Director of Public Prosecutions v Troung

[2014] VCC 2028

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00619

DIRECTOR OF PUBLIC PROSECUTIONS

v

THI VAN TROUNG

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2014
DATE OF SENTENCE:	17 November 2014
CASE MAY BE CITED AS:	DPP v TROUNG
MEDIUM NEUTRAL CITATION:	[2014] VCC 2028

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Gleeson
For the Accused	Ms B Yildiz

HIS HONOUR:

1Thi Van Troung, on 13 November 2014, you pleaded guilty to one charge of cultivating a narcotic plant Cannabis L in not less than a commercial quantity, between 30 June 2013 and 30 September 2013.  This charge has a maximum penalty of 25 years imprisonment. 

The Offending

2The offence concerns the cultivation of a commercial quantity of Cannabis L over a 13 week period between 30 June 2013 and 30 September 2013 at the offender's home at 313 Centenary Avenue in Melton West.  You had leased the property since June 2013 at the rate of $650 cash per fortnight.

Background

3At 10.15 am on Monday 30 September 2013, police attended the above address to conduct enquiries about an unrelated matter.  They knocked on the door and there was no response.  Police observed that there were two cars parked in the garage.  One of them was a Toyota Hylux registered to you.  The police also observed potting mix, cut plaster sheeting and pots.  The window curtains were all drawn.  The police also observed an irrigation system on one side of the house.

4The police observed you and your husband exit the premises via a rear sliding door.  Your husband identified himself, whilst you indicated that you did not speak English.  The police noticed that you and your husband smelled of cannabis.  You and your husband were arrested.  You and your husband were arrested. Your husband was transported to the Melton Police Station whilst you changed your clothing inside the house.

5The police explained the arrest, and again administered a caution to you, with the assistance of a telephone interpreter service.  You were then transported to Melton Police Station yourself.  The police executed a search warrant pursuant to Drugs Poisons and Controlled Substances Act at that house. 

6In four separate rooms in the house, the police located the total of 102 plants, including 29 branch stems which had been cut from their roots.  The plants were subsequently examined by a botanist and found to be Cannabis L.  The weight of the plants was found to be 42.86 kilograms.  Fifty-one immature plants had been growing for approximately three to five weeks at the time of the seizure.  The remaining plants had been growing for approximately 12 to 14 weeks at the time of seizure.

7The commercial quantity of Cannabis L is 25 kilograms or 100 plants pursuant to the provision of the Drug Poisons and Controlled Substances Act.  Also found at the premises were light shrouds with globes, electrical ballasts, timers and power boards were installed in the grow rooms.  An electrical bypass had been installed.

8The four photographs in Exhibit B clearly show the extent of the cannabis crop at the time of the police seizure.  The weight of the cannabis crop is approximately 1.7 times the minimum amount for commercial quantity for this drug cannabis L. 

Record of Interview

9During the separate records of interview, you and your husband each provided "no comment" responses to the allegations, that was your right.  You and your husband were both granted bail by police to attend the Sunshine Magistrates' Court on 22 January 2014.  Each of those cases was listed for contested committal hearing on 7 April 2014. 

10At that committal hearing, the botanist and the informant were called to give evidence, and were cross-examined.  You were committed at that time, which you had indicated an intention to plead guilty to both cultivation and possession of cannabis simpliciter, but not guilty to the balance of the charges, including the charge you have now pleaded guilty to.

11Upon your application, her Honour Judge Cotterell gave a sentencing indication on 22 May 2014.  The matter did resolve shortly after that.  On 11 September 2014, you pleaded guilty to cultivating a commercial quantity of cannabis.  The prosecution against your husband at that time was discontinued.

12On 13 November 2014, you were arraigned on the present indictment, as indicated earlier, and also admitted prior criminal history.  It was put on your behalf that your role was a menial role, amounting to being a house sitter.  The purpose of your attendance at the property was to give the appearance of a normal suburban house.  Your involvement whilst minor in nature, was necessary for the crop to flourish and remain undetected.  At the time of your arrest, some of the crop had been harvested.

Personal Circumstances

13At the time of the offence you were 46 years old, you are now 47 years old.  You have admitted a prior criminal history.  The most recent offence was an appearance at Melbourne Magistrates' Court on 21 December 2009. 

14On that occasion, you were sentenced to four months imprisonment, wholly suspended for a period of 18 months for the charges of trafficking heroin and dealing in property suspected of being the processes of crime.

15Mr Gleeson on your behalf tendered Exhibit 1, which was a police summary of that offending, and the prior criminal history of your co-accused on that occasion.  The submission made by Mr Gleeson was that you were a minor player in the heroin trafficking, and your co-accused had prior convictions, and had served terms of imprisonment for heroin trafficking prior to that offending.

16You have been given an opportunity in the past by the criminal justice system to avoid incarceration for drug offending, but you have returned to offend in this instance.  You also admitted a court appearance at Melbourne Magistrates' Court on 7 February 2000 for possessing proceeds of crime, and on that occasion were placed on an undertaking for 18 months.

17I have been told a little of your personal circumstances.  You are the fifth child of seven siblings.  You were raised in Min Hai in South Vietnam.  You came from a poor family.  Your father was a fisherman and your mother was busy raising the seven children. 

18You were educated to the equivalent of Grade 2 at the age of seven.  You are barely literate in Vietnamese and have no understanding of the English language, either written or spoken.  At age 18 you were married.  At 21 years old you escaped Vietnam with your husband and two young children.  You survived a period of time in a refugee camp in Malaysia for some 18 months before arriving in Australia in approximately 1990.

19You originally lived in Sydney, and then moved to Melbourne to live permanently in 2008.  Between 2008 and 2010, you regularly attended Crown Casino and became indebted to “loan sharks”.  Your indebtedness amounted to the sum of $30,000.  It was submitted that you were threatened and offered the job as a house sitter to pay off your debt.  I understand that you still occasionally attend at Crown Casino.  Your gambling problem has still got some influence over your decision making and behaviour. 

20Up to the time of your most recent arraignment, you had lived with your husband and two of your adult children.  Your husband is on the disability pension due to mental ill health.  You are a recipient of a carers pension, as you look after your husband.  You have never had paid employment whilst in Australia.

21On 14 October 2014 you underwent a hysterectomy surgery.  Mr Cummins, in Exhibit 2, has diagnosed you as suffering from chronic adjustment disorder with mixed anxiety and depression.  Mr Cummins states this condition is caused by a combination of your husband's compromised mental health, your more recent understanding of the serious nature of your offending in this case, and the realisation that you will be incarcerated for it.  Also, you have a medical problem requiring surgery, and the indebtedness to the “loan sharks”.

Sentencing Considerations 

22I accept that you have pleaded guilty at a relatively early stage in the prosecution of this matter.  I accept that you have pleaded guilty at a relatively early stage in the prosecution of this matter.  The committal was conducted for the limited purpose of the level of your involvement, and the actual growing of the cannabis crop.

23Your plea of guilty has a utilitarian value for allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.

24Your plea allows for the preservation in court and police resources to deal with other matters.  Your plea indicates public confidence in the legal process, set up to protect the community.  Your plea is also a clear acknowledgement by you that accept your responsibility for your behaviour in this case.

25Your plea also recognise you are willing to facilitate the course of justice in the community, and for that, you are to be commended.  Your plea has removed the need for two trials.  One for you, and one for your husband.  I accept your plea of guilty to the charge demonstrates your remorse.

26The basic purpose for the court to impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community.

27In sentencing you, I must have regard for a range of factors such as the seriousness of your offence, your culpability for it and your personal circumstances.  I am required to balance the interest of the community and denounce your criminal conduct, where the interest of the community, in seeking to ensure as far as possible, you are an offender are rehabilitated and reintegrated into society.

28In this case, you have been involved in the house sitting role of a crop of cannabis which was 1.7 times the commercial quantity for that drug.  The maximum penalty for the offence is 25 years imprisonment.  This maximum penalty which is fixed by Parliament unambiguously demonstrates how seriously the community views this offending conduct.

29General deterrence is an important consideration in sentencing for this type of offence.  In your case, specific deterrence is also a consideration because of your prior court appearance for trafficking in heroin.  On that occasion, you were afforded some leniency in the manner in which you served your term of imprisonment.  You were punished by a four month, wholly suspended sentence.

30I accept that your role in the growing of the cannabis crop, was as a house sitter.  Although your role is minor, it is an integral part of the overall enterprise of cultivation of a commercial quantity of cannabis.  I accept that you have fallen into this offending, in an attempt to pay off “loan sharks” for your gambling debts.  This is an explanation for your offending, but does not excuse it.

31Your gambling problem is not of a level that you have no control over it to the extent that you impulsively engaged in gambling.  I also accept that you are isolated in the community by your lack of English language and education.  Your life has been limited to the care of your children and your husband.  Your husband's compromised mental health and alcoholism have resulted in violence being visited upon you by him.

32It was submitted that the incarceration of you would create hardship in two ways.  First, there would be hardship on your husband and children because you would not be there to care for them.  Secondly, there would be hardship for you due to your chronic gynaecological problems which recently resulted in surgery.

33I accept that imprisonment of you will bring hardship to both your family, and to you personally.  But the level of that hardship does not amount to exceptional hardship, requiring mercy to be exercised in this sentence. The only appropriate sentence in this case is a term of imprisonment. 

34Would you stand please. On Charge 1, you are convicted and sentenced to two years imprisonment. Pursuant to s.27 of the Sentencing Act, 12 months of that sentence will be suspended for an operational period of two years from this day.

35The effect of that sentence is that you serve 12 months imprisonment now, and when released, you have 12 months imprisonment suspended, and in effect hanging over your head for a period of 12 months. 

36If you offend in that 12 months, that is after your release, you will come back to this court, and it would almost be certain that you go back into prison for the remaining 12 months.

37I declare that you have served a total of four days pre-sentence detention, not counting today. Those days will be deducted administratively. Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to three years imprisonment, with a two year non-parole period.

38I have made the disposal order sought by the prosecution, and I also make the forensic sample order sought by the prosecution.  Ms Troung, in relation to the forensic sample order, the authorities have the power to take from you a swab from inside your mouth to obtain that sample, or a blood sample if necessary, and that the authorities have the power to use reasonable force to do so.  Do you understand that?  Thank you.  Is there anything further?

39MR GLEESON:  No, Your Honour.

40MS YILDIZ:  No, Your Honour.

41HIS HONOUR:  Thank you.  I will hand down those signed orders in respect of disposal and also forensic sample.  Thank you.

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