Mr Manh Tung Pham is for sentence today in relation to an offence of cultivate large commercial quantity of cannabis. The maximum penalty for that offence is 20 years' imprisonment, and a standard non parole period of ten years is specified. The maximum penalty and standard non parole period are important guideposts for me to have regard to in the sentencing exercise. The offender pleaded guilty at an early stage and he is entitled to a 25% discount on the sentence that would otherwise have been imposed. Before I proceed to the facts, I also note that the offender asks that in sentencing him for the cultivate offence I take into account on a Form 1 document a further offence of supply commercial quantity of cannabis.
[2]
FACTS
The facts I will now recite. The offence relates to a five bedroom two storey house at Greville Street, Chatswood which was being used for the cultivation of cannabis plants. The house had been leased from 1 April 2019 for six months in the name of another person who had also paid a bond of $4,800 for the property. The electricity account was also connected in the name of that other person. There is no evidence that this offender was involved in the leasing of the property. In June 2019 police received information that the house was being used for the purposes of the indoor cultivation of cannabis. As a result, a police investigation commenced. On 19 June 2019 police conducted surveillance at the house. At about 7.20pm that night they saw the offender park his Toyota Camry in the driveway. They saw him use a key to open the driveway gate and to then drive into the property and walk towards the house.
Just over one month later, on 24 July 2019, police again saw the offender's Toyota Camry in the driveway and saw the offender open the gate and park inside the property. After this they saw him move garbage bins from the house onto the street before then re-entering the house. About a week later, on 31 July 2019, police commenced surveillance at the house again. At about 6.30pm that night police saw the offender driving the Toyota Camry. He was seen to drive into Greville Street and then travel along an adjoining street where he stopped opposite the house and then drove into the entry. He was seen to use a key to open the locked gate and then drive into the property where he parked. At about 6.45pm police saw the offender exit the house and move the council bins from the house to the kerb, after which he walked back inside, closing the gate behind him.
At about 7.05pm that night police attended the house in order to execute a search warrant. After climbing a fence beside the gate, police moved towards the front door of the house, shouting loudly "police, search warrant". The front door was then forced open. Upon hearing or seeing the police, the offender ran from the rear door of the garage into the backyard. The police officer yelled to him to get on the ground, but he continued to run. He was chased by a police officer who continued to shout "stop, police" before eventually taking hold of the offender and arresting him. However, the offender continued to resist by thrashing his arms and body on the ground.
At the time of his arrest the offender was wearing blue rubber gloves on his hands, and had another pair of gloves in his pocket. His Toyota Camry was found parked in the garage. Inside the house, police located a sophisticated hydroponic cannabis cultivation system. This consisted of complex lighting with cannabis plants growing in black pots in seven separate rooms. There were lampshades hanging from the ceilings which were turned on, as well as exhaust fans in operation, and it was noted that the glass in windows and doors had been covered. An electrical bypass was also identified by a representative from Energy Australia. This allowed electricity to be used inside the property without being recorded on the meter. This electricity was being used to power the lights, filters and electrical equipment being used to cultivate the cannabis plants. I note that there is no evidence that the offender was himself involved in setting up the electrical bypass.
In all, police located 436 cannabis plants in various stages of maturity. Of these 436 plants, 107 were seedlings found in a tray. Police also found heat lamps and globes, light fittings and bags of fertiliser. They also seized a toothbrush, water bottle, jeans, and gloves.
The Agreed Facts also set out the various items found in a number of areas in the house. In room A, as described in the facts, police found 64 growing plants of various sizes, as well as lights with large metal lampshades suspended from the ceiling. The room also contained plastic sheeting on the floor, large air filters suspended from the ceiling connected to ducting, bags of potting mix and various electrical cords running from switchboards to lights, filters and electrical transformers. In room B police found 72 growing plants. In room E, which was the laundry, police found 107 seedling plants in individual seedling balls in a propagation tray, as well as a fluorescent light, fertiliser, transformers and potting mix. In room F police found an unmade bed that appeared to have been slept in, as well as clothes on the bed, including jeans that the offender had earlier been seen wearing. They also found a chest of drawers, a pair of cotton gloves which contained the offender's DNA, keys to the house and the Toyota Camry, and a wallet which contained the offender's driver's licence, and about $270 in cash.
In room G, which was a downstairs bathroom, police found a toothbrush and an empty water bottle which both were found to contain the offender's DNA. In room J, upstairs, police found 20 growing plants in large pots under lights and lightshades. In room K, another room upstairs, they found 16 plants in large plastic pots, again under lights and shades. In room L, a third bedroom upstairs, they found 129 plants in pots under lights and shades, and in room M, the main bedroom upstairs, they found 28 plants in large pots under lights and shades, as well as a pair of latex gloves which contained the offender's DNA. In the kitchen/living room police found various cooking implements, as well as food and a pink bra on a sofa. On the landing at the top of the stairs police located a number of black garbage bags which were found to contain a total of 32.456 kilograms of cannabis leaf. In the upstairs hallway police located a number of electrical transformers, and in a bathroom upstairs police noted there was heavy green staining in the bathtub and that black plastic irrigation pipes ran from plastic containers of growing fertiliser.
A fixed timber ladder led to an open manhole in the ceiling of a large walk in cupboard. In the roof space police found a large number of other transformers, still in boxes, as well as mercury vapour light globes. In the offender's Toyota Camry in the garage police found registration papers in his name.
Police also noted in relation to the various growing plants the following matters. Firstly, that the larger plants were supported by bamboo stakes, that electrical cords ran from holes in the ceiling to lights and air filters, and that plastic irrigation pipes ran into some of the pots. Police also noted that false gyprock walls had been constructed over windows in the house, that there was black ducting on the ground for ventilation, that large air filters were present throughout the house, and that in a number of rooms the floors and windows had been lined with plastic sheeting. Police also found quantities of fertiliser and a number of black garbage bags. In the course of the police search an employee of Ausgrid attended and formed a view that an illegal bypass or "tap-off" of electricity had been set up.
In all, 436 cannabis sativa plants, and a total of 77 lampshades and 23 transformers were found in the house. It is an agreed fact that the offender was the caretaker of the property and was watering and taking care of the plants found inside.
[3]
OBJECTIVE SERIOUSNESS
The maximum penalty is a matter which indicates that the offence is a very serious one. The standard non parole period also confirms that. However, in determining the objective seriousness of the offending I must assess the offender's role, that is, what he did. The Agreed Facts describe the offender as a caretaker. He was involved, as the facts indicate, in looking after the plants and looking after the house. Clearly, he was in a position of considerable trust. While the court has not been informed of the precise value of the drugs being grown and the equipment used, there is no doubt that they were of considerable value. Furthermore, the offender's criminality was not a momentary thing; he was seen at the premises on three occasions. He also admitted to the psychologist that prepared a report that he had been at the house for about a month. The offender told the author of the Sentencing Assessment Report and also the psychologist that he had engaged in the offending due to a debt owed and that that debt had arisen from the need to borrow money because of a heart condition said to be suffered by his wife in Vietnam. It is difficult to place a great deal of weight upon this claim given that the assertions are not supported by evidence on oath.
However, I note also that in the psychological report the offender admitted that he had agreed to be involved for a period of about three months.
Clearly, he engaged in this criminal conduct for the purposes of some sort of financial gain. That financial gain was either the forgiving of a debt of some kind, or alternatively, being paid some amount of money. I am unable to reach any definite conclusion about either of those matters given the evidence that is before me. However, I take into account that it is usually the case with drug type offences that they are ordinarily engaged in for the purposes of some kind of financial gain. I do not therefore treat this as an aggravating feature.
Clearly the hydroponic set up was a sophisticated one. However, I accept that there is no evidence that this offender was involved in the fit out, the financing, or in the sale of any drugs that were cultivated. Nevertheless, he carried out a very important role, because without persons prepared to engage in activity of this kind, drug syndicates could not operate, or would find it much more difficult to operate.
Having regard to the agreed facts and my findings as to his role, namely that he was effectively a caretaker of the house and of the plants, I accept the Crown submission that the objective seriousness lies somewhere below the midrange and towards the lower range of objective seriousness. In reaching that view I have not taken into account the assertion about being indebted to a loan shark due to his wife's illness. I consider that to be a matter more relevant to the subjective circumstances of the offender. I note that it was not argued by the Crown that there are any aggravating factors that I should take into account on sentence.
[4]
SUBJECTIVE MATTERS
The offender's personal circumstances have been placed before the court by means of a Sentencing Assessment Report and a psychological report. He is 38 years of age and came to Australia from Vietnam in January 2019. The psychological report indicates a relatively stable upbringing in Vietnam, although the offender's parents died at relatively young ages. The offender is in a long term relationship with his wife, and they have two children who are now teenagers. According to the history given to the psychologist, the offender's wife needed to undergo heart surgery in March 2019 due to a leaking valve.
As I noted earlier, the offender has not given evidence on oath in these proceedings and so while I have regard to that history, the weight that I can place upon it is somewhat reduced. In particular, his claim that he engaged in this offending conduct due to a loan acquired by reason of his need for money for his wife's operation is a matter to which I give reduced weight to. The offender has a son who is apparently still living and studying in Australia, and who apparently still supports him in an emotional sense by reason of his appearance at court today. The psychological report indicates that the offender has no significant history of any psychological or psychiatric problems. It also assesses him as being a low risk of re offending. I note that the offender is currently an unlawful non-citizen and so is likely to be deported at the conclusion of any non-parole period that I set. In accordance with authority, however, that is not a matter to which I have regard in determining the sentence.
According to the psychologist the offender has expressed some remorse for his offending. Although he has not given evidence on oath, I nonetheless accept that there is therefore some evidence of remorse.
He is a person with no previous offences on his record. He is, as I have noted already, aged 38 and comes from, apparently, a pro social family who still support him. Having regard to those matters, and his apparent acceptance of responsibility for his offending, I consider that his prospects of rehabilitation are reasonable. As I have noted, I have been asked to take into account in sentencing him a further offence on a Form 1 document. That offence involves a supply of commercial quantity of cannabis, which of course relates to the quantity of cannabis leaf that was found in the house. In relation to that cannabis, I note, and as the Crown said, that it is difficult to determine the quality of that drug and its readiness for sale given the reference in the facts to it being apparently in a decomposing state. Although that offence does not aggravate the primary offence, it is a matter that should in my view lead to some increase in the sentence for the primary offence of cultivation. That is necessary because of the need to give greater weight to the need for personal deterrence and the entitlement of the community to extract retribution for serious offences.
[5]
DETERMINATION
In determining the appropriate sentence in this case, I have had regard to the principles and purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, in particular, the need for general deterrence and personal deterrence. The courts of this State and this country have said many times over many years that there is a very significant need for sentences in drug matters to reflect strongly the need for general deterrence.
I am satisfied that the s 5 threshold has been crossed, that is, that a term of fulltime custody is the only appropriate penalty.
I have had regard to the sentencing statistics that have been placed before me, subject to the limitations on such statistics. I have also had regard to a number of previous cases that have been placed before me by the parties which include Nguyen v The Queen [2019] NSWCCA 131, Phan v The Queen [2020] NSWCCA 168, R v Zanker [2016] NSWSC 1653, and a further case that I have myself located called Le v R [2019] NSWCCA 181. And I have also had regard to a number of other cases, but subject to the important factor that each case very much depends upon its particular circumstances.
In relation to the offence of cultivate a large commercial quantity of cannabis I have taken into account the matter on the Form 1 document, and having done so, I impose a head sentence of three years ten months. I find special circumstances for varying the ratio between non parole period and head sentence. I make that finding based upon this being the first period in custody for Mr Pham, as well as his English difficulties which will make it more difficult for him in custody, as well as the fact that his term of imprisonment is largely being served during the current restrictions associated with the
COVID 19 pandemic. I impose a non-parole period of two years. Each of those periods, that is the head sentence and the non parole period, will date from 31 July 2019. The head sentence will expire on 30 May 2023. The non-parole period will expire on 30 July 2021.
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Decision last updated: 10 March 2021