DPP and Tran
[2016] VCC 565
•4 May 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-02173
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHI NGUYEN TRAN |
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JUDGE: | Cannon |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 April 2016 |
DATE OF SENTENCE: | 2 May 2016; Re-Sentenced 4 May 2016 |
CASE MAY BE CITED AS: | DPP and Tran |
MEDIUM NEUTRAL CITATION: | [2016 VCC 565 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Cultivate commercial quantity of cannabis – Possess cannabis – Crop house – Risk of deportation
Sentence:Convicted and sentenced to Total Effective Sentence of 16 months’ imprisonment with a non-parole period of 10 months’ imprisonment – Pre-sentence detention of 261 days declared – s.6 AAA Sentencing Act 1991 declaration – Ancillary Orders - Disposal and automatic Forensic Sample Retention
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APPEARANCES: | Counsel | Solicitors |
| For the Director | ||
| of Public Prosecutions | Ms D. Karamicov (Plea/Sentence Hearing) | Solicitor for Public Prosecutions |
| Ms T. Crvenkovic (Re-sentence Hearing) | ||
| For the Accused | Mr G. Defteros | Defteros Lawyers |
HER HONOUR:
1 Chi Nguyen Tran, you have pleaded guilty to one charge of cultivation of a commercial quantity of cannabis which has a maximum penalty of 25 years' imprisonment and one charge of possession of cannabis which you admit was for a purpose related to trafficking, therefore, this offence has a maximum penalty of five years' imprisonment.
2 The maximum penalties reflect the seriousness with which parliament regards these offences.
3 Your plea was opened as follows: I was told that you were 43 years old and that you were 42 at the time that you committed the offences. I was told that, at the time you committed the offences, you were living at an address in Wantirna with your wife and your three year old son, Daniel. This appeared to be disputed by you through your counsel so I shall return to this aspect a little later on.
4 You are a Vietnamese national and are in Australia on a spousal visa sponsored by your wife who is a co-accused in respect of Charge 1.
5 On 15 December 2014, you entered a rental agreement and you took possession of the premises in question on 19 December 2014. In April 2015, police began investigating this property, upon suspicion that criminal activity was being conducted there. Police were able to confirm that you, you wife and son were living at the premises. They conducted surveillance at the address over four days and saw you and your wife enter the premises, bring items from the house and placing them in a car which was registered to you. They saw you drive the car from the address and they also saw the car parked in the driveway behind gates which were locked with a padlock. Police also saw you clean out a tub and rubbish bin in the backyard.
6 The facts which give rise to Charge 1 is that, on 12 May 2015, police executed a search warrant at the house which you had leased. Your wife was at home at the time, but would not answer the door. Police forced entry into the house and your wife was found in the lounge room, holding Daniel, your child. Three of the four bedrooms of the house were being used to hydroponically grow cannabis. A sophisticated set up was found with cannabis being grown under lights with the use of nutrients and water pumps.
7 A thorough search of the house was conducted and the following was found: In bedroom 1, ten cannabis plants which were about 85 to 100 centimetres tall which were bushy, but immature female plants and weighted 17.3 kilograms, excluding roots. The leaves and flowering heads were determined as constituting 68 per cent of the total weight of the plants. The plants were growing under nine shrouds with globes. Thirteen electrical ballasts were found in this room with a charcoal filter, switchboard, power board and timer.
8 In bedroom – sorry, Madam Interpreter, you can tell me to slow down if you are not able to keep up, so - - -
INTERPRETER: I am okay.
HIS HONOUR: You are all right?
INTERPRETER: Yes, all right. Yes.
HIS HONOUR: Yes. All right. Just interrupt if you need to, all right?
INTERPRETER: Yes, I will.
HER HONOUR CONTINUED:
9 In bedroom 2, 43 cannabis plants which were about 13 to 27 centimetres tall which were slightly bushy and immature female plants and weight 379.7 grams, excluding roots. These were growing under five shrouds with globes. There were six electrical ballasts and the other equipment that was found in the first room was also found in this room. In addition, in this room, police found a bag of dried cannabis material, mixed with other plant material that could not be identified, weighing 694.6 grams. Fragments of dried female flowers were included in this material.
10 In bedroom 3, 13 cannabis plants, measuring 77 to 95 centimetres tall which were bushy female, but immature plants that weight 23.55 kilograms, excluding roots. The flowering heads and leaves were found to constitute 72 per cent of the total weight of the plants. These were growing under 12 shrouds with globes. There were 12 electrical ballasts, as well as a charcoal filter and timer. Police also collected, from the floor of each of these rooms, a bag of remnant material weighing a total of two kilograms, comprising dried and wilted leaves.
11 A total of 66 cannabis plants were found at the house. Together with the loose cannabis material, this weighed a total of 43.92 kilograms. The threshold weight for a commercial quantity of cannabis is 25 kilograms or 100 plants. Therefore, the quantity of cannabis found at the property was more than one and a half times the threshold weight for commercial quantity. An electrical bypass system had been set up, such that no electricity being used at the house was being metred. The system had caused extensive damage to the house, however, this information was referred to by the learned prosecutor by way of background and context only, as there is no charge in respect of these matters and I do not sentence you on the basis of this information.
12 Your fingerprints were found on shrouds which were seized from the address. Police found your car parked in the driveway of the house, however, you were not present during the execution of the search warrant. Numerous items of clothing, medication and other documentation with your name on a number of the items were also found at the house. Your wife was arrested and charged with cultivating a commercial quantity of cannabis and other charges relating to this house and she was also charged with drug offences in relation to at least one other property.
13 You were not arrested until 95 days later. The facts that give rise to Charge 2 is that, on 15 August 2015, you were pulled over by police for speeding. Police could smell an extremely strong odour of cannabis coming from the boot of the car that you were driving. Police found two large bags in the boot, each of which contained nine large freezer bags filled with cannabis heads. I have viewed a photo of these 18 bags of cannabis. When analysed, the bags were found to contain dried, female flowering heads. The 18 bags contained a total of 8.13 kilograms of cannabis material. You accept that you were in possession of this cannabis for a purpose related to trafficking.
14 You were arrested and charged in respect of these matters. You were remanded in custody from 15 August 2015, spending the first two weeks of custody in the Magistrates Court cells. I was told that you faced a number of charges before the committal hearing, but that these were reduced to the two charges for which I now sentence you at this stage of the directions hearing in this court.
15 In your record of interview which was conducted through an interpreter, you said the following things: You said that, at first, you did not know anything about the Wantirna house and you had not rented the house. You then admitted renting the premises, but said that you only lived there for three or four months. You said you moved out of the house after a disagreement because your wife was growing cannabis and you did not approve of this. You said that you did not go into the rooms where the plants were growing, but you did help your wife and, to quote you, "The other man involved carry instruments so that they could build the hydroponic set up."
16 You said that the set up was installed at about the time the first real estate agent came to inspect the property which was three months after the lease began. This would have been about 15 March 2015 on my reckoning. You later told police that you looked into the bedroom, but did not count the number of plants. You denied having anything to do with the plants.
17 In relation to the car that you were driving on 15 August 2015, you told police that you borrowed the car to ride to work and that nothing in the car belonged to you. You denied knowing who owned the cannabis that was found in the boot. At the plea hearing, it was ultimately conceded on your behalf that this was a lie. Initially, I was told that your role was a most limited one, insofar as charge 1 is concerned and, when I say I was told this, I am referring to your defence counsel, and a good deal of reliance being placed on your answers in the record of interview.
18 However, ultimately, on the basis of correspondence between your legal representative and the prosecution, you accepted that you and your wife shared an equal role in this enterprise at the house. I must say that, on the basis of the materials before me, I regard that concession on your behalf as a most sensible one.
19 The fact of the matter is that you were living at a crop house for a number of months and there was evidence that you had helped to set it up. It defies belief that you did not approve of what was going on there, in circumstances where, only several months, you were found in possession of 18 large freezer bags of cannabis in the boot of a car and then gave police a ridiculous account in respect of this incident. While the two charges are separate, your conduct in respect of the second occasion is inconsistent with you disapproving of what was happening in the crop house only months earlier.
20 You also instructed your legal representatives that you had left the crop house some weeks before the police raid as you had separated from your wife, such were your objections to her involvement in the enterprise. You told police however, in the record of interview, that you moved out several days before they attended. There were a number of your belongings at the house when police raided it and it did not seem that you had been contacted. I heard nothing about whether you had been contacted or whether attempts were made to contact your in relation to Daniel when your wife was arrested.
21 In all, I do not accept that you wanted nothing to do with the crop house and, even if the concession was not made on the basis of discussions, I would have been satisfied that you played an active an integral role in the commercial cultivation which is the subject of Charge 1 for the entire charge period, that is a period which endured until 12 May 2015, as Charge 1 recites.
22 Whether you were separated from your wife or not on the day of her arrest is not the point, in circumstances where I am satisfied and, if necessary, beyond reasonable doubt that you were playing an active role in relation to that crop house until the time of your wife's arrest. However, I do not sentence you on the basis that you leased the house for the purpose of setting up a crop house and I leave open the question of whether any other people were involved in this enterprise which was something you told the police.
23 Your offending in respect of each of the charges is deserving a punishment which is just in all of its circumstances and your conduct must be denounced. I must give strong weight to general deterrence in a bid to deter others from behaving as you have. Drugs are a scourge on our community and you were prepared to take part in this evil industry in circumstances where you were not even addicted yourself. Whilst addiction would not have been a mitigating factor, the fact that you were not makes your moral culpability worse, in my view.
24 You pleaded guilty at a stage after the committal hearing and the matter was listed for directions in this court. However, this was in circumstances where you faced a greater number of charges before the committal hearing, albeit that you made no offer to plead guilty to the charges for which I now sentence you, at an earlier stage. Three witnesses were cross-examined at the committal hearing which is your right and you are not to be punished for that.
25 I understand that one of the issues at the committal hearing concerned the weight of the plants, so this is a matter that may have impacted on your ability to make a sensible offer until such evidence was tested. In all of the circumstances of this aspect, I make a fairly significant discount in the sentence that you would otherwise receive.
26 In pleading guilty to the charges, you have saved the witnesses the time and trouble of giving evidence at trial and you have saved the community the time and expense of contested proceedings at trial.
27 I do not accept that you have expressed heartfelt remorse in respect of your offending in circumstances where you have sought to minimise your involvement, at least at the record of interview stage. However, I accept that you are remorseful for your present predicament and that jail has been a difficult experience for you. Also, you have been prepared to take responsibility for committing the offences which is a matter which goes in your favour. These matters are relevant to the principle of specific deterrence and your prospects of rehabilitation.
28 To your credit, you have no prior convictions. I also take into account that this is your first time in jail and that you are fairly isolated. You have little support in the community and you have only been visited by your wife and child on very few occasions. Also, you have been unable to do a number of courses whilst on remand. I have also taken into account that the first two weeks were spent in Magistrates Court cells which is an intolerable situation and made time in custody more difficult for you at that time than ought otherwise be the case.
29 In the event that you are sentenced to a term of imprisonment of 12 months or more, you are at significant risk of being deported. As your wife, whom you say you still love, and your child are living here and you wish to have a life with them, the risk of deportation is something that will weigh heavily upon you. In all of the circumstances, time in jail has been and will be harder for you than for someone without these difficulties.
30 I take into account your background. You were born in Saigon and moved to a town in South Vietnam when you were a young child. You are the youngest of five children and, sadly, both of your parents are now deceased. You are educated to year 7 and, after finishing school, you worked as a farm hand which is also the kind of work that you did when you came to Australia. You were married for the first time in Vietnam. However, upon coming to Australia in June 2008, your first wife left you and she remarried an Australian citizen which then enabled her to become one too.
31 You married the co-accused in 2011 and have a three year old child. There are two children from the previous marriage who are now 14 and 16. I was told that they have returned to Vietnam and now live with their paternal grandparents. You have no contact with them. You have an older sister in Perth, but you have had no contact with her since moving to Australia. I understand that you have some support in the community, that is from the Vietnamese community.
32 I was told that the only asset you have is the car that was seen at the crop house and you only have $100 in your bank account. In view of your otherwise good character, your lack of addiction to any substance, your pleas of guilty and your salutary experience of jail, but also taking into account your minimising of your involvement and the fact that you chose to engage in a second episode of criminal conduct after first offending over a series of months, I find that your prospects of rehabilitation are fairly good. I place some weight on specific deterrence, but this is less than moderate weight. It is accepted by your counsel on your behalf that a period of imprisonment is warranted and, of course, this is the submission of the prosecution.
33 A degree of cumulation as between Charges 1 and 2 is also justified, as you have chosen to reoffend only months after the commercial cultivation. However, I have also kept in mind the need to apply the principle of totality. While a sentence in excess of 12 months imprisonment will put you at significant risk of deportation, this is not a certainty and I cannot craft a sentence to avoid this risk as this would mean giving inadequate weight to all relevant sentencing principles.
34 Would you please stand up, Mr Tran?
35 You are convicted in respect of Charges 1 and 2. I make a disposal order in the terms of the document provided to me by the prosecution. That order is not opposed by you. I also make an order for the retention of the forensic sample previously taken from you. Again, this order is not opposed. I make the order for retention of the forensic sample because of the seriousness of the offending and because it is in the public interest to make the order.
36 You are sentenced to the following terms of imprisonment:
37 Charge 1, 14 months' imprisonment; Charge 2, five months' imprisonment. I direct that two months of the sentence on charge 2 be served accumulatively on the sentence for charge 1, giving a total effective sentence of 16 months' imprisonment and I direct that you serve 11 months' imprisonment before becoming eligible for parole. I declare that you have already served 261 days of imprisonment which will be deducted from the sentence that I have just imposed.
38 If not for your pleas of guilty, I would have sentenced you to a total effective sentence of three years, six months' imprisonment with a non-parole period of two years' imprisonment. Take a seat for a moment, please.
39 MR DEFTEROS: As Your Honour pleases.
40 MS KARAMICOV: As the court pleases.
41 HER HONOUR: Is there anything arising?
42 MR DEFTEROS: No, Your Honour.
43 MS KARAMICOV: No, Your Honour.
44 HER HONOUR: All right. Thank you. Yes, if you could please remove Mr Tran. Thank you for your assistance, Madam Interpreter. Thank you, counsel. We will now adjourn.
45 MR DEFTEROS: Thank you, Your Honour.
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UPON RESUMING ON WEDNESDAY 4 MAY 2016:
HER HONOUR:
46 Counsel has brought to my attention, quite properly, following the sentence that I imposed in relation to Mr Tran, that there was not at least six months between the non-parole period and the head sentence which there must be. Therefore the sentence was not in accordance with the relevant provision which is s.11 of the Sentencing Act 1991, so I am going to now reopen the proceeding for the purposes of imposing the correct sentence and that is something I can do pursuant to s.104B of the Sentencing Act 1991, so I do that in order to impose a sentence that allows for the six month period and I am of the view that in the circumstances, that the non-parole period will now be 10 months imprisonment. So to that extent I vacate the sentence that I previously imposed, so that the non-parole period is now 10 months before Mr Tran becomes eligible for parole, and I will also adjust the pre-sentence detention. Is that necessary too, Madam prosecutor, do you say?
47 MS CRVENKOVIC: I think it might be, Your Honour.
48 HER HONOUR: Yes, all right then. As from today, the pre-sentence detention would be 263 days? Is that - - -
49 MS CRVENKOVIC: That is not including today.
50 HER HONOUR: Not including today. Yes, thank you. So that is the period of detention from today that will be reckoned as already served. Is there anything further?
51 MR DEFTEROS: I have had a chance to speak with Mr Tran this morning so he understands what is going on and we appreciate the fact that Your Honour has brought him back to court, with the assistance of the interpreter so he fully understands what has transpired.
52 HER HONOUR: Yes, thank you, very much.
53 MR DEFTEROS: Thank you, Your Honour.
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