Director of Public Prosecutions v Tran, My Vu

[2013] VCC 536

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-02264

DIRECTOR OF PUBLIC PROSECUTIONS

v

MY VU TRAN

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JUDGE:	HIS HONOUR CHIEF JUDGE (JUDGE ROZENES)
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2013
DATE OF SENTENCE:	30 April 2013
CASE MAY BE CITED AS:	DPP v Tran, My Vu
MEDIUM NEUTRAL CITATION:	[2013] VCC 536

REASONS FOR SENTENCE
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Subject:  

Catchwords:   Cultivate cannabis – resist police – sophisticated set up – prosecutions concessions as to role – pre-sentence detention – youth – no prior convictions – rehabilitation – lost opportunity to settle in Australia

Legislation Cited:    
Cases Cited:            

Sentence:  Total Effective Sentence: 18 months imprisonment, 12 months partially suspended for 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. Kapitaniak	Office of Public Prosecutions
For the Accused	Mr R. Chaudhuri

HIS HONOUR:

1       My Vu Tran, you have pleaded guilty to one charge of cultivating cannabis and one charge of resisting arrest. 

2       

You have no prior convictions. You are almost 23 years of age. 

Ms Kapitaniak opened this matter for the prosecution in some detail, and that is to be found at Exhibit A, the Summary of Prosecution Opening.

3       In brief summary, you were detected at a house in Niddrie which had been the subject of police surveillance as one of a number of houses in which it was suspected cannabis was being cultivated.  Shortly after you were apprehended you attempted to escape, and that is the substance of Charge 2. 

4       The house was fitted out as a cannabis grow house.  The fit-out was sophisticated.  It was clearly a commercial operation and there was no attempt made by Mr Chaudhuri to convince me otherwise.  In fact having regard to the weight of cannabis seized you could have been charged with a more serious offence of commercial cultivation.  The electricity had been bypassed, and the premises had been rented in a false name.  You had the keys to the house on you when arrested as well as a water bill in your name, and approximately $1,100 in cash.

5       The prosecution conceded that there was nothing to suggest that you were involved in the set-up of the crop.  Equally, there was nothing to suggest that you were to benefit directly from the sale of cannabis.

6       In her report dated 29 April 2013, Exhibit 1, Forensic Psychologist, Pamela Matthews, reported that you had been staying with your relatives when a breakdown in their relationship, which ultimately ended in divorce, resulted in you having nowhere to live.  You had arrived in Australia in August 2010 on a student visa, but no provision had been made by your parents for you to have accommodation other than with your family. 

7       It was in these circumstances that you linked up with Mr Hoang, your co-offender, who you had met at school.  He provided you with some accommodation and some money, and although he was clearly involved in the cultivation of this crop, there was insufficient evidence to proceed against him.

8       You have now been in custody for some 351 days and are on a Criminal Justice Visa, the effect of which most likely is that you will be deported. 

9       The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances, and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

10      The cultivation of cannabis in substantial quantities is a serious offence.  The grave harm which cannabis grown by modern methods can inflict on its users has been noted by many judges.  The offence is prevalent, and generally the offence requires substantial punishment. 

11      I take into account that you have pleaded guilty, that you accept responsibility for your conduct, that you are remorseful, that you have no prior convictions, that there are reasonable prospects, according to Ms Matthews, that you will be fully rehabilitated.  You have lost an opportunity to settle in Australia.  Above all, you are a youthful offender.

12      On the two charges you will be convicted sentenced as follows:

13      On the charge of cultivation, to be imprisoned for 18 months;

14      On the charge of resisting arrest to be imprisoned for one month.

15      I direct that the sentence on Charge 2 be served concurrently with the sentence on 1.

16      I propose to suspend all but 12 months of the sentence.  Before I do that, I need to explain to you that you have been sentenced to a term of imprisonment, but you will not have to serve the whole of that sentence.  However, if you commit a criminal offence punishable by imprisonment either in Victoria or elsewhere, then you may be brought back to be further sentenced, and absent exceptional circumstances, will be ordered to serve the balance of the sentence.

17      I propose to suspend the sentence for a period of two years.  Do you understand what I have just told you?

18      PRISONER:  Yes, Your Honour.

19      HIS HONOUR:  Very well, I will suspend the balance of the sentence. 

20      

I declare that 351 days of this sentence have been served by way of

pre-sentence detention, and I direct a record of that fact be made in the records of the court.

21 Pursuant to s.6AAA of the Sentencing Act, I declare that but for the plea of guilty I would have sentenced you to 24 months with a non-parole period of 18 months.

22 I make orders under s.464ZF of the Crimes Act, and I do so because of the seriousness of the offending, and because you have consented to the making of the order.

23      I make the disposal orders, noting they are by consent. 

24      I need to inform you, Ms Tran, that notwithstanding that you have consented to the making of the 464ZF order, if you do not consent to the taking of the sample, reasonable force may be used to obtain it.  Do you understand that?  Do you understand?

25      PRISONER:  Yes, Your Honour.

26      HIS HONOUR:  Are there any other orders that are required?

27      MS KAPITANIAK:  No, Your Honour.

28      HIS HONOUR:  I thank counsel for their assistance.

29      COUNSEL:   If Your Honour pleases.

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