Director of Public Prosecutions v Pham

[2020] VCC 1647

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00150

DIRECTOR OF PUBLIC PROSECUTIONS

v

THI PHAM

---

JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 October 2020
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2020] VCC 1647

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Teague
For the Accused	Ms A. Liang

HIS HONOUR: 

1Thi Sum Pham, you are to be sentenced for one charge of cultivating the narcotic plant, cannabis, and one charge of theft.  Respective maximum sentences are 15 and 10 years' imprisonment. 

2You pleaded guilty before me on 8 October.  When interviewed by police after arrest on 16 July 2019, you made some admissions.  You denied knowing what was being grown at the premises at which you had been arrested. 
You stated that you had been at that premises for 10 days, whereas photographs within the mobile phone you possessed indicated you to be there a little over one month prior.   There was a contested committal on 3 February 2020 at which only the informant was called.  You pleaded not guilty.  You had been charged and were committed for trial on the more serious offence of cultivating a commercial quantity of cannabis.  However in August of this year, the Crown accepted your offer to plead to this lesser offence of simple cultivation. 
You had made that offer in October 2019, prior to committal and again in April 2020.

3You receive the benefit of your plea of guilty and that level of cooperation in the proceedings.  The timing of your plea should be seen in the light of your early offer to plead to this lesser offence.  Your plea has facilitated the interests of justice, accepted responsibility and expresses remorse.

4At your plea hearing, also on 8 October, Ms Saville for the Crown tendered a written prosecution opening.  She also provided the Court of Appeal sentencing judgment of Van Pham v The Queen [2020] VSCA 114.

5Ms Liang, for you, has tendered the forensic psychological report of
Dr Aaron Cunningham, dated 23 September 2020.  She provided written plea submissions, a chronology of the proceeding and a table of comparative sentence summaries.

6The circumstances of offending are set out in the tendered Crown opening which is Exhibit A.  My own summary may therefore be short.

7On 16 July 2019, police raided a two storey house at 2 Virginia Court, Bulleen.  They arrested you there.  There was revealed a typical hydroponic cannabis crop contained within one downstairs bedroom and three upstairs bedrooms.   Lighting sources, transformers, power boards, pumps and other usual features were present.  There was an electrical bypass.  This is the theft offence.  Electricity valued at approximately $6,700 was diverted and stolen.  In total, there were 75 plants, just less than half being mature with a combined weight of about 108 kilograms.  Leaves and flowering heads made up approximately 67 kilograms.  This is said to equate to an air dried weight of about 17 kilograms.

8The commercial quantity thresholds are 25 kilograms in weight or 100 plants in number.  The Crown accepts that your requisite state of mind or knowledge about quantity,  or at least proof of that,  fell short of commercial quantity.

9You are a 58 year old woman who has no prior convictions and who awaits this sentence in remand custody.  You have now served 455 days since your arrest.   You were born and raised in a rural area of Vietnam, the eighth of 10 children.  Only four of your siblings are alive.  Your family was poor and you left school at Year 4 to help support it.  You have been married and have three children, now in their 30s.  Your husband was violently abusive and you left him with your children.   Since, you have struggled financially.  Your situation includes owing for a loan of approximately A$18,000 taken out years ago and guaranteed by your brother-in-law's property.  You remain responsible for repayment.  It is in default because of your imprisonment in Australia.

10You came to Australia by visa on three occasions, all to work and assist payment of the loan.  You have worked on farms here.  On this third occasion, you came on a tourist visa, which has since expired.  It is likely, in practical terms certain, that upon release from this sentence, you will be moved into immigration custody and deported.  This does not carry the consideration of hardship which would exist had you settled and set roots in Australia.

11You explain that you were approached to act as a crop sitter at the cannabis premises.  I was told that you expected $100 per day as payment. 
You accepted in the context of your financial predicament and state that you played no actual cultivating role.  The Crown does not or is not able to challenge that.  I accept that you were vulnerable to recruitment.

12Forensic psychologist, Dr Cunningham, diagnoses you with major depressive disorder and anxiety disorder.  Both stem from your life's difficulties over time.  In prison, you are isolated by language and by separation from your family. 
I accept that imprisonment is harder for you than for others.

13Cannabis cultivation, often by domestic hydroponic crop, and its subsequent distribution into the community is seen as a prevalent and serious social problem.  It carries high profit.  The maximum sentence is 15 years' imprisonment.  Your motive was financial benefit, albeit likely modest compared to others involved.  The circumstances of your offending make relevant sentencing considerations and purposes of your moral culpability, deterrence, condemnation and proportionate punishment.  A sentence of imprisonment is necessary. 

14I also take into account moderating matters, mainly personal to you, which should affect the length of that sentence.  They include the following.  

15(1)    Your plea of guilty and cooperation.  

16(2)   Your otherwise good character, at 58 years.  No prior offending is alleged against you.   

17(3)   Your personal history and circumstances.  This includes your psychological conditions (which on the evidence, largely predate your offending)  and your situation in prison.  

18(4)   To some extent, the circumstances of and leading to the offending.  I bear in mind that your vulnerability to recruitment is not unusual in the circumstances of your role and that, despite it, general deterrence remains the predominant sentencing purpose.  However you should also be sentenced with some appropriate reference to your personal situation.  This includes additional hardships in prison.  I was directed to circumstances relevant to this.  You are isolated, have lost a brother whilst in custody and COVID-19 restrictions have generally and particularly affected you;  for example, a loss of the support of a Buddhist monk available before the impacts of the virus.

19These matters should go to reduce to some extent the length of your sentence.

20I propose sentencing you to a head sentence with what I see to be the proper minimum term before eligibility for parole.  This was raised and discussed with counsel.  I understand  established sentencing principle to require what is seen to be the appropriate sentence, including minimum term; that is independent of any expectation of parole board or other action such as deportation.

21I have had reference to the comparative sentences provided but also bear in mind the need to sentence individually to your case.  For example, in the case of Van Pham the quantity was significantly less than here.  However the cultivator's role was markedly different. He was effectively the principal and, if not sole, the main beneficiary.

22After considering and weighing what I see to be the relevant matters,
I sentence you as follows.  On Charge 1, cultivation of cannabis, you are sentenced to 18 months' imprisonment.  On Charge 2, theft, you are sentenced to six months' imprisonment.  That is a total effective sentence of 18 months.  I set a minimum term before eligibility for parole of 12 months.

23Under s.18 of the Sentencing Act, I declare 455 days of pre-sentence detention.  Under s.6AAA, I indicate that, had you not pleaded guilty, I would have imposed a sentence of two years and six months with a minimum term of 20 months.

24Are there other matters that I need to deal with, Ms Teague?

25MS TEAGUE:  Yes, Your Honour.  I believe there is a forfeiture and a disposal order.

26HIS HONOUR:  What is the forfeiture order about?

27MS TEAGUE:  It is in relation to some cash and some mobile phones.

28HIS HONOUR:  All right.  Well the cash is news to me.  I will just have those printed out and see what they say.  The disposal order relates to the cannabis plants and associated equipment, so I will sign that now.

29MS TEAGUE:  Yes, Your Honour.

30HIS HONOUR:  $25 cash, I see.

31MS TEAGUE:  That's correct.

32HIS HONOUR:  All right.  That is why it is news to me.  All right.  Is there anything else bar those two things?

33MS LIANG:  No, Your Honour.

34MS TEAGUE:  No, Your Honour.

35HIS HONOUR:  Good, thank you for your assistance in this matter.  I now stand this matter down.  That means I will turn off the links.

36MS TEAGUE:  As Your Honour pleases.

‑ ‑ ‑