Director of Public Prosecutions v Tran and Le

[2018] VCC 1817

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02557
CR-17-02558

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAM TRUNG TRAN
THANG VAN LE

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2018
DATE OF SENTENCE:	7 November 2018
CASE MAY BE CITED AS:	DPP v Tran & Le
MEDIUM NEUTRAL CITATION:	[2018] VCC 1817

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW SENTENCE

Catchwords:  Trafficking drug of dependence – Cannabis L – Single charge – Commercial crop – “Crop-sitters”.  

Sentence:TRAN: 15 months imprisonment LE: 24 days imprisonment in combination with a two year Community Corrections Order.  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. A. Sharp	Office of Public Prosecutions
For Accused Tran	Mr. D. Coombes	Paul Vale Criminal Law
For Accused Le	Ms. S. Lacy	Nickolls & McAroe Lawyers

HIS HONOUR: 

1Nam Trung Tran and Thang Van Le, you have each pleaded guilty to one charge of trafficking cannabis. This offence carries a maximum term of imprisonment of 15 years. 

2The circumstances of your trafficking are set out in Exhibit A of the prosecution opening.  Exhibit A forms part of the reasons for this sentence. 

3In brief, you were each observed leaving the address of 3 Anderson Street Newport in a silver Honda Accord which belonged to you, Mr Tran.  Upon interception, the vehicle you were travelling in was found to contain four bags of freshly cut cannabis weighing 35 kilograms and one bag of eight juvenile cannabis plants weighing 584 grams. A set of keys for 3 Anderson Street, Newport was in the front centre console.  Prior to entering the vehicle you had been seen carrying large plastic bags from the property to the vehicle. 

4A search of the property at 3 Anderson Street, Newport, revealed that a cannabis crop was being grown or had been grown within, and at the time of the police search, not long after your intercept, around 50 cannabis plants were located.  Neither of you were interviewed by police which I understand to be due to the unavailability of interpreters. 

5Each of your roles and reasons for becoming involved in the trafficking is not entirely clear on the direct evidence. 

6You, Mr Tran, told psychologist Geoffrey Cummins that you had been finding it difficult to obtain regular work due to your visa difficulties.  You were also short of funds due to funds that had previously been forwarded by your late father no longer being provided.  In those circumstances you were vulnerable to an offer to work cleaning up at a house where the cannabis was being grown. 

7Using the words you used to Mr Cummins, you told Mr Cummins; "I didn't have much money and I knew my immigration status was unclear and so I do whatever work I could do and that's how I got charged with this, because I was hired to clean-up the house where the cannabis was being grown." 

8You, Mr Le, told psychologist Michael Bilic, whose report was tendered on your behalf that you had agreed to assist a friend, being Mr Tran, who contacted you to provide some assistance.  You told Mr Bilic that you did not pause to think of the potential consequences of assisting Mr Le and did not appreciate the seriousness of your actions.  It was put on your behalf on the plea, that you were unaware of the criminal nature of the assistance you were to give Mr Le until you attended the premises. 

9These matters were expanded upon in written and oral submissions on behalf of both of you.  On behalf of you, Mr Le, Ms Lacy submitted that your role was limited to being contacted by Mr Tran as a friend to help with something.  Mr Tran collected you from your home and it was not until you entered the house you realised it was a criminal enterprise – and that your assistance was not on the basis of the promise of any financial reward.

10On the Plea, it was common ground between each of you, that is between you, Mr Tran, and you, Mr Le, that your respective roles were as stated by your respective counsel. 

11The prosecution was not in a position to dispute each of these roles, nor did they directly challenge the suggested roles.  Failure to challenge of course, does not amount to satisfying the court on the balance of probabilities of each and every aspect that was submitted on your behalves.  In essence, I accept your roles as described, however I am unable to accept the detail in every respect. 

12The offending in this case relates to a commercial crop.  You, Mr Le, were engaged to remove a substantial quantity of harvested cannabis and transport it to another location.  Putting it one way, the cannabis was in harvested form together with some whole plants.  The weight of the cannabis located in your possession in no way reflects the volume of saleable cannabis that would be prepared for sale from it.  Nevertheless, it clearly had a high value. 

13You were both well aware of the illegal nature of your activity.  As stated by me on the Plea, in particular in relation to Mr Le, it is implausible to expect that those responsible for engaging Mr Tran to traffic would encourage him to enlist a friend and keep that friend in the dark as to the task until he set foot in the premises. 

14Having made that observation, nevertheless I sentence you both on the basis that you were playing an important role in the movement of a substantial part of the harvested crop from the address at Newport to another location. That movement must have had a commercial objective for those who owned the material. 

15I accept that your role, Mr Le, is subordinate in these circumstances to Mr Tran and significantly so.  The nature of this type of broad criminal activity, that is cannabis cultivation in properties such as this one in Newport, is that it relies on persons such as yourselves becoming involved, thus keeping those individuals whose criminality and moral culpability is higher, at arm's length.

16Due to this insidious aspect of the overall criminality, general deterrence is an important factor to deter others of previous good character who might be tempted to become involved in this type of peripheral activity relating to trafficking.

17Neither of you have prior convictions or appearances.  I accept that, in respect of both of you, your pleas can be regarded as early ones, given the attempts at resolution and the ultimate resolution.  I also regard the pleas of guilty as indicative of remorse on the part of both of you.  Such remorse is also found elsewhere in the materials relied on each of you during the plea.

18Both of you have reasonable prospects of rehabilitation.  In your case, Mr Le, I found your prospects to be more solid than those relating to Mr Tran. 

Personal Circumstances

19I will turn now briefly to your personal circumstances.  You, Mr Le, are 44 years of age.  You were born and raised in rural North Vietnam until the age of 14, being the youngest of four children.  In 1989, your family travelled to Hong Kong in search of a better life, having lived a meagre life subsequent to your father losing employment in North Vietnam. 

20You were held in a refugee camp in Hong Kong.  You were there for approximately five years before being deported to Vietnam.  The conditions in the refugee camp were prison-like and ones of considerable hardship and difficulty for you.  Many of these matters are expanded upon in the report of Mr Bilic.

21You married in 2003 and your son, Anh Duc Le was born in 2004.  You have a daughter, Anh Le born in 2009.  Anh Duc Le suffers cerebral palsy.  Submissions were made on your behalf setting out the extent of his cerebral palsy together with photographs which were tendered, and the matter is also expanded upon in the report of Mr Bilic.  I am told that your son can neither communicate verbally or get around, feed or care for himself independently and requires full-time care.

22Your first marriage ended in 2009 after the birth of your daughter.  Your son, Anh Duc now lives with your paternal grandmother and I am told that you pay for a full-time Carer for him.  Your daughter lives with her maternal grandmother and you pay for her education expenses. 

23You came to Australia in 2013 with your present wife who is in Court, Wen Bui, who wrote a letter on your behalf, tendered on the plea which I have read and I accept the contents. 

24Ms Bui has one daughter aged 16, from a former marriage and together, you and her have a son aged five.  Both children live with both of you.  I have gone into some detail in relation to the family dynamics for the reason that I have been told, and I accept, that you have been a primary contributor to the welfare of your family in Vietnam and also here in Melbourne.  In particular, your son, Anh Duc is reliant to a significant degree upon you being in a position to provide ongoing financial support.

25Whilst Ms Lacy conceded, quite properly in my view, on the Plea that this consideration does not quite get to a level where I could regard hardship to your children and wider family as a matter of mitigation, as it does not reach the exceptional standard, it is still very significant and I consider that it is something that would have weighed very heavily upon you during the 24 days you spent in custody in relation to this matter, and it would weigh very heavily on you if I were to incarcerate you for a further period. 

26To put it another way, the hardship you have experienced in custody, and would continue to experience from any further period of incarceration, is harder for you than for another who does not have the weight on the mind and the emotions of the welfare of your children, particularly Anh Duc, in the absence of your provision of financial assistance. 

27You have always worked. In Vietnam you worked in very low paid employment due to the level of wages there. You worked as a street vendor, kitchen hand, a conductor and a driver.  Virtually as soon as you arrived in Australia you became employed in the chicken factory, Golden Poultry, where you remain employed and I am told you are a foreman in that business. 

28Turning to you Mr Tran, you were born in Vietnam to parents who were both in the Vietnamese military.  I am told your father passed away from cancer in 2017.  You were educated to a Year 12 equivalent in Vietnam and since the age of 18 until the time you came to Australia, you worked as a handyman.  You came to Australia on a student visa in 2009 with the intention of studying hospitality at Holmes College.  You studied there for two years and then withdrew from your studies, briefly working in the packaging industry and subsequent to that, working as a maintenance person/handyman. 

29You are now 34 years of age.  You came to this country in your mid-20s.  The student visa you originally came to Australia on, expired.  You had been in the process of applying for a protection visa.  It is not entirely clear, but it seems your visa status is currently one of not having a valid visa to work or stay in this country. 

30The report of Mr Cummins tendered on your behalf, amongst other matters, set out that in effect you are remorseful and would never again place yourself in a situation where you commit a criminal offence, and that you feel embarrassed and remorseful regarding your behaviour. 

31Mr Cummins also spoke of a problem with alcohol use that you have exhibited.  That is a matter that I have had to consider in relation to your overall prospects of rehabilitation. However based on the matters in Mr Cummins's report, and together with your age and absence of criminal record, I do consider that you have reasonable prospects of rehabilitation. 

32Turning to Mr Le and the report of Mr Bilic.  The matters raised in the report of Mr Bilic and relied upon by Ms Lacy in particular, matters attending an assessment of risk at p.6 of the report, indicating that you are of low risk of reoffending, are matters which I accept.  I also accept the aspects of Mr Bilic's report which support my finding that you are greatly concerned about the ongoing welfare of your family if you were in a position where you were unable to continue to provide for them financially. 

33Mr Le, you spent 24 days in custody and I accept that this experience must have been a very difficult one for you and a very stressful one; as I have noted, more so than for another who is not in your circumstances. 

34I also take into account the matters raised in Mr Cummins's report in respect to Mr Tran that he presented as a simple and unsophisticated individual.  Mr Tran, your presentation and those matters raised by Mr Cummins are in support of the matters I have accepted as to your role.  Similarly, Mr Le, the matters raised in the report of Mr Bilic as to your absence of consequential thinking and so forth, are matters which I have taken into account in accepting most of what has been said in relation to your role.

35In your case, Mr Tran, you have no capacity to be placed on a Community Corrections Order.  As I have stated, your visa status as I understand it, is that you overstayed the student visa.  I have been told that a protection visa has been refused and the circumstances of you having no valid visa, quite properly your counsel accepted that a combination sentence was not open for you and he urged upon me a straight sentence. 

36On your behalf Mr Le, Ms Lacy submitted that a Community Corrections Order was an appropriate disposition in your case.  On behalf of the prosecution, Mr Sharp advised that the prosecution would not submit that a Community Corrections Order was outside the range in your case Mr Le.  I have had you assessed and you are suitable for a community corrections order.  In your case, I have considered a combination sentence of imprisonment and Community Corrections Order.  Given the seriousness of the offending, the time you have served already in combination with a Community Corrections Order could be viewed as a lenient sentence. 

37I have arrived at the view however, that it is an appropriate sentence given the prosecution submission on sentence, given your role in the offending, your solid work history, and importantly, the contribution you make to your family here and also in Vietnam.  I have also taken into account your early plea, your remorse, the fact you have no criminal record and my finding that the 24 days you have spent in custody would have been a salutary lesson to you.

38Your circumstances, Mr Le, are different from Mr Tran in several important respects, not the least of which is role. 

39Your prospects of rehabilitation and demonstrated capacity for productive work and family life are greater than Mr Tran's at this point in time.  Your visa status of course also allows for the availability of a lengthy community corrections order as a sentencing option rather than further imprisonment.

40I sentence you Mr Le as follows, stand please;

41On the charge of trafficking cannabis you are sentenced to 24 days imprisonment, together with a two year community corrections order with conviction. 

42I declare that you have served 24 days of pre-sentence detention.  The two year community corrections order will have conditions of 250 hours of unpaid community work and also supervision together with other core conditions.

43Pursuant to s.6AAA, I declare that but for your plea of guilty, I would have sentenced you to a term of two years' imprisonment with a non-parole period of 15 months. 

44Do you consent to the Community Corrections Order?

45INTERPRETER:  Yes, Your Honour.

46HIS HONOUR:  All right, we will come back to that in a moment.  If you sit down.  Mr Tran. 

47Mr Tran, on the charge of trafficking cannabis, I sentence you to be imprisoned for 15 months.  I declare that you have served 441 days not including today as pre-sentence detention. 

48Pursuant to s.6AAA, I declare that but for your plea of guilty I would have sentenced you to a period of imprisonment of two and a half years with a non-parole period of 18 months. 

49You can sit down now, Mr Tran. 

50Now Mr Le has to sign the CCO.  Mr Le, you are going to be provided with the order and asked to sign if you understand it and agree to it.  Ms Lacy, your instructor can go up, or you can go up if you want. 

51Thank you.  Mr Le, so the conditions of the order have no doubt been explained to you.  There is a number of conditions there.  Importantly, you must report to the community corrections within two clear working days from today, and as I said, you must perform 250 hours of unpaid community work over a two year period as directed by the manager. 

52If you fail to comply with this order, the Secretary to the Department of Justice may give you a direction to perform additional hours of unpaid community work.  You must be under the supervision of a community corrections order for a period of two years.  Now do you agree to that order?

53INTERPRETER:  Yes, Your Honour.

54HIS HONOUR:  All right, I will sign that order.  If you breach the order Mr Le, by not doing the hours or not attending for supervision, or by committing further offences within the period of it, you will be back before me and I will have to sentence you again. 

55I also make the disposal order that is sought in relation to the cannabis and in respect of each of Mr Tran and Mr Le, I have made an order pursuant to 464ZF for the taking of a scraping from the mouth.  I say to each of you - you can stand up too Mr Le - I have made an order that you are each to undergo a forensic procedure for the taking of a scraping from the mouth until a sample of sufficient standard is obtained for placement on the data base. 

56If at the time you are requested to do so, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted, and that can be explained to you in more detail by your legal representatives if need be. 

57All right, any other matters?

58MR SHARP:  No, Your Honour.

59HIS HONOUR:  Mr Tran can be taken out first of all.  Mr Le can come out of the dock now. Ten o'clock tomorrow. 

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