Director of Public Prosecutions v Diep & Nguyen

[2022] VCC 2002

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00620
CR-22-00621

DIRECTOR OF PUBLIC PROSECUTIONS

v

Thi Hoa DIEP and Tat Tan NGUYEN

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2022
DATE OF SENTENCE:	23 November 2022
CASE MAY BE CITED AS:	DPP v Diep & Nguyen
MEDIUM NEUTRAL CITATION:	[2022] VCC 2002

REASONS FOR SENTENCE
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Subject:Cultivation of cannabis

Catchwords:              Guilty plea – 23 cannabis plants weighing 54 kg (CQ 2.2) – crop sitters – married couple – first offenders – early guilty plea – excellent rehabilitation prospects.

Legislation Cited:      Sentencing Act 1991 (Vic).

Cases Cited:Quaresima v The Queen [2017] VSCA 306; Van Pham v The Queen [2020] VSCA 114; Tyler Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] 249 CLR 571; Williams v The Queen [2018] VSCA 171.

Sentence:                  Diep – 2 year, 6 months’ CCO with 250 hours unpaid community work condition. Nguyen – 1 year, 6 months CCO with 150 hours unpaid community work condition.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	J O’Toole	Office of Public Prosecutions
For DIEP For NGUYEN	C. Nikakis D. Sala	Haines and Polites Haines and Polites

HIS HONOUR:

1Thi Hoa Diep and Tat Tan Nguyen, you have each pleaded guilty to one charge of cultivation of a narcotic plant, namely Cannabis L.

Circumstances of offending

2Your offending occurred on 10 February 2021. 

3The circumstances are set out in the summary of prosecution opening upon plea.[1] They are agreed facts. 

[1] Exhibit A.

4On 10 February 2021, police attended a suburban house at Sunshine West.

5You, Ms Diep, answered the door. You, Mr Nguyen, were also inside the house.[2]

[2]  Transcript of Record of interview (DIEP), Q 52.

6Inside the house, police found:

(a)   in one room, 9 large cannabis plants, weighing 20.00 kilograms, growing hydroponically in pots;

(b)   in the second room, another 16 large plants, weighing 33.65 kg growing hydroponically in pots;

(c)   in a linen cupboard, 37 cannabis seedlings, weighing 67.2 g growing in a tray; and

(d)   in the tray there was a cannabis leafy stem which weighed 1.3 g.

7The total weight of cannabis found was 54.33 kg.

8A commercial quality of cannabis is 25 kg, or 100 plants.

9There was an electricity bypass in the wall behind the power board. 

10In a bedroom, police found clothing and personal items, including  mobile phones and $100 in cash, which belonged to the two of you.

Arrest and interview

11You were arrested. 

12When police interviewed you both gave a St Albans unit as your address.

13You, Diep, admitted you were “in the house with cannabis” when police arrested you.[3]

[3] Ibid, Q 16.

14You admitted there were 25 cannabis plants growing in two rooms.[4]

[4] Ibid, Q 22 and 23.

15When asked whether you had planted the plants, or watered and fed them, or were  being paid to look after them, you exercised your right to remain silent.[5] 

[5] Ibid, Q 25 – Q 28.

16When you were asked about the cash you said it was part of a Centrelink payment which you put in your husband’s wallet.[6]

[6] Ibid, Q 42.

17You said you didn’t know about the electricity bypass.[7]

[7] Ibid, Q 66.

18You, Nguyen, agreed you were arrested at the house.[8]

[8] Transcript of record of interview (Nguyen), Q 15.

19You said you had been visiting the house, each day or second day, for around 10 days, with your wife.[9]

[9] Ibid, Q 18, Q 32, Q 35 and Q 22.

20When asked why you were visiting the house you said, “I just follow my wife, because my wife sponsor me to arrive here”.[10]

[10] Ibid, Q 27.

21You said the two of you were eating and cleaning up.[11] You said you weren’t being paid to do the work[12] and you didn’t know where the wife was being paid.[13]

[11] Ibid Q 35 – 37.

[12] Ibid, Q 39.

[13] Ibid, Q 40.

22You falsely denied knowledge of the cannabis plants being grown inside the house.[14]

[14] Ibid, Q 26.

23After your interviews, the two of you were charged and released on bail to appear at Melbourne Magistrates’ Court on 15 December 2021. 

Chronology of proceedings

24On 21 March 2022, at a committal mention, you both indicated your intention to plead guilty to the charge.

Criminal record

25Neither of you has a criminal record. 

Personal circumstances

Ms Thi DIEP

26You were born in April 1976 in Vietnam.

27You arrived in Australia in 2007.

28You married  in the same year  and divorced in 2011.

29You married again in 2012. The relationship was abusive. It ended in 2016 after your husband had incurred a $36,000 debt on your credit card.

30Your mother had been a regular visitor from Vietnam. In 2019, while she was here, she died from heart problems. As the oldest sibling, you had to arrange her funeral and the repatriation of her remains to Vietnam  without  any financial help.

31Mr Nikakis, who appeared on your behalf, told me,[15] because you were under financial pressure you accepted the offer of work at the cannabis grow house.

[15] In written (Exhibit D1) and oral submissions.

32In 2020, you married Mr Nguyen in Vietnam and sponsored his Australian visa application.

Mr Tat NGUYEN

33You were born in November 1990, also in Vietnam.

34Mr Sala, who appeared on your behalf, told me[16], after you completed your secondary schooling you worked as a shipyard labourer and then as an event organiser.

[16] In written (Exhibit N1) and oral submissions.

35You arrived in Australia in October 2020, after you had married Ms Diep.

36You live with her in an apartment at St Albans. You work as a gardener and support the two of you.

Defence submissions

37Your respective counsel each relied on the following factors: 

(a)   firstly, your early guilty plea;

(b)   secondly, your prior good character; and

(c)   thirdly, you have not reoffended since you were arrested 21 months ago;

in support of a submission I should not imprison you but make a community correction order.

38Mr O’Toole, who appeared for the Director of Public Prosecutions, submitted,[17] while you are not “principal offenders”, because you had an integral role in a commercial scale cannabis cultivation enterprise, your offending is a reasonably serious example of the crime of cultivation of cannabis. 

[17] In written (exhibit C) and oral Submissions.

39The prosecution accepted each of you:

(a)   made your guilty plea early;

(b)   have no criminal record; and

(c)   have endured some delay in your prosecution. 

40The prosecution submitted, because of the nature and gravity of offending, a prison term should be imposed on both of you.

41Considering mitigating factors the prosecution accepted a composite sentence of imprisonment and a community correction order would be within sentencing range.

42Mr O’Toole helpfully referred me to two “broadly comparable” cases.[18]

[18] DPP v Trieu Hai Nguyen [2020] VCC 977 (Judge Cannon), Van Pham v The Queen [2020] VSCA 114.

Consideration

43As the maximum penalty of 15 years' imprisonment demonstrates, cannabis cultivation, non-commercial quality, is a serious offence. 

44Two rooms in the house were set up with elaborate hydroponic equipment. Twenty-five plants were growing in the rooms. Thirty-seven seedlings were being nurtured in a cupboard. The number of plants, 62, is 0.62 times a commercial quantity. The weight of the plants, 54.33 kg, is 2.17 times, a commercial quantity. By weight, it was a commercial scale enterprise.

45It appears you were “sitting” the crop.

46Ms Diep, you knew how many plants were growing in the two rooms  at the property.

47Mr Nguyen, you said the two of you had been at the property each day or so, for 10 days.

48Although you told police you did not know about the cannabis plants, by your guilty plea, you admit you were knowingly involved in their cultivation.

49The number of plants was less than a commercial quantity. While the weight of cannabis exceeded a commercial quantity, it is not prosecution case that either of you knew that.

50I accept, as is often the case, Ms Diep, because of financial stress, you were vulnerable to the offer of reward for illicit work.

51You nevertheless took a big risk; the risk of imprisonment for you and your new husband and for him, the additional risk of deportation.

52I accept he was simply following you in your illegal venture.

53Ms Diep, your moral culpability is greater than his.

54Overall, considering the relatively modest scale of the enterprise and the limited duration of your offending, a single day, I assess the objective seriousness to be low-mid range.

55There are mitigating factors which moderate the sentence I should impose. 

56Firstly, you are entitled to a sentencing discount for your guilty plea which was made at the earliest opportunity. Its utilitarian is even greater while the courts continue to deal with disruptive effects of the COVID-19 pandemic on the administration of justice.[19] 

[19] Tyler Worboyes v The Queen [2021] VSCA 169, at [35] and [39].

57Secondly, this is your only episode of criminal conduct.

58Thirdly, it is nearly two years since you were charged. During that time, you have endured the uncertainty of your outcome and, importantly, not reoffended.

59I assess your rehabilitation prospects to be very good.

60Often, courts are compelled to imprison offenders like you, as the cases, to which Mr O’Toole referred, illustrate, but not always.[20]

[20] Sentencing Advisory Council Sentencing Snapshot, Cultivating a Non-Commercial Quantity of Narcotic Plants, April 2022.

61I have concluded you should be treated with some leniency primarily because your rehabilitative progress would be undone if you are now to be required to serve a term of imprisonment.

62A community correction order is a punitive sanction.[21] Apart from the burden of complying with its conditions, a person serving the order is under threat of imprisonment for its contravention, together with resentencing for the relevant offence.[22]

[21] Boulton v The Queen (2014) 46 VR 308, at [91].

[22] Ibid, at [92].

63Overall, despite the seriousness of your offending, I am satisfied a lengthy community corrections order can achieve all sentencing purposes in your cases.

64I have had you assessed for your suitability for a CCO.

65Because both of you are assessed as a low risk of reoffending minimal order conditions were recommended

66Diep, you were found to be suitable.

67Nguyen, on the basis of your report your permanent residency application has been rejected and you face deportation, you were found unsuitable.

68When you are sentenced, you may be at risk of deportation. However, as there is no material before me to indicate you will be deported, I will make a CCO in your case; as I will, with Diep.

69Because I consider there should be some punitive component to your sentence I will include an unpaid community work condition in each order. 

70I will make different orders for each of you to reflect the differences in the seriousness of your respective offending.

71Please stand Ms Diep and Mr Nguyen.

72By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation.  Considering the circumstances of your offending, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you.

73On the charge of cultivate a non-commercial quantity of a narcotic plant, each of you is convicted and released on a community correction order.

74Ms Diep, the duration of your order will be 2 years’ and 6 months’.

75As a special condition I direct you perform 250 hours of unpaid community work

76Mr Nguyen, the duration of your order will be one year and 6 months’.

77As a special condition, I direct you perform 150 hours community work.

78With your consent, I make a disposal order for the disposal cannabis plants and for mobile phones which police seized. 

79While there is some artificiality of the process, I declare, but for your guilty plea, I would have imposed:

(a)   on you, Ms Diep, a sentence of one year and 8 months' imprisonment and fixed a non-parole period of one year and 2 months' imprisonment; and

(b)   on you, Mr Nguyen, a sentence of 12 months imprisonment and fixed a non-parole period of 8 months. 

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