Director of Public Prosecutions v Bui & Ngo
[2012] VCC 1556
•9 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02156
CR-11-02155
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANG BUI THAI NGO |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18, 19, 20, 21, 28 September 2012 | |
DATE OF SENTENCE: | 9 October 2012 | |
CASE MAY BE CITED AS: | DPP v Bui & Ngo | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1556 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Nibbs | Office of Public Prosecutions |
| For the Accused Bui For the Accused Ngo | Mr J. Saunders Mr A. Jackson | Theo Magazis & Associates Theo Magazis & Associates |
HER HONOUR:
1 On 7 July 2011 police executed a search warrant at a house in Taylors Hill. Each of you, Thang Bui and Thai Ngo, along with another man, Tam Hoang were at the house when the police executed the search warrant.
2 The house was not being lived in by anyone. It was being used for the hydroponic growing of cannabis, windows and the internal doors were covered with light blocking fabric. Lights, and fans were set up in the rooms, chemicals were stored in the bathrooms, and hoses for feeding nutrients to the plants led from the bathrooms to the rooms where the plants were.
3 There were healthy crops at various stages of their growth cycle established in different rooms, and the garage. One room was set up as a harvesting room, with a drying rack on which the flowering heads of plants which had been stripped from their branches were laid out to dry, and other cut branches, with the flowering heads still on them were in piles in tubs or on the floor. Stripped branches were also on the floor. The smell of cannabis was evident throughout the house.
4 Police found a total of 527 plants, weighing 34 kgs spread over 5 rooms. Over 100 seedlings in each of the 2 rooms where seedlings were being grown, over 100 maturing plants in each of the 2 rooms in the house where plants were being grown, and over 100 plants shared between the 2 rooms in the garage. There was 46kgs of cut, drying cannabis in the harvesting room.
5 The number of growing plants alone was substantially in excess of a commercial quantity (100 plants is a commercial quantity). Their weight too was substantially in excess of a commercial quantity (25 kg is a commercial quantity) Although no attempt was made to assess the number of plants which had provided the cannabis which was being harvested in the harvesting room, the 46 kg of cut cannabis which was in the harvesting room is substantially in excess of a commercial quantity. When I say in excess of a commercial quantity, I mean in excess of the minimum threshold for calculation of a commercial quantity.
6 The police had forced entry, after their knocks had gone unanswered. When they entered the house, Hoang and Bui were standing directly outside the harvesting room. You, Ngo, were arrested as you tried to get out the back door of the house.
7 The front door was locked, and the key was in the lock on the inside of the door. The back door, a sliding door, was locked, and a rod was wedged in a runner in the inside. So, those inside controlled who entered the house, but were equally able to control whether they remained in it or left.
8 Hoang pleaded guilty to one count of cultivate not less than a commercial quantity of cannabis, and after a trial, the jury convicted you, Bui of cultivation of not less than a commercial quantity, and you, Ngo, of possession of cannabis. Your charges, as framed, are confined to the day of the police raid.
9 The evidence against you, Bui was that you appeared to have been harvesting the cut cannabis in the harvesting room when the police burst in. You were found just outside the door to the harvesting room. In the harvesting room, a drying rack was set up, and a quantity of flowering heads, stripped from their branches was spread out on it. Stripped branches were piled on the floor. There was also a large quantity of unstripped branches of flowering heads stacked, apparently next in line to have the heads stripped and spread out to dry.
10 A mobile telephone which you later claimed as your own was in the room, sitting on top of a box of disposable gloves. You were noted by SC Etherington, who arrested you, to have a strong smell of cannabis on your clothing. She, and some of the other police involved in the raid said you and Hoang were wearing disposable gloves, which had what appeared to be cannabis residue on them. You challenged that evidence, but the inference you were involved in harvesting the cannabis at the time of the raid is inescapable, even if the evidence you were wearing gloves is ignored.
11 When interviewed, you said you had been at the house since about 6am. The raid took place some time after 1 pm. You said you had gone there at Hoang’s request, and taken Ngo with you, to clean the house. You gave a palpably untruthful account. You said you had been in the lounge room, the only room in the house that did not contain cannabis plants or anything connected with cultivation for the whole time, cleaning. You denied entering any other room, and said you were unaware there was cannabis growing, and being harvested in the house. The lounge room showed no signs of having been recently cleaned, and certainly no sign of having had 6 hours of work spent on cleaning it. No cleaning materials were in evidence. You did not give evidence at trial.
12 You, Ngo were convicted of possession of cannabis. The case against you relied on your presence in the house, in circumstances where it was obvious it was a house devoted to the cultivation of cannabis, and the evidence of the securing of the house from the inside, in a manner which allowed those inside to control who came in (unless of course, entry was forced as it was by the police), and permitted those inside the house to leave if they wished. A phone which had photographs and other information connecting it to you was found in the kitchen of the house. When interviewed, you exercised your right to remain silent, and you too did not give evidence at trial.
13 Upon the pleas, the prosecution submitted that Bui should be sentenced on the basis he was stripping the cut cannabis in the harvesting room, and therefore that the quantity he was cultivating should be confined to the 46 kilograms in that room. It was further submitted his role was that of assisting Hoang, and that his role was confined to the day of the raid. That last point is obvious. That is what the charge alleged.
14 In my view, the evidence on which the jury convicted you, Bui is that you were, on 7 July last year, cultivating by harvesting the 46 kg of cannabis in the harvesting room. I take into account also, the context in which this occurred, namely you were doing so in a house which was, by appearance and smell, a house devoted to the cultivation of cannabis. I accept you were there on that day as a labourer, working at Hoang’s direction. This is consistent with the evidence at your trial, and also with the evidence on which Hoang was sentenced.
15 Hoang, when interviewed, had admitted to being the lead cultivator. He had admitted to cultivation over an 8 month period, harvesting a crop every 8 weeks. He said he had engaged you and Ngo as labourers, to harvest the crop on that day. Consistent with his admissions, he had pleaded guilty to a charge of cultivation, as the lead cultivator, over that 8 month period.
16 So far as you Ngo, were concerned, the prosecution submitted you should be sentenced on the basis the only cannabis you were in possession of was the 46kg of harvested cannabis in the harvesting room, that you were assisting Hoang and that your involvement was for that day only. Again, the framing of the charge in the indictment makes it clear the charge relates to the day alleged, 7 July. Although there was no admissible evidence at your trial you were there assisting Hoang, I accept that is the only characterisation of your role open to me.
17 So far as the quantity of cannabis you were in possession of is concerned, I do not accept I should sentence you on the basis it should be confined to the cannabis in the harvesting room.
18 You were not found outside the door of that room, like Bui and Hoang. There was no evidence from which it could be inferred beyond reasonable doubt that you were engaged in any acts of cultivation of the cannabis in that room or any other room that day. There was nothing from which it could be inferred you were harvesting the flowering heads, feeding nutrients to the growing plants, planting cuttings, or otherwise tending to the plants. That was why I directed a verdict of not guilty to the charge of cultivation.
19 The case against you had gone to the jury on the basis you were knowingly in possession of the cannabis by your presence in the house, established as it was to grow and harvest cannabis, and where, it being locked from the inside, those inside were able to leave, and controlled who came in. No case had been put to the jury that you were in possession of only part of the cannabis.
20 Mr Jackson submitted there was no evidence to put you in any room of the house or garage where cannabis was growing or being harvested. He submitted the only room it could be inferred you had been in was the harvesting room, as you had to go through it to get to the kitchen where you were when apprehended.
21 He told me his instructions were that you had been asked by Hoang to go to the house and help clean up, and that you first became aware cannabis was there when you walked in. You were surprised, didn’t want anything to do with it and were just waiting there, when the police arrived, you instructed him. In response to my asking why you didn’t leave, when you saw what was there, I was told your instructions were you had gone there with Bui at Hoang’s request, that you didn’t know where you were, and thought it was best to wait and get a lift back.
22 Mr Jackson submitted I should sentence you on the basis you were in the house, but knew nothing of the cannabis in any room other than the harvesting room, and did nothing. I indicated I was not prepared to make a positive finding to that effect in the absence of evidence which would satisfy me of that on the balance of probabilities. Mr Jackson said he was seeking an affirmative finding to that effect so as to rely on it as a mitigating feature, and he proceeded to call you to give sworn evidence.
23 When called, you confirmed you had been asked by Hoang to come to the house and help out. You said you did not know before you got to the house there was cannabis being grown there. When asked whether you saw cannabis when you entered the house you said no. You said you went into the room I have been describing as the harvesting room, you saw some strange looking plants, of a type you hadn’t seen before, and you were surprised, and scared. You said you didn’t know why you were scared, you just were. You said Hoang asked you to help with the plants, but you didn’t do it. You denied going into any of the rooms where plants were growing. You said you didn’t leave because you had just arrived, and didn’t know where to go, or where you were.
24 You had earlier given evidence that you had arrived in Australia from Vietnam 6 months earlier, on a student visa, and had been living with Hoang, who had been a friend and neighbour of your parents in Vietnam.
25 You specifically denied knowing at any time until the police arrived that there was cannabis in the house.
26 In cross examination, you said you had been driven to the house by Bui, arriving at about 6am and so had been there for 6 or 7 hours by the time the police arrived. You said you had not noticed any strange smell. When asked why, if you were scared you didn’t wait outside, you first said the door was locked. When reminded of the unchallenged evidence at trial that the key was in the lock on the inside of the front door, you said you didn’t know where to go so you just stayed. Mr Nibbs suggested you could have waited outside. You said you could recollect it was pretty cold that day. When he suggested you could have sat in the car you said it would be uncomfortable if you were in the car for a while and you would rather stay inside. You said you had asked Bui to take you home, and he said he would, when they had finished.
27 At the end of your evidence, as Mr Jackson acknowledged, your account was one, which, if accepted, was incompatible with the jury verdict, as you denied knowledge there was cannabis in the house, and asserted you were a reluctant and passive observer of what was going on. That is that you did nothing which would constitute exercising custody or control over a substance you knew to be cannabis. No such account as the one you gave on oath before me on the plea was given to the jury by you, and what you said on oath was significantly and materially different from what you had instructed Mr Jackson and what he had told me, based on your instructions before he called you.
28 In any event, I consider what you said in evidence to be an implausible account, that, having agreed to assist Hoang in the house that day, and being present there from 6am until after 1pm, you were unaware the house was set up for cannabis growing. It must be remembered, there was light screening fabric over the doors and windows, there were chemicals and hoses in the bathroom and the hoses ran from the bathrooms to the growing rooms. There were fans and lights operating in the growing rooms. It is in my view inconceivable that you smelt nothing and did not know the “strange plants”, as you described them, that you saw in the harvesting room were cannabis. I consider it is unlikely, given your presence in the house at that time, and having gone there to assist at Hoang's request to assist him, that you in fact did nothing for the whole time Hoang and Bui were stripping the flowering heads from the harvesting room. But the evidence does not permit to make an affirmative finding that you did anything.
29 I must sentence consistently with the jury verdict, which was guilty of possession of the cannabis. That is, that the cannabis was physically in your custody or control, and that you were in deliberate, knowing possession of it. I am not satisfied there is any basis for limiting the quantity of cannabis you were knowingly exercising custody or control over, to that found in the harvesting room.
30 Having said that, I am conscious of the fact I am sentencing you for possession, not cultivation, and possession for a single day, that of the day of the raid, and that I am sentencing you on the basis that you were at the house at the request of Hoang, having been there by Bui.
31 Mr Jackson’s next submission was that you should be sentenced on the basis your possession was not for a purpose related to trafficking, and so you fell to be sentenced under s73(1)(b) of the Drugs, Poisons and Controlled Substances Act (imprisonment up to 12 months) and not under s 73(1)(c), where the maximum penalty is up to five years imprisonment.
32 The maximum penalty under 73(1)(b) applies if the court is satisfied on the balance of probabilities that the offence was not committed by you for any purpose relating to trafficking in the cannabis. It is not the case that the prosecution must prove the offence was committed for a purpose related to trafficking. I must be affirmatively satisfied (on the balance of probabilities) that your possession was not for any purpose related to trafficking of the cannabis.
33 I am not satisfied your possession was not committed for any purpose related to trafficking in the cannabis.
34 The cannabis in the harvesting room was clearly, on that day being harvested, that is being prepared for use. The quantity being harvested, and the quantity growing in the various stages of growth cycles of the plants in the other rooms all point in my view to the cannabis being prepared for supply to users or sellers of cannabis. In my view, therefore, you fall to be sentenced under s73(1)(c).
35 Dealing then with your personal circumstances, you Mr Bui, are 27, and have been in Australia for six years. Your parents and siblings are all still in Vietnam. You are married to a Vietnamese born woman, an Australian citizen who is completing her masters in business studies at Monash University. You are living together in rented accommodation, and have no children.
36 You speak limited English, and have worked as a chicken boner, and as a cleaner. For 2 years, while you were here, you worked to establish your own business, preparing and supplying chickens for domestic consumption, but the business was not successful and you have returned to your previous occupations. I accept you have a good work history here. I accept that you have no criminal history in Vietnam or you would not have obtained a visa to come to this country and you have no convictions, here and nothing pending.
37 You future here is uncertain. You are currently on a bridging visa, as you are awaiting the outcome of an appeal against a refusal to recognise your marriage as a genuine one, entitling you to a spousal visa, and permanent residence.
38 Your status here is further at risk, as a result of this conviction, as, if you are sentenced to a term of imprisonment of 12 moths or more, your visa can be cancelled for failure to pass the character test under s 501 of the Migration Act.
39 Mr Saunders submitted that the 5 days you have spent in custody and pre-sentence detention was sufficient to satisfy the needs of punishment, denunciation and deterrence insofar as they needed to be served by a term of imprisonment immediately served. Whilst acknowledging that imprisonment was an appropriate sentence for your role in this offence, he submitted that you should be sentenced to a fully suspended term, or a partially suspended term with the 5 days of the pre-sentence detention being the only time required to be served.
40 I disagree. You made a deliberate choice to participate in assisting Hoang to harvest this crop. You were assisting him to harvest a substantial quantity, 46 kilograms, and were doing so for reward. You gave a palpably false account when questioned, and have not demonstrated any remorse which could bear on a more favourable assessment of your prospects for rehabilitation. In my view, no sentence other than one of imprisonment, with a component immediately served, is appropriate to mark denunciation and deterrence. Those who think to make easy money from assisting to harvest cannabis crops must understand that the penalty outweighs the potential reward.
41 Mr Bui, can you please stand. On the charge of cultivation of cannabis in not less than a commercia quantity, of which a jury has found you guilty, you are convicted. You are sentenced to be imprisoned for a period of 9 months, and I direct that six months of that be suspended for a period for a period of 12 months. That means, Mr Bui, that you must serve three months less the five days of pre-sentence detention that I declare should be counted and reckoned as part of the sentence already served. After serving that time, the balance of your sentence of six months will be suspended for a period of 12 months. I must warn you that if during the period of suspension, you commit any offence punishable by imprisonment, that parliament directs that you be brought back before this court and probably before me and that the suspended sentence be restored unless you can establish exceptional circumstances arising since today. Do you understand that?
42 I have been asked to make a forensic sample order. That has been consented to, and I propose to make that order. That requires you, Mr Bui, to provide a sample called a buccal swab, a scraping from the inside of your mouth. That is done by rubbing a swab, like a cotton bud, on the inside of your mouth until a sufficient sample has been obtained. I must inform you that if you do not and cooperate in the taking of that sample under the supervision of an authorised member of the police force, then the police may use reasonable force to enable that forensic procedure to be conducted. And it is likely, if you do not cooperate, that the police will take a blood sample, a more invasive means of obtaining that sample. Do you understand that?
43 PRISONER: Yes.
44 HER HONOUR: Thank you, could you remove Mr Bui please.
45 Dealing now with you Mr Ngo. You are young, you were only 19 at the time and you are now 20. You had only been in Australia for six months. You arrived here on a student visa from Vietnam. All your family are still there. I was told that your parents arranged for you to stay with Hoang, who was the only person they knew in Australia. He was a friend and a neighbour of theirs before he left Vietnam for Australia.
46 I accept you were recruited by him to go to the house that day, and accept that your youth, immaturity, and the fact you had been sent to live with Hoang put you in an unequal bargaining position. But you did have choices, and you must take responsibility for them. Even if you had not known until you arrived at the house it was a cannabis grow house, you could still have disassociated yourself, and left.
47 You are enrolled in a business studies course at Holmes Institute, and have now completed one and a half years of a three and a half year course. I have been provided with current enrolment and examination results in respect of that. Your progress has been satisfactory. You are working part time to supplement the allowance your parents make you to support yourself. You too must have been of good character before you left Vietnam, or you would not have not obtained the visa. And you have not been charged with any further offences.
48 You spent 36 days in custody before your release on bail. For a 19 year old, only six months in this country, I accept that must have been a frightening experience. It should have been one which gave you much time to reflect on what you had done. I have no doubt it has left you with the feeling that you do not want to return to custody, and therefore provides a significant disincentive to commit further offences. I am told since your release, you have had no contact with Hoang, and are now living in a share house, independently of him.
49 Denunciation, punishment and deterrence are all relevant sentencing factors for you. Anyone who lends themself to the cannabis industry must understand they will be punished if detected, and punished in a way that will provide a real disincentive to participate, or to succumb to the lure of easy money.
50 In my view, the fact of charge, remand for over a month, conviction of possession, the prospect of further imprisonment and the prospect of visa cancellation have gone a long way to serve those needs.
51 Given the nature of the charge (possession, not cultivation, and for one day - the day of the raid), your youth, the circumstances which brought you into Hoang’s orbit, and the absence of other charges, your prospects for rehabilitation must be encouraged. The account you gave in evidence before me suggests you may still need to learn to take responsibility for your behaviour, and so, I must give some weight to specific deterrence.
52 In all the circumstances I consider the sentence which best balances those considerations is a community corrections order. Could you now please stand?
53 On the charge of possession of cannabis, of which the jury found you guilty, you are convicted. You are sentenced to be placed on a community corrections order for a period of 18 months. In addition to the core conditions of that order, I impose two special conditions. The first, that you complete 180 hours of unpaid community work over that 18 month period. And the second; that you submit to supervision of a community corrections officer. So the order will commence today, and finish on 8 April 2014. You must attend at the Sunshine Community Correctional Services office, at 10 Foundry Road, Sunshine within two days of today. Today being Tuesday, that means you must attend either today, tomorrow or Thursday.
54 Parliament stipulates that these terms apply to every community corrections order and therefore apply to you. First, you must not commit another offence for which you could be imprisoned during the time the order is in force. Second, you must comply with any obligation or requirement prescribed by Regulation 17 of the sentencing regulations. That is that you must not consume alcohol or drugs within ten hours of any attendance for unpaid work or any other meeting with Community Corrections. Third, you must report to and receive visits from the secretary or delegate. Next, you must let a community corrections officer within two clear working days if you change your address or your job.
55 Next, you must not leave Victoria without first getting permission to do so from the secretary or delegate. And you must obey all lawful instructions from and directions of the secretary.
56 I have already identified for you the two conditions specifically applying to you, the 180 hours of unpaid community work and the supervision. I cannot make this order unless you consent to it being made, and unless you have indicated that you understand the effect and conditions of the order. I will ask Mr Jackson to accompany my Associate down to the dock so that order can be provided to you, and once you are satisfied you understand it, and if you consent could I ask you to sign it, please.
57 MR JACKSON: He does understand, he does consent to the orders being signed by you - - -
58 HER HONOUR: Thank you Mr Jackson. Mr Ngo you have signed that order, and I have now signed it also. I have got one further order I need to make, once I have made that and a copy has been made of this community corrections order to give you, you will be free to leave the court. I have also been asked to make, and I propose to make an order for the retention of the forensic sample already provided by you. I do so, having regard to the seriousness of the circumstances of the offence and note that it was consented to or not opposed. You can take a seat whilst I finish the formalities. Do the orders that I pronounced reflect what I said I intended to do? Any further orders that are required to be made?
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