Director of Public Prosecutions v Pham

[2015] VCC 1222

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-01001

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAT PHAM

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2015
DATE OF SENTENCE:	28 August 2015
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2015] VCC 1222

REASONS FOR SENTENCE
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Subject: Criminal Law. Sentencing.
Catchwords: Cultivating a narcotic plant (Commercial quantity).
Legislation Cited:
Cases Cited: Boulton v Queen [2014] VSCA 342.
Sentence: 165 days imprisonment and Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	V. Anscombe Acting Solicitor for Office Public Prosecutions
For the Offender	Mr M. Gleeson	Michael Gleeson

HER HONOUR: 

1Dat Tuan Pham, you have pleaded guilty before me to one charge of cultivating a narcotic plant in not less than a commercial quantity, the narcotic plant being cannabis-L.  This is a serious offence and the maximum penalty that is prescribed by parliament for this charge is 25 years' imprisonment.

2Mr Pham, I note you are aged 23. 

3You have no prior criminal history and no other matters outstanding.

4The period of cultivation identified on the indictment is from 1 January 2015 until 16 March 2015.  You were arrested following surveillance by police of a house identified as a crop house that was located at 69 Arthur Street, Burwood.  Police identified you attending the house on a number of occasions prior to your arrest.

5On Monday 16 March 2015, at about 2.25 pm, members of the Monash Crime Investigation Unit attended the house at 69 Arthur Street and executed a search warrant.  You were present.  You opened the front door and allowed police to enter.  They then found five rooms designated as being used for cannabis cultivation.  You were arrested.  At that time your wife, Vo, was also present and she too was arrested.  Police have not proceeded with charges against her. 

6A search of the premises revealed that there were 168 cannabis plants weighing a total of 55.6 kilograms located in the five grow rooms, as well as the usual equipment that is associated with these sorts of crops together with electrical transformers, fertilisers and chemicals. 

7You were taken to the Oakleigh Police Station and you were interviewed with the assistance of a Vietnamese interpreter.  You informed police that in about December 2014 you were approached by somebody who you only know as Michael to stay at the address and you told police that you had been in attendance at the address two weeks later.  At that time there were small immature cannabis plants.  You were instructed how to maintain those plants and received an initial payment of $2,000 which was to be a monthly payment.  You received one payment.  You attended the address daily to water, trim, feed and care for the plants.  You accepted the job, you told police, because you needed to earn money as your wife was sick and to pay for your school fees.

8At the time of your arrest a further search warrant was executed at your home, at 15 Gunther Avenue, Springvale, where the police found an Energy Australia account for the grow house indicating that you were paying for the electricity.  They also located $4,000 cash, which you told police was a mixture of money you had saved and money paid to you for caring for the crop.

9I will be sentencing you not as the principal in the establishment of this crop, rather I accept that your role was that of a crop sitter.  It is nonetheless an important role in that it facilitated this crop being nurtured.

10In his submissions on your behalf, Mr Gleeson provided the court with a context to your offending.  I accept that you accepted this role because of your financial circumstances, you had been experiencing some difficulties in meeting your commitments to pay for your school fees because you are on a student visa, you only have limited opportunity to work, further your wife had suffered some difficulties associated with a pregnancy and termination of pregnancy where you had to meet all the expenses associated with her care.  Whilst that provides the context and a proper explanation for your involvement in this offending, it does not excuse this offending.

11Mr Gleeson set out your history and background.  You are a Vietnamese national.  You were born in Nam Dam in North Vietnam.  You are aged 23.  You are an only child and you come from a family that is well respected.  Both your parents are retired public servants.  You completed high school and a diploma of accounting in Vietnam and arrived in Australia in September 2012 on a student visa to study English.  You then enrolled in a course at Baxter Institute, where you were undertaking a Diploma of Accounting.  In late 2014 you had your own health problems associated with chronic flu and bad hay fever.  You are yet to complete your Bachelor in Accounting.

12You married your wife, Vo, who you met as a fellow student while studying English at Holmesglen.  You married in March 2013.

13In the past you have worked part time as a chicken boner at a Springvale factory and that has provided you with some income, otherwise you have received some moneys from your parents in Vietnam.  You were living in rental accommodation at the time of your arrest, you were living in a room with your wife paying $500 per month.  There is no suggestion of there being any involvement of drug, alcohol or gambling issues.

14

In sentencing you I have had regard to the mitigating factors set out by

Mr Gleeson in his plea on your behalf, namely that you, upon your arrest, were fully co-operative with the authorities.  You made admissions concerning your involvement in respect to this crop. 

15You entered an early plea of guilty at the committal hearing.  The matter proceeded by way of straight hand-up brief on 5 June 2015.  I accept that the plea of guilty is at the earliest opportunity and that there was significant utilitarian benefit to your plea.  You spared the State the expense and inconvenience of a trial.  You thereby facilitated justice.  I am satisfied that you show real remorse for your offending.

16You are still a relatively young man and having regard to your past history I consider that you have good prospects of rehabilitation.  It has been difficult for you undergoing remand for the past 165 days and I accept that your experience whilst on remand has been a real lesson for you.  You strike me as being a very young and naïve young man and this has been a very salutary experience for you.

17In the most recent past you have had to endure two months of 23 hour lock down.  You have been isolated in a cell alone.  You have not been able to engage in any courses or programs and during your time in custody you have had time to dwell on your involvement in this criminal activity and you are very upset about your offending and also the shame that you have brought upon your family.

18I have had regard to the principles enunciated in the guideline judgment of Boulton[1] in respect to community corrections orders.  As the court said in Boulton:

"The availability of Community Corrections Order as a sentencing disposition dramatically changes the sentencing landscape in Victoria and calls for a reconsideration of traditional conceptions of imprisonment as the only appropriate punishment for serious offences."[2]

[1]Boulton v Queen [2014] VSCA 342.

[2] Ibid.

19In sentencing you, I am obliged to impose the least severe sentence necessary to achieve the purposes of sentencing.  In Boulton the Court pointed out that in an appropriate case a Community Corrections Order can achieve all of the purposes of sentencing and can do so in cases which previously have been thought to require a sentence of imprisonment.  This charge that you have pleaded guilty to, namely cultivating a narcotic plant in not less than a commercial quantity, is such a charge.

20Overall, having regard to the assessment as to your suitability to undertake a Community Corrections Order, your limited role in this criminal enterprise, your co-operation with the authorities, your remorse and contrition and your good rehabilitation prospects, all of which combine such that I consider that a sentence which means that you serve the time that you have already served to follow a Community Corrections Order of two years with the conditions that I have already prescribed, in all the circumstances I consider that is just punishment.

21General deterrence is very important in the sentencing exercise for this sort of offending.  It is important that people understand if they are willing to assist others in cultivating crops that they need to know if they do so, significant punishment will follow.

22Special deterrence in your case is of a lesser consideration given the salutary effect that your incarceration has already had on you and also my views about your excellent rehabilitation prospects.

23In order to promote your rehabilitation and to give recognition to all of those factors that have been emphasised by Mr Gleeson, I have reduced the term of imprisonment I would have otherwise imposed.

24The formal court orders are:

25In respect to the one charge of cultivation of a narcotic plant in not less than a commercial quantity, you will be convicted and sentenced to 165 days', being the time served to date, imprisonment and to follow a Community Corrections Order of two years' duration to commence from today's date, with the special conditions I have identified, namely supervision and 100 hours community work.

26I confirm that I have already explained to you the consequences of breach and that you have indicated to me through the interpreter, Ms Pham, that you understand those.  I also confirm that I have explained the mandatory conditions that are attached to each Community Corrections Order.  Again, I confirm that through Ms Pham you have indicated that you understand and accept those conditions and that you are willing to enter into such an order.

27I make the following declaration pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a term of imprisonment of two years with a CCO for three years on the same terms already imposed in the orders that I have made today.

28I make the Forensic Order sought, there being no opposition to the order being made, the seriousness of the circumstances warrant the making of the order and the granting of the order is in the public interest.  Mr Pham, what that means is that you have got to provide a sample to police and you will be provided with a cotton bud to put inside your mouth.  I must warn you that reasonable steps can be taken to obtain the sample in the event that you do not co-operate with police or the authorities when they are taking the sample.

29I make the Disposal Order sought and the forfeiture order sought.

30Finally I declare 165 days' pre-sentence detention pursuant to s.18(1) of the Sentencing Act 1991. I think that covers everything.

31MR GLEESON:  Thank you, Your Honour.

32MR ROPER:  Yes.

33HER HONOUR:  If we can have the orders printed.  Have we got copies of the orders, the disposal orders, the forfeiture order, the forensic sample orders?

34MR ROPER:  I have got the forfeiture order and disposal order.  I might need to redraft the forensic sample order, Your Honour.

35HER HONOUR:  Is there an issue, Ms Pham?

36INTERPRETER:  No, Your Honour.

37HER HONOUR:  All right.

38MR ROPER:  That could be forwarded to Your Honour's associate.

39HER HONOUR:  What is that?

40MR ROPER:  The forensic sample order.  Yes, the draft here is not appropriate given the disposition.

41HER HONOUR:  All right.  Is that then sent to Mr Gleeson, is it?

42MR ROPER:  Yes.

43HER HONOUR:  Mr Gleeson, will you ensure that your client knows his obligations under the forensic sample ‑ ‑ ‑

44MR GLEESON:  I explained it to him before Your Honour came onto the Bench again so he is well aware.

45HER HONOUR:  All right.

46MR GLEESON:  Thank you.  I will just need to give you the nearest police station that is for him to attend.

47MR ROPER:  I understand it is a Springvale address, Your Honour, so that would be Oakleigh.

48HER HONOUR:  Yes, he has got 15 Gumper Avenue, Springvale, his address.

49MR GLEESON:  Yes, yes.

50HER HONOUR:  It will be at - Springvale Police Station would be the nearest.

51MR GLEESON:  I think Springvale is 24 hours so that would be appropriate, yes.

52HER HONOUR:  It is, yes.

53MR GLEESON:  Yes.  Thank you, Your Honour.

54HER HONOUR:  I've signed the Community Corrections Order.  Perhaps if you got down with my associate, Mr Gleeson.

55MR GLEESON:  Thank you.

56HER HONOUR:  Get your client to sign all of that.  What is that?

57MR ROPER:  No.  We were just talking about sending a draft of the - or to revise to reflect it is to be ‑ ‑ ‑

58HER HONOUR:  Non-custodial.

59MR ROPER:  Provided at the police station, a non-custodial one.  I think my instructor is ‑ ‑ ‑

60HER HONOUR:  She can do that?

61MR ROPER:  Doing that now.

62HER HONOUR:  If she sends it to my associate he can then print it off and we will deal with it.  That is a good way of dealing with it because then I know he has left the court with the order.  If we could do that, that would be good.

63MR ROPER:  Thanks.  The miracle of technology.

64HER HONOUR:  Yes.  We left the pigeons behind.  Mr Gleeson, we are just seeing if we can do the orders now in respect to the forensic sample.

65MR GLEESON:  Yes.

66HER HONOUR:  If we can we may as well so that your client is very clear as to his obligations and I assume they will be able to organise his release today.

67MR GLEESON:  I would have thought so, thank you, Your Honour.

68HER HONOUR:  I am not sure, do they do it downstairs, or?

69MR GLEESON:  I think they do.  They have to check that he is not wanted for anything else and then I have had clients who were released into Lonsdale Street and they look around and go okay, where am I?

70HER HONOUR:  Yes, yes, yes.  They have to go back to the remand centre?

71MR GLEESON:  No, no, they are released here.  I remember I had a lady who had a trial and unexpectedly got released and stood out in Lonsdale Street and - but.

72HER HONOUR:  What do I do now?  In terms of their personal belongings and whatnot, what do they do?

73MR GLEESON:  They have to go and get them from the prison later, but if he attends at my office I can assist him if he needs assistance with transport.  If he needs to come to my office, I can give him some money to get the tram or train.

74HER HONOUR:  Have we got the forensic sample order?

75MR GLEESON:  May I approach him briefly, Your Honour, just to sort ‑ ‑ ‑

76HER HONOUR:  Sure, sure, sure.

77MR GLEESON:  Thank you, Your Honour.

78HER HONOUR:  While we are waiting for that other order.  While we are waiting for the orders I will just step out, then you can have a chat to your client.

79MR GLEESON:  Thank you.

80(Section 464ZF order signed and acknowledged.)

81(Disposal order signed and acknowledged.)

82(Forfeiture order signed and acknowledged.)

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