Director of Public Prosecutions v Vu and Pham
[2020] VCC 1285
•18 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-20-00158 & CR-20-00161
Indictment Nos. 2333158 and 2333161
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TOAN VU and SON NGOC PHAM |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 August 2020 | |
DATE OF SENTENCE: | 18 August 2020 | |
CASE MAY BE CITED AS: | DPP v Vu and Pham | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1285 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Accused Vu - cultivate narcotic plant in a quantity not less than commercial quantity – offending over two days – role to cut cannabis plants - 197 cannabis plants - total combined weight of all cannabis seized from the premises was 136.52 kilograms – to be paid for work and not share in profits - youthful offender – no previous convictions - limited English – concerns for family - time in prison more onerous - uncertainty as to length of time in immigration detention.
Accused Pham – cultivate narcotic plant – role to cut cannabis plants – offending on single day – to be paid for work and not share in profits – no payment received - youthful offender - no previous convictions - limited English – time in prison more onerous - uncertainty as to length of time in immigration detention – pre-sentence detention.
Legislation Cited: s5(2H) Sentencing Act 1991
Cases Cited: R v Doran [2005] VSC 271
Sentence: Vu: total effective sentence 2 years and 6 months imprisonment with a non-parole period of 16 months. Pre-sentence detention 373 days.
Pham: 12 months imprisonment with a non-parole period of 7 months. Pre-sentence detention 373.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Buckland | Solicitor for the DPP |
| For the Accused Vu | Mr J Hofman | Emma Turnbull Lawyers |
| For the Accused Pham | Mr C Nikakis | HP Lawyers |
HIS HONOUR:
1 Toan Vu, you have pleaded guilty to a charge of cultivating a narcotic plant, namely cannabis L, at Narre Warren, between 5 August 2019 and 12 August 2019, in a quantity that was not less than the commercial quantity.
2 Son Ngoc Pham, you have pleaded guilty that on 12 August 2019 at Narre Warren you did cultivate a narcotic plant, namely cannabis L.
Circumstances of offending
3 At approximately 11.49am on 12 August 2019 police executed a search warrant at 54 Wood Road, Narre Warren.
4 They knocked on the door of the premises but there was no answer. A police siren was activated to alert occupants of the premises that police were present. Shortly thereafter, you Mr Vu and Mr Pham, both attempted to leave the premises, along with a third man, Mr Do, through a garage door. All three of you were arrested.
5 The premises were searched and numerous cannabis plants and dried cannabis material were found in a number of rooms. Found at the premises were the following:
(a) in room 1, 7 black garbage bags full of dried cannabis buds;
(b) in room 2, 12 large cannabis plants;
(c) in room 3, 34 small cannabis plants and 7 large cannabis plants;
(d) in room 4, 28 large cannabis plants and 28 smaller cannabis plants;
(e) in room 5, 16 large cannabis plants; and
(f) in the kitchen, along with a pile of loose cannabis cuttings, 72 small cannabis plants.
6 The cannabis was examined by a forensic botanist. There was a total of 197 cannabis plants, which weighed 111.37 kilograms. The dried cannabis buds weighed 20.32 kilograms, and the cannabis cuttings weighed a total of 4.83 kilograms. The total combined weight of all cannabis seized from the premises was 136.52 kilograms.
7 Also found in the premises were 112 lamps and ballasts, two fluorescent lamps and 12 carbon filtered exhaust fans, water pumps for irrigation and 30 electrical transformers and associated wiring. An electricity bypass which supplied electricity to six separate switchboards controlled by timing devices was also found.
8 You were both interviewed with the assistance of Vietnamese interpreters. You both made a number of admissions.
9 Mr Pham, you told police that you had been living with Mr Vu for a couple of months. You said that your friend, Mr Do, the third person at the premises, offered you a job asking that you cut the plants in return for payment. You were provided with scissors and did as you were instructed, which was to sit in a room and cut the plants. At the time of your arrest, you had been cutting the plants for approximately 10 hours. You said that you were to be paid between $500 and $1,000 in total for two days’ work.
10 Mr Vu, you told police you met a person at the Springvale shops who had offered you work cutting plants. You said that you attended the premises about a week before your arrest and also on 11 August 2019, when you stayed overnight at the premises. You said that you were provided with cutters and that your task was to cut the plants at their roots. You did not do anything else with the plants. You told police that you were to be paid more than $1,000 in respect of the two times you attended at the premises.
Maximum penalties
11 The maximum penalty for cultivating a narcotic plant in a commercial quantity is 25 years’ imprisonment. It is also a Category 2 offence under the Sentencing Act 1991, which means that an order for imprisonment must be made unless a special reason under s5(2H) applies.
12 Mr Vu, you cultivated 1.97 times the commercial quantity by number of plants or 5.46 times the commercial quantity by weight of cannabis seized.
13 The maximum penalty for cultivating a narcotic plant is one year, if I am satisfied the offending was for a purpose not related to trafficking of that drug; or 15 years in any other case. It was not submitted on your behalf, Mr Pham, that I should be satisfied that the offending was for a purpose not related to the trafficking of the drug. I am satisfied that the maximum penalty is one of 15 years in your case Mr Pham.
Background and personal circumstances
14 Mr Vu, you were born in Vietnam on 7 April 1997. You were 22 years of age at the time of the offending and are now 23 years.
15 You were born in the city of Hai Phong, where your parents and younger sibling continue to live.
16 You were raised largely by your mother as your father worked away from home. You are not certain of the work in which your father was engaged but believe it was labouring type work. You come from a disadvantaged socio-economic background and your family suffered financial difficulty.
17 You completed your secondary education and thereafter attended the Hoang Hai Vietnam Maritime University for two months before travelling to Australia in December 2015 to further your studies. It was the hope of your parents that through a better education in Australia you would have a better future. They borrowed money in order that you may travel to and study in Australia.
18 You entered Australia on 19 December 2015 on a higher education visa. You commenced a Diploma of English at the Central Queensland University at its campus in Melbourne. You participated in that course for approximately six months before enrolling in Business Administration at the same university.
19 Your visa permitted you to work 20 hours per week. It was necessary for you to work as your parents could not afford to support you while you were studying in Australia. You obtained work at a fish market, which you performed for approximately six months. You then obtained work with a poultry company. You worked there for some two years. It was there that you met your co-accused, Mr Pham.
20 You struggled at university and ultimately withdrew from your course.
21 Your higher education visa was cancelled on 13 December 2018. You applied for a protection visa which was refused on 27 August 2019. However, you were granted a bridging visa on 19 March 2019, a condition of which was that you were not permitted to work.
22 As you were unable to work, you were forced to rely on your limited savings for food and rent. I was told that you were surviving on a budget of approximately $150 per week. You struggled to make ends meet on that budget.
23 It was submitted that you were under significant pressure financially and personally. You instructed Mr Hofman, who appeared on your behalf, that you were plagued by guilt associated with disappointing your family, particularly given the financial sacrifices they made to send you to Australia. Further, your family relied on you to send them money to assist in repayment of the family’s debt.
24 At the time of your offending, you had been unemployed for several months and were in a desperate emotional and financial state.
25 You are currently in custody at Ravenhall Correctional Facility. You have no family or other contacts in Australia. You enjoy regular phone contact with your family in Vietnam, which occurs every two to four weeks. You do not speak English and have difficulty as a result of the language barrier.
26 I turn now to your background, Mr Pham.
27 You were born on 16 February 1991 and are 29 years of age. You were also born in Hai Phong, Vietnam.
28 Your mother and sister live in Hai Phong. Your father passed away in 2018.
29 Like your co-accused, Mr Vu, you came to Australia in order to improve your education and prospects.
30 You arrived in Australia in 2014 on a student visa.
31 You initially enrolled in an information technology course at Swinburne University. You then transferred to another course at Delaware College. You struggled to pay the annual tuition fees which were approximately $16,000. In order to do so, you obtained part-time work in restaurants and farming. Without your knowledge, your visa was cancelled in 2016. Hence, you are now illegally in the country and you understand that once you have completed your sentence of imprisonment you will be placed in immigration detention and returned to Vietnam.
32 It was submitted by Mr Nikakis, who appeared on your behalf, that Vietnam has its borders closed because of the COVID-19 pandemic. Accordingly, it is not known how long you will remain in immigration detention in Australia.
33 You are also at the Ravenhall Correctional Facility suffering similar isolation and language difficulties as is your co-accused.
Submissions on behalf of Toan Vu
34 Mr Hofman submitted that your role in the offending was that of a ‘cutter’ of the cannabis plants. You were approached and offered the work in exchange for payment of cash. You did not receive any payment due to your arrest.
35 It was further submitted that with the exception of the cutting of the plants you had no other involvement in the operation and no knowledge of or interaction with those who set up the system. You attended at the premises on two occasions only. The first being one week before your arrest, and the second being on 11 August 2019.
36 Mr Hofman submitted that you became involved in the offending as a result of your desperate financial situation.
37 A number of matters were relied on in mitigation, including your plea of guilty; your young age; your lack of prior convictions or any pending matters; the burden of imprisonment in circumstances where you are isolated from your community and family; the impact of the COVID-19 restrictions; the anxiety as to the prospects of your deportation; and the stress caused to you by reason of your family’s hardship and your inability to provide for them.
38 It was further submitted that by reason of your admissions to police, the prosecution was able to charge you with cultivating a commercial quantity of cannabis. It was submitted that in the absence of those admissions, the prosecution would not have had sufficient evidence for you to be charged with cultivation of a commercial quantity of cannabis.
Submissions on behalf of Son Ngoc Pham
39 Mr Nikakis submitted that when interviewed you made admissions concerning your attendance at the premises where the cannabis was found and as to your role with regard to the cannabis. It was submitted that your role was to cut the plants and that you did so on a single day only.
40 Mr Nikakis further submitted that you did not have any knowledge as to the quantity of cannabis plants and other material found at the premises, and that this is reflected in the prosecution charging you with cultivation only. That is, unlike your co-accused, you are not charged with cultivation of a commercial quantity of cannabis.
41 Mr Nikakis relied on your plea of guilty, which was entered as soon as the indictment reflected a charge of cultivating cannabis as distinct from a charge of cultivating a commercial quantity of cannabis. Accordingly, it is submitted that your plea was entered at the earliest opportunity.
42 I was told by Mr Nikakis that your reason for becoming involved in the offending was as a result of the difficult financial position you were in.
43 Mr Nikakis submitted that given the charge and your limited role in cultivation, and limited involvement in the cultivation operation, including limited knowledge of what was at the premises, I should sentence you to a term of imprisonment less than the time you have already served on remand, which at the time of the plea hearing was 365 days.
Prosecution submissions
44 Mr Buckland, who appeared on behalf of the Director of Public Prosecutions, submitted that in respect to both cases I should impose a term of imprisonment and a non-parole period. Both charges are serious, given the quantity involved, and the sophisticated nature of the operation.
45 Mr Buckland accepted that each of your roles was limited to cutting the plants. The evidence he said does not contradict what you told police in your respective interviews.
46 Further, Mr Buckland accepted that but for your admissions, Mr Vu, the prosecution would not have been able to establish a case of cultivation in a commercial quantity.
47 Mr Buckland submitted that general deterrence and denunciation were important considerations in sentencing.
48 I was further informed that the third accused, Mr Do, is contesting the charges and his matter is listed for trial in 2021.
Sentencing considerations
49 The charges to which you have each pleaded guilty are serious charges, particularly that of cultivation of a narcotic plant in a commercial quantity, as is reflected by the maximum penalties of 25 and 15 years’ imprisonment.
50 I am mindful that the quantity of cannabis cultivated was high, but that is not the sole determining factor in assessing your respective criminality.
51 I accept that the role you each performed was to cut the cannabis plants that were being cultivated. Your roles were limited. In your case, Mr Vu, to two days’ cultivation and, in your case, Mr Pham, to some 10 hours of cultivation on a single day. You were both to be paid for your work but there is no evidence that you were to receive any profits from the ultimate sale of the cannabis. On the evidence, the role you each performed was at a very low level. Although the cultivation operation was accurately described by Mr Buckland as a sophisticated system involving a very large quantity of cannabis, it was not suggested that either of you were involved in the setting up of the operation or had any greater involvement than that set out in the prosecution opening. Nevertheless, commercial cannabis operations, such as the one you were involved in, rely on persons such as yourselves for their success. Whilst the role you each performed was at a low level, it was still an important role and one which must be denounced. You were both willing participants, for some financial reward.
52 In your case, Mr Vu, through your plea, you intended to cultivate a commercial quantity of cannabis. You, Mr Pham, did not. The plea against you proceeded on the basis that you did not have an intention to cultivate a commercial quantity, or at least the prosecution could not prove that you did.
53 In R v Doran,[1] Buchanan JA stated the following:
“ … In Ryan v. R, Kirby J referred to the public interest that attached to a plea of guilty in revelation of additional offences which it would have been difficult to prove without confession and to the importance of a public confession of wrongdoing so that the victims would realise that they were wholly innocent. He continued:
‘Unless persons such as the appellant are encouraged to bring unreported cases to notice, the likelihood is that, in the great majority of instances, such crimes will not be reported. They will therefore go unpunished. Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions. It should certainly not discourage them. Encouraging a full confession may also be an important first step in securing help for, and counselling of, the offender this is likewise one of the objects of criminal punishment and that of judicial sentencing.’
[1][2005] VSC 271 [15]
54 Mr Vu, I accept Mr Hofman’s submission that you should be given the benefit of having admitted matters that would otherwise have been difficult to prove, namely your state of mind relevant to the commercial quantity charge, and the number of times you attended at the property.
55 I also have significant regard to the fact that you are, Mr Vu, a youthful offender with no previous convictions. Given your age, your rehabilitation is a significant consideration. Although no specific submission was made, I consider in the circumstances that your prospects of rehabilitation are at least good. The weight to be attached to specific deterrence, accordingly, will be moderated.
56 Mr Pham, I have regard to the fact you have no previous convictions and I also consider that your prospects for rehabilitation are at least good. It is also appropriate that I moderate the weight to be attached to specific deterrence in your case.
57 I consider that this being your first time in custody, it will have had a significant deterrent effect on each of you.
58 I accept that neither of you entered the country in order to commit the crimes to which you pleaded guilty, and that by reason of your isolation from family and community, as well as your difficulties with the English language, your time in prison will be rendered more onerous. I accept also that the prospect of deportation and the uncertainty as to how long you may each spend in immigration detention, will add to the burden of your incarceration.
59 I also accept that the restrictions in place at Ravenhall, because of the COVID-19 pandemic, which include increased lockdowns and a reduction in available programs, has made your time in custody more difficult.
60 In your case, Mr Vu, Mr Hofman submitted there is additional hardship given your concerns for your family in Vietnam and your inability to support them financially. I am prepared to accept that this is a factor that weighs on your mind and which will make the burden of imprisonment greater than what it otherwise would be.
61 You are both entitled to a reduction in penalty by reason of your pleas of guilty. I accept that in your case, Mr Pham, your plea of guilty was entered at the earliest opportunity once an appropriate charge was laid. In your case, Mr Vu, it was entered on 12 May 2020 following a ‘submissions only’ committal on 4 February 2020. You have both spared the court and community the expense of a trial and you have spared witnesses from having to give evidence. I also accept that your pleas of guilty are indicative of some remorse.
62 As already mentioned, the offences to which you each pleaded guilty are serious offences. The sentence to be imposed must make clear to others who are minded to become involved in the cultivation of cannabis that they will be met with stern punishment. The sentence must also manifest the court’s denunciation of your offending. I am also required to impose just punishment and a sentence that will best protect the community from similar offending.
63 In my opinion, the only sentence properly available is a term of imprisonment. In determining the sentence to be imposed, I have also had regard to sentences imposed in Victoria for similar offending.
Sentence
Toan Vu
64 Mr Vu, for the offence of cultivating a narcotic plant in a commercial quantity you are convicted and sentenced to a term of imprisonment of 2 years and 6 months. I direct that you serve a minimum term of 16 months before becoming eligible for parole.
Son Ngoc Pham
65 Mr Pham, on the charge of cultivating a narcotic plant, you are convicted and sentenced to a term of imprisonment of 12 months. I set a non-parole period of 7 months.
Pre-sentence detention
66 Pursuant to s18 of the Sentencing Act, the period of imprisonment already served in respect of these offences, for each of you, is 373 days, not including today.
Section 6AAA
67 Mr Vu, had it not been for your plea of guilty, the sentence I would have imposed is one of 3 years and 2 months' imprisonment with a non-parole period of 26 months.
68 Mr Pham, had it not been for your plea of guilty, the sentence I would have imposed is 18 months' imprisonment with a non-parole period of 12 months.
69 Are there any other matters to which I need to attend?
70 COUNSEL: No, Your Honour.
71 HIS HONOUR: Thank you gentlemen for your assistance. Thank you Ms Nguyen for your assistance.
72 INTERPRETER: Thank you Your Honour.
73 HIS HONOUR: If there are no other matters I will now adjourn the court.
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