Director of Public Prosecutions v Pham

[2021] VCC 983

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00379

DIRECTOR OF PUBLIC PROSECUTIONS

v

THAO VIET PHAM

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	9 July 2021
DATE OF SENTENCE:	23 July 2021
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2021] VCC 983

REASONS FOR SENTENCE
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Subject:Cultivation of a narcotic plant – commercial quantity (1 count) – Theft (1 count)

Catchwords:              Plea of guilty entered during the currency of COVID-19 – deportation after sentence – category 2 offence - immediate term of imprisonment with a non-parole period

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:DPP v Worboyes [2021] VSCA 169

Sentence:                  Aggregate term of imprisonment of 12 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A Patterson	Office of Public Prosecutions
For the Accused	Mr D De Witt	Victoria Legal Aid

HER HONOUR:

1Thao Viet Pham, you have pleaded guilty to one charge of cultivation of a commercial quantity of a narcotic plant (Cannabis), and one charge of theft, that of electricity. The offending occurred during the period between 1 March 2020 and 18 April 2020, and relates to a crop of 351 cannabis plants weighing 62.59 kgs which were located at premises in Pakenham leased in your name. The offending was detected when a fire broke out due to the electrical bypass installed at the premises. The total value of the electrical theft has been calculated at approximately $42,132.94. The maximum penalty for theft is 10 years imprisonment or a fine of 3000 penalty units.

2It was common ground that you were not responsible for the initial set up of the electrical bypass or the cannabis crop. Your offending was not particularly sophisticated. Your two iPhones revealed contacts with another person, and the DNA of multiple other people were located in the crop house. Your role in the cultivation was that of a crop-sitter: you attended at the premises to water the crop and occasionally stayed overnight. You were promised payment for those attendances but in fact received no payments. The prosecution submitted nonetheless that your role was an integral part of the cultivation process which enabled the plants to flourish.

3It was common ground that Charge 1, that of cultivation of a narcotic plant in not less than a commercial quantity, carries a maximum penalty of 25 years imprisonment, and that it 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 with a non-parole period is the only available sentencing option. I note that you have been in custody since 14 August 2020 and that there are 343 days of pre-sentence detention as at but not including today’s date of 23 July 2021.

4You were arrested on 14 August 2020, gave a no-comment response to questions when interviewed, but then pleaded guilty at the earliest available opportunity – at the committal mention on 23 February 2021.

5You are 32 years old and were 31 at the time of the offending. You have no prior convictions and no history of drug or alcohol abuse or any psychiatric problems. You were born and educated in Vietnam. Your family there is a close one, comprising your parents, and two siblings (and their families). Your parents worked together in various businesses. You completed secondary school in Vietnam and completed a one-year course at culinary college after which you worked as a chef at various restaurants in Vietnam, sending money home to help your parents. Your parents and brother run a small restaurant in Ha Tinh. You have no relatives in Australia.

6In 2016, you were sent to Brisbane by your employer to study beef preservation and processing and entered Australia on a three-month working visa. While in Australia, your parents’ restaurant began to fail and they were falling heavily into debt. You decided to stay on in Australia after the expiry of your visa in order to find work and send money home to them. You moved to Melbourne and found casual work at various restaurants.

7In 2019, I note your instructions, which were not supported by any evidence, that your mother was diagnosed with thyroid cancer and required radiotherapy treatment which was expensive. You tried to earn more money in order to assist her financially, but lost your employment as a result of the COVID-19 pandemic. You were forced to live off your meagre savings. You asked friends to help you find work and were introduced to a man who offered to pay you for tending plants. You were never told how much you would be paid, but did the work anyway. You never received payment for what you did. Your family’s debt has increased due to needing money for your mother’s radiotherapy treatment.

8The prosecution conceded that you should be treated as a crop-sitter whose involvement over 7 weeks at one address was limited to tending to the crops in exchange for a promise of financial payment, which never materialised. Although you were the sole leaseholder of the premises, you played no role in setting up the sophisticated crop or the bypass system, and you received no payment for your role.

9In mitigation, your counsel relied on your limited role in the cultivation enterprise, that you had no expectation of nor received a stake in the crop, on your early plea of guilty, on the remorse inherent in that plea as well as that expressed to your lawyers, on the hardships you have faced in custody due to your poor English and the impact of the COVID-19 restrictions, and on your excellent prospects of rehabilitation.

10Whilst in custody, you have been working full-time gardening and mowing, but have had difficulty navigating the prison system because of your poor English. You have also been unable due to COVID-19 restrictions and your poor English to move around as usual or to participate in courses or other work in prison. You have no family or friends here and have not received any visits. Due to the limited amount you earn in prison and the cost of international calls in custody, you are only able to speak to your mother in Vietnam by phone once per week, whereas you would normally phone her daily. Given that you overstayed your visa in 2016, you have been in Australia illegally since then. Your offending is another reason for which you face inevitable deportation after your release from prison.

11I accept the matters put in mitigation by your counsel. I acknowledge that the inevitability of your deportation signals the end of your plans to work in Australia and send funds home. That being said, I cannot attach any weight to that as constituting a hardship, as you were not entitled to remain here in any event after the expiry of your visa. In any event, as you have no family or friends here, you will suffer less hardship by returning to Vietnam where you have close family ties, than you currently face.

12I consider that your prospects of rehabilitation are excellent given your age, lack of prior psychological issues or problems of drug abuse or gambling, your lack of prior convictions, your solid work history as a chef, your remorse and early plea of guilty, and the fact that your offending was motivated by desperation relating to the need to send money home to your mother.

13After the plea hearing, the parties filed further written submissions addressing recent sentencing practice. I perused those cases but indicate that in determining the appropriate sentence, I have given weight to all the relevant sentencing principles. I note that the cases mentioned by Counsel predate the Court of Appeal decision in DPP v Worboyes [2021] VSCA 169 at [39], where the Court of Appeal confirmed that a plea of guilty entered during the currency of COVID-19 is worthy of a greater weight in mitigation than a similar plea entered at another time, and should attract a greater amelioration of sentence than at another time. I have given appropriate weight to that recent decision.

14The prosecution submitted that a custodial sentence with a non-parole period is the only appropriate sentence. Your counsel did not disagree.

15Given all the circumstances of this case, including the low objective gravity of your offending and your moral  culpability, your  plea of guilty at the earliest time and during the currency of  the COVID-19  pandemic, I consider it appropriate to impose a straight, aggregate sentence of imprisonment.

16Would you please stand.

17Thao Viet Pham, you are convicted and sentenced to an aggregate term of imprisonment of 12 months.

18Pursuant to s6AAA of the Sentencing Act, I indicate that had you not pleaded guilty to these charges, I would have sentenced you to an aggregate sentence of 18 months’ imprisonment with a non-parole period of 12 months.

19The prosecution seeks a disposal order in relation to a number of items listed in the schedule to the proposed order filed by the prosecution. Your counsel does not oppose the making of this order, and I will therefore make the disposal order in the terms sought.