R v Pham

[2020] NSWDC 376

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Pham [2020] NSWDC 376
Hearing dates:	22 June 2020
Decision date:	22 June 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 6 years with a non parole period of 4 years.
Catchwords:	Supply a prohibited drug - possess a prohibited weapon without a permit.
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW), s25(1); Weapons Prohibition Act 1998 (NSW), s7(1).
Category:	Sentence
Parties:	Regina (Crown) Van Chien Pham (The offender)
Representation:	Mr Herrara (ODPP Campbelltown) Mr Cassels (Counsel for the offender)
File Number(s):	2019/190756
Publication restriction:	Nil

1. Van Chien Pham you appear for sentence today in relation to two principal offences. 

2. First, supplying a prohibited drug greater than the indictable but less than the commercial quantity for that drug. This involves a contravention of s 25(1) of the Drug Misuse and Trafficking Act. The maximum penalty for that offence is 15 years’ imprisonment and there is no standard non‑parole period.

3. Secondly, possessing a prohibited weapon without a permit. This involves a contravention of s 7(1) of the Weapons Prohibition Act. The maximum penalty for this offence is 14 years’ imprisonment and there is a standard non‑parole period of five years imprisonment.

4. In addition to these two principal offences, you have asked me to take into account in relation to the first principal offence two matters on a Form 1, which I have certified.  The matters on that Form 1 are: first, supplying a prohibited drug greater than the small but less than the indictable quantity; and secondly, dealing with property being the proceeds of crime.

5. The facts surrounding your offending behaviour are set out in a concise statement of agreed facts. Slightly recast by me as to style but not substance they are as follows. 

6. In June 2019 you were occupying certain residential premises in the Sydney suburb of Cabramatta.  These premises were of interest to the police in connection with the supply of prohibited drugs. 

7. On 18 June 2019 the police executed a search warrant at those premises. 

8. At the time the police executed that search warrant, you were on parole for a drug offence. 

9. When the police executed the search warrant at those premises, they found the following items: a small bag containing 4.3 grams of heroin; a small dish containing 0.78 grams of heroin; 17.33 grams of heroin in seven small packages; 0.27 grams of methyl amphetamine; another quantity of methylamphetamine being 3.38 grams; a Taser; a quantity of Australian currency; a pin coded safe; a number of mobile phones; and the pages of a drug ledger.

10. The total amount of heroin found in the house was 22.47 grams.  It is the possession of that heroin that constitutes the first principal offence. 

11. The total quantity of methylamphetamine found in the house was 3.65 grams.  That is the first matter on the Form 1 to be taken into account with the first principal offence.

12. The total amount of Australian currency found in the premises was $4,500.  That is the second matter on that Form 1. 

13. Because of the nature of those two matters, there will be a slight increase in the sentence for the first principal offence.

14. It is the possession of the Taser that constitutes the second principal offence.

15. The only rational inference to be drawn from the matters to which I have already referred is that you were actually dealing in the drugs of heroin.  That inference is strengthened because of the modifications that had been made to the house.  These modifications included metal bars across the windows; the installation of security doors; and operational CCTV at the front entrance. 

16. You were arrested on 19 June 2019 and you have remained in custody from that date to this. 

17. Whilst in custody, the parole that you were on was revoked and the balance of that parole expired on 1 December 2019.

18. You are now almost 51 years old and you have been a heroin addict since you were 18 years old. 

19. You were born in Vietnam.  Your parents were very poor and your life as a child was a hard one.  As an example, you had to walk 10 kilometres each way to school each day; and you and your siblings were often very hungry. But your parents loved you and they did their best for you. 

20. When you were 18, you fled by illegal boat to Hong Kong and on that journey you saw some terrible things. 

21. You started to use illegal drugs, particularly heroin, after you arrived in Hong Kong. 

22.  You came to Australia in 1997 as a refugee.  You came on your own.  You had no family.  You had no friends.  You were socially isolated in this country.

23. But perhaps it is not true to say you had no "friends".  Your "companion" of many years, heroin, was still with you.  Your whole life, Mr Pham, has revolved itself around heroin. 

24. You have effectively had no meaningful work in this country.

25. You do have a very significant criminal history that largely involves offences concerning illegal drugs - but it would seem that most of your drug dealing has been to support your drug habit, rather than to make significant amounts of money.

26. Your long term use of drugs has to be understood in the following context: borderline intellectual functioning; post‑traumatic stress disorder from what you saw when you were seeking to escape to Hong Kong; adjustment disorder mixed with anxiety and depression; and substance use disorder.

27. On each occasion that you have been imprisoned, you have abstained from using drugs. But each time you have been released, you have relapsed.  In 2016 you underwent a rehabilitation program - but you have still continued to use illegal drugs and to deal in them. 

28. It would seem that you have entered into a new relationship since you were last released from custody.  The author of the Sentencing Assessment Report said that this was a supportive relationship.  Apart from the support that you receive from that lady and her daughter, you have no supportive or positive friendships in the community.  I have noted that you told the author of the psychologist’s report that you are fearful that that relationship may fail whilst you are in prison.  If it does fail, it will mean you have no support in the community. I note that that lady is not present here today. 

29. Your prospects of rehabilitation in these circumstances must be guarded. 

30. It is necessary for me to make a finding of the objective seriousness of the offences for offences of their kind.  The first principal offence is just below the midrange.  The second principal offence is towards, but not at, the bottom of the range. 

31. Each offence is additionally aggravated by reason of the fact that you were on parole. 

32. Having regard to your criminal record, it would have been open to the Crown to submit that there was an additional aggravating factor - being your criminal history - but the Crown has not made that submission. I therefore do not intend regarding your criminal history as an additional aggravating factor. However, that history does mean that you are not entitled to the leniency which, in appropriate circumstances, can be given to a first offender.

33.  As both the Crown and your experience counsel have submitted, no sentence other than one of full‑time imprisonment is appropriate for either of the principal offences. 

34. I intend imposing an aggregate sentence.  It is necessary for me to state the indicative sentences underpinning that aggregate sentence.

35. You entered a plea of guilty at the first available opportunity and you are entitled to a 25% discount because of that plea.  The 25% discount will be applied to the indicative sentences. 

36. Because of your mental health issues, the principles of general deterrence are not fully engaged. However, specific deterrence, and the need to protect the community, are fully engaged -  as you would know, Mr Pham, heroin is a terribly destructive drug and you have been selling it.

37. You have expressed remorse to the author of the psychologist’s report but you did not give sworn evidence on that fact.  I am not entirely sure that that expression of remorse was genuine.  If it were genuine, I would have expected more than one attempt at rehabilitation four years ago. I have taken that conclusion into account when I earlier expressed my finding that your prospects for rehabilitation were guarded.

38. One issue that has been agitated is: what should be the start date of the term of imprisonment which I shall shortly impose?  On one view, the start date could have been 1 December 2019 when the balance of parole expired. However, as a deliberate act of leniency, the start date will be the date of your arrest, 19 June 2019.

39. Another issue that has attracted discussion is whether I should make a finding of special circumstances to vary the ratio of the head sentence to the non‑parole period.  With some hesitation, I shall make a slight variation to take into account: that you are a non‑ English speaking inmate in the Correctional context; and the current harsh conditions being experienced by prisoners who cannot receive visitors because of the pandemic. 

40. In relation to the first principal offence and taking into account the two matters on the Form 1, except for your plea of guilty, the indicative sentence would have been seven years imprisonment.  Because of the plea of guilty, the indicative sentence is 5 years, 3 months. 

41. In relation to the second principal offence, the indicative sentence before the discount would have been 2 years imprisonment.  Because of the discount of 25%, the indicative sentence is 18 months. 

42. Van Chien Pham of the two principal offences, I sentence you to an aggregate term of imprisonment of 6 years.  I fix a non‑parole period of 4 years to date from 19 June 2019 and which will expire on 18 June 2023.  I fix a balance of 2 years to date from 19 June 2023 and which will expire on 18 June 2025.

43.  I make the confiscation order contained in the short minutes of order signed by me and dated today.

Amendments

21 July 2020 - Jurisdiction changed from "Civil" to "Criminal"

21 July 2020 - [39] Line 2 - the word "English" added

Decision last updated: 21 July 2020