford tuition fees and you then left.  Whilst I have not been told this, I am sure you did not have a work visa and you were then manipulated, I do not know by whom but I would not be very surprised if it was another one of the evil people within the Vietnamese community, because unhappily it is a common experience for judges in this court to hear such matters.

29For the next 12 months, after having ceased schooling, obviously you have to exist, you worked in vegetable farms in and around the Werribee district for approximately six months before then working picking grapes in a winery, again in the Werribee district.

30In July 2014, you commenced work in a grocery shop in Footscray where you remained employed for approximately three months.  It was at about this time that you met "Tam".

31Having met Tam, I can say rather bluntly, the rest is history, because you then became involved as what is commonly known as a crop sitter.

32Unhappily, the "Tams" are like phantoms.  When the police action investigations start, the Tams of the world and others of his ilk disappear into the ether.  They are the persons that the 25 years' imprisonment is aimed at.

33In the pecking order of producing these crops that ultimately I am told become very valuable in the drug scene, you are at the bottom of the ladder.  The Tams who have disappeared into the ether are at the top and are very difficult to identify.

34Mr Tran, as you are well aware, you have been in custody since the date of your arrest.  That is, 11 November 2015.  I will not fill you in, but Ms Broughton might.  11 November is a very famous day in this country.  It is Armistice Day.  It is the day they hung Ned Kelly.  If you like, it is the day they hung Gough Whitlam.  She will tell you about that later but that is the day that you were arrested.  So you joined the history of Australian occurrences on that day.

35You spent some time in the Melbourne Assessment Prison before then being transferred to the Melbourne Remand Centre where you have remained ever since.

36Over half of the time that you have been at the Melbourne Remand Centre, you were held in lockdown.  I am sure you understand that prior to your arrival in the prison, there had been very serious and unlawful rioting occur within that prison.  You of course were not involved in those riots or those serious offences, that you become in a sense an innocent victim of the gross misbehaviour of others.  Instead of spending approximately 12 hours out of your cell and 12 hours in your cell, you found yourself locked down for approximately 22 hours in every 24.

37Ms Broughton also tells me today that happily, those circumstances have now ceased and it is back to normality in terms of prison time within the cell.

38Your counsel, Ms Broughton, correctly points out and is conceded by Ms Hogan that you are a young offender.  We are talking about your age.

39The principles of sentencing young offenders have been discussed in many Court of Appeal cases in this state.  In R v Mills [1998] 4 VR 235,
Mr Justice Batt set out, if you like, the basic principles that courts such as this must take into account in sentencing young offenders.  For the record I will read that into the transcript.

"The following general propositions are relevant to sentencing youthful offenders.  Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.  In the case of a youthful offender, rehabilitation is usual far more important than general deterrence.  This is because punishment may in fact lead to further offending.  Thus, for example, individualised treatment focusing on rehabilitation is to be preferred.  A youthful offender is less than 21 so there is no misunderstanding, is not to be sent to an adult prison if such disposition can be avoided."

40I will not quote anymore from Mills but I will raise this.  You heard me mention general deterrence.  There is two forms of deterrence that I will put I hope simply, specific deterrence and general deterrence.

41The aim of just punishment is to, when dealing with you as an individual, specific deterrence, you should be punished to such an extent in a just manner, that you will be dissuaded from doing it again.

42General deterrence and with the utmost respect to you and all of those in the Vietnamese community, is extremely important because unhappily crop sitting is becoming a very common offence seen in these courts.

43Indeed as you have just heard, Ms Broughton and I were talking about it a few moments ago, Ms Broughton and I were dealing with an identical case, nearly identical case last Friday or last Thursday.

44Also the Court of Appeal, I suppose more currently but it does not change the facts, in R v Azzopardi, Mr Justice Redleich, virtually if you like, mirrored the words of Justice Batt, certainly in terms of the need for rehabilitation.

45Now you also heard your counsel mention it is difficult to really know how rehabilitation is going to work when you are going to be deported from this country, because as you well know, because of your offending and working without a permit and all the various things that go with it, you will be deported back home.  So there will not be rehabilitation programs provided for you here.

46But to your credit, it is indicated that you have whilst in prison, involved yourself in Occupational Health and Safety courses to further your intelligence in terms of work opportunity.  You have attended English classes to expand your capacity to speak and understand English and you have become involved in industries within the prison, in particular the timber industry.

47You are anxious to return home and assist your parents on your return to Vietnam.

48You are, I am told, which is indicative of your remorse, ashamed of what you have done and I infer, you are feeling distressed that you have brought disgrace upon your family.

49Further it would appear that this "Tam", this criminal I suggest, has taken advantage of you, because you apparently received no reward at all for having crop-sitted this crop.

50You heard me mention earlier and I will repeat it, that I am sure you have been the subject of that as well, because you are working without a visa, your own community all too often, is well known for ripping you off in terms of arranging work.  The contractor gets $25 an hour.  When I say $25 an hour, he is charging $15-20 an hour for each worker he supplies to the market gardener.  That individual pockets the bulk of that money and gives you $11.  Ripped off again.  It continues to happen and in some country areas, extremely serious crime over and above that sort of misbehaviour, leads to capital offences being committed all too often.

51Mr Tran, I have referred to the discomfort of lockdown whilst on remand.  I further indicate to you that the Victorian Court of Appeal has recognised the difficulty encountered by prisoners such as yourself when imprisoned over and above the difficulties and discomfort of lockdown.

52In the Commonwealth DPP v Astrata and Commonwealth DPP v Yuan, in the Commonwealth DPP v Byun [2015] VSCA 22, the Court of Appeal explored the weight that ought to be given to foreign nationals serving time in custody, separated from friends and family.

53I pause there for a moment.  I am going to continue to quote from that case, but happily for you at least, whilst in custody, you have been able to have telephonic communication with your dad.  Apparently your mum is to distressed to even talk to you because of the shame you have brought upon them, but have had at least a form of communication.

54But the Court of Appeal noted that,

"One might ordinarily expect that foreign nationals incarcerated in Australian prisons will find imprisonment more burdensome by virtue of the fact that they usually will be separated from family and friends.  Thus they are deprived of their companionship, comfort and support.  That fact will in our opinion be relevant to the exercise to the sentencing discretion, but the weight is to be given will vary from case to case."

55Mr Tran, I assure you that I have taken into account all that has been said on your behalf by Ms Broughton.

56I take into account your early plea of guilty.  This plea is indicative of your remorse.  Ms Broughton, on your behalf, expresses your remorse to this court and as I have already recognised, you are apparently ashamed to have brought this disgrace upon your family and got yourself into this predicament and have expressed that to your family which is also indicative of your remorse.

57I accept that you were fully co-operative with the investigating police officers.  That fact is to your credit.

58As I mentioned earlier and I am not going to go over it all over again, but you are a young offender.

59Therefore I propose to reduce your sentence from what I may otherwise have imposed.  Now you have got to understand this, you know because I have told you, I dealt with a similar offence last week.  That man was considerably older than you.  He cannot say, "I am a young offender" and he was sentenced to a term of imprisonment.  If he comes into contact with you for having committed an identical offence, he may well be aggrieved if he sees that you have received a sentence that is different to his and more favourable in terms of loss of liberty.

60I have got to be fair to everybody including that man, including you and including what may come tomorrow.  I hope I do not see Ms Broughton tomorrow, but the way we are going, it is likely.

61So you must understand, that there has got to be a consistency in sentencing or otherwise, the respect for the judicial system is lost.  There is many in our community who have no respect for the judicial system because they simply do not understand and are not in court when they hear sentencing comments.  It may well be that their attitude would change if they were.

62As I have just said, I have sentenced an older man within the past week for a similar offence and I am conscious that one must be consistent in sentencing.  That gentleman, like you, had no prior convictions and he too was to be deported after serving his sentence.  Again, I indicate that you receive a modest discount to accommodate the fact that you are a younger man than that prisoner.  Otherwise, it is an identical offence.

63On the count of cultivating a narcotic plant, you will be convicted and sentenced to be imprisoned for a period of 15 months.  I take it you agree with it, 233 days, Ms Broughton?

64MS BROUGHTON:  Yes, Your Honour.

65HIS HONOUR: Pursuant to s.18 of the Sentencing Act you are to be given credit for having served 233 days of imprisonment.   That means as I understand my mathematics, you have probably served over half of your sentence already.

66Further I make an order that pursuant to s.78(1) of the Confiscation Act, that all the various material that I read out earlier that was found within 18 Hound Court be forfeited and that that property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this day or the conclusion of any appeal proceedings where it may be tested and or analysed and then destroyed.

67Last but not least, I see no reason why it should change, the s.6AAA, from what I did with the previous offender, had it not been for your plea of guilty, I may well have imprisoned you for 30 months with a minimum term of 24 months.

68MS BROUGHTON:  As Your Honour pleases.

69HIS HONOUR:  Are there any other orders sought?

70MS HOGAN:  No, Your Honour.

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