Director of Public Prosecutions v Pham

[2015] VCC 442

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00256

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUOC PHAM

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	17-20, 23-26 February 2015 &15 April 2015
DATE OF SENTENCE:	16 April 2015
CASE MAY BE CITED AS:	DPP v PHAM
MEDIUM NEUTRAL CITATION:	[2015] VCC 442

REASONS FOR SENTENCE
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Subject:Cultivation of a commercial quantity of cannabis – sophisticated hydroponic operation.

Sentence:Total Effective Sentence 5 years and 3 months imprisonment – non-parole period of 3 years and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y. Hardjadibrata	O.P.P
For the Offender	Mr J. Valos	Valos Black

HIS HONOUR: 

1Quoc Pham.  After a short trial and two days of jury deliberations, by majority verdict, you were found guilty of cultivating a commercial quantity of cannabis.  The charge was that between 2 June and 2 September 2013 at Sunshine North you did cultivate cannabis in a commercial quantity. The maximum penalty is 25 years' imprisonment.

Circumstances of the offence. 

2

I am required to sentence you in accordance with the jury verdict.  The Crown case was that you attended at a factory in Sunshine North in February 2013 along with a number of other persons of Vietnamese extraction.  In that group was an older person, Mr Phuong, and a woman aged around 40.  In addition to that, there were a number of younger Vietnamese persons including one aged around 20 who was the only one who spoke English and acted as the interpreter.  The factory was for lease.  It was a lock up factory of 450 square metres in a yard in an industrial area.  Following that, at a later inspection, the owner of the factory executed a lease with Mr Phuong for a period of

18 months at a monthly rent plus outgoings. 

3The owner required that two months' rent be paid in advance, that there be a bond of two months' rent and a sum of insurance also be paid before he granted possession.  Initial moneys totalling nearly $12,700 were paid to him by the female.  The owner of the factory was told that the lessee intended to use the factory for purposes of importing furniture from Vietnam. 

4When the first month's rent was due on 20 March, it was arranged that it would be paid to the lessor in cash in the carpark at the Bunnings Warehouse at Sunshine.  You attended at the carpark, met the owner, sat in his car and handed him the monthly rental of $2,383 in cash.  He proceeded to count the money out and give you a receipt.  The monthly rent payments continued from March 2013 to August 2013.  The 20-year-old Vietnamese youth attended as the interpreter on each occasion.  At the August meeting, the lessor requested an inspection of the factory as the lease had been running for some six months.  You advised him through the interpreter that you would get back to him as Mr Phuong was overseas in Vietnam. 

5The police obviously became aware that something untoward was happening at the factory and on 2 September 2013 police investigators commenced surveillance duties outside the factory.  The roller door was closed and the gate was secured by a padlock.  The police had a search warrant.  At around 9.40 am a late model Toyota Camry registered in your name attended at the factory and parked some distance from the entrance.  You were in the driver's seat and a Mr Truong Lam was in the passenger seat.  Shortly thereafter a second late model Toyota Camry drove down the street slowly past your vehicle and the two Vietnamese gentlemen, Ha Ngyuen and Ngoc Nguyen, entered the factory.  Both were wearing high visibility vests.  Shortly thereafter you drove your vehicle into the factory under the roller door which was then closed.  The police then executed the search warrant.  You were observed attempting to exit from the back door of the factory along with two other males while another was seeking to leave via the front door. 

6When the police entered the factory they found an elaborate and extensive hydroponic operation.  The previously open-plan factory had been transformed into seven rooms with a passageway and a sophisticated hydroponic operation was in place.  There was a barrier of Styrofoam containers at the front of the factory area obscuring the growing rooms.  In the factory in the seven different rooms were found a total of 523 cannabis plants weighing 258 kilograms.  Also found in addition to the usual paraphernalia of a hydroponic operation was a quantity of dried green vegetable matter weighing 287 grams, two leaf trimmers and a set of scales.  There was a power bypass in place but you are not charged in relation to that. 

7Your vehicle was searched and in the vehicle was found a face mask, registration papers for the vehicle, seven hydroponic hose fittings and a piece of paper with a typewritten garden suppliers address which was subsequently shown to have affixed to the outside of that address a sign "hydroponic supply".  In the boot of the vehicle, remnants of green vegetable matter found to contain cannabis weighing .1 of a gram was found. 

8You were arrested and the sum of $1,250 was found on your person.  You gave a record of interview wherein you stated that you had been requested by your friend to bring some drinks to the factory and you had only been in there for five to ten minutes and you looked into one of the rooms out of curiosity and you wanted to leave when the police arrived.  You claimed the cash was in your pocket because you withdrew it from your Newstart Allowance to keep it safe from young children.  You stated you had never been to the factory before and denied you had anything to do with the cultivation. 

9You were identified by the factory owner from a photo board array as the person who attended the factory on the initial inspection and subsequently paid the rent and outgoings when due. 

10The prosecution case against you was both direct and circumstantial. 

11It was that you were the supervisor or middle manager involved in the cultivation enterprise. 

12The prosecution accepted that there was only evidence that you attended on the one day but you were higher up in the matter from the three other persons apprehended at the factory on 2 September because you were the second most senior person in age of the persons who attended and first inspected the premises and you had paid the rent on a monthly basis.  As you had paid the rent on a monthly basis, it was open to the court to infer that you would have known the extent of the factory operation. 

13The prosecution case was that you were involved in a joint criminal enterprise with other unknown persons to cultivate a commercial quantity of cannabis. 

Seriousness of the offence. 

14

This was a very serious example of the offence of cultivating a commercial quantity of cannabis and I regard your moral culpability as high.  First you were involved on the original inspection of the premises in February 2013.  Next you are involved in the payment of the rental for each of the months until August 2013.  The period of offending alleged against you commences on

2 June 2013 until 2 September 2013 which was selected as the growing period of the cannabis.  The cannabis in the factory covered a full range of sizes from seedlings and a nursery stage to fully mature plants 1.3 metres high.  The evidence was that some of the plants were 12 to 14 weeks old from the nursery stage which is up to four weeks.  There was also dry cannabis material found.  As the prosecution submitted and I accept, this was a production line for the cultivation of cannabis.

15The prosecution put that you were a middle management or supervisor of this enterprise.  The prosecution accepted that it could not say who provided the funding or who the principal was, if any.  Your counsel put that you were only to be sentenced on the basis that you paid the rent on six occasions and attended the premises on only one occasion.

16I do not accept that submission and accept that the only reasonable inference is, as put by the prosecution, that you were a middle manager or supervisor of this enterprise over the period 2 June to 2 September 2013.  That inference, I am satisfied, is available from your involvement at the inspection of the premises, your seniority in terms of age compared to the other persons who were found at the premises on the day that it was raided, the fact that you paid the rent on six occasions which must indicate that you were a trusted operative in relation to the enterprise and from the contents of your vehicle which included hydroponic equipment, cannabis remnants, a mask and the address of a hydroponic supplier.  Further, on 2 September you were involved in a coordinated attendance involving a discrete entry at the premises that day with the other vehicle containing two other persons arrested as well as your fellow passenger in your vehicle. 

17I am satisfied from the scale of this operation was such that it required a supervisor to coordinate the operation of the hydroponic equipment including persons who may have to tend the plants.  Your position is to be contrasted with that of the three co-offenders, one of whom, Mr Lam, actually lived with you.  An enterprise of this scale requires financiers and requires coordinators.  It also requires persons to do the day-to-day work. 

18

The three other persons apprehended at the premises that day were all dealt with by the Chief Judge of the Court.  They admitted to cultivation of the crop.  Each pleaded guilty to cultivating cannabis simpliciter.  Mr Truong Lam on his own admission admitted that he had cultivated cannabis for three weeks,

Mr Ha Nguyen for four weeks.  They were both sentenced to time served being 445 days imprisonment.  Mr Ngoc Nguyen admitted to being present only on the one day and was sentenced to 212 days' time served.  None of them had prior convictions and they were all non-citizens on temporary visas and much younger than you.

19There is insufficient information to precisely characterise your role other than to say it is definitely well above that of your three co-offenders.  You are therefore to be sentenced as a principal along with unknown others in this enterprise.

20The mens rea for the offence of cultivating a commercial quantity of cannabis requires that you intended to cultivate a commercial quantity.  A commercial quantity is 25 kg or 100 plants.  The amount of cannabis recovered in this case was over five times a commercial quantity in terms of the number of plants or ten times in terms of the weight of cannabis.  The amount recovered is just over 50 per cent in terms of plants of a large commercial quantity and just over the amount in weight of a large commercial quantity.  The scale and duration of the cultivation of which you have been found guilty makes your culpability high. 

Matters in mitigation.

21I turn to matters in mitigation.  First, as submitted by your counsel, you have no prior convictions against you.  Further, you have the continuing support of your immediate family in that your brother was present in Court and you have a close relationship with your 18-year-old son.  You have no outstanding matters against you and you have been complying with strict bail conditions since you were released on bail.  You have a past history of employment in the clothing industry and at the time of your remand had obtained employment in a fruit and vegetable shop in St Albans.  You were on Centrelink benefit at the time of the offending. 

22Your personal details are more fully set out in a submission from your Counsel and in also a report from Mr Crewdson, psychologist.  I incorporate them by reference.  You turn 50 in June this year.  You came originally from Vietnam having fled that country at age 15.  You were in a refugee camp in Malaysia and gained refugee status in Australia at that age.  You only achieved grade 3 in Vietnam and while you were functionally literate in Vietnamese you have difficulty speaking English and it appears you have not achieved any educational qualifications in Australia.  Since being in Australia, however, you have, as submitted by your counsel, been in the workforce in the clothing industry as well as in manual labouring.

23As indicated, you were examined by a psychologist, Mr Crewdson.  He found that you were suffering from reactive depression and anxiety but there was no indication of psychotic activity.  He further found there was no suggestion of antisocial personality disorder.  He indicated there may be some improvement in your major depressive disorder and that you may need some treatment for psychological issues.  He notes that you are suffering from a number of general medical conditions including hypertension, chronic asthma, musculoskeletal pain, type two diabetes and high cholesterol.  You have had a heart stent in place since 2009.  Also in evidence was a report from your local doctor indicating that you are currently taking a range of medication. 

24Your Counsel submitted that your prospects of rehabilitation are good.  I regard your prospects of rehabilitation as reasonable.  You are a first offender, however given your plea of not guilty, you do not accept that you have engaged in criminal activity.  Further, you have limited occupational skills in Australia and so there is always a danger that you will revert to illegal activity upon release from prison.  However, given that you have been crime-free in the period that you have been in Australia until this event, I regard your prospects overall as reasonable.

25A further matter relevant to your prospects is your 18-year-old son.  He has recently been entered university and you are very proud of him and are feeling the pain of being separated from him.  He gives you an incentive upon your release from prison.  You also have the support of one of your brothers who is in Court and he is now looking after your son.  You were married in 1994 but the marriage ended in 2003 and you have another son aged 13 who lives with your former wife.

26I have taken into account that due to the separation from your son, you will find prison burdensome.  You will also be disadvantaged due to your lack of English.

27I take into account all the matters put on your behalf by your counsel. 

Purposes of sentencing. 

28The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society. 

29The cultivation of a commercial quantity of cannabis is a serious offence carrying a maximum penalty of 25 years' imprisonment.  Save in exceptional circumstances, cultivation of cannabis in a commercial quantity requires the imposition of a custodial sentence.  The quantity of cannabis involved in the undertaking was very substantial.  Given the scale of this operation, the only inference available is that this cultivation was driven by commercial motives.

30In his sentencing remarks for your co-offenders, Chief Judge Rozenes stated that as far as hydroponic cannabis operations go, this was one of the more significant ones seen in recent times.  I agree with him.  This was a most sophisticated operation.  While other operations may have a larger scale, this was very significant as indicated from its size, dedication and yield.  In those circumstances, stern punishment is called for. 

31As the Chief Judge also said, production of cannabis hydroponically in domestic or commercial premises has become prevalent and once the electricity supply has been bypassed it is difficult to detect.  The number of persons sentenced for this offence has increased by over 50 per cent over the five-year period of the Sentencing Snapshot No.165. 

32The grave harm which cannabis grown by modern methods can inflict has been noted by many judges.  For these reasons, general deterrence must therefore play a paramount role in the sentencing process.  As I have said, the undertaking in the present case was most extensive and the quantity of cannabis produced was very significant.

33The sentence of the Court must denounce your conduct in the strongest terms.  It must signify to the community that those who are tempted to turn their hand to the cultivation of this dangerous drug will receive stern sentences.  You were involved in an illegal business operation.  It was highly organised, sophisticated and well resourced.  You were engaged in a risk-reward calculus.  The sentence of the Court must deter others as well as you from being tempted to engage in this difficult to detect activity.  Considerations personal to you including your past good character carry lesser weight.  Considerations of parity are not engaged in relation to the co-offenders as I am satisfied that they had a much different and lesser role and pleaded guilty to a lesser charge and were involved over a lesser period.

34I have taken into account the submissions made on your behalf.  I cannot accept the submission that a sentence of imprisonment combined with a CCO is an appropriate disposition.  I regard the seriousness of the offending here as calling for a significant term of imprisonment to meet the requirements of general deterrence and denunciation.  I have been provided with a number of cases to indicate current sentencing practices which I must take into account along with a Sentencing Snapshot No.165 and the sentence overview from the Sentencing Manual (paragraph 33.13.5.1).  Each case turns on its own facts and thus is of only limited assistance.  Some involved pleas of guilty and some involved the offence of cultivating a large commercial quantity.  Current sentencing practices as evidenced in cases such as Mason, Spiteri, Grozdanov and Esposito do indicate that in cases involving substantial amounts of cannabis, significant terms of imprisonment have been imposed.  There was also an overlap between sentences imposed for cultivating a large commercial quantity and cultivating a commercial quantity. 

35The Crown has sought a forfeiture order in relation to the Toyota Camry you were driving when apprehended and you have consented to that forfeiture.  I accept that it was tainted property and that it was used in the operation but I have also taken into account that the forfeiture of that vehicle, a late model Toyota, is an additional punishment.  In addition to that, the Crown has sought and you have agreed to the forfeiture of the $1,250 cash that was found on your person that day and again that is an additional punishment that I have taken into account. 

36Could you please stand.  On the charge of cultivating a commercial quantity of a narcotic plant, being cannabis, you are convicted and sentenced to a term of imprisonment of five years and three months.  I order that you serve a period of three years and four months before being eligible for parole.  I declare ninety-one days pre-sentence detention to be reckoned as served under the sentence and I direct that a declaration to that effect be recorded in the records of the Court.

37I also make an order pursuant to s 464ZF(2) of the Crimes Act 1958 for the provision of a forensic sample. I do this because of the seriousness of the circumstances of the offence and the application is also by consent as I understand it I am obliged to inform you that although you have consented to the procedure, if you resist the taking of the sample, reasonable force may be used by the police.

38I must explain the sentence.  I have sentenced you to five years and three months' imprisonment.  I have declared that you will be eligible for parole after serving three years and four months' imprisonment.  I have declared you have served 91 days already.  I have ordered that the vehicle and the $1,250 be forfeited and I have taken those two matters into account in fixing the sentence.  I have also ordered that you provide a forensic sample to the police and they can use reasonable force to obtain that sample. 

39MR HARDJADIBRATA:  Your Honour, I'm not sure, but a forensic sample may have been taken.  It was taken, Your Honour.  A retention order is required. 

40HIS HONOUR:  All right.  I've ordered that that be retained, I thought.

41MR HARDJADIBRATA:  Yes.

42HIS HONOUR:  Are there any other matters, Mr Prosecutor?

43MR HARDJADIBRATA:  The reference to the forfeiture order and a disposal order.  I don't know whether ‑ ‑ ‑

44HIS HONOUR:  I've also made the disposal order, yes, for the goods seized. 

45MR HARDJADIBRATA:  Thank you, Your Honour. 

46HIS HONOUR:  Have you given me a retention order?

47MR HARDJADIBRATA:  I think they were handed up and they were ‑ ‑ ‑ 

48HIS HONOUR:  They seem to be the actual orders as distinct from the retention order. 

49MR HARDJADIBRATA:  Yes.  Apparently it's automatic, Your Honour.  It is.  Apologies, it's automatic.

50HIS HONOUR:  What?  There's no need for an order?

51MR HARDJADIBRATA:  There's no need for an order, that's right. 

52HIS HONOUR:  All right.  Yes, I thank you for attending, Mr Valos. 

53MR VALOS:  Thank you, Your Honour. 

54

HIS HONOUR:  I thanked Mr Gwynn yesterday.  I thank you,

Mr Hardjadibrata, for your prosecution of this trial and plea. 

55MR HARDJADIBRATA:  Thank you, Your Honour. 

56HIS HONOUR:  I'll just stand down temporarily. 

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