Director of Public Prosecutions v Pham
[2022] VCC 4
•10 January 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01819
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LOI DUC PHAM |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 December 2021 |
| DATE OF SENTENCE: | 10 January 2022 |
| CASE MAY BE CITED AS: | DPP v Pham |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 4 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of Cultivation of Narcotic Plants - Commercial Quantity; Cannibas L; Gravity of the offending below the mid-range; Accused a crop sitter; Good prospects of rehabilitation
Legislation Cited: Sentencing Act 1991
Cases Cited:Doan v R [2010] VSCA 250; Matamata v R [2021] VSCA 253; Worboyes v R [2021] VSCA 169; DPP v Hoang [2021] VCC 456; DPP v Anh Tran [2021] VCC 224; DPP v Dinh Phan [2019] VCC 760; DPP v Pham [2021] VCC 1521; Nguyen v R [2017] VSCA 286; Power v R (1974) 131 CLR 623
Sentence:33 months’ imprisonment with a non-parole period of 22 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Manova | Office of Public Prosecutions |
| For the Accused | Ms H. Whalley | Gleeson and Co Lawyers |
HIS HONOUR:
Introduction
1Loi Duc Pham, you have pleaded guilty to a charge of cultivation of narcotic plants in a quantity that was not less than a commercial quantity. The narcotic plant is Cannabis L. The maximum penalty for this offence is 25 years' imprisonment.
Circumstances
2On 3 September 2020 members of the Victorian Police force entered a house in Drouin. They did so under a warrant. As they entered you were seen running away. You were not found until 23 March 2021.
3On searching the house, the police members found a sophisticated hydroponic arrangement, spread over five rooms:
(a) temporary walls in the kitchen creating additional rooms for the cultivation of cannabis;
(b) high powered transformers and hydroponic shading with shades. The lighting was set up above and below the plants to promote growth;
(c) black ducted tubing running through the walls and ceiling. These tubes were connected to a carbon filtration system in the roof. It was used to dissipate the smell of the cannabis into the roof cavity;
(d) reticulated watering systems, including a large black plastic tub containing liquid;
(e) the windows and doors were sealed with block-out plastic for the retention of light;
(f) a blue satin or similar material covering the doorways to the rooms used for the cultivation of cannabis; and
(g) an electrical bypass.
4The police found in five rooms of the house the following drugs:
(a) 21 Cannabis L plants weighing 37.60 kilograms;
(b) 129 Cannabis L plants weighing 6.87 kilograms. The weight of this large number of plants is explained by there being 34 seedlings, 51 medium sized plants and 44 large plants;[1]
(c) 23 Cannabis L plants weighing 11.80 kilograms;
(d) 8 Cannabis L plants weighing 13.30 kilograms; and
(e) 16 Cannabis L plants weighing 30.06 kilograms.
[1] I have seen 24 photographs of these plants, showing their different sizes.
5In total there were 197 plants weighing 99.63 kilograms. These plants constitute the charge of cultivation of a narcotic plant in not less than a commercial quantity.
6Both your counsel and the prosecutor strived to identify the degree of your involvement in the cultivation of these cannabis plants:
(a) you were present in the Drouin area between 9.46 am on 13 May 2020 and 10.02 pm on 15 May 2020;
(b) at 4.28 pm and 5.27 pm, you at least were at the Coles supermarket in Drouin on 25 May 2020 and at the house shortly afterwards;
(c) between 4 and 9 June and again on 15 June 2020, you were in the Drouin area;
(d) on 22 June, you and your co-offender made a purchase from a hydroponic store in Springvale South. You and your co-offender then drove to the Drouin house;
(e) on 14 August, you purchased goods from the Woolworths’ supermarket at Drouin;
(f) on 3 September, you ran from the house as the police entered it.
7Following your arrest on 23 March 2021, you were interviewed by police members. You made no admissions, answering the questions with 'no comment' or 'I don't know'.
Pre-sentence detention
8You were arrested on 23 March 2021 and have remained in custody since then. Excluding today, you have spent 293 days in custody.
Legal considerations
9The offence is a Category 2 offence under s3(1) of the Sentencing Act 1991 (‘the Act’). Under s5(2H) of the Act, a court must make a custodial order for such an offence unless an exception exists. No exception exists.
Personal
10You are now 46.
11You were born in Vietnam and are a Vietnamese citizen. You have six siblings. Your five surviving siblings live in Vietnam.
12Your family was poor. You left school at the age of 12 and went to work as a manual and farm labourer. Leaving school at such a young age was common among your siblings. Your earnings contributed to the family's finances. You and your family worked hard, seven days a week unless the weather prevented you from doing so.
13In 2000, you married. There are three children aged five, 16 and 19. Despite your imprisonment you maintain a positive relationship with your wife and children. You were the sole provider for your family, which has ceased while you have been in custody.
14Your imprisonment has prematurely ended the tertiary course undertaken by your eldest child. He was studying at a university in Korea. His studies are privately funded and you are now unable to continue to fund his studies.
15Your mother suffers from ovarian cancer. Diagnosed in 2017 or 2018, she was admitted to hospital for treatment. Surprisingly, for a socialist state, you instruct your counsel that her treatment is privately funded and you were mainly responsible for the payment of the fees. This assertion of fact was not put in issue and I accept it.
16On 23 January 2019 you arrived in Australia on a short-term tourist visa and overstayed the time allowed by your visa. At the time of your remand into custody you were living in Australia unlawfully.
17Shortly after you arrived in Australia you obtained work picking grapes. You earned between $50 and $230 per day. You worked seven days a week unless prevented from doing so by the weather.
18The amount of farming work you performed gradually decreased and ceased in April 2020 with the advent of COVID-19 restrictions. Consequently, you found yourself without any income.
19This is your first time in custody, either in Australia or Vietnam. You spent the first 14 days in isolation and afterwards have been subject to numerous other periods of lockdown and limited movements. Your lack of English has made communicating difficult and made your imprisonment more isolating than would otherwise be the case. Nevertheless, despite this handicap you have completed three courses: cleaning; hygiene; and English language.
20In prison, you have worked, first, as a cleaning billet, and more recently in the prison garden. You work 6 hours a day, 5 days a week.
Discussion
21Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and
(e) to protect the community from the offender.
22In most cases one or more of those purposes are relevant. It is true in your case.
23Plainly, the purposes of deterring you and deterring others from committing these offences, or similar offences, are “at the forefront of sentencing consideration”'[2]. The offence is prevalent. As your counsel acknowledges, the offence of cultivation of a commercial quantity of a narcotic plant is a serious offence. Although, as I say later, your prospects of rehabilitation are good, the need for specific deterrence remains important.
[2] Doan v R [2010] VSCA 250 at 17.
24My sentences should manifest a denunciation of the offence. It should also act to protect the community from you. Aspects of these purposes may be achieved through your rehabilitation. For if you are rehabilitated, then you will not re-offend by committing this or similar offences again.
25Section 5(2) of the Act sets out factors which I must, if they are relevant, take into account in sentencing you.
Gravity
26Apart from the seriousness of the offence suggested by the maximum penalty, the amount of Cannabis L means it was a commercial quantity in terms of the number of plants and their weight.[3] Here there were 99.63 kilograms and 197 plants. In terms of weight and quantity, it is almost four times and almost twice the respective thresholds. Cultivating a large commercial quantity of a narcotic drug is a more serious form of cultivation than the charge against you. The distinction between the offences is quantity. For cultivation of a large commercial quantity of Cannabis L, the figures are 250 kilograms or 1,000 plants.
[3] A commercial quantity is 25 kilograms or 100 plants.
27Plainly, quantity is a significant factor in determining the seriousness of this type of offence. Looking at the thresholds of offences of cultivating a commercial quantity and a large commercial quantity of a narcotic plant, the amount involved in your case is near the mid-point in terms of weight and about 20 per cent in terms of the number of plants.
28Unlike other cases, your involvement in the offence concerned only that property rather than a network involving more than one property. However, the operation was sophisticated. It occupied five rooms of the house. It involved a hydroponic set-up which included lamps and an electrical bypass.
29The prosecution does not suggest you were a principal offender in this enterprise. The period of your involvement in the cultivation was between
25 May and 3 September 2020. Your counsel submitted this was a relatively short period for this offence and so it was.30Your counsel traced the objective evidence of the times and activities placing you at the property or in the Drouin area. She submitted you were not present at the property continuously. Moreover, on her analysis, she submitted you were at the property weekly. These are reasonable inferences.
31Your counsel described you as a ‘crop sitter' rather than someone intimately involved in the cultivation. I accept the accuracy of the description notwithstanding your presence at a store to buy a large tub, no doubt used for cultivation. Cultivation can involve many activities. The definition of 'cultivate' in s72B of the Act includes the activities of sowing a seed, planting, growing, tending, nurturing or harvesting a plant or grafting, dividing or transplanting a plant. I do not know the purpose of the tub, but it could well fall within the usual activities of cultivation.
32Although there is no direct evidence on the point, the reasonable inference is that you were paid for your activities. At the time, you were unemployed. Given your unlawful presence in the country you were receiving no benefits from the State. You still retained financial obligations to your family.
33Objectively, the gravity of your offending is below the mid-range but it is not low.
Moral responsibility
34You lost your employment because of the restrictions due to the pandemic. You had no income but dependents. Instead of returning to Vietnam, you embarked on a criminal activity. You offended for money. Owing to your lack of assistance to the police, the amount you received is unknown. Your moral responsibility is high.
Deportation
35Your counsel submits the prospect of your deportation is a mitigating factor. In Matamata v R the Court said:[4]
“This Court has recognised that the impact of deportation may vary depending upon whether the offender has established ties to the Australian community. In Konamala v The Queen, the Court stated the following:
Self-evidently, whether the prospect of deportation in a given case will make the burden of imprisonment more onerous will depend on the prisoner’s personal circumstances. It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language or culture have caused them to be isolated. On the other hand, the prospect of deportation might be a severe additional punishment for an offender who had aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country, or has other ties to the Australian community.”
[4] [2021] VSCA 253 at [31].
36I do not consider your prospect of deportation will make the burden of imprisonment upon you more burdensome. At the time of your offending you were in Australia illegally. You compounded this illegality by committing this offence. Your family resides overseas. There was no suggestion that they join you in this country. Although you may have resided in this country for two years, you could not reasonably expect to be allowed to remain after the expiration of your sentence. The prospect of you obtaining a visa after your release from prison is so low as to be illusionary. It is not a coincidence you were arrested immediately after providing your fingerprints at the Melbourne Office of Home Affairs. It implies a collaboration between the Federal department and the State police. In your case the prospect of deportation has no mitigatory effect.
Guilty plea
37You were arrested on 23 March 2021. You indicated an intention to plead guilty to the charge on the day before the committal hearing. You were committed the next day. This was before any evidence was given. Before the date of the committal hearing, there was a committal mention hearing. Your indication of an intention to plead guilty was not indicated at the earliest reasonable opportunity. That would have occurred at the committal mention hearing. However, the indication was given at an early opportunity.
38In almost every case, a plea of guilty deserves a mitigation of the sentence which would be otherwise imposed in the absence of such a plea. At the very least, it avoids the need for a trial. This saves the time and expense of a trial and allows other cases to be heard earlier than would otherwise be the case. It avoids the need for witnesses to give evidence at a trial. Generally, this is an onerous task for witnesses.
39Due to the restrictions caused by the pandemic, the courts have struggled to deal with criminal cases efficiently. This has prompted the Court of Appeal, in the case of Worboyes v R[5], to explain that pleas of guilty, made at this time are worthy of even a greater discount of the sentence. It is important to quote a passage from the Court's judgment in Worboyes' case to show the emphasis placed on pleas of guilty in this time of restriction:[6]
“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.”
[5] [2021] VSCA 169.
[6] [2021] VSCA 169 at [35].
40Your plea of guilty is evidence of your remorse.
Rehabilitation
41You gave no assistance to the police after your arrest. However, as I have just said, I accept your plea of guilty is evidence of remorse. You have never been imprisoned before. One expects the deterrent effect of your time in custody is significant. There is no suggestion of any matter personal to you which would impede your rehabilitation. By that I mean a history of substance abuse or suffering from a recognised psychological disorder. I accept your prospects of rehabilitation are good.
Imprisonment
42I have already mentioned the maximum penalty for this offence.
Criminal history
43As to your criminal history, you have none, whether in Australia or Vietnam. Accordingly, for many years until the commission of this offence, you were of good character. That requires some mitigation in penalty.
Current sentencing practice
44Ms Manova for the Director of Public Prosecutions, drew my attention to sentences of judges in this court and judgments of the Court of Appeal.[7]
[7] See DPP v Hoang [2021] VCC 456; DPP v Anh Tran [2021] VCC 224; DPP v Dinh Phan [2019] VCC 760; DPP v Pham [2021] VCC 1521; Nguyen v R [2017] VSCA 286.
Sentence
45On the charge of cultivating a commercial quantity of a narcotic plant you are sentenced to 33 months' imprisonment. I will set a non-parole period of 22 months' imprisonment.
46Your counsel submitted I should fix a shorter than normal non-parole period. Understandably, she did not submit what is a 'normal' non-parole period for a non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.[8] One of the factors she relied upon was the burden of imprisonment upon you. It is true that in the time of the restrictions due to the pandemic, imprisonment has proven for you and will now prove due to my sentence more difficult than in other normal times. I have considered this factor in fixing my sentence, including the non-parole period. As I said earlier the prospect of deportation is immaterial in your case. The non-parole period which I have set is, in my opinion, appropriate.
[8] Power v R (1974) 131 CLR 623 at 628.
Pre-sentence detention
47Excluding today, I declare the 293 days of your pre-sentence detention as time served under my sentence.
Section 6AAA Declaration
48If you had not pleaded guilty but had been found guilty by a jury, I would have sentenced you to 44 months' imprisonment with a non-parole period of 33 months' imprisonment.
Disposal order
49I will make the disposal order in the terms sought.
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