Director of Public Prosecutions v Truong

[2015] VCC 630

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00431

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINH TRUONG

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 2015
DATE OF SENTENCE:	8 May 2015
CASE MAY BE CITED AS:	DPP v Truong
MEDIUM NEUTRAL CITATION:	[2015] VCC 630

REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: Cultivation commercial quantity of Cannabis L
Sentence: Total effective sentence of 15 months imprisonment with 149 days reckoned as time already served, non-parole period of 8 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar
For the Accused	Ms P. Chaya

HER HONOUR:

1Vinh Truong, you have pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant, namely cannabis L.  The maximum penalty for this offence is 25 years' imprisonment.  The offending occurred on 10 December 2014.  You are 49 years old and have no prior convictions.  Your matter was opened in detail by the prosecutor and I sentence you on the basis of the facts contained in the agreed prosecution opening which was tendered at the hearing. 

2On 10 December 2014 you were arrested as a result of an execution of a search warrant of a five bedroom house in Pascoe Vale where a total of 280 plants, weighing around 165 kilograms, were found to be growing hydroponically in the rooms of the house.  An additional 10.29 kilograms of cannabis leaf mixture was also found in the house.  The police also found the equipment that is usually found in these setups, including fans, light shades, heat lamps, transformers and so on.  You were located in a bungalow attached to the house.  Your girlfriend, Nga, was also present and was arrested. 

3You had been living in a shed separate to the main house for two weeks before your arrest.  You had met the owners of the house, Mr and Mrs Tam in a coffee shop in Deer Park and they offered you to stay at the house rent free in return for mowing the lawn and looking after the garden.  At first you did not realise what was in the house but after two days realised it was cannabis.  The Tams would come often to water the plants.  You were to be paid $700 a week but only received one payment from which was deducted the cost of food and the phone card they bought for you.  You slept in the shed and had your meals in the kitchen.  You swept the driveway and helped them carry cans into the house. 

4When questioned, you made full admissions and pleaded guilty at a committal mention on 18 March 2015.  You have spent 149 days in pre-sentence detention.  By way of background, I note that you are an unlawful non-citizen of Vietnamese background.  You have come from a very poor province of Vietnam and were raised by your single mother in poverty.  You were educated until halfway through Grade 6 and started work in fishing and farming.  You married and have three children, a son born in 1990 and daughters born in 1992 and 1994.  You have an older half-sister living in Australia. 

5Your daughters were in secondary school when you left them in Vietnam and came to Australia with your wife and son on a tourist visa in 2008, intending to work here for three months and return to Vietnam.  You all overstayed your visas.  You separated from your wife and worked all over Australia with your son as a fruit picker.  When work was plentiful, you would send money back to your daughters and were in constant phone contact with them. 

6It was during a break in the work when you had financial difficulties that you met the Tams.  You did not plan to stay at the crop house for long and planned to work with your son on another farm.  You have had no direct contact with your family since your arrest.  You have learnt that your daughters were in a car accident in April 2015 and are receiving some treatment for their mobility but do not know the extent of their injuries.  Your daughters are at university, one studying medicine, the other studying commerce.  Your mother lives in Vietnam and suffers from dementia. 

7I have taken into account the submissions made on your behalf by Ms Chaya.  You will be sentenced on the basis of your role being that of crop sitter only and I accept that you were not responsible for the establishment of the setup, nor even for the maintenance of the plants and that your role is therefore at the lower end of the spectrum, notwithstanding the large quantity of plants involved, and your offending was over a very short period, namely two weeks and that you told police that you had intended to leave the property as soon as you were able.

8General deterrence, denunciation and just punishment are relevant sentencing considerations here as the offence is a serious one.  However, I accept that specific deterrence is less relevant in your case because you regret your short involvement in this offending activity, have no priors and are at very low risk of reoffending. 

9I have taken into account the relevant mitigating circumstances.  Firstly, you entered a plea of guilty at an early stage and are entitled to a full discount in your sentence because of its utility in avoiding the state the expense and inconvenience of a trial and because you have thereby facilitated justice.  Second, I accept that you are remorseful for your conduct and concerned about the impact of your imprisonment upon your family in Vietnam.  Thirdly, I note that you have no prior convictions and no subsequent matters.  I accept that you have worked hard all your life to support your family and never worked before in any criminal enterprise.  Fourthly, I accept that you are the sole financial support for your two daughters in Vietnam and that a lengthy period of imprisonment would cause significant hardship.  Finally, I accept that you did not enter this country with the intention of committing this or any other drug offences and I am entitled to consider that you are socially isolated in Victoria with no family contact and due to your language difficulties and that undergoing a prison sentence is much harder for you than for others who have real connections to the Victorian community. 

10

Both parties indicated that it was appropriate in the circumstances of your case to impose a non-parole period in the event that you are sentenced to a term of imprisonment of not less than 12 months.  In relation to sentences to comparable cases, your counsel took me to the sentencing snapshots and to two other recent sentences handed down by this court in similar cases. 

Mr Truong, I will now sentence you.  Could you please stand?

11

On the charge of cultivating not less than a commercial quantity of cannabis L, you are convicted and sentenced to 15 months' imprisonment and I direct that you serve a period of eight months' imprisonment before becoming eligible for parole.  I make the declaration that you have already served 149 days pre-sentence detention and direct that this be recorded in the court's records.  I am obliged to make a declaration of the sentence I would have imposed if you had not pleaded guilty and I indicate  pursuant to s.6AAA of the

Sentencing Act

that but for your plea of guilty I would have imposed a term of imprisonment of three years with a non-parole period of two years.  Have we resolved the issue in relation to disposal orders?

12MS FALLAR:  Yes, Your Honour.  In relation to the disposal, if we can strike out in schedule - in the attached schedule item No.49, being the black wallet and amend item 50 from five mobile phones to two mobile phones and adding the words "belonging to Vo, V-o, Nga, N-g-a".

13HER HONOUR:  All right.  If you do that and initial it I will make the ‑ ‑ ‑

14MS FALLAR:  We will do that.  Thank you, Your Honour.

15HER HONOUR:  So I note therefore that there is no - are you happy with that?

16MS CHAYA:  Yes, Your Honour.

17HER HONOUR: That there is no objection to the disposal orders and forensic sample orders sought by the prosecution as amended and I make the orders pursuant to s.464ZF of the Crimes Act in relation to the retention of a forensic sample because having regard to the nature of the offending, I consider that it is in the interests of justice for the order to be made.  I will sign the disposal orders and the retention of forensic sample order.   While I do that, do you want to spent a bit of ‑ ‑ ‑

18MS CHAYA:  Yes.

19HER HONOUR:  ‑ ‑ ‑ time with your client?  Thank you.  Thank you.

20MS FALLAR:  Your Honour, can I just ‑ ‑ ‑

21HER HONOUR:  Yes.

22MS FALLAR:  ‑ ‑ ‑ get the copies of the disposal order so we can make the necessary amendments?

23HER HONOUR:  Of course.

24

MS FALLAR:  And may I seek for completeness the usual warning to

Mr Truong which is found in the last paragraph?

25HER HONOUR:  Yes.  Have you got a copy of the - yes, disposal?

26MS CHAYA:  Thank you for that time ‑ ‑ ‑

27HER HONOUR:  Before the interpreter leaves us, I just wanted to mention the forensic sample order warning.  I need to inform you, Mr Truong, that I am signing an order that requires you to undertake a forensic procedure for the taking of a scraping from the mouth and/or a blood sample until a sample of sufficient standard is obtained for the placement on the database.  I advise you that if at the time of the request for such a sample you do not consent for the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted.  Thank you, take a seat. 

28MS CHAYA:  Your Honour, may I raise if Madam Interpreter doesn't have another booking immediately after this one, if I can request her assistance by in seeing my client immediately after this hearing?

29HER HONOUR:  Absolutely.  Go ahead.  Thank you.  Did you want to talk to your client in court or afterwards downstairs?

30MS CHAYA:  Downstairs.  Thank you, Your Honour.

31HER HONOUR:  All right, thank you.