Director of Public Prosecutions v Phoung (a pseudonym)

[2023] VCC 1115

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

AILEEN PHOUNG (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2023
DATE OF SENTENCE:	29 June 2023
CASE MAY BE CITED AS:	DPP v Phoung (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1115

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW

Catchwords:                    Cultivate a commercial quantity of cannabis – undertaking to give evidence – appropriateness of a combination sentence – student visa – prospect of deportation.

Legislation Cited:     Sentencing Act 1991 (Vic); Migration Act 1958 (Cth).

Cases Cited: Nguyen v The Queen [2021] VSCA 211; Le v The Queen [2021] VSCA 220; Dang v The Queen [2020] VSCA 24; Nguyen v The Queen [2016] VSCA 198; Worboyes v The Queen [2021] VSCA 169.

Sentence: Total Effective Sentence of 26 months' imprisonment with a non-parole period of 15 months.

S6AAA: 4 years with a non-parole period of 3 years and 2 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Borg	Office of Public Prosecutions
For the Accused	Mr D. Grace KC

HER HONOUR:

Introduction

1.Aileen Phuong[1], just before 6am on 15 August 2021, police attended a suspected burglary at a factory located in an industrial area of Ravenhall.  Upon their arrival they discovered that the factory, which was located at 1/6 Geehi Way, had a hydroponic cannabis set up, and several arrests were made.  You are not charged with that factory, but it was the police attendance there that led to your arrest on this matter.

[1] A pseudonym.

2.Just before 7am you were seen in company with another woman and a man, behaving suspiciously, leaving a nearby factory at 2/4 Geehi Way.  You were wearing pyjamas.  When police yelled at you to stop, all three of you started to run.  You and the other female, your co-offender, Pauline Spencer[2], were caught but the male got away and has never been found.

[2] A pseudonym.

3.You were searched, and in your handbag, a driver's licence in the name of Aileen Phuong was found.  Inside the jacket you were wearing was a set of keys which could open the door to both 2/4 Geehi Way and also 1/6 Geehi Way.

4.Inside 2/4 Geehi Way, police discovered eight separate rooms and one smaller compartment all made up of tent type material.  Cannabis plants were growing in a hydroponic system in six of the rooms and in the smaller compartment.  The six rooms had artificial lighting suspended from the ceiling and were equipped with charcoal filters.  The other two rooms were set up as drying rooms for cannabis flower and had a large makeshift table and electric fan.  Dried flower was found in those rooms and on shelves on the back and side walls of the factory.  

5.Police also observed that the electrical supply to the warehouse had been tampered with and it was subsequently confirmed that there was an illegal electrical bypass system in place.

6.In addition to the eight rooms, the factory had a makeshift sleeping area with a mattress and heater and also a food preparation area.

7.Your car, a Toyota Camry sedan, was found inside the factory. 

8.Altogether police located a total of 135.43 kilograms of cannabis inside the factory comprising 243 cannabis plants weighing 118.64 kilograms and 16.79 kilograms of dried cannabis flower.

9.You were arrested and conveyed to Sunshine Police Station, where police seized two mobile telephones from you and interviewed you with the assistance of an interpreter and after you had the opportunity to obtain legal advice.  Essentially, you told a series of lies. 

·You said it was the first time that you had been to the factory;

·That you had gone there to do some cleaning;

·That you did not know the other two people who were with you and had never seen them before;

·That you had not seen any plants inside the factory and that you did not do anything to the plants;

·When asked why you were wearing pyjamas you said when you go to work you normally wear pyjamas; and

·You told police that you did not do anything wrong, and that you were only there to clean rubbish.

10.After the interview you were charged in relation to both factories and remanded in custody where you spent 190 days until you were released on bail by the Supreme Court on 16 February 2022.  Those 190 days included two weeks in quarantine, and thereafter 23 hours a day in your cell due to the pandemic.

11.You were committed to this court by straight hand up brief on 10 Dec 2021.  On 27 July 2022, which was the fourth directions hearing in this court, the matter was booked in for trial to commence earlier this year.  After that directions hearing you changed solicitors and retained Mr Grace KC on 10 October 2022.  He promptly made an offer that you plead to the factory at 2/4 Geehi Way and the matter was resolved on that basis. 

12.You were arraigned and pleaded guilty to a single charge of cultivating a commercial quantity of cannabis between 26 July 2021 and
15 August 2021, those dates corresponding to the first time you, as opposed to your car, could be seen attending the factory on CCTV, and the date of your arrest. That arraignment occurred on 17 February this year. 

13.A plea on your behalf was conducted before me on 28 June this year and it now falls to me to sentence you for your conduct.  The inevitability of an immediate term of imprisonment was conceded by Mr Grace, however he argued that the mitigating circumstances justified a combination sentence, that is a term of imprisonment plus a community corrections order.

14.Normally this would not be an available option for your charge, but because you provided a statement to the police and gave an undertaking at the plea to give evidence in accordance with that statement, it is.  Ms Borg, for the Crown, submitted that only a sentence of imprisonment with a non-parole period was within range.

15.As I said at the end of the plea hearing, the fact that a combination sentence is legally available to me, does not mean that it is appropriate.  In deciding what is the appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[3]  Some tend towards leniency and some point the other way.  No one factor automatically prevails over any other, rather I must have regard to them all and give each the weight it deserves to arrive at a just sentence. But before I turn to these factors I need to set out the results of the police investigation and subsequent events in more detail.

[3] Sentencing Act 1991 (Vic) s 5(2) ('Sentencing Act').

Subsequent police investigation and events

16.After your arrest police obtained CCTV footage which gave a clear view of the exterior of 2/4 Geehi Way.  It showed your car at the front of the factory from
22 June 2021 to 15 August 2021 on many occasions, and you attending the location from 26 July 2021 onwards.

17.Further, GPS information contained in your mobile phone showed you attending the area of both factories on no less than 50 occasions between 22 June 2021 and 15 August 2021.

18.Analysis of your two mobile telephones revealed the following: 

·You had a contact in your phone with the name Pauline Spencer, with a phone number;

·You had either called or received calls from Pauline Spencer between 6 August and 14 August 2021;

·You received a text message from Pauline Spencer at 4.54 pm on 14 August 2021 that said in Vietnamese 'Let's be there at 6.00 dear'.

·There were five photographs of what appeared to be invoices on your phone in Vietnamese which were translated to reveal two documents, each headed 'Detailed report', containing dates, quantities, items, and prices, including of wire cores, tanks, fans, Jungle room tent, water house, shade lamp holders, cocoa bags, mechanical lamp sets, fuses, pumps, Oxi Tonic, cutting knife, jugs and a harvesting machine. One of those documents had a date of 12 July 2021.  There was another list referring to various dates, quantities, unit prices and amounts for items such as feeding tub, decarboniser, decarbonising fan, water house,
48 circuit main breaker, root stimulator and fuses. Finally, there was a document which appeared to be an instruction sheet with days and weeks listed.

19.On 28 November 2022 you voluntarily provided a statement to Victoria Police outlining your involvement in cultivating the cannabis crops at the factory at
2/4 Geehi Way.  I will return to what you said in that statement later on in these remarks.

Your personal circumstances

20.Turning to your personal circumstances, which were outlined in defence submissions. 

21.You were born on 23 July 1993 and are now 29 years old. You were 28 years old at the time of this offending.

22.You were born in Lang Son City in Vietnam. You are the youngest in a sibship of five, with two brothers and two sisters. All your siblings are married and have children. Your mother is 68 and is a retired agricultural worker. Your father, who was a factory worker, died in 2022 at the age of 68 due to kidney failure. You were in custody when he died, which was very upsetting for you as not only could you not see him in the lead up to his death, you could not speak to him either. Your family is close knit and loving.

23.You excelled academically through high school and university. In 2012, aged 18, you began a degree in Land Management at the Thai Nguyen University of Agriculture and Forestry. You lived at the university dormitory and during breaks would return home to assist your mother in her work. In 2016 you participated in a program studying and practising agriculture in Israel. Your academic achievements were a source of pride for your parents.

24.In December 2018, aged 25, you moved to Australia on a one-year work visa to participate in an agriculture program. You worked on a grape farm in Mildura. Two months later, following a dispute about underpayment, you resigned. You then began working on a vegetable farm in Werribee South.

25.In 2019 you obtained a student visa and enrolled in an English course which you attended after working on the farm. You also enrolled in a childcare course and your visa was extended for 2.5 years. In early 2021 you resigned from the farm due to a back injury and after two months of unemployment began working in a Vietnamese grocery store whilst also studying the childcare course online. You then lost your job due to COVID-19 lockdowns. This was the context in which the offending occurred. 

26.In March 2019 you met your partner, Ron Murphy[4], who is a refugee from Pakistan on a temporary protection visa. You commenced a romantic relationship and moved in together. You still live with Mr Murphy and have a goal to be a crop farmer in Australia. You do not have any children.

[4] A pseudonym.

27.Following your release from custody you worked as a cleaner, initially for The Urban Company, who ceased operation in October 2022, and now privately.

28.I was provided with nine character references. Eight were written by people who employ you as a cleaner and one was written by a friend. Not all references were written for the purpose of court and of those that were, some authors were not aware of the nature of your offending.  Nevertheless, the unifying sentiment expressed is that you are a reliable, professional, hardworking, and responsible person. You are described as kind and trustworthy, and several people, including one solicitor who said she was aware of your charges, although she did not state what they were, have given you keys to their homes.

Objective gravity of your offending and moral culpability

29.Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender.  If there was any doubt about the seriousness of the offence of cultivating a commercial quantity of cannabis, the maximum penalty of 25 years' imprisonment makes it perfectly clear.  So too does the fact that since 20 March 2017 it has been a Category 2 offence, which means that a term of imprisonment other than one in combination with a Community Corrections Order is mandatory unless certain exceptions exist.  In your case, as I have already said, one of the exceptions does exist.

30.Because cultivation offences are quantity based, the quantity cultivated – which represents potential profits – is a critical factor in assessment of offence gravity.  Other factors of importance are the role of the offender and the scale, sophistication, and duration of the activity.[5]

[5] Nguyen v The Queen [2021] VSCA 211, [30].

31.A commercial quantity of cannabis is prescribed to be 25 kilograms or 100 plants.  You are charged with cultivation over a 21 day period of 243 plants and a total of 135 kilograms of cannabis.  In terms of weight this is more than 5 times a commercial quantity and more than half a large commercial quantity, which is prescribed to be 250 kilograms or 1,000 plants.  On a purely quantitative scale your offending is certainly not at the lower end of seriousness for this offence.

32.Moreover, this was a large-scale sophisticated set up involving an electricity bypass.  The whole factory was dedicated to the growing of cannabis. 

33.As for your role, the CCTV footage shows you attending every day of the 21 days covered by the charge.  According to your statement you were brought into the enterprise by a man called Adam[6].  It was not your idea and on three occasions you told Adam that you wanted out because it was illegal, but he reassured you and you stayed.  You worked with the two others who were with you on 15 August, watering, fertilising, and harvesting the plants on the basis you would receive 25% of the profits.  You received a total of $5,000 for your efforts by the time of your arrest.  In your statement you also said that you helped set up the factory with cardboard boxes to disguise its real purpose and that you helped unload the cannabis plants when Adam brought them to the factory in July. 

[6] A pseudonym.

34.Your instructions to Mr Grace were somewhat at odds with the plain reading of your statement in that you told him that you only learned of the intended purpose of the factory after you had set up the boxes and that you believed Adam when he told you that you were not breaking the law.  Mr Grace submitted that:

'Her motivation for involvement was to earn money as she had no other source of income, she was cajoled and exploited by Adam, she was naïve and gullible, however accepts full responsibility for her decisions and her actions'.

35.As I indicated to Mr Grace, I find your account to him improbable, and I do not accept it.  You were an intelligent, educated, even somewhat worldly woman with agricultural experience and expertise.  As to your motivation, undoubtedly it was to earn money and undoubtedly the offending occurred during COVID.  However, as the prosecutor pointed out, you were, at that stage living with your partner, who was apparently working as a truck driver and who, in February 2022, swore an affidavit in support of your bail application stating that:

'I am after payment of all my just debts and liabilities well and truly worth in real or personal property or both not less than the amount of $50,000'.

36.I do accept that you had some financial difficulties because of COVID, but clearly you were not destitute. 

37.Those matters aside, I proceed on the basis that the limits of your involvement and your financial reward were as you described in your statement.  The gravity of your offending and your moral culpability are obviously less than those higher up in the hierarchy, such as Adam, however you still played a vital role in the production line of the end product.  You were part of a sophisticated enterprise with expected significant profits, and you must have known this. I regard your moral culpability as high.  The fact your involvement was of short duration was more a matter of chance than design, but nevertheless you will not be punished for anything more than what you are charged with. 

Current sentencing practices

38.I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases, or both.  This is to promote consistency of approach in sentencing, particularly the application of relevant principles.

39.The most recent Sentencing Advisory Council Sentencing Snapshot (April 2022) for the offence of cultivating a commercial quantity of narcotic plants, which is most usually cannabis, indicates that almost 98% of people sentenced for the offence over the five years between 1 July 2016 and 30 June 2021 received an immediate term of imprisonment ranging from 21 days to six and a half years, with two to three years being the most common sentence at 39% (that is 125 out of 318 non aggregate terms). 

40.There are several things to note about these statistics.  First, statistics are of limited assistance because they never tell you anything about the details of the case.  That said, as Mr Grace submitted, the range of terms of imprisonment could be expected to broadly reflect the full spectrum of seriousness of the cases involved.  Secondly, a number of the offences captured would have been committed before cultivating a commercial quantity of cannabis became a category 2 offence subject to the mandatory sentencing provisions.  This may have affected the length of prison terms given that combination sentences were available in respect of those offences.  Thirdly, some of the sentences were imposed during COVID and may have been shorter than previously because of the combined effect of the Worboyes'[7] principle and the increased burden of imprisonment. 

[7] Worboyes v The Queen [2021] VSCA 169.

41.Whilst no two cases are ever truly the same, of more use than statistics are sentences imposed in comparable cases.  Such sentences are not binding precedents to be applied or distinguished, nor do they set the outer parameters of appropriate sentences, but they are a guide or yardstick against which to measure any sentence proposed in the instant case.  I have had regard to the three cases to which Ms Borg referred me, one County Court sentence of Max Symons[8] and two Court of Appeal decisions.  The Symons case in which a sentence of 3.5 years was imposed on the charge of cultivate a commercial quantity of cannabis, had some similarities, but many dissimilarities and could not really be considered comparable. 

[8] DPP v Max Symons [2020] VCC 1927.

42.The Court of Appeal decisions, both 2010, were not relied on as comparable cases, but rather because of the sentencing principles expressed therein in relation to your offending, namely the paramountcy of general deterrence and the adequacy, or rather, inadequacy of sentences being imposed.  As I indicated to counsel, other more recent Court of Appeal decisions have reiterated the need for lower courts to increase the sentences imposed for offences of cultivating a commercial quantity of cannabis.[9] 

[9] See, eg, Nguyen v The Queen [2016] VSCA 198, which involved mid-range offending; Nguyen v The Queen [2021] VSCA 211, which involved very serious offending; Le v The Queen [2021] VSCA 220; and Dang v The Queen [2020] VSCA 24.

43.Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.

Plea of guilty, cooperation and remorse

44.You are entitled to a significant discount in your sentence for the fact you pleaded guilty, and considering how the matter resolved you did so at a relatively early stage.  In so doing you facilitated the course of justice and took legal responsibility for your crimes.  Moreover, as I have already adverted to, in Worboyes, our Court of Appeal emphasised the need for sentences to reflect the high value of pleas of guilty during the pandemic, when the legal system is under considerable strain.[10] This principle still applies.

[10] Ibid [39].

45.Further, I accept that your plea is accompanied by genuine remorse which entitles you to a greater discount. 

46.Finally, I take into account in your favour the statement you made on 28 November 2022 and the undertaking you gave to the court to give evidence in accordance with it.  The value of your statement and your undertaking is difficult to assess on the limited information I have.  I do not know whether you will ever be called upon to give evidence and the prosecutor indicated there was ample evidence against you and Pauline Spencer without your statement, which it must be said was fairly scant in detail.

47.I was told nothing about the likelihood that the third person or Adam will be prosecuted, however given the effluxion of time, it seems unlikely.  I am unable to conclude that your statement will be of any great benefit to the authorities in the future, but it was at least incriminating of you and in that sense indicative of remorse.  It was also provided before Pauline Spencer absconded and I therefore accept that you were prepared to give evidence against her.  These matters are to your credit.

Your character and risk of re-offending

48.Turning to your character and the risk of re-offending, you have no prior convictions and no outstanding offences.  You are entitled to be sentenced as a person of otherwise good character.  You are, as I have said, intelligent and accomplished.  I am satisfied your prospects of rehabilitation are excellent.

Prospect of deportation

49.Your student visa will expire in October this year, if not cancelled beforehand. Any sentence of 12 months or more will give rise to the prospect of your deportation, either because of the mandatory cancellation provisions of the Migration Act 1958 or because your visa will not be renewed on character grounds.

50.Whether you would actually be deported is not certain given you have some ties to Australia in the nature of your relationship and you have rights of appeal and review.  Nevertheless, if you were to be deported it would destroy your hopes of creating a life here.  I accept that the worry of being deported will make any prison term harder for you and further, that if you are deported it will constitute an additional punishment for you.

51.To be clear, whilst I take these matters into account, they are simply part of the mix.  You have brought this situation on yourself.  It would be wrong of me to impose a sentence of less than 12 months if to do so would be otherwise inappropriate or inadequate.  Clearly, courts should not be in the business of attempting to defeat the intention of parliament by imposing artificially low sentences.  Further, you have only been in Australia since 2018 and whilst you have a partner here, you also have a loving and supporting family to whom you can return in Vietnam.  Your situation cannot be compared to some others where offenders face deportation to a country they left long ago, to which they no longer have any ties, or worse still, face persecution. 

The burden of custody

52.In determining the appropriate sentence, I take into account in mitigation:

i.Your time on remand was harder than usual because of COVID restrictions;

ii.Your future imprisonment will be harder because of your worry about deportation, your limited English, the inability of your family to visit you and the fact that you are being imprisoned in a time of uncertainty because of COVID.  In that regard, although the restrictions imposed in prisons to prevent the spread of the virus have now largely been removed, they may well be reimposed with the consequence that prison would once again be more onerous. 

Purposes of sentencing

53.I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community.  A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.

54.In your case those principles are qualified by the fact you have committed a category 2 offence, however as I have said your undertaking exempts you from the requirement that I impose a term of imprisonment not in combination with a corrections order.

55.In cases of commercial cannabis cultivation, general deterrence and denunciation are at the forefront of the sentencing process.  This applies even to sentences imposed on people low down in the criminal enterprise, as they still play a critical role.  Those who are tempted to become involved in cannabis cultivation for monetary reward, whether as crop sitters or otherwise, must be deterred from doing so by the knowledge that if caught they will receive a term of imprisonment that makes the risk not worthwhile.

56.I do not consider specific deterrence or community protection to be a significant sentencing consideration in your case, as I consider your risk of re-offending to be very low. 

57.Mr Grace sought a term of imprisonment in combination with a corrections order.   The Crown sought the imposition of a head sentence and non-parole period.  In my view, notwithstanding the mitigating factors I have outlined in detail, a combination sentence is not appropriate in this case.  It would not reflect the gravity of your offending, your moral culpability, the maximum penalty, current sentencing practices or the relevant sentencing principles.

58.Weighing up the competing considerations, in my view a sentence longer than two years is called for and I see no reason not to impose a non-parole period.[11]  Taking into account your excellent prospects I will fix a relatively short non parole period.  Whether you are released at the end of that time, and what will happen to you if you are, are matters for the relevant authorities, not me.

[11] Given the head sentence is greater than 2 years, the fixing of a non-parole period is mandatory unless the nature of the offence or past history of the offender make it inappropriate, see s 11 of Sentencing Act 1991 (Vic).

Sentence

59.Ms Phuong, stand up please.

60.On the single charge of cultivating a commercial quantity of cannabis, I convict and sentence you to a term of imprisonment of 26 months; that is two years and two months. 

61.In respect of that sentence I set a non-parole period of 15 months.  That is, you must serve 15 months before you will be eligible for parole.

Pre-sentence detention

62.I declare that you have served a total of 190 days pre-sentence detention, not including today, in respect of this sentence, and order that this declaration be entered into the records of the court and the period be deducted administratively.

Section 6AAA

63.If you had pleaded not guilty to the charge and been found guilty by a jury, I would have sentenced you to a term of imprisonment of 4 years, with a non‑parole period of 3 years and 2 months.

Disposal Order

64.The Crown have sought a disposal order of various items, including your mobile phones.  On your behalf Mr Grace objected to the order being made in respect of your two mobile phones.  I am satisfied that your mobile phones were used in the commission of the offence and I make the disposal order in respect of them, as well as the other items.

65.Ms Phuong, do you understand the sentence?  Are there any other orders that I need to make?

66.MS BORG:  No, Your Honour.

67.HER HONOUR:  I will leave the Bench.

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