Director of Public Prosecutions v Ai

[2018] VCC 2214

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01777

DIRECTOR OF PUBLIC PROSECUTIONS

v

AI NGUYEN

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 November 2018
CASE MAY BE CITED AS:	DPP v Ai
MEDIUM NEUTRAL CITATION:	[2018] VCC 2214

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan	Office of Public Prosecutions
For the Accused	Mr C. Yang	Paul Vale Criminal Law

HIS HONOUR:

1Ai Lin Nguyen, you have pleaded guilty to one count of cultivating cannabis in a commercial quantity, maximum penalty 25 years' imprisonment, and one count of negligently dealing with the proceeds of crime, maximum penalty five years' imprisonment.

Circumstances of the Offences

2The circumstances of the offences were set out in the Crown opening, which was read in open court this morning and which I incorporate by reference.  Essentially you are before the Court in the too readily familiar role of a crop sitter of a commercial cannabis growing operation.  The police executed a search warrant at a property in Doncaster on 11 June this year and they heard a female voice.  They broke into the property and found that it was full of cannabis in various stages of maturity with five rooms dedicated to a hydroponic operation.

3There is a long list of items that are to be forfeited and the plants varied in weight.  Ten plants in one room weighing 22.9 kilograms, another room 12 plants weighing 28 kilograms.  So they are big plants.  Another room, eight plants, 83 plants weighing 101 grams, small plants, 152 plants weighing
13.83 kilograms, 12 plants weighing 30 kilograms, and 14 plants weighing
50 kilograms.  There was also some freshly harvested cannabis heads weighing 1.33 kilograms in the fridge.

4Numerous items were seized and a bypass was located.  In your personal documentation were telegraphic transfers of a total sum of $39,000 to Taiwan between November last year and June this year, and there was a single mattress in the lounge room with your personal items around about, and a 2003 BMW sedan registered to you, parked in the car park.

5You were arrested, you gave a ‘no comment’ record of interview essentially, and you have been in custody ever since.  Your holiday visa expired in
September 2017.  You were committed for trial at a committal mention on 31 August.  You pleaded guilty.  The matter proceeded by way of a hand-up brief.

6Turning to your personal circumstances, you are a Taiwanese national.  You were born in Vietnam and brought up there by your grandparents.  Your parents moved to Taiwan when you were 15 and you completed your secondary education there.  You then worked as a quality controller supervisor in a solar panel operating business.

7In around September 2017 you came to Australia on a one year working holiday visa.  You commenced working in Queensland and then moved to Victoria where you worked in a vegetable farm operation at Werribee.  You then sought to move to Box Hill with a view to commencing studying English in order to extend your period in Australia.  You were working in a bakery there and were offered the opportunity of accommodation by one of your fellow workers.

8Upon attending at the house in Doncaster you stayed there and subsequently a hydroponic operation was moved into that house.  You were provided with free accommodation there and stayed for about three months before your arrest.  You were also provided with a vehicle.  You were offered and you accepted the sum of $15,000 to tend the plants.  You accepted the money and remitted it to your parents.  As I have indicated, in evidence were the details of your remittances since you have been in Australia, which indicates that you appear to have remitted to your needy parents most of the money that you earned, including the $15,000 that was paid.

9You remained working in the bakery in Box Hill while you were arranging to water the plants after being taught how to do so.  You were also involved in some trimming of the plants but when you undertook this incorrectly that ceased and your role was merely to water the plants and clean up the area.  Others would arrive at the house to do the actual harvesting.

Assessing the Seriousness of the Offending

10Parliament has established essentially a quantity based regime for assessing the seriousness of cannabis offences.  The offence of cultivating a commercial quantity carries a 25 year maximum penalty, which indicates the seriousness with which Parliament views the offence.  The maximum penalty ranks it up with other serious offences on the criminal calendar such as armed robbery, aggravated burglary and rape.  Within that offence, in terms of the objective seriousness, the factors which are relevant include the size of the operation, its sophistication and the role the individual offender has played.

11Mr Yang, your counsel, in a comprehensive plea, did not dispute that this was a sophisticated hydroponic operation.  The volume of equipment was extensive.  It had the usual electricity bypass and the quantum of cannabis involved here was also very significant, well above the threshold for a commercial quantity.  It had amounted to 2.8 times a commercial quantity by the number of plants and nearly six times a commercial quantity by weight.  There were various sizes of plants, although a large number of them were effectively seedlings, a number of them were very substantial and mature and this was consistent with the fresh cuttings found at the premises.  Thus while you are charged with cultivating on a single day, this was a sophisticated operation with a range of plants and evidence that it had been in operation for some considerable period.

12Turning to your role, it is common ground that you were a crop sitter and tending the crop on behalf of unnamed principals.  You have not cooperated with the authorities by providing any details of those principals.

Matters in Mitigation

13Your counsel put a number of matters in mitigation.  First, your personal circumstances.  You turn 23 next week.  Your visa has now expired and thus you will be deported at the end of any sentence.  You came from relatively impoverished circumstances and you came to Australia on a working holiday visa with the aim of to be in a position to remit moneys back to your parents.  Your parents remain in Taiwan with your father retired and your mother working in a café and reliant on your brother, who has a rickshaw store or cart.  The family has significant debts racked up from living expenses and also for the funeral expenses for your grandfather, who recently passed away in Vietnam.  It follows from this that your motivation to accept the $15,000 that you were offered to tend the crop was financial and due to your impoverished family circumstances in Taiwan.

14In his submissions your counsel emphasised the following.  First, you have good prospects of rehabilitation.  This is your first appearance in court  and given your age and lack of prior appearances then your prospects of rehabilitation must be regarded as excellent.  I accept his submission that you have good prospects of rehabilitation.

15Next he emphasised your relative youth.  This is tied up with your prospects of rehabilitation and under the principles of the case of Mills relative youth is always a sentencing consideration favouring leniency.  As he emphasised, it applies particularly where the offender is a first offender, notwithstanding the seriousness of the offence with which a person has pleaded guilty.  Here youth has some role notwithstanding the seriousness of the offence here.  It is also relevant to the period after which you will be eligible for parole.

16Next, your counsel emphasised your plea of guilty.  It was at the first opportunity.  You have accepted responsibility for your conduct and facilitated the course of justice.  Your plea is also some evidence of remorse and I give you full credit for your early plea.

17Your counsel also emphasised the burden of a sentence of imprisonment on you.  You have only limited English.  Your parents are not in a position to visit you in Australia and you have no other family members in Australia.  You have the prospect of deportation hanging over your head as well.  You are a youngish offender and thus will be more vulnerable in the prison system.  You will be isolated also within the prison system.  All these matters mean that a sentence of imprisonment will be more burdensome than for other offenders who have ties in Australia and who can speak English.

Comparable Cases

18Your counsel referred to three decisions of other judges of the court that dealt with relatively young offenders where the culpability involved crop sitting.  I have  considered these cases.  There is a steady stream of cases from the Court of Appeal in relation to this offence.  In a decision last week, Muaremov [2018] VSCA 298 the Court of Appeal noted first that current sentencing practices are only one factor to take into account. The Court also noted that it had previously referred to the inadequacy of current sentencing practices for the offence of cultivating a commercial quantity of cannabis. The case references another decision of the court, Kieawkaew [2016] VSCA 269, where the court had noted that sentencing court should increase the sentences for mid-category offending so that the range of sentences is uplifted and substantially expanded. At paragraph 25 the Court said:

"As was suggested in the course of argument it is to be expected that the sentences for an offence will be spread across the statistical range.  This being a quantity based sentencing regime, the cultivation of a quantity at the high end of the range of quantities for this offence would be expected, other things being equal, to carry a commensurately higher sentence".

19In the present case this is a significant quantity of cannabis assessed either as to the number of plants or as to the weight.  Your role was limited in that you were not a principal.  Your role, however, was an essential part of the overall chain of production of this illegal drug.

Purposes of Sentencing

20The 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 factors such as the seriousness of the offences, your culpability for them, 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.

21Your counsel in his submissions accepted that general deterrence is a very important consideration in these cases.  As has been said on a number of occasions, the sentence of the court must send a signal to all those involved in this illegal commercial operation, that heavy sentences will be imposed in order to deter them.  I accept the submission that you were in a sense a vulnerable person who was utilised by an unnamed principal to assist in this illegal commercial enterprise.  While this lessens your role there must still be a deterrent message sent in the sentence.  This also applies notwithstanding your relative youth and that you will find imprisonment more onerous, as I have indicated.

22The sentence of the court must also denounce your conduct and manifest the community's resistance and objection to those who, lured by easy profits, turn their mind to illegal activities regardless of their particular role in participating in those illegal activities.

23I must also sentence you on the other count of negligently possessing the proceeds of crime.  This is only a relatively minor amount of money that was found when you were arrested and the sentence will reflect this.

24Could you please stand?

On the charge of cultivating a commercial quantity of cannabis you are sentenced to three years' imprisonment.  On the charge of negligently dealing with the proceeds of crime you are sentenced to one month's imprisonment.  The sentences are concurrent. I direct that you serve a minimum period of
21 months' imprisonment before being eligible for parole, and I declare that you have served 164 days pre-sentence detention excluding today, that are to be deducted administratively. I further declare that had you not pleaded guilty I would have imposed a total effective sentence of five years' imprisonment with a non-parole period of three years and four months.

25The prosecution have sought forfeiture of the various items found and I am going to make a forfeiture order to that effect.  The prosecution have also sought a forensic sample from you, which means that you are required to provide them with a mouth swab and the authorities have the right to use reasonable force to obtain that swab.  Are there any other matters, Madam Prosecutor?

26MS HOGAN:  Yes.  There is also a disposal order for the drugs, Your Honour.

27HIS HONOUR:  And a disposal order, yes.  Have you got all the forms?  Any other matters from your point of view, Mr Yang?

28MR YANG:  No, Your Honour.  As the court pleases.

29HIS HONOUR:  Nothing else?

30MS HOGAN:  As the court pleases.

31HIS HONOUR:  Yes.  Yes, thank you, for your assistance, Mr Yang and Ms Hogan and the interpreter for your assistance and just adjourn sine die.

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