Director of Public Prosecutions v Tran
[2015] VCC 1586
•11 November 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 15-01422
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| QUY BA TRAN |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 November 2015 |
| DATE OF SENTENCE: | 11 November 2015 |
| CASE MAY BE CITED AS: | DPP v Tran |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1586 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – cultivate a narcotic - commercial quantity – whether weight of the cannabis plants are a chief or controlling factor – reduced moral culpability
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981
Cases Cited:Barton v R [2013] VSCA 360; Ivanoff v R [2015] VSCA 262; R v Pham [2015] HCA 39; R v Verdins & Ors (2007) 16 VR 269
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms T Saville | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr T Kassimatis | Mr D McKenna |
HIS HONOUR:
1Quy Ba Tran, you have pleaded guilty to a charge on indictment that between 28 April 2015 and 26 May 2015, you cultivated a narcotic plant, namely cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant contrary to s72A of the Drugs, Poisons and Controlled Substances Act 1981.
2The seriousness of your offending is demonstrated by the fact that such an offence carries a maximum term of imprisonment of 25 years.
3You met an unknown man at a casino who recruited you to look after a large quantity of cannabis plants, which had been planted and cultivated at a house at Lyndhurst. You were offered several thousand dollars. You accepted the offer.
4On 26 May 2015, police attended the premises armed with a search warrant, which they obtained pursuant to the Act. At about 10.55am, a red car was observed driving past the address. It was driven by a female. The male passenger in the car was you. The police intercepted the car. You were found to be in possession of a car key, a garage remote control and a house key. The house key and the garage key opened a door of the premises and the garage door at the premises.
5At approximately 11.15am, the police executed the warrant. What they observed and found was the following:
·a sophisticated hydroponic cultivation system had been established at the premises;
·some of the rooms in the house had been converted so that there were seven rooms at the premises, which were used to cultivate cannabis plants;
·187 cannabis plants were found in six of those rooms;
·127 cannabis plants were found in a walk-in wardrobe;
·there were heat lamps attached to timers and electrical transformers above the cannabis plants.
6The bathrooms at the premises were used as the central watering point from which water was sped through charcoal filters across the roof of each of the rooms where the cannabis plants were cultivated. Fertiliser was found at the premises which was no doubt used to feed the cannabis plants. The electricity meter had been bypassed so that the supplier of electricity to the premises would not be able to obtain an accurate reading of the electricity being consumed at the premises.
7A total of 314 plants were found at the premises. They were at varying stages of maturity, from seedlings through to more mature plants. The 127 plants found in the walk-in wardrobe weighed 433.6 grams, whereas the 187 plants found in the six rooms weighed 148.46 kilograms. The total weight of the plants recovered from the premises was 148.89 kilograms.
8You were arrested and conveyed to the Narre Warren Police Station where you were interviewed through a video record of interview. You made full and candid admissions. Among other things, you admitted that you were recruited by an unknown man to cultivate the plants; you engaged in the activity of cultivating the plants by feeding and watering the plants; you engaged in that conduct for about one month; you believed that there were up to 200 plants being cultivated at the premises, and you were told that you would receive several thousand dollars as payment.
9There was a filing hearing of this proceeding on 27 May 2015. You pleaded guilty at the committal mention on 18 August 2015. You were remanded in custody from 26 May 2015. You have been in pre-sentence custody for 169 days as at today’s date.
10You were examined by Mr McKinnon, forensic and consultant psychologist, at the Metropolitan Remand Centre on 23 October 2015. Your counsel referred me to your unfortunate past history, much of which is contained in Mr McKinnon’s report dated 24 October 2015. I should have marked his report as an exhibit on the plea. I will now do that and mark it exhibit “A”.
11You were born in the city of Haiphong in Vietnam on 2 August 1963. You are now 52 years of age. Although your past history is well described in Mr McKinnon’s report, I propose to set out some of it so that my reasons for moderating the sentence that I will impose on you can be properly understood.
12Your mother and father came from a rural community. They had eight children. You are their fourth child. Your parents were largely involved in working on rice farms and in labouring work. Your family lived through the horrors of the Vietnam War. The area where you lived was the subject of bombing.
13In about 1972, your father was arrested by North Vietnamese authorities because of his association with the French Colonialists. He was subsequently imprisoned. During his absence, you and your siblings had to beg for money and food in order to see to the survival of the family. You were nine years of age when your father was imprisoned. He was eventually released from prison. He died in 1978.
14You left school at the equivalent of Grade 4. Whilst I was not informed of your age when you left school, you must have been very young and probably about ten years of age or thereabouts. You obtained employment with a local builder at some stage and you worked on and off in the construction industry. You applied your wages to the support of your family where you could.
15At the end of the war in Vietnam, you made three attempts to flee that country. The first was in 1982, which I infer was unsuccessful. The second was in 1987. You were apprehended by Vietnamese authorities. You were imprisoned for 18 months at the Halong Bay Prison. You described the mistreatment you suffered during your imprisonment as amounting to torture. The third attempt was in 1989. You made your way to Hong Kong on a boat. You were accompanied by your wife. You were interned in a refugee camp for eight years. It was during that internment that your two children were born. You were mistreated because of your advocacy for refugee rights. You were promised a sum of money if you returned to Vietnam. You accepted the offer. You returned to Vietnam but you did not receive the money you were promised. After your return to Vietnam, you discovered that your family home had been destroyed. You believed that occurred as punishment for you fleeing Vietnam.
16Tragically, your daughter, then aged nine years of age, drowned. Your son, who is both deaf and mute, is now 25 years of age. He lives with his mother in Vietnam.
17Your mother died in about 2005. Before she died, she sold a property which she owned. She divided the proceeds of sale amongst her children, including yourself. You used that money to obtain fraudulent documents which enabled you to obtain a business visa to enter Australia. After your visa expired, you remained in Australia undetected until you were arrested on 26 may 2015.
18You developed a relationship with Ms Nguyen. She works as a nail technician. She has two children, who are aged 15 and 12 years. You lived with her for about six years until your arrest. You developed a close relationship with her and her children. She has visited you at the Remand Centre.
19Since the expiration of your visa, you have worked in low paid cash-in-hand labouring jobs, mainly in the western suburbs at market gardens. Mr McKinnon described you as living in the shadows of society, which appears to me to be a very apt description and consistent with you avoiding any contact with any government authorities.
20Mr McKinnon considered that you are suffering from a Post-Traumatic Stress Disorder which is of long standing, related to your very unfortunate exposure to events in your life which I have referred to above.
21Your counsel submitted that the gravity of your offending warrants the immediate imposition of a term of imprisonment, but at the lower end of what offending of this kind should attract, and a minimum term before you become eligible for parole measured in months. For a number of reasons, which I will make plain shortly, I propose to sentence you in that way.
22The persons who stood to gain financially from the enterprise were the persons who set up the drug house. Your involvement was rather more peripheral and that your role was to tend the plants. It is probable that most of the plants have been grown before you commenced tending the plants – so what your efforts produced in growing the plants to maturity was probably relatively modest. What you were to receive from the enterprise was relatively modest and measured in thousands of dollars. You were involved in tending the plants for about one month only.
23I have found two decisions of the Court of Appeal which bear some similarities to the circumstance of your offending. They are Barton v R [2013] VSCA 360 and Ivanoff v R [2015] VSCA 262. In both cases, the accused had set up a means of growing cannabis plants which was reasonably sophisticated. They subsequently cultivated plants. Barton pleaded guilty and was sentenced to two years’ imprisonment with a nine-month non-parole period. In his case, there were 160 plants weighing 132 kilograms. Ivanoff was found guilty by a jury on his trial. In his case, there were 94 plants weighing about 36.2 kilograms. His sentence was reduced on appeal to time served in pre-sentence detention of 419 days and a Community Correction Order for a period of one year.
24The first obvious distinction is that in both of those cases, the means of growing the cannabis was set up by the accused, who each personally stood to gain financially by trafficking the cannabis. The Court of Appeal in each considered that the enterprise on which each of the accused had embarked, and the quantity of the cannabis that they had cultivated, warranted an immediate sentence of imprisonment. In your case, although the quantity is very large, the plants were not yours and you stood to gain a relatively modest sum measured in thousands of dollars.
25I have paid due regard to your counsel’s submission that I should be cautious in relying on the weight of the cannabis plants as the chief factor or controlling factor to be taken into account in fixing a just sentence. You referred me to R v Pham [2015] HCA 39 and to the cases referred to therein. I propose to accept the level of caution referred to in Pham.
26Notwithstanding the distinctions with those decisions of the Court of Appeal, your offending calls upon me to impose a sentence which specifically deters you from engaging in this conduct. It also calls upon me to impose a sentence with a strong expression of general deterrence and denunciation of your conduct.
27The cultivation and trafficking of drugs of this kind does not occur without the involvement of people like yourself. You obviously gave no thought to the scourge that drugs have caused in our society, particular with our youth. Your greed drove you to engage in a major drug cultivation exercise without thought for the damage that the drugs would have caused had they hit the streets. I sometimes wonder what people like you would think if your own children and other members of your family had their lives inevitably altered by the consumption of drugs of this kind. I daresay you would at least be angry and wanting the cultivators and traffickers to be dealt with severely in some way.
28However, I accept the submissions made by your counsel that there are factors which weigh in favour of moderating the sentence which I would otherwise be inclined to impose upon you. They are:
·your early plea of guilty
·your full admissions of your criminality in the record of interview
·the expressions of remorse, which are inherent in your early plea of guilty and in your full admissions; and additionally
·the expressions of that contained in Mr McKinnon’s report.
29I accept that your moral culpability is reduced because the Post-Traumatic Stress Disorder probably impaired your judgment when accepting the offer to tend the plants at the premises. That was the opinion expressed by Mr McKinnon, although it was a guarded opinion.
30A sensible moderation is permitted based upon the first limb of R v Verdins & Ors (2007) 16 VR 269 at 276. It is very likely that you will be deported once you have served your sentence of imprisonment because your Visa has expired, which gives you no rights to continue to reside in this country. Deportation will increase the burden of the service of your sentence of imprisonment.
31You have no prior convictions and apart from this offence, you were apparently otherwise a man of good character. You had a reasonably sound working record and a reasonably sound domestic record as an individual in this community, evidenced by your reasonably long standing relationship with Ms Nguyen and her children.
32Your counsel submitted that in accordance with the third, fourth, fifth and sixth limbs of Verdins, it would be sensible to further moderate the sentence of imprisonment I must impose upon you because of your impaired mental functioning. It is relevant in determining the place of specific deterrence and general deterrence in sentencing you. Furthermore, that the service of a sentence of imprisonment may weigh more heavily on you and may have an adverse effect upon your mental health.
33Whilst I am prepared to accept that the Post-Traumatic Stress Disorder may have reduced your moral culpability, I am not persuaded that Mr McKinnon's opinion satisfies the other limbs of Verdins. In summary, he does not go that far and indeed, he was of the opinion that you would cope satisfactorily in a prison environment.
34Your counsel pressed the point that because of your previous loss of liberty in Vietnam and in Hong Kong, that you had become conditioned to a loss of liberty, whereas if you had not had that experience, there is a likelihood that you would satisfy the fifth and sixth limbs of Verdins. I am not persuaded that I should engage in an exercise which is based on guesswork. There would need to be some better expert evidence from the likes of someone with Mr McKinnon's expertise for me to reach such a conclusion.
35Although there can be no doubt that your offending is moderately grave, your involvement in the cultivation of the cannabis plants does put you at the lower of gravity for offending of this kind. I have paid due regard to the plea made on your behalf by your counsel and to factors which I consider are appropriate to moderate the sentence which I must impose on you. The sentence I now impose on you is proportionate to the gravity of the offence and the light of the objective circumstances of its occurrence.
36I would now ask you to stand please. I will do this slowly, Madam Interpreter, so you can interpret it fully and carefully.
37On the count of cultivating a narcotic plant, I sentence you to eighteen (18) months’ imprisonment. I will fix a period of six (6) months as a minimum term before you will become eligible for parole.
38I declare that the time you have spent in pre-sentence custody of 169 days is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the Court.
39If it had not been for your early plea of guilty, I would have sentenced you to three years’ imprisonment with a period of 18 months as a minimum term before you would become eligible for parole.
40You may be seated.
41Unless there is anything else, Ms Saville, I will now propose to sign the relevant Disposal Orders. Is there anything else?
42MS SAVILLE: No, Your Honour.
43HIS HONOUR: I don’t think I have your name.
44MR McKENNA: McKenna, Your Honour.
45HIS HONOUR: Mr McKenna, this issue of the Disposal Order was debated with Mr Kassimatis and he indicated that there was no objection by ‑ ‑ ‑
46MR McKENNA: It’s not opposed, Your Honour.
47HIS HONOUR: It’s not. All right. Just thought I would go through that formally because I was not sure that you were here.
48MR McKENNA: Yes, Your Honour.
49HIS HONOUR: When that debate occurred. Anything else, Ms Saville and Mr - anything else?
50MR McKENNA: No, Your Honour.
51HIS HONOUR: Yes, I’ll return these.
52MR McKENNA: As Your Honour pleases.
53HIS HONOUR: Mr Tran can be removed.
---
0
4
0