Director of Public Prosecutions v Pham

[2014] VCC 449

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00323

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUAN MINH PHAM

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 April 2014
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2014] VCC 449

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Daniel
For the Accused	Mr L. Gwynn

HIS HONOUR: 

1Tuan Minh Pham, you have pleaded guilty to one charge of cultivation of a narcotic plant in not less than a commercial quantity.  That crime carries a maximum penalty of 25 years' imprisonment. 

2You pleaded guilty at the earliest reasonable opportunity, indeed, at committal mention.  You have no relevant prior convictions and you have no matters pending.  You are 35 years of age.  Your plea of guilty in this particular matter is of very real significance because, on my reading of the depositions and what I am told by counsel, it is the basis of you being convicted of the commercial-quantity aspect.  Had you exercised your right to a trial, you may well have been successful in that regard.  That goes to the remorse that has been displayed in respect of your plea and also, of course, you have a great deal of utilitarian benefit from that plea of guilty.

3Firstly, pursuant to s.464 of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that, should you refuse to provide such a sample, police may use reasonable force to take it from you.

4The circumstances of the offending are that on 18 September 2013, police executed a search warrant in premises at 82 Power Street, St Albans.  They had had the place under surveillance for a period of approximately three hours and no person had entered or left those premises.  After police knocked, you answered the door.  You were then taken to the front of the house and handcuffed.  Police then went into the premises and found an elaborate hydroponic set-up.  There was closed-circuit television and the usual accoutrements that go with such a set-up.  Most importantly, there were 346 plants found at different states of growth, which had a total wet weight of 167.35 kilograms.  That, in anybody's language, is a lot.  The commercial quantity is in fact 25 kilograms.

5I note that there is no evidence to suggest that any previous crop had been harvested and, in your particular situation, there is nothing to suggest enrichment in any way, shape or form.  It is a single-day count and you can only be sentenced for having been in the premises, on instructions that you have given your counsel, watering a number of the plants.  I can simply take it no further.  When interviewed by police you essentially did not admit the offending, but very shortly thereafter by reason of your plea you did.  It is an unusual circumstance where the material to be taken into account for sentencing is so constrained.

6Your counsel pointed out that you are now 35.  You have good family support and there are two sisters and your father here in court for you.  You do have two children in Queensland aged seven and 11 and you hope to maintain contact with them.  That augurs well for your rehabilitation.  You came to Australia in 1991 and, importantly, have pretty much always worked.  You have a very good work record in various, albeit menial, forms of employment.  Upon your release you have stable accommodation with your parents and you are not addicted to any substances.  Obviously those matters augur well for your rehabilitation.

7You were recruited at the casino on what I am told, and I have no reason whatsoever to doubt that; as has been pointed out by other judges many times in recent years, that is rich pickings for people who wish to get people to sit crops or import drugs.  In any event, you had a moderate debt and were engaged in this limited way to repay that debt.

8In gaol you have not applied for bail and have endeavoured as best you can to make useful your time there.  You are working in the timber industry and you are in mainstream and have no difficulties with gaol.  There are no Verdins principles involved insofar as you are concerned and I take into account that obviously it is your first time in custody.

9Taking all those matters into account, it is my view, as I indicated to counsel, that a straight sentence is adequate.  The circumstances are that if it was not a commercial quantity, you would probably not go to gaol at all, but the fact of the matter is, Mr Pham, it is a lot of cannabis and general deterrents have got to play a part in the sentencing process.  Specific deterrents in your situation I do not think play a large part.  It is really a matter for you.  Denunciation is tied up with specific deterrence.  All in all, I think the appropriate sentence is one of nine months' imprisonment and I direct that 195 days be reckoned as having been served under this sentence.

10The s.6AAA that I am about to say is rather meaningless in this situation because of the fact that I almost certainly would have given you a partially suspended sentence, which of course I now could not.  But just so you understand what would have occurred, but for your plea of guilty you would have been sentenced to be imprisoned for a period of two years and six months with a minimum term of 18 months. 

11MR DANIEL:  Just a correction, Your Honour, in terms of - it's 196 days in custody.

12HIS HONOUR:  But that is counting today.

13MR DANIEL:  Yes, Your Honour, it counts today.

14HIS HONOUR:  Well, he can have today if he wants it, but normally that - you've got a very generous prosecutor today, Mr Gwynn.  We'll make it 196.

15MR GWYNN:  I won't argue against that, Your Honour.

16HIS HONOUR:  No, you won't argue with that. 

17MR DANIEL:  Thank you, Your Honour.

18HIS HONOUR:  Yes, thanks for that, Mr Daniel.  Yes, all right.  Does that all make sense?

19MR DANIEL:  Yes, Your Honour.

20MR GWYNN:  It does, Your Honour/.

21HIS HONOUR:  Yes, thanks, gentlemen.

22MR DANIEL:  Thank you, Your Honour.

23MR GWYNN:  As Your Honour pleases.

- - -