Director of Public Prosecutions v Tran
[2024] VCC 800
•5 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00496
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Thieu TRAN |
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JUDGE: | S.Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 May 2024 | |
DATE OF SENTENCE: | 5 June 2024 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 800 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Cultivation of a narcotic plant (Charge 1) – Damaging property (Charge 2) – Dealing with suspected proceeds of crime (Summary Charge) – guilty plea – large quantity of cannabis – no expected significant financial gain – first time offender – good prospects of rehabilitation – risk of deportation
Legislation Cited: Migration Act 1958 (Cth), Sentencing Act 1991 (Vic)
Cases Cited:R v Pham (2015) 256 CLR 550
Sentence: Total effective sentence of 254 days imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M White | Office of Public Prosecutions |
| For the Accused | Mr M Sturges | Orange Legal Group |
HER HONOUR:
1Mr Tran, you have pleaded guilty to one charge of cultivation of a narcotic plant (charge 1), one charge of damaging property (charge 2) and one summary charge of dealing with the suspected proceeds of crime.
2Charge 1 carries a maximum sentence of 15 years imprisonment. Charge 2 carries a maximum sentence of 10 years imprisonment. The maximum sentence for the summary charge is 2 years imprisonment.
3In sentencing you, I have taken into account all of the written material tendered,[1] as well as the oral submissions of counsel.
[1] The material tendered includes: Amended Summary of Prosecution Opening dated 08.05.2024; Prosecution submissions dated 08.05.24; Defence submissions dated 02.05.2024; character references from Jessica Stevens and Hong Ngan Huynh; and a summary of relevant cases from the Judicial College of Victoria.
4The circumstances of your offending are set out in the Amended Summary of Prosecution Opening dated 8 May 2024, which was accepted by your counsel, and I sentence you on the basis of the facts set out in that document. I summarise the offending briefly.
Circumstances of offending
5Detective Senior Constable Nicholas Jung commenced an investigation into 24 Verdon Street, Dromana (“the property”), after receiving information that cannabis was being cultivated there. He attended the property on 6 and 8 September 2023 and observed a car in the driveway.
6You met the co-accused, Quan Minh Nguyen, through mutual friends, and he asked you to help him clean the property for which he offered to pay you $250. He drove you there on 25 September 2023. You only became aware of the cannabis crop when you arrived at the house at 6:25am. However, you continued to assist him in cleaning the premises.
7Police observed your arrival at the property with the co-accused. Approximately fifteen minutes after you arrived, police executed search warrants at the property. They surrounded the house and announced themselves as police. They attempted to force entry through two doors at the front of the house but the doors were barricaded from the inside.
8Mr Nguyen surrendered by exiting the property through a side door. He was wearing black disposable gloves. The police heard the sound of a window breaking (charge 2 – damaging property) and you were observed wearing dark clothing and black disposable gloves, running away across the neighbouring yard. Police arrested you. You were carrying an Apple iPhone and $896.55 in cash. The cash is suspected of being proceeds of crime and is the subject of the summary charge.
9The property was searched and a large hydroponic set up was discovered in seven rooms. In total, police located 249 cannabis plants, in various stages of growth (from seedlings to mature plants), with a combined weight of 221.71kg (charge 1 – cultivation of narcotic plant).
10The owner of the property told police that he had purchased it in 2019 and signed a private rental agreement with a couple around that time, but that due to the COVID-19 pandemic and other issues, he did not attend the property or contact the tenants.
Arrest and Record of Interview
11You were interviewed on the day of your arrest. You answered ‘no comment’ in response to most questions about the charges, but you indicated that the money in your possession was given to you by your wife to pay for school fees. There are 254 days of pre-sentence detention, not including today.
Guilty Plea
12The matter resolved on 29 February 2024, prior to the committal hearing.
Personal Circumstances
13You were born in April 1983 in Vietnam, and you were 40 years old at the time of offending. You completed your high school education in Vietnam and thereafter, became a contributing member of society. Before coming to Australia, you worked at an abattoir and as a Welder. You migrated to Australia in 2015 for education and work but subsequently sought a protection visa as you are a practicing Catholic. That application was refused and you are now on a bridging visa. You are attempting to re-litigate the protection visa ruling as you intend to stay in Australia at the conclusion of these proceedings, subject to the sentence ultimately imposed. Your parents and sisters remain in Vietnam. After moving to Australia in 2015, you worked as a window maker and a fruit picker on a farm in Adelaide. It was here that you met your wife Hong Ngan Huynh and started a family. In 2020, you moved to Victoria where you worked casually as a residential cleaner and a handyman.
14Your wife is also on a bridging visa, and you have two young children aged 6 and 2. They are both Australian citizens.
Defence Submissions
15Your counsel accepted the summary of offending and conceded that general deterrence and denunciation are important sentencing considerations given that cultivation is a relatively prevalent crime. It was submitted that specific deterrence and protection of the community are less significant as you are a first time offender and have excellent prospects of rehabilitation.
16In addressing the objective gravity of offending as outlined by the High Court in the decision of R v Pham[2] your counsel submitted the following:
(a) Your offending was committed by assisting your co-accused who the prosecution accepted was the principal offender;
(b) There is no evidence before the Court to suggest that you were aware of the quantity of cannabis at the address nor that you had previously attended the address;
(c) The offending is confined to a single date, limited to 15 minutes;
(d) The prosecution is unable to identify what you actually did inside the premises and how you may have assisted with cultivation, though you instructed your counsel that your role was to assist the co-accused with cleaning;
(e) The offending is a low level example of cultivation simpliciter, but for the quantity of cannabis that was located;
(f) You instructed your counsel that you were advised by the co-accused that you would be paid $250.00 for your assistance with cleaning the premises. Whilst this may be considered slight enrichment, it is not of significant benefit to you;
(g) There is no evidence that you had a large financial stake in the crop; and
(h) While the quantity of cannabis found may be a significant factor in assessing your criminality or the gravity of the crime, it is not the sole variable affecting sentence.
[2] (2015) 256 CLR 550, 562 [35]-[36].
17Your counsel submitted that, given the above considerations and the absence of suggestion you played a physical role in the actual cultivation of the crop, your offending is at a low level, akin to or below that of a crop-sitter.
18In mitigation, your counsel raised a number of matters.
19Firstly, you are a middle-aged man with no prior convictions. In contrast to other cultivation cases which frequently involve young offenders who have arrived for the purpose of cultivating and then leaving the country, you have a solid work history in Australia and, as can be seen from your visa application (and that of your wife) you are committed to remaining here with your family which includes two children who are Australian citizens.
20Secondly, your early plea of guilty was made at the first available opportunity and should be seen as an indication of your acceptance of responsibility for your conduct and your remorse. Your plea also has significant utilitarian value in that it saved the court and the community the cost of a trial.
21Third, whilst you have no prior mental health conditions, this is your first time in custody and you have become anxious and distressed regarding the situation you have left your family in. You have not received any medication or meaningful treatment whilst in custody. The family has struggled in your absence and this has weighed heavily on you. Your wife supplied a character reference describing the stress, anxiety, difficulties and emotional strain of your separation. She described you as being a loving, devoted and reasonable man who always prioritises the wellbeing of your children and your wife. She has recently been diagnosed with cancer and has been told to avoid stress but the strain of managing the family affairs without you has made this very difficult for her.
22Finally, the prospect of deportation has weighed heavily on you in custody and this concern is not something experienced by prisoners on remand who are not in Australia on visas. A sentence of imprisonment of 12 months or more will lead to automatic cancellation of your visa,[3] and it will be difficult to overturn such a cancellation. You have built a life in Australia with your young family and wish to remain here.
[3]Migration Act 1958 (Cth), s 501(3A).
23It was submitted that you have excellent prospects for rehabilitation.
24It was also submitted that, overall, the time spent on remand to date adequately satisfies all the relevant sentencing principles. Alternatively, it was submitted that a combination sentence involving a term of imprisonment of less than 12 months along with a Community Corrections Order would be sufficient punishment without triggering the immediate cancellation of your visa, which would imperil the future of your family in Australia.
Prosecution Submissions
25At the outset, counsel for the prosecution conceded that at the Summary Jurisdiction Application on 26 March 2024 in the Magistrates Court it had submitted that the matters relied on in mitigation were relatively uncontroversial, and had opposed summary jurisdiction on the basis of the significant quantity of drugs seized, the sophistication of the cultivation at the property and that the co-accused was to be dealt with in this Court.
26It was accepted that the role you played in the overall cultivation enterprise was that of a low-level crop sitter and that the co-accused, who was significantly more involved in the operation than you, approached you for assistance with cleaning and drove you to the property in question. It was also accepted that your plea of guilty was entered at an early stage, that you have no prior convictions, are of good character, that you have good prospects of rehabilitation, and that the prospect of deportation has made your time on remand more onerous than it would be for a person not facing that prospect. It was conceded that specific deterrence and protection of the public had little role to play in the sentencing exercise in your case. Whilst it was accepted that remorse inheres in your plea of guilty, it was submitted that there was no additional evidence of remorse in the material tendered on your behalf.
27However, the prosecution submitted that the objective gravity of your offending was increased by the fact that you did not leave the property immediately upon seeing the cannabis, by the quantity of cannabis located at the premises, and by your attempt to escape police.
28The prosecution submitted that, notwithstanding your limited role in the cultivation enterprise, the sentencing principles of general deterrence and denunciation remain paramount. The prosecution noted that there were comparable cases in this Court where straight sentences of imprisonment were imposed, but that these involved mitigatory factors (such as youth, drug dependence, financial need or Verdins considerations) that are not present in your case. It was submitted that the relevant sentencing principles could not be met by a combination sentence involving immediate release. However, it was conceded that your offending warranted the imposition of a term of imprisonment involving a head sentence and generous non-parole period.
Sentencing Considerations
29Given the agreed summary, and the matters referred to by your counsel which are outlined above at paragraph 16, I consider that, given your limited role as cleaner, your lack of awareness of the presence of cannabis until your arrival at the premises and the short duration of your presence at the premises, that objectively your offending lies towards the lower level of offending, notwithstanding the large quantity of cannabis found at the premises.
30I accept the matters raised in mitigation on your behalf: you have no prior convictions, pleaded guilty at an early stage, are otherwise of good character with a solid work history, and have good prospects of rehabilitation. I also accept that your time on remand has been made more onerous by your anxiety about the welfare of your family and the possibility that your visa will be cancelled and you will face deportation in the event of being sentenced to a term of imprisonment of 12 months or more.
31In all the circumstances of this case, I am satisfied that all of the relevant sentencing principles can be met by the imposition of a term of imprisonment equivalent to time served, that is, a period of 254 days.
32On charge 1, cultivation of a narcotic plant, I sentence you to a term of imprisonment of 254 days. On charge 2, damage to property, I sentence you to 7 days’ imprisonment, to be served concurrently with the sentence imposed on charge 1. On the summary charge of dealing with the suspected proceeds of crime, I sentence you to 1 months’ imprisonment, to be served concurrently with the sentence imposed on charge 1.
33The total effective sentence is one of 254 days imprisonment.
34Pursuant to s 6AAA of the Sentencing Act1991, I indicate that but for your plea of guilty I would have sentenced you to a total effective sentence of 12 months imprisonment.
35Finally, I make the forfeiture order sought by the prosecution.