Director of Public Prosecutions v Pham
[2015] VCC 1793
•4 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-01557
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHAU WIN PHAM |
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| JUDGE: | HIS HONOUR JUDGE HOWARD |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 December 2015 |
| DATE OF SENTENCE: | 4 December 2015 |
| CASE MAY BE CITED AS: | DPP v Pham |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1793 |
REASONS FOR SENTENCE
---Catchwords: CRIMINAL LAW - sentence - plea of guilty to cultivating a commercial quantity of cannabis - 91 plants weighing 33.28 kg - sophisticated hydroponic system - "crop sitter" –TES two years’ imprisonment, NPP 16 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms J. Malobabic | Office of Public Prosecutions |
| For the Offender | Ms C. Tran | Victoria Legal Aid |
HIS HONOUR:
1 Chau Win Pham, you have pleaded guilty to cultivating a commercial quantity of cannabis between 1 and 23 April 2015, for which you face a maximum penalty of 25 years’ imprisonment.
Circumstances of offending
2 The circumstances of offending are set out in an agreed prosecution summary which was read out in court today. A summary will suffice.
3 On 23 April 2015, police discovered premises at Bundoora being used as a “grow house” to cultivate a large quantity of cannabis, which was being supported by a sophisticated hydroponic set-up. In all, there were four rooms and a toilet containing 91 cannabis plants of various heights and maturity, with a complex set of lighting, shrouds and power transformers, and chemicals and notes concerning plant feeding information. As often happens, an electrical bypass had been installed, but you are not to be sentenced for that. The crop weighed 33.28 kg (excluding roots). The commercial quantity of the plant is not less than 25 kg or 100 plants. No valuation statement was provided.
4 Through a so-called “acquaintance’ you were living at the premises as a crop sitter. You told police you were staying there alone temporarily, rent free and with free access to the internet, due to your strained financial circumstances. You said that initially there were only lights set up and as time went on others planted the crop which you cultivated by watering it over about three weeks and measuring the temperature of plants and recording those readings in a diary. You also collected the mail.
5 You claim not to have received any financial benefit (other than the free rent & internet). I will say more about that shortly. You were asked by investigators to identify others involved but refused to do so. As it transpired, none of the principals have been identified, let alone charged, and no further co-operation was received or offered by you to assist in that regard.
Police interview and court process
6 You were arrested and charged on 23 April 2015. You were released on bail. You pleaded guilty at a committal mention on 8 September 2015, which, it is accepted, was the earliest time. There is no pre-sentence detention.
Criminal history
7 You have some criminal history but it has been correctly described by your counsel as not extensive. In 2003 you were found guilty of a handling offence and given a community-based order, which you kept. In 2005 you were convicted of theft of a motor vehicle and quite relevantly, using and possessing amphetamine and heroin, and theft of a car, for which you were placed on a community-based order. There was a condition that you undergo drug treatment, which you did successfully. You went onto a suboxone program and although you have used ice occasionally when in a transient situation, this has not been identified as an issue for you presently. Alcohol is also not an issue in your life.
8 You were last convicted in 2009 for a shop theft, at which time you were given an adjourned bond with a conviction.
9 Significantly, you have never been to gaol before and you have no prior convictions relating to cultivating or trafficking drug offences and I note the gaps in offending from 2005 to 2009 and then from 2009 to 2015.
Background and personal circumstances
10 I will turn to your background and personal circumstances. These have been set out in a helpful and comprehensive written and oral submission made by your counsel. There are no psychiatric or psychological reports.
11 You are now aged 42. You were born in Vietnam, the youngest of five children. You came to Australia in 1982 when you were nine years of age with your mother and siblings. Your father joined you in Australia four years later. Unfortunately, shortly after that your parents separated and you went and lived with your paternal grandparents, who raised you. Your mother never re-partnered and raised the rest of the family as a single mother.
12 You completed Year 12 and then completed three years, partially completing both a Bachelor of Computer Science and a Bachelor of Business (Accounting) but you decided ultimately to leave university and take up employment. Since doing that you have been fully employed the whole of your adult life in successful positions as a sales and administrative officer working in banking and also as a mortgage broker. You last worked in 2013 as a customer relations supervisor for an agency that is a major partner of Telstra and apparently worked in that position for four years before you were made redundant.
13 You have had two significant relationships in your life. You were briefly married to your partner of ten years in 2003 but separated six months later and it seems you then lost all contact with your family. The other relationship was with a woman for three years. You almost became engaged but then separated in early 2013.
14 Since the offending you have gone to live in a share house in Braybrook with three elderly Vietnamese gentlemen and you assist them. You are paying rent of $90 per week and continue to earn and contribute to household expenses. Generally speaking you now seem to be quite socially isolated.
15 You have what has been described as reactive depression and anxiety, that is, reactive to your current circumstances but you are not currently medicated and have not received any treatment for that condition.
16 Your counsel explained, based on your instructions and also other answers you had given in your police interview, that you fell upon difficult times prior to the offending. You had split up with your partner of three years. You were then made redundant from your job that you loved and in those circumstances you became depressed, lost and withdrawn and could not find work and could not afford to pay rent.
17 As it was put, having been gainfully employed for your adult life and enjoying supervisor roles, you could not face receiving Centrelink benefits and instead exhausted your savings. This was a very unwise decision on your part and could hardly justify committing crime simply because you did not want to be on the dole.
18 You became transient during 2014 and up to early 2015, relying on the kindness of friends, couch surfing and the like. At one stage, for two months, you lived in your car. Ultimately you moved to the drug premises when a so-called "acquaintance" told you that the owner of the property was away for two months and they needed someone to stay there during that time.
19 It is clear that you knew from the outset, however, that this was a grow house and you were asked to tend to the crops, as it was put, every once in a while during your stay as a favour to the owner and you performed the work that I have already described.
20 It was said that occasionally people unknown to you came to the property to remove some plants, obviously to harvest the plants, and they were different people each time.
21 It was submitted that you never received any financial gain from tending the crops and that you would tend to them as a favour for being allowed to reside at the property rent free. You understood that growing cannabis was illegal but you were desperate for a place to stay and chose to close your eyes to what was occurring at the property.
Mitigating circumstances
22 There are a number of mitigating circumstances in your favour. The first is that you are a mature offender with no prior convictions for this type of offending. You came to Australia as a young immigrant and unfortunately your parents separated soon after your father arrived some years later and it would appear that you did not have a significant father figure in your life at that time and perhaps thereafter when you were living with your grandparents.
23 In spite of these difficulties you transcended them and achieved well academically and, as I have noted, you have been fully and productively employed all of your adult life up to the point of offending. Unfortunately you seem to have lost family contact and that has been the case for many years.
24 Although you had a past drug addiction involving heroin & amphetamines, since 2005 you got on top of that problem and have no present difficulty with drugs and, as I have said, you have no alcohol problems either.
25 Since offending there has been commendable rehabilitation in that you have obtained stable accommodation and secured financial support through the dole and have not re-offended whilst on bail and there are no pending matters.
26 Next, you pleaded guilty at the earliest time, thereby saving considerable court time, inconvenience and expense. Your plea has had these utilitarian benefits hence, you have served the ends of justice, for which alone there should be a significant discount on penalty.
27 You did make important admissions to police. However, I cannot find that you were fully cooperative as submitted, as you failed to provide meaningful information as to the identification of the principals in this enterprise or indeed anything about them or anyone else involved in the matter, including the identification of the so-called "acquaintance". You must have known at least who that person was. You are not to be punished for not doing so, but you differ markedly from offenders who provide real and genuine information and assistance to police, including giving an undertaking to give evidence against any principals who might be caught. I can understand your fear in this situation, and that drug principals particularly manipulate and threaten vulnerable people like you, but offenders who genuinely cooperate in the fullest sense can expect to and do receive very substantial discounts in penalty.
28 I am satisfied that you very much regret your offending. It is not submitted that you are remorseful for it, but you are an intelligent person and you have insight into the seriousness of your conduct.
29 You are said to have reactive depression and anxiety to your current situation, as I have noted, although no professional evidence has been presented to explain or support this. Nevertheless I can well understand your concern facing such a serious offence and the prospect of immediate imprisonment.
30 I am satisfied, as submitted, that you have good prospects of rehabilitation, especially given your good work history and the absence of an extensive criminal history.
Other sentencing considerations
31 There are, of course, other important sentencing considerations. You have committed a very serious offence, the seriousness of which is reflected in the very high maximum penalty of 25 years’ imprisonment, to which I must pay due regard.
32 Your offending occurred over a three week period and in respect of a commercial quantity of cannabis, even though you are, by 8 kilograms, just over the commercial quantity threshold. It was conceded you knew it was a grow house at the time you moved in, if not beforehand. I reject your submission that you were a mere “peripheral helper”. As a crop sitter you played a crucial role in the significant, highly planned and sophisticated commercial enterprise involved. You actually nurtured, that is, cultivated the crop by regular watering and you took and recorded temperatures that were no doubt essential to the continuing health of the plants and hence, the profitability of the drug. Significant profits were to be made following the harvest of the crop, it is to be inferred. Without crop sitters there cannot be the proliferation of the drug on the illicit market. By your labour you have assisted in the promotion of a socially-destructive activity with all of its pernicious social consequences.
33 As the Court of Appeal has made clear, general deterrence is of particular importance in a case of this kind and your offending is prevalent. The absence of prior convictions of a relevant kind is of less significance than it might be in other types of cases. However, in your case you do have prior drug involvement, which is a relevant consideration, so there is need to take account to some degree of the principle of specific deterrence.
34 It was submitted that you received no financial gain for tending the crop, that you were involved because you only did a favour for an unidentified acquaintance in exchange for obtaining rent free temporary premises. When I indicated to your counsel that I doubted this submission and queried whether you were prepared to give evidence on the plea hearing in support of it, you refused to do so. Whilst you had no such obligation, I am unprepared to accept this assertion made in your record of interview and from the bar table.
35 Non-drug users with an excellent work record don’t usually expose themselves to a maximum penalty of 25 years' imprisonment for a period of about three weeks just to get rent free premises. Particularly when they, like you, are intelligent people who had the legitimate opportunity to live on the dole whilst seeking employment. I accept you were in difficult financial circumstances and not working and had refused to go on the dole and in such a position you had, I consider, a strong motive to be engaged in this enterprise for financial gain other than merely obtaining rent free premises.
36 Your counsel submitted that, notwithstanding the seriousness of your offending, you should be released upon a community correction order with no imprisonment at all. This was, I thought, a bold submission in all the circumstances. Particular reliance was placed upon the well-known and oft cited guideline judgment of the Court of Appeal in Boulton v The Queen.[1] Emphasis was placed on the Court’s acknowledgment of the punitive elements and character of a CCO, which it describes as "a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way”.[2]
[1][2014] VSCA 342.
[2][113].
37 The Court made clear that it may be appropriate to impose a CCO with or without a term of imprisonment for relatively serious offences, even when such cases would have previously attracted a medium term of imprisonment. Particularly, the Court made clear that this sentencing option offers a court something which no term of imprisonment can offer; namely, a sentence which demands that the offender take personal responsibility for self-management and self-control, including the pursuit of appropriate treatment and rehabilitation, which, of course, enables an offender to work in the community if appropriate and to maintain a continuity of personal and family relationships, whilst refraining from undesirable influences.[3] The Court also noted that the combination sentence option of combining a CCO with a sentence of imprisonment adds to the flexibility of the CCO regime.[4]
[3][114].
[4][141].
38 Whilst rejecting the submission that you were a mere peripheral helper and instead submitting correctly you were playing an important part in the commercial enterprise, the prosecution submitted that it would be open to the Court to consider imposing a CCO, but it also made clear it was not submitting the offending should not merit a term of imprisonment. As it was put, at the end of the day it was a matter for the court. No comparable cases were provided by either side, particularly no cases where a CCO had been granted in similar circumstances to these. In any event as it is often said, every case must turn on its own facts and circumstances.
39 Of course, a court must not impose a gaol penalty other than as a last resort and in circumstances where no other disposition would meet the needs of the circumstances of the case. Particularly so for an offender, like you, who has never been to prison before.
40 Significantly, the Court in Boulton made clear that “the advent of the CCO calls for a re‑consideration of traditional conceptions of imprisonment as the only appropriate punishment for serious offences” and it concluded that a CCO can serve all the purposes of punishment “even in quite serious cases”.[5] Indeed, the Court said that “even in cases of objectively grave criminal conduct, the court may conclude that some or all of the punitive deterrent and denunciatory purposes of sentencing can be sufficiently achieved by a short term of imprisonment of up to two years if coupled with a CCO of lengthy duration, with conditions tailored to the offender’s circumstances and the causes of the offending, directed at rehabilitative purposes.”[6]
[5][5]–[6].
[6]Appendix 1, Clause 27.
41 On the other hand, the Court of Appeal very recently in the case of Hutchinson v The Queen[7] said, "Acknowledging that a CCO might be appropriate 'even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment', it should not be thought that Boulton offers a 'Get Out of Jail Free' card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is, of course, 'to punish the offender to an extent and in a manner which is just in all of the circumstances.' There will be cases - indeed, many cases - where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just. At the risk of again traversing well-trodden ground, it is axiomatic that in every case the sentence imposed must depend on its own facts, including the circumstances of the offending and the offender, and the circumstances of aggravation and mitigation.”[8]
[7][2015] VSCA 115.
[8][17], per Priest JA with whom the other member of the Court, Ashley JA, agreed.
42 I must also consider current sentencing practice. I was provided with the Sentencing Advisory Council's snapshot number 165 of August 2014 concerning the offence of cultivating a commercial quantity of narcotic plants, which concerned sentencing for this offence between 2008/09 through to 2012/13. The sentences of 400 offenders were considered in the paper where the principal offence was cultivating a commercial quantity of narcotic plants. By far the majority of those offenders were sentenced to actual imprisonment. A large percentage were then also sentenced to either wholly or partially suspended sentences and a very minute number were sentenced to community-based orders or community correction orders, although it is appropriate to note that these are pre-Boulton figures.
43 The imprisonment terms imposed ranged from five months and 20 days, to six years or five years and two months after adjusting for appeals, while the median length of imprisonment was two years and three months. The most common range of imprisonment length was two years to less than three years. That concerned 105 of those people.
44 Having given the matter careful consideration, particularly in light of the Boulton principles I have mentioned, I consider the objective gravity of your offending to be too serious to release you on a CCO, as submitted.
45 In my view, the important principles of just punishment and community protection dictate that your offending deserves the imposition of an actual period of imprisonment and that is so notwithstanding the mitigating circumstances, particularly the progress you have made in recent times and taking account of the principle of proportionality.
46 The alternative submission was made that any period of imprisonment should be followed by your release on a lengthy CCO. I have considered the desirability of such an approach but decided that it is unnecessary from your personal perspective and that it would constitute a further unwarranted punishment upon you, particularly in light of your rehabilitative efforts whilst on bail.
47 I note the submission that you are suffering from reactive depression and anxiety and would benefit from counselling that might be provided by such a CCO, but also that since your arrest you have taken no steps whatsoever to institute and engage in such a program. In any event, if you are granted parole, you will have that ongoing support which is of benefit to you and the community and would no doubt include or embrace treatment support.
48 Finally, on behalf of the community, I strongly denounce your offending.
Sentence
49 Mr Pham, please stand up. On the charge of cultivation you will be convicted and sentenced to two years’ imprisonment.
50 I fix the period of 16 months before which you shall not be eligible for release upon parole.
51 But for your plea of guilty, I would have imposed a sentence of three years’ imprisonment with a minimum of two years. Please sit down for the moment.
Other orders
52 You have agreed to the making of a forensic sample order. I am satisfied that the making of the order is justified given the seriousness of the offence; because the order is by consent; and because the granting of the order is in the public interest. Accordingly, pursuant to s.464ZF(2) of the Crimes Act1958, I order that you provide a scraping from your mouth and/or a blood sample in accordance with sub-division 30A of Part III of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.
53 I will also make the disposal order sought which is conceded by you.
54 HIS HONOUR: I thank counsel for their assistance and ask are there matters arising?
1 COUNSEL: No, your Honour.
55 HIS HONOUR: Mr Pham, you need to go with the prison officer now and I will have noted on the gaol papers that this is the first time that the offender has been imprisoned and that he should be closely monitored. Thank you. Please remove the offender.
56 [Offender removed]
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