R v Tran
[2013] VCC 1594
•4 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01229
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN TRAN |
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JUDGE: | Her Honour Judge Patrick | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 October 2013 | |
CASE MAY BE CITED AS: | R v Tran | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1594 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | |
| For the Accused | Mr B. Wilkinson |
HER HONOUR:
1 Van Thien Tran, you have pleaded guilty to three offences. You have pleaded guilty to cultivation of a narcotic plant in not less than a commercial quantity (Charge 1), trafficking in a drug of dependence (Charge 2), and theft (Charge 3).
2 The maximum penalties for those offences are as follows. The maximum penalty for cultivation of a narcotic plant in not less than a commercial quantity is 25 years' imprisonment. The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment and the maximum penalty for theft is 10 years' imprisonment.
3 The prosecution sought orders for the disposal of certain items and the taking of a forensic sample from you. The making of those orders was not opposed.
4 The circumstances of your offending are set out in the Plea Opening which was tendered as Exhibit A. In brief, on 28 March 2013, police executed a search warrant at a house occupied by you in Springvale South. Inside the house police found a sophisticated hydroponic cannabis growing set up in two bedrooms of the house. A third bedroom was found with a similar set up. In that third room there was a plastic tub with 45 cannabis seedlings. There were also 45 cannabis seedlings found in a closet in a garden shed. In the two bedrooms of the house which had been searched, there were 32 mature plants. The total number of plants seized was 154 plants, with a combined weight of 24 kilograms.
5 The police also found an electrical bypass system installed in the roof which diverted electricity from the area of the house in which the cannabis plants had been growing.
6 You were arrested and taken to a police station for interview. You had cooperated in allowing the police into the house and you continued to cooperate by making full admissions in a record of interview. You said you had been cultivating the cannabis for about 11 months. You said that you had been paid an amount of cash by various people for each harvest and that you had been paid so far $60,000 for three crops.
7 You said that the people to whom you sold the cannabis were very smart and frequently changed their names or phone numbers. You admitted being assisted in the setting up of the electrical bypass. You said you became involved in the cultivation and trafficking of cannabis for money. The prosecution have accepted that the other persons to whom you referred were above you in the organisation of growing the cannabis. The wholesale value of the crop had it matured was estimated to be between $125,000 and $200,000.
8 You indicated your plea of guilty at an early stage and the matter proceeded at committal by way of straight hand-up brief and indications of pleas of guilty.
9 In sentencing you I have taken into account your personal circumstances. You are now 49 years old. You came to Australia about 25 years ago from Vietnam. You have three sisters still alive in Vietnam. Your mother is also still alive in Vietnam. She is now 84 years old and you have been providing her with financial assistance for many years. When you came to Australia you had little English but you have obtained employment. Since that time you have worked in various jobs. At the time of your arrest you were working as a handy man. You have been married and have two children. You and your wife separated approximately six years ago. Your daughter was in court to support you. You have no prior criminal history.
10 Two character witnesses gave evidence on your behalf and a number of documents relevant to your financial situation were tendered.
11 In sentencing you, a very important matter is of course your role in the cultivation and trafficking of cannabis. The role you played was a vital and important one. You provided the place in which cannabis could be grown. You knew about and allowed the electrical bypass. You cooperated with the other people who were assisting you in the setting up and the maintenance of this crop growing set up. The set up was a sophisticated and well maintained set up. I draw that conclusion from the photographs which were tendered as Exhibit B. I accept that you personally are not a sophisticated criminal, but it appears that you were involved with others who might be described as sophisticated criminals.
12 From your admissions you trafficked over a period of time selling the three crops for $20,000 each. I accept that you were selling those crops to persons higher up than you in the organisation and that you were not selling the cannabis directly to cannabis users. You engaged and took part in deliberate illegal activity in growing cannabis for money and in the dishonest obtaining of electricity without paying for it.
13 The trade in illegal drugs is an evil trade. That business makes money and profit out of the vulnerabilities and weaknesses of other people. The activity of growing or manufacturing illegal drugs and selling them must be strongly denounced. Penalties must be imposed which deter others from engaging in that business. I accept that you had some financial problems but your financial problems were not of an extreme nature. You made a deliberate decision, it appears, to get involved in this business. I consider your moral culpability to be high.
14 I do take into account in sentencing you that the issue of commercial quantity relies on the number of plants rather than the quantity of cannabis that was seized. I accept that a considerable number of the plants were immature, nevertheless it was clearly your intention that those plants would gain maturity ultimately and be sold. Overall, a significant amount of marijuana was involved.
15 There are a number of matters that I have taken into account in mitigation of sentence. You cooperated immediately with the police and made frank admissions. You indicated your plea of guilty at the earliest opportunity. You have saved considerable expense and inconvenience by doing so. I also regard your immediate cooperation and admissions to be an indication of remorse in relation to your wrongdoing. You have no prior criminal history. That has been the case for many years and you are entitled to credit for that.
16 It appears from your history that you have been a hardworking person who has tried to help others. The evidence given on your behalf confirms that. It is my view that having been caught on this occasion, and facing punishment for your offending, you are unlikely to re-offend. You have no problems whether of a psychological or other nature to stand in the way of your rehabilitation. I consider your prospects of rehabilitation to be good.
17 Taking into account the matters in mitigation, I regard a sentence of imprisonment as being clearly warranted for the purposes of denunciation, just punishment and general deterrence. I have taken into account the principles of totality and proportionality in determining the appropriate sentences and the degree of cumulation or concurrency. I consider that there should be some cumulation in relation to the trafficking charge. In setting the amount of cumulation, I have taken into account that your trafficking was connected to the cultivation charge and that your prosecution on that charge relied on your admissions.
18 In relation to Charge 3 of theft, I regard it appropriate to impose a totally concurrent sentence on that charge given that that offending is intrinsically connected with the cultivation charge.
19 I have taken into account the maximum penalties appropriate to each of the offences. The maximum penalty in relation to cultivation of a narcotic plant in not less than a commercial quantity of 25 years reflects the seriousness with which the community takes this type of offending.
20 In view of your cooperation and plea of guilty, long period without any prior criminal history and good prospects for rehabilitation, I have imposed a shorter non-parole period than I would have otherwise. I note and accept that you suffer from hypertension, but on the material before me, there appears to be no reason why that condition cannot be appropriately treated in custody.
21 On Charge 1, cultivation of a narcotic plant in not less than a commercial quantity, you are convicted and sentenced to three years' imprisonment. On Charge 2, trafficking in a drug of dependence, you are convicted and sentenced to one year and three months' imprisonment. On Charge 3 of theft, you are convicted and sentenced to six months' imprisonment.
22 Six months of the sentence on Charge 2 is to be served cumulatively on the sentence of Charge 1. The total effective sentence is a term of imprisonment of three years and six months. I fix 18 months as the period that you are required to serve before being eligible for release on parole.
23 But for your plea of guilty, I would have sentenced you to a term of imprisonment of five years and three months, with a non-parole period of three years and eight months.
24 I make the orders for disposal sought. I am also making an order for the taking of a forensic sample from you. That sample will be taken by a saliva swab from your mouth. I am required to inform you that when the authorities come to take the sample, if you do not consent or cooperate, then the sample can be taken as a blood sample and police can use reasonable force to enable that procedure to be undertaken. I am confident Mr Tran that you will cooperate with the authorities when they come to take the saliva sample.
25 I will have it noted on the documentation that you are currently taking medication for hypertension.
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