R v Phung, Thi
[2013] VCC 602
•30 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02342
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THI PHUNG |
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JUDGE: | Chief Judge | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2013 | |
DATE OF SENTENCE: | 30 May 2013 | |
CASE MAY BE CITED AS: | R v Phung, Thi | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 602 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Crop sitter - unlawful non-citizen - cultivating a narcotic plant in not less than a commercial quantity – lack of prior convictions – no commercial interest – deportation.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P O’Halloran | Office of Public Prosecutions |
| For the Accused | Ms D McCann | Victoria Legal Aid |
HIS HONOUR:
1 Thi Phung, please remain seated. You have pleaded guilty to one charge of cultivating a narcotic plant in not less than a commercial quantity and one charge of dealing with proceeds of crime the maximum penalties for which are 25 years and 15 years imprisonment respectively. The offending occurred between 7 September 2012 and 2 October 2012. You have no prior convictions.
2 The facts of the case were opened by Mr O’Halloran who appeared to prosecute and are contained in the Summary of Prosecution Opening upon Plea, Exhibit A.
3 In brief summary, on 2 October 2012 members of the Victoria Police Drug Taskforce executed a search warrant at a property in Deer Park where you were in attendance. You were arrested at the property and police located cannabis plants in a number of rooms in the house growing under lights and hydroponic watering systems. In total 116 Cannabis plants weighing 62.17 kilograms were seized from the premises. Police also seized numerous items associated with cannabis cultivation. The electricity supply had been illegally bypassed. Also located at the property was your wallet which contained $2360.00, which you stated to police was payment you had received for looking after the cannabis. When you were interviewed you made admissions to the effect that you were to be paid $5000 a month for tending the plants and would receive an extra $1000 if you watered the plants and that you had been looking after them for about 3 and half weeks and that you had just been paid the week previously and that you knew the plants were cannabis.
4 You were a lawful non-citizen at the time of the offending in possession of a Temporary Partner Visa and have applied for a spouse visa which has not yet been approved.
5 The prosecution conceded that your role was that of what is commonly known as a “crop-sitter”, in that you were not involved with the setting up of the crop and did not have a commercial interest in it beyond minding the crop for reward.
6 In response to my query about the appropriate range applicable in your case, the prosecutor said that a head sentence of somewhere between 14-18 months with a non-parole period of between 9-12 months was appropriate.
7 Tendered on the Plea were written defence submissions, exhibit 1. Your husband with whom you have reconciled was also in court to support you.
8 In regards to your personal circumstances, you are 25 years old, born in Vietnam and travelled to Australia in 2008 to study English and hairdressing. In 2009 you met your husband, and were married in 2010 in Vietnam. You gave birth to your only son in 2011 who is now around 18 months old.
9 In relation to the circumstances leading up to the offending, Ms McCann submitted that in early September 2012 you had an argument with your husband who arrived home drunk and assaulted you. In retribution you withdrew $3000 of his savings and gambled and lost them at Crown Casino. There you were approached by a Vietnamese man who offered you $1000 in chips and then more money to recover your losses. In order to met this debt you agreed to work for this man who would pay you $5000, $3000 of which would cover your debt. You were instructed to attend at the premises in question between 8 and 10 pm and return at 9 am and were shown how to water and feed the plants. You cultivated the cannabis for about 3 and half weeks and returned the $3000 to your husband who used the money to travel to India with your son.
10 On your behalf, Ms McCann submitted that I take into account the following matters by way of mitigation, that:
(1) Your offending is at the lower end of spectrum and you made admissions to the police when interviewed;
(2) You have no prior convictions;
(3) You pleaded guilty at any early stage;
(4) You do not have a drug or gambling addiction and are not a gambler or a risk taker;
(5) Your feel great remorse for your offending and anxiety particularly in relation to the effect it has had and will have on your family;
(6) You have no subsequent or outstanding offending;
(7) You present as a low risk of re-offending; and
(8) You found the involvement of police and the justice system frightening and stressful and that this alone has had a deterrent effect upon you.
11 In relation to your immigration status Ms McCann submitted that any sentence of 12 months imprisonment or more would result in you failing the character test and your visa might be cancelled and you may be returned to Vietnam. As for your young son, there are personal hardship issues having regard to the fact that your husband works full time and is unable to care for him. Ms McCann said that it will take about 2 weeks for arrangements to be put in place to enable your son to be with you in custody.
12 Ms McCann submitted that a sentence of imprisonment which was wholly suspended would be appropriate in all the circumstances of this case.
13 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
14 The cultivation of cannabis in commercial quantities is a serious offence carrying a maximum penalty of 25 years imprisonment. Production of cannabis hydroponically in domestic premises has become prevalent and once the electricity supply has been by-passed it is difficult to detect. General deterrence and community protection must therefore play a significant role in the sentencing process.
15 That is so notwithstanding as is the case here that you are only involved at a menial level in what has often been described as “crop sitting”. I accept that you did not have any involvement in the initial setting up of the crop and did not expect any substantial reward from its cultivation. I of course only sentence you for your involvement and not that of others but it is clear that crop sitters such as yourself constitute a necessary element to a successful undertaking. Without people such as yourself the enterprise would fail.
16 There does not seem to be any dispute about the fact that you entered into this arrangement motivated by profit. I do however find the explanation for your involvement a little implausible. It is strange that a person who is described as “not a gambler or a risk taker” would choose to take revenge on an abusive husband by gambling away his savings. The story of the stranger/financier operating at the Crown Casino who then secures repayment of a loan by offering work in a grow house is commonly told in this court and should not for that reason alone be dismissed as unlikely. In the end it is of little significance. The means chosen to repay a debt were yours and if illegality is to be the source, the courts will and in fact must send a message to the community as whole that little if any special treatment will be given to those who choose to settle financial arrangements, whether arising from gambling or otherwise, buy resorting to the commercial cultivation of cannabis.
17 I take into account your relatively early plea of guilty. It was not as early as it might have been and I accept that you had difficulty coming to grips with the reality of your situation and were concerned with your immigration status and the well being of your child. I also take into your apparent remorse, your lack of prior convictions and your good prospects for rehabilitation as well as the fact that you were cooperative with police and gave them some information.
18 It is clear that a sentencing court should have no regard to the impact which a sentence of imprisonment will have upon the members of a prisoner’s family unless there are exceptional circumstances. That is not to say that I do not take into account the hardship that I am sure you will experience serving a sentence until such time as you are re-united with your son and even thereafter. In my view the circumstances in which you now find yourself are such as to warrant compassion in the sentencing process, and I will moderate your sentence accordingly.
19 Would you please stand Ms Phung.
20 You are convicted and sentenced as follows:
21 On charge 1 of cultivate cannabis in a commercial quantity to 15 months imprisonment
22 On charge 2 of deal with proceeds of crime to 3 months imprisonment. I direct that these sentences be served concurrently making a total effective sentence of 15 months imprisonment and I direct that you serve a minimum of 8 months before being eligible for parole.
23 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 20 months imprisonment with a non parole period of 14 months.
24 I make the disposal and forfeiture order noting that they are by consent.
25 I make an order pursuant to s.464ZF of the Crimes Act 1958. I do so because of the seriousness of the circumstances of the offending. I am obliged to tell you that if you resist the taking of the sample, reasonable force may be used. Do you understand that?
26 OFFENDER: Yes:
27 HIS HONOUR: Very well. Is there any pre-sentence detention?
28 MR O'HALLORAN: No, Your Honour. Can I - I just may have misheard, Your Honour. At the beginning of your reasons for sentence, you have indicated that the execution of the search warrant was in 2010.
29 HIS HONOUR: I did say that, but it is obviously wrong.
30 MR O'HALLORAN: 2012, Your Honour.
31 HIS HONOUR: It is 2012? Thank you. I looked at it at the time, checked my notes, looked at the 2010 at paragraph 3 of your outline and got confused.
32 Yes, whilst I am in court I will - it is all right if the family speaks to her?
33 MS McCANN: Yes.
34 HIS HONOUR: Yes.
35 MS McCANN: Your Honour, for the sake of completeness, in terms of custody management issues, and I thought it would be a first time in custody.
36 HIS HONOUR: Do you want me to note that she has a child?
37 MS McCANN: Yes, and that she has a child.
38 HIS HONOUR: I will note that in the custody management issues.
39 MS McCANN: She is aware and so are the authorities at Dame Phyllis Frost that she may be arriving and needing to make an application in respect of that.
40 HIS HONOUR: Very well, thank you.
41 OFFENDER: Can um, can I bring my son who is outside into the courtroom?
42 HIS HONOUR: I think so, yes, please.
43 MS McCANN: Your Honour, she's obliged to bring the child to court, but for the reasons that I've outlined in my plea.
44 HIS HONOUR: It doesn't matter, it is appropriate that she is able to say goodbye to the child.
45 MS McCANN: Yes.
46 HIS HONOUR: Thank you. Thank you Madam Interpreter. Yes, remove the prisoner please. Adjourn please sine die.
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