Director of Public Prosecutions v Phuong

[2021] VCC 1442

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR 21-01359

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUY PHUONG

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JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2021
DATE OF SENTENCE:	27 September 2021
CASE MAY BE CITED AS:	DPP v Phuong
MEDIUM NEUTRAL CITATION:	[2021] VCC 1442

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of Guilty – Cultivation of narcotic plant – Trafficking in a drug of dependence – Knowingly dealing with proceeds of crime – Deportation – No criminal history – Very good prospects of rehabilitation – COVID-19 pandemic.

Legislation Cited:      Sentencing Act 1991 ss 6AAA, 18.

Cases Cited:Worboyes v The Queen [2021] VSCA 169.

Sentence:                  Total effective sentence of 11 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Holmes (plea) Ms V. Worrell (sentence)	Office of Public Prosecutions
For the Accused	Ms G. Liang	Giorgianni & Liang Lawyers

HER HONOUR:

1Duy Khanh Phuong you have pleaded guilty to an indictment containing the following charges:  Charge 1:  cultivation of narcotic plant between 15 May and 21 August 2020; Charge 2: trafficking in a drug of dependence, on
3 September 2020 and Charge 3:  knowingly dealing with proceeds of crime.

2Each offence carries a maximum sentence of 15 years' imprisonment.

Circumstances of the offending

3The full circumstances of your offending are set out in the Summary of Prosecution Opening dated 13 September 2021 and marked as Exhibit A on the plea.  The document will be attached to these reasons. I will not repeat it in full here but will only refer to it briefly.

4Operation Sapphire was a police investigation into four targeted properties for the cultivation and trafficking of cannabis.  Your charges relate to two of the properties located at Unit 3, 108 Buckley Street, Noble Park and your home at
3 Montclair Close, Springvale South.

5In relation to the Noble Park address a water account was connected in
March 2018 and your mobile number was provided for the account. On
15 May 2020, which is the commencement date for Charge 1, you were captured on CCTV attending at the Australia Post Springvale Store paying the water bill for the property in cash.  On 25 June 2020 you were similarly captured on footage paying an electricity bill for the property.

6On 21 August 2020 a search warrant was issued and executed on the property and investigators located a sophisticated hydroponic set up in six rooms of the house.  The house appeared to be used solely for the purpose of cultivating cannabis and was otherwise uninhabitable.  A total of 22 items were seized from the home, as detailed in paragraph [16] of the prosecution opening.  Seized items included one electrical bypass located in the wall of one room and a total of 16.83 kilograms of Cannabis L, consisting of 18 plants and other plant material (Charge 1).  Other items located but not seized are outlined in paragraph [17] and include large amounts of black plastic bags containing formed soil/root balls, large amounts of dried green branches and plant material which investigators believed was indicative of previous cannabis crops that had been harvested.  Your DNA was located on a cigarette butt located on the floor in the hallway. 

7On 3 September 2021 a warrant was executed on your home in Springvale South.  You were present and you co-operated with investigators. You told them there was cannabis in the back room as well as $4,000 cash on a shelf in a cupboard (Charge 3).

8Police observed two rooms in the house as primarily used for the storage and drying of cannabis.  One room was set up with equipment, including a carbon filtration system to dissipate cannabis smell. 

9A total of 18 plants from your home and vehicles, as detailed at paragraph [25] of the Crown opening, were seized.  These items included a total of 21.88 kg of Cannabis L, which consisted of 17 plants and included 6.30 kilograms of Cannabis L mixed with other plant material/material which could not be identified.  Also located were numerous utility bills and mail for the Noble Park address.  Other items located but not seized included hydroponic lighting and a large number of chemical fertilisers.  And those facts and details form Charge 2 on the indictment.

Arrest and procedural history

10On 3 September 2020 you were arrested and participated in a record of interview (ROI).  You made a no comment statement when asked about the Noble Park address.  In relation to the cannabis located in your home you made admissions and said that you had been given the cannabis by a man named Hung and another male.  They wanted to sell it and keep it at your place until they found a buyer. 

11You were remanded in custody and you have remained there since your arrest, totalling 389 days.   

12You entered a plea of guilty to the charges at a committal mention on
25 May 2021. 

Nature and gravity of the offending

13The maximum penalty for both the cultivation, in this case, and trafficking is 15 years' imprisonment, signifying how seriously the community views these offences.

14In assessing the gravity of the offending on Charge 1, I have had regard to the fact that this was a sophisticated set up.  I have also taken into account that the cultivation was over a period of approximately three months.

15Your role in the drug cultivation enterprise is another important factor relevant to an assessment of your culpability.  Your Counsel submitted that your role was to be involved in the ‘maintenance of the property.’  You were not much higher than a crop sitter, you just performed a different function.  The prosecution submitted that your position was higher than a crop sitter.  Increasing the seriousness of the charges were that you were responsible for the utilities, had a large amount of cannabis at your own premises and the set up was sophisticated.  The prosecution however did acknowledge the limitations of your overall involvement, based on the evidence.  I accept that there is limited evidence as to your actual involvement in the cultivation.  I am inclined to agree with your counsel that, on the evidence, your function related to the maintenance, or maintaining, of the property and was not much higher than a crop sitter.  I note here that it is not part of the prosecution case that you played any organising or principal role or that you had a proprietary interest in the cannabis. 

16In relation to the Springvale South address, Charge 2, it seems clear that you were living there.  A substantial amount of cannabis was found drying at the address.  In addition there were items usually associated with cultivating cannabis located at the property.  The evidence does support that you prepared cannabis for sale at the property.  You told police in your interview that you did this for others and you denied that you had ever sold cannabis yourself.  The trafficking charge is a single date charge. 

17On your behalf it was submitted that you owed $20,000 to a male, Hung, who you refer to in your record of interview.  You borrowed money to pay for your partner’s medical expenses related to the birth of your son.  I was told that due to her immigration status she did not qualify for Medicare at the time.  I cannot be certain of your partner's immigration status, though I note that during the course of the plea the informant advised that your partner was presently unlawful.  You instructed your counsel that you had lost your employment due to the pandemic and could not repay the money.  Hung then introduced you to cannabis cultivation as a means of repaying your debt.  On the material before me, I am prepared to accept this motivation on your part and consider that while it does not excuse your offending it reduces, in my view, your moral culpability.  In addition your involvement, of itself, was not particularly sophisticated.  The drugs and items were found in the home where you lived with your wife and young child.  It appears that you made no attempt to conceal your identity or distance yourself from the property.  

18Your overall offending is serious though and you assisted in this enterprise.  Even small roles, like your own, play an integral part in such an enterprise and contribute to its success.  In all the circumstances, and as conceded by your counsel, a term of imprisonment is warranted.

Plea of guilty and remorse

19You entered a plea of guilty at the earliest opportunity and this is significant and counts in your favour.

20Your plea is particularly valuable in circumstances where there is a large backlog of cases in the court and I recognise the utilitarian benefit of that.  I was referred by your counsel to Worboyes v The Queen  and I accept that your plea must attract ‘an actual and palpable amelioration of sentence’.[1]

[1] [2021] VSCA 169

21Your counsel submitted, and I accept, that your plea of guilty also demonstrates some remorse for the offending and an acceptance of responsibility on your part.

Personal circumstances

22I take into account your background, which was set out in your counsel’s written submissions and as referred to in the course of the plea.  You are now 31 years of age and you were born in Quang Binh, Vietnam. 

23You were raised by both parents and you have a younger sister.  Your immediate family live in Vietnam and your parents I am told are now in their 60s and retired. 

24In 2008, you completed Year 12 and in 2012 you completed a Diploma in Accounting. 

25In 2013 you came to Australia on a student visa and were enrolled in an English course at an Institute in Adelaide.  You could not continue studying due to a lack of funds.  In 2014 you moved to Melbourne and sometime in that year I am told that your student visa expired.   

26You then started working in various jobs, including on farms, as a handyman and other labouring jobs. 

27In 2016 you met your partner and you have a three year old son together.  You were living with them when the police arrested you and you expressed concern for their welfare during your interview. 

Prior criminal history

28Another factor relied on your behalf, Mr Phuong, is that importantly you have no prior criminal history.

Conditions in custody

29Conditions in custody were also relied upon on your behalf. It is now well established that prisoners are subjected to greater restrictions and deprivations than in normal times because of the impact of the COVID-19 pandemic.  In the community we are now experiencing our sixth lockdown and the numbers are rising.  I accept that this causes prisoners greater anxiety and concern, confined as they are to a prison environment.  You have been placed in quarantine for 14 days and subject to lockdown conditions.  You have not been able to receive any visits from your partner and son but have been having phone and video calls.  This is also a factor giving rise to a reduced sentence. 

30In your case I also accept that your period on remand has been more onerous as it is your first experience of custody.  You are also further isolated in custody because of your language limitations. 

Prospects of rehabilitation 

31It is submitted that you have excellent prospects of rehabilitation.  I accept that your prospects are very good given that you have no prior criminal history, no substance abuse issues, and you have some support available to you from your family in Vietnam and your partner here.  I am also told that you have been working as a window cleaning billets five days a week and that you have recently been able to engage in some limited courses.

Deportation

32Your Counsel relies on deportation as a mitigating factor in your case, in that it ‘increases the seriousness of the consequences to [you] and to making [your] time in custody more burdensome.’  The prosecution accept that your prospect of deportation is relevant in a limited way, in that it has negatively weighed upon you in custody.  In terms of your future, I agree that there is a degree of speculation as to what will occur.  You were unlawful at the time of your arrest.  It may be that you will be permanently separated from your wife and child which would constitute an additional punishment but, on the material before me, I am unable to speculate as to these potential outcomes.  I am, however, prepared to accept that the prospect of your deportation and separation from your young family has made your time in prison more burdensome than otherwise would be anticipated and I take this factor into account.

Sentencing principles

33In sentencing you I have had regard to a range of different factors.  I must give effect to the principles of just punishment, general and specific deterrence, denunciation and protection of the community.  I must also promote your rehabilitation.  I must also have regard to current sentencing practices for offences of the kind you have committed and I must balance your personal circumstances.  Both prosecution and defence provided me with helpful written submissions (Exhibit B and Exhibit 1) and I was referred to comparable cases which I have considered. 

34Your Counsel has submitted that I should impose a term of imprisonment that does not exceed the time you have already served on remand.  The prosecution submits that the time you have already served is within the range although the length of any sentence is a matter for the court.   

35Taking into account additionally the principles of totality and parsimony, in the circumstances of your case, I am inclined to generally accept that you have served a sufficient amount of time in custody for these offences.  I also accept, as your counsel submitted, that your significant time on remand has had a salutary effect and that this is relevant to specific deterrence.

Sentence

36Mr Phuong, I will proceed to sentence you.  You are convicted of each of the offences.  On Charge 1, cultivate cannabis, I sentence you to 7 months' imprisonment, on Charge 2, trafficking cannabis, I sentence you to 9 months' imprisonment, on Charge 3, I sentence you to 2 months' imprisonment.  Charge 2 is the base sentence.  I order 2 months on Charge 1 to be served cumulatively with the sentence on Charge 2.  Otherwise, sentences are to be served concurrently.  This represents a total effective sentence of 11 months' imprisonment. 

37As of today you have served 389 days in custody. I note but do not declare that period of time under this sentence but rather I declare 11 months of it pursuant to s18 of the Sentencing Act. 

38Pursuant to s6AAA of the Sentencing Act 1991 I indicate that but for your plea of guilty you would have been sentenced to a term of 21 months' imprisonment with a non-parole period of 14 months.

39I make the forfeiture and disposal orders in the terms set out in the documents handed to me and I note that these orders are not opposed. 

40Now, is there anything else remaining?

41MS LIANG:  Nothing further from me, Your Honour.

42MS WORRELL:  No, Your Honour.

43HER HONOUR:  All right.  Thank you very much.

44MS WORRELL:  If the court pleases.

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