Director of Public Prosecutions v Hai Van Nguyen

[2012] VCC 1776

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

AT  MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-01902

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
HAI VAN NGUYEN	Defendant

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	5 November 2012
DATE OF SENTENCE:	12 November 2012
CASE MAY BE CITED AS:	DPP V Hai Van Nguyen
MEDIUM NEUTRAL CITATION:	[2012] VCC 1776

REASONS FOR SENTENCE
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Subject:   Criminal Law            

Catchwords:             Sentence – Plea of guilty - Cultivation commercial quantity of Cannabis – Role in offending - Deportation  

Legislation Cited:     Drugs, Poisons and Controlled Substances Act 1981
Cases Cited:            R v Ngo 2007 VSCA 240; R v Wong 2007 VSCA 278;

DPP v Duc Anh Ha dated 15 June 2011 and DPP v Van Chung Nguyen dated 21 June 2011           

Sentence3 years’ imprisonment with 20 months’ imprisonment suspended for a period of 3 years – 173 days declared as having already been served- Sentencing Act 1991 s.6AAA declaration – Ancillary orders

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M. Doyle	Solicitor for Public Prosecution
For the Defendant	Ms L. Scafidi	Doogue O’Brien

HER HONOUR:

1. Hai Van Nguyen you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis which carries a maximum penalty of 25 years imprisonment.  As the maximum penalty reflects, this offence is regarded as most serious.
2. The learned prosecutor opened the matter as follows:

Background

3. By way of background I was told that you are a Canadian national, but that you were born in Vietnam.  You arrived in Australia on a tourist visa in early 2012.  At the time of the offending, you were living at Unit 1, 26 Ellen Street, Springvale with your son- in-law, who is an alleged co-offender.  His name is Minh Nguyen.

Circumstances of Offending

4. At about 9:35 am on Wednesday 23 May 2012, police executed a search warrant at residential premises being 34 Moodemere Street, Noble Park.  The property was owned by your son-in-law Minh Nguyen.

5. When they arrived at the property, police found the alleged co-offender in the driveway and you were hiding inside a bathroom in the house.

6. Police conducted a search of the house and found a sophisticated hydroponic setup which was being used to cultivate cannabis.  Cannabis plants were being grown in six rooms of the house.

7. A watering system was linked via plastic pipes to all of the plants in the house and a complex ventilation system was found within the roof and ceilings of the grow rooms.  The system comprised several exhaust fans and charcoal filters which were being used to mask the smell of cannabis.

8. An electrician conducted an inspection of the property and found that an electrical bypass had been installed in the roof.  This facilitated a bypass of the electrical meter at the house and the unlawful use of electricity to run the hydroponic setup.

9. A large number of items were found and seized from the property, including the following (ref. Exhibit List A, pp 38 to 44):

• 60 electrical transformers;
• 62 light shades and 55 light globes;
• 3 power boards and 1 electrical bypass unit;
• 11 water pumps;
• 11 fans and 3 water heaters;
• multiple quantities of fertilisers and plant growth enhancers;
• 2 mobile phones;
• 1 set of digital scales;
• $130 in cash in your possession, and $730 cash in possession of your son-in-law;
• a set of gloves; and
• a Toyota Aurion sedan.

10. In fact as I understand the position a number of gloves, including pairs of gloves were found at the property, and I will refer to that further in a moment.

11. The cannabis plants were removed from the property and examined by Botanist, Scott Azzopardi.  Mr Azzopardi found that there were a total of 361 plants weighing 49.21 kilograms.  The total number of plants and total weight both exceed a commercial quantity of cannabis.

12. During the period of offending, you and your son-in-law were under surveillance by police.  You were seen attending the property on a number of occasions.  You attended the property on six occasions during the relevant period.

13. A set of gloves found at the property was later subjected to DNA analysis and found to contain the your DNA.  In fact, it appears that a number of gloves were found at the property and DNA analysis was conducted on them. 

14. At approximately 10:55 am on 23 May 2012, police executed a search warrant at your son-in-law's home in Springvale, which is where you and your daughter also lived.

15. A large number of items were found and seized from the property, including (ref Exhibit List B, pp 45 to 49);

• methyl amphetamine weighing 510 grams;
• dried cannabis in various locations in the unit  weighing a total of 5.7 kilograms;
• $83,050 in cash (in $50 and $100 bills);
• a number of sets of digital scales and snap lock bags;
• cutting agent;
• numerous mobile phones and sim cards;
• electrical, gas, water and council rates bills in the name of your son in law for the Noble Park property; and
• a Canadian passport and travel documents which belonged to you. 

This aspect of the opening was to provide context only, and neither the drugs nor the monies or other items found at this address are led against you as part of your offending, and I do not sentence you on any other basis than that which is alleged against you being your role in the offending at the other property.

Arrest and Interview

16. You and your son-in-law were arrested and taken to Dandenong Police Station where you were interviewed.

17. When interviewed, you said to the police:

·“…the kid took me there, that’s all I know.” (Q&A 14, p.347);

·You admitted that you had attended  the Noble Park property previously (Q&A 72, p.356);

·You said that you attended the property “…to help them to set up the garage.”(Q&A 73, p.357);

·You said that you attended a couple of days ago, that you did not do anything when you were there and the you just mucked around. (Q&A 78 to 79, p.357);

·When asked what kind of plants were in the house, you answered “I don’t know.” (Q&A 95, p.360; see also Q&A 154, p.369);

·You also said “I don’t pay attention.” when asked to describe which rooms the plants were in (Q&A 96, p.360);

·when asked how long the plants had been in the house for you said “I don’t know.” (Q&A 97, p.360);

·You told police that the first time you saw the plants was “…when (you) had just arrived, maybe two or three weeks ago.” (Q&A 98 to 99, p.360);

·You said “I went there maybe twice or three times only.” When asked how many times you thought you had gone to the property in the last three weeks you said that “…people drove me there.” (Q&A 100 to 101, pp 360 to 361; Q&A 155, p.369);

·You stated that you arrived in Australia on 20 March 2012 (Q&A 102 to 103, p.361);

·You also said “I went there, but I just sat there not doing anything.” (Q&A 105, p.361);

·You denied attending to or watering the plants or having anything to do with the plants, saying “No. No, I did not do anything, but if they ask me to help out anything, I would have, like, you know, carrying things…Carrying things, like, such as furniture.” (Q&A 109 to 110, p.362);

·When it was put to you that there was not much furniture in the house and you were asked what you were referring to, you said “Like – you know, like – like handyman assistance, like they told me to do – whatever they told me to do then I did it.” (Q&A 111, p.362);

·In relation to the lights in the grow rooms you said “I had to help him, so when – when he asked me to hold it, then I held it.” (Q&A 179, p.373); and when asked if you knew much about illegal drugs, you said “I don’t know.” (Q&A 187, p.375);

·When asked if you knew what cannabis or marijuana was, you said “No.” (Q&A 188, p.375);

·You said that you did not know about the cash and drugs found at the Springvale property (Q&A 214 to 216, pp 379 to 380);

·When it was put to you that you cultivated or helped cultivate cannabis you said “I came here for – as tourist to visit my kids and my grandkid.  I did not pay attention or do any other thing.  Don’t know what to say.” (Q&A 226, p.382);

·You further said “I just want to say that I did not do anything.” (Q&A 240, pp 385 to 386).

18. Mr Nguyen, your role is confined to attending the crop growing premises on six occasions and assisting your son-in-law with maintenance of the crop growing setup.  Gloves which contained your DNA were also found at the premises; indeed, it appears from the forensic scientist’s report that more than one pair of gloves were found, as well as two gloves which were perhaps not of a pair.  In discussion with the prosecutor, she pointed out that the gloves where your DNA was found appear in Photographs 52 and 67. 

19. The Crown submitted that your role was greater than that of being a maintenance man as you told the police, relying on the DNA results in respect of the gloves.  I have viewed photographs of these gloves in situ and have reviewed the DNA evidence.  Your counsel Ms Scafidi submitted that I could not be satisfied that you were using the gloves to actually tend the cannabis crop and said that she had no instructions from you as to how your DNA came to be on the gloves.  She posited that the gloves could have been used by you in the course of your maintenance work and that there was no dirt on them which would indicate that you had not been more hands on in respect of the cultivation.

20. She submitted that you were only at the premises for one hour on each occasion you visited and that this was not enough time for you to also attend the crop.  I must say that to my inexpert eye, it does appear that there is dirt on the pairs of gloves in the photos, and I cannot see why there wouldn’t be time enough for you to actually tend the plants on any given visit.  However, while I am of the view that you probably were more involved than what you conveyed in the record of interview the state of the evidence is such that I cannot find this beyond reasonable doubt.  Therefore I sentence you on the basis of your stated involvement which is serious enough in any case.

21. You were prepared to help your son-in-law cultivate a commercial quantity of cannabis, and you had the requisite state of mind to do so.  At the very least, you had a reckless state of mind as to the quantity of cannabis you were helping to cultivate.  The quantity was more than three times the threshold for commercial quantity insofar as the number of plants is concerned, and was nearly twice the weight threshold.  In assessing the level of commerciality, I factor in the weight of the leaves and flowering heads, and equivalent air dried weight, noting that the plants were yet to reach maturity.  But I do not speculate on what the weights might have been if maturity had been reached.

22. You were less than frank with the police in some respects in your record of interview in my view.  You hid from them when they arrived at the house and yet you told them that you did not know what kind of plants were in the house and that you did not know that the plants which you were growing there was cannabis or marijuana.  By your plea of guilty you acknowledge that you knew very well what the plants were, and that what you were doing was illegal.  You told police that you did not do anything but clearly you attended this crop house on six occasions and helped out as required in terms of maintaining it, or as your counsel put it, performing maintenance tasks on the cultivation outfit as directed you by your son-in-law. You were actively involved in the cultivation in this way, notwithstanding that I do not sentence you on the basis that you actually tended to and nurtured the cannabis plants.  Nor do I sentence you on the basis that you helped set up the crop house.

23. You arrived on the scene after this time and are to be sentenced for assisting in the ways I have just outlined on six occasions for about one hour each time over a four week period.  Your counsel submitted that you inadvertently became involved in this work, having arrived here, that is arrived in Australia, to visit members of your family. She said that you did not come here for the purpose of cultivating cannabis, but became involved as you did in order to help out your son-in-law.  She said that in doing so you were somewhat naïve.  

24. Mr Nguyen, I do not accept that you became involved inadvertently at all. You attended and helped at the premises on six separate occasions.  You did so with your eyes open.  Your decision to help in such an enterprise on a continuing, notwithstanding sporadic basis, bespeaks a lack of moral fibre on your part.  You may have pleaded guilty at the earliest opportunity, but in circumstances where there are disingenuous aspects to your record of interview, and where you behaved criminally on an ongoing manner, I am unable to find that you have any remorse beyond feeling sorry for your own predicament.  Whilst your role is at the lower end of the spectrum, and I am unable to find that you were motivated by personal greed or financial gain in helping your son-in-law, you still played an important role in the scheme of things.

25. Your conduct must be punished and denounced and strong weight must be attached to general deterrence. I take into account that your preparedness to help your son-in-law was out of family loyalty rather than for reasons of financial gain, which is often the case, I do not regard this as something which reduces your moral culpability, or which reduces the weight I ought give to general deterrence.  Rather, it is something which ought be characterised as an absence of an aggravating feature.

26. You are entitled to a significant discount in the sentence that you would otherwise receive because of your early plea of guilty.  You have saved the witnesses the time and trouble of giving evidence, and you have saved the community the time and expense of running contested proceedings.  You have no prior convictions which I take into account in your favour.  It would appear that this is not the common situation where those without criminal histories are targeted so as to assist in the avoidance of detection.  Also, although there are aspects of your record of interview which seek to minimise your offending and knowledge in the ways I have set out, I accept that you made some admissions which is to your credit.  You have some family here and family at your home in Canada, and have found your time on remand a most difficult and ‘sad’ experience.  I also take into account the character references which were provided today and find that except for this offending you are of otherwise good character.  Taking all of these matters into account I find that your prospects of rehabilitation are good, and that I need place only minimal weight on specific deterrence.

27. I factor in that your time in custody of about five and a half months thus far comprised of two weeks in the cells at Melbourne and then at Melbourne Remand Centre (MRC) for the remaining period.  It is most unfortunate that you were required to spend two weeks in the cells which was due to the fact that there was insufficient room in a remand centre at that time.  I also take into account that you have had difficulties on remand due to your poor numeracy and literacy skills as well as language difficulties, which has and which will make time in gaol harder for you than for someone without these drawbacks.  Because of these you have not been able to engage in any courses or work until recently when you have been able to engage in cutting timber at the MRC.

28. I was told that you suffer from tuberculosis and from partial deafness which resulted from a chronic ear infection.  Your counsel told me at the plea hearing that your daughter was to provide documentation in respect of these, but I have now since been advised that she has been unable to obtain the information.  I was subsequently told that the documentation was to come from Canada, but that your solicitors have been unable to obtain this due to logistical difficulties.  In the circumstances, I am not prepared to accept that the assertions which were made from the Bar table as to your state of health, I accept that this is what you have instructed your counsel but in the absence of any documentation, I am not prepared to take these matters into account insofar as your state of health is concerned.

29. I take into account your background:  You were born in Vietnam on 18 July 1953 and are now 59 years old.  You were raised during the Vietnam war and grew up in a very poor industrialised area.  Both your parents worked in factories and when you were in Year 2 and only eight years old you left school in order to look after your six younger siblings aged from seven down to infancy.  You ran the household from this early age and when you were 14 you obtained a job as a ‘run around’ or labourer at the local market.  From the age of 17 you worked in a factory and your pay was used to help you with household expenses.  You worked in this capacity until aged 32 years.  Both of your parents are deceased.  All of your siblings now work in Vietnam as factory hands, but you left Vietnam when you were 32 years old in 1985, spending three years in a refugee camp in Hong Kong which was run like a prison.  

30. Ultimately you were granted refugee status and resettled in Toronto Canada.  Here you worked in a tyre manufacturing company but when this company went bankrupt you went onto social security for a year. You then worked as a fruit picker.  This was your occupation as at the time of your arrest although I understand that you did not work in Australia this field.

31. You had married in 1979 in Vietnam but divorced in 2002 when you were living in Canada.  You have an amicable relationship with your former wife.  You have four children, whose ages range from 22 to 27 years.  Two of your children have settled in Australia.  Your daughter, who is married to the co-offender, has one child and one who was born on the day of the plea hearing, and as a result she was unable to attend that hearing.

32. You were able to save sufficient funds to come to Australia to visit your family here, and entered Australia on a tourist visa for that purpose.  As at the time of your arrest you were here legally, but in June your visa expired and you are now an illegal non-citizen.  Inevitably, you will be deported.  Your counsel submitted that this will be a hardship for you as you will  most likely be unable to visit your children or grandchildren here.  While this is regrettable, as is the fact that you are imprisoned in a place far from your home, these are the risks that you chose to take in committing a serious criminal offence in Australia.  In any event, there is nothing to prevent your children and grandchildren in Australia visiting you in Canada.

33. Upon being invited to do so the Crown submitted that an appropriate range of sentence in your case was between two and a half and three and a half years’ imprisonment with a minimum period of between 21 months and 27 months’ imprisonment.  I was provided with two authorities, being R v Ngo 2007 VSCA 240 and R v Wong 2007 VSCA 278 which were said to be similar cases to yours.  I note that in the case of Ngo, the offender’s motivation was to feed his gambling addiction and in the case of Wong his motivation was for financial gain.  Also as Ms Scafidi pointed out Mr Ngo was sentenced following a trial whilst Mr Wong actually set up the cannabis crop.  

34. Your Counsel submitted that the range of sentence submitted was far beyond that which was appropriate in your case, and referred me to the authorities of DPP v Duc Anh Ha dated 15 June 2011 and DPP v Van Chung Nguyen dated 21 June 2011. When I say authorities they were actually sentences of the Chief Judge of this court.  In both of those cases, although the motivation was financial gain I note that the period of offending was limited to one day only.  Ms Scafidi submitted that an appropriate sentence in your case ought involve you serving an immediate term of between six and twelve months’ imprisonment and that it would be appropriate to impose this by way of a partially suspended sentence.  This might have been appropriate if your offending was confined to one day of offending, but it was not.

35. I have had regard to the authorities referred to at the plea hearing and to other cases which guide me in terms of current sentencing practice, which is one of the matters I should take into account when sentencing you.  I have also had regard to the matters which are particular to your case and to the weight that I must give to relevant sentencing principles, and the maximum penalty for this offence.

36. Would you please stand up Mr Nguyen:

37. In respect of Count 1 cultivation of a commercial quantity of cannabis you are convicted and I sentence you to three years’ imprisonment but I will suspend 20 months’ of that term this such that you will have to serve 16 months’ imprisonment immediately, and 20 months’ imprisonment will be suspended for an operational period of three years.  That means that you will only risk serving the remaining 20 months’ gaol if you commit a further offence which is punishable by gaol in the next three years.  If you do commit a further offence within this period which is punishable by gaol, then unless you can show exceptional circumstances which have arisen since this sentence was imposed and which would make it unjust to do so, you will be required to serve the further 20 months’ gaol.

38. I declare that you have already served 173 days in custody  which will be reckoned as being served - as being part of your sentence already served.

39. If not for your plea of guilty I would have sentenced you to an immediate term of four years’ imprisonment with a non-parole period of  two years eight months’ gaol.

40. I order that the forensic sample previously obtained from you be retained because of the seriousness of the offence, because you are not opposed to the order being made and because it is in the public interest to make the order.

41. I also make the disposal order which was sought by the Crown and not opposed by you, noting that the order has been amended by the Crown in keeping with matters that had been in dispute previously as between you and the Crown.  Those items as I now understand it have now been removed from the disposal order which I have signed.

42. Take a seat, thank you.  Is anything further. 
43. MS DOYLE:  No Your Honour.
44. MS SCAFIDI:  No Your Honour.
45. HER HONOUR:  Thank you, yes, you may remove the prisoner, thank you.  Thank you Madam Interpreter, we'll now adjourn.

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