Director of Public Prosecutions v Duong and Pham

[2016] VCC 1327

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01283
CR 16-01284

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOANH VAN DUONG & DUC MINH PHAM

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JUDGE:	HIS HONOUR THE CHIEF JUDGE (JUDGE KIDD)
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August 2016
DATE OF SENTENCE:	9 September 2016
CASE MAY BE CITED AS:	DPP v Duong and Pham
MEDIUM NEUTRAL CITATION:	[2016] VCC 1327

REASONS FOR SENTENCE
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Subject:         Sentence – Cultivate Commercial Quantity of Cannabis
Catchwords:  Doran Discount, Parity, ‘crop-sitters’, Isolation in custody
Legislation Cited: s.72(a) of the Drugs, Poisons and Controlled Substances Act 1981
Cases Cited: DPP v. Nguyen [2016] VSCA 198; R v Doran [2005] VSCA 271
Sentence: Duong: 19 months with NPP 10 months; Pham: 21 months with NPP 12 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Foot	Office of Public Prosecutions
For the Offender Duong	Mr C. Pearson	Emma Turnbull Lawyers
For the Offender Pham	Ms J. Hughes	Papa Hughes Lawyers

HIS HONOUR: 

1Doanh Van Duong and Duc Ming Pham, you have each pleaded guilty to one charge of cultivating a commercial quantity of cannabis pursuant to s.72(a) of the Drugs, Poisons and Controlled Substances Act 1981. Your offending occurred between 2 April 2016 and 2 May 2016.

CIRCUMSTANCES OF OFFENDING

2A prosecution opening was tendered on the plea.  It is an agreed summary.

3Your offending conduct can be summarised as follows.  Investigators from the Drug Task Force executed a search warrant on 2 May 2016 at a factory situated at 2 Florence Street, Brunswick.  The police kept the property under surveillance and you, Mr Duong, and you, Mr Pham, were observed entering the premises and you were later intercepted by police and arrested when you left approximately one hour later.

4Police entered the premises and observed eight tents erected in the main area of the factory as ‘rooms’.  Each tent contained multiple plants in various stages of growth and were fitted out with lighting, ventilation and watering systems.

5Located outside each tent were a large number of electrical transformers connected to individual power boards.  The electricity supply to the factory was found to be illegally by-passing the meter.

6A total of 433 cannabis plants were located, weighing a total of 70 kilograms.

7You were both interviewed on 2 May 2016 and made admissions.  The scope of the prosecution case is built upon the admissions you both made to police about your respective roles and the length of time you were involved.

MR DUONG’S ADMISSIONS

8I turn to Mr Duong's admissions.

9Mr Duong, your admissions are summarised in the prosecution opening.  They include the following:  You had been there watering the plants for about a month.  When you first went to the premises the “system” was already set up.  You do not know how long the factory had been used as a cannabis factory.  You attended every day to every two days.  You knew cultivating cannabis was illegal. 

10As to how you, Mr Duong, came to be involved, you said you met Mr Pham in a coffee shop and you gradually got closer and he offered you the job.  Pham would be the one to pay you.  You got the keys to the premises from Mr Pham and you had that for one month since you started working there. Mr Pham taught you what to do.  When you attended at the premises you would always attend with Mr Pham.  You consider Mr Pham to be your boss.  Do you not know who Mr Pham's boss is and have not met him.

11As to any benefit received or promise, you said you have not been paid yet but you were expecting to be paid.

MR PHAM’S ADMISSIONS

12I turn to a summary of your admissions, Mr Pham.

13Mr Pham, your admissions are also summarised in the prosecution opening.  They include the following:  You said you were lured into it (being this operation) by somebody else.  You met the person who offered you the job by chance and the person "persuaded me to go down this track".  You were told to go to the premises and look after the plants and harvest, which is what you did.  You learned how to look after the plants by someone leaving you a note in your mail box.  You were instructed to "do everything from start to finish but actually I haven't harvested anything yet". 

14The lighting system was already set up when you got to the premises and you do not know much about it.

15You said that the person who offered you the job is named Quong who is over 40 years of age and Quong contacted you by leaving mail in your mail box.  You met Quong twice, once at a McDonald's and the second time at a shopping centre.  You do not know much about the identity of your boss. 

16You get paid $3,000 a month to look after the plants.  You are notified to collect your money by someone who comes to your house and leaves a note in your mail box and they leave the money at the pick‑up area and you said, "I fetch the money".  You said you received a payment shortly before your arrest, a few days before your arrest.

17You had been involved in this for only one month, you said.  You go to the house every day.  Mr Duong is always with you. 

18You knew growing cannabis was illegal when you started.  You knew there were plants in the eight rooms but were surprised to learn there were almost 400.

19You said that you are not Mr Duong's boss because you do not pay him and the person who pays is the "true boss".  You said that whatever you get paid you divide it into half and give half to Duong.

ROLE IN OFFENDING AND GRAVITY

20I know turn to the objective gravity of this offending and to your respective roles.

21The maximum penalty for this offence is 25 years' imprisonment.  This reflects the relative seriousness of the offence of cultivation of a commercial quantity of cannabis. 

22The hydroponic set up, the electronic bypass, its location in a factory and the sheer scale of production all bespeak of a high level of sophistication.  As I said earlier, a total of 433 cannabis plants were located weighing 70 kilograms.

23Part 2 of Schedule 11 to the Drugs, Poisons and Controlled Substances 1981 stipulates the commercial quantity of a narcotic plant is 100 plants or 25 kilograms.  Whether measured by weight or quantity, the cannabis located was several times the commercial quantity threshold.       

24You both assisted this serious offending. 

25Both counsel accepted, realistically, that an immediate custodial sentence was inevitable. 

26That all said, when assessing your culpability, it was submitted by your respective counsel, and conceded by the prosecution, that your offending can be characterised as falling in the lowest category of seriousness which is generally reserved for offenders such as crop sitters who generally have no financial interest in the crop (see DPP v. Nguyen [2016] VSCA 198).

27Neither of have was involved in the establishment of the cannabis crop.  It was already set up and in operation when you became involved.  It is also not alleged that either of you installed the electricity bypass.  Neither of you had a proprietary interest in the operation.  You were both involved for a relatively short period of sentencing.

28I sentence you upon the basis that you each played a similar role as crop sitters attending to the crop on someone else's behalf.

29In terms of your actual activities at the factory, I find that your roles were relevantly identical.  Neither defence counsel suggested otherwise at the plea.

30Your counsel, Mr Pham, on the plea argued that your overall roles were indistinguishable and that you were both introduced into the enterprise together. 

31Your counsel, Mr Duong, effectively submitted that while your roles were "pretty much identical", there was a modest difference, most notably that Pham introduced Duong to the enterprise and was a step closer to those who owned the enterprise.

32Mr Pham, in your interview, a summary of which I have reproduced above, you took about how you were lured into this enterprise by the person you refer to as "the boss" or "Mr Quong".  You talk about your meetings with Quong or the boss.  You talk about how you received at your house instructions and arrangements for the collection of money.  You talk about collecting the money.  At no point do you say that Duong met with Quong, or the boss, or that Duong was directly involved in any of these interactions or arrangements.  Had Duong been so involved, you most certainly would have said so, given that elsewhere in the interview you talk in detail about Duong's role and Duong's activities.

33Your own counsel acknowledged in argument there was no evidence before me that Duong ever met with Quong, or the boss.

34While you do not explicitly say it, Mr Pham, the clear import of your admissions is that you introduced Mr Duong, your friend, into this enterprise after you yourself had been recruited by Mr Quong.  Your own confessional statements, Mr Pham, allow for no other interpretation.  If I am required to find this beyond reasonable doubt then I would do so. While your own admissions Mr Pham, compel this conclusion, I note that this finding is also substantially consistent with Mr Duong's admissions.

35In these circumstances, in my view, you Mr Pham, do sit to some degree above Mr Duong.

36Having said all that, I do not lose sight of the fact that you both fall to be sentenced as crop sitters and that you are both low down on the hierarchy of moral culpability.  Further, while you, Mr Pham, were closer to the leadership or directional structure of this enterprise, you were clearly not part of it.

37Mr Duong, you claim you never received any payment whereas you, Mr Pham, say that you did share some money with Mr Duong.  You say that you had received one tranche of money from the boss and divided it.

38I do not need to resolve this.  Whether Mr Duong received payment does not make a material difference.  You both acted for monetary gain, that much is clear.  I sentence you both on the basis that there was an expectation that you would be sharing in the payments you received and those payments were to be received from the boss. The financial gain was, it would seem, always going to be relatively modest.  You were to be paid for your labour, not a share in the profit as such.

MR DUONG PERSONAL AND MITIGATING CIRCUMSTANCES

39I now turn to your personal and mitigating circumstances, and to you first, Mr Duong.

No Criminal History

40You have no prior criminal history.  You are therefore entitled to rely on your good character.  It was put to me by your counsel that you have no criminal record in Vietnam and you have never been in trouble with the authorities.  I sentence you upon that basis.

Personal Background

41Mr Duong, you were born in Hai Phong Vietnam on 22 March 1993.  You are 23 years old.  You were raised in Hai Phong with your immediate family which includes your mother, two older brothers and an older sister.  Your father died in 2014.  Your family all remain in Vietnam so you have had no visitors whilst in custody.

42Your counsel tendered some documents from Vietnam regarding your mother's health.  She suffers from lower back pain due to a back injury.  That is a matter of concern for you.

43You attended school in Hai Phong to the equivalent of Year 12 and then studied for three years at college in the field of piloting of commercial shipping.

44Mr Duong, you arrived in Australia on a student visa on 25 December 2012.  You enrolled at Australian Catholic University in an English course with the view to continue on to a business course.  You left after about four months because you were struggling to learn English.

45You then continued to live within the Vietnamese community in Melbourne, working for a time in a factory in Thomastown.  You earned a small wage and lived with others in various locations and ultimately in St Albans.  Your income barely covered daily essentials.

Admissions and Guilty Plea

46You cooperated with police and made full admissions. 

47You pleaded guilty at the earliest possible opportunity, at committal mention, and the matter proceeded by way of a straight hand up brief.  Your early plea is evidence of remorse, acceptance of responsibility of your offending and it also carries a utilitarian benefit in saving the community time and expense at protracted legal proceedings.

Doran Discount

48I turn to the issue of a Doran discount.  You fall to be sentenced for your role in cultivating for a period of one month.  Had you not made the voluntary disclosures in your police interview concerning the duration of your involvement, the charge likely to have been laid would have been confined to one day or thereabouts.  The police have no evidence of your prior involvement.

49It was submitted on the plea that as the form or scope of the charge was dependent upon your confession, the principle in the cases of Doran[1] and Latina were enlivened.

[1]R v Doran [2005] VSCA 271

50I accept this principle is enlivened and you are entitled to some benefit.  However, the difference between one day and one month is not, in the overall scheme of things, substantial.  I also note that the charge quantity would have remained the same and my characterisation of your role would equally have generally remained the same.

Isolation in custody

51I accept that custody to some extent will be more burdensome for you given your isolation from your family in Vietnam and your limited English skills.  As I said earlier, your family resides in Vietnam.  Your family members are not able to assist you.  You associate with fellow Vietnamese‑speaking prisoners only.  I take this additional burden into account.

Relative youth

52You are 23 years of age and are thus, in relative terms, youthful.  The youthful offender principles apply.  As such, rehabilitation remains an important component of any sentence.

Prospects of rehabilitation

53You have shown yourself to be well capable of achieving, if you put your mind to it, having studied for three years at college in the field of piloting of commercial shipping.  You are reasonably well educated.  You are not psychiatrically unwell and I accept also the submission made that you are not a drug user, and, as I said before, you remain relatively youthful.  It was submitted that you are likely to live an entirely normal and response and law‑abiding life in Vietnam, as you did prior to coming to Australia, once you are ultimately released from prison.

54I agree with your counsel's submission that your prospects of rehabilitation appear to me to be overwhelmingly good.

MR PHAM PERSONAL AND MITIGATING CIRCUMSTANCES

55Mr Pham, I now turn to your personal and mitigating circumstances.

No Criminal History

56You also have no prior criminal history and I accept the submissions that you have no criminal history in Vietnam and none in Australia and therefore you are also entitled to rely on your good character.

Personal Background

57Mr Pham, you were born in rural Vietnam on 5 January 1990.  You are 26 years of age. 

58You attended primary school and high school in your local town of Dao Yew near the city of Hai Phong.  You completed high school.  You then engaged in the ship building trade for two years. 

59Your mother, father and younger brother live together in Dao Yew.  Your parents sell grocery items from their home in Vietnam to support themselves and the family.

60Mr Pham, you arrived in Australia on a student visa on 25 December 2012.  Your visa expired on 7 January 2013.

61You have spoken to your family once since you have been taken into custody and that was on 2 May 2016.

62You have a partner who has recently given birth to your first child.  She has moved back to Vietnam and lives with your family.

Admissions and Guilty Plea

63As to your admissions and guilty plea, you co‑operated with the police and made full admissions like your co‑accused.

64Like, Mr Duong, you pleaded guilty at the earliest opportunity at committal mention, and the matter proceeded by way of straight hand‑up brief.  And, similarly, I take the view that your early guilty plea is evidence of remorse, acceptance of responsibility for your offending and it also carries a utilitarian benefit in the saving of community time and expense of protracted criminal proceedings.

Doran Discount

65Mr Pham, you are also entitled to a Doran discount given your voluntary disclosures concerning the duration, in particular, of your participation.  I refer to what I previously said about this in relation to Mr Duong.

Isolation in Custody

66Like Mr Duong, I also accept that custody to some extent will be more burdensome for you given your isolation from your family in Vietnam and your limited English skills.  Your family members are not able to visit you given that they reside in Vietnam.  You have had a couple of visits from friends but it is not something that is a regular occurrence.

Young man

67You are still a young man at age 26, though older than Mr Duong.  You are closer to reaching the end of the period at which you could be considered youthful.  As the age of an offender in question increases, the propositions which favour the lenient treatment of youthful offenders diminish in force but I will make some allowance for your young age and the limited application of the youthful offender principles.

Prospects of rehabilitation

68As to your prospects of rehabilitation, I accept your counsel's submission that your prospects of rehabilitation can be said to be good.  You have no priors.  Your new family situation provides you with a strong incentive to make something of your life.  You have shown in the past that you are capable of engaging in a trade.  Your intention upon release is to return to Vietnam, to get a qualification and to support your family and, as I said, you are still a young man.  I would say that your prospects of rehabilitation are very good.

SUMMARY OF SENTENCING PRINCIPLES

69In sentencing both of you I must have regard to a range of different factors.  I must give effect to the principles of deterrence, both general and specific.  I must deter over people from behaving like you.  I must deter you from repeating such behaviour, though because of my findings with respect to your respective prospects of rehabilitation, specific deterrence carries less weight here.  I must express the community's denunciation of your conduct and I promote your rehabilitation.  I must also have regard to current sentencing practices for offences of the kind you have committed and I must balance your personal circumstances.  I am also mindful of the principles of parity which concerns the relativities of your respective sentences.

70Both your counsel asked for shorter straight sentences because of your immigration position.  I said on the plea that I cannot make assumptions about executive action, especially in the absence of any evidence.  No such evidence was led.

71I have determined that shorter straight sentences in your cases would not meet all the relevant sentencing considerations.

SENTENCE

72I now turn to sentence you.  

DUONG

73Mr Duong, would you please stand.

74On Charge 1, cultivate a commercial quantity of cannabis, you are convicted and sentenced to 19 months' imprisonment.

75I direct that you serve a minimum of ten months' imprisonment before becoming eligible for parole.

PSD

76You have been in custody since the date of your arrest on 2 May 2016.  You have spent 130 days in custody in relation to these matters, not including today.  Can I just check with counsel that that's right.

77MR PEARSON:  Yes, Your Honour.

78HIS HONOUR:  Thank you.

79Pursuant to s.18 of the Sentencing Act I declare 130 days to be reckoned as the period of imprisonment already served under this sentence.

6AAA

80Pursuant to s.6AAA of the Sentencing Act I indicate that had you not pleaded guilty I would have sentenced you to a total effective sentence of 28 months' imprisonment with a non‑parole period of 17 months.

81You can be seated, Mr Duong.

PHAM

82Mr Pham, would you please stand.

83On Charge 1, cultivate a commercial quantity of cannabis, you are convicted and sentenced to 21 months' imprisonment.

84I direct that you serve a minimum of 12 months' before becoming eligible for parole.

PSD

85You have also been in custody since the date of your arrest on 2 May 2016.  You have spent 130 days in custody in relation to these matters, not including today.

86Pursuant to s.18 of the Sentencing Act I declare 130 days be reckoned as the period of imprisonment already served under the sentence.

6AAA

87Pursuant to s.6AAA of the Sentencing Act I indicate that had you not pleaded guilty I would have sentenced you to a total effective sentence of 30 months' imprisonment with a non‑parole period of 20 months.

88You may be seated, thanks, Mr Pham.

Disposal Order

89The prosecution have made application for a disposal order pursuant to s.77 of the Confiscation Act in this matter with respect to certain property.  The order is not opposed by either you, Mr Duong, or you, Mr Pham.  I will make the order in the terms sought.

Forensic Sample Order

90The prosecution have also made application for a forensic sample pursuant to s.464ZF(2) of the Crimes Act from both you, Mr Duong, and you, Mr Pham.  This was not opposed by either of you.  I make the order in the terms sought based upon the seriousness of your offending.  It will be an intimate sample and I must advise both of you that the authorities may use reasonable force in order to obtain the sample.

91So I make both those orders.

92MR PEARSON:  If Your Honour pleases.

93HIS HONOUR:  Anything else arising?  Thank you.  Adjourn the court.  Actually, the prisoners could be taken down first. 

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