DPP v Tran [2013] VCC 1398 (25 September 2013)

Last Updated: 17 December 2013

IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL DIVISION

Case No. CR-13-01098

DIRECTOR OF PUBLIC PROSECUTIONS
v
VAN TUNG TRAN

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 September 2013
CASE MAY BE CITED AS:	DPP v. Tran
MEDIUM NEUTRAL CITATION:	[2013] VCC 1398

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr W. Dwyer
For the Accused	Ms N. Smith

HIS HONOUR:

1 Van Tung Tran, you have pleaded guilty to one charge of cultivation of narcotic plants, commercial quantity; and one charge of theft. These offences carry the following maximum penalties. Cultivation of narcotic plants, commercial quantity, 25 years' imprisonment. Theft, ten years' imprisonment.
2 It is unnecessary for me to recount the facts of the matter in detail as they are on transcript, the matter having been opened comprehensively by the learned prosecutor and that opening was accepted by you through your counsel. It is also contained in Exhibit 1, the summary of prosecution opening on plea.
3 I proceed to sentence you on the basis of these facts. You were the lessee of premises, a house situated at 9 Galli Court, Hillside. Police executed a search warrant at that premises on 17 May 2012. They found a sophisticated hydroponic cannabis plantation inside the house. There were cannabis plants growing in 12 rooms, supported by an extensive hydroponic system of connecting tubs, carbon filters, lighting, shrouds, 19 power boards, 174 transformers, fans and water pumps. The electricity meter had been bypassed to prevent registration of the power used in growing the cannabis crop. The charge of theft concerned the theft of electricity.
4 In total, police found 438 cannabis plants, weighing a total of 204.5 kilograms. The plants were in various stages of growth. You were arrested on
13 February 2013.
5 I state to you that I have taken into account the following matters in mitigation of sentence. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has by your plea been spared the time and cost of a trial, witnesses have been spared the ordeal of giving evidence upon your trial. You pleaded guilty at an early stage at the committal mention on 12 June 2013. I accept that you are genuinely remorseful. You have no prior convictions. I sentence you as a person of previously good character.
6 I have been told something of your personal circumstances. You are 38 years of age, having been born on 18 February 1975 in Vietnam. You are married and have two young children, aged four and a half and three years. You had an impoverished upbringing and suffered as a child as a result of an accident in which you were severely burnt in a house fire. You came to Australia on a tourist visa in November 2010. You overstayed that tourist visa and remained in Australia working as a farm hand. Whilst engaged in this seasonal work you were recruited to undertake the criminal activity of cultivation of cannabis. You were the lessee of the property. You were given the money to pay the rent. You resided in the property rent free. You also received approximately $500-$600 per week. You sent this money to your wife in Vietnam for her support and to help support your children.
7 You have been in custody continuously since 13 February 2013. That is a period of 224 days of which 121 days is pre-sentence detention in respect of this matter. The pre-sentence detention is from 27 May 2013, the date you were charged with these offences. I have taken into account the time you have spent in custody since 13 February 2013.
8 You are a foreign national and you are in custody. You are isolated from your family. You are therefore likely to find imprisonment more burdensome than if you had support from family or friends. I accept that you are also concerned about the health and wellbeing of your young children, particularly your youngest daughter who has suffered from severe burns.
9 I assess your prospects of rehabilitation as being reasonable.
10 Upon your release from custody, it is likely that you will be deported. This is not a factor in mitigation.
11 Against these matters in mitigation your actions were very serious indeed. The cultivation of narcotic plants, commercial quantity, is a serious offence.
12 I have had regard to the principle of parity. I have been provided with the sentencing remarks of Her Honour Judge Thornton, made on 8 November 2012 in respect to the co-accused, Dah Toan Dang. He was sentenced to a total effective sentence of 24 months' imprisonment, 12 months being wholly suspended for two years.
13 It is not in issue that you had a greater role in the offending than Dang. Your offending was also for a longer period. I have taken into account your role, antecedents and prospects of rehabilitation. It is, in my opinion, appropriate that you receive a longer sentence than Dang.
14 As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence. Specific deterrence is less relevant as you have no prior convictions. General deterrence is of considerable importance in a case such as this. This type of offending must be discouraged. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
15 It was submitted on behalf of the prosecution that an immediate custodial sentence was required and the appropriate range was a total effective sentence of two to three years, which a minimum term of one to two years. I agree with this submission.
16 Having regard to all relevant facts and appropriate sentencing principles,
I sentence you as follows:
17 Charge 1, convicted and sentenced to two years and three months' imprisonment.
18 Charge 2, convicted and sentenced to nine months' imprisonment.
19 I direct that three months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, otherwise the sentences be served concurrently.
20 The total effective sentence is two years and six months' imprisonment.
21 The non-parole period is the minimum term that justice requires you to serve, having regard to all the relevant circumstances that exist. For that reason it cannot be fixed automatically. All relevant factors and sentencing principles are to be taken into account. I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.
22 In all the circumstances I direct that you serve a minimum term of 18 months' imprisonment before becoming eligible for parole.
23 As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have spent in custody is 121 days, which is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the court.
24 There is an application made by the prosecution for retention of a forensic sample. Pursuant to s.464ZFB(1) of the Crimes Act, I intend to make such an order. The reasons for making the order will be published on the order which I will sign.
25 I have also made the compensation order sought by the prosecution.
26 (Section 464ZFB(1) order signed and acknowledged.)
27 (Compensation order signed and acknowledged.)
28 Pursuant to s.6AAA of the Sentencing Act, I state that the sentence and non-parole period I would have imposed but for the plea of guilty is:
Sentence, three years' imprisonment; non-parole period, two years' imprisonment.
29 MR DWYER: If Your Honour pleases.
30 MS SMITH: If Your Honour pleases.
31 HIS HONOUR: I have signed all the orders, that covers everything.
32 MR DWYER: Yes, Your Honour.
33 HIS HONOUR: Thanks a lot for your help.
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