Director of Public Prosecutions v Pham

[2017] VCC 480

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-00692

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAN PHAM

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April 2017
DATE OF SENTENCE:	24 April 2017
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2017] VCC 480

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Andrews	Office of Public Prosecutions
For the Accused	Ms O. Trumble

HIS HONOUR: 

1Dan Pham, you have pleaded guilty to one charge of cultivation of a narcotic plant in not less than a commercial quantity.  That carries a maximum penalty of 25 years' imprisonment.

2You are now 31 years of age.  You pleaded guilty at a reasonably early opportunity and you must get the utilitarian benefit of that plea.  I will accept in your situation there is probably an element of remorse and I again give you the benefit of the doubt for that.  As is so often the case in these matters - it is not always the case - you have no prior convictions and are here from Vietnam on a visa which has now either been expired or cancelled.  I take those matters into account on your behalf.  As I have mentioned, you are still only 31 years of age.

3The offending occurred in what is known as a "grow house" in Traralgon.  We do not have to go through all the detail, the Crown opening has been tendered.  In any event, on 28 July 2016 that grow house was raided by police.  In it was a sophisticated hydroponic set-up.  Clearly, you had a significant role in that, but as your counsel has quite properly pointed out, it would have been very difficult for the Crown to prove your involvement for any more than a couple of days.  The period of time over which the charge that you have pleaded to has been laid is around about 12 weeks and I do take that into account.

4The house had clearly been set up for growing purposes.  There had clearly been one crop already harvested, although I cannot hold you responsible for that.  What police did find was 107 plants and some cannabis had already been harvested, as I understand it, with a total weight of 80.41 kg.

5In a situation such as this, you will certainly be deported.  You came to Australia, I accept, with high hopes, to get a Master's in business, and that has now been totally jeopardised and I have no doubt that you will be, as I have said, deported, either at the end of the non-parole period that I set or certainly at the end of the head sentence.

6This calls for the application of general deterrence.  In your situation, I think specific deterrence is not necessary.  It calls for denunciation and appropriate punishment.  You have no priors so the risk of you reoffending in this country was going to be zero.  The prospects of your rehabilitation are going to be up to yourself; whether your family in Vietnam accept you when you get back, I have no idea.  It sometimes does not work that way.

7In any event, you came out here to do, as I said, a Master's in business.  You enrolled at Griffith University in Queensland.  You have two small children, one of whom you have never met, back in Vietnam from whence you came in July of 2014, and you had a spouse here.  That obviously will not be going anywhere from this point on.

8You became involved in all this, my anticipation would be, because of debt and almost certainly gambling, and this is where you now find yourself.  I accept from the Bar table that your mother is very ill in Vietnam with a form of throat cancer and it is somewhat problematic as to whether you will be able to get home in time to see her before she dies.

9Taking all those matters into account, there is in fact a bit of a ruling rate for these matters.  The situation is that this use of grow houses in country towns seems to be escalating, and I must find out one day what the success rate of them is, but they seem to have a history of failure from what I have seen.

10In any event, taking all those matters into account, on the charge of cultivate not less than a commercial quantity you are sentenced to be imprisoned for a period of 26 months.  I direct that you serve a minimum term of 13 months before becoming eligible for parole.  I direct that 270 days be reckoned as having been served under this sentence and under s.6AAA, three with a two, having given it anxious consideration.

11Nothing else we need?  The other orders are made?

12MS ANDREWS:  Thank you, Your Honour.

13HIS HONOUR:  The 464 will be automatic, they will have taken one?

14MS ANDREWS:  Yes, Your Honour, it's automatic retention.

15HIS HONOUR:  All right.  You can take him now, thank you - unless you wish to speak to him?

16MS TRUMBLE:  Just one second.  Thank you, Your Honour.

17HIS HONOUR:  Yes, thank you.

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