Director of Public Prosecutions v Kieawkaew
[2016] VCC 1016
•15 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00757,
CR-16-00758
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V ESMA KIEAWKAEW HONG QUAN NGUYEN |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 6, 13 July 2016 | |
DATE OF SENTENCE: | 15 July 2016 | |
CASE MAY BE CITED AS: | DPP v Kieawkaew & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1016 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Porceddu | OPP |
For the Accused Kieawkaew | Mr R. Backwell | Greg Thomas Barrister & Solicitor |
For the Accused Nguyen | Ms E. Ramsay | VLA |
HER HONOUR:
1 On 30 September 2015, police executed a warrant at a house owned by the defendant, Nguyen, in Truganina. He, along with the co-defendant, Kieawkaew, and her 17-year-old son were present.
2 Two bedrooms were set up as cannabis grow rooms. In total, 69 cannabis plants in various stages of growth, and weighing 31.1 kilograms, were found. Just under half a kilogram, 476.6 grams of loose dried cannabis was found in various rooms throughout the house. An instruction book on growing marijuana, lighting shrouds, 600 watt light globes, power transformers, power boards and other paraphernalia associated with the growing of the hydroponic crop were found. Ms Kieawkaew’s fingerprint was found on one of the lighting shrouds in one of the grow rooms, Mr Nguyen’s on an unused lighting shroud in the kitchen.
3 A further search revealed a handgun, a Colt .38 revolver, together with .38 ammunition, concealed in packaging which had originally contained a small hand drill. A home-made handgun, with a further round of .38 ammunition in the barrel was also found, as was a taser, a prohibited weapon.
4 In addition to the cannabis, other drugs were found. In the front bedroom, where the guns and ammunition and taser were found, were 12 ecstasy tablets of varied shape, colour and markings, weighing in total 4.2 grams, and a small quantity of methamphetamine. Concealed in the washing machine was a bag containing a larger amount of methamphetamine. The total weight of methamphetamine was 6.7 grams.
5 Amongst the other items found were snap-lock bags, one with Ms Kieawkaew’s DNA on it, a phone containing messages relating to drug trafficking, a ledger book containing, amongst other things, notes of amounts, suggestive of keeping some record of drug trafficking activity, and $710 in cash.
6 Mr Nguyen’s car was in the garage and he was in his pyjamas and appeared to have been asleep when the police arrived. There were signs both defendants and Ms Kieawkaew’s son were living in the house, although other evidence indicated the defendant, Nguyen, had for some months, been dividing his time between his parents' home and the house at Truganina, whilst the Truganina house appeared to be the sole residence for Ms Kieawkaew and her son.
7 The defendants were arrested and interviewed. The defendant, Nguyen, made no comment. The defendant, Kieawkaew, denied involvement in the cultivation of the cannabis. She said the plants were Nguyen’s, and she was forbidden from going inside the rooms where they were.
8 They were both charged and remanded in custody. Ms Kieawkaew, who is a Thai national and a permanent resident of Australia, unsuccessfully applied for bail a week later. She has remained in custody ever since. Mr Nguyen remained in custody until he was granted bail following the committal and remained on bail until the hearing of the plea. Ms Kieawkaew’s son has been with Mr Nguyen’s mother since his mother and Mr Nguyen were remanded.
9 Plea discussions commenced in relation to Ms Kieawkaew at committal mention, but the matter did not resolve at that stage. Ultimately a contested committal hearing was scheduled for both defendants and the matter resolved then. Both defendants were committed on the hand-up brief without any examination of the witnesses who had been required to attend.
10 Arising out of this, Ms Kieawkaew has pleaded guilty to one charge of cultivating a commercial quantity of cannabis, one of possession of the 6.7 grams of methamphetamine, one of possession of the four grams of ecstasy, and one of possession of the .38 Colt, an unregistered general category handgun. In addition she has pleaded guilty to uplifted summary charges of possession of the .38 ammunition, possession of a prohibited weapon, namely the taser, and dealing with $710 suspected of being proceeds of crime. She has also pleaded guilty to a charge of commit an indictable offence whilst on bail.
11 So far as that last charged is concerned, I was told that one month before the police attendance at the house at Truganina, Ms Kieawkaew was charged with trafficking in methamphetamine and released on bail. That charge is still pending before the Magistrates' Court and discussions are apparently underway in an attempt to resolve the matter, by the entry the plea of guilty to possession of a trafficable quantity of methamphetamine.
12 So far as Mr Nguyen is concerned, the prosecution has accepted a plea of guilty to one charge of cultivating cannabis in resolution of all charges relating him, arising out of the execution of the warrant at the Truganina house. However that does not dispose of all matters relating to this crop, so far as he is concerned.
13 Confiscation or forfeiture proceedings are pending in relation to the Truganina house. Although it is registered in his name and is unencumbered, I was told his instructions are he contributed $40,000 to the purchase of the home, the balance of the purchase price being provided by his sister in an undocumented loan. I was told his interest in the house is his only asset and as a result of his plea, he stands to lose his interest in the house, whatever its value ultimately assessed to be. However, that is a matter for a separate proceeding and the outcome is unknown.
14 By virtue of his guilty plea, he is facing the prospect of breach proceedings in respect of a community correction order imposed for similar charges, namely cultivation of cannabis, possession of methamphetamine, and possession of a prohibited weapon, imposed just the day before the execution of the warrant and discovery of this crop at Truganina. Those earlier charges arose out of the discovery of a cannabis crop being cultivated in an apartment in Southbank, which was apparently occupied at one stage by both defendants. Although the lease was in Ms Kieawkaew’s name, she was not charged with any offences in relation to the Southbank crop.
15 Mr Nguyen has another significant and relevant prior conviction. In 2007 he was convicted of trafficking in heroin, knowingly dealing with proceeds of crime, and possession of a drug of dependence, and was sentenced in this court to a total effective sentence of two years' and nine months' imprisonment, which was suspended for a period of three years.
16 Ms Kieawkaew has no previous convictions. However, as noted, she had been charged and released on bail just one month before these charges in respect of the Truganina crop, for trafficking in methamphetamine.
17
Ms Kieawkaew now seeks to rely on a different account to that which she gave the police. She no longer asserts it was Mr Nguyen’s crop. Her instructions, as relayed to me on the plea and as recounted to Ms Gina Cidoni, the psychologist who assessed her, are that the crop at the house was hers and that she was cultivating it in order to support her ice habit. I was told by her counsel,
Mr Backwell, her instructions were that the methamphetamine and ecstasy, although of trafficable quantities, were also hers for her own use. No explanation was advanced for the possession of the gun, ammunition or taser. On enquiry, Mr Backwell told me that Ms Kieawkaew instructed she was “keeping the gun for someone”.
18
Mr Backwell confirmed that no evidence was to be called to support
Ms Kieawkaew’s later account. No evidence from the depositions was relied on to support either account.
19 Ms Kieawkaew’s history, as recounted by Ms Cidoni and Mr Backwell, was that she came to Australia at the age of 30 on a student visa in 2007 and began studying English, but soon turned to sex work in order to support herself and send money back to her family in Thailand and that she had continued to work as a sex worker for much of her time here. She had married and been subjected to violence by her husband, who then demanded money from her in return for not imperilling her residency status here, thus in effect, forcing her to remain in sex work.
20 I was told that Ms Kieawkaew had met the co-defendant, Nguyen, about two years ago, or about two years, I think, before the commission of the offences, initially as a client and that they had commenced a relationship. That both she and the defendant, Nguyen, were ice users, but she had started to use ice only recently, and in the course of the relationship, her use of ice had rapidly escalated. I was told that they lived for a time in the Southbank apartment, the lease of which Mr Nguyen had put in her name, and then with his parents, before moving to the house in Truganina. She reported that that relationship also became violent and that she and Mr Nguyen had broken up for some months, before resuming the relationship some months before their arrest. She had remained living in the Truganina house with her son, with her co-defendant returning to his parents and then on the resumption of the relationship, moving between his parents' home and the Truganina property.
21 On Mr Nguyen’s behalf it was put that the crop was Ms Kieawkaew’s and that he had only become aware of its existence shortly before the execution of the warrant. On the written outline of submissions provided by Ms Ramsay, that was following the resumption of the relationship. Mr Nguyen’s instructions were that he had moved out of the Truganina house and in the months leading up to the execution of the warrant, had begun to return there and it was only then that he became aware of the crop, that is, after the relationship had rekindled. It was asserted on his behalf, he stood to get no benefit from the crop and that his involvement was limited to allowing Ms Kieawkaew to continue to cultivate the crop in his house, after he became aware of its existence.
22
Mr Nguyen told Dr Aaron Cunningham, the psychologist who assessed him, that the crop was Ms Kieawkaew’s and that he felt used by her. He told
Dr Cunningham Ms Kieawkaew was growing the crop to support herself financially, so as not to have to continue to work as a sex worker.
23
Ms Ramsay, after I had raised my concerns about accepting unsupported Bar table assertions as to Mr Nguyen’s lesser role, and having been given the opportunity to seek instructions, advised no evidence was to be called to support Mr Nguyen’s account. She sought to rely on passages from
Ms Kieawkaew’s interview, which she submitted could be interpreted as consistent with Mr Nguyen’s position, whilst relying on the inadmissibility against Mr Nguyen of those other parts of Ms Kieawkaew’s interview which asserted the crop was his.
24
The apparently exculpatory passages on which Ms Ramsay sought to rely were, at best, ambiguous. In my view, I would have to consider how to interpret them and what weight to give them, having regard to the whole of the interview, including the passages which expressly attributed ownership to Mr Nguyen. In the circumstances, I am not prepared to make findings supportive of
Mr Nguyen’s stated position, based on those selective and ambiguous passages from Ms Kieawkaew's interview. There was nothing else in the depositional material sought to be relied on to support Mr Nguyen’s account.
25
Ms Ramsay told me she was instructed Mr Nguyen cultivated the Southbank crop to support his ice habit. That is the identical explanation advanced by
Ms Kieawkaew in respect of the crop in his house at Truganina, or at least the explanation advanced by her by the time of the plea hearing before me.
26 I was told Mr Nguyen had a heavy ice habit at the time of the cultivation of the Southbank crop and had been on CREDIT bail in the lead-up to the plea in respect of that crop and was now drug free. No CREDIT reports were placed before me.
27 In fact Ms Ramsay told me that she was not aware of, that is, had no instructions about what was advanced on Mr Nguyen’s behalf on his plea in respect of the Southbank crop and the related possession of methamphetamine and weapon charges on the day before the finding of the Truganina crop. I have no idea whether what I was told about the Southbank crop and associated charges was consistent with what the court which sentenced him for that was told.
28 Despite the fact a community correction order was imposed in respect of the Southbank crop and associated charges only the day before his arrest in relation to the Truganina crop, there was no reference in Dr Cunningham’s report to the Southbank charges or sentencing outcome. Nor was there any reference to the earlier heroin trafficking charge.
29 Having heard the pleas, I adjourned the matter for sentence to 6 July.
30
I had expressed concerns, in the course of the plea hearing about what
I considered to be an air of artificiality or unreality about what was put on behalf of both defendants about their involvement and their respective votes. On reflection and after reviewing the materials placed before me, those doubts remained.
31 Despite the Bar table assertions on behalf of both defendants, I had doubt the crop was solely Ms Kieawkaew’s and she was solely in possession of the firearm, ammunition and taser, having regard in particular to the ownership of the house by Mr Nguyen, the manner in which the house was set up to grow the crop, the presence of both defendants when the search warrant was executed, to what little I had been told about the Southbank charges, and the absence of evidence about what was put on Mr Nguyen’s behalf on his plea in relation to the Southbank charges.
32 I was concerned the only basis for distinguishing between the two defendants so as to lead the prosecution to accept a plea of guilty on cultivate simpliciter for Mr Nguyen, whilst proceeding with a plea of guilty to a commercial quantity cultivate for Ms Kieawkaew, came from Bar table assertions on Mr Nguyen’s behalf about his knowledge and involvement. I was left with a sense of unease that Ms Kieawkaew had been taking sole responsibility for what was, at the very least, a shared venture.
33 On the material presented to me, she had a history of violent, exploitative relationships, was poorly educated and without family or supports in this country, apart from her son. By contrast, Mr Nguyen had the two significant drug priors, to which I have referred, one for cultivation occurring during the relationship and which was dealt with only the day before the execution of the warrant at Truganina, and which had resulted in the imposition of a community corrections order and in respect of which he would be in breach upon conviction for offences relating to this crop.
34
As a result, when the matter came back on and despite the absence of a Thai interpreter, I raised my concerns. I told the prosecution I wanted to be informed of the basis for differentiating in the manner it did between the defendants.
I invited it to put before me any information it had in relation to the Southbank crop and possession of amphetamine and weapons charges which were dealt with only the day before the charges in respect of this crop.
35
I asked Ms Ramsay to consider whether she, on behalf of Mr Nguyen, wished to place before me any CREDIT bail reports and other materials relied on in the plea hearing for Mr Nguyen in respect of the Southbank charges. I also raised with Ms Ramsay my concerns about the absence of reference to the Southbank charges in Dr Cunningham’s report and for that matter, the absence of reference to the prior conviction for heroin trafficking. In particular, I was concerned to know whether he knew of the Southbank charges and had omitted reference to them, either of his own volition, or at the request of those instructing him, or whether he had not been told of the Southbank charges or the heroin trafficking conviction by the solicitors or Mr Nguyen. I told Ms Ramsay
I considered this relevant to the weight to be given to Dr Cunningham’s opinions and depending on the answer to the reliability of the information provided by
Mr Nguyen generally.
36 I told Mr Backwell I wanted to be satisfied, when the matter returned, that his client’s pleas of guilty were fully informed and the result of a free choice.
37
I made it clear I understood I could not compel the parties to provide me with any of the information I sought, but wished them to know my concerns and to give them the opportunity to place any further material they wished to put before me and to make any further submissions addressing my concerns before
I proceeded to sentence.
38
I adjourned the matter to 13 July. Unfortunately, Mr Porceddu, who had had the carriage of the matter on behalf of the prosecution, both at committal and at the original hearing of the plea, was unavailable. Mr Hutton, who appeared in his place, had familiarised himself with the materials, but had not spoken to
Mr Porceddu or the prosecutor who had approved the plea offers which were ultimately accepted. Based on his analysis of the materials in the brief, he identified the following matters from the evidence which supported the differentiation between the commercial quantity cultivation charge for Ms Kieawkaew and the cultivation simpliciter charge for Mr Nguyen.
39 Ms Kieawkaew was wearing a gardening glove with blackened tips and carrying gardening shears when the police entered the house, so I understand, supporting the inference that she was actually tending to the crop when the police arrived. Although she denied in interview the crop was hers, or was allowed into the rooms where they were, her fingerprints were on a lighting shroud in one of the grow rooms and her DNA on a snap-lock bag in the bedroom. She admitted she was living in the house and in an on again off again relationship with the co-defendant, Nguyen. The other items found were in the bedroom that she was occupying. On that basis Mr Hutton submitted, it was proper to accept her plea offer.
40
So far as Mr Nguyen was concerned, having regard to the inadmissibility of the defendant, Kieawkaew’s statements in her interview, that the crop was
Mr Nguyen's , the evidence against him was that he was present in the house at the time of the execution of the warrant, in his pyjamas, as if just woken up, and the presence of his fingerprint on one of the unused shades in the kitchen. There was no fingerprint or DNA evidence connecting him to anything in the grow rooms. On that basis Mr Hutton submitted, the offer to plead to the lesser charge was accepted for him.
41 Ms Ramsay provided a further outline of submissions and a supplementary report from Dr Cunningham. She has declined to provide the CREDIT bail reports provided to the Magistrates' Court and advised that no further information as to what the Magistrates' Court was told in that sentencing hearing would be provided.
42 Ms Ramsay pointed out correctly, and as I had already pointed out at the original hearing, that I had to sentence Mr Nguyen for the charge to which he pleaded guilty, namely cultivation, not commercial cultivation, on the date of the execution of the warrant. She submitted that I should accept the account advanced on his behalf at the plea, that the crop was Ms Kieawkaew’s and that he stood to gain nothing from it and that his culpability was limited to his presence in the house on the day of the execution of the warrant.
43 So far as the absence of reference to the drug priors in Dr Cunningham’s report, I will deal with what I was presented with in relation to that and Ms Ramsay's submissions, when dealing with matters relevant to Mr Nguyen personally.
44
I have already detailed the concerns that led to my asking Mr Backwell whether he could satisfy me his client's pleas were entered in the exercise of free choice and were fully informed. Mr Backwell told me the following: The charges now before the court were the result of negotiations conducted over a number of months, where the ground shifted a number of times and which were ultimately resolved and resolution finalised at the second listing of the committal. He told me that Ms Kieawkaew was represented at all times and that, as far as he was concerned, and he has been counsel throughout, Ms Kieawkaew was fully informed, aware of the case against her and her options and was aware, at the time she entered her guilty pleas, that Mr Nguyen would be pleading guilty to a charge of cultivate simpliciter. Mr Backwell said he was unaware of any pressure being brought to bear on Ms Kieawkaew by anyone and in the course of a video conference conducted two days before he made these submissions to address the matters I had raised and a conference at which Ms Kieawkaew, Mr Backwell, his instructing solicitor and a Thai interpreter were present,
Ms Kieawkaew had raised no such concerns with him or his solicitor.
45 I accept what Mr Backwell has told me and despite the unease I had articulated about her position, I proceed to sentence her on the basis that she has been independently represented, well and fully advised and must be taken to have entered her pleas in the exercise of a free and informed choice.
46
Nothing in what Ms Ramsay put alters the position I was left in at the conclusion of submissions on the first day of the plea hearing, namely that the evidence does not permit me to make a positive finding in respect of intended profit share, ownership of or involvement in the cultivation of the crop on any day, other than the date of the raid. Although I note, both to his psychologist and through his counsel to me, Mr Nguyen has asserted he had knowledge of the crop well before the day of the raid, from the time of the resumption of the relationship some months earlier, it would appear from what Ms Ramsay put in her written outline of submissions. Nor does the evidence or the law permit me to make a positive finding of intention to cultivate a commercial quantity, as against
Mr Nguyen, by reason of his knowledge of the existence of the crop and his presence on the day of the raid.
47
However, insofar as it is put as a mitigating factor that Mr Nguyen’s role is confined to knowledge on the day of the raid that Ms Kieawkaew was cultivating a crop for her own benefit and that he did not stand to benefit in any way,
Mr Nguyen has not discharged his onus of satisfying me on the balance of probabilities that his knowledge and role was so confined. Nothing in the materials or the submissions now provided has altered that view.
48 So far as Mr Nguyen’s role is concerned, I am satisfied is that he, together with Ms Kieawkaew, a woman with whom he was in a relationship of some sort for two years, was present at a house owned by him and in which two bedrooms were set up in a professional manner as grow rooms for a large crop of marijuana in various stages of maturity and where in other parts of the house, other items and paraphernalia connected with the cultivation of marijuana were present. I must view that in the context of Mr Nguyen having been sentenced only the previous day for cultivation of a crop of marijuana in an apartment in which he and his co-defendant had lived for some time and which was rented in her name, before it was turned into a grow house for a marijuana crop, which he claimed was his own and cultivated in order to pay for his own drug habit.
49 I repeat what I said at the hearing of the plea. The evidence does not permit me to make a finding that the crop was, in truth, Mr Nguyen’s, or that he and Ms Kieawkaew were co-owners of it, or that they were to share, in any percentage, in the proceeds of the cultivation of the crop. Nor does the evidence permit me to find that Ms Kieawkaew is taking responsibility for possession of weapons which were Mr Nguyen’s, or jointly possessed. The evidence does not permit me to make findings adverse to Mr Nguyen about those matters.
50
However, as I have also said, there is no evidence which supports the acceptance, that is being satisfied on the balance of probabilities, of the matters asserted as mitigatory in respect of Mr Nguyen’s knowledge of the crop, and his role. Insofar as the matters asserted on Mr Nguyen’s instructions as to Ms Kieawkaew’s role, are to be treated as mitigatory when sentencing him, that is, that it was her crop, grown to provide funds to support her ice habit, I am not satisfied on the balance of probabilities for the purposes of sentencing
Mr Nguyen, of those matters.
51 I should add, I am not prepared, on the evidence and having regard to the matters I have set out about the manner in which the cases were presented, for the purposes of sentencing Ms Kieawkaew, to find, that is to be satisfied, beyond reasonable doubt , that she was solely responsible for the crop and stood solely to benefit from it.
52 That leaves me in a position where I am satisfied, based on the evidence, of what was found on the day of the raid and the admissions contained in the guilty pleas, that both defendants were involved in the cultivation of the crop. Having regard to the admissions, that is, on the day of the execution of the warrant, having regard to the admission flowing from her plea, I must treat Ms Kieawkaew as having intended to cultivate not less than a commercial quantity.
53 In sentencing Mr Nguyen, he falls to be sentenced for cultivation of the same crop, but absent an admission or other proof of an intention to cultivate not less than a commercial quantity.
54 Apart from the overwhelming inference that cultivation of a crop of that size is for gain, I can make no findings, on the evidence before me, adverse to either defendant, or favourable to either of them, as to their individual motivations. I make no findings, on the evidence before me, adverse to either defendant, or favourable to either of them, as to their respective roles.
55 It is clear that subject to matters personal to each of the defendants, denunciation, just punishment and deterrence are significant sentencing considerations here. This was a large and well cultivated crop of marijuana and people who participate at any level in the cultivation of such crops, must understand that they and others who are tempted to do likewise, will be punished.
56 I will deal now with matters directly relating to you, Ms Kieawkaew.
57 You are 39 years of age and have no prior convictions. I have already referred to the fact you were on bail for trafficking in methamphetamine at the time of the execution of the search warrant and that you acknowledged possession of that drug, although the nature of the charge to which you are prepared to plead guilty is under discussion. I am told there are no other pending charges.
58 You are a Thai national who has been living in Australia since 2007. You have a son, born in Thailand, who is now 18 and is also living in Australia. I am told that you arrived here on a student visa in 2007, but have spent most of your time since your arrival, not in study, but working as a sex worker. Nonetheless, I am told that you obtained permanent resident status. Your right to remain in Australia is at risk, as a result of these charges and I accept that you have lived, since being charged, with the added burden of uncertainty as to whether you will be allowed to remain here. I am told you had intended to remain in Australia and make your life here, so that the punishment of uncertainty about whether you will be able to do so and the fear that you will lose your opportunity that you had hoped to have, of a permanent future here, is something that I take into account, in addition to the punishment that I must impose for the offending.
59 I am told that your son, who is now 18 and also now a permanent resident, has expressed a desire or intention to remain in Australia. So added to the burdens I have already described, is the uncertainty of whether you will be able to enjoy a future with your son in this country.
60 According to what you told the psychologist, Gina Cidoni, who assessed you for the purposes of the plea, you had had, in Thailand, before you came to Australia, what you described as a happy, normal childhood in relatively comfortable circumstances. You reported being shocked to discover that your parents were charged with and subsequently imprisoned for 14 years for drug trafficking when you were aged 20.
61 You told Ms Cidoni that you came here on a student visa, but despite that, seem to have worked for much of your time here as a sex worker. You married after your arrival in Australia, but told her that it was an unhappy and abusive relationship and that you were forced to remain in sex work, not only to send money home to your family in Thailand, but to also to assuage the demands of your estranged husband, who was threatening to imperil your resident status. Apparently a divorce is pending but not finalised.
62 You reported that you met Mr Nguyen, who was initially a customer at the brothel where you were working, and that the two of you formed a relationship which was marred and marked by the mutual use of methamphetamine. You reported being subjected to violence and paranoid and jealous behaviour. The relationship broke up, then resumed in the months leading up to your arrest. According to you, it is now over.
63 Based on what you told Ms Cidoni, you came to drug use only recently and your use of ice escalated when you met Mr Nguyen. She reported the relationship as tumultuous and she considered your judgement was seriously impaired when you began offending. According to Ms Cidoni, you present as naïve, gullible and easily led. Although Ms Cidoni notes that ice use is associated with increased autonomic activity, perceptual disturbances such as delusions, hallucinations and bizarre mentation and behaviour and psychological changes, such as agitation and affective blunting and impaired judgement, as they are the result of your ice use, they are not mitigating factors.
64 Ms Cidoni’s assessments of you were limited by poor language, despite the assistance of an interpreter. On the limited testing that she was able to do, she concluded that there was evidence of emotional disturbance with chronic depression, anxiety and interpersonal sensitivity, signs of thought disorder and paranoid ideation, possibly linked with your history of abuse of methamphetamine and other substances. She considered your cognitive function to be at borderline level. It is difficult to work out from her report whether that was due to language difficulties or your depression, anxiety and acute distress at the time of the conducting of the assessment. There did not seem to be, on my reading of her report, a finding of impaired intellectual capacity. Ms Cidoni did note that your acute distress related to the circumstances you now found yourself in.
65 It is clear that imprisonment has been and will continue to be burdensome for you. You are isolated by reason of your poor English. You report there are no other Thai speakers in custody. As already noted, your uncertainty about whether you will be able to remain in Australia adds to your depression and anxiety. Your son remains in the care of the mother of your co-defendant and you also face the distress of not knowing whether you will be able to remain with him in Australia at the expiration of your sentence.
66 You have, despite your poor language skills, completed various courses and worked in prison industries during your time in custody. I am told that you have been able to reflect whilst in custody on the damage ice brought to your life and you express gratitude that your arrest and remand enabled you to stop your ice use. I accept you have clearly tried to make the best of your time in custody. I accept, as this is also your first time in custody, imprisonment has been onerous for you.
67 It is clear that cultivation is a serious offence and commercial quantity cultivation more so. It carries a maximum sentence of 25 years, ten years greater than the sentence for cultivate simpliciter. People who cultivate crops for profit must understand that, when detected, they will be punished. The sentence must deter others who think of engaging in this trade from doing so. It is no excuse, or mitigation, to declare that you were cultivating to support your ice habit, or to provide you with income from a source other than sex work.
68 As a first offender and a vulnerable and isolated woman, I consider your culpability to be at the lower end of the scale and this instance of cultivation, although of a commercial quantity, also at the lower end of the scale. It is absent the hallmarks of sophisticated rings, exploitation of others and associated criminal activity often associated with large scale professional commercial quantity cultivations.
69 I consider the consequences already visited on you already count as significant personal deterrents and that your prospects for rehabilitation should be regarded as good. So far as the other offences are concerned, I consider it is likely that you possessed the other drugs, as you instructed, for your own use and that you were able to buy them in greater than single use quantities, by reason of your cultivation activities.
70 Possession of the firearm is a concerning charge, even if as you assert, you were looking after it for someone, or were treated as a safe person with whom to stash it. I do not find, in the circumstances, that you possessed it for a purpose associated with protection of the crop. Thus, the aggravating feature often associated with such a charge in connection with cultivation, that is, a possession of a firearm to protect the crop is absent here. The same applies to the charge relating to the possession of the taser. I consider the proceeds of crime charge to be associated with the cultivation charge and will sentence accordingly, and I consider that as you were denied bail, that you have already been substantially punished for committing an offence whilst on bail and moderate the sentence for that charge accordingly.
71 I have already referred to my reasons for placing this at the lower end of the scale for offences of cultivation of a commercial quantity. Your position is to be distinguished from that of Mr Nguyen, because although the charge is a different one, unlike him, you have no prior convictions of any nature, whereas he has the two serious drug related convictions, to which I have referred. Normal considerations of parity do not apply.
72 Could you now please stand. No, just Ms Kieawkaew, that is right.
73 Ms Kieawkaew, on the charges to which you have pleaded guilty, you are convicted.
74 On Charge 1 of cultivate a commercial quantity of cannabis, you are sentenced to be imprisoned for a period of three years. That is the base sentence.
75 On each of Charges 2 and 3, that is possession of the methamphetamine and possession of ecstasy, you are sentenced to an aggregate term of imprisonment of one month. I direct that that aggregate sentence of one month be served cumulatively upon the base sentence and the other partial cumulation orders I am about to make.
76 On the charge of possession of a firearm, you are sentenced to be imprisoned for a period of three months. I direct that one month of that be served cumulatively upon the base sentence and the other cumulation orders.
77 On the charge of possession of ammunition, you are fined $250.
78 On the charge of possession of the taser, you are sentenced to be imprisoned for one month.
79 On the charge of commit an offence whilst on bail, you are sentenced to be imprisoned for a period of three months. I direct that one month of that sentence be served cumulatively upon the base sentence in the other partial cumulation orders.
80 On the charge of possession of proceeds of crime, you are sentence to be imprisoned for a period of one month.
81 That makes a total effective sentence of three years and three months.
82 I fix a period of one year and six months as the time that you must serve before being eligible for parole.
83 I declare that you have spent 288 days in pre-sentence detention. I direct that that be counted and reckoned as part of the sentence already served.
84 I declare, pursuant to s.6AAA of the Sentencing Act, that but for your pleas of guilty, I would have sentenced you to a total effective sentence of six years' imprisonment and fixed a period of three years as the time to serve before being eligible for parole.
85 I make the forfeiture and disposal orders requested.
86
Are there any further orders that are required to be made in relation to
Ms Kieawkaew?
87 MR BAARLINK: No, Your Honour.
88 HER HONOUR: And is the arithmetic correct? Do the sentences that I have declared reflect what I said I intended to do?
89 MR BAARLINK: Can I just confirm, there's no cumulation on Charges 6 and 8?
90 HER HONOUR: No cumulation on Summary Charge 12, possession of the taser.
91 MR BAARLINK: Sorry.
92 HER HONOUR: And no cumulation on Summary Charge 15, possession of proceeds of crime.
93 MR BAARLINK: Yes, that's right.
94 HER HONOUR: One month - - -
95 MR BACKWELL: Was it one month on the Summary Charge 13?
96 HER HONOUR: That is the commit an offence whilst on bail?
97 MR BACKWELL: Yes.
98 HER HONOUR: Yes, one month cumulative. Three months sentence, one month cumulative.
99 MR BACKWELL: Sorry. Yes. And one month - - -
100 HER HONOUR: And Charges 2 and 3, possession of methamphetamine and possession of ecstasy, aggregate sentence of one month.
101 MR BACKWELL: That is why I'm missing a month. Thank you, Your Honour.
102 HER HONOUR: So the one month comes on the aggregate for 2 and 3, one month on Charge 4, and one month on Summary Charge 13.
103 MR BACKWELL: Yes, Your Honour.
104 HER HONOUR: Very well, thank you.
105 Could you remove Ms Kieawkaew please. Interpreter, thank you for your assistance, you can leave the dock. Would you mind, because as you will have seen, those reasons are in draft form with a number of errors in them, returning that draft to my associate when I leave the court. Thank you. In fact I will have them collected from you now. I apologise for the typos.
106 Turning then to Mr Nguyen.
107 You are 36 years old and you were born in Vietnam. You came to Australia with your family when you are six.
108 You came to Australia with your family, your parents, one older sibling and one younger sibling, when you were aged six.
109 Most of the biographical material advanced on your behalf was contained in the report of the psychologist, Dr Cunningham. For the reasons I will shortly outline, I have some concerns about the accuracy, truthfulness and reliability of some of the matters referred to in Dr Cunningham's report and real concerns about the reliability of the opinions that he formed. Other matters were advanced to me by Ms Ramsay and I accept, of course, that anything she put to me, she put to me on her instructions.
110 According to Dr Cunningham’s report, you told him that your parents worked hard to establish themselves upon their arrival in Australia and that they pushed you to achieve, but you felt lonely and without emotional connection to them or your siblings.
111 You completed Year 12, started but soon discontinued two post-secondary courses. You report having had some unskilled employment in the early years after leaving school, for some time at McDonalds and then factory work. That was followed by many years of unemployment, with a short period of eight months or so employment again in 2008, before continued unemployment up until the time of the commission of this offence. Dr Cunningham reports you have no motivation to pursue employment.
112 Although a little difficult to work out from his report, it appears that you reported a drug history commencing with what was described as social use of ecstasy from the age of 17. You told him that you were introduced to drug use by a social group you formed during your first employment at McDonalds. As far as I can work out on the chronology, that must have been when you were 17 or 18.
113 Dr Cunningham also included a reference to you reporting smoking one gram of methamphetamine every two to three days, it appears during that period and cannabis once a month. You told Dr Cunningham that your cannabis use abated following the birth of your children and that you only smoked it once or twice a year when fishing with peers thereafter. Dr Cunningham also reports you told him first began to use methamphetamine in 2010. That would be when you would have been about 30. He reports you told him that your methamphetamine use began following the break-up of what had been a ten year relationship with your partner Anh, with whom you had had three children.
114 You report maintaining a good relationship with your partner following the break-up of that relationship in 2010 and seeing those children every weekend, that is, according to Dr Cunningham’s report, or every second weekend, according to what Ms Ramsey told me.
115
You have the two significant previous drug related convictions, to which I have already referred. Let me now deal with the absence of reference to them in
Dr Cunningham's report. In the supplementary report that was provided by
Dr Cunningham, after I had raised my concerns, he said that he was not provided with them by Ms Foley of Victoria Legal Aid, who had retained him to provide an assessment of you. I am told that Ms Foley maintains that they were provided.
116
Ms Ramsay read me the relevant portions of Ms Foley’s letter of instruction to Dr Cunningham, which includes a specific reference to the priors in the list of materials provided to him for the purpose of his assessment. Ms Ramsay submitted the issue of whether Dr Cunningham actually received the priors, need not be resolved, as Dr Cunningham went on to say in his supplementary report, that he was made aware of the prior for cultivate by Mr Nguyen. I will return to that submission after dealing with the explanation advanced by
Dr Cunningham for failing to disclose his knowledge of any prior history in his original report.
117 It is necessary to quote exactly what Dr Cunningham said. In his supplementary report, he said"
"I have been asked to comment on the lack of reference to a criminal history in my report. Mr Nguyen’s criminal history was not referred to in my report because the priors were not provided."
118 He went on straight after that to say this:
"However, when asked Mr Nguyen informed me he had prior offences for cultivation. In my opinion, this information did not alter my assessment of Mr Nguyen’s mental state. In my opinion, Mr Nguyen’s priors were consistent with his history of drug abuse and association with drug using peers."
119
There is a clear conflict in these two passages. On the one hand,
Dr Cunningham says he did not refer to the priors because they were not provided. Yet in the very next sentence he says he was aware of “priors” and advances a different explanation for the absence of reference to them in his report. His second explanation is that he did not mention them because he did not consider them to be relevant to his opinion. That is, that they did not alter his assessment of Mr Nguyen's mental state because they were consistent with his reported history of drug abuse and association with drug using peers.
120 There is no suggestion by Dr Cunningham that he made any enquiry as to how closely connected in time the priors (plural) for cultivate were to the commission of the offence with which I am now concerned and in respect of which he was asked to make an assessment about matters bearing on Mr Nguyen’s mental state at the time of the commission of that offence, for sentencing purposes. There is no suggestion he made any enquiry as to the circumstances of the cultivations (plural again) to ascertain whether they were, as he asserts, consistent with the history given to him by Mr Nguyen of drug abuse and association with drug using peers.
121 There is no reference to being made aware of the charges of possession of methamphetamine and a weapon associated with the prior for cultivation. There is no reference to being aware of the heroin trafficking prior. I cannot decide, on the materials before me, whether Dr Cunningham’s ignorance of these other priors was due to a lack of frankness on Mr Nguyen’s part, or a failure by Dr Cunningham to make proper enquiries. The evidence does not permit me to make findings adverse to Mr Nguyen about that.
122 For a psychologist, experienced in providing reports to courts for sentencing purposes, to dismiss “priors” as irrelevant without knowing of their circumstances, is troubling enough. The concerns I have are compounded by the absence of any evidence to support his assumption the priors were consistent with Mr Nguyen’s history of drug abuse and association with drug using peers, and further compounded by the absence of any reasoning process in the supplementary report to support the bald assertion, the priors were not relevant.
123 As if that was not bad enough, the very assertion there were “priors”, again plural, for cultivation, when in fact there was only one, and the absence of reference to the prior for trafficking, and to the priors for possession of a weapon and possession of methamphetamine associated with the cultivation charge, demonstrates the vice in making assumptions without a sound evidentiary foundation.
124 There are factors in what I have been told in relation to the cultivation prior that, in my view, are at least potentially relevant to an assessment of Mr Nguyen’s mental state at the time of his offending. There are certainly matters relevant to my assessment for sentencing purposes generally. In particular, the status of Mr Nguyen's relationship with Ms Kieawkaew and the significance of the fact he had been placed, only the day before on a community correction order, a condition of which was that he was not to commit a further offence whilst subject to the order. If fully informed, Dr Cunningham was of the view the priors were not relevant, it would, in my view, have been incumbent on him to reveal the reasoning process which led to that conclusion.
125 On the account Mr Nguyen gave Dr Cunningham in respect of this offence, he was in effect imposed upon because Ms Kieawkaew, a person he had been in a relationship with, was cultivating cannabis in his house for her own purposes. To discover, as Dr Cunningham says he did, that Mr Nguyen had priors for cultivation and without making any enquiries as to the circumstances, provides no rational or proper basis for concluding Mr Nguyen’s involvement in the prior cultivation, must have been also a product either of a history of drug abuse or association with drug using peers, or a product of a depressed and vulnerable state, the other matter to which Dr Cunningham referred.
126 I find the absence of enquiry about the circumstances of prior convictions and the consequent failure to take into account the time they were committed, the circumstances and any explanation given for them by Mr Nguyen, leads me to conclude that I cannot rely on Dr Cunningham’s opinion that there was a causal connection between Mr Nguyen’s reported state at the time of the commission of this offence and his involvement in the offending before me. I find the failure to disclose in the report Dr Cunningham’s knowledge of any criminal history, even if it is to say it has no relevance, seriously diminishes my confidence in acting on the opinions expressed in the report.
127 In the circumstances, I agree with Ms Ramsay, that it is not necessary to resolve the conflict between Ms Foley and Dr Cunningham in relation to whether he was sent the priors. It is a matter for Ms Foley and VLA to consider whether to take this matter any further.
128 In his first report, Dr Cunningham said, Mr Nguyen, that you met the diagnostic and statistical manual of mental disorders DSM-V criteria for major depressive disorder. He based that on your report of your presentation, namely depressed mood, loss of interest in pleasurable activities, fatigue, sleep disturbance, feelings of worthlessness and thoughts of death. Those symptoms, as described, he said were consistent with the presence of major depressive disorder. He said that you were predisposed to the development of major depressive disorder by the emotional disconnection in the family home, your feelings of loneliness and isolation as a child, and the continued triggering of such feelings by your family. He said that your depression was again triggered at the end of your relationship with your former partner, Anh, and escalated when you began to abuse methamphetamine.
129
Dr Cunningham drew a direct connection between your depression, following the break-up of your relationship with the mother of your children, your subsequent involvement with Ms Kieawkaew, in what he described as a vulnerable and lonely state, and your involvement in this cultivation offence by reason of your knowledge that Ms Kieawkaew was growing cannabis to assist in leaving employment at a brothel. Not only does this appear to be in conflict with what he earlier reported he had been told by you, namely that you had persuaded Ms Kieawkaew to quit her job, saying that you would provide for her needs, it provides no obvious link of involvement in cultivation by reason of
a history of drug abuse or association with drug using peers.
130
There was nothing to indicate whether the account given by you to
Dr Cunningham, of a lonely, isolated childhood, of having a sense of worthlessness, which increased following the break-up of your long-term relationship with the mother of your children, a downward spiral into depression and amphetamine use, and the formation of a relationship, in a lonely and vulnerable state with your co-defendant, a sex worker you met in a brothel, and who happened to be cultivating a crop of marijuana, is true, even if remarkably selective.
131 Even if true, the absence of any reference to the previous and contemporaneous sentencing for a similar crop, with similar accompanying offences, and the heroin trafficking, makes it difficult to know how much weight can be put on Dr Cunningham’s diagnosis of depressive disorder and its apparent attribution to an emotionally deprived childhood and a relationship failure.
132 I am not satisfied in the circumstances that there is any connection established between any depressive disorder and this offending, which would operate so as to moderate the weight to be given to general or specific deterrence, or to affect the manner in which the sentence is to be served.
133 I was told that you were, by the time of your sentencing for the previous crop, drug-free and have remained drug-free since then. I note that there were no drug rehabilitation conditions attached to your CCO. And if indeed that is the case, then you have made progress. You have not been charged with any subsequent offences. Despite the negative view of your childhood and relationship with your parents, set out in Dr Cunningham’s report, it appears you continue to have the support of your family, your parents as well as your siblings. It appears that your parents are prepared to continue to have you live with them and it is they who provide the means for you to have regular contact with your children, as they visit you and stay at your parents' place. These matters are clearly relevant to an assessment of your prospects for rehabilitation, notwithstanding the matters that I have raised that are relevant to give weight to specific deterrence.
134 You too pleaded guilty at the second listing of the committal. You too are entitled to the utilitarian benefit of that early plea of guilty. It was not put on your behalf that there was any conduct other than the entry the plea of guilty indicative of remorse, but I accept the utilitarian and advancing the interests of justice benefits that do flow from your guilty plea.
135
It is clear that for you, specific deterrence, as well as general deterrence, must be given weight. You have those two significant convictions for serious
drug-related matters. The trafficking one was serious enough to be dealt with in this court and serious enough for you to be sentenced to a term of imprisonment even if it was on which was fully suspended. As I have already mentioned, you were dealt with for the offence of cultivation, one where it would appear you acknowledged being the one responsible for the crop and standing to benefit from it, only the day before this offence.
136 You must be taken to be fully aware that it was a condition of that community correction order that you not commit any further offence punishable by imprisonment during the term of the order. As was acknowledged on your plea, you were aware of the crop before the day of the police raid, the execution of the warrant that led to this charge. It follows, therefore, that you were aware of its existence in the house in which you were living, at least for some time up to the entry of your plea of guilty, your assessment for suitability for a CCO before the Magistrates' Court, and your acknowledgment in the course of being sentenced in the Magistrates' Court to that CCO, that you understood that its conditions included not committing any further offence punishable by imprisonment.
137 Your counsel acknowledged that so far as this crop was concerned, it was toward the higher end of the scale, in terms of plants, numbers and weight for cultivation simpliciter. I note, having now been provided with the prosecution summary in respect of the matter that was dealt with in the Magistrates' Court the day before you were charged with this offence, that the number of plants was the same for each of the two crops, although the weight of the Southbank crop was considerably less. That suggests either a crop detected in the very early stages of growth, a crop which had not been well tended and flourished, or crop which had been by and large harvested and the usable parts removed by the time it was detected.
138 It follows from that, and having regard to the other matters relevant to your circumstances which I have already set out, that the sentencing considerations affecting you are very different from those affecting Ms Kieawkaew and therefore that normal parity considerations do not apply.
139 Would you now stand.
140 Hong Quang Nguyen, on the charge of cultivate cannabis, to which you have pleaded guilty, you are convicted and sentenced to be imprisoned for a period of three years.
141 I fix a period of two years as the time that you must serve before being eligible for parole, and declare that you have spent 232 in pre-sentence detention, which must be declared and reckoned, or counted and reckoned as part of the sentence already served.
142 I declare, pursuant to s.6AAA of the Sentencing Act, that but for you plea of guilty, I would have sentenced you to a term of imprisonment of six years, and fixed a non-parole period of four years.
143 Are there any disposal or forfeiture orders in respect of Mr Nguyen?
144 MR BAARLINK: There is a forfeiture order in respect of the cash that was seized.
145 HER HONOUR: I make - how can I make that in respect of Mr Nguyen? He did not plead guilty to a charge in respect to the cash, only Ms Kieawkaew did.
146 MR BAARLINK: My instructions are that there's a forfeiture order for the cash, for both of them.
147 HER HONOUR: But how can I make it in respect of Mr Nguyen if he did not plead guilty to any charge in respect to the cash? I do not have jurisdiction, do I?
148 MR BAARLINK: I would have to clarify my instructions. It can be done at a later date, I suppose.
149 HER HONOUR: Yes, I am not prepared to make a forfeiture order in respect of Mr Nguyen at this stage.
150 MR BAARLINK: Yes, Your Honour.
151 HER HONOUR: Ms Ramsay, is there anything you want to say about that?
152 MS RAMSAY: I think I indicated on the last occasion, Your Honour, it's my instructions that there's already been a civil - it's Mr Nguyen says this money is not his. There has already been a civil forfeiture order made in relation to that money and that that's our position, that it's not his, so - - -
153 HER HONOUR: Well, I can only deal with a forfeiture order if it attaches to a charge to which he has pleaded guilty, can't I?
154 MS RAMSAY: That is - I'm sorry, Your Honour, I'd have to confirm in the Act.
155 HER HONOUR: Well - - -
156 MS RAMSAY: I am not sure what the basis is upon which that it's been sought, yes.
157 HER HONOUR: I know it is a minor thing at the end of what is much more significant matters, but it is worth looking at. It is a coercive - significant coercive power of the court and it is not a power to be exercised lightly. There has got to be a proper jurisdiction. So I will not make the order, but if later the parties are satisfied I have the jurisdiction to make it and it is appropriate to do so, can you please let me know.
158
Are there any further orders then that are required to be made in respect of
Mr Nguyen?
159 MS RAMSAY: No, Your Honour.
160
HER HONOUR: Does the sentence that I pronounce reflect what I said
I intended to do?
161 MR BAARLINK: Yes, Your Honour.
162 HER HONOUR: All right, thank you. Could you remove Mr Nguyen please.
163 I will just sign the forfeiture and disposal orders in respect of Ms Kieawkaew.
164 Can I thank counsel, particularly Ms Ramsay, and Mr Backwell for the extra and added assistance. I found this a really difficult matter, as is probably obvious, and I was grateful for the extra assistance and the manner in which it was provided to me from both of you.
165 Ms Ramsay, I will look forward to seeing you when you do return.
166 MS RAMSAY: Thank you, Your Honour.
167 HER HONOUR: I wish you well. Thank you.
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