Director of Public Prosecutions v Phan

[2018] VCC 1495

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01425

DIRECTOR OF PUBLIC PROSECUTIONS

v

THI PHAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 September 2018
CASE MAY BE CITED AS:	DPP v Phan
MEDIUM NEUTRAL CITATION:	[2018] VCC 1495

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 E. Hill	Office of Public Prosecutions
For the Accused	Mr F. Cameron	Emma Turnbull Lawyers

HIS HONOUR:

1Thi Phan, on 6 September 2018 you were convicted by a jury after a short trial of cultivating cannabis in not less than a commercial quantity and theft of a very significant amount of electricity.  Those crimes carry maximum penalties of
 25 years and ten years, respectively.

2You are now 46 years of age.  You do have prior driving convictions, but they are of no concern to me.  The main difficulty that you have is that because of your false denials, in my view, of all these matters and your refusal to plead, you do not have the benefit of the plea of guilty which in such circumstances is often of great mitigatory value.

3Your co-accused in this matter, who pleaded guilty and will be subject to deportation, whereas you are not, was sentenced by me to be imprisoned for a period of 24 months, with a minimum term of 12.  The s.6AAA in respect of him for, with respect, what they are worth, was three with a two.

4I heard the evidence in this trial and I think it can be summarised in pretty short compass.  In late August 2017 a property was purchased in the name of your 22-year-old son in Morwell.  Within a matter of weeks electricity was onto those premises and a bypass installed.  That electricity was in your name.  For reasons that escape me, the internet was also attached to the house and that again was in your name.

5A very significant hydroponic growth setup was clearly operating, I would have thought, by the end of September.  There is no direct evidence before me as to the age of the plants that were ultimately seized, but having seen a great many of these over the years, they were certainly - or at least some of them were - well established and indeed a number of plants had reached the level of maturity where they could be harvested and the buds dried.

6The evidence in the trial was that you had attended at the house on occasion.  There is little to suggest that you were actually living there and I do not sentence on the basis that you were.

7It is obvious, though, by the size of the crop, indeed just simply the smell of it that you must have been aware of what was occurring and the jury quite rightly, in my view, has found that you were complicit in it.

8When police ultimately raided the premises in early December 2015, in excess of 55 kilograms of cannabis was seized.  Plants of varying ages were seized and it obviously was a commercial quantity.  You were interviewed and in an interview where I have no doubt that you lied throughout it you denied any knowledge of the matter and claimed that you did not have access to those parts of the house.  The crop took up a very significant portion of the house and would have been obvious to anybody.

9You said that the man who was present at the house when the raid was made, Huang, was your partner and had been so for two years.  Basically you were asserting that it was all his fault.

10There is no evidence before me as to receipts from Bunnings or any other matters other than your DNA was in the house, but you had admitted in your interview that you had stayed there for a couple of nights and had cleaned your teeth.

11The neighbours saw you on occasion at the premise and in the material that was not necessarily before the jury, at least, identified your car and you told
Mrs Carruthers across the road that you were "Settling in well".

12Whilst you were not living there and the objective evidence would suggest that you were not, as your counsel very clearly pointed out; no make-up, no lingerie, none of those sorts of matters, you were obviously a relatively frequent visitor, albeit for short periods of time.

13I do not think I need to go into any other detail about the matter.  Insofar as the explanations of it all are concerned, as is so often the case in these matters, the real architects often go undetected and there is a dearth of material of their involvement.

14I have over the years started to take the view that I believe very little of what I am told about how these matters are setup.  You are simply going to be sentenced on the basis that it is a serious crime.  It carries a maximum penalty of 25 years.  You were obviously involved in it from the outset, in my view, and on the verdict of the jury.

15It calls for the application of general deterrence and while specific deterrence in your situation may be somewhat academic, there must be appropriate denunciation and an appropriate punishment.  People must know if you are going to engage in this sort of conduct you will go to gaol for a significant period of time.

16You counsel pointed out a number of matters to me. You are the mother of three.  You have children; 28 years old, 23 years old and 14 years old.  You are the carer, I am told and accept, of your mother and also of your youngest child, who is in Year 10 in secondary school. I am told from the Bar table that nothing has been done insofar as making arrangements for them, despite the fact that conviction by a jury was going to have very obvious consequences.

17The exceptional circumstances that are required to exercise mercy to those people clearly are not engaged in this particular sentencing exercise, but I do take into account that you are going to do a significant period of time in prison knowing that your partially, at least, dependent family will be without you and that you, even though you deny it, within yourself must know that you are totally to blame for the process that you are about to put them through.  I am not sure as to what knowledge they had of all this matter as it progressed after your arrest.  They certainly must have been aware that you did something like three weeks after you were initially arrested and there must have been some sort of perceptions as to what the potential consequences would be.

18In any event, you are from Vietnam but you are an Australian citizen, as I understand the circumstances, or at least a permanent resident.  You are not going to be deported.

19The prospects of your rehabilitation, I have no real idea of what was going on with all this, but they are up to you.  The risk of you re-offending, one would hope, would be insignificant in these particular circumstances.  But again, there is such a dearth of information in this whole process that it is difficult to ascertain.  But you are to be sentenced for a commercial crop and sentenced you will be.

20On the charge of cultivate a commercial crop, you are sentenced to be imprisoned for a period of two years and six months.  On the charge of theft, six months.  I direct that three months of that six months be served cumulatively on the two years and six months, which gives an effective head sentence of two years and nine months.  And in all these circumstances direct that you serve a minimum term of 18 months before becoming eligible for parole.

21I do that taking into account parity with your co-accused and also exercising a degree of mercy for your point of view, not those of your family, because of the circumstances in which you have left them to cope.

22Now, what do you want to do with that other order?

23MS HILL:  If I could seek leave to file an amended forfeiture order.  Your Honour will observe that there is red pen marked on schedule items 1, 2, 3, 8 and 9.

24HIS HONOUR:  Yes.

25MS HILL:  They are the items that pertain to the cash and the car.  In short, the Crown does not pursue forfeiture of those items.

26HIS HONOUR:  All right, well, I make the order.  You agree you with that?

27MR CAMERON:  I do.

28HIS HONOUR:  Yes.  I make the order in those terms.

29MS HILL:  As Your Honour pleases.

30MR CAMERON:  Thank Your Honour.

31HIS HONOUR:  No other order that has to be made?

32MS HILL:  No, Your Honour.

33MR CAMERON:  No, Your Honour.

34HIS HONOUR:  No, all right.  Sorry, PSD, 26 days.

35MS HILL:  Yes, Your Honour.

36MR CAMERON:  Thank you, Your Honour.

37MS HILL:  No including today's date.

38HIS HONOUR:  Yes, I thought I said that.  Yes, I didn't, thanks.  All right, yes, she can go now, thank you.

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