Director of Public Prosecutions v Tran
[2016] VCC 1011
•14 July 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-16-00701 (Do Pham)
CR-16-00702 (Thi Pham)
CR-16-00703 (Thinh Tran)
Indictment No: G10342530
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Do PHAM, Thi PHAM & Thinh TRAN |
---
JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 July 2016 | |
DATE OF SENTENCE: | 14 July 2016 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1011 | |
REASONS FOR SENTENCE
---
Subject: Cultivation of cannabis in a commercial quantity
---
APPEARANCES: | Counsel | Solicitors | |
| For the DPP | Ms D Guesdon (on 11 July) Mr A Rooney (on 14 July) | Office of Public Prosecutions | |
| For the Accused Do PHAM Thi PHAM Thinh TRAN | Ms J Swiney (on 11 July) Mr M Brennan Mr J McLoughlin | Matthew White & Associates Emma Turnbull Lawyers Victoria Legal Aid | |
HIS HONOUR:
1 Do Pham, Thi Phan and Thinh Tran, you have each pleaded guilty to one charge of cultivation of a commercial quantity of cannabis. None of you has any prior convictions or appearances before the courts, nor is there anything outstanding at all.
2 The maximum penalty for the offence is 25 years’ imprisonment.
3 This matter was opened to me by Ms Guesdon who appeared on behalf of the Director of Public Prosecutions. A written opening, dated 20 April 2016, was marked as Exhibit A on the plea. Your respective counsel told me that this was an agreed statement of facts.
4 I regard it as unnecessary in those circumstances to restate now the full factual basis of sentencing. Exhibit A will remain on the court file and I will not go beyond that agreed statement.
5 That summary describes the nature of the crop that you were cultivating. You were all caught red handed within a house at 7 Backhaus Avenue Sunbury on the 2 February of this year. Within the property there was an elaborate hydroponic cannabis setup with six rooms under cultivation. There were 136 plants of varying sizes and the total weight of the plants was 29.78 kg, with an additional 661 grams of dried cannabis embraced by the cultivation charge.
6
This was very clearly a professional undertaking as the summary and the photographs marked as Exhibit B make clear. There was an electrical
by-pass in place, though of course you are not charged with the theft of that electricity and nor is it suggested that any of you is responsible for the by-pass. These premises were essentially dedicated to the growing of cannabis and you were the cultivators.
7 These premises were what is sometimes referred to as a "grow house" or "crop house". You were the "crop sitters", though you had varying roles and levels of connection to the undertaking.
8 The fact that such words as "grow house’", "crop house" and "crop sitter" are confidently used these days by counsel in court and understood by judges when they are used, says something as to the prevalence of this style of offending. You were each arrested at the property on 2 February of this year and have been in custody since. You each were cooperative with the police and made admissions when interviewed.
In Mitigation
9 Your counsel each relied upon a number of matters in mitigation. Many were matters raised in common, though some matters were raised individually. The matters raised in mitigation included:
· In each case, your earliest of guilty pleas and cooperation with the authorities;
· In each case the presence of remorse;
· In your cases Mr Pham and Ms Pham, your difficulties to date in prison;
· In your case Mr Tran, your youth and complete lack of any prior criminal history and the certainty of your deportation:
· In your cases Ms Pham and Mr Pham, your age and past good conduct over the course of your lives, and the complete absence of any prior criminal history;
· In all of your cases it was argued or at least implied that you had very good prospects of rehabilitation;
10 Each counsel made submissions as to the offence being a relatively low level example of the crime, the reasons behind your individual involvement in the crime, and the individual role. Each counsel conceded the inevitability of an immediate term.
11 In your case, Mr Tran, given the deportation issues, your counsel did not suggest that a community corrections order or combination order could be employed, and he was undoubtedly correct. Your visa has already been cancelled.
12 In your case, Ms Pham, it was argued that it would be open to sentence you to a term of imprisonment hopefully equating to your pre-sentence detention and to admit you to a community corrections order. Or failing that, to have you released in the future on a community corrections order.
13 In your case, Mr Pham, I was told that you would not consent to a community corrections order and that hence prison was the only realistic option.
Prosecution
14 Ms Guesdon, who appeared on behalf of the Director of Public Prosecutions, submitted that though the offending was towards the lower level of offence seriousness, it was still a serious crime involving as it did a commercial quantity cultivation. Though it was not being suggested that any of you had set up the bypass or crop, or were its financiers or architects, and that each of you were to be treated as ‘crop-sitters’, the prosecutor pointed to the qualitative differences in your position Ms Pham, differences actually spelt out by you in your own interview. You had been involved first, you had recruited the two others, you had received money from the owners and used it to pay bills, and given some to your co-accused Mr Pham to make purchases. You had expected to be paid $10,000. To that extent you had instructions from further up the hierarchy as to what to do and gave directions to the others.
15 The Crown challenged the suggestion made on your behalf, Mr Pham, that you had no expectation of any financial reward. They argued that a term of imprisonment was called for in each case, though conceded that it would be open to either fix a non-parole period or combine a prison term with a community corrections order in your case Mr Pham and Mrs Pham, given that the Court had at its disposal a term of up to two years imprisonment in combination with the power to impose a community corrections order.
Background
16 I deal only briefly with your personal backgrounds before turning to these submissions, as there is nothing at all exceptional in any of your family personal backgrounds placed before me. In each case, I have no reason at all to doubt what I was told of your personal background. There is also some reference to it in the written submissions which have been filed on your behalf.
Thi Pham
17 I turn firstly to you, Ms Pham. You are 56 years of age, born on 30 July 1959. You were born in Vietnam and obtained a degree in Vietnam. You lost your husband to cancer in 1989 and have one child, Lily, who is about 30 now.
18 You came to Australia in 1995, having spent a number of years in a refugee camp before your arrival. You have worked in Australia in farming and agricultural areas, and in 2013 started a cucumber business which it would seem failed in 2015. You had married your co-accused Mr Pham in 2010, but separated sometime in 2011.
19 Your daughter and son in law have each provided strong references on your behalf. In relation to your daughter's reference, the prosecutor this morning corrected an aspect of that reference, where it was said that you had never been charged before the courts previously.
20 With the agreement of your counsel Mr Rooney, who appears today, he told me that that in fact was not the position; that you had been charged in the past, but that that matter had been discontinued. But really that takes me nowhere. I still act on the strength of you having no prior criminal history, and nothing outstanding. I act on the strength of the reference of your daughter.
21 Your daughter is expecting a child in the next few weeks and you are understandably very concerned about not being available for that happy event and the aftermath.
22 You have had difficulties in prison, with some issue with your arm and with very little spoken English. I was told that you had incurred debts in relation to the failed business, and that there had been some threats made to kill you. You had told the police about these things in your interview. I asked your counsel if there was any evidence in support of these contentions other than your word on it, and he said there was not. In any event, financial need was raised as explaining your decision to commit this crime.
Do Pham
23 Mr Pham, you are 57, born 28 August 1958. You were also born and brought up in Vietnam and you had worked as a tour guide. You had been previously married, but your first wife had died. Your two sons of that earlier relationship have thrived and live now in Germany. Your sons are in their 30s, and they work in professional positions. You are proud of them, no doubt in the same way that Ms Pham is proud of her daughter who has also achieved academically and professionally.
24 You met Ms Pham in about 2010 and you married and came to Australia. You have three brothers and an elderly mother who is 88 years of age. They are all still living in Vietnam, and you hope to return to visit your relatives.
25 In addition, one of your sons is getting married in Germany at the end of the year. You are worried as to your ability to attend. You have not told your brothers or sons about your present predicament, though your mother knows as does a nephew.
26 You have found prison difficult with very little English and for some reason, lockdown conditions that have you out of your cell only one or two hours a day.
27 Your counsel argued that I should not find that there was any monetary motive in involving yourself in this crime; that you were just helping out your ex wife with no expectation of any financial reward. I was told that you would not consent to a community corrections order, and that the reason for that was your desire to be free to leave the country to visit relatives in Germany and Vietnam, with impediments to such freedom potentially presented by a long community corrections order. I doubted the wisdom of such a stance and I raised my doubts, and did so in an endeavour to dissuade you from such a view, and in fact I at one point stood the matter down, but to no avail. So be it.
28 I was told that you are an Australian citizen.
Thinh Tran
29 Turning to you, Mr Tran. You are 23 years of age. You were born in Vietnam on 4 January 1993. You have an older brother and younger sister. Your father died in a road accident when you were in your final year of school. You did some study following on from your schooling, and came to Australia to study in 2013. You had taken out a loan to fund the venture but learnt that there had been payment of only a portion of the fees at Swinburne when you arrived. You attended only once at that institution, and then left study behind you and found work in a variety of areas including agricultural work up and down the East Coast. It was a transient lifestyle. You were recruited as something of a "dogsbody".
30 Your visa has been cancelled and you will certainly be deported. Deportation is not unwelcome as it is to some. You want to go home, and as quickly as possible. But I am sure there will be an aspect of your going home with your tail between your legs.
31 Your study may have given you some chance of getting ahead in your life and in the world. Instead, you will return home with no degree, a criminal conviction, and a prison term behind you, and a debt incurred to fund the whole unhappy experience. It is a bit sad to contemplate, but you are not the first and certainly won’t be the last to cause such self inflicted damage.
32 Your mother awaits you and she has obviously had some spinal issues, though it is hard for me to make any finding as to their severity, nor was I asked to. Certainly there is no suggestion of any exceptional third party hardship or anything close to that position, or even that her condition, such as it is, will in any way impact upon the burden of your own sentence.
33 As I have said already, you have all been in custody since arrest on 2 February 2016, a period of some 164 days.
34 You have each made the decision to concern yourself in this criminal enterprise. Your decision to involve yourself in the commercial cultivation of an illegal drug was no doubt motivated by the prospect of some monetary gain. I find that to be the position in each case. I am satisfied of that beyond reasonable doubt in each case.
35 In your case, Mr Pham, there may have also been some sense of helping out your former wife, but I am satisfied beyond reasonable doubt that you also had some expectation of some financial gain. This was an unmistakeably serious criminal venture with a level of risk attached to involvement. You also had some injury yourself at the time as I understand it. Yet you joined in.
36 You were asked how much you were going to be paid and said that you did not know. See Question 31. You said later at Question 89 that you have not seen any money from her yet. I cannot determine with any certainty what precise money was expected or would be paid to any of you.
37 You spoke of the hope of $10,000, Ms Pham. The fact is that the arrest shut down this venture. Nor can I really contemplate what your precise day to day roles would have been had the crop not been interrupted in the way that it was by the execution of the warrant by police.
38 Such arguments as to the level of offence seriousness were very much focussed on the limited timing or connection to the crop, and the size of the crop in terms of plant number and weight, with commercial quantity only just being achieved. The fact is, the enterprise was obviously professional. I am being asked to forfeit a large amount of equipment, including 52 lights and transformers. This house was devoted to cultivation. True it is, there are crops that are larger, some far larger, and some that are smaller. Some that are far less professional, some that are more professional. Some that achieve commercial quantity by weight with a handful of plants, some where plant number exceeds 100, but with a weight a fraction of the commercial quantity threshold.
39 The fact is, every commercial quantity cultivation is a serious offence and the actual weight or plant number is one factor, an important factor no doubt, but not the only factor. There are some commercial quantity crops that do not have a great sense of professionalism or commerciality to them. This is not such a crop. This was obviously a professional setup.
Guilty plea
40 I turn then to the matters raised in mitigation. You have each pleaded guilty and at the earliest stage. I take those matters into account. Having been arrested and charged, there is no more you could have done to bring this matter to an early conclusion. I reward you for your guilty plea and of course the stage at which that plea was entered. You have facilitated the course of justice and you must be rewarded for that stance. Witnesses have been spared the experience of coming to court. The community has also been saved the time, the cost and the effort associated with a contested hearing.
41 It is not unheard of for people caught red-handed at premises to run the matter to trial. You, Mr Tran, and you, Mr Pham, when speaking to police expressed uncertainty as to the plants being cannabis. Now, your counsel were not suggesting you were being frank in that regard, and you are certainly not to be punished for taking such a stance. The point is that some people take such a stance and then they run a trial, compelling the Crown to prove the fact of cultivation or the intention to cultivate a commercial quantity.
42 It seems to me that the closer the crop is to the commercial quantity threshold, the harder it is to establish the intention. Other people endeavour to satisfy their burden under s.72C of the Drugs, Poisons and Controlled Substances Act as to lack of knowledge of the nature of the plant. Well, none of you did any of these things. You pleaded guilty. You made valuable admissions which are relied upon.
43 In your case Mr Tran, in circumstances where I am not aware of any other material implicating you at all. You had not been captured on cameras up at Bunnings as Mr Pham had been. So too did you make valuable admissions Mrs Pham. But for your guilty pleas, I can tell you I would have imposed a more significant term of imprisonment upon each of you. The guilty pleas are of real value.
44 In each case your counsel relies also upon your co-operation with the police. You were each cooperative, you each made admissions and I take that into account as well insofar as I am asked to.
Remorse
45 I turn now to the issue of remorse. A guilty plea is often indicative of remorse. The fact is some are, and some are not. Your guilty pleas were entered at the earliest opportunity and following the valuable admissions made upon arrest. There are the written references in your case, Ms Pham, speaking of your remorse.
46 I am prepared to find that you all do now have remorse for your involvement in this serious crime. In each case I take the existence of remorse into account in mitigation.
Custodial Burden
47 I turn now to the issue of the suggested increased custodial burden. You have each been held in a prison and none of you has found it easy. Why would you? It is a new experience for all of you.
48 Though the submission was not really pressed in your case, Mr Tran, the fact is your life is held in suspense. You are isolated from your family. You are a young man and have very limited English, and your family would normally be the body from which visitors would be drawn. Well they are in Vietnam. You await the end of any sentence imposed by this court, and then your certain deportation back to Vietnam.
49 I am sure that the time you have served and will continue to serve will be harder than for many given your youth and lack of family connections in this country, and I take that into account in mitigation of sentence.
50 So too in your case Ms Pham and Mr Pham. It is a strange affair indeed, winding up in prison for each of you at your ages. Each of you has very limited English and that cannot make prison life easy. You have had some issues with your arm, Ms Pham. They have not been very clearly spelt out at all, but that in combination with your limited English skills, and anxiety as to your daughters’ predicament in your absence will make prison more burdensome for you. It is not a large matter in mitigation.
51 In your case, Mr Pham, there is the lack of English and the harsh circumstances in which you have been held and concern about your aging mother and ability to attend your son's wedding. I have no reason to think that your lockdown conditions will persist throughout your sentence, but the conditions have been very harsh to date. Very harsh for a first offender. Again, they are not massively significant matters in mitigation, but I am satisfied that the various features raised on your behalf also increase your custodial burden and I take that into account as well.
52 The fact is that missing out on important milestones and events, well that is the unhappy and unavoidable consequence of committing serious crimes that carry the likelihood of significant terms of imprisonment. Loss of liberty is a punishment, and an awful one.
Youth
53 Mr Tran, I turn now to your youth. I take into account that you are a relatively youthful offender and of course, one with no prior criminal history. I pay regard to the principles derived from the cases dealing with the importance of youth in the sentencing process, including the decision of Mills and Azzopardi and others more recently, including the decision of Boulton itself.
54 You have made a very foolish choice. You know that. But that has to be seen in the context of your youth and your circumstances at the time, living as you were in a foreign land, with very little by way of support in the community and distanced from your family. I am not able to find that you were deliberately being exploited by others. However your age and condition at the time would no doubt contribute to your foolish decision.
55 Young people generally are more prone to ill-considered decisions and there is a very strong interest in their rehabilitation, an interest that is held by the courts and by the community. The lure of easy cash may be far more attractive to a young person, and in circumstances where they may not really deeply think through the potential consequences. More so. when they are in a foreign land as you were, and removed from the positive influences of family.
56 Rehabilitation is usually far more important than general deterrence when dealing with a youthful offender. However, each case is different and sometimes youth and rehabilitation must take a lesser role in the sentencing exercise and gives some ground to other purposes of sentencing, and that is the position here given the seriousness of the offence you have committed. Here your youth is a factor and one that I pay regard to, but it is not the only sentencing factor that I must pay regard to.
Rehabilitation
57 As to your rehabilitation, well none of you has any prior history at all nor anything outstanding. You have each made a very poor decision indeed to commit this serious crime. However you have all been cooperative with the police. You have each pleaded guilty at the earliest opportunity, and I find in each case the existence of remorse. You have all already felt the sting of punishment having been in custody for a not insignificant period to date.
58 I am prepared to find that the existence of a debt in your case, Ms Pham, probably prompted you to commit this crime. I am not satisfied on the balance of probabilities as to the making of any threats against you, but there must have been something unusual in your life to cause you to take such a step as the step that you took. So I am at least prepared to find that there was a debt owed by you which motivated you.
59 You were unemployed and injured, Mr Pham, and were helping out your former wife with some expectation of financial reward. And Mr Tran, as I have said, you were living in a foreign country without any supports or safety nets at all. So in each case there were individual reasons that led you to make the poor choice. A choice taken that seemingly is in contrast to the way you had lived your lives to that point. I think each of you are unlikely to offend in this way in the future. You have undoubtedly each made a bad choice and of course you will be punished for it. I am prepared to find that in each case there are very good prospects of rehabilitation.
60 In your case, Mr Tran, you will pursue those prospects in another country, and that is because you will be deported. It is not if, but when. The fact of deportation itself is not always necessarily a matter in mitigation. Awaiting you in Vietnam are your family, and you want to go home. You were anxious for such an outcome when speaking to the police and of course you will be reunited.
61 Your counsel, Mr McLoughlin, was not relying on those cases dealing with the mitigatory weight that may be given to deportation. Those cases (Guden, and more recently Da Costa Junior, Konamala and Schneider) deal with the impact of deportation both upon the service of the sentence and in the loss of opportunity to permanently settle in this country. There was no suggestion that you had lost the opportunity of permanent settlement in this country; no suggestion even that this was ever your hope. You came on a student visa which you breached and which was cancelled well before this crime was committed.
62 Nor is there any issue as to there being some doubt about whether you will be deported or not, or your strong desire in that respect. You want to be deported and you will be. You will have to serve the sentence I shall shortly pronounce, and then you will be deported and that is what you want. Hopefully there will be no lag, but there is of course some chance that you will go from prison to immigration detention. Sometimes that happens. I do not know whether it will be an issue or not. I take that into account in mitigation, but it is not a matter of any great significance in the sentencing task and necessarily involves some level of speculation on my behalf.
63 It is not necessarily as simple as it should be when there is a head sentence and a non-parole period as was described in the case of Schneider, and the certainty of your deportation is not something that I can take into account when considering the issue of the fixing of a non-parole period in your case.
General remarks
64 I address now some remarks to each of you. Financial need, not greed is the explanation for your crimes. Well it is a common explanation provided by hired underlings such as you in this sort of venture. The fact is that not every person in financial need embarks upon serious criminal conduct. Each of you did. You chose to. You should not have.
65 You had a debt, Ms Pham, but had not even approached your daughter or son in law to discuss that issue. Your daughter was a professional working within a large financial institution. The debt is no excuse. It is the context of your offending, but I suppose it can be contrasted with a crime committed out of greed. I certainly do not find that any of you were living anything resembling a lavish lifestyle. I believe that financial need, rather than greed was the motivation for this crime.
66 You were young, Mr Tran, and without supports in the community, and entered into this serious arrangement. I am sure your youth had at least a role to play, but there is certainly no material before me permitting me to find that you have been forced or pressed against your will into action, or even for that matter, that you were taken advantage of or used. You took a calculated risk. You made a choice to commit this crime. You all did, though your choice has to be seen in light of your youth at the time.
67 I have to take into account the nature and the gravity of the offence. Each counsel spoke of your low or limited role; that you were ‘crop-sitters’. Of course, I sentence on the basis that you were crop-sitters. But the seriousness of your conduct is not to be judged by the menial or relatively unsophisticated nature of your work or your low point in any hierarchy.
68 As I have said in other cases, I say now in yours; this crop and its ultimate success has been interrupted by the execution of the warrant by the police. You knew that you were embarking upon a serious crime. I am satisfied of that beyond reasonable doubt. It was obviously an elaborate, organised and criminal activity, and obvious to anyone looking at it that profit was central to the event for at least someone down the line. Not for any of you, but at least for someone. Why else would such equipment be obtained and a house be converted into a virtual cannabis factory? Why else would you expect to be paid for your efforts, whatever it was you were to be paid?
69 As I have said, I am unable to ascertain your expected financial reward. Certainly none of you stand to be sentenced for financing this crop house or actually setting it up, or being at the head of the hierarchy. You are obviously not. I have commented already on the slight differences in connection to the crop as are spelt out in the summary and the interviews and submissions made before me. You obviously had the greatest connection, Mrs Pham; you the second greatest, Mr Pham; and yours was at the date of arrest the least connection, Mr Tran. How the roles would have panned out but for the apprehension is anyone’s guess, but I am not here to guess. I have to deal with you for the cultivation as charged.
70 There has been a proliferation of this sort of conduct in the last 20 years, as a number of decisions in the Court of Appeal make plain. With the increasing prevalence of this conduct comes an increasing need to reflect the principles of general deterrence in any sentences imposed by the court.
71 This particular crop house had, as I said, all the hallmarks of a professional undertaking. No doubt those people standing further up the hierarchy from you had an expectation of a very significant yield of an illegal drug cannabis to send out onto the market for large illegal profit.
72 There is no valuation statement in this case as to the worth of the crop or its likely yield. The Court does not need such a statement to appreciate the inherent value of this drug. That there seems to be a never-ending stream of people such as you three prepared to involve themselves in cultivation of narcotic plants for reward and people superior in the hierarchy prepared to pay such people for that role, well that all speaks very clearly as to the large potential illegal profits involved in this style of venture.
73 The people up the top of the hierarchy seldom sit in the dock of a court. That is because they install hired underlings to do the essential work and to lessen their own risk of apprehension. You were each hired underlings but no doubt were to perform a necessary role.
74 I am required to manifest this court’s denunciation of your criminal conduct and I do. I must also punish you. I am required to seek to deter or dissuade you and others from committing this sort of offence in the future. As I have said, you do not stand to be sentenced as the architects of this scheme, but you were each obviously necessary players. Without players such as you, that is people who are prepared to involve themselves in the cultivation of crops, the crops themselves will simply not exist. They will not thrive; they will not flourish without people who are prepared to cultivate them. Your role was obviously deemed to be a necessary one, or you would not have been asked to perform it. It really is as simple as that. See the case of Doan v. R [2010] VSCA 250.
75 This crime carries a maximum term of 25 years’ imprisonment. The Court of Appeal of this state has spoken often of the prevalence of this crime and of its inherent seriousness.
76 As I said earlier, hydroponic cultivation 20 years ago was a rarity. This sort of cultivation is now very common indeed. You have each chosen to cultivate a commercial quantity of cannabis. It is a serious crime and you each know it and knew it. I have no doubt about that at all.
77
Sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation, and
I have already commented on my favourable findings in that regard.
78 I must consider the need for specific deterrence, that is to your being individually deterred from committing crime in the future. However, that purpose can be lessened in each case. I have commented already on my view of your presenting a low risk of reoffending in this way again. You have been arrested, charged and have pleaded guilty. You are remorseful, and have already been in custody for the first time. It has not been easy for any of you.
79 You will be deported with your tail between your legs, Mr Tran. Specific deterrence has already been achieved to a degree for each of you. I believe it is open, therefore, to significantly reduce the weight to be given to specific deterrence as well as community protection.
80
But this is an offence that generally requires substantial punishment. see
DPP v Duong[2006] VSCA 78. As I have said, general deterrence is a very significant purpose of sentencing and that, I am afraid, is the position, notwithstanding your youth, Mr Tran.
81 Those who choose to engage in this activity, at whatever level, are virtually always taking a calculated risk. That risk is taken on because of the hope of some financial reward, as I am sure it was in each of your cases. People must understand that with that potential reward comes a significant and a real risk of detection, of prosecution, and then the likelihood of the imposition of a significant term of actual imprisonment.
82 This court must send a loud and clear message to others in the community who might be minded to commit this sort of serious offence, and there are evidently plenty that are so minded. General deterrence is a very significant purpose of sentencing in this sort of case.
Current sentencing practice
83 I pay regard to current sentencing practices, as I am required to. I have looked at the sentencing snapshot No.197 of 2016. I have looked also at the repository of material held at the Judicial College of Victoria sentencing site, including an overview of commercial cultivation sentences in the Court of Appeal. I have ignored those decisions dealing with large commercial quantity. I have looked at the actual case summaries as well, and recent sentencing decisions. I have looked also at the various cases to which I was referred.
84 The median sentence disclosed in the sentencing snapshot is two years, with the most common sentence falling between two and three years. Obviously much of the data would have predated the Court of Appeal decision in the case of Boulton v The Queen.
85 There are inherent limitations in making any judgment based on statistical material. So too are there limitations in looking at other cases. None of them are authorities as to the sentences called for in this case. One thing that is clear, though, from the cases in this area, is that cultivation in a commercial quantity is undoubtedly a serious crime, where a term of imprisonment is almost unavoidable. It is a prevalent crime in the community and general deterrence is and must be at the forefront of any sentence imposed by the court. See the case of Pham [2007] VSCA 234. See also case of McGrath, which was decided following on from the case of Boulton.
Parity
86 Ms Pham, Your counsel mentioned the concept of parity of sentence, and was doing so suggesting that there should be no difference or great difference in sentence as between the three of you. However, even as he raised the concept, he conceded the fact that you had brought in the other two players and had a longer connection to the crop. You also had dealings with the person further up the hierarchy.
87 Parity of sentence embraces the concept that like offenders should be dealt with in a like manner. That is easy enough to understand. However disparities either in role or personal circumstances or both justify disparate sentences. In terms of conduct since the offending, you have all pleaded guilty, and at the earliest opportunity. You each has remorse and very good prospects of rehabilitation. None of you has any history before the courts; each of you has found imprisonment difficult.
88 I am left with some differences in terms of the extent of your connection to the crop, as spelt out earlier in these reasons; your undoubted greater connection to it, Ms Pham. The fact is, though, that you were in this together, albeit only for the very limited period in your case, Mr Tran. The enterprise was interrupted.
89 Still, it seems to me Ms Pham that your role in recruiting the others, and their degree of connection has to be recognised. Far more significant, though, by way of disparity is your youth, Mr Tran. You were a young man, and a young man adrift in a foreign country without supports. I think I can and should draw some differentiations between the three of you, and Mr Tran you had the least involvement and were far younger.
90
In your case Mr Tran, Mr McLoughlin, who appears on your behalf, concedes that a term of imprisonment is the only alternative. That is the position also in your case, Mr Pham. Your counsel quite explicitly stated that you would not consent to a community corrections order, and that I should impose a term of imprisonment and fix a non-parole period. She then made submissions as to the level of sentence with a term not exceeding 12 months and hence a
non-parole period of six months at the most.
91 I do not agree with that submission at all. When regard is had to the nature and gravity of your crime and my need to pay regard to current sentencing practices and the need to punish and to deter generally, I simply do not accept that argument as to range at all, if that is what it was.
Sentence
Do Pham
92 Mr Pham, would you stand up, please? Just Mr Pham at the moment. That is fine. Yes.
93 On the charge of cultivation of a commercial quantity of cannabis, in your case Mr Pham I convict and sentence you to two years and three months or 27 months' imprisonment. I fix a non-parole period of 14 months.
94 I want to make abundantly clear that in your case, I certainly would have had you assessed for suitability for a community corrections order and if found suitable, I would have imposed a term of imprisonment with your being released in due course on a community corrections order. Regrettably, this option was not left open to me as a result of your making plain that you would not consent to such an order.
95 The prison sentence to serve would have been slightly less than that which I will impose on Ms Pham, with a community corrections order of similar duration and terms. I mention this only to guard against your feeling any grievance when you hear the sentence I will shortly pronounce upon her.
96 At first blush it may appear that she is doing far better than you. She is exposed to less time in custody - far less - but of course is also exposed then to release on a lengthy community corrections order with a number or requirements, the sort of conditions and terms which you were not prepared to consent to. Have a seat, please.
Thinh Tran
97 Mr Tran, if you would stand up, please. In your case, Mr Tran, I convict and sentence you to 19 months' imprisonment. In your case, I fix a non-parole period of ten months.
98 I will deal with your pre-sentence detention and some other matters in one moment, but you can have a seat now as well, please.
Boulton
99 Yes, just remain seated then, Ms Pham. Your counsel, Ms Pham, argued that it was open to impose a term of imprisonment and to place you on a community corrections order. I have had you assessed for your suitability for a community corrections order and unsurprisingly you are judged to be suitable. I told you, through your counsel at the time of the plea that you really should take no comfort from the fact of the assessment being called for, and that I was exploring all options, and I wished to reflect on the appropriate ultimate disposition; that my calling for the report did not signify that I would necessarily release you on such an order in combination with a prison sentence.
100 Sending any person to prison is a matter of last resort for any court. It always has been. It always will be. It is clear and always has been to me, that I must not confine any person unless the purposes for which sentence is imposed cannot be achieved by a lesser disposition. For instance here, a community corrections order. That is now enshrined in law by virtue of s.5(4C) of the Sentencing Act.
101 I was taken to the case of Boulton & Ors v The Queen [2014] VSCA 342. That decision contained a guideline judgment of the Court of Appeal dealing with the community corrections order disposition. It was delivered back in December 2014 and it is a case which is raised now in virtually every plea that comes before this Court.
102 The Court of Appeal spoke of the dramatic change in the sentencing landscape brought about by the availability of a lengthy community corrections order that is now open to the court, in conjunction with a significant term of imprisonment being imposed at the same time. Well, sometimes such a disposition will be open; sometimes it will not be open. Sometimes a community corrections order will not meet all the needs of the case and will not be open. There are some cases where only an immediate term of imprisonment will suffice, even if in conjunction with a community corrections order, and there are some cases where a combination sentence is not open at all. These dispositions are not a get out of gaol free card to be employed for every crime before every court.
103 That decision of Boulton counsels judges to reconsider, and for that matter to revisit conventional wisdoms as to when it is appropriate to actually gaol an individual. The Court of Appeal tells me that the sentencing landscape has changed very dramatically by virtue of the enactment that leads to this available disposition. They say that sometimes it will be open to place a person on such an order, even for offending that previously might have been visited with a substantial or medium term of imprisonment. The rider is, if it is appropriate in the particular circumstances of the particular case.
104 I have said more than once since that decision was delivered that the guideline judgment seems to have been greatly misunderstood or misapplied by very many in the legal profession. There is barely a plea conducted in this Court where the decision of Boulton has not been raised, as though that guideline judgment somehow fetters the court's sentencing discretion in the individual case. It does no such thing. The reasons in Boulton were of a general nature. There is nothing in that case or the guideline portion of it obliging or compelling a sentencing judge to reach a particular conclusion in a particular case, as the Court of Appeal made plain enough in the case itself of Boulton, and has seen the need to remind the profession of in many cases since, including the cases of Hutchinson, Scammel and McGrath. See even the case of Thorpe [2016] VSCA 158, a decision delivered only a few days ago.
105 It is obvious that not every offender for every crime can or should be admitted to such an order. That is because there are some crimes where the purposes of sentencing cannot be given adequate weight by use of such an order on its own or even in conjunction with a term of imprisonment.
106 So in this case, as in many cases, there are some obvious tensions that exist as between the various purposes of sentencing. There is of course the issue of your rehabilitation. Well, your prospects are very good. There is some impressive material before me from your daughter and son-in-law. I take it into account. Undoubtedly though, and as you know, this is serious offending. There is obviously a need to adequately reflect denunciation, general deterrence and punishment in any sentence imposed by the court.
I am told by those above me in the court hierarchy that a community corrections order can provide substantial general deterrent effect and very substantial specific deterrent effect; that it can be very punitive as a disposition. I do not doubt that.
Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless the Court concludes that the purposes of sentence cannot be achieved by a community corrections order to which specified conditions are attached. A judge therefore needs to pay careful attention to the purposes for which sentence is to be imposed and whether they can actually be achieved by a community corrections order.
107 The Court of Appeal suggests that Judges ask the following question:
"‘Given that a community corrections order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?"
108 I can confidently answer that question in this case in the positive. I am entirely confident that it would not be permissible merely to place you on a community corrections order for offending such as this. I regret to say that this offending demands that you serve a sizeable term of actual imprisonment.
109 There is just no question in my mind as to that fact. I believe your crime is too serious. I do not believe that such a disposition on its own could meet all the relevant sentencing purposes. Nor does your counsel suggest that it could on its own. General deterrence and punishment are significant purposes here, and so too denunciation. I take the view, therefore, that there is no alternative at all, other than to impose a term of actual imprisonment upon you, one that you obviously must serve.
110 The question then for me is whether a community corrections order order in conjunction with the 164 days you have served would suffice. Again, I am left in no doubt that it would not. There must be a sizeable prison sentence to actually serve and one extending well into the future. The issue then for me is the nature of the potential release mechanism. Straight release on a community corrections order, or the fixing by me of a non-parole period?
111 I believe that it is open to admit you to a suitably conditioned community corrections order to take effect upon your ultimate release from prison, and to provide in that manner for your guaranteed release. That sort of guarantee does not exist in the setting of the fixing of a non-parole period by a court where release is entirely within the control of the Adult Parole Board. A court in such a setting has to proceed on the basis that the prisoner will serve every day of the head sentence. See section 5(2AA) of the Sentencing Act.
112 In proceeding in the way that I propose to, I can limit your exposure to prison, and provide for your rehabilitation and continuing punishment, but in a less punitive setting upon your release, and that release will be a fixed date in your case. This will have you serve a fixed prison sentence before being released on a lengthier community corrections order.
113 I simply do not accept that a community corrections order in conjunction with a prison sentence equating to the time that you have served to date can pay sufficient weight to the need to punish, to deter generally and to denounce. I believe that the term of imprisonment that I propose in conjunction with a community corrections order can achieve these various ends.
Thi Pham
114 Ms Pham, I intend to convict and sentence you to 12 months' imprisonment.
115 In addition, it is my intention to convict and admit you to a community corrections order for a period of two-and-a-half years, and that order will commence upon your release from custody.
116 Now I need to explain this order to you. I firstly need to satisfy myself that you understand it, and secondly that you consent to it, because I cannot place you on one of these orders unless you do consent. It is going to take me a little bit of time to explain all of this to you, so I think I will have you remain seated.
117 You need to listen very carefully to what I am about to say, because you breach this order at your own peril.
Mandatory Terms
118 As you will have picked up from the assessment process, and there is a document signed to this effect attached to the assessment report, every community corrections order has mandatory terms attached to it. They apply to every person who gets one of these orders.
119 The mandatory terms have been explained to you, and I am told that you understand what they are, so I am not going to spend too much time working my way through them. They will be on the document which you will be asked to sign in due course.
120 You must not commit another offence for which you could be imprisoned during the period of the order, and the order is going to be for a period of two-and-a-half years upon your release. In that period, if you commit any offence for which you could be imprisoned you will breach the order. And virtually every offence, as a matter of theory at least, can be punished by imprisonment. So you have got to stay out of trouble. That is very obvious.
121 There is a condition dealing with your obligation to comply with the Sentencing Regulations 2011. What that means is, you have got to turn up totally unaffected by alcohol, totally unaffected by drugs, and that is whether you will be turning up for unpaid work or supervision. You have to turn up on time, obviously, and you have to make yourself available for a photograph for record-keeping purposes.
122 You have to report to and receive visits from the Community Corrections Officer. You have to report to the Community Corrections Centre within two clear working days of this order starting. I am not fixing a particular date. I am sending you to prison for 12 months. You have already served 164 days of that period, and the order takes effect upon your release from prison. So you must report to the Dandenong Community Corrections Service within two clear working days of being released.
123 You must let Corrections know within two clear working days of any change of address or job. You are not allowed to leave Victoria without first getting permission to do so, and you have got to obey all the lawful instructions and directions given to you by the Corrections officer.
124 They are the mandatory terms that apply to you.
Conditions
125 Then there are the conditions that I impose to deal with the particular circumstances of this case, that is your personal circumstances and the nature of your crime.
126 There is undoubtedly an aspect of punishment embraced by the community corrections order. Not just with the unpaid work, but with other conditions. However the unpaid work is unmistakeably punitive. I am keeping the hours down here to a manageable level. There is already obviously a significant component of punishment in this case, in the term of imprisonment that you will serve prior to release.
127 You must perform 100 hours of unpaid community work over the period of the order as directed by the regional manager. I do not know what work that till be; they will tell you where to go and when. Just comply. Do what they ask you to do.
128 Additionally, you will be under supervision for the total period of the order, so that is for the two-and-a-half years of the order. You need to attend in relation to that particular condition. When they tell you to turn up, you turn up. That is very simple.
129 Finally, you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager. Again, I do not know what they are going to ask you to do, but whatever they tell you to do, you must do.
130 So they are the terms and conditions that apply to this order.
Breach
131 You also need to know what happens if you breach this order. I want to explain to you what will happen if you breach this order. I do not want anyone who is put on one of these orders by me to turn up upon breach and say, "I didn't know what could happen if I breached it". It will not happen to me because I explain to people what potentially happens if they breach the order.
132 Many of these orders are breached by people who are happy enough to be put on them. They are relieved to be put on them sometimes. You may not be, because of course I am sending you to prison as well. You are going to prison to serve out the remainder of the 12 month term. You have already served 164 days, so over five months already. Today's date will be a distant memory when you are released. You will come out from prison, but you will be required to attend within two working days and get on with this order. People have a way of consenting to these orders and then forgetting about the importance of complying with them.
133 People have jobs. Hopefully you will have a job. People have family commitments. You will. You will have a new grandchild. People have all sorts of things that they put ahead of their obligations under these orders. Well, do that at your peril, because if you do, you will breach this order, and do not put yourself in that position.
134 It is amazing how many of these orders are breached by non-compliance, by people just not turning up when required to turn up. They do not turn up at unpaid work. They do not turn up for supervision. They get a final warning and they do not turn up again, and then they try to construct reasons after the event as to why did not turn up.
135 The Office of Corrections, they are not going to be stupid about this. If you have got a good reason for not being able to turn up for supervision or an unpaid work, get on the phone and let them know in advance, and they will reschedule it. They would ask for documentary evidence no doubt. Even if it is something arising on the day, let them know and then provide evidence and no doubt you will avoid being breached. But if you do what so many people seem to do, that is just not turn up and do nothing, then you will find yourself in breach of this order.
136 I have not told you precisely what happens if you breach this order, and nor can I. If you breach this order, though, I can guarantee you one thing, you will be back sitting there in the dock. You will be sitting there and there will be a knock on the door and in through the door will come a judge, and that judge will be me. It will not be another judge. We deal with our own breaches in this Court.
137 So I will come in through that door and come in to hear the breach. I cannot tell you exactly what I would do to you upon any breach because I would be obliged to listen to what your then counsel had to say on your behalf. I would have to learn about the nature of the breach. Was it a breach by offence or a breach by non-compliance or both? I would have to factor in how hard you had tried on the order, how many hours you had done by way of unpaid work; what sort of effort you had made. So of course I cannot tell you now exactly what would happen.
138 But you have got to understand this fact: Breaching one of these orders is itself a criminal offence. It is now punishable by a three month term of imprisonment in its own right. That is bad enough, but that is not the sting. The real sting to it is this. You breach this order, you come back in front of me, and I will have to then deal with you on the breach. I do not want to see you again and I am sure you do not want to see me again. If I do not see you again, it will be because you have served the prison term that regrettably you have to serve, you have then been released and have then got on with your life and complied with that order for the two-and-a-half year period. If that is what happens, and I hope it is, you will not see me, I will not see you. You and the community would be better for that progress that you have demonstrated. I do not think I will see you again. If I do, it will be because you have breached this order.
139 I would listen to anything that was said on your behalf but you have got to understand this: You breach this order and you are exposed to the high risk of cancellation of the order, as that is the most likely outcome for a person breaching a community corrections order such as this. If it is cancelled, then I have to re-sentence you in relation to this same offence, that is the charge of cultivation of a commercial quantity of cannabis. Do not expect that there would be another community corrections order imposed.
140 If you put yourself in that position, you are best to work on the theory that any re-sentencing exercise would be very likely to lead to a very significant immediate prison term being imposed upon you, with the fixing of a substantial non-parole period as well. You know what sentence I imposed upon Mr Pham, who was not consenting to such an order and you should have an expectation of receiving more than he did. Do you understand?
141 All right, Mr Brennan. I am sorry I have taken so long going through that, but are you satisfied that I am going to be getting informed consent? Do you want to go down and have a quick word to her?
142 MR BRENNAN: I will as of now, Your Honour.
143 HIS HONOUR: Yes, go down, please.
144 MR BRENNAN: Yes, Your Honour. Ms Pham would consent to the order.
145 HIS HONOUR: Yes, all right. Thanks very much.
146 I will have that order just come down to the Bar table. Perhaps if you, Mr Brennan and the prosecutor could look at it, just to make sure it mirrors my stated intention, please.
147 MR BRENNAN: Yes, Your Honour.
148 HIS HONOUR: Yes, all right, I will have that order taken down, just go down as well, Mr Brennan, if you would.
149 All right, I have signed that order. I will have copies of that run off for each of you, and also for Ms Pham. Ms Pham, can you stand up, please? Do you confirm that you have signed this community corrections order?
150 OFFENDER: Yes.
151 HIS HONOUR: That you have signed it, and that you are consenting to entry into this order. Yes, all right. Thank you. Have a seat again then. Thank you.
Section 18 pre-sentence detention
152 You have each spent 164 days in custody already. Pursuant to the provisions of s.18 of the Sentencing Act1991, I declare that period as having already been served, pursuant to each of the sentences imposed by this court today. So what that means is, you have each already served 164 days, and that declaration is to be entered into the records of the court.
Disposal Order
153 A disposal order is sought pursuant to s.78 of the Confiscation Act, and that in each case is consented to. That relates to the equipment that was in the house, so the plants and the lighting and the fans, and the order is consented to and I have signed the disposal order in each case, and have pronounced that order. Yes, all right.
464ZF
154 In each case, a forensic sample order is applied for. It is consented to and in each case I make the order. Just remain seated all of you.
155 In your case, Mr Pham, pursuant to the provisions of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from your mouth until a sample of sufficient standard is obtained for placement on the database. I am satisfied that the making of the order is justified, owing to the seriousness of the offence, the fact that it is by consent, and that I judge it to be in the public interest.
156 I have authorised a scraping from your mouth, not a blood sample. It is not a difficult procedure. You will be asked to rub a swab around the inside of your mouth. The authorities or the police for that matter, would be entitled to use reasonable force to take that procedure.
157 It is the precise same order in your case, Ms Pham. Again, pursuant to the provisions of the Crimes Act 464ZF, I order that you undergo a forensic procedure for the taking of a scraping from your mouth, until a sample of sufficient standard is obtained for placement on the database, and I make the order for the same reasons as previously announced in relation to Mr Pham. That is, the seriousness of the object; the fact that it is by consent; and that it is in the public interest. The authorities can use reasonable force to take the sample.
158 And I make the same order in your case, Mr Tran, that you undergo a forensic procedure for the taking of a scraping from your mouth, until a sample is obtained for placement on the database, and I do so and make that order owing to the seriousness of the offence; the fact of the consent to the order; and that it is in the public interest in my judgment to make the order. Again, I tell you that the authorities can use reasonable force to take that mouth scraping.
Forfeiture
159 There is a further order for the forfeiture of cash. That is an order applied for under the provisions of s.33(1) of the Confiscation Act. It is consented to by Mr Pham and by Ms Pham, but not by Mr Tran. I am satisfied that in the circumstances it is appropriate to make the order in the case where consent is forthcoming. I am satisfied that the cash was tainted and the order is consented to as well. No such concession is made in relation to Mr Tran and it is a different sum of money and a different makeup of cash. I am not satisfied that that the smaller amount of cash is tainted, so I will not make the order in relation to Mr Tran, and I have made it in relation to Ms Pham and Mr Pham. I have signed those orders as well.
Section 6AAA
160 In each case I have taken into account your guilty plea. Had you pleaded not guilty and been found guilty by a jury following a contested trial, I would have imposed a more significant sentence upon each of you.
161 If you had pleaded not guilty and been found guilty by a jury, I would have convicted and sentenced you Ms Pham to four-and-a-half years' imprisonment. I would have fixed a non-parole period of two-and-a-half years.
162 In your case Mr Pham, I would have sentenced you to term of four years with a non-parole period of two years and two months.
163 And in your case Mr Tran, I would have sentenced you to three-and-a-half years with a non-parole period of 22 months. Those statements are made pursuant to the provisions of s.6AAA of the Sentencing Act and they are to be entered in the records of the court.
164 Just have a seat then for a moment please. Mr Rooney, are there any other matters that I need to order at all? Anything I have overlooked or not?
165 MR ROONEY: No, Your Honour.
166 HIS HONOUR: All right, let me ask counsel for the various prisoners. I will go in the other direction. Mr McLoughlin, anything I need to deal with at all?
167 MR MCLOUGHLIN: No, Your Honour.
168 HIS HONOUR: Mr Brennan?
169 MR BRENNAN: No, Your Honour.
170 HIS HONOUR: And Mr McGlone?
171 MR MCGLONE: No, Your Honour.
172 HIS HONOUR: Yes, all right. Well they are all coming from a custodial setting, so I am not being asked to make any sort of directions in terms of custody matters or anything like that in this case?
173 MR MCLOUGHLIN: No, Your Honour.
174 HIS HONOUR: No, all right. Well look, I know it is probably more convenient for you to have discussions with your clients up here, but we have the interpreter for the day, and you are really going to have to use her downstairs in the circumstances. So that completes the matter. So Mr Tran, Mr Pham and Ms Pham can now be removed. Thank you.
175 Yes, thank so much for your assistance.
- - -
0
5
0