Director of Public Prosecutions v Tran
[2016] VCC 831
•15 June 2016
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00770
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TUAN QUOC TRAN |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 5 May 2016 and 2 June 2016 | |
DATE OF SENTENCE: | 15 June 2016 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 831 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – cultivate a narcotic plant in a commercial quantity (one charge)
Legislation Cited: Drugs Poisons and Controlled Substances Act (1981); Crimes Act 1958; Sentencing Act 1991
Cases Cited:DPP v Bui [2016] VCC 37; DPP v Tran [2016] VCC 247; Do v R [2013] VSCA 189; DPP v Le [2016] VCC 557
Sentence: …
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms C. Parkes | Office of Public Prosecutions |
| For the Accused | Mr R. Backwell | Valos Black & Associates |
HER HONOUR:
1 Tuan Tran, you have pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity. The maximum penalty for this offence is 25 years’ imprisonment.
2 Your crimes arise out of events which took place between 1 December 2015 and 18 January 2016, approximately 6 weeks.
3 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that the facts in this case are most serious, as is your offending.
4 I turn then to a summary of your offending.
5 You are, at the time of sentence, 24 years of age and were 24 at the time you committed this offence. You are a Vietnamese citizen who has been living in Australia unlawfully since your Student Visa expired on 30 May 2015.
6 On 18 January 2016, at approximately 6.46am, police executed a warrant pursuant to the Drugs Poisons and Controlled Substances Act (1981) at 5 Keating Court, Miners Rest. When police entered that address, you attempted to evade them by running into the backyard. You were then arrested and taken to the Ballarat Police Station for interview.
7 The Keating Court address contained four separate rooms containing sophisticated hydroponic systems, with both juvenile and mature cannabis plants at various stages of growth. Police located, at the Keating Court address, 180 cannabis plants with a total of 12.725 kilograms and a number of items relevant to the hydroponic system as itemised at paragraph 4 of the Prosecution Opening. Also located was a motor vehicle, registration number 1VR 7TQ, which belonged to you.
8 An electrical bypass system was being used at that address which enabled electricity to be used without detection on the meter for billing purposes. The estimated cost of the electricity was $6,546.02.
9 There was a record of interview conducted with you, assisted by a Vietnamese interpreter, during which you told police the following:
· You had an arrangement with an unknown person whereby you would attend the Keating Court address every night, and receive payment of about $3,000 after the plants were harvested.
· You attended the Keating Court address for approximately one month and were given instructions to keep watering the plants and when it was time to harvest them, unknown persons would harvest the plants and you would receive money.
· The persons who arranged for you to water the plants would give you money for food and buy food and drinks for you.
· You would turn on the automated watering system every night and mix chemicals and water together to put on the plants. You would also prune them, pay any electricity, water and gas bills sent to the address.
· You told police that the lights used were all automatic, and that you were solely responsible for the care of the cannabis plants. You said you did not know what the plants were called or that they were illegal or drugs.
· You said you were unaware of what the bypass in the bedroom was and that you intended to look after the plants once they were harvested and you would receive another $3,000.
10 You pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. I also accept that you indicated your intention to plead guilty to this charge at an early stage, specifically at a committal mention on 5 May 2016, and also admitted your involvement in the cultivation of the plants at the time that you were interviewed by police, which was the day of your arrest. As I say, I accept you intimated early your intention to plead guilty and also advised police of your involvement at the first opportunity, although I note with concern, that you then said you did not know what the plants were and nor, you said, did you know the plants were illegal or drugs, despite the circumstances in which they were being grown and your apparent lack of knowledge of any personal details of those who recruited you.
11 I am prepared to accept, however, that your plea of guilty indicates remorse for your offending despite some of your then responses regarding your knowledge of this crop.
12 You have been in custody since 18 January 2016, the day of your arrest. Therefore, as at 1 June 2016, you had spent 136 days in custody.
13 I was told something of your personal history and circumstances by Mr Backwell, who appeared on your behalf.
14 You were born in Ha Tinh in North Vietnam. Your parents owned a small grocery store. You have two older siblings who do not live at home.
15 You completed Year 12 and also some post-secondary school studies in Vietnam.
16 In late 2012, you came to Australia to commence a business management course and entered Australia on a Student Visa. That Visa had, as I have said, since lapsed.
17 Your older brother paid your tuition fees and before you commenced your business management course, you completed seven months of English studies.
18 Unfortunately, you were unable to complete your business studies course as your brother in Vietnam lost his employment and was no longer able to send money to you for your fees.
19 You started working in a Chinese grocery shop and also did some farm labouring work.
20 As previously stated, your Student Visa has expired and you will be deported following serving the minimum term of any sentence I impose. You accept that by your offending, any chance you might have had of building a life in Australia has gone.
21 You were recruited as a crop sitter and Mr Backwell referred to your admissions of this activity as contained in your record of interview, and I discussed this with him. By your plea of guilty, whilst you perhaps minimised your awareness of the illegality of this activity in that interview, I accept that you admitted your role in caring for the plants, as I have said.
22 Mr Backwell urged that you pleaded guilty to this charge at the earliest opportunity and, as I have said, I accept that is so.
23 Regarding your time on remand, you had spent ten days in the cells at Ballarat, before moving to the Melbourne Assessment Prison, then to Port Phillip Prison then to Fulham and back to Port Phillip Prison.
24 I accept that this is your first time in custody and I also accept this is the first time you have been in trouble with the police.
25 You have not been receiving any visitors or professional visits whilst in custody and Mr Backwell submitted you do not expect that to change. I note you do not have any family in Australia.
26 Whilst you have felt a bit isolated in custody and also had a lack of English, making custody more difficult, there were, Mr Backwell conceded, other Vietnamese prisoners at Fulham, so you are not entirely on your own.
27 Mr Backwell submitted you had been working as a unit billet at Fulham and had also undertaken a number of hygiene courses relevant to that work. Whilst no papers were provided to confirm that, I accept your instructions to Mr Backwell in this regard.
28 Mr Backwell referred to sentencing snapshots and statistics for this offence and referred in particular to the median non-parole period.
29 Mr Backwell conceded that an immediate term of imprisonment was the only appropriate disposition for this offending.
30 I note for completeness, Mr Backwell was not relying upon any principles in R v Verdins & Ors[1] nor Boulton & Ors v R[2], such being, in my opinion, appropriate concessions.
[1](2007) 16 VR 269
[2] [2014] VSCA 342
31 Ms Parkes, who appeared on behalf of the prosecution, submitted that for your offending, the appropriate disposition was an immediate term of imprisonment. She submitted your offending was serious, and it was prevalent activity. You were a crop sitter and this was planned and sophisticated growing of cannabis and, in your case, a commercial quantity.
32 Ms Parkes referred to the need for general deterrence, specific deterrence, protection of the community and denunciation as being relevant sentencing considerations. I agree.
33
In addition, I was referred to a number of authorities by Ms Parkes for offending of a similar type, specifically DPP v Bui[3], a decision of his Honour
Judge Punshon of this Court, DPP v Tran[4], a decision of his Honour
Judge Howard of this Court, Do v R[5] and DPP v Le[6], a decision of his Honour Judge Parrish of this Court and I have read those cases.
[3] [2016] VCC 37
[4] [2016] VCC 247
[5] [2013] VSCA 189
[6] [2016] VCC 557
34 As I discussed with Counsel, it is difficult to compare cases factually, as facts vary enormously case to case, as do all matters in mitigation of sentence relevant to any particular offender, although I am assisted by the relevant statements of principles and the range of sentences imposed in cases of a similar nature.
35 Regarding your prospects of rehabilitation, it is difficult for me to make any accurate assessment, as you have really only been in Australia for a short period of time and offended during that short time.
36 I accept that following the serving of any sentence, it is most likely you will be deported.
37 On balance, your chances of rehabilitation as they currently stand are "reasonable". In fixing an appropriate sentence, I must seek to maximise your chances of your rehabilitation as they may be.
38 However, as well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
39 There is an element of specific deterrence also required when sentencing you, as your offending continued over a significant period of time, as alleged in the charge. You had an opportunity each night when tending these plants to rethink your involvement and desist. However, you continued in this activity.
40 I do, however, note there were no prior court appearances alleged against you.
41 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your reoffending. At least as far as the Australian community is concerned, it is highly likely, perhaps inevitable, more likely inevitable, you will be removed from Australia.
42 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
43 On Charge 1, you are convicted and sentenced to 2 years’ imprisonment with a non-parole period of 12 months.
44 Pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to a term of imprisonment of 3 years and set a non-parole period of 2 years.
45 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 149 days in custody by way of pre-sentence detention, up to and including yesterday, 14 June 2016 and direct that this be entered into the records of the Court.
46 The prosecution made application for a forensic sample pursuant to s.464ZF Crimes Act 1958. Your counsel consented to the making of this order and I make the order in the terms sought. It will be for a saliva sample and I do that on the basis of the seriousness of your offending. I must advise you the authorities may use reasonable force in order to obtain that sample.
47 The prosecution also made application for a disposal order. Your counsel consented to the making of that order and I make the order in the terms sought.
48 There is also an application for a forfeiture order in relation to your motor vehicle registration number 1BR 7TQ. This was consented to by counsel on your behalf and I make the order in the terms sought.
49 All right, so first thing's first. Have I got the PSD right?
50 MS PARKES: Yes, Your Honour.
51 HER HONOUR: Do you agree?
52 MR BACKWELL: Yes, Your Honour.
53 HER HONOUR: All right and any other orders?
54 MS PARKES: No, no more Your Honour.
55 HER HONOUR: So everyone's happy with the maths, that's excellent, all right.
56 MS PARKES: Thank you, Your Honour.
57 HER HONOUR: Is there anything further, Mr Backwell?
58 MR BACKWELL: No, Your Honour.
59 HER HONOUR: Ms Parkes?
60 MS PARKES: No, Your Honour.
61 HER HONOUR: All right, Mr Tran, thank you. Yes thank you everyone for your assistance. Thank you both.
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