|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
County Court of Victoria |
Last Updated: 16 March 2022
|
Revised
Not Restricted Suitable for Publication |
---
|
JUDGE:
|
||
|
WHERE HELD:
|
||
|
DATE OF HEARING:
|
||
|
CASE MAY BE CITED AS:
|
||
|
|
||
Subject: Criminal law – Sentence
Catchwords: Cultivation of a narcotic plant in a commercial quantity – cannabis L – crop sitter – category 2 offence – no prior criminal record – accused subject to protection visa – inevitable deportation – 431 cannabis plants with a combined weight of 223 kg – early guilty plea – onerous conditions in custody – remorseful – favourable rehabilitation prospects
Legislation Cited: Sentencing Act 1991 (VIC); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Confiscation Act 1977 (Vic)
Cases Cited: Worboyes v The Queen [2021] VSCA 169; (2021) 96 MVR 344
Sentence: 2 years and 9 months’ imprisonment with a
non-parole period of 20 months’ imprisonment
---
|
APPEARANCES:
|
Counsel
|
Solicitors
|
|
For the DPP
|
Mr S Davison (Plea)
Ms V Kambouropoulos (Sentence) |
Office of Public Prosecutions
|
|
|
|
|
|
For the Accused
|
Mr M Amad
|
Richard Revill Lawyers
|
Introduction
1 Hieu Duy Tran, you have pleaded guilty on indictment to one charge of cultivation of a narcotic plant, namely Cannabis L, in a commercial quantity pursuant to s72A of the Drugs, Poisons and Controlled Substances Act 1981. This offence carries a maximum penalty of 25 years’ imprisonment.
2 It is also a Category 2 offence. This means I am required to sentence you to a custodial order unless one of the circumstances set out in s5(2H)(a) to (e) of the Sentencing Act 1991 is established. Your counsel did not seek to rely on any of these exclusions.
Circumstances of the offending
3 The circumstances of your offending are set out in the prosecution opening dated 4 February 2022.[1] Your counsel takes no issue with the factual circumstances set out in the opening.
4 You are a Vietnamese citizen and arrived in Australia in 2019. At the time of the offending, you were living at 12 Mineral Court, Drouin, with your partner and child.
5 At approximately 8.25am on 28 June 2021, police executed a search warrant at this address. You, along with your partner and child, were located in one of the front bedrooms.
6 Police immediately noticed the smell of cannabis and the presence of mould on the interior walls and ceiling of the house.
7 It was apparent that the house had been set up for the primary purpose of cultivating cannabis. Hydroponic set-ups for the growing of cannabis plants were observed throughout the house in a total of nine rooms. A total number of 431 cannabis plants with a combined weight of 223 kilograms were seized.
8 You were arrested and conveyed to Warragul police station. You exercised your right to silence in the police interview.
9 You have remained in custody since your arrest.
10 A police botanist confirmed that all 431 plants were either in post propagation phase or post nursery phase. The ages of the cannabis plants ranged from approximately two to three weeks to 11 to 14 weeks old.
11 There is no dispute that you are to be sentenced for being a crop sitter for a period of 11 weeks between 12 April and 28 June 2021.
Personal circumstances
12 You were born in Vietnam and arrived in Australia in 2019 on a protection visa. In Vietnam, you were a self-employed photographer. Due to mounting business debts with money lenders, who were charging exorbitant interest rates, you were declared bankrupt. These moneylenders threatened you and your family with violence if the debts were not repaid.
13 You arrived in Australia along with your wife but left behind your two young children, now aged three and five. Since arriving here, your wife gave birth to your third child, who is now one year old.
14 On 26 November 2021, the Department of Home Affairs cancelled your and your wife’s visa. The decision has been appealed to the Administrative Appeals Tribunal. Pending the appeal, your protection visa remains active. However, I was told that you plan to abandon the appeal and return to Vietnam. It is inevitable you will be deported.
15 As a result of a lack of support or income, your wife returned to Vietnam on 20 January 2022. I have had regard to the letter from Ms Gilby dated 19 January 2022.[2] Ms Gilby is a maternal and child health nurse who provided support to your wife and child prior to their departure to Vietnam. Your partner has told Ms Gilby that she will be residing in Vietnam with your parents who are very traditional and strict.
Gravity of the offending
16 The maximum sentence of 25 years imprisonment makes it plain how seriously Parliament views this offence.
17 General deterrence is of utmost importance given the prevalence of this offence. The sentence imposed must deter not only crop sitters but all of those involved in the cultivation, including those who are to reap significant rewards. Whilst the crop sitters get arrested, those who implement and are behind the enterprise often avoid detection. This offending has a detrimental effect on the users of the end product and causes misery in the community. Your crime must be denounced, and you must be justly punished.
18 You came to Australia in circumstances where you had been declared bankrupt in Vietnam. Having arrived here, you struggled financially. You were not eligible for Centrelink and your limited English made it difficult to find employment.
19 You were offered an opportunity to live at 12 Mineral Court, with your wife and child rent free. In return, you were required to look after the illegal crop growing everywhere in the house. Upon harvest, you were to be paid $2,000.
20 I accept that your role in the offending was what is commonly labelled as that of a ‘crop sitter’. You had no financial interest in the operation, and you were not involved in the setting up or funding of the unlawful enterprise. You were looking after the crop for others who had organised and stood to benefit significantly from this illegal activity.
21 Having said that, labelling you as a crop sitter doesn’t mean much. The circumstances of your offending need to be looked at closely.
22 It would have been apparent to you that this was a relatively sophisticated operation all around the house, involving extensive lighting and transformers. The electricity meter was bypassed to steal electricity and avoid detection. You are not charged with theft of the electricity and will not be punished for it, but it demonstrates the scale of the operation. You were living at the house and played an important role in looking after the crop for an extended period of 11 weeks. This involved you watering the plants and ensuring the lighting was operating.
23 You were looking after a large number of plants, 431 in total weighing 223 kgs. Therefore, you were looking after over 4 times the commercial threshold in terms of the number of plants and just under 9 times the commercial threshold in terms of weight.[3]
Matters in Mitigation
24 I accept that your plea of guilty was entered at the earliest opportunity and entitles you to a significant discount in your sentence. Your plea of guilty has saved the community the time and expense associated with contested proceedings. It is reflective of an acceptance of wrongdoing and a willingness to facilitate the course of justice. Given the current challenges that our administration of justice faces due to the pandemic, resulting in a significant backlog of trials, your plea of guilty entitles you to a further and palpable discount. The courts must encourage those who are guilty to so plead, and such encouragement must come from a further amelioration of sentence.[4]
25 Furthermore, I am satisfied that your plea of guilty is demonstrative of genuine remorse. You have expressed your regret in a letter written to the court dated 21 February 2022.[5]
26 You are now aged 31 and have no prior convictions recorded against you.
27 You have remained in custody since your arrest. I accept that your time in custody has been and will continue to be burdensome. You are all alone in a new country with no family or friends. Your English is very limited. As a result, you have been isolated in custody. You are anxious knowing that your wife and young children are alone in Vietnam with very limited financial resources and struggling. You will not be able to maintain any meaningful contact with them whilst you are serving your sentence.
28 Furthermore, your time in custody has been and may continue to be difficult as a result of the pandemic. You have spent some 15 days in quarantine but have also been subjected to many lockdowns and being confined to your cell. There are a lack of courses and programs. You are in an environment over which you have little control and are concerned at contracting Covid-19. You are also anxious about your family in Vietnam contracting the virus.
29 I take into account this additional hardship in custody in moderating the sentence I impose.
30 Upon your eventual release, you intend to return to Vietnam to reunite with your family. You do not rely upon the prospect of deportation as a mitigating factor.
31 Bearing in mind your plea of guilty, remorse, lack of prior history, I assess your rehabilitation prospects as favourable.
Sentencing
32 Having taken into account all relevant sentencing factors and principles, you are convicted and sentenced to 2 years and 9 months’ imprisonment. I set a non-parole period of 20 months’ imprisonment.
Pre-sentence detention
33 Pursuant to s18 of the Sentencing Act 1991, the period of 256 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
34 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had Mr Tran pleaded not guilty and been found guilty, he would have been sentenced to a term of four years and three months’ imprisonment with a non-parole period of two years and six months.
Disposal Order
35 Pursuant to s77(1) of the Confiscation Act 1997, I grant the disposal order in respect of the cannabis L. plants.
[1] Exhibit A.
[2] Exhibit 3.
[3] A commercial quantity of cannabis is 25kg or 100 plants. See Drugs, Poisons and Controlled Substances Act 1981, s 70(1) and Schedule 11, Part 2.
[4] Worboyes v The Queen [2021] VSCA 169; (2021) 96 MVR 344.
[5] Exhibit 4.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/vic/VCC/2022/264.html