Director of Public Prosecutions v Lai
[2022] VCC 485
•7 April 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-02455
CR 22-00057
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOANG LAI PHONG PHAM |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 7 April 2022 | |
CASE MAY BE CITED AS: | DPP v Lai & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 485 | |
REASONS FOR SENTENCE
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Catchwords: Cultivation of large commercial quantity of narcotic plant – Cultivation of commercial quantity of narcotic plant –Cannabis L – Drugs Poisons & Controlled Substances Act – Pleas of guilty – Imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Zammit | Ms E. Muir |
For Accused Lai For Accused Pham | Mr C. Farrington Mr R. Jakobson | Mr C. Yang |
HIS HONOUR:
1 In regard to this indictment, Mr Hoang Lai born in 03/1983 was 37 at the time of this crime, now 38 for whom Mr Farrington appeared on the plea and Mr Yang appears today. On behalf of the Director, Ms Zammit appeared on the plea and appears today.
2 The plea was heard on the 24/03/2022, Mr Lai pleaded guilty to charge 1 on indictment no.C2114762, charge laid under s72 of the Drugs Poisons & Controlled Substances Act for which the maximum penalty prescribed by Parliament is life imprisonment and 5,000 penalty units. It is a Category 1 offence to which s5(2G) of the Sentencing Act applies. There was no dispute in the case that a period of imprisonment was warranted, given its seriousness.
3 The cultivation in this instance was of a large commercial quantity of the narcotic plant, cannabis L. The threshold for a large commercial quantity of cannabis L is 250 kilograms and 1,000 plants. Such is set out in Schedule 11 of the Act, in particular, at Column 1A - Part 2.
4 The first portion of such amount was found on 09/08/2021, pursuant to a warrant, at 49 Sunline Drive, Truganina, where 640 plants, weighing 506.88 kilograms, were found at a drug house. Then the next day, that is, 10/08/2021 at 7 East Derrimut Crescent, Derrimut, a further 712 plants were found, weighing 653.58 kilograms, making the total quantity for which Mr Lai pleads, by way of a large commercial quantity, being 1,352 plants weighing 960.46 kilograms. Obviously when you look at the threshold amount such comes in by way of weight as just a little bit under four times the threshold for a large commercial quantity.
5 At both sites, there were large scale sophisticated hydroponic set-ups with a number of tents at each set-up and fake walls, as detailed. Those precise details are set out at respectively in Annexure A and B to Exhibit A, which was the prosecution opening. Each counsel accepted that the facts set out therein were the facts on which I am to sentence both accused in this matter. On execution of the warrant on 09/08/2021, Mr Lai fled the property. When apprehended, he was found to be in possession of $2,705 cash and two phones. At both properties, the electricity supply had been by-passed.
6 As I have said, both counsel concede the facts set out in Exhibit A as the facts upon which I am to sentence. The background to the warrant being issued was the pre-apprehension investigation. Tracking devices were placed by investigators on both vehicles rented by each of the accused. Both properties had been leased somewhere around September/October 2020 by a party called Dao. The Court was not advised who Dao is or what connection he had or was alleged to have with either of the accused. However, the properties were leased for three years respectively at a rent of $6,875 per month and $7,666 per month and the rent was paid to 29/07/2021 in advance, as I understand the position, in the sum of $92,000 and $73,960 respectively.
7 During such period of the rental, Mr Lai hired from Oz Travel an Isuzu truck from 08/01/2021 to June 2021 at a sum of $366.45 per week. In the same period, he hired another white Isuzu for the period 08/01/2021 to 11/08/2021 also at $366.45 a week. Then on 23 March, Mr Pham hired a white Isuzu van, also for the sum of $366.45 per week for the period 23/03/2021 to 21/05/2021. In regard to the hired vehicles, tracking devices were placed on the vehicles hired by Mr Lai, showed that such had travelled to the Truganina address on 78 occasions during such period and to the Derrimut address 14 times. In the same period, the vehicles rented by Mr Pham had also travelled at both addresses, but the Court was not given the details thereof. On 04/08/2021, Mr Pham rented a further van for three weeks at the sum of $546.00 per week.
8 As to Mr Pham, at the plea Mr Jakobson appeared for him, and he pleaded guilty to Charge 2 on the indictment, a charge of cultivating a commercial quantity of cannabis L, a narcotic plant, pursuant to s72A of the Drugs Poisons & Controlled Substances Act. It is a deemed Category 2 offence to which s5(2H) applies. Albeit the provision allows for special circumstances to lead to an exception from imprisonment, there was no such submission made on behalf of Mr Pham.
9 Pursuant to the same schedule that I have detailed in the Act, the threshold in regard to a commercial quantity of cannabis L, a narcotic plant, is 100 plants and 25 kilos. Mr Pham’s offence relates only to the Truganina property where there were 604 plants founds weighing 506.88 kilos. One immediately notes such weight actually meets the large commercial threshold for such a drug, being twice that weight. However, such plea of Mr Pham was entered after plea bargaining, when because of the issue of proving intent insofar as a large commercial quantity, I understand a plea bargain was made whereby it was agreed that Mr Pham would plead to the lesser charge.
10 Such detections and investigations as produced to the Court took place as a result of the hard work of the officers in Operation Crawl. I would ask the prosecutor to ensure that the Court’s congratulations are conveyed to those officers. It is obvious that such investigation, and details as are able to be provided, is fundamental to this Court. That information relates to surveillance and intelligence. For example, in this case, as I have already detailed, the intelligence produced by the surveillance and the placement of devices to the rented cars. I have for some time, as I said to the learned prosecutor, been seeking in these types of cases that both the DPP and the police turn their attention to assisting the Courts in regard to these very serious charges. I was asked by the learned prosecutor to indicate the cases in which I have made such requests, and subsequent to the last hearing, the Prosecutor was advised by my associate that those are DPP v Wiggett [2021] VCC 157, [24] and DPP v AnTran [2021] VCC 224, [24].
11 Those requests were made to the Director, and through her to the police investigating these matters, by me because such information is vital for a Court to fully understand an accused's involvement in a crime with which he/ or she is charged. Such goes to enlightening the Court, if possible, as to the role which an accused has played in such very serious crime. Hence, albeit I agree totally with Mr Farrington that his client is to be sentenced for the crime detailed in the indictment, in order to fully understand his client's role in regard to such crime, such information is vital. For the obvious reason, if such information is not available, then it is foreseeable that each person who commits these crimes may be sentenced as a principal, and this is the reason why this Court seeks such information.
12 Hence, we know that before being apprehended near the Truganina property on 9 August, Mr Lai had attended both properties on numerous occasions from 08/02/2021 to 09/08/2021. As I said the Truganina property on 78 occasions, the Derrimut property on 14 occasions. Mr Lai had also paid the weekly rent for such vehicles during such period at a rate of $366.45 per week, totalling $17,096.56. As to Mr Pham, he also paid the rent for the two cars that I have detailed for the period 03/03/2021 to May 21. The total figure paid for that truck is a figure of $4,555.65 for the period August 2021, 14 days an additional period of $1,700.08 16 (sic) cents.
13 As to Mr Lai, for example, the provision of such information to the Court puts paid to his answers in his record of interview, in particular, answers 46 and 96, of having met a blonde man at a market who paid him $300 to rent a car.
14 I find beyond reasonable doubt as to Mr Hoang Lai that he was:
1. involved in preparations relating to such criminal activity for some time;
2. that he attended the properties on 92 occasions from 08/01/2021 to 09/08/2021;
3. at both properties there were located very sophisticated growing operations;
4. that his role assisted the cultivation, being that part of his role at least that we know as to the cultivation was to lease the vehicles to service the enterprise from 08/01/2021 to June of 2021; and
5. that all of such activities illuminate the role he played in the commission of this crime, that is, Charge 1.
15 As to Mr Pham, I find beyond reasonable doubt:
1. that he was involved in the preparations related to such criminal activity for some time;
2. that he attended both properties, to support the developing crop (albeit charged only as to the Truganina crop);
3. his attendance at such properties although much more limited than Mr Lai is not certain, as far as I understand, from the information given to me;
4. that he leased vehicles to service the enterprise from March to May, and further in August, at total sum of some $6,000; and
5. that all such activities illuminate the role that he played in the commission of the crime being Charge 2 to which he has pleaded.
16 Of course, as to their respective roles, it must be said that any role in such criminality will be subject to condign punishment. As was said in R v McLeish (1982) 30 South Australian State Reports 487, p492:
'It seems to me to follow that after making all due allowances for the personal circumstances and antecedents of the prisoner, the facts of the particular case and the need to show such mercy as is compatible with the safety of the public, a court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organisation for purveying drugs, as well as to potential recruits, the simple truth, that a man who participates in such organisation, at any level, I repeat at any level, must expect and will receive a heavy penalty.'
17 Both crimes committed in this indictment by each of the accused are inherently serious as indicated by their respective maximum penalties, being life imprisonment and 25 years imprisonment. The maximum penalty is of course always a yardstick, especially in a quantity-based scheme, as the Court of Appeal said in HT Nguyen v R, [2010] VSCA 127, [19]:
'As the Court said in Pidoto (2006) 14 VR 269, this is a quantity based sentencing regime. Although quantity will not bear an arithmetical relationship to sentence, the quantity involved is a very significant matter in sentencing for these offences.’
18 In this regard, I also refer to the comments made by the Court of Appeal in DPP v Condo [2019] VSCA 181, [28], and in DPP (Commonwealth) v Omar, a drug importation case, [2019] VSCA 188, [8], where the following was said:
'…the amount … involved … will ordinarily be a highly relevant factor in determining the objective seriousness of the offence. As this Court has previously suggested, making comparative judgments about offence seriousness is made easier when the quantity involved is expressed as a percentage or multiple of the commercial quantity.'
19 Of course, quantity is not the sole determinate of the seriousness of these crimes, but as I have said, is of upmost significance. See Dao v R [2014] VSCA 93, [14].
20 Hence:
(a) as to Mr Lai, the quantity with which he is charged by way of weight is four times the threshold for a large commercial quantity.
(b) as to Mr Pham, pursuant to the plea bargain, the quantity with which he is charged is 20 times higher than the threshold for a commercial quantity by weight and, indeed, as I have already said, double the threshold for the next criminal level.
21 I have considered, by analogy, in regard to both sentences, what the Court of Appeal said in Rahmani v R, a trial involving a charge of traffic large commercial quantity, [29]:
‘Courts should be informed by the conclusions in Gregory that sentences for commercial quantity trafficking need to increase, and such would have flow on consequences for large commercial quantity trafficking.’
Also at [30], the Court said:
'Parliament sets parameters within which the sentencing discretion is exercised. In the case of large commercial quantity trafficking the Court is guided by two related parameters: the maximum penalty of life imprisonment and the place of this offence in the legislative hierarchy of traffic offences differentiated by quantity. As we have said the quantity trafficked in this case took it into the highest quantitative category, which marks out the most serious traffic offence under Victorian law.'
22 Using such parameters, as I said by way of analogy from that case, in regard to Mr Lai, the maximum penalty here is life imprisonment and the drugs concerned are of the highest quantitative category. Indeed, just approximately under four times the weight threshold and over 300 plants in excess of the plant threshold.
23 As to Mr Pham the parameters show that Mr Pham's maximum penalty is one of 25 years and the drugs concerned are of the highest quantitive category being six times the plant threshold and 20 times the weight threshold. I make the point that the analogy with Rahmani obviously ends there, by way of understanding the comments made by the court as to parameters. I have already indicated that was a trafficking case, but in particular, the analogy ceases because Rahmani involved a trial and, indeed, Rahmani was a person deemed by the Court to be a principal.
24 The other general comment is set out in Wilson, Sassime & Ors v DPP [2012] VSCA 141, which again was a trafficking case involving a large commercial quantity. At [21], the Court said:
'In offending of this kind, primacy must always be given to considerations of general and specific deterrence, protection of the community and denunciation of anti-social behaviour.’
25 The other general comment that I want to refer to was made in Nguyen v R [2017] VSCA 127, [33] and [64], and is of note because here both Mr Pham and Mr Lai appear before the Court with no priors whatsoever and with a questionable immigration status. Nguyen concerned the cultivation of a commercial quantity of cannabis, the Court of Appeal said at [33] to [35] the following; [33]:
'It was also open to the judge to form the view that the maximum penalty of 25 years imprisonment stipulated for the cultivation offence was informed by the need for general deterrence and that the prevalence of the form of the offending involved in this case gave rise to greater sensitivity in this regard.’
26 They went on at [34] to say:
'In particular, this was so because of the prevalent use of young persons with vulnerable immigration status to undertake the role of crop sitter or minder (which was relevant in that case). The consequential buffering from detection of the organisers or principals of the scheme was also correctly identified by the sentencing judge as an additional factor, bearing on the importance of general deterrence. The Sentencing Advisory Council report of March 2015 entitled Major Drug Offences Current Sentencing Practices notes that there is a particular incentive for this kind of business structure where the statutory offence categories and the relevant maximum penalties are based on the quantity of narcotic plants cultivated.'
27 The Court went on to say:
'It follows that the characterisation of the appellant's role as that of a crop sitter, (which was relevant in that case), does not of itself displace the need to look at the circumstances of the offending as a whole and to weigh competing sentencing considerations in determining an appropriate outcome.'
28 Hence while I am satisfied beyond reasonable doubt that each of the accused roles is not that of a mere crop sitter, I accept, as put by counsel, that neither accused were major beneficiaries of the scheme, and were to receive a financial reward for their involvement, the amount of which remains unknown. However, this must have been agreed I imagine as part of the plea bargain, such was described by the prosecution as modest. Now, I am not too certain why that was so agreed, but that was what was stated by the prosecutor, and I accept that I am bound by that. I accept Mr Farrington's submission and, indeed, to that degree, Mr Jakobson's that there is no evidence in regard to either accused that they played a role in the renting of the premises, in the financing or setting up of the crops.
29 However, as to setting up the enterprise, I would dispute the submission that they had no role, because clearly each played a role in regard to the car rentals. However, but for the site attendances which have been able to be advised to the Court by way of the surveillance, there is no other evidence of the precise role that they played in these crimes apart from their obvious roles in assisting the general cultivation. Following on from my earlier remarks the Court does not have any other evidence which may have further illustrated each of the accused roles. In this regard, I refer for example to some form of camera being placed within both of the grow houses to try to ascertain more precisely the role of each accused in these crimes.
30 However, in saying that, I note the comments of the Court of Appeal as to the proliferation of these types of offences in this State. I also know that from the number of such sentences I am required to pronounce, and I am only a single Judge. I am sure each of the Judges of this Court can attest to the proliferation of this type of crime. Given that, I note and must be mindful insofar as the Court asking the Director and/or the police to seek to provide more information by way of surveillance to the Court, that these steps no doubt are limited by finance and resources, and must no doubt be limited by such.
31 Given the totality of the above comments and the details that I have indicated, the prosecution called for both accused to receive a period of imprisonment with parole, see [7] of the sentencing submissions. It should be said that each counsel conceded such was the appropriate sentence in this case, being Mr Farrington at [4.30] of his submission and Mr Jakobson at [28] of his submission.
32 Coming then to the plea for Mr Lai, as I said Mr Lai is now 38. His de facto is a permanent resident of this country. I am told that they have one child of their relationship, who is six months old. By way of background, Mr Lai worked as an electrician. He, no doubt like thousands in this State, was rendered unemployed with the pandemic in the last number of years and I accept such rendered him vulnerable to be recruited by the principals in this crime.
33 Mr Lai currently has no immigration status, having over-stayed his visa. He is apparently subject to a holding visa by way of an appeal placed by his migration agents. However, given these circumstances, upon conviction, that appeal will clearly go nowhere. The reality of being deported for Mr Lai, given that I am instructed by Mr Farrington that his de facto and child are to remain in this country, will make his period of imprisonment particularly difficult, and be an increased burden, as will the fact that he will no longer be able to be in Australia with his partner and her child. The reality is probably that he was never going to be able remain in Australia because of his status, but his criminality has made that a certainty.
34 In particular, Mr Farrington also pointed out the plea of guilty as a matter of mitigation. The importance of such a plea, given the principles set out in Worboyes [2021] VSCA 169, where the Court talks of the enhanced mitigation of pleas made during this period and the fact that such pleas attract a more pronounced amelioration of sentence, is accepted.
35 The 242 days pre-sentence detention have been made difficult by the measures undertaken and the restrictions imposed due to the pandemic crisis and, of course, I understand that those will continue for the period of imprisonment to be served by Mr Lai. I accept the submission that an understanding of those circumstances must go to a moderation of sentence. I note, of course, that Mr Lai has no priors and, as I have already said, has had a difficult time on remand because of the Covid conditions. I take all those matters into account.
36 In regard to the plea of Mr Pham, Mr Jakobson referred to his age, 26. I quoted earlier the reference to the principles as to the utilising of persons of young age with compromised immigration status. Clearly, Mr Lai did not fall into that category by way of young age, but Mr Pham is closer being 26, his status by way of immigration is also compromised.
37 By way of background, he had a particular difficult social background in Vietnam, and I note the particulars detailed in the submissions by Mr Jakobson. He clearly used the ploy of a visitor's visa, in association with a so called migration agent, to try to overcome the immigration restrictions in this country. He, as a result of being apprehended, sought a protection visa that I understand was refused. It may be, as I understand it, that the immigration agent has lodged an appeal on his behalf against that refusal. However, of course, this conviction and plea will put an end to any such opportunity that Mr Pham hoped to obtain by living in Australia.
38 I should say that in regard to both accused, it is not my role to impose sentence or exacerbate their criminality because of their attempts to overcome the immigration restrictions of this country. They are in enough difficulty without that, but I just want to make sure that it is understood that my comments about that in no way has any role in my sentencing. Mr Pham, because of not having a visa after his visitor's visa expired was confined to labouring work apparently in various markets and unfortunately again, as I said in regard to Mr Lai, Mr Pham was rendered into a very difficult employment situation due to the impact of the pandemic and its limitation therefore on available labouring work.
39
I am told by Mr Jakobson that the purpose of Mr Pham seeking to be financially rewarded for being involved in such serious criminality was a desperate need for funds to assist his family in Vietnam. While no doubt such a desire is laudable, it is not in any way an excuse, and there is no doubt that this offending was committed for the purposes of financial gain. It was pointed by
Mr Jakobson that Mr Pham has no prior offences, that it is certain that he will be deported, that the difficult time that he has spent on remand will continue for him while he is serving this sentence, all of which I take into account.
40 In the period that Mr Pham has been on remand, he had been stressed from ongoing concern about the Court proceedings. I adopt for him the principles of Worboyes, which I have already pronounced and which was put to me by Mr Jakobson. I accept that his plea is an indication of remorse as I accept in regard to Mr Lai. I also accept that the conditions in jail to date of being on remand had been difficult and those conditions at least in the short term, must lead to a moderation of sentence. In particular in regard to Mr Pham, it is put that he has had some language difficulties. He has not been able to have any family visits obviously because most of his family is in Vietnam. He has had, as no doubt also Mr Lai has had, limited ability to effect rehabilitation. However, I note the additional steps taken by him which were forwarded to the Court since the plea, and they have been added to the materials by way of being Exhibit P3.
41 I pronounce sentence having considered all such factors and the cases referred to me by the prosecutor and defence counsel. I must ensure of course, as detailed by the High Court in DPP v Dalgliesh (2017) 91 ALJR 1063, at 1072, that each of the accused receives a just sentence based upon the facts of each of their individual crimes, as best as they can be ascertained.
42 Coming therefore firstly to Mr Lai. Mr Lai you will be convicted of a breach of s72 of the Drugs Poisons and Controlled Substances Act. Therefore, you must be, pursuant to s89DI of the Sentencing Act declared by this Court to be a serious drug offender.
43 Insofar as your penalty for such offence, you are hereby sentenced to eight years jail with a non-parole period of five and a half years. I declare pursuant to s18 that the 242 days that had been agreed as to your pre-sentence detention be deemed as service of this sentence and that such be recorded in the records of this Court.
44 The Parliament requires Courts when they impose a prison sentence to make a declaration pursuant to s6AAA of the Sentencing Act as to the impact of the plea of guilty. Such impact being heightened as I have already indicated in these times. It is a difficult requirement from Parliament, because the requirement relates only to the fact of the plea of guilty and I have already detailed the numerous factors that have been taken into account by way of mitigation in regard to Mr Lai. However, doing as best as I can, the period I would have sentenced Mr Lai to, had he not pleaded guilty, is 11 and a half years with a non-parole at seven years eight months.
45 Coming then to Mr Pham. Mr Pham you will be convicted of a breach of s72A of the Drugs Poisons and Controlled Substances Act. You will be sentenced to a period of imprisonment of four and a half years with a non-parole period of three years. I declare pursuant to s18 that the 242 days that you have served by way of pre-sentence detention be deemed service of this sentence, and that such be recorded in the records of this Court.
46 Pursuant to the provisions of 6AAA, I make the same comments as I made in regard to Mr Lai and indicate, guided by those comments, that the period, had you not pleaded guilty, that you would have been given by way of imprisonment is six years with a minimum of four years and 10 months. The point of that declaration is to indicate in an obvious form the benefits to you of your plea of guilty. Those differentiations will be of course more closely explained to you by your representatives in due course.
47 Are there any matters that I need to clarify for either counsel, any of the counsel I mean?
48 MR YANG: Not from counsel for Mr Lai, Your Honour. Thank you.
49 MR JAKOBSON: Nothing further, Your Honour. As Your Honour pleases.
50 HIS HONOUR: Oh, yes, I apologise. I have also made as requested and consented to by both counsel in regard to Mr Lai a forfeiture order in regard to a number of items including the $2,705 and a disposal order. And in regard to Mr Pham also the detailed forfeiture and disposal orders. Those are all consented to by counsel.
51 MR YANG: As the Court pleases.
52 MR JAKOBSON: Thank you, Your Honour. As Your Honour pleases.
53 MS ZAMMIT: Thank you.
54 HIS HONOUR: Can I thank all counsel for their assistance in the Court's determination in regard to these very serious offences and the principles that the Court was required to undertake in such.
55 MS ZAMMIT: And Your Honour, can I thank you on behalf of the informant. I should indicate that the informant is present in the link today and she has heard the comments of Your Honour and it is appreciated, Your Honour.
56 HIS HONOUR: Yes, and I would like that to be conveyed. It is not anyway of criticism because I understand we only recently read in the paper about money and resources and police officers. I also understand the huge proliferation in our city of grow houses. So, no doubt resources are limited by that issue. However, as you would have seen in those reference, Ms Zammit, which we gave you, it makes the Court's task a lot easier if information such as was obtained in this case by way of surveillance put onto the cars can be obtained and illuminates the criminality.
57 MS ZAMMIT: Thank you, Your Honour.
58 HIS HONOUR: Thank you, Ms Zammit.
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