Director of Public Prosecutions v Do

[2022] VCC 1861

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

CR-21-02587

CR-21-02588

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

PHUONG DO

ANH NGUYEN

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JUDGE:	HER HONOUR JUDGE SYME
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2022
DATE OF SENTENCE:	26 October 2022
CASE MAY BE CITED AS:	DPP v Do & Anor
MEDIUM NEUTRAL CITATION:	[2022] VCC 1861

REASONS FOR SENTENCE

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Subject:         CRIMINAL LAW

Catchwords:  Trafficking in a drug of dependence – Commercial quantity – Cannabis – Permitting use of premises for trafficking in drug of dependence -

Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Sentence: Phuong Do – Community Corrections Order of 18 months duration. Anh Nguyen – 3 years imprisonment with a non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Zubreckyj	Ms A. Lekamge
For Accused Do	Mr J. Valos	Valos Black & Associates
For Accused Nguyen	Mr C. Nikakis	Haines & Polites

HER HONOUR:

1In this case the offenders are Mr Anh Nguyen, who was born in February 1990, and Ms Phuong Ngoc Do, who was born in August 1988. Mr Nguyen has pleaded guilty to one count trafficking a commercial quantity of the substance, cannabis; and Ms Do has pleaded guilty to permit use of premises for the purpose of supplying a prohibited drug. The accused were arraigned two days earlier.

2The maximum penalty for the charge of supply a commercial quantity of drugs is 25 years' imprisonment, and the maximum penalty for the offence of permit use of premises is five years' imprisonment. The facts relevant to the offences are as set out in the prosecution opening and are not in dispute.

Circumstances of offending

3In summary, Mr Nguyen, who was then aged 31 years, and Ms Do, who was then aged 32 years, resided as friends in rented premises at Biggs Street,
St Albans. Evidence is available of both parties occupying the property at various times; the offending was largely centred at that property

4The offending was discovered on 22 June 2021 when a search warrant was executed at that address. Both Ms Do and Mr Nguyen were present. A search was conducted, and police located cannabis plants growing and in various stages of preparation for sale. The details of the drugs and the stages of preparation are included in the prosecution opening and I do not propose to detail them here, but they are significant.

5Some cannabis was still in the drying phase whereas other portions were packaged and ready for sale. Additionally, two propagation trays with operating heat lights and clear plastic lids were found to contain a total of 139 plants. The cannabis located at the premises was logged and photographed and form part of the prosecution case. The total amount of air-dried cannabis leaf and flowers at Biggs Street weighed 75.94 kilograms.

6Police also located, in various places, a total of $46,030.00 in cash, multiple phones and SIM cards. In the garage, police located seed raising material, boxes containing litre bottles of liquid fertiliser, multiple fans and multiple light bulbs.

7There was a car in the garage and inside, was a wallet containing Mr Nguyen's driver's licence. Both of you, Ms Do and Mr Nguyen, were arrested separately, and conveyed to the police station. The police conducted a record of interview with both of you, individually, assisted by a Vietnamese interpreter. No admissions of note were made. You were both charged and remanded in custody.

8Later that day, police searched a self-storage unit at Ashley Street in Braybrook. That property was leased to Mr Nguyen. In the storage unit, police located lights, kits, power boards, boxes, fans, pots and ventilation devices; paraphernalia which could all be used for the cultivation of cannabis.

9Forensic analysis was conducted and confirmed Mr Nguyen's DNA and fingerprints on various items related to growing and harvesting.

Deportation

10Other consequences of the offending for Mr Nguyen are that in addition to the sentence to be imposed today he will be subject to a deportation order, noting that he is currently in Australia without a valid visa. I note Ms Do is apparently on a bridging visa.

11Something has occurred to me that I meant to ask Mr Nikakis about. Sir, thank you. Sorry to bother you, but you indicated in submissions to me that your client could not go home to Vietnam prior to this offending because Vietnam had its borders closed.

12MR NIKAKIS:  Correct.

13HER HONOUR:  My enquiries are that borders were only enclosed to foreign nationals. I do not know that it is particularly important, but do we have any advice on that?

14MR NIKAKIS:  All I can say, Your Honour, is my experiences were that a number of my Vietnamese clients were unable to return because of the borders being closed but I cannot take it any further.

15HER HONOUR:  Yes, all right. Probably not terribly important.

16MR NIKAKIS:  No, I agree with Your Honour.

17HER HONOUR:  But I checked the website and the website said - was that it closed at particular times but only to foreign nationals, so I do not know.

18MS ZUBRECKYJ:  Your Honour, if I might assist, Your Honour.

19HER HONOUR:  Yes.

20MS ZUBRECKYJ:  My instructions from the informant are that while the borders were closed between the period of March 2020 to November 2021, it was still open for returning nationals to go home.

21HER HONOUR:  There you go, all right. I just thought I would check that because I am going to mention it later. I do not know if it is of great importance, but it has been placed on the record. In any event, back to my sentence.

Character

22Neither offender has any prior criminal convictions, therefore each is entitled to a degree of leniency for their prior good character. This may also point to each having reasonable prospects of rehabilitation.

Early pleas

23It is conceded by the prosecution that both of you, Ms Do and Mr Nguyen, pleaded guilty at the first available opportunity. Ms Do had offered a similar plea about four months after her arrest but it was not accepted until much later.
Mr Nguyen pleaded guilty, as I understand, in August, I gather, of 2021 after negotiations.

24It is conceded, nevertheless, that each are entitled to a generous Worboyes type discount as a result of the early plea. It is also noted that the early plea may also be evidence of remorse and relevant to prospects of rehabilitation. This is even more relevant where neither offender has a prior criminal record.

Pre-sentence detention

25Each of you have spent a considerable amount of time in custody. Mr Nguyen, since your arrest in June 2021, you have spent over one year and three months in custody. Ms Do you spent 172 days in custody before being granted bail. It is conceded that custody has been onerous for both of you as a result of various COVID lockdowns, communication restrictions and the isolation owing to your family largely living overseas.

26Language difficulties have no doubt contributed to your sense of isolation while in custody. Additionally, when Ms Do was granted bail, she was subjected to significant curfew restrictions for some time. These restrictions in custody, and restrictions for you, Ms Do, whilst on bail, will be taken into account and reflected in the sentence I impose.

Objective seriousness

27In assessing the objective seriousness of the offending as a whole, I note that there are no factual matters in dispute.

28The following matters are relevant to both of you. (1) The property had been rented by both of you for 18 months prior to detection. Each charge relates only to the day of detection, but the evidence that the offending was not confined to that single day is overwhelming. There is ample evidence of a sophisticated cultivation operation aimed at supply on a significant level. As said earlier, over 75 kilograms of dried cannabis was located. This is three times the lower limit for a commercial quantity and about a third of the lower limit for a large commercial quantity.

29This is neither an aggravating, nor a mitigating, matter for the supply charge against Mr Nguyen. The quantity involved is, of course, significant, and the drug was in various stages of growing or drying in almost every room of the house. In effect, most of the house was given over to the supply venture in some way or another.

30While it is noted that Ms Do is charged with an offence relating to the use of the premises for supply simpliciter, the scale of the operation must be taken into account when assessing the objective seriousness of the charged offence against you, Ms Do. It was clearly an operation with a sophisticated degree of organisation, as evidenced by the scale of the operation, the different stages of growing, and the packaging observed on the day the search warrant was executed.

31The fact that the cannabis was in various stages of preparation for sale indicates a continuous production. As far as the evidence and the pleas of guilt and the admissions show, you, Mr Nguyen, were solely involved and responsible for the operation, from growing to packaging for sale. The location of the storage in which paraphernalia for growing was located, indicates a largescale and organised operation. Although the charges relate to a single day, it was not submitted that they were not living there for some time prior, nor was it submitted that Ms Do was not fully aware, or that Mr Nguyen was not fully involved in the supply or the use of premises as charged.

32Mr Nguyen, you indicated to Mr McKinnon that the purpose of the offending was to obtain money. I note that your legitimate work apparently ceased during COVID lockdowns and that you were not eligible for any social support due to your then visa status. Your options were, apparently, to return to Vietnam or, as you did, find an illegitimate source of income. I was advised that returning to Vietnam was not an option as borders were closed, but I will refer to this later. That there is no evidence of actual sale does not assist you, Mr Nguyen. There is ample evidence of preparation for same. For the charge against you, Mr Nguyen, the offending falls in about mid-range of objective seriousness for the offence charged.

33In relation to you, Ms Do, you indicated to Dr Harridge that you separated from your current husband in 2019, that you reunited with him in 2020 and then married him in January 2021During this time, you reported that you stayed in the subject property from time to time. I note the lease was signed in about January 2020. On your self-report, you lived at the premises the subject of this offence, for a few months before June 2021. The timeline is unclear.

34There is ample evidence that you, Ms Do, were fully aware of the use to which the premises you were residing in was being used for. You told police that you were not paying outgoings on the premises. Relevantly, police noted a very strong smell of cannabis throughout the property. Equipment and cannabis was, as mentioned, found in most rooms and in the garage of the house. That it was a large and sophisticated operation ought to have been obvious and by your plea, you accept that. Your charged offending is at the mid-level of objective seriousness.

Personal circumstances - Do

35I now turn to each of your personal circumstances. First, Ms Do’s.

36It is noted that you were originally charged with trafficking, and you spent a little over five months in custody. After that, you were given strict bail conditions with a curfew among other conditions. This will be taken into account as some form of punishment. The report by your psychologist is tendered by consent. It does not contain any issue of concern for your mental health. Testing results indicate mild levels of depression, moderate levels of anxiety, and normal levels of stress. That, I observe, is not surprising for a person in your current predicament.

37The report also sets out an observation of the support that is available in the community. There is a suggestion that during the course of the offending, you drifted away from community support. Your risk of reoffending is currently considered to be low and protective factors available for you include prosocial supports from your employers, from your husband, your sister, your mother and from your friends. I am told that you maintain current employment, that you are in the process of reconciling with your husband and that you have stable accommodation by yourself.

38You currently present as amenable to treatment intervention and management, and it is suggested that your rehabilitation prospects remain positive. Any treatment for psychological intervention delivered in Victoria would require a Vietnamese interpreter to facilitate more complex conversations and interventions.

39Dr Harridge recommended that if you experience symptoms of depression or anxiety it is important that you be assisted to obtain assistance. My observation is that you have some significant issues in your life and that an objective assessment and supervision and assistance in areas related to your mental health and resilience in general might well assist in ensuring that you remain offence free in the future.

Personal circumstances - Nguyen

40Mr Nguyen, a consultant psychologist prepared a report after interview with the assistance of an interpreter. Difficulties occurred in communication. You reported that you were born in the central highlands region of Vietnam and raised by your biological parents. You report a good relationship with your parents and siblings. Your father is very unwell but your mother is still working in the family business. You completed a university environmental engineering degree at Dalat University when you were around 22. You arrived in Australia in 2013, a year later.

41You stated that you worked in many jobs but at the height of COVID little work was available. I have discussed with counsel my understanding that when you lost work in Australia you could have gone back to Vietnam, but you chose not to do so. You further reported that in 2009 you had been assaulted and suffered head and other injuries. As a result, I am told you suffered serious mental health problems.

42Mr McKinnon in his report has surveyed some medical records which noted that at one stage you were diagnosed with undifferentiated schizophrenia and treated with some pharmaceutical drugs. I note that you were notwithstanding this episode, able to complete your university education. I note that you do not qualify for Medicare assistance in Australia, but I also note when you were apprehended there was $45,000 found in the house.

43Mr McKinnon opines that at the time of your offence you were likely suffering from these two degrees of
mental disorder but given the communication difficulties he was unable to make the required link between your mental health difficulties and the offending. It is accepted that you continue to suffer with residual post-traumatic stress disorder and perhaps some schizophrenia presentation. This will make the time you serve in custody more onerous, and I will take it into account under the Verdins principles. I accept your father's poor health is also of concern to you.

Sentencing considerations - Do

44In considering a disposition for you in this matter I will take into account the 172 days you have spent in custody after being refused bail. The refusal of bail was probably as a result of the not unreasonable initial conclusion that both Mr Nguyen and yourself were involved in the actual supply and/or involvement in the whole of that activity in the home. I accept that, for the offence that you have pleaded to, a plea accepted by the prosecution, a sentence of imprisonment is not required.

45Your time in custody is a significant specific deterrent against future offending and can be taken into account as punishment. Delay is a minor, but present, consideration. If your initial offer to the prosecution had been accepted at that time, the matter may have been able to have been dealt with much earlier.

46However, considering the objective seriousness of the offending as a whole, dealing with the charged offence by way of an undertaking, either with or without conviction, would not, in my view, give proper weight to the need for general deterrence. I accept the concession from the Crown that there is no further need for specific deterrence or specific punishment. It is a principle, however, that general deterrence is a strong requirement for offending of this nature, particularly, at this scale.

Sentencing considerations - Nguyen

47General deterrence is a significant consideration in a sentence for this matter. Your mental health difficulties do not reduce your moral culpability, but the protection of the community and specific deterrence are still important matters. It is conceded that an imprisonment sentence is the appropriate disposition, and it is noted that you will be deported at the conclusion of your sentence.

Sentence

48        I will now first impose sentence on you, Ms Do, and then Mr Nguyen.

49In my view, Ms Do, your matter can be adequately dealt with by way of a Community Corrections Order with supervision for a period of 18 months. As a result of the fact that you have served some time in custody, I do not propose to require you to complete any unpaid community service work. The purpose of the supervision will be to ensure that you receive proper support in the community and have an objective person to discuss your needs with.

50As I said, I propose to make an order for a Community Corrections Order of 18 months duration. I understand you have now been interviewed and have had these conditions explained to you. I am told that you consent to the order being made.

51The mandatory terms of the order are that you must be of good behaviour; you must not commit another offence for which you could be imprisoned; you must comply with any obligation as required by the regulations; and you must report to, or receive visits from, a representative of Community Corrections. Finally, you must report to Sunshine Community Corrections within two days and let Corrections know of any change of address or employment.

52For you, Ms Do, a community corrections order ought to be something that supports you in the future. Mr Valos, I am sure you will explain how supervision can assist her in the future. That is my intention, thank you.

53MR VALOS:  I will do that, I will, Your Honour.

54HER HONOUR:  I am sure you will. I have a couple of other things I must deal with. I have formally taken into account the 172 days that have been served.

55MR VALOS:  Is Your Honour declaring them as pre-sentence detention?

56HER HONOUR:  No.

57MR VALOS:  No.

58HER HONOUR:  Look, my intention is to - no, I am not. I am taking that into account as punishment, but I am not taking it into account as pre-sentence detention because I think the record should show that this is not a matter for which an imprisonment order is required.

59MR VALOS:  Thank you, Your Honour.

60HER HONOUR:  That is my intention.

61MR VALOS:  Thank you for clearing that up.

62Mr Nguyen, taking the discounts into account, I propose to sentence you to a term of imprisonment of three years with a non-parole period of 18 months. I note pre-sentence custody is a little over 490 days.

63MR NIKAKIS:  (Indistinct) read out that it is 491 days, Your Honour.

64MR NIKAKIS:  He has got about 49 days to go.

65HER HONOUR:  Before he is eligible for parole.

66MR NIKAKIS:  Yes, yes.

67HER HONOUR: He is eligible for parole in that many days but of course that will result not necessarily in him being released. He may go into immigration detention. He knows that, does he?

68MR NIKAKIS:  That is the usual practice. Once the deportation order has been put in place, they are escorted from the prison to the
Immigration Detention Centre.

69HER HONOUR:  Ms Do, had you not pleaded guilty and the matter had gone to trial, I would have imposed an imprisonment term of
12 months with a non-parole period of nine months.

70For Mr Nguyen, the 6AAA declaration is six years with a non-parole period of four.

71I will also make the requested disposal and forfeiture orders for the substances and the equipment found in the storage unit. I note that approximately $45,000.00 in currency is forfeited by consent. I will sign the Community Corrections Order and make that available for Ms Do to sign, who is here. Is there anything else I should be doing, Madam Crown? Anything I have forgotten?

72MS ZUBRECKYJ:  No, Your Honour. Thank you.

73MR VALOS:  No, Your Honour.

74HER HONOUR:  Anything I have forgotten?

75MR VALOS:  No.