Director of Public Prosecutions v Phan

[2019] VCC 760

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00081

DIRECTOR OF PUBLIC PROSECUTIONS

v

DINH PHAN

---

JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May 2019
DATE OF SENTENCE:	27 May 2019
CASE MAY BE CITED AS:	DPP v Phan
MEDIUM NEUTRAL CITATION:	[2019] VCC 760

REASONS FOR SENTENCE
---

Subject: CRIMINAL LAW
Catchwords: Plea of guilty – Cultivation of a narcotic plant (commercial quantity)
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act      1991
Cases Cited: R vPidoto and O’Dea [2006] VSCA 185; R v D’Aloia [2006] VSCA 237; R v McLeish [1982] 30 SASR 486; Dalgliesh (a pseudonym) [2017] VSCA 360; Nguyen and Pham v R [2018] VSCA 322; McClelland v R [2017] VSCA 124
Sentence: Convicted and sentenced to three years’ imprisonment with a minimum term to be served before being eligible for parole of two years’ imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Barrington	Office of Public Prosecutions
For the Accused	Mr R. Revill (at Plea) Mr M. Amad (at Sentence)	Richard Revill Lawyers

HIS HONOUR:

1In this matter, Mr Phan comes before the Court aged 31. He was aged 30 at the time of this offending. His birth date is 1 February 1989. At the time of this offending, he was in fact an unlawful non-citizen. He has pleaded guilty to cultivation of a narcotic plant of a commercial quantity, in this case cannabis, an offence against s.72A of the Drugs, Poisons and Controlled Substances Act, the seriousness of which is recognised by Parliament in the sense that a maximum penalty of 25 years' is imposed.

2Mr Phan was arrested on 27 October 2018 when a warrant was executed in regard to premises at 21 Palmerston Street, Camberwell.  When Mr Phan was arrested, he had the keys to those premises, and within the premises were 173 cannabis plants. The commercial quantity being 100 plants and/or 25 kilograms.  The set-up and the details of the plants and their healthy state, as of the date of the warrant, is shown in Exhibit B which are the photos that I have referred to.

3Mr Phan comes before the Court with no priors.  He has been in custody since 17 January of this year.  PSD today is 211 days

4This offence, being a Category 2 offence, not only has a maximum of 25 years, but gaol is mandatory.  That is immediate gaol, unless alternate provisions are satisfied, and there was no submission in this matter that such would apply.  The learned prosecutor applied for a 464ZF certification.  I have indicated in the circumstances, I do not intend to grant that.  I think there was a forfeiture and disposal order sought.  If I have not signed them, I will.

5Exhibit 1, was the submission of the defendant.  The circumstances set out, insofar as Mr Phan are concerned, detailed that his original visa in Australia has expired, that his wife is currently in Vietnam and was at all times since he has been here. Mr Revill on behalf of Mr Phan, took me to that written submission and his background.  It would appear that, unfortunately like a lot of students who come from Asia, the hopes do not quite match the financial problems, in trying to be a full-time student. 

6His studies fell away and he started to do casual labouring and it is quite clear that he had not seen his wife, who was left with a child who was born subsequent to him coming to Australia, since the time that he had been here.  He was aware that his visa had been cancelled.  He had become involved in this criminality because of such economic situation and was in reduced accommodation sharing a house in Springvale. 

7It turns out that the offer to tend this particular crop, included the provision of a car. It was to be for a period of four weeks, approximately one to two hours per week, he was to tend the crop and he was going to get a figure of $8,000 for a month's work.  He had the keys to the property, with which he was found when arrested.  He had in fact, cannabis on his clothes, from his activities of trimming the plant, and was on his way home when he was arrested, after having been observed at the premises.

8Mr Revill put that he should be classified as a non-residential crop sitter, who had a car provided and the prosecution did not dispute that.  Mr Revill put that Mr Phan was easy prey and financially vulnerable.  Apparently, Mr Phan has always wanted to return, and is very happy to return, to Vietnam when this period of imprisonment that I am about to impose, is over.  He is trying to make good use of his time in prison.  He is studying English and working hard.  He has not made any bail application. 

9The matters relied upon were the plea of guilty.  There was some issue in the original submission, as to the number of plants but those matters were explained, as was put, we are dealing with, as described by Mr Revill, a person who is essentially a minion.  It was acknowledged that immediate imprisonment must be imposed, and the duration was the issue discussed. As I have said today, given the wishes of Mr Phan, it was discussed whether a straight sentence might be appropriate.

10Indeed, the prosecutor, I think in seeking to assist the Court, said that if one day under a period of two years, as a straight sentence, was passed, there would be no objection to that being within range.  As I have indicated today, on further consideration I have taken the view that such is not appropriate.

11The particular authorities of course, that relate to this crime, begin with R vPidoto and O'Dea [2006] VSCA 185, [34], where four of the Appeal Justices in the joint judgement, noted the structure that Parliament has adopted, was a hierarchy of seriousness defined by and only by, a quantity of the drug of dependence that has been trafficked.

12Of course, the particular circumstances of Pidoto were different to this. Obviously, the difference here is that we are not dealing with a trafficking charge, this case is clearly a cultivation case, but the principles are still the same. Again, at [62] in Pidoto, the court indicated the ultimate question for a sentencing court given such structure, is this:

'It is not whether [in that case] trafficking in one drug is to be viewed more seriously than traffick of another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed in dealing with the material involved'.

13Substitute in this case the word in that quotation, 'Cultivation', for, 'Trafficking' and as I have already remarked, Mr Phan, the maximum penalty in regard to your offence is obviously one of great significance.

14Appeal Justice Nettle, as he then was, in R v D'Aloia [2006] VSCA 237, [56], set out the general approach of sentencing judges in these types of cases. In that case, he was dealing with MDMA, he said as follows:

'As far as the effects of MDMA are concerned, the matter may still be approached on the basis that all of the drugs which are proscribed have deleterious consequences of anti- social proportions and that trafficking [and I say substitute "cultivation"] in any of them is therefore appropriate to be regarded as a serious criminal offence'.

15As we discussed during the plea, and as I put to Mr Phan's counsel, albeit that he was easy prey and that his role was as agreed, a non-resident crop-sitter, the fact is that anyone who performs any role in these crimes, must suffer condign punishment.  This matter was pointed out in R v McLeish [1982] 30 SASR 486, 492, when the court spoke of the failure of courts generally, and the authorities, to find the top persons and how one should sentence recruits in these crimes. As I say, in this case we are clearly dealing with a minion. The following was said by the court:

'It seems to me to follow that after making all due allowance for the personal circumstances and antecedents of a prisoner, the facts of the particular case and the need to show such mercy as is compatible with the safety of the public, a court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organisation for purveying drugs, as well as potential recruits, the simple truth that a man who participates in such an organisation at any level and I stress at any level, must expect and will receive a heavy penalty'.

16Now, as I discussed, this particular case especially given the number of plants, is despite the passing of Dalgliesh (a pseudonym) [2017] VSCA 360 by the High Court, subject to the influence of a recent decision which I discussed with counsel, of the Court of Appeal in Nguyen and Pham v R [2018] VSCA 322, where for 182 plants I had imposed a period of six years gaol, such was reduced to a period of three years and nine months, we were dealing with crop-sitters, which obviously is a parallel in this case.

17The Court of Appeal in that case referred to McClelland v R [2017] VSCA 124, again, a case which had involved some 73 plants, the original sentence imposed was five with a three and the sentence imposed on appeal was three years nine months with a minimum of two years five months. Despite my inclination that the sentencing should be higher, one obviously has to follow the indication given across the road and in those circumstances, I sentence accordingly. If you would be good enough to stand please, Mr Phan.

18You will be convicted and sentenced to a period of imprisonment of three years, the minimum period you are to serve before being eligible for parole is two years.  I note that the pre-sentence detention served is agreed at 211 days and I declare that such period is deemed to be service of this sentence, and that a declaration to such effect be recorded in the records of this Court.

19Pursuant to s.6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, the period I would have imposed is a period of five years with a minimum of three.

20Madam Interpreter, it is important for you to explain to Mr Phan that by pleading guilty, the sentence he gets today is a period of three years with a minimum of two and not the sentence he would have otherwise got, had he not pleaded guilty, of five years with three years.

21As I said, Mr Prosecutor, I do not intend to issue a 464ZF certification.  Madam Associate, the disposal and forfeiture orders? They are to be adjourned until after the co-accused are dealt with?

22MR BARRINGTON:  Yes, Your Honour.  That was my original submission.

23HIS HONOUR:  Yes.

24MR BARRINGTON:  It may be a rather inelegant solution, because I do not know whether or not that matter will resolve and then, whether or not this just drifts off into the (indistinct).

25HIS HONOUR:  Why do I not just sign them?  If you send them to me and I will sign them?

26MR BARRINGTON:  Yes.  I think they have been e-Lodged.

27HIS HONOUR:  Have they? 

28MR BARRINGTON:  So, if Your Honour signs them, we just ‑ ‑ ‑

29HIS HONOUR:  All right.  Well I will sign them now. 

30MR BARRINGTON:  We will not act on them until ‑ ‑ ‑

31HIS HONOUR:  Mr Amad, are you happy with that?

32MR AMAD:  Yes, I am, Your Honour.

33HIS HONOUR:  Yes.  Yes, any other matters?

34MR BARRINGTON:  No, Your Honour.

35HIS HONOUR:  Yes.  Yes, I have signed the disposal order.

36MR BARRINGTON:  Thank you, Your Honour.

37HIS HONOUR:  Yes.  Thank you.  The prisoner can be taken away.  Thank you, gentlemen.

38MR BARRINGTON:  As the Court pleases.

39(At this stage the accused left the court.)

40HIS HONOUR:  Thank you, Madam Interpreter.

41INTERPRETER:  My pleasure, Your Honour.

42HIS HONOUR:  Thank you.  Yes, thank you, gentlemen.

‑ ‑ ‑