IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for publication	
AT Melbourne
CRIMINAL DIVISION
CR-21-00750

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
DUNG TRAN		

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JUDGE:	HIS HONOUR JUDGE HOLDING	
WHERE HELD:	Melbourne	
DATE OF HEARING:	09 November 2022	
DATE OF SENTENCE:	11 November 2022	
CASE MAY BE CITED AS:	DPP v Tran 	
MEDIUM NEUTRAL CITATION:	[2022] VCC 1974		

REASONS FOR SENTENCE

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Subject: 	CRIMINAL LAW – Sentencing. 
Catchwords:	Judge alone trial  -  cultivating a commercial quantity – trafficking a commercial quantity – trafficking cannabis simplicity – theft – no criminal record – good character - alternative charge – guilty of alternative charge – serious offending – courier - prospects of rehabilitation – financial award – drugs – cannabis.
Legislation Cited: Criminal Procedure Act 2009 (Vic) – Sentencing Act 1991 (Vic). 
Cases Cited: 
Sentence: 	Convicted and sentenced to 28 days' imprisonment in combination with a community correction order of two years' duration.

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecution	Ms C. Farrell	Office of Public Prosecutions 	
			
For the Accused	Mr D. Cronin	Papa Hughes Lawyers 	

HIS HONOUR:

1	Dung Tran, you faced a trial by judge alone on 18 and 19 July 2022 at Ballarat.  I presided over that trial. You were charged on indictment L12190211 with; cultivation of a commercial quantity of narcotic plants, Charge 1; trafficking in a commercial quantity of a drug of dependence, Charge 2; and theft of electricity, Charge 3.  You were also charged with the uplifted summary offence of dealing with property suspected to be proceeds of crime, summary Charge 4. I reserved judgment on 19 July 2022. 
2	On 11 August 2022, I handed down a judgment setting out my verdicts and the reasons for my verdicts.  I found you not guilty of all three charges on the indictment.  However, I found you guilty and convicted you of the statutory alternative to Charge 2.  This was an offence of trafficking simpliciter and it is trafficking cannabis. 
3	Shortly before the plea hearing on Wednesday 9 November, I became aware that the uplifted summary charge had not been dealt with.  This charge was not the subject of any submissions on the trial or the judgment. 
4	Pursuant to s 242(1)(b) of the Criminal Procedure Act 2009 (Vic) I heard and determined the uplifted summary charge.  Pursuant to s 242(2)(a) of the Criminal Procedure Act 2009 (Vic) I admitted the evidence adduced in the trial as evidence in relation to the uplifted summary charge, and the admitted fact that $302.50 was found in your possession at the time of arrest. 
5	Taking that evidence into account I found you not guilty of that summary charge, therefore your plea hearing proceeded in relation to the only charge upon which you were found guilty, namely trafficking cannabis.  The maximum penalty for that offence is 15 years' imprisonment. 
6	It is not necessary to set out the factual basis of your offending in great detail, as it is set out in some detail in my judgment setting out my reasons for verdict, and because some of the facts are not relevant to the sentencing exercise as I have acquitted you of Charges 1, 2, and 3.  That judgment should be read in conjunction with these reasons. 
Circumstances of the offending. 
7	A cannabis crop was grown in a house in Bacchus Marsh in 2020.  Two police officers lived in the vicinity of the house.  Due to various reasons they became suspicious that the house was being used as a crop house and made various observations. 
8	On 14 September 2020, the two police officers noticed a car come out of the garage of the house. They informed other officers and followed the car in a personal vehicle.  The car was eventually intercepted.  You were located in the car with the co-accused.  The car had three rows of seats.  Your co-accused was driving.  You were in the middle row of seats.  The rear of the vehicle contained six 'beach bags' full of cannabis.  Later analysis found that there was a total of 77.09 kilograms of cannabis in the bags.  You were arrested and gave a no comment record of interview. 
9	Further investigation into the crop house was undertaken.  I note that your offending was limited to trafficking of cannabis on a single day, 
14 September 2020.  You are to be sentenced on the basis that you were in possession of the cannabis found in that vehicle jointly with the driver of the vehicle, and that your joint possession of that cannabis was for the purposes of sale. 
10	You were remanded in custody for 28 days before being granted bail. 
Personal circumstances. 
11	You are now 38 years old.  You were aged 36 at the time of the offending.  You were born in Vietnam and moved to Australia in 2009 on a student visa.  You are currently a permanent resident, but are not an Australian citizen. 
12	While studying you worked for a bakery and a restaurant.  You have recently worked as a mechanic with flexible hours.  You had a relationship when you first moved to Australia that eventually ended.  You have a nine year old daughter from that relationship. 
13	In 2015, you commenced a relationship with your current partner.  Your partner is sponsoring your application for citizenship.  You have an infant child from that relationship, born in March of this year.  Your partner also has two children from a previous relationship, aged 17 and 12.  You and your partner stagger your work so as to care for your children, as you do not have the benefit of an extended family to assist you. 
14	By all accounts your family share a good relationship and you are a loving husband, father, and stepfather.  Your relationship has faced hurdles due to religious and cultural issues around children from previous relationships.  You and your partner have faced the stress of a possible term of imprisonment and of deportation should you have been found guilty of cultivating a commercial quantity of cannabis, which undoubtedly would have resulted in you receiving a long sentence of imprisonment. 
Party submissions. 
15	Your counsel, Mr Cronin, submitted that given you have served 28 days' imprisonment, no further imprisonment was necessary and a community correction order, in combination with the pre-sentence detention, is the appropriate disposition. 
16	Defence counsel submitted, and it is not disputed by the prosecution, that you had offered to plead guilty to trafficking simpliciter on 26 March 2021 and again on 27 September 2021.  Both offers were rejected.  The first offer was made at the committal mention stage, a very early stage. 
17	Mr Cronin submitted that where you offered to plead guilty to the charge that you were ultimately convicted of, I should treat this as an early plea of guilty with all the corresponding mitigation that flows from such a plea.  This includes the actual and palpable amelioration in sentence resulting from a plea made in the time of the pandemic. 
18	Mr Cronin further submits that had your offers been accepted this matter could have been dealt with expeditiously at a much earlier point in time. 
19	Mr Cronin submitted that while the overall operation was commercial in nature, you played a relatively small role in the scheme.  Your offending was limited to a single transaction on a single day and you were not a principle of the operation.  Your role, he submitted, could be characterised as a delivery driver. 
20	Mr Cronin further submitted that you could not expect to obtain significant reward from your involvement.  He submitted that the delay in your case is a significant factor in mitigation.  You have had the prospect of further imprisonment and deportation hanging over your head for more than two years since your initial arrest.  You have been productive whilst on bail and have not reoffended. 
21	Mr Cronin submitted that you have demonstrated remorse for your role in your offending and you have excellent prospects for rehabilitation, given your employment and family supports, and that you are a person of prior good character.  
22	Finally, Mr Cronin submitted that the sentence in your matter does not need to have parity with that of your co-accused because he was sentenced for far more serious charges.  This proposition is uncontroversial.  
23	The learned prosecutor, Ms Farrell, very fairly conceded that it is a matter for the court as to whether further actual imprisonment was necessitated by the exercise of sentencing considerations relevant to all the circumstances of this case. 
24	At the conclusion of the plea hearing I ordered that you be assessed pursuant to s 8A of the Sentencing Act 1991 (Vic) for suitability for a community correction order.  That assessment took place, and the report finding you suitable was returned to the court and provided to the parties later that day. 
Analysis. 
25	I accept that your early offer to plead guilty to trafficking simpliciter is a significant and palpable factor in mitigation.  Had the Crown accepted your first offer at the committal mention stage, or your second offer shortly after the committal, this matter may well have proceeded at a much earlier point in time. 
26	Although your matter proceeded to trial, you had indicated a preparedness to take a course that would have resolved the matter expeditiously.  This is especially pertinent where several hundred matters await trial in this court due to the backlog caused by the pandemic.  I give your early plea offer great weight in mitigation.  
27	Your counsel on the plea informed the court that he had not taken instructions from you about why you engaged in the offending.  Despite the fact that your involvement in this crime is limited to a single day, there are aspects that, in my view, properly characterise your offending as serious. 
28	The house that you drove to was obviously a sophisticated commercial operation designed to surreptitiously produce a significant quantity of cannabis.  The transportation of cannabis from the premises is an integral part of that criminal enterprise.  It has often been commented in relation to serious drug activity that the role of the courier should not be characterised as a minor role. 
29	There is a strong principle that general deterrence is an important sentencing consideration in deterring those who are prepared to undertake such a role in promoting the successful distribution of unlawful drugs into the community. 
30	Although I regard general deterrence as a significant sentencing consideration in this case, I am satisfied that given your involvement is restricted to a single day and you have no prior convictions and have not reoffended while on bail, I can meet the sentencing consideration by the imposition of a combined sentence of imprisonment and a community correction order with a punitive component of unpaid community work. 
31	Such an order will be a restriction on your liberty for the period of the order, and remind you of your obligations not to reoffend.  The Court of Appeal has stated that courts should not overlook the fact that community correction orders can deter others from committing crime. 
32	I have had regard to the number of character references on your behalf that attest to you being a person of previously good character.  You are now in a stable and ongoing employment situation.  You have the support of a loving family and have been a dutiful father to an infant that has been born since you committed this offence. 
33	I accept that you have good prospects of rehabilitation and that it will be in the community's interest for you to maintain your current law abiding lifestyle.  It has not been explained to me during your plea hearing how a person of apparently such good character became involved in such serious criminal activity. 
34	I accept that you may well have purchased the van that was used in this enterprise to conduct lawful delivery work.  However, on this day I have no doubt that you lapsed into serious criminal conduct in the hope of financial reward.  I am not in a position to determine or make a finding as to how much financial reward that may have been.  I am satisfied that you were prepared to allow your vehicle to be used to transport cannabis in circumstances of a significant commercial enterprise. 
35	I was not satisfied that you were aware of the significant likelihood that there was, in that vehicle, not less than 25 kilos of cannabis.  It was still offending of some significance.  It is important, Mr Tran, that you realise that your prior history of good character is a significant factor that has affected the sentence that I am going to impose. 
36	I accept that your period of imprisonment, short as it was, must have impressed upon you how seriously the law regards this type of criminal activity.  You need to understand that from now on you do not have such a reputation.  You have been convicted of a serious criminal offence and received a gaol sentence in conjunction with a community correction order. 
37	Such a history will be very relevant to any further transgressions of the law.  The purposes for which a court may impose sentence are just punishment, deterrence, both specific and general; rehabilitation and denunciation of your actions and the protection of the community. 
38	In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it, and your personal circumstances, as well as current sentencing practices. 
39	Balancing these sentencing considerations and taking into account all relevant matters, in your case I have formed the view that a just sentence in all the circumstances is to sentence you to a period of imprisonment you have already served, in conjunction with a community correction order.  You will, however, have to undergo further punishment by way of the imposition of unpaid community work.  Mr Tran, would you please stand. 
40	On the charge of trafficking cannabis, you are sentenced to 28 days' imprisonment, in combination with a community correction order of two years' duration.  In addition to the mandatory terms of the community correction order, you must undergo 300 hours of unpaid community work.  I understand the conditions of the order have been explained to you when you were assessed for suitability for such an order. 
41	You will understand that you must follow all lawful directions of the Office of Community Corrections and must report within two working days of today to the Sunshine Community Correctional Centre, 499 Ballarat Road, Sunshine, Victoria.  
42	I pause to note that one of the mandatory terms of the community correction order is that you are not to leave the state of Victoria or Australia without the permission of Correctional authorities.  I note that I was told during your plea that you have expressed a desire to introduce your infant child to your family in Vietnam.  Whilst this is a matter for Corrections, I cannot see any reason why such permission should be withheld should you satisfy Corrections authorities of a prepaid travel itinerary that details your return to Australia. 
43	Pursuant to s 18(4) of the Sentencing Act 1991 (Vic) I declare that the 28 days that you have served in pre-sentence detention be reckoned as time already served in relation to the sentence passed today, and I direct that this be entered into the records of the court. 
44	I also make the disposal order in relation to the cannabis as drafted in the current order filed with the court, deleting from that order the reference to $302.50 that I understand will be returned to you in due course.  Are there any other orders that need to be made? 
45	MS FARRELL:  No, Your Honour. 
46	HIS HONOUR:  You agree? 
47	MR CRONIN:  I do, Your Honour, yes.  
48	HIS HONOUR:  Mr Tran, do you understand the sentence that I've read out to you? 
49	OFFENDER:  Yeah. 
50	HIS HONOUR:  Yes.  You will be told about all the things you have to do on a community correction order.  Perhaps for your purposes, one of the most important things that I tried to express in the sentence was that I accepted that, leaving this offending aside, you are a person of good character.  You have worked hard and you have a loving family. 
51	You need to appreciate now that you have got a criminal record, and that criminal record will be taken into account should you reoffend.  You must not get involved in anything like this ever again. 
52	Can I thank the parties for their assistance in this matter.  We'll adjourn the court. 
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