Director of Public Prosecutions v Phan

[2015] VCC 1662

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR

DIRECTOR OF PUBLIC PROSECUTIONS

v

BAO NGOC PHAN

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 November 2015
CASE MAY BE CITED AS:	DPP v PHAN
MEDIUM NEUTRAL CITATION:	[2015] VCC 1662

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Flynn
For the Accused	Mr A. Zingler

HIS HONOUR:

1I am going to state my reasons for your sentence.  You can remain seated whilst I do that.  Then I am going to ask you to stand to be formally sentenced at the end of that.  It will take five or so minutes.

2Bao Ngoc Phan, you are to be sentenced to one charge of cultivating a narcotic plant, cannabis, in a commercial quantity.  The maximum sentence is 25 years imprisonment. 

3You pleaded guilty before me today, 19 November 2015.  When interviewed by police on 15 March 2015, you exercised your right to silence.  However, committal went by hand up brief on 31 July, after which you entered a plea of guilty. 

4You receive  the benefit of your early plea of guilty and that level of cooperation.

5At your plea hearing, also today, Ms Flynn for the Crown tendered a written Crown opening and a folder of photographs, depicting the Torquay house and crop you assisted to grow there.

6Mr Zingler for you tendered the forensic psychological report of Dr Aaron Cunningham dated 18 November 2015, and certificates related to each educational programs in remand custody. 

7The tendered Crown opening, Exhibit A, states the circumstances of offending.  On 12 March of this year, police raided the premises at 22 Onshore Road, Torquay.  They found a typical hydroponically grown cannabis crop.  The house was divided into 11 parts in which cannabis was grown in various stages of maturity.  The total number of plants was 513, approximately five times the commercial quantity threshold.  The wet weight was about 107 kilograms.  The threshold  weight is 25 kilograms.  There were also found electrical equipment and other items consistent with such an enterprise.  Potting mix and fertilisers were found in a motor vehicle registered to you.  This was parked in the garage of the premises.  That vehicle is the subject of a forfeiture order.  You have therefore suffered that loss.

8You were at the premises in the company of co-accused Thy Nguyen.  His placement for treatment in hospital has prevented his plea hearing running today.  You are 21, he is aged 53.  Both of you attempted escape when police entered, but were located and arrested.

9You were born and raised in a north Vietnamese rural province.  You did well at school.  Your family suffered financial hardship because of a falling out with a relative.  Accordingly, you came to Australia in 2012 at 19  to study and help support them.

10Further family financial hardship caused you to stop your course, a Business Diploma at RMIT.  You remained here on a valid student visa working in  Vietnamese restaurants on a subsistence income and still attempting to send money home.  You felt isolated with little support.

11You were approached in respect of this offending in early 2015.  I accept that your situation made you vulnerable to the offer.  That was accommodation at the crop house and $300.00 per week.  During the period of offending, January to March, your role was to water the crop and transport necessary chemicals.

12You have been in remand since arrest,  now about eight and a half months.  That has been more difficult than for others because of language and cultural isolation, and because of lockdown conditions arising out of riots in late June of this year.  You have been able to work since mid-August.  Your situation in prison can be taken into account by me.  You did not come to Australia in order to offend.  Dr Cunningham states you to be developing symptoms of depression and anxiety reactive to your situation. 

13Upon release on parole for this sentence, you will be deported.  It was not put that this has particular significance to your sentence.  You will be given the appropriate head sentence and minimum term.

14Offending of this kind is seen as prevalent and serious.  Considerations of deterrence, particularly general deterrence, your moral culpability and condemnation of the offence apply.  General deterrence is particularly relevant.  The proportionate punishment must be a sentence of imprisonment. 

15There are mitigating or moderating factors.  You have pleaded guilty and cooperated.  You are still young at 21 and have no criminal record.  Rehabilitation upon return to your own country must be seen as a genuine prospect.  Your personal circumstances, both at the time of offending and now are relevant.  Mr Zingler has argued in view of these matters for a minimum term of proportionately shorter length. 

16Having considered what I see to be the relevant matters, both adverse and favourable to you, I sentence you as follows.  Stand up please.  For one charge of cultivating cannabis in a commercial quantity, you are sentenced to three years imprisonment.  I set a minimum term of 12 months before eligibility for parole. 

17Under s.18 of the Sentencing Act, I declare 252 days of pre-sentence detention already served. Had you not pleaded guilty, I would have imposed a sentence of four years, with a minimum term of two and a half years. Sit down please. Now the disposal order and the forfeiture order are to be signed?

18MS FLYNN:  Yes, Your Honour, I have copies of each.

19HIS HONOUR:  There's no application for a 464ZF?

20MS FLYNN:  There's not, Your Honour. 

21HIS HONOUR:  Thank you.  The forfeiture order is in respect of the several phones, motor car, cash and other things.  The disposal order is in respect of the drugs, cannabis plants and the other related equipment of items.  Yes, thank you.  Mr Phan can be taken into custody now.

22MR ZINGLER:  As Your Honour pleases.

23HIS HONOUR:  Thank you, Mr Zingler for your help. 

24MR ZINGLER:  Thank you, Your Honour.

25HIS HONOUR:  You're excused, I must see you later. 

26(At this stage the court proceeded with another matter.)

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