R v Pham

[2019] NSWDC 709

District Court

New South Wales

Medium Neutral Citation:	R v Pham [2019] NSWDC 709
Hearing dates:	25 July 2019
Date of orders:	25 July 2019
Decision date:	25 July 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Term of imprisonment of 3 years 3 months with a non-parole period of 2 years.
Catchwords:	CRIME — Drug offences — Supply prohibited drug — Large commercial quantity
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Borkowski (2009) NSWCCA 102
Category:	Sentence
Parties:	Regina (Crown) Giap Pham (Offender)
Representation:	Samantha Velcic (Crown) Simon Fung (Offender)   Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2017/00326088

EX TEMPORE REVISED JUDGEMENT

SENTENCE

1. Giap Pham pleaded guilty to a charge of supplying a prohibited drug in not less than a large commercial quantity contrary to s 25 (2) Drug Misuse and Trafficking Act 1985. He pleaded guilty upon arraignment in this Court on 24 May 2019 after he was committed for trial on 31 October 2018. He has been in custody since 27 October 2017 and the sentence I impose today shall commence on that date. The maximum penalty is 20 years imprisonment with a fine represented by 5,000 penalty units. There is no standard non-parole period for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999.

2. There are co-offenders, one of whom I sentenced on 19 March 2019; I have my judgement included in the Crown bundle, exhibit A.

3. The facts are that about 2.40pm on 27 October 2017, police received a phone call from a concerned citizen complaining of yelling coming from premises in Condell Park. They attended about 4pm and noticed the premises to be a four bedroom brick house in a residential area. They knocked on the front door, they heard movement inside, they announced their presence and eventually somebody called out “Hello” and repeated that call once again.

4. Shortly after, a man named Lee came out of the side gate of the premises and approached the police. The police told him that they were there to check to make sure everybody was okay. Mr Lee represented himself to be the gardener, doing the gardening for a friend who was inside the house. The police asked Mr Lee to have the friend come outside but then Mr Lee said “He’s not there”. He then said there was no one else there with him.

5. The police officers and Mr Lee walked down the driveway through the open gate into the rear yard. Police, unsurprisingly, became suspicious about the use of the premises. They saw a large pallet sized chemical container and black plastic garbage bags consistent with the cultivation of cannabis. One of the police officers went to the open rear sliding door, and called out to see if anyone was there. The police saw and heard movement following the sound of the front door and garage door opening and slamming shut.

6. The next paragraphs 9 and 10 are in the following terms:-

“Police ran around to the front of the premises where they observed the offender running from the premises by jumping the front fence. At the time, the offender was wearing blue disposable gloves. Police gave chase and called for further police assistance.

Constable Stathopoulos caught up with the offender and he was placed under arrest. Another Asian male, with a large tattoo on his back, continued to run from police and was not apprehended.”

7. The police gave chase to Thuy Van Pham, unrelated to the offender before me although of the same family name. The police called out to Mr Pham to stop. Mr Pham jumped the boundary fence into the rear yard of an adjoining property. In doing so, he caused damage to his leg. He was handcuffed. An ambulance was requested to come and attend to him.

8. Inside the premises, there were large amounts of dried cannabis associated with the indoor cultivation found. False walls were installed with a purification system, irrigation, blacked out windows and empty pots. The electrical system had been bypassed with electrical fixtures still in place. Within the rear bedroom, the police located six drying racks full with cannabis leaf. There was also drying apparatus with a preparation of recently harvested cannabis. There were no new plants being tended but all modifications within the premises were consistent with a recent crop having been harvested with the final processes of cultivation and supply underway.

9. Inside the premises there were light transformers, light fittings, light shades, light globes, power leads, plant shredders, exhaust fans, a blue nitrile glove and cigarette butts. The cannabis head and leaf were located on wooden drying racks built inside two bedrooms in the premises, and on the floor of the two bedrooms there was an amount also contained in black plastic bags. Total weight 137.656 kilograms, total value on the street $1.4 million. The large commercial quantity of cannabis leaf is one kilogram.

10. The offender was arrested. He was taken to Bankstown Police Station and with the aid of a Vietnamese interpreter he declined to participate in a record of interview.

11. On those bare facts, there is no evidence connecting the offender to the joint criminal enterprise upon which those present were engaged in the cultivation and the supply of cannabis in the large commercial quantity, and thus, it is unsurprising that he did not plead guilty earlier and was committed for trial. There was a very real chance of a successful defence in the circumstances although it could not be certain. There were objective facts and circumstances which give rise to the inference, at least, that he was a participant in this enterprise.

12. There is nothing in the facts about a van being present but he explained to me from the witness box that he knew nothing about the house being used for the purposes of cannabis cultivation. He had gone there to retrieve a van which he had earlier loaned to a man named Hung. That was the person’s given name, not his family name. There is no reference to anyone named Hung in the material before me but there is reference to a man with a tattoo on his back who made good his escape and has never been identified. Whether that is the same person or not, remains a matter of conjecture.

13. By pleading guilty, he adopts the elements of the offence with which he is charged and though upon the material he might have successfully run a defence, he decided to plead guilty in this Court as a matter of convenience. He is taking the expedient course, it would appear, bearing in mind that he is hoping to complete the custodial component of his sentence, accept his deportation, and return to Vietnam where his wife and children aged eight and six respectively are living without financial support in his absence working here in this country earning money from which he might send home resources for them to continue to survive. He is concerned about the welfare of his family because he is here in gaol unable to earn an income.

14. He was born in 1987; there is no record of antecedents before me. He comes before the Court therefore clear of an antecedent criminal record.

15. He is 32 years of age upon that date of birth. I must say, he appears a little older than that to me but that might be because of the nature of the life that he has led. I simply do not know one way or another.

16. He has been in custody since his arrest on 27 October 2017. He has demonstrated a capacity for rehabilitation and I have various documents before me including certificates evidencing academic achievement. I have a document written by a chaplain who speaks of having known the offender since he came into custody. This is obviously someone who has provided for his spiritual sustenance. This refers to the work the offender has engaged upon in custody and his good use of the time in gaol. There are no findings other than he has demonstrated prospects for rehabilitation by reason of the progress made reflected in the certificates with which I am provided.

17. He was assessed by a psychologist who provided a report written on 22 July 2019. The psychologist provides a summary of his family history. There was no challenge to the document and there were no questions asked of the offender when he got into the witness box regarding his representations attributed in the document, by either the solicitor appearing for him or the Crown.

18. This speaks of his strong bonds and attachments to his immediate and extended family. He has aging parents and he is the oldest child and only son. It might be that he has female siblings. There is reference to his marriage and the two children born to that union about whom I have heard from him in the witness box.

19. He came to Australia on a student visa to make a better life for his family but after six months, he ceased study, he started working for a stone mason and from an income of between $600 and $700 a week he remitted $300 to his family in Vietnam. His concern was to earn money to provide for his family back home.

20. His work he obtained he said through his association with the Catholic Church which he regularly attended and I note there are a number of people here in support of him who know him through his attendance at that church.

21. There is no history of problematic alcohol use although he did consume alcohol on an occasional and social basis. No historical use of illicit drugs. No criminal antecedents. There are no mental health issues of note. He was said to present with some mild depressive symptoms, some elevated stress, some measure of anxiety with sleep disturbance, a sense of guilt and shame, and his recognition that his offending conduct is serious and unacceptable. There was some psychometric assessment performed providing evidence of a symptomology from mild to extremely severe. That was mild for depression, severe for stress, and mild for anxiety. Much is attributed to the fact that he is in gaol and facing sentence for a serious criminal offence and cannot provide for his family who are without adequate resources back home.

22. The opinion offered by the psychologist is that although he does not demonstrate psychological symptomology that would constitute a diagnosis for a mental health condition, it is certainly indicative of decline in his mental wellbeing, a product of his separation of his family and the stress of the prosecution that he is presently facing. The psychologist writes of the offender being genuinely remorseful and contrite. That is not a matter for the psychologist to comment upon. Such an opinion given by the psychologist is really of no relevance to the task that the Court has to perform.

23. That said it must be found that he has demonstrated contrition and remorse in pleading guilty in the circumstances where the case against him could not be said to be strong. So the plea of guilty in this case sounds in two respects:-

24. (1) Contrition and remorse and prospects of rehabilitation, and

25. (2) The utility that it provides to avoid a trial that could have ultimately resulted in an acquittal depending upon the view taken by the jury of the evidence available to the Crown.

26. Although it is a late plea, and in accordance with Borkowski (2009) NSWCCA 102 the timing of the plea is the basic significant characteristic, I would allow him a discount of 20% to reflect utility which will be applied to the sentence which I find appropriate upon the synthesis of objective and subjective matter before me.

27. I have the judgement of the reasons for the sentence I imposed upon Thuy Van Pham. There are comparisons to be drawn between this offender and the other Mr Pham, although Mr Pham made certain admissions acknowledging the extent to which he was involved in the joint criminal enterprise, and there were blood spots which yielded DNA matching the profile of the offender as a consequence of whatever happened in the garage of the premises where this cannabis was discovered bearing in mind that he suffered the injury when he jumped the fence according to what I have. It might well be that there was some sort of interaction that prompted the concerned citizen to notify the police in the course of which the other Mr Pham bled. Again, that is conjecture. One cannot be conclusive upon how blood came to be there.

28. I imposed upon him a sentence of imprisonment of two years during which he was required to be in custody with a further period of imprisonment of one year and six months during which he would be eligible for parole. The head sentence therefore was one of three years and six months including the non-parole period of two years.

29. He was a young man. There was an early plea of guilty. I was satisfied of contrition and remorse with prospects of rehabilitation and he had the added factor of the injury that he suffered in the attempted escape from the police about which I commented at page 8 of the judgment in the following terms after describing the fracture and the procedure that followed. I wrote:-

“It appears that he has recovered from the fracture on the procedure performed. In lay terms, the documents tell me that it was a comminuted fracture at the junction of the distal and middle thirds of the tibia and fibula with posterior angulation of the distal fracture fragments with approximately a two centimetres overlap of fracture fragments.

I can take judicial notice of the fact that such an injury involves pain and discomfort, particularly when there is an intramedullary nail inserted to stabilise the site of the fracture. These take time to unite. But overall, the alignment was good, the surgery was successful, and he seems now to have progressed well. It is not entirely clear to me if the medullary nail has been removed or if it ever will be removed”.

30. I brought to account that to some extent, he was the author of his own harm but I also brought to account the discomfort and difficulty in custody, waiting for the matter to come to conclusion burdened by the injury. As with that offender, this offender does not have English as a first language and that contributes also to the punishment that he must suffer and has continued to suffer since he has been in gaol.

31. I have the benefit of written submissions from the Crown reminding me of the objective seriousness of the offence involving a large and elaborate setup in the enterprise upon which the participants were engaged, the quantity of the cannabis of 137.656 kilograms, the nature of the premises and modification for the cultivation process and that the enterprise could have had no other purpose other than commercial. The street value of that quantity of cannabis exceeds $1.4 million as I noted.

32. There are no aggravating factors. The Crown concedes the absence of any criminal antecedents and the plea of guilty, although not entered in the first available opportunity. It is submitted that there is such parity between this offender and the other offender that the sentences perhaps should be comparable. The factors that inform the sentencing exercise articulated in

33. s 3A Crimes (Sentencing Procedure) Act 1999 are engaged including the need for specific and general deterrence, although in this case specific deterrence has a more limited role. There needs to be denunciation, recognition of harm, and in that context I note that cannabis is a dangerous drug. It is included in Schedule 1 Drugs Misuse and Trafficking Act 1985 because of that very reason. The popular view among some groups in the community that it is of less significance in the drug milieu is challenged by the extent to which it leaves people susceptible after chronic use to schizophrenia and migration from that drug into the more serious drugs. It is a drug that is to be seen within that context and those engaged upon the supply of it in any significant amount are deserving of punishment.

34. The prospect of rehabilitation as the Crown reminds me should not blind the Court to the duties that the Court has toward the community with regard to drugs. There is no suggestion of any drug addiction or misuse of drugs that inform the offender’s decision to participate in this crime. I agree that the s 5 threshold has been crossed and as I understand the submissions made by Mr Fung, the analysis that I have provided of how the findings of fact should be made in this case are not challenged.

35. Although he pleaded guilty because of the convenience that will be provided, I cannot deal with him on the basis that he is innocent of any wrongdoing in this case. He has pleaded guilty to a serious offence thereby acknowledging all of the elements for expediency, a decision he is entitled to make, and I am left then to determine upon what objective facts I should find his participation in this offence.

36. His role would seem to be, on the material before me, somewhere below that of the other Mr Pham upon whom I imposed sentence.

37. I am suspicious of some of the evidence he gave as to why he was there, the use of the van and why he was wearing the disposable gloves, but I cannot go to the alternative view and find that he was making use of that van in the enterprise with which he is charged. I cannot find that he had the gloves on to mask his presence in activities in the cultivation and the supply of cannabis. All of that said, looking at the objective facts alone, I am satisfied that his role is somewhere below that of the other Mr Pham, not at the low end of the range of objective seriousness but below mid-range overall, synthesising all that I have before me to the extent that it is available.

38. The offender is convicted of the offence of supply the large commercial quantity of cannabis. There are special circumstances by reason of his ethnicity, in custody with English not his first language, and in the absence of any other family support in this country. His immigration status and what is likely to happen to him is irrelevant to the considerations that I must bring to bear and I put them entirely to one side, but that said I consider that a lesser period of custody is warranted in this case with a corresponding increase in the period on parole.

39. I intend a sentence of imprisonment of 3 years and 3 months head sentence. That includes a custodial component of 2 years commencing on 27 October 2017, to expire on 26 October 2019 at which point he will be eligible for parole with a further period of imprisonment of 1 year and 3 months thereafter to expire on 26 January 2021.

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Decision last updated: 28 November 2019