Director of Public Prosecutions v Tran
[2016] VCC 247
•9 March 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-02098
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Hoang Thi TRAN |
---
| JUDGE: | HIS HONOUR JUDGE HOWARD |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 March 2016 |
| DATE OF SENTENCE: | 9 March 2016 |
| CASE MAY BE CITED AS: | DPP v Tran |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 247 |
REASONS FOR SENTENCE
---Catchwords: CRIMINAL LAW - sentence - plea of guilty to cultivating a commercial quantity of cannabis - 221 plants weighing 87.72 kg - crop sitter for sophisticated hydroponic system – TES 18 months’ imprisonment with minimum of 12 months’ imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S Clancy | Office of Public Prosecutions |
| For the Offender | Ms C. Hollingworth | Victoria Legal Aid |
HIS HONOUR:
1 Hoang Thi TRAN, you have pleaded guilty to cultivating a commercial quantity of cannabis, for which the maximum penalty is 25 years’ imprisonment.
2 I must now sentence you on behalf of the community.
Circumstances of offending
3 The circumstances of offending are set out in an agreed prosecution opening read out in court. A summary will suffice. At about 9pm on 3 September 2015, police discovered premises at Cranbourne West being used as a “grow house” to cultivate a large quantity of cannabis supported by a sophisticated hydroponic system. The windows of the house were boarded up with plaster and no less than six rooms were utilised containing 221 cannabis plants of various heights and maturity, including 102 seedlings. The crop weighed a total of 87.72kg (excluding roots, other than for the seedlings) and it was supported by a complex set of plastic tubing, light shades and globes, power transformers and charcoal filters. As often happens in these cases, an electrical bypass had been installed, but you are not to be punished for that.
4 A commercial quantity of the drug is not less than 25 kg or 100 plants, so you were cultivating well over the threshold in each case. This is to be compared with a large commercial quantity which is not less than 250 kg or 1000 plants and a traffickable quantity which is not less than 250g or 10 plants.
5 You were found in the front bedroom in possession of the house keys and your car was parked in the driveway. You were arrested and taken to a police station, but as you do not speak English you were not able to be interviewed due to the unavailability of an interpreter. You were charged and have been held in custody without bail from that time until the present. There is 188 days’ pre-sentence detention up to, but not including, today. You pleaded guilty at committal mention on 24 November 2015.
Background and personal circumstances
6 Your background and personal circumstances have been set out in a helpful written submission provided by your counsel. You are now 45. You were born in Vietnam, one of four children. Your parents worked on a farm and you had a very modest, simple upbringing. You left school at 14 and worked on the family farm. You can read and write Vietnamese. Sadly, your younger sister died in an accident in 1992. That same year, when you were 22, you married and moved to the city where you mended clothes and cleaned houses. Unfortunately your husband was a drinker and gambler; he subjected you to family violence and took your money. You had a son in 1995. Ultimately, after an episode of bad violence put you in hospital, you left your husband and returned with your son to live with your parents on the farm.
7 In 2008, when you were 38, you came alone to Australia on a 3 month visitor visa. Your aim was to earn money to send home. You never returned to Vietnam and are currently an illegal immigrant. Over the past 8 years you have worked on Victorian farms and at a restaurant in Melbourne and have sent money home to assist your family and your son’s education. Your father died of cancer in December last year whilst you were in custody. Your son is now 20 and lives with your mother in Vietnam. She does not keep good health. She knows of your predicament but your son does not. Your other two siblings are not living near to your mother.
8 You keep good health and have no alcohol or drug issues, and no mental health problems. Letters from two close friends make clear you are essentially a good, hard-working, community-minded person who has done your best to overcome your difficult life and to help others.
Mitigating circumstances
9 There are a number of mitigating circumstances. You come from an impoverished childhood background which was followed by a very difficult marriage. In spite of these disadvantages, you have been fully and productively employed all of your adult life, including working for 8 years here up to the time of offending. You feel a closeness to your family and were grief-stricken by your father’s recent death and, I gather, your inability to go to attend his funeral due to your incarceration. Generally, I consider you have been socially isolated in Australia and have very much missed your family. No doubt you are now worried for the welfare of your mother and son.
10 Significantly, you are a mature offender with no prior or subsequent convictions. You have no alcohol, drug or mental health issues.
11 Next, you pleaded guilty at the earliest time, thereby saving considerable court time, inconvenience and expense. This utilitarian benefit has served the ends of justice, for which alone there should be a significant discount in penalty. I am satisfied your plea is associated with remorse and regret for your offending and that you have insight into the seriousness of your conduct.
12 At the hearing your counsel gave some limited and diffuse information about your “recruiter”, but this was insufficient for adequate police inquiries to be undertaken. You are not to be punished for failing to volunteer meaningful information but you are not in the category of offenders who merit very substantial sentence discounts for genuine and meaningful assistance and co-operation with authorities.
13 Since you have been in custody there has been some rehabilitation. You have been working in prison, which generates money to make weekly phone calls home to your family, and have undertaken computer and English courses. You seem to have settled well, however your lack of English and family support and foreign background will contribute to your sense of social isolation in prison and this will make the experience all that much harder, even though you are likely to be sharing a cell with another Vietnamese woman.
14 Given your status as an illegal immigrant and assuming you will be sentenced to 12 months’ imprisonment or more, it can be said with some certainty that following your release from prison you will be deported to Vietnam.[1] You have indicated this is what you want and look forward to returning to live with your mother and son and to working on a farm and providing for your family. It has not been suggested that the prospect of deportation is a mitigatory factor.[2]
[1]S.501(3A) Migration Act 1958 (Cth).
[2]Guden v The Queen [2010] VSCA 196, [11] – [30]; DPP v Zhuang [2015] VSCA 96, [54].
15 I am satisfied that you have good prospects of rehabilitation, especially given your good work history, the absence of any criminal history and the fact that some Vietnamese friends will visit and support you in prison.
Other sentencing considerations
16 There are other important sentencing considerations. You have committed a very serious offence, the seriousness of which is reflected in the very high maximum penalty of 25 years’ imprisonment, to which I must pay due regard.
17 Your counsel indicated that through a work contact, you agreed to take the place of another woman who had been the crop sitter as she had “gone on holidays”, whatever that means. Hence, you knew about the scheme before you went into the house but, of course, you had nothing to do with the set-up or management or future dealings of the crop. It was explained you started this work a week before your arrest and stayed over on several nights whilst you were watering the plants. However, you are to be sentenced for having committed the offence on one day only as that is how the charge is framed.
18 Your counsel also indicated you had not received any financial benefit for your involvement, although ultimately it was said you expected to be paid $150 per day for each day you were present cultivating the crop. You counsel said she had no instructions as to how long you expected to be doing this task. I am unable to reach a conclusion as to how much money you received or were likely to make from your involvement. Clearly, you were driven by the prospect of financial gain as you concede you offended when your father was very ill and the family needed money for his treatment. Although this motive explains your conduct, it could never excuse your offending.
19 The offence involves a substantial amount of the drug, well over the commercial quantity thresholds, which is one factor of importance. As a crop- sitter you played a crucial role in this highly planned and sophisticated commercial enterprise; by your presence alone you have helped to shield the principals from detection. No valuation statement was provided, but this amount of the drug would be worth a great deal on the commercial market. Significant profits were to be made by others following the harvest of the crop and its distribution into the community, which is a socially-destructive activity with all of its pernicious social consequences. I have no doubt you well understood all of this. It is not suggested you lack intelligence.
20 General deterrence is of particular importance in a case of this kind and your offending is prevalent. The absence of prior convictions is of less significance in cases of this kind. You are exactly the type of vulnerable person recruited by drug principals for this type of criminal activity.
21 I must also consider current sentencing practice. I was provided with the Sentencing Advisory Council's most recent report of March 2015, Major Drug Offences - Current Sentencing Practices. For this offence, it is agreed you fall into the cluster 1 category, which involves, relevantly, crop or house sitting for a period of less than 3 months, by persons who have no prior convictions and plead guilty. Of interest, the amount of the plants involved does not vary significantly between cluster 1 and 2 cases. Over the period 2008/09 to 2012/13, there were 201 cluster 1 offenders (49.9%) of which 58% were sentenced to immediate imprisonment and 41% to suspended or partially suspended sentences. This latter disposition has now been abolished and these are pre-Boulton figures. The imprisonment terms ranged from 6 months to 4 years and 3 months and the median term of imprisonment was 2 years.[3] The limitations of these type of figures are well-known and they are not to be regarded as a “benchmark’, but they do provide guidance and stand as a yardstick against which to examine a particular sentence. [4]
[3]The median for the more serious cluster 2 category was 3 years’ imprisonment.
[4]Bui v The Queen [2015] VSCA 313, [27], per the Court (Redlich and Whelan JJA), judgment delivered 25 November 2015 (citations omitted), the Court considered the recent SAC figures.
22 Comparable cases are of more assistance. I was referred to 3 County Court sentences for cluster 1 offenders where there were many similar features to your own. [5] The sentences ranged from 9 months straight to 18 months with a minimum of 9 months’ imprisonment. Whilst these sentences appear to bear little relationship to the maximum of 25 years’ imprisonment, they were not appealed by the DPP and I am bound to sentence consistently with current sentencing practice.
[5]DPP v Hiep Nguyen [2014] VCC 1784 (Smith J); DPP v Thuy Xuan Nguyen [2015] VCC 75 (Wilmoth J); DPP v Dat Tien Nguyen [2016] VCC 26 (Parrish J).
23 Not surprisingly, you concede you should be sentenced to an immediate term of imprisonment. The prosecution agreed. It was not submitted that your release at any time on a community correction order would be appropriate. Of course, imprisonment must be a last resort, particularly so for an offender, like you, who has no prior convictions and has never been to prison before. I must also apply the principle of proportionality and ensure that I do not pass a crushing sentence upon you. Notwithstanding the mitigating circumstances, the important principles of general deterrence & just punishment dictate that your offending deserves the imposition of an actual period of imprisonment.
24 Finally, on behalf of the community, I strongly denounce your offending.
Sentence
25 Ms Tran, please stand up. On the charge you will be convicted and sentenced to 18 months’ imprisonment. I fix the period of 12 months as the non-parole period. I declare that 188 days’ pre‑sentence detention be reckoned as already served under that sentence and direct that such declaration be entered in the records of the court. But for your plea of guilty, I would have imposed a sentence of 2½ years’ imprisonment with a minimum of 20 months.
26 You have agreed to the making of a forensic sample order. I will make the order given the seriousness of the offence, it is by consent and in the public interest. Accordingly, pursuant to s.464ZF(2) of the Crimes Act 1958, I order that you provide a scraping from your mouth and/or a blood sample in accordance with sub-division 30A of Part III of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I should warn you that if at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
27 I will also make the disposal order sought which is also agreed to by you. Please sit down for the moment.
28 I hand down the signed orders and ask counsel, are there matters arising?
29 COUNSEL: No, your Honour.
30 HIS HONOUR: I will have noted on the gaol papers that this is the first time that the offender has been imprisoned and that she should be closely monitored. Ms Tran, you need to go with the prison officer now. Thank you, please remove the offender.
31 [Offender removed]
---
6
0