Director of Public Prosecutions v Pham

[2016] VCC 301

Pages 1 - 3   IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 16-00240

DIRECTOR OF PUBLIC PROSECUTIONS

v

LINH PHAM
HOA MAI

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	17 March 2016
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2016] VCC 301

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hughan
For Accused Pham	Ms L. Torres
For Accused Mai	Mr C. Farrington

1HIS HONOUR:  Linh Pham and Hoa Thi Mai, you have each pleaded guilty to a charge of cultivating a narcotic plant in not less than a commercial quantity.  That crime carries a maximum penalty of 25 years' imprisonment.  You are 26 years and 21 years of age respectively.  Neither of you have any prior convictions and, as I understand it, neither of you have anything pending. 

2Each of you pleaded guilty at the earliest reasonable opportunity and I accept in these circumstances that each of you has expressed appropriate remorse.  Each of you, of course, must get the utilitarian benefit of those pleas of guilty. 

3The offending arises out of a house having been purchased in Warragul.  Your vehicle, Ms Mai, as it appears on the registration at least, was seen outside the premises on 22 February 2015 and again on a regular basis.  You, Mr Pham, had apparently transferred that vehicle to her back in November.  On 19 May police executed a warrant on the property and each of you was arrested.  As I understand it, there was initially some difficulty in talking to you because neither of you speak fluent English. 

4In any event, police conducted a search of the property and found a large cannabis crop, with plants at various stages of growth. It would appear to have been growing for something in the order of 16 weeks.  The house was virtually given over completely to the production of cannabis.  The only habitable space was the kitchen/meals area, which contained one mattress on the floor, and there were personal effects, clothing, bedding and the like.

5I will not go through the details of all the plants, other than there were 116 identified plants and the total weight of all of this was 69.15 kilograms.  That, of course, is double at least the commercial quantity. 

6DNA, in respect of each of you, was found within the premises in worn rubber gloves.  Essentially when interviewed each of you owned up to the crime and there is some dispute as to the length of time that each had been involved.  You, Ms Mai, made admissions about that.  You, Mr Pham, on the fact of it at least, had something of a contest about how long you had been involved.  You had certainly not been there just the previous day and I sentence on the basis that you have been involved for an indeterminate period of time and I could not be satisfied beyond reasonable doubt as to the length of it.  In the overall circumstances of this case, I do not think it makes any difference.

7This is a serious crime obviously and it is an unusual situation that there is not an active custodial element to the penalties that are imposed.  Each of you has now been in custody for some 303 days and each of you is subject to the almost certainty of deportation.  Each of you was here on a student visa, as I understand it.  Those visas have been cancelled.  As I understand the legislation, the situation is that once you have been sentenced to more than 12 months imprisonment, it is a reverse onus. 

8So each of you has undergone that time believing that you will be deported.  I suspect that each of you now wants to be.  But leaving that aside, you have no visitors in gaol, you have no contacts in Australia and you, Mr Pham, are, as you have described, 'homesick'.  Each of you are obviously intelligent.  Each of you have family back in Vietnam and you have undoubtedly shamed your families by this particular conduct.  When I take all those matters into account, the prospects of your rehabilitation should be good.  There is no suggestion that either of you are drug users or in any way substance abusers. 

9General deterrence obviously has to play a part here, as does denunciation.  The situation of each of you, specific deterrence is of virtually no value because you will not be here to offend, in any event. 

10So when I take all those matters into account, and having the benefit of very sensible submissions, if I might say so, for all counsel involved, each of you on the charge of cultivating a commercial quantity is sentenced to be imprisoned for a period of 21 months. 

11I direct that you serve the minimum term of 12 months before becoming eligible for parole and I direct that 303 days be reckoned as having been served under this sentence. 

12Pursuant to s.6AAA, but for your pleas of guilty each of you would have been sentenced to be imprisoned for a period of 30 months with a minimum term of 18 months. 

13Nothing else I need to do? 

14MR HUGHAN:  No, if Your Honour pleases.

15HIS HONOUR:  All right.  Thanks for that, I'll just leave you with it. 

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