Director of Public Prosecutions v Hau Xuan Nguyen
[2019] VCC 515
•12 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01919
Indictment No. H13216252
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAU XUAN NGUYEN |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 27 March 2019 | |
DATE OF SENTENCE: | 12 April 2019 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Hau Xuan Nguyen | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 515 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of cultivation of a narcotic plant in a commercial quantity (based on weight) – plea of guilty – offender is a “crop sitter”
Legislation Cited: Sentencing Act 1991(Vic) s3(1), s52A; Drugs, Poisons and Controlled Substances Act 1981, s72A
Cases Cited:R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; DPP v Van Lam Vu [2018] VCC 106; DPP v Dong Zhu [2017] VCC 427; DPP v Qui Nguyen; DPP v Quan Nguyen [2018] VCC 175; DPP v Ba Sinh Nguyen [2016] VCC 451; Phillips v R [2012] VSCA 140; Njoc Nguyen v R [2017] VSCA 286
Sentence: 20 months imprisonment
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z Menon | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms A McLure | Leanne Warren & Associates |
HIS HONOUR:
1 Hau Xuan Nguyen, you have pleaded guilty to the charge that you, at Ferntree Gully in Victoria on 21 November 2017, cultivated a narcotic plant, namely Cannabis-L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant. Such an offence is contrary to s72A of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of twenty-five years’ imprisonment.
2 The Drugs, Poisons and Controlled Substances Act 1981 (Vic) provides for a set of offences in relation to the cultivation of a narcotic plant that distinguishes between large commercial, commercial and less than commercial quantities of the illegal plant (see s72-72B of that Act). The amount that constitutes a commercial quantity in relation to Cannabis-L is 25 kilograms and/or 100 plants.
3 The prosecution case was that you intentionally cultivated not less than a commercial quantity of Cannabis-L based on the weight of the Cannabis-L.
4 Section 3(1) of the Sentencing Act 1991, defines the offence of cultivation of narcotic plants in a commercial quantity to be a “Category 2 offence”, when committed by a person who is eighteen years or more. Such provision came into operation on 20 March 2017 and was in force at the time of your offending.
5 Because the charge on Indictment constitutes a Category 2 offence, s5(2A) of the Sentencing Act applies. That section provides that when sentencing an offender for a Category 2 offence, the Court must make an order under Division 2 of Part 3 (that is, a custodial order) other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with s44 of the Sentencing Act, unless statutory exceptions apply. In the circumstances of this matter, nothing much turns on such provision, as I had been informed that you have been remanded in custody for a period of 491 days, up to and including 26 March 2019.
The circumstances of the offending
6 Counsel for the prosecution tendered a document “Prosecution Summary for Plea Hearing” dated 6 March 2019 (exhibit 1) and I was informed by your counsel that you agreed with the contents of such document. In particular, I note the following:
·You are forty-two years old, having been born in Vietnam on 30 April 1976. At the time of the subject offending you were forty-one years old.
·You arrived in Australia at the end of July 2016 on a two-month tourist visa.
·The subject offending took place at a property situated at 19 Arundel Street, Croydon (the premises). On 22 September 2017, Victoria Police commenced an investigation into the cultivation of cannabis at the premises after receiving information from an electricity supplier that the amount of electricity used at the premises was “suspicious”, suggesting that an electricity bypass was possibly installed.
·Investigations revealed that utility services related to the premises were connected on 17 July 2017, with the account holder being listed as Lin Tran, who purportedly lived in Burpengary, Queensland. The contact details of that person included an email address. Enquiries with Queensland police established that no person of that name resides at the Burpengary address, nor is there any record of that person under the Victoria Police Law Enforcement Assistance Program (“LEAP”) database.
·Surveillance of the premises was conducted over the period between 22 September and 21 November 2017. Such surveillance revealed that:
– on 14 November 2017, at 10.47pm, a silver Nissan Maxima, driven by an Asian male, was observed in the driveway of the premises
– on 21 November 2017, the same vehicle arrived at the premises and went into the premises from the rear.
·The registered owner of such vehicle was Son Truong Ta, who was said to be born on 26 January 1983 and living in Springvale. Although there was no record of Ta in the LEAP database, he was identified on the VicRoads database as living at Springvale, although not the holder of a Victorian driver’s licence. Immigration checks revealed that there were no corresponding records on Department of Immigration and Border Protection systems matching any of these details.
·On Tuesday, 21 November 2017, Victoria Police executed a search warrant at the premises, where you were found and arrested when attempting to leave the premises via a dining-room window. At that time, you were in possession of a set of keys for the premises, and also a set of car keys for a car which had been previously observed coming and going from the premises.
·The premises consisted of a single-storey brick veneer building with three bedrooms, kitchen, lounge room, dining room, laundry, bathroom and toilet, with a detached garage and carport area.
·Three bedrooms and a lounge room were set up as an hydroponic cannabis-growing room. Equipment in the rooms included lights, shrouds and irrigation. The bathtub was set up to fertilise the plants, utilising an irrigation system set up in each of the rooms.
·A total of sixty-nine cannabis plants were located, together with some loose cannabis material. An electrical bypass was also located at the premises.
·On 22 November 2017, an officer of the Victoria Police Forensic Services Centre attended the premises and confirmed that the narcotic plant removed from the premises was Cannabis-L and consisted of:
– sixty-nine plants removed from the premises, with a total weight of 60.24 kilograms
– loose green vegetable matter (identified as Cannabis-L) with a total weight of 8.7 kilograms.
·The total weight of the cannabis located at the premises was 68.94 kilograms.
·You were interviewed by police at the Ringwood Police Station on 21 November 2017, in the company of a Vietnamese interpreter. During your interview, you stated, among other things:
– that you were asked by two friends to go to the premises and look after the plants (Q81-82)
– you were given instructions on how to look after the plants, and such instructions were in the bathroom at the premises (Q82; 84)
– you knew that the plants were cannabis plants (Q88)
– you had attended the house four times, usually on a Monday or Tuesday, and the first time was about two months ago (Q89)
– you had never purchased products (fertiliser et cetera) for the house (Q95)
– you were paid $250 each time that you attended the premises (Q99).
·In the vehicle you were driving, there was found receipts from Bunnings, Springvale, dated 4 September 2017. CCTV footage shows you and another man entering Bunnings on that particular day. Two receipts dated that day from Bunnings reveals purchases for a total amount of $436.65, including the purchase of plasterboard, timber, hand tools, respiratory protection, gloves, soil improver and fertiliser.
·You were charged on 21 November 2017 and remanded, after which there were a variety of adjourned committals, until a contested committal occurred on 19 September 2018, after which the matter was resolved. As I have already noted, you have been remanded in custody for 491 days, up to and including, 26 March 2019.
Prior criminal record
7 Counsel for the prosecution tendered your criminal record, dated 5 March 2019 (“exhibit 2”) and you agreed with the contents of that document. At the Frankston Magistrates’ Court on 13 September 2016, you were found guilty of trafficking cannabis and sentenced to a term of immediate imprisonment of sixty days, being released on 6 October 2016 (you were on remand for a certain period prior to being convicted of the offence on 13 September 2016).
Your personal circumstances and background
8 Your counsel tendered a document headed “Defence Outline of Submissions on Plea” (see exhibit “A”).
9 Partly based on that document, and various other submissions made to me by your counsel, I note the following:
·You, together with three older sisters, were born and grew up in the Ha Tinh province of Vietnam. Your parents owned a business selling seafood and other food, which was reasonably lucrative and gave rise to a modest upbringing.
·You undertook primary school, high school and vocational college, where you undertook courses in mechanics and tourism. After college, you had your own business, which would subcontract to a big urban mechanical parts manufacturer.
·Ultimately, you were quite successful in the mechanics field and was promoted to the position of vice director of a mechanics division of a company, situated in Ho Chi Minh City.
·Although your position was high in the company, your income was still low, and you decided to come to Australia to try and open a travel agency for Vietnamese tourists coming to Melbourne.
·You had been living in Melbourne for about a week when you were arrested and remanded in relation to the offence of trafficking cannabis. Your counsel informed the Court that apparently you were in a car that was pulled over and there were cannabis plants in the car. I was informed by your counsel there is no LEAP narrative to expand on the precise circumstances of the offending. Your counsel does note, though, that following that offending your visa was cancelled, but for reasons which were unknown, you were not deported at that stage. You instructed your counsel that you did intend to leave this country at that time and you approached a migration agent, who took your passport and said that he could solve your visa issues.
·Initially, after release from prison, you continued to try and open a travel agency, but was unsuccessful and you mostly conducted cash-in-hand jobs as a handyman, working illegally, in order to send money home to your family.
·You have a wife and three children, all of whom still reside in Vietnam. The children are aged fourteen, twelve and ten. In particular, your wife has suffered some type of nervous-system illness, which has worsened since you have been in Australia.
·You instructed your counsel that you agreed to look after the cannabis plants at the premises in order to fund your wife’s treatment.
·Furthermore, you do not use drugs yourself, do not suffer from any drug addiction, and do not suffer from any particular psychological or medical condition.
·You entered Australia in July 2016 on a tourist visa, which has now expired, and you understand that you will be deported at the conclusion of any sentence. In this respect, you wish to return to Vietnam to be with your wife and children.
Matters in mitigation of your sentence
10 Your counsel submitted that the following matters are relevant in relation to mitigation of your sentence:
(a)Although accepting that your indication of pleading guilty in relation to the offence on 8 November 2018 was not at the “earliest stage”, it is still a relatively early plea. In particular, counsel highlighted that the committal hearing of the matter had been adjourned on a number of occasions for reasons not related to you and, also, there had been negotiation between the parties as to an appropriate disposition.
It was submitted that you showed a clear willingness to facilitate the course of justice by making significant admissions during your Record of Interview on 21 November 2017, and general cooperation with the police. Such plea obviated the time and cost of a trial;
(b)There is no issue between the parties that you were acting as a “crop sitter” who had attended the premises on about four occasions;
(c)Your counsel noted the offence was based on the total weight of the seized cannabis (rather than the number of plants). Such weight, although greater than the amount for the offence simpliciter (25 kilograms), is well less than a large commercial quantity, being 100 kilograms and/or 100 plants of Cannabis-L;
(d)Although conceding that your prior conviction for trafficking cannabis is “relevant”, your counsel noted that you have a strong work history, have qualifications which give rise to employment and do not suffer from drug dependency or any mental-health problems. Your counsel ultimately described your prospects of rehabilitation to be “somewhat guarded” as a result of this offence and taking into account your prior conviction;
(e)Your counsel also highlighted that you do not speak English and, as noted in court, require the assistance of a Vietnamese interpreter to communicate on even a basic level. Apparently you have had no contact with your family since being on remand, and therefore have not been able to get updates about your wife’s medical condition. All these matters have contributed to your time on remand being more burdensome.
11 Ultimately, your counsel submitted, appropriately in my view, that sentencing principles of general and specific deterrence, denunciation of such offending and community protection, are relevant factors in framing an appropriate sentence to be imposed for this offence. In particular, specific deterrence is of some significance, given the nature of your earlier offending, resulting in a conviction for trafficking in cannabis.
12 It was ultimately submitted that given your period of time spent on remand, which has been significant given your isolated position and delays in the matter proceeding, that all relevant considerations of sentencing could be met by the “imposition of a sentence which does not exceed the time [that you have] served”.
13 Your counsel disclaimed any reliance on any of the so-called principles set out in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269. Reference was also made to the following decisions:
(a)DPP v Van Lam Vu [2018] VCC 106, a decision of her Honour, Judge Riddell, handed down 15 February 2018;
(b)DPP v Dong Zhu [2017] VCC 427, a decision of his Honour, Judge Stuart, handed down on 12 April 2017;
(c)DPP v Qui Nguyen; DPP v Quan Nguyen [ 2018] VCC 175, a decision of his Honour Judge Dean, handed down on 27 February 2018;
(d)DPP v Ba Sinh Nguyen [2016] VCC 451, a decision of her Honour Judge Cannon, handed down on 18 April 2016.
14 All these cases were tendered (see exhibit “B”). I have read all such cases.
Position of the prosecution
15 As already recorded, counsel for the prosecution confirmed that it is appropriate to describe your role as a “crop sitter”. In particular, reference was made to the “sentencing snapshot” in respect of “cultivating a commercial quantity of narcotic plants” in the higher courts over the period from 2012/2013 to 2016/2017 published in August 2018, No. 222 (see exhibit “B”). Counsel for the prosecution accepted that such “sentencing snapshot” does not record whether such sentences detailed therein followed a plea or a finding of guilt by a jury and, furthermore, does not make clear the precise circumstances of the offending.
Conclusion
16 The offence of cultivating a commercial quantity of a narcotic plant – in this case, Cannabis-L – is a serious offence, as is made clear by the maximum penalty of twenty-five years’ imprisonment. Of course, such an offence can cover a wide range of situations involving large and small criminal enterprises which, in turn, involve various people who have different roles in such an enterprise.
17 Such offending can also include people which are generally referred to as “crop sitters” – that is to say, people who are not involved in the setting up of the enterprise at the premises, involved in the distribution of the cannabis, or shares in any profit made from the distribution of cannabis.
18 Both counsel for the prosecution and your counsel submitted that you can be appropriately categorised as a “crop sitter”. In this respect, it is to be noted that the Indictment limits the offending to one day – 21 November 2017 – although in your Record of Interview you stated that you had attended the premises four times, usually on a Monday or Tuesday, the first time being about two months prior to your arrest. Furthermore, you did state you had never purchased products or fertiliser, et cetera, whereas the CCTV footage dated 4 September 2017 and the receipts found in the vehicle that you were driving, would suggest that you may have had some role in the purchase of some material to assist in the cultivation of the narcotic.
19 Ultimately, I have come to the view that essentially you were a “crop sitter”, and am not persuaded in any way beyond reasonable doubt that your role involved setting up the premises, managing in any way the enterprise, or, indeed, being involved in any distribution or profit made from the sale of Cannabis-L.
20 Accordingly, I do accept that your role was at the lower end of the “seriousness” of such offending. However, it must be borne steadily in mind that you were aware that you were cultivating cannabis, which would ultimately be sold for profit to the community. Although your role did not involve setting up the premises, managing the enterprise, distributing the cannabis or sharing in any profit, such enterprises could not function without the role of a “crop sitter”.
21 Furthermore, as your counsel fairly conceded, your prior conviction for trafficking of cannabis is clearly relevant. Although it is unclear as to the circumstances surrounding that offence, it seemingly was committed shortly after your arrival in Australia. Furthermore, it would appear that you commenced your crop-sitting role within twelve months of being released from prison on 6 October 2016 following your conviction for trafficking of cannabis.
22 In the circumstances, I consider that specific deterrence is a very relevant factor as, seemingly, your previous conviction and incarceration for trafficking had little impact on you entering into the role as a “crop sitter” of a crop of Cannabis-L, which you knew to be illegal.
23 In mitigation, I do accept that although your indication of pleading guilty to the offence was not at the earliest possible opportunity, you did reveal a clear willingness to facilitate the course of justice by making significant admissions during your Record of Interview on 21 November 2017 and general cooperation with the police. Furthermore, the delay before you indicted that you would plead guilty was brought about substantially by ongoing negotiations between your lawyers and those of the prosecution, and also various adjournments over which you had no control. Such plea has obviated the time and cost of a trial.
24 It is always a question for the sentencing judge whether remorse or a willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (see Phillips v R [2012] VSCA 140 at paragraph [96]), I do accept that your plea of guilty is some evidence of remorse.
25 I also accept that you have not been a user of illicit drugs and your motivation for performing the task of “crop sitter” was to obtain moneys to assist your ill wife back in Vietnam. Although a laudable objective, it must also be seen in the context that you were prepared to undertake this work for the purpose of obtaining moneys (rather than the use of the product), well knowing the drug was illicit and would be sold ultimately to members of the public.
26 I do accept the submission of your counsel that your prospects of rehabilitation are “somewhat guarded”, taking into account, particularly, your prior conviction for trafficking only a relatively short time before this offending. However, as pointed out by your counsel, you do appear to have had a strong work history, have obtained qualifications which will give rise to employment, and do not suffer from drug dependency or other mental health problems which would otherwise impede your return to work. I also accept that the period of time on remand would have been more “burdensome” for you compared to others, given your inability to speak English, and the inability to have contact with your family since being on remand.
27 In coming to an appropriate sentence, I have been assisted to some degree by the various decisions referred to by your counsel and, indeed, to a lesser extent, by the sentencing snapshot. In particular, I do refer to the well-known decision of Njoc Nguyen v R [2017] VSCA 286, which involved an appeal in relation to sentence by a person who pleaded guilty to various offences, one of which was cultivating a commercial quantity of cannabis. Essentially, the appeal was based on the grounds that the learned trial judge had erred characterising the role of the offender as a “principal cultivator” and also on the more general ground that the sentence was “manifestly excessive”, given the applicant’s role in the offending.
28 In particular, at the end of that judgment, there is set out summaries of recent cases involving this offence, some of which involve “crop sitters”. I have reviewed that document which, again, is helpful in reaching an appropriate sentence – although, of course, various factors are involved, such as the weight of the actual cannabis, whether the defendant had prior convictions and the like.
29 Although I accept the submission of your counsel that the weight of the cannabis constituting the charge (68.49 kilograms) is substantially less than a large commercial quantity (100 kilograms or more), the amount does lie somewhere between the amount needed to establish cultivation of a commercial quantity and that which is needed to establish cultivation of a large commercial quantity.
30 Please be upstanding.
(a)In relation to Charge 1 on the Indictment, you are convicted and sentenced to twenty months’ imprisonment;
(b)I declare that you have served up to, but not including this day, 507 days in pre-sentence detention, and such period should be administratively deducted from this sentence;
(c)Pursuant to s6AAA of the Sentencing Act, I declare that save for your plea of guilty in relation to the indictable offence, I would have ordered a sentence of two years and eight months.
---
0
7
0