Director of Public Prosecutions v Tran
[2013] VCC 772
•12 April 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00094
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VIET QUOC TRAN |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 March 2013 | |
DATE OF SENTENCE: | 12 April 2013 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 772 First revision | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Cultivate commercial quantity of cannabis – Theft of electricity - Mild depression
Cases Cited: R v Verdins (2007) 16 VR 269
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | Mr C. Hyland, Solicitor for Office Public Prosecutions |
| For the Accused | Ms N. Karapanagiotidis (Plea) Ms J. Kennedy (Sentence) | Leanne Warren & Associates |
HER HONOUR:
1 Viet Quoc Tran, you have pleaded guilty to one charge of cultivating cannabis in a commercial quantity which has a maximum penalty of 25 years' imprisonment. You have also pleaded guilty to theft in relation to an electrical bypass. The charge of theft has a ten year maximum penalty.
2 You were 36 years old when you committed the offences and have no prior convictions. You are an American citizen who usually lives in California. When arrested, you were in Australia on a tourist visa.
3 You arrived here in September 2011 and met a woman called Duong Nguyen at the Casino and married her fairly shortly after meeting her.
4 When you offended, you had recently moved out of your residence, which was indicated on your driving licence, and had no fixed place of abode. Your wife had returned to Vietnam at the time of your record of interview but I was told by your counsel that she regularly travels to and from Vietnam.
5 The scene of the offending was in Bacchus Marsh Road, Anakie. The property had been leased in your name since 21 April 2012.
6 On 6 September 2012, police from the Drug Task Force executed a search warrant at this property. At the time that the warranted was executed, you and another two men, Nathan Tron and Mike Gia Hoang were at the property.
7 The premises at Anakie were in a semi-rural setting with a house at the front which had a shed attached to it and three large independent sheds at the back.
8
Police found the following items in the house: $1500 on the kitchen bench;
22 vacuum seal storage bags and a total of 48 oven bags in a linen cupboard; six oven bags in a hall way; an electrical bypass which was found under the kitchen bench (which gives rise to Charge 2); in a lounge room cupboard, five clear bags containing cannabis, weighing a total of 1.5 kilograms. Two boxes of cannabis weighing 5.29 kilograms were also found in the lounge room; various pieces of equipment used in the hydroponic set-up were also found in the house.
9 All sheds had been modified to grow cannabis hydroponically and contained various pieces of equipment for hydroponic cultivation.
10 In the Crown opening, the sheds referred to by various numbers: 'Shed 1A’, which was part of the shed attached to the house, contained 24 immature plants; 'Shed 1B', another part of the shed attached to the house, contained 24 immature cannabis plants and a container of green vegetable material.
11
Two rooms of Shed 2 contained 160 cannabis plants. Shed 3 housed
112 cannabis plants. Shed 4 contained 132 cannabis plants. Shed 5 was used to store hydroponic equipment and products.
12 A truck and van were found near the sheds, as was a generator. The generator was used to supply power to the sheds at the back of the property. Although the Crown initially indicated that the generator had been purchased by you, they seem to have resiled from this position and so I do not sentence you on this basis. However, you have been captured on CCTV footage paying cash for diesel fuel for the generator at a 7-Eleven store on 5 September 2012.
13 You and the other two men were arrested at the premises and taken to the St Kilda Road Police Complex. Upon arrival, you were searched and $2600 was found in your jacket pocket. Police seized this sum.
14 You were interviewed by the police and told them that you owed someone a lot of money and you were repaying the debt by taking care of 'his stuff'. You said: that you had never seen the plants before and you had been 'over there', for maybe four to five days (a reference apparently to the property); that you put the chemicals in and had no idea what the plants were; that you were only concerned with paying off the debt and did not help to plant the cannabis plants.
15 You said that you had touched the equipment but not the plants and that there were three sheds that you had been inside three times, going there to water them but did not know anything about the generator. You did not want to comment on buying diesel for the generator and denied playing an integral role in planting the crops. You said you did not know who purchased the generator.
16 A scientist from Forensic Services Department examined the plants and plant material seized by the police and found that there were 452 cannabis plants, which gives rise to Charge 1, cultivate commercial quantity of cannabis. In this respect, I was told that the cannabis found at the actual house forms no part of the cultivation charge but was led by way of background.
17 The other men who were found at the house were illegal immigrants and were referred to the Immigration Department to be deported. Both these men were also residents of the United States and in Australia on tourist visas.
18 I must say that this is a most curious circumstance and I do have suspicions as to the reason that you and these other American residents actually came to Australia. However, I will put my suspicions aside in sentencing you and take into account that your co-offenders were not charged in relation to these matters but that you have been and fall to be sentenced.
19 You were remanded on the day of your arrest and as at the day of the plea hearing had served 203 days pre-sentence detention.
20
Your offending is serious, Mr Tran. You were prepared to assist in a commercial cultivation which was of a most elaborate and extensive nature.
I was told that the crop was worth in excess of $1 million. Although you engaged in such conduct for a matter of days, your role exceeded that of a mere crop sitter in my view. You were seen attending the service station in order to pay for diesel fuel for the generator. The learned prosecutor enlarged on this aspect in the plea discussions. However, I sentence you on the basis of the plea opening where you were captured buying the fuel on one occasion. Even though you were more hands-on than a mere crop sitter, I sentence you on the basis that you still had a fairly menial role in relation to this elaborate set-up, albeit an important role.
21 I must impose a sentence which reflects just punishment for what you have done and your conduct must be denounced in all the circumstances.
22 In your favour you pleaded guilty at an early stage, which has saved the witnesses the time and trouble of giving evidence and has saved the community the time and expense of contested proceedings. In those circumstances you are entitled to a substantial discount in the sentence that you would otherwise receive.
23 I take into account your background. You were born in Vietnam but you and your family were forced to flee the country, as your father had assisted the United States Army.
24 You spent four years in a refugee camp in Malaysia from when you were about nine years old. You spent this time in a very harsh environment with minimal facilities. Ultimately, you and your family were placed in the United States of America, eventually becoming citizens. Initially, you encountered difficulties because of your origin and language barriers.
25 Your parents worked very hard and provided for you and your siblings. All of your siblings are employed and your sister has excelled in the world of academia. They are all law abiding citizens and have no idea of your involvement in this illegal activity.
26 You completed your secondary education in America then underwent a course at the Californian Maritime Academy which you did not complete.
27 You have three children with your first wife. After she became pregnant with your first child, your priority was to go out and work immediately, which is what you did. Your children are aged ten, six and five. The marriage ended in 2008 or 2009.
28 You have a solid work history, gaining sufficient experience in employment along the way to set up your own concreting company which ran for about six years before going into liquidation. It was in this setting that your marriage encountered difficulties and eventually ended.
29 You became involved in playing cards at a casino in California which appears to be the beginning of your interest in gambling.
30 After your marriage ended, your wife took the children to live with her parents. You lived close to where the children were going to school and were in close contact with them by agreement with your former wife.
31 Notwithstanding your apparent money problems in America, you decided to come here to Australia as a tourist, I was told, meeting your current wife, Duong Nguyen, at the Casino in late 2011. You married in December 2011 and hold a prospective spousal visa. I was told that after two years you can make application for a permanent residency visa here.
32 Your current wife has visited you whilst in custody and your counsel properly accepted that if you were to be deported following sentence, your current wife could accompany you to live in America. In any event, as was properly conceded, your future situation in terms of residing in Australia on a more permanent basis is speculative and I do not take this aspect into account.
33 However, I do take into account that you have not seen your children for some time and are most anxious about this. Absence from your children and the lack of contact with them will make time in custody harder for you than for someone without these set backs.
34 In explanation for your offending, I was told that you were preyed upon by loan sharks at the Casino who recruited you to work at the crop house in order to pay off a debt. You fell into debt after gambling heavily at the Casino, incurring $22,000 worth of debt from these loan sharks. It would appear that you do have a gambling problem which had its genesis in California when your business dissolved.
35 Whilst your indebtedness is no excuse for your behaviour, I sentence you on the basis that you did not commit the offences out of greed, but in a bid to pay off gambling debts.
36
Ms Karapanagiotidis, on your behalf, submitted that on the basis of
Mr Cummins’ report that you suffered from a chronic adjustment disorder at the time of your offending, I ought allow for reduced moral culpability and moderation of the principles of specific and general deterrence because of
Mr Cummins' findings.
37 In his report dated 25 March 2013, Mr Cummins, psychologist, said that when he interviewed you, you were mildly depressed and moderately anxious. You did not present as having any personality disorder and were of normal and average intelligence. He said that you emphasised that you were feeling depressed about the loss of your liberty, which is not too surprising. In the second last substantive paragraphs of Mr Cummins’ report, he says this:
'In my opinion at the time of offending he was most probably suffering from a chronic adjustment disorder with mixed anxiety and depressed mood of mild/moderate severity and this adjustment disorder was triggered as a result of the ending of his marriage and the business failure and his associated bankruptcy.'
38 Mr Cummins does not go on to say how such a disorder, previously undocumented, could have impacted on you in a relevant way at the time of the offending so as to reduce your moral culpability. Whilst I take into account that you probably had this disorder at the time of the offending, I am not satisfied on the balance of probabilities that on the basis of the material before me, your moral culpability is reduced. I will allow for marginal moderation in respect of general deterrence in accordance with the principles of R v Verdins. I take into account this probable condition in a general sense as I do your present state of depression and anxiety.
39 I must still place fairly significant weight on general deterrence in sentencing you in order to send a clear message to others who are tempted to behave as you have that such conduct will not be tolerated. In light of your lack of prior convictions and your limited role and circumstances of the offending as well as your apparent remorse and the impact of gaol upon you, I place minimal weight on specific deterrence. I find that your prospects of rehabilitation are quite good. In finding this, I also take into account the fact that you are working in a most responsible position at the prison.
40 I take into account that imprisonment will be more isolating for you than for others who have family and friends to visit them or make contact with them, although I also take into account that your wife visits you from time to time.
41 The Crown submitted that an appropriate range of sentence in your case was between 2 and 2½ years with a non-parole period of between 15 and 18 months. Your counsel submitted that in view of the mitigating features in your case, I ought consider a longer than usual parole period. In the circumstances, I will impose a non-parole period which is slightly less than might otherwise be the case.
42 I have borne in mind the Sentencing Snapshot in relation to cultivation of commercial quantity cases and the sentencing submissions made by your counsel, and that of the learned prosecutor, who indicated that the sentencing range was on the basis of sentences imposed by the learned Chief Judge of this court in a number of matters arising from 'Operation Entity'. Your counsel did not submit that the range put forward by the Crown was inappropriate, but I bear in mind her submissions regarding the non-parole period.
43 It is to be hoped that upon your release from gaol, Mr Tran, you will never resort to crime again no matter your financial situation. In this respect, you would be well advised to steer clear of gambling in future.
44 Would you please stand up, Mr Tran.
45 I make a forfeiture order and disposal order in the terms of the documents provided to me, with neither order being opposed by you. I make a forensic sample order, which is not opposed by you, and I require that the sampling be obtained by way of a swab of saliva from the mouth. I make this order because of the seriousness of the offending, because the order is not opposed and I regard it as being in the public interest to make the order. I should warn you that if you do not cooperate with the authorised officer in the taking of the forensic sample, reasonable force may be used to ensure your compliance.
46 In relation to Charge 1; you are convicted and sentenced to 2 years 2 months' imprisonment.
47 In relation to Charge 2; you are convicted and sentenced to 4 months' imprisonment.
48 I direct that one month of the sentence imposed on Charge 2 will be served cumulatively with the sentence on Charge 1, producing a total effective sentence of 2 years 3 months' imprisonment. You are to serve 16 months' imprisonment before becoming eligible for parole.
49
If not for your pleas of guilty, I would have sentenced you to 2 years
10 months' imprisonment with a non-parole period of 22 months
50 I declare that you have already served 218 days in custody.
51 Please take a seat.
52 Is there anything arising from my sentence counsel?
53 MS KENNEDY: Nothing arising, Your Honour.
54 MS DUCKETT: No, Your Honour.
55 HER HONOUR: All right, thank you. You may remove the prisoner.
56 (PRISONER REMOVED).
57 HER HONOUR: We will now adjourn.
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