Director of Public Prosecutions v Pham

[2020] VCC 295

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01895

DIRECTOR OF PUBLIC PROSECUTIONS

v

DONG PHAM

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	4 and 10 March 2020
DATE OF SENTENCE:	18 March 2020
CASE MAY BE CITED AS:	DPP v PHAM
MEDIUM NEUTRAL CITATION:	[2020] VCC 295

REASONS FOR SENTENCE
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Subject:
Catchwords: cultivate a commercial quantity of a narcotic plant – crop sitter – early guilty plea – 1^st offender – 60 years old – excellent prospects of rehabilitation
Legislation Cited: Sentencing Act s 5(2H) all
Cases Cited: Ngoc Nguyen v R 2017 VSCA 286
Sentence: 16 months imprisonment – 8 months minimum non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Hodge	Office of Public Prosecutions
For the Accused	Mr M. Mach	Mach & Associates

HIS HONOUR:

1Dong Pham, you have pleaded guilty to one charge of cultivation of a narcotic plant in a commercial quantity on 7 June 2019, and one charge of theft of electricity on the same day. 

2The circumstances of your offending are set out in the summary of prosecution opening for plea which was Exhibit A.  They are agreed facts.

3On 7 June 2019, police executed a search warrant at your home.  You were present and let them in.  Inside, they found 69 cannabis plants growing hydroponically in four rooms.  The plants weighed 71 kilograms.  In the kitchen, there were four bags of dried cannabis which weighed 1.4 kilograms.  The total weight of the cannabis seized was 72.4 kilograms.

4A commercial quantity of cannabis is 100 plants or 25 kilograms of cannabis.

5An illegal electricity bypass had been installed.

6Police arrested you. You were charged and remanded in custody.

7On 9 July 2019 you were granted bail.

8On 18 September 2019, at the 2^nd committal mention, you pleaded guilty to the charges on the indictment.

9You have no criminal record.

10Your recorded birth date is 1 January 1960.  You are now 60 years old. 

11Your personal circumstances are set out in the psychological report prepared by Dr Sandra Nguyen.  You were born in Vietnam and grew up on a farm with your parents and eight siblings.  When you were 11 years old, you left school to work on the farm.  You married in 1981, and you have a son who was born in 1984 and a daughter who was born in 1985.

12In 1989, with your wife and children, you fled civil strife in Vietnam and made your way to an Indonesian refugee camp at Galang Island where you lived for four and a half years.  Your sister, Mai, who had earlier come to Australia, assisted you financially while you were in Indonesia.  In 1994, with her help, you were able to get your family to Australia. 

13You have obtained your Australian citizenship.

14At first, you lived with your sister.  You worked as a sewing machinist at home for about five years, and you then worked as a packer.

15In 2000, you injured your low back at work, and, in December 2004, you underwent an L4 laminectomy.  You have suffered chronic back pain ever since.

16More than 20 years ago, your marriage ended.  Since then, you have been isolated from your family.  At the time you offended, you were not working, and you were living alone in the family home.

17From the police photos, it would appear you were living a solitary and meagre existence.  Your health is poor; medical records indicate you were being treated for kidney disease, hypertension, and diabetes.  You also have mental health problems.  Unsurprisingly, given your difficult and disadvantaged background, you have a history of anxiety and depression.  To escape your loneliness, you started going to the casino and local pokies clubs to gamble.

18You slowly became addicted to gambling.  You also have a history of abuse of cannabis which you used to self-medicate your back pain.  Ms Nguyen diagnosed you with an adjustment disorder with mixed anxiety, and depressed mood, a gambling disorder, and a cannabis use disorder.  On your report, you have abstained from gambling and cannabis use since your arrest.

19In her opinion, with treatment, your prognosis for recovery is positive.  While she was not able to directly link your anxiety, depression, and gambling addiction to your offending, in her opinion, they likely contributed to you making poor choices. 

20I accept her opinions. 

21In relation to your offending, you told her you accrued gambling debts which you were unable to pay and the loan sharks who had lent you money told you they would forgive the debt, provided you allowed your home to be used for cannabis cultivation.

22Your counsel, Mr Jasser, told me you felt pressured to comply because they threatened harm to you, and your family, if you did not.  They arranged to fit out four rooms, with the electricity bypass, for cannabis cultivation.  They told you to watch over the crop, and they would harvest it. 

23When police executed the search warrant, they found 18 mature plants growing in two rooms, 21 less mature plants in another room, and 30 seedlings in the fourth room.  In the kitchen oven, there was a container of leftover cannabis leaf which I was told you were given to smoke.

24You told Ms Nguyen you are sorry for your actions and ashamed for the dishonour you have brought your family.  I accept that you are. 

25Your son supported you in court.  In a letter, he wrote you are a decent, hardworking, and trustworthy person who supported your children to make better lives for themselves and their families.  He described you as reserved.

26You kept your problems to yourself, neither of your children were aware of them.  Both of them are tertiary educated, run successful businesses and have families of their own.  Your son has one child, your daughter, two.  Her husband also wrote a letter to the court.  He described you in similar terms as your son has.

27After you were released on bail on 13 July last year, you went to live with your son and your daughter employed you as a warehouse assistant in her business.  Both will support you with a home and work, when you are released from prison.

28In comprehensive written and oral submissions your counsel relied on the following factors in mitigation of penalty; your limited role, your early guilty plea, your genuine remorse, your prior good character, your age, and poor health, your excellent prospects or rehabilitation.  He submitted as an elderly offender with physical and mental health problems, the hardship of prison will be greater for you.

29I accept the force of his submissions. 

30Mr Jasser urged me impose a sentence of imprisonment, combined with a community correction order upon you. He argued the meaning of s.5(2H) of the Sentencing Act, which mandates a term of imprisonment without a community correction order, is uncertain and I should not adhere to it.  He did not seek to argue any of the exceptions are applicable in your case.

31In the alternative, he submitted I should impose a term of imprisonment on count 1 and a community corrections order on count 2. 

32Mr McCarthy, who appeared for the prosecution, submitted the offence of cultivating a commercial quantity of a narcotic plant is inherently serious and only a custodial sentence is appropriate.  He emphasised the importance of general deterrence, but conceded specific deterrence is less important in your case.

33He accepted your role was limited; you were a crop sitter who allowed your home to be turned over to cannabis cultivation.  He accepted you had done so to repay gambling debts and acknowledged there was no evidence you were involved in trafficking of the cultivated plants or that you gained financially. 

34I accept and am assisted by his helpful submissions.

35Under the Sentencing Act, cultivating a commercial quantity of a narcotic plant is a category two offence. Accordingly, as section 5(2H) requires, I must impose a sentence of imprisonment, other than a sentence of imprisonment, combined with a community correction order, unless I am persuaded one of the stated exceptions exist. In my view, the meaning of the section is plain.

36I am satisfied taking into account the circumstances of your offending, and your personal circumstances, the appropriate sentence is the imposition of a term of imprisonment, as s.5(2H) directs.

37Both counsel referred me to other crop sitter cases, involving similar quantities of cannabis as comparators. 

38Mr Jasser referred me to Bayden Thomas 2019 VSCA 223.  Mr Thomas was sentenced to 225 days' imprisonment.  He also referred me to the case of Quan Quan Le 2018 VSCA 309.  Mr Lee was sentenced to two years' imprisonment; a minimum non-parole period of 18 months was fixed.

39Mr McCarthy referred me to two sentences of this court.  In one, Hoa Joa Nguyen 2019 VCC 2015, Mr Nguyen was sentenced to 20 months' imprisonment.  In the other, Peter Wilson 2016 VCC 1107, Mr Wilson after a trial was sentenced to one year and nine months' imprisonment on a cultivation charge.  For that and other offending, his total effective sentence was two years' imprisonment, a minimum non-parole period of eight months was fixed.

40While there are differences between the gravity of the offending, and the offender's personal circumstances in each of those cases and yours, I have found them useful as a yardstick to guide me to an appropriate sentence.  As the High Court explained in DPP v Dalgleish, current sentencing practice is one of the many factors I must take into account.

41I have also had regard to the helpful sentencing principles set out in
Ngoc Nguyen v R 2017 VSCA 286.  The maximum penalty of 25 years' imprisonment makes it clear that cultivation of a commercial quantity of a narcotic plant is a serious offence.  However, such an offence can cover a wide range of situations involving large and small criminal enterprises which in turn, involve people who have different roles, major and limited.

42As a crop sitter, you were not involved in setting up the cannabis cultivation enterprise or the distribution of the cannabis cultivated.  You did not share any profits of the enterprise.  Nevertheless, you were aware cannabis plants were being grown, and that the cannabis would ultimately be sold in the community for profit.  Your role, though limited, was an integral part of the enterprise.

43Overall, I find you were pressured to commit these crimes.

44I also find, with the demonstrated support of your children, you are most unlikely to re-offend. 

45Accordingly, I intend to moderate your total effective sentence, and non-parole release period, to mitigate your punishment and advance your rehabilitation under supervision in the community. 

46Please stand, Mr Pham.

47By the sentence I impose, I must denounce your conduct, punish you, and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation.  Taking into account the circumstances of your offending, your personal circumstances, and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you;

48On Charge 1, cultivating a narcotic plant, you are convicted and sentenced to 16 months' imprisonment.

49On Charge 2, theft of electricity, you are sentenced to two months' imprisonment.

50I direct the sentence I have imposed on Charge 2 is to be served concurrently with the sentence I have imposed on the first charge.  In that behalf, I note the prosecute did not seek an order for compensation for the stolen electricity, against you.

51Your total effective sentence is 16 months' imprisonment.  I direct you serve a minimum period of eight months' imprisonment, before being eligible for parole.  I declare you have served 47 days of your sentence by way of pre-sentence detention.

52Pursuant to s.77 of the Confiscation Act I make an order for the disposal of the cannabis plants and equipment seized. 

53I declare but for your plea of guilty, I would have imposed a total effective sentence of two years' imprisonment and fixed a minimum non-parole period of 14 months. 

54HIS HONOUR:  Adjourn the court.

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