Director of Public Prosecutions v Duc Huynh and Duny Pham
[2012] VCC 2031
•13 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00960
CR-12-00961
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUC HUYNH and DUNY PHAM |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 13 December 2012 | |
DATE OF SENTENCE: | 13 December 2012 | |
CASE MAY BE CITED AS: | DPP v Duc Huynh & Duny Pham | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2031 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Bourke | |
| For the Accused Duc Huynh | Mr B. Penno | |
| For the Accused Duny Pham | Ms N. Karapanagiotidis |
HIS HONOUR:
1 Duny Thi Pham and Duc Tien Huynh, you have each pleaded guilty to an indictment charging you with an offence of cultivating cannabis in a quantity not less than a commercial quantity between 25 October 2011 and 1 November 2011 and you, Duny Thi Pham, have also pleaded guilty to an offence on the same indictment of stealing electricity between those same dates. The offence of cultivating a narcotic plant in not less than the commercial quantity is 25 years' imprisonment and the maximum term of imprisonment for the offence of theft is 10 years. Neither of you have any prior convictions.
2 The prosecution tendered and relied upon a summary of prosecution opening which is Exhibit A on the plea and I incorporate that document into these reasons for sentence, with one amendment on p.2, substituting the word "water" for "nutrients" for the plants. As I understand it, that summary is an agreed summary of the facts in the matter. I was also provided with a folder of photographs which assists me to determine that the criminal enterprise to which you each attached yourselves was a substantial and sophisticated venture involving the investment of substantial time, effort and money into converting a suburban house at 61 Nelson Street, Darley into a hydroponic growing factory in which police found 378 plants of different maturities divided amongst seven rooms which had been created or converted within the house.
3 It is clear that neither of you were involved in establishing the criminal venture. Neither of you were principals in the criminal venture. Precisely how you became involved in the criminal venture I am unable to determine. Explanations were proffered to police and explanations proffered to me by your counsel and I am unable to accept the truth and accuracy of any of those explanations. It seems to me that they are so attended and tainted by patent untruths, that it is impossible to accept the explanations that have been provided to me for how you became involved or indeed necessarily the precise extent of your involvement in the criminal enterprise.
4 I am prepared to accept, and it is conceded by the prosecution, that the plants arrived a short period, perhaps a week, before the police arrested you and hence the dates particularised on the indictment reflect the relatively short period during which your participation in the offending conduct took place.
5 I am prepared to accept that essentially you were at the bottom end of the scale of participation in this venture. Essentially you, Ms Pham, were the house sitter and Mr Huynh, you have pleaded guilty to participating in the cultivation of the plants, apparently assisting Ms Pham, who was your girlfriend of some two years.
6 Clearly, that characterisation of your offending reduces the sentencing range that is appropriate for offending of this kind. But it is to be noted that this was an enterprise which was set up to reap very substantial profits on the black market by the sale of the cannabis which was being grown. It was a well planned and sophisticated enterprise which involved the growing of almost four times the minimum quantity of plants that fall into the category of a commercial quantity under the relevant section of the legislation.
7 Turning to matters personal to each of you and dealing first with you, Ms Pham. You are 25 years of age. You were educated in Vietnam and you apparently obtained a university degree before deciding to come to Australia to continue your education and to make a career for yourself in Australia. Your family had apparently fallen upon hard times. There were family tensions which no doubt influenced your decision to come to Australia. It seems that you over stayed your visa and at the time of your offending you were living illegally in Australia and had been for some year or more.
8 Your counsel tendered on your behalf a number of exhibits. Exhibit 1 reflects the fact that your father suffers from cancer of the liver and other ill health which has reduced his life expectancy. I am informed that the prognosis is that his present life expectancy is between 6 and 9 months. This no doubt has caused you considerable anxiety and depression which is reflected in the report of Mr Bernard Healey, psychologist, which is Exhibit 4P on the plea. It seems that those psychological issues have developed since you have been in custody during the period on remand.
9 Also relied upon were certificates from the Kangan Institute which show that you have used your time to further your education whilst you have been in custody. Exhibit 3P is a notice from the Department of Immigration indicating that you are to be deported once you have been released from your present custody. I was provided also with a document and translation, Exhibit 5, which reflects the fact that your parents' business had suffered significant financial setback and that your parents were under considerable financial strain, all of which no doubt will have contributed to your feelings of anxiety.
10 You pleaded guilty at the earliest opportunity. I have little doubt that you have learnt a significant lesson from your arrest and incarceration and that your prospects of rehabilitation are good. You are still a young woman and have got the best part of your life ahead of you.
11 I take into account that you are still youthful and you have no prior convictions. You pleaded guilty at the first available opportunity. That is reflective of remorse and also entitles you to a discount in sentence for the assistance you have given to the administration of justice in this state.
12 I note that the period of your involvement in this offending conduct was a mere eight days, that you had received no reward and, whilst I make no finding as to what your expectation was of reward, I am satisfied beyond reasonable doubt that you participated in this for profit and that you were expecting a reward that would have made the risks inherent in attaching to a venture of this kind worthwhile if you had got away with it.
13 I note your added anxiety arising from your father's illness, the probability that he has a short life expectancy and you are concerned that you may not get to see him before he dies. That, I think coupled also with the fact that you have been suffering from depression and anxiety during the period of your incarceration and no doubt have felt isolated through not having visits from family and friends and being in a cultural minority within the prison system, have made the period that you have already served and the period that you will have to serve more difficult and more burdensome and I take that into account in assessing the appropriate sentence. You have, of course, a desire to be repatriated to your country of origin and in that sense therefore the prospect of deportation hasn't been weighing upon you to the extent that it might have if it had been your desire to remain in Australia or if the prospects of being deported had otherwise added to your feelings of anxiety. However, I note, as was pointed out to me, that your deportation may well result in the termination of your relationship with your co‑offender.
14 It is necessary for me to consider the impact of the prospect of your father passing away before you are able to see him as a significant additional factor bearing upon your anxiety and whether it is necessary for me to find formally that these circumstances are exceptional or not. It seems to me that it is a matter that I can appropriately take into account, at least in determining the minimum non‑parole period that I set. That is conceded by the prosecution in the adjustment that they made to the submission as to an appropriate sentencing range.
15 Turning now to the matters personal to you, Mr Huynh. Your counsel provided me, very helpfully, with a document entitled "Response of accused and plea submission" which is Exhibit 1H on the plea hearing. He also provided me with a number of certificates which show that you have been occupying your time wisely whilst on remand and obtaining further education which will assist you upon your release. He also tendered and relied upon the content of a psychological report from Mr Cummins dated 26 July 2012. That is Exhibit 3H. He also relied upon two references which are Exhibit 4H, one of those from Jennifer So who had been your employer during the period shortly preceding your arrest in relation to these matters. Both of those letters, the other one from Mr David Mew, a clinical nurse consultant, indicate that you are a person of otherwise good character. I note, of course, that you have no further prior convictions, even though you are now 41 years of age and have lived in Australia since the early 1980s.
16 You came to Australia as a 10 or 11‑year‑old as a refugee and you had all your formal education in Australia. You have done well in qualifying as an optical dispenser and in, it seems, maintaining a good work record and career in that speciality. You have had a number of marriages and you have some children. I do not know that those matters are of great relevance save that of course you have not been able to provide for any of those children during your period of incarceration and that that has been one consequence of your offending conduct.
17 It seems that you had been in a relationship with Ms Pham for about two years prior to your arrest and I accept, just as it is accepted by the prosecution, that your role in the offending conduct was less than that of Ms Pham. Although, as I have indicated, I have difficulty in making any positive finding as to precisely how you became involved and exactly what you did, it is clear from your plea that you attached yourself to this substantial criminal enterprise and I have to deal with you on the basis of that plea of guilty. Although, as I say, I place you lower in the hierarchy than that of your co‑offender, Ms Pham.
18 You have some health issues it seems, although I am not sure it has been suggested that they are of great significance in this sentencing exercise. The report of Mr Cummins does not suggest that you have any mental impairment that is relevant to the sentencing process and the tenor of his report is that you are a person who has every good prospect of rehabilitation, of staying out of trouble in the future and leading an honest and productive life in Australia once you are able to put this matter behind you. I regard your prospects of rehabilitation as good and I have every reason to believe that you will not offend again in the future.
19 No doubt your arrest for this matter has been a very considerable shock and a salutary lesson to you and I do not therefore regard individual deterrence as being a significant sentencing factor in your case.
20 You are of course an Australian. You will be remaining here, although of course it is open to you to return to Vietnam no doubt. It is necessary in respect of each of you that I punish you appropriately for this offending conduct which, even though your roles were towards the low end of the spectrum of offences of this kind, are nevertheless reflective of serious criminal conduct. I must express the denunciation of this court of offending conduct of this kind and, most importantly, I must impose a sentence that has the capacity to deter others from committing offences of this kind and engaging in the roles which, although towards the low end of the scale, are necessarily part and parcel of a successful hydroponic operation of the kind that these courts see on an all too frequent basis. General deterrence seems to me to be the most significant sentencing consideration in this case, just as in most of the cases of this kind that come before the court.
21 Against that I have to balance the need to facilitate your rehabilitation and not to impose a sentence that unnecessarily interferes with that. I have no doubt at all that you have the personal resources to put this behind you, Mr Huynh, and to lead an honest life in the future.
22 In your case, I do not regard the fact that you are significantly older than your co‑offender as an aggravating feature. I do not think this is a case where the age difference between the two of you has played any part in persuading your co‑offender to engage in the conduct in which she has engaged and therefore I do not see that as an aggravating feature against you. As I have already indicated, it is conceded by the prosecution that your role was a lesser role than that of your co‑offender.
23 Having regard to all of those matters, I now proceed to pass sentence upon each of you. Would you each stand, please.
24 Duny Thi Pham, for the offence of cultivating a commercial quantity of cannabis I sentence you to a term of imprisonment of 42 months and convict you. For the offence of stealing electricity, I convict you and sentence you to a term of imprisonment of four months. The total effective sentence is 42 months. I order that you serve a period of 24 months before becoming eligible for parole.
25 But for your pleas of guilty, I would have sentenced you to a term of 54 months' imprisonment with a non‑parole period of 36 months.
26 I make the orders for compensation, disposal of property and the retention of a forensic sample in accordance with the drafts.
27 I declare in your case that a period of 408 days' presentence detention is to be reckoned as time served on the sentences that I have imposed upon you and deducted from the sentence that you will have to serve.
28 Duc Tien Huynh, on the offence of cultivating a commercial quantity of cannabis I sentence you to a term of 36 months' imprisonment and I order that you serve a period of 22 months before becoming eligible for parole.
29 But for your plea of guilty I would have sentenced you to 48 months' imprisonment with a non‑parole period of 32 months and in your case I make the orders for disposal of property and retention of forensic sample in accordance with the drafts with which I have been provided.
30 I have signed those orders and I will hand those down to you for distribution, Mr Bourke. Please check them and make sure that they are all there. I return the certificates that were tendered on behalf of each of you to your respective counsel.
31 Are there any other orders that I need make?
32 MR BOURKE: No, thank you, Your Honour.
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