Director of Public Prosecutions v Pham

[2020] VCC 281

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-02508

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAM PHAM

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	17 March 2020
DATE OF SENTENCE:	17 March 2020
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2020] VCC 281

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. MacDougall	Office of Public Prosecutions
For the Offender	Mr J. Miller	Victoria Legal Aid

HIS HONOUR:

1Nam Ngoc Pham, you have pleaded guilty to one charge of cultivation of a drug of dependence in not less than a commercial quantity.  That crime carries a maximum penalty of 25 years' imprisonment.

2You are now 25 years of age.  You pleaded guilty at the earliest reasonable opportunity.  Even though you made no admissions to police you were found within the premises.  Remorse, in these situations, is always highly problematic, but I will give you the benefit of the doubt in relation to that – certainly insofar as your own personal circumstances are concerned.  You must also, of course, get the utilitarian benefit of that plea of guilty.

3You have no prior convictions and you have no matters pending.  Because of the sentence that I am to impose upon you, and because of your residential status - or lack thereof, in this country – it is certain that you will be deported upon the expiration of the sentence.  It is not suggested otherwise then that an active custodial sentence of some significance be imposed, and that is what I in fact propose to do.  As I have indicated to counsel, in these matters now unless it is a very, very substantial cultivation I just simply give a straight sentence as long as that is, as I say, within range, and that is what I will be doing.

4A summary of the Crown opening is that on 12 September 2019, in the evening, police observed you at premises in Summerhill Boulevard, Drouin.  They executed a search warrant at that address and, upon entry, found a – sophisticated, as they all seem to be – hydroponic setup throughout the house being used to cultivate cannabis.  Police located you at the top of the stairs, with your hands in the air. You were wearing disposable gloves.  You were arrested for cultivation of a commercial quantity.

5The premises had several separate rooms – I am assuming it was double storey, as was last week's Drouin grow crop – and cannabis in fact was found in eight of the rooms of those premises.  There was a total of 259 plants with a total weight of 151.2 kilograms – that, of course, is wet.

6An electrical bypass had been installed and I am not giving the detail of that, and indeed you are not charged with it.  That bypass was seized and I am assuming rendered safe.

7It became clear that the vehicle you were driving had fertiliser and other matters associated with cultivation in the boot.  You also had had house keys with the garage remote to 61 Summerhill Boulevard in the centre console.

8It is quite clear that you were involved in this cultivation.  As is nearly always the case, the police are not in a position to prove the exact role that you played, but in these circumstances I am left with no option but to essentially sentence you as a crop sitter, because I have no other matters which I could find beyond reasonable doubt which would increase that role.

9Insofar as the crime is concerned, it is obviously serious.  These matters call for the application of general deterrence.  As those of us in this business are well-aware, these crops are all over the place in Gippsland and there is always somebody who is on an expired student visa with ill parents in Vietnam.  General deterrence has to play a part in at least endeavouring to persuade likeminded people who want to become involved in this sort of crop-sitting that the consequences are serious.

10Insofar as matters personal to you are concerned, you have been here since 2013, you are from Vietnam.  You have family in Vietnam and your parents apparently have always been hardworking in the prawn farming industry.  They are now, I am told from the Bar table, ill.  You have been endeavouring to send money back to support them and that obviously now, or has for the last few months, ceased.  You are unsure what is going to happen when you do return to Vietnam.  Your parents are supportive of you and apparently understand what you are going to be sentenced for.  You will at least be being deported back into a family situation, and whether you can find work, or work in a useful manner, is really a matter for you.

11Since you have been here you have had various jobs picking fruit, you have worked as a stonemason - and I will be very surprised if you paid any tax on any of that - but be all that as it may, the risk of you reoffending in this country is zero.  The prospects of your rehabilitation are really up to you and, again, have really nothing to do with Corrections, or any of the services in this state.

12However, in all those circumstances, you are 25, you are going to be deported.  You have got no priors.  There are going rates, effectively, for this sort of offending, which is unfortunately common – particularly, it seems to me, in this area.

13Taking all those matters into account, on the charge of cultivation you are sentenced to be imprisoned for a period of 18 months.  I direct that 186 days be reckoned as having been served under that sentence.

14Pursuant to s.6AAA of the Sentencing Act I advise that but for your plea of guilty I would have sentenced you to be imprisoned for a period of three years with a minimum term of two.  No other orders I have to make?

15MR MILLER:  No, Your Honour.

16MISS MacDOUGALL:  No, Your Honour.  Thank you.

17HIS HONOUR:  No?  All right.  Yes, thank you, Mr Miller.  Do you want to talk to him in the dock or are you going to want to pop over?

18MR MILLER:  I'll go over.

19HIS HONOUR:  All right.  Yes, thanks, fellas, you can take him now.  Yes, thanks, Mr Interpreter.  You can come out now.  Yes, all right.

(At this stage the court proceeded with another matter.)

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