R v Pham

[2019] NSWDC 286

District Court

New South Wales

Medium Neutral Citation:

R v Pham [2019] NSWDC 286

Hearing dates:

29 April, 31 May 2019

Date of orders:

31 May 2019

Decision date:

31 May 2019

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to a term of imprisonment of 2 years, to be served by way of Intensive Corrections Order.  The standard ICO conditions are to apply.  In addition, the offender is to perform 500 hours Community Service.  The offender is to report to the Fairfield office of Community Corrections within 7 days.  I take the Form 1 into account.

In relation to the two offences on the s166 certificate, pursuant to s10A of the Crimes (Sentencing Procedure) Act the offender is convicted but I impose no further penalty.

I make the orders sought in the Consent Order in relation to the forfeiture of $480, being the proceeds of crime.

Catchwords:

Crime – Sentence – Cultivation – Intensive Corrections Order

Legislation Cited:

Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

Crown (Prosecution)
Thi Ngoc Pham (Offender)

Representation:

Counsel:
Mr M Ramage QC for the Offender

  Solicitors:
Ms J Pelliccone for the Crown
Mr Vo for the Offender

File Number(s):

2018/151967

Publication restriction:

None

Judgment

1. Ms Pham is to be sentenced today for knowingly take part in the cultivation of a prohibited plant being a large commercial quantity of cannabis plants. In addition the Court is asked to take into account on a Form 1 an offence of supply cannabis leaf under s 25 of the Drug Misuse and Trafficking Act 1985.

2. The offender pleaded guilty in the Local Court and is entitled to the full 25% discount for such a plea. The maximum penalty for the knowingly take part in cultivation offence is 20 years imprisonment and it is subject to a “standard non-parole period” of ten years.

3. The circumstances of the offences are set out in an agreed statement of facts and in broad terms are as follows.

4. On 15 May 2018 police executed a search warrant at a house in Fairfield. The offender was the only occupant at the time.

5. The premises were being used as an indoor hydroponic garden for cultivating cannabis. Some of the rooms were locked and the offender cooperated by showing the police the key.

6. Three hundred and forty-four growing plants were found inside the house and these are the basis of the offence of knowingly take part in cultivation.

7. In the garage there was found 1.39 kilograms of cannabis head and leaf and this is the offence on the Form 1, namely an offence of deemed supply.

8. The agreed facts indicate beyond any doubt that the house was being used as a hothouse for the illegal cultivation of cannabis.

9. In addition to the 344 cannabis plants, police also found $480 cash in the offender’s car.

10. She told police that she had been staying at the house for a few months and was being paid $2,000 a week to look after the plants. She said this involved watering the plants and harvesting the cannabis. She said she did not know how the 1.39 kilograms of harvested cannabis had come to be in the garage and she claimed she did not know what was to happen to it.

11. The offender said that she could not tell police the name of the owner of the premises, nor could she say who paid her the $2,000 per week for looking after the plants.

12. I need to consider the objective seriousness of the offence for which I am to sentence the offender. The Crown submitted that the offence of cultivate falls slightly below the midrange of objective seriousness. In assessing objective seriousness two important factors are, firstly, the scale and sophistication of the operation, and, secondly, the role of the offender.

13. In this regard I accept that the operation was of a fairly significant size and was reasonably sophisticated. As to the offender’s role it is accepted by both the Crown and the offender that her role was that of an employee who had been hired as a “crop-sitter”. I accept therefore that the offender was in no way involved in the setup or financing of the operation and I accept, as does the Crown it seems, that she did not stand to profit from the proceeds of the cultivation other than by the weekly payments she told police she received.

14. Having said that, I nonetheless need to take into account that the offender performed an important role and that without such persons being prepared to undertake that role, drug operations such as this would not be possible or would at least be far more difficult for their principals to carry out.

15. I assess the objective seriousness of the cultivate offence as just below the midrange, consistent with the submission made to me by the Crown.

16. Turning to subjective matters, the offender was born in Vietnam and her parents separated when she was five years old. Her childhood was unremarkable and she still has a supportive relationship with her mother who lives in Vietnam.

17. The offender came to Australia as a young person and intended to complete Years 11 and 12. However she dropped out of school to study accountancy and has completed a diploma course and is intending to complete further studies in accounting.

18. The offender provided a detailed history to psychologist Dr Chris Lennings, and in her evidence she confirmed that she had given Dr Lennings an accurate account.

19. She told Dr Lennings that at an earlier time she had been provided with financial assistance by her mother but that this had reduced considerably after her mother suffered a business failure. As a result the offender said she found herself in an extremely difficult situation as sole carer for her child and with considerable debts to pay as a result of medical issues relating to her child and an inability to access Medicare benefits.

20. She told Dr Lennings that it was in this situation that she was approached by a man who put to her the proposal to be paid as a crop-sitter for the cannabis. She told Dr Lennings that although she knew it was wrong she was absolutely desperate for money and that her belief at that time was somewhat naïve in that she thought cannabis was essentially only a drug that helped to relax people.

21. The offender told Dr Lennings of her extreme regret and remorse and she expressed similar remorse in her evidence in these proceedings. Dr Lennings expressed the view that the offender is a naïve young woman who was taken advantage of by a cynical person who saw her vulnerability.

22. The Crown did not challenge in any significant way the history given to Dr Lennings or any of his conclusions, and I have taken into account the history given to him by the offender both as to her general background and as to the circumstances leading to the offending.

23. I do not entirely accept Dr Lennings’ view that the offender was taken advantage of by the man, although I do accept that she found herself in an extremely difficult situation and that it was her desperate financial and parental situation which led to her engaging in the offences.

24. Dr Lennings supported his view of the offender as being introverted, naïve and innocent by noting that when he spoke to her she had no knowledge that she could access the child support system in Australia so as to force the father of her child to provide financial support and have the child registered on his Medicare card, nor was she aware of the Vietnamese Welfare Association which might have been able to assist her financially or in accessing other government support.

25. Dr Lennings concluded that the offender’s naivety and general innocence and unfamiliarity with Australian customs, law and conditions appeared to have coalesced into a perfect storm in which the offender was easily inveigled to become involved in the criminal enterprise.

26. I largely accept this conclusion and it is consistent with the rather fragile and naïve woman the offender appeared to be when she gave evidence on the sentence hearing.

27. Dr Lennings expressed the view that the offender displays no obvious criminogenic factors, is not impulsive, has no severe major mental health issues and presents as essentially pro-social.

28. He concluded that the offender would find any gaol term an extremely aversive situation and much more so than the usual person. He reached this conclusion based on his assessment of the offender as a naïve and somewhat vulnerable and introverted person as well as her reports of her reaction to the brutality and volatility she experienced during her eight days in prison prior to being given bail.

29. I accept these unchallenged opinions of Dr Lennings and they are consistent with my own impression of the offender based on my observation of her in court.

30. The offender expressed extreme regret and remorse and frankly admitted that she committed the offence because she needed the money. In her evidence she said, “I needed money so I only thought about what was good for me.”

31. She said she pretended to live at the house and stayed two to three days a week. She said she knew her actions were wrong but did not know it was “that serious” and that she now feels very ashamed that she has done something harmful to the community. She said she will never commit similar offences in the future, has learnt about drugs since her arrest, and will do everything in her capacity to avoid them in the future.

32. She gave evidence that she has been successful in obtaining a court order establishing the identity of the father of her child. She explained, however, that the father has not sought contact with the child and has made only minimal child support payments. She said there is no-one who can care for her son if she is sentenced to fulltime imprisonment because her friends who have looked after him in the past could only do so for a day or two. She fears therefore that if she is imprisoned her son will be placed into the care of the Department of Family and Community Services.

33. The offender was 22 years old at the time of the offending and is now 23. While she is not so young as to classify strictly as a youthful offender with the focus on rehabilitation which that factor normally attracts, her relative youth is something which points to some degree towards punishment being focused to some extent on rehabilitation rather than denunciation and deterrence being the primary factors. She has no relevant criminal record.

34. The Court has the benefit of a sentencing assessment report which essentially confirms the history given by the offender to Dr Lennings. That report assesses the offender as being at a low risk of re-offending. Furthermore, the report assesses the offender as suitable to undertake community service work and that Community Corrections can provide her with up to 21 hours of such work per month.

35. This case presents a difficult sentencing exercise. The legislature has made it clear that it regards the offence of cultivate a large commercial quantity as serious, as is demonstrated by the maximum penalty and the standard non parole period.

36. I have had regard to those matters as guideposts as the law requires.

37. I have also taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 including the need to deter the offender and others, the need to denounce the conduct and provide adequate punishment which recognises the harm that drugs do to the community.

38. I have also taken into account the desirability of rehabilitation and all of the objective and subjective factors that arise in this case.

39. In written submissions the Crown contended that no penalty other than full-time imprisonment was appropriate. However in oral submissions the Crown quite fairly conceded that this is a borderline case and that I would not be committing error if any term of imprisonment was to be served by an intensive correction order.

40. Queen’s Counsel for the offender urged that in the circumstances of this case an intensive correction order is an available and suitable outcome. In support of this submission he placed significant weight on the fact that the offender is the sole carer of her two year old son.

41. To my mind the offender’s responsibilities for her young son and the undisputed lack of alternatives for his care and upbringing if the offender is to serve full-time custody are of great significance in the sentencing exercise. In this regard there has been no challenge to the opinions expressed by Dr Lennings, an extremely experienced psychologist in matters relating to the welfare of children.

42. Dr Lennings concluded that the offender is the only significant attachment figure for her son. He expressed the view that the impact upon the child if the offender is imprisoned will be severe and potentially “dire” and that it may lead to the permanent loss of the relationship between mother and child.

43. Given the critical developmental age of the offender’s son, the adverse consequences to him if separated from his mother for any significant period of time, would, in my opinion, be extreme. This is consistent with Dr Lennings’ view who said it would be a “terrible” outcome if the offender’s son had to be fostered out and that it may lead to long-term psychological and behavioural problems for him.

44. During the sentencing hearing the Court raised with counsel the question of whether, if a sentence of full-time custody was to be served, that custody could be served in a correctional facility that would allow the offender’s child to stay and be cared for by her. Neither the Crown nor counsel for the offender were aware of the availability of any such facility in this case. I approached the sentencing exercise therefore on the assumption that a full-time custodial sentence is likely to have the effect of separating the child from his mother and, given the unavailability of alternative carers, that he would, in all probability, be taken into State care.

45. I note that today there was tendered and admitted into evidence an affidavit of a Ms Khurana, sworn 30 May 2019, which provides evidence concerning recent efforts to obtain an Australian passport for the offender’s son, Louis Pham, born on 11 May 2017. The effect of that evidence is that because the natural father of the child, who I note has expressed no support or interest whatsoever in the child, has refused consent to the child being granted a passport, the Minister has exercised a discretion to refuse to issue a passport for Louis. The consequence therefore is that if a passport is to be sought for him, those efforts would need to be pursued by an application for a court order.

46. The effect overall of that evidence appears to be that there is considerable uncertainty as to whether the child would be granted a passport to leave Australia and potentially live with relatives in Vietnam should the offender be sentenced to a period of full-time imprisonment.

47. I note also that there is no evidence before me suggesting that there is any form of current relationship between Louis and any of his relatives in Vietnam in any event.

48. The effect of that evidence therefore seems to me to be that there remains considerable doubt and concern as to what would happen with Louis’ care should his mother be imprisoned on a full-time basis and the evidence does not remove the concern that I have already expressed that a period of full-time custody carries with it the likelihood, or at least considerable risk, that the child would be assumed into State care.

49. Having regard to those matters I have formed the view that this matter falls into that rare category of case where the impact on a family member can be regarded as exceptional and beyond the usual case where imprisonment has a very significant impact on an offender’s family. In my view, the facts in this case justify a substantial reduction in the sentence that would otherwise be imposed.

50. I have had regard to the objective seriousness of the offences and to the need for adequate punishment to be administered for an offence of this kind.

51. I have also had regard to the subjective factors to which I have referred, the early guilty plea, the offender’s cooperation with police, her relatively young age and the fact that she was in custody for eight days prior to being granted bail, an experience which she found to be confronting and traumatic.

52. In sentencing for the primary offence, I also take into account the offence of supply cannabis which was placed on a form 1.

53. I convict the offender and I impose a sentence of imprisonment of two years. I have regard, however, to s 66 of the Crimes (Sentencing Procedure) Act which requires that community safety be the paramount consideration when the Court is giving consideration to whether to make an intensive correction order in relation to an offender.

54. In the circumstances, I order, pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act that the sentence of imprisonment be served by way of intensive correction order. I note that the standard conditions which attach to such an order will apply, namely that the offender not commit any offence, and, secondly, that she submit to any supervision if required by a Community Corrections officer.

55. In addition, I order that the offender perform 500 hours community service. The offender is to report to the Fairfield Community Corrections office within seven days.

56. In relation to the two offences on the s 166 certificate, those being an offence of use, consume or waste electricity without authority, and secondly an offence of deal with proceeds of crime, s 10A of Crimes (Sentencing Procedure) Act, the offender is convicted of those offences but I impose no further penalty.

57. I make the Consent Order in relation to the forfeiture of $480, being proceeds of crime.

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Decision last updated: 28 June 2019