Director of Public Prosecutions v Phong, Hoang Van
[2011] VCC 2091
•15 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-02428
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOANG VAN PHONG |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 March 2011 | |
DATE OF SENTENCE: | 15 April 2011 | |
CASE MAY BE CITED AS: | DPP v Phong, Hoang Van | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 2091 | |
REASONS FOR SENTENCE
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Catchwords: Cultivation of a commercial crop of cannabis-theft of electricity-Relevant prior conviction
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Galanopoulos | Craig Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr B. Lindner | Barry Fried |
HER HONOUR:
1 Hoang Van Phong, you have pleaded guilty to one charge of cultivating cannabis in a quantity not less than the commercial quantity and one charge of theft of electricity. The maximum penalty for cultivation of a commercial quantity of cannabis is twenty-five years' imprisonment and for theft, ten years' imprisonment.
2 The Crown opened the case as follows:
On 12 June 2010, at 11.50pm, police attended a residential address at 5 Myuna Drive, Kings Park. Police had received a report from Police Communications regarding a possible aggravated burglary at the address (Depositions p. 31).
3 Upon arriving at the premises, police observed that the house was secured with metal shutters on all windows, and access to the front door was restricted. Police gained access to the rear of the property and noted that all the rear windows of the house were also covered by metal shutters.
4 On approaching the front door of the premises, police observed a strong smell of cannabis coming from inside the house. Police called out to the occupants of the house but there was no reply. The front door was unlocked and when police opened it, the smell of cannabis intensified. Upon entering the house, police observed that there was a hydroponic set up. Police heard movement from within the house and called for any persons in the house to come out.
5 You eventually exited the front door of the premises and were arrested and cautioned by police. You were then taken to Sunshine Police Station. A search warrant pursuant to s. 81 of the Drugs, Poisons and Controlled Substances Act 1981 was obtained to search the premises.
Count 1: Cultivation of a commercial quantity of cannabis
6 A sophisticated hydroponic system was located in the three bedrooms and the garage. The bedrooms and garage were equipped with black plastic pots for the plants which were connected to a water supply running throughout the house. There were numerous electrical leads, timers, light globes and shrouds suspended from the roof, and charcoal and exhaust fans. Hydroponic growing equipment was also located throughout the house. The following plants were found; 11 cannabis plants, approximately 1 metre in height and weighing 14 kilograms were found in the first bedroom. There was also a branched stem which weighed 1.46 kilograms. Secondly, 15 cannabis plants, approximately 77 centimetres to 1.1 metres in height and weighing 22.30 kilograms were located in the second bedroom. 11 cannabis plants, approximately 1 metre in height and weighing 16.35 kilograms were found in the third bedroom. 42 cannabis plants, approximately 60 to 75centimetres in height and weighing 6.50 kilograms were found in the garage. There were 80 plants in total, with a total weight of 60.61 kilograms.
7 Police also found a cigarette packet containing cannabis which weighed 0.04 grams. Those are the facts alleged in relation to the first charge, that is cultivation of a commercial quantity of cannabis.
8 In relation to Charge 2- theft of electricity; the facts alleged are that an illegal by-pass for electricity was found by PowerCorp in the unmetered section of the consumer mains, between the fused overhead connector box and the metering enclosure. The total unmetered usage was calculated at 21,827 kwhs, being over a period of 61 days.
9 At the house, after you were arrested and given your caution and rights, you told police there were about forty cannabis plants in the house and another forty plants in the garage. You told police that you had bought the house a few months earlier and lived there permanently. You said that you had been growing the cannabis plants for two or three months.
10 You were formally interviewed at Sunshine Police Station in the early morning of 13 June 2010. You gave a “no comment” interview. The aggregate weight of 60.61 kilograms is more than double the threshold weight of 25 kilograms for commercial quantity, although I do have regard to the yield weight as well in assessing the seriousness of your offending. In that regard, the yield weight was 46.5 kilograms.
11 I note that although the cultivation charge is in respect of one date, the theft of the electricity spans about two months. Although you did not say this to police when they attended your premises, you did say to psychologist Mr Cummins, and have instructed your counsel, that the role which you played in the cultivation was effectively as a minder where you were required to look after the plants and water and attend to them on behalf of others.
12 You already owned a home but in 2008 you purchased a second house – this being the house in which the crop was found. I was told that you bought this house for $240,000, borrowing 95 per cent of the purchase price from the IMG Bank. The only documentation that I was taken to in your plea in relation to this mortgage was a copy of the mortgage document dated 22 September 2008, indicating that you were the sole proprietor of the property; but I was not provided with any documentation concerning the amount which you borrowed from the bank. However, although I expressed some disquiet about a bank lending you money in the circumstances of you not earning an income, I am not in a position to reject this account and in any event, it does not go squarely to any matter before me, so I accept what was put about this by your Counsel.
13 I was told that you rented the property out at $1,500 per month in order to meet the mortgage payments. You were able to obtain a mortgage notwithstanding that you were not working at that time. In any event, you purchased the second property in September 2008 and rented it out, having purchased the property as an investment. I was told that having bought the house and rented it out, your tenants then moved out at some stage, entrusting the cannabis crop in your house to you on the basis that they would still pay you rent and give you a further sum of money upon the harvest of the crop. Accordingly, it would appear that you allowed your tenants to rearrange your property in order to facilitate the hydroponic system that they put in place and you also allowed the electrical bypass to continue, notwithstanding that, according to you, you had no involvement in or knowledge of its installation in the first place.
14 I must say that I have great difficulty in accepting these matters, as they seem to fly in the face of reason or common sense – the notion that you would allow such changes to be made to your property by apparent strangers, and then to be entrusted with a valuable cannabis crop by these people who had been your tenants, lacks a good deal of plausibility. I was also told that you agreed to take part in the cultivation, to the extent that you did, partially out of fear of these people – a fear which you continue to have in respect of yourself and your family. I also regard this as quite remarkable in view of the fact that on a previous occasion of offending where you were convicted of cultivating cannabis, you indicated that you were, to quote you, “seduced” into doing so by others. If indeed it is the case that on a prior occasion you were used by others to do their criminal bidding, one would have thought that you would be on your guard in relation to the tenants at your house. However, this was not the case and apparently, according to you, you fell victim to others yet again.
15 Whilst there was no contest in a formal sense as to what you are alleged to have told the police upon your arrest, which is in some conflict with what you told Mr Cummins and your counsel, I do take into account that you are not fluent in English and your explanation to the police may have been somewhat inaccurate because of an inability on your part to fully explain yourself in English. However, whilst the Crown are not in a position to contradict the account that you have given in relation to the tenants in your house, and entrusting you with their crop, I have some difficulty with this insofar as there is any suggestion that you simply happened upon what they were doing in a house owned by you, and then were entrusted with such a valuable crop, and that partially out of fear, you agreed to keep the crop going- it lacks plausibility and in some respects, has a familiar ring to the explanation you gave to Mr Cummins for your previous conviction for cultivation of cannabis.
16 However, I do not sentence you on the basis that you set up the electricity bypass, or the hydroponic set-up, or grew the plants from scratch. I sentence you on the basis of the alleged dates of offending to which you have pleaded guilty, and in respect of the quantities of cannabis found. I sentence you on the basis of your admitted role of tending to the plants.
17 As the maximum penalties reflect, both of the offences for which I now sentence you are regarded by the law as most serious-particularly, cultivation of a commercial quantity of cannabis. The quantity which you cultivated was substantially over the threshold for commercial quantity and this is still the case even having regard to the yield weight. Of course, there are worse examples of this offence, where greater weights are involved and greater roles are proven to have been played, but your admitted offending is serious enough and warrants just punishment and denunciation.
18 In terms of your moral culpability, I factor in that you have never smoked cannabis but were happy enough to help cultivate it ultimately for the use of others. You did so, on your own admission, with the expectation of some return by means of a cut of the profits from its sale, which was apparently promised by your former tenants. I make it clear that I do not sentence you for anything other than the charges before me and your admitted conduct, but this is a factor going to your moral culpability-that is, that you were not helping to grow the cannabis in order to help feed an addiction of your own, but purely as a means to make some money. You instructed your Counsel that you were in fear of these tenants, but you did not say this to Mr Cummins; although, you did indicate to him that you were unable to name these people. You told Mr Cummins that you were hoping to get some money from growing the cannabis and then sell the house, and use what you had made from this to go to France to visit your elderly and ailing father. I am unable to accept that your involvement in this offending was, in part, performed out of fear. Whilst it may well be the case that you fear naming others involved, it defies belief that you partially acted out of fear in circumstances where the cultivation was instigated by others in a house owned by you.
19 Although your criminal history is not lengthy, it is of particular concern that you have a prior conviction for possess and cultivate cannabis for which you were convicted and fined $1,000 on 21 July 2003. You told Mr Cummins that ‘someone seduced’ you into growing 5 cannabis plants in pots which then grew two feet high. In relation to these, you said that your role was to put these out in the sun every day. I have regard to your criminal history and in particular, this prior matter for cultivation of cannabis, when assessing your prospects of rehabilitation and giving appropriate weight to specific deterrence.
20 You entered a plea of guilty after a contested committal at the Magistrates Court involving the cross-examination of the botanist who had provided a further certificate, and the police informant was also cross-examined. I was told that this step was taken in order to obtain some information for the plea- especially the break down of the weights provided by the botanist. I take into account the stage at which you entered your pleas to these charges, which has saved the time and trouble of witnesses giving evidence at trial and has saved the community the time and expense of running a trial. This entitles you to a substantial discount in the sentence that you would otherwise receive.
Background
21 By way of background I was told the following:
You were born on 25 June 1968 in Hai Phong in North Vietnam. Your father was a commercial ship’s captain. You had two brothers and three sisters. You went to school to grade 6, or the age of 12 or 13 years in 1982. The 1970’s were difficult years for people in North Vietnam, and they were indeed difficult for you.
22 In 1982 you left school. Sadly, your mother passed away in a boating accident. Your father later remarried but you didn’t get on with your step mother. A year later, your father was arrested for leaving Vietnam illegally and was gaoled for two years. You then worked as a mechanic on a boat owned and operated by a man who used to work for your father. You married in Vietnam. Your whole family later fled to Hong Kong, arriving there in1987. Your family remained in a refugee camp for four years. At that stage you worked as a labourer doing concreting. Your family then split up, with your father and step-mother going to France with your youngest siblings. One of your brothers went to Canada and two sisters to England. In July 1991 you came to Australia with your wife and three year old son who was born in Hong Kong in 1988.
23 Are you able to interpret Madame Interpreter? You do not seem to be saying anything at the moment.
24 INTERPRETER: He said that this part about his life, he understands - - -
25 HER HONOUR: He understands, thank you. I just want to make sure that he's following the proceedings.
26 INTERPRETER: He told me this.
27 You went to Adelaide first where you worked in a Buddhist temple without pay. One brother later came to Australia and then a sister came to live in Sydney, although you have no contact with her. In 1992 a second child, a daughter was born and your third child, another daughter was born in 2000. Your children are now aged 22 years, 19 years and 11 years.
28 Your wife speaks little English. She was present in Court along with your son. Your youngest child is at school in St Albans. Your son works at K-Mart tyre service and is completing a mechanical apprenticeship. Your eldest daughter is completing a midwifery degree at the Australian Catholic University. It appears that your children have done very well despite your offending now and in the past, but you should realise that your conduct must make it very difficult for your wife and children to lead normal, happy lives. Children are supposed to look up to their parents as positive role models. I hope that you keep this firmly in mind, Mr Phong, when reflecting on your offending, and when considering your options in the future.
29 Since moving to Melbourne in 1992, you have worked as a machinist, sewing fashion clothing. You set up your own business and worked long hours. In 2006, you began suffering from shoulder, neck and back problems, and ceased this business according to the report of Mr Cummins.
30 In relation to these injuries, two reports dated 8 and 9 July 2008 from Future Medical Imaging Group were tendered on the plea. These verify that you had suffered some injury to the right shoulder as at July 2008. You also told Mr Cummins that you have problems with your lumbar spine and with both shoulders. You have also suffered from a stomach ulcer for which you had taken Nexium but you are not on any medication at present. I take these ailments into account when sentencing you.
31 You told Mr Cummins that you were upset at being ineligible for the receipt of a disability pension. Since 2006, I was told that you have worked intermittently as a home repair handy man. In your interview with Mr Cummins you said that you had worked part-time as a builders’ labourer but that this has been difficult because of your shoulder injury.
32 Your relationship with your wife has been problematic at times but you now have her support and are reconciled. After renting houses for a number of years, you purchased your home at Red Bank Court then purchased the house in Myuna Drive in 2008.
33 Also tendered on your behalf were two certificates from Kangan Institute, indicating that you have attended courses in relation to Information Technology and Workplace Safety arrangements. Hopefully, you will draw on what you have learned when you are released from gaol.
34 You have been offered casual employment upon your release from custody from a long time friend, Duong Li Lanh, who runs a bottle shop in Sunshine North.
35 You are very concerned about your father’s degenerating health and have an earnest wish to visit him in France. Indeed, this was said to be your motivation in trying to raise funds which gives rise to the commission of these offences. I accept your Counsel’s submission that there is no apparent sign of any lavish lifestyle associated with your offending.
36 I factor in that this is your first time in prison, which, no doubt has had a salutary effect upon you. I also factor in that this would be a more difficult experience for you than, perhaps, for a more seasoned prisoner. However, I also take into account that when you were interviewed by Clinical and Forensic Psychologist, Mr Jeffrey Cummins, on 5th March this year, he was of the view that you were still having difficulty taking responsibility for your offending behaviour and appreciating its seriousness. Whilst it may well have been others who set up the hydroponics and electrical bypass, your role was serious, nonetheless.
37 In light of all relevant matters, I consider that your prospects of rehabilitation are fair. Your ability not to re-offend will largely depend on your ability to appreciate that you must take responsibility for your own actions and to realise that cultivating cannabis is not a legitimate way to make money. In all of the circumstances, I give not insignificant weight to special deterrence, and I give significant weight to general deterrence as others who are thinking of acting as you have must be put on notice that such behaviour will be met with fitting penalties. Your conduct is deserving of just punishment and denunciation. In sentencing you, I do so on the basis of your admitted role in the cultivation and electricity bypass, which has resulted in the theft charge to which you have pleaded guilty. I also have regard, as I have already indicated, to the quantity of cannabis- that is the wet weight and yield weights, which you cultivated.
38 Your Counsel helpfully referred me to a number of cases and a Sentencing Snapshot which gives me some guidance in respect of current sentencing practice which is one of the matters to which I must have regard in sentencing you. Another matter to which I must have regard is the maximum penalties for the offences.
39 The Prosecution helpfully provided me with individual ranges for each offence and a total effective sentence range of between 2 years and 3 years imprisonment with a non-parole period of between 17 and 27 months. Your Counsel submitted that an appropriate sentence in your case would be at the lower end of this range. I have considered these submissions carefully, in light of all of the relevant matters in your case and the weight that I have given to the various sentencing considerations which are involved in your case.
40 A compensation order was sought in respect to the theft of electricity, and I have now been advised by email, which was copied in to the Prosecution that you consent to such an order being made. Therefore, I order that you pay the sum of $6,148.87 to Origin Energy Limited, and I have signed an order to that effect. Further, I make a disposal order for the various items seized by the police which is not opposed by you.
Forensic sample
41 The charges upon which you have been convicted are forensic sample offences under Schedule 8 of the Crimes Act 1958. The prosecution has applied for an order pursuant to s.464ZF of the Crimes Act that you should undergo a forensic procedure so as to provide a forensic sample. That application is not opposed by you.
42 I am satisfied that in all of the circumstances the making of the order is justified for the following reasons; namely the seriousness of the offence, your prior convictions, the order is not opposed, and the granting of the order is in the public interest. Accordingly, I order that you provide a scraping from your mouth in accordance with Sub-division 30A Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.
43 Notwithstanding your present lack of opposition, I should tell you that the police may use reasonable force, if necessary, to enable the forensic procedure to be conducted. I have signed the form which has been provided to me by the prosecution.
44 Could you please stand up Mr Phong.
45 In respect of Charge 1- Cultivation of a quantity of cannabis, not less than the commercial quantity, you are convicted and sentenced to 3 years imprisonment.
46 In respect of Charge 2- theft of electricity, you are convicted and sentenced to 5 months imprisonment.
47 I order that 2 months of the sentence imposed on Charge 2 be served cumulatively on the sentence in Charge 1, giving a total effective sentence of 3 years 2 months imprisonment. I direct that you are to serve 2 years before becoming eligible for parole. I declare that you have already served 307 days by way of pre-sentence detention, which will be reckoned as already served.
48 If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 4 years 2 months with a non-parole period of 3 years imprisonment.
49 Are there any further matters, counsel?
50 COUNSEL: No, Your Honour.
51 HER HONOUR: Thank you, we'll adjourn. You can remove the prisoner. We'll adjourn thank you.
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