R v Trinh

[2013] VCC 1588

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-01378

DIRECTOR OF PUBLIC PROSECUTIONS

v

THAI TRINH

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JUDGE:	His Honour Judge Maidment
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2013
DATE OF SENTENCE:	16 October 2013
CASE MAY BE CITED AS:	R v Trinh
MEDIUM NEUTRAL CITATION:	[2013] VCC 1588

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

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Roper
For the Accused	Mr Gullaci

HIS HONOUR:

1       Thai Ho Trinh, you pleaded guilty to an indictment charging you with cultivation of a commercial quantity of cannabis L between 1 November last year and 18 April of this year and also with an offence of theft of electricity between those two dates in connection with the cultivation of the cannabis L.  Cultivation of a narcotic plant in a commercial quantity carries a maximum term of imprisonment of 25 years and theft carries a maximum term of imprisonment of ten years.  You have no prior convictions. 

2       The prosecution tendered and relied upon a prosecution opening in written form which is Exhibit A on the plea hearing and no dispute has been taken with the contents of that document.   To all intents and purposes, it represents an agreed statement of the facts upon which I can proceed to sentence.  I incorporate that document in its entirety into these reasons for sentence.  I do not propose to read the document, or any part of it again, suffice it to say that during the period in which you were cultivating the cannabis L, you were apparently responsible for the cultivation of more than one crop, as you frankly admitted to the police.  You did your part in the cultivation for financial gain, and according to what you told the police, you got $3,000 to $5,000 for each harvest at the Hanleth Avenue property and $2,500 to $3,000 for each harvest at the Billing Street property and you estimated that you had earned during the period that you admitted being involved in this venture a total of between $11,000 and $16,000 from the harvest at those addresses.

3       It is also apparent from the prosecution opening Exhibit A that it was you that informed the police of the second property, that is the Billing Street property and although you had a key to those premises in your possession when you were arrested, it is unlikely that the police would have discovered that second property and the cultivation that was being conducted there without your frank admission as to your involvement with that property.

4       It is also clear from the prosecution opening, and indeed from discussion during the course of the plea that the prosecution accept that after you were arrested, you gave the police a full and frank account of your involvement in the offending conduct.  There was of course discussion about whether your naming of the person who you described as the boss, the person who was responsible for paying you for your participation and apparently overseeing your involvement in the offending conduct was of assistance in discovering who that person actually was and perhaps enabling the police to arrest that person.  I am told that the name that you gave was one that is held in common with a number of people in the Vietnamese community and no doubt in the Springvale area and that it would be impossible to identify the individual, even if the name you had been given by that person was indeed that person's correct name.

5       I cannot therefore I think give you any significant discount for assisting the police in their further investigation of this matter.   But I do take into account that you have made a full and frank confession to your involvement in the matter and given such assistance as you were able to the police, even though as I say, that might not have, in the end been particularly useful.  It is also clear I think that you pleaded guilty to this offending conduct at the earliest reasonable opportunity and you are clearly entitled therefore to a discount for the saving in court time and in the prosecution of this matter and saving witnesses having to attend court and generally facilitating the administration of justice.

6       Turning to matters personal to you, your counsel helpfully provided me with a brief outline of submissions, together with a report from Pamela Matthews, a forensic psychologist dated 15 October of this year and a bundle of certificates which show that you have been endeavouring to make use of your time whilst on remand, awaiting this plea hearing, to obtain skills and to rehabilitate yourself. 

7       The report of Ms Matthews helpfully sets out much about your background history, that you grew up in Vietnam with your 61 year old mother and your now 69 year old father who are both factory workers and you have one older brother aged 36.  You seem to have had a happy enough childhood in Vietnam and you went through your education in Vietnam through high school and attended an institution called The Academy of Financing and Accounting in Hanoi, where you completed your five year course before becoming employed as an accountant for a computer business.  You apparently remained in that job for 18 months after you qualified, prior to moving to Australia around your twenty-seventh birthday in 2008.

8       You came to Australia and completed an English course prior to commencing a Bachelor of International Business at La Trobe University.   But after completing one term, you discontinued that because of difficulties in supporting yourself financially.  You re-enrolled at the Cambridge International College, but discontinued that after two terms, again struggling financially.  By that time you had apparently married your wife who is of Vietnamese origin, but is an Australia citizen, and you married her in May 2012. 

9       Unfortunately it seems your wife is addicted to heroin and through that addiction, she has fallen foul of the law and has served a term of imprisonment from which she was released earlier this year.   But having failed a urine sample, she has breached her parole and is back in custody.  You told Ms Matthews, and I accept that your motivation for becoming involved in this offending conduct was financial hardship, at least partly if not significantly brought on by the expense of maintaining your wife's heroin habit and helping her as best you could to deal with that habit and to maintain payment of household bills.

10      Ms Matthews takes the view that you are a normal guy to all intents and purposes, albeit that you have exhibited some stress related symptoms and may meet criteria for an adjustment disorder and disturbance of conduct disorder.   But really I think the essence of the report is that you are a normal guy who was under some stress at the time that you committed the offences and that there is nothing in the report which suggests that the Verdins principles or any of them apply so as to reduce your culpability or otherwise place you under undue hardship whilst you are in custody.

11      The report does suggest that you are nevertheless coping with conditions of imprisonment.  I understand that you have a visit from time to time from your mother-in-law and that they seem to be supportive of you whilst you are in prison.  Indeed your parents are aware of where you are and they too are supportive of you.  All of that is relevant it seems to me to the conclusion of Ms Matthews' report and indeed the submissions made on your behalf that you do have reasonable prospects of rehabilitation, of staying out of trouble in the future.  It would be a good thing if you had some help and as your counsel put it, that can profitably and usefully be given whilst you are on parole under the auspices of and supervision of the Corrections Department.   If you get that sort of assistance, then you have every prospect of staying out of trouble in the future.

12      I note that you are anxious when you have completed your sentence to do your best to get a full time job and to provide as much assistance for your wife as you possibly can.   I have no doubt that you are sincere about that intention.  It is submitted on your behalf also that I should find that you are remorseful, that is that you are genuinely sorry for your offending conduct and your counsel drew my attention to various factors which supported that.  It seems to me that it is reasonable to conclude that you are genuinely remorseful and as I have pointed out to counsel it would seem to me that the genuineness of your concern for your wife and the assistance you would wish to give her will no doubt have caused you to pause and think as to the effect that your conduct has had on your ability to do that.   I am inclined to accept that you are genuinely remorseful for having become involved in this offending conduct.

13      Not only have you no prior convictions, but you have nothing pending in the criminal justice system, no outstanding charges.   It is to your credit that despite being in a foreign country, and despite being away from your family supports and having financial difficulties, this was the first offending conduct in which you engaged since you have been in Australia.  All in all therefore, I accept that you do have at least reasonable prospects of rehabilitation and I am inclined to think that your prospects of rehabilitation are good.

14      I note that the prosecution have applied for a compensation order in the sum of $9,059.55 and a pecuniary penalty order in the sum of $11,000.  That latter order is consented to as I understand it and the other orders, including an order for disposal of the equipment that was removed from the property and for retention of a forensic sample taken from you for DNA comparison.  Those orders are not opposed and I will make those orders in due course.  It is I think something of a further penalty or punishment for you to have a pecuniary penalty order, and I take that into account in assessing what is an appropriate penalty.

15      The prosecution were invited to, and did, provide me with what they submitted was an appropriate range of sentences within which I should select an appropriate sentence.   They also provided me with the sentencing snapshot document which is No.133 and an extract from the sentencing manual provided by the Judicial College of Victoria which sets out in brief summary the results of cases of a similar kind which have come before the courts.

16      Every case of course has to be looked at on its own particular facts and those documents only have limited utility, but they do assist in identifying an appropriate range, identifying current sentenccing practise for offences of this kind.  The range that the prosecution submitted I should look to in determining an appropriate sentence was a head sentence, that is a total effective sentence of between three years and three months, and four years and three months' imprisonment and a non-parole period of between 18 months and two and a half years' imprisonment. 

17      I did not take it that your counsel took great issue with the range that was put forward and rather he submitted that whatever I regarded as being an appropriate head sentence, that is the total effective sentence.   I should ensure that you got the maximum benefit of a significant period on parole, so that you will have the support structures in place to assist you in your rehabilitation, assist you in settling back into work and in meeting the goals that you have set for yourself once you have completed your sentence.

18      All of that I note is dependent upon the Department of Immigration as to whether they take action to have you deported and it seems at least a possibility that that will occur.  I note that you have put in an application for permanent residence on the basis that you are married to an Australia citizen, and it may be that that application will be successful.  However, there is clearly a state of uncertainty which I have no doubt at all is weighing on your mind and making more difficult the period that you have to serve in custody and I take that into account in assessing an appropriate sentence.  It will be difficult for you of course that your wife is currently incarcerated herself and that clearly you are not in a position to receive visits from her or to have direct contact with her.  That too, I have no doubt is weighing on your mind and make it more difficult the time you have in custody.

19      Although you do have support structures in Australia, you are separated from your parents and your brother and you are not able, of course, to receive visit from them during the period of your incarceration and that too will no doubt, make your period in custody somewhat more difficult.  I am of course required to express the denunciation of this court of conduct of this kind to punish you justly and appropriately for your offending conduct and to deter you from committing offences of this kind in the future.  Most particularly I think the principle of general deterrence, that is deterring others from committing offences of this kind is particularly important in cases like this.  I do not think I need to have any expert evidence placed before me to say that this is a prevalent offence.   We deal with many of these cases in these courts on a weekly basis and the pattern of the offending and the role played by most of those who come before the court are remarkably similar to the circumstances in which you became involved in this offending conduct.

20      I accept that your role was as a house sitter or a crop sitter.  It is very likely that what you say about being approached in the way you were to participate is correct and that you would have been paid for taking the risk of being the person who was likely to get caught if the use of the premises chosen for the cultivation was discovered by the authorities.  I accept that your role was towards the bottom end of the scale in terms of seriousness, although the sophisticated nature of the hydroponic set up and the number of plants and the fact that two premises were used would suggest that this was a substantial commercial venture to which you attached yourself and therefore your offending conduct is nevertheless serious.   Although as I say, your role was a relatively low level one in the overall scheme.

21      I am doing the best I can to balance the factors that I have referred to against the need to facilitate your rehabilitation to the extent that I can.  I am now in a position to pass sentence.  Mr Roper did I make a mistake about - - -

22      MR ROPER:  I was just troubled - pardon the look on my face Your Honour, Your Honour said - - -

23      HIS HONOUR:  As to whether I am entitled to take into account the pecuniary penalty order.  Is there something in the section which deals with that?

24      MR ROPER:  In the Sentencing Act, s.5 Your Honour, s.5 2A(d) provides that in sentencing an offender, a court must not have regard to a pecuniary penalty made under that Act, the Confiscations Act, to the extent that it relates to profit as opposed to benefits derived from the commission of the offence.  The previous subsection says that the court may have regard to a pecuniary penalty order made under that Act to the extent to which it relates to benefits in excess of profits derived from the commission of the offence.

25      HIS HONOUR:  Well these were benefits were they not, rather than profits in the sense that he was not participating in the profits, he was getting a benefit in terms of, as it were a wage or at least a portion of money derived from the profits.  Now does that, how does that fit within the - I will have a look myself I think.  I don't want to make a mistake although I'm not sure it's going to make a lot of difference.

26      MR ROPER:  No - it was an abundance of caution Your Honour.

27      HIS HONOUR:  Did you pick that up Mr Gullaci?

28      MR GULLACI:  Your Honour, I did, and the reason again why I didn't put in my written outline was, and it might be a failure on my part, but I took Mr Roper's interpretation rather than Your Honour's because - - -

29      HIS HONOUR:  I'm not being dogmatic about an interpretation.

30      MR GULLACI:  No - - -

31      HIS HONOUR:  I just want to make sure I don't make an error, that's all.

32      MR GULLACI:  I think it really comes down to the definition of profits and the concern that I had was that clearly Mr Trinh's instructions and comments to the police, it would appear that every time there was a harvest, he was paid this amount because of what, presumably what it - that would come out of what the money that would be made from each of those harvests.  So I took the more liberal view of the word "profits", that that really was, in essence been paid out of what the bosses presumed would be the money that they would make from the sale of the harvested cannabis.

33      HIS HONOUR:  What's the section I need to be looking at Mr Roper sorry?

34      MR ROPER:  Sentencing Act Your Honour, s.5(2A)(c) and (d).

35      HIS HONOUR:  Yes.  It really depends on what a benefit and what a profit is.

36      MR GULLACI:  Yes.

37      MR ROPER:  Yes.

38      HIS HONOUR:  Is that defined in the Confiscations Act?

39      MR ROPER:  I'm actually looking at the Act Your Honour to see if there are other pecuniary orders, there isn't any.  There's certainly no definition at the beginning of the Act.  There's a section of assessment of benefits. 

40      HIS HONOUR:  Division 3 of Part 8 of the paragraph, s.67, assessment of benefits..

41      MR ROPER:  Sixty-seven.

42      MR GULLACI:  Your Honour could I just raise one matter?

43      HIS HONOUR:  Yes.

44      MR GULLACI:  That section that Your Honour's referred to, and this is the difficulty I think in trying to work out the difference.  If one looks at the very first category of the Confiscation Act, that's 67(1)(AA), that on a - well this is my submission, that on a commonsense meaning would have to be very close to what one would think the word "profit" would mean.  So, the only reason I raise that is that whether the definition under the Confiscation Act is going to be helpful in light of the very broad definition of "benefit" when in the provision of s.5(2A), it seems to distinguish between a profit and a benefit. I just raise that because for my part, s.67(1)(AA) would seem to be as close to a profit as I could think in terms of a definition. So it seems very - and then that is why I took the view that, because of the way the Sentencing Act provision is drafted that the prosecution position, as I understood it was, because there had been two previous successful harvests, and presumably money had been earned, then it had then been distributed to the bosses, that in essence Mr Trinh was getting an advance on those anticipated profits and that was, that was the way that I viewed it, but again it might be wrong.

45      HIS HONOUR:  Benefit, yes I think probably the safest thing for me to do is not to take it into account.

46      MR GULLACI:  I think that's correct Your Honour.

47      HIS HONOUR:  And I now declare that I rescind my previous comments.

48      MR GULLACI:  As Your Honour pleases.

49      HIS HONOUR:  I have to say that it's part of the instinctive synthesis rather than any sort of pro rata deduction that I had in mind. 

50      All right now in doing my best to balance all of those factors and with the qualification that I have just put on what I have said previously, I am now in a position to impose sentence upon you Mr Trinh. 

51      Thai Ho Trinh, for the offence of cultivating a commercial quantity of cannabis, I sentence you to three years and three months' imprisonment and I convict you.  For the charge of theft of electricity, I sentence you to imprisonment for six months and I convict you.   I order that three months of the sentence on Charge 2 be served cumulatively upon the sentence on Charge 1, making a total effective sentence of three years and six months and I fix a non-parole period of 18 months before you become eligible for parole.  I declare 181 days of pre-sentence detention as time already served on the sentences that I have imposed and to be deducted administratively from that sentence and I order that that fact be reflected in the records of the court.  But for your pleas of guilty, I would have sentenced you to a total effective sentence of five years' imprisonment, with a non-parole period of three years.

52      Now I make the orders for disposal of property for retention of the forensic sample for compensation and the pecuniary penalty order in accordance with the drafts provided by the prosecution.  I have signed those orders, save for the amended pecuniary penalty order and I will do that now.  Are there any other orders that I need to make gentlemen?

53      MR ROPER:  No Your Honour.

54      MR GULLACI:  No Your Honour.

55      HIS HONOUR:  You can take a seat for the time being Mr Trinh.  Mr Gullaci I'll give you back the certificates from the Cambridge Institute, I've got copies of them on the file in any event.

56      MR GULLACI:  As Your Honour pleases.

57      HIS HONOUR:  Your client may need them at some stage in the future.

58      MR GULLACI:  Thank you Your Honour.

59      HIS HONOUR:  I'll give you back the photographs too Mr Roper.  Thank you.

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