Dung Pham v The Queen

[2013] VSCA 169

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S ACPR 2013 0006

DUNG PHAM	Applicant
	v
THE QUEEN	Respondent

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JUDGES	REDLICH and COGHLAN JJA and T FORREST AJA
WHERE HELD	BALLARAT
DATE OF HEARING	30 May 2013
DATE OF JUDGMENT	30 May 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 169
JUDGMENT APPEALED FROM	DPP v Huynh & Pham (Unreported, County Court of Victoria, Judge Maidment, 13 December 2012)

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CRIMINAL LAW — Appeal — Sentencing — Cultivate Narcotic Plant — Theft — Total effective sentence of three years six months — Non-parole period of two years — Whether sentencing judge erred in finding that there was going to be a significant reward gained from the profits of future sales of the crop — Appeal allowed — Re-sentenced to two years nine months — Non-parole period of one year seven months

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Appearances:	Counsel	Solicitors
For the Applicant	Ms N Karapanagiotidis	Revill & Papa Lawyers
For the Respondent	Mr B Kissane	Office of Public Prosecutions

REDLICH JA:

1. I will ask my brother Coghlan to deliver the first judgment in this matter.

COGHLAN JA:

1. The applicant makes application for leave to appeal against the sentence imposed in the table below in the County Court at Ballarat on 13 December 2012.

charge on indictment	offence	maximum	sentence	cumulation
1	Cultivate Narcotic Plant (Commercial quantity) [s 72A Drugs, Poisons & Controlled Substances Act 1981]	25 years	42 months	---
2	Theft [s 74 of Crimes Act 1958]	10 years	4 months	---
Total Effective Sentence:		42 months’ imprisonment
Non-Parole Period:		24 months
Pre-sentence Detention Declared:		408 days
6AAA Statement:		4 years and 6 months’ imprisonment with a non-parole period of 3 years
Other orders: An order for retention of forensic sample pursuant to s464ZFB(1) of the Crimes Act 1958. A Forfeiture Order of property referred to in the Schedule. Restitution of $2,183.09 to POWERCOR.

1. The facts giving rise to the offences can be set out briefly.  On 1 November 2011 the police went to 61 Nelson Street Darley.  The applicant and her co-accused Duc Thien Huynh were arrested in a motor vehicle at the scene.  When the police searched the house they found an ‘extensive and elaborate hydroponic set up’ for the cultivation of cannabis.  A total of 378 cannabis plants were found over seven rooms.  They were of varying sizes but apparently well short of maturity.  Not attempt was made to place a value on the crop.  The electricity had been bypassed.

1. It was common ground on the plea that the applicant had acted as a crop‑sitter for only eight days and that she had not, as at the date of her arrest, received any reward.

1. The application seeks leave to appeal on the following grounds:

1.The maximum sentence imposed and the non-parole period are each manifestly excessive

2.The learned sentencing judge erred by failing to give sufficient weight to the applicant’s father’s terminal illness and limited life expectancy

3. The learned sentencing judge erred by taking into account as an aggravating factor of the offending, established beyond reasonable doubt, that the applicant expected a reward and/or share in the profits of any future sale of the cannabis

1. It is convenient to deal with Ground 3 first.

Ground 3

1. In his reasons for sentence, his Honour said,[1]

I note that the period of your involvement in this offending conduct was a mere eight days, that you had received no reward and, whilst I make no finding as to what your expectation was of reward, I am satisfied beyond reasonable doubt that you participated in this for profit and that you were expecting a reward that would have made the risks inherent in attaching to a venture of this kind worthwhile if you had got away with it.

[1]DPP v Huynh & Pham (Unreported, County Court of Victoria, Judge Maidment, 13 December 2012), [12].

1. It is submitted on behalf of the applicant that the paragraph is a finding that the applicant did hope to gain from her involvement in the cultivation.  It is submitted that the words ‘you participated in this for profit and that you were expecting a reward that would have made the risks inherent in attaching to a venture of this kind worthwhile if you had got away with it’ either directly or by necessary implication means that his Honour had found that the applicant was to receive a significant reward and that the applicant intended to see the enterprise through until the crop was harvested.

1. It was further submitted that his Honour used that finding as an aggravating feature of the offending.

1. It was submitted that the material before his Honour could not have permitted him to come to the conclusion, beyond reasonable doubt, that the applicant was to receive a substantial reward.[2]

   [2]R v Storey [1998] 1 VR 359.

1. It was submitted on behalf of the respondent that, in particular, the commercial nature of the enterprise was such that it laid the foundation for a finding beyond reasonable doubt that the applicant ‘was engaged in this enterprise in the expectation of some meaningful reward’.

1. His Honour said in the first part of paragraph 12 that he made ‘no finding as to what your expectation was of reward’.  It seems reasonable to assume that in that passage his Honour was saying that he could not quantify any reward.  There was no evidence before his Honour as to what reward the applicant was to receive.

1. It was not part of the prosecution case on the plea that applicant was to receive a substantial reward or indeed any qualified reward.

1. In her record of interview, the applicant said that a man called Tu, a friend of a friend, had invited her to stay in the house until he found her some farming work.  She said that it was her task to water the plants which had arrived about a week earlier than the date of arrest.  She said that was to pay $50 a week in rent but had not commenced paying rent yet.

1. There is no doubt that the applicant was untruthful in her record of interview and in what she said to the psychologist Bernard Healy about what she knew about the nature of the plants.

1. His Honour rejected all of the explanations given on behalf of the applicant as to how she came to be involved in the enterprise.  By the time of the plea both by the plea itself and as a result of what was put on her behalf, she had abandoned the pretence that she did not know what was being grown in the house.

1. The prosecution accepted and there was evidence to support the concession that there was another or others who was or were the actual owner or owners of the crop, who had apparently rented the house and installed the equipment for growing the crop and diverted the electricity.  As outlined above, his Honour characterised the role of the applicant as that of being a house-sitter.

1. It is accepted on behalf of the applicant that it was open to his Honour to reject the applicant’s version.  The question is whether or not it was open to his Honour to be satisfied beyond reasonable doubt that the applicant was involved for a significant reward and participating on a relatively long term basis.

1. The respondent submits that the finding was open on all the evidence.

1. I do not doubt that his Honour was entitled to find that the applicant would receive some reward.  I do not accept that he was entitled to go as far as he did.  The applicant was not shown to have any connection with the crop other than her role as house-sitter.  Given that her involvement was found to have been only for eight days, it does seem to follow that the sentence imposed was a sentence appropriate for someone who, at the least, had expectations of significant reward and who would ‘sit’ on the crop until it matured and possibly had some proprietary interest in the crop. 

1. It seems to me that in this case his Honour was not assisted by the range submitted by the Crown.  The range first submitted was between three and a half and five years as a head sentence and two and a half and three years as a non‑parole period. 

1. Having heard the plea, the prosecutor and his instructor, to their credit, sought further instructions.  The new range submitted was a head sentence of three and a half to four and a half years and a non‑parole period of between two and three

years.  The sentence imposed by his Honour was the exact sentence at the lower end of the range as submitted on behalf of the Crown.

1. The first range was quite narrow and after revision, the new range was even more narrow.  The range submitted also seems to me to be a range more consistent with sentences which are imposed for those who have proprietary interest in commercial cannabis crops.

1. Given the applicant’s involvement for only eight days, four months seems a very stern sentence on Charge 2.  That is particularly so given the applicant’s youth, the absence of prior convictions and the other powerful material put on the plea.

1. I would grant leave on this ground and allow the appeal.

1. It follows that it is not necessary to consider the other two grounds.

1. As I have already noted, the material submitted on the plea was powerful.  The crop, however, was a large one and people in the position of the applicant make it possible for others to engage in these enterprises without being too hands on.

1. I would sentence the applicant on Charge 1 to be imprisoned for two years nine months and on Charge 2 to a term of imprisonment of one month.  I would fix a non‑parole period of 19 months.

1. I would declare 576 days as having been served pursuant to this sentence.

1. Had it not been for the applicant’s pleas of guilty, pursuant to s 6AAA of the Sentencing Act 1991, I state I would have imposed a term of imprisonment of three years six months with a non-parole period of two years three months.

REDLICH JA:

1. I agree with Coghlan JA.  Leave to appeal should be granted and the appeal allowed for the reasons which he gives and I would sentence the appellant as his Honour proposes.

T FORREST AJA:

1. I also agree.

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