Director of Public Prosecutions v Pham
[2022] VCC 1970
| IN THE COUNTY COURT OF VICTORIA AT Latrobe Valley CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00306
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUC PHAM |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Latrobe Valley | |
DATE OF PLEA: | 24 March 2022 | |
DATE OF SENTENCE: | 28 March 2022 | |
CASE MAY BE CITED AS: | DPP v Pham | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1970 | |
REASONS FOR SENTENCE
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Subject:SENTENCE - CRIMINAL LAW
Catchwords: Guilty Plea – Cultivate commercial quantity of narcotic plant – Possession of a narcotic plant – Risk of deportation – No criminal history
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991
Cases Cited:Nguyen and Pham v The Queen [2018] VSCA 322; Nguyen v The Queen [2017] VSCA 286; Nguyen v The Queen [2021] VSCA 2011; Nguyen v The Queen [2010] VSCA 127; Dang v The Queen [2020] VSCA 24; Worboyes v The Queen [2021] VSCA 169
Sentence: 3 years imprisonment with a minimum non-parole period of 2 years imprisonment.
s6AAA declaration: 4 years and 6 months imprisonment with a non-parole period of 3 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | N Batten | Solicitor for the Office of Public Prosecutions |
| For the Accused | N Howard | Victoria Legal Aid |
HIS HONOUR:
1Duc Pham you have pleaded guilty on Indictment M11145724 to one charge of cultivation of a commercial quantity of narcotic plant, namely Cannabis L, for which the maximum penalty is 25 years and one charge of possession of Cannabis L, which the maximum penalty is 5 years, because a trafficking purpose is not excluded. Charge 1 is a Category 2 offence meaning a period of imprisonment must be imposed in the absence of the stipulated statutory criteria being satisfied. It was not argued in this case that there is any other option but a period of imprisonment.
2You were born in December 1983, and you were aged 37 at the time of the offending. Your home address was St Georges Avenue, Springvale 3171. You are Vietnamese and came to Australia on a temporary working visa which has been cancelled as a result of this offending.
3The circumstances of your offending were outlined in the Prosecution Opening which was tendered as an exhibit on the plea. I will summarise those circumstances briefly.
Circumstances of the offending
4In April 2021, Police investigated a factory at Middle Road in Trafalgar because it appeared to be using an electrical by-pass and had been leased using a falsified document. The building was surrounded by a high cyclone fence. The front gate was chained and padlocked. Each external door was locked.
5On 27 May 2021, Police observed your vehicle parked in the grounds of the Trafalgar address. Your vehicle did not leave the address up until police executed a search warrant on 2 June 2021. A Covid-19 lockdown was in force during that period.
6When police executed the search warrant, numerous empty boxes were stacked in front of the factory's entryway. It seemed this was to create the appearance of a functioning logistics company.
7Police found you on a mezzanine level inside the factory, which contained a makeshift sleeping area and your personal belongings. A set of keys to the factory was found in your possession.
8Inside the factory was a hydroponic set up in six rooms which were either permanent features of the factory or which had been constructed with semi-permanent walls for the purpose of cultivating cannabis. Features of this cultivation were:
· Electrical transformers and by-pass;
· Ventilation equipment (exhaust fans and tubing which exited the factory at the rear);
· Electronic timing device;
· Heat lamps;
· Ceiling fans;
· Carbon/Charcoal filters; and
· Carefully arranged Cannabis plants contained in black tubs lined in rows.
9The electronic timing device was connected to an electrical by-pass and provided power to rooms 3, 7, 8, 12 and 13 on an 18-hour cyclic period per day, and rooms 10 and 11 on a 12-hour cyclic period per day.
10Police seized the items set out in the Prosecution Opening including:
· 177 x Electrical power switches and 5 x electrical boards;
· 15 x Charcoal filters;
· Mixed Cannabis L., material with an unidentified plant product weighing 1.24 kilograms;
· Mixed Cannabis L., material with an unidentified plant product weighing 7.52 kilograms; and
· 413 cannabis plants across the six rooms.
11The total weight of the Cannabis plants seized was 223.349 kilograms. This is the basis of charge 1 – cultivation of a narcotic plant – commercial quantity.
12The total amount of the other Cannabis seized was 8.76 kilograms mixed. This forms the basis of Charge 2 – possession of a drug of dependence – Cannabis L.
13The prosecution case is that between 27 May 2021 and 2 June 2021, you lived at the Trafalgar property, in the makeshift sleeping area, and you were responsible for tending to the crop.
14You were remanded in custody from your arrest on 2 June 2021. You were not interviewed because you told police that you had recently visited a tier 1 Covid-19 site and two other exposure sites.
Guilty plea
15You pleaded guilty at the committal mention in this case, which was the earliest opportunity. The utilitarian value of your plea is heightened because of the substantial backlog of trials resulting from the suspension of jury trials during the pandemic. This increased utilitarian value of a guilty plea was recognised in the decision of Worboyes v The Queen [2021] VSCA 169.
16I am satisfied that your plea indicates a level of remorse and a willingness to facilitate the course of justice. You are entitled to a significant sentencing discount because you have pleaded guilty.
Personal circumstances
17Your personal circumstances were outlined in the defence submissions which were tendered as an exhibit on the Plea. You were born in Hai Phong, Vietnam in December 1983. You were 37 at the at the time of the offending. You are now 38. You have three older sisters who live in Vietnam. Your father was a university lecturer. Your parents are now in their 70s, living in Vietnam and are supportive of you.
18I am told you excelled academically at school. You have a degree in marine construction from the Vietnam Maritime University. During university, you built houses for the elderly whose children had died in war.
19I am told that before you graduated you started a successful computer business and repair business with a friend. You then invested your earnings in the property market and later sold your business in 2010 to invest in the stock market. I'm told you suffered large losses and went bankrupt in 2017.
20Against that background you came to Australia with your wife in 2017 on a working visa. You believed you could make a better life here. Your wife left you immediately on arrival and flew to Adelaide working for the same business who employed you in New South Wales, a food manufacturing company.
21In early 2020 your wife returned to New South Wales to work at the same location as you because of a fire at the company's Adelaide operation. You could not cope with this, so you left and came to Victoria. You lived in Springvale. Unable to obtain work during the pandemic you became engaged in this criminal activity.
Gravity
22Cultivation of cannabis in a commercial quantity is a serious offence with a maximum penalty of 25 years. It is also a Category 2 offence under s 3(1) Sentencing Act 1991. It was accepted by your counsel, Mr Howard, that imprisonment is the only sentence open.
23In the case of Dang v The Queen [2020] VSCA 24, the Court of Appeal commented on sentencing in commercial cultivation cases at paragraph 15 as follows:
'In drug offences generally, including the cultivation of cannabis, the quantity of drugs and the role of the offender are important indicia of the gravity of the offending. The quantity of drugs is reflected in the statutory scheme and will also reflect the dimensions of the enterprise and, in a general sense, the scale of profit that the enterprise may be expected to generate.'
24The commercial quantity threshold is 100 plants or not less than 25 kilograms. In this case the amount cultivated is over 4 times the commercial quantity threshold by number of plants and nearly 9 times the commercial quantity by weight.
25Mr Howard submitted the offending was committed over a seven-day period and that you were a 'crop sitter' tending to the crops, by watering them, whilst living at the premises. He conceded that the set-up was sophisticated, he also conceded your motive was a financial one to repay debts and to provide for family in Vietnam. He submitted you did not play a role in establishing the crop and you were not an organiser or principal. He submitted your role was at the lower end of this operation. As to financial reward I do not know how much you were to be paid for your services but presumably it was significant enough to justify the risk you were taking.
26Mr Batten made his submissions on the basis you were 'crop sitter'. He emphasised the large amount of cannabis involved approached the large commercial threshold of 250 kilograms. He directed me to the case of Nguyen and Pham v The Queen [2018] VSCA 322 as an example from the Court of Appeal of sentences imposed in a crop sitting case and pointed out the comments of the Court of Appeal in Nguyen v The Queen [2021] VSCA 2011 regarding the inadequacy of current sentencing practices.
27In another case of Nguyen v The Queen [2017] VSCA 286 the Court of Appeal had this to say about the offender's role in the offending at paragraph 2:
'It is important that any label that is attached to the offender's role should not obscure, or distract attention from, the various factors that are relevant to a proper assessment of the gravity of the offending in a particular case. Those factors ordinarily include matters such as the tasks performed by the offender in the enterprise, the nature of his relationship with the principals or leaders of the enterprise, the degree of trust and responsibility reposed in the offender, the size, scope and sophistication of the enterprise, and any expectation of the offender in respect of the rewards to be derived from the enterprise'
28I sentence you on the basis that you were paid to look after this crop but that you were at the lower end of this operation - a paid employee effectively but with an important role over the period you were involved. A set-up of this sophistication requires ongoing attention and protection. The seriousness of your offending is underpinned by the overall weight of the cannabis, the sophistication of the set-up and your important role. Your relationship to the principals remains opaque.
29Without people to take on the sort of responsibilities you had in this case, those who organise such cultivations can avoid detection and prosecution. They can engage in this unlawful and profitable activity relatively risk free.
30It is clear from the Court of Appeal cases dealing with commercial cultivation that general deterrence, that is, the need to deter others who might be inclined to offend in the same way as you did, is of primary importance in a case such as this. I must also of course denounce this offending.
Custody
31In custody you have worked in the prison laundry. You would like to undertake educational programs, but availability has been limited due to pandemic restrictions. I accept that your time in remand has been more onerous due to the prison restrictions in response the pandemic, including periods in isolation and lockdown. You have limited English, and you are in prison in a foreign country, cut off from your family about whom you are worried. I am satisfied that this period of imprisonment, your first, will weigh heavily on you for these reasons.
Deportation
32Your certain deportation has some limited relevance. This is not a case where you have lived here for a long time or where you are leaving behind a settled family, such that deportation amounts to an additional significant punitive consequence; however, I accept you came to Australia in 2017 with the intention to settle permanently and this option is now closed. I take this into account in assessing the burden of your imprisonment.
Prospects of rehabilitation and specific deterrence
33You have no prior convictions, and you are a well-educated, intelligent person. In my view you have good prospects of rehabilitation. You will be deported to Vietnam. In the circumstances specific deterrence has little role to play in formulating your sentence.
Totality
34The overall sentence I impose must be just and proportionate to the totality of your offending. Charge 2 adds little to your criminality. It arises from your involvement with the property, and the cannabis at the premises was presumably a product of the cultivation enterprise. I intend to impose a concurrent sentence for this offence.
35I will now proceed to sentence.
Sentence
36On Charge 1 of cultivation of a commercial quantity of Cannabis L, you are convicted and sentenced to 3 years imprisonment.
37On Charge 2 of possession of Cannabis L, you are convicted and sentenced to 6 months imprisonment.
38The sentence on Charge 2 is to be served concurrently with the sentence on Charge 1. That makes a total effective sentence of 3 years. I fix a non-parole period of 2 years.
39Pursuant to s 18 of the Sentencing Act 1991, I declare the pre-sentence detention of 300 days to be deducted from the sentence I have imposed today.
40Pursuant to s 6AAA, I indicate that I would have imposed a sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years imprisonment, but for your plea of guilty in this matter.
41I make the ancillary orders sought by the prosecution.
42HIS HONOUR: No other matters, Ms Walter?
43MS WALTER: No, Your Honour.
44HIS HONOUR: Mr Howard, no other matters?
45MR HOWARD: No, Your Honour.
46HIS HONOUR: All right.
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