Director of Public Prosecutions v Truong

[2016] VCC 1470

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01091

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUONG ZHANG TRUONG

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 October 2016
CASE MAY BE CITED AS:	DPP v Truong
MEDIUM NEUTRAL CITATION:	[2016] VCC 1470

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms S. Denham
For the Accused	Mr C. Baker

HER HONOUR:

1Duong Zhang Truong, you have pleaded guilty to one count of cultivation of cannabis in an amount not less than a commercial quantity.  The maximum penalty for that offence is 25 years imprisonment.  The threshold amount for this offence is 100 plants or 25 kilograms. 

2The circumstances of your offending is set out in the prosecution opening on the plea, dated 27 September 2016, Exhibit A and can be summarised as follows.

3In November 2015, police received information that the property where you were living in Templestowe Lower, was being used to grow cannabis hydroponically.  On Monday 29 February 2016, police executed a warrant at the property.  Your car was in the drive and you were in the bedroom.  It was apparent that you were residing in that room and that you were the only occupant at the house.  The remaining rooms in the property had minimal or no furniture. 

4Upon searching the house, police discovered five rooms were being used solely for growing cannabis hydroponically.  Each of the five rooms were set up in a similarly sophisticated way.  Each room had varying numbers of pots on the floor, containing plants of various sizes. 

5The plants were connected to an irrigation system through which water and liquid nutrients were supplied to the plants.  Above the plants were high voltage lighting and light shades and charcoal filters hanging from the ceiling.  The windows in each of the five rooms had been blocked out with curtains and plastic sheeting. 

6In total, police located 134 cannabis plants across the five rooms.  The plants were analysed by a forensic botanist and the 134 plants weighed 63.9613 kilograms.  Thus, in respect of Charge 1, the commercial quantity is based on both the weight and the number of plants.

7You were arrested and interviewed at the Doncaster Police Station.  You had available to you the assistance of an interpreter.  You were fully cooperative with police and made candid full and frank admissions.  You told police that you were gambling at Crown Casino and that you had little money.  A man known as Ba offered to assist you to pay your debts and to receive a small income.

8In exchange, you were required to maintain a cannabis crop at the house at Templestowe Lower.  You were paid $3,000 in advance by Ba to maintain and nurture the cannabis crop.  At the time the police became involved, you only had $30 cash left.  You lived at the house from December 2015 until
29 February 2016 and did not pay rent.

9You said that some of the plants were close to being fully mature as they were in their eleventh week of growth.  At the end of the twelfth week, Ba was going to visit you and then depending on the quality of the plants, you would be paid an unknown amount. 

10You told police your duties included feeding and watering the plants daily, maintaining and nurturing the cannabis plants and also maintaining the hydroponic equipment.  The timer system was installed for the watering and lighting of the plants.  You were required to live at the property and not let anyone else enter the property except for Ba, who was responsible for the lease of the property.

11You followed a set formula that you were forced to memorise when feeding and watering plants.  You provided police with technical information and details regarding the crop.  You said you became involved in order to have money.  You were aged 27 at the time of the offence. 

12You are a Vietnamese citizen, coming to Australia to study in February 2013 with a student visa. The visa expired on 15 March 2015 and you have remained in Australia unlawfully since that date.  Before you came to Australia you worked in hotel management in Hanoi.  You came here to study English and marketing.  You were aged 24 and did not know anyone else in the country.  You thought studying here would ultimately enhance your career prospects. 

13Family members financially assisted you to come here.  I understand your parents are currently unaware of your situation and that they think that you are in immigration detention.  You found studies more difficult and more expensive than you had anticipated.  Funds from your family decreased and you struggled with living costs.

14You ultimately gave up your studies and sought employment and worked at an apple farm in Warragul on an intermittent basis, when work was available.  On meeting Ba at the casino, you saw it as a shortcut way to make money.  When you went to the house, the set up and crop were already there and you were told what needed to be done.

15You do not dispute the account of the circumstances of your offending as outlined above.  It was submitted that your offending was motivated by a lack of alternative work.  This was different from others who may engage in such conduct with the prospect of significant financial gain. 

16You have pleaded guilty to this offence at the earliest opportunity.  You indicated you would plead guilty at a committal mention on 21 June 2016.  You have been in custody since your arrest on 29 February 2016 and this is your first time in custody, a matter I will refer to later in these reasons.

17Your plea has a significant utilitarian value and shows a willingness by you to facilitate the course of justice, and an acceptance of your responsibility for your criminal behaviour. 

18As is evident from your interview, I accept your plea is indicative of remorse and that you have recognised your mistake and accepted responsibility from the outset.  You have no prior convictions in either Vietnam or Australia.  You are previously of good character.

19Given the nature of this offending, your high level of remorse and lack of prior history, I accept your rehabilitation prospects are good and that you are at low risk of reoffending.  Your time in custody since February this year has been particularly burdensome, given that you are isolated by your lack of English and because all your family and supports are in Vietnam.  You have had no visitors.  I take this matter into account. 

20Whilst you have been in custody, there have been some periods of lockdown, though I understand that you are now working in the kitchen, so have more time out of your cell.

21Given your background and circumstances, I accept that you are finding your first time in custody difficult.  Although cultivating a narcotic in an amount not less than a commercial quantity, is plainly a very serious offence.  It was submitted that the offending fell towards the lower end of this offence because of your role as a crop sitter.  The Crown accepted this was your role and that there was no suggestion that you were involved in the establishment of the crop, or in the trafficking of cannabis. 

22Your motivation was driven by your personal financial circumstances and promise of funds, given your difficulties finding stable employment, rather than an expectation of significant financial reward.  The offence was not over a prolonged period of time.

23In the R v Doan, 2010 VSCA 250, the Court of Appeal has recognised that this cultivation offence is very serious by virtue of its maximum penalty.  General deterrence must be at the forefront of sentencing considerations and an immediate term of imprisonment should ordinarily be regarded as unavoidable.  See paragraphs 11 and 17.

24I consider denunciation, specific deterrence and the protection of the community as other relevant sentencing principles.  I take into account all matters in mitigation, including your plea, your prior good character, the role you played in the cultivation of the crop and your current circumstances.

25I have considered the operation of s.5(4) and sub-s.4C of the Sentencing Act and I consider a custodial sentence is to be the only appropriate disposition.  Taking all relevant matters into account, I propose to sentence you to a period of 14 months imprisonment.  Pre-sentence detention, is that 219 days?  Yes, I declare that you have served 219 days pre-sentence detention in relation to this offending and such a period is to be administratively deducted from this sentence as time already served.

26Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have sentenced you to a period of 24 months imprisonment, with a non-parole period of 18 months. Pursuant to s.77(1) of the Confiscation Act, I order the cannabis cultivated and equipment used in connection with the cultivation be disposed of and I think the last time I made an order pursuant to s.464ZF2 - I order you undergo a forensic procedure for the taking of a scraping from the mouth until the sample of sufficient standard is obtained for placement on the database.

27I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of a police officer, then the sample will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted.  Are there any other matters?

28MS DENHAM:  No, Your Honour.

29MR BAKER:  No, Your Honour.

30HER HONOUR:  Thank you.  I will just stand down, Your Honour.

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