R v Anh Thang Tran

District Court of NSW|2017-10-05

REMARKS ON SENTENCE

The offender, Mr Anh Thang Tran, pleaded guilty to one offence of cultivate prohibited plant, not less than a commercial quantity, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). [1] He was committed for sentence before this Court on 17 May 2017.
The offender has further requested that this Court take into account, an offence of use electricity without authority, contrary to s 64(1) of the Electricity Supply Act 1995 (NSW), which is contained on a Form 1 certificate. [2]

Objective seriousness

In considering the objective gravity of the offence, the Crown did not dispute the account of the offender to the extent that his role was that of a house-sitter for three to four weeks, in which he was paid an amount of $1000 a week by way of reduction of his gambling debt. The Crown conceded that the matter fell within the lower range of objective seriousness.
The Crown submitted that the severity of the offence was aggravated by the fact that it was committed for financial gain. In the circumstances of this case, the offender did not give evidence that the payment he was to receive was in relation to the drugs he had consumed, but rather, to repay gambling debts he had amassed.
The offender's counsel also submitted that the offence fell within the lower range of objective seriousness, consisting of a limited "horticultural" role, comprising watering the plants and applying fertiliser. It was accepted that the offence was aggravated by reason of having been committed for financial gain.
I accept that the offender made no contribution to the cost of setting up the operation and nor shared in the profits. Further, I accept that he had no hand in the management of the operation or a decision-making role as to how it operated. [4] The amount of plants in question was more than double the threshold for the commercial quantity. There was a high level of sophistication in the set up however there was no evidence that the offender contributed to it.
Whilst the offender was to be remunerated through a forbearance of debt, he was clearly not intended to be the beneficiary from any profits derived from the operation.
Overall I accept that financial gain was an aggravating factor under s 21A(2)(o) of the 1999 Act. Nevertheless, I accept the parties submission that overall the matter remains in the low range of objective seriousness.

Subjective Factors

In the offender's case, a report from Ms Stephanie Bennett, psychologist from Psychwest Psychology & Consulting Group was tendered following a consultation with the offender on 19 September 2017. [5] The offender also gave evidence in which he acknowledged that he had read the report and the information attributed to him within it was true and correct.
The offender was born and raised in Hai-Phong, Vietnam and is the eldest child, with a younger sister who is aged 17. The evidence was that his parents worked long hours in a factory when he was a child and he did not see them everyday. On occasions, he was left under the care of his relatives. Notwithstanding this, the offender confirmed that his parents were loving and caring towards him, and they valued and supported him with his education. There was however evidence that there were arguments between his parents, who were financially stressed, resulting in instances of domestic violence and marital discord. On two occasions, the offender ran away from home (at ages 14 and 16) to another city to "to try to seek being rich." The evidence was that the offender moved out of the family home at age 18 to come to Australia. To that end, his parents sold their family home in order to fund his student visa and plane ticket. [6]
On arrival to Australia he had to support himself financially and he has lived in various shared rental accommodation. According to the offender's evidence, his family could not support him whilst in Australia and he had to study and earn a living at the same time; something that he did for two years. In Australia, the offender studied for a Bachelor of Technology at Wollongong University for one year, however he had to cease study due to the high cost of tuition fees. It is subsequently recorded that he transferred to the University of Sydney where he studied business for one year, however, due to his work commitments, he failed his subjects and ultimately did not complete the course. [7]
In his evidence before me however, the offender stated that he was still studying at the time of his arrest, but he could not remember the details. He stated that he worked full-time in roles such as being a kitchen hand, delivery driver and cook. He further stated that he was financially stressed due to the cost of study and living, and added that his financial situation was poor and at one point he was homeless for three days and slept in a bus stop. [8]
Ms Bennett obtained a history that the offender first reported the use of substances including alcohol, 12 months prior to the commission of the current offence. She records the offender identifying ice as the most problematic substance which he used for approximately 12 months. The offender reported that he was introduced to that substance by a group of associates who he socialised with because he was socially isolated. According to the history obtained, the offender developed a dependence and smoked ice daily because he "felt good" taking it. He stated that he was unaware of the quantities of ice he was using, stating that his friends gave him the drugs to take. He reported that he tried to cease using ice on one occasion by attempting to extricate him from his group of associates; however, this only lasted one week, as he "found it hard not to be with friends." In addition to ice, he also used high quantities of cocaine and used alcohol on the weekends which he took for "clubbing." According to the history, the offender also tried speed, ecstasy and LSD on a few occasions.
According to Ms Bennett's report, the offender engaged in frequent gambling a few months prior to the offences. However, the offender did not meet the clinical symptoms of a gambling disorder, but rather, engaged in gambling because he was apparently given the money by others. He had indicated that he never gambled by himself and only when he was given the money by his associates. [9]
Since his incarceration in September 2016, the offender advised that he ceased using drugs and stated an intention to not use drugs again upon his release. The offender however has not had any formal intervention for his drug use. [10]
He further reported that at the age of 22, he overdosed on cocaine and was unable to recollect specific details, however, he described waking up in a hospital where he spent two days. He stated that after that incident, he had problems with his memory which he thought was getting "worse." [11]
According to the offender's evidence, his student visa has been cancelled during the period of his incarceration, making him liable for deportation. Whilst it is accepted that it would involve a consequence of the offender not receiving supervision upon release, I accept that he should not be denied a finding of special circumstances if he would otherwise qualify for such a finding. [12]

Rehabilitation/Likelihood of reoffending [13]

The offender expressed positive aspirations for his future, stating that he wanted to "start again." [14] To that end, he indicated that he would be willing to undertake drug and alcohol counselling, as well as gambling counselling, so that he could not reoffend.
Ms Bennett in her report states:- OPINION AND FORMULATION … From a psychological perspective, it is reasonable to presume that Mr Tran could have been exposed to attachment disturbance in that he was not always provided with consistent emotional support and guidance that one would expect in order to support the developmental progression. For these reasons, Mr Tran appears to have developed some difficulties with forming secure and stable adult attachments with others and has difficulties socially relating to people. These difficulties could have been more apparent in Australia due to his youth, somewhat limited English language skills and cross-cultural barriers. Mr Tran moved to Australia at the age of 18 to study and by his own account, he was a socially isolated individual without any capacity to form any meaningful bonds with others. Mr Tran was also under a large amount of financial strain where he was likely required to pay international student fees whilst also meeting the costs of living. In order to do this, he was working full-time and his academic performance suffered as a result. It appears that Mr Tran met a group of people who introduced him to illicit substances, apparently for free. Whilst Mr Tran presents as lacking a real insight into his reasons for substance use, it may be reasonable to assume that he used substances as a maladaptive way of coping with the stressors that he was facing. Additionally, through substances he found a common ground to relate to a group of friends, and as he is unsophisticated in his social cognitive skills, this appeared to be within his comfort zone … [15]
Ms Bennet identifies a number of factors to be addressed to reduce the offender's risk of reoffending. These include drug and alcohol counselling, medical and psychological treatment, assistance with income and financial support, housing and employment. She identifies the availability of a custody based programme known as EQUIPS.
The offender described to Ms Bennett that during his incarceration, his parents were upset at him and he thought that they "want to hide from [him]." He stated that he had infrequent contact with them and he was uncertain as to whether he could live with them upon his return to Vietnam. [16] Notwithstanding that, he gave evidence before me, where he expressed a desire to return and live with his parents a circumstance that were it to occur would in my view address some of the issues that led to his offending.
Overall, I accept that the offender by reason of his age, his insight into his offending conduct and his willingness to undertake counselling, has reasonable prospects of rehabilitation, however he will require support of the nature that has been identified by Ms Bennett particularly as to remaining abstinent from substances.
I would assess the likelihood of reoffending as low to medium.

Remorse

The offender was noted to have expressed remorse for his conduct, stating to Ms Bennett: "I feel shit", adding that he saw his incarceration in a positive light as it enabled him to cease drugs and associating with a group of persons who he described as being deceptive towards him.
In his evidence before me, the offender stated that he knew what he did was wrong because he knew it was illegal and that drugs were "very dangerous." He indicated that in the event a similar situation arose and he was approached, he would report the matter to the authorities.
I accept that the offender is remorseful in the terms of s 21A(3)(i) of the 1999 Act.

Plea of Guilty

By reason of his plea of guilty at the earliest opportunity, the Crown acknowledges that the offender was entitled to discount of 25%. [17] Previous Good Character
It is accepted that the offender has no record of previous convictions. [18] The Crown conceded that the offender was a person of previous good character. [19] Special Circumstances
No submission was made on the offender's behalf that he was not fully aware of the consequences of his actions because of his age or any disability. [20] Nevertheless the Crown did not oppose a finding of special circumstances. I am satisfied that such a finding is appropriate in light of what I consider to be the offender's youth, his reasonable prospects of rehabilitation and that this is the offender's first time in custody. [21]

Sentence

The offender's solicitor accepted that no penalty, other than one of imprisonment was appropriate in the circumstances. [22]
The offender has been in custody since 8 September 2016, and it is appropriate to commence his sentence from that date. [23]
I take into account the offence on the Form 1, pursuant to s 32 of the 1999 Act, in accordance with the judgment delivered by Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002. [24]
In fixing the appropriate sentence, I have regard to the legislative guideposts being the maximum penalty of 15 years imprisonment, and the standard non-parole period of 10 years, for a medium range offence, as part of the process of instinctive synthesis. [25]
In this instance however, I have assessed the offending to be in the low range of objective gravity. The need for adequate punishment needs to be considered alongside the principle of proportionality. [26] The conduct clearly needs to be denounced and the offender needs to be made accountable for his actions. I accept that the offender has been specifically deterred and with respect to the need for general deterrence, I bear in mind the offender's vulnerability by reason of his age, background and circumstances.
On sentence, I bear in mind references to previous decisions, most recently referred to in the judgment of Beech-Jones J (with whom Ward JA and Adams J agreed) in Andreata v R. [27] His Honour stated:- [40] In Nguyen v R [2012] NSWCCA 42 at [35] ("Nguyen 2012") Davies J summarised four of the decisions relied on. I gratefully adopt his Honour's summary: "(a) Nguyen v R [2008] NSWCCA 322 In this matter the Applicant pleaded guilty to a charge of cultivating not less than the commercial quantity of cannabis by enhanced indoor means. There were 105 plants involved. He also pleaded guilty to supplying cannabis in that he had in his possession 3708.7 grams of cannabis leaf. The maximum penalty for the first offence was 15 years imprisonment. His Honour considered that the offences fell within the middle range of seriousness. He allowed a 30% discount for the plea of guilty and for his remorse and contrition. It appears that he was the principal involved in the cultivation. In relation to the first count of cultivation he was sentenced to a total sentence of 5 years imprisonment with a non-parole period of 3 years and 6 months. An appeal to this Court was dismissed. (b) Thi Lan Nguyen v R [2009] NSWCCA 181 ["Nguyen 2009"] In this matter the Applicant pleaded guilty to cultivating not less than the commercial quantity of cannabis by enhanced indoor means. The charge involved 172 cannabis plants. The maximum penalty for the offence is 15 years imprisonment. It was found that she agreed to look after the house where the plants were cultivated in return for financial gain and accommodation. There was no evidence to suggest that she initiated the cultivation. She was given a 25% discount for an early plea and sentenced to a period of imprisonment of 4 years with a non-parole period of 2 years and 6 months. An appeal to this Court reduced the sentence to a period of 3 years with a non-parole period of 1 year and 10 months. (c) Van Cuong Pham v R [2009] NSWCCA 266 ["Pham"] The Applicant pleaded guilty to an offence of cultivating by enhanced indoor means a commercial quantity of cannabis. There were 112 plants involved. The maximum penalty is 15 years imprisonment. The Judge found that the Applicant's role in the commission of the offence was at a relatively low level, he having been recruited by other unidentified persons. In effect he acted as a "babysitter" for the crop in return for receiving something between $10,000 and $15,000. The Applicant was given a 25% discount for an early plea. He was sentenced to a period of imprisonment of 3 years with a non-parole period of 18 months. An appeal to this Court alleging that the sentence was manifestly excessive was dismissed. (d) Thi Don Truong v R [2009] NSWCCA 41 The applicant pleaded guilty to the offence of cultivating not less than the commercial quantity of cannabis. The maximum penalty was fifteen years imprisonment. There were 189 plants involved. The judge considered her criminality fell a little below the middle of the range. The applicant received a 25% discount for an early plea and was sentenced to a non-parole period of 18 months with an additional term of two years. On appeal to this court against the severity of the sentence it was held that even if she did not initiate the cultivation enterprise she took it over and maintained it for commercial gain. The appeal against severity was dismissed." [41] Further, in Nguyen 2012, the applicant pleaded guilty to a charge of cultivating 157 cannabis plants and did so by enhanced indoor means. The sentencing judge concluded that he was the principal of the commercial enterprise behind the cultivation. After allowing a discount of 25%, the sentencing judge imposed a three year non-parole period with an additional term of two years and three months. The same judge dealt with two other co-offenders who pleaded to knowingly take part in the cultivation of the cannabis plants. Each of the co-offenders was sentenced to a term of imprisonment of fifteen months non-parole with an additional term of fifteen months (Nguyen 2012 at [4]). The applicant's complaint that the sentence imposed on him was manifestly excessive and otherwise showed an unjustifiable disparity with the sentence imposed on the co-offenders was dismissed. In discussing Pham and Nguyen 2009, Davies J noted that it was significant that the offenders in those cases "were not principals in the enterprise" (at [36]). [42] In Tan v R [2013] NSWCCA 164 ("Tan"), the applicant had pleaded guilty to cultivating 53 cannabis plants. He used enhanced indoor means. He admitted he was the principal (Tan at [7]). He was sentenced at first instance to a non-parole period of two years and nine months with an additional term of twenty-one months. This Court concluded that, as the starting point was seven years imprisonment prior to any discount, the sentence was manifestly excessive (at [28] per Latham J with whom Hoeben CJ and Barr AJ agreed). The applicant was re-sentenced to a non-parole period of two years and two months and a balance of term of ten months. It appears that a table of District Court sentences was placed before this Court in Tan. In relation to that table and the JIRS statistics, Latham J stated as follows: "[26] Of the 26 District Court cases summarised in the table, eleven relate to the indoor cultivation of more than 50 but less than 100 plants. Only five of those concerned a principal. All but one of those five had no relevant prior convictions. These offenders were between the ages of 20 and 53 and committed the offence for reasons of financial hardship. The sentences imposed ranged between 18 months (suspended) and two years and nine months' imprisonment. [27] Finally, the JIRS statistics reveal that, of 21 cases between October 2005 and September 2012, where the offender pleaded guilty and had no prior criminal history, 20 offenders received between one and three years' imprisonment. One offender received a sentence of 8 years' imprisonment. A proportion of these cases may have involved the cultivation of more than 250 plants. [28] Having regard to this material, it is clear that the judge's starting point in the instant case was outside the appropriate range established by current sentencing practice. In my view, the appeal must succeed." [44] Up to date JIRS statistics were not placed before this Court. However the applicant's written submissions summarised their effect in terms similar to those noted by Latham J in Tan. The Crown did not dispute the accuracy of that summary. [45] The limitations on the use of prior sentences and statistics were discussed in Hili at [54]. In Hili at [55] the plurality restated what was said in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59], namely: "[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were." (emphasis in original) [46] What can be discerned by way of "unifying principles" from the above cases is that two important factors relevant to sentencing in this area are the scale and sophistication of the cultivation and the role of the offender whether as a principal or a "babysitter" or something in between. In Pham and Nguyen 2009 the fact that the applicant was not the principal was of particular significance. However in Tan, even though the applicant was the principal, the starting point of seven years was still considered too severe … [28]
In this instance, were it not for the plea of guilty, I would have imposed an overall term of three years imprisonment.
In light of the plea, I sentence the offender as follows:- 1. a minimum term of 1 year and 4 months imprisonment commencing on 8 September 2016 and expiring on 7 January 2018; 2. an additional term of term of 11 months imprisonment commencing on 8 January 2017, and expiring on 7 December 2018, during which the offender is to be released on parole.
The overall head term is one of 2 years and 3 months imprisonment commencing on 8 September 2016 and expiring on 7 December 2018.
The offender is convicted and sentenced accordingly.

Endnotes

Hereinafter referred to as the "1985 Act"
Crimes (Sentencing Procedure) Act 1999 (NSW) s 32 (hereinafter referred to as the "1999 Act")
Exhibit A
Nguyen v R [2011] NSWCCA 92; (2011) 208 A Crim R 432 at [4] (Simpson J with whom Davies J agreed on this point)
Exhibit 1
Exhibit 1, Report of Ms Stephanie Bennett dated 29 September 2017, pp 2 - 3
Exhibit 1, Report of Ms Stephanie Bennett dated 29 September 2017, pp 3 - 4
Exhibit 1, Report of Ms Stephanie Bennett dated 29 September 2017, p 4
Exhibit 1, Report of Ms Stephanie Bennett dated 29 September 2017, p 6
Exhibit 1, Report of Ms Stephanie Bennett dated 29 September 2017, pp 5 - 6
Exhibit 1, Report of Ms Stephanie Bennett dated 29 September 2017, p 4
R v Mirzaee [2004] NSWCCA 315 at [20] - [21] (Kirby J with whom Sperling J and Newman AJ agreed)
1999 Act s 21A(3)(f)
Exhibit 1, Report of Ms Stephanie Bennett dated 29 September 2017, p 5
Exhibit 1, Report of Ms Stephanie Bennett dated 29 September 2017, p 7
Exhibit 1, Report of Ms Stephanie Bennett dated 29 September 2017, p 3
1999 Act ss 21A(3)(k), 22; R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
1999 Act s 21A(3)(e)
1999 Act s 21A(3)(f)
1999 Act s 21A(3)(j)
1999 Act s 44(2B)
1999 Act s 5(1)
1999 Act s 24(a)
(2002) 56 NSWLR 146; [2002] NSWCCA 518
1999 Act s 54A(2)
R v MMK (2006) 164 A Crim 481; [2006] NSWCCA 272 at [11]-[14] (Spigelman CJ, Whealy and Howie JJ)
[2015] NSWCCA 239 at [40]-[46] (Beech-Jones J, with whom Ward JA and Adams J agreed).
Andreata v R [2015] NSWCCA 239 at [40] - [46] (Beech-Jones J with whom Ward JA and Adams J agreed) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2017

Crimes (Sentencing Procedure) Act 1999(NSW)ss 5(1), 21A, 22, 24(a), 32, s 32

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