Director of Public Prosecutions v Pham

[2020] VCC 116

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

AT MELBOURNE

CRIMINAL DIVISION

CR-19-00083

DIRECTOR OF PUBLIC PROSECUTIONS

v

XUAN PHAM

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2020
DATE OF SENTENCE:	13 February 2020
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2020] VCC 116

REASONS FOR SENTENCE

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Catchwords: Guilty plea, cultivating narcotic plant, s6AAA

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Teo	Office of Public Prosecution
For the Accused	Ms C. Dwyer	Paul Vale Criminal Law

HIS HONOUR:

1.Xuan Pham, you have pleaded guilty before me today to one charge of cultivating a narcotic plant.  The maximum penalty for this offence is 15 years because I accept that the cultivation in this case was for the purpose of trafficking.  This matter has been running as a trial since Monday of this week.  The matter resolved today after negotiations between the prosecution and
Ms Dwyer on your behalf.  Charges of cultivating a commercial quantity of cannabis and possession of cannabis relating to cannabis found within a Toyota Camry were not proceeded with as part of the resolution in this matter.

2.An offer was put to the prosecution on 20 March 2019 in relation to a charge of cultivation simpliciter, the charge to which you have pleaded guilty today.  In those circumstances it is my view that your plea should be characterised as an early plea of guilty.

3.The facts underlying your offending are as follows.  On 27 October 2018, Martine Thompson, who was a resident of Palmerston Street, heard a car pulling into 21 Palmerston Street, Camberwell, at approximately 8.40 pm.  At approximately 8.45 pm, she walked by the premises and saw a silver sedan parked near the front door of the house.  Ms Thompson alerted her friend, Annemarie Sandilands to the presence of the car.  It is obvious, having heard their evidence, that both of the neighbours were highly suspicious of what was going on at the residence at 21 Palmerston Street.  At approximately 9.11 pm Thompson and Sandilands contacted police.  At approximately 9.30 pm Ms Sandilands noted the registration of the Camry as 2AK 993; in fact, the registration was TQK 993.  Ms Sandilands provided this registration to the police.

4.Shortly after, the informant in this matter, Senior Constable Tony Lai Sang, attended at the address of 21 Palmerston Street and parked close to the intersection of Palmerston Street and Prospect Hill Road.  He walked to the address and saw the Toyota Camry parked in the driveway.  As I understood the evidence, he contacted Sergeant Bill Tsiros who also attended at Palmerston Street and parked up the opposite end of Prospect Hill Road, effectively cordoning off the street.  Ms Sandilands called police at approximately 10.40 pm when she heard the silver sedan reversing out of the premises.  Senior Constable Lai Sang, who was parked in Prospect Hill Road, observed the Camry turn right into Prospect Hill Road and head east towards Maling Road.

5.He followed the Toyota Camry, driven by your co-offender in this matter, Mr Dinh Phan, which turned left at Maling Road.  Shortly after, he intercepted the vehicle on Maling Road.  You were the passenger in the vehicle.  You were arrested along with Mr Phan. Observations were made of equipment in the vehicle, such as a plastic container of fertiliser in the backseat, a plastic bag with wire cables in the rear passenger seat and two exhaust fans in the boot.  There was also marijuana located in the glovebox, but you are not charged in relation to that marijuana.

6.Soon after, police went back to the address at 21 Palmerston Street and using the keys which had been located on your co-offender, Mr Phan, opened the door and entered the premises.  Inside they saw a very large number of cannabis plants and a hydroponic set up.  They deemed it too dangerous to proceed any further due to potential electrical hazards and left the premises.  They returned on Monday, 29 October 2018.  In particular, Sergeant Tsiros oversaw the execution of the search warrant on that day.  Inside the house they observed an extensive hydroponic setup in which every room of the house contained cannabis plants of varying maturity.  Sergeant Tsiros gave evidence of what he observed and of a diagram drawn by another police officer, Senior Constable Noni Bousfield, which shows the set up and the number of plants in each room.  The total amount of plant material ultimately seized from the house was 173 plants of cannabis L which came to a total weight of 124.34 kilograms.

MR TEO:To be fair, Your Honour, that weight included a lot of other material, so it should only be on the basis that there's 173 plants.

HIS HONOUR:  Yes, all right.

7.The weight included other material, so the basis of the prosecution case was the 173 plants.  In any case, the prosecution has not proceeded with the charge of cultivate commercial quantity.  You made a record of interview that evening in which you said you sat in the car and you were going wherever your friend was going to.  You denied going into the house at any point.

8.You have pleaded guilty on the basis that you were complicit in this matter by assisting or encouraging the principal offender Mr Phan, who was cultivating the cannabis plants inside 21 Palmerston Street, Camberwell.  You were said to be a lookout on his behalf.  This is the basis on which you have pleaded guilty.  Your culpability is by way of complicity.  The extent of your participation is limited to 27 October over between an hour and a half and two hours.  It is not suggested that you received any money for your participation.  Whilst what was inside the premises was clearly a sophisticated set up, I reiterate, that the Crown has not proceeded with the charge of cultivating a commercial quantity.

9.Your co-offender, Mr Phan, pleaded guilty to cultivating a commercial quantity.  He received a sentence of three years with a minimum non-parole period of two years.  He was sentenced on the basis that he was employed as a crop sitter over a period of two weeks. He was given a car to assist him as a crop sitter and he was paid $8,000 for his role in the cultivation.  Ms Dwyer submits, and I accept, that your role involved no profit or remuneration and is limited to this single occasion.  Considerations of parity are of little relevance, given the basis on which this matter has proceeded against you. 

10.I turn now to your personal circumstances.  You are now aged 36.  Your date of birth is 9 May 1983.  You were brought up in Vietnam.  Your parents were farmers.  You are the second oldest of five.  You attended university in Vietnam between 2005 and 2009, after which you worked as a receptionist at a hotel in Ho Chi Minh City.  In 2013 you came to Australia on a student visa to study English, which you then did for six months.  You intended to remain in Australia and study information technology but you changed your mind and studied building instead.  You applied for a work visa but you were given a bridging visa which expired some time in 2017.  You were refused an extended work visa.  You have in fact have been an unlawful resident in Australia since
14 October 2017.

11.You have a partner who you met in Australia but who has since returned to Vietnam and is living in Hanoi.  You and your partner have a child together, a son named Leo.  As I said, your partner is now back in Hanoi and you have never seen your son.  You have now been in custody for a period of 474 days since your arrest in this matter and you have had limited contact with your partner or your family.  I accept that you have had an isolated time whilst you have been in custody and the fact you have not seen your son has increased the burden of your imprisonment during that period of time.

12.You have no prior convictions, but I accept what Mr Teo submits, that people involved in crop sitting are often targeted because they have no prior convictions.  Nevertheless, I must take into account your previous good character.  In relation to sentencing principles, considerations of general deterrence, denunciation and just punishment are relevant to my sentencing task in this matter.  I am satisfied that a period of imprisonment is appropriate for this offending.

13.I have been referred to three cases by Ms Dwyer that seem to reflect current sentencing practices.  I have had regard to those matters and whilst they are a relevant matter for me to take into account, they are not a controlling factor in the imposition of the sentence.

14.I have decided in the circumstances that there is no other option in this case but to impose a sentence of imprisonment.  Your position is, as I understand it, that you will be deported back to Vietnam as you are illegal in this country at the present time.  In those circumstances, there really is no other sentencing disposition available.  Taking into account all matters, including that in particular given your role was limited to one day for two hours, in my view, whilst a sentence of imprisonment is appropriate, it ought to be a relatively short period of imprisonment.

15.Mr Pham would you stand up please. 

16.On the charge of cultivate narcotic plant, I sentence you to a period of four months' imprisonment.

17.Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty I would have sentenced you to six months.  I declare 474 days of pre-sentence detention in this matter as having already been served.  I will make the forensic sample order. 

MS DWYER:Yes, Your Honour, that's - - -

HIS HONOUR:  Unless you wanted to make some submissions about that?

MS DWYER:No, that's correct.

HIS HONOUR:  And I'll make the forfeiture orders as sought by the prosecution.  Have we got the most recent version of the forfeitures?  Yes, all right, we'll print them out and do it now.  Mr Pham, I'm making a order that you provide a forensic sample in this matter.  I do so because of the seriousness of the circumstances of the offence and the order is not opposed.  And that the granting of the order is in the public interest.  If you do not consent to providing the sample, an authorised member of the police force may use reasonable force to enable the forensic procedure to be conducted.  Do you understand that?

OFFENDER:  (Through Interpreter) Yes Your Honour.

HIS HONOUR:  I'll just amend that order.  I'll sign the disposal order. 

HIS HONOUR:  All right.  Is that everything Mr Teo?

MR TEO:Yes Your Honour.

HIS HONOUR:  All right.

MS DWYER:Yes Your Honour.

HIS HONOUR:  Thanks to counsel and your instructors for your help in this matter.  I think in the end it was a sensible resolution.  Mr Pham, you'll have to go downstairs and have everything sorted out.  If Mr Pham could be taken downstairs.  All right, 10.30 tomorrow.

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