Director of Public Prosecutions v Phan

[2021] VCC 1747

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 21-00485

DIRECTOR OF PUBLIC PROSECUTIONS

v

HIEN THI PHAN

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	13 August 2021
CASE MAY BE CITED AS:	DPP v Phan
MEDIUM NEUTRAL CITATION:	[2021] VCC 1747

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Mandie	Office of Public Prosecutions
For the Accused	Ms C. Dwyer	Giorgianni & Liang Lawyers

HIS HONOUR:

1Hien Thi Phan, you have pleaded guilty to one charge of cultivation of a narcotic plant, that being cannabis.  That crime in your circumstances carries a maximum penalty of 15 years' imprisonment.  It was clearly not for personal use.

2You pleaded guilty to a settled indictment and get the benefit of that.  Remorse, I accept, is certainly remorse for what you have done to your family.  I will accept - and you also of course get the utilitarian benefit of that plea of guilty.

3You are now 24 years of age.  You were 23 years of age at the time of the offending.  You have no prior convictions of any description.  As I understand it, you have no matters pending.  You have now done on one basis 189 days of custody in relation to this before you were ultimately bailed. 

4The cultivation is alleged to be a single day cultivation, not over a period of time and I have got no real information as to how long you had been there.  In any event, it is only a - when I say only, it is a one day cultivation.  It was originally a commercial but necessarily by pleading to this charge it is not a suggestion that you were aware of the weight of the crop but it is a significant crop.  It was indicated when I was talking to the Crown, for reasons that I will explain in a moment, your role was very low in all this but the actual cultivation itself could not be regarded as low.  Were the actual owner of this crop before me he would be getting, or she would be getting, a very significant sentence indeed.

5In any event, in August of 2020 police attended an address in Clayton South with a search warrant.  You were noticed in the kitchen area of that house and then ran out of police view when you saw them.  At about 12.30 they forced entry to the house and you were found hiding in a front bedroom closet amongst some clothing and also found within that house, I accept, was a sophisticated hydroponic set-up with a number of plants which ultimately in the end weighed something in the order of 46 kilograms. 

6There was an electrical bypass which had been put in place and it cannot be said that you were responsible for that.  There is very little other information in respect of you other than there were female clothes in the bedroom and it is clear that you had been staying there at least, and sleeping there at least for a day or two after that or prior to that.  I have got no idea.

7There is no suggestion here that the house was rented in your name.  I suspect police have been told a pack of lies about who actually did rent it but we do not have to worry about that.

8On the basis of this it is a situation which is clear to me that I could only sentence you on the basis of being a crop sitter.  There is no indication before me that you were going to get any real material benefit from all this and, as is usually the case in these circumstances, you have elected to make no comment and I can well understand the reasons why you would have done that.  Sometimes we get - I will not go into that.

9In these situations it is quite frustrating - I am sure it is very frustrating for the police - that quite often they find the sitters and because of the fear element no sitter is ever silly enough to disclose who the original real offenders were.

10In any event it is certainly not a low end cultivation as I have made clear to the Crown and I think warrants a custodial sentence. 

11Helpful submissions were put on your behalf.  You are from Vietnam.  Your mother has filed a reference in which she said that she had funded your trip to Australia to essentially get away from an alcoholic father and to make a life for yourself.  I also note with some interest that she was doing it in the hope that if you were able to succeed in another part of the world then you might be able to look after her in her old age which is a bit sad.

12In any event, you came to Melbourne from Vietnam and found yourself isolated.  Within six months of coming here COVID had started to wreak its havoc and you were - found yourself in lockdown.  You were distant, you have very few friends.  You did work cleaning a restaurant and working at a nail salon.  You had no family and because of the pandemic and the lockdowns it was very difficult for you to make social acquaintances or anything along those lines.

13In any event, somebody, and you are not saying who, organised for you to look after cannabis plants inside the address that I have already referred to.  I am told from the Bar table that you do not use drugs yourself and did not grow up in an area where drug use was commonplace or visible.  It is put in your submissions that you did not consider the harm that can result from it, however I do note with some interest that when police arrived you had no difficulty in realising you were in serious trouble and you then proceeded to hide.  So it is clear that you knew what you were doing was at least unlawful.  In this situation you are not said to be the owner of the plants, you are not said to have profited and as I have already indicated, there is no suggestion you set up the hydroponic system or the bypass. 

14Once arrested you were kept in custody as is normal.  You are on a bridging visa and I will come to that again in a moment.  You were, as I say, in custody for a little but over six months.  Whilst there, to your credit, you did sewing work and a number of courses, and I have seen the certificates that relate to that and since you have been on bail you have been able to find employment.  The prospects of your rehabilitation should be good in your circumstances and I take that into account.

15One of the concerns that does exist here, and there is nothing I can do about it, is that there is a risk of you being deported because you are being given a custodial sentence for a drug cultivation, but that is a matter for others.  You can seek exemption from that and as I have already indicated in the course of discussion, that is commonly successful.  In any event, you did that six months in COVID circumstances.  You would have been involved in lockdowns.  I am aware of the decision of R v Worboyes, which I was doing in any event, that plea deals which are done in these times of COVID should reap a recognisable benefit for the accused person. 

16I accept that you having been in custody and found yourself in this situation has caused real difficulties and concern for your mother.  This is not a situation of exceptional circumstances involving mercy for her but I would accept that you, being of Vietnamese origin, having gout your mother through this would feel a level of shame and you have undergone that custodial period being aware of that and you will also have to undergo that in the future.

17As I understand it you have been on pretty strict bail conditions and you have been able to honour that. 

18In all those circumstances it seems to me that the time that you have served is sufficient for these purposes.  I do not think I need to take it any further than that.  I am not asking the Crown to concede if that is appropriate because there is no opposition to it, if I can put it in a neutral sort of a way and accordingly that is what I intend to do.

19Accordingly, on the charge of cultivation you are sentenced to be imprisoned for a period of 180 days. 

20I direct that 180 days be reckoned as having been served under this sentence.

21Section 6AAA, again somewhat meaningless as it was this morning, there is a settled indictment so s6AAA means nothing.  On a 6AAA but for your plea of guilty I would have given you 270 days. 

22I think that is all I need to do, is it not?  Anything else I need - disposal order I will make and hand down.

23MS MANDIE:  Yes, there's a disposal order, thank you.

24HIS HONOUR:  Disposal order is made and handed down, which I am inferring is consented to, Ms Dwyer.

25MS DWYER:  Yes, no opposition, Your Honour.

26MS MANDIE:  Your Honour, I understand the PSD is 189.

27HIS HONOUR:  I know that but I am only giving her 180.

28MS MANDIE:  I see.

29HIS HONOUR:  So yes.

30MS MANDIE:  Thank you.

31HIS HONOUR:  I know what you are saying.

32MS MANDIE:  As long as Your Honour is aware.

33HIS HONOUR:  If I start doing things like 189 - the other thing I should mention is also that in this particular circumstances where that PSD was spent in COVID circumstances, now that that period of imprisonment has been interrupted, my understanding is that the lockdown days that would be given in lieu do not apply.  So I simply make it clear ‑ ‑ ‑

34MS MANDIE:  What do I get?

35HIS HONOUR:  Sorry?

36MS MANDIE:  Sorry.

37HIS HONOUR:  They do not apply, so what might have been eight months if it had been continual is really only six.  So the six is really about an eight just for those who may be interested in such trivia.  Yes, all right, that is all made.  Nothing else we need to do?

38MS MANDIE:  No, Your Honour.

39MS DWYER:  No, Your Honour.  As the court pleases.

40HIS HONOUR:  All right, well I will leave the Bench, Ms Dwyer, and you can have a yarn, if you can, to your client via the interpreter.

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

41HIS HONOUR:  We are adjourned until 1.45 in any event.

42MS MANDIE:  Thank you.

‑ ‑ ‑