Sentence: Convicted and sentenced to 20 months' imprisonment with a non-parole period of 15 months' imprisonment - 213 days pre-sentence detention declared as having already been served - s.6AAA Sentencing Act 1991 declaration - Ancillary order - Disposal and Forfeiture orders
[2]
Just remain seated until I ask you to stand up towards the end of my sentencing remarks, please, Mr Tran.
Viet Cuong Tran, you have pleaded guilty to the charge of cultivation of a commercial quantity of cannabis, which has a maximum penalty of 25 years' imprisonment. The maximum penalty reflects the seriousness with which Parliament regards this offence.
Your offending was opened by the prosecution as follows. At the time of the offence, you were 27 years of age, unemployed and residing in Footscray. You were in Australia lawfully on a bridging visa E, a class of temporary visa which allows a person to remain in Australia while making arrangements to leave, or while waiting for an Immigration decision. The bridging visa expired on 24 January 2017.
At about 1.20 pm on Saturday 29 October 2016 police attended at 6 Maple Court, Doncaster, in response to a call from a member of the public regarding an unrelated incident. The residence is owned by Oan Vu, but was leased to a Vietnamese male named Quoc Lieu from 1 June 2016.
Upon arrival, police knocked on the front door but there was no answer. The officers could hear noises within the residences and walked to the rear of the property to investigate. They also observed a strong smell of cannabis emanating from the property.
As they walked to the back of the property, police observed two males escape from the rear of the residence by scaling the back fence. Police chased these males, but were unable to catch them. Further attempts to identify or locate either of those two males have failed.
Upon their return to the residence, police observed a black Toyota Camry parked in the carport of the property. Hydroponic equipment was situated on the rear seat of the vehicle. Police then entered the residence via an unlocked rear door and discovered a sophisticated hydroponic setup throughout the house. A substantial quantity of cannabis plants was found in various stages of growth, along with a large number of bags and drying racks containing dried cannabis.
As the scene was being secured, you were discovered by police hiding in a shed. You were arrested and taken to Doncaster Police Station.
A subsequent search of the Toyota Camry located the following items: Three fans; seven transformers; 44 light globes, two light shrouds; plastic connectors; $55 in Australian money; and $2 in Singapore money; and a mobile phone.
A search of the residence located a sophisticated hydroponic setup with eight separate rooms dedicated to the cultivation of cannabis. Police seized from the residence the following: 181 cannabis plants; a large quantity of dried and drying cannabis flowers; 120 light globes; 89 light shrouds; 96 transformers; seven fans; various hydroponic equipment including water pumps, plastic tubing, pH readers and nutrient chemicals; eight carbon filters; and four electrical bypass units.
A wallet was found in the pocket of the jeans containing identification documents in your name. Police also found two backpacks in the kitchen. One contained documents belonging to Tuc Vi Chu, and the other contained documents belonging to an unidentified male.
A technician from the Formway Group attended the property and found an illegal electrical metre bypass in the roof cavity. It is not alleged that you were involved in the installation or use of this bypass.
A biologist examined the cannabis material at the scene and certified the following:
The 181 plants including five leafy steams seized were cannabis L, with a total weight of 59.88 kilograms. However, this evidence was led by background and context only, rather than the basis for your offending; and
The dried material seized was cannabis L with a total weight of 46.63 kilograms, which is the factual basis for your offending.
You were interviewed on 29 October 2016 with the assistance of a Vietnamese interpreter. You gave the following explanation for your presence at the property:
On 28 October 2016 you had approached by two unknown Vietnamese males on the street in Sunshine. You said these males offered you $500 for one day of work.
You said you were picked up by the two males at 8.00am on 29 October 2016 from the Sunshine Railway Station in a black Toyota Camry, and driven to the property. You were told to cut the plants and separate the flowers, which you did with the two males throughout the day. You used scissors to harvest the buds and place them in a basket. You said when the men heard a knock on the door, you were told to go into the shed and hide, which you did. You remained there until police found you.
You said you did not know where the two males had gone. You did not know what the plants were, or that they were illegal. You had gone into three rooms to harvest plants throughout the day. You said you did not know the names of the two males who had recruited you. You had a change of clothing with you at the residence, which you were told to bring by the males so that you had something to change into after the job. You had not yet been paid for your work, as the males advised you that you would receive payment when the job was finished.
These were extracts from the Record of interview relied on by the prosecution.
You have been in custody since the date of your arrest, being 29 October 2016.
Mr Tran, your offending is serious. You assisted in a commercial cultivation of an illicit drug, in a quantity that was well in excess of the threshold for commercial quantity. In saying this, I make it clear that you are not charged on the basis of the 181 plants, but the quantity of 46.63 kilogram dried cannabis that was located. This is nearly twice the threshold for commercial quantity. The setup was sophisticated and extensive, and the evidence reveals that it was to be an ongoing enterprise.
However, I also sentence you on the basis of your limited role in this commercial cultivation, being about five hours on one day. According to your record of interview, you personally harvested about 30 plants in three rooms of the crop house. Also, you assisted others who had a more vested interest than you.
While you were motivated by greed, you were yet to be paid and accepted the work in circumstances where it appears that you were fairly desperate for money. However, others who have such needs do not resort to illegal activity in order to help make ends meet.
Also, your role, although limited, was an important one in assisting to harvest the crop. Without people like you, commercial cultivations could not take place.
I have difficulty accepting that you did not know that you were engaged in illegal activity, as you told police. Clearly you did, which is consistent with your plea of guilty.
Your counsel told me that you were told by these men, who you met in the street, that you would be doing household type work, but you were greeted with your real assigned role when you arrived at the crop house.
Your conduct is deserving of a punishment which is just in all the circumstances and must also be denounced. Strong weight must be given to general deterrence, in a bid to deter others from offending as you have.
To your credit, you have no prior convictions and you have pleaded guilty at the earliest opportunity. This has saved the witnesses the time and trouble of giving evidence, and has saved the community the time and expense of contested proceedings. It entitles you to a significant discount in the sentence that you would otherwise receive.
I take into account your background. You were raised in Vietnam and are one of seven children. You completed the equivalent of year 12 and had the capacity for tertiary education. However, your family was unable to afford this, so you completed a two year apprenticeship in car repairs. Your family borrowed money in order to fund this.
You travelled to Australia by boat and were detained for two years in various detention centres before being granted a visa. You initially lived in Darwin, but moved to Melbourne in 2015. You lived in a share house and received government benefits until you were able to obtain fulltime work with a caravan manufacturer, which lasted 12 months. You supplemented your income by way of weekend work as a removalist and handyman. However, you were unemployed at the time that you received the offer of $500 for a day's work by two males who were not known to you.
I understand that you and your family have been persecuted for your religious beliefs in Vietnam, and that you had come to Australia in search of a better life. It is likely that you will deported because your visa has now expired, and you have committed this offence. But this is somewhat speculative, so I do not factor this in as such. However, I do factor in that you have and will find time in gaol harder than it would otherwise be, because of your anxiety as to your fate in this regard.
In view of your lack of criminal history and your limited role in the offending before me, I place minimal weight of specific deterrence and find that your prospects of rehabilitation are very good.
I was told that there is little in the way of current sentencing practice insofar as you particular situation is concerned. However, I have had regard to recent cases in respect of this offence, and to the sentencing snapshot which was tendered at the plea hearing. Each have very limited utility in a case such as yours.
In the end, I have arrived at a sentence which in my view reflects the weight that I must attach to all relevant sentencing factors in your case. Please stand up, Mr Tran.
You are convicted of the offence, and I make the following orders: Disposal and forfeiture orders in the terms set out in documents provided by the prosecution. Such orders are not opposed by you.
You are sentenced to ten months' imprisonment.
I declare that you have already served 213 days by way of pre-sentence detention, which will be reckoned as already served.
If not for your plea of guilty, I would have sentenced you to 20 months' imprisonment with a non-parole period of 15 months' imprisonment.
I have already declared that you have served the 213 days by way of pre-sentence detention. Take a seat for a moment. Is there anything further arising?
MR COMBES: If I could hand up copies of the orders, Your Honour? Unless they've already been
HER HONOUR: I had already signed some orders.
MR COMBES: Thank you, Your Honour.
HER HONOUR: Yes, all right. Yes, thank you, anything further?
MR VAN ARKDIE: No, Your Honour.
HER HONOUR: Yes, thank you. If Mr Tran could be removed. Actually, just one moment. I should ask defence counsel, did you want an opportunity to speak to your client, seeing we have the interpreter present?
MR VAN ARKDIE: If the court can accommodate that.
HER HONOUR: Yes, all right. If the security officer does not mind?
SECURITY OFFICER: No, Your Honour.
HER HONOUR: Thank you very much. Then I will leave the Bench. We will adjourn.