IN THE COUNTY COURT OF VICTORIA	 Revised
Not Restricted
Suitable for Publication 	
AT Melbourne
CRIMINAL DIVISION
CR-22-00994

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
HIEN LAM		

---

JUDGE:	HER HONOUR JUDGE CANNON 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	17 November 2022	
DATE OF SENTENCE:	5 December 2022	
CASE MAY BE CITED AS:	DPP v Lam	
MEDIUM NEUTRAL CITATION:	[2023] VCC 2182		

REASONS FOR SENTENCE
Subject:		CRIMINAL LAW
Catchwords: 		Sentence – Plea of guilty – Cultivate narcotic plant (1 day duration) – No criminal history – Limited history of drug abuse – Motivated by financial gain
Legislation:		Sentencing Act 1991 (Vic)
Cases:		R v Nguyen [2021] VSCA 346; Boulton v The Queen (2014) 46 VR 308;   DPP v Apostolopoulos [2016] VSCA 201; Worboyes [2021] VSCA 169
Sentence:		Convicted and sentenced to Community Corrections Order of 3 years’ duration with conditions of supervision and 150 hours of unpaid community work – s.6AAA Sentencing Act 1991 declaration

APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms R. Fleming	Solicitor for Public Prosecutions	
			
For the Accused	Mr R. Reville	Richard Revill Lawyers	

HER HONOUR:

1	Hien Lam, you have pleaded guilty to one charge of cultivating a narcotic plant, namely cannabis L.  This offence has a maximum penalty in your case of 15 years' imprisonment.  
2	In sentencing you I must have regard to the maximum penalty as it reflects the seriousness with which Parliament regards the offence.
3	You were 23 years old at the time of the offending and you are now 24.  
4	You are a Vietnamese national who entered Australia in 2014 on a student visa and you are currently on a bridging visa.  
5	I was told by the learned prosecutor that your role in respect of the drug cultivation was one of crop sitter at a property in Thomastown.  
6	On 3 January 2022 at about 7.22 pm police attended that address to conduct surveillance as the property was suspected of being used to cultivate cannabis.  They observed a gold Honda Civic registered 1RD 3XZ parked in the driveway.  Later that evening police saw you walk from the front door and leave in the Honda Civic.  
7	The events which give rise to the offence which you have committed are as follows:  
8	At about 8 pm on 31 January 2022, while police were conducting surveillance, the car previously referred to arrived and parked in the driveway of the crop house.  Police observed you exit the car and walk to the front door of the house.  Shortly after this police attended the premises in order to execute a search warrant pursuant to s81 of the Drugs, Poisons and Controlled Substances Act 1981.  Police forced entry to the front door and could immediately smell cannabis inside the house.  
9	Police then found and arrested you.  You were standing in the hallway near the kitchen and no one else was present at the time.  You were searched and police found an Apple iPhone and a set of keys, which included two front door keys to the premises and an electronic car key which unlocked the car you were driving.  Police found your driver's licence and a bankcard belonging to you in the Apple iPhone case.  
10	Police searched your car and found your passport and later confirmed through VicRoads that the Honda Civic was registered to you.  
11	During the search of the property police found a sophisticated hydroponic cannabis setup across four rooms involving the use of tents, heat lamps, electrical timers, carbon air filtration systems and irrigation systems.  There was no bedding or sleeping area in the house.  
12	Cannabis was found in the following locations:
(a)	room 1 - 12 plants weighing 25.6 grams;
(b)	room 2 - nine plants weighing 13.95 grams;
(c)	room 3 - nine plants weighing 8 grams; and
(d)	room 4 - 28 plants weighing 56.7 grams.
13	A water pump was observed operating inside a half-filled bathtub in the bathroom with an electrical timer pumping water via a pipe to room 3.  Sorry I said 'kilograms'.  That should be 56.7 grams.  That is a typographical error (d).
14	A water pump was observed operating inside a half-filled bathtub in the bathroom with an electrical timer pumping water via a pipe to room 3.  Also, police found various bags containing cannabis and waste material from previously harvested cannabis crops, potting mix, assorted electrical equipment, including cabling, fertilisers and plant pots, throughout the property.  An illegal electrical bypass was also discovered and subsequently disconnected.  However, it is not alleged that you had any knowledge in relation to its existence.  
15	In total police seized 58 cannabis plants with a combined weight of 48.13 grams.  The cannabis plants were at various stages of maturity.
16	You were taken to the Mill Park police station for the purposes of a record of interview, but you exercised your right to remain silent, making no comment answers when allegations were put to you.  
17	You were granted bail by the Melbourne Magistrates' Court on 3 February 2022, which means that you spent three days on remand.
18	Mr Lam, your offending is serious and deserving of a punishment which is just in all the circumstances and your conduct must be appropriately denounced.  You played an important role in respect of a significant cannabis crop, with the combined weight of the cannabis being 1.93 times the commercial quantity threshold in terms of weight, albeit that the number of plants was .58, the threshold for commercial quantity.  You were motivated by financial gain and the cultivation system that you chose to involve yourself in was of a sophisticated nature which would have been inherent to you when you entered the premises on the day of the offending.  The prosecution is not able to specify the precise tasks which you performed, but it is plain that you were present at the premises and looked after the cannabis crops in some way. 
19	 In sentencing you I am most cognisant of the actual offence that you pleaded guilty to and that the offending is alleged in respect of one day only and apparently for a short period.  I must sentence you on this basis despite the fact the police saw you at the premises earlier in the month that you were arrested.
20	There is no impairment of mental function or other consideration which would serve to reduce your moral culpability which I find is fairly high.  Having said this, I have factored in that although you were motivated by financial gain this was in the context of being desperate for money at a time when you were out of work and neither you nor your partner were entitled to social security benefits.  
21	You have no prior or subsequent convictions.  I have read the character material relied on by you and I accept that you are of otherwise good character.  You are entitled to a significant discount in the sentence you would otherwise receive as you have pleaded guilty at an early stage, saving the witnesses the time and trouble of giving evidence and saving the community the time and expense of contested proceedings.  Further, you are entitled to a palpable discount in the sentence you would otherwise receive due to the fact that you have pleaded guilty during the pandemic, contributing to a reduction in the backlog of trials in this court.
22	In sentencing you I take into account your background.  
23	After arriving in Australia on 4 July 2014 on a student visa you then attended 
Braybrook High School, completing your secondary education there.  To your credit you were able to learn English when you arrived in Australia.  You have one sister who lives in Melbourne and your mother initially lived here, but subsequently returned to Vietnam at some stage, leaving you to support yourself.  
24	After completing your secondary education you attended 
Deakin University where you are studying nursing.  There have been some gaps in you pursuing studies as you needed to work for remuneration from time to time in order to support you and yours.  
25	I was told that you have one child who was born in February 2020.  Your relationship with the child's mother broken down in March last year and your daughter lives with her mother.  However, you enjoy good access to your child.
26	You re-partnered and married on 18 March this year.  Your wife provided a character reference, indicating that you are a very warm, good natured, respectful and selfless person.  According to Ms Cabone you have very strong family values and have a very good relationship with both of your parents and siblings.  She described your deep care for your daughter who is now two, saying that you provided for her, but also for your ex-partner.  She said that you always put your daughter first even when you do not have enough money.  You always do what you can to ensure that your daughter is well-fed and clothed.
27	In respect of your explanation for the offending, I was told that you were particularly financially vulnerable at the time in the context of the pandemic where your work as an aged care worker was terminated as your employer decided to move out of that area of employment.  I was told that you were unable to secure a further position in aged care.  I must say that this was a surprise to me in view of the, anecdotally, desperate need for aged care workers which was apparent at the time of the pandemic.  However, I accept you were unable to secure employment notwithstanding this. Therefore you were a parent who was involved in studies and in dire financial predicament.  You were in a relationship with a non-citizen.  Neither of you were entitled to government benefits because of this as your ex-partner became pregnant she was also unable to work which compounded financial distress in the household at the time.  I was told that you heard on the 'grapevine' that there was work available in cultivating cannabis and you agreed to do the work out of financial desperation.
28	In sentencing you I factor in that there is no sign of a lavish lifestyle and that you were financially desperate when you took the decision to embark on the offending.  I also sentence you on the basis of cultivation simpliciter in circumstances where it is accepted that there was no intention on your part to cultivate a commercial quantity of cannabis.  Although your role was an important one it was a fairly lowly one and limited to one day and for a brief period of time according to the prosecution opening.  
29	I was told that since the offending you have been able to secure employment and continue on with your studies.  Your employer, Purple Blossom Care, provided a reference in support of you, indicating that you joined their team in May this year as a disability support worker.  They are aware of the charge that you face and do not believe that it affects your role with them.  According to this reference you are a reliable and flexible member of the working team and do all that is required of you. The letter says you are currently working with a client where the family is very happy with your care and you communicate with the family and complete all required tasks, including creating a solid relationship with the client.  The authors of the letter say that they appreciate the time and dedication you have shown to the business and to their clients.  
30	I have also received a letter from Deakin University dated 10 November 2022 verifying that you are currently enrolled in a Bachelor of Nursing course as a full fee paying international student.  The letter confirms that you are due to complete the nursing course at the end of Trimester 1 next year.
31	I also have a character reference from a good friend of yours who met you in high school in Year 9.  He said that although what you had done was wrong he refers to the extenuating circumstances at the time you committed the offence.  Like your partner he spoke of your character in glowing terms and your dedication to your daughter and ex-partner in ensuring they were provided for.  He pointed to the fact that your difficulties were especially hard because of your lack of finances from the government at the time when others were receiving these.  He said that you were devastated and distressed, sad and regretful in respect of your offending.  He said that all the time he has known you you have been an honest and hardworking person who he regarded as a brother.  He said he believed the hardship and chain of unfortunate events had led to your offending.
32	I note that your mother, friend and partner were in court in support of you at the plea hearing, and I see that your mother and partner are here today to support you.  You have  strong pro-social support from these people and that is relevant to my assessment of your prospects of rehabilitation.
33	I have now received a letter from you which articulately sets out your remorse insofar as it has the potential to impact our community and appropriately reflects your insight about the seriousness of what you have done.  Although a cynic might say that such a letter is entirely self-serving, especially as it comes after the plea hearing where remorse was discussed and I had some queries about this.  I said that you are genuinely remorseful and have appropriate insight in respect of the seriousness of your offending.  
34	You have no impairment of mental function as I previously said and you are also not a drug user, nor do you abuse alcohol, and I accept this is not a situation where you came to Australia in order to commit the offence.  I note in the Community Corrections assessment that you were a drug user between the age of 18 to 20, consuming MDMA, however you ceased this because you grew up, had a child and, as you say to the author of the report, you could not party any more.  Therefore, it seems to me you have no current difficulty with drugs.
35	I also factor in that you are still young and I should do what I can to maximise your chances of rehabilitation.  
36	In all the relevant circumstances I find that you have excellent prospects of rehabilitation and I need only place minimal weight on specific deterrence and protection of the community.  However, I must place strong weight on general deterrence in a bid to deter others who are tempted to behave as you have.
37	  In sentencing you I must also factor in that if you were to go to gaol it would be your first custodial sentence against a background of otherwise good character.  I would expect that if you were sentenced to a period of imprisonment time would also be harder for you because of restrictions that might well be imposed from time to time due to the pandemic and also because of your concern for your child and others who you financially support.  I have also factored in that you have already spent three days on remand in respect of this matter before being released on bail.  
38	I note you are on a bridging visa in this country.  I was not addressed in respect of this aspect at the plea hearing in terms of any prospect of being deported and I cannot speculate about this aspect, however, I asked 
Mr Reville about this situation today and I am told that you are anxious about this prospect, having consulted a migration agent about this, and you received certain advice which involved you being told that you faced that possibility in the event that you were sentenced to a period of imprisonment.  Therefore, I factor in that you have experienced some anxiety in this regard and all that it would entail in circumstances where you have established connections to this society in Australia.
39	In sentencing you I have also considered sentencing practice which is one but not a controlling factor.  
40	The learned prosecutor submitted that a sentence involving gaol and a community corrections order was appropriate in your case, drawing my attention to the recent Court of Appeal of R v Nguyen [2021] VSCA 346 where the offender pleaded guilty to one charge of cultivating cannabis, being 142 cannabis plants weighing 31.52 grams, but in that case over the duration of a couple of days.  In that case the offender was sentenced to 18 months' imprisonment, with a non-parole period of 
12 months.  The Court of Appeal rejected the offender's appeal against sentence on the grounds of manifest excess and the Court of Appeal made the following observations in respect cannabis cultivation cases, paragraph 41:
'The second point is related.  It concerns this court's repeated calls for increased sentences for cultivation offences involving commercial quantities.  The responsibility for pursuing that change in sentencing practice, which would flow on to sentences for cultivation simplicite, rests squarely with the Director of Public Prosecutions, both at first instance and in this court. Subject once again to the necessary publicity, the imposition of sentences which properly reflect the applicable maximum penalties would undoubtedly advance the objective of general deterrence.'
41	Of course I have had regard to that enunciation, but I have also had regard to what our Court of Appeal had said in the past in respect of young offenders or youthful offenders, as well as what they said in Boulton v The Queen (2014) 46 VR 308, where the court said, amongst other things at paragraphs 9, 10, 24 and 25:
'A community corrections order is likely to be a particularly important sentencing option in the case of a young offender where there may be perceived conflict between the need to punish the offender and the importance to both the community and the offender of rehabilitating the offender.  
Since the community corrections order can be used to rehabilitate and punish simultaneously, the conflict is likely to be reduced instead of being to give less weight to denunciation or specific or general deterrence.  In order to promote the young offender's rehabilitation, the court will be able to fashion a community corrections order which adequately achieves all of those purposes at once.  
In many cases therefore a community corrections order will enable all the purposes of punishment to be served simultaneously, in a coherent and balanced way.
Even in cases of relatively serious offences which would previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and in some rare and exceptional cases homicide).  The sentencing court may find that a properly conditioned community corrections order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospect for rehabilitation'.
42	The learned prosecutor submitted that she was instructed that only a community corrections order with a gaol term attached would do justice to all relevant sentencing considerations.  Mr Reville submitted on your behalf that a community corrections order was appropriate without the need to impose a gaol term.  
43	The learned prosecutor fairly indicated that she wished to update her instructions in view of Boulton v The Queen and I gave each of the parties an opportunity for further submissions in relation to this matter pending sentence.  
44	In the meantime you were assessed for a community corrections order and you have been deemed suitable.  
45	I have now considered the further written submissions provided by the Crown, where it is accepted that the principles enunciated in Boulton enables offenders to receive a community corrections order where a period of imprisonment would otherwise be appropriate and can be reflected as general deterrence, denunciation and just punishment, as well as having a therapeutic purpose.  However, Ms Fleming submitted that Boulton does not have universal applicability, but rather allows the court to impose a community corrections order for an offence 'which would ordinarily attract an immediate term of imprisonment in cases where an offender is not an appropriate vehicle for general deterrence and matters in mitigation are so significant as to warrant a departure from what would otherwise be an appropriate sentence'.  In further discussions with Ms Fleming today she did not press this latter proposition which, as I remarked, seems to be somewhat at odds in terms of the first proposition in her written - or the previous proposition in her written submissions.  However, she did refer me to the fact that there had been subsequent case law reports as there has been in relation to Boulton and the approach that might well be taken in particular cases.  Ms Fleming also very helpfully referred to another case of the DPP v Apostolopoulos  [2016] VSCA 201.  In any event, Ms Fleming submitted in this case that only some form of immediate imprisonment would properly reflect the nature and gravity of the offending, and in written submissions the learned prosecutor referred to the lack of significant matters in mitigation and the Court of Appeal's intention in Nguyen.  
46	In my view, although your offending is objectively serious, due to your limited involvement in the offending, your excellent prospects of rehabilitation, your community support, work ethic and capacity to contribute in a positive way to our community, as well as allowing for appropriate discounts for your facilitation of justice, including Worboyes requiring a palpable reflection in the sentence as to the discount there, in my view justice to all relevant sentencing considerations can be achieved without the need to send you to gaol.  
47	I can see no utility in sending you to gaol.  If I were to do so your progress would go backwards and your prospects of rehabilitation would be damaged.  In all the relevant circumstances, in my view, it is appropriate to place you on a community corrections order which will appropriately reflect the weight which I need to give to relevant sentencing considerations.  In arriving at this view I am most mindful of the Court of Appeal's remarks in Nguyen.  However, in my instinctive synthesis your offending does not warrant a period of imprisonment.  As I previously said, I have also taken into account the extenuating circumstances in which you found yourself at the time of the offending, which was a relevant consideration in taking the approach that I have, noting, of course, that it does not excuse what you did.  
48	I have considered the Community Corrections assessment report and recommendations made.  I do not consider it is appropriate for you to undergo a drug and alcohol assessment and treatment condition as a way to teach you about the implications of crop sitting for the community.  You are training to be a nurse and as you said in your letter - and I would have had no doubt about this anyway - you fully appreciate these implications, but if you do not I am going to ask that you undergo any programs that would assist you in this regard.  
49	Excuse me for a minute.  You are convicted of the offence.  I intend to place you on a community corrections order.  I can only do this with your consent so please listen carefully to the order that I propose.  The community corrections order would run for a period of three years.  The conditions of the order would be as follows.  First of all the mandatory terms that apply to all community correction orders which are:  
-	You must not commit another offence for which you could be imprisoned during the time that the order is in force. 
-	You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011.
-	You must report to and receive visits from the Secretary to the Department of Justice or his or her delegate.
-	You must report to the Sunshine Community Correctional Service before 4 pm within two clear working days of today.  So that means 4 pm on Wednesday would be your deadline for that.
-	You must let a Community Corrections officer know within two clear working days of you changing your address or job.
-	You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate.
-	You must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate.
50	Now, the conditions that apply in addition to the mandatory terms are:
-	You must undergo 150 hours unpaid community work within the next three years.  I have come to that figure factoring in your other work obligations and family obligations and I think that is a realistic period.  Further, you must undergo supervision and be under the supervision of a Community Corrections officer for a period of three years.
-	And, further, you must undergo any programs as prescribed by Community Corrections which address any aspects relating to your offending.
51	Now, having heard what I propose in that regard, do you consent to the terms and conditions of the order?
52	OFFENDER:  Yes, I do.  I do, Your Honour.
53	HER HONOUR:  I should tell you that if you do not comply with all the requirements of the community corrections order then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be resentenced in relation to the charge, in which case you may well be sentenced to a period of imprisonment.  I will regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non‑compliance with any of the other conditions of the order.  Do you understand this, Mr Lam?
54	OFFENDER:  Yes, I do understand, Your Honour.
55	HER HONOUR:  Do you still consent to the order?
56	OFFENDER:  Yes, I do.  Yes.
57	HER HONOUR:  All right.  Therefore in relation to the charge you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out.  I am going to ask your counsel to help you with the signing of the order.  
58	If not for your plea of guilty I would have sentenced you to three years' imprisonment with a non-parole period of 18 months.  
59	You can take a seat. Mr Reville, if you could approach the dock and help Mr Lam with the signing of that.
60	MR REVILLE:  Thank you, Your Honour.
61	HER HONOUR:  I've signed that order, Mr Lam.  I hope I never see you again.  In a nice way I say that, because I don't want you to breach this order.  All right?  Then if I could advise you to get on with it sooner rather than later.
62	OFFENDER:  Yes, I will.  Thank you, Your Honour.
63	HER HONOUR:  All right. Thank you.  Yes.  Anything further?
64	MS FLEMING:  Your Honour, just the disposal order.
65	HER HONOUR:  I'm sorry, yes.  Yes, I make the disposal order.  That's not opposed?
66	MR REVILLE:  No.
67	HER HONOUR:  Thank you.  All right.  Yes, thank you for your assistance.  We'll now adjourn.
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