Director of Public Prosecutions v Tran Vo
[2012] VCC 707
•30 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02298
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAN VO |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2012 | |
DATE OF SENTENCE: | 30 May 2012 | |
CASE MAY BE CITED AS: | DPP v. Tran Vo | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 707 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Boston | |
| For the Accused | Ms C. Gwynn |
HIS HONOUR:
1 Duang Tran Vo, you pleaded guilty to an indictment containing one charge that between 1 May 2011 and 16 September 2011, you cultivated a narcotic plant, namely Cannabis L in a quantity that was not less than the commercial quantity applicable to that narcotic plant. And, you have pleaded guilty to a related summary offence that on 16 September 2011 you dealt with property, namely $650 cash, suspected of being the proceeds of crime.
2 You have no prior convictions. The maximum penalty for the offence charged on the indictment is imprisonment for 25 years. The maximum penalty for the related summary offence is imprisonment for two years. The prosecution tendered a summary of prosecution plea opening which is Exhibit A, and I incorporate that into these reasons by reference. They also tendered a bundle of photographs which is Exhibit B.
3 Suffice it to say that during the period covered by the offence charged on the Indictment, you were the house sitter at 15 Stevenson Street, Deer Park where a quite sophisticated cannabis cultivation operation was established. When the police executed a search warrant on 16 September of last year, they found that five rooms in the house were being used for the cultivation of cannabis plants. There were a total of 198 cannabis plants at various stages of maturity, growing in the premises.
4 A total weight for the plants that were found at the premises was 87.27 kilograms, which is more than three times the commercial quantity by weight. By reference to the number of plants, the total quantity was almost double the commercial quantity.
5 It is apparent that the equipment in the premises and the use of an electricity bypass system demonstrated a considerable degree of organisation and a degree of sophistication, supportive of the conclusion that this was a commercial operation.
6 You were arrested and interviewed by the police with the use of an interpreter, and you admitted that you had been involved in the cultivation of the plants that were found at the premises, over a period of five to six months. You claimed that you had been paid at the rate of $8900 per semester for carrying out your cultivation and house sitting role in the enterprise.
7 You claimed that you had become involved in the offending conduct as a result of attending the Crown casino and seeking out those who might give you employment to supplement the money received from your father, who was assisting you to cover both your university fees and living expenses, whilst you were in Australia completing your studies.
8 Whilst I expressed some reluctance to accept your admissions to the police as representing a full and accurate version of the facts relevant to your involvement in this enterprise, I am prepared to accept that your role was as a house sitter, and cultivator, that you were engaged in a course of study at Swinburne University and were in your final year of those studies.
9 The offence is serious in that you became involved in a relatively sophisticated commercial cultivation operation, and persisted with that involvement for a period of five to six months, in the expectation of a not-insubstantial remuneration for that involvement.
10 Turning to matters personal to you; You are 27 years of age having been born in Vietnam on 7 November 1984. You first entered Australia on a student visa in 2008, and you have been studying in Australia since then, up to the time of your arrest on 16 September of last year.
11 Ms Gwynn, who presented the plea in mitigation on your behalf tendered a report of a psychologist, Jeffrey Cummins dated 29 May 2012. She also tendered certificates of the Kangan Institute and an asssay report showing negative result for drug screening, in relation to a sample provided by you, the Metropolitan Remand Centre on 8 November of last year.
12 That assay report was consistent with the history you gave to Mr Cummins that you are not a drug user. It seems that you are a person who has become involved in criminal activity for the first time.
13 Your background as evidenced by what you told Mr Cummins, is unremarkable. You have no health, physical or mental issues and it seems that you are an intelligent young man with a bright future who has foolishly succumbed to the temptation of easy money, represented by your involvement in this criminal enterprise. You have clearly put in jeopardy, if not ruined, your prospects of completing the course of study in which you were engaged.
14 It may well be that once you have completed your sentence, you will be deported to Vietnam without prospect of returning to Australia. I must remind myself that I must not speculate about the likelihood or otherwise, of your deportation. I shall not allow that to affect the sentence which I intend to pass upon you.
15 You cooperated with the police in that you admitted your involvement in the offending conduct, and you have pleaded guilty. I treat the plea as one that was indicated at the earliest reasonable opportunity. That shows your willingness to facilitate the course of justice, and I give you full credit for that. It was submitted on your behalf that it was also indicative of remorse. I am not persuaded that you are remorseful, in the sense that you are genuinely sorry for what you have done. It seems to me that there is no real evidence of remorse in that sense.
16 However, I think that being caught and placed in custody will have been a significant wake up call to you and that that will have acted as a significant deterrent to you committing offences of this kind in the future, either in this country or in Vietnam.
17 You will also have to bear the shame of disclosing to your father and other family and friends in Vietnam, the true reason for your failing to return to Vietnam over the Christmas period 2011, and that too will operate as a deterrent to you committing further offences.
18 It seems that you have also been cooperative whilst you have been on remand, and have worked as a billet. I accept that your period of remand and the period that you will have to serve under the sentence that I am about to impose will be harder for you as a result of your language difficulties in the prison environment. I take into account the cultural differences that you have encountered in the prison environment and will continue to encounter, and the fact that you have not received visits from family and friends during the period of your incarceration, and will not expect to receive such visits during the period of your sentence.
19 I take into account also that, the fact that you have either put in jeopardy or for all time ruined your prospects of completing your course of study, have operated and will operate as an additional punishment to you.
20 I think in all the circumstances your prospects of rehabilitation are good. I propose to pass a sentence which, taking into account all other sentencing principles, still facilitates your rehabilitation.
21 I am bound to consider the maximum penalties for these offences and in particular the need to impose a sentence that has the effect of deterring others from committing offences of this kind, and I do not discount the need to deter you also. Although that seems to me in this case to be of secondary importance to the need for general deterrence. I need to pass a sentence which expresses the denunciation of this court for offending conduct of this kind. And, it is common ground that a term of imprisonment is, in all the circumstances, the only sentence that is appropriate.
22 The prosecution has put forward a range of sentences which, they submit is appropriate in your case. That range is a head sentence of between two years and three years' imprisonment with a minimum period of between 12-18 months to be served before you are eligible for parole. That range is put, taking into account the role that you played in the offending conduct, and the hardships which attend your period in custody to which I have already referred.
23 Ms Gwynn on your behalf accepts that the range put forward by the prosecution is reasonable. She urges me to look to the bottom end of that range and, rather than impose a head sentence with a non-parole period, she urges me to suspend, at least in part the sentence that I propose to pass upon you.
24 The prosecution in response have indicated that that approach would be appropriate in all the circumstances, and I propose to proceed accordingly.
25 For the offence of cultivating a commercial quantity of narcotic plants, I convict you and I sentence you to imprisonment for 27 months but I order that 15 months of that sentence be suspended, so you will be required to serve a total of 12 months of that sentence. If you do not commit an offence punishable by imprisonment during the period of two years, during which the sentence is suspended, you will not be required to serve the balance of the sentence.
26 If, however you do commit in Australia during the next two years an offence that is punishable by imprisonment. It is likely that you will be required to serve the balance of the 27 months' imprisonment, as well as any other sentence that might be imposed for the further offence.
27 Do you understand that?
28 OFFENDER: (Through Interpreter) Yes sir I do.
29 HIS HONOUR: Thank you. In relation to the related summary offence of possessing the money, suspected of being the proceeds of crime. I discharge you pursuant to Section 73 of the Sentencing Act. But for your plea of guilty to the offences, I would have sentenced you to a total effective sentence of three years and three months, with a period of two years' imprisonment to be served before becoming eligible for parole.
30 I declare that 257 days is to be reckoned as time served on the sentence that I have passed upon you, and I order that that be entered in the records of the court.
31 I make the orders for disposal and forfeiture that have been applied for by the prosecution and not opposed by your counsel. In respect of the application for a forensic sample, having regard to the seriousness of the offending conduct, and to the overall interests of justice, representing the public interest I propose to make the order for you to undergo a forensic sample. That will require you to provide a scraping from the inside of your mouth. If you refuse to provide that sample when requested, you maybe required to provide a blood sample and the requesting officer may use reasonable force to obtain a blood sample if that situation arises.
32 You have already provided a forensic sample by scraping the inside of your mouth.
33 OFFENDER: Yes, I did sir.
34 HIS HONOUR: Yes, and I am sure that you will be cooperative again when asked to provide another one.
35 OFFENDER: Yes, I will sir.
36 HIS HONOUR: Anything else?
37 MS BOSTON: Just a procedural matter Your Honour.
38 HIS HONOUR: Yes.
39 MS BOSTON: In relation to sentence imposed on the transferred summary charge. I'm not sure that Your Honour formally convicted - - -
40 HIS HONOUR: No you're quite right I didn't, but I do, yes.
41 MS BOSTON: As the court pleases.
42 HIS HONOUR: Thank you.
43 In relation to the related summary charge of dealing in the money suspected of being the proceeds of crime, I also order that you be convicted on that offence.
44 We are just checking the orders I think. You can sit down Mr Vo.
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