Director of Public Prosecutions v Pham

[2018] VCC 678

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00639

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAI PHAM

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2018
DATE OF SENTENCE:	14 May 2018
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2018] VCC 678

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodenough	Office of Public Prosecutions
For the Accused	Ms F. Holmes	Valos Black

HIS HONOUR:

1Once again, this court is required to impose sentence for the crime of cultivation of a commercial quantity of cannabis.  Again, the cultivation occurred in an ordinary suburban house.  Once again, the accused before the court, is at the lowest end of the entrepreneurial criminals engaged in this prevalent crime.  Given this crime has become prevalent, I have spoken in similar terms in many of the sentences I have imposed.  The Court of Appeal have endorsed those words, and accordingly I turn to them yet again.

2On 13 September 2017 police found you, Dai Won Pham, at 1 Wild Oak Avenue, in the new suburb of Armstrong Creek.  Within the house were 107 cannabis plants under hydroponic cultivation in six rooms, each with false walls to, effectively, block the windows.  The weight of the plants was
34.51 kilograms.

3The cultivation methods deployed here were sophisticated.  The lighting that had been installed was such as to allow the plants to be grown in doors.  The power had been bypassed to allow for higher volumes of electricity to be consumed without detection, and importantly without cost.  There were a number of pieces of equipment to assist in the cultivation.  They were all expensive items, indicating there had been significant resources expended, on the basis that large quantities of cannabis would cultivated for profit.  In this case, the plants were heading towards harvest for the purposes of profit, but I note their size at the time.

4All the features found at this house are often found in suburban or country houses that have been converted into cannabis production operations.  The crime is hard to detect, and even harder to establish who are the main players in the cannabis production and distribution chain.

5Before dealing with your crime, it should never be forgotten that the cannabis grown by cultivators ultimately has serious effects on many users, and our community bears a great cost, while the entrepreneurial cannabis cultivators profit significantly.  The entrepreneurial cultivators have for some times sought to avoid their own detection by having vulnerable individuals mine the crops.

6These 'crop sitters' as they have become known ensure that the equipment continues to operates.  They also provide, we have seen from time to time, a degree of security for the crop.  Most importantly, they keep the entrepreneurs at arm's length from the crop, while it grows to a saleable product.

7You are charged with cultivating not less than a commercial quantity over a three month period.  The prosecution says that you are at the lowest end of this operation.  Accordingly, I will deal with you as a crop sitter, and you will be sentenced as such.  I will deal with how you became involved in this offending, when you mentioning matters relating to your personal circumstances.

8But the Court of Appeal has in recent times made it clear that general deterrence is of great significance, in respect to all those involved in these drug operations, including those who take it upon themselves to be crop sitters. 

9You, Mr Pham, are now 30 years old, you were born and raised in the north of Vietnam, you were educated to a tertiary level.  Thereafter, you worked as a mechanical engineer, fully qualified in that profession, and it seems you worked in that maritime oil industry.  You were concerned at the income that you earnt and so you came upon a plan to come to Australia to further your education by gaining a master degree in mechanical engineering or in engineering.  You sought out assistance in this regard and came as an enrolled student, with a student visa, in December 2013.

10You took up studies at the Swinburne University, you commenced your necessary year in English training.  However, you quickly discovered that the fees for the course were high and your finances were such that you were finding it difficult and you transferred to a TAFE course with lower fees and completed that course.  However, you were unable to transfer back to the Swinburne University.

11You remained in Australia working as a farm labourer in Werribee for a couple of years.  You then were not able to continue in that job as the work had run out.  You were unemployed for five months and became indebted or behind in your rent.  You were also working in a restaurant in Sunshine at the time.  A wealthy dinner came to know of your financial difficulties and indicated to you he would lend you money.  Ultimately, the arrangement was that you would do a job for him to pay off part of that loan.  The amount you were told was $900 per week, which was to be deducted from your debt.  Which was at that point, I was told, 5,000.  You were told that you would be required to do about an hour's work a day.

12I do note, however, against this, what was found at the house was sleeping arrangements and your toothbrush, which would indicate that you stayed from time-to-time overnight.  In any event, it is not put that you did anything other than attend the plants and in your record of interview you said this was for two weeks.  You received no money during this period of time, nor, it would seem, any deduction from your debt, which has disappeared by reason of your arrest.

13You are someone who has parents working as farmers in Vietnam and a brother who has a professional job following tertiary education, as well, in Vietnam.  You were isolated from them and your parents are worried sick about them.

14You are ashamed that it has come to this, that you are in gaol in Australia, when you came here for the purposes of gaining a better education so you could advance yourself in Vietnam or here in Australia.  It would seem that your parents who had a modest life, it would seem, as farmers in north Vietnam gave priority to their children gaining education.  This weighs heavily on you as you are in prison, that you have let them down by what you got yourself into.

15You have indicated just through your counsel that you are remorseful for what you did, you wish to get back to Vietnam as you have revealed to your counsel, through the interpreter, that you in fact have a partner in Vietnam.  On a trip back to Vietnam she fell pregnant and now has a four month child; that is your child and her child in Vietnam.

16As a person who came to this country to study and then became involved in serious crime, unsurprisingly you are now isolated from your family as you are held here in prison.  I do not ignore this hardship in fixing a sentence.  Also, you require an interpreter here in court and I take into account that language problems make prison harder for you.

17You have no prior criminal offending and at 30 years old that is a matter to your credit, and I have taken it into account in fixing the sentence.

18Your rehabilitation will depend on you taking up family responsibilities when you return to Vietnam.  It is hoped that you do return to the law abiding ways once you return back to that country.

19You pleaded guilty at an early point and I have taken that into account in your favour.  Your sentence will be much less than it otherwise would have been had you pleaded not guilty and been found guilty of it.

20My sentence must express denunciation and deterrence in a practical way.  That was conceded, in effect, by your barrister by reason of an indication that there needed to be a sentence of imprisonment with a, as it were, minimum term fixed.  All that was implicit, as I understood it, in the plea.

21I have taken into account all the matters that have been put to me.  In particular, your limited role in the offending and that you have expressed the remorse that you have.

22Can you please stand.

23For committing the crime of cultivation of a commercial quantity of cannabis, you are sentenced to 20 months' imprisonment and I fix a minimum non-parole period of 12 months.  You have already served 243 days in custody.  This figure of time in prison having been reckoned I declare that it is part of the sentence that I have just imposed.  I will make sure the declaration is entered into the records of the court, so the authorities are left in no doubt that you have already served 243 days of the sentence that I have just imposed.

24There is also an application for forfeiture of the equipment, and I will sign that forfeiture order.

25Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of three years, with a minimum term of two years.

26Is there anything else required?

27MS HOLMES:  No, Your Honour.

28HIS HONOUR:  The disposal order will be signed later, Ms Holmes.  So there's no need for you, or he, to remain for any of that, is there?

29MS HOLMES:  I appreciate that, thank you very much, Your Honour.

30HIS HONOUR:  Madam interpreter, thank you for your assistance.  I'm sorry my sentence just went on without breaks, but Ms Holmes may need some time now.  If you could assist, we'd be grateful to you.

31INTERPRETER:  Thank you, Your Honour.

32HIS HONOUR:  Thank you.  Mr Pham can be taken to the cells, and I'll just remain on the Bench while that occurs.

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