Director of Public Prosecutions v Pham

[2016] VCC 116

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-02099

DIRECTOR OF PUBLIC PROSECUTIONS

v

SUONG THU PHAM

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2016
DATE OF SENTENCE:	18 February 2016
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2016] VCC 116

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:       Sentence – recklessly deal with proceeds of crime – Operation Isoleucine

Legislation Cited:     Crimes Act 1958 (Vic), Confiscation Act 1997 (Vic), Sentencing Act 1991 (Vic)

Sentence:Convicted and sentenced to 50 days imprisonment and a fine of $10,000

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Solicitor for the Office of Public Prosecutions
For the Accused	Mr R. van de Wiel QC	Victor Andreou

HIS HONOUR: 

1Madam Interpreter, if you would tell Ms Pham what I am about to say are the reasons for pronouncing the sentence in this matter.  Those reasons are necessary so that Ms Pham understands why and in what circumstances she is being sentenced as she is about to be, and importantly it is necessary for this to be publicly recorded so that it can be so kept, and if there is any necessity in any Court room for the matter to be so recorded.

2Ms Suong Thu Pham, who is 61 years of age having been born on the 28 September 1954, described herself as a chief cook in a restaurant. She resides at 8 Ruby Way, Braybrook, pleaded guilty to the sixth charge in Indictment No.C1409863.2, being a charge of recklessly dealing with proceeds of crime contrary to s.194(3) of the Crimes Act1958.

3The specifics of that crime were that on the day a warrant was executed upon the property at Braybrook, the sum of $118,000 was found at those premises.  Tendered today with the consent of Mr van de Wiel of Her Majesty’s Counsel as a summary of the prosecution opening being Exhibit A. These circumstances related to an operation called Operation Isoleucine which followed the activities of a number of persons selling heroin within the community of Melbourne.  Many of those or a large preponderance of those have been of Vietnamese background, although not solely.

4The two in particular that are related to the prisoner are her two daughters.  They are both to be dealt with by this Court.  They have pleaded to particularly serious charges, Linh Trinh to traffick a drug of dependence of a large commercial quantity, and her sister Thuy Trinh to traffic drug of dependence, heroin, in a commercial quantity.

5Essentially, and in short form, an analysis of Exhibit A and the explanation provided by the learned Prosecutor today and accepted by Mr van de Wiel, is that she has become involved in a broad sense in criminal activities conducted by her daughters out of their family home.  It is significant that in that family home is a young daughter of some five and a half years of age, who obviously is important insofar as the circumstances of this case are concerned and the ultimate proposition put to the Court. 

6As a result of the warrant being executed the prisoner was in gaol for a period of 50 days, which is agreed as being pre-sentence detention, upon being granted bail by His Honour Lasry J. I am told by the learned prosecutor such was for a number of reasons, there being a very serious charge at that time against her. Since granted bail in November 2014 she has had the sole care of this child. 

7Ms Pham was subject, up until a fairly recent time, to very harsh conditions of bail, being that she had a daily reporting, but during that time she also had the obligations of caring for her granddaughter.  I am told that child has now this year started school.

8Coming back to Exhibit A, the objective criminality as such is obviously serious.  The charge of dealing in proceeds of crime is a serious matter warranting appropriate punishment.  It was put into the criminal statute by Parliament to stop facilitation/encouragement of crime and in particular, in instances such as this, creating an environment where the proceeds of crime can be held securely.

9There are, however, particular difficulties about this sentence.  The two persons involved in the criminal activity which produced this money are her own daughters.  The location of the moneys, which totalled $118,000, was firstly a figure of $59,950 in the cistern of the toilet in the downstairs front bedroom, and a further $59,000 hidden in a child's toy in that bedroom, that bedroom of course being the bedroom of the prisoner.

10As a strict matter of law, to be reckless in this instance, is not aggravated by the type of crime.  However, clearly given the finding of the amount of heroin in the premises, the involvement as demonstrated by the surveillance, it would indeed stretch one's imagination to take the view that the prisoner was not aware of where this money came from.  Hence issues of specific deterrence and general deterrence are very obvious factors in a sentence of this type.

11It is important to remember that I am not sentencing the prisoner for the drug trafficking in this matter.  I will attend to that when I sentence her two daughters.  However, that should not take away from the observation that this legislation was passed for the reasons that I have already indicated.

12The prisoner has done well in the past, having conducted a restaurant with her daughters that was recently sold for a considerable sum.  She is obviously innovative in the sense that given that she has an ongoing mortgage she has been able to continue or assist in the payment of that money by the installation of a boarder at the premises.  She continues to have two food-style restaurants in Vietnam of which she has declared income from overseas in the sum of some $58,000.

13The prisoner has future difficulties ahead of her in the sense that there are orders under the Confiscation Act 1997 and, I am told by Mr van de Wiel insofar as the house and items within it, ongoing negotiations.  There have already been some forfeitures and despite the circumstances of those, I cannot take into account those facts.  However, the reality is that, as a result of a forfeiture of one car, she is left with an ongoing debt to Westpac in the sum of $30,000.

14The overwhelming factors that stand out in this case are firstly her age.  She is now, as I said, 61 and had never been before a Court, to my knowledge, in the world, much less Australia.  She comes before this Court without any priors, and like any person who has led a blame-free life to that date is entitled to seek leniency from a Court, this Court has always recognised that factor.

15In addition to that, she has the ongoing care of the granddaughter.  We have had to encounter this type of claim before the Court on a number of occasions in the totality of the circumstances surrounding this Operation Isoleucine.  The position of the child is difficult given that both her mother and auntie are now in gaol, and are likely to be there for some time.  Her grandmother has been granted bail by the Court, one of the reasons being to assist the child.  She does have the care of the child, and the child has now started school.

16It is, of course, a difficult balance.  I should remark, if I have not already, that the time that has been spent in gaol to date is a period of 50 days.  Essentially the submission of Mr van de Wiel on behalf of the prisoner was that I could do a combination of orders.  The major submission was the time by way of immediate imprisonment should be sufficient in all the circumstances. 

17If one looks at the objective culpability of this crime alone, that is a specious submission.  This is a serious matter that warrants considerably more immediate imprisonment than 50 days.  However, when one is sentencing one does not only look at the objective criminality of a matter, there are other factors.  The factors that I have mentioned are her age, her obligations to the granddaughter, the fact that she has no priors, and there is of course an additional factor.  One of the alternatives may well have been to combine a Community Corrections Order; however, her health is such that she has limitations insofar as her walking is concerned and generally is said to be by Mr van de Wiel not in good health.  I hesitate to say that is obvious, but I accept what Mr van de Wiel has said in that regard.

18As I said the sentence here involves a very difficult balance. The Crown when asked for their views in regard to proposed sentence, accepted that probably the correct sentence in this matter is a period of immediate imprisonment and a Community Corrections Order.  However, the Crown accepted that the reality is that that cannot be effected, and did not oppose the alternative submission is one of immediate imprisonment for a period of 50 days, together with an appropriate fine.

19Having considered all the circumstances it seems to me that such is an appropriate sentence in the particular circumstances of this case.  I want to make it very clear that but for those particular circumstances there would have been a considerably longer period of immediate imprisonment.  In the circumstances, however, I am prepared to accede to the submission put.

20Ms Pham, would you stand up please. You will be convicted in regard to this charge. Insofar as that charge is concerned, you will be sentenced to a period of imprisonment of 50 days. Pursuant to s.18 of the Sentencing Act 1991 I order that the pre-sentence detention that you have served be deemed as service of this sentence, and that will mean subject to when the authorities have taken the appropriate steps, that effectively the sentence to be imposed upon you by way of immediate imprisonment will have been served.

21In addition to that, I impose a fine of $10,000.  I am prepared in the circumstances to grant a stay and I would grant a stay of six months, and I would indicate that you are entitled to seek to have that extended; however, I would expect a significant payment of that fine to have been made within that period.

22It is very difficult to comply with the requirements of s.6AAA of the Sentencing Act 1991 in a sentence of this type.  All I can say is that clearly, had Ms Pham not pleaded guilty in the particular circumstances of this case and not had the totality of factors that I have referred to, I would have imposed a much larger immediate gaol sentence.  It seems to me in a case like this it is totally impossible for me to discriminate precisely what would have been the sentence for the guilty plea when you have such substantial other matters, and it seems to me to end on the farcical to take the view that parliament requests that.  I cannot do it in these circumstances except to say it would have been a significantly higher sentence than the sentence imposed in this case.

23For clarity, therefore, Ms Pham, you will be sentenced to a period of 50 days and a fine of $10,000, a stay of six months in regard to that fine, and I order under s.18 that such 50 days has already been served by way of pre-sentence detention and I make the notations I have in regard to s.6AAA.

24Were there any other orders, Mr Prosecutor?  Forfeiture or anything like that?

25MR PICKERING:  Not today.  Only for the forfeiture to be held over to the Linh Thu matter.  Other than that, that finishes this today.

26HIS HONOUR:  Right.  No other matters to attend to?  Mr van de Wiel?

27MR van de WIEL:  No, sir.  Thank you.

28HIS HONOUR:  Nothing from your side?

29MR van de WIEL:  No, thank you.

30HIS HONOUR:  Thank you.  Madam Interpreter, you have to indicate to
Ms Pham that it will be necessary for her to go back into prison while all the details are sorted out, but I would imagine it will not be long before she is released.

31MR PICKERING:  She was not in custody.

32HIS HONOUR:  She was not in custody?

33MR van de WIEL:  No, she was not in custody.

34HIS HONOUR:  I apologise.  Yes, of course, she is on bail.  Yes, she can come out of the dock, I do apologise.  Thank you.

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