Director of Public Prosecutions v Truong

[2020] VCC 1174

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01299

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHONG TRUONG

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2020
DATE OF SENTENCE:	31 July 2020
CASE MAY BE CITED AS:	DPP v Truong
MEDIUM NEUTRAL CITATION:	[2020] VCC 1174

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Menon	Office of Public Prosecutions
For the Accused	Mr L. Baker	Valos Black & Associates

HER HONOUR:

1Phong Truong, you have pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant, namely cannabis.  You have also pleaded guilty to the summary charge of possessing the proceeds of crime.

2The facts underlying your offending are as follows.  On 10 October 2018 police entered a commercial factory at 31 Efficient Drive, Truganina, where a large cannabis crop was found.  Nine timber rooms had been built within the factory containing crops of cannabis at various stages of maturation.  Ultimately the crop was found to consist of 1047 cannabis plants.  Seven of the nine rooms were devoted to crops being grown by a hydroponic system, two of the rooms contained immature plants which were being watered by hand, according to the evidence of botanist, Susan Fiddian.  The number of plants in the two rooms amounted to more than half the total number of plants found.  The total weight of the cannabis found was 402.07 kilograms.

3You were arrested at the scene after you were seen running from Room 8 at the factory.  You were arrested along with your accused, Thi Lang Bui and another co-accused, Bradley Lee.  Mr Lee has pleaded guilty.  You and Ms Bui, who were each charged with cultivation of a large commercial quantity of cannabis pleaded not guilty to that charge.  A trial was run but you entered a plea of guilty to the alternate charge of cultivating a commercial quantity of cannabis.  You were found not guilty of the charge of cultivating a large commercial quantity.

4In a record of interview with police you told them that you had been hired to water plants at the factory and that you had done this for about two months, receiving $1000 per week for your efforts, which took place at three days a week.  At the time you were arrested you were found to be in possession of $1086 in cash, which was in a bum bag which you were wearing at the time.  By your plea of guilty you have agreed that this is money that you were being paid for your work in assisting in the cultivation of the crop in the way that you have outlined.

5The maximum penalty for cultivating a commercial quantity of cannabis is
25 years' imprisonment.  The maximum penalty for dealing in the proceeds of crime is two years' imprisonment.

6I now turn to your personal circumstances.  You are 60 years of age and you were born in Vietnam in 1960.  You were the third of 11 children born to your parents.  You and your family lived through the Vietnam war and your father was a colonel in the South Vietnamese Army.  Following the end of the Vietnam war, because of your father, your family was placed into a re-education camp by the communist regime and you and your family had to undertake forced manual labour.  You remained in that re-education camp for seven years, when you managed to escape.  You did this by hiding behind cattle which you tended outside the perimeter of the camp and then ultimately fled to the town in which you were born and eventually bought your way on to a fishing boat which had been converted to carry 40 refugees.

7Whilst the boat successfully cleared the coast it ran out of fuel and drifted at sea for 17 days.  Eventually it was picked up by a Filipino navy boat and then you were placed in a refugee camp in the Philippines where you remained between 1982 and 1987.  In that time you met and married your wife and ultimately the two of you had two daughters who are now aged 35 and 33.  Eventually you and your family were given refugee status and emigrated to Australia, arriving in 1987.

8In the years since you arrived in Australia you essentially worked on a seasonal basis on farms in Korumburra.  You started off as a picker but then became a leading hand.  The work, as I have said, was seasonal.  It ran from October until April.  During that season you would live in Korumburra and save the money that you had earned.  For the remainder of the year you would live off your savings in the Sunshine area and obtain various odd jobs.

9In the late 1990s acquaintances introduced you to heroin, which you used up until your arrest in relation to these charges.  According to your counsel and the instructions you gave your counsel, you did not regard yourself as addicted to heroin even though you did not stop using until you were remanded.  Your use of heroin, however, led to you forming a prior criminal history.  In 1998 you were dealt with for using cannabis and possessing a regulated weapon, for which you were placed on a good behaviour bond, as far as I can tell, and then in 1998 you were placed on a Commit Correction based order for 12 months on charges of trafficking and possessing heroin and drive while disqualified.  Ultimately you breached that order by failing to comply with conditions in 1999 for which you were convicted and fined $100.  You were apparently selling heroin at street level in order to fund your own habit.  You have no other prior convictions before your prior convictions are 20 years old and I do not regard them as being particularly relevant to the charge for which I have to deal with.

10In the intervening years you and your wife separated and then divorced but I have received a written reference from your daughter attesting to the fact that you remain very involved as a father with your daughters.  She said that - this is your daughter, Tai Anh Thi Nguyen.  She said after her parents separated, 'however, he has always been a great father.  We kept close contact with him'.  In her letter to the court your daughter said that she and her sister were very shocked to discover that you had been involved in this offending.  However, she has said that on your release you will go to live with her.  She said she will financially support you and care for you.  She has three daughters.  She says, 'I am sure they will keep him busy upon his return'.

11Whilst in gaol you have undergone particular hardship.  You speak very little English.  However, whilst you have been in custody you have managed to return negative results to any drug testing and you have been employed the whole time whilst being held in Fulham and Port Phillip Prison in that you learnt to repair machinery, including refrigerators and lawn mowers.

12You were moved to Port Phillip Prison in late June so that you could attend court for the trial but the restrictions due to the COVID-19 pandemic have meant that your daughters are no longer able to visit you.  You have been isolated in the gaol and without support.  Since being move to Port Phillip Prison you have been subject to a 20 hour lockdown, meaning that you are only let out of your cell for four hours each day.  I accept that your time in prison has been particularly onerous and, indeed, will continue to be so now that there have been cases of corona virus detected amongst prisoners in the various prisons, so that the lockdowns become even more severe and it is unknown when this difficult situation will end.

13In sentencing you I take into account the fact that you pleaded guilty to this charge, that you effectively had no prior convictions for the last 20 years.  You have been gainfully employed. I accept that you took on this uncharacteristically criminal offending simply to make money.  That is not to your credit but your role, although significant in the ultimate successful growing cultivation of these crops, was not one where you were an organiser.  I accept that your offending took place over a period of time.  However, you were very cooperative with police when you were arrested.

14The offending in itself is serious and I agree with the prosecution's submission that you should be sentenced to a term of imprisonment.  It is my view, having regard to the current sentencing practices applicable to this offending, that the time you have served forms a sufficient minimum term such that I can impose a sentence which will result in your almost immediate release from prison.  I am satisfied that you have good prospects of rehabilitation based on the period of time in which you have stayed out of trouble and given the very supportive environment that is available to you via your daughter on your release.

15I am going to sentence you on an aggregate basis, the two charges arising, obviously, from the same offending.  I therefore sentence you as follows.  On both charges you are sentenced to a term of imprisonment of two years and four months and I order that you serve a minimum term of 666 days before being eligible for parole.

16I declare that that 666 days has been served by way of pre-sentence detention.

17MR MENON:  Your Honour, the pre-sentence detention was six hundred and six, six, zero.

18HER HONOUR:  Pardon?

19MR MENON:  Six, six, zero, Your Honour.

20HER HONOUR:  That's what I said, 660 days.  Did I say 666?

21MR MENON:  Your Honour said 666.

22HER HONOUR:  I apologise.  I should have said a minimum term of 660 days, which has been served by way of pre-sentence detention.

23MR MENON:  Thank you, Your Honour.  Apologies.

24HER HONOUR:  All right.  Is there anything else that I need to do?  Or had you pleaded not guilty to this charge I would have sentenced you to a term of imprisonment of three years and order that you serve a minimum term of two years.  Thank you.  All right.

25MR MENON:  Thank you, Your Honour.

26HER HONOUR:  Thank you very much.  I thank counsel for their assistance in this matter, particularly in assisting me in conducting the judge alone trial.

27MR MENON:  thank you, Your Honour.

28MR BARKER:  Your Honour, if I could just raise one issue?  Just the confiscation order.  Your Honour made an indication that you would make that order.

29HER HONOUR:  Yes.  Well, I order that the $1086 be confiscated.  You will send me the appropriate documentation for that.  It is there, is it?  Yes.

30MR BARKER:  Yes.

31HER HONOUR:  All right, thank you.  Yes, I will sign that forfeiture order.

32MR BARKER:  Thank you, Your Honour.

33HER HONOUR:  What is the date today?  It is the 31st, is it not?

34MR BARKER:  That is correct.

35HER HONOUR:  All right.  Thank you very much.

36MR BARKER:  As Your Honour pleases.

37MR MENON:  Thank you, Your Honour.

38HER HONOUR:  Thank you.

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