DPP v Phan [2021] VCC 1912 (25 November 2021)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

CUONG PHAN

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2021
DATE OF SENTENCE:	25 November 2021
CASE MAY BE CITED AS:	DPP v Phan
MEDIUM NEUTRAL CITATION:	[2021] VCC 1912

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Zammit	Office of Public Prosecutions

For the Accused	Mr D. De Witt	Michael J. Gleeson & Associates

1 Cuong Phan, you have pleaded guilty to an offence of cultivation of narcotic plants - commercial quantity, that being cannabis, and an offence of theft, that being the electricity that was used to grow the narcotic plants.

2 The offence of cultivation of narcotic plants carries a maximum term of imprisonment of 25 years. The maximum term of imprisonment for theft is ten years.

3 Both offences occurred on 18 January of 2021 and are charged as having occurred just on that one day. The prosecution filed and read to the court a summary of prosecution opening for plea dated 12 November 2021. I am not going to read that again, but I summarise it here.

4 In mid-October 2020, police were notified by the electricity provider at an address in Winton Street, Burwood, that high voltage usage of the electricity at the substation had been occurring, although there had been a lower meter reading. That suggested that a cannabis crop was being grown at the premises.

5 Police did a drive-by of the premises on 14 January 2021 and saw two vehicles parked outside, one registered to a Quynh Pham and the other registered to you, Mr Phan.

6 The United Energy account holder for that address was you, Mr Phan. On 18 January 2021 at 8 am, police executed a search warrant at those premises. When they knocked on the door, you answered, and at the time police noticed the smell of cannabis. When asked if there was anything inside the premises, you told the police, 'Plants.' Police entered the premises. Ms Pham was present, and it later transpired that she was your girlfriend.

7 During the search of the property, police located a total of 104 cannabis plants growing in six rooms of the house. The total weight of the cannabis plants was 99.8 kilograms. I note that the minimum commercial quantity of cannabis is 25 kilograms, so it is almost four times the minimum level for a commercial quantity.

8 Each of the six rooms in the house contained light shades, globes, transformers and a watering system. They were all in operation. A bag containing 1.59 kilograms of cannabis was also located.

9 In addition to the 104 cannabis plants police located a leaf-shredder, $1425 in Ms Pham's purse, two wallets and two mobile phones.

10 A representative of the United Energy electricity supplier attended the premises and confirmed that the electricity was being bypassed, using an illegal electricity bypass in the roof cavity. That represents the theft of electricity charge.

11 Your passport was found in the vehicle belonging to Ms Pham. You were transported to the Forest Hill Police Station where you were interviewed. During the interview, you indicated that you would let your lawyer deal with questions that were asked in relation to the allegations.

12 Further inquiries revealed that you had signed a residential tenancy for that address on 22 October 2019, some 15 months prior to the police raid. Apparently the owner of the property had previously met you and your girlfriend at the property. You had been paying the rent, or the rent had been paid on the property, from 22 October 2019 by direct transfer of $2800 per month to the owner's bank account.

13 Turning to matters personal to you, your counsel provided me with a written outline of submissions dated 16 November 2021, also medical reports and translations of those reports from the Vietnamese language concerning the medical treatment of your mother during the period from about 2013 through to the present day. They reveal that she had suffered from cervical cancer in 2013 for which she had been treated. She had surgery in 2015 with chemotherapy and seemed to have been recovering. But she was struck down with breast cancer in 2018 and has since had treatment for that but has been deteriorating. Those records bear out the matters put to me in that regard during the plea hearing.

14 In addition, I was supplied with three letters of reference: one from a friend, Anly Dang, dated 13 November 2021 who speaks well of you and your personal qualities; one from your younger brother dated 12 November 2021 where he speaks of your many responsibilities in Vietnam to your wife and children and to your parents; and a letter from a Truong Thien Le dated 14 November 2021 from an address in Tarneit - that reference also speaks well of your personal qualities and that you told the writer about your wife and two little children, about your poor family in Vietnam and about your mother's illness, which is causing you a great deal of stress.

15 In addition, I was supplied with four certificates from the Kangan Institute evidencing the fact that during your time on remand you have made good use of opportunities for education and obtaining further skills, which no doubt has contributed to the fact that you have been able to get a full-time job in the kitchen during your period in custody. You have thereby somewhat ameliorated the harsher conditions of your incarceration during the period on remand.

16 Your counsel developed the matters set out in his very helpful written submissions, stressing the connection with your family, which clearly is important to you, and the effect that your mother's illness has had upon you.

17 You seem to have come from a very poor background in Vietnam. You were born in June 1989 and grew up in Huế. You are now 32 years of age and you were 31 at the time of the offending conduct. You are the eldest of three children of the family. Your siblings are aged 30 and 22 and they reside with your parents in Vietnam.

18 It seems that economic circumstances drove you to leave Vietnam for Australia, arriving in December 2018 on a tourist visa. Whilst you were able to get some work as a chef, you found yourself in financial difficulties. By 22 October 2019, you had entered into a lease of the premises in which the offending took place.

19 You were living at those premises at the time of your arrest, and it is conceded by your counsel that the fact that you were the holder of the electricity account and were the tenant of the premises does aggravate your offending.

20 I accept entirely the submissions of your counsel that you were essentially a crop-sitter, subject to those aggravating features, that the offending occurred on one day, that you were motivated in large part by the difficult financial circumstances that you and your family were in, and that you had come to Australia in order to obtain not just a better life, but also to enable you to provide for your family back in Vietnam.

21 However you were, throughout the period between October 2019 and the date of your arrest, an illegal non-citizen, having over-stayed your visa.

22 I note that you have obviously done well in your education in Vietnam and were able to secure a place at a university in Thailand. You had completed three years of your degree when you were advised of your mother's most recent diagnosis and you left that course in order to return to Vietnam.

23 The offending is serious. The offence of cultivating a commercial quantity of cannabis is a Category 2 offence and requires a term of imprisonment unless exceptional circumstances are made out. No argument has been presented to that effect. But the offending was on a single day.

24 It is accepted by the prosecution that you were not responsible for setting up the bypass hydroponic operation, there is no evidence of any high financial interest or proprietary right in the cannabis crop, and despite the aggravating features of your being the tenant of the house and the holder of the electricity account, it is not suggested that you were to profit substantially from the sale of the cannabis crop.

25 However, the circumstances lead to only one conclusion: that you were participating in the offending for financial reward, and I have to approach the question of sentencing accordingly.

26 It is to your credit that you pleaded guilty. You pleaded guilty at an early opportunity and I give you full credit for that, particularly in these COVID times where there is undoubtedly a strong benefit for the community in persons not clogging up the courts with jury trials. The courts have underscored the need to mark the benefits of a plea, and particularly an early plea, with a substantial reduction in what otherwise might be an appropriate sentence.

27 You face inevitable deportation. I have not heard from anybody in the department to that effect, but I think it can reasonably be inferred that you will be deported back to Vietnam at the conclusion of your incarceration.

28 Your time in custody has been, and will continue to be, hard. Your counsel makes a very good case for a significant reduction in sentence for that reason. You do not have a good facility with English. No doubt it has improved during the time you have been in Australia, but your lack of English makes it much more difficult to navigate the prison system and reduces the number and nature of courses that you are able to attend whilst in custody.

29 You have no family and not many friends in Australia. You have not received any visits. Due to the cost of international calls in custody, you are allowed only one international call per week and you have been phoning your mother once a week, although you had been in the habit of phoning her on a daily basis, obviously most concerned about her health. The fact that she is in ill-health has been weighing heavily on you during your period of incarceration.

30 I accept that you are remorseful. I accept that you have been very concerned about the impact of your inability to help provide for your family and that all of that will weigh upon you during your time in custody.

31 The general conditions of your incarceration have also been affected by the COVID pandemic. There have been restrictions on the ability to be released from your cell and other restrictions which have made the time that you have spent in custody up to date more difficult, and there is no doubt that at least some of those restrictions will continue for the foreseeable future.

32 It is much to your credit that you have been able to take part in such courses as have been made available to you and that you have been able to secure your job as a chef within the prison system.

33 I accept also that you have very good prospects of rehabilitation. You have no prior convictions of any kind and this experience in custody will have taught you a stern lesson. You have put in an early plea. You have the ongoing support of your family. You have a proven employment history and your academic history would suggest that you have a bright future back in Vietnam. The offending did not involve any influence of drugs, gambling or a psychological disorder and I accept your counsel's submission that you have excellent prospects of rehabilitation in the light of all those factors.

34 That is just a very brief outline of many of the personal circumstances which are relevant to sentence. Your counsel's submissions are exhibited and are more substantial in the detail that is also relevant to your sentence.

35 The submission made on your behalf by your counsel was that, rather than imposing a sentence which involves a term of imprisonment with a head sentence and a non-parole period, I should impose a straight period of imprisonment which would not involve any order as to a non-parole period.

36 I think there is force in that submission. I have read the cases to which my attention was drawn by Mr De Witt that are precedents of this court in taking that approach. I think that the fact that there is no realistic prospect of you being ever able to benefit from a period on parole would suggest that it is a pointless exercise imposing a sentence which involves a period of imprisonment and a period of parole, provided it is justified to impose a sentence that is of less than two years. I have had to wrestle with that somewhat, but it seems to me that given all the mitigating factors, particularly the COVID environment in which we are and the fact that this was a charge which involved your offending on one day, and despite the aggravating features to which I have referred, I think it is possible to impose a sentence that enables me to accede to your counsel's submission.

37 Taking all those matters into account, Cuong Phan, on Charge 1 you are convicted and sentenced to imprisonment for 17 months.

38 On Charge 2, you are convicted and sentenced to imprisonment for three months.

39 I order that one month of the sentence on Charge 2 be served cumulatively upon the sentence on Charge 1.

41 I declare that 311 days pre-sentence detention is time to be reckoned as served on the sentence that I have imposed and deducted from that sentence administratively. I order that these matters be noted in the records of the court.

42 Pursuant to s6AAA of the Sentencing Act, but for your pleas of guilty, I would have sentenced you to imprisonment for three years with a non-parole period of two years.

County Court of Victoria

DPP v Phan [2021] VCC 1912 (25 November 2021)