Director of Public Prosecutions v Vinh Van Tran
[2014] VCC 495
•11 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-02331
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VINH VAN TRAN |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2014 | |
DATE OF SENTENCE: | 11 April 2014 | |
CASE MAY BE CITED AS: | DPP v Vinh Van TRAN | |
MEDIUM NEUTRAL CITATION: | [2014 VCC 495 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – plea – cultivation of commercial quantity of cannabis – theft of electricity
Legislation Cited: Sentencing Act 1991; Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958
Sentence: 2 years’ imprisonment with a non-parole period of 12 months’ imprisonment. S6AAA declaration: 3 years’ imprisonment with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P O’Halloran | Solicitor for Office of Public Prosecutions |
| For the Accused | Ms C Tran | Victoria Legal Aid |
HIS HONOUR:
1 Vinh Van Tran, you have pleaded guilty to:
(a) One charge of cultivation of a commercial quantity of Cannabis L, the maximum penalty for which is 25 years’ imprisonment;
(b) One charge of theft of electricity, the maximum penalty for which is 10 years’ imprisonment.
Circumstances of offending
2 The facts are set forth in the prosecution opening, which I adopt.
3 You came to Australia in October 2012 on a student visa from Vietnam. On 3 September 2013, the police raided a property at 109 Riverslea Boulevard, Traralgon, to find a large cannabis crop located across nine rooms and in a shed at the rear of the premises. In total, 390 cannabis plants were seized, weighing a total of 174.5 kg.
4 An illegal electricity bypass operation was installed and the value of the electricity stolen was $56,315.99.
5 Upon your arrest, you admitted to police that you had met a person, “Peter”, at the Crown Casino and offered work as a cleaner. He subsequently took you to the premises where the crop was to be established and from April 2013, you performed various duties at the premises, including sweeping the floors, assisting with the electrical wiring and assisting in planting the cannabis plants. You thereafter attended the premises on a regular basis, two to three times per week, and watered and fertilised the plants. You also paid various utility bills. You were not involved in the cutting of the crop.
6 You were remanded in custody, and to the date of the plea, have spent 213 days in custody. It is accepted by the prosecution that your plea of guilty was entered at the earliest practicable time and that you made frank admissions to the police in the course of the record of interview.
Factors personal to you
7 You were born in 1994, were 19 at the time of offending, and are now 20 years old. Your family are from a poor rural district of central Vietnam but were able to sponsor your trip here. When you arrived in Australia, you enrolled in Business Management and English courses, but after three months you were informed by your family that they were in financial trouble. You commenced employment, initially picking strawberries in rural Victoria for several months and worked as a waiter on weekends.
8 Over the period from April 2013 until your arrest in September, you sent to Vietnam $1,000 to $2,000 per month and retained only a modest amount for yourself to pay for living expenses. Your counsel frankly admitted that you knew the activity was illegal and you considered withdrawing from the house on a number of occasions. She said you were too scared for fear that there may be some retribution from “Peter” or that you might be reported to the authorities and deported.
9 It is your intention to return to Vietnam and be reunited with your family and hopefully resume studies. You have no prior convictions.
Sentencing considerations
10 The purposes for which a court may impose a sentence are:
· Punishment – to an extent and in a manner which is just in all the circumstances;
· Deterrence – both specific and general;
· Rehabilitation;
· Denunciation and/or protection of the community.
11 In sentencing you, I must have regard to a range of matters such as the seriousness of the offences, your culpability for them and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
12 You have pleaded guilty and are entitled to have that fact taken into account in your favour. A plea of guilty, no matter why or when it is entered, must always attract a sentencing discount. I accept that your plea of guilty was made at the earliest practicable time and evidence as remorse. You have avoided the cost of a trial and spared witnesses the inconvenience and ordeal of giving evidence.
13 You are a “Young Offender” as defined by the Sentencing Act 1991. Ordinarily, in that case, rehabilitation is a more important sentencing consideration than general deterrence. I accept that the prospects of your rehabilitation are good, given that you have no prior convictions, and I accept as genuine your desire to return to Vietnam to your family, and undertake further studies.
14 I accept that over your time in custody, you have undertaken horticulture and factory cleaning work. You have further applied for courses in mathematics and English, although have not yet been admitted into those courses. Given your youth, and the fact that you have little English, I accept that any time spent in custody would be more burdensome than would otherwise be the case.
15 I further accept the explanation of your counsel that at the time you were approached to become a crop sitter, you were young, impressionable and concerned to attempt to obtain money to send to your family in Vietnam. I further accept that you were not the principal in establishing the sophisticated system and crop, but were induced into it by those further up the criminal chain. What must be said about the crop was that it was very substantial, more than six times the weight of a “commercial quantity” of Cannabis L as defined in the relevant legislation.[1]
[1]Part 2 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 defines “commercial quantity” of Cannabis L to be 25 kilograms or 100 plants
16 Given your lack of maturity to which I have referred, it is likely that you have been and will continue to be subjected to undesirable influences while in the adult prison system.
17 The sentencing principles of rehabilitation, general deterrence and protection of the public are of most significance. As has been said by the Court of Appeal on many occasions, crop sitters are essential participants in the illegal drug industry. Without them, it would be far more difficult to establish and maintain substantial cannabis crops. Those in the community minded to take on such roles should be aware that a term of imprisonment awaits them upon being convicted for cultivation of a cannabis crop in a commercial quantity.
Sentence to be imposed
18 Taking into account all of the matters to which I have referred, I impose the following sentence.
19 On the charge of cultivation of a commercial quantity of Cannabis L, you are convicted and ordered to serve a term of imprisonment of two (2) years.
20 On Charge 2, theft of electricity, you are convicted and sentenced to a term of imprisonment of sixty (60) days.
21 For the sake of clarity, I declare that the terms of imprisonment are to be served concurrently.
22 As stated, I assess your prospects of rehabilitation as strong. Given that, and the other matters to which I have referred, I direct that you serve a minimum period of twelve (12) months’ imprisonment before becoming eligible for parole.
Pre-sentence declaration
23 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that a period of 220 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that this declaration and its details be noted in the record of the Court.
Section 6AAA Sentencing Act 1991
24 Pursuant to s.6AAA of the Sentencing Act 1991, I state that but for your pleas of guilty, I would have imposed a total effective sentence of three years’ imprisonment, with a non-parole period of two years.
Ancillary Orders
25 I shall make the Disposal, Forfeiture and Compensation Orders sought by the prosecution. The orders are not opposed.
26 I shall further make the Retention Order sought pursuant to s.464ZFB(1) of the Crimes Act 1958 for the retention of a forensic sample. I am satisfied that such an order is appropriate given the seriousness of the circumstances of the offending, that it is in the public interest and that it is not opposed.
27 Yes, thank you, anything further?
28 MR O'HALLORAN: No, sir.
29 MS TRAN: No, Your Honour.
30 HIS HONOUR: Yes, those orders will be provided to you. If you would kindly wait after I leave the bench. And if Mr Tran could be given a few moments with his lawyers before being taken down to ensure that he understands the detail of to the sentence.
31 MS TRAN: As Your Honour pleases.
32 HIS HONOUR: Thank you, temporarily adjourn.
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