Director of Public Prosecutions v Phan

[2014] VCC 2304

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

AT GEELONG
CRIMINAL JURISDICTION

CR X

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUYEN THI PHAN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	12 December 2014
DATE OF SENTENCE:	12 December 2014
CASE MAY BE CITED AS:	DPP v Phan
MEDIUM NEUTRAL CITATION:	[2014] VCC 2304

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.B.B. Lewis	Office of Public Prosecutions
For the Offender	Mr D. Cash	Dribbin and Brown

HIS HONOUR: 

1I have sentenced the co-accused, Mr Nguyen, so I intend to rely upon, as I would, if they were together in the dock, the same sentencing remarks in large part that I did with Mr Nguyen.

2Huyen Phan in mid-2013, a unit in Grovedale was sold on the basis that the purchaser would take up occupation and pay rent for a period before final payment.

3In February 2014, as a consequence of information, the police raided that unit and discovered the unit had been converted into a cannabis production house.

4You, Huyen Phan and your then boyfriend, Xuan Nguyen, were arrested in a car nearby.  In your record of interview you denied involvement.

5You had arrived in Australia in February 2013.  You knew your co-accused from Vietnam.  He had been in this country for longer.  You had intended to study in Australia, though you had little English.  You also wanted to send money to your family in Vietnam who were struggling with difficulties at the time on their farm. You say your boyfriend encouraged you to be involved in the cannabis cultivation and, naively, you agreed.

6You and he regularly attended the unit and stayed there.  You were involved in the purchase in the sense of picking up all the equipment or much of the equipment that was used in the establishment of the hydroponic cultivation production house and other equipment.

7The police when they attended in February 2014, found 342 plants under hydroponic cultivation in five rooms.  The weight was in excess of 87 kilograms.  The cultivation methods were sophisticated.  The lighting was such as to allow the plants to grow indoors and thus be less detectable.

8The power had been bypassed to allow high volumes of electricity to be consumed without detection or cost.  There were filters and timers and transformers and reflectors.  These are all expensive and indicate the resources and determination that existed here to grow large quantities of cannabis for profit.

9Given the considerable efforts and expense in setting up this indoor horticultural enterprise, the plants were strong and healthy.  The yield of usable drugs was likely to be very high.  The methods reveal that what was involved, it seems to me, was a crop rotation system, with plants at various stages of growth in different rooms, indicating the harvest were planned to be regular and thus, likewise, the cashflow would be regular.

10As I said, the weight of the plants was 87.62 kilograms.  The amount stolen of electricity was estimated at $18,814.94. 

11All the features found in this unit are common with the suburban houses that are converted into cannabis production houses.  The crime is hard to detect and even harder to establish who are the main players in the cannabis production and distribution chains.

12It is the case that this crime is reasonably prevalent.  The product grown by the cultivators has serious effects on many users.  The community bears a great cost as entrepreneurial cannabis cultivators profit significantly.  The entrepreneurial cultivators have, for some time, sought to avoid their own detection by often having vulnerable individuals involved in the house as crop sitters.

13It is not said in your case that you were what has become known as a crop sitter.  In fact, you admit to receiving, together with your boyfriend, a sum of $60,000 for the period between November 2013 and February 2014.  On any estimate, this was a significant amount of money.  You and he bought cars and you sent money to your family in Vietnam and had other money for day to day expenses.

14You are not the main organiser or the one likely to have reaped rich profits.  You were doing what you were told by others so you are to be sentenced as an active important cultivator and more than a mere crop sitter, but well less than the main organisers.

15You are now 25, raised in rural Vietnam as the eldest of five.  You were enrolled in Deakin University to do a degree in health sciences.  You were unable to attend all your classes because of the need to earn money to survive in Melbourne and to assist your family in Vietnam.  Their capacity to help you in Australia fell away shortly after you arrived.  You are deeply ashamed that you have let your family down.

16Just prior to your arrest, or at that time it must be, you fell pregnant.  Sadly, you miscarried in April 2014 while in custody.

17Although your plea was not at the earliest time, you have significantly facilitated the course of justice by how quickly things have moved along of late.  Your sentence will be less than it otherwise would have been.

18Your plea is an indication of remorse.  You are without prior convictions, and that is to your credit.

19As I have said, the public is concerned about the effects of cannabis.  This type of cultivation is prevalent and hard to detect.  Once detected, punishment for all must reflect the need for denunciation and deterrence.  That is, deterrence to others who might be minded to cultivate cannabis.  The message must be made clear to all involved in this crime that punishment will be of a kind so as to make the lure of profits nonetheless too unattractive to take the risks.

20With all that said, I repeat that I recognise your role was not as an organiser or as a profit maker, it was a the lower end of the scale. 

21I am satisfied you were brought into the scheme by your boyfriend and, to some degree, you are lower down or less culpable than him. 

22Taking into account and giving effect to the primary sentencing considerations of denunciation and deterrence, while not ignoring your ultimate rehabilitation which will occur, no doubt, in Vietnam, and also having regard to all other relevant matters, including current sentencing practices, there is no other appropriate disposition other than a term of imprisonment.  Your counsel, sensibly, conceded as much.            I do not lose sight of the fact to sentence someone like you to imprisonment is a grave step, but there is no other course.

23I take into account that your time in prison will be more burdensome because you do not speak English.  You are doing all that you can to learn English in the prison and undertake some further training with the use of computers.

24The question of parity is often a difficult one in circumstances such as this.  Your co-accused co-operated and pleaded immediately.  You were slower to plead guilty and ran a committal.  However, you were, as I have said, slightly less culpable in the sense that your boyfriend got you involved and you have suffered a miscarriage in custody.

25Balancing all matters, I have come to the conclusion that my discretion would allow for a slightly lower sentence for you than your boyfriend, but there is not much difference in it.

26I take into account that I should fix a non-parole period for you as a Foreign National, as I would for anyone else.

27I sentence you in this way, Ms Phan.

28For cultivating a commercial quantity of cannabis, you are sentenced to three years' and two months'.

29For committing the crime of theft of the electricity, you are sentenced to three months'.

30In all the circumstances, because of how you were brought into this matter, I do not intend to order any cumulation in respect of the theft of the electricity, as I did in the co-accused case.

31That leaves a total effective sentence of three years' and two months' and I fix a minimum non-parole period of one year and ten months'.

32You have already served 310 days in custody, and I will reckon that that period of time is part of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have already served 310 days of the sentence I have just imposed.

33Had you pleaded not guilty to this matter and been found guilty of it, I would have imposed a sentence of four years' and nine months', with a minimum of three years' and nine months.

34There are a number of orders that I am asked to make, principally forfeiture of all the equipment, drugs and paraphernalia and the like.

35I intend, now that this matter is resolved in the sense that both accused have been dealt with, sign the forfeiture orders, and orders for disposals.  Can I just have those documents?

36You can be seated.  Is there any other orders?

37MR LEWIS:  Your Honour could make the order in relation to the electricity.

38HIS HONOUR:  Yes, I will, thank you.

39MR LEWIS:  I am in Your Honour's hands in the terms of how Your Honour would prefer to proceed in relation to the other orders.

40HIS HONOUR:  Yes, I will consider that.

41Ms Phan, in addition, the electricity company that provided the electricity that was stolen have sought compensation in the sum of $18,814.94, and I sign that order that you pay Origin Energy $18,814.94.  I made the same order in relation to your co-accused.  Both of you are liable for it, either by one or other of you paying it, or the both of you paying it together.

42Further, Ms Phan, the woman who owned the premises has had to go to significant expense to repair the damage that you caused by the way that this cannabis production house was set up.

43The expenses had been estimated when I dealt with your co-accused, Mr Nguyen, and the estimate was not quite satisfactory.  They have now gone to, no doubt, considerable trouble, of providing estimates or receipts or invoices or the like, indicating that they had spent somewhere in the sum of $19,000 to fix this place up.

44I will ultimately consider an application that you pay to the owner of the premises that sum of money, but I will only do so when it is made known to Mr Nguyen that he faces the same prospect.  That will be arranged in due course while you are in prison and either you will appear by video or some other way, but we will do it with both of you present when I make that order.

45Is there anything else required?

46MR LEWIS:  No, Your Honour.

47HIS HONOUR:  I thank counsel for their assistance in this matter.

48Madam Interpreter, I thank you very much for your assistance this morning, and that brings that matter to an end, Ms Phan can be taken downstairs.  Thank you, Mr Cash.

49MR CASH:  Thank you, Your Honour, may I be excused?

50HIS HONOUR:  Certainly.

51(Offender removed.)

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