Director of Public Prosecutions v Pham

[2019] VCC 458

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02298

DIRECTOR OF PUBLIC PROSECUTIONS

v

CONG PHAM

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 April 2019
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2019] VCC 458

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Sargent
For the Accused	Mr P. Casey

HIS HONOUR: 

1Cong Khanh Pham, you have pleaded guilty that on 10 July 2018 you cultivated a commercial quantity of cannabis.  The maximum penalty for this offence is 25 years' imprisonment.  The prosecution tendered a summary prosecution opening on the plea as Exhibit A.  A brief summary of your offending is as follows.

2On 10 July 2018 at 7.31pm police executed a search warrant at 5 Rickson Place, Vermont.  Police were alerted to a possible electrical bypass at that property some months before.  Their investigation showed that it had been rented since February 2018 for a local Chinese rental website to an undoubtedly fictitious person, Innu D. Wang.

3When police attended on that date your car was parked on the front lawn of the property.  You answered the door when police knocked.  When they entered the police noted the strong smell of cannabis.  Thereafter they found your clothing, toiletry items, a mattress and a few personal belongings inside a bedroom with an en suite.  Beyond that police found in four rooms of the house a hydroponic set-up with an electrical bypass that was being used to grow cannabis plants at the property.  A total of 195 cannabis plants weighing a total of 83.87 kilograms were removed from the property.

4When police searched through the property they found the hydroponic set-up involved plants growing under light shades with globes, exhaust fans and growing aids. The photographs of the electrical bypass system showed the sophisticated nature of this set-up.  When you were interviewed by police in a record of interview conducted after midnight on the night of your arrest you admitted to owning the suitcase and to having arrived at the property to stay overnight, but you otherwise denied knowledge of or participation in the hydroponic operation at the house. 

5You were remanded in custody after your arrest.  You have now spent 267 days in pre-sentence detention excluding today's date.  You pleaded guilty at the committal mention.  I accept this plea was entered at the earliest time.  I turn to your personal circumstances.

6You are now 23 years of age and you were born in 1995.  You were 22 years of age at the time of the offending.  You were born in a village near Hanoi and you are the eldest of three siblings.  You have a younger sister who is a medical student and a much younger brother aged six.  Your brother is seriously ill with kidney problems and has been hospitalised for approximately the last three weeks so far as you know.  Your mother works as a secondary school teacher.  Your father has worked for local government in farming but recently suffered a stroke and is presently also in hospital.  I accept that your brother's condition and your father's recent hospitalisation cause you distress whilst you are in custody. 

7You came to Australia on a student visa in 2013.  You studied briefly at Deakin University and then moved to a TAFE to continue business studies, but you did not complete your studies.  Your parents supported you financially until 2015; thereafter you worked in various jobs.  Your student visa expired in February 2017 and you remained in Australia illegally after that date.  After you finished with studies you undertook farm work at a chicken factory until you suffered a hand injury in October 2016.  You then worked in a job packing items until March 2017.  You have been unemployed since that time and I am not quite sure by what means you have maintained body and soul or what you did for accommodation from March 2017.

8It is clear, however, that at the time of your offending you had been out of work for quite some time.  You had also developed a considerable gambling problem.  You told your counsel that you were recruited by a man at a pokies venue to tend the crop for four weeks at $600 per week.  You had received no money as at the date of your arrest.  It was the first day and, the evidence suggests, the first half hour of your employment. 

9You referred to a girlfriend in your record of interview, but I was told that you presently have no friends or support in Australia except for a friend of your mother's.  That friend has provided some support to you since you have been in custody and has provided you with a very limited amount of money.  It appears that you have been able to speak to your mother directly by telephone but only on two or three occasions in the last nearly nine months.

10It was submitted by your counsel Mr Casey that your sentence should be mitigated in light of the following:  first, your early plea of guilty; second, the fact that your involvement is limited to offending on the one day; third, your low role, as it is not alleged that you had a financial interest in the crop; fourth, that you have no prior convictions; fifth, your young age; sixth, that you do have prospects for rehabilitation; seventh; the fact that your time in prison has been more burdensome due to your relative isolation in custody, your lack of family support and your limited English skills; and, eighth, you feel the burden of your prospect of deportation to Vietnam at the time of your sentence.  It was also submitted by Mr Casey that your role should be seen as that of crop sitter.

11The courts have recognised that there are two relevant clusters of cases involving the commercial cultivation of a drug of dependence.  In the first cluster of cases where offenders were crop sitters or played an ancillary role there is typically involvement for only short period of offending.  The offenders were often youthful with less likelihood of previous criminality.  In those cases the offenders did not hold a proprietary or high financial interest in the crop outcome. 

12In this case there is no evidence that you performed any role in the leasing of the premises or in the maintenance of the premises, the ownership of the hydroponic or electrical equipment at the premises or that you played a role in the bypass of the electricity meter or that you had in any other way financed the growing of the crop.  In fact the only evidence is of your presence at the crop site on the date charged.

13Of course after receiving the submissions of Mr Casey the only conclusion I can reach is that you were to be paid for the work of sitting or tending the crop.  If you had not received any money, and it appears likely that you had not, then you expected financial reward for your position in tending that crop or sitting on that crop.  For that I say as follows:  those who participate in the cultivation of commercial crops of cannabis for financial reward must expect to receive substantial terms of imprisonment. 

14The number of plants found at the house, being 195, the quantity or marijuana recovered, being over 83 kilograms, and the sophistication of the set-up for growing the drug speaks of the profits expected from such a venture.  You willingly played your role in that venture in the expectation of reward.  Your conduct must be met through the principles of general deterrence, denunciation and just punishment. 

15But for your plea of guilty there is no particular evidence of remorse.  The denials made by you to the police of your involvement in the participation are contradicted by your plea of guilty and the fingerprint found on the lampshade.  Your plea of guilty does, however, have utilitarian benefit.  Your plea has saved the resources required to run a trial.  In this way there is a real saving to the community.  I am prepared to find that your plea has facilitated the course of justice and that it should be used to mitigate your sentence.

16I have no doubt that your time in custody is made more difficult by your lack of English skills and the lack of family support.  Further, in the absence of prior convictions, it is to be hoped that this matter will stand as an isolated incident in your life.  In the circumstances, although I have relatively little information about you, it must be hoped that your prospects for rehabilitation are good and that your ambitions to one day rejoin your family and to commence an apprenticeship or trade as an electrician are also made good.

17I take into account your relative youth.  You are still young enough that I consider that the community, whether it be here in Australia, although that seems unlikely, or back in Vietnam, will benefit far more if you are given the opportunity to rehabilitate.  Whilst I appreciate that you may not have the opportunity to serve a period of parole in Australia, I have no doubt that the time you have spent in an adult prison at such a young age, this being your first time in custody, has been very difficult indeed.

18In my view the prospect of your deportation to Vietnam is of some, albeit limited, value in mitigating your sentence.  It appears that you feel deeply the lost opportunity to study and reside in Australia and the opportunities or potential that flows from that. 

19On the charge of cultivating a commercial quantity of cannabis on 10 July 2018 you are convicted and sentenced to a period of 18 months' imprisonment.  I order that you serve a non-parole period of 13 months' imprisonment before you are eligible for release.  I declare the period of 267 days pre-sentence detention as already served.  I have already made the forfeiture order and I note that the DNA sample is to be retained.  But for your plea of guilty I would have imposed a term of three years and three months' imprisonment with a non-parole period of two years and two months.

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