Director of Public Prosecutions v Tran, Van Tuan
[2012] VCC 2041
•12 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01457
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN TUAN TRAN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 December 2012 | |
DATE OF SENTENCE: | 12 December 2012 | |
CASE MAY BE CITED AS: | DPP v Tran, Van Tuan | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2041 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Sentencing – Cultivating a narcotic plant in not less than a commercial quantity – Reckless conduct endangering life – Criminal damage – Possession of prohibited weapon without an exemption under s.8B or an approval under s.8C of the Control of Weapons Act 1990, namely a sword.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Gibson | Craig Hyland solicitor for Public Prosecutions |
| For the Accused | Mr B. Nibbs | Michael Gleeson & Associates |
HER HONOUR:
1 Van Tuan Tran, you pleaded guilty before me to one charge of cultivating a narcotic plant in not less than the commercial quantity applicable for that drug, namely Cannabis L, one charge of reckless conduct endangering life and one charge of criminal damage.
2 In addition you have consented to the transfer of a charge of being in possession of prohibited weapon without an exemption under s.8B or an approval under s.8C of the Control of Weapons Act 1990, namely a sword, and you pleaded guilty to that charge.
3 These charges are serious, and that is evidenced by the maximum penalties that are prescribed by Parliament, namely 25 years' imprisonment with respect to the cultivation charge, 10 years imprisonment in respect to the reckless endangerment charge and criminal damage, and 240 penalty units or two years imprisonment in respect to the possession of a prohibited weapon.
4 I shall proceed to sentence you on the basis of the Crown opening, there being no objection taken to that opening at the plea hearing.
5 Briefly, as a result of a police operation, 26 Lomandra Bowl, Melton West was identified as a house of interest. On Thursday 22 December 2011 at 12.35 am a number of police officers attended the Melton West address. It became evident that there was a strong smell of Cannabis coming from the premises. Police opened the door to the premises and then returned to their unmarked police car.
6 One of the officers, Senior Constable Hassett, was seated in the driver's seat. Another officer was seated in the front passenger seat, and a third officer was seated in the passenger side rear seat. The police saw a silver Holden Commodore that was being driven by you driving slowly past the premises. They saw the vehicle turn and drive past the premises again. You stopped 10 to 15 metres in front of the unmarked police vehicle and then alighted from your vehicle and ran directly towards where Senior Constable Hassett was seated.
7 You were carrying a sword, that is the subject of the summary charge. You held the sword out in front of you with both hands. Senior Constable Hassett opened his passenger door with the intention of getting out and speaking to you. You ran at him at speed. He did not have time to get out of the vehicle and he recalls that you swung the sword towards him causing the sword to strike the side of the driver's door. The damage to the police car was later assessed at $1000.
8 Senior Constable Hassett yelled out "Police" as you hit the car with the sword. He saw you standing in front of him with the blade of the sword pointing down towards him. He feared for his own welfare. He fired one shot at you that missed. You then decamped. Later you were arrested whilst trying to flee outside neighbouring premises after being sprayed with OC foam.
9 After executing a search warrant on the property police located 275 Cannabis plants amidst a sophisticated hydroponic set-up. Over half the plants were fully mature. The bedrooms in the home were being utilised to grow Cannabis, and all the usual accoutrements of a hydroponic set-up were seized. Your fingerprints were located on the entrance door of the master bedroom and a number of light shades within the premises.
10 Within the car that you drove police found other accoutrements of a hydroponic set-up such as electrical transformers, power circuit breakers, power board, hotwire reels, saws and power tools.
11 Police located the sword's sheath and a number of keys, one set of which fitted the front wire security door, the front door and the master bedroom of 26 Lomandra Bowl, Melton West.
12 The 275 plants located on the premises weighed 150.692 kilograms. Schedule 2 of the Drugs Poisons and Controlled Substances Act 1981 defines a commercial quantity as 100 plants or 25 kilograms.
13 This is very serious offending and has had a significant effect on Senior Constable Hassett. His victim impact statement dated 4 December 2012 sets out in graphic terms the difficulties he has experienced following the incident. His life has changed forever. He fears death, suffers sleeplessness and experiences nightmares. He has been diagnosed with post traumatic stress disorder and anxiety. He finds it difficult to trust people and finds it hard to communicate with others. This experience has undermined his enjoyment of his role as a serving police officer.
14 Whilst I do not consider that you were the person who was the architect of the Cannabis crop I do consider that you nonetheless played an instrumental role in continuing to maintain the crop.
15 Your actions in the way you reacted and using the sword when you believed the people in the unmarked police car were going to interfere with your friend's Cannabis crop were out of all proportion to any perceived threat. This is a very serious example of the offence of reckless conduct endangering life and it has had grave consequences for Senior Constable Hassett.
16 In sentencing you I must emphasise both general and specific deterrence
17 I have been told something about your personal history and background. You are 27. You were born in Vietnam and came to Australia on a student visa in 2008. You have remained in Melbourne since that time. Your English is almost non-existent. Your parents are very elderly and reside in Vietnam. Your father is a retired herbal medical practitioner and your mother is involved in home duties. Your father is said to be frail and weak, and your parents are not aware of your current legal situation.
18 You are the sixth eldest of seven siblings, none of who have ever been in trouble with authorities. You have only informed your older sister that you are on remand and the nature of the charges. You have limited social contacts here in Victoria. You have a cousin living in Melbourne, and she and some of your other friends visit you whilst on remand.
19 You have been in custody since 22 December 2011. You use a puffer for asthma and have medication intermittently for gastric problems. You are currently working in horticulture at the Melbourne Remand Centre. In Vietnam you were educated to Year 12 level. You attended Holmes College for about a year and a half and undertook and completed a bakery qualification. You then worked as a baker in Box Hill for about a year and a half before losing interest in that job, and then you began working as a builder's labourer.
20 When arrested you were living in a student household in Carlton. You had become involved in this offending through one of your friends.
21 You have never been married and have not fathered any children. A former girlfriend still visits you on a weekly basis. She is now in a new relationship and only recently had a child.
22 Since being in gaol you have experienced anxiety. Mr Jeffrey Cummins, a consultant psychologist, who interviewed you and provided a report dated 15 November 2012, does not consider that you have any mental health conditions. He says you have symptoms indicative of a mild to moderate adjustment disorder with mixed anxiety and depressed mood, and that is in response to your arrest and associated incarceration. He does not consider you require any stabilising medication. He recommends psychological treatment.
23 I have had regard to the factors put by Mr Nibbs in mitigation. I accept you entered a plea of guilty on 10 August 2012, the first day of the committal hearing. No witnesses were cross-examined. The plea obviated the need to commence the committal, and therefore, you spared the witnesses, especially Senior Constable Hassett, the further trauma of having to give evidence on your trial. You have saved the state the cost and expense of a trial, and you have thereby facilitated justice. Your sentence will be discounted accordingly.
24 I consider, having regard to the fact that you are quite isolated socially here in Victoria that your experience in gaol will be more burdensome for you than otherwise, and I have taken that into account in a general sense.
25 Your counsel conceded that it is likely, as soon as you are released from gaol, that you will be deported to Vietnam. You have also agreed that you would return to Vietnam voluntarily. The fact of deportation and the loss of opportunity of being able to continue to live in Australia is a factor I have taken account in a general sense in mitigation.
26 You will have to serve the term of imprisonment in the expectation that you will be deported, and therefore, the burden of imprisonment will be greater for you than a person who faces no such risk.
27 You have found your experience of being arrested and being in gaol to be salutary. Ordinarily you consider yourself to be a law-abiding citizen and you regret your involvement in the offending. You became involved through a mutual friend.
28 I have read and taken into account your written apology that you have provided to the court. You acknowledge that what you did was against the law and that what you did was foolish and stupid. You sincerely regret your involvement in this offending and have expressed the desire never to offend in a like manner ever again. I accept that you are genuinely remorseful.
29 You were involved in growing a sophisticated hydroponic Cannabis crop that occupied a home dedicated to the purpose of the cultivation of Cannabis. The community through Parliament views such offending as being very serious. The quantity involved is a very significant matter in your sentence. Courts have long expressed the view that this offence requires substantial punishment. There have been ever increasing numbers of hydroponic crops of Cannabis detected in the last few years, and general deterrence is very important.
30 I have had regard to current sentencing practices and I have noted the statistics, in particular according to the Sentencing Advisory Council Sentencing Snapshot No. 48 over the five years between 2002 to 2007, 102 people were imprisoned for this offence and the prison terms range from one to six years, the most common term being imposed was two years, and the median was two years and six months.
31 The reckless conduct endangering life charge is a particularly serious example of this sort of offence.
32 Overall, having regard to the seriousness of your offending, I consider that a gaol term to be served is the most appropriate disposition.
33 I have had regard to your prospects for rehabilitation which I consider to be good having regard to your post offence conduct, your contrition and your desire to learn from your mistakes.
34 In sentencing you I must impose just punishment, and on behalf of the community, formally state that what you did was wrong. I must also send the message to other people in the community who might otherwise be attracted to this sort of activity that if you are caught you face stern punishment.
35 Now I ask that Mr Tran stand, so I can impose the formal court orders.
36 In respect to the first charge, the cultivation of Cannabis in not less than a commercial quantity you will be convicted and sentenced to two years' imprisonment. In respect to the reckless conduct endangering life you will be convicted and sentenced to two years' imprisonment. In respect to the criminal damage you will be convicted and sentenced to three months' imprisonment.
37 I make the following order for cumulation: Charge 2 is the base sentence. One year of the sentence imposed with respect to Charge 1 will be cumulative upon the sentence imposed on Charge 2, making a total effective sentence of three years' imprisonment. I direct that you serve 12 months' imprisonment before being eligible for parole.
38 In respect to the summary charge, possession of prohibited weapon without appropriate exemption or approval, you will be convicted and sentenced to six months' imprisonment.
39 I make the disposal order sought.
40 I make the forfeiture order sought.
41 I make the order pursuant to s.464ZF(b)(i) of the Crimes Act 1958 for the retention of a forensic sample. I have considered the seriousness of the circumstances of the offending and I am satisfied in all the circumstances that such an order is justified. I note the order was by consent, and the granting of it is in the public interest.
42 I make a declaration of pre-sentence detention. There are 356 days' pre-sentence detention, and I direct that that be recorded in the records of the court.
43 In respect to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a term of imprisonment of four years' to serve three years.
44 That concludes my formal sentencing remarks. I think I have covered everything.
45 MR NIBBS: Yes.
46 MR GIBSON: Charge 4 is obviously concurrent.
47 HER HONOUR: Yes. That's right. The summary Charge.
48 My associate has the signed court orders, and he can provide those to your instructor.
49 That concludes the matter.
50 Ms Bui, does Mr Tran understand the sentence that has been imposed by the court?
51 INTERPRETER: Yes.
52 HER HONOUR: All right. Good. Did you want to spend some time with him here?
53 MR NIBBS: I was going to ask if, once you have retired, if I could just have my client in the dock with a minute with the interpreter.
54 HER HONOUR: That's fine. I was going to suggest that you do that while Ms Bui is here and while you are here, you could that. I'll step off the bench and enable that to be done.
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