Pham v R

Judgment 1McCLELLAN CJ at CL : I agree with Hislop J. 2HISLOP J : The applicant pleaded guilty to a charge pursuant to the Drug Misuse and Trafficking Act 1985, s23(2)(a), that on 14May 2008 at Blair Athol, New South Wales, he did cultivate a number of prohibited plants by enhanced indoor means, to wit 305 cannabis plants, which was not less than the large commercial quantity applicable to that prohibited plant. The maximum penalty for the offence was imprisonment for 20years. A standard non parole period of 10years imprisonment was applicable. 3On 10September 2009 the applicant was sentenced to imprisonment in respect of the offence for a non parole period of five years to commence on 14May 2008 and to expire on 13May 2013 with a balance of term of three years to commence on 14May 2013 and expire on 13May 2016. 4His Honour dealt, under s166 of the Criminal Procedure Act 1986, with a related offence of possess prohibited drug (cannabis leaf). The applicant pleaded guilty to this charge and was convicted. No other penalty was imposed (s10A Crimes (Sentencing Procedure) Act 1999). 5The applicant has sought leave to appeal against sentence on the grounds that: "1. The sentence is excessive in the circumstances. 2. The court erred in determining the role of the applicant in the commission of the offence on a mistaken view of the evidence. 3. The court erred in finding that the applicant was aware that his wife was the owner of the premises on a mistaken view of the evidence. 4. The court erred in finding that the applicant was motivated by greed without due regard to the evidence. 5. The court erred in determining the applicant gave false evidence during the sentence proceedings. 6. The sentence proceedings miscarried by virtue of the conduct of the legal representative for the prosecution." 6Certain facts were agreed in writing. Those facts, in short, were that at about 7.20am on 14May 2008 the police attended premises at Blair Athol and spoke to the applicant who was standing outside those premises. The applicant and the police entered the premises in which was located a sophisticated hydroponic set-up. The applicant told police he looked after the marijuana plants, watering them, and was paid $1000 by "Elton". The applicant was arrested and conveyed to the police station where he declined to participate in an electronically recorded interview. A search warrant was obtained and executed later that morning. The search revealed six rooms containing a total of 305cannabis plants and hydroponic equipment used in cultivating those plants. It also revealed the applicant's fingerprints on lamp shades, a transformer and globes being part of the hydroponic equipment. The applicant's motor vehicle was parked in front of the premises. The vehicle was searched and police located several personal letters in the name of the applicant and other documentation. 7The applicant gave evidence at the sentencing hearing. His Honour summarised that evidence, in part, as follows: "The offender gave evidence that he became involved in the present offence as a result of meeting a person, whom he only knew as Elton, in approximately January 2008 at Cabramatta when he was out buying food. His evidence was that he had first met the person Elton in a refugee camp in Hong Kong and did not see him again until he met him in approximately January 2008 in Cabramatta. His evidence was that when he met Elton on this occasion in Cabramatta he told Elton about his financial situation and his evidence was that Elton said that he would help him. His evidence was that Elton asked if he had been back to Vietnam and he replied that he had not. He also said he told Elton that he and his wife had separated. He stated that Elton asked for his address and later came to visit him a couple of times. His evidence was that Elton became aware of his situation and offered to lend him $5000 so that he could go back to Vietnam. His evidence was that he told Elton that it would be difficult for him to repay the money and Elton indicated that it was not a problem. His evidence was that in early February 2008 he borrowed $5000 from Elton in order to visit his daughter in Vietnam. He travelled to Vietnam on 25February 2008 and returned on 9March 2008. His evidence was that after he returned to Australia he met Elton and Elton told him that if he could not repay the money that he had loaned him, the offender had to work for him. His evidence was that he told Elton that he could cut grass and repay the debt. His evidence was that Elton did not agree with that. His evidence was that he asked Elton what sort of work he wanted him to do. His evidence was that Elton then took him to the property at [Blair Athol] where the offender said that he saw a number of plants that were already very high. His evidence was that he told Elton that it was illegal work and that he could not do this work. His evidence was that Elton said that he had to do that work and, if anything happened to the property, he would hold the offender responsible and he also said that Elton made some threats at the time, so that he had no choice as he was thinking of his family and children. He said that as a result he agreed to work for Elton." 8The applicant was born in 1953. He was married to Dung Thi Pham. The Blair Athol premises were owned by his wife. 9His Honour concluded: "Having had the opportunity of observing the offender give evidence in these proceedings and even after making due allowance for the use of an interpreter, the offender presented as a most unimpressive witness and a witness totally lacking in credibility. On a number of occasions the offender gave evidence that was inconsistent with evidence he had given on a prior occasion during aborted sentencing proceedings, which inconsistencies related to significant matters, and there were many aspects of his evidence which were simply implausible."