R v Pham

[2020] NSWDC 623

District Court

New South Wales

Medium Neutral Citation:

R v Pham [2020] NSWDC 623

Hearing dates:

22 September 2020

Date of orders:

22 September 2020

Decision date:

22 September 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Sentence of imprisonment of 3 years 3 months with a non-parole period of 1 year 9 months

Catchwords:

CRIME — Drug offences — Cultivate prohibited plant — Knowingly take part in cultivation

SENTENCING — Mitigating factors — Unlikely to re-offend

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Mitigating factors — Good character

SENTENCING — Penalties — Imprisonment

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

Imbornone v R [2017] NSWCCA 144

Markarian v R [2005] HCA 25

Muldrock v R [2011] HCA 39

R v Borkowski [2009] NSWCCA 102

R v Godden [2005] NSWCCA 160

R v Qutami [2001] NSWCCA 353

Tepania v R [2018] NSWCCA 247

Category:

Sentence

Parties:

Regina (Crown)
Van Thanh Pham (Offender)

Representation:

Nicholas Lawrence (Crown)
Kellie Stares (counsel) (Offender)

Director of Public Prosecutions (NSW) (Crown)
Legal Aid Commission (NSW) (Offender)

File Number(s):

2017/00236330

EX TEMPORE REVISED JUDGEMENT

Introduction

1. Van Thanh Pham pleaded guilty in the Local Court at Central to one charge contrary to s 23(2)(a) Drug Misuse and Trafficking Act 1985.

2. The particulars appearing in the Court Attendance Notice include that he, between 17 July 2017 and 26 July 2017, at Bardwell Valley in the State of New South Wales did knowingly take part in the cultivation of a number of prohibited plants, namely 290 Cannabis Sativa, which is not less than the large commercial quantity applicable to that prohibited plant.

3. Schedule 1 Drug Misuse and Trafficking Act specifies that the large commercial quantity for cannabis plants cultivated by enhanced indoor means is 200.

4. The nature of the enterprise in which the offender was participating included the enhanced indoor cultivation of cannabis plants. The offender is not charged under the provision which creates the specific offence of cultivating cannabis by enhanced indoor means, however by force of other provisions in the Drug Misuse and Trafficking Act by reason of the number of plants, he has attracted the maximum penalty of 20 years imprisonment and a fine represented by 20,000 penalty units with a standard non-parole period of 10 years imprisonment, which applies because of the quantity of the plants and the nature of the enterprise in the course of which they were cultivated.

Discount for Utility

5. The offender pleaded guilty early in the prosecution process and therefore attracts a discount of 25% for the utility of his plea of guilty. This, as I understand it, is by reason of the common law rather than the recently enacted provisions in the sentencing legislation, because the Court Attendance Notice which initiated the prosecution was issued in 2017, three years before the offender was actually arrested on the authority of a warrant granted to the police. Thus the sentence which I shall identify is appropriate for this misconduct will be reduced by 25% to reflect utility in accordance with R v Borkowski [2009] NSWCCA 102 and other authorities speaking to those principles.

6. The application of that discount to the starting point actually results in a little more than a 25% discount so that I can settle upon a sentence expressed in years and months.

The Standard Non-Parole Period

7. In the determination of sentence the standard non-parole period has significance that must be brought to account. The provisions introducing standard non-parole periods are found in Pt 4 Division 1A Crimes (Sentencing Procedure) Act 1999, in their present form, after amendment following the decision of the High Court of Australia in Muldrock v R [2011] HCA 39.

8. Section 54A(1) provides that the standard non-parole period for an offence is that which is included in the table to the provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence in the table, taking into account only the objective factors affecting the relative seriousness of the offence, found to fall within the middle of the range of objective seriousness. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. Section 54B(3) requires the Court to record its reasons for setting a non-parole period that is longer or shorter identifying each factor taken into account.

9. Consideration was given to this legislation by Johnson J in the Court of Criminal Appeal in Tepania v R [2018] NSWCCA 247. His Honour summarised the import of these provisions to which I have referred at para [110] of the judgement and noted the differences between the common law as it applied and the impact brought by this legislation.

10. His Honour noted though that the Court must apply the provisions to which I have referred but at the same time bring to bear the relevant common law principles to the sentencing exercise. Thus his Honour wrote at para [112]:

“In sentencing for an offence (whether or not a standard non-parole period offence) a Court should make an assessment of the objective gravity of the offence applying general principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence...”

11. His Honour went on to discuss the concept of moral culpability and cited relevant authority, addressing the processes in which the Court is currently engaged. It is not necessary that I make further reference to those.

12. In this case I have come to the view in the assessment of objective gravity applying those principles that this offence, as submitted to me by both the Crown and on behalf of the offender, falls toward the lower end of the range of objective gravity. I have reached this conclusion by reference to the nature of the offending and bringing into account relevant factors including the number of plants and the sophistication which I find evident in the enterprise in which the offender knowingly participated.

13. The fixing of a non-parole period is but part of the task of the court, and must be addressed regardless of whether the offender pleaded guilty or not guilty and whether the offence falls in the low, middle or high range of objective seriousness for such offences.

14. My process is an intuitive one; it is not arithmetical, staged or tiered. In this regard I am guided by judgements such as that of McHugh J in Markarian v R [2005] HCA 25. The maximum penalty and the standard non-parole period are guideposts to be brought to account, together with other relevant factors such as the purposes of sentencing found in s 3A Crimes (Sentencing Procedure) Act 1999, and aggravating factors and mitigating factors identified in s 21A, and in s 22 of the Act by reason of the plea of guilty entered by the offender.

15. I observe that were I to come to the view that the offence fell within the middle range of objective seriousness, which I make clear I do not, it would not follow that the standard non-parole period would apply. The ultimate sentence and non-parole period depends upon the synthesis of all the matters that one must bring into account in the determination of sentence.

Pre-Sentence Custody

16. The offender has been in custody since he was arrested on 18 August 2019 and therefore the sentence I impose will commence on that day.

The Maximum Penalty

17. I have been reminded of a decision of the Court of Criminal Appeal from 2005, R v Godden [2005] NSWCCA 160. The judge at first instance had imposed a sentence of three years imprisonment with a non-parole period of two years which the Court of Criminal Appeal reduced to one of two years and two months with a non-parole period of one year and three months.

18. It is not to be overlooked that since 2005 the pattern of sentencing for such misconduct as this has resulted in a gradual increase in the sentences generally imposed. Moreover the maximum penalty available to the Court in respect of that matter at that time was imprisonment for 15 years and a fine, whereas for this offender the specified maximum penalty is of 20 years imprisonment with a fine represented by 20,000 penalty units and a standard non-parole period of 10 years imprisonment.

19. There was no standard non-parole period identified for this offence by parliament at the time of the events considered in R v Godden ibid. There was an additional offence taken into account which would have impacted upon the sentence that would otherwise have been imposed.

20. It must follow that although the judgement provides some assistance in the exercise upon which I am engaged it must be read in light of the current legislative regime governing this offence and the sentencing practices that have evolved since that time.

The Offender’s Affidavit

21. I accept that the offender comes before the Court as a person of good character without any criminal antecedence. He provided an affidavit and was not required for cross-examination; thus it must be accepted that he has demonstrated appropriate contrition and remorse and the circumspection that is suggested in the Court of Criminal Appeal decision of R v Qutami [2001] NSWCCA 353 and more recently discussed in some detail by Wilson J in Imbornone v R [2017] NSWCCA 144 beginning at para [62] is of limited significance.

22. The offender put sworn evidence before me by way of his affidavit. Implicit in his representations therein is evidence of good character and his recognition of his wrongdoing and his remorse for having so engaged. This will be taken into account with his plea of guilty which also demonstrates his contrition and remorse. He was available for cross-examination but the Crown did not require him for that purpose.

The Facts

23. The facts reveal that in July 2017 police were engaged in the surveillance of the offender as part of an ongoing investigation.

24. At about 12.25pm on 17 July 2017 the offender was seen leaving an address at Margaret Street, Fairfield West. He entered a motor vehicle registered in his name and drove there from to a restaurant and convenience store. About 1.45pm that afternoon he drove to a garden supply enterprise in Chipping Norton. He arrived there at 2.05pm. He loaded material into the boot of the motor vehicle and left the premises about 2.20pm and then drove to the Bexley North Hotel. He then went on to the subject premises at Pile Street, Bardwell Park. He arrived there at about 3.28pm. He was driving a motor vehicle registered in his name.

25. He entered the premises through the front door and then exited through the garage before parking his vehicle in the garage and closing the garage door. The surveillance continued at the premises until 4.05pm. It resumed the following day, 18 July 2017, at the premises about midday. At about 3.35pm the offender was seen driving his vehicle into the driveway of the premises. He collected mail from the mailbox and then entered through the front door. He exited the premises at 4.21pm through the front door, entered his motor vehicle and left.

26. On 24 July 2017 the police obtained a warrant and searched the premises. I have seen a video recording of the execution of that search warrant revealing the placement of the plants, how they were cultivated, and the elaborate electronics that were in place to facilitate the lighting and other process involved in the cultivation.

27. The front door of the premises had on the inside paper hanging from the ceiling to block light. The hallway was used to store lights, plant stakes and other plant growing equipment and at the end of the hallway there were a large number of ballasts connected to a heavily modified power system which was later found to have bypassed the electricity meter.

28. Every room of the premises was converted to further the cultivation of cannabis plants with the exception of a lounge room that was reached by walking past a large amount of cannabis growing infrastructure. That room also contained some light bulbs from the enhanced indoor cultivation setup.

29. The rooms in which the cannabis plants were being grown were set up with a large number of lights in the roof, air ventilation systems throughout the house. The watering system provided for irrigation to each of the pots holding the plants which were connected to the bathroom where there were numerous chemicals stored.

30. The garage could only be accessed by going downstairs from the main entrance. The staircase housed sapling plants grown in miniature greenhouses in the open as well as in a space beneath the house used to grow cannabis in the same manner as the rooms upstairs. Part of the garage contained 30 cannabis plants together with fertiliser and other cultivation materials.

31. An agronomist identified 280 plants growing in pots with a hydroponic system and a further 82 plants growing in propagation trays. All of the plants had root ball systems, stems and leaves. The total number of plants grown on the property was 290.

32. The offender’s fingerprints were found on five lampshades, two light fixtures and one light globe. The system adopted for the categorisation of the items found has apparently prevented the specification of where in the premises those particular items with his fingerprints were located.

33. On 2 August 2017 the police attended the offender’s home at Fairfield to arrest him. A man there gave access to the granny flat where the offender had resided but he had recently ceased living in that residence and could not be located. Thus a future Court Attendance Notice was filed and upon that an arrest warrant granted on 3 August 2017. He was arrested on 18 August 2019 when found as a passenger in a car travelling in Corindi.

The Offender

34. He was born in 1989 and thus is now 31 years of age. He has no antecedent offences in New South Wales. He is an unlawful citizen in this country but that is an irrelevant consideration so far as the Court is concerned when determining what the appropriate sentence is in this case.

35. He has not faced cross-examination but as I have said, he was not required to do so by the Crown. He provided sworn evidence by way of an affidavit.

36. He was born in Vietnam. He is the eldest of three children born to his parents. He has a younger brother and a younger sister. His brother lives in Vietnam, his sister lives here in Sydney. There were not many job opportunities for his parents in Vietnam and so his father went to work in Germany to provide an income to support his family. The offender was about 12 years of age when his father did this; he was absent for about five years. When his father returned to Vietnam he had an accident and lost the sight of one eye. His mother thereafter went to Germany for six years. He was 17 years of age when his mother left.

37. He completed up to Year 10 of school but afterwards found it difficult to earn money to provide for his family and at 21 he left Vietnam to work in Korea. He there worked as a labourer in the construction industry; he stayed in Korea until he was 27 and then returned to Vietnam.

38. He married. His wife was three to four months pregnant when he left her to come to Australia. He has a daughter now aged about four years as a result of that relationship. He speaks to his wife and daughter regularly by phone.

39. He came to Australia when he was 27 years old, about 10 months after he returned home to Vietnam from Korea. He was here initially for three months on a visitor visa and hoped to find work as a labourer in the construction industry but was unable to do so because of his type of visa. He overstayed and had no income thereafter. He accepts and understands that he will be departing under the control of Immigration authorities once he completes his sentence in this country.

40. His mother passed away on 21 August 2020. This was a sudden loss from a heart attack. This, he said, has caused him upset; unsurprisingly. He has not been able to speak to anyone about this. His father remains in Vietnam. He has contact with him by telephone.

41. He has difficulty in custody because he has limited if any English. None of the inmates where he is housed or any of the officers speak Vietnamese. He is isolated. He spends his time in the gymnasium when he is out of his cell and when he has the opportunity to do so.

42. He expressed his deep regret and apologises to Australia and the Australian people. He wishes to go back to Vietnam and not return here and wishes he had not come to Australia to get into this trouble. He asks the Court and the prosecution for forgiveness.

43. I accept his evidence of contrition and remorse and I find that he satisfies the requirements of the relevant para in s 21A(2)(i) Crimes (Sentencing Procedure) Act 1999.

Consideration

44. All of the purposes of sentencing are engaged in this case subject to what I am about to say. There must be an appropriate consideration given to general deterrence. There must be recognition of harm that his misconduct caused to the community.

45. He had a role which upon the evidence before me must be found to be at the lower end of the range. He could not be said to be a mere courier. He had some responsibility in the care of the cultivation in which he was detected and although the direct evidence is only that he attended the premises on two occasions his role was not insignificant. He attended, one would accept, a supply centre for material relevant to the enterprise upon which he was engaged.

46. It is the usual case to find one such as this offender employed by those who are in a more responsible position in the enterprise to maintain the cultivation. His lack of sophistication is reflected in his use of his motor vehicle, registered to his name.

47. It is his presence in the property that attracts prosecution. There is no evidence before me of the lessee or the lessor/landlord of the premises or anything that could lead to the identification of the persons with whom he was engaged, but this does not detract from the finding I make that he was an employee in this enterprise to earn some money, the precise extent of which is not known from the material before me.

48. All of that said, the fact that people such as the offender are willing to participate in these enterprises facilitates the ongoing criminality of those at high level in the organisation. Without such as the offender, those who are the main operators would themselves have to engage upon the activity and put themselves at risk of detection. Thus, general deterrence to discourage others who might be tempted to engage in such activities, such as this offender has done, requires appropriate consideration.

49. Upon the material before me I would have to find, I believe, that his prospects of rehabilitation should be assessed to be good. He is unlikely to offend in this country again particularly in the light of the fact that he will be deported at the first opportunity. Even if that were not the case I would accept that he is unlikely to reoffend in the future and therefore his specific deterrence has more limited weight in the assessment of penalty.

50. There must be punishment, there must be recognition of harm, the conduct must be denounced, and as I said, general deterrence has a role to play.

44. There are special circumstances. First time in custody for the offender is not all that significant, however what is significant is that he is alone in Australia but for his sister here in Sydney. His wife and child are in Vietnam as is his father and his brother. He does not speak English and his time in custody must be more punitive than would otherwise be the case were he with at least a working knowledge of the English language.

45. I am satisfied that I should reduce the custodial component of the sentence to a significant extent and I have applied a discount of 25% to the sentence that I would otherwise have imposed, as I have said.

The Sentence

53. I shall specify a non-parole period of 1 year and 9 months with an additional term of 1 year and 6 months thereafter; that results in an overall sentence of 3 years and 3 months commencing on 18 August 2019.

54. The offender is convicted of the offence to which he has pleaded guilty. I note that he adhered to the plea of guilty before me given earlier in the Local Court.

55. I specify a non-parole period of imprisonment of 1 year and 9 months commencing on 18 August 2019 to expire on 17 May 2021. I impose a further period of imprisonment at the expiration of the non-parole period of 1 year and 6 months and that shall expire on 17 November 2022.

56. He will be eligible for parole at the expiration of the non-parole period and if for whatever reason he is able to remain in this country there will be supervision in accordance with the legislation and regulations governing such matters; that is unlikely to eventuate I would expect unless there is a change in government policy at Federal level.

57. I note I have considered s 5 Crimes (Sentencing Procedure) Act and agree with the concession made on behalf of the offender that the line there provided was crossed by this conduct.

Decision last updated: 20 October 2020