Director of Public Prosecutions v Phan

[2018] VCC 219

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 17-02289

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUNG PHAN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	7 March 2018
CASE MAY BE CITED AS:	DPP v Phan
MEDIUM NEUTRAL CITATION:	[2018] VCC 219

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	Mr P. Bourke
For the Accused	Mr A. Paull

HER HONOUR: 

1Hung Phan, you have pleaded guilty before me to one charge of cultivating a narcotic plant in a commercial quantity.

2The facts underlying your offending are as follows:

3On 28 July 2014, executed a search warrant at a house at 405 Old Melbourne Road in Ballan.  You were present at these premises and seen running from the garden to the left side of the house. 

4On entering the premises, police found five rooms dedicated to the growing of a cannabis crop via sophisticated means involving the usual sophisticated setup of a bypass of electricity, fans, shrouds, nutrients being fed to plants by an intricate series of hoses and so forth.  There were a total of 237 plants weighing a 108.9 kilograms discovered. 

5No record of interview was conducted with you as you have very limited English and no interpreter was available.  You were remanded in custody and have been held there since for a total of 222 days.

6The matter proceeded through the committal stream where at the earliest opportunity in November 2017, once an interpreter was made available, you entered a plea of guilty.  You informed police via your instructions that your participation in the cultivation of this crop was confined to the day of your arrest when you had been driven there by another man in order to water plants.

7It is on the basis of that description of your involvement that the prosecution scenario is made out.  It was conceded by the prosecution during the plea that the information you gave to police assisted in what would have otherwise been a difficult prosecution case.

8Your co-accused, the man who drove you there, ultimately pleaded to a charge of possess cannabis simpliciter in the Magistrates' Court for which he received a five month sentence which was, on appeal, reduced to 144 days, effectively being time served.  He having purchased a ticket back to Vietnam, was released that day and flew home.

9I now turn to your personal circumstances.

10You are 34 years of age and have no prior or subsequent convictions.

11You were born in Vietnam, and you are an educated man, who in 2013 obtained a Bachelor in Economic Law; in 2003 to 2005, undertook a certificate in Radio and Television Broadcasting;  in 2010, a Defence Security knowledge refresher course and in 2004, a trade certificate in camera and filming. 

12You became a member of the Communist Party in 2009 which has some relevance to your presence in Australia.  You came here on a tourist visa on
4 June 2015 which expired on the 26th of that month.  At the time of your arrest, therefore, you had been living in Australia illegally for about 2 years.

13Your counsel informed me that you had been an active member of the communist party but were told by an immediate superior that if you wanted to obtain a promotion, you had to pay the equivalent of $18,000 AUD.

14That person then apparently became concerned that you might make that attempted bribery known.  Threats were made to you and essentially, you fled the country.

15Once you arrived in Australia, you tried to revoke your party membership but were unsuccessful.  During your time in Australia, the tourist visa being obtained ostensibly for you to see family members there, including your sister and a cousin, you in fact made no contact and what family you did have here only became aware of your presence in Australia on your arrest. You were concerned for their safety if you did make contact.

16In the meantime, your mother had no idea where you were.  Your sister has apparently had a visit from a Vietnamese government representative asking about your whereabouts.

17Whilst in Melbourne, you worked in a Chinese restaurant for about nine dollars an hour and, as a hobby, sang in a club.  Whilst there, you made the acquaintance of a person with whom you became quite friendly, revealed your visa status and difficulties in Vietnam to him and as a result, were essentially both encouraged and then coerced into participating in the cultivation of this crop in the way that you did.

18Your counsel informed me that you have real concerns that were you to be deported to Vietnam, as would normally be the case on the expiration of your sentence, you face immediate arrest and indeed, have fears for your life.

19It appears the official involved in your case has sufficient standing within the Party to make that a real likelihood in your case.

20Whilst in gaol, it appears you have used your time well.  You have undertaken studies in English and you have taken somewhat of a mentor role in relation to other Vietnamese prisoners in the gaol.

21I accept that this was a plea of guilty made at the earliest stage and I accept that your role in the cultivation of this crop could be correctly described as at the very lowest level and that you are to be given credit for your description to police of that role in the circumstances. 

22I take into account that you have no prior criminal history and that to some extent, the difficulties that led to your travelling to Australia in the first place, that the life that you lived thereafter meant you were vulnerable to exploitation and to some extent, this played a part in your cultivation of this crop.

23In all the circumstances and having regard to other sentences generally imposed in cases of this kind, I sentence you to a term of imprisonment of ten months.

24Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of two and a half years and ordered that you serve a minimum term of 18 months.

25Is there anything else I need to attend to?  I have signed the disposal orders?

26MR BOURKE:  PSD, Your Honour?

27HER HONOUR:  I declare that 223 days of these sentence have been already served by way of pre-sentence detention. 

28MR BOURKE:  And the disposal order, the 464, Your Honour?

29HER HONOUR:  Do you need the 464?

30MR BOURKE:  Well, I suppose, and I am not making light of it all but ‑ ‑ ‑

31HER HONOUR:  I do not think I will give you the 464.

32MR BOURKE:  It would be a good result if Mr Phan was able to stay in Australia, Your Honour, so I press the application.

33HER HONOUR:  What do you mean?

34MR BOURKE:  Well, normally they are not made because people such as
Mr Phan are off back to Vietnam, so what is the point, but fingers crossed that will not be the case but - I make no further submissions about it, Your Honour.

35HER HONOUR:  What do you say, Mr Paull?

36MR PAULL:  He is present on one day at the location and I ‑ ‑ ‑

37HER HONOUR:  Yes, I am not going to grant it.  I am not going to grant the order but I have signed the disposal order.  I will hand these certificates back to you.  Thank you very much.  223, 233, thank you very much.

38MR BOURKE:  It was 222, strictly, Your Honour.

39HER HONOUR:  Well, I am counting today.

40MR BOURKE:  Yes, Your Honour.

41HER HONOUR:  I always do.  All right?  Thank you very much.  Is there anything else that I need to attend to?

42MR PAULL:  No, thank you, Your Honour.

43HER HONOUR:  Thank you.  I thank counsel for their assistance in this matter.  We will stand down until 10.30.  Yes, thank you.

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