Director of Public Prosecutions v Pham

[2014] VCC 2141

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01998

DIRECTOR OF PUBLIC PROSECUTIONS

v

NGAN PHAM

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2014
DATE OF SENTENCE:	9 December 2014
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2014] VCC 2141

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer
For the Accused	Mr C. Nikakis

HIS HONOUR:

1Ngan Pham, you have pleaded guilty to an indictment charging you with an offence of trafficking a drug of dependence, namely Cannabis L, on 18 July 2014, and to an offence of cultivating a narcotic plant, namely Cannabis L, between 13 May 2014 and 18 July 2014.  Each of those offences carry a maximum term of imprisonment of 15 years.  You have no prior convictions.

2The prosecution has tendered and relied upon a summary of prosecution opening which is Exhibit A.  The circumstances of the offending were that you signed the lease for premises at 27 Moffatt Street, St Albans on 13 May 2014 and you paid a monthly rent at the rate of $1387 to a real estate agent in Sunshine.  You paid a bond in a similar sum.  Then you paid a further $1400 for monthly rent on 30 June and 10 July 2014.

3Police attended those premises at 11 am on 18 July.  You were present, as was your vehicle.  Two other males present at the premises fled leaving behind a vehicle that was apparently attributable to them.   Somewhat surprisingly however they have not been identified either through the vehicle that was attributable to them or otherwise, although fingerprints were collected and may yet identify the offenders.

4In the premises a hydroponic system was being used for the purposes of cultivating cannabis.  One bedroom in the premises was used to dry Cannabis L under lights and shrouds.  A second bedroom contained 43 Cannabis L plants being grown in plastic containers under lights and shrouds.  A third bedroom contained the remains of harvested Cannabis L plants.

5There were signs that persons had been living at the premises and food had been prepared and apparently eaten shortly before the police arrived.  Photographs were also tendered by the prosecution, Exhibit B, and they show a not unsophisticated hydroponics cultivation system with the usual electricity connections.  Found in one of the bedrooms was 35.79 kilograms of female flowering heads contained in plastic bags.

6The evidence shows that those leaves and flowering heads would be expected to reduce in weight through being air dried to something in the order of 8.9 kilograms.  The 43 immature plants in another bedroom weighed 11.15 kilograms in total.  It may fairly be said that this was a substantial criminal enterprise to which you attached yourself.  The motive of course was profit.  Your motive apparently was to overcome a gambling debt to the gentleman who introduced you to the criminal enterprise.

7The arrangement was that in return for your paying the rent for the house every month he would deduct $3000 from your debt to him.  As I indicated to your counsel during the course of the plea I am not sure I regard that as a complete and wholly truthful account of your involvement in this offending conduct.

8However Mr Plummer for the prosecution conceded that the prosecution did not have any evidence to show that you had ever attended those premises on any day other than 18 July 2014 and there is no evidence which shows you to have played a more significant role than that which involved you paying the rent for the premises and permitting those premises to be used for the purposes of cultivating cannabis and obviously for the purposes of sale.

9I note that the trafficking offence to which you have pleaded guilty relates to the amount of the 35.79 kilograms of female flowering heads which have been set aside clearly for the purposes of sale.  Nevertheless your role was an important one, albeit that you were taking the greatest risk by exposing your identity as the lessee of the premises.

10That I think is consistent, although not probative of, the proposition that you were under pressure from and to some extent being exploited by others within the criminal enterprise.   Experience suggests that those who stand to gain the substantial profits from such criminal enterprises do not expose themselves to the same degree of risk as you assumed in your role within this criminal venture.

11Therefore your role must be seen as a subsidiary role and towards the low end of the spectrum of culpability so far as offending conduct of this kind is concerned.

12You are 44 years of age.  You are a migrant.  Your marriage broke up largely through you becoming involved in a gambling habit.  You have two children who were born in 1995 and 1998 respectively.  They have come to court as has your ex-husband.

13What I am told is consistent with the proposition that you were under a degree of financial pressure, albeit that your motive was one of profit in the sense that you were expecting substantial reward in terms of reduction of your debts.  Whilst I may be sceptical about the degree to which I have been fully informed of your circumstances and the way in which you became involved in this criminal conduct, I am certainly not satisfied that your role was any greater than that which I have already described.

14I observed during the course of the plea hearing that I regarded current sentencing practice in relation to offending of this kind, or at least in relation to offenders who participate in substantial criminal enterprises for profit in the cultivation of cannabis as being too low.

15However again as I observed to your counsel, because of your relatively subsidiary role in the criminal enterprise I did not regard you as being a suitable vehicle for testing the limits of current sentencing practice.  I am of course required to pay proper regard to the principle of general deterrence, that is deterring others from committing offences of this kind.

16I am bound to express the denunciation of this court of criminal conduct of this kind and to punish you adequately for what you have done.  I am inclined to agree with your counsel in his submission that this will have been a salutary lesson for you and that for that reason individual deterrence perhaps plays a somewhat lesser part in the sentencing process than might otherwise have been the case.

17Not only is this your first criminal offence, but the first time you have been in prison, and you have now been in prison for 144 days.  That will have been a significant wake up call for you.  Your counsel submitted that 144 days, given all the circumstances, was sufficient and I am inclined to agree with him in the sense that that represents the time you would actually have to serve for this offending conduct.

18I think though that it does not represent an adequate degree of punishment or denunciation or an expression of general deterrence.  For that reason I entered into dialogue during the course of the plea to see whether an appropriate sentence of imprisonment partially suspended, was open and it is clear that it is not.

19Other alternative would be to impose a term of imprisonment, but to limit the non-parole period to the 144 days that you have already served or something akin to that.  Of course that would not guarantee that you would get parole immediately and as I say my inclination is to think that you have served enough time already as a period of immediate incarceration.

20I am of course also required to balance the other sentencing considerations against the need to facilitate your rehabilitation.  Mr Nikakis on your behalf reminded me during the course of discussion that it would be open for me to impose conditions of the community correction order that would help you deal with your gambling habit.

21It seems to me that justice can be done in this case, both to the prosecution and the defence, and that a sufficient degree of punishment can be incorporated into a community correction order to meet the competing sentencing requirements.  Parliament has made it clear that community correction orders are to be seen as an alternative to a term of imprisonment, even in serious cases, where appropriate.

22Now it is open to me to impose a term of imprisonment of greater than three months in length and I therefore propose to make a community correction order with a term of imprisonment of 144 days.  I would declare of course the 144 days as time served on sentence.  The community correction order that I propose is for a period of 18 months.  You would be required to complete 100 hours of unpaid community work.

23You would be subject to supervision during that period and there would be a requirement for you to participate in gambling counselling and such other programs as may be ordered by the Department of Community Corrections.  I would also require you to submit to judicial monitoring.  The first of those, and perhaps the only one of those, but the first of those would be in three months' time.

24I cannot impose a community correction order without your consent.  You have already signed a form giving your consent, but it is important that you understand that the order would need to be obeyed.  You would have to comply with the terms of the order.  That would mean following all lawful directions given to you, keeping your appointments and importantly not committing any other offences punishable by imprisonment during the period of the 18 months over which the order will run.

25If you were to commit a further offence punishable by imprisonment then you would be in breach of the order and liable to imprisonment for three months just for the breach, but you would also be liable to be brought back here and sentenced afresh for these offences and of course you would be subject to punishment for the offence that put you in breach.

26You would also be in breach of you fail to meet any of the other terms and conditions of the order and if you fail to keep appointments and follow the directions of the community correction officers who are given the authority to implement the order.  I am concerned to ensure that you understand the full terms of the order.  I have not spoken of all the terms and conditions.

27The order will be drawn up in a moment and I will ask Mr Nikakis to go with Mr Travers, my associate, and talk you through the terms to ensure that you understand fully what you would be signing up for.  You would of course also have to perform the 100 hours of community work and if you fail to complete those hours within the 18 month period you would be in breach for that reason as well.

28Is there an issue, Mr Nikakis?

29MR NIKAKIS:  It is just the place for the DNA collection.  It should be changed to Melton Police Station.  It can be done by hand.

30HIS HONOUR:  Yes, thank you.  Another important term would be that you report to Melton Correctional Services Centre within two clear working days of today, so Thursday by 4.15 or thereabouts.  I am sure you will not default on that condition, but you need to get off to a good start.

31Mr Nikakis, would you go and talk her through those conditions?

32MR PLUMMER:  We have been advised that Keilor Downs was the police station so it is a little bit untidy.  My instructor is happy to type another copy for Your Honour.

33HIS HONOUR:  I am sure that is fine.  The sentence that I propose to impose is a sentence of 144 days imprisonment and I declare that those sentences will be imposed for each of the two offences.  They will run concurrently making a total effective sentence of 144 days.  I declare 144 days of pre-sentence detention as time served on the sentence that I have just imposed which will mean that you will not be required to serve any more time in custody.

34In addition for the two offences I make a community correction order for a period of 18 months commencing today and ending on 8 June 2016.  The additional mandatory terms of the order are to the core terms are that you perform 100 hours of unpaid community work during that 18 month period.

35As directed, that you are under the supervision of a community corrections officer for that period, 18 months, and that you undergo programs consistent with the purpose of treatment and rehabilitation which may include employment, educational, cultural and personal development programs, including gambling counselling.

36Also that you attend before me for judicial monitoring on 9 March 2015 at 10 am.  You have signed the order.  Do you consent to be bound by the terms of the order?  Yes?  Thank you.  In addition I make the orders for the provision of a forensic sample which will require you to report to the officer in charge at the Melton Police Station at 243-245 Station Road, Melton, during the period specified in the order.

37You will provide a forensic sample by a scraping from the inside of your mouth when required to do so.  If you provide the sample by scraping from the inside of the mouth when required by the officer at that police station that is all well and good and that is the end of the matter.  If however you fail or refuse to provide when requested by an authorised member of the police force to provide the sample in that way then they will be authorised to take a blood sample and they use reasonable force to achieve that.  I am sure you will not put them to that trouble.

38I also make the disposal order in accordance with the draft that I have been handed.  But for your pleas of guilty I would have sentenced you to a term of imprisonment of two years with a non-parole period of 14 months.  I have signed the drafts and I have signed the order.  Your client of course I have no doubt will have to be processed but otherwise she is free to leave.

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