Director of Public Prosecutions v Nguyen; Director of Public Prosecutions v Pham
[2018] VCC 664
•2 May 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-00128
CR-17-02422
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUNG NGUYEN GIANG PHAM |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 April 2018 | |
DATE OF SENTENCE: | 2 May 2018 | |
CASE MAY BE CITED AS: | DPP v Nguyen DPP v Pham | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 664 | |
REASONS FOR SENTENCE
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| Subject | CRIMINAL LAW |
| Catchwords | Sentence – cultivation of a narcotic plant of a commercial quantity (2 charges) – cultivation of a narcotic plant - using a false document – possess child pornography - |
| Legislation Cited | Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic) |
| Cases Cited: | R v Nguyen; R v Pham [2010] 205 ACR 106; Nguyen v The Queen [2011] 31 VR 673; R v Pidoto and O'Dea [2006] VSCA 185; R v Tsolacos (1995) 81 ACR 434 |
| Sentence: | Both convicted and sentenced to a term of six years and 3 months imprisonment with a non-parole period of four years and six months imprisonment. |
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Guesdon | Office of Public Prosecutions |
| For the Accused | Mr G. Barns (Nguyen) Ms A. Kirmos (Pham) | Valos Black McNamara Barristers and Solicitors |
HIS HONOUR:
1 In this matter two indictments were heard as pleas on 20 April of this year. Ms Guesdon appeared on behalf of the DPP. Insofar as Mr Pham was concerned Mr Paul Kounnas appeared and Ms Kirmos appears today.
2 Indictment No.H11379537 was an indictment to which Giang Duc Pham, pleaded guilty. Mr Pham is a timber floor maker. He is 30 and was aged 29 at the date of these offences and was born on 14 November 1987. He is lawfully in Australia on a bridging visa.
3 There are two charges in the indictment. The first is cultivation of a narcotic plant in a commercial quantity in the period 2 May to 17 May. The provision that offends is the Drugs, Poisons and Controlled Substances Act, s.72A, and the offending, was in 2017. The premises concerned in regard to that charge were located at 20 Scotchmer Crescent in Mernda.
4 The second charge to which Mr Pham pleaded guilty was a lesser count under the same Act, s.72B, to cultivate a narcotic plant, but in an amount less than a commercial quantity. Such is still a serious charge, not as serious as the first charge, which has a maximum penalty prescribed by Parliament of 25 years, which reflects the views of the community and Parliament as to the seriousness of such an offence. The second charge as to cultivate, in the lesser quantity under s.72B, has a maximum penalty imposed of 15 years. The period insofar as this charge was from 17 March to 17 May 2017, one month. The premises in that instance were at 4 Clematis Place in Sunshine West.
5 Both prisoners are accepted by the Crown as being crop sitters. The prosecutor referred to the quantity based sentencing regime. Insofar as the commercial quantity charge, Charge 1, the amount involved was 182 cannabis plants, and by weight 81.75 kilograms. The threshold to take one into the commercial quantity of cultivation is either 100 plants or 25 kilograms. In that instance Mr Pham, as to Charge 1, is in this threshold, on the basis of having 82 plants more than the threshold, and three times the weight. It should be pointed out that the next level, that is a large commercial quantity, the appropriate threshold is 1,000 plants and 250 kilograms. Hence in both categories the crime is at the lower end.
6 Insofar as the second charge at Clematis Place, Sunshine West the marijuana here was in a drying, and seedling state. The amount was 8.24 kilograms. The premises had been rented by Mr Pham for a period of two months. In his record of interview he indicated that he had, at that premises, merely cultivated some 20 plants. In the record of interview he said he lived with Mr Hung at Clematis Avenue.
7 Coming then to the second indictment, Indictment No.H11378897. Mr Hung Van Nguyen, for whom Mr Barns appeared, occupation given is a farm worker. He was born on 6 May 1980, he is aged 38 and was 37 at the time of the offending. He was a person who was, at that time of this offending, unlawfully in Australia.
8 This indictment comprises three charges. The first is the production of a false document, in this instance a New South Wales licence which was produced when he was originally arrested. Such is an offence against s.83A of the Crimes Act 1958. The offence date is 2 May 2017 and the maximum penalty prescribed by Parliament for such an offence is ten years.
9 The second charge is the cultivation of the commercial quantity of narcotic plants at the 20 Scotchmer Crescent residence in Mernda, which I have already detailed as the first charge on the Pham indictment. The period involved is the same period as in the Pham indictment, from 2 May 2017 to 17 May 2017. As I said, this is an offence against s.72A of the Drugs, Poisons and Controlled Substances Act for which, of course, if there was any need to stress the seriousness of such matter, the maximum penalty prescribed by Parliament, as I have already recounted, is 25 years.
10 The third charge on this indictment is one of possess pornography. Insofar as that is concerned, this was seized when a warrant was executed at Clematis Drive and his phone was seized. On that phone were three photos of girls, approximately of the age of 12 to 14, in a suggestive pose. The maximum penalty prescribed for such offence under the legislation is ten years, again indicative of its seriousness.
11 Insofar as Mr Nguyen is concerned he made a no comment record of interview. The prosecution sought an order as to forfeiture, which I think I have already signed, and a forensic sample order which I will sign.
12 Insofar as the co-accused, one of the co-accused is going to trial and Mr Pham's wife was dealt with below, when she pleaded to a lesser trafficking charge. Certainly in regard to Mrs Pham, but neither were put to the Court as being relevant, insofar as parity.
13 The learned prosecutor tendered as Exhibit A the summary in regard to both indictments. Both houses were leased by the co-accused, Phung Duy Tran, and then converted quite quickly into crop houses. Mr Nguyen was not involved in the Sunshine West charge at 4 Clematis Place. Those matters being related purely to Mr Pham.
14 It was alleged that Mr Nguyen paid Mr Pham $200 a day to cultivate the premises at Mernda. The motive for both parties is accepted as a monetary motive. They both come before the Court with no priors, and have pleaded guilty before the Court at an early stage. Insofar as such plea is concerned, I take such into account and apply an appropriate discount, both as an indication of remorse so expressed, for the assistance to the system of justice and for its utilitarian benefit. I also in each case, will make a declaration under s.6AAA. Those comments, and the declaration, should be sufficient to satisfy any Court, that an appropriate discount has been taken into account.
15 Both prisoners have been in custody, and a declaration needs to be made, for 350 days pursuant to s.18.
16 As I indicated in both indictments they have committed a particularly serious charge given the penalty involved. As I say, the only more serious penalty that can be prescribed, is one for a large commercial quantity, for which the penalty imposed under the Act is life imprisonment.
17 As the learned prosecutor said, the scheme proposed under the Act, which Parliament has adopted prescribes a hierarchy of seriousness defined by the quantity of the narcotic plant which has been cultivated.
18 Albeit, talking about trafficking, in Tsolacos reported (1995) 81 ACR 434, the Court of Appeal, as it then was, said this:
"For the purposes of identifying the gravity of the offence and thus of ascertaining the appropriate sentence, the legislation places emphasis on quantities of drugs "cultivated" and not on values."
19 As has been recited a number of times in this Court, the quantity based system referred to by the learner prosecutor, is the system detailed by the Court of Appeal in R v Pidoto and O'Dea [2006] VSCA 185, a quantity based sentencing regime. Of course, quantity as such, has no arithmetical relationship to a sentence, but along with the maximum sentence imposed by Parliament, is a very significant aspect in sentencing for these crimes.
20 I take into account, by way of general principle, the determination of the Court of Appeal of this State in Nguyen v The Queen [2011] 31VR 673, [33] and [35], where the Court of Appeal reviewed the appropriate factors that come into play in sentencing of this type of crime and further the general principles, again while not exactly the same offence, but the general principles as were detailed by the New South Wales Court of Appeal in R v Nguyen and Pham [2010] 205 ACR 106.
21 There is no issue, insofar as the most serious charge in each of these indictments are concerned, that the objective criminality is high albeit, of course, that the role is accepted, in each case of Mr Pham and Mr Nguyen, being crop sitters.
22 It is to be emphasised that the Court of Appeal have made it clear that those who decide, for the purpose of profit, to transgress this legislation, whatever their role, face condign punishment.
23 Insofar as the plea conducted by Mr Barns, his written submission was tendered as Exhibit P1. The psychological report of Bernard Healey, dated 7 April 2018, was tendered as Exhibit P2. That report is not of all that much significance, except that it does make the point that Mr Nguyen is a person of high intellect. Exhibit P3 was the results of the TAFE courses he has undertaken while in gaol. Exhibit P4 were the negative drug screens and Exhibit P5 was the reference from the family friend, Duc Anh Du. I have taken all those matters into account.
24 Insofar as the submission of Mr Barns, I have taken into account the written submission, Exhibit P1. The matter first stressed by Mr Barns was the early plea of guilty and the remorse indicated by that, the nature of the offending of which there was no issue. By way of background he, when he arrived in Australia as a boat person, had left two children behind in Vietnam. He has apparently been able to work on various farms during the period that he has been in Australia. He was able to leave. I am not quite certain of the circumstances how he got his freedom after being in Australia, but anyway he was able to leave with a friend, arrived in Melbourne in 2016. It is clear given his status, that once he completes his sentence he will be deported.
25 It is difficult to know, but it appears that he earned a minimum amount of money from this escapade, not that that in any way reduces the culpability where a person consents to be involved in this type of activity, albeit at a lower level, that is the level of a crop sitter, but it would appear simply because of the time involved, that he had not been able to earn particularly much from this crime.
26 Insofar as his rehabilitation, it was put that given that he has no prior convictions it should be seen as a terrible mistake in his life, that there is no suggestion of any drug use, and one would hope that rehabilitation is effected in due course, albeit in Vietnam.
27 As I said, given the current legislation it is clear that he will be deported. I am told that he is keen to go back. Mr Barns in submission accepted that there was no alternative, but for an appropriate term of imprisonment and it was finally submitted, as set out in paragraph 17 of Mr Barns' submission, that while such term was warranted given the nature of the charges and the offending, the length of the term is obviously influenced by the early plea and relatively short offending period.
28 Insofar as the third charge is concerned, it was accepted by the learned prosecutor, and appropriately so, given the low number of images and their type, that such is at the very bottom end as to culpability for that offence, without in any way diminishing the seriousness of the crime.
29 Insofar as the plea of Mr Pham is concerned, equally written submissions were tendered by Mr Kounnas, Exhibit P1. Mr Pham, came to Australia by way of a student visa. As I said, he is currently on a bridging visa. The bridging visa, was relevant to a pending application, however, considering the current circumstances, that application will not be successful, and he will be deported when he finishes his prison term.
30 By way of background, it would appear that he has come to Australia hoping, having completed his studies, to then get residency. He comes, like many Vietnamese people who come to this country, and make very successful contributions to this country, from a poor socioeconomic background. He left his daughter with his parents. He came here with his wife, who has been dealt with in the Magistrates' Court, and all his family is located in Vietnam. He was apparently studying English at the time of the offence. He was also employed in various occupations by way of timberwork in various homes.
31 The matters stressed were the objective seriousness. There was no issue insofar as that was concerned. It was, as I said, accepted that he was a crop sitter and Mr Kounnas did not refute the proposition that a person is subject to condign punishment whatever the role, albeit there needs to be a discernment given that role, and given the large maximum penalty involved.
32 I accepted the submission from Mr Kounnas that Mr Pham was the archetype of persons used in these crimes, a person with no prior offences, socially disadvantaged, and prepared for money to take such a grave risk with his liberty.
33 Again Mr Kounnas stressed the limited time in which Mr Pham had been involved, in addition to his role, stressed the relatively low quantity, albeit very serious offence. He submitted that Mr Pham’s role as a crop sitter was more minor than his co-accused, given that he was doing what he was told to do and indeed being so paid. Despite the sophistication of the setup of the hydroponic situation there was nothing particularly sophisticated about the work of crop sitting that was required. No doubt he had some training in that by way of his background.
34 Mr Kounnas stressed the early plea and the discount involved. I do not need to go into that again. The plea in this case being slightly earlier than that of Mr Nguyen. The fact that it is Mr Pham's first time in custody and, of course, the obvious difficulty of language, and that he is bearing such time without a family. All of his family now but for his wife, of course, are in Vietnam.
35 Again in response the prosecutor stressed the quantity based regime, and the principles that I have earlier generally expressed of deterrence and denunciation of persons who are so silly as to be involved in such serious criminality.
36 Yes Mr Pham, if you would stand please.
37 Mr Pham, in regard to the first count in your indictment, that is the cultivate a commercial quantity of cannabis, you will be sentenced to a period of imprisonment of six years.
38 In regard to the second count a period of imprisonment of one year.
39 Insofar as cumulation, I will cumulate three months of the sentence in regard to Charge 2, making a total aggregate sentence imposed on you of six years and three months, and I order that the minimum period that you are to serve is a period of four and a half years.
40 Pursuant to s.18 I take into account the pre-sentence detention that you have served of 350 days, and declare that such is deemed to be service of this sentence and such declaration to be recorded in the records of this court.
41 Mr Pham, the Parliament has asked me to advise you of what, in many ways, is an almost impossible task, but to tell you that by pleading guilty, what you have achieved, by taking only that factor into account, as artificial as it may be. Can I indicate to you that had you not pleaded guilty the sentence that would have been imposed on you would be a period of eight years and four months, with a minimum of five years and four months. Hence that indicates to you that the discount involved between eight years and four months and five years and four months to the actual sentence of six years and three months and four and a half years.
42 Mr Pham, you will no doubt in due course be assisted by your counsel in understanding the terms of this sentence and as I say, you will ultimately receive as well a copy of the sentence. You can take a seat.
43 Yes, Mr Nguyen. Insofar as the false document presented, I sentence you to three months gaol, Charge 1.
44 In regard to the charge of cultivate a commercial quantity of a narcotic plant I sentence you to a period of six years gaol.
45 In regard to the charge of possess pornography, a period of imprisonment of three months.
46 Using Charge 2 as the base sentence, I order that the three months imposed for the possess pornography charge be served cumulatively upon the base sentence, making a total effective sentence of six years and three months.
47 As with your co-accused, I order that the period that you must serve before being eligible for parole is a period of four and a half years.
48 I declare pursuant to s.18 that the 350 days that you have served are to be deemed as service of this sentence and that this declaration be recorded in the records of this Court.
49 Again Mr Nguyen, can I indicate to you pursuant to s.6AAA that had you not pleaded guilty, the sentence you would have got is not six years and three months with four and a half to serve, but eight years and four months with five years and four months to serve. The purpose of me explaining that is that the Parliament wish you to fully understand the benefits of you pleading guilty, and as best I can do I am to demonstrate that by making such indication.
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HIS HONOUR: Yes, any other matters that are required?
MS GUESDON: Just the sexual offenders registration forms, Your Honour.
HIS HONOUR: Is that appropriate?
MS GUESDON: It's mandatory eight years for Charge 3 for Mr Nguyen.
HIS HONOUR: Despite the level?
MS GUESDON: There's no - - -
HIS HONOUR: Yes. Well it has nothing to do with this court.
MS GUESDON: No.
HIS HONOUR: That's something prescribed by Parliament.
MS GUESDON: He just has to sign.
HIS HONOUR: So that's for Mr Nguyen. Mr Barns, can you have him sign that?
MS GUESDON: And then Your Honour, it's just - - -
HIS HONOUR: You might just explain it's nothing to do with the Court but it's prescribed by Parliament. Sorry, Madam Prosecutor?
MS GUESDON: Sorry, Your Honour?
HIS HONOUR: Did you say anything else?
MS GUESDON: I was just going to - there was a disposal order as well as the forfeiture and the forensic - - -
HIS HONOUR: Have I signed that, the disposal order?
MS GUESDON: I'm not sure. I'll just have to - - -
HIS HONOUR: Can I sign those? Is that in regard to the pornography?
MS GUESDON: No, it's the cannabis.
HIS HONOUR: The cannabis.
MS GUESDON: And related equipment.
HIS HONOUR: It's only the one - there's only the one order under s.464ZF? In regard to Pham there doesn't appear to be any other. The s.464ZF one only in relation to Pham and not in relation to both of them. What's this one? Right. Yes?
MS KIRMOS: Your Honour, apologies.
HIS HONOUR: Yes.
MS KIRMOS: I was listening to the Nguyen submissions but you mentioned that the character reference and the drug testing was submitted by Mr Nguyen when in fact it was submitted by Mr Pham. I just wanted to clarify.
HIS HONOUR: I meant that, sorry.
MS KIRMOS: Apologies.
HIS HONOUR: I apologise.
MS KIRMOS: All right. Thank you, Your Honour.
HIS HONOUR: Nguyen and Pham seems to be coming very closely connected to this legislation, doesn't it? Every second Court of Appeal or High Court pronouncement it's one or the other. Yes, thank you for that. I accept that. Yes, thank you both. Thank you all I should say. Yes, we'll adjourn for the trial.
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