Director of Public Prosecutions v Pham
[2021] VCC 705
•27 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No: CR-21-00009
Indictment No: L12434544
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOAN DINH PHAM |
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JUDGE: | HANNEBERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2021 | |
DATE OF SENTENCE: | 27 May 2021 | |
CASE MAY BE CITED AS: | DPP v Pham | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 705 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Cultivate a commercial quantity of a narcotic plant – crop sitter – general deterrence – deportation – full and frank admissions
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence: 2 years and 9 months imprisonment and I direct you serve a period of 1 year and 9 months before you are eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L. Harrison | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr C. Farrington (for Plea) Mr H. Hamka (for sentence) | Milides Lawyers |
HIS HONOUR:
Introduction
1Hoan Dinh Pham, you have pleaded guilty to one charge of cultivating a narcotic plant, being cannabis, in not less than a commercial quantity pursuant to s 72A of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty applicable is 25 years' imprisonment.
2Cultivating a narcotic plant, being cannabis, in not less than a commercial quantity is a ‘Category 2' offence for the purposes of the Sentencing Act 1991. Where an offence is designated as a 'Category 2', s 5(2H) of the Sentencing Act 1991 provides that a court must impose a custodial sentence unless one of the exceptions apply. Neither counsel in this case suggested such exception applied here.
Summary of Offending
3The circumstances of this offending was the subject of a Summary of Prosecution Opening which was not the subject of any challenge.[1] For present purposes however, I will provide a somewhat abbreviated version of that summary of the offence for which you are to be sentenced.
[1]Exhibit P1.
4On 13 October 2020, police attended 14 Dumfries Street, Deer Park to execute a search warrant. Police stationed themselves at the front and rear doors of the residential premises prior to knocking on the front door. They heard noise inside, but the door was not opened. Police members forced entry into the front door and you were arrested by other members in the rear yard after exiting the back door.
5While proceeding through the property, police noticed that there was a hydroponic cannabis cultivation set up in one of the bedrooms. Police also noted that there was a large shed in the rear yard which was locked with heavy padlocks. You advised police where the keys were to enable them to enter the shed. Inside the shed, police members observed three rooms which had been constructed, each containing cannabis plants.
6During the search of the house and the shed, police members located four rooms, which contained cannabis plants at various stages of growth. The plants were potted individually and had overhead lighting. Rooms also included an overhead exhaust system. An electrical bypass was found and removed from the front bedroom wall.
7Police seized 12 cannabis plants from the front bedroom of the house, 24 cannabis plants from the front room of the rear shed, 105 small Cannabis plants from the centre room of the rear shed and 36 cannabis plants from the back room in the rear shed.
8The crop was dismantled, photographed and transported to be weighed. In total police seized 177 Cannabis L plants, which had a combined weight of 60.262 kilograms.[2] Photographs were tendered of the cannabis crop.[3]
[2]Charge 1- Cultivate a Narcotic Plant in not less than a Commercial Quantity.
[3]Exhibit P2.
9You were conveyed to the Sunshine Police Station and participated in a Record of Interview with the assistance of a vietnamese interpreter. You answered all questions put to you and made full and frank admissions to cultivating the cannabis plants. You stated:
(a) That you had been residing in Australia for seven years on a Bridging E Visa;
(b) That you were told that you needed to look after plants to make money and that you did not live at the address where you were found, although you were told to stay there sometimes;
(c) That you knew that there were plants in one room in the house and in the garage. You also showed police where the key was to the shed.
(d) That you had been looking after the plants for 3 to 4 weeks;
(e) That you did not know the name of the people you were working for. You had a friend by the name of, ‘Long', who introduced you to these people. ‘Long' now lives interstate and you did not have a number for him either;
(f) That you did not set up the crop, the items found belonged to the, ‘Boss', and you did not know anything about it. You were not responsible for any repairs;
(g) Your job was to water the plants when it was nearly dark. You would put water into a container, and it would be pumped to the plants. You did not set up any of the electrical equipment; and
(h) You had received one payment for doing this job which you received in cash at the house.
Personal circumstances
10You are now 42 years old. You were 41 at the time of the offence. You are the eldest of 10 siblings. You were born and raised in the Ha Tinh province of Vietnam. Your father passed away in 2005 and your mother remains in Vietnam with your other siblings.
11You have been married since 2010. There are three children of that marriage aged ten, eight and five. After a very limited amount of primary school level education you left school and worked in the family fishing business until 1994. You then went to work on the family farm. It was the forcible seizure of this farm by Vietnamese government authorities in 2007, which you and other members of your family had resisted, that set in train the events that led to you arriving in Australia by boat in 2013 to seek protection as a refugee.
12You and your family reside in Deer Park. Your children attend a school in that area. You have worked in construction since your arrival in Australia, and you describe your occupation as a handyman.
13You and your family’s application for safe haven protection visas has been unsuccessful. You have now sought judicial review of the refusal to grant that visa.
14The circumstances in which you have come to be involved in the present offending are also somewhat linked to your application for a protection visa. I am instructed that after you were refused a visa in August 2020, this had the effect of removing your entitlement to a benefit that amounted to 85 per cent of the Newstart allowance. I am instructed that you were previously able to receive this benefit in addition to a limited amount of income you could earn as a handyman. The refusal of your visa application, and subsequent ending of the welfare entitlement, placed you under considerable financial difficulty in supporting your family.
15Whilst this is a ready explanation for your choice to involve yourself, a person with no prior convictions, in criminal activity, the unfortunate reality of this kind of offending is that it is often those with particular vulnerabilities who are engaged to undertake the crop sitting task. Those organising commercial crops can exploit vulnerable people, at relatively little cost to them, that means the organisers of this enterprise remain shielded from the great risks of detection taken by people like you. Whilst it is not difficult to have empathy for your circumstances, the prevalence of these type of arrangements emphasise the need to express general deterrence in sentencing for matters of this type.
16Whilst it is unwise to speculate on the outcome of your judicial review, your current situation is that regardless of the outcome of this matter, you are in Australia on a bridging visa and face deportation unless your review is successful. Your situation differs somewhat from those for whom deportation may flow from the outcome of a sentence. This means in your case it is inappropriate to regard deportation as an extra curial punishment.
17That does not mean that your immigration status and the spectre of deportation does not have relevance in determining sentence. Your counsel has told me, and I accept, that you are now in a situation whereby your wife and children may be deported whilst you are serving sentence in Australia. I can accept that you are very reasonably distressed at the thought of this eventuality.
18In the circumstances of this case, whilst I do not take into account deportation as an additional adverse outcome that necessarily flows from this sentence, I do regard the legitimate concern you have that your family will be returned to Vietnam without you, as an additional burden of imprisonment. I note the letter of support from your wife,[4] which also outlines these concerns.
[4] Exhibit D2
19Whilst I am not in a position to comment one way or the other about the merits of your visa application, I do accept what has been put from the Bar table about the hardships that led you to choose to flee Vietnam in 2013. Apart from the threat to your family’s livelihood caused by the government seizure of your family farm, you also regarded that action as targeting you and your family because of your status as a religious minority in Vietnam. Your concerns about this have been further validated by what has been relayed to you about further Vietnamese government harassment of your extended family.
Nature and gravity of offence
20You have pleaded guilty to cultivating cannabis in not less than a commercial quantity. The inherent gravity of that offence is evident from its maximum penalty of 25 years.
21In this case, your participation in the cultivation extended over a three-week period. The cultivation involved 177 plants with a total weight of 60.26 kg. This means that the cultivation in question was 1.7 times the commercial quantity in number and 2.41 times the commercial quantity in weight.
22The cannabis was cultivated through a sophisticated hydroponic setup in multiple rooms.
23Your participation is not suggested to be anything other than that as a 'crop sitter'. This is a case where the contentions made by you to police in your interview about your involvement are accepted by the Crown to be truthful. You were not involved in the construction of any of the infrastructure of cultivation nor the bypassing of electricity. Whilst your motivation was unmistakably financial gain, you were to be compensated as a moderately paid employee rather than as a partner sharing in the profits of any future sale of the plants.
Submissions on sentence
24You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour, and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses have not been needed to give evidence upon your trial or committal.
25I also take into account in your favour that you indicated very early in the proceedings your intention to plead guilty to these charges. Full and frank admissions were made during the Record of Interview. Those admissions were literally the only evidence that your involvement with this cultivation predated the day of the police raid and are reflected in the between dates nature of the charge before the court. I note that you were caught at the scene and faced a strong prosecution case, however this does not diminish the utilitarian value of your pleas of guilty.
26I accept your plea of guilty also indicates remorse for your offending.
27There were no prior matters alleged against you, nor anything subsequent or pending.
28Your counsel, Mr Farrington, appeared on your behalf and prepared a written Outline of Submissions for your plea hearing, which he addressed during the course of it.[5] Mr Farrington sensibly conceded that this offending warranted a term of imprisonment. Mr Harrison on behalf of the prosecution also submitted that a sentence of immediate imprisonment was required.[6]
[5]Exhibit D1.
[6]Exhibit P3.
Prospects of rehabilitation and remorse
29You have no prior convictions and are otherwise of good character. You have a young family. I am satisfied that particular circumstances existed, which are unlikely to be repeated, that led to your involvement in this offending. There was no suggestion that your offending was driven by any inherent issue in relation to drugs, gambling, or any psychological disorder.
30Overall, I consider that you have very good prospects of rehabilitation.
Impact of COVID-19 pandemic
31You were remanded in custody on 13 October 2020. Whilst restrictions to prison visits and activities due to the pandemic have eased somewhat in recent weeks, and it is to be hoped they ease further, though that hope may have somewhat abated in recent times, I still have regard for the fact that you have already served a reasonable portion of your ultimate sentence under pandemic restrictions in custody and that this is an additional burden of your imprisonment.
Sentence
32I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just sentence. I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. In that regard, I am conscious of the high probability that you will be deported upon completion of your sentence.
33On Charge 1, cultivating a narcotic plant, being cannabis, in not less than a commercial quantity, you are convicted and sentenced to 2 years and 9 months imprisonment.
34I direct you serve a period of 1 year and 9 months before you are eligible for parole.
35The prosecution has made an application for a disposal order relevant to property located at the house related to the drug cultivation. Counsel, on your behalf, did not oppose the making of this order in the terms sought.
36Pursuant to s 18(4) of the Sentencing Act 1991, I declare that you have spent 226 days in custody by way of pre-sentence detention, up to and including yesterday, 26 May 2021, and I declare that to be entered into the records of the Court.
37Pursuant to s 6AAA of the Sentencing Act 1991, if you had pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to a term of imprisonment of 3 years and 6 months with a non-parole period of 2 years and 6 months.
38Is anything further required, Mr Harrison?
39MR HARRISON: No, Your Honour. I will just ensure that the disposal order was filed over overnight.
40HIS HONOUR: Very well.
41MR HARRISON: So there is an amended disposal order, Your Honour.
42HIS HONOUR: Very well. Well, I presume that disposal order is not opposed.
43MR HAMKA: No.
44HIS HONOUR: Thank you. All right, thank you both very much. I will now adjourn the Court till 2.15pm this afternoon.
45MR HARRISON: As the Court pleases.
46MR HAMKA: As the Court pleases.
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