Director of Public Prosecutions v Tuan Pham
[2017] VCC 1858
•6 December 2017
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-00161
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
TUAN PHAM Defendant
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JUDGE: HIS HONOUR JUDGE MURPHY
DATE OF HEARING: 4 December 2017
DATE OF SENTENCE: 6 December 2017
CASE MAY BE CITED AS: DPP v Pham
MEDIUM NEUTRAL CITATION: [2017] VCC 1858
REASONS FOR SENTENCE
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CRIMINAL LAW – Sentence – Cultivate cannabis in a commercial quantity – Theft of electricity – Two properties – 123.76 kilograms – Principal in a joint criminal enterprise with one or more unknown individuals – Financial reward – Guilty plea – Automatic forfeiture – Possible deportation – Current sentencing practices – Total effective sentence 4 years and 6 months imprisonment – Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym) (2017) 91 ALJR 1063, referred to – Nguyen v The Queen (2016) 311 FLR 289; [2016] VSCA 198, Nguyen v The Queen [2017] VSCA 100, McClelland v The Queen [2017] VSCA 124, Nguyen v The Queen [2017] VSCA 127, Nguyen v The Queen [2017] VSCA 286 applied
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APPEARANCES: Counsel Solicitors
For the Crown Mr P Pickering Office of Public Prosecutions
For the Defendant Ms D Caruso Practical Legal Solutions
HIS HONOUR:
Tuan Pham, you have pleaded guilty to one count of cultivating cannabis in a commercial quantity between 15 November 2015 and 12 February 2016 at Epping and Wollert. The maximum penalty is 25 years imprisonment.
You have also pleaded guilty to two charges of theft – the first of electricity belonging to Energy Australia Pty Ltd during the period 6 November 2015 to 12 February 2016; and the second of theft of electricity belonging to Origin Energy Ltd during the period 25 November 2015 to 12 February 2016. The maximum penalty for the charges of theft is 10 years’ imprisonment.
Circumstances of the offending
The circumstances of the offending were set out in the prosecution opening which was read in open court on the plea and not contested by your counsel.
You and your wife had been living in a property at Wollert (‘the Wollert property'). You had purchased that property in March 2014. On 29 September 2015 you purchased another property in Epping (‘the Epping property’). You had been living in the Wollert property, but moved to the Epping property. The mailing address for the Epping property remained the Wollert property.
Charge one is a rolled up charge of cultivating a commercial quantity of cannabis committed by you at both of the properties.
In December 2015, neighbours of the property in Wollert noticed that the blinds on the house at Wollert were drawn and that there was a hose running into the house through a window. The smell of cannabis was also detected. Around December a report was made to the police but no action was taken.
Police raided the Wollert property on 12 February 2016 and found a sophisticated cannabis crop within the property. Power had been bypassed and the value of the stolen electricity is $8786.83 (charge three). Four rooms and a backyard shed were being used for cultivation. A total of 90 cannabis plants weighing 119.32 kilograms were found. 51 of the plants were assessed as weighing more than 25 kilograms as at late December 2015. The usual items associated with a hydroponic plantation were found, including a bypass, a power board, transformers, light globes and light shades. Numerous documents in the name of you and your spouse were also found.
At the time police were executing the search warrant of the Wollert property, you were seen driving past the property.
The police then executed a search warrant at your Epping property. They located a second hydroponic cannabis crop at the rear of the property in a shed. You were found in possession of the keys and remote controls to the Wollert property. There was also an electrical bypass installed. The value of the stolen electricity was $1120.62 (charge two).
10.Six cannabis plants with a net weight of 4.84 kilograms were located in the shed of the Epping property. The usual equipment for hydroponic operation consisting of a bypass, power board, six transformers, light globes and light shades were found. Similar features of the two crops were noted including an unusual rope pulley system attached to the light shades and additional pumps to assist with drainage. There was also an unusual nutrient delivery system and the use of a thin silver wire.
11.The total number of plants across the two locations was 96% of a commercial quantity by number, and nearly 5 times a commercial quantity by weight, being 123.76 kilograms.
12.You were not interviewed until 22 February 2016 and told the police that you had rented out the Wollert property three months prior. You said that you did not know the names of the tenants and that the tenants were to pay rent to you, however, they had not done so. You also said that you didn’t pay attention to the house as you drove past while police were executing the search warrant. In the record of interview, you made a number of no comment answers.
13.The case against you was put that both of the properties were the subject of similar setups and thus, charge one is a rolled-up charge.
Assessing the seriousness of the offences
14.In assessing the seriousness of the offence, it is important to bear in mind comments in Nguyen v The Queen[1] where the Court of Appeal said that it is not necessary in sentencing and offender for cultivating a commercial quantity of cannabis to characterise the offender as being necessarily a ‘principal’ or a ‘crop-sitter’.[2] Labels may be unhelpful. The focus should be on what the evidence shows that an offender has actually done.
[1] Nguyen v The Queen (2016) 311 FLR 289; [2016] VSCA 198 (‘Nguyen 2016’).
[2] Nguyen (2016) 311 FLR 289, 308 at [56].
15.Further, in dealing with drug offences, often a court is not in a position to have the full picture of the role of a particular offender within the chain between source and ultimate consumer, or the position within a particular syndicate or hierarchy. These matters are relevant in this case.
16.On the plea, your counsel conceded that the offending was serious as this was commercial cultivation with the weight of plants being well in excess of a commercial quantity. Your counsel noted, however, that the number of actual plants was below that required for a commercial quantity.
17.Emphasis was placed on the fact that the Wollert property was not registered in a false name, and that the set up was fairly obvious to neighbours. It was conceded that the actual hydroponic set up in both cases was sophisticated. It was also noted that you made full admissions to the plants at the Epping property. You claimed it was for your personal use. I am unable to accept that.
18.Your counsel submitted that there was no evidence of any actual harvesting of the crop, or of any trafficking or material ready for sale. Similarly, there was no evidence of betterment or an extravagant lifestyle on your behalf, or that you had made any financial gain, yet it was accepted that the cultivation was for financial gain.
19.On the plea, it was put that you did not have the ability to set up the hydroponic systems, but that you allowed your house to be used for the venture and were to receive a financial reward. You told Dr Barth, a forensic psychologist, that a friend of yours had asked to rent the property. You had found that he was then using it to grow cannabis and he offered you $20,000 to allow him to complete the crop and then move out. This person has now vanished.
20.Your counsel also put that many of the features associated with more serious cultivation operations, such as surveillance, telephone intercepts, multiple participants and betterment were absent in this case.
21.Using the two clusters of cases referred to in Nguyen 2016,[3] your counsel did not dispute that this offending was to be categorised with cluster two, the more serious of the clusters. Your counsel did not suggest that you would fall into cluster one, that involves ‘crop-sitters’ or other functionaries.
[3] Nguyen (2016) 311 FLR 289, 316 at [84].
22.The position of the learned Crown prosecutor was that, regardless of the particular label to be ascribed to your conduct, you were to be treated as if you were a ‘principal’. I agree with this characterisation.
23.There are a number of matters relevant to assessing your role in the seriousness of the offending here. First, the actual period of offending is just under three months. Second, by your plea to charge two you have accepted responsibility for the theft of the electricity at the Epping property for the period 6 November 2015 to 12 February 2016. The span of offending is relevant to your culpability and to the seriousness of your offending.
24.Third, although the activity at the Wollert property had been brought to the attention of police in December 2015, the search warrant was not executed until 12 February 2016. As I have indicated, the biologist who tested and weighed the plants assessed some 51 of the plants as having an aggregate mass in excess of 25 kilograms as of late December 2015.
25.The assessed age of the plants post nursery as at 12 February 2016 varied between 2 – 3 weeks for the plants found in the shed at Wollert; 7 – 8 weeks for the plants at the Epping property; and 14 – 16 weeks for the balance of the plants at the Wollert property.
26.There was, thus, a range of ages which indicates a sophistication and continuity in the cultivation operation.
27.The neighbours at the Wollert property had noticed that you were seen at the property on numerous occasions. This is consistent with the personal items that were found at that property. It is also consistent with the fact that you were noticed to be driving past the property on the day that the police executed the search warrant. As I have indicated, when you were arrested you were found to be in possession of the keys to the Wollert property.
Characterisation of offending
28.As I noted, the learned Crown prosecutor submitted that you are to be treated as a ‘principal’. This applied, notwithstanding that your case was that you did not have the expertise to install the bypass arrangements or the hydroponic set up you must had assistance from others, but there is no material to ascertain who funded the whole arrangement.
29.Given that you controlled the two properties and the two setups were similar, and your admission to the psychologist that you were to be paid for the cannabis, the appropriate way to characterise you is as a principal in a joint criminal enterprise with one or more unknown individuals, for financial reward.
30.It does not lessen your culpability that others were also involved given that you were the owner of and in control of both properties.
31.When this is combined with the scale of the operation, in terms of the number of plants, the quantity and the span of offending, I regard your offending as, at least, in the mid-range of cluster 2 cases.
32.As indicated in Nguyen 2016, there are features of the cases referred to that do not apply here. The duration of your offending is of mid-range, with the culpability significant given the duration of the counts of theft of electricity.
Personal circumstances and matters in mitigation
33.I turn now to your personal circumstances which were outlined on the plea, set out in the report of Dr Barth and in your counsel’s submission, which I incorporate by reference.
34.You are aged 36 and were aged 34 at the time of the offending. You were born in Vietnam and arrived in Australia when you were aged around 27. You came to Australia on a student Visa.
35.Your father was a general in the army and your mother was a director of an insurance company. You have a younger sister who remains in Vietnam. You completed secondary schooling and went to university, but did not complete the course. You have worked as a manager in the insurance industry. Your father was a strict disciplinarian and was abusive. You have little contact with him but remain in contact with your mother and sister.
36.You migrated to Australia in August 2008 and studied at La Trobe University, but were unable to complete the course due to language problems. You then worked in various manual occupations including mushroom picking, delivery driving and packing. You have recently been working as a carpenter and on the plea a very good reference was tendered on your behalf.
37.You married in 2011 and you and your wife have three children – the youngest being just under 12 months old. Each of them have some medical issues.
38.Your wife has been working as a nail technician. She has completed her citizen requirements and is waiting to become an Australian citizen. You have permanent residency status in Australia.
39.On the plea your counsel tendered a report from Dr Barth, psychologist. He found that you had both a cannabis use disorder and an alcohol use disorder at a moderate level, but both are in sustained remission. You presently don’t have any diagnosable condition but lack insight into your cannabis and alcohol disorders, although you have recently been abstinent.
40.He remains guarded as to your prognosis and you require education and training to develop your English proficiency and would benefit from mental health treatment to address some current depressive and anxiety related symptoms.
41.I am required to assess your prospects of rehabilitation. I would regard them as reasonable. You have no prior convictions and you have had a good work ethic in Australia. You will need, however, to address your alcohol and drug problems and address becoming competent in English. You also do have family support. Thus, overall I regard your prospects as reasonable.
42.On the plea your counsel emphasised the implications of a sentence of imprisonment on your residency status. As a consequence of a sentence of imprisonment of more than 12 months, your Visa will be cancelled and you will be liable to deportation. The Minister has power to revoke the deportation order.
43.The prospect of your deportation will, I am satisfied, increase the burden of imprisonment. You remain in this state of uncertainty which does impose a greater burden on you.
44.In addition, as submitted by your counsel, in the event that you are deported you will have lost the opportunity to settle permanently in Australia which is also an additional burden that I take into account. I also take into account that leaving Australia will also result in separation from your wife and children and the uncertainty until the whole issue of your residency status is resolved is an increasing burden on you.
45.A further matter that I have regard to is that this offence is an automatic forfeiture offence. A restraining order has been placed on the two properties and your interest in the properties is liable to be forfeited. Your wife has made an exclusion application in relation to her interest in the properties and this is yet to be determined. Forfeiture of your interest in the two properties is a matter that I give some weight as additional punishment.
Purposes of sentencing
46.The basic purposes for which a court may impose a sentence are punishment, deterrence – both specific and general – rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.
47.I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
48.As emerged during the course of the plea, where authorities such as Nguyen (both 2016 and 2017 decisions)[4] were discussed, your Counsel conceded that a term of imprisonment with a non-parole period is required, considering the seriousness of the offending.
[4] Nguyen v The Queen (2016) 311 FLR 289, Nguyen v The Queen [2017] VSCA 100, Nguyen v The Queen [2017] VSCA 127 and Nguyen v The Queen [2017] VSCA 286.
Sentencing considerations
49.The learned Crown Prosecutor referred to the decision 2016 decision of Nguyen. In that case, the Court of Appeal extensively reviewed the sentences for cultivating cannabis and indicated that the sentencing range for mid-range offences must, by increments, increase.
50.During the course of the plea, I was referred to the recent (other) decisions of Nguyen v The Queen,[5] which involved cultivation of a commercial quantity of a narcotic plant, in a weight similar (but less) to that in the present case.
[5] [2017] VSCA 100.
51.In that case, the Court dismissed an appeal by a prisoner against a sentence of four years' imprisonment.
52.In another case of McClelland v The Queen,[6] a person who had been wrongly classified as a ‘principal’ but who was a ‘crop-sitter’ was sentenced to 3 years and nine months imprisonment. He had prior convictions. The weight was 61.5 kilograms.
[6] [2017] VSCA 124.
53.In another case of Nguyen v The Queen,[7] a ‘crop-sitter’ was sentenced to 3 years and three years’ imprisonment where there were 307 plants and a mass of 77.87 kilograms.
[7] [2017] VSCA 127.
54.In a very recent case of Nguyen v The Queen,[8] where the person was a principal cultivator in a syndicate aged 62 with a drug prior conviction, where there was 167 plants with a mass of 127 kilograms, the offender was sentenced to five years imprisonment with a non-parole period of three years and six months.
[8] [2017] VSCA 286.
55.These cases provide some assistance in ascertaining current sentencing practices.
56.Following the High Court decision in Director of Public Prosecutions (Vic) v Dalgliesh (A Pseudonym),[9] the High Court made it clear that current sentencing practices are one of a number of considerations which much be taken into account, pursuant to s. 5 of the Sentencing Act 1991.
[9] (2017) 91 ALJR 1063 (‘Dalgliesh’).
57.Each case must be considered on its own facts, however, I am cognisant of the direction by the Court of Appeal that sentences for mid-range cases are to be lifted incrementally.
58.In your case, this was a sophisticated hydroponic setup. It was over a period of 3 months for which you are charged with cultivation. Your counsel conceded that you were not to be dealt with as if you were a ‘crop-sitter’. All these matters are relevant to my characterisation of your offending as, at least, an offence in the mid-range of seriousness.
59.In sentencing, I have taken into account your plea of guilty. You pleaded guilty just prior to the trial, as such, it is not to be regarded as an early plea. You have, however, still facilitated the course of justice. You also cooperated with the police following the execution of the search warrant and in the record of interview. I give you credit for those matters and find that your plea is some evidence of remorse.
60.The principal charge carries a maximum penalty of 25 years' imprisonment. This highlights the seriousness with which Parliament considers this offence. The High Court in Dalgliesh emphasised that courts must have regard to the maximum penalty, along with all the other matters in s. 5 of the Sentencing Act 1991. The issue of prevalence has been referred to by the Court of Appeal.
61.General deterrence must play a principal role in sentencing. This is economic crime and a signal has to be sent to all tempted to engage in such crime that heavy sentences will be imposed. Your conduct in being involved in this significant cannabis operation must be utterly condemned.
62.In your case, specific deterrence is also of some relevance notwithstanding that you have no prior convictions. This is because you do have a cannabis disorder that, although in remission, requires appropriate treatment.
63.In sentencing you, I have taken into account all submissions on your behalf.
Sentence
64.On charge one, cultivation of a narcotic plant in a commercial quantity, you are sentenced to four years imprisonment. This is the base sentence.
65.On charge two, theft, you are sentenced to four months imprisonment.
66.On charge three, you are sentenced to nine months imprisonment.
67.I order that six months of the sentence on charge three be served cumulatively upon the base sentence. All other sentences are to be served concurrently. This makes a total effective sentence of four years and six months imprisonment.
68.I direct that you serve two years and nine months before becoming eligible to apply for parole.
69.I declare three days of pre-sentence detention which will be deducted administratively.
70.I declare, pursuant to s. 6AAA of the Sentencing Act 1991, that had you not pleaded guilty I would have imposed a sentence of five years and three months imprisonment with a non-parole period of three years and six months.
71.I will make the orders for disposal and compensation as sought by the prosecution.
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