Director of Public Prosecutions v Truong

[2022] VCC 143

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00534

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUONG TRUONG

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2021
DATE OF SENTENCE:	15 February 2022
CASE MAY BE CITED AS:	DPP v Truong
MEDIUM NEUTRAL CITATION:	[2022] VCC 143

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Cultivation of a Narcotic Plant – not less than commercial   quantity – crop sitter – youthful offender.

Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Wyley            [2009] VSCA 17; Azzopardi v The Queen [2011] VSCA              372; R v Mills (1998) 4 VR 235; DPP v Nguyen [2010] VSCA 11; DPP v Duong [2010] VSCA 250; Tuan Doan v The Queen [2010] VSCA 250; Nguyen v The Queen [2017] VSCA 286.

Sentence:  Convicted and sentenced to two years and three months   imprisonment with a non-parole period of one year.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Crouch	Director of the Office of Public Prosecutions
For the Accused	Mr L. Gwynn	Paul Vale Criminal Law

HIS HONOUR:

1Huong Truong, on 16 November 2021 at the County Court of Melbourne, you pleaded guilty to the single charge of a cultivation of a narcotic plant in not less than the commercial quantity, on indictment No. L10786496.  This charge has a maximum penalty of 25 years' imprisonment. 

2The charge is a category two offence pursuant to the provisions of the Sentencing Act.

3Your plea hearing was adjourned to 31 January 2022.  At that time, you had served 12 days pre-sentence detention.  At the time of the sentence, your
pre-sentence detention today is 27 days, not including the day of sentence.  You have no prior criminal history.

The circumstances of your offending

4The prosecutor helpfully tendered a Summary of Prosecution Opening for Plea dated 8 December 2021.  It was Exhibit “A”.  Your counsel accepted that summary was fair and accurate.

5You have been charged for your role as a crop sitter at a substantial cannabis factory growing operation.  Your charges are limited to the day of your arrest. The cannabis factory operation was located in Campbellfield. 

6In 1997, Gianni Verrocchi built a factory on the land in Campbellfield.  In February 2017, Mr Verrocchi leased the factory to a Joe Mammone, for a period of three years and two months.  Mr Mammone operated a business known as Jobs by Joe in design and printing of signs and displays. 

7On 19 March 2020, Mr Mammone informed Mr Verrocchi that he was sub-letting the factory to a third party.  The lease was due to expire on 14 April 2020. 

8In the morning of 28 March 2020, Mr Verrocchi drove past the factory, and observed the gates were locked shut.  He was informed by the factory neighbours that the factory had not been opened for months. 

9At 6 pm on 28 March 2020, Mr Gianni Verrocchi, together with his brother attended at the factory.  The factory gates were open.  Mr Gianni Verrocchi attempted to open the factory door by using his key.  The locks to the factory had been changed.  The Verrocchi brothers heard movement inside the factory.  Mr Gianni Verrocchi rang the Broadmeadows police.

10After approximately five minutes, a man opened the fire door exit.  This man was later identified as yourself, was observed to be of Asian appearance, between five foot three and five foot seven and aged in his 20's.  You were wearing a khaki-coloured work shorts and a yellow hi-vis top. 

11Mr Gianni Verrocchi asked you to be let inside, as he was the owner of the factory.  However, you returned inside to call your boss without letting Mr Verrocchi inside.  As you returned inside the factory, you locked the door, preventing the Verrocchi brothers access to the factory. 

12Approximately two or three minutes later, you returned to the door and explained to Gianni Verrocchi was not allowed inside, until your boss had arrived at the factory, and that he was on his way.  At that time, Gianni and Tony Verrocchi and yourself moved into the carpark, as Gianni did not want you returning inside the factory. 

13Gianni and Tony Verrocchi then observed two other individuals, a male and a female both of Asian appearance, running for the gate, having exited the factory by getting down from a balcony, using the extension lead.  These two individuals then ran south along Freeman Street.  They were not intercepted by anyone.

14You then allowed Gianni Verrocchi to enter his factory.  Mr Verrocchi observed numerous cannabis plants which were obscured from street view by stacked cardboard boxes.  You tried to run away but the Verrocchi brothers prevented you from escaping by closing the factory gates.  The Verrocchi's again contacted triple zero.  The police attended at the factory at approximately 7 pm on 28 March 2020.  You were arrested.  The factory was secured as a crime scene.

15On 29 March 2020, the police executed a search warrant at the factory.  The search of the factory revealed that there were eight rooms made of plywood.  Each room contained cannabis plants at various stages of maturity.  An illegal electrical bypass had been installed.  There were also two containers inside the factory that housed cannabis plants.  The equipment in the factory included a hydroponic setup, lamps, exhaust fans, electrical cables; in short, this was a sophisticated cannabis growing operation. 

16The police located two 600 mil drinking bottles at the factory, and a rubber glove between rooms six and seven in the factory.  These items had your DNA on them described as extremely strong support for the proposition that it was your DNA on those items.  The examination analysis of the cannabis plants located at the factory revealed the following:

·Room one, there were 36 cannabis plants weighing 9 kilograms

·Room two, 36 plants of cannabis weighing 8.7 kilograms

·Room three, 36 plants of cannabis weighing 22.08 kilograms

·Room four, 36 plants of cannabis weighing 20.8 kilograms

·Room five, 32 plants of cannabis weighing 54.64 kilograms

·Room six, 26 plants of cannabis weighing 44.1 kilograms

·Room seven, 91 plants of cannabis weighing 10.34 kilograms

·Room eight, 183 plants of cannabis weighing 623.3 grams and two containers with 121 plants of cannabis weighing 176.6 grams.  Finally, a jug which had leafy stems of Cannabis L weighing 501.2 grams.

17In total there were 597 plants of Cannabis L that were located at the factory weighing a total of 170.96 kilograms.

18In a quantity-based sentencing regime, the number of plants and the weight of the plants reveal in my words a line of best fit, which is six times the minimum before commercial quantity for cultivating cannabis. 

19The prosecution accepted your role was as a crop sitter in the sense of tendering to the cannabis plants in the factory.  This was a large-scale sophisticated cannabis growing operation.

Your personal circumstances

20At the time of your offending, you were 20 years of age.  You are now 22 years of age.  You were born in Ho Chi Minh City in Vietnam.  You are the only child of your family. 

21In 2014, your parents separated.  You came with your father to Australia in 2014 on a tourist visa.  Your mother remained in Vietnam.  You have not seen your mother since 2014 but have maintained regular phone contact with her.

22Upon arrival in Australia, you went to Collingwood High school.  You remained at school to Year 10 level.  You struggled at school due to your limited English.  You have done further English course since leaving school.  You still have limited English and require the assistance of an interpreter for these court proceedings.

23After leaving school, you have worked in the hospitality industry, and up to the day of your arrest, you were working as a kitchenhand in Greenfields which is a premises in Brunswick.  You have lived with your father in a flat in Victoria Street in Abbotsford, both before your offending and whilst you have been on bail awaiting the finalisation of this prosecution. 

24You are presently on a bridging visa.  You have no prior criminal history, and no charges outstanding.  You have complied with your bail conditions for a period of almost two years.

Sentencing considerations

25The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation of you the prisoner, and the denunciation of your actions and the protection of the community. 

26I must have regard to the seriousness of the offence, your culpability for it, and your personal circumstances.  I am required to balance the interests of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure as far as possible, offenders such as yourself are rehabilitated, and reintegrated into society. 

27You are a relatively young offender.  You have no prior convictions either here  or in Vietnam.  As I said earlier, there are no outstanding charges against you.  This period of incarceration is your first time in custody.  That has been, as I said before, a period of 27 days pre-sentence detention, not including this day.

28I have taken into account your plea of guilty.  Your plea of guilty is in an early stage.  Your plea of guilty to this charge has utilitarian value to the community.  Your plea of guilty has saved the community the expense of court proceedings, including committal and a trial.  Your plea of guilty has given a certain outcome for this case and your plea of guilty is evidence of your remorse.  I accept that you are remorseful for your offending.  Your plea also demonstrates that you are willing to facilitate the course of justice in this community, and it indicates that you accept your responsibility for your criminal conduct.

29Relevantly, a pronouncement of the Court of Appeal and the case of Worboyes v R reported in 2021 VSCA 169 has application in your sentencing.  The court stated as follows:

'There are, it must be recognised a real disincentive in the current climate for an accused persons who are on bail to plead guilty, particularly if a sentence of imprisonment is on the cards.  As the judge observed in the present case, a newly sentenced prisoner in times of the pandemic will spend the first two weeks of his or her sentence in isolation.  Thereafter, he or she will have very restricted opportunity for contact with family and friends.  Further, rehabilitative and other programs within the prison are severely curtailed.  That this is so notorious.  These circumstances must render the prospect of imprisonment even more unpalatable than is usually the case and operates as a further deterrent to the entry of a guilty plea.  These disincentives to pleading guilty must be balanced by a proper inducement, through mitigation of sentence, to accept guilt'.

'Self-evidently, the other side of the coin is that there are real incentives for the cynical and unprincipled to exploit the delays resulting from the pandemic.  The longer the delay, the more the memory (and enthusiasm) of witnesses dims, and the preparedness of victims to actively and willingly participate is tested, with associated forensic disadvantages to the prosecution.  In ordinary times with ordinary delays, the lot of victims and witnesses already is not a happy one.  The longer the delays, the more pronounced their plight'. 

'Further, and significantly, criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present.  One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to some extent freed up.'

'For these reasons we consider that - all other things being equal - a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at the time when the community and the courts are not afflicted by the pandemic's effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.  Although the sentencing judge need not quantify the extent of any "Discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence'.

30You have previously applied for a protection visa.  This application was unsuccessful.  You are currently on a bridging visa.  The prospect of your deportation to Vietnam following your serving of a term of imprisonment is a relevant consideration.  Your immigration status and the prospect of deportation is relevant to two matters.  Firstly, the hardship that will be felt by you during your sentence, knowing that upon its completion you will be returned to your country of origin.  On this aspect, I note your mother lives in Vietnam, but at present your father is still resident in Australia.

31Secondly, in your case you have resided in Australia since 2014 and have lived a third of your life in Australia.  Deportation to Vietnam will result in the additional punitive result of destroying the opportunity to settle permanently in this country.  I take both of these factors relevant to deportation into account when fixing your sentence.

32There has been a delay in the finalisation of this charge.  One of the factors that delay has in the sentencing process is that due to the effluxion of time, and the passing of your 21st birthday, you have had the potential of the sentencing option of juvenile detention being removed in your case.  For the period of April 2020 to your plea date, you have been on bail and not re-offended.

33In effect, your life has been on hold.  You live with your father in Abbotsford and did not return to your employment as a kitchenhand either in Brunswick or anywhere else.

34You are a young offender.  At the time of the offending, you were 20 years old.  You are now 22 years old.  You have no prior convictions.  It is a principle of sentencing law, that when a young offender such as yourself is to be sentenced, the sentencing disposition should be tailored, taking into account all other sentencing considerations to promote the offender's rehabilitation.  This approach serves the interests of the individual offender, and the community as a whole.

35In the case of R v Mills, these three propositions of sentencing were set out:

I.Youth of an offender, particularly a first offender should be a primary consideration for a sentencing court where that matter properly arises.

II.In the case of a youthful offender, rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending.  Thus, for example, individualised treatment focussing on rehabilitation is to be preferred.  (Rehabilitation benefits the community, as well as the offender.)

III.A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender, and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is an application of the general principle expressed in s5(4) of the Sentencing Act.)

36In more recent times, the Court of Appeal has made pronouncements on the consideration of youth in sentencing practices.  In the case of R v Wyley President Maxwell of the Court of Appeal said as follows,

'Mills constantly reminds sentencing courts and this court on appeal that there is a great public benefit in the rehabilitation of an offender, and in maximising the prospect that the offender will carry on a law-abiding life in the future.  But the consideration is not unique to young offenders.  Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or longer periods of imprisonment, rather than non-custodial sentences.  Thus understood, the latter cases of DPP v Lawrence and R v Nguyen are not to be viewed as "Excluding the principles in Mills" but simply as instances of how those principles are to be applied'.

'As counsel properly conceded towards the end of submissions, there is a role for general deterrence to play in relation to every class of cases.  In relation to certain classes of cases, however, general deterrence may have a particularly important role to play.  The present is of that kind.  Violence of this kind, in circumstances of this kind, is so prevalent, that general deterrence is seen to have particular importance.  But again, the role of general deterrence will vary with the circumstances of the case'.

37I interject there to say the charge of commercial cultivation of cannabis does call for general deterrence. 

38These issues were recently considered in Azzopardi v R where Justice of Appeal Redlich with whom Justices Coghlan and Macaulay agreed, said as follows:

'The general proposition which flow from these authorities is that where the degree of criminality of the offences requires a sentence objectives of deterrence, denunciation, just punishment, and the protection of the community, to become more prominent in the sentencing calculus.  The weight to be attached to youth is correspondingly reduced.  As the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effect of an offender's youth, but only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation, may the mitigatory consideration of youth be viewed as all but extinguished’.

39As part of the governing principles to be considered in sentencing, I must take into account the current sentencing practices.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases.  I have considered the statistics in relation to those sentences and the current sentencing practices.  I am mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.

40The Court of Appeal has made a number of pronouncements on the seriousness of the charge of cultivating a commercial quantity of cannabis.  Again, President Maxwell of the Court of Appeal in the case of Nguyen v R reported at 2010 VSCA 12, said about the seriousness of this offence, and I am quoting:

'As has been readily pointed out in sentencing decisions, this is an offence which Parliament has set the highest fixed maximum in the criminal calendar, 25 years' imprisonment'.

41In the later case of DPP v Duong reported in the same year, Justice Buchanan noted:

'The maximum penalty of 25 years shows unambiguously how seriously the community through Parliament viewed this conduct'.

42The case of Duong was followed by the case of Tuan Doan v R where Terry Forrest Justice of Appeal stated:

'I consider that the appellant has failed to make good this ground.  The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum penalty of 25 years' imprisonment.  Whilst there is no doubt that the role played by the appellant is that of a menial nature, it was nonetheless necessary for the crop to flourish.  The maximum penalty fixed by Parliament unambiguously demonstrates how seriously the community views this conduct'.

43Justice Forrest then referred to the case of Duong and said as follows,

'Recently in this court emphasis has been placed upon the importance attached to sentencing, judges having regard to the maximum sentence fixed by Parliament'.

44And he then said:

'This court has also emphasised recently that general deterrence is an important consideration in sentencing for this type of offence, and that the link between general deterrence and the increasing prevalence of this offence is readily apparent'.

45In the case of Doan, Justice of Appeal Nettle (as he then was) agreed with Justice Forrest and said as follows:

'I wish only to add a brief observation concerning the submission advanced on behalf of the appellant, that the judge had erred in the emphasis which His Honour placed on the importance of general deterrence.  In my view lest there be any doubt about it, there should be no doubt that in cases involving the cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of the sentencing considerations.  Consequently, as the judge rightly observed, in cases of this kind, there is less room to give weight to considerations such as youth and antecedents that would otherwise be the case.  In the result the judge also correctly found in a case of this kind an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable'.

46More recently in a case of Nguyen v R  2016 VSCA 198, the Court of Appeal found that the current sentencing practices for this offence did not reflect the objective seriousness of the mid-range offending.  In that case, Justice of Appeal Redlich said as follows:

'Sentences imposed upon offenders who fall within the mid category of seriousness, do not reflect consistency in the application of the principle.  There has been inadequate emphasis given to general and specific deterrence and denunciation.  Consequently, the standards set do not adequately reflect the objective seriousness of the offending or the offender's moral culpability for engaging in such criminal conduct for profit that is so harmful to the community'.

47Justice of Appeal Redlich then went on to say as follows,

'For the immediate future sentencing courts must be increments increase the sentences for mid category offending, so that the range of sentences is uplifted and substantially expanded, to enable the identification of the correct sentence for particular offending conduct.  The current sentencing practices for that category of seriousness of offending must be sufficiently broad to encourage a wide range of criminal conduct within the category of the offence'.

48To encompass, I should say.  Not encourage.  I will read that again.

'The seriousness of offending must be sufficiently broad to encompass a wide range of criminal conduct within the category of that offence.  The corrected range should include sentences that have previously been reserved for offending which fell at the lower end of the upper category of seriousness, the uplifted range should not include sentences that have previously been reserved for less culpable offenders, such as crop sitters falling towards the upper end of the lower category'.

49I accept that your role in this sophisticated cannabis growing operation was that of a crop sitter, and that you are at the lower end of the level of offending.  You are charged as offending on a single day, that is, the day of your arrest.

50It was submitted on your behalf that you were promised payment of $4000 after the harvest of the crop.  The harvest is my word.  You received no payment for your involvement in this criminal enterprise.  In effect, your decision to be involved in this crime has resulted in no financial benefit to you, but rather a loss of liberty and a loss of chance to build a life here in Australia.

51The crop in the factory was at various stages.  There was a sufficient number of plants to be almost six times the commercial quantity.  The plants weighed enough to be between six and seven times the commercial quantity.  In a quantity-based regime, you are sentenced on the basis that the crop was six times the commercial quantity for cannabis cultivation.  The factory set up was a sophisticated and substantial cannabis growing operation.

52I accept you played no role in the setting up, financing, or ownership of the cannabis crop.  You were acting as a crop sitter, and that of course, is a critical and necessary function in this criminal activity. 

53As I said earlier, I assess your role in this criminal enterprise as being in the low end. Your behaviour on the day of interception showed a level of naivety on your part.  I am referring to the two people who escaped the factory and detection whilst you were opening the front door of the factory to people you did not know in circumstances where you knew you were in a factory full of cannabis.  Your personal attempt to escape was easily thwarted by the owner of the factory and his brother.

54It was submitted on your behalf that you be given the opportunity to be granted parole in an early stage in your sentence.  The submission was based on the fact that this is your first time in custody, and you have no prior convictions, your youth and your vulnerability arising from your small stature.

55I accept your prospects of rehabilitation are good, on the basis of your prior good record, you have not offended in a period of two years since you have been on bail, your relative youth, and your limited role in this significant criminal enterprise.

56The principles of sentencing of general deterrence, specific deterrence, denunciation of your actions, and the protection of the community, are the most important considerations in your case.  A term of imprisonment with a non-parole period fixed is the only appropriate sentence.

57I sentence you as follows;

58Charge 1, you are convicted and sentenced to a term of imprisonment of two years and three months.  I fix a non-parole period in respect of that sentence of one years' imprisonment.

59I declare that you have served 27 days pre-sentence detention, and pursuant to s6AAA, but for your plea of guilty, I would have sentenced you to a period of five years' imprisonment, with a minimum term of three years' imprisonment.

60I just want to check; I have got the pre-sentence detention days right by number.

61MR GWYNN:  We have calculated them in - I think my friend was - he and I both agreed there is 27 days.

62HIS HONOUR:  Yes, so I have got that right.  Yes, thank you.

63MR GWYNN:  Thank you, Your Honour.

64HIS HONOUR:  Was there anything further from your end first of all,
Mr ‑ ‑ ‑

65MR GWYNN:  No, thank you, Your Honour.

66HIS HONOUR:  Yes, thank you.  I will leave this link open, so you can have an opportunity to try and communicate with your client.

67MR GWYNN:  Thank you, Your Honour.  I am grateful.

68HIS HONOUR:  Yes.  Madam Interpreter, I just want to thank you for your assistance, and I just going to ask that I can somehow speak directly to
Mr Truong.  I do not know how I am going to do that; I just want to make sure he knows.  Thank you.  Mr Truong.  I cannot see him.  Yes, thank you.  Mr Truong, I have just sentenced you to two years and three months' imprisonment with a minimum term of one year.

69OFFENDER: (Through Interpreter) Yes.

70HIS HONOUR:  All right.  Mr Truong, I am going to leave this link open, so that you can speak to your barrister here in court.  My staff will leave the court, except for the person who organises the link.  All right.  Thank you.  Just before we adjourn, this is a most unsatisfactory way to sentence somebody.

71MR GWYNN:  It is.

72HIS HONOUR:  I hesitated this morning, as you may have gathered whether or not I was going to continue with this, but I already stretched this man's anxiety for one week.  One week and one day, and we still have not got past directions.  I think I am going to resort to a practice where they all come to court.

73MR GWYNN:  Thank you, Your Honour, and I will just indicate, I will speak to him now, and my instructor and I will arrange a conference for a couple of days' time, to speak with him again, just to make sure he clearly understands.

74HIS HONOUR:  Yes.  Yes, thank you.  Thank you, Mr Gwynn.

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