Director of Public Prosecutions v Tran

[2015] VCC 633

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00477

DIRECTOR OF PUBLIC PROSECUTIONS

v

LY DINH TRAN

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2015
DATE OF SENTENCE:	7 May 2015
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2015] VCC 633

REASONS FOR SENTENCE
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Subject: Criminal law – plea - sentence
Catchwords: Cultivation commercial quantity of Cannabis L
Sentence: Total effective sentence of 18 months with 119 days reckoned as time already served, non-parole period of 12 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Bates	OPP
For the Accused	Ms J. Willard	Revill & Papa Lawyers

HER HONOUR:

1Ly Dinh Tran, you have pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant, Cannabis L, between 8 September 2014 and 8 January 2015.  The maximum penalty for this offence is 25 years imprisonment.  The factual circumstances of your offending were set out in the prosecution opening which was tendered as Exhibit on the plea and I sentence you on the basis of the facts set out in that document.

2I will summarise those facts briefly.  You were 44 years old when you arrived in Australia in May 2014 on a three month tourist visa.  You commenced living at a property at 11 Baddeley Circuit in Cranbourne North which was rented originally to your acquaintance, Tran Nguyen, and another person and then re-leased to you 5 days later at a rent of $1800 per month.  A person named Van Truan showed you how to plant cannabis plants and offered to pay you when the plants were harvested.  Van Truan set up the hydroponic system and the electricity supply.  You planted the crop and by the time of your arrest on 8 January 2015 had received $10,000 from Ms Van Truan in total.  Over that period Van Truan had come once or twice to collect the harvest.  You lived alone at the property, tended to the plants, cut them when they were dried enough and delivered them to Van Truan by car.

3On 8 January 2015 a search warrant executed by police revealed a hydroponic cultivation system at the premises which included all the usual features such as blacked out windows, watering system, plastic tubing, water pump, transformers, lighting, fertiliser and nutrients.  Police located a total of 39 plants weighing 91.6 kilos as well as cuttings weighing over half a kilogram. 

4You were interviewed by police and made full admissions, volunteering the names of your associates, the amount of money you had received for your role, the extent of your role in the cultivation and the length of time you had been living in the house.  You indicated your intention to plead guilty prior to the committal case hearing on 18 March 2015.  You have served 119 days pre-sentence detention not including today. 

5Your personal circumstances may be briefly summarised.  You are one of six children.  You lived in a regional city in Vietnam where your father was a policeman and your mother worked.  Your father was sent to a re-education camp and your family was forcibly relocated to a remote location in the new economic zone in 1975 and remained there for five years, living a very deprived life where you had no further education.  The family returned to the city and you resumed your education, finishing high school at the age of 23.  Your father never recovered from the deprivation he suffered while detained and never worked again.  Your mother started a retail business to support the children and you helped during that business until you were 29.

6You married at age 30 and have two daughters.  About six years ago you started a business selling construction materials and this went well until 2012 when you were affected by increased competition.  You went into debt, lost your home and moved in with your in-laws.  You were ashamed of this situation and came to Australia to find business opportunities.  Unfortunately, you overstayed your visa and got involved in the offending which brings you here today.

7You have no prior convictions and this is your first time in custody.  Your counsel conceded that you were involved in a sophisticated operation although the crop was not enormous and that a term of immediate imprisonment is inevitable.  She relied on your earlier plea of guilty, your frankness during your record of interview, your cooperation with authorities as indicating some remorse as well as the remorse you have expressed to her on two occasions.  She relied on the fact that your time in custody has been difficult as you do not speak any English, have no family here and have had no visitors.  You accept responsibility for your actions, regret them and want them to be a good father to your two daughters of whom you are very proud.  She submitted that specific deterrence is less relevant in your case as you have been very affected by your time in custody thus far, have never been in trouble before, are well-educated and have a good work history and solid family ties and are not likely to re-offend.  Also, as you stand to be deported once you are paroled you will never be able to come to Australia again.

8The prosecution conceded that your plea was at the earliest opportunity, that you have favourable prospects of rehabilitation and that imprisonment will be a hardship for you because of your isolation both socially and linguistically.  However, the prosecution submitted there were a number of aggravating features of your conduct.  You came here specifically to engage in illegal activity.  Your offending continued for four or five months and only ceased because you were caught.  You were paid $10,000 until the time of your address for what you had done thus far and no doubt expected more if the cultivation continued.  The prosecution submitted that a term of imprisonment was the only available sentencing option and indicated that a Community Corrections Order was not appropriate in circumstances where you would be deported upon the expiry of any non-parole period. 

9The prosecution counsel provided me with sentencing snapshots, No. 165, for offences of this kind and a table of comparable cases.  From the table counsel suggested that the most relevant comparable cases were those of Barton v The Queen [2013] VSCA 360 and Do v The Queen [2013] VSCA 189. In each of those cases the offender received a head sentence of about two years' imprisonment. In Barton the offender received a 9 month non-parole period. In Do there was immediate release after 427 days served because the offender was dying of terminal cancer and only had weeks to live. I note that in Barton the number and weight of plants involved was considerably greater than in your case. 

10I have taken into account the submissions made by the parties.  It is clear that you played a role in the cultivation that was a bit more than that of a mere crop-sitter.  Your offending took place over a number of months and you were paid for your participation in the hydroponic cultivation.  However, you made full and frank admissions when interviewed, named your associates, although you were unable to provide their details or locations and entered a plea of guilty at the earliest opportunity.  By your plea the State has avoided the expense and inconvenience of a trial and your sentence will be discounted accordingly.  In addition I accept that by your cooperation with police and the things you have said to your counsel you are genuinely remorseful for your conduct and ashamed of it.  I accept that you are completely isolated in prison in Victoria with no friends or family or ability to communicate in English and that undergoing a prison sentence is much harder for you than for others who have family and friends in Victoria.

11Given your background, solid work history, education level, frankness and cooperation with police along with the absence of prior convictions and the remorse you have expressed I consider that your prospects of rehabilitation are favourable and that you are unlikely to re-offend.  However, the principles of general deterrence, denunciation and just punishment loom very large in this case.  Cultivation of cannabis in a commercial quantity is a very serious criminal offence.  In sentencing you it is necessary to send a message to people who, like you, may be vulnerable and open to exploitation by criminals that they must understand if they do participate in cultivation activity they expose themselves to severe punishment including imprisonment. 

12Having regard to the nature of your offending and the principles I am obliged to take into account I consider that an additional period of imprisonment is the only option to the court to reflect adequate punishment. 

13Mr Tran, I will now sentence you, will you please stand?

14On the charge of cultivating not less than a commercial quantity of Cannabis L you are convicted and sentenced to a term of imprisonment of 18 months.  I order that you serve a period of 12 months before becoming eligible for parole.  I declare that a period of 119 days is to be reckoned as time served on the sentence that I have imposed upon you and is to be deducted from the sentence you will serve and I direct that this be entered into the court record.

15Pursuant to s.6AAA of the Sentencing Act I state that but for your plea of guilty I would have imposed upon you a sentence of three years' imprisonment with a non-parole period of two years.  I have also signed the disposal orders to which you have consented which provides that the items in the Schedule be placed in the custody of the Chief Commissioner of Police and it be held by him or her until 28 days from this date or the conclusion of any appeal proceedings where it may be tested or analysed then destroyed. 

16Are there any other matters?

17COUNSEL:  No, Your Honour.

18HER HONOUR:  Very well, thank you very much.  Take a seat, we are just going to produce the orders.  Take a seat Mr Tran, thank you. 

19Do you want to approach your client and just explain things to him?  I will leave the Bench and you can do that and then when you are ready he will be taken back down to the cells.

20MS WILLARD:  Thank you.

21HER HONOUR:  Thank you. 

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