Director of Public Prosecutions v Trinh
[2020] VCC 1512
•21 September 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-00963
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANG NGOC TRINH |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 27 March, 30 July and 18 August 2020 | |
DATE OF SENTENCE: | 21 September 2020 | |
CASE MAY BE CITED AS: | DPP v Trinh | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1512 | |
REASONS FOR SENTENCE
Catchwords: CRIMINAL LAW – Sentence – Cultivation of not less than a commercial quantity of cannabis – 111 plants weighing 40.89 kg – financially motivated offending – exact role unclear – no previous or subsequent criminal history – early plea – remorse – family hardship – Covid-19 considerations – onerous nature of a custodial sentence – good prospects of rehabilitation – test in s 5(2H)(e) not satisfied – custodial sentence mandated – head sentence with non-parole period warranted – TES of 18 months’ imprisonment with a non-parole period of 9 months – 26 days’ pre-sentence detention – s 6AAA sentence indication of 2 ½ years’ imprisonment with a NPP of 18 months.
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms H Bate (Plea) Mr P Wingrove-Lupton (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr M Thomas | Stephen Andrianakis & Associates |
HIS HONOUR:
Introduction
1 Thang Ngoc Trinh, you have pleaded guilty to a charge of cultivation of a narcotic plant in not less than a commercial quantity.[1] The maximum penalty prescribed by Parliament for that offence is 25 years’ imprisonment.
[1] Charge 1 on Indictment K10238348.
Circumstances of the offending
2 The circumstances of your offending can be gleaned from the prosecution opening,[2] and from the discussions between counsel and the Bench at the plea hearing.[3] For present purposes, the following outline will suffice.
[2] Dated 6 March 2020 (exhibit A).
[3] Which commenced on 3 March and concluded on 18 August 2020.
3 You were 28 years of age when you committed this offence in early 2019.[4] You are now 29, having been born on 29 September 1990.
[4] The indictment alleges the date of offending as being 28 January 2019, the date on which Mr Trinh was arrested by police at the property where the cannabis crop was being cultivated.
4 The police had been conducting covert surveillance on the relevant Seaford property for some months. After obtaining a search warrant, they attended in that vicinity in the mid-afternoon of 28 January 2019. During the two hour or so period that they kept the property under surveillance, a Toyota Camry sedan[5] was parked on the front lawn and a Volkswagen Golf bearing false plates was parked in the driveway. Police had seen that Volkswagen at those premises on a regular basis since November 2018.
[5] This vehicle was registered to an unknown person named Dung Thi Tran in Bundoora.
5 At 5.26 pm, police saw you exit the front door and walk to the Camry. As you opened the front passenger door, they approached and identified themselves. You then sought to flee on foot, but were quickly apprehended.
6 On entering the property, police discovered a sophisticated hydroponic set up that was being used to grow cannabis in each of the three bedrooms. An illegal meter bypass was located in the roof cavity. The cannabis plants varied in their growth and maturity. The first bedroom contained 20 plants weighing 23.45 kilograms; the second bedroom contained 15 plants weighing 15.55 kilograms; and the third bedroom contained 36 plants weighing 1.8 kilograms. A kitchen cupboard contained a tray with 40 seedlings weighing 92.5 grams.
7 In total, there were 111 cannabis plants with a combined weight of 40.89 kilograms. That weight equates to 1.63 times the statutory threshold weight for a commercial quantity and just over 16 per cent of a large commercial quantity.[6]
[6] The statutory threshold is 100 plants or 25 kilograms for a commercial quantity and 1000 plants or 250 kilograms for a large commercial quantity.
8 You were arrested and then searched by police who located a key to the Camry and keys to the locks on the front door of the property. A subsequent search of the Camry located a key to the Volkswagen and a wallet containing your driver’s licence.
9 When police rang the front doorbell of the property, your mobile phone emitted a chiming sound and displayed the message 'RING – There is motion at your front door',
10 When you were later interviewed, you exercised your legal right to give ‘no comment’ answers.
11 Following the interview, you were charged and remanded in custody.
12 You were later released on bail after having been in custody for 26 days. Since that time, you have not committed any further offences and have abided by a relatively strict bail regime which includes daily reporting to police. That is all to your credit and augurs well for your future rehabilitation.
Early plea of guilty
13 You pleaded guilty to this charge at the earliest reasonable opportunity. Resolution discussions commenced following a committal mention hearing on 23 April 2019. As a result of those discussions, the matter resolved and you entered a plea of guilty at the subsequent committal mention on 20 May 2019.
14 For taking that course as and when you have, Mr Trinh, you are entitled to a significant discount in your sentence, particularly given the current Covid-19 pandemic and its adverse impact on the court’s ability to progress jury trials.[7] It has saved the community from the cost and time associated with a trial and spared the witnesses from having to give evidence.
[7] DPP v Bourke [2020] VSC 130, [32].
15 I accept that your plea indicates that you are remorseful for your offending.
Personal circumstances
16 I turn now to briefly outline your personal history, Mr Trinh. You were born in North Vietnam on 29 September 1990 and will turn 30 in just over a weeks’ time. Both of your parents are still alive and remain living in Vietnam. They have made a living through a restaurant business. You are married to a woman named Thi Thuy Tran and the two of you have a 15 month old child from that relationship.[8]
[8] The child was born on 12 June 2019.
17 After you completed high school at age 18, you undertook a four year Degree of Bachelor of Accounting from the Hanoi University of Business and Technology, graduating in 2013.[9] You were then employed for approximately one year in an accounting clerical role.
[9] Confirmed in document tendered as Exhibit 4.
18 At the age of 24, you migrated to Australia on a student visa studying English. While studying, you worked on weekends in a variety of roles, including in a laundry, at a Vietnamese restaurant and on farms.
19 You met your now wife, Ms Tran, while living in Australia. The two of you married in July of 2017. She suffered from a difficult pregnancy and was diagnosed with depression prior to the baby’s birth. Your wife is currently medicated and being treated for anxiety and depression. Neither of you have any extended family support in Australia.
20 Since being released on bail on 22 February 2019, you have managed to obtain and maintain employment. Initially, you were involved in timber flooring. Between April and October 2019, you performed casual agency work as a machine operator for a business named Turosi Food Solutions Group. Since October 2019, you have worked there as a full time machine operator.[10]
[10] Exhibit 8; work reference form Ms Christine Eldaief, dated 27 February 2020.
Other matters in mitigation
21 Your counsel was able to rely on a number of other matters in mitigation in this case.
22 You appear to have offended at a challenging time in your life; your wife had become unwell in the early stages of her pregnancy and had to stop working and you were sacked from your job after taking time off to look after her.
23 Your early plea of guilty deserves a commensurate discount in your sentence.
24 That plea of guilty, together with the observations of the assistant parish priest of St Joseph’s Parrish in Springvale,[11] satisfy me that you have shown remorse.
[11] Exhibit 7 on the plea
25 There has been some delay in this matter being finalised. The original plea date was adjourned at your request in October 2019. When it came on for hearing before me in March 2020, it could not be completed due to the unfolding COVID-19 pandemic and the need to obtain further evidence and instructions regarding your wife’s condition and circumstances. Ultimately, with the agreement of both parties, the further hearing of the matter was adjourned for a number of months so that a clearer picture of the COVID-19 pandemic could hopefully be obtained. The plea was part heard on 30 July and concluded on 18 August.
26 During all of that time, you have continued to remain offence free and gainfully employed while this matter has been hanging over your head and no doubt causing you a degree of angst about your uncertain fate. That same delay has, however, enabled your wife to continue to benefit from your ongoing presence and support during the most torrid periods of this pandemic to date. It is also relevant to note that you now fall to be sentenced at a time when, in all likelihood, the severe restrictions under which all Victorians have been living are soon to be eased and then incrementally lifted over the coming months.
27 You have no prior or subsequent criminal convictions or findings of guilt, either in your country of birth Vietnam, or here in Australia.[12]
[12] Confirmed by certificates tendered as exhibits 9 and 10, respectively
28 You have a very good work history.
29 You are committed to your wife, who remains supportive of you. She and your young child provide you with an ongoing incentive to remain offence free in the future.
30 You have some other support within the community, albeit that it seems to be somewhat limited. While neither of you have any immediate family living in Australia, the two of you have been involved with your local church.
31 Your wife’s condition was relied on for the purposes of establishing, as a mitigatory consideration, family hardship, and in order to come within one of the limited exceptions to mandatory imprisonment under s.5(2H) of the Sentencing Act 1991. I will deal with that issue and the associated defence submissions later in these sentencing reasons.
32 I accept that you will find the service of a custodial sentence very difficult for many reasons. I will mention one such reason now, the COVID-19 pandemic, and return to deal with the others a little later in these sentencing reasons.
COVID-19 considerations
33 The potential relevance of the COVID-19 pandemic to established sentencing principles, has been considered in a number of cases.[13] As is to be expected, the jurisprudence in this area has been developing over time, in line with the progress and impact of the virus, our increasing but still limited knowledge about it, and the nature and extent of the restrictive measures that the Victorian Government has had to put in place from time to time to try and deal with it.
[13] See for example, Brown (aka Davis) v The Queen [2020] VSCA 60, [48] (Priest and Weinberg JJA) (23 March 2020); Nguyen v The Queen [2020] VSCA 76, [59] (Niall JA) (1 April 2020); El Nasher v DPP [2020] VSCA 144, [39] (Priest, T Forrest and Weinberg JJA) (27 May 2020); Astbury v The Queen (No 2) [2020] VSCA 158, [33] (Kaye, Niall and Weinberg JJA) (18 June 2020); DPP v Bourke [2020] VSC 130, [32] (Dixon J) (16 March 2020); DPP v Madex [2020] VSC 145, [27], [51]-[52] (Incerti J) (26 March 2020); DPP v Williams & Godfrey [2020] VSCA 483 (Lasry J) (7 August 2020).
34 Having regard to those cases, the rather unpredictable nature of the virus, and the roadmap which the Victorian Government has recently announced in relation to the easing of restrictions, I consider it appropriate to have regard to the following matters when determining the appropriate sentence in your case.
35 As your own counsel has conceded in the course of his submissions, some form of immediate custodial sentence is inevitable given the nature and seriousness of your offending.[14] In my view, that was an entirely appropriate concession to have made, in the circumstances of this case.
[14] Counsel submitted that a combination sentence was both open and appropriate; that is, a sentence of imprisonment followed on release by a community correction order.
36 The service of any custodial sentence will be a more onerous experience for you in the current COVID-19 environment than it would have been before the pandemic because of the following:
· On your initial reception into custody, you will be placed in quarantine isolation for a period of 14 days;
· Thereafter, and for the foreseeable future, you will be subjected to lockdown conditions, which may vary by degrees over time;
· You will not have the opportunity for contact (face to face) visits with family or friends, again for the foreseeable future;
· Courses and rehabilitation programs will be unavailable or if offered, will be more limited in scope; and
· You will likely suffer a degree of stress and concern about what you may perceive as being the increased chances of contracting the virus whilst in custody.
Family hardship
37 In chronological sequence, the documentation provided in relation to the condition and circumstances of Mr Trinh’s wife included the following.[15]
[15] I have also had regard to exhibit 6; a letter from the social worker Amber Leuders dated 8 May 2019 regarding the provision of antenatal care at the Royal Women’s Hospital.
38 In a letter dated 15 February 2019, the assistant priest of your Parrish notes that Ms Trinh is pregnant and very upset as she relies on her husband for emotional support and for transportation.[16] In that context, I note that Ms Tran has a learner’s permit, but has failed her driving test on multiple occasions, when seeking a full licence.
[16] Exhibit 7.
39 In a medical certificate dated 19 February 2019, Ms Tran’s GP, Dr Phan, states as follows:
'Ms Tran has been my patient since 6 January 2017.
She is currently in unstable mood from depression, acopia, tired, insomnia.
Ms Tran has had multiple medical issues since pregnancy (currently 22 wks gestation) namely nausea/vomiting, minimal weight gain. She needs her husband,
Mr Trinh, for support most of the time.
As I am aware, she has no other family support and is in a very difficult time.
She will need further care from psychologist'.
40 In a letter that is addressed to Dr Phan and dated 17 September 2019, the psychiatry registrar from the Centre for Women’s Mental Health at the Royal Women’s Hospital, Dr Dang relevantly notes[17]:
[17] Exhibit 3.
'Thankyou for your ongoing care of Thi who was seen at the Royal Women’s Hospital Psychiatry Clinic during her recent pregnancy.
…[S]he is living with her husband and newborn in sharehouse, currently on skilled migrant visa, who has presented for assessment of anxiety in the context of psychosocial stressors. Thi presented with symptoms of low mood, anxious preoccupations and poor concentration during pregnancy. This was in context of concerns of husband’s possible incarceration as he awaits hearing for drug cultivation, social isolation and financial stressors.
Thi was supported during pregnancy with social worker, community organisation Healthy Mum and Healthy Babies as well as myself. Thi’s symptoms worsened in the post partum period, due to increasing demands of newborn and ongoing social isolation. She reported regularly having poor sleep, low appetite, difficulty in responding to baby’s distress and feeling increasingly isolated as husband returns to work. Psychological supports have been implemented. Thi was also initiated on sertraline 50 mg, which I have recently increased to 100 mg.
Thi continues to experience poor appetite and fatigue. I have recommended she attend your clinic for physical work up and including FBE, UFC, Iron levels and TFT which may be contributing factors to her mental state.
I will continue to review Thi. Please do not hesitate if you have any questions'.
41 By way of an updated report to Dr Phan in a letter dated 13 January 2020, Dr Dang notes as follows:
…
'Thi was last seen on 27 December 2019 with her husband and baby. Thi is now nearly seven months post partum and her mood has remained fluctuating. There have been some difficulties in the last few weeks with baby due, to sleep regression which has increased the strain on Thi’s mental state, due to lack of sleep. Thi has reported increased mood lability. She continues to be maintained on sertraline 200 mg.
Today we have discussed the impacts of sleep deprivation in her mood and the use of PRN temazepam as required. I have encouraged Thi to seek the support of her husband to care for baby overnight when possible. Thi has also been advised to speak with MHCN for support around baby’s sleep routine, in minimising sleep disruption. We have also discussed the use of PRN temazepam as required to aid with sleep.
Thi will be reviewed in late January with the view of discharge as she is more than six months post partum. I have advised Thi that regular reviews with yourself and community psychologist would be beneficial. Thi would benefit from a Vietnamese speaking psychologist…or I have also suggested engaging with CoHealth Vietnamese Community Services in Kingston, as Thi may better engage with Vietnamese speaking service. Thi should continue on sertraline for at least 6-12 months to continue to stabilise her mood.
If you have any further questions, please do not hesitate to contact me'.
42 I was informed by Mr Trinh’s counsel that Ms Tran did not see Dr Dang after 27 December 2019, as Dr Dang left the employ of that hospital.
43 Dr Phan referred Ms Tran to the Vietnamese speaking social worker/counsellor, Mr Hien Bui, in a covering letter dated 25 February 2020. He sought opinion and management of her condition from Mr Bui and described her as being medicated for depression (sertraline tablet 100 mg twice daily).
44 At the plea hearing, I was informed that the first appointment with Mr Bui was scheduled for 18 March 2020.
45 A detailed report from Mr Bui dated 26 June 2020 was tendered as an attachment to Exhibit 14 on the plea. In that report, Mr Bui notes that he has conducted eight counselling consultations with Ms Tran since 18 March 2020. He noted that she presented with symptoms of Post Natal Depression and Anxiety and that her mental health had been deteriorating since she gave birth to her first child. After taking a relevant history from Ms Tran, Mr Bui identified a number of stressors, including her husband’s forthcoming court appearance and the challenges of raising a newborn child.
46 Ms Tran reported that she does not feel capable of raising her 13 month old child by herself. The child does not sleep well and cries often. She reported having no relatives or friends in Australia to support her, although she has befriended a lady of the same background, who has a young child herself and has, in cases of emergency, assisted Ms Tran with the care of her child. She also reported that her husband, Mr Trinh, had been very active and helpful in assisting her with the newborn baby.
47 Ms Tran also expressed her financial concerns with the court case as she relies on her husband’s income and is unable to seek employment herself. She anticipates facing a huge emotional and financial struggle in the event that her husband is incarcerated.
48 As part of the treatment, Mr Bui has provided cognitive behavioural psychotherapy strategies to improve Ms Tran’s coping and problem solving skills. He is of the opinion that she requires more extended support in psychotherapy to overcome the long term symptoms to retrieve her confidence and self-esteem and to improve her coping and problem-solving skills. He also notes that she is in strong need of her husband’s support, to help take care of the family and newborn baby.
Gravity of the offending
49 I must also have regard to a number of other relevant sentencing considerations, apart from those personal to you and your wife, Mr Trinh. One such consideration is the gravity of the offending.
50 As is clear from the very high maximum penalty fixed by Parliament for this type of offence, any such offence must be considered as intrinsically serious.
51 This was far from a minor example of commercial cultivation. The subject property was wholly devoted to the cultivation of cannabis and the hydroponic set-up was a relatively sophisticated one and designed to avoid detection; for example, there was an electricity meter bypass and an electronic doorbell linked to a phone app, that alerted the occupant to the fact that there was someone at the front door. The quantity of cannabis, while not greatly above the threshold weight for a commercial quantity, was not at the very lowest end of the weight range for a commercial quantity. It is also worth noting that the plants being cultivated were at varying stages of growth and maturity which suggests that the criminal enterprise was intended to be an ongoing one. On the other hand, Mr Trinh is charged with, and to be sentenced for, a single date involvement in this cultivation enterprise as opposed to a between dates involvement over a period of days, weeks or months. Without taking away from that fact, it would be artificial to assume that this was the only involvement that Mr Trinh had and so much was frankly conceded by his counsel at the plea hearing.
52 The court was not provided with any details or instructions as to how or why Mr Trinh came to be involved in this offending or what role he played in the criminal enterprise. Working within those obvious limitations, I am nonetheless prepared to find that Mr Trinh’s motivation was financial in nature, although the actual level of his financial gain, realised or expected, cannot be known. I am also prepared to find that his role, as uncertain as it is, was not intended to be minor or fleeting in nature. He was found in possession of keys to the property and a diagram that correlated to the cannabis seedlings found in the kitchen cupboard. His fingerprints were found on a power bill and his DNA was located on a toothbrush in the bathroom. On the date of his arrest, he was working alone at the property for at least a couple of hours. In saying all of that, I am not suggesting that he was the architect of this criminal venture or that he was the only person involved. Indeed, I think it very possible that he was not. But exactly where he fitted into any hierarchy if that was the case, I cannot say.
53 At the plea, defence counsel submitted that this offence ought to be viewed as one that fell at the low to middle part on the spectrum of seriousness for this type of offence. The prosecution did not seek to quibble with that categorisation and nor do I. It seems to be a realistic assessment given what is known about the offending.
54 In my view, Mr Trinh must bear a relatively significant degree of moral culpability for his criminal conduct. He engaged in that conduct for financial reward. There is nothing to suggest that he was incapable of appreciating the risks of becoming involved in this offence, or of weighing the potential rewards against those risks. By way of contrast to some offenders who come before the court for this type of offending, Mr Trinh has no history of drug abuse or mental health problems.
Relevant sentencing principles
55 General deterrence and denunciation are very important sentencing considerations in cases such as this.
56 While of lesser importance, given Mr Trinh’s previous good record, the nature and gravity of this offending which remains essentially unexplained, is such that specific deterrence still has some role to play in this sentencing exercise.
57 Mr Trinh must be punished in a manner and to an extent that is justified in the particular circumstances of this case. The offending was serious and clearly warrants immediate imprisonment.
58 Mr Trinh’s age and prospects of rehabilitation must also be considered. Whilst there are some limitations in making any assessment due to the unexplained nature of this offence, I have ultimately concluded, based on what I do know about Mr Trinh, that those prospects are good.
59 I accept that any further time that Mr Trinh spends in custody will be difficult for a variety of reasons. He has limited English skills and, but for the short period already spent in custody while on remand, he has never previously been in gaol. He will no doubt experience anxiety and stress about the possibility of contracting COVID-19 while in custody. He will undergo isolation during the initial 14-day quarantine period and then restricted movement and interaction with other prisoners and prison staff on account of the safety measures that Corrections currently have in place. His ability to work, study and undertake programs while in custody will also be compromised. No doubt he will also be concerned about his own uncertain future and in particular, the possibility that he may be deported back to Vietnam. And, I also accept that he will be very concerned about the health and wellbeing of his wife and young child during the period that he is serving his sentence. They will be unable to visit him in gaol for the foreseeable future, as all personal visits to prisoners have been suspended indefinitely.
60 On account of those matters, I have no difficulty finding that Mr Trinh’s experience of serving a sentence of imprisonment will be a particularly onerous one. I have given that matter what weight I can when considering the appropriate sentence to be imposed in this case.
61 I have considered the most recent statistics for this type of offence.[18] Those statistics show that in the period between 2014-15 to 2018-19, 367 offenders were sentenced in the higher courts for a principal offence of that nature. Of those, 336 received a non-aggregate term of imprisonment. In that category, the sentences imposed ranged from one month and 13 days to six years and six months, while the median length of imprisonment was two years.
[18] Sentencing Snapshot No. 247 published by the Sentencing Advisory Council in August 2020.
62 I have had regard in a general and limited way to those statistics and to a number of other cases. But as the Court of Appeal has said repeatedly, any such exercise is of only very limited utility given the paucity of information conveyed by bare statistics, the inevitable differences between cases, both as to the offenders and the offending, and the fact that there is usually no one correct sentence in a given case, but rather a range of available sentences.
Defence sentencing submissions
63 It is important to note at the outset, that in his sentencing submissions, Mr Thomas acknowledged the seriousness of this offending and the need for Mr Trinh to serve a period of immediate imprisonment beyond the 26 days that he has already served by way of pre-sentence detention.
64 He submitted, however, that a just sentence in all of the circumstances of this case, would be a combination sentence involving a short sentence of imprisonment, followed by a relatively lengthy community corrections order, with conditions that included supervision and unpaid community work.
65 As defence counsel acknowledged, the offence of commercial cultivation alleged in this charge is a Category 2 offence and therefore s.5(2H) of the Sentencing Act 1991 applies. In such circumstances, a court is mandated to impose an immediate term of imprisonment other than a combination sentence, unless it finds that one or more of the listed criteria are satisfied. The sole criteria that Mr Thomas sought to rely on was that in s.5(2H)(e), namely that there are substantial and compelling circumstances that are rare and exceptional and that justify not making such an order.
66 Mr Thomas submitted that the test in s.5(2H)(e) was satisfied here when regard was had in particular, to the family hardship occasioned by the depression and isolation experienced by Mr Trinh’s wife, who is the primary carer for their young child. That hardship has only been exacerbated by the COVID-19 pandemic and associated and increasingly restrictive limits placed on movement and personal interaction by the Victorian Government to date. In the event that his primary sentencing submission was unsuccessful, Mr Thomas urged the court to impose as low, a head sentence and non-parole period as possible.
Prosecution sentencing submissions
67 For their part, the prosecution highlighted the nature and gravity of this offending by Mr Trinh and the consequent need to emphasise the principles of general deterrence, denunciation and just punishment in any sentence imposed.
68 They argued that the factors relied on by the defence did not, either alone or in combination, satisfy the high threshold test contained in s.5(2H)(e), and that the court was therefore bound to impose an immediate term of imprisonment for this offence, other than by way of a combination sentence.
69 The prosecution’s position was that this serious offence warranted that type of sentence as it was sophisticated and appears to have been engaged in for financial gain. Therefore, and notwithstanding the matters that could be relied on in mitigation, a sentence in the form of a head sentence and a non-parole period should, they submitted, be imposed.
The test in Section 5(2H)(e)
70 In the 2016 case of DPP v Hudgson,[19] the Court of Appeal had occasion to consider the test contained in s.10A(2)(e) of the Sentencing Act 1991, namely whether there were ‘substantial and compelling circumstances’ that amounted to a ‘special reason’, so as to justify not imposing a mandatory minimum non-parole period. The court observed that the burden imposed upon an offender who sought to escape the operation of s.10, should be a heavy one, and not capable of being lightly discharged. The court accepted that, in context, the word ‘compelling’ connotes powerful circumstances of a kind wholly outside of what might be described as ‘run of the mill’ factors typically present in offending of the kind in that case, which was intentionally causing serious injury in circumstances of gross violence.[20]
[19] [2016] VSCA 254
[20] Ibid [111]-[112].
71 Since Hudgson was decided, the test contained in s.10A(2)(e) has been changed so as to insert the words ‘that are exceptional and rare’ immediately after the words ‘substantial and compelling circumstances’. In Johns v The Queen,[21] the Court of Appeal noted that this amendment had the effect of providing a stricter test for departing from the mandatory non-parole period.[22]
[21] [2020] VSCA 135
[22] Ibid [70] (Ferguson CJ, McLeish and Niall JJA).
72 What was said by the court in Hudgson and Johns is informative for the purposes of considering the test in s.5(2H)(e), which mandates a term of immediate imprisonment, other than by way of a combination sentence, unless the offender satisfies the sentencing court that there are substantial and compelling reasons that are exceptional and rare and that justify not making an order under Division 2 of Part 3 of the Sentencing Act 1991.
73 In Farmer v The Queen,[23] the court considered this test, noting that within that context, paragraph (e) of s.5(2H) is a residual category of limited scope which involves a ‘very high hurdle’ that will ‘not often be surmounted’.[24] As the court also observed, in many cases, given the type of offences within category 2, a term of imprisonment will be inevitable and in some cases, the operation of s.5(2H) will be harsh.[25] It is a stringent test.
[23] [2020] VSCA 140.
[24] Ibid [51] (Maxwell P, Kaye and Niall JJA).
[25] Ibid [52].
74 In his submissions, Mr Thomas relied on the decision of Judge Parrish in DPP v Jones,[26] while Ms Bate, counsel appearing on behalf of the Director, relied on the decision of Judge Tinney in Smith.[27] I was not greatly assisted by that exercise as each decision must be viewed in its own particular context and circumstances, and, in any event, neither decision binds me or should be regarded as a precedent.
[26] [2020] VCC 549.
[27] [2020] VCC 480.
75 Having carefully considered the submissions made by Mr Thomas and the materials and opinions on which they were based, I am unable to accept his contention that the unfortunate circumstances relating to Mr Trinh’s wife when considered in the current context of the COVID-19 pandemic, satisfy the very high and stringent test contained in s.5(2H)(e), including the requirement that such circumstances are exceptional and rare. Although it was essentially those twin and related circumstances on which Mr Thomas sought to satisfy the test, I have considered those same circumstances in combination with all of the other relevant circumstances in this case and have come to the same conclusion. Accordingly, this court is mandated to impose an immediate custodial sentence for this offending, other than by way of a combination sentence under s.44 of the Sentencing Act 1991.
76 Before departing this topic, I should note that even if the defence had established that there were substantial and compelling circumstances that were exceptional and rare, I would still not have been inclined to find that those circumstances were such as to ‘justify’ not making an order under Division 2 of Part 3.
77 In my view, nothing short of an immediate term of imprisonment in the form of a head sentence with a non-parole period is open for this offending. To do otherwise would fail to accord the necessary weight to the important sentencing principles of general deterrence and denunciation and would not represent a just and appropriate punishment for the offending in which Mr Trinh chose to engage.
78 However, in light of Mr Trinh’s age, lack of prior and subsequent criminal history and his good prospects of rehabilitation, I consider it appropriate to fix a relatively low non-parole period in relation to the head sentence.
79 While I have found that the situation with Mr Trinh’s wife is insufficient to escape the operation of s.5(2H), and although I do not consider that it constitutes exceptional circumstances for the purposes of the common law’s treatment of family hardship, I will nonetheless give it what weight I can, when taking into account Mr Trinh’s personal circumstances and background.
80 Please now stand, Mr Trinh.
Sentence
81 Mr Trinh, having balanced and weighed all of the relevant sentencing considerations in your case as best I can, I have decided to sentence you as follows.
82 On the charge of cultivation of a narcotic plant in not less than a commercial quantity, you are convicted and sentenced to a term of 18 months’ imprisonment.
83 In respect of that head sentence, I fix a non-parole period of nine months.
Section 6AAA indication
84 I declare, pursuant to s.6AAA of the Sentencing Act1991, that but for Mr Trinh’s plea of guilty, I would have imposed a sentence of two and a half years’ imprisonment with a non-parole period of 18 months.
Pre-Sentence Detention
85 Pursuant to s.18(4) of the Sentencing Act1991, I declare that Mr Trinh has already served a period of 26 days pre-sentence detention in respect of this sentence, not including today’s date. I order that such period is to be reckoned as already served under this sentence and that the declaration and its details be entered in the records of this court.
Ancillary Orders
86 I will make the disposal order in the terms sought by the prosecution, pursuant to s.78(1) of the Confiscation Act 1997.
87 I also make the forfeiture order in the terms sought by the prosecution, pursuant to s.33(1) of the Confiscation Act 1997.
Custody management issues
88 Mr Thomas, are there any matters that you consider the court should note by way of custody management issues in the relevant documentation that will accompany your client into custody?
89 MR THOMAS: No, Your Honour.
90 HIS HONOUR: I just wonder, Mr Thomas, whether it may be worth mentioning that he may present as a vulnerable prisoner because this is his first sentence of imprisonment and English is not his first language.
91 MR THOMAS: Yes, Your Honour.
92 HIS HONOUR: Mr Thomas, will you be seeing your client in custody after I leave the Bench?
93 MR THOMAS: I can.
94 HIS HONOUR: Or will you or your instructor be speaking to him?
95 MR THOMAS: We'll speak - we'd prefer to speak him. We'd prefer to speak with the interpreter - - -
96 HIS HONOUR: All right.
97 MR THOMAS: - - - organised.
98 HIS HONOUR: All right.
99 MR THOMAS: But if perhaps he can remain for a very short period of time, - - -
100 HIS HONOUR: Yes, all right.
101 MR THOMAS: - - - with the interpreter still involved.
102 HIS HONOUR: Yes I will certainly allow that.
103 MR THOMAS: Thank you, Your Honour.
104 HIS HONOUR: That won't be in circumstances of total confidentiality as at least one of my staff will need to be present.
105 MR THOMAS: Indeed.
HIS HONOUR: But I will allow that. I will address this to both counsel, are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons?
106 MR THOMAS: No, Your Honour.
107 HIS HONOUR: Very well, adjourn the court sine die please Mr Tipstaff.
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