Director of Public Prosecutions v Ngo
[2019] VCC 1847
•12 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-00749
Indictment No: J12872318
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HIEN NGO |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 November 2019 |
| DATE OF SENTENCE: | 12 November 2019 |
| CASE MAY BE CITED AS: | DPP v Ngo |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1847 |
REASONS FOR SENTENCE
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Subject: Cultivation of cannabis (Non-commercial quantity). Possess cannabis. Offending within weeks of arriving in Australia.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. McGarvie (at Plea) | Office of Public Prosecutions |
| For the Accused | Mr C. Nikakis (at Plea) | Haines and Polites |
HIS HONOUR:
1 Hien Ngo, you have pleaded guilty to one charge of cultivation of cannabis and one charge of possession of cannabis. The maximum penalty for the cultivation offence is 15 years’ imprisonment. The other offence carries a five year maximum term.
2 You are 61 years of age, born on 1 May 1958. You have no criminal history.
3 This matter was opened to me on Friday of last week by Ms McGarvie, who appeared on behalf of the Director of Public Prosecutions. She opened in accordance with a written plea opening, dated 14 October 2019. That and the three booklets of photographs were marked as Exhibit A. Mr Nikakis confirmed that it was an agreed statement and in those circumstances, it is unnecessary to provide the full detail of the sentencing facts in these, my sentencing reasons. I will not stray beyond that agreed statement.
4 On 24 October last year police received some information as to the existence of an electrical bypass at premises located at 27 Tulip Crescent, Boronia. There was a subsequent aerial evaluation of that property, which hinted strongly at the presence of a cultivation. Police attended at the house on 28 October and then again on 1 November. As a result of the thermal imaging, the electrical bypass and their observations at the scene, police decided to apply for a search warrant and as some members returned to the police station to make that application, other police remained at the house to observe. Just as well they did, for they saw a Honda drive slowly past the house. It parked some distance away. It was 9.40 pm. You exited from the passenger side of that car and went inside the property. You were inside for half an hour. You were then picked up by the driver of the Honda and the car was then intercepted by the police. Your daughter was the driver. Located at your feet in the front passenger footwell was a large plastic bag containing cannabis, hence Charge 2.
5 You had in your possession a key to the premises. Your DNA was found on a glass and on an open beer bottle. Some gloves within the premises matched the type of gloves found within the car that you had travelled in.
6 A search of the house disclosed a sophisticated hydroponic set-up, with many rooms under cultivation and all of the usual gear associated with such a venture. The photographs depict what was present. In total there were 75 plants weighing over 83 kilograms. That is comfortably over the commercial quantity by plant weight, but I note that you have pleaded guilty and must be sentenced in relation to the lesser charge. I never lose sight of that fact. The Crown might have believed that there were potential difficulties in proving beyond reasonable doubt that you intended to cultivate a commercial quantity. That view may have been fortified by the recency of your arrival into the country. It is unimportant though for me to establish why they accepted the plea to the lesser charge. They just did. It settled on these terms. It follows then that you do not fall to be sentenced as having the intention to cultivate a commercial quantity. You fall to be sentenced for the lesser crime with the lesser maximum penalty.
7 You were interviewed by the police. Probably the less said about your interview, the better. You gave a ridiculous account to the police in the formal interview. That is not a matter of aggravation. You described being asked by a man in Springvale to attend the address. He was going to pay you $100 just to go to the property and collect a bag of herbs. You, at one point in the interview, said you had never met him, but when pressed as to how you came by the key, you then said that you had met him. You told the police that you were only in the house for five or ten minutes. It was very dark inside and you had done nothing at all, other than smoke a cigarette and pick up the bag. You said you did not know that it was cannabis. Well of course that account, if true, could not found a charge of cultivation against you. Plainly it was nonsense. That account is, of course, not relied upon by Mr Nikakis, your counsel.
8 What then was your real role? Well of course I cannot act on your account to the police. You will not tell the court exactly what you did in the house, or how you came to be there, or how you came to meet the person above you in the hierarchy, or what instructions you were given. When I asked your counsel to describe what you had done, Mr Nikakis said that the inference that could be drawn by me from your emerging with the bag with cannabis, was that you must have been trimming the plants. It seems a strange business indeed to have a judge being asked to draw inferences as to what acts took place when the person who was inside the house can describe exactly what took place, but for whatever reason, chooses not to.
9 It cannot be as simple as being told to trim plants. You must have met a person. Who? When? Where? How? There must have been discussions about your tasks, how long they were to last, what you would be paid and what you would need. There must have been discussions about the address and what was inside and the need for some stealth. I note the car parked well away from the house and your daughter did not go in. There must have been discussions about which plants in which room or rooms. There must have been very many matters which must have been discussed. Anyway, it is your decision not to inform your counsel and through him, the court as to these various things. As
I say, that is not a matter in aggravation. I will treat you as a low level cultivator. However, other than on a general level knowing that your conduct must have been motivated by the promise of some financial reward, I am left really with no understanding as to why you committed this crime.
In Mitigation
10 Mr Nikakis conducted the plea on your behalf. It was a brief, but sensible plea. He took me to your family background. He made submissions as to the relative seriousness of the offence and the weight to be given to the various purposes of sentencing. In mitigation, he chiefly relied upon:
· Your relatively early guilty plea;
· The presence of some remorse, as implied from that plea;
· The absence of any prior criminal history;
· The role you had played in your daughter’s life since being bailed.
11 Your counsel was conceding the inevitability of a term of imprisonment, but suggested that one equating with your existing pre-sentence detention would suffice. That was 75 days as at the day of the plea, though that number has risen since. My provisional view was that this was an unrealistic submission and that view has not changed.
Prosecution
12 Ms McGarvie for the Director of Public Prosecutions of this State, argued that a term of imprisonment was required. She said it was unclear what your role was, but that you fell to be sentenced for your conduct on this single day. Your role was at the lower end, but she said, of course, the crop itself was not small. There was clearly some planning in your attendance. You had the key and the address. Your daughter parked a distance from the house. The crop itself, she argued, was sophisticated in its set up. She argued that general deterrence was the paramount sentencing purpose for this prevalent crime, with a need also to give weight to denunciation and punishment. She referred me to a comparable case of Le [2018] VSCA 985.
Background
13 I turn now only briefly to your background and that is because I have no reason to doubt what I was told about you by Mr Nikakis. You are 61 years old, born on 1 May 1958. You were born in Vietnam and have lived there all your life. You are a married man with two adult children. Your youngest daughter lives in Australia and was the driver on this fateful night. You had a construction business in Vietnam for some 20 years. Prior to that you had been a public servant in the army. You came to Australia on a tourist, or visitor's visa, with your wife on 15 October 2018, only a few weeks before being caught up in this serious criminality. You were released on bail on 15 January of this year. You are here now on a criminal justice visa. Unlike so many who seek to raise, in a mitigatory fashion, the risks and the effect of potential expulsion from the country, you look forward to going home. The sooner the better. Since being bailed, you have been complying with your bail undertaking and caring for your grandchildren, as your daughter has been working six days a week.
14 You have no criminal history at all.
15 I turn then to consider the various matters that have been raised on your behalf.
Guilty plea
16 I turn firstly then to your plea of guilty. You have pleaded guilty. Now a very brief committal hearing was conducted. It was your right to conduct the committal. There had been the more serious commercial quantity charge laid, which ultimately did not proceed in this court. Also the theft charge relating to the bypass. So those two charges ultimately have not proceeded. In those circumstances, I will treat your plea as having been made at an early stage. Plainly it was not at the earliest stage. A trial date had been obtained for 2020. It is plain from the transcript of the four mentions held up in this court that the prosecution had indicated their preparedness to resolve the matter on the lesser charge and that you prevaricated. Eventually you saw sense.
17 I reward you for your guilty plea and the stage at which that plea was entered. You have facilitated the course of justice in this way. You have taken responsibility for your offending and done so at what I will treat as an early enough stage. That is in fact how your counsel characterised the stage of the plea. The fact is, witnesses have been spared the experience of coming to this court. The community has been saved the time, the cost and the effort associated with a trial. So I take those matters into account in mitigation.
Remorse
18 Your counsel argues that you have some remorse. He said it could be implied from your plea. A guilty plea often enough is indicative of at least some remorse. You pleaded at an early stage. You were, of course, caught
red-handed and then provided a ridiculous account to the police. I will though, in fact, accept your counsel’s submissions in this regard and I find the existence of some remorse as evidenced by your guilty plea. I take that into account in your favour.
Rehabilitation
19 I am not sure your counsel used any adjective to describe your prospects of rehabilitation, but impliedly, he argued that you have good to very good prospects of rehabilitation. He argued that this offending was out of character. You were a 61 year old man with no criminal record, caught up in this crime. You had previously been gainfully employed for many years. You were arrested and charged and went then very swiftly into custody on the day of your arrest.
20 You pleaded guilty at an early enough opportunity. As I have said, you exhibit some remorse. You have spent 75 days in prison before being bailed and
I remanded you back into custody the other day. There will be further time ahead in custody and this sequence of events surely will go some way to deterring or discouraging you into the future.
21 It is pretty startling that you would commit a crime such as the cultivation within a couple of weeks of arriving into this country on a tourist visa. There is really no explanation placed before me as to why you chose to engage in this conduct. Financial need was not driving this offending, you had just arrived from Vietnam. There is no suggestion placed before me that you were in debt, or that you used drugs. It is very hard to know how you got caught up in something as serious as this.
22 In that respect it is then not entirely easy to make judgements as to your future prospects of rehabilitation. Ultimately though I believe that you have a relatively low risk of re-offending in this way again in the future, I believe that you do have at the least, good prospects of rehabilitation. Those prospects though will take shape in Vietnam. You wish to return home sooner rather than later. You will certainly wind up in that country, either under your own steam or by way of deportation. You would prefer the former, as it may provide some hope of returning to this country in the future. Mr Nikakis suggested there was a five year prohibition upon the grant of any visa to anyone who had actually been deported. I do not know if that is so or not, I am prepared to act on that account. However, I suspect that the crimes to which you have pleaded guilty and the sentence that I will shortly impose, would be likely to impede the grant of any future visa to you.
23 As I said earlier, your departure from this country, whether by way of deportation or otherwise, is in no way being relied upon in any mitigatory fashion in this case.
General remarks
24 I do not really know how you got caught up in this crime. There is certainly no material touching upon your being taken advantage of or in any way pressured. Why were you involved? Well that is easier to answer, at least on one level. You were doing what you were doing for money. That is the usual position.
I ask then the further question? Why? Why did you want money? Why were you taking this risk? And those questions remain unanswered. As I have said, there is no suggestion of any financial need at all.
25 You were doing what virtually every person engaged in such activities does, taking a calculated risk. You hoped not to be caught. You must surely have weighed up the risks as against the benefit to you. I am not satisfied on the balance of probabilities of the truth of your account as to the expected reward being the sum of $100. I cannot know exactly what it was to be, but it must have been more than that to cause you to risk your freedom.
26 I have to take into account the nature and the gravity of the offence. Whilst
I cannot say exactly how you came to be involved or what sum of money you were going to earn, there is clearly no reason for me to think that you were some principal or sitting at the top of any hierarchy. Plainly you were neither. You had, after all, only arrived into this country in mid-October. You cannot have had any long-term connection to this house or any role in its set up. I will treat you as sitting at a low level on the hierarchy as a cultivator on that single day.
27 As I have said, in many other cultivation cases, be they commercial quantity or the lesser charge as here, I say now in your case, this crop, your engagement in the task and its ultimate success, has been interrupted by the execution of the warrant by the police. This was obviously a highly elaborate, highly organised criminal activity. It has all the hallmarks of professionalism and that must have been plain to anyone entering that house and cultivating the crop. I am dealing with you for the lesser charge of cultivation, not cultivation in a commercial quantity. But that lesser charge relates to an unmistakably professional set up with the crop which we see in the photographs. A sizeable one.
28 As I said in the plea, there seems to be a never-ending stream of people such as you prepared to involve themselves in cultivation of narcotic plants for reward. There are also evidently plenty of people superior in the hierarchy well prepared to pay such people for performing that role. That speaks clearly as to the large potential illegal profits involved in this style of prevalent venture and that is so, whether it is a commercial quantity cultivation charge or a non-commercial or simpliciter charge as exists here. This was serious criminal conduct. By the way, I am not finding that you were going to share in such profits.
29 The fact remains that without players such as you, that is, people who are prepared to involve themselves in the cultivation of crops such as these, the crops would not exist. Those who set up these ventures, they have a way of making themselves very scarce. They seldom sit down in the dock of a court. The dock is normally inhabited by low-level underlings. The principals reduce their risk by paying people such as you to take risks.
30 Your role was obviously a necessary one, or you would not have been asked to perform it. Not just asked, but paid to do so. See the case of
Doan v R [2010] VSCA 250.
31 This crime carries a maximum term of 15 years’ imprisonment. There is the lesser penalty for this style of offence, as I have said, but such a charge can cover all manner of crops. It could cover a person cultivating one or two plants in a backyard. So a crop with not the slightest hint of commerciality or professionalism and driven by a supply for personal use. Or it could cover someone involved in a highly professional venture such as this one.
32 As I said on the plea, hydroponic cultivation 25 or 30 years ago was a rarity. It is now very common indeed and that is so whether we are talking about commercial or non-commercial offences. This crop, as I have said, had an unmistakable commercial flavour to it and you were one of those cultivating it. It is a serious crime and you must have known as much.
33 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, I believe they are good.
34 I must consider the need for specific deterrence. That is the need to deter you from committing crimes in the future. You have been arrested, you have been charged, you have pleaded guilty. You have some remorse. You have no criminal record and have, what I believe, are good prospects of rehabilitation. You spent 75 days in custody and will spend more time in custody. Specific deterrence has already been achieved, at least to a degree here. I believe it is open to me to moderate the weight to be given to specific deterrence, as well as to community protection in this case. It would be very different indeed if you had a relevant criminal history, or if I had reached a more pessimistic view of your prospects, but that is not the position. So I moderate those purposes, but they are still of some relevance.
35 I must denounce your conduct. That is important.
36 I must also punish you justly and proportionately. That too is important.
37 General deterrence is a significant purpose of sentencing in cases such as these. I do not accept that there is any sensible basis to reduce the weight to be given to that purpose, owing to your low-level role here. The courts are full of low-level cultivators. They must be deterred.
38 There is a never-ending stream, as I have said, of hired underlings coming before the courts in connection with cannabis crops. The vast majority are, or claim to be, low-level players.
39 Well the message must be sent to likeminded people to cause them to reflect on the sizeable risks being taken on in committing this sort of crime. We, as judges, must seek to deter or discourage others from committing such offences. The message must be conveyed. Do not engage in this sort of crime. Do not take the risk.
Current sentencing practice
40 I pay regard to current sentencing practices. It is not a single, controlling factor, it is just one of the matters a court must have regard to. I have looked at the Sentencing Advisory Council's Snapshot No.221 for cultivation, as well as the more up-to-date Sentencing Advisory Council online data. I have also looked at the Judicial College of Victoria manual with the overview of non-commercial cultivation sentences. See 33.13.6.2. I have excluded from consideration any cases where a commercial quantity charge was dealt with. I have looked at the case of Le to which I was referred. That sentence, which I note one member of the Court of Appeal said was stern, related to a single day cultivation of a crop with 84 plants, but a much lower weight than the weight in this case. It was around 37 kilograms.
41 The offender in that case had a precarious financial status, owing to applying for refugee status and having no ability to access any benefits in this country. He had no family in this country and hence an increased custodial burden. He had no prior appearances before any courts, he pleaded guilty early and he was remorseful. He also, of course, had a minor role.
42 Statistics always have limitations and so do other examples of sentences imposed on other people for other crimes. Every crime is different and so too is every offender. Other cases, including the one I have just mentioned, are not precedents.
43 It is though clear from the many cases in this area, that cultivation of cannabis is a serious and prevalent offence. That is so whether charged as the less serious offence, as here, or as the more serious commercial quantity offence.
44 I do not lose sight of the fact that this offence of cultivation is less serious than a commercial quantity offence. I have, of course, the lower maximum penalty at play. However, that does not transform it into some minor crime. It is not minor offending by any stretch of the imagination. It is not a low-level example of cultivation, given the set-up here. The possession charge is far less serious. It is hard not to hold suspicions that the cannabis in the bag was somehow connected to the crop that you were cultivating and that being so, I am concerned about concepts of double punishment.
Disposal
45 There is a disposal order sought in this case. It is not opposed and I am satisfied that the preconditions to the making of the order under s.78(1) of the Confiscations Act 1997 are made out. I order that the property referred to in the schedule be forfeited to the State and be dealt with in the manner contemplated by the signed order.
46 Your counsel urges me to impose what he described as a straight sentence.
I do not believe that I can do that here. The fact is, I would not be doing that if you were a resident of this country. The offending warrants a sizeable term of imprisonment and one which then enlivens the power to fix a non-parole period. I accept that the existence of a non-parole period may provide some issues in your case. There may be some uncertainties in your mind. What, for instance, will happen at that point when you have served the non-parole period? Will you be deported? Will you go into immigration detention first? Will you remain in prison beyond that non-parole period?
47 Sometimes there can be a lag before expulsion or deportation from the country. I take that into account as far as I am able to, but it is not a sizeable matter. The reality is that no prisoner ever has any certainty at all as to what will happen at the end of the non-parole period and that is so whether there are immigration issues or not. I am certainly not able to take into account your immigration status as a reason to decline to fix a non-parole period. A court is never entitled to predict whether a prisoner will or will not be granted parole. I must proceed on the assumption that you will serve every day of the head sentence, which is exactly what I would have to do in the absence of any immigration issues.
Sentence
48 If you would stand up now please, Mr Ngo.
49 On the first charge on the indictment, the charge of cultivation of cannabis, I convict and sentence you to 21 months' imprisonment. That is the base sentence.
50 On the charge of possession of cannabis, that is Charge 2, you are convicted and sentenced to one days’ imprisonment.
51 That one day term will be served concurrently with the base sentence.
52 That results then in a total effective sentence of 21 months' imprisonment.
Non-parole period
53 I fix a non-parole period of 11 months in this case.
Section 18 pre-sentence detention
54 You have already served 79 days of this sentence by way of pre-sentence detention and that s.18 declaration is entered into the records of the court.
Section 6AAA
55 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to three years, four months' imprisonment. I would have fixed a non-parole period of 24 months.
56 Just have a seat please. I will see if there is anything else that I need to do.
57 Are there any other orders that I need to pronounce at all?
58 MS BASEDOW: Nothing further.
59 HIS HONOUR: No, all right, thank you.
60 All right, Mr Barrett, you will go down and see your client downstairs and take him through the sentence? It is pretty straightforward what it involves, but there is a total effective sentence therefore of 21 months, with a non-parole period of 11 months. He has already served 79 days. All right?
61 Well that completes the matter then, Mr Ngo. So, Mr Barrett will come down and see you downstairs.
62 So Mr Ngo can be removed, thank you.
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