Director of Public Prosecutions v Pham

[2021] VCC 109

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01164

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHAM LE VAN

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2021
DATE OF SENTENCE:	19 February 2021
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2021] VCC 109

REASONS FOR SENTENCE
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Subject:  CRIMINAL

Catchwords:            Plea of guilty – one charge cultivation of a narcotic plant – one charge cultivation of a narcotic plant in a commercial quantity – one charge theft – Doran discount – likelihood of deportation - circumstances of COVID-19 pandemic.

Legislation Cited: Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981

Cases Cited:Adamson v The Queen (2015) 47 VR 268; Ngoc Nguyen v The Queen [2017] VSCA 286; Nguyen v The Queen (2016) 311 FLR 289; R v Doran [2005] VSCA 271; Ryan v R(2001) 206 CLR; R v Shrestha 1991 HCA 26 ;173 CLR 48; Wan v R [2019] VSCA 81; Younan v The Queen [2017] VSCA 12; Zhao v R [2018] VSCA 267

Sentence:   Total effective sentence of two years and nine months' imprisonment with a non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M. Sargent	Office of Public Prosecution
For the Accused	Mr W. Barker (Plea) Ms K. Ballard (Sentence)	Giorgianni & Liang Lawyers

HER HONOUR:

Introduction

Pleas of guilty and maximum penalties

1       Le Van Pham you have entered a plea of guilty to the charge of cultivating a narcotic plant (simpliciter) between 2 June 2017 and 1 June 2020, an offence which carries a maximum term of imprisonment of 15 years, and cultivating a commercial quantity of a narcotic plant on 2 June 2020, an offence which carries a maximum term of imprisonment of 25 years.  You have also pleaded guilty to one charge of theft of electricity between 2 June 2017 and 2 June 2020,  an offence that carries a maximum penalty of 10 years.

Circumstances of the offending

2       The circumstances of your offending are set out in the summary of prosecution opening on plea, dated 4 December 2020.  That document became Exhibit A on the plea and is attached to and forms part of these reasons.  I will not repeat it here but refer to some parts of it in summary.

3       On 2 June 2020 the police executed a search warrant at a house in Koo Wee Rup.  The police arrested you; initially you tried to flee.

4       When the police went into the house they found a  hydroponic setup in several rooms.

5       There were things in the kitchen and bathroom that suggested the house had been regularly lived in for some time.

6       There were four rooms that were set up to grow cannabis using lights, power transformers and insulation; police seized the plants from each.  Later, the plants were analysed and the following quantities established:

·     Room 1: 61 cannabis plants totalling 190.6 g and three leafy stems weighing 8.6 g;

·     Room 2: 48 cannabis plants totalling 2.5 kg;

·     Room 3: 27 cannabis plants totalling 40.85 kg;

·     Room 4: 26 plants totalling 39.6 kg.

7       The total quantity of the cannabis was 162 plants, and three ‘leafy stems’ weighing in total 82.8 kilograms. This gives rise to Charge 2 on the indictment, cultivation in a commercial quantity.  I note that a large commercial quantity is 250 kg or more.

8       Later, in an interview with police, you would make admissions to cultivating cannabis at that house for three years.  These admissions give rise to Charge 1: cultivate simpliciter, between 2 June 2017 and 1 June 2020.

9       While police were at the house they also observed an illegal electrical bypass set up in the master bedroom.  In your record of interview you admitted to installing it by drilling a hole into the wall and putting a cable inside.  You explained to the police that the normal power points would not be able to tolerate the high electricity usage. This gives rise to Charge 3: theft of electricity.  There is no estimate of the amount or value of this electricity.

Arrest and interview

10      As I have already said, you were interviewed with the assistance of an interpreter on the day the police came to the house.

11      You told the police many things about your enterprise; you told them how long you had been growing cannabis in the house (three years) as well as how you had constructed the growing system.

12      You told police that you had set up everything at the house yourself.  You told them that you grew the plants in batches of about 40 at a time.  You told them that you paid the rent on the house which was about $1800 per month, and you gave them the details of how you set up the electrical bypass.  You told them that it cost you about $20,000 to set up the house, and that you had had this money when you came to Australia.

13      You told police that when the crop was mature you would cut it up, dry it out and take it to a place somewhere near Sunshine where you would sell it for over $10,000.

14      You set out in detail your methodology for growing the cannabis, including how you moved the plants from room to room, what the watering schedule was, how you fed the plants and timed the lights.  I have not set out everything that you told the police but you went into a lot of detail.

Prior criminal history

15      You have no prior criminal history, nor are there any subsequent matters.  You are a person of otherwise good character.

Procedural history

16      After your arrest on 2 June 2020, a committal mention was listed on 25 August 2020.  That hearing was adjourned and your matter resolved on 16 September 2020.  A plea in the County Court on 22 October 2020 was vacated and ultimately proceeded on 4 February 2021.

Nature and gravity of the offending; culpability and degree of responsibility

17      Charge 1 relates to the three years of cultivation that you admitted to during your interview.  Charge 2 relates to the cultivation of the plants at the house on the day the warrant was executed, being 162 plants (three leafy stems)  weighing 82.8 kilograms.  A commercial quantity is 25 kg or 100 plants.  For Charge 2, you are charged in relation to cultivation on a single day.  Charge 3, the theft of electricity, pertains to the three-year period the subject of your admissions to Charge 1.  Although you told police you put the $20,000 that you had brought to Australia into the enterprise, it was submitted on your plea that you had not in fact brought $20,000 with you to Australia.  Whatever the truth of this, it is clear that you have admitted to constructing the setup in the house.

18      The setup of the house was over four rooms and has been described as sophisticated.  It was submitted by the prosecutor that you were the architect of this set up, as opposed to someone minding the crop, and this is borne out by the content of your admissions.  The prosecutor submitted that the offending should be seen as a mid to high range example of cultivation of cannabis.

19      It was common ground that this cultivation was done for simple financial gain. The submissions of your counsel put that intention into some context.  That is, your conduct was your desperate attempt to rise out of a lifetime of relentless poverty and provide for a better life for your family.  It appears that you were not living in luxury.  It was submitted that you were able to send home about $3000 AUD each month, keeping $1000 per month to subsist in Australia.

20      It was conceded by your counsel that Charge 1 falls in the upper range of offences in its category by reference to the duration.  It was also put that although your involvement was lengthy you did not bring anybody else into the enterprise nor try and expand into other houses.  Your role was described as that of a ‘contractor’ which, without wishing to place too much emphasis on such labels, is one accurate way of describing your role.  Of course, the fact that there was over three times the commercial quantity of cannabis is relevant to my assessment of the gravity of the offending.

21      The seriousness of the offence of cultivation of a commercial quantity of cannabis is reflected by the maximum sentence of 25 years' imprisonment imposed by the legislation. 

22      Charge 1 is clearly a more serious example of a charge in its category by reference to the duration of your involvement and your estimate of the number of crops you tended in that time.  Although Charge 2 is the more serious charge, and takes in a quantum that is approximately three times the commercial quantity threshold, it is a single date offence.  I find the offending on Charge 2 sits more towards the mid-range of such offending.

Personal circumstances

23      You were born in Haiphong, a city in North Vietnam about 100 kilometres from the capital Hanoi, on 10 July 1973.  You are now 47 years old.  You are one of seven children, the third eldest.  Your parents worked seven days a week as farm labourers; your father also worked as a fisherman.  Despite working extremely hard your family was very poor.  You and your siblings quite regularly had too little to eat.

24      You went to school until approximately 14 years of age when you left to join your parents to work full-time to help support the family; school was not free in Vietnam at this time.  In 1988 when you were about 15 years old your family made the decision to flee Vietnam and left for Hong Kong.

25      Unluckily, the timing of your family’s arrival in Hong Kong meant that you were excluded from any refugee resettlement program. You spent the years between age 15 and 20 (1988 to 1993) in a refugee camp in Hong Kong.  The conditions there have been likened to prison. There was no access to education.

26      By 1993 the situation in Hong Kong caused your family to return to Vietnam to start again.  You got work in a retail and factory company, first as a bicycle courier and then in customer service.  You worked for approximately six years.

27      In 1998 you married Thu, and with her you had a daughter (now aged 22) and a son (now aged 16).  Like the family you grew up in, the family you made with Thu was extremely poor.  In this context, in the year 2000 you travelled alone to Hong Kong with the hope of earning better money to send to your family.  You worked in construction for two years in Hong Kong but then returned to your family in Vietnam.  Back in Vietnam you got work in the security industry until around 2011.  Your father died of a stroke that year.  You were a stay-at-home father from 2011 to 2016 when you decided to travel to Australia again in an attempt to earn money to raise your family out of poverty.

28      On 23 July 2016 a three-month tourist visa was issued for you to visit Australia.  At the time of your offending you did not hold any current visa to be in Australia.

29      You were able to get some casual work as a labourer here, however you also encountered exploitation by employers who were able to take advantage of the fact that you were not lawfully working in Australia.

30      In 2017 you met someone who told you that you could make a better income by growing cannabis for them at your house.

31      During your time in Australia you met Hoa Pham.  Ms Pham had three children from a previous relationship.  In November 2019 your child, William, was born.  He is now 14 months old.  Ms Pham now raises her four children alone.

32      When you were arrested your wife in Vietnam separated from you.

Matters in mitigation

Plea of guilty

33      First, you have pleaded guilty at the earliest possible stage in your case and on that basis you will have your sentence reduced, in recognition of the fact that your plea saves the community the very significant costs of a trial. Further, your plea indicates your acceptance of responsibility and your willingness to facilitate the course of justice.  Moreover, you have pleaded guilty at a time when the Victorian court system faces significant backlogs in the listing of trials on account of the health measures taken during the COVID-19 pandemic, so your plea of guilty is particularly valuable at this time and this is going to be reflected in your sentence.

34      However, your case also attracts, in relation to Charges 1 and 3, a particularly robust discount on the principles articulated in Doran.[1]  In that case the court quote Kirby J in the case of Ryan 206 CLR at 295. His Honour said this:

"Unless persons such as the appellant are encouraged to bring unreported cases to notice, the likelihood is that, in the great majority of instances, such crimes will not be reported.  They will therefore go unpunished.  Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions.  It should certainly not discourage them.  Encouraging a full confession may also be an important first step in securing help for, and counselling of, the offender this is likewise one of the objects of criminal punishment and that of judicial sentencing."[2]  

[1] R v Doran [2005] VSCA 271;  Adamson v The Queen (2015) 47 VR 268; Younan v The Queen [2017] VSCA 12 at [40].

[2]Ryan v R(2001) 206 CLR at [295] per Kirby J ; Doran at [15].

35      Later, in the case of Adamson (2015) 47 VR at 268 the court noted that a submission that such a discount might be in the order of 30 to 50 per cent went unchallenged. This was also cited in the case of Younan [2017] VSCA 12 at [40].

36      A discount in this range will be applied to the sentence on Charges 1 and 3 in order to reflect the policy considerations set out there.  It was conceded by the prosecution that the date ranges of these charges could not have been known, or proved, without your admissions.

Remorse

37      Further, your plea of guilty and your candid and detailed admissions contained within them are an aspect of remorse and I take that into account.

Concurrency and cumulation

38      I have considered the principle of totality in fixing your sentences, and note that the subject of Charge 2 must overlap to some degree with the content of Charge 1.  Further, the content of Charge 3, which again I note has no quantity or value attached to it, is intimately connected in time and place  to the offending on Charges 1 and 2.  I have made orders for concurrency with these observations in mind.

Psychological material

39      Exhibit 3 on the plea was a psychological report of Warren Simmons.  I have taken its contents into account in considering your background.  The report describes that a depressive illness has risen initially in response to your incarceration, which has now developed further.  This was not pressed as a Verdins submission, but as I will discuss further, there are a range of difficult circumstances that will flow to you personally as a result of your time in custody, which increases the burden of that custody on you.

Prospects of rehabilitation

Family support

40      I am obliged to have regard to your prospects of rehabilitation.  You retain the support of your partner Hoa Pham.  I have also read the references of Huong Nguyen, Le Phan, Bich Tran, and Yen Pham.  They each speak of you with respect and affection, of your kindnesses to them and your hardworking nature.  Mr Dinh Tran employed you casually from time to time in his fireworks business and spoke of, among other things,  your capacity for hard work.

Effect of deportation on sentence

Relevant sentencing principles

41      As already noted, you came here on a tourist visa that has long since expired. You have no application for a further visa on foot.   Although the authorities are clear that I must not speculate about the possibility of your future deportation, the prosecution in this case has conceded that the likelihood of your deportation at the conclusion of your sentence is a proper matter for my consideration in sentencing and this fact carries with it the additional burden of worry about that consequence during your incarceration.  It was also accepted by the prosecution that you have now lost the opportunity to reside permanently in Australia with your partner and young son William.  I take those matters into account.

42      Your incarceration and deportation in future separates you from your current partner and young son; Ms Pham has particular difficulties with raising not only William but her three other children, some of whom have special needs. These matters compound the difficulty of your imprisonment and increase its burden upon you. 

43      The issue of the interaction between decisions of the Adult Parole Board and decisions of the Department of Immigration to deport you arose at the hearing and I later received further submissions from your barrister dated 4 February 2021, and from the prosecution on 15 February 2021.  Ultimately, your counsel did not press a submission that I ought to consider what kind of effect your immigration status would have upon the decision to grant or refuse parole.  I must simply assume that you will serve the entirety of your head sentence and not speculate about such consequences.[3]

[3]Zhao v R [2018] VSCA 267 [67]-[71]; Wan v R [2019] VSCA 81 [32] – [35].

General deterrence, specific deterrence, just punishment, denunciation, community protection

44      I am obliged to give significant weight to general deterrence in your case.  That means I need to sentence in a way that stops others from offending in similar ways.  You have no prior convictions and I consider specific deterrence to be of little significance in your case, particularly in the context of your plea of guilty, your detailed admissions and your remorse.  This sentence must be punitive and offer some protection to the community, best achieved in this case by your rehabilitation.  Through me, the community denounces this type of offending.

45      Although you are likely to be deported at the end of your sentence I am still obliged to take into account your prospects of rehabilitation, and in the context of your lack of prior criminal history I conclude these to be good.  The Australian community still has an interest in your rehabilitation notwithstanding that you are unlikely to return here.[4]

[4]R v Shrestha 1991 HCA 26 ; 173 CLR 48.

Regard to current sentencing practices

46      I am obliged to have regard to other sentences for similar offending and I have done so.  I have had regard to the cases of Nguyen v The Queen[5] and the table of cases attached to the decision in Ngoc Nguyen v The Queen[6] .  There is no case that has your combination of offending and matters personal to make any  specific comparison, but I sentence you in this general landscape.

[5](2016) 311 FLR 289.

[6][2017] VSCA 286.

Other submissions on sentence

COVID-19 pandemic

47      I take into account the current circumstances surrounding the COVID-19 pandemic.  You went into custody in June 2020 just as the state was entering a period of ‘hard’ lockdown.  From information provided by Corrections Victoria, it is clear that personal visits to prison were suspended for a substantial period in this time, there has been a reduction of services and programs, and some prisoners are experiencing increased lockdown periods.  You have had no personal visits though, on the up side, you have been able to have video calls with your mother in Vietnam.  Things have been improving, however, as I write this Victoria is entering a further short lockdown and one can expect things will be uncertain and intermittently restrictive like this for a time.

Category 2 offence

48 Charge 2 on the indictment is a Category 2 offence pursuant to s.3(1) of the Sentencing Act 1991. The consequence of this is that I must make an order for your imprisonment, and this disposition was uncontroversial in this case in any event. I am now going to read about the sentence and I will slow down so that I can explain the sentence clearly, Madam Interpreter.

Disposition

49      Mr Pham, on the charge of cultivating a narcotic plant you are convicted and sentenced to 12 months' imprisonment.  On the charge of cultivating a commercial quantity of a narcotic plant you are convicted and sentenced to two years and three months' imprisonment.  On the charge of theft of electricity you are convicted and sentenced to eight months' imprisonment.

50      I direct that six months of the sentence on Charge 1 will be served cumulatively on Charge 2, making a total effective sentence of two years and nine months' imprisonment.

51      I direct that you must serve 18 months' imprisonment before becoming eligible for parole.

Pre-sentence detention

52 Pursuant to s.18 Sentencing Act 1991, I declare that you have now served 262 days of pre-sentence detention.

s6AAA reduction

53 Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of three years and six months' imprisonment with a non-parole period of two years and two months' imprisonment.

Ancillary orders

54      I make the order for disposal of the electrical bypass and the cannabis samples as sought.

55      Thank you, counsel.  Is there anything arising from those reasons?

56      MS BALLARD:  No, Your Honour.

57      MS SARGENT:  Was Your Honour's sentence in relation to Charge 3 wholly concurrent on Charge 2?

58      HER HONOUR:  Yes, that is correct.  So no cumulation on Charge 3.  In that case then, what I will do is adjourn until 11 and I thank the parties for their assistance.

59      COUNSEL:  As Your Honour pleases.

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