Director of Public Prosecutions v Phan
[2023] VCC 1523
•25 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-02439
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MINH PHAN |
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JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 to 28 July 2023, 31 July to 4 August 2023, 7 to 8 August 2023 | |
DATE OF SENTENCE: | 25 August 2023 | |
CASE MAY BE CITED AS: | DPP v Phan | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1523 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Cultivation of Narcotic Plants - Crop Sitting - Moral Culpability - Seriousness of Offending - Threat of Deportation – Prospects of Rehabilitation – Sentencing Guidelines.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991.
Cases Cited:Guden v The Queen (2010) 28 VR 288; Nguyen v The Queen [2021] VSCA 346; Sherna v The Queen (2011) 32 VR 668; Carr v The Queen [2012] VSCA 299; Worboyes v The Queen (2021) 96 MVR 344; DPP v Traljesic [2016] VCC 1509; DPP v Nguyen [2016] VCC 1555; DPP v Nguyen [2016] VCC 2075; DPP v Wings [2016] VCC 1809; DPP v Al Garawi [2019] VCC 1496; DPP v Lam & Anor [2019] VCC 2073; DPP v Tran [2019] VCC 2216; DPP v To [2020] VCC 283; DPP v Nguyen [2020] VCC 977; DPP v Nguyen [2020] VCC 505; DPP v Phan [2021] VCC 1747; Director of Public Prosecutions v Dalgleish (a pseudonym) (2017) 262 CLR 428.
Sentence:79 days’ Imprisonment; 6-Month Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office of Public Prosecutions |
| For the Accused | Mr A. Dickenson | Giorgianni & Liang Lawyers |
HIS HONOUR:
1 Minh Phan, you have been found guilty by a jury of one charge of cultivation of a narcotic plant.[1] The maximum penalty for this offence is as follows:
[1] Contrary to s 72B Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘The Drugs Act’).
(a) If I am satisfied that the offence was not committed for the purposes of trafficking in the narcotic plant, one year's imprisonment or 20 penalty units;[2]
[2] The Drugs Act s 72B(a).
(b) In any other case, 15 years' imprisonment.[3]
[3] The Drugs Act s 72B(b).
2 In May 2022, officers from the Mill Park Police Station established surveillance on 11 Elk Way in Wollert. On 3 and 5 May 2022, officers drove past the address and observed a gold Toyota Camry parked in the driveway. On 12 May 2022, Senior Constable Haidar Saleh obtained a warrant to search 11 Elk Way. He established a static observation of the property and at 3.10 witnessed a silver Toyota Camry drive into the garage and shut the garage door. Officer Saleh then requested additional units to attend the scene, and upon their arrival at approximately 3.30 the officers executed the search warrant by forcing entry to the property. You were located at the rear of the property, and you were placed under arrest.
3
Officers located a room with its door open containing hydroponic lights and
54 juvenile cannabis plants.[4] The wetness of the plants indicated they had recently been watered. For the reasons identified elsewhere in these remarks, it is the cultivation of these plants on the day of your arrest that grounds
[4] This room was referred to as ‘room 4’ during your trial.
Charge 1, cultivation of a narcotic plant, and that is the basis upon which
I intend to sentence you. A manual water pump system was also located which at the time of the search warrant's execution had been turned on.
4
You were arrested and charged on 12 May 2022. You made several offers to plead guilty to the charge of cultivation simpliciter between the date of
your arrest and the commencement of this trial. The first offer was made on
20 July 2022. Each offer was rejected by the prosecution. Upon your arraignment before the jury on 27 July 2023, you pleaded not guilty to commercial quantity cultivation but guilty to cultivate simpliciter. The trial prosecutor, Mr Gray, did not accept that plea in satisfaction of the indictment, and your trial proceeded. The jury acquitted you of the more serious charge and convicted you of cultivate simpliciter in keeping with your indicated plea.
5 Mr Dickenson submitted that your criminality is limited to the cultivation of the juvenile cannabis plants in room four and the activation of the irrigation system on the day of the search. This, he said, was consistent with the jury's verdict. It was submitted that this constitutes a low‑level and brief involvement in the operation. The combined weight of the plants you cultivated is just over one kilogram. This, therefore, amounts to a modest example of the offence of cultivation.
6 Mr Dickenson also indicated that you offered to plead guilty to the charge of cultivation of a narcotic plant as early as 20 July 2022 and this offer was consistently refused by the prosecution. As a result, you have experienced considerable stress and anxiety, both due to your prolonged interaction with the criminal justice system and because of the uncertainty surrounding your immigration status if convicted of the original charge, which exposed you to a sentence of imprisonment of 12 months or more. Mr Dickenson submitted that a term of imprisonment of 79 days is sufficient. Alternatively, a combination of imprisonment and a community correction order was also within range.
7 The prosecution submitted that, notwithstanding the jury acquitting you of the charge of cultivating a commercial quantity of a narcotic plant, I can find that you played a significant role in the management of the operation. Mr Gray submitted that I can be satisfied that you were involved in the watering of a total of 75 plants, including the plants found in room three, which were still wet, the room itself having a hose running into it from the manual water pump system set up in the property's bathroom. It was submitted that the pump system was operating at the time of the execution of the search warrant, which points to the system having been turned on the same day.
8 There is a risk, that if I accept this submission, I will undermine or devalue the jury's verdict, albeit it could be reconciled on the basis that although it amounts to a finding that you cultivated a commercial quantity on that day, you did not have an intention to cultivate a commercial quantity. The fairer analysis in my assessment given the issues joined at trial is that the jury was satisfied by your presence in the house and the wetness of the plants that you had cultivated the juvenile plants in room four merely.
9 It was also submitted that I can find that the gold Toyota Camry rented in your name was parked outside 11 Elk Way since the day the property was leased. From this it was submitted I can find that you have been involved in the cultivation operation since its inception. Such a submission is, however, contrary to the evidence presented at trial.
10
On the evidence before this court, the first sighting of this Camry outside
11 Elk Way was on 3 May 2022. There is no evidence of the gold Camry parked at 11 Elk Way on any day earlier than 3 May 2022 and no evidence of who drove it there. The car was used as a decoy, but in order for me to use its presence as an aggravating feature of your offending I would need more than the fact that you signed the lease agreement for it. No evidence was led putting you behind the wheel of that car, and I cannot find as an aggravating feature that your role in the cultivation at 11 Elk Way was informed by or rendered objectively graver by the fact that you signed the lease to this car.
11 Mr Gray, on behalf of the prosecution, submitted that general deterrence has a significant role to play in sentencing you. As to the ultimate disposition, the prosecutor submitted that the 79 days' pre‑sentence detention is insufficient to constitute the total penalty to be imposed and a further term of imprisonment is warranted.
12 In a Community Correction Order suitability report, you informed Havovi Panthaki from Community Corrections that you had been asked to take care of some plants on behalf of a friend and only attended 11 Elk Way on the day of your arrest. You also informed the author of that report that you were unaware of the seriousness of the offending and the value of the crops at the residence. As these statements are unsworn and have not been tested by the prosecution, I am hesitant to accept them outright, but they are consistent with the jury's verdict.
13 There is no evidence that you leased 11 Elk Way. There is no evidence that you maintained the property. There is no evidence that you owned or installed the hydroponic equipment. There is no evidence that you bypassed the electricity. There is no evidence that you tended the crop on any day other than the day of your arrest. There is no evidence that you were at the property on any day other than the day of your arrest. There is no evidence of your presence in any of the other grow rooms. There is no evidence of enrichment. Accordingly, I have accepted your involvement encompasses only the day of your arrest and the watering of 54 juvenile plants.
14 Your moral culpability is therefore relatively low, and the objective gravity is likewise low, notwithstanding your participation in the cultivation of an illegal crop which has harmful effects in the community.
15 Your personal circumstances were summarised by Mr Dickenson at your plea.
16 You were born in Vietnam in the Quang Binh province and you are currently 30 years old. Your father was a factory worker and your mother engaged in home duties. You have a younger sister who still lives in Vietnam.
17 You came to Australia in early 2014 and enrolled in both a business course and an English language course at Melbourne College. Whilst it is unclear what visa you obtained when you first arrived in Australia, you were most recently on a bridging visa which has expired. I was told you are currently unable to obtain employment. However, you told Corrections that you possess stable accommodation with a man you refer to as your uncle. You have a partner, Tammy, an Australian citizen, and you hope to continue living here with her.
18 Mr Dickenson submitted that I should have regard to your immigration status in mitigation of your sentence. The court in Guden v The Queen held that sentencing courts can have regard to an offender's immigration status in two ways ‑ namely:
'The fact that an offender will serve [their] term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. … In an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. … This may well be viewed as a serious "punishing consequence" of the offending'.[5]
[5] Guden v The Queen (2010) 28 VR 288, 295 at [27] (‘Guden’).
19 Evidence must be placed before the sentencing court as to the actual risk and effect of the deportation upon an offender before the court can mitigate a sentence.[6] This evidence must demonstrate a risk of deportation that rises above mere speculation.[7] It was agreed between the parties that you are currently in the country on a bridging visa which lapsed on 7 June 2023. You have applied for a further visa, and the Minister is yet to decide on that application. No other evidence has been placed before me. On this basis, I am unable to conclude that the risk of your deportation rises above speculation, and therefore I am unable to mitigate your sentence in either of the two ways identified by the court in Guden.
[6] E.g., Nguyen v The Queen [2021] VSCA 346 at [37].
[7] E.g., Guden (n 5) at [28].
20 Although you pleaded not guilty to the more serious offence of cultivate a commercial quantity, you indicated prior to trial and at the empanelment an intention to plead guilty to the charge of which you were ultimately convicted. The Court of Appeal has recognised that an offer to plead guilty to a lesser offence may justify a sentencing discount in recognition of the lost utilitarian value of the offer.[8] Such an offer may also demonstrate an acceptance of responsibility, remorse, and a willingness to facilitate the course of justice.[9]
[8] E.g., Sherna v The Queen (2011) 32 VR 668, 672 [21].
[9] Carr v The Queen [2012] VSCA 299 at [69].
21 I accept that you offered to plead guilty to the charge for which you were ultimately convicted as early as 20 July 2022. It is difficult know whether your early offer to plead was motivated by remorse as opposed to an acceptance of the inevitability of conviction given your apprehension at the crop house whilst in the act of cultivating the crop. Nonetheless, I intend to ameliorate your sentence in recognition of the utility of the offer.
22 Insofar as your offer provided a lost utilitarian benefit, I am prepared to find that your offer to plead guilty was made during a time where the court was experiencing the effects of the COVID‑19 pandemic and therefore your plea would have had increased utility in the sense identified by Worboyes.[10] I have further ameliorated your sentence to acknowledge the value of this increased utility.
[10] Worboyes v The Queen (2021) 96 MVR 344, 356-357 at [39].
23 The informant testified at your trial that you have no prior criminal record and you have never been charged with a criminal offence other than those that are the subject of this trial. You played a relatively minor role in this cultivation operation. You also have a support network comprising your partner, Tammy, and a man you refer to as your uncle who is providing you with stable accommodation. These two protective factors should enhance your ability to engage pro‑socially with the community, reintegrate, and make an honest living. Against this, the opinion of Mr Panthaki is that you are of a general risk of reoffending, although in her report she does not identify why she formed that view. Ultimately I assess your prospects of rehabilitation as reasonable.
24 Section 5 of the Sentencing Act 1991 provides that the only purposes for which you may be sentenced are:
(a) To punish you in a manner and to an extent which is just in all of the circumstances,
(b) To deter you or others from committing similar offences in future,
(c) To facilitate rehabilitation,
(d) To manifest the denunciation of your conduct,
(e) To protect the community, or
(f) A combination of two or more of these purposes.
25 I accept the prosecution's submission that general deterrence has a role to play in sentencing you. I would add that your conduct needs to be denounced. As a first offender though, your rehabilitation is an important objective. You have spent over two months in jail for this offending, and you must know what awaits you if you reoffend. You have not been tested on any community‑based dispositions. In my view, the community's interests are best served by framing a community‑based disposition that punishes you but also promotes your rehabilitation. I do not believe the community's interests would be promoted by returning you to jail.
26 Pursuant to s5(2)(b) of the Sentencing Act, I am also to have regard to current sentencing practices in sentencing you. Since July 2016, convictions in the higher courts have resulted in the imposition of a community correction order, either alone or in combination, in approximately 35 per cent of cases.[11]
[11] Sentencing Advisory Council, Cultivate a non-commercial quantity of a narcotic plant: Sentencing outcomes in the higher courts, 1 July 2016 to 30 June 2021 (Report, April 2022) 9.
27 I have also considered a range of sentences involving offenders colloquially referred to as crop sitters.[12] It is instructive to note that when sentenced to a term of imprisonment how many of the offenders sentenced for crop sitting confined to the day of their apprehension were dealt with by sentences that equated to time served.[13] That said, their pre‑sentence detention generally was longer than yours.
[12] E.g., DPP v Traljesic [2016] VCC 1509; DPP v Nguyen [2016] VCC 1555; DPP v Nguyen [2016] VCC 2075; DPP v Wings [2016] VCC 1809; DPP v Al Garawi [2019] VCC 1496; DPP v Lam & Anor [2019] VCC 2073; DPP v Tran [2019] VCC 2216; DPP v To [2020] VCC 283; DPP v Nguyen [2020] VCC 977; DPP v Nguyen [2020] VCC 505; DPP v Phan [2021] VCC 1747.
[13] E.g., DPP v Pham [2016] VCC 554; DPP v Nguyen [2016] VCC 1555; DPP v Plesa [2018] VCC 1449; DPP v Tran [2019] VCC 2216; DPP v Pham [2020] VCC 116; DPP v To [2020] VCC 382; DPP v Nguyen [2020] VCC 505; DPP v Tran [2020] VCC 522; DPP v Joumaa [2020] VCC 2076; DPP v Kou [2021] VCC 1532; DPP v Herceg [2021] VCC 1111; DPP v Phan [2021] VCC 1747.
28 Each of these sentences also concern different quantities and weights. Although some of these offenders have backgrounds similar to you, none are identical obviously. I am also mindful of the fact that although these sentences can serve as yard sticks for the possible range of sentences, previous sentencing practices do not bind my discretion but are simply one of several factors I am to consider in arriving at the sentence I am to impose.[14]
[14] Director of Public Prosecutions v Dalgleish (a pseudonym) (2017) 262 CLR 428, 434 at [9] (Kiefel CJ, Bell and Keane JJ) 453-454 at [82]-[83] (Gageler and Gordon JJ).
29 Mr Phan, what I am proposing to do is sentence you to a period of imprisonment for which I declare time served and then impose a community correction order for a period of six months from today. Before I ask if you consent to a community correction order being made, I have to tell you a little bit about the order so that you know what it means.
30 The following core conditions apply to all community correction orders:
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b) You must report to and receive visits from the Secretary to the Department of Justice or his or her nominee during the period of the order;
(c) You must report to a Community Corrections centre within two clear days from today. In your case, you will be reporting to Sunshine Community Corrections Service, which is at 499 Ballarat Road, Sunshine;
(d) You must notify the Secretary or his or her nominee of any change of address or employment within two clear working days after that change;
(e) You must not leave Victoria except with the permission of the Secretary to the Department of Justice or his or her nominee;
(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.
31 There are a number of other conditions attached to this order, and they apply to you: (a) you have to perform 150 hours of unpaid community work over a period of six months as directed by the Regional Manager. Eighty hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition. You must be under the supervision of a Community Corrections Order for a period of six months. You must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager.
32 I direct that I be advised by your Corrections Officer of any noncompliance with these conditions, and I will then determine if the matter should be brought back before me.
33 I can only impose a Community Correction Order if you agree to such an order being imposed, so I need to tell you a little bit more about it. If you contravene or breach that order by committing further offences, you can be charged, and a sentence of imprisonment is one of the options that can be imposed for that breach. You can also be resentenced for the offences that are before me.
34 One of the options available includes a term of imprisonment. For those reasons, you need to be especially careful in the next six months. You cannot commit any further offences that might incur a gaol term, otherwise you will be brought back before the court and you will need to be resentenced on the charges that are before me. I also advise you, if you fail to comply with any direction of the Secretary of the Department of Justice ‑ in other words, a Community Corrections worker ‑ a substantial fine can be imposed. Now do you understand all of that?
35 OFFENDER: (Through Interpreter) Yes, Your Honour.
36 HIS HONOUR: And do you consent to that order being made?
37 OFFENDER: Yes, Your Honour.
38 HIS HONOUR: All right. And I'll now have you sign it.
39 MR DICKENSON: That's been signed, Your Honour.
40
HIS HONOUR: Very well. I will now proceed to sentence. On the charge of cultivation of a narcotic plant, you are sentenced to 79 days' imprisonment followed by a six‑month community correction order. I declare that you have served 79 days and this figure will be reckoned as well. Lastly, the prosecution has sought a disposal order in relation to the various items seized at 11 Elk Way, Wollert. I take it there is no opposition to that order being made, and I will make it. Lastly, pursuant to s6AAA of the Sentencing Act 1991,
I declare that, but for your plea, I would have imposed a sentence of six months' gaol followed by a 12‑month community correction order. Any other matters?
41 MR GRAY: No, Your Honour.
42 MR DICKENSON: No, Your Honour.
43 HIS HONOUR: Very well.
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