Director of Public Prosecutions v Phan

[2016] VCC 1667

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00938

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN VUONG PHAN

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2016
DATE OF SENTENCE:	11 November 2016
CASE MAY BE CITED AS:	DPP v Phan
MEDIUM NEUTRAL CITATION:	[2016] VCC 1667

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs
For the Offender	Ms S. Lenthall

Pages 1 - 5

1 - 5

 

 

HER HONOUR: 

1Van Vuong Phan, you have pleaded guilty to one count of trafficking in a commercial quantity of cannabis.  The maximum penalty for this offence is 25 years.  You have also agreed to have a related summary offence heard by me and have pleaded guilty to possessing a prohibited weapon.  The maximum penalty for that offence is 240 penalty units or two years' imprisonment. 

2The circumstances of your offending are detailed in the prosecution opening, Exhibit A, and can be summarised as follows. 

3On Thursday 3 March 2016, police attended to execute a warrant at your home in Braybrook.  You and your then partner and child were all at the house which smelt strongly of cannabis.  A search was conducted of the house and your car and the following items were seized:

·Seven large plastic bags, each containing multiple small vacuum-sealed bags of cannabis three clear plastic bags of cannabis;

·Five cannabis buds;

·Four vacuum-seal machines;

·Five mobile phones;

·One silver blade black-handled knife; that is the subject of summary charge, possessing a prohibited weapon, and;

·A Commodore car. 

I was provided with photographs of all the items that were seized.

4The cannabis was later analysed by a botanist and found to weigh 79.58 kilograms.  The commercial quantity threshold is 25 kilograms. 

5You were arrested and interviewed by police with the assistance of an interpreter.  You admitted to living in the house and that the car was yours but otherwise made a no comment interview.  You were charged and remanded in custody on 3 March 2016. 

6I received a report from David Bell, forensic psychologist dated 25 August 2016, which sets out your personal circumstances and other matters which I take into account. 

7You are currently aged 27 and are a Vietnamese citizen.  You came to Australia on an education visa in June 2013.  Your visa was cancelled a few months later when you ceased your education, as your parents were no longer able to provide you financial support.  You were thus unlawfully in Australia at the time of this offending. 

8You were raised in Vietnam and had a dysfunctional upbringing with your father, being a chronic alcoholic who subjected your mother and siblings to violence.  You had a very limited education and, soon after completing primary school, lived with your uncle with whom you also worked in hospitality.  You worked with him for about six years. 

9You have had issues with substance abuse from a very young age.  You commenced using alcohol at 14, though this progressed to using significant amounts of cannabis and methylamphetamine.  You have had other health issues including asthma, intestinal pain and you attempted suicide on four occasions with sleeping tablets.  Part of the reason behind you coming to Australia related to this latter issue. 

10Mr Ball is of the opinion you currently have no mental health issues. 

11You came to Australia in 2013 as a result of your parents arranging a student visa so that you could study both hospitality and English.  You studied hotel management and NMIT for about three months, then as indicated above, the financial support from your parents stopped. 

12You sought and found a job in retail.  You unsuccessfully tried to return to your studies, including to learn English, but you have not completed any of the courses.  You continued to use cannabis when in Australia and also started using cocaine. 

13You have had significant issues with gambling.  At the time of this offence you amassed a substantial debt, I was informed, of approximately $200,000.  You were told by associates that you could make money dealing in cannabis. 

14I was informed and it was accepted by the prosecution that your role was that the cannabis would be delivered to you and you would then forward it to someone else.  There was no evidence that you had actually engaged in selling the drug and you were characterised as mid-tier. 

15Though gambling is not a matter in mitigation it does provide background or explanation for you becoming involved in this criminal behaviour. 

16You have had two significant relationships in your life.  You are married and your wife and other family members were in court.  Your wife remains supportive of you and hopes to reunite with you on your release and once your immigration issues are determined. 

17At the time of this offending you were in a relationship with Ms Vu and have a child with her. 

18I take into account your plea of guilty which was entered at the first opportunity.  There is a significant utilitarian benefit in the plea, saving the community the cost and inconvenience of a trial.  Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness by you to facilitate the course of justice.

19Additionally, I accept your plea is indicative of remorse.  You have expressed this to Mr Ball, particularly realising the impact of this offending on your family.  You have no prior criminal history.

20You have been in custody for 253 days.  It was reported by Mr Ball that you have seen the benefits of not using drugs during this time.  As to your rehabilitation prospects, Mr Ball is of the opinion that you have the capacity to rebuild your life as long as you receive treatment for your drug use. 

21I understand that you have a position of responsibility within the gaol, working in the prison timber industry and you are accommodated in a privileged cottage. 

22As noted, your car was seized and is subject of an ancillary order as a consequence of the drugs being located in it. I take that into account under s.5(2)(A) of the Sentencing Act. 

23Your counsel conceded that imprisonment was the only appropriate disposition for your offending, though submitted I should impose a straight sentence.  The prosecution did not challenge the appropriateness of that course. 

24Trafficking of drugs in a commercial quantity is a very serious offence.  General deterrence has an important role to play to discourage others, who like you, find themselves in financial strife and are tempted to become involved in this criminal activity on  this scale.  Whatever role is to be played they need to understand they will be punished. 

25Specific deterrence has limited application to you, particularly given your positive rehabilitation prospects.  Though given your drug history, the path will not be easy.

26I take all matters in mitigation outlined above and submitted to me by your counsel into account and these must be balanced with other sentencing considerations. 

27If you could stand up please, Mr Phan.  In respect of Charge 1, you are convicted and sentenced to a term of imprisonment of 22 months.  In respect of the summary offence, you are convicted and sentenced to a period of one month. 

28Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a sentence of five years' imprisonment with a minimum of three years.  I declare pre-sentence detention of 253 days. 

29The prosecution has applied for a forensic sample order which I will make. Pursuant to s.464ZF (2) of the Crimes Act, I order you undergo a forensic procedure for the taking of a scraping from the mouth until a sample of sufficient standard is obtained for placement on a database.  I must inform you that if at the time of the request you do not agree to the taking of the mouth scraping for the sample that a blood sample may be taken with reasonable force being used. 

30I also make the disposal order and the forfeiture order and I also declare  pre-sentence detention of 253 days. 

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31HER HONOUR:  Are there any other matters?

32MR NIBBS:  No Your Honour.

33MS LENTHALL:  No Your Honour.  Can I just confirm is that one month cumulative ‑ ‑ ‑

34HER HONOUR:  No. 

35MS LENTHALL:  Thank you Your Honour.

36HER HONOUR:  I'll just do these orders for you now. 

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