Director of Public Prosecutions v Ho and Nguyen
[2018] VCC 864
•8 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-18-00494 7 & CR-18-00495
Indictment No: C1706837
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANH HO and THANH NGUYEN |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2018 | |
DATE OF SENTENCE: | 8 June 2018 | |
CASE MAY BE CITED AS: | DPP v Ho & Nguyen | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 864 | |
REASONS FOR SENTENCE
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Subject: Cultivation of cannabis (commercial quantity) (Ho and Nguyen), Resist emergency worker on duty (Nguyen only)
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APPEARANCES: | |||
| For the DPP | Mr D.Mr S. Lee OPP | ||
| For the Accused | Mr C. Farrington (for Ho) Greg Thomas Mr C. Pearson (for Nguyen) James Dowsley & Associates |
HIS HONOUR:
Anh Tuan Ho and Thanh Van Nguyen, you have each pleaded guilty to one charge of cultivation of a commercial quantity of cannabis. That offence carries a maximum penalty of 25 years’ imprisonment. You, Mr Nguyen, have also pleaded guilty to one charge of resisting an emergency worker on duty, which is punishable by a five year maximum term of imprisonment. Neither of you has any criminal history at all.
This matter was opened to me on 6 June by Mr Lee, who appeared on behalf of the Director of Public Prosecutions. A written opening, dated 11 May 2018, was marked as Exhibit A on the plea. No issue was raised with the opening. It was an agreed opening.
I regard it then as unnecessary to go into the full details of the facts. Exhibit A will remain on the court file. It sets out the factual basis and I will not go beyond that agreed material.
That summary describes the nature of the crop that you were each cultivating at a house located at 39 Centenary St, Seaford. You were both caught red-handed at those premises on 19 November 2017. Police executed a warrant there on that date and you did your best to evade capture, Mr Nguyen. That was the context of your resisting a policeman on duty.
Why were you resisting arrest and seeking to evade capture? Well within those premises there was a sophisticated hydroponic cannabis setup. There were 128 plants of varying sizes in three rooms, as well as in the kitchen. The total weight of the plants was 51.73 kilograms. Commercial quantity is therefore reached both by plant number and by weight.
This was obviously a professional venture. These premises were dedicated to the growing of cannabis and you were both involved for financial gain.
That is all conceded.
The list of equipment on the disposal order is very lengthy.
You had jointly rented these premises with one other person, entering in to possession on 4 July 2017. That tenancy agreement is within the depositions
10 As I have said, you were both arrested at the property on 19 November 2017. You were both at that point, unlawfully in this country. You have been in custody since and you will be deported upon completing the sentences that I will soon pass upon you. Neither of you were interviewed by the police, as an interpreter could not be located on the day.
In Mitigation
11 Mr Pearson conducted a plea on your behalf Mr Nguyen. Mr Farrington appeared on your behalf Mr Ho. They each relied upon a number of matters in mitigation. The matters raised in mitigation included:
· Your guilty pleas;
· The early stage of those pleas;
· The presence of some remorse;
· The absence of any prior criminal history and favourable prospects of rehabilitation;
· In your case, Mr Nguyen, the increased custodial burden owing to a combination of factors which included the ill health of your father in Vietnam;
· Each counsel spoke of the certainty of your deportation, though made very plain that this was not relied upon in any mitigatory fashion.
Your counsel took me in each case to your personal background and made submissions as to the level of seriousness of the offence. They each made submissions based on your instructions, as to how you came to be involved in this serious crime. They submitted that you fell to be sentenced as "crop sitters". In each case, counsel conceded the inevitability of an immediate term of imprisonment.
Prosecution
Mr Lee, who appeared on behalf of the Director of Public Prosecutions on Wednesday of this week, really did not make any submissions. He told me that the Crown did not concede the factual assertion from your counsel. Other than that, essentially the Crown were silent on that score, other than to say it was for me to determine the issue of role. However, an email was received by my associate yesterday from Mr Lee. That email copied in the various parties. I have referred to that earlier in discussions this morning and it said the following.
"There appears to be confusion in relation to Mr Ho's role in the offending. I made the concession yesterday that both Mr Ho and Mr Nguyen were considered crop sitters. Please advise His Honour accordingly".
I did not follow that email at all. There was no confusion in my mind as to the submissions made by the Crown on Wednesday of this week. On that day, I asked the prosecution what their stance was and Mr Lee told me. In any event, I was not comfortable having this proceed further by email traffic, without the prosecution clarifying their stance in open court and permitting defence counsel to make submissions, if they chose. Ms Rutherford appeared this morning and varied the submissions that were made the other day and accepted that the accused could be viewed as crop sitters. "They could be categorised as crop sitters" she said.
Mr Pearson who is here this morning heard that submission, but had no further submissions to make on your behalf, Mr Nguyen. Nor did he vary his stance in terms of going into evidence.
Mr Farrington was in another court, so I certainly would have adjourned the proceedings if I had been requested to do so. Mr Battersby appeared and did not seek to adjourn the matter. He had been advised that no further submissions were required and there was no desire to place any evidence before me.
Well the statement marked as exhibit A on the plea is an agreed statement of the facts. As to acceptance or otherwise of mitigatory matters, that is a matter for me. I am in no way bound to act on the Crown submission. No more than I am bound to act on a defence submission. If, for instance, the defence had asserted cultivation for personal use and Crown came along and conceded that the crop house was up and running for personal use, I would not be required to act on that submission. I would examine the agreed facts and consider whether I was satisfied of mitigatory matters on the balance of probabilities. That is what I have to do in this case.
I put counsel on notice the other day as to my serious reservations, as to the contention that the accused were but crop sitters. Counsel, Mr Pearson and Mr Farrington, made the submissions they wished to make on that topic the other day. The issue for me is, as it was on Wednesday, whether I am satisfied on the balance of probabilities of this mitigatory matter? Well the parties having been alerted by me to my concerns, have each exercised a clear forensic decision not to place any evidence before me on this topic. There are no interviews in this case. I will discuss this later in these reasons, but I do not accept the submission that you are “crop sitters”.
Background
19 I turn now to your respective backgrounds. l am not going to restate all that I was told. It is set out in some level of detail in the written plea submissions filed on the plea, as well as in the report of Ms Cidoni in your case Mr Ho, (Exhibit AH2). Additionally, each counsel made some oral submissions. I have no reason to doubt the material provided as to your family background and I do accept it.
Background Nguyen
20
Mr Nguyen, you are 28 years old, born on 1 October 1989. You were born and raised in a northern central city (and province) for that matter of Ha Tinh in Vietnam, where you lived until the age of 23 when you came to Australia on a student visa. You were one of five children and the family had a fishing business which was decimated in 2016, following a marine disaster in the region. You had completed the equivalent of Year 12 and worked in the family business until 2013, when you came to Australia. You studied in this country and you received some financial assistance from your family, until their business collapsed owing to the calamitous chemical spill in early 2016. You left your studies in 2016 and then worked as a handyman. You worked alongside
Mr Ho in that capacity. You also worked as a chef. You, along with Mr Ho, rented the premises in Seaford in July 2017. You have given an account to Mr Pearson as to how you came to be cultivating cannabis. As I have said, I do not accept that account. I will come back to that in one moment.
21 Your father is unwell in Vietnam. He has had some health issues. He had some form of bladder cancer it would appear in 2016. There is a medical report marked as Exhibit TN2, which I take into account. He underwent surgery and other treatment and was followed up in May 2016. It was not being submitted that his condition was precarious but no doubt, you worry about him. You have been relatively isolated in custody whilst on remand, in the sense of not receiving visitors. You are in a unit with Mr Ho.
22 You have no criminal history in this country or in your homeland. You will be deported and look forward to that day.
Background Ho
23 As to you Mr Ho, you are a little younger than your co-accused, born 25 April 1992. You are now 26, and you came to this country when you were 21 or 22. You likewise had been born and raised in Vietnam in the same province as your co-accused, though you only met for the first time in this country. Your parents remain there running a rice farm. You were one of seven children. You did twelve years of schooling. You too came to this country on a student visa. You too, were affected by the marine disaster in April 2016, in that your brother who supported you financially had a fishing business. That business was destroyed in around April 2016 and the funds dried up for you. You left study. Now study was the only basis upon which you could lawfully remain in the country. Your visa expired about 12 months ago and you took no steps to renew it or extend it. You have given an account to Ms Cidoni as to how you came to become involved in this offending. You have given a more detailed account to your counsel. As I have said earlier, I do not accept that account. I will return to this later in these reasons. Nor do I accept for one moment that you did not think that this offending could have serious consequences for you. The report of Ms Cidoni is very limited as is conceded by Mr Farrington. Still, I do take it into account. It does set out your background. Personality testing discloses you are not functioning at a high level and that you have a reactive depression. There is no reliance upon any of the principles from the well-known case of Verdins v R.
Guilty plea
24 I turn then to the matters raised in mitigation. You have each pleaded guilty. You have each done that at the earliest stage and I must reward you for that stance. You have both facilitated the course of justice. You have taken responsibility for the crime [or crimes in your case, Mr Nguyen] at the earliest stage. Witnesses have been spared the experience of coming to court. The community has been saved the time, cost and effort, associated with a contested hearing, either in this court or in the Magistrates Court. I take those matters into account in mitigation.
Remorse
Each counsel argues that you have some level of remorse. Well a guilty plea is often indicative of some remorse.
I am prepared to find that you each do have some remorse implied from that plea. There is also reference to remorse in the report of Ms Cidoni, though she does not state the basis of that opinion as she should have. I have taken the existence of remorse into account in mitigation in each case.
Custodial Burden
I turn now to the issue of the suggested increased custodial burden. Now this was only raised in a mitigatory manner by Mr Pearson, on your behalf Mr Nguyen and even as he raised it, he conceded there was not much to it. He was right. Your counsel
Mr Ho was not suggesting there was any increased burden here. Though there is a language barrier, there are a number of others who speak the same language, including the two of you in the same unit. So I put that issue aside altogether.
The reality is you have both been held in a prison since November of last year. It is the first time either of you has been held in custody.
You are, to an extent, at least isolated. That is, you are in a foreign country and you await the end of any sentence imposed by this court and then your deportation back to Vietnam. You have no visitors. None of this can make life in prison easy for either of you actually. I think it is probably slightly more difficult for both of you than many others without those factors. So I am prepared to take this into account in mitigation in each case, even though not pressed to do so by your counsel Mr Ho. However, I make very plain that it is not a large matter in mitigation. Not at all. You both were living in this country and had been for some time. You chose to commit a serious crime. In each case, your current predicament is the inescapable consequence of committing a serious crime in this country and it cannot be, and is not, greatly mitigatory. As to the health issues with your father Mr Ho, whilst I do hope they resolve happily for him, for you and for the family, that is not in my view a matter in mitigation of any weight at all. I note that he was diagnosed at the latest in May 2016. You did not commit these offences until November the following year. It follows that you chose to commit the serious offence of cultivation, notwithstanding your father’s ill health predicament in another country.
Rehabilitation
As to your rehabilitation, your counsel, Mr Nguyen, argues that you have excellent prospects. I do not recall your counsel Mr Ho applying any adjective, but I have no reason to doubt that he would have applied the same adjective or something very close. That is, very good, if not excellent prospects, or something to that effect. You both have no criminal history at all. You have none of the conditions which might impede rehabilitation, for instance, drug addiction or serious mental health problems. You have been arrested, charged and brought before the courts. You each pleaded guilty at the earliest opportunity and exhibit some level of remorse. You have been in prison for quite some time already and that will continue once sentenced. You are both working in custody. You have done some courses as Exhibit TN3 and AH3 disclose. I believe that you each have very good, if not excellent prospects, of rehabilitation, though they can be pursued back in your homeland, Vietnam.
Deportation
You will each be deported and you each look forward to that day. Deportation was not being relied upon in any mitigatory fashion at all and nor could it be.
There is no suggestion that you had lost the opportunity of permanent settlement in this country. Or that the risk of deportation was weighing heavily on you. You each look forward to deportation back to your homeland and of course, you each really had no valid basis to remain in this country well prior to the unfortunate decision taken to commit this crime.
You will have to serve the sentence that I will shortly pronounce and then you will be deported. But the certainty of your deportation does not mean that I can have regard to that fact when considering whether or not to fix a non-parole period or the length of that period.
I am not entitled to predict whether a person will be granted parole or not, or if granted parole, the conditions of such parole. Section 5(2AA) of the Sentencing Act prohibits that thought process. I must sentence on the basis that you will serve every day of the head sentence that I will pronounce. That is by the way the position for any person sentenced, whether there are deportation issues or not.
The fixing of a non-parole period provides for the possible mitigation of punishment through conditional freedom, when appropriate, once the prisoner has served the minimum time the Judge determines justice requires, having regard to all of the circumstances of the case. See the case of Schneider, paragraph 23.
Now here, there is the fictional nature of possible release on parole in each of your cases. Often enough, as I understand it, and Mr Farrington confirmed this view on the plea, a prisoner can be deported upon reaching the end of the non-parole period. Though again, I must not speculate about that happening in this case.
Your deportation does not drive my sentencing discretion. I must pass an appropriate sentence, and if that is one that permits, or even for that matter compels the fixing of a non-parole period, so be it. I must put from my mind in this regard the clear impediments to your actually ever being released on parole, or the likelihood of your being released. I have got to put those considerations aside in every case, as I am not allowed to take them into account. See s.5(2AA).
So your deportation, justifies neither a longer non-parole period, or a shorter non-parole period, or the decision taken not to fix a non-parole period at all. As I perceive the case law, your deportation is irrelevant to the task of my fixing a non-parole period. In fact, if you are sentenced to a term of two years or more, which you most certainly will be, I must as a matter of law fix, a non-parole period, unless one of two considerations mentioned in Section 11 of the Sentencing Act arises either from a consideration of the nature of the offence, or the nature of your past history. Neither of those considerations arise here. There is no third category dealing with the impossibility or improbability of any actual release into the community. See s.11 of the Sentencing Act.
General remarks
I address now some general remarks to you both. You were both committing this serious crime for reward. Even on your own versions, you admit as much. As to your version, it strikes me as being most unusual. A "crop sitter" who actually provides up the premises used for the cultivation. That immediately places you in a different setting from someone installed into premises, in my view. The claim is that a man named Duong approached you, Mr Nguyen, at a café in Springvale about six to eight weeks before the arrest date, and offered to pay the rental, in exchange for you allowing him to set up the crop in the house and that thereafter, the two of you had moved out, but were both then engaged as "crop sitters" at those premises. So living at another premises in Woodward St, Springvale, paying rent at those premises, but doing what was asked of you in terms of the cultivation of the crop in your “former house”. The house where you were still the legal tenants. He, I was told, Mr Duong paid money to you to pay the rent on those premises, and in addition, you were paid or were to be paid 150 or $200 per day each.
Mr Ho, your counsel went on to suggest that you felt uneasy with this arrangement and sought to rescind or cancel the arrangement, but that you were met with the threat of sizeable monetary penalties. The common theme in the submissions was that you had no share in the profits, or any expectation in such share. It was not your crop at all. You were mere hired underlings. That is crop sitters. As I have said earlier in these reasons, I flagged very directly to both counsel my difficulties in accepting your instructions. I did that as a matter of fairness, to at least provide your counsel, the opportunity of making submissions and or calling evidence on this topic. I stood the matter down at the request of Mr Pearson on Wednesday of this week, as he wanted to consider whether he would call you, Mr Nguyen, to give evidence. He chose not to do so. He chose not to place any evidence before me. That was the same stance adopted by your counsel, Mr Ho.
Now of course there was absolutely no obligation to give evidence on the plea, none at all. Nor though was there any obligation on me, as a Judge, to accept any of these submissions as to role, in the absence of evidence on the topic, nor was there any obligation for me to accept the submission made by the prosecution that has been ventilated this morning. These were mitigatory submissions made by your counsel seeking to have you dealt with as "crop sitters". I was required to be satisfied of these matters on the balance of probabilities. I had raised my concerns. No evidence has been placed before me. I do not accept your instructions. I am not satisfied on the balance of probabilities that you were merely crop sitters. There is no evidence at all of those contentions and much by way of inference which runs counter to that suggestion.
You were each experiencing financial hardship, it is suggested, owing to the maritime disaster in April 2016. Yet, you two, and one other, entered into the tenancy agreement in late June 2017, the following year, taking possession in early July 2017. A fully functioning crop house was located at the premises by November 2017, with a vast array of equipment. You were the tenants. The house was at that point not occupied. You, the tenants were living elsewhere. How exactly Mr Duong would have seen fit to approach you at a café and make the offer you say was made is a mystery. So too is there a mystery as to why he would need two crop sitters in such a setting as that. Why you would accept such an offer is equally mysterious in my judgment. You had found the house. You had entered the tenancy. You had the keys, but were both living elsewhere. You were both there on 19 November. CCTV cameras that had been installed at those premises, sent notification alerts to your phone, Mr Nguyen. I reject your accounts. I am not satisfied of those accounts on the balance of probabilities. Nor is there any material before me suggesting that you sought to remove yourself from this enterprise Mr Ho.
Now it is not always possible to have a clear view of the precise role of a player in a cultivation venture. See the case of Nguyen 2017 VSCA 286 at paragraph 27 to 28. It is important that the label or tag being applied to the offenders role should not obscure or distract attention from the various factors that are relevant to a proper assessment of the gravity of the offending, in a particular case. Now here, I am not sure of the existence of anyone further up the hierarchy. Maybe there was someone who was financing this venture. I cannot know one way or the other. But I am very comfortable in rejecting your account of only being crop sitters. I am not satisfied of the account placed before me on the balance of probabilities. Indeed, I am satisfied beyond reasonable doubt that you are not to be classed as crop sitters. I am satisfied beyond reasonable doubt for the reasons that I have provided, that you had a larger role in this crop than you are admitting. At least some level of share in the yield. I am satisfied of that beyond reasonable doubt.
So I reject your versions, but I note before leaving the topic that even your own version is of the expectation of a not insignificant financial reward for taking on the role of cultivators, in a property you had provided to someone further up the hierarchy. To even describe this as a "crop sitting" arrangement would be a mis-description in my view. It demonstrates the danger of attempting to provide tags or labels rather than looking at actual conduct. In any event, I reject your accounts.
No doubt you did what you did for financial gain or hope of such gain. Well that is virtually the universal motivation for people engaged in this sort of venture at whatever level. Whether principals or hired menial crop sitters or somewhere in between. It is the lure of financial gain which is always operative. The fact is not every person wanting or needing money embarks upon serious criminal conduct. You both did. You chose to. You should not have.
You were doing what virtually every person engaged in this sort of activity does. You were both taking a calculated risk. You made a choice to commit this serious crime. Of course you must have weighed up the pros and the cons. You must have weighed up the risks. You hoped not to be caught. I do not accept for one moment the suggestion that you Mr Ho, did not think your role would place you in serious trouble. Of course you knew.
I have to take into account the nature and the gravity of the offence. As I have said, I do not accept that you are mere "crop sitters". That was not the nature of this venture.
Mr Farrington spoke of the cultivation only being on a single date. There is an air of total unreality to that as he then provided your instructions as to your role.
As I have said in other cases, I say now in yours; this crop and its ultimate success has been interrupted by the execution of the warrant by the police. You clearly both knew that you were embarking upon a serious crime. I am satisfied of that beyond reasonable doubt. This was very obviously an elaborate, organised criminal activity. There was nothing spontaneous about this offending. It would be obvious to anyone looking at it that this was serious criminal activity.
There seems to be a never ending stream of people prepared to involve themselves in cultivation of narcotic plants for reward. Some in menial roles, some otherwise.
I am required to manifest this court’s denunciation of your criminal conduct and I do. I must also punish you. I must seek to deter or to dissuade you and others from committing this sort of offence.
This crime carries a maximum term of 25 years’ imprisonment. I must pay regard to the maximum sentence.
I observe that Hydroponic cultivation twenty-five or thirty years ago was something of a rarity. It is now very common indeed. You have chosen to cultivate a commercial quantity of cannabis. It was a serious crime and you both knew it. I have no doubt about that at all. The resist the emergency worker in your case, Mr Nguyen, was no trifling example of that offence. I accept it flowed from the panic of being caught red handed and trying to avoid liability. There was no planning in relation to that crime. You acted in that regard quite spontaneously, but physical force was employed and the police must be protected from such conduct and a loud message sent to others who may choose to offend in that way.
Sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation. As I have said, in each case I believe they are very good, if not excellent.
I must consider the need for specific deterrence, that is deterring you from committing crimes in the future. You have both been arrested, you have been charged and you have pleaded guilty. You have some remorse. You have no criminal record. You have both already been in custody for over six months. It has not been easy for you and you will be deported probably both going home in a sense, with your tails between your legs.
I suspect that specific deterrence has already been achieved at least to a degree. I believe it is therefore open to reduce, to a degree, the weight to be given to specific deterrence, as well as to community protection in this case. I have after all reached a favourable view as to your prospects of rehabilitation.
However, this is an offence that generally requires substantial punishment. The case law in this area makes that plain enough. See the case of DPP v Duong [2006] VSCA 78.
General deterrence is a very significant purpose of sentencing in cases such as these.
Those who choose to engage in this activity, at whatever level, they are virtually always taking a calculated risk as you both were. It is taken on because of the hope of some financial reward, as it was in your case. People must understand that this is a serious crime and though there is the potential financial reward, that comes with a risk of detection, prosecution and then the likelihood of the imposition of a significant term of imprisonment upon a finding of guilt.
This court must send that message and we must send it loud and clear to others in the community who might be minded to commit this sort of serious offence and I interpose, there are evidently plenty enough who are so minded. General deterrence is, in my judgment, a powerful purpose of sentencing in this case.
Current sentencing practice
I pay regard to current sentencing practices, as I am required to. That is not a controlling factor though.
I have looked at the Sentencing Snapshot No.197 of 2016. I have also looked at the material held at the Judicial College of Victoria sentencing site, including the overview of commercial cultivation sentences in the Court of Appeal.
There have been very many cases over the decade querying the adequacy of sentencing practices for this crime. The case of Nguyen sets out a number of those cases and also has a fair bit to say as to the inadequacy of sentencing practices, for this crime, when committed at certain levels. There is much by way of statement of principle within that case that is relevant to my task. The case contains many statements as to the seriousness of the crime of commercial quantity cultivation of cannabis and the weight to be given to punishment and general deterrence.
Now I accept that that case of Nguyen is directed at medium level cultivations. As I read the decision, I do not believe that the Court of Appeal was endorsing any alteration to sentencing practices for the lower level crop sitters. For what it is worth, personally, I feel that was a very strange conclusion, given the undoubted prevalence of that style of offending, the high maximum at play, the strong need for punishment and general deterrence, as well as the many prior occasions where the Court of Appeal had questioned the adequacy of sentencing practices for this crime.
Well I am not satisfied that you were low level crop sitters. You were operating at a higher level than that, at least in my judgment. I am satisfied of that beyond reasonable doubt. You had provided the premises and you must have had some stake in this crop.
There are always significant limitations in making any judgments based on the statistical material. There are always limitations in looking at other cases. They are not sentencing “precedents’. One thing that is clear from the cases in this area, including that relatively recent decision of Nguyen, is that cultivation in a commercial quantity of cannabis is undoubtedly a serious crime, where a term of imprisonment is almost unavoidable. It is a prevalent crime.
General deterrence must be at the forefront of any sentence imposed by the court. See the case of Pham [2007] VSCA 234, and also the case of McGrath.
This was not some low level venture. In your case, there were 128 plants. Weighing in at 51 kilograms. By weight, twice the commercial quantity. The house was clearly a professional undertaking.
69 This was a dedicated crop house with a number of rooms under cultivation.
70 I have taken into account all of the submissions that have been made on your behalf as well as the various exhibits that have been placed before me.
Disposal Order
71 Now there are some ancillary orders here. In this case there was a disposal order that was sought relating to the various items of equipment set out in the schedule to the order. Both counsel were consenting to the making of this order and I have signed the order, in the terms in which it has been presented to me. Pursuant to the provisions of the Confiscation Act, I forfeit the property set out in the schedule to the State and I direct that it be held in the manner contemplated by this signed order.
464 ZF
72 Secondly, in each case there are applications for a forensic procedure. Again, counsel in each case are consenting to the making of that order and I regard the order as justified in the circumstances of this case, owing to the seriousness of the offending, the fact that it is by consent and that I judge it to be in the public interest. So in each case, I order that you undergo a forensic procedure for the taking of a scraping from your mouth and that is until a sample of sufficient standard is obtained for placement on the database.
73 Now I am authorising a mouth scraping, not a blood sample, because I believe it is appropriate to authorise the least invasive procedure. It is not a difficult business, it would involve someone running a swab around the inside of your mouth. Notwithstanding your present consent though, I have to tell you that the authorities are entitled to use reasonable force to obtain that sample. So I have signed each of those orders.
Sentence HO
74 If you could stand up please, Mr Ho, thank you. Mr Ho, you are convicted and sentenced on the charge of cultivation of a commercial quantity to 44 months or three years and eight months imprisonment.
75 I fix a period of 27 months or two years and three months, during which you will not be eligible for release on parole. Have a seat there Mr Ho.
76 If Mr Nguyen could stand up please.
Sentence Nguyen
77 Mr Nguyen, on the charge of cultivation of a commercial quantity of cannabis, I convict and sentence you likewise to three years and eight months imprisonment. That is the base sentence. On the charge of resisting an emergency services worker, you are convicted and sentenced to one months’ imprisonment. That one month term will be served cumulatively, that is on top of the base sentence. So this produces a total effective sentence in your case of 45 months or three years and nine months.
Non-parole period
78 I fix a non-parole period in your case of 28 months or two years and four months during which you will not be eligible for release on parole. You can have a seat as well please.
Section 18 pre-sentence detention
79 It is 201 days the pre-sentence detention is it not?
80 MS RUTHERFORD: Yes it is.
81 HIS HONOUR: Yes. You have both already served 201 days by way of pre-sentence detention and that declaration is to be entered into the records of the court.
Section 6AAA
82 In each case I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, in your case Mr Ho, I would have sentenced you to a term of five years imprisonment. I would have fixed a non-parole period of three years and five months. In your case Mr Nguyen, I would have convicted and sentenced you to five years and one month imprisonment. I would have fixed a non-parole period of three and a half years.
83 Those statements are to be entered into the records of the court as well. Are there any other matters I need to deal with at all?
84 MS RUTHERFORD: No, Your Honour.
85 HIS HONOUR: No.
86 MR CARE: No, Your Honour.
87 MR BATTERSBY: No, Your Honour.
88 HIS HONOUR: All right, well that completes the matter. Will you two be going downstairs to see your clients?
89 MR CARE: Yes, Your Honour.
90
HIS HONOUR: Yes, all right. Well that completes the matter then. Mr Ho and
Mr Nguyen. Your solicitors will come down and see you downstairs in the cells, all right. So they can be removed, thank you.
91 MR BATTERSBY: As Your Honour pleases.
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