Director of Public Prosecutions v Pham
[2021] VCC 1521
•14 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Restricted Suitable for Publication |
Case No. CR-21-00532
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TINH VIET PHAM |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 October 2021 | |
DATE OF SENTENCE: | 14 October 2021 | |
CASE MAY BE CITED AS: | DPP v PHAM | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1521 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Cultivation of a narcotic plant – commercial quantity (1 count) – Deal with property reasonably suspected to be proceeds of crime (1 count) – Plea of guilty during the currency of the Covid-19 pandemic – lost possibility of securing a visa – no prior convictions – very good prospects of rehabilitation – Doran discount – hardship due to Covid-19
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Anh Tuan Nguyen v The Queen [2017] VSCA 100; Dang v The Queen [2020] VSCA 24; Do v The Queen [2013] VSCA 189; R v Doran [2005] VSCA 271; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; Jones v The Queen [2021] VSCA 114; Matamata v The Queen [2021] VSCA 253; McClelland v The Queen [2017] VSCA 124; Mohtadi v The Queen [2018] VSCA 238; Nguyen and Pham v The Queen [2018] VSCA 322; Nguyen v The Queen [2016] VSCA 198; Nguyen v The Queen [2021] VSCA 211; Quy Nguyen v The Queen (2017] VSCA 127; Worboyes v The Queen [2021] VSCA 169
Sentence: Aggregate 13 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B Goding | Office of Public Prosecutions |
| For the Accused | Mr C Edwards | Giorgianni & Liang Lawyers |
HER HONOUR:
1Tinh Viet Pham, you have pleaded guilty to one charge of cultivation of a commercial quantity of a narcotic plant, Cannabis, which carries a maximum penalty of 25 years’ imprisonment. It was common ground that this is a Category 2 offence to which none of the exceptions set out in s5(2H) of the Sentencing Act 1991 (Vic) applies. For this reason, an immediate term of imprisonment is the only available sentencing option. You have also consented to the uplifting of a summary charge of dealing with property, namely $4730, suspected of being the proceeds of crime. The maximum penalty for this offence is 2 years’ imprisonment.
2I note that you have been in custody since 29 September 2021 and that the pre-sentence detention to be declared is 380 days, not including today.
3I sentence you on the basis of the agreed statement of facts contained in the Summary of Prosecution Opening for Plea.[1] The parties also filed written submissions and made further oral submissions. In addition, I was provided with and considered a psychological report of Mr Warren Simmons, consulting psychologist, dated 16 September 2021.[2] The offending occurred during the period between 25 August 2020 and 29 September 2020. There was a hydroponic cannabis crop being grown at premises in Oakleigh, rented by another person, comprising 64 cannabis plants weighing 77.3 kgs. An electrical bypass was also in place. You had no role in the set-up of the crop or the electrical bypass and are to be sentenced as a ‘crop sitter’.
[1] Exhibit 1.
[2] Exhibit A.
4You had been out of work due to the COVID-19 pandemic and were approached in August 2020 by a man who offered you $200 per day to water and fertilise the plants, about 2-3 times per week. The man loaned you some money, which you needed to pay bills and for food, and you were required to pay the sum back by attending at the property in the manner described above for the sum of $200 per visit. You visited the address about 10 times.
5Police became aware of the crop house after being alerted by United Energy on 24 August 2020 of unusual electrical power activity at the premises. Police conducted a thermal flyover of the address on 6 September 2020 and on 29 September 2020 were conducting surveillance on the premises when you attended there by car, and collected the mail. You were intercepted in the driveway of the premises and arrested and found to be carrying $4730 in cash, which was seized by police and is the subject of the summary charge. A search warrant was executed at the address and the plants located.
6When interviewed on 29 September 2020, you made full admissions to undertaking watering and fertilizing activities within the house. The charges which had been initiated in the Magistrates’ Court as a single date range were then adjusted to reflect the current ‘between’ dates. It is common ground that for this reason you are entitled to the ‘Doran discount’ in your sentence.[3]
[3] R v Doran [2005] VSCA 271, [15]-[16] (‘Doran’).
7I note that the matter proceeded by way of straight hand up brief from the Magistrates’ Court. It is common ground that you are entitled to the benefit of your plea for its utilitarian value, given the remorse that inheres in the plea, along with the saving of the time and cost of a contested hearing and the sparing of witnesses from having to give further evidence. It is also common ground that you are entitled to a further amelioration of sentence because your plea was entered during the currency of the COVID-19 pandemic. It was also agreed that some weight can be given to the additional burden of imprisonment as a result of COVID-19 restrictions within the prison, and your additional stress and concern about your health. Finally, it was agreed that because you did not have a valid visa at the time of offending and are likely to be deported, you will not suffer uncertainty in this regard while serving your sentence.
8Finally, it was common ground that as you do not rely on any of the s5(2H) exceptions, a term of imprisonment must be imposed upon you because charge 1 is a ‘category 2’ offence under the Act.
9The prosecution submitted, however, that the mitigatory effect of deportation is lessened in your case because you were residing illegally in Australia at the time of offending and therefore have not lost an existing right to remain here, but at best have lost a possibility of securing a visa.[4] The prosecution also submitted that less weight is to be given to your lack of prior convictions because this is a common feature in cases of cultivation of narcotic plants.[5]
[4] Nguyen v The Queen [2016] VSCA 198, [35].
[5] Matamata v The Queen [2021] VSCA 253, [78].
10Your personal circumstances were set out in the psychological report of Mr Warren Simmons dated 16 September 2021 and defence submissions. You are the youngest of 8 children born and raised in the north of Vietnam as a Catholic in very difficult circumstances. Your parents grew rice and sweet potatoes but you often went hungry. Your roof leaked, and there was no electricity or toilet. You helped your father on the farm, and left school at age 14 because your family could not afford for you to go. You worked for 10 years for others as a farm labourer and then in construction. You married at age 26 and have a son and daughter aged 15 and 20 respectively. Your marriage failed as a result of financial problems.
11You came to Australia in 2013 as a refugee and worked casually but full-time in Victoria and New South Wales either as a factory worker or construction labourer, mainly with other Vietnamese speakers. You lived in shared accommodation. At the time of your offending, your bridging visa had lapsed. Due to COVID-19, you were unable to find work and therefore unable to support yourself at all. You were approached at this time and offered some gardening work by people who loaned you money before taking you to the house and telling you what to do. You expressed remorse to Mr Simmons for your offending.
12Mr Simmons noted that you have no underlying mental health issues or antisocial personality traits and offended out of financial desperation.
13Whilst in custody, you have completed a number of courses and are working as a gardener. Unfortunately, your English is so poor that you are quite isolated in prison, apart from being able to converse with two other Vietnamese speaking prisoners.
14I accept the matters relied on by your counsel in mitigation, most of which were conceded by the prosecution. You are a 46-year-old man without prior convictions. You are to be sentenced as a crop sitter who was not involved in the organisation and distribution of the crop you cared for. The money you were loaned was given to you before you were taken to the property and shown what you were required to do. You were not living at the property but commuted there to attend to it on 10 occasions. You offended only because you were financially desperate in circumstances where, having worked full-time, albeit casually, in Australia since 2013, you were unable to find paid employment during the period of the COVID-19 restrictions in Melbourne, and were not receiving any form of government assistance. Whilst the number of plants, 64, falls well beneath the 100 plant threshold for commercial quantity, the weight of those plants, 77.3 kg, is just over three times the threshold for commercial quantity. Objectively, I consider that your offending lies at the lower end of seriousness for offending of this kind.
15Your admissions enabled the prosecution to formulate the ‘between’ dates on the indictment and you are entitled to a discount for this assistance to authorities.[6] You entered a plea of guilty at a relatively early stage, there was no contested committal hearing, and your plea demonstrates remorse, your acceptance of responsibility and willingness to facilitate the course of justice. In addition, the utilitarian value of your plea is greater because it has been made during the currency of the COVID-19 pandemic and you are entitled to an appreciable amelioration in your sentence on this basis.[7] Finally, I have taken into account the hardships you have faced whilst on remand during the past year of COVID-19 restrictions, including: your anxiety about your circumstances; the fact that you have no family support here; your inability to have contact with your children in Vietnam, with whom you were in regular contact prior to being remanded; the restrictions within the prison; and the limited availability of courses and work opportunities. I have also taken into account that you have lost the possibility of securing a visa to remain in Australia.[8]
[6] R v Doran [2005] VSCA 271, [15]-[16].
[7] Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’).
[8] Nguyen v The Queen [2016] VSCA 198 [35].
16I consider that your prospects for rehabilitation are very good given that you have no prior convictions, no underlying alcohol, drug or mental health issues and no anti-social personality traits.
17Whilst denunciation, just punishment and general and specific deterrence loom large in offending of this kind, I consider that protection of the community is of less weight in the light of your good character and the low objective seriousness of your offending. I am mindful of the requirement to apply the principle of parsimony.
18I have considered the comparable cases referred to by counsel.[9] I note that all of the cases referred to predate the decision of the Court of Appeal in Worboyes.[10] In any event, I indicate that I am sentencing you based on my assessment of all the sentencing considerations that are relevant to your particular case.[11]
[9] Quy Nguyen v The Queen (2017] VSCA 127; McClelland v The Queen [2017] VSCA 124; Anh Tuan
Nguyen v The Queen [2017] VSCA 100; Nguyen and Pham v The Queen [2018] VSCA 322; Nguyen v The Queen [2021] VSCA 211; Mohtadi v The Queen [2018] VSCA 238; McClelland v The Queen [2017] VSCA 124; Dang v The Queen [2020] VSCA 24; Jones v The Queen [2021] VSCA 114; Do v The Queen [2013] VSCA 189.
[10] [2021] VSCA 169.
[11] Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41.
19Having regard to all the matters canvassed above, you are convicted on both charges and sentenced to an aggregate, straight sentence of 13 months’ imprisonment. I declare that 380 days of pre-sentence detention, not including today, are to be deducted administratively from this sentence.
20I indicate pursuant to s6AAA of the Sentencing Act that if you had not pleaded guilty to this charge and been found guilty by a jury, I would have imposed a sentence of two years’ imprisonment with a non-parole period of 18 months’ imprisonment.
21Prosecution has applied for a forfeiture order of the $4730 cash the subject of the summary offence, and a disposal order for the crop-sitting equipment identified in the schedule of that order. Your counsel did not object to the making of these orders, therefore I will make them.
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