Director of Public Prosecutions v Pham

[2016] VCC 1117

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00263

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN PHAM

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2016
DATE OF SENTENCE:	5 August 2016
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2016] VCC 1117

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	Ms M. Mahady	Office of Public Prosecutions
For the Accused	Mr R. Thyssen	Victoria Legal Aid

Pages 1 - 4

 

 

HIS HONOUR: 

1Van Pham, around 10 November 2015, police commenced an investigation into potential cultivation of cannabis, 120 Hay Street, Shepparton.  Over the next ten days or so, you were seen in and around those premises.

2On 23 November 2015, you were seen to drive your car from the driveway and you were intercepted a short distance from that residence.  On your arrest, police located a set of house keys, a mobile phone and a material facial mask in your pocket.

3A search warrant was obtained and a search of the premises indicated the entire house had been dedicated to growing cannabis.  There were a total of 136 cannabis plants growing in four rooms, another five rooms having various pieces of equipment used in cannabis production.  The total weight of the plants was 27.479 kilograms.

4The cultivation methods were sophisticated.  The lighting that was installed was such as to allow the cannabis plants to be grown successfully indoors.  Power had been bypassed to allow for higher volumes of electricity to be consumed without detection or cost.  There were filters, timers for watering and lighting and pulley systems for the lighting.

5These were all expensive items, indicating that there were significant resources dedicated to the growing of large quantities of cannabis for profit.

6Given the considerable efforts and expenses setting up this indoor horticultural enterprise, the plants that were grown were strong and healthy.  Photographs tendered on this plea reveal this.  The yield of usable drugs was likely to be very high.  There were plants at various stages of growth, indicating the harvest would be planned to be regular, in the form of a crop rotation system, which would allow for ongoing cash flow.

7All the features found this house were common with suburban houses that have been converted into cannabis production houses.  The crime is hard to detect, and even harder to establish who are the main players in the cannabis production and distribution chains.

8The product grown by the cultivators has serious effects on many cannabis users.  Thus, the community bears a great cost as entrepreneurial cannabis cultivators continue to profit significantly.

9The prosecution say that cannot establish that you were anything more than someone tending to the crop.  You told your barrister you met someone on the street who recruited you to look after the crop.  You say you were in debt due to gambling.  There is no evidence of any of this, but in the end, given what the prosecution concede, you will be sentenced as a crop-sitter.

10You are now 54.  Your family suffered significantly during the Vietnam War, with both your parents dying and your siblings being born with deformities.  Your education was very basic.  You worked as a farm labourer until 2008, when you came to Australia on a tourist visa.

11You have worked as a farm labourer in Australia.  You support your siblings in Vietnam, so I am told.  You have been married and divorced while in Australia.

12It was said you accumulated gambling debts, as I have mentioned, and it seems as a means of repaying that debt you were offered money to look after his crop in Shepparton.  You had at that point been living in Melbourne.  You say the house was set up when you arrived, and you remained there until your arrest.

13You have no prior convictions, and that is a matter I take into account.  Also, your early plea of guilty means that your sentence will be significantly less than it otherwise would have been.

14The crime of cultivating cannabis in a commercial quantity is punishable by a maximum term of 25 years' imprisonment.  Deterrence is of primary importance, given the prevalence of this offence.  The deterrence must be to all involved in this organised cannabis cultivation, including those who are minded to crop-sit.  That said, I do not overstate your level of involvement.

15Also important is denunciation of your crimes.  That is, you became involved in criminal activity which has a detrimental effect on many in this community, and thus you must face the consequences.  The only appropriate sentence is one of imprisonment.

16I have taken into account you will do prison harder, give your significant difficulties with the English language.  By operation of the Migration Act, you are likely to be deported upon the completion of your sentence.  However, you are keen to return to Vietnam to look after your siblings.

17For cultivating cannabis in not less than a commercial quantity, you are sentenced to a term of imprisonment of 27 months.

18I fix a minimum period before you are eligible for parole at 18 months.

19You have already served 256 days in prison on remand.  Those days having been reckoned, I now declare that those days are part of the sentence that I have just imposed.  I will ensure this declaration is entered in the records of the court, so the prison authorities are left in no doubt you have already served 256 days of your sentence.

20Pursuant to s.6AAA of the Sentencing Act, had you pleaded not guilty and been found guilty of the offences, I would have imposed a sentence of 40 months with a minimum of 30 months.

21There are a number of orders sought by the Crown.  I intend to grant them all, including an order that you provide a forensic sample.  That will be a scraping of your mouth.  When the authorities come to get that scraping from your mouth in order that your DNA can be put on a database, they are authorities to use reasonable force to get that sample if you do not cooperate.

22The reason that I am granting the order relating to the forensic sample is because of the seriousness of the crimes, and the granting of the order is in the public interest.

23Is there anything else?

24MR THYSSEN:  No, Your Honour.

25MS MAHADY:  As Your Honour pleases.

26HIS HONOUR:  There being nothing else, I thank counsel for their assistance.  Ms Mahady, you are now excused.

27MS MAHADY:  Thank you, Your Honour.

28HIS HONOUR:  Mr Thyssen, we will take a break.  Thank you, Madam Interpreter, if you are required next, see you soon.  Mr Pham can be taken downstairs.  We will stand down.

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