Director of Public Prosecutions v Pham

[2017] VCC 683

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01432

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRANG THI PHAM

---

JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2017
DATE OF SENTENCE:	26 May 2017
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2017] VCC 683

REASONS FOR SENTENCE
---

Subject:  Traffick in a drug of dependence
Catchwords:  Methamphetamine – ice
Legislation Cited:
Cases Cited:   Haddara v The Queen [2016] VSCA 168 at 69
Sentence:  2 years and 10 months – 18 month non-parole period

---

APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms S. Hosking
For the Accused	Mr M. Kelly

HER HONOUR:

Charges

1Trang Thi Pham, you have pleaded guilty to two charges of trafficking in a drug of dependence.  Maximum sentence for traffic in a drug of dependence is 15 years.

Circumstances of offending

2The circumstances of your offending are that the police found you sleeping in your vehicle at about 2.50 am on 11 January 2016.  They woke you and observed a medium sized metal lockbox sitting on the child seat in the middle rear seat of the vehicle.  You told them that the box belonged to the owner of the vehicle and attempted to place it under the front driver's seat.

3When they carried out a search of the vehicle and conducted a search of your person, they found 83.5 grams of methamphetamine. 56.1 grams in a small Ziploc bag and a medium Ziploc bag in the metal box, 27.4 grams in another plastic Ziploc bag. The purity of the methamphetamine was 82 to 88 per cent.

4In addition to the methamphetamine, they also found 28.7 grams of heroin in a Ziploc bag.  The purity of heroin was 78 per cent.

5In addition, they found $102,406 in cash.  It was bundled into $100, $50 and $20 notes.  $100,600 was in the metal box and $1,806 was in a purse in the vehicle.

6You were arrested and conveyed to the police station where you were assessed by forensic medical officer as being unfit to be interviewed.  A warrant was executed at your residence but nothing incriminating was found.

7When your phone was examined, there are a number of messages in the phone which evidenced trafficking.  The aggravating circumstances of the offending are that on 4 June 2015, you were sentenced at the Dandenong Magistrates' Court to a community corrections order in relation to drug offences, driving offences and dealing with property suspected to be the proceeds of crime.  You were sentenced to a community corrections order for 12 months.  In addition, at the time of your apprehension by police, you were on bail for other matters.

Personal circumstances

8Your personal circumstances were outlined to this court by your counsel and there were further details in a psychological report from Michael Crewdson.  Also, in a sentence from His Honour Judge Coish of 1 December 2008.

9Your parents came to Australia from Vietnam as refugees and you were born here on 27 June 1984.  You have one sibling.  Your mother suffered from a major psychiatric breakdown when you were young and was removed from the home.  You grew up with your grandmother, living in the Collingwood housing commission flats.

10Apparently you were halfway through Year 11 at Melbourne Girls College when you met a Vietnamese man who became your partner.  He was a drug user and trafficker and was imprisoned in Western Australia.  You were left pregnant and on your own.  You subsequently lost the child and left school.

11You then commenced a TAFE hospitality course, but you did not finish it.  You have a limited work history, working for a short time in a security firm and doing some picking and packing for a firm called Golden Chef.

12You then established a relationship with another man who was a heroin dealer and you became addicted to heroin.  You have two children, but neither in your full time care.  Your second son, Nicholas, is five and is cared for by his paternal grandparents.  Until you were placed in custody, you played a regular role in his care by collecting him from his grandparents' home and taking him to day care.

Psychological reports

13It is apparent from the history I have just recounted and from Mr Crewdson's report that you have a history of forming relationships with drug users who have been abusive towards you.  You have been a regular user of heroin and ice.

14Mr Crewdson assessed you as having a mild degree of depression.  He said he suspected that you were a deeply unhappy person, you are essentially displaced as a mother and are unable to achieve insight into your choice of partners. You are dependent on illicit drugs.  He said there will be little change until you decide that you can make a more fulfilling life for yourself, which does not involve illegal activity.

15There was also a neuro-psychological assessment from Monash University, which concluded that your difficulties with attention and working memory may reflect some brain impairment due to drug use.

Defence submissions

16Your counsel accepted that a term of imprisonment was warranted for your offending, but a number of mitigating factors were relied upon to support a submission that there should be a lower than minimum non-parole period, and these included the utilitarian value of your early plea of guilty.  At best, in late 2015, early 2016.  At worst, 15 August 2016.

17Your remorse, which was demonstrated by your plea of guilty.  Also, your cooperation with the police when you were arrested.  The fact that your time in custody was onerous as you had no visitors.  You had not abused drugs in custody and you had returned negative results on random drug testing.  Delay, in that you were arrested and charged with these matters on 11 January 2016, but funding and other issues prevented the plea from being heard earlier.

18The principle of totality, in that you had been serving a sentence or that you have just served a sentence of almost 17 months and I will come to that again a little later.

19It was also submitted that you were utilising your time in custody constructively by undertaking drug treatment programs and educational programs.

Sentencing remarks

20In sentencing you, I have given you an appropriate discount for your early plea of guilty.  I have also taken into account all the other mitigating matters referred to by your counsel, including the delay in this matter and the principle of totality.  I accept that you are making efforts to rehabilitate while in custody.  This is illustrated by your negative drug screens and the various educational courses you have undertaken.

21However, the prosecution brought to my attention that back in 2009, when you were sentenced on two counts of trafficking by His Honour Judge Coish,
Judge Coish accepted that you had been drug free while in custody, that you had been using your time productively, and on the material before him, he still assessed your prospects of rehabilitation as being cloudy. Given that after serving the sentence he imposed on you, you have reoffended in a similar matter.  I consider that your prospects of rehabilitation are still cloudy.

22Your counsel has conceded that a term of imprisonment is appropriate.  General deterrence is an important sentencing consideration in a case such as this.

23It has been long recognised that drugs have a harmful effect upon individuals and society as a whole. One of the drugs you trafficked in was methamphetamine, commonly referred to as ice.  In the Court of Appeal decision called Haddara v The Queen,[1] the court said this:

"It seems to us that it has become a matter of common knowledge that trafficking in ice is not only prevalent, but that its prevalence has increased.  Prevalence of the offence of trafficking in methamphetamine is thus a proper matter for the sentencing court to take into account when assessing the weight to be given to general deterrence."

[1] [2016] VSCA 168 at 69

24Given that you have five priors for trafficking drugs, specific deterrence is also an important sentencing consideration in this case.

25In so far as totality is concerned, I have taken into account that on 21 February 2016, you were sentenced in the Magistrates' Court to 12 months' imprisonment on other matters.  On appeal, you received a non-parole period of six months, but as you were on remand for these matters, you were not paroled.  This means that you have been in custody for nearly 17 months, of which 137 days is pre-sentence detention for the offences I am sentencing you on.  I have taken these matters into account.

Sentence

26Would you please stand up?

27On the first count of trafficking methamphetamine, you are sentenced to two years and six months.

28On the second count of trafficking, you are sentenced to 12 months.

29I cumulate four months of the second sentence on the first sentence.  This means that your sentence is two years and ten months.  I fix a non-parole period of 18 months.

30But for your plea of guilty, you would have been serving four years with a non-parole period of two years and six months.

31You can sit down.

32Is there anything arising from the sentence.

33COUNSEL:  No, Your Honour.

34HER HONOUR:  There was a disposal order.

35MS HOSKING:  Yes, Your Honour.

36HER HONOUR:  And I grant a disposal order in relation to the drugs.  Ms Pham, would you please stand up again.  PSD is 137 days and will be declared as already served.  You are now at 30, is it?  30 years old.

37OFFENDER:  32.

38HER HONOUR:  32.  You know, you must realise that this is your last chance at 32 years old.  The rest of your life can be spent in gaol with no contact with your children, with relationships with men who are, to use Donald Trump's word, excuse me for doing it, "total losers", who are taking drugs and who are abusing you.  That is the rest of your life.  Do you sit there in gaol and think that is the rest of your life, because that is what it is.  The rest of your life is going to be absolutely horrible unless you do something about your problems.

39And at 32, you have already let so much of your life go by.  Wasted it.  Thrown it away.  Do you understand that?  Why did your parents come from Vietnam?  For a better life for their children.  What have you done with that opportunity?  You have thrown it away.  You have time to sit down and think about that.  You have to do something about it.  It is just a complete waste if you do not.  You have two kids.  All right.  Take her down.

‑ ‑ ‑