Director of Public Prosecutions v Pham
[2019] VCC 1243
•8 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02067
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN PHAM |
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JUDGE: | Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 31 July 2019 | |
DATE OF SENTENCE: | 8 August 2019 | |
CASE MAY BE CITED AS: | DPP v Pham | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1243 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Cannabis cultivation – personal gain – no evidence of causal connection to gambling – no evidence of financial hardship
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Maguire | Office of Public Prosecutions |
| For the Accused | Mr D. Risstrom (on plea) Mr R. Breisch (for sentence) | TQH Lawyers |
HER HONOUR:
1 On 15 May 2018, police executed a search warrant at a property at 49 Jacobs Drive, Clarinda. That property is owned by you, Van Dong Pham, jointly with your wife.
2 When the property was entered, a hazardous, illegal electricity bypass was identified and, once that had been rendered safe, the house was searched. In the course of the search a sophisticated hydroponic set up was found in two parts of the house, a bedroom and the garage. In the garage, nine large, mature cannabis plants growing in pots were found under cultivation with a hydroponic set up. In one of the bedrooms of the property, nine smaller cannabis plants, at a much earlier cycle of growth, were found. In the refrigerator in the kitchen, a clear plastic bag containing harvested cannabis was also found.
3 Other items were found in the house which have since been identified as belonging to you, in particular a baseball cap and an empty beer bottle. The empty beer bottle, ultimately was linked by forensic examination, to you.
4 Later that same day, police went to the home where you lived with your wife in Mack Crescent in Clarinda, not far away. You were present at the time the warrant was executed. Your wife, when spoken to by the police, denied any knowledge of or involvement with any other addresses, saying she held no rental or leased properties. Police spoke to you about the cannabis that they had found being cultivated at 49 Jacobs Drive. You initially denied growing cannabis, acknowledged that you did own the house and then, after being cautioned, acknowledged that you were aware that cannabis was being grown at the house at Jacobs Drive in Clarinda. You told police, at that stage, that you rented the house to somebody else, that you were aware that cannabis was being cultivated, denied any involvement in or assisting in the cultivation and ultimately said that you turned a blind eye to what was happening there because the occupant paid you rent.
5 You told police that you had rented the house, the property at Jacobs Drive, to a person by the name of Long. You said you did not know his phone number. You acknowledged that you had been at the property as recently as the night before and acknowledged that you were there three to four times a week. You said that you were aware that there were seven cannabis plants present there and said that they had been growing for approximately six months.
6 Police searched your home and found a number of items which are relevant. Firstly, a key ring containing keys to the property at Jacobs Drive, a piece of paper with the contact details for AGL Energy, the energy provider to the house at Jacobs Drive, on which was also written the name of Van Long and a mobile telephone number. The other item of note that was found was a tracksuit set with elasticised cuffs and sleeves and a drawstring hood. That was tied up in a plastic bag in a drawer in the wardrobe of your bedroom. The tracksuit, when the bag was opened, smelt strongly of cannabis.
7 Enquiries in relation to the person or the name Van Long and the mobile telephone number that was associated with his name on the piece of paper that had the contact details for AGL revealed the following:
a) AGL records showed that there was an account for the address at Jacobs Avenue in the name of Long Ngo. A date of birth was given as 25 October 1975. The power had been connected using those details on 30 April 2015;
b) the phone number linked to that account was the phone number on the piece of paper found in your wallet that had the name Van Long on it, the AGL details and a phone number;
c) the phone number was registered to a person by the name of Long Ho at an address in Springvale; and
d) when police went to that address, the person who had lived there for the previous five years, Vang Van Nguyen, said that he did not know anybody by the name of Long Ngo or Long Ho and was not familiar with the phone number registered to that address.
8 AGL also had a driver's licence number registered in relation to that electricity supply account for Jacobs Drive but enquiries revealed no such driver's licence number in fact exists or is registered in Australia. Further enquiries revealed that there was no record with Home Affairs of any person named Long Ngo or Long Ho with the date of birth provided to AGL entering Australia between 1 January 2015 and 20 February 2018. Those dates are relevant because you told the police in interview that you had initially rented the property at Jacobs Drive to a Long Ho or a Long Ngo, a person who had arrived in Australia from Vietnam and left again.
9 When the formal interview was conducted with you after your arrest, you told police that you had met a man by the name of Long Ngo at the Springvale TAB shortly after you purchased the property in Jacobs Drive, Clarinda in April 2015. You told the police that you had rented the property to Mr Ngo for $1800 a month. You said that your wife was not aware of the fact that you were renting the property to anybody. You said that there was no formal rental agreement, that you had been paid rent in cash and that it was Mr Ngo who had received and paid the utilities accounts including electricity for the property.
10 You were unable to give police any contact details for Mr Ngo. You denied knowing that Mr Ngo had cultivated cannabis at the property and asserted that he had stopped you from accessing the property about six to seven months earlier. You said also that you had thought that something might be going on and later that you were aware that something was wrong and had done nothing about it.
11 When asked about the tracksuit that was found at your house at Mack Crescent you said that it was yours but you had kept it in a plastic bag because you did not use it. You were unable to explain why the tracksuit had a strong smell of cannabis. When asked whether you had worn it when you went to the property at Jacobs Drive and had worn it for the purpose, or in connection with, the cultivation of cannabis there, you denied it.
12 A person who lived near the house at 49 Jacobs Drive told the police on the day that they had executed the warrant that the only person he had seen going to the property since you had purchased it in April 2015 had been someone he described as a middle aged Asian man. He had seen that man arriving there regularly since the purchase of the property and generally arrived there driving a black Honda Accord. He was able to give the police the registration number of that vehicle. That vehicle is not only registered in your wife's name but was seen at your family home in Mack Crescent when the police came there on 15 May and executed the search warrant. The Jacobs Drive neighbour also told the police that he had never seen any other person or car at 49 Jacobs Drive.
13 The examination of the plants that were seized from the property revealed that there were nine larger plants approximately 13 to 16 weeks old being post-nursery and close to maturity, and nine smaller plants, also being post-nursery but only about three to five weeks old. As I have noted, the mature plants and the baby plants were in separate rooms. The total weight of the nine mature plants and the nine baby plants was 31.35 kilograms and the cannabis found in the plastic bag in the fridge, the dried and harvested cannabis, weighed 149.5 grams. There was also some cannabis material found on the tracksuit that had been found at your place.
14 Despite the denials and the various accounts that you gave to police at the time of questioning, by the first committal mention in this matter on 10 October 2018 you entered guilty pleas to the charge of theft of electricity and cultivation of cannabis arising out of the execution of the warrant. The quantum of electricity stolen over the period between 23 January and 15 May 2018, the period covered by the charge, is estimated to be $10,206.79 and the quantity of cannabis, the subject of the cultivate charge, is those 18 plants with the combined weight of over 31 kilograms.
15 The maximum penalty for theft is 10 years' imprisonment and the maximum penalty for cultivation of cannabis, if the court is satisfied that the offence of cultivation is not committed for any purpose related to trafficking, is a maximum of 12 months' imprisonment. In any other case of cultivation of cannabis, the maximum term of imprisonment is 15 years.
16 In the defence submissions initially filed on your behalf this was said:
'There was no evidence other than the circumstances attending the cultivation which disclosed the purpose, as per R v Mason [2006] VSCA 55 at paras 8 and 9. The question of whether the higher penalty prescribed in s 72B(b) applies is a matter for the Court to determine on a balance of probabilities.'
17 If this was an invitation to find that the higher penalty did not apply, it was without foundation. I was told in the course of the plea that you did not smoke cannabis and the explanation advanced on the plea was that the cultivation was for financial gain. Personal use was expressly disavowed and a motive of financial gain, that is a purpose related to trafficking, was affirmatively advanced on the plea.
18 You fall therefore to be sentenced under s 72B(b), that is, to a maximum of 15 years' imprisonment because it has not been established, on the balance of probabilities, that the cultivation was not for any purpose related to trafficking.
19 This is properly characterised as a sophisticated, ongoing enterprise of appreciable size.
20 The usual sophisticated hydroponic set up for cultivation of cannabis for profit was present. Tubs, a reticulated watering system, growth enhancers, heat globes, light shades and insulation were all present and operational. The electricity was diverted, thus achieving the dual purpose of getting the power for free and avoiding detection by reason of the abnormally high consumption of power required to operate the heat lamps and other equipment associated with the cultivation compared to what might be required ordinary domestic use.
21 Evidence of two growth cycles was present: the nine small plants and the nine maturing plants. There was also, as I have noted, that bag of dried and harvested cannabis. A traffickable quantity of cannabis is 250g, or 10 plants. Although you have pleaded guilty to a charge of trafficking, and I must sentence you for that, I note that 25kg is the weight threshold for cultivation of a commercial quantity of cannabis. I treat the weight of this crop therefore as at the higher end of a traffickable quantity.
22 Although the number of plants is well under the number of plants required to come within a commercial quantity, if you count plants rather than weight, and the number of plants is just shortly under double the threshold for a traffickable quantity, the significantly increased yield per plant in recent years is a matter that is often adverted to in sentencing hearings, often to explain an offender’s surprise that fewer than ten plants can weigh in at above a commercial quantity. So they are all matters significant or relevant to take into account in looking at the size of the enterprise and the amount of cannabis likely to be harvested.
23 It is clear from what was put to me on the plea and from the summary, despite the lies you told when interviewed, that these two lots of plants were your crops, they were grown in your house over a period of four months, and were tended, I am satisfied, solely by you. You intended to profit from the sale of the cannabis. It is not to the point to say that you had received no financial gain as neither crop was yet at the stage of maturity as it was clearly your intention, once they had matured, that you would profit.
24 The purposes for which sentence are to be imposed are, by s 5 of the Sentencing Act, just punishment, deterrence, both general and specific, denunciation, promoting rehabilitation and protection of the community. It is clear that subject to considerations personal to you, just punishment, deterrence, both general and specific and denunciation, all must loom large in the sentencing mix.
25 The maximum penalty is one indicator of how seriously the community regards the offence of cultivation for a purpose related to trafficking. People who grow cannabis for profit, at the scale you did, over the time you did, must understand that this is a serious offence that warrants stern punishment.
26 Dealing then with matters personal to you.
27 You are 58 years old and you have no previous convictions. You fled Vietnam as a refugee at the age of 17 and resettled in Australia in 1984 at the age of 19 after two years in a refugee camp. Your schooling was interrupted by the war and social dislocation following that and you did not complete secondary schooling or go on to tertiary education. Since your arrival in Australia you have a good, long and steady work history predominantly, it would appear, as a storeman and courier, eventually buying your own van and becoming a self-employed courier.
28 You married in your early 20s, your wife also having arrived in Australia from Vietnam. You and your wife bought a home together, and had two children, now young adults. Your children have done well. Your son is working as a bank officer, your daughter completing her tertiary studies. After you had paid off the family home, you and your wife together bought the Jacobs Drive property as an investment property and secured the loan for it against the family home. When I say you and your wife bought the property, it is registered in the names of the two of you and so, although your wife, when questioned by the police, denied having any other property, I am referring to it for these purposes as a property purchased by the two of you.
29 I also note that, in the pending forfeiture application, what is sought is your half share in that jointly owned property, an acknowledgement that your wife, as a joint owner of the property, has an entitlement to a half share. As I understand it, she intends to make that claim. The purchase of the investment property was funded by a mortgage. The mortgage was secured against the family home. It would appear from the material before me that the Jacobs Drive property was purchased at the time that you were the sole breadwinner, your wife having, after many years of work as a machinist, about 10 years ago, developed chronic back problems. I am told she has been unable to resume work as a machinist or resume any other work for the last 10 years.
30 I was also told that it was your intention that the investment property would ultimately be given to your children sometime in the future and your son had been making contributions to the mortgage of $1000 a month since the property had been purchased.
31 Your absence of prior convictions, your age, that is a long time to go through life without being in trouble, your stable family circumstances, your history of hard work and support of your family all count in your favour.
32 Although you told various lies to the police when interviewed, in each of them denying any responsibility for the crop, once charged you pleaded guilty and did so at a very early stage. You are entitled to have your early guilty plea taken into account in your favour and given considerable weight and I do so.
33 It was put on your behalf that, after the purchase of the property, you began to encounter financial difficulties. Consistently with one of the accounts you gave the police, I was told that you had initially rented the property out and that the rental income of $1700 a month accounted for approximately half of the monthly mortgage repayments. I was told that your son’s contribution was making up the bulk of the balance. I was told the tenant moved out of the property and that you were unable to re-rent the property. I was told that you, at the same time, experienced a drop in income, as the company to whom you provided your courier services and which was the sole or predominant source of your work, had changed hands and was experiencing a downturn itself, the flow on effect of which was less work for you. I was told you had unsuccessfully tried to obtain additional work as a courier to make up the shortfall. And I was told that you had developed a gambling problem.
34 It was against this background, I was told, and for those reasons that you decided to cultivate marijuana in the investment property, intending to profit from the proceeds.
35 If true, and there was no supporting evidence presented to me when the plea was first heard in respect of any of this, financial difficulties, whether caused by a downturn in work, an inability to rent the property or gambling, leading to a decision to cultivate marijuana in order to continue to make mortgage payments for the property or otherwise fund your lifestyle and that of your family's is no mitigator. To say, as was put on your behalf, that you were motivated by a desire to provide an asset for your children is no mitigator either. You cannot justify cultivating marijuana for profit in order to provide an asset for your children. It is no gift to your children to provide them with property funded through illegal activity.
36 You had options open to you. The photographs taken at the time of the execution of the warrant indicate that the property was a home in good order and in a desirable suburb in Melbourne. There is no glut of rental properties in Victoria or Melbourne at the moment. I am not satisfied on the material that was provided to me that the property was unable to be relet. Even if you were struggling to relet it, you could have sold it or renegotiated the mortgage. There is no suggestion, on the materials before me, that you had been unable to meet your mortgage payments for any of the time you owned the property. No evidence was put before me that you were ever in default of the mortgage payments. Nor from the material before me was there any evidence that you had amassed debts as a result of gambling. Whatever amount you were spending on gambling you were clearly able to fund from your own resources. That is fortified by the fact that, I was told and it was emphasised, that you had not yet received any money from the cannabis cultivation enterprise. That means you had not yet applied the proceeds from the sale of any cannabis cultivated to payment of the mortgage, to funding of your gambling or other lifestyle expenses. And the means by which you obtained the necessary equipment for the hydroponic set up in the house, secured the assistance of whoever it was who diverted the electricity and the means by which that was funded, was unexplained in the plea before me.
37 On the material that was originally placed before me, I indicated that it was insufficient to have me accept that you were suffering financial hardship and that that financial hardship provided a reason for your decision to cultivate cannabis for profit. It was put on your behalf that you are not living a lavish lifestyle. Whether the proceeds of illegal activity are applied to conspicuous consumer symbols of wealth, to funding a lifestyle that you could not otherwise fund out of your legitimate earnings or to building up assets for yourself and your children whilst currently living modestly is not to the point. It remains the case that this was cultivation for profit. There is no suggestion of desperate financial circumstances, of succumbing under pressure to the coercive or predatory demands of loan sharks into whose clutches you had fallen as a result of imprudent ventures or uncontrolled gambling, or loans to fund it. Nor are you in the position of a number of vulnerable noncitizens who have appeared before this court who have given accounts of being required to tend a crop in return for the arrangements that have lead to a visa for their entry into this country being obtained.
38 There is nothing mitigatory therefore in the circumstances which were advanced before me to justify your decision to embark upon this illegal activity. The need to denounce and deter your conduct and the conduct of those like you who decide to embark upon an enterprise of cultivation of cannabis for profit is very clear.
39 It was also put on your behalf that your wife would suffer hardship if you were unable to support her. I was also told that she was in receipt of Centrelink benefits. There is a conflict between those two positions. If your wife is in receipt of Centrelink benefits, then it raises the question of how or the extent to which you are currently supporting her. On the material that was initially before me, I was not satisfied that there was evidence of financial hardship to her which would flow if you were incarcerated.
40 It was put on the plea that you were remorseful for your actions and for your poor judgment. As I have already indicated, I take into account your plea of guilty and I take that plea of guilty as an acknowledgement of your legal responsibility. It deserves full weight for its utilitarian benefits. Testimonials were provided from your parish priest and a former employer. The priest particularly spoke of your remorse, the shame you brought upon your family and your understanding now that you had made a wrong judgment. I accept that that is some evidence of remorse.
41 For a man of 58, who had never been in trouble before, who appears to have led a good, law-abiding life up until then, raised his family and successfully seen his children into tertiary education and work, it is remarkable that it was not until your arrest and charge that it appears any appreciation of the wrongness of your actions seems to have entered your consciousness. This is not a momentary lapse of judgement, it is a conscious decision to embark upon a course of conduct over a considerable period of time. It involved a considerable amount of time and effort on your part and this tempers the weight to be given to your expressions of remorse.
42 Having said that, of course absence of remorse, or limited remorse is not an aggravating feature and I do not treat it in that way. It simply limits the weight to be given to your prospects for rehabilitation because the remorse is limited.
43 I do consider that the fact of being caught, charged and are now facing court to be dealt with for this cultivation offence, receiving the first criminal conviction against your name at the age of 58 after a blameless life and the belated appreciation of the consequences of the offending will all have a significant deterrent effect on you personally and therefore reduce your risk of reoffending.
44 I also consider that the anxiety and uncertainty surrounding the fact that your conduct has led to a prospect of a forfeiture of your interest in the home and that that is, as yet, unresolved, is a matter properly to be taken into account as mitigatory in your favour.
45 Your counsel, Mr Risstrom, submitted that your gambling problem was the cause of your offending. That is, that it was the need for money to fund your gambling habit that lead you to take the course you did. He submitted that therefore a community correction order, with conditions requiring you to engage in treatment to address the gambling problem, would have a significant specific deterrent effect and encourage your prospects for rehabilitation and should weigh heavily in the sentencing mix.
46 At the time that the plea was first being conducted and after hearing Mr Risstrom's submissions, I indicated that I was not prepared to act on bar table assertions in support of the submission you were suffering financial distress or had a gambling problem which had led to the commission of the offence. Nor was I prepared to act on bar table assertions that your wife would suffer financial hardship if you were incarcerated and unable to support her. As I have noted, I was told she was on Centrelink benefits, which indicated that your income must have been below the meagre threshold for sufficient spousal income to disentitle a married person from benefits. If, on the other hand, you were supporting her, and she was going to suffer hardship if you were incarcerated, then some explanation as to how she was eligible for Centrelink benefits was required, and that may also have led to consideration of whether any financial hardship she would suffer would be offset by any increase in benefits if you were unable to support her. I also indicated that there was no evidence before me of any efforts to relieve financial hardship by other means, such as efforts to rent the property, or seek mortgage relief. I raised my concerns that, if your income was as low as I was told it was, then it raised questions as to how you have been able to make the mortgage payments at any time since the purchase of the property up until now, even if the property had been tenanted for some time and even if your son had been making contributions to the mortgage.
47 I offered Mr Risstrom the opportunity to consider adducing evidence about these matters and, at his request, adjourned the plea for that to happen.
48 On the return of the plea, additional material was presented. It addressed some, but not all of the matters that I had raised. You were not called to give evidence and submit yourself to cross-examination about any of these matters. The additional evidence that was provided was a psychological report from Jeffrey Cummins dated 26 June 2019. It was available at the time of the plea first being presented and, although the written outline of submissions filed in advance of the plea had foreshadowed that that was to be provided on the plea, it was not. It was only after the adjournment that that was provided.
49 I was also provided with a report from Gamblers Help or EACH dated 29 July 2019, which indicated contact by you with EACH or Gamblers Help after the first adjournment of the plea and before the resumed hearing. There were also some print outs, evidencing completion of self-help modules on Gambling Help online on 12 and 15 July 2019, that is, again after the adjournment on the plea after submissions were first heard.
50 I was also provided with five pages of print outs from bank statements for your bank account. One page, page 1 of 9 for the period 21 January through to 20 July 2018 and four pages, pages 5-8 of 11 for the period 22 July 2018 to 21 April 2019 showed withdrawals of relatively small amounts over those periods for TAB gambling. Notably, they showed withdrawals before and after the execution of the warrants.
51 There were also affidavits from your daughter and your son. The affidavit from your son deposed that he had been contributing $1000 a month to the mortgage since the property had been purchased. The affidavit from your daughter indicated that, as a student and part time worker, she contributed to payment of family bills as and when she could.
52 The report from Mr Cummins was based predominantly on self-report from you. Based on that self-report, he concluded that you did have a gambling problem and satisfied the criteria for a gambling disorder in remission. He noted that you had indicated a preparedness to deal with it.
53 I have already noted that offending by reason of a gambling problem does not mitigate the seriousness of the offending, or lessen an offender's moral culpability On return of the plea, reliance on a gambling problem as a mitigating factor in that sense was specifically disavowed. I have already expressed the reasons why I was not satisfied, before the plea was adjourned, that the offending was motivated by a gambling problem. Nothing in the additional materials provided has changed that view. The evidence that was ultimately presented to me, the self-report, the attendance at EACH and what was told to Mr Cummins before the original plea, together with the evidence of the limited withdrawals from your bank account over those limited periods, do not establish a causal connection to the offending. In my view, none of those materials established that addressing any gambling problem that you may have would reduce your risk of future offending.
54 I do not consider this therefore as a case in which any sentence other than a custodial one is warranted. Nor do I consider that, in the circumstances, this is appropriate to be dealt with by way of a combination sentence. This is not a case where a community correction order alone, or in combination with a term of imprisonment, is warranted in order to support rehabilitation already underway, or to provide supervision and engagement with drug, alcohol, mental health or gambling services in order to adequately address the underlying causes of the offending, and so promote your rehabilitation.
55 Whilst the materials presented did provide some evidence in relation to gambling and did provide some evidence in relation to financial contributions made by your son and daughter, the other questions I had raised in relation to finances and hardship were not addressed.
56 In my view, having regard to all of those matters, the only appropriate sentence is one requiring a term of imprisonment and the fixing of a non-parole period.
57 Could you now please stand?
58 Van Dong Pham, on the two charges to which you pleaded guilty, you are convicted.
59 On Charge 1, theft you are sentenced to be imprisoned for a period of six months.
60 On charge 2, cultivation of cannabis, you are sentenced to be imprisoned for a period of two years.
61 That makes a total effective sentence of two years.
62 I direct that you serve a period of 15 months before being eligible for parole.
63 I make the disposal, compensation and forfeiture orders sought.
64 I declare pursuant to s 6AAA of the Sentencing Act that, but your pleas of guilty, I would have sentenced you to a term of imprisonment of three years and fixed a non-parole period of two years.
65 There is no pre-sentence detention is there?
66 MS MAGUIRE: No, your Honour.
67 HER HONOUR: I now declare that there is no pre-sentence detention. Any further - Ms Maguire, can I just confirm that the forfeiture order in respect to the phones is a forfeiture order only, there is no disposal order in respect of that?
68 MS MAGUIRE: No, your Honour.
69 HER HONOUR: The orders I pronounced reflect what I said I intended to do. Any other orders required?
70 MS MAGUIRE: No, your Honour.
71 HER HONOUR: Please remove Mr Pham.
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