Director of Public Prosecutions v Truong

[2023] VCC 1693

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

          Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-00079

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAI SO TRUONG

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JUDGE:	HIS HONOUR JUDGE GEORGIOU
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2023
DATE OF SENTENCE:	14 September 2023
CASE MAY BE CITED AS:	DPP v Truong
MEDIUM NEUTRAL CITATION:	[2023] VCC 1693

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Pleas of guilty at sentence indication - cultivating cannabis in a quantity not less than the commercial quantity – theft of electricity - sophisticated hydroponic growing system - electrical bypass system – gambling addiction – no prior convictions – high moral culpability – co-accused – very good prospects of rehabilitation

Legislation Cited:           Sentencing Act1991

Cases Cited:                   Latina v The Queen [2015] VSCA 102; R v Doran [2005] VSCA 271

Sentence:  Four years imprisonment with a non-parole period of 28 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms O. Ventura	Office of Public Prosecutions
For the Accused	Ms A. Sharpley	Giorgianni & Liang Lawyers

HIS HONOUR:

1Hai So Truong, you have pleaded guilty to a single charge of cultivating cannabis in a quantity not less than the commercial quantity applicable to that drug and to a rolled-up charge of theft of electricity.

2The circumstances of your offending are set out in the Prosecution Opening for Plea, Exhibit P1.  That summary was not disputed by you and will form the basis upon which I will sentence.

3In May 2021 police investigators commenced an operation in respect to reported electrical faults and power usage at the following addresses:

(a)  Centre Road, Oakleigh South, also referred to as Property No.1;

(b)  Allambi Court, Clarinda, Property 2; and

(c)  Clayton Road, Clayton, Property 3.

4In June 2021 police investigators also commenced an operation in response to similar reports of electrical faults and power usage at Warragul Road, Malvern East, Property 4.

5Search warrants were executed at each of those addresses and cannabis was located and seized at three of the properties, being Properties 1, 3 and 4.  I will deal with each property separately in the order they appear in the prosecution opening.

6On 5 June 2021 United Energy workers attended at Warragul Road, Malvern East, Property no.4, due to abnormal power usage being detected. 
On arrival they saw two males they describe as being of “Asian appearance” attempting to divert power to the property.  On 7 June 2021 investigators from Prahran Divisional Response Unit conducted surveillance at that address. 
At 9.30 am they walked around the property and observed reflective window film on the windows and a strong smell of cannabis coming from the rear of the property.

7At approximately 11.57 am the investigators saw your co-offender, Pha Van Tran's Honda sedan arrive.  Two males were seen getting out of the car and commenced to move boxes between the house and car.  Police estimated the age of both males to be approximately 50 years.  At approximately 2.44 pm police saw your co-offender, Hu Tran's vehicle, a white Toyota sedan, attend the vicinity of the address.  The driver was described as having short, straight, black hair and of Asian appearance, in his early 30s.  At 3.55 pm investigators executed a search warrant and located a sophisticated hydroponic growing system.  An electrical bypass was also located, stealing electricity.

8On 19 May 2021 investigators commenced surveillance at Centre Road, Oakleigh, Property 1.  They saw a blue BMW parked on the front lawn with no registration plates affixed.  On 1 June 2021 investigators returned to the property and saw that the BMW had been moved into the driveway and was bearing registration plates ending in 7DK. Enquiries with VicRoads identified the car as being registered to you.

9At approximately 11.45 am on 14 June 2021 investigators saw you and your two co-offenders at the property loading items into two vehicles parked in the driveway.  The first vehicle was an Audi sedan, registration ending in 2KJ, registered to you.  A second vehicle, a Hyundai van, registration ending in 304, was registered to your co-offender, Hu Tran.  At approximately 11.50 am that day the two vehicles left the address.  Mr Tran's van was intercepted and a search resulted in equipment and material being located, consistent with those ordinarily found in cannabis crop houses.

10Mr Tran told police he was a rubbish man and was not aware of the contents.  He was arrested and taken to the Oakleigh police station to be interviewed.

11At approximately 5.45 pm that day police executed a search warrant at Property 1.  Located at that address were several items, including 32 cannabis plants. 

12The BMW key you were in possession of accessed the blue BMW parked at that address.  In the vehicle police located documentation showing the car was registered to you.  The house keys located in your possession were able to access the front security door.  Upon execution of the search warrant police investigators found a sophisticated hydroponic growing system.  Property located and seized at that address included: an electrical bypass; an Optus mobile phone; 32 cannabis plants of varying sizes; a significant quantity of harvested cannabis; several facemasks and respirators; several latex gloves; several gardening gloves; lights and light fittings; various clothing; and paperwork in the name of Mr Wong.

13The electrical bypass used stolen electricity to grow the cannabis plants.  On
3 June 2021 United Energy workers attended at Allambi Court, Clarinda, Property 2, to investigate abnormal power usage.  They discovered an electrical bypass system had been installed.  At approximately 1 pm on
14 June 2021 police investigators saw you and co-offender, Pha Tran, arrive at that address in your Audi sedan.  This was after you had been seen earlier that day at Centre Road, Oakleigh, Property 1, loading items into the car with Hu Tran.  You and Pha Tran were again seen moving items between the house and vehicle.  You both then left the address in your Audi, whereupon you were intercepted and arrested.  I should note here that although the prosecution plea opening, Exhibit P1, at paragraphs 35 to 38, suggest that Hu Tran was also present and intercepted, the prosecution clarified this in an email acknowledging that Mr Tran was not present at the Allambi Court property, he having been earlier arrested at around 11.50 am, as I earlier mentioned.

14You were found in possession of two mobile phones, multiple sets of keys, including a BMW key, a set of house keys and a fake Victorian driver's licence in the name of Hai Truong.  Pha Tran was found in possession of $2,915 in cash and a mobile phone with two SIM cards.  You were both conveyed to the Oakleigh police station for interview.  You gave permission for the police to search the residence and your car.  Police did not find any cannabis at
Property 2.  However, in the shed at the back of the garden police located several items consistent with those used to set up a hydroponic crop house.

15At approximately 10.14 pm that day, police executed a search warrant at your Waterways residential address, which is occupied by your ex-wife and children.  Police were told that you infrequently reside at that address, having stayed there most recently two days earlier.  Police were led to your bedroom
and found documentary evidence linking you to both Centre Road, Oakleigh South and Allambi Court, Clarinda.  That is, Properties 1 and 2.

16On 15 June 2021, while at the Moorabbin police station awaiting a court hearing, you told police custody officers that you wished to speak to a police officer.  Sergeant Dean Kolovos came and spoke to you.  You told him there was a cannabis grow house situated at Clayton Road, Clayton, that being Property 3.

17On 16 June 2021 police investigators executed a search warrant at that address.  You had the keys to that property.  Upon execution of the search warrant police located and seized several items including 44 cannabis plants.  A forensic examination of the house resulted in evidence linking you and
Pha Tran to that address.  Your fingerprints were found on several locations in two rooms.  Pha Tran's fingerprints were found on the glass of a wardrobe in Room 3.  An electrical bypass system was also in operation, meaning that the electricity used to grow the plants was not paid for and stolen.

18Police investigation revealed that you leased each of the properties, utilising numerous aliases and false documents. Optus telephone documents found at your address showed that the telephone number 0412 936 148 was used by you when each of the properties were leased.  Police investigation also showed that on your application to lease each of the properties, you doctored several documents, including bills, pay slips and bank slips. To secure each of the properties, you provided a copy of your heavy rigid driver's licence in support of your applications but altered the name and address in respect of two applications.  A false licence number was also provided in respect to the leases.  You did not, however, change your date of birth and photograph.  You also altered certain passport details in support of the lease applications but failed to alter your photograph and certain other identifying features.

19Westpac Bank statements and several reference letters from employees of your former business were provided in support of the lease applications, with some alterations being made by you to reflect the alias details you were providing. 

20Three Bunnings receipts were located during the search of your residential premises on 14 June 2021.  The receipts show the purchase of items on 5 June that were used in the setup of cannabis crop houses.  CCTV recordings from Bunnings show you and Pha Tran purchasing the items and loading them into Hu Tran's van.

21On 14 June 2021 you were interviewed by police.  You denied involvement in the cultivation of cannabis.  Investigators subsequently requested an interview with you about involvement in Properties 3 and 4, however, you declined to be interviewed.

22The cannabis seized from within Mr Hu Tran's van weighed 34.11 kilograms with a further 3.93 kilograms of mixed material including cannabis.  Thirty-two cannabis plants weighing 47.7 kilograms were seized from Property 1.  An additional 18.65 kilograms of cannabis was found to be drying in another room of that house.  The total weight of cannabis seized from Property 1 was
66.35 kilograms.  At Property 3, 44 cannabis plants were seized, weighing a total of 117.18 kilograms.  At Property 4 a total of 170 cannabis plants were seized, having a combined weight of 46.51 kilograms.  The total weight of the cannabis plants seized from Properties 1, 3 and 4, and from the van of Hu Tran was 268.08 kilograms.

23Following your arrest, you were detained in custody for a period of 43 days before being released on bail on 27 July 2021.  You have never before been in trouble with the police.  On 27 January 2022 you attended at the Melbourne Magistrates' Court and you were committed for trial.  You entered a plea of not guilty to the charges you were then facing.  From the prosecution chronology it is clear there were a number of attempts to resolve the charges against you.

24Mr Nibbs, who appeared on behalf of the Director of Public Prosecutions, informed me with regard to the theft of electricity charge, a rolled up charge, that it was not possible to quantify the amount of the electricity stolen.  The charges against you were listed before me for a sentence indication hearing on 16 June 2023.  After hearing submissions from both counsel, I adjourned the hearing to 23 June 2023, at which time I indicated that should you plead to the proposed charges I would sentence you to a maximum term of imprisonment of four years.  Following that indication, you entered pleas of guilty to the charges on Indictment M11235801.1.

25I will turn now to your personal circumstances.  You were born in Saigon in 1961.  Your parents, both of whom are in their 90s and living in Australia, are of Chinese ethnicity.  You have two younger brothers.  You grew up in Saigon during the war years and were educated to the age of 14.  Your education ceased in 1975 with the fall of Saigon to the communist regime.  You instructed your counsel that life for you became particularly difficult from that time.  Between the ages of 14 and 16 you worked at a government operated factory.  At the age of 16 you fled Vietnam with an uncle and travelled with him to Cambodia.  You spent the next two years in a Cambodian refugee camp before going to Thailand, where you spent a further two years in a Thai refugee camp.  Because you were fluent in a number of different languages you obtained some work in the Thai camp as an interpreter.

26After two years in that camp, you were accepted for resettlement in Canada as a refugee.  In 1987 you travelled to Australia to visit persons whom you met in the refugee camps, one of whom you would later marry.  You remained in Australia, having married, and were granted citizenship in approximately 1989.  You worked hard during your time in Australia, mostly in factories.  In 1989 you sponsored your immediate family in Vietnam to Australia.  You and your now ex-wife have three children, all born in Australia.

27In 1993 you and a friend set up a business that produced plastic containers for take-away food venues.  The business in its early years was successful, principally because of your hard work.  You were able to achieve financial stability for your family, purchase your own home and you sent your children to private schools.  Regrettably, the early success of your business was not sustained as you were not able to adapt to sustainable alternatives to plastic.  You took out a number of business and personal loans to try and keep the business viable.  At around the same time your marriage was beginning to fail.

28The pressures of a heavy workload, business difficulties and marriage problems took their toll on you.  As a result, you turned to gambling, which soon turned into an addiction.  It is against that background that you committed these offences.  Mr Kevin Chan, therapeutic counsellor with Gambler's Help, EACH Community Health Service, writes that you contacted Gambler's Help in September 2021 and have maintained regular attendance with him up to the date of his reference, 13 June 2023.

29Mr Chan states that you, as a first generation immigrant, strove to provide your family with a fulfilling lifestyle and stability.  You told him you worked between jobs and would only have four to six hours of sleep most days.  You would begin your day by making deliveries of your products to the various shops at sunrise.  You would then return to the factory to operate the production until evening.  Working such hours made it difficult for you to interact with your children. 

30You reported first attending pokies venues for breaks in the late 1990s because they were the only venues open late at night for coffee, food, and entertainment.  You became aware that your gambling had become an addiction when you started to gamble more than you could afford.

31Like many gamblers, you began to borrow money to gamble in order to chase your losses.  You reported feeling ashamed at what you were doing and so did not consult others for help.  However, you are now obtaining the counselling you need from Mr Chan.  You reported having maintained gambling abstinence and you are committed to the treatment plan goals that were set in March 2022.  It is your hope that you will eventually work in peer support at Gambler's Help to use your own experience to support others who need help.  A report from Melanie Marsh, financial counsellor, confirms that you sought financial counselling assistance from between 8 October 2021 to 10 February 2023.
Ms Marsh is also associated with EACH Financial Counselling.

32A number of references were provided that do not acknowledge the offences with which you are charge.  As I informed your counsel, Ms Sharpley, I do not propose to place much weight upon them.  However, a reference from your son, Aaron, was tendered.  Your son was present at court during the plea hearing.  He speaks very highly of you and the sacrifices you made through work to ensure a good home and education for your children, and a home for your parents.  He states that you devoted most of your waking hours to work to achieve those objectives.  As your business started to suffer because you were unable to innovate to more sustainable alternatives, your son states that you spent more time at work, which put a strain on your marriage.  Your wife filed for divorce in 2020, which added to the stress you were under.  Your son speaks of your remorse and willingness to take responsibility for your actions.

33Also filed on your behalf is confirmation that since 21 September 2021 you have been employed as a forklift driver on a permanent, full-time basis.  You are described as a friendly and hard worker.

34Ms Sharpley, in written and oral submissions, conceded that your offending was serious having regard to the total number of plants and weight cultivated at several properties across Melbourne.  Ms Sharpley did not dispute the prosecution's submission that you were at the upper end of the hierarchy.  In mitigation of penalty Ms Sharpley relied principally upon the following matters:  your pleas of guilty, especially at a time when the court is dealing with a backlog of cases resulting from the COVID pandemic; your cooperation with the authorities; your prospects of rehabilitation, which she described as excellent; that you have never before nor since been in any trouble with the police; you voluntarily sought assistance in relation to your gambling and financial problems; your difficult early life and experiences in Vietnam, including your time as a refugee; the context in which the offending occurred; and your voluntary disclosure of the cannabis at the Clayton Road property.

35Since the sentence indication hearing I was informed that your father has been admitted to hospital with a chest infection and is in intensive care and that that is a matter of great concern to you.  You have also produced a positive result under the National Bowel Screening Program and further testing is required.  Ms Sharpley did not suggest that you would not be able to receive appropriate testing or treatment in custody.  Ms Sharpley also advised that you have continued to see Mr Chan with your last appointment with him being
on 8 September.

36Mr Nibbs submitted that your offending was serious and your role in this relatively sophisticated operation was at the upper end.  He highlighted the fact that it was you who obtained the leases on each of the properties, provided false details in order to secure those leases, and that there was clear planning and premeditation involved in your offending.  The sole purpose in obtaining those leased premises, he submitted, was to grow the cannabis.  Mr Nibbs also pointed to the fact that the quantity cultivated was significant, exceeding a large commercial quantity.

37The offences with which you are charged are serious offences.  Your counsel did not suggest otherwise.  Cultivating cannabis in not less than a commercial quantity has a maximum penalty of 25 years' imprisonment.  Theft of electricity has a maximum penalty of 10 years' imprisonment.  Your offending is a

serious instance of both offences.  You cultivated some 246 cannabis plants at three properties, namely:  at Warragul Road, Malvern East;
Centre Road, Oakleigh South; and Clayton Road, Clayton.  The combined weight of the cannabis you cultivated, including that found in the van, namely 268.08 kilograms, exceeded the large commercial quantity of cannabis which by weight is 250 kilograms.  A commercial quantity of cannabis by weight is 25 kilograms and by the number of plants is 100.  The quantity of cannabis you cultivated by weight exceeded the commercial quantity by more than 10 times, or 2.46 times the number of plants making up a commercial quantity.  The theft of electricity is a rolled-up count, comprising theft of electricity from three separate premises.

38I have viewed the photographs contained in the depositional material and they show typical hydroponic systems in operation at the properties located at which cannabis was located.  You do not dispute that you were, to use the learned prosecutor's words, at the upper end of the apex.  You were actively involved in the cultivation, as is evident from the prosecution opening summary.  In addition to being seen at several of the properties and at Bunnings on
5 June 2021, it was you who leased the four properties, using aliases and fraudulent documents to do so.  I accept Mr Nibbs' submission that there was planning and premeditation involved in your offending.  It was also relatively sophisticated with the use of aliases and false documents.

39I was not informed of the dollar value of the quantity of cannabis plant material.  However, given its scale it was clearly potentially a very lucrative enterprise.  Your moral culpability is high.  Your reason for involvement in the cultivation and theft of electricity, it was submitted, was to pay your gambling debts.  I take into account, as a matter that weighs somewhat in your favour, the difficult circumstances you found yourself in with a failing business, failing marriage and your subsequent resort to gambling as a means of alleviating some of your stresses.

40In sentencing you I also have regard to the fact that the period of your offending as set out in Charge 1 is nine days, and Charge 2, some four months.

41Your co-offenders played significantly lesser roles.  Pha Tran was committed for trial on a charge of cultivating cannabis in respect to two of the properties. 
I was informed that he failed to appear when his case was last before the court.  Hu Tran pleaded guilty to a charge of possessing cannabis.  On appeal he was fined the sum of $800.  Neither counsel suggested that the principle of parity should apply in your case. 

42You have pleaded guilty to the charges.  You did so after a sentence indication hearing. I accept that your pleas of guilty are of utilitarian benefit and have added value because of the impact of the COVID-19 pandemic upon this court's ability to list matters for trial.  Your pleas of guilty have spared the court and the community the cost and time of a trial.  Witnesses have been spared from having to give evidence at a trial.  However, you do not get the benefit of a plea of guilty being entered at the earliest possible time.

43

Your counsel submitted that you are remorseful for your conduct.  I note that during your interview with police you denied your offending.  I am prepared to accept that your pleas of guilty reflect some belated remorse on your part. 

I also accept the expressions of remorse you made to your son and to Mr Chan. 

44

A significant factor weighing in mitigation of penalty is your voluntary disclosure to police concerning the cultivation of cannabis at Clayton Road, Clayton.  The quantity of cannabis located at that address of 117.18 kilograms represents approximately 44 per cent of the total weight of cannabis seized. 

45In Latina v The Queen the Court stated:

'If admissions are made as to facts concerning the commission of that offence that are unknown by the investigators which materially elevate the gravity of the offence, such voluntary disclosures entitle the offender to a discount on the sentence that would otherwise be imposed for the offence of that gravity'.

46

Such a discount is often referred to as a Doran discount.  In Doran,

Buchanan JA stated:

'Most importantly, however, the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes.  In my view, the consequences of the appellant's admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions.  I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions'.

47Although I would not characterise your prospects of rehabilitation as excellent, I do accept that they are very good provided you do not relapse into gambling.  You are a person of otherwise good character and given my finding as to your prospects for rehabilitation, the need for specific deterrence will be given much less weight than what would otherwise be the case. 

48You have demonstrated a high work ethic. You have undertaken appropriate counselling on a voluntary basis and you have the support of your three children.  These are highly relevant considerations in my assessment of the need for specific deterrence and protection of the community.

49In sentencing you I must give full effect to the principle of general deterrence.  It is a significant consideration.  Persons who are minded to cultivate cannabis in commercial quantities should understand that they risk stern punishment, often gaol sentences measured in years.  I am also required to manifest the community's denunciation of your offending through the sentence I impose. 

50I am required to have regard to current sentencing practice in determining an appropriate and just sentence.  I have had regard to a number of sentencing decisions of the Court of Appeal and of this Court for the offences of cultivating a commercial quantity of cannabis and theft where that theft involved theft of electricity used in grow houses.

51On the charge of cultivating a commercial quantity of cannabis you are convicted and sentenced to four years' imprisonment. 

52On the rolled-up charge of theft of electricity you are convicted and sentenced to nine months' imprisonment. 

53Having regard to the principle of totality and the relationship between the cultivation and theft charges, the sentence imposed on Charge 2 is to be served wholly concurrently with the sentence imposed on Charge 1.

54I set a non-parole period of 28 months' imprisonment.  In my opinion, this is the minimum period that justice requires you to serve having regard to the gravity of your offending, your prospects of rehabilitation, the absence of previous convictions and subsequent convictions, that this is your first time in custody, and your voluntary disclosure of the cultivation at Property 3.

55Pursuant to s18 of the Sentencing Act the period of pre-sentence detention to be reckoned as already served under the sentence is 45 days not including today.

56Pursuant to s6AAA of the Sentencing Act, had you not pleaded guilty to the charges the sentence I would otherwise have imposed is one of five years' imprisonment with a three year and four months' non-parole period.

57I will make the compensation, forfeiture and disposal orders that have been sought by the prosecution and to which Mr Truong did not oppose. 

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