Director of Public Prosecutions v Truong

[2015] VCC 1611

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00210

DIRECTOR OF PUBLIC PROSECUTIONS

v

AN QUOC TRUONG

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JUDGE:	JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2015, 30 October 2015
DATE OF SENTENCE:	30 October 2015
CASE MAY BE CITED AS:	DPP v Truong
MEDIUM NEUTRAL CITATION:	[2015] VCC 1611

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Henderson	Office of Public Prosecutions
For the Offender	Mr L. Richter	Stary Norton Halphen

HIS HONOUR: 

1An Quoc Truong, you have pleaded guilty to one charge of cultivation of a commercial quantity of a narcotic plant contrary to s.72A of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for the offence is 25 years' imprisonment. You have also pleaded guilty to one charge of theft contrary to s.74 of the Crimes Act 1958.  The maximum penalty for that offence is ten years' imprisonment.

2You pleaded guilty at committal mention, and I have taken your early plea into account in your favour in mitigation of sentence.  You have admitted an extensive criminal history for offences of drug use and possession.  You also have a number of prior convictions for trafficking heroin.

3Furthermore, on 15 July 2008 in the County Court at Melbourne, you were convicted of importing a marketable quantity of a border controlled drug and sentenced to four years' imprisonment with a non-parole period of two years.  The drug concerned 162.3 grams of pure heroin, imported personally by you from Vietnam.

4By reason of this conviction, you are to be sentenced as a serious drug offender for the purposes of Part 2A of the Sentencing Act1991.  Accordingly, the principal purpose for which the sentence is to be imposed on Charge 1 is the protection of the community, but the prosecution do not submit I should impose a disproportionate sentence to achieve this purpose, and I have not done so.

5A prosecution opening was read to the court and tendered in evidence, and your offending may be summarised as follows - 

6On 7 October 2014, police executed a search warrant at premises located at 14 Shetland Drive Kings Park.  You were present and residing at the premises.  Police located 77 cannabis plants weighing 47.5 kilograms growing in three rooms in the house.  An electrical bypass had been installed and between 7 July 2014 and 7 October 2014, $10,039.79 in electricity was stolen from Origin Energy Ltd.

7During the course of an interview with investigating police, you stated you cultivated the plants in exchange for other drugs, presumably heroin, to feed your longstanding drug addiction.

8Offending of this type is prevalent and serious.  Cannabis, like all illegal drugs of dependence, causes incalculable damage to our society, and the sentence I impose must be calculated to deter you and others from offending in this manner.  Specific deterrence is also an important sentencing consideration in your case, and you must also be punished for what you have done.

9

I now turn to your personal circumstances.  You were born in Vietnam on

2 February 1972 and are now aged 43.  Your family were farmers in that country, and you were educated to year four level before commencing work on the farm when you were still a boy.  You are one of seven children.  You are illiterate and have a very poor command of English.

10You arrived in Australia with your family in 1989.  Upon your arrival, you undertook some English classes but found the language too difficult.  You have worked in factories and fruit picking, but since 1996 you have not been involved in any steady, paid employment.

11You are currently married and have one daughter aged 20 from a previous de facto relationship.  You have a longstanding history of extreme drug addiction in respect of heroin, and you also abuse cannabis.

12

I have received in evidence the following psychological reports concerning you.  A report of Mr Bernard Healy dated 5 July 2008; a report of Mr Stephen Gault dated 6 April 2015; and an ARBIAS neuropsychological report of

Dr Lauren Fitzpatrick, dated 16 October 2015.

13By reference to this evidence, I accept that you suffer from cognitive impairment described as a mild intellectual disability.  You function in the extremely low to borderline range.  I also accept that you suffer from depression and your longstanding drug addiction requires ongoing, intensive treatment.

14Your intellectual disability and psychological condition means that the burden of imprisonment in your case is more onerous.  Furthermore, your offending must also be considered in the context of your intellectual disability and psychological condition, and for this reason the principles of general deterrence and specific deterrence ought be moderated in your case.

15Any assessment of your prospects of rehabilitation must be guarded, but I accept that your rehabilitation will be facilitated by your supervision on parole, if it is granted. 

16In the result, the sentence of the court is as follows - 

17In relation to the charge of cultivation of a commercial quantity of a narcotic plant, you are convicted and sentenced to be imprisoned for two years.

18In relation to the charge of theft, you are convicted and sentenced to be imprisoned for six months. 

19I order that the sentence imposed on the charge of theft be served cumulatively on the charge of cultivating a commercial quantity of a narcotic plant. 

20This makes for a total effective term of imprisonment of two years and six months.

21I order that you serve 14 months before becoming eligible for release on parole. 

22I declare that you have served 388 days by way of presentence detention, not including today.

23But for your plea of guilty, I would have imposed a total effective term of imprisonment of three years, and fixed a non-parole period of two years.

24I have made the ancillary orders sought by the prosecution.  Are there any further orders required?

25MR HENDERSON:  No, Your Honour.

26HIS HONOUR:  Yes, thank you.  You will explain the effect of the sentence to your client, Mr Richter?

27MR RICHTER:  I certainly will.

28HIS HONOUR:  Thank you.  My associate has those orders, Mr Henderson.

29MR HENDERSON:  Thank you, Your Honour.

30HIS HONOUR:  So we will adjourn now until 10.30 on Monday.

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