Director of Public Prosecutions v Phung

[2017] VCC 454

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-00582

DIRECTOR OF PUBLIC PROSECUTIONS

v

SON PHUNG

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	19 April 2017
CASE MAY BE CITED AS:	DPP v Phung
MEDIUM NEUTRAL CITATION:	[2017] VCC 454

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr P. Triandos
For the Accused	Mr G. Casement

HIS HONOUR:

1Son Phung, you have pleaded guilty to one charge of cultivation of cannabis simpliciter.  That crimes carries a maximum penalty of 15 years imprisonment.  You are 33 years of age.  You pleaded guilty at the earliest reasonable opportunity to a settled indictment.  You made admissions in a record of interview and I give you credit for appropriate remorse.  You must also of course get the utilitarian benefit of that plea of guilty.  You have no prior convictions which is of significance.  You speak very little English and you have now been in custody for some 184 days. 

2The circumstances of the offending were that in October of 2016, police attended at your then home address in Eastwood.  A warrant was executed.  You, your wife and two small children were present.  The police found a significant drug crop.  There was an electricity bypass, but you have not been charged with theft.

3When police went into the premises, they found five separate cannabis growing rooms. Obviously a great deal of attention had been put into not being discovered and the rooms had all been boarded up.  The external windows had heavy duty sheeting on them and in the normal way, vents had been installed into the roof with filters, to try and not have the neighbours smelling what was going on.  Inside, a large quantity of hydroponic growth material was located.  The Crown opening has been tendered and I do not need to go through all that. 

4In any event, you and your wife were then arrested and were taken to the Bairnsdale Police Station and interviewed.  You admitted that you were cultivating the crop within the meaning of the Act, that you had been there for a month or so and that another person who you, I accept from what your counsel says, endeavoured to identify, had set it up and would regularly visit.  You were adamant that your wife had nothing to do with it.  You did have a knowledge of what it was all about and accordingly you have to be sentenced on that basis.

5It is clearly a serious offence, that calls for the application of general but probably not in your case, specific deterrence, denunciation and appropriate punishment.  Insofar as your personal circumstances are concerned, you came from Vietnam in 2009 on a spousal visa.  You have worked since arriving in Australia, between 2009 and around about 2015.  That relationship faltered and you formed a new relationship with the lady who was found in the house with you. 

6I am told that there were medical bills to be paid and it was in that scenario, that you agreed to go to Bairnsdale to be a sitter of this particular crop.  I have a certain degree of scepticism in all of these matters, the explanations and information given, but nevertheless, I do not have anything to the contrary and I would have to deny Mr Casement natural justice.

7In any event, you have been found sitting a crop.  You are fortunate that it is close enough to the limit where the Crown could not proceed with a commercial quantity.  Of real significance in your situation is that your wife in fact is South Korean and her and your two small children have been deported to South Korea.  You will undoubtedly be deported at the expiration of this sentence, but you will be deported to Vietnam from where you came. 

8What you are going to be able to do about getting from Vietnam to South Korea, or the other way around is beyond my comprehension and may indeed prove to be hopeless.  In any event, I sentence you on the basis you undergo the sentence, being aware of the highly likely aspect of your deportation, the knowledge that your wife and children, through your own conduct, have already been deported and are now separated from you and that you will go through the sentence that is being imposed, aware that you have brought this all about and I accept, would have a pretty guilty conscious about what you have managed to achieve for your small and young family.

9The prospects of your rehabilitation are up to you.  The risk of you reoffending in this country is zero and I take those matters into account.  The Crown position is that an active custodial sentence is the only available option.  Your counsel does not demur from that and I entirely agree.

10Pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide police with such a saliva sample, they may use reasonable force to take it from you.

11In all the circumstances, particularly because of the deportation and the family circumstances, the effect upon you of that, I am not suggesting there are exceptional circumstances, I think that the sentence to be imposed is one which is not greatly different from what you have already undergone.  But as I said, and no one seems to be arguing with me, you have not done quite enough.

12Accordingly, on the charge of cultivate, you are sentenced to be imprisoned for a period of nine months.  I direct that 184 days be reckoned as having been served under this sentence.  So that but for your plea - sorry, 184 days, is that right?

13MR TRIANDOS:  Yes, Your Honour.

14MR CASEMENT:  Yes, Your Honour.

15HIS HONOUR:  Yes.  Pursuant to s.6AAA I say that but for your plea of guilty, I would have sentenced you to be imprisoned for a period of 15 months, with a minimum term of nine.  There is no other orders I have to make?

16MR TRIANDOS:  No orders.  Thank you, Your Honour.

17HIS HONOUR:  Yes all right, you can take him now.  Thank you.

18MR CASEMENT:  Your Honour, we don't have access to the interpreter down in the cells, if I could just have a moment?

19HIS HONOUR:  All right, yes.  No, yes, yes I'll leave the Bench.  I'll leave the Bench yes, it's all right.

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