Director of Public Prosecutions v Tran

[2023] VCC 1856

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01091

DIRECTOR OF PUBLIC PROSECUTIONS

v

OANH THI TRAN

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JUDGE:	HIS HONOUR JUDGE M. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2023
DATE OF SENTENCE:	13 October 2023
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2023] VCC 1856

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr Q. Nguyen

HIS HONOUR: 

1Oanh Thi Tran, you are to be sentenced for one charge of cultivating the narcotic plant, cannabis, in a commercial quantity.

2The maximum sentence is 25 years' imprisonment.

3Under the Sentencing Act 1991 this is a so-called category 2 offence, which requires a sentence of actual imprisonment unless prescribed, stringent exemptions are shown. It is not argued on your behalf that your case meets those.

4You pleaded guilty before me on 11 October 2023. 

5When interviewed by police on 2 November 2022 you admitted the offence, giving an account of your involvement in the cannabis crop which is accepted by the Crown.

6You receive the benefit of your plea of guilty and that cooperation in the proceeding, both from an early stage.  Your plea has accepted responsibility, expressed remorse, and has facilitated the interests of justice. That utilitarian benefit is enhanced in the circumstance of the impact, albeit now lesser impact, of the COVID‑19 pandemic upon the criminal justice system.  I accept that you are genuinely remorseful. 

7At your plea hearing which ran on 11 October, Mr Moore for the Crown tendered a written prosecution summary.

8Mr Nguyen for you tendered letters of character reference, including those by members of your family, your own letter to the court, immigration documents, two letters by your treating psychologist, and a paediatrician's report about your granddaughter who suffers autism.  Mr Nguyen also provided Sentence Advisory Council sentencing statistics.

9The circumstances of your offending are set out in the tendered Crown opening (Exhibit A).  My own summary may therefore be shorter.  It is also informed by matters put on your behalf, not challenged by the Crown.

10On 2 November 2022 police raided a premises at Tallygaroopna near Shepparton.  You were found there and also a typically sophisticated hydroponic cannabis crop in six growing rooms, containing progressively matured plants.

11In all, there were 325 plants weighing in total 170 kilograms.  Both measures are comfortably beyond the legislatively set commercial quantity thresholds.

12The Crown accepts that your connection to the crop was limited to that of a so-called crop sitter over the previous four days.  I also accept the circumstances that led to your involvement.

13You are a Vietnamese citizen who came to Australia in January 2020 on a tourist visa to visit your daughter and family in Sydney.  However, the onset of the COVID‑19 pandemic, soon after, forced you to remain.  You also became financially trapped, your daughter having limited means to assist you.

14On a visit to Melbourne, you were offered the situation at which you were arrested by police.  I accept that you were in desperate financial circumstances, largely brought about by the unusual development of the COVID-19 pandemic.

15You are a 49-year-old woman of hitherto good character with no criminal record.  You ran a shop in Vietnam.  You have two children, one in Australia and the other in Vietnam.  You appear to be estranged from your husband.  Your two-year-old granddaughter in Sydney has been diagnosed with autism.

16You will be deported upon parole release for this sentence.  You are not in the situation of having settled in Australia and developed a life here, which can be seen as a factor relevant to sentence.  However, deportation will mean a loss of connection with your daughter and granddaughter, perhaps of very long term.  I see this as a relevant hardship.

17Cultivation of cannabis in large quantities is seen as a significant community problem.  General deterrence is the predominant sentencing purpose.  A prison sentence is mandatory in the absence of unusual prescribed circumstances.  Such a sentence is inevitable here.

18There are factors in your case which justify a more merciful sentence than what might otherwise be imposed.  I have decided that this can be particularly directed at the minimum term you are to serve before eligibility for parole.  I find that it is in the interests of justice that I set a minimum term of lesser time than might ordinarily be set.

19After considering and weighing what I see to be the relevant matters, I sentence you on one charge of cultivation of cannabis in a commercial quantity, to 15 months' imprisonment.  I set a minimum term of 5 months before eligibility for parole.

20I declare pre-sentence detention of 4 days already served.

21Had you not pleaded guilty I would have imposed a sentence of 2 years and 9 months with a minimum term before parole of 16 months.

22Is there anything else?

23MR MOORE:  I think there were two orders, disposal or forfeiture.

24HIS HONOUR:  Yes, disposal orders I suppose.  I will have a look.  Yes, I have got it, there's a forfeiture order and a disposal order.

25MR MOORE:  Yes.

26HIS HONOUR:  The forfeiture order are the phones and the disposal order relates to other materials and items found, for example gardening gloves.  Do you have any objection to those orders being made?

27MR NGUYEN:  No objections, Your Honour.

28HIS HONOUR:  No, well I will make those orders and I will sign those in chambers.  I raised before, Mr Nguyen, what I see as the vulnerability of this person in prison.  She will be isolated and she is being treated by a psychologist for depression.  I will have passed on to those who have immediate custody of her, the materials relevant to that, that would be the psychologist's two letters.  And in any event, the protocol is that there is a medical consultation in the short term.

29All right, well that is what I will do.  Did you want to say anything to add to that, Mr Nguyen?

30MR NGUYEN:  Nothing further.  The court please.

31HIS HONOUR:  All right, good, good.  So miss, have you come to support?

32MR MOORE:  No, she's with the interpreter, she's with the interpreter.

33HIS HONOUR:  Sorry, you're with the interpreter.  I am sorry.  All right, now thank you Mr Interpreter.  Well now Ms Tran can be taken into custody, thank you.  Thank you, Mr Nguyen, we'll turn you off now.

34MS NGUYEN:  May I be excused.  The court please.

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