Director of Public Prosecutions v Pham

[2022] VCC 502

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

CR-21-02305

DIRECTOR OF PUBLIC PROSECUTIONS

v

DINH PHAM

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JUDGE:	His Honour Judge Dean
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2022
DATE OF SENTENCE:	4 March 2022
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2022] VCC 502

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Cultivating a commercial quantity of a narcotic plant – Theft - Early plea of guilty - No prior criminal history – ‘Sitter’ - General deterrence - Immigrant - Good prospects of rehabilitation – Isolation in custody

Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958

Cases Cited: Markovic v The Queen [2010] VSCA 105

Sentence: Total effective sentence – Imprisonment of 2 years and 6 months with a non-parole period of 1 year and 3 months – s.6AAA declaration – Imprisonment of 3 years and 6 months with a non-parole period of 2 years and 6 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Johnston	Office of Public Prosecutions
For Accused	Mr C. Nakakis	Haines & Polites Lawyers

HIS HONOUR:

1Dinh Pham, you have pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant, namely cannabis, contrary to s 72(A) of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is 25 years imprisonment.

2You have also pleaded guilty to theft of a quantity of electricity contrary to s 74 of the Crimes Act (1958). The maximum penalty for that offence is 10 years imprisonment.

3You pleaded guilty at committal, and I have taken your early plea into account in your favour of mitigation of sentence.  Your plea was entered during the COVID-19 pandemic, and it has facilitated the administration of justice during the impact on the criminal justice system of the various restrictions imposed in response to the pandemic.  I also accept that it is evidence of some remorse for your offending.  Your plea is a high-value plea of guilty, and I have taken it into account in your favour in mitigation of sentence. 

4You have no prior convictions, no subsequent convictions, and there are no outstanding charges in your case. 

5A prosecution opening was tendered in evidence, and your offending may be summarised as follows -

6In approximately April 2020, police conducted an investigation in relation to premises located at Number 9, Howitt Street, St Arnaud - a regional Victorian town - in relation to information that the property was being used as a hydroponic grow house.  Between 1 January 2021 and 31 January 2021, police investigations revealed that you attended at those premises on a number of occasions, and a rental car used by you was identified at the premises. 

7At approximately 4.37 pm on 31 January 2021, investigating police executed a search warrant at the property, and upon their attendance directed that all occupants leave the premises.  You walked out of the property as requested and were taken into custody.  No other person was present at that time. 

8Inside the property police identified a sophisticated hydroponic cannabis crop system with the usual light fittings, irrigation system, and plant growing equipment associated with such an enterprise.  179 cannabis plants at varying stages of growth were located.  The plants, branches and flowering heads weighed approximately 95 kilograms, but I accept that the usable amount of that cannabis was significantly less, in the area of 35 kilograms.

9Whatever the appropriate weight to calculate the value of the cannabis is, it is plain from the operation and the volume of the cannabis present in the premises that this was a commercial crop grown for commercial purposes, and indeed when you were interviewed by police, you told them that you were paid by unknown persons for your attendance at the premises.

10As is also generally the case, an electrical bypass system had been installed in order to avoid the metering and the payment of the electricity used to power the system.  Analysis of your telephone also established your regular attendance at the premises together with other forensic evidence that linked you to it.  As I have observed during the course of the plea, during the course of a record of interview conducted by investigating police with you, and with the assistance of a Vietnamese interpreter, you made a number of admissions in relation to attendance at the property, but did not fully admit your offending.

11It is plain from this summary that you were engaged in what is colloquially known as the role of a 'sitter', or person providing some limited maintenance in relation to the cannabis that was located at the premises.  It is not the prosecution case that you were the principal in any organisation involved in the cultivation of the cannabis or that you had a direct commercial interest in or ownership of it.  As I have said, it is appropriate for me in those circumstances to sentence you on the basis that you were a sitter.

12The sentencing principles applicable to offending of this nature are well established, and this sentence must be calculated to deter others from offending in this way.  It is not appropriate for me to distinguish between cannabis and any other illegal drug of dependence.  The fact remains that it is the experience of this court that cannabis itself is a deleterious substance.  Furthermore you must be punished for your role in what can properly be described as a commercial operation.

13However, by reference to your lack of criminal history and your limited role in the offending, in my opinion specific deterrence has no significant role to play in the formulation of the appropriate, proportionate sentence. 

14I now turn to your personal circumstances.

15You were born in Vietnam in October 1973 and are now aged 48.  You arrived in Australia in 2016 from Vietnam, and since that time you have worked as a cleaner and in a range of other labouring type operations.  Your counsel also submitted that there are no relevant physical or mental health issues for me to have regard to in your case.

16In the plea in mitigation, a medical report in relation to your wife was tendered, detailing the current medical circumstances that she faces.  She is currently living alone and is isolated from you, and you two have been married for approximately four years, during which time your wife has been essentially dependent on your for emotional and to some degree physical support.  Since your incarceration, her mental and physical health has deteriorated.  It is not submitted, however, that her circumstances are such that the principles set out by the Court of Appeal in Markovic v The Queen [2010] VSCA 105 are engaged in your case.

17Your counsel submitted that it would be appropriate for me to fix a sentence that provided for your immediate release from prison without consideration being given to the fixing of a non-parole period and a head sentence; in other words, he submitted that I ought to sentence you for both of these offences to what is known as a straight sentence.  Whilst I sympathise with the submission that you are not an offender who requires supervision or support in the community on parole, the Court of Appeal has made it clear that, for offences of this nature - which carry a maximum penalty of 25 years imprisonment - the only sentence open to a court is the imposition of a head sentence together with a non-parole period, unless exceptional circumstances apply.

18There is nothing in this case that suggests that I should not follow those sentencing principles.  You have been in custody during the COVID-19 pandemic and you do not speak English, and plainly for these two reasons your imprisonment has been characterised by isolation.  The only contact you have had with friends and family have been occasional Zoom calls with your wife.  It is also clear from your personal circumstances that your prospects for rehabilitation are excellent and in my opinion the likelihood of you reoffending is negligible.

19In the result, the sentence of the court is as follows –

20On Charge 1, the charge of cultivating a commercial quantity of a narcotic plant, you are convicted and sentenced to be imprisoned for 2 years and 3 months. 

21On Charge 2, the charge of theft, you are convicted and sentenced to be imprisoned for 6 months. 

22The sentence imposed on Charge 1 is the base sentence.  I direct that 3 months of the sentence on Charge 2 be served cumulatively on Charge 1.  This makes for a total effective term of imprisonment of 2 years and 6 months.  I direct that you serve 15 months imprisonment before becoming eligible for release on parole.

23I declare that you have served 397 days by way of pre-sentence detention.

24But for your plea of guilty, I would have imposed a total effective term of imprisonment of 3 years and 6 months and fixed a non-parole period of 2 years and 6 months. 

25I will make the forfeiture and other orders sought by the prosecution. 

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