Subject: Criminal law - sentencing - cultivate narcotic plant not less than a commercial quantity of Cannabis L - immediate custodial sentence imposed.
[3]
Van Huy Tran, you have pleaded guilty to one charge of cultivation of a narcotic plant in not less than a commercial quantity, the drug being Cannabis L.
The indictment charges that you did cultivate a narcotic plant in not less than a commercial quantity at Watsonia, Victoria, on one date; 10 February 2017. This charge is serious and that is reflected in the maximum penalty set by Parliament; 25 years' imprisonment.
There is no criminal record.
I will proceed to sentence you on the basis of the Crown opening that was read by Ms Burnett this morning. She set out for the court the circumstances of the offending, and your arrest. A copy of the Crown opening will be attached to these reasons.
The Crown case is that your role was greater than a crop sitter, however given the absence of evidence linking you to the establishment of the crop located at that address, I find that you were a crop sitter and you will be sentenced on that basis.
On 10 February 2017, police executed a search warrant at 269 Grimshaw Street, Watsonia, where they located a sophisticated hydroponic cannabis crop growing setup in multiple rooms of the house, together with an illegal electrical bypass.
In total, there were 81 plants of various maturity and the combined weight of those plants was 61.43 kilograms, which exceeds a commercial quantity as defined by legislation; that being 25 kilograms.
All the usual equipment and paraphernalia for growing Cannabis L was located at the house.
I am satisfied, having regard to what was set out in the Crown opening, that you were not responsible for the establishment or setup of the crop, notwithstanding your fingerprints were found on round white light shades seized from the property. The evidence shows that three other people, Thi Loan Pham, Anh Tien Le and Hieu D Tran, entered into a lease arrangement with Victor Ling in respect to the property on 20 October 2016.
Thereafter Ms Pham met with the landlord on two occasions - on 20 November 2016 and 17 December 2016 - to arrange payment of the rent that was due, and paid the rent in cash. I am satisfied that you had no involvement with the lease arrangements.
Further, police located a receipt from Bunnings Northland on 2 February 2017 relating to some irrigation pipes and hose connections. CCTV footage that was obtained from the Bunnings store recorded on 9 February 2017 shows Mr Le purchase that piping and hose connections. Police located some irrigation pipes and hose connections at the Broadway Reservoir address when they arrested you and the co-accused that matched the type of piping used at the grow house. There is nothing to connect you to that material.
To make a finding that you were involved in the establishment and setup of this crop would be merely speculative.
The co-accused, Ms Pham and Mr Le, are contesting their matters, and their committal hearing is listed for Melbourne Magistrates' Court on 11 October 2017. Another man, Huong Ho - who was arrested at the same time - has been released without any charges.
Following your arrest you were interviewed and gave a no comment record of interview.
I will be sentencing you relating to your role as a crop sitter for one day; namely 10 February 2017. I still consider your offending to be serious, as you played a role in ensuring that the crop was tended to, to ensure it reached its maturity and could be harvested. When you became involved in this activity you knew that it was being set up by the people to make money, and you received $3,000 for your participation in the scheme. You were acting on the instructions of your co-accused. I assess your role at the upper end of the low category for this sort of offending.
As has been stated in the Court of Appeal Victoria that general deterrence is a very important factor in sentencing matters of this nature, having regard to its prevalence, and particularly the prevalent use of young people with vulnerable immigration status to undertake the role of crop sitter or minder.[1]
In terms of your personal history and background I have had regard to the matters put by Mr Van Arkadie.
You are 24 and still relatively young. You are Vietnamese. You were born in Ha Tinh; a province in central Vietnam. You are the youngest of four children. You completed high school in Vietnam and were sponsored by your parents to come to Australia to continue to study English. You travelled to Australia on a student visa and you arrived in Melbourne on 19 June 2013 and began studying English at the Holmesglen Institute.
Your parents were successful coffee bean growers and they were able to operate a profitable business, but it appears four months following your arrival, due to a combination of factors, their business was sold at a loss. As a consequence of that they had a significant debt and you were obliged then to work here in Australia so that you could remit moneys home to support your parents.
It appears that your mother's health has been failing - she has a known heart condition - and your parents were generating modest income only from harvesting prawns.
When you commenced working you had to undertake low paid labouring type jobs. You worked on a strawberry farm in Lilydale and at a chicken factory in Chelsea, and ultimately you worked at a butcher's shop in Springvale from December 2014 until a few weeks before the offending. Your hours were long; 14 hours per day, six days per week, and your wages were only nominal.
It is evident that you were in a very compromised situation because of your visa status and you were being exploited by your employer; all the while you were remitting moneys back home. In that circumstance you were susceptible and vulnerable to the approaches made to you by the persons who are responsible for the establishment of this grow house, whom you had met at a party. Initially you turned down the offer to work for them, but because of your mother's deteriorating health you reconsidered the proposal and began to assist. I have already described your role. I accept that you did not appreciate the extent of the business operated by the co-accused.
As a consequence of your conviction you will not be able to remain in Australia. Mr Van Arkadie advised the court that you no longer wish to live here, that you had applied for a protection visa but you have since cancelled that application, and you have expressed a desire to return back to live with your family in Vietnam.
Your mother's health has declined considerably and she is at great risk of stroke. I accept that that is a matter that will play on your mind whilst you are in custody and cause you anxiety, and I have taken that into account.
I have taken into account also that you entered your plea of guilty early; at the committal mention on 10 May 2017. It is accepted that it was entered at the earliest opportunity. I further accept that other than this incident you are a person who has demonstrated to be of good character. I accept that you entered into this offending for altruistic reasons, but now you understand the seriousness of your conduct.
I accept that your plea of guilty is evidence of remorse. Further, there is real utility in your plea. You have spared the expense and inconvenience of the State having to conduct a trial. You have facilitated justice and your sentence will be discounted accordingly.
Whilst in prison you have properly utilised your time working in the kitchen as a leading hand, and also undertaking an English course. I consider that your rehabilitation prospects are excellent and the likelihood of you reoffending is negligible.
Mr Van Arkadie, on your behalf, considered a term of imprisonment was appropriate in all the circumstances.
In sentencing you I must impose just punishment and must denounce your behaviour. As stated earlier, it is important for this court to emphasise general deterrence. Given your attitude and conduct following your arrest specific deterrence is of lesser importance.
This is, unfortunately, a very prevalent crime where young people are often targeted by criminal syndicates and exploited because of their vulnerable immigration status and they are recruited to crop sit. Courts must send a message to other people who are in your position who may be attracted to undertaking this sort of work to make quick money, that if you are caught by the police for this sort of criminal offending, then you will face stern punishment and gaol is likely.
I have had regard to the decision of Quy Nguyen referred to by the prosecutor, Ms Burnett, and the principles set out with respect to current sentencing practices for this offence. Ultimately, I must formulate just punishment having regard to the particular circumstances of your offending and your personal circumstances and sentencing principles.
I will announce the formal court orders now. If you could please ask Mr Tran to stand?
In respect to Charge 1 you are convicted and sentenced to two years' imprisonment and I order that you serve 12 months' imprisonment prior to being eligible for release on parole.
Pursuant to s.6AAA of the Sentencing Act 1991 I must make a declaration, and I make the declaration that but for your plea of guilty I would have imposed a term of three years' imprisonment, to serve two years' imprisonment.
I declare that you have served 161 days pre-sentence detention and direct that that be entered into the records of the court. And that time - that is, the 161 days - is to be reckoned as time already served under the sentence I have just announced.
I make the disposal orders sought.
That concludes my remarks.
MS BURNETT: I'll hand up the disposal orders. Thank you, Your Honour.
HER HONOUR: I think I've already signed the disposal orders? Yes, they've already been printed and I've signed them.
MS BURNETT: Thank you, Your Honour.
HER HONOUR: All right. Mr Van Arkadie, do you want to spend some time quickly with the interpreter whilst Mr Tran's here in the dock?
MR VAN ARKADIE: Yes, Your Honour, if that can be
HER HONOUR: Yes, you can do that. I'll step off the Bench.
MR VAN ARKADIE: As the court pleases.
[4]
IN THE COUNTY COURT OF VICTORIA Court Reference: H10435903
The offender, VAN HUY TRAN (hereinafter referred to as TRAN), is a 24 year old male from Vietnam. TRAN has remained in Australia unlawfully since the 4th of May 2016. TRAN's most recent known residential address was a share house at 102 Broadway Reservoir with co-offenders THI LOAN PHAM, ANH TIEN LE and HUNG HO (hereinafter referred to as HO).
[7]
The co-offender, THI LOAN PHAM (hereinafter referred to as PHAM), is a 32 year old female from Vietnam. PHAM is in Australia on a bridging visa. PHAM's most recent known residential address was a share house at 102 Broadway Reservoir, with her partner ANH TIEN LE, TRAN and HO.
[8]
The co-offender, ANH TIEN LE (hereinafter referred to as LE), is a 33 year old male from Vietnam. LE is in Australia on a temporary student visa. LE's most recent known residential address was a share house at 102 Broadway Reservoir, with his partner PHAM, TRAN and HO.
[9]
PHAM & LE's matters are listed for Committal at the Melbourne Magistrates' Court on the 11th of October 2017.
On the 20th of October 2016, LE, PHAM, and Hieu D TRAN began renting the house at 269 Grimshaw Street Watsonia (hereinafter referred to as the Watsonia address) for a 15 month period from the landlord Victor LING (hereinafter referred to as LING). The rental agreement was completed by LE, PHAM, and Hieu D TRAN, and all of the parties signed the document.[2] The parties indicated that they were residing at 635 Middleborough Road Box Hill.
[12]
On Tuesday the 30th of January 2017, police conducted an investigation into the cultivation of cannabis at the Watsonia address. LING subsequently provided the rental agreement to police and indicated that PHAM paid him the rent in cash on a monthly basis in the kitchen of the address.
[13]
On the 20th of November 2016, LING met PHAM in the kitchen of the address and PHAM paid him $2430.00 in cash for 5 weeks rent.
[14]
On the 17th of December 2016, LING met PHAM in the kitchen of the address again. On this occasion the doors to all of the other rooms were closed. PHAM arranged to meet one week prior to the rent being due and paid the rent in cash.
[15]
On the 3rd of February 2017 at approximately 11:43pm, police observed vehicle 1ID3CT parked outside the Watsonia address and some lights on inside the house. Vehicle 1ID3CT is a silver 2006 Toyota sedan registered to Hieu Dinh TRAN of 102 Broadway Reservoir.[3]
[16]
On the 6th of February 2017 at approximately 1:50am, police observed vehicle 1HP6YD parked in the driveway of the Watsonia address and lights on inside the house. Vehicle 1HP6YD is a green 2002 Toyota sedan, registered to Van Huy TRAN of 102 Broadway Reservoir.[4]
[17]
On the 10th of February 2017, police attended at the Watsonia address and executed a search warrant. At approximately 7.40 a.m., police gained entry to the premises and located a sophisticated hydroponic cannabis setup in multiple rooms of the house. The hydroponic setup contained both juvenile and mature plants in pots with timed lighting and watering systems.
[18]
DAVID WESTON, an accredited electrician, attended at the Watsonia address and confirmed that three rooms had been converted to house equipment and plants for the hydroponic set up. An inspection of the roof cavity revealed that an irregular wiring connection had been made to the unmetered mains cable.
[19]
The following items were seized from the premises:
[20]
Illegally installed electrical bypass;
2. Round White Light shades;
[21]
The total weight of the cannabis seized was 61.43kg.
[22]
That same morning, police attended at 102 The Broadway Reservoir and executed a search warrant. At approximately 7.02 a.m., police observed an Asian male, aged in his early 20's, driving vehicle 1HP6YD to the roller door at the rear of the premises. The male got out of the vehicle and opened the roller door. The male then drove into the garage and closed the roller door.
[23]
At approximately 8:32 a.m., police knocked at the front door a number of times before forcing entry to the premises. Moments later LE was observed running out of the rear door of the house, wearing only pants and holding a shirt in his hand. Police confronted LE in the rear yard and placed him under arrest. Police located PHAM, TRAN and HO inside the premises.
[24]
Police photographed the premises and seized the following items:
[25]
Victorian Driver's Licence No. 002535416, located in PHAM's handbag, hanging on the back of the bedroom door, in name of Hieu Duy TRAN;
2. Victorian Driver's Permit No. 003386721, located in PHAM's handbag, hanging on the back of the bedroom door, in name of Hieu Dinh TRAN;
[26]
Hand drawn map located on the shelf in the kitchen pantry at containing directions from 102 Broadway Reservoir to the Watsonia address;
[27]
Cannabis remnants located in the boot of vehicle 1HP6YD.
[28]
Police observed a series of irrigation pipes and hose connections in a rear room of the house which matched the type of piping used at the Watsonia address. A receipt for the items purchased from Bunnings in Northland on the 2nd of February 2017 was located next to the piping.
[29]
Police observed a large electrical board in a garbage bag next to the piping which matched the type of electrical board located at the Watsonia address.
[30]
Investigators observed the Victorian Driver's Licence No. 002535416 in name of Hieu Duy TRAN matched the identification used to rent the Watsonia address.
[31]
Investigators observed the Victorian Driver's Permit No. 003386721 in name of Hieu Dinh TRAN matched the name of the registered owner of vehicle 1ID3CT.
[32]
TRAN and LE were arrested and transported to Mill Park Police Station. TRAN was interviewed and made no comment. TRAN was later charged and remanded. LE was released pending further inquiries.
[33]
On the 14th of February 2017, police obtained a copy of the CCTV footage from Bunnings in Northland recorded on the 9th of February 2017. The footage clearly depicts LE purchasing piping and hose connections. LE is also wearing the same clothing as at his arrest on the 10th of February 2017.
[34]
On the 21st of February 2017 investigators re-attended 102 Broadway Reservoir and observed the house to be abandoned.
[35]
On the 23rd of February 2017 LE attended the Mill Park Police Station with PHAM for the purposes of collecting property. LE and PHAM's property was returned and they were arrested.
[36]
On the 13th of March 2017, police received a Fingerprint Identification Report from the Forensic Services Department. The report identified TRAN's fingerprints on the round white shades seized from the address in Watsonia.