Director of Public Prosecutions v Pham

[2016] VCC 709

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02144

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAI PHAM

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2016
DATE OF SENTENCE:	25 May 2016
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2016] VCC 709

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher	Office of Public Prosecutions
For the Accused	Ms K. Churchill	Emma Turnbull Lawyers

HIS HONOUR:

1Mr Pham, you have pleaded guilty to one count of cultivating a narcotic plant, being of a commercial quantity.  You have heard the learned Crown prosecutor Mr Fisher tell this court that the maximum sentence for this offence of cultivating a narcotic plant, being a commercial quantity, that attaches to the weight and numbers of plants, is that of 25 years' imprisonment.  That sentence should indicate to you and to the community at large that judged by the maximum sentence, this is a very serious offence. 

2For having pleaded guilty, I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty. 

3Mr Pham, you arrived in Australia on a student visa to further your studies.  When you arrived in Australia you were aged 27 years, and according to my arithmetic, you are now aged 29.  You completed your primary and secondary education in Vietnam.  After you left school you attended the University of Dilad, in Vietnam, of course, for a period of four years.  You obtained a degree in biotechnology, completing your degree in August of 2010.  Upon graduating, you worked in a pharmaceutical laboratory from 2011 until 2013. 

4As I have just mentioned, you arrived in Australia on a student visa, when you then enrolled at the Royal Melbourne Institute of Technology, I think it is now called Victoria University, studying for a master's degree in biotechnology. 
Mr Fisher, the prosecutor, informs this court that enquiries made at Royal Melbourne Tech reveals that your enrolment was cancelled in June of 2014, as you had not attended class since April of 2014.  Unhappily as it emerges for you, your mother became unwell in April of 2014, thus this lady unfortunately was unable to pay for your tuition fees.

5You found yourself having to support yourself, and for some time you worked as a cherry-picker in the orchards, before meeting up with persons who were involved with a person I infer to be the mastermind and major criminal behind all of this activity, being a gentleman called "Tieng".  You ultimately became embroiled in criminality as a result of what Tieng had organised and set up, again I am inferring that, but I am sure I am close to the mark.  All too often, the Tiengs of the world are like the Phantom, they disappear and cannot be found when the action starts.

6This individual Tieng had set up at 9 Stratus Court, Hampton Park.  That house was set up, within of course, to cultivate marijuana.  When 9 Stratus Court was raided by investigating police officers, they found a sophisticated hydroponic cannabis setup, which unfortunately is becoming very common from my observation in this court.  The police officers found 324 cannabis plants, many of which were at different stages of maturity, ranging from small seedlings to fully-mature plants. 

7The total weight of these plants, weighed when all put together, 105 kilograms.  Like I said earlier, that weight, and together with all of those plants put together, constitute under the legislation what we know as a "commercial quantity" of that drug.  An electrical bypass was located at this house, in itself from my observations, mostly from pictures of course, those bypass are very sophisticated in themselves, and by bypassing the meter, power is obtained without that power being recorded by the electric provider, which at the end of the day means that electricity is being stolen from the provider.  You are not charged with that offence.

8It is conceded by the prosecution that you were not involved in setting up this system of drug cultivation at 9 Stratus Court.  Mr Pham, it was on 7 May 2015, about 12 months ago, that the investigating police officers that I spoke of a few moments ago observed a 2008 white Toyota Camry, the register number of which was IEK 2NU, parked in the driveway of 9 Stratus Court.  The police officers kept the premises under surveillance, and they observed that premises for a little over two hours on that day.  Mr Pham, you were then seen to drive that Toyota out of the driveway.  You had one passenger in this vehicle, I understand her to have been your girlfriend and a co-accused in this matter. 

9Your vehicle was intercepted, your details were collected, as too were the details of your passenger, and the vehicle was then searched.  There was soil discovered in the boot of the vehicle, and a strong smell of cannabis emanated from the vehicle.  Shortly thereafter, you were arrested and taken to the police station. 

10Returning to, as you recall, in addition to being charged with one count of cultivating a commercial quantity of a drug of dependence, you are also charged with one summary offence.  That summary offence being driving whilst your licence was cancelled or suspended.  Returning to that summary offence, you had lost your licence for what is commonly called "drink driving".  In addition to a fine that was imposed for that offence, as I just mentioned, your licence was cancelled, and you were disqualified from obtaining any licence to drive any motor vehicle in this state for a period of ten months. 

11Identifying times and dates, which is of use, your licence disqualification was on 31 January 2015.  It was five months later, halfway through your disqualification period, that you were discovered driving this Toyota whilst disqualified, and you plead guilty to that offence. 

12When interviewed, you chose to make a no-comment record of interview, which of course is your right.  I will guarantee I infer again that Tieng well-instructed you to say nothing, and you did say nothing.  But that is your right. 

13Among other investigations conducted by the investigating policeman, they discovered DNA evidence at 9 Stratus Court, Hampton Park.  That DNA was identified as coming from yourself, thus there was incriminating evidence positively placing you at 9 Stratus Court, wherein this crop was grown. 

14Mr Pham, you have been in custody since being arrested on 7 May last year.  I assure you, I have taken into account all that has been said on your behalf by Ms Churchill, your barrister.  I take into account your early plea of guilty.  Your plea is indicative of your remorse.  Since you have been in custody at the Melbourne Remand Centre since May of last year, you encountered the lockdown conditions because of the riot that occurred at the Remand Centre.  Your counsel advises that it is only now, as of when we were last together,
20 May 2016, that the comfort of those detained at that centre is now 12 hours out and 12 hours in, being 12 hours in the cells, and 12 hours out of the cells.  But up until that time it was different, and I will speak of that for the record.

15I assure you that this court is very much aware of the added stress encountered by prisoners when they are only allowed out of their cell for one hour per day in each 24 hours.  In fairness, Ms Churchill concedes the one hour was moved out to two hours and then progressively to three hours, and now of course, it is 12 hours in and 12 hours out.  But those confined conditions over that period of time is taken into account by the court because you were confined for 22 and 24, 23, 21 and 24, and so on. 

16I also take that circumstance into account in arriving at a suitable penalty.  I further take into account your relatively isolated state.  I am somewhat cynical about your capacity to speak English, I will tell you why.  You had enough English to go to school here, but still your English may be limited and therefore communication with other prisoners may have been less than otherwise.  I do not quite know how that balances with going to school, but there is the fact. 

17One thing that is a fact, you are isolated from your family, you have had no visitors, all your family are in Vietnam.  That must be tough, because you do not have any visitation rights that all prisoners have, but no visitors because of that isolation.  Would you stand up please?

18I think I should mention this just in passing, although it is probably of little consequence to you because we know what is going to happen in the future.  But courts are supposed to take into account the prospect of rehabilitation of any person who is in custody in terms of what will happen when they get out, so that they can be useful and good citizens.  As you know, and you understand, and I believe concede, that you will be deported to your homeland very soon after being released from custody at the Melbourne Remand Centre, or wherever you may be held at that time of release.

19So as to your rehabilitation, it is hard for me to assume what might happen to you when you are released from prison in this country, I think obviously nothing, you will simply be deported.  I do hope that you can return to your biotechnology qualifications and capacities on your return home.

20On the count of trafficking, you will be convicted and sentenced to be imprisoned for a period of 400 days.  For the summary offence of driving while disqualified, you are convicted and sentenced to 30 days' imprisonment.  That 30 days is to be served concurrently with the 400 days imposed on the count of trafficking a commercial quantity.

21Pursuant to s.18 of the Sentencing Act, you are to be given credit for having served ‑ ‑ ‑

22MR FISHER:  We made a mistake.

23HIS HONOUR:  It is 384.

24MS CHURCHILL:  Yes.

25MR FISHER:  It is 384.

26HIS HONOUR:  That is what I got to.

27MR FISHER:  That is probably why we are barristers and not mathematicians. 

28HIS HONOUR:  Well I crossed out the 384.

29MR FISHER:  I am sorry, Your Honour.

30HIS HONOUR: Pursuant to s.18 of the Sentencing Act as I have just said, you are to be given credit for having served 384 of imprisonment.  Now, whilst I am not bound to say this, I am going to, so it may be of help to you, but please discuss it with Ms Churchill if you wish.  That means you have only got 16 days to go, and you will then be released from the prison system, but you may still be detained for the purposes of deportation, but that will not be in the prison - as I understand it, that will be elsewhere.  Ms Churchill will discuss that with you if you need that to be explained.

31MS CHURCHILL:  Yes, Your Honour.

32HIS HONOUR:  Out of my element, but I am assuming that. 

33MS CHURCHILL:  That is right.

34HIS HONOUR:  But I am reassuring you, so you know what is happening.  I am also bound to mention that was it not for your plea of guilty, I believe I would have imposed a penalty of 30 months' imprisonment with a minimum of 24 months.  Are there any other ancillary orders sought, Mr Fisher, you mentioned that DNA was taken, that is all attended to, no 464?

35MR FISHER:  No.

36HIS HONOUR:  No forfeiture orders.

37MR FISHER:  No, Your Honour.

38HIS HONOUR:  Thank you.  Do not take him away for a moment, Ms Churchill can have a quick word with him.

39MS CHURCHILL:  Thank you, Your Honour.

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