Director of Public Prosecutions v Nguyen
[2018] VCC 1742
•24 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00365
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DE VAN NGUYEN |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2018 | |
DATE OF SENTENCE: | 24 October 2018 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1742 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms H. Bate | Office of Public Prosecutions |
| For the Accused | Mr Z. Zayler | Melasecca Kelly & Zayler |
HIS HONOUR:
Introduction
1 De Van Nguyen, you have pleaded guilty to ten charges of cultivation of a narcotic plant and two of cultivation of a narcotic plant in not less than a commercial quantity.[1] The maximum penalty for an offence of cultivation of a narcotic plant is 15 years’ imprisonment.[2] The maximum penalty for an offence of cultivation of a narcotic plant in not less than a commercial quantity is 25 years’ imprisonment.
Prior Criminal Record
[1] Charges 1-9 and 12.
[2] Charges 10 and 11.
2 As the criminal record filed with this Court shows, you have a relatively limited but nonetheless relevant criminal history. In the four year period between mid-2005 and mid-2009, you appeared in Sunshine Magistrates' Court on three occasions in respect of a total of five offences.
3 On 21 June 2005, you were placed on a six month community correction order, without conviction, for one charge of cultivation of a narcotic plant and two charges of theft.
4 On 5 December 2006, you were fined, without conviction, for one charge of recklessly causing injury.
5 And, finally, on 16 June 2009, you were again fined, without conviction, but on that occasion for one charge of theft.
Overview of the offending
6 The circumstances of the current offending were opened in considerable detail at the plea hearing. That opening was based on the amended typed prosecution opening dated 4 October 2018[3] and on the result of the discussions that were held at the outset of the plea. I have had regard to those matters. It is sufficient for present purposes to provide the following outline.
[3] Exhibit A.
7 You had recently turned 56 at the time you committed the offence alleged in Charge 1. You were almost 57 at the time that you committed the offences alleged in Charges 2 and 3. You committed the offence alleged in Charge 4 on your 57th birthday. You were still 57 when you committed the remaining offences with which you are now charged. At all relevant times, you were working as a self-employed rubbish collector and living in Sunshine North with your wife and children.
8 In respect to the cultivation simpliciter charges,[4] you are alleged to have intentionally assisted in the cultivation of cannabis at each of the properties by the delivery of supplies and/or the removal of waste. In respect of those offences, it is not alleged that you actually entered any of the properties sufficiently to see the cultivations and hence, it is not alleged that you would have been aware of the number of plants or likely weight of any of the crops.
[4] Charges 1-9 and 12.
9 The situation in respect of the two commercial cultivation charges is different.[5] Whilst it is alleged that you cultivated cannabis at both of those properties by the same method, it is also alleged, based on your entry to each of those premises, that you knew there was a real and significant chance that each of those properties contained not less than a commercial quantity of cannabis.[6]
Uncharged acts as context
[5] Charges 10 and 11.
[6] A commercial quantity is legislatively defined as 100 plants or 25 kg.
10 In order to place your charged offending in a proper and more realistic context, the prosecution referred to other conduct in which you engaged whilst under police surveillance. You assisted other cannabis growers on a more limited basis by simply disposing of cannabis waste and equipment from properties other than the 12 which are the subject of the current charges. You are not charged in respect of any of that conduct and you will not be additionally punished for it. That conduct was, by agreement between the parties, led purely for context purposes and I will confine my consideration of that evidence to that issue.
Background to police investigation
11 In October 2015, police commenced a targeted investigation into the cultivation and trafficking of commercial amounts of cannabis by numerous independent entities state-wide, unwittingly assisted by the target of the current investigation, you, Mr Nguyen.
12 In October 2015, Mr Nguyen was identified transporting cannabis waste items in his Toyota Hiace van to the Transfer Station at the Melton Recycling Facility (Melton Tip), on an almost daily basis. In addition to the cannabis waste, he also disposed of associated items used in the cultivation of cannabis, such things as shrouds, pots, soil stumps, and plant stalks.
13 The police investigation utilised telephone intercepts (‘TI’s’), a mobile tracking device fitted to Mr Nguyen’s van, covert police surveillance, and an undercover operative.
14 During the relevant period, Mr Nguyen was using a mobile phone registered to a person named Long PHAM of 12 Wellington Street in Collingwood. The conversations were conducted in the Vietnamese language and had to be translated into English.
Modus operandi
15 An assessment of material obtained from surveillance, tracker and TI’s, showed that Mr Nguyen’s conduct routinely followed a common pattern:
· He would receive a phone call/text message from a crop sitter/organiser to arrange a date and time to meet;
· He would occasionally attend a hydroponic supplier on the nominated date and pick up hydroponic supplies in his van;
· He would meet the crop sitter/organiser as agreed, often at a public car park;
· The crop sitter/organiser would take Mr Nguyen’s van to the cannabis crop house, unload any hydroponic supplies and reload the van with cannabis waste;
· The crop sitter/organiser would then return the van to Mr Nguyen at the original meeting place;
· Mr Nguyen would then transport the cannabis waste to the tip;
· Mr Nguyen would charge $500 for clients in the Western Suburbs and $600 for clients anywhere else;
· Mr Nguyen would also field calls from clients who wanted to drop the cannabis waste off at his house;
· Mr Nguyen and his customers spoke in code; the code words that were used to avoid detection varied as between customers and are set out in the table contained in [11] of the prosecution opening;
· On occasions, Mr Nguyen would have to admonish some customers who tried to speak to him without using code; and
· Mr Nguyen was in regular contact with a Mr LE, the sole proprietor of Hydroponic Tech Pty Ltd, a hydroponic supplies warehouse located in Springvale.
16 In the period between 27 November 2013 and 12 November 2014, Mr Nguyen ran an advertisement in the Vietnamese equivalent of TV Week. The same advertisement was re-listed on 19 April 2017 and, as translated, read as follows:
Rubbish RemovalLawn Mowing—
Rubbish Removal, lawn mowing, service all areas
Devoted, trustworthy, experienced
Brother De 0434 216 430
The first police intercept
17 The first police intercept of Mr Nguyen occurred on Wednesday 18 November 2015. He was intercepted as he was driving his van on the Princes Freeway in Warragul West. On searching the van, police located a large quantity of hydroponic equipment. When they asked him what he was doing with it, he told them that he was a courier and had collected it from an address in Warragul. When then asked what that address was, he replied “I don’t know. I was told how to get there”.
18 As the police had not located anything illegal, Mr Nguyen was not interviewed or charged but simply allowed to resume his journey.
Use of covert operative
19 On 12 October 2016, the police covert operative called Mr Nguyen’s mobile and enquired about getting some rubbish removed. Mr Nguyen indicated that he lived in Sunshine but could travel anywhere. He quoted a price of $600. They arranged to meet at the Bunnings Store in Springvale the next day.
20
That meeting took place as arranged and the covert operative ‘borrowed’
Mr Nguyen’s van. A tracker device was then fitted to the vehicle pursuant to a lawfully obtained warrant.
21 When the vehicle was returned, the two men conversed in Vietnamese. After paying Mr Nguyen the agreed sum of $600 in cash, the covert operative indicated that he may need to borrow the van again in a month’s time. In reply, Mr Nguyen indicated that was no problem and that most people borrowed it every six weeks. He also indicated that he usually only needed a day’s notice from the person borrowing the van; two days if things were very busy.
22
On 7 December 2016, the covert operative rang Mr Nguyen and the two arranged to meet at the same Bunning’s store in two days’ time. At that meeting, the covert operative again borrowed Mr Nguyen’s van, which the police investigators later filled with cannabis waste. Mr Nguyen handed over his van. On the return of the van, the two men had a further conversation.
Mr Nguyen advised the covert operative to make sure that the plants were put into the garbage bags whole next time to avoid tearing the bags. When the covert operative indicated that he was interested in purchasing some seedlings, Mr Nguyen said that he did not know of anyone who wanted to sell plants at the moment but would call him if he found any plants for sale.
Tip-runs
23 In October and December 2015 and again in January and February 2017, police attended at the Melton tip after being notified that Mr Nguyen had disposed of cannabis waste. Before seizing the waste, police took photographs.
24 In his statement to police, the operator of the tip indicated the following:
· He had first noticed Mr Nguyen attending in the van in 2015;
· That van attended the tip on regular occasions and sometimes twice on the same day;
· He took particular notice of it on account of the sheer volume of rubbish that the Asian male driver was disposing of;
· He checked what was being disposed of on numerous occasions and the packaging and contents were always the same; plants, stems, dirt and what appeared to be cannabis leaves;
· On some occasions the bags had broken open and plant material was clearly visible; and
· He was able to provide police with a detailed description of the Asian male driver’s physical appearance.
Charge 10 and first arrest
25 On Friday the 7th of April 2017, investigators executed a search warrant at two separate addresses in Archies Creek Road, Archies Creek.
26 Mr Nguyen and a co-offender Van Hoa VU were located inside the premises at No.93. They were in the process of unloading bags of Coco Peat and bottles of fertiliser from Mr Nguyen’s van. Coco Peat is an organic soil commonly used in the cultivation of cannabis crops.
27 During a search of the premises, police located a functioning hydroponic setup within an internal structure that created a number of rooms. The lighting was being powered by an illegal electrical bypass. Various chemicals, soil, and tools were also located.
28 The cannabis crop consisted of a total of 372 plants, the combined weight of which was 163.92 kilograms. That number of plants equates to 3.72 times a commercial quantity and represents 37.2% of a large commercial quantity. [7]The weight of those plants equates to 6.55 times a commercial quantity and represents 65.56% of a large commercial quantity.[8]
[7] In the table contained in Part 2 of schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981, a commercial quantity and large commercial quantity of cannabis are defined by number of plants to be 11 and 1000, respectively.
[8] In the table contained in Part 2 of schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981, a commercial quantity and large commercial quantity of cannabis are defined by weight of the plants to be 25 kg and 250 kg, respectively.
29 After obtaining a warrant, police also searched Mr Nguyen’s home address in Phoenix Street, Sunshine North. In the garage, they located multiple black garbage bags containing cannabis waste. While police were at that address, a male by the name of Hoa Van PHAM attended. On seeing police, he started to walk away. When police searched his vehicle parked nearby, they located and seized numerous bags of cannabis waste.
30 Mr Nguyen was arrested and interviewed back at the Melbourne West Police Complex, with the assistance of a Vietnamese interpreter. During that interview, he told police, inter alia, the following:
· He had placed an advertisement in the Vietnamese newspaper.
· He was a lawn mower and rubbish collector but did not know that the waste he was collecting was cannabis;
· He had attended at the Archies Creek Road property on two occasions and delivered supplies, although he did not know what they were;
· The other man, whom he knew as “Map” had messaged him to clean up and cut all of the grass at the front of the premises and then take all of the rubbish away; and
· That male had also told him to off load the goods into a corner.
31 When police searched the two premises in Archies Creek Road, they did not locate any lawn mowers.
32 For completeness sake, I note that when the co-offender, Mr Vu, was interviewed by police, he indicated that he was employed as a paid gardener and rubbish removalist by the owner of the premises. He said he had a key which he used to open the gate to allow the van to be driven into the property. He admitted to helping Mr Nguyen to unload ‘a lot of stuff’.
33 Mr Vu was duly charged. He ultimately pleaded guilty to one charge of cultivation of a commercial quantity of cannabis and two charges of negligently dealing with proceeds of crime, for which he was sentenced by Her Honour Judge Quin on 1 March 2018 to a head sentence of four years and two months’ imprisonment with a non-parole period of two years and six months. The sentence imposed for the charge of commercial cultivation was four years’ imprisonment.
First Charged and remanded on 8 April 2017
34 Mr Nguyen was first charged on 8 April 2017. He was then remanded in custody to appear at a committal mention hearing on 6 July 2017. He made a successful application for bail on 2 May 2017, and was released on that date.
Second arrest on 24 May 2017
35 The investigation continued until Mr Nguyen was arrested for a second time on 24 May 2017. By that time he had been out on bail for 22 days. He was interviewed in respect of the 34 addresses that had come to the attention of the police during the course of the investigation. During that interview, he told police:
· He had been doing “rubbish removal, gardening, lawn mowing for five years”;
· Some of his customers would arrange to meet him at Bunnings and would take his van away;
· He would do 3 lawn mowing jobs a week and would attend the actual address;
· He would cut branches and remove all of the rubbish;
· He did not keep records of customers phone numbers or addresses;
· His customers would put all of the rubbish in bags and so he did not know what the rubbish was;
· He would regularly check the Vietnamese newspaper to ensure that his advertisement was still there;
· When asked if he had attended any hydroponic stores over the last five years, he said he could not remember. He initially claimed that he did not know what such stores sold and then reverted to exercising his legal right to refuse to answer such questions;
· When asked what he thought the items he was delivering might have been, he told police that he had no way of knowing; that he did not know what it was and only asked them whether it was legal or not; and
· When asked about some of the recorded TI conversations in which there had been reference to ‘school children’, he said that on some occasions customers just said ‘nonsense things’ and he would think that something was not right and would say. "No".
Charges 1-9 and 12
36 As already indicated, charges 1-9 and 12 each allege an offence of cultivation simpliciter. Each of those charges relate to a different address, the details of which, without the actual street number, are as follows:
· For Charge 1, Ryland Avenue, Croydon;
· For Charge 2, Kialla Lakes Drive, Kialla;
· For Charge 3, Koala Court, Whittington;
· For Charge 4, Ravensthorpe Cres, Narre Warren;
· For Charge 5, Filbert Court, Cranbourne North;
· For Charge 6, Sandy Street, Nunawading;
· For Charge 7, Turanga Place, Hallam;
· For Charge 8, Bristol Court, Kilsyth;
· For Charge 9, Rowan Drive, Kealba; and
· For Charge 12, Hayman Terrace, Mulgrave.
37 The prosecution case is that the accused man intentionally assisted in the cultivation of cannabis at each of those ten properties. However, on the available evidence, particularly the fact that there is no evidence that he entered any of those premises, and bearing in mind the applicable standard of proof, the prosecution cannot suggest that Mr Nguyen was aware of the quantity of cannabis that was being grown at any of those properties.
Charge 1
38
In respect of Charge 1, members of the police surveillance unit observed
Mr Nguyen enter the driveway of the subject Croydon property on
14 December 2015 and then, subsequently, drive back to his home address.
39 When the investigating police searched the interior of those premises, pursuant to a warrant on 14 January 2016, they located a hydroponic crop of 520 cannabis plants which weighed 160 kilograms. An electrical bypass was also located.
Charge 2
40 In respect of Charge 2, I note the following.
41 On 23 October 2016, Mr Nguyen spoke to a customer, via mobile phone. It was agreed that he would collect supplies from the hydroponic shop and then meet the customer at a Coles Supermarket. Mr Nguyen collected the supplies the following day and met the customer in Springvale South on the 25 October in accordance with their agreement. The vehicle was borrowed and then later returned, at which time Mr Nguyen then attended the Melton tip.
42 When the investigating police searched inside the subject Kialla premises on 9 November 2016, they located a hydroponic crop of 302 cannabis plants which weighed 89 kilograms. An electrical bypass was also located.
43 The investigating police later charged the person that they believed was in control of that address, a youth named Tran. For the offences of commercial cultivation, possession of cannabis and theft, he was sentenced to be detained in a Youth Justice Centre for a period of 6 months.
Charge 3
44 In respect of Charge 3, I note the following.
45 On 25 September 2016, Mr Nguyen was contacted on his mobile and booked for a delivery on the following day. He undertook to pick up some fertiliser.
46 On the following day, after further mobile contact, Mr Nguyen indicated that he had ‘arrived’.
47 On 8 November 2016, Mr Nguyen was contacted by the same customer and asked if he would be attending the caller’s address. Mr Nguyen returned the call later that day and asked the other person to open the gate. Approximately two minutes later, police observed Mr Nguyen to arrive at the subject premises in Whittington. He remained there for about 13 minutes after which he drove to the Werribee Tip.
48 When the investigating police searched the interior of the subject Whittington premises on 5 December 2016, they located a hydroponic crop of 190 cannabis plants which weighed 291.4 kilograms, together with an illegally installed electrical bypass.
Charge 4
49 In respect of charge 4, I note the following.
50
On 1 November 2016, Mr Nguyen was contacted by another customer and the two arranged to meet at Fountain Gate for an increased price of $600 due to the distance involved. On the following day, the customer called and reminded him to go to the hydroponic shop. They duly met up as arranged at 4.00 pm that day. The tracker device indicated that the van was then driven to the subject Narre Warren address where it remained for approximately
12 minutes. The van was then returned to the car park at Fountain Gate Shopping Centre before being driven to Mr Nguyen’s home address. The following morning, the van was tracked to Melton Tip.
51 When the investigating police searched the subject premises in Narre Warren on 4 January 2017, they located inside a hydroponic crop of 166 cannabis plants which weighed 61.9 kilograms, together with an illegally installed electrical bypass.
52 Police arrested the man who was present inside the house when they arrived. He was Tung Nguyen. The mobile phone in his possession was found to match that used to make arrangements in respect to the Cranbourne North property the subject of Charge 5 on this indictment.
53 Tung Nguyen was sentenced in this Court on 27 November 2017 in respect of cultivation of a commercial quantity of cannabis and theft of electricity. For those offences, he was sentenced to a total effective sentence of two years and three months’ imprisonment with a non-parole period of 17 months.
Charge 5
54 In respect of Charge 5, I note the following.
55
At 4.43 pm on 2 November 2016, following the van’s attendance at the
Narre Warren address the subject of Charge 4, the van was tracked to the subject address in Cranbourne North where it remained for approximately
18 minutes. Following that, it was tracked to the Fountain Gate Shopping Centre.
56 When the investigating police searched the interior of the subject premises in Cranbourne North on 6 January 2017, they located a hydroponic crop of 100 cannabis plants which weighed 82.95 kilograms and an illegally installed electrical bypass.
Charge 6
57 In respect of Charge 6, I note the following.
58 On 23 October and 8 December 2016, Mr Nguyen had a number of mobile phone conversations with a particular customer. They agreed to meet up at the Nunawading Bunning’s store on 11 December and ultimately did so. The van remained at that location for three minutes before being tracked to the vicinity of the subject Nunawading address where it remained for 21 minutes. Subsequent to that, the van was tracked travelling to Mr Nguyen’s home address.
59 When the investigating police searched the subject premises in Nunawading on 11 January 2017, they located inside a hydroponic crop of 108 cannabis plants which weighed 15.05 kilograms, together with an illegally installed electrical bypass.
Charge 7
60 In respect of Charge 7, I note the following.
61 After mobile phone arrangements were made, Mr Nguyen met another customer at the Spring Square Shopping Centre in Hallam on 19 September 2016. He had been observed attending at the hydroponic shop earlier that day.
62
At the rendezvous destination, two males were observed to get into
Mr Nguyen’s van and drive away. The vehicle attended at the subject address in Hallam at 12.07 pm and left at 12.48 pm. It was then tracked back to the original meeting place at which stage two Vietnamese males were observed exiting the van and having a brief conversation with Mr Nguyen. A short time later, Mr Nguyen drove the van to the Melton Tip.
63 When the investigating police searched the inside of the subject premises in Hallam on 20 January 2017, they located a hydroponic crop of 111 cannabis plants which weighed 15.89 kilograms and an illegally installed electrical bypass.
64
A Vietnamese male named Van Lam Vu was present at the address at the time police executed the search warrant. He was arrested and charged. On 15 February 2018, he was sentenced in this Court in respect of offences of commercial cultivation and theft of electricity, to a head sentence of
three years with a non-parole period of 22 months.
Charge 8
65 In respect of Charge 8, I note the following.
66 On 7 December 2017, Mr Nguyen received a call from another customer and, after a series of calls, he agreed to meet that male for $600. They duly met up as arranged on the 9th of December, at the Kilsyth Shopping Centre. The van remained there for four minutes before being driven to the subject address in Bristol Court, Kilsyth, where it remained for 35 minutes. The van was then tracked back to the meeting point and then to Mr Nguyen’s home address.
67
Further phone contact was made on 16 January 2017, in which the same male asked Mr Nguyen if he could give him a discount for the next load as it would be smaller. Mr Nguyen refused to negotiate, saying that he has to pay the same tip fee regardless of the size of the load. Later that day, they met, as before, at the Kilsyth Shopping Centre, after which the van was tracked, via another address in Kilsyth, to the subject Bristol Court address, where it remained for 13 minutes. The van was then tracked travelling back to
Mr Nguyen’s home address.
68 When the investigating police searched the subject Bristol Court Kilsyth premises on 31 January 2017, they located a hydroponic crop of 86 cannabis plants which weighed 43 kilograms, together with an illegally installed electrical bypass.
Charge 9
69 In respect of Charge 9, I note the following.
70 On 17 October 2016 and again on 9 February 2017, another customer contacted Mr Nguyen via mobile phone to arrange to book his van. In the first call, Mr Nguyen indicated that he has so many customers he cannot remember where they all are. On each of those two dates, Mr Nguyen’s van was tracked to the subject Kealba address. On the first occasion, it remained there for nine minutes before then being driven back to Mr Nguyen’s home address. On the second occasion, it remained there for 17 minutes before then being driven back to Mr Nguyen’s home address.
71
When the investigating police searched the subject Kealba premises on
3 March 2017, they located a hydroponic crop of 93 cannabis plants which weighed 7.4 kilograms, together with an illegally installed electrical bypass.
72 On 6 June 2017, a man named Van Phap Le was arrested at that address. He was then interviewed and charged with cultivating a narcotic plant and obtaining a financial advantage in relation to the electrical bypass. Those charges were later withdrawn.
Charge 12
73 In respect of Charge 12, I note the following.
74 At 10.23 am on 30 August 2016, Mr Nguyen was observed to attend at the Little Jungle Hydroponic store in Sunshine North. At 11.43 am, he attended at the subject Mulgrave premises where he remained for 13 minutes.
75 On 27 October 2016, he was contacted on his mobile and, in code, asked to bring Coco Peat and fertiliser to that address the following day. His van was tracked to that address the same day before returning to Mr Nguyen’s home address. On the next morning, Mr Nguyen drove the van to the Melton Tip.
76 On 18 November 2016, arrangements were again made for Mr Nguyen to attend the subject property in Mulgrave and he did so, staying for ten minutes. As he had previously, Mr Nguyen attended at the Melton Tip the following morning.
77 On 12 December, he was called on his mobile and asked, in code, to bring hydroponic supplies. Later that day, Mr Nguyen phoned the caller and asked him to open the door. Mr Nguyen’s van was then tracked to the same Mulgrave address, where it remained for eight minutes. The van was then tracked back to Mr Nguyen’s home address.
78
When the investigating police searched the subject Mulgrave premises on
9 May 2017, they located a hydroponic crop of 153 cannabis plants, together with a quantity of dried cannabis plant matter. The combined weight of the plants and plant matter was 128.81 kilograms. Police also located an illegally installed electrical bypass.
Charge 11: the remaining charge of commercial cultivation
79 In respect to the second of the charges of cultivation of not less than a commercial quantity of cannabis, I note the following.
80
On 22 August 2016, Mr Nguyen was contacted by another client via mobile phone and the two men came to an agreement regarding the booking of
Mr Nguyen’s van for the following day. Again, Mr Nguyen indicated that he has so many clients he cannot remember where they all are.
81 Mr Nguyen was observed by surveillance officers to attend at the hydroponic store at 10.03 am on the following day, the 23rd of August. At 12.01 pm, he met another male in Newborough. That male ended up driving away alone in Mr Nguyen’s van. The two men then met up at the Gippsland Athletics Club at 12.28 pm and exchanged vehicles. Mr Nguyen was then tracked as he travelled home in his van.
82
On 14 October 2016, the same male made a further phone booking in respect of Mr Nguyen’s van for the 19th of October. On that later date, Mr Nguyen’s van was tracked to the subject Newborough address, where it remained for
46 minutes. Subsequently, it was tracked to the Melton Tip.
83 A further trip to the same tip occurred at 7.38 am on 11 January 2017, followed by an attendance at the hydroponic store at 9.26 am. After purchasing supplies there, Mr Nguyen drove his van to the subject Newborough address, arriving at 12.14 pm.
84 On 25 February 2017, Mr Nguyen rang a male and arranged, over a series of conversations, to meet at that same address.
85 On 6 April 2017, Mr Nguyen was surveilled to the hydroponic store where he arrived at 10.42 am. He left a minute later and then travelled in his van to the subject address in Newborough, where he remained for 25 minutes, after which he travelled home.
86
When the investigating police searched the subject Newborough premises on 10 April 2017, they located a hydroponic crop of 509 cannabis plants which weighed 205.11 kilograms, together with an illegally installed electrical bypass. That number of plants equates to 5.09 times a commercial quantity and represents 50.9 % of a large commercial quantity. The weight of the cannabis equates to 8.20 times a commercial quantity and represents
20.51 per cent of a large commercial quantity.
87 The owner of that Newborough property later told police that he had rented it to a woman named Jenny Pham. Further enquiries revealed that the documents that had been used to enter that rental agreement were false. The prosecution’s case is that the identity of that person was fictitious.
Pre-sentence detention
88 In terms of pre-sentence detention, I note that Mr Nguyen has been in custody in respect of this matter on two separate occasions. The first period was from 7 April until 2 May 2017 and totalled 26 days, while the second period was from 24 May until 6 June 2017 and totalled 14 days.
89 The agreed figure is therefore 40 days and will be made the subject of an appropriate pre-sentence declaration later in these sentencing reasons.
Fact and timing of the plea of guilty
90 I also note that Mr Nguyen agreed to plead guilty to these charges at a very early stage, namely at the committal and before any witnesses were called.
91 For taking that course as and when he did, Mr Nguyen is entitled to a significant discount in his sentence. It has saved the community from the cost and time associated with what would have been a relatively lengthy and somewhat complex trial and spared the witnesses from having to give evidence.
Personal circumstances
92 I turn now to outline your personal history, Mr Nguyen. You were born in a rural northern province of Vietnam in January 1960, and are now 58 years of age.
93 Your family were poor peasants and life was a struggle. Your entire childhood and adolescence took place during the Vietnam War under Communist rule. Your father was killed in combat when you were only 6. Your widowed mother was left to raise you and your two older brothers in very difficult circumstances. You left school very early, with only a Grade 4 equivalent education. You felt compelled to work as a farm labourer in order to support the family. You witnessed a particularly distressing incident when you were 12. The US army bombed a bridge over a large river near your village. As many of the local villagers, including some children, were collecting the fish which had floated to the surface, the aircraft returned and dropped further bombs, killing many people that were known to you and your family. It had a significant psychological impact on you then and afterwards.
94 At age 30, you became disenchanted with your rural life and the struggle that was involved in earning just enough to eat. You moved to an industrial city and worked as a labourer sanding the hulls of ships. A year or so later, at the invitation of a friend, you worked as a deckhand on a boat in order to gain your passage to Hong Kong where you spent the next four years in a refugee camp. As part of the resettling process, you were moved to the Philippines, where you remained for 12 months. Ultimately, you were offered resettlement in Australia and travelled here in 1995. You have since become an Australian citizen.
95 Prior to coming to Australia, you met your first wife. The two of you travelled to this country together. You obtained full-time work as a kitchen hand within a month of your arrival here. After two years, you moved on to work in a chicken factory for three years. A subsequent attempt to set up your own sewing business ultimately failed. You worked as a gardener between 2001 and 2002.
96 Your marriage ended in 2003 when your wife left you for another man that you had sponsored from Vietnam. You were left to raise your children alone. After a period of three months spent adjusting to that situation, you returned to work and acted as the sole provider for your four children until you met your second wife. Together, you supported six children, not all of them your biological children. All have either been tertiary educated or are in the process of studying at university.
97 From 2003, however, you struggled with the concept of not generating a stable and reliable income. Your dishonesty priors appear to have occurred in that context. As for the prior cultivation committed approximately 13 years ago, you cultivated nine plants for a friend to supplement your income.
98 You continued to work as a gardener while your second wife worked as a machinist. The combined income was barely adequate to support the family and, ultimately, you took the opportunity to earn more money by committing the current offences.
99 Following your arrest, you have worked full-time on weekdays as a subcontract courier and as a gardener on weekends.
100 With the assistance of an interpreter, you were recently assessed by the consultant psychologist, Mr Luke Armstrong. I have had regard to the contents of his report and his viva voce evidence when determining the appropriate sentence in this case.[9] In his opinion, you presented with features of a mild intellectual impairment. You lacked cognitive flexibility and your comprehension and thinking was somewhat concrete in nature.
[9] The report is dated 2 October 2018 and was tendered as exhibit 1 on the plea.
101 As noted by Mr Armstrong, you are well supported by your family partner and children.
Explanation for the offending
102 In the course of his submissions made on your behalf, Mr Zayler sought to emphasise the context in which you came to offend as you did. You were struggling financially and saw this as a way out of your financial predicament.
103 Of course, the fact that your offending occurred in such circumstances provides an explanation and context to your offences, but by no means an excuse or justification for committing them.
Other Matters in Mitigation
104 Mr Zayler was able to rely on a number of other matters in mitigation in this case.
105 Your early plea of guilty deserves a significant discount in your sentence.
106 You eschewed running a trial in circumstances where you had an arguable defence in respect to at least some of the charges.
107 You have shown remorse and acknowledged to the psychologist that you had broken the law and were “greedy for the money”.[10]
[10] Exhibit 1, page 6.1.
108 Whilst I accept that you are remorseful, it must also be said that you were not so from the outset. When interviewed by the police, you attempted to provide an innocent explanation and context for some of your actions and professed ignorance or a lack of memory in respect to others, for example your association with hydroponic stores.
109 Your offending was at a lower level than other more serious examples of this type of offending.
110 In light of the psychologist’s assessment of your cognitive abilities, it would seem that you may not have had a full appreciation of the gravity of your offending and your thinking was in somewhat concrete terms.
111 You have a very good work history and have demonstrated a capacity to obtain and maintain employment over a considerable period. Indeed, you have worked hard all of your working life and been a devoted and loving father to your children.
112 That hard work and devotion is demonstrated by the fact that you have managed to raise a large family and all of those children have done very well academically and professionally.
113 You have ongoing and strong family support, as well as support from other quarters.[11]
[11] One of the character reference was authored by a friend and another by a Buddhist Monk.
114 I accept that the time that you spent on remand gave you some opportunity to reflect on your conduct and may well serve as somewhat of a deterrent in the future.
115 I also accept that you will find the service of a custodial sentence difficult in light of your limited English skills, your limited experience with the criminal justice system and gaol environment, and the concerns that you will no doubt have about your family while you are in custody.
Gravity of the offending
116 But of course, I must also have regard to a number of other relevant sentencing considerations apart from those personal to Mr Nguyen. One of those other considerations is the gravity of the offending.
117 As can be gleaned from the high and very maximum penalties fixed by Parliament for these types of offences, 15 years and 25 years’ imprisonment, respectively, any such offence is intrinsically serious.
118 On any view, the offending engaged in by Mr Nguyen was very serious.
119 He engaged in systematic criminal conduct for profit, knowing that what he was doing was providing an important service to those who were more heavily involved in these criminal enterprises. Given the amount of money he was able to charge for the manual and unskilled services that he was providing, he must have been aware that the criminals that he was assisting were running a lucrative criminal operation in order to be able to afford such an operating cost. I am also satisfied that Mr Nguyen must have realised that the money that he was able to charge was, in part, compensation for him taking on the risks inherent in what he was doing. He was not unexposed but rather, was at risk of detection in any number of ways.
120 The extent of his offending is of obvious concern to this Court. Not only did it extend over a considerable period, but it involved multiple clients and hence, assistance provided to multiple criminal operations.
121 Whilst I accept that he had no knowledge of the size of the crops in the houses for which he is charged with trafficking simpliciter, he must have been aware at least, that they were business ventures being run for profit motives.
122 In respect of the two charges of commercial cultivation, his offending was clearly more serious and his moral culpability higher given his greater knowledge about the size of the crops. Those crops were very large and the threshold for a commercial quantity was, in each case, easily surpassed.
123 Some of Mr Nguyen’s conduct is very illuminating. For example, his insistence on the use of code language when discussing things with his clients demonstrates a knowledge that what he was doing was criminal in nature and shows that he wanted to minimise the chances of being caught. Another example relates to the prices he charged. He was astute enough to vary his rates depending on the distance he was required to travel and to refuse any attempts by clients to negotiate his rates. It is clear from all of the evidence, that Mr Nguyen was doing what he was doing in order to make money. And, until he was arrested, he was certainly achieving that aim.
124 As for the role that Mr Nguyen played, I do not accept defence counsel’s categorisation of it as being at the lowest end. In my view, whilst he was clearly not an architect or organiser of any of these criminal enterprises, and whilst he did not stand to gain any of the profits from the ultimate sale of the product, Mr Nguyen played an important role in the overall scheme of things. The fact that he was able to be as busy as he was is testament to that fact. What he did provided some degree of insulation for others involved in this insidious business. For example, it was he who took on the risks of obtaining the supplies from the hydroponic stores and transporting them, and it was he who collected, transported, stored and ultimately disposed of the cannabis waste and other associated materials. And, in undertaking all of those tasks, he used his own van. So, while his actions created risks for him personally, they reduced the chances of others, who were more involved, being detected.
125 It can legitimately be said that the extent of the offending involved here is a direct result of the investigating police allowing the operation to go on for as long as they did. But, it may also be said that the resultant evidence demonstrates that Mr Nguyen had no immediate intentions of desisting from his lucrative criminal activities at the time he was first arrested. It was an ongoing business which he was fully intending to continue with. It was only the eventual intervention of the police that put an end to things.
126 When viewed globally, the offending must be considered as systematic and persistent. In my view, Mr Nguyen must bear a relatively significant degree of moral culpability for his criminal conduct.
Relevant Sentencing Principles
127 General deterrence, denunciation and just punishment are self-evidently very important considerations in this case.
128 The nature and gravity of the current offending and the relevant prior criminal history, means that specific deterrence is also a very relevant consideration.
129
In respect of all of the charges save Charge 11, protection of the community must clearly be given some weight for reasons which are no doubt
self-evident.
130 I say save for Charge 11 because, as was agreed by the parties at the plea, in the event that Mr Nguyen is sentenced to an immediate term of imprisonment for Charge 10, he becomes a serious offender for the purposes of Charge 11. As such, and in accordance with the legislative requirement in s.6D(a) of the Sentencing Act 1991, when sentencing Mr Nguyen as a serious offender for Charge 11, the Court must regard the protection of the community as the principal purpose for which that sentence is imposed.
131 I do not, however, propose to exercise the discretion invested in the Court in s.6D(b) of that Act. In my view, given the very high maximum penalty that applies to Charge 11, there is ample scope to impose a sentence that gives due regard to the protection of the community without imposing a disproportionate sentence. In this context, I note that the prosecution did not urge the Court to exercise its discretion any differently.
132 Mr Nguyen must be justly punished for his criminal conduct. Given the nature, extent and seriousness of this offending, the punishment must be a relatively substantial one, in my view.
133
I should note that I consider the offence encompassed by Charge 11 to be more serious than that alleged in Charge 10 and to warrant a higher sentence. It is clear from the prosecution opening that Mr Nguyen had more involvement with the property the subject of Charge 11 than he did with that the subject of Charge 10. Furthermore, the size of the crop and therefore the size of the criminal venture, was greater for Charge 11 than for Charge 10. And, finally, Mr Nguyen falls to be sentenced as a serious offender in respect to Charge 11 but not for Charge 10. As such, the sentence imposed in respect of
Charge 11 must give greater weight to the protection of the community.
134 Mr Nguyen’s age and prospects of rehabilitation must also be taken into account. I have ultimately concluded that those prospects are moderate to good.
135 I accept that Mr Nguyen’s time spent in custody will be difficult for a variety of reasons, including the fact that he has limited English skills, and I have taken that fact into account when determining the appropriate sentence in this case.
136 I must also have regard to the important principle of totality and, in accordance with that principle, impose a total sentence that is commensurate with the totality of Mr Nguyen’s criminality, no more and no less.
137 Given the vastly different circumstances of the other offenders who have been charged and sentenced already, strict parity considerations do not really arise in this sentencing exercise and counsel did not suggest otherwise.
138 During the course of the plea hearing, some reference was made to a few other cases involving these type of offences and the court was referred to the most recent statistics for the offence of cultivation of a commercial quantity of narcotic plants.[12] Those statistics show that in the period between 2012-13 to 2016-17, 442 offenders were sentenced in the higher Courts for a principal offence of that nature. The non-aggregate terms of imprisonment imposed ranged from one month and 13 days to six years and six months, while the median length of imprisonment was two years.
[12] Sentencing Snapshot No. 222 published by the Sentencing Advisory Council in August 2018.
139 I have had regard in a general and limited way to those other cases and those statistics. But, as the Court of Appeal has said repeatedly, any such exercise is of only very limited utility given the inevitable differences between cases and in light of the paucity of information conveyed by bare statistics.
Defence Sentencing Submissions
140 In his sentencing submissions, Mr Zayler submitted that it was appropriate in all of the circumstances to release Mr Nguyen on a stand-alone community correction order. It was at least implicit in his submissions, that an alternative way of dealing with the matter could be to impose a combination sentence with the custodial component not exceeding the period that Mr Nguyen has already spent on remand. Mr Zayler resisted the prosecutions submission that the offending in this case warranted an immediate term of imprisonment in the form of a head sentence and non-parole period.
141 As Mr Zayler readily acknowledged, the offences of commercial cultivation alleged in Charges 10 and 11 are Category 2 offences and therefore s.5(2H) of the Sentencing Act applies. In such circumstances, a Court is mandated to impose an immediate term of imprisonment other than a combination sentence unless it finds that one or more of the listed criteria are satisfied. The criteria that Mr Zayler sought to rely on was that listed in sub-s.(e), namely that there are substantial and compelling circumstances that justify not making such an order.
142
As to the meaning of that test and, in particular, the words “compelling circumstances”, Mr Zayler referred this Court to the Court of Appeal’s decision in DPP v Hudgson.[13] In that case, the Court had to consider whether a ‘special reason’ existed in order to circumvent the mandated minimum
non-parole period.
[13] [2016] VSCA 254
143 Mr Zayler submitted that the ‘substantial and compelling circumstances’ test in s.5(2H)(e) was satisfied here when regard was had to all of the circumstances of the case, particularly the limited and lowly role played by Mr Nguyen. He was a minor player who was not personally invested or interested in the success of the crops being grown; he did not receive and was never going to receive any part of the proceeds of sale.
144 More generally, Mr Zayler asked the Court to pay due regard to the sentencing principles of proportionality and totality.
Prosecution Sentencing Submissions
145 For their part, the prosecution highlighted the nature and gravity of this offending by Mr Nguyen and the consequent need to emphasise the principles of deterrence, denunciation and just punishment in any sentence imposed.
146 They argued that the factors relied on by the defence did not, either alone or in combination, satisfy the high threshold test contained in s.5(2H)(e), and that therefore, the Court was bound to impose an immediate term of imprisonment for the offences alleged in Charges 10 and 11, and one that was not imposed by way of a combination sentence.
147 The prosecution’s position was that all of the offences warranted immediate imprisonment. That offending was, they submitted, systematic, sophisticated, serious in nature, and committed by someone who had previously been found guilty of an offence of cultivate a narcotic plant.
148 Thus, and notwithstanding the matters that could be relied on in mitigation, the prosecution submitted that this Court should impose a sentence in the form of a head sentence and a non-parole period in this case.
Analysis
149 In respect of the offences alleged in Charges 10 and 11 and the test of ‘substantial and compelling circumstances’, I agree with defence counsel that at least some assistance can be gained from a consideration of Hudgson’s case. However, I am unable to accede to his ultimate submission that the relevant test has been satisfied in this case. That test is a very high one and the matters relied on by Mr Zayler do not come close, in my view, to satisfying it.
150 In that event, this Court is legislatively bound to impose a sentence of immediate imprisonment for each of Charges 10 and 11. As is clear from the relevant provision, that term of imprisonment cannot be imposed as part of a combination sentence.
151 I should say that even if the test in s.5(2H)(e) had been satisfied and the Court had the full suite of sentencing options technically open to it, I would have taken no different view as to the appropriate sentence in respect of the offences alleged in Charges 10 and 11. Nothing short of a term of immediate imprisonment is open in respect of each of those offences, and relatively significant ones at that.
152 I have also concluded that the lesser but still serious offences of cultivation simpliciter, warrant immediate imprisonment.
153 Viewed globally, the circumstances of this case clearly call for a relatively substantial term of immediate imprisonment. That sentence must be in the form of a head sentence and a non-parole period. To do otherwise, would be to fail to accord the necessary weight to a number of important sentencing considerations, in particular general deterrence and denunciation, and would not represent a just and appropriate punishment for the offending engaged in by Mr Nguyen.
154 Given Mr Nguyen’s age, limited criminal history and prospects of rehabilitation, I consider it appropriate to fix a relatively low non-parole period in relation to the head sentence.
Sentence
155 Mr Nguyen, having balanced and weighed the relevant sentencing considerations in your case as best I can, I have decided to sentence you as follows.
156 In respect to all of the charges on the indictment, you will be convicted and sentenced as follows.
157 Charges 1-9 and 12, the ten offences of cultivation of a narcotic plant, to an aggregate sentence of three years’ imprisonment.
158 Charge 10, cultivation of a narcotic plant in not less than a commercial quantity, three years’ imprisonment.
159 Charge 11, cultivation of a narcotic plant in not less than a commercial quantity, four years’ imprisonment.
160 The sentence of four years’ imprisonment imposed for Charge 11 is to be the base sentence.
161 I make the following orders as to cumulation.
162
The following periods are to be served cumulatively on the base sentence of
four years imposed for Charge 11, and on each other.
163 For the aggregate sentence imposed on Charges 1-9 and 12, 12 months.
164 For the sentence imposed on Charge 10, 12 months.
165 The total effective sentence is therefore six years.
166 In respect of that head sentence, I fix a non-parole period of three and a half years.
Section 6 AAA Indication
167 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for his plea of guilty to these offences, I would have sentenced Mr Nguyen to a total effective sentence of eight years’ imprisonment and fixed a non-parole period of five and a half years.
Pre-Sentence Detention
168 Pursuant to s.18 of the Sentencing Act, I declare that Mr Nguyen has served a total of 40 days pre-sentence detention, not including today’s date, in respect of the sentence that I have imposed on him today. I order that that period is to be reckoned as already served under that sentence, and I further order that the declaration and its details be entered in the records of this court.
Serious Offender Status
169 Pursuant to s.6F of the Sentencing Act, I note that Mr Nguyen has been sentenced for the offence in Charge 11 as a serious offender. I therefore order that the fact he was so sentenced and the details be entered in the records of the Court.
Ancillary Orders
170 Finally, I make the disposal order in the terms sought by the prosecution, pursuant to s.78 (1) of the Confiscation Act.
Other Matters
171 Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons?
172 MS BATE: No, your Honour.
173 MR ZAYLER: No, your Honour.
174 HIS HONOUR: I thank each counsel for their assistance in this matter.
175 MR ZAYLER: Your Honour pleases.
176 MS BATE: As Your Honour pleases.
177 Adjourn the Court sine die at this stage, thank you.
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