Director of Public Prosecutions v Pham
[2020] VCC 904
•22 June 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 20-00357
Indictment No: K11870107
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| QUOC DONG PHAM |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 June 2020 |
| DATE OF SENTENCE: | 22 June 2020 |
| CASE MAY BE CITED AS: | DPP v Pham |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 904 |
REASONS FOR SENTENCE
---Subject: Cultivation of cannabis. Non-commercial quantity
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Malobabic (For Plea) Ms S. Schwartz (For Sentence) | OPP |
| For the Accused | Mr P. Dunn and Mr J. Kantor | Ellinghaus & Lindner |
HIS HONOUR:
1 Quoc Dong Pham, you have pleaded guilty to one charge of cultivation of cannabis. The maximum penalty is 15 years’ imprisonment.
2 You were born on 24 June 1992 and will be 28 years old in a couple of days. You have a relevant prior conviction for cultivation of a commercial quantity of cannabis for which you were detained in a youth justice centre back in 2012. You were only 19 when you committed that offence.
3 Ms Malobabic appeared on behalf of the Director of Public Prosecutions and opened the case to me last Friday in accordance with a written amended summary of opening dated 2 June 2020. It references materials within the depositions including for instance the statement of Mr Patterson, the person who sold you the shipping containers. That opening was marked as Exhibit A on the plea and your counsel Mr Dunn told me that it was an agreed opening.
4 In these circumstances, it is unnecessary for me to descend to the full detail of the sentencing facts. I will sentence in accordance with that agreed summary.
5 Very briefly stated, you were a person who had a role to play in a large cannabis cultivation syndicate. That syndicate was renting factories and setting up those factories in such a way as to have the facade of conducting a legitimate business. The premises were however being rented to establish dedicated cannabis growing facilities. Ultimately seven properties were searched under warrant and 10 people including you were charged. All were Vietnamese nationals and Mr Dunn suggested they were mostly unlawfully in this country. You certainly were.
6 Your crime relates to three factories and no-one else has been charged in relation to those premises at all.
7 You purchased three shipping containers on 3 June 2019. To do that, you attended at premises in Sommerville Road, Brooklyn, inspected them and then paid the $7,500 cash asking price. You had the cash. You gave instructions for the containers to be delivered to three different addresses and they were. One on that same day. The other two on the 5th June. So you had cash and you had the three addresses.
8 We move forward then to the arrest phase on 17th July. On that day, warrants were executed upon those three addresses. I will come back in one moment to what was found. A warrant was also executed upon an address where you and Ms Tran were living. You were both arrested. Banking documents evidencing deposits of over a million dollars were found at that house. So too over $136,000 in cash, documents relating to pumps, tubing, ducts and measuring cups, a money checklist and boxes matching the boxes located at the various factories. There was also other equipment commonly associated with cannabis hydroponic set ups. Ms Tran was also the registered owner of two cars a 2017 Mercedes coupe and a 2018 Land Rover. That Land Rover was the car you were driving when you went to purchase the shipping containers.
9 You were interviewed by police and made a no comment interview as was your right.
10 Back then to the factories. The summary sets out what was found within these three factories. In each factory there were very sizeable quantities of cannabis. A total between the three premises of close to 1,500 plants weighing around 850 kilograms. By plant number and by weight, a quantity of cannabis far exceeding a large commercial quantity. You were part of this enterprise, buying the containers which were found at each factory.
11 The prosecution cannot prove that you knew what quantities were being cultivated hence you are not charged with large commercial or even commercial quantity cultivation. You are charged with a non-commercial quantity (simpliciter) offence. It is still an offence punishable by a 15 year maximum term of imprisonment.
12 This was very obviously a sizeable illegal operation with many people involved in differing ways. You were one of the many. You were part of this, though exactly how you became involved is not that clear. You made a no comment interview. You gave an account to Ms Lechner and instructions to your counsel. Neither account was in any way tested. I do not accept your account.
13 You have a highly relevant prior conviction. You have been in custody since your arrest.
In mitigation
14 Mr Dunn appeared with Mr Kantor and they conducted a thorough plea on your behalf last Friday. A lengthy outline had been filed and was marked as
Exhibit 1 and I will not traverse every aspect of that document in these, my reasons. I have had regard to those written submissions as well as to the oral submissions made to me, not to mention the other written materials filed on the plea.
15 Mr Dunn took me to your personal details and background. He placed before the court a report from Ms Lechner, a letter from your sister, as well as some materials dealing with your mother’s illness. In addition, there were four course certificates as well as some material from the Australian Border Force. Finally, the sentencing remarks of Judge Murphy from 2012.
16 Mr Dunn and Mr Kantor relied upon a number of matters in mitigation including the following:
· Your early guilty plea;
· The presence of some remorse;
· An increased burden owing to the COVID-19 virus and the impact of your likely deportation;
17 Your counsel made submissions as to your role and the level of seriousness of the offence. They conceded the inevitability of a term of imprisonment but argued that time served would be sufficient here.
Prosecution
18 Ms Malobabic who appeared on behalf of the Director of Public Prosecutions argued that general deterrence, denunciation and just punishment were of considerable significance in this sort of case. She made submissions about the importance of specific deterrence here. She argued that this offending was part of an organised, well-resourced and sophisticated operation and you intended to assist the cultivation by purchasing the containers to provide a facade. That was your role. The Crown accepted that you were not a principal offender and in oral submissions suggested that you were offending at a relatively low level. They submitted there was no evidence of any debt owed by you to a Mr Nguyen. They submitted that a sentence equal to your pre-sentence detention would fall within the available range of sentences.
19 The submissions as to sentence made by defence counsel and the prosecutor are in no way binding upon me. I must impose an appropriate sentence. It is not the first time and nor will it be the last time that I disagree with a prosecution or defence submission as to the available range of sentences or appropriate sentence.
20 Though some others had been dealt with for their individual acts of cultivation, they had all been dealt with in the lower court and none in relation to these factories, so no one saw any mileage in traversing any of the details of their offending or their individual personal circumstances. There was obviously no true issue of parity or even equal justice to be borne in mind as your case had some unique factors including the cultivation relating to three premises and a highly relevant prior conviction.
Background
21 I turn now briefly to your background. It is set out in some detail in Ms Lechner’s report as well as in your counsel’s written outline and in Judge Murphy’s sentencing remarks.
22 I have no reason to doubt what I was told of your family background and see no need to restate it all. All I will do is provide a brief sketch of your background. You were born on 24 June 1992 in Vietnam. It follows that you were 26 at the time of the offence and 27 now, almost 28. You were the second youngest of four children who grew up in central Vietnam in a rural area. Your father was an accountant and your parents ran a retail business. They have been successful and are obviously, at least relatively speaking, quite well off. You report to Ms Lechner having had a good family life. Your siblings all live lawfully in this country and there is a reference from your older sister. Your parents remain in Vietnam. You were schooled to the equivalent of year 10 in Vietnam. You had what was obviously a serious motorbike accident when you were 17 and were hospitalised for a sizeable period. The feeling within the family circle is that you changed after that accident. It may well be that you did but I am unable to conclude that there is any acquired brain injury (“ABI”). There is just no evidence of that fact and I must not speculate. Nor was your counsel suggesting that I could find the existence of an acquired brain injury or any reduction in your culpability. I accept though that it was a significant and destabilising event in your life.
23 You came to Australia as an 18 year old on a student visa in March 2011 and enrolled in a college in the central business district doing the equivalent of year 11. You came via New Zealand where you had done an English course from October the previous year. The sentencing reasons of Judge Murphy mention a good report from the English academy in New Zealand and a report from the Melbourne College disclosing satisfactory completion of one course. By October 2011, you were involved in the commercial quantity cultivation for which you were sentenced to a term of detention in this court in 2012. The sentencing remarks of Judge Murphy set out the detail of that offending. A crop house with 217 plants weighing 95 kilograms.
24 Your visa expired and you applied to obtain another visa to remain in Australia. Unsurprisingly your application was refused and you remained here unlawfully from that point on, doing a variety of unskilled jobs and living predominantly in rooming and boarding houses. It seems that you appealed that decision and lost the appeal and were ordered to leave these shores within 28 days. That was many years ago. You remained here without any right.
25 In April 2019 you formed a relationship with Ms Tran. You had been living in a shared house in Keysborough. I was told that you would from time to time stay at her house at 17 Island Point Avenue, Waterways which is where the warrant was executed. I note you gave that address to police as your residential address when interviewed.
26 Your mother had some serious health issues in August 2018 and travelled at around that time to Singapore for some surgery. She was discharged after about a week. In January 2019 she returned to Singapore and was discharged after 10 days in February 2019. This illness and your desire to provide for her is put forward as your reason for offending. Of borrowing money for her medical or other needs and committing this crime to payback the debt which you had incurred. I am not satisfied on that score at all on the materials placed before me. The materials disclose the sizeable costs incurred. They also disclose payment in 2018 of some of the very sizeable costs of that admission. Your parents must have been in a decent enough financial state to be in a position to elect to travel from Vietnam to Singapore on two occasions for medical treatment and to pay the bills. Over $100,000 was paid by credit card.
27 There is no evidence at all as to your parents having any financial issues at all or you providing for them in any way. There is no evidence of any transfer of money by you to your family. Ultimately you did not even travel back to Vietnam at any stage. To be fair to you, I suppose there were impediments to returning to Vietnam as you would have feared detention upon presenting at an airport. You were in a bit of a quandary in that regard. You had travelled under the radar for so many years. You may not even have had a valid passport given the passage of time since your arrival in this country.
28 I am dealing with offending in June 2019. On that occasion you went to the shipping container business in a 2018 Land Rover owned by your then girlfriend. You had the $7,500 cash required to make the purchases. You were arrested in a house and the search of that house disclosed the presence of over $130,000 cash and with evidence of banking deposits for over a million dollars. You and Ms Tran both face the proceeds of crime charge which is waiting in the wings in the Magistrates' Court. It is being contested by both of you in July of this year and you are in custody on that matter as well.
29 You had three siblings living in Australia and there is no suggestion of you making contact with them to establish what, if anything your mother needed. Whilst I have every reason to doubt your account as to the existence of a debt and the reason for that debt and your motivation for offending, I have no doubt at all that your mother was unwell. I have no doubt that your mother’s state of health was upsetting for you. Why wouldn't it be? I am just not satisfied that it is in any way implicated either directly or indirectly in the decision to commit this crime.
30 You had that highly relevant prior matter criminal dealt with in this court back in February 2012. There is a later driving matter committed in another State which is of far less significance to my task.
31 Mr Dunn argues that you will be deported. You accept that will take place. You will take your place by your parents. Your sister hopes that you will be reunited with your parents as soon as possible. In a way you will look forward to that day as well, though you will lament your very bad decisions which will see you leave these shores. Your parents were trying to advance your future educationally and in other ways and it has come to nought. In that sense you are the black sheep of the family as your siblings have taken their chances.
32 You are held up at Fulham prison and have had a job whilst in custody. I am told you have been drug free. On that score I was told that you had developed a drug habit using ice at the time of these events. You have done such courses as are available to you which is a positive.
33 It is certainly not a good time to be in custody at the moment with a different routine in place owing to the prison's response to the global pandemic and I will discuss that later in these reasons.
34 I turn then to consider the matters raised on your behalf.
Guilty plea
35 I turn firstly to your plea of guilty. You have pleaded guilty and at an early stage. You had the more serious charges above your head and the matter went for committal.
36 A multi headed committal was underway and was stood down for discussions and that is the setting of the resolution of the case. Summary jurisdiction was refused. That decision was entirely correct.
37 I must reward you for your guilty plea and the stage at which that plea was entered. I will treat it as a very early plea. You have facilitated the course of justice. You have taken responsibility for your offending and done so at an early stage. Witnesses have been spared the experience of coming to court. The community has been saved the time, cost and effort associated with a contested hearing, either a full committal in the lower court, or trial up in this court. I take those matters into account in mitigation.
Remorse
38 Your counsel argues that you have some regret for involvement in this offence. I am sure you do. No doubt you regret the position you find yourself in. No doubt you regret squandering the opportunities afforded to you by your parents and there is probably a sense of shame for that. Remorse is a different concept. Mr Dunn submitted that I should find some remorse here. A guilty plea is often but not always indicative of at least some remorse. Your guilty plea was entered at an early opportunity. Your counsel points also to the letter from your sister. It is a bit sad to read that letter. She and your siblings have made the most of their opportunities in this country. You were quite the opposite. It is by the way not her fault at all that you have chosen to commit this crime. She should not think she is at fault. She is not. There is only one person at fault and that is you. You know that.
39 I am prepared to find some remorse here and I take that into account in your favour.
Rehabilitation
40 I do not recall your counsel applying an adjective to describe your prospects of rehabilitation but he was implicitly arguing that you have some prospects of rehabilitation. I cannot assess those prospects very favourably. However I may describe them, it seems likely they will take shape back in your homeland.
41 What are those prospects?
42 Given that you have now committed two serious drug offences whilst a visitor to this country and a term of detention did not deter you, it is hard not to be a bit guarded here. I am confident that the sentence I will pass will have some role in deterring you in the future. The last one did not and that involved confinement. However you were a teenager when you offended previously with youth very much on your side. The sentencing judge took account of your youth as he was obliged to.
43 This crime is different. You were no silly teenager committing some spontaneous crime or making some youthful error of judgement. You were a mature man making a calculated decision.
44 You have done some decent things in custody and you are working and doing courses and trying to improve yourself. That is to your credit. Your sister urges you to get something out of it and she is entirely right. Otherwise it is just dead time. Keep doing what you can in custody to advance your position. Fluency in English may well be a very valuable and marketable skill for you in the job market in another land.
45 Your sister is seeing something of a change. That is at least something. You will return back to Vietnam with your tail between your legs and start a new life.
46 You have demonstrated your preparedness to commit serious offences both as a youngster and a mature adult and on this later occasion to have some engagement with what you must have known was an organised criminal group or syndicate. I am, however, prepared to find that you have reasonable prospects of rehabilitation.
Deportation
47 I turn then to the issue of deportation. Your counsel made it very plain that he was not relying on those cases dealing with the risk and impact of deportation. Cases such as Guden v The Queen [2010] VSCA 196, Allouch v The Queen [2018] VSCA 244 and Loftus v The Queen [2019] VSCA 24.
48 He was explicit and there was discussion on this topic as I needed to understand what he was urging upon the court and there seemed to be some difference between his oral concession and his written submissions.
49 You have already received notice from Border Force as to their interest in holding you beyond the lapse of your sentence. See Exhibit 4. I will treat it as a given that you will be sent back to Vietnam. You will go home and be reunited with your mother and father.
50 On the basis of the Border Force notice, you would be looking at movement from prison, not back out into the community but to an immigration detention facility with deportation following on from that process.
51 There might be a hiatus at that point and I take that into account.
52 The fact is you have not had for many years any legitimate expectation of permanently settling in this country. You came on student visa and breached that visa within months, committing the commercial cultivation offence for which you were sentenced back in 2012. Thereafter you applied to lawfully stay in this country, were told that you could not and just ignored that determination. You have lived here unlawfully ever since and have now committed a further serious offence.
53 Mr Dunn relies instead upon the lack of likelihood of being able to migrate to another country. Also the fact that you will be distanced from your siblings. I am sure you will be concerned about being separated from your siblings. That is the sad reality of your offending in the way that you have. They will need to visit you in Vietnam as it seems unlikely that you would be permitted to return to this county.
54 Being sent back to Vietnam will involve separation from Ms Tran but that is not a matter of any great weight at all. It was only a relationship in its infancy and according to Ms Lechner, you do not even seem to know if you are still together.
55 You will have questions in your mind as to what the future holds for you. You will be considering life ahead with a return to your homeland and being distanced from your siblings. You are facing a very different life and will need to start afresh. That will not be particularly easy for you to contemplate as you serve this sentence. I take into account that sort of increased burden here.
56 I cannot pay much regard to the claimed difficulties brought about by your lack of English in the prison system. You chose to commit a crime which would inevitably, if discovered, lead to prison. As to the contention of limited English and how that increases your burden, that is a bit hard to fathom. You have been in this country from your teens and came after doing an English course in New Zealand where you seemingly did quite well according to the reasons of the last sentencing judge. You then were studying in English in Melbourne. You have been working and doing courses whilst in prison. So, there is not much mitigation to be had on that score in my view but there is some. I take it into account.
COVID-19
57 I accept that the COVID-19 virus and the response to it by those running the prisons will increase your burden to some extent. It already has. It produces anxiety, tension and stress. It is impossible to know precisely how it will impact upon you in the future. There are some lockdowns but they are not across all prisons so I really cannot assume they will apply to you into the future. Visits have already been suspended and so have some courses and programs. I cannot know how long those things will persist and of course any wider disruption across the prison system would likely be the subject of some consideration for emergency management days. There are no prospects in the short term of any in-person visits for any prisoner. That undoubtedly makes prison life tougher and has since that measure came into effect. I accept that there is an increased custodial burden in this case for the reasons advanced by your counsel in paragraph 4.5 of the written submissions. I take it into account in your favour.
Report of Ms Lechner
58 I have already mentioned the report of Ms Lechner. It is of pretty limited value. She saw you once by way of video link in May. She received from you an account of your personal history as well as your reasons for committing this crime. You impressed her as being a relatively uncomplicated and simple man and with an understandable concern as to the outcome of the proceedings. She makes judgments as to your personality style. Whatever may be said generally as to your being easily led or malleable, there is just no evidence that you were in any way manipulated into committing this offence. Nor do I accept that you had issues with consequential thinking in relation to the decision to so offend. You had previously been detained for being involved in cannabis cultivation. You could have had no doubt as to the risk you were taking on this occasion. I am satisfied of that beyond reasonable doubt.
59 You are anxious as to your position and were anxious about your mother’s ill health which is hardly surprising. I do not doubt that. The report is not of great use in this case and is certainly not relied upon in any Verdins fashion at all. Still, I take it into account.
General remarks
60 I address now some general remarks to you. How did you get involved in this? I do not really know. You made a no comment interview. I have already said I am not satisfied on the balance of probabilities as to your account given to your counsel or to Ms Lechner. Your mother had been unwell but it is quite unclear why you would have been borrowing money or for that matter, why anyone would have lent you money. I do not accept your instructions to counsel or your account to Ms Lechner.
61 You were obviously trusted sufficiently to purchase three shipping containers for a large sum of money. You must have had discussions about that. You must have been given instructions as to what to buy and why. You must have been given that money, which would be a massive leap of faith for anyone who had actually lent you money. You knew of the addresses and hence knew that cannabis cultivation was planned at those three premises. That is all inescapable from your plea. You are not charged with innocently purchasing shipping containers but rather with cultivating cannabis by virtue of your acts. You intended to assist the cultivation of cannabis at those three premises by your acts. That is conceded at 1.1 of your counsel’s submissions. You had some knowledge of what was to occur at the factories. The settlement of the matter is on the basis that you did not know what quantities were being cultivated.
62 You were purchasing three shipping containers for $7,500 cash and then arranging for them to be despatched off to three separate factories and with knowledge that this was to assist cannabis cultivation. There was an obvious air of commerciality at play here. It is a little bit hard to see how the knowledge of at least a commercial quantity could not be inferred in such a setting as that by a man who had previously had over 200 plants at one property but that is not the way this case has settled. You are perhaps fortunate to face a non-commercial (simpliciter) charge but that is what you have pleaded guilty to and that is what I must sentence you for.
63 The fact is though, you were part of a large syndicate and plainly enough were a necessary player or quite simply you would not have been doing what you were doing.
64 The submission is that you were offending in a very limited way and in a manner falling below that of a crop sitter.
65 That is, that you are at the very bottom of the hierarchy. I do not agree with that submission.
66 Everyone involved in this sort of crime is doing so for money or some financial reward. That is the common motivation for people engaged in this sort of venture. Sometimes there is need, sometimes there is greed. Sometimes a bit of each. Well, in your case, I do not accept that it was done out of any financial need.
67 I am not satisfied that you had ever obtained a loan to provide funds to your mother or that any money was sent by you to her. I am not satisfied you were in debt and seeking to expunge a debt. I am not satisfied on the balance of probabilities of any dire financial position in your case at all.
68 In the course of the plea, I raised some of the difficulties I had in accepting your instructions on the balance of probabilities and your counsel chose not to call you on the plea. So be it.
69 You were taking a calculated risk when you offended. You hoped not to be caught.
70 I am satisfied beyond reasonable doubt that you must have weighed up the risks given your previous arrest and detention as a teenager.
71 I have to take into account the nature and the gravity of the offence.
72 It is impossible to know with any certainty how you became involved, how you were recruited and by whom or the true nature of your relationship to the many others in the hierarchy. As to why you became involved, well that is easy enough to answer. Money.
73 I will sentence on the basis that you were not the principal or the person who actually set up the crops. You were not an organiser or someone sharing in a division of the profits.
74 You were not a day to day cultivator who tended the plants. Those people take an enormous risk as they are actually in the presence of the plants and often for very little reward. Indeed one of those interviewed described being paid $100 per day. (See Hu Nguyen page 998).
75 I do not accept that your role is lower than a crop sitter. It is a different role. One with a connection to people further up the hierarchy. You had the three addresses and were discharging a function which you knew was connected to the disguise of these crop factories. You must have been highly trusted indeed. You had the addresses of three factories and the cash.
76 You clearly knew that you were embarking upon a serious crime. I have no doubt about that at all.
77 I am not able to ascertain your expected financial reward. I am certainly not satisfied of your account on the balance of probabilities. As I have said, I do not accept that there was a debt or that it was being waived and that this was your motivation.
78 There seems to be a never-ending stream of people prepared to involve themselves to some degree in the cultivation of narcotic plants for reward and plenty of people superior in the hierarchy prepared to pay such people for that role. That speaks clearly as to the large potential illegal profits involved in this style of prevalent venture. It is serious criminal conduct. This case gives a very clear window into how serious the industry is.
79 Any of those many involved in any way in cultivation fulfil a variety of necessary roles.
80 Of course, you do not fall to be sentenced for large commercial or even commercial quantity but as simpliciter or non-commercial cultivation goes, it is no minor example of the offence as far as I am concerned. Your role is as described in the summary. You were fixed with knowledge of three factories being engaged. Your culpability was high enough even though your acts were limited.
81 The people up towards the top of the hierarchy very seldom sit in the dock of a court. They do not in this case. That is because they install or recruit hired underlings to do so much of the essential work and to lessen their own risk of apprehension. You were taking steps to disguise the reality of what was happening at commercial premises and providing that insulation from risk for those above you and it has been effective. So here, you are the only person charged in relation to these three factories and on a simpliciter or non-commercial basis.
82 Without players such as you, that is, people who are prepared to involve themselves in some way in the set up or sourcing of equipment or the management or the day to day cultivation of crops, the crops would not exist. Your role was obviously a necessary and important one or you would not have been asked to perform it. It is that simple. See the case of Doan v R [2010] VSCA 250.
83 I do not accept your counsel’s characterisation of your role at para 6.2 of the written submissions. No doubt if you had been involved in the day to day cultivation of cannabis, you would have been described by counsel as a crop sitter, maybe even a 'mere' crop sitter and as someone not in any way concerned with aspects of set up, or organisation or sourcing of equipment or in control of large sums of money. Just a simple farming type.
84 You were not watering or feeding plants. You were sourcing equipment deemed to be necessary for these factories and this enterprise. It is true that you were in this way less actively involved in the practical concerns but I do not equate that with falling at a lower level than one who was hands on tending the crop.
85 What I must avoid doing is focussing on the actual quantity of plants. Of the scale and weight of the crop. If I focus on those things, I would be dealing with you for commercial quantity or large commercial quantity cultivation and that is not what I am sentencing you for. But you were unmistakably a part of a larger criminal syndicate and knew that you were. I have no doubt of that at all. The existence of three factories and the cost of the containers informed you of the professional nature of this enterprise.
86 You have a highly relevant prior appearance.
87 This crime carries a maximum term of 15 years’ imprisonment.
88 I must pay regard to the maximum sentence.
89 Sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation. As I have said, I believe they are reasonable.
90 Punishment is an important purpose.
91 Denunciation is also important.
92 I must consider the need for specific deterrence, that is deterring you from committing crimes in the future. That is an important purpose. So too community protection. You received a term of detention in 2012 for the 2011 offending and yet here you were again caught up in serious illegal conduct. I must protect the community from you. I must deter you from offending again.
93 General deterrence is a significant purpose of sentencing in a case such as this. The message must be sent to people such as you not to engage in this sort of crime at any level.
94 Those who choose to engage in this activity are always taking some form of calculated risk. That risk is always taken on because of the hope of some financial reward, as I am sure it was in your case. Sometimes there are debts. Sometimes there is the hope of gain. Sometimes just the taking of a shortcut. There is always some excuse or reason or motivation but it always comes down to financial reward of some description. People must understand that with that potential reward comes a significant and a real risk of detection, of prosecution and then the likelihood of the imposition of a significant term of imprisonment. The need for general deterrence is important here.
Current sentencing practice
95 I pay regard to current sentencing practices. It is not a single controlling factor. It is but one of the matters a court has to have regard to. I have looked at the Sentencing Snapshot No. 221 of 2018 for the offence of non-commercial cultivation. I have also looked at some of the material held at the Judicial College of Victoria new sentencing manual, including non-commercial cultivation sentences dealt with in the Court of Appeal.
96 Statistics have inherent limitations. It is not my job to sentence you according to the average or most common past outcomes. They are statistical measures and I am not sentencing you as a statistician.
97 Nor do other examples of sentences imposed on other people for other instances of the offence greatly assist me. Every crime is different and so too is every offender. I cannot find another case like this. It is a pretty unique setting.
98 It is clear though from the many cases in this area that cultivation of cannabis is a serious and prevalent crime. That is not dependent on a commercial quantity being involved.
Section 78 Disposal Order
99 Application is made pursuant to section 78 of the Confiscations Act 1997 for disposal of the various cannabis plants and some other items found at the three factories. That order is not opposed and I have signed it. I order that the items referred to in the schedule to the order are forfeited to the State and are handled in the manner described in the order.
100 If you would stand up please.
Sentence
101 On the charge of cultivation of cannabis, I convict and sentence you to 30 months or two and a half years' imprisonment.
Non-parole period
102 I fix a period of 18 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
103 You have already served 341 days of this sentence by way of pre-sentence detention and that s.18 declaration is to be entered into the records of the court.
Section 6AAA
104 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of this offence by a jury, I would have convicted and sentenced you to 45 months or 3 years 9 months' imprisonment. I would have fixed a non-parole period of 33 months or 2 years 9 months. That statement is to be entered into the records of the court.
105 Just have a seat please, I will see if there are any other matters that I need to deal with. Are there any other matters, Ms Schwartz or Kantor?
106 MS SCHWARTZ: No, Your Honour.
107 MR KANTOR: Your Honour, I note that Your Honour has made an order regarding disposal.
108 HIS HONOUR: Yes.
109 MR KANTOR: I just note that there was a - there is an application for forfeiture by the Crown as well. I am just wondering if that is still be pursued, that is pursuant to their opening.
110 MS SCHWARTZ: No, Your Honour, there is no application for forfeiture.
111 MR KANTOR: Thank you.
112 HIS HONOUR: There is no - there is no ‑ ‑ ‑
113 MR KANTOR: That is what Ms Schwartz said ‑ ‑ ‑
114 MS SCHWARTZ: No, Your Honour, that must have been a mistake.
115 HIS HONOUR: All right, so just a single disposal order which is what ‑ ‑ ‑
116 MS SCHWARTZ: The forfeiture order related to - sorry, Your Honour, the forfeiture order would have related to money which is the subject - which is not subject (indistinct words).
117 HIS HONOUR: Well, that is being dealt with in the Magistrates' Court. Yes. So, just the disposal order which is what I have put out. Yes, all right.
118 MR KANTOR: Otherwise there are no matters from me.
119 MS SCHWARTZ: Yes, Your Honour, thank you.
120 HIS HONOUR: All right, you will go down and see your client downstairs,
Mr Kantor,
121 MR KANTOR: I will, Your Honour, yes.
122 HIS HONOUR: Yes, all right. Does the interpreter go with you or not or?
123 MR KANTOR: I hope so, Your Honour.
124 INTERPRETER: Yes, Your Honour.
125 HIS HONOUR: All right, good, well thanks very much. Well, so that completes the matter then Mr Pham. So, Mr Kantor will come down and see you downstairs, all right. Yes, thank you.
126 MR KANTOR: As the court pleases.
127 HIS HONOUR: Yes, well we will disconnect the link to those who are being linked in and 9.30 tomorrow then please, thank you.
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