Director of Public Prosecutions v Tran, Van and Do, Van Thanh Thi
[2012] VCC 1956
•13 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01455
CR-12-01466
| DIRECTOR OF PUBLIC PROSEUCTIONS |
| v |
| VAN TRAN and VAN THANH THI DO |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September and 28 November 2012 | |
DATE OF SENTENCE: | 13 December 2012 | |
CASE MAY BE CITED AS: | DPP v Tran, Van & Do, Van Thanh Thi | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1956 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Plea – Sentence – Cultivating a narcotic plant in a commercial quantity – Cannabis L – Dealing with property suspected of being the proceeds of crime – Crop sitters.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms D. Hogan | Office of Public Prosecutions |
| For the Accused (Tran) | Ms W. Duncan | Cameron Marshall |
| For the Accused (Do) | Ms A. Burnnard | Robert Stary Lawyers |
HER HONOUR:
1 Good morning, counsel. Could you please enter the witness box, Madam Interpreter.
2 INTERPRETER sworn to interpret:
3 Madam Interpreter, you may take a seat with the parties and my tipstaff will give you a draft of the sentence to follow.
Introduction
4 You have each pleaded guilty to one charge of, from 14 April 2012 to 14 May 2012, cultivating a narcotic plant, Cannabis L, in a quantity not less than the commercial quantity applicable to that plant, the maximum penalty for which is 25 years’ imprisonment.
5 Ms Do, you have also pleaded guilty to and consented to the transfer of the related summary charge of, on 14 May 2012, dealing with property suspected of being the proceeds of crime. The maximum penalty for this offence is two years’ imprisonment.
Antecedents
6 You are a married couple. At ages 51 and 49, respectively, you have no prior criminal record.
7 You were both born, raised and lived in Vietnam before, either in 2007 or 2008, entering Australia on tourist visas, your stated purpose being to earn money to pay for your passage and to send money to family in Vietnam. After your visas expired, you remained in Australia and continued working illegally.
The circumstances of the offending
8 The prosecution’s opening (as amended) was read into transcript and tendered as an agreed statement of fact. A copy of that part of the summary relating to the circumstances of the offending is attachment “A” to my reasons for sentence. I do not propose to repeat the content of the summary in any particular detail.
9 As to charge 1: on 14 May 2012, police executed a search warrant pursuant to the Drugs Poisons and Controlled Substances Act 1981 at residential premises in Kings Park. Among other things, in the main bedroom, they found items belonging to each of you.
10 At the rear of the property, police found a bungalow/garage which had been converted into three rooms and contained a sophisticated hydroponic system for the cultivation of cannabis. For instance, in the first room, they located a hydroponic setup with 53 plants in pots, varying in size from 20 cm to 40 cm tall.
11 The second room contained another hydroponic setup with 25 mature plants each approximately 1 m tall by 80 cm wide. The third room was similarly set up with a further 25 individually potted plants measuring approximately 1 m x 80 cm wide.
12 Examination of the plants by a forensic botanist established a total weight of 73.06 kg. Notably, for the purpose of s72A of the Drugs, Poisons and Controlled Substances Act, the minimum commercial quantity for Cannabis L is 25 kg or 100 plants.
13 You were both arrested on 14 May 2012, after you returned to the premises and attempted to drive off when you saw the police.
14 The dealing in property suspected to be proceeds of crime offence relates to a sum of $560 in cash in $20 notes found when you, Ms Do, were searched by police.
15 You both participated in recorded interviews with the assistance of interpreters. You each made relevant admissions indicating that you had grown and tended the cannabis plants found on the premises over the period alleged.
16 Ms Do, having read your record of interview, I was not persuaded by counsel’s submission that language difficulties had affected the answers given or that you had not been aware of the seriousness of the offences.
17 Your decision to exploit the Australian tourist visa system, which initially permitted lawful entry into this country, no doubt, left you both vulnerable to exploitation by others. By your account, you planted and tended the cannabis in accordance with instructions provided by others, after being offered rent free accommodation and payment of $400 per week as a means of repaying gambling debts, principally those incurred by you, Mr Tran.
18 The prosecution has accepted that you were crop-sitters, rather than principles in this sophisticated operation for the cultivation of a crop that when found, was in various stages of growth and nearly three times the minimum commercial quantity.
19 You have both remained in custody since your arrest.
20 I was told that your pleas of guilty were resolved at the committal mention stage on 10 August 2012. The prosecution has acknowledged that your pleas were entered at the earliest available opportunity. For the purpose of this sentence, your early pleas of guilty entitle you to substantial sentencing discounts. As such, the pleas have facilitated the course of justice, spared witnesses the inconvenience of giving evidence and spared the community the cost of contested trials.
21 Your early pleas of guilty, the admissions made when interviewed and the more recent expressions of shame and remorse for your actions reflect a level of appropriate remorse.
Personal Circumstances
22 I will deal with your personal circumstances separately. I will start with you, Ms Do. Your circumstances were summarised through your counsel's written and oral submissions and the report of psychologist, Ms Lechner, by whom you were assessed on 30 October 2012.
23 You were 48 years old when this offending occurred. As I have already said, you and your co-offender concede that, having entered Australia on tourist visas, you remained unlawfully to continue working to gain money to support your comparatively less prosperous family in Vietnam.
24 I was told that you grew up in a family of eight children and that your formative years were characterised by extreme poverty. You were educated to the age of 13. After leaving school, you worked in a local cooperative and married at a young age. You and your co-offender have two sons in their 20s and one granddaughter, all of whom have remained in Vietnam.
25 I was told that, before you were recruited to work as a crop-sitter to repay gambling debts, you had worked in Australia with your co-offender on farms and in food and grocery stores.
26 Whilst Ms Lechner noted a mild to moderate level of depression reactive to your current situation, she found no evidence of any psychological or psychiatric disorder.
27 Among other things, she found you to be capable of reflecting on the impact that your behaviour has had on both yourself and on others and to be remorseful and ashamed of your offending.
28 In all, Ms Lechner saw you as somewhat naive and, no doubt, an easy target for recruitment as a crop-sitter when placed under financial pressure.
29 Ms Lechner assessed your prospects of rehabilitation as being positive and the risk of reoffending in a similar manner as minimal.
30 Turning next to you, Mr Tran, I note that your personal circumstances were summarised both in your counsel’s oral submissions and through the report of psychologist, Mr Bilyk, by whom you were assessed on 15 November 2012.
31 You also report an impoverished upbringing in a semi-rural environment in North Vietnam as part of a family of 11 siblings. By your account, other than being taught basic literacy in Vietnamese, including basic numeracy by older siblings, you have had no formal education.
32 Prior to travelling to Australia, your reported work history was limited to labouring roles in construction.
33 I note that whilst Mr Bilyk obtained a history of daily heavy use of alcohol since late adolescence. However, other than admitting intoxication in conjunction with gambling, you nevertheless denied that alcohol had impacted on your ability to work or maintain your role as a husband and father.
34 Testing by Mr Bilyk has revealed symptoms of what he concluded was reactive anxiety to your circumstances, within the severe range.
35 Factors such as your previous criminal associations, lack of formal education, employment and associated problems, high levels of alcohol use and deficits in mood, appear to have informed Mr Bilyk's assessment that the risk of reoffending was low to moderate.
36 The prosecution has nonetheless conceded that your prospects of rehabilitation, as well as those of your co-offender, are good.
37 In formulating these sentences, I have also made some allowance for the likely increased burden of imprisonment on each of you as Vietnamese nationals isolated from family.
Sentencing Principles
38 Superior Courts have repeatedly drawn attention to the importance of general deterrence as a sentencing consideration in the offence of cultivating a commercial quantity of cannabis, which carries a maximum penalty of 25 years’ imprisonment.
39 Your role as crop-sitters between the dates alleged place your offending at the lower end of the scale of this type of offending, although it must also be borne in mind that you performed a vital task in the cultivation of a substantial and likely valuable illicit drug.
40 The prosecution submitted that the appropriate sentencing range fell between 2 and 3 years’ imprisonment with a minimum of between 1 and 2 years imprisonment. Mr Tran’s counsel drew attention to two decisions of the Court of Appeal involving cultivation of a commercial quantity of cannabis.
41 In the first of these, Chhim v The Queen[1], over a period of some 10 to 12 weeks, the co-offenders cultivated a total of 151 plants weighing between 48 and 51 kg. On appeal, the Court found that they were partners involved in a joint venture to cultivate commercial quantities of cannabis, from the sale of which they intended to profit. On the cultivation charge, they were each sentenced to 2 years and 6 months’ imprisonment.
[1] [2010] VSCA 347
42 The second case, Hanks v The Queen[2], involved the cultivation of more than twice the commercial quantity, namely 66 kg of cannabis. Essentially, on appeal, the Court rejected the submission that the sentencing Judge had accepted that the offender’s purpose in growing the crop was solely for his own personal use. On this charge, the offender was sentenced to 2 years’ imprisonment.
[2] [2011] VSCA 7
43 Other cultivation cases, such as Nguyenv The Queen[3] and Doanv The Queen[4], are instructive. For instance, the decision in Nguyen very helpfully contains a table of recent appeal decisions noting, among other things, the quantity of the drug involved. Doan’s case, on the other hand, involved co-offenders (albeit young offenders) who tended crops of 117 and 145 plants respectively to repay debts. On the cultivation charge, they were each sentenced to 2 years’ imprisonment.
[3] [2010] VSCA 127
[4] [2010] VSCA 250
44 Mr Tran’s counsel also drew attention to the Sentencing Snapshot for cultivating a commercial quantity of narcotic plants, published in August 2012 for the period 2006 to 2011. During this period, 320 people were sentenced for cultivating a commercial quantity of narcotic plants.
45 Imprisonment terms ranged from 6 years and 6 months (5 years after adjusting for appeals). The median length of imprisonment was 2 years, 3 months and 15 days. Where eligible to have a non-parole period fixed, the Snapshot indicates that the median length of the non-parole period fixed was 1 year and 6 months (after adjusting for appeals, the median non-parole period was lowered to 1 year and 4 months). The most common non-parole period imposed was 1 year to less than 2 years.
46 In my view, this analysis for the 5 year period over which the Snapshot was taken provides some general support for the range submitted by the prosecution, although these statistics and the other recent decisions must be approached with caution because each case is unique. Accordingly, your sentences have been formulated having regard to the limited evidence concerning your circumstances and to the circumstances of the offending as known.
47 In your case, Ms Do, notwithstanding counsel’s submission to the contrary, I have also made allowance for some limited cumulation to reflect the different but related offence in dealing with the proceeds of crime. Otherwise, I see no justification for any difference between your sentences.
48 On your behalf, it was conceded that the only sentence available to the Court was immediate imprisonment, although I was urged to impose a partially suspended sentence with the minimum reflecting the time you have each served since your arrest on 14 May 2012.
49 Given the circumstances in which you have remained living in Australia, you both face the prospect of deportation on your release from custody, the timing of which is a matter for the authorities. In any event, I was told that you welcome the opportunity to return to your family in Vietnam. However, apart from the mitigatory factors to which I have already referred, I could see no proper basis for further reducing the minimum term of imprisonment or for imposing a sentence other than one involving both immediate custody and a non-parole period.
Sentence
50 I will deal with you first, Mr Tran, please stand. On one charge of cultivating cannabis L in a quantity that was not less than the commercial quantity applicable to this drug, you are convicted and sentenced to two years imprisonment. The total effective sentence is two years imprisonment, with a non-parole period of 16 months imprisonment. This sentence starts today.
51 Are the parties agreed on pre-sentence detention for Mr Tran?
52 COUNSEL: 213 days, Your Honour. That's not including today.
53 HER HONOUR: Not including today, OK. And for Ms Do?
54 COUNSEL: It's the same, Your Honour.
55 HER HONOUR: Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 213 days, not including today, is to be reckoned as time served under your sentence, Mr Tran. I direct that the fact of this declaration and its details be recorded in the records of the Court. Pursuant to s.6AAA of the Sentencing Act, I indicate that but for your plea of guilty a sentence of two years and eight months imprisonment, with a non-parole period of 21 months, would have been imposed. You may take a seat whilst I address your wife.
56 Ms Do, on one charge of cultivating cannabis L in a quantity that was not less than a commercial quantity applicable to this charge, you are convicted and sentenced to two years imprisonment. For the purposes of your sentence I treat this as this as the base sentence. On one related summary charge of dealing property suspected of being the proceeds of crime, you are convicted and sentenced to 28 days imprisonment. I direct that 14 days of the sentence imposed on the related summary charge be served cumulatively on the cultivation charge. The sentences are otherwise concurrent. The total effective sentence is two years and 14 days imprisonment, with a non-parole period of 16 months.
57 Pursuant to s.18(4) of the Sentencing Act I declare that the period of 213 days, not including today, be reckoned as time already served under your sentence, and I declare that the fact of this declaration and its details be recorded in the records of the court.
58 Pursuant to the Sentencing Act I indicate that but for your plea of guilty a sentence of two years and ten months imprisonment with a non-parole period of 23 months would have been imposed.
59 I will ask you to stand again, Mr Tran. At the plea hearing - I am going to deal with the ancillary orders for both or you - at the plea hearing pursuant to s.464ZF of the Crimes Act 1958 - Madam Interpreter, that is still in the draft in front of you at paragraph 60 - the prosecution sought an order for the taking of a forensic sample. I have acceded to the application, and in doing so I have taken into account the seriousness of the circumstances of the offending, the fact that the application is by consent, and the interests of the public - that is the applications were by consent, and the interest the public has in obtaining the samples. I have signed those orders. I must also caution each of you that a member of the police force may use reasonable force to enable this procedure to be concluded.
60 Disposal and forfeiture orders were sought at the plea hearing, and I note that the applications were not opposed. I have signed those orders as well.
61 Counsel, are there any other matters that need to be clarified or addressed in relation to the sentencing process?
62 COUNSEL: No, Your Honour.
63 HER HONOUR: Would you please remove both of the prisoners, thank you.
(Prisoners removed.)
64 HER HONOUR: Thank you for your assistance this morning.
65 COUNSEL: As the court pleases.
- - -
Attachment “A”
SUMMARY OF PROSECUTION OPENING
The accused Van TRAN (TRAN) is 51 years of age, born 10 January 1961. The accused Van Thanh Thi DO (DO) is 49 years of age, born 3 July 1963.
On Monday 14th May 2012 Police attended at … and executed a search warrant pursuant to the Drugs Poisons & Controlled Substances Act 1981.
Inside the bedroom of the main house police located various personal items belonging to each of the accused including a Victorian Learners permit belonging to DO and a car insurance renewal notice for TRAN.
At the rear of the property was a bungalow/garage, which had been converted into three rooms with a sophisticated hydroponic system with connected tubs, carbon filters, lighting and water pumps.
In the first room there was a hydroponic setup with 53 plants, including power boards, transformers, lighting, pots and a watering system. Each plant was in an individual pot and varied in size from 20cm to 40cm tall. There were 2 power circuit boards, growing nutrients and 4 caps hanging on the wall.
The second bedroom contained another hydroponic setup with 25 mature plants that were each approximately 1 metre tall by 80 cm wide. These plants were lined up in five rows, each row containing five plants. Black plastic tubing that transferred water to the plants via a pump in a water reservoir connected each of the pots. Each plant was in an individual pot and had an individual lights.
The third bedroom contained a further hydroponic setup with another 25 individually potted plants, also approximately 1 metre by 80 cm wide.
The plants were examined by a botanist and found to be:
Bedroom 1: 1.96 kilograms
Bedroom 2: 33.30 kilograms
Bedroom 3: 37.80 kilograms
Total weight: 73.06 kilograms
(Charge 1: Cultivation of a narcotic plant of commercial quantity)
The fourth bedroom contained 5 exhaust fans that were set up with black pipes that ran from the room into the garage.
10. At approximately 7:20pm DO & TRAN were observed by Police to drive into … in a car registered to and driven by TRAN. The car stopped prior to … and attempted to turn around in a driveway. Police approached the car and stopped it.
11. Police searched DO and located $560 cash in $20 notes. Police seized this money from the accused, believing this money to be the proceeds of crime. (Summary charge: Deal in property suspected proceeds of crime)
12. The accused are not authorised or licensed under the Drugs Poisons & Controlled Substances Act 1981 to cultivate a drug of dependence.
13. Both accused were arrested and transported to the Sunshine Police station where they participated in recorded interviews with the assistance of interpreters. Both accused made admissions to growing the cannabis plants.
Van Than Thi Do
· I planted cannabis (Q/A 26)
· They mixed some liquid and I just water them like water the vegies, the garden. (Q/A 39)
· I just follow their instructions (Q/A 41)
· Its because I owe them some money, and they asked me to water the plants and they pay me a few hundred dollars per week. So basically I just worked for them. (Q/A 56)
· (How long) Only recently. Only a few weeks ago (Q/A 60)
· I have to water them every day (Q/A 65)
· I did it all myself (Q/A 145)
· Reason: Other people prepare for me so I just work for other people only (Q/A 166)
· Lived in the house for: Maybe a few months (Q/A 200)
· Marijuana arrived: maybe three or four weeks (Q/A 201)
· Let me see. I don’t remember exactly but they are around 4 weeks (Q/A 202)
· Reason: It was (malfunction) went to play at the casino and I owe people money (Q/A 206)
Van Tran
· I don’t know where he live, but once I met him for a drink and then he asked me to come to work for him and he would pay me $400 and that’s for both my wife and I (Q/A 10)
· To water the plants for him and to tie the plants to make them – to tidy up, you know, the plants (Q/A 11)
· How long been at house: Around three to four months (Q/A 36)
· He mix all the chemicals and fertiliser and then he asked me to water the plants (Q/A 50)
· Sometimes he deliver them little by little, not all at once (Q/A 53)
· He also gave me the soil and I put the seedlings into the soil and then water the seedlings (Q/A 54)
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