Director of Public Prosecutions v Pham

[2016] VCC 554

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-16-00625

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHU PHAM

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JUDGE:	His Honour Judge Smith
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2016
DATE OF SENTENCE:	29 April 2016
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2016] VCC 554

REASONS FOR SENTENCE
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Subject:  Criminal law - sentence
Catchwords:             Cultivate narcotic plant
Legislation cited:      Drugs, Poisons and Controlled Substances Act1981

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Mahady	Solicitor for the Office of Public Prosecutions
For the Accused	Mr M. Goldberg	Stary Norton Halphen

HIS HONOUR:

1Phu Xuan Pham, you pleaded guilty to one charge of cultivation of a narcotic plant, namely Cannabis L, contrary to s.72B of the Drugs, Poisons and Controlled Substances Act1981. 

2The circumstances of your offending are as follows.  On 27 August 2015, police executed a search warrant at the premises at 46 Collenso Street, Sunshine West.  Having obtained a forced entry to those premises, you and two others were seen running towards the rear of the premises.  You were taken into custody.

3In six rooms of the premises, police found a sophisticated hydroponic setup consisting of light shades, globes, wiring, electrical transformers, charcoal filters, pots of soil and a watering system used to cultivate cannabis.  A total of 134 cannabis plants were located.  An electrical bypass system was in place.  You were arrested at that time.

4You were remanded in custody on that date and have remained in custody since.

5By way of background, you are aged 23.  You were born in Vietnam.  You completed high school there.  You attended a trade school there for some time. 

HIS HONOUR:  I have just one query.  He arrived in Australia in 2013?

MR GOLDBERG:  Yes, Your Honour.

HIS HONOUR:  Yes. 

6In 2013, your parents assisted you to travel to Australia.  You obtained a tourist visa.  It was your intention, as I understand it, to complete a pre-apprenticeship course in Sydney before seeking an apprenticeship.  You did not complete the course, as it was apparently unsuitable for non-English speakers.  You worked for a time in a butcher's shop and later on farms, picking fruit for some nine months. 

7You moved to Melbourne, seeking other opportunities.  You stayed with friends for a few weeks.  Soon after, you met a man named Tien Nguyen who encouraged you to visit and stay with him at the premises at 46 Collenso Street, Sunshine West.  You arrived there on 26 August 2015.  You soon were well aware the house was a crop house where cannabis was being cultivated.  I accept that you were not aware as to the quantity being cultivated.  Early the following morning, police entered the premises and arrested you and the other two occupants. 

8The purposes for which the court may impose a sentence in respect of an offence include a number of matters, including the denunciation of your offending conduct, to deter the offender and others in the community from committing similar such offences in the future and also includes the protection of the community. 

9I am required to have regard to a number of matters, including the seriousness of your offences, your culpability for them and your personal circumstances. I have taken into account each of the matters set out in s.5(2) of the Sentencing Act 1991. 

10I consider that the offence for which you are before this court is a serious one.  Your plea of guilty indicates that you did play a role in the cultivation process, although only for a period of less than 24 hours.  Your intention was probably to stay longer, but the police raid interfered.

11Your counsel submitted, and I accept, that there are a number of mitigating factors relating to your sentence.  Firstly, your early plea of guilty.  Such plea is demonstrative of some remorse on your part.  In addition, your plea has utilitarian benefit in that witnesses will not be attending to give evidence at a trial. 

12You have also been in custody since 27 August, a little over eight months.  As a consequence of various events occurring at the Metropolitan Remand Centre, prior to you going there or soon after, you have generally been restricted to your cell for some 21 and even 23 hours per day.  I accept that this has made your incarceration to date more onerous that it would otherwise have been. 

13You have no prior convictions and you are to be sentenced as a person who has previously been of good character. 

14Finally, your role in this offending cannot be assessed as going beyond that of a crop sitter.  There is no suggestion that you were involved in any of the entrepreneurial aspects of the operation or the design or installation of any of the equipment found there. 

15The two persons arrested with you, Tien Nguyen and Hien Nguyen, were recently sentenced by me.  They pleaded guilty to the more serious charge of cultivating a commercial quantity of cannabis.  In your case, the prosecution concedes there was no evidence that you were aware of the quantity of the crop involved, hence the difference in the nature of the charge against you.

16Yes, stand up please, Mr Pham. Taking all of the circumstances into account, in relation to the charge of cultivating a narcotic plant contrary to s.72B of the Drugs, Poisons and Controlled Substances Act1981, you are convicted and sentenced to a term of imprisonment of eight months.  I declare - - -

HIS HONOUR:  And can you give me the exact number of days - - -

MS MAHADY:  Two forty-six, Your Honour.

HIS HONOUR:  Two-hundred and forty six, thank you.

17I declare that 246 days of pre-sentence detention, not including today, be reckoned as having been served under that sentence and I direct that a declaration of that effect be recorded on the records of the court.

18Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to this charge, I would have sentenced you to a total effective sentence of 12 months.  You may be seated, please.

19There is an ancillary order sought, namely an order pursuant to s.464ZF of the Crimes Act. Pursuant to that section, I do order that you undergo a forensic procedure for the taking of a scraping from your mouth or a blood sample or both in accordance with Part 3 of the Crimes Act 1958.  Until a sample of sufficient standard is obtained for placement on the database, I am satisfied that the making of such an order is justified because of the seriousness of your offending.  I should warn you, Mr Pham, that if you do not permit such a sample to be taken, then police are entitled to use reasonable force to obtain such a sample or blood sample from you. 

HIS HONOUR:  Do you understand that?  You understand that, Mr Pham?

OFFENDER:  (Through interpreter) Yes, I do, Your Honour.

HIS HONOUR:  Thank you.  Any other orders of any nature sought?

MS MAHADY:  No, Your Honour.

HIS HONOUR:  Anything else that counsel require of me at this  stage?

MS MAHADY:  No, Your Honour.

MR GOLDBERG:  No, Your Honour.

HIS HONOUR:  As I take it, Mr Pham is to be taken downstairs to be processed.

MS MAHADY:  Yes, Your Honour.  Immigration's been made aware.

HIS HONOUR:  Yes.  Thank you.  Let's adjourn until 10.30 Monday, thank you.

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