Director of Public Prosecutions v Nguyen
[2024] VCC 1128
•24 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00650
CR-22-00788
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANH HONG NGUYEN |
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| JUDGE: | HER HONOUR JUDGE HOGAN |
| WHEREHELD: | Melbourne |
| PRE-TRIALs198(B)EXAMINATION: | 29 April 2024 |
| TRIALDATE: | 30 April to 3 May 2024 |
| DATEOFPLEA HEARING: | 28 May 2024 |
| DATEOFSENTENCE: | 24 July 2024 |
| CASEMAYBECITED AS: | DPP v Nguyen |
| MEDIUMNEUTRALCITATION: | [2024] VCC 1128 |
REASONS FOR SENTENCE
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Subject:One charge of cultivating not less than a commercial quantity of cannabis, one charge of theft of electricity.
Catchwords: 33 year old offender - convicted by a jury of cultivating not less than a commercial quantity of cannabis – offender admitted cultivation – only issue at trial was whether he has the intention to cultivate a commercial quantity - 72 plants weighing 73.72kg - relatively strong circumstantial prosecution case – offender operated alone – comprehensive and sophisticated set up of irrigation, lighting and surrounding systems – Plea of guilty to charge of theft of electricity - good prospects of rehabilitation – finding of remorse regarding both charges - gravity between low and mid-range for this offence – whether court satisfied that property lawfully obtained and as s(2A)(a to c) of Sentencing Act allows forfeiture to be taken into account in sentencing.
Legislation Cited: Sentencing Act 1991 (VIC), Confiscations Act 1997 (VIC), Crimes Act
1958 (VIC).
Cases Cited:
Sentence:Total Effective Sentence of 3 years and 5 months imprisonment with a non-parole period of 20 months.
s6AAA on Indictment No. M124046333B: 9 months’ imprisonment.
| APPEARANCES: | Counsel | Solicitors |
| For the DPP (on Trial and on Plea) | Ms G McMaster | Solicitor for Public Prosecutions |
| For the Offender | Mr A Patton | Theo Magazis & Associates |
HER HONOUR:
1Thanh Hong Nguyen, following a jury trial you were found guilty of one charge of cultivating a narcotic plant, namely Cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant. This offence carries a maximum penalty of 25 years’ imprisonment. Prior to the commencement of that trial you pleaded guilty to one charge of theft of electricity, which carries a maximum penalty of 10 years’ imprisonment.
2The offending in relation to both charges occurred between 31 May and 31 August 2021. Police had requested a check on the electricity data usage at 70 Judkins Avenue, Hoppers Crossing (“the property”). This residential address had been purchased by you in your name approximately two years earlier. The electricity account for the property and the mobile telephone number associated with that account were registered in your name.
3On 31 August 2021, police executed a search warrant at the property. A bypass had been set up by you, which resulted in electricity used at the property not being registered through the electricity meter. In other words, the electricity being used was being stolen by you. A licensed electrician from Powercor, the electrical distributor, attended the property to dismantle the electrical bypass, which you had installed. At the trial, the prosecution adduced evidence that there had been in excess of 40,000 kilowatt hours of electricity stolen, valued at over $10,000. This estimate related to a period of 10 weeks, or 70 days, from 22 June 2021 to 31 August 2021. It was premised upon there having been various pieces of electrical equipment operating at the property for 18 hours per day over that period. This comprised 55 lights of 600 watts each, a fan of 200 watts, four pumps of 45 watts each and six charcoal filters of 160 watts each. This resulted in a calculation of 43,263 kilowatts of electricity consumed over that period.1
Evidence of Darryl John Hamilton, Transcript (“T”) 37-39]
4Another witness for the prosecution gave evidence that usage of 43,269 kilowatt hours of electricity between the relevant dates would have been billed at a retail tariff of $10,485 by the supplier, Origin Energy, to the customer at the property, albeit that Powercor charged Origin Energy a lesser wholesale rate for the electricity.2
5Evidence was given at the trial by a botanist, Ms Emily Sowter, that the initial growing or nursery phase of a cannabis plant, where it is becoming established from either seed or a cutting, is typically up to four weeks. During this phase, cannabis cultivated indoors will generally be exposed to 18 hours of light and six hours of darkness. Following this phase, there is a vegetative growth phase where the plant gets bigger and bushier. She stated that, typically with indoor cultivation, during this phase the plant is also exposed to 18 hours of light and six hours of darkness. Following the vegetative phase, when the cultivator decides that the plants are as big as desired, the lighting cycle is switched to 12 hours of light and 12 hours of darkness in order to stimulate the flowering phase of the plant, which will be ready for harvest approximately six to eight weeks later.3 In one of the rooms at the property where the plants were in the flowering cycle, Ms Sowter had observed a timer to be set to 12 hours of light and 12 hours of darkness.4 She stated that she would not expect that the pumps delivering nutrients would be on all the time. She had observed timer settings for pumps to come on for two intervals of 15 minutes.5 She stated that she would expect that the carbon filters would be running more or less constantly, because they help conceal the distinctive pungent smell of a growing crop. Also, fans may be running constantly or in conjunction with the lights to keep the air moving around when the plants are actively photosynthesising.6
Evidence of Benjamin James Mack, T42-44
T67-70
T68
T81
Op cit
6Ms Sowter gave evidence that, when she attended the property, she estimated the age of plants in each of the rooms as follows:
(i) in room one there were 10 plants which were between 10 to 13 weeks post the nursery phase (up to four weeks). Also, in room one, there were eight larger plants which were approximately 13 to 15 weeks post the nursery phase (up to four weeks).7
(ii) in room two there were 36 plants which were approximately three to four weeks post the nursery phase (up to four weeks).
(iii) in rooms three and four there were a total of 18 plants which were approximately 12 to 14 weeks post the nursery phase (up to four weeks).8
7Ms Sowter’s evidence was that she had observed light timers on a 12 (not 18) hour cycle in rooms where the cannabis plants were in their flowering phase. However, she estimated that the largest plants in rooms one, three and four had been growing for approximately 18 weeks (including the nursery phase) and, in the pre- flowering phase, the lighting would have been on for 18 hours per day. Thus, based upon her estimation of the age of the most mature plants, the period of cultivation would have begun in, at least, May 2021. This is consistent with what you told police in your record of interview.9
8Based upon this evidence of Ms Sowter, together with her evidence that there would be some equipment, such as the carbon filters, which she expected to operate constantly, it was not correct to calculate the power usage on the basis that all electrical equipment had been operating for 18 hours per day, However, I am satisfied beyond reasonable doubt that the equipment was operating prior to 31 August 2021 for a period which preceded 22 June 2021 (the commencement date upon which the power usage and associated cost calculations had been
T100-101
T101
Question and Answer 128 in Record of Interview, part of Exhibit “D”
based). In all these circumstances, I am satisfied beyond reasonable doubt that the estimates of power used and the retail value of such power are conservative estimates.
9The prosecution case on the charge of cultivation of not less than a commercial quantity was based, not upon the number of plants, but the weight of the plants found at the property. The evidence of Ms Sowter was that:
(i) in room one there were 18 plants weighing a total of 32.06 kilograms;
(ii) in room two there were 36 plants weighing a total of 2.52 kilograms;
(iii) in room three there were nine plants weighing a total of 19.18 kilograms;
(iv) in room four there were nine plants weighing a total of 19.96 kilograms.
Thus, at the property, there were 72 plants weighing a total of 73.72 kilograms. The commercial quantity defined by weight is not less than 25 kilograms.
10At the trial, you did not dispute that you had cultivated cannabis, but took issue with the allegation that you intended to cultivate not less than a commercial quantity of cannabis. The cultivation set up at the property was a sophisticated one, as depicted by the host of equipment in the four rooms where cannabis was growing. This included specialised double pots for each of the cannabis plants, pumps with hosing delivering water and nutrients to the plants, the large quantity of 600 watt globes operating from industrial strength transformers (which Ms Sowter described as expensive), together with more lighting shining upwards from floor level, fans, carbon filters, power boards, containers of nutrients and other substances, plastic sheeting (which was black on one side and white on the other side, blocking each of the windows in the rooms where cannabis was growing), and black curtains installed in two of the rooms (from which doors had been removed).
11The prosecution invited the jury to find that you had put a great deal of time and money into setting up the infrastructure of this cultivation enterprise as described to them and depicted in photographs. The prosecution also relied upon the fact that you had bypassed the electricity in order to save a substantial expense, which otherwise would have been incurred in the cultivation undertaken by you. The prosecution submitted that these factors should leave the jury in no doubt that you were aware or had a belief that the weight was at least 25 kilograms, particularly given that the weight of the plants was not just a little over the commercial quantity, but almost three times that weight. Further, the prosecution relied upon the existence of the 36 smaller plants, which were in the vegetative stage in room two, as being indicative of your intention to grow another commercial crop and, thus, reflected your awareness that the other 36 more mature plants in rooms one, three and four must have been known by you to weigh at least 25 kilograms. In my view, the prosecution case was a relatively strong circumstantial case.
12You are presently aged 33 years, having been born in December 1990. You come before the Court with no prior criminal history.
13In a plea on your behalf, Mr Patton, told the Court that you had been born and raised in Vietnam. You are the oldest male of three children of the family. Your father died when you were five years old. As you got older, you felt the responsibility of needing to assist your mother and younger siblings financially. You finished high school in Vietnam and qualified there as a welder. In 2013, at the age of 22 or 23 years, you travelled alone to Australia on a Student Visa and undertook courses in English and various hospitality roles.
14In 2018 you were granted permanent residency status and were conferred with Australian Citizenship in 2021. Since 2018, you had been employed at MVP Truck Bodies. Your initial role was that of welder and you worked your way up to workshop manager. You held this job right up until the date upon which that you were remanded in custody after the jury convicted you of this offence. A reference
was provided by your employer, Mr Van My Nguyen, the director of MVP Truck Bodies, dated 1 May 2024. He noted that you had been a much valued employee and are very skilled. You have talents in welding, as well as constructing truck bodies which are manufactured by the company. You held a position of being responsible for manufacturing and repairs in the workshop. You trained other workers to do the job and organised them. Your employer stated that it was rare to find an employee, like yourself, who was so skilled and such an asset to the company, as well as being very sociable and always willing to help others. Your employer stated that he would continue to support you as he believes that you are a good person who will help the community.10
15Mr Patton stated that, during the time of the lockdown and restrictions imposed due to the Covid-19 pandemic, the company for which you worked suffered a downturn in work. You were reduced from working 40 to 20 hours per week and found yourself in financial difficulty. He stated that one or two years earlier, you had purchased the property and had mortgage payments of $2,600 per month to meet, as well as sending money periodically to Vietnam to support your family. When interviewed you had told police that interest rates were very high and, after one year of the pandemic, you were only managing to make about $650 per month (sic). I have assumed that this figure probably should have been $650 per week, as a later payslip, dated 9 May 2022 during which you worked 40 hours, showed your take home pay to be $1,361 for that week.11 You stated that you were unable to cover the cost of food, car expenses and your mortgage, or to send money to your mother and two younger siblings. You stated that you believed you had no choice and, hence, embarked on this illegal cultivation enterprise.12
16I here interpolate that the previously mentioned reference from your employer, Van My Nguyen, confirmed that it was a very difficult period for the company during the Covid-19 pandemic restrictions and he thought it possible that, because of this,
Reference dated 1 May 2024, part of “Exhibit 1”
Part of Exhibit 1 – Payslip dated 9 May 2022
Record of Interview, “Exhibit D” in the trial, question and answers [38]-[56]
you had thought that the company may close and that this caused you stress, as other companies had been thus affected and had had to close. He supported the understanding that these challenges and stress had caused you to violate the law.
17I must say that for someone who was presented to the court with character references describing you as a decent, hardworking, trustworthy and active participant in a Christian youth movement. You are a person who had never used illicit drugs, or in any way been engaged in criminal activity, the decision to cultivate a crop of cannabis to alleviate your financial difficulty seems an extreme and unusual decision, particularly as you told police that you had no prior experience in growing cannabis, but were aware that it was illegal and could result in imprisonment.13 If everyone who was financially stressed during the Covid-19 pandemic restrictions had taken to cultivating illegal crops of cannabis, our society would have become chaotic. Your counsel stated that you have no family in Australia, but obviously your employer thinks highly of you, and it is perhaps surprising that you did not seek his assistance. Nor is there any evidence that you had sought to make alternative arrangements with the bank from which you had obtained the mortgage loan. Nor was there any evidence provided as to the dates and amounts of financial assistance which you claim to have sent to your family members in Vietnam prior to finding yourself in financial difficulty.
18At the time of the record of interview it was not put to you that you had an intention to cultivate a commercial quantity. You made full admissions to the fact of having undertaken cultivation of the cannabis plants, which you said you learned from YouTube. You also admitted to having diverted the electricity. You stated that you had the skills to do this as you had trained as a welder in Vietnam.
19As a matter of fairness, it should be noted that there was never any explanation for why the informant who interviewed you did not put to you that you had cultivated a commercial quantity of cannabis, as distinct from cultivation simpliciter. Ms
Reference to prosecution summary and Reference 1.
Sowter, forensic botanist, gave evidence at the trial that she had attended the property where the cannabis was grown on 31 August 2021, the same day as police, and she had weighed it at the property on that day. It is not in dispute, that she provided a certificate as to the weight of the plants dated 9 September 2021. Thus, the certificate as to the weight of the plants should have been well and truly available to be put to you when you were interviewed by police on 17 November 2021. At the conclusion of that record of interview, police indicated that you were to be charged with cultivation simpliciter.
20On 10 February 2022, the charge laid in the Magistrates’ Court was cultivation simpliciter but, apparently, the error was subsequently realised and the charge was amended to cultivation of not less than a commercial quantity. The matter was adjourned for committal mention. On 12 May 2022, you were arraigned in the Magistrates’ Court and pleaded guilty to cultivating not less than a commercial quantity of cannabis. Your counsel, Mr Patton, stated that, at that time, you had different legal representation and no interpreter had been present at legal conferences or at the hearing in the Magistrates’ Court when you pleaded guilty. The matter proceeded by way of straight hand up brief to the County Court.
21Mr Patton informed the court that, on 17 November 2022, the matter was first listed before a judge in the criminal jurisdiction of this Court. That judge expressed concern about the fact that police had not put the charge of cultivating a commercial quantity to you in the record of interview. The judge further raised whether the requisite intention for cultivating a commercial quantity could be proven beyond reasonable doubt by the prosecution. On this occasion, you were assisted by an interpreter and Mr Patton stated that that was the first time you realised that you had entered a plea to a charge involving a commercial quantity, as distinct from cultivation simpliciter. The matter was then adjourned by the judge for a mention to 13 April 2023. By that stage, your then legal representatives apparently felt that they were conflicted, as they had prepared submissions for a plea hearing. You obtained advice via an interpreter and provided instructions that
you were no longer prepared to enter a plea of guilty to a charge of cultivating a commercial quantity as you maintained that you lacked the requisite intention. An application to change your plea to one of not guilty was granted and your trial was listed for 30 October 2023. The trial was unable to proceed on that date as it was adjourned by the prosecution due to the unavailability of the informant.
22Whilst the decision to ultimately run a trial was clearly made by you and you must own that decision, the full and frank admissions which had been made in your record of interview to police, the lack of mention in that record of interview of any allegation that you had cultivated a commercial quantity, and the subsequent indication from an experienced judge in the criminal jurisdiction querying whether the requisite intention could be made out, all make it understandable that you would elect to run a trial, as you did, on the narrow issue as to whether the requisite intention for that charge was proven beyond a reasonable doubt. At the plea hearing, the prosecutor, Ms McMaster, conceded that there had been a level of judicial intervention prior to the trial which was unusual.
23As previously mentioned, the trial was run on the single issue of whether you had the intention to cultivate a commercial quantity of cannabis. The number of plants
(72) was clearly below the commercial quantity threshold of 100 plants, but by weight they were almost three times the commercial quantity of 25 kilograms. Notwithstanding that you ran a trial, I consider that you have demonstrated remorse for what you did in undertaking the cultivation of cannabis. Also, there has been delay through no fault of your own, from the time of the commission of the offence (between 31 May and 31 August 2021), to the date upon which you were interviewed (17 November 2021), and further delays before the correct charge of cultivating a commercial quantity of cannabis was filed in the Magistrates’ Court, occasioning the matter being adjourned out of the summary stream of cases for a committal mention. It is unfortunate, indeed, that no interpreter was present at the time you were arraigned in the Magistrates’ Court, which, in combination with the issue of intention raised by the judge in the County Court on 17 November 2022,
led to a change of plea application. Thereafter, there was further delay occasioned by the adjournment of the trial date of 30 October 2023 by the prosecution until your trial before me commenced on 30 April 2024. I accept that, during this period of delay, you have suffered anxiety because you have had this charge hanging over your head. You have also have shown steps towards rehabilitation in that you have not reoffended, as well also engaging in a number of charitable works.
24The reference of your employer to which I earlier referred stated that his firm had built shower trucks for homeless youth for a charity, One Voice for Aussie Youth. You had overseen this project in the course of your employment, but then took it upon yourself to maintain those shower trucks in the capacity of a volunteer in your own time. Another reference from Mr Josh Wilkins, director of One Voice for Aussie Youth Ltd, dated 1 May 2024, confirmed that he had met you two years ago when MVP Truck Bodies designed and built two portable shower trucks for homeless people. He stated that you were the person who supervised all other employees on what to do and how to build the truck body. He stated that you were highly committed to the job and continued to look after the charity by providing advice and had also helped build a shed on the farm for the charity, which took a whole weekend of your time. He described you as a good person, who is generous to others. He expressed the view that you are a valuable member of the community. 14 A further reference from Australian Red Cross attested to your having been involved in other volunteer work as a driver and jockey for their distribution centre at Derrimut.15
25
The offence of cultivating not less than a commercial quantity of cannabis is clearly a serious one, as indicated by the maximum penalty of 25 years’ imprisonment. Further, parliament has categorised it as a Schedule 2 offence under the Sentencing Act. The latter means that a court must sentence an offender to an actual term of imprisonment (other than a combination sentence of imprisonment
“Exhibit 4”
Exhibit “2”
together with a Community Correction Order pursuant to s44) unless one of the exceptions outlined in paragraphs (a) to (e) of ss(2(h)) apply. Mr Patton did not argue that any of those exceptions should apply in your case.
26It is trite to say that illicit drugs take a terrible toll on our community. Unhappily, addiction to illicit drugs can cause many people to lead dysfunctional lives and to commit crimes and become involved in the criminal justice system. There is a huge cost to the community, overall, in terms of impairment to the physical and mental health of users, fractured relationships with family and others, the toll upon healthcare resources and policing resources, as well as the financial cost associated with significant number of offenders coming before courts and being incarcerated for crimes related to illicit drugs. All of the adverse impacts mean that, generally speaking, offenders who engage in cultivation of a commercial quantity of cannabis should expect to be sentenced to a term of imprisonment of same length.
27You admitted to police in your record of interview that you had proposed to sell the cannabis, but had not found a dealer because you had not yet harvested the crop.16 The crop grown by you was successful. The amount of equipment involved demonstrates the investment of a considerable amount of time and effort on your part, as well as expenditure by you on the various items of equipment, such that the overall hydroponic set up could be described as sophisticated.
28Mr Patton submitted that there were some indicators that your enterprise was somewhat amateurish. You had indicated in your record of interview that you had learned how to grow cannabis from YouTube,17 and seemed to indicate that you had expected to wait nearly six weeks for the big buds to grow, but, in fact, it had been nearly three months.18 Mr Patton submitted that this was consistent with the description of Ms Sowter, forensic botanist, as to the very bushy nature of the more
Questions and Answers [438]-[442] in Record of Interview, Exhibit “D” at Trial
Questions and Answers [181]-[182] in the Record of Interview
Questions and Answers [157]-[159] in the Record of Interview
mature plants. She had given evidence that the plants will continue to just grow bigger and bigger and not produce flowering heads if they are left in a long daylight cycle (18 hours), whereas the shortening of daylight hours and the lengthening of the night period is what triggers the chemical change within the plant to start flowering.19 Whilst she gave evidence that she had seen a lighting management unit on a 12/12 timer setting, which was sitting on the top of the laundry cupboard, she had not been sure whether there was another timer for the lights in room two which she would have expected to still be growing under a long daylight cycle (18/6).20 The electrical inspectors who had attended the property had noticed times on the longer daylight cycle (18/6), which they had used as the basis for their calculation of the amount of electricity used, to which I have previously referred.
29All of this evidence to which Mr Patton referred is possibly consistent with someone inexperienced and growing his first crop, although not of one any significant mitigatory weight. In my view, of greater weight in mitigation is the fact that you did not attempt to distance yourself from this illegal cultivation enterprise, as is often seen in cases of this type. This court often deals with cultivation cases involving leases of properties in false names and the utilisation of others, like crop sitters, to tend the crop. Nor is there evidence that you were part of a syndicate or organised criminal group with multiple crops at different properties or other associated criminal activity such as weapons offences, forms of dishonesty or offences involving intimidation or threats to others. Most importantly, the crop was grown in a house which was registered in your own name, with a mortgage in your own name and an electricity bill and council rates also in your own name. Further, whilst you were not living at the property, you had notified VicRoads of a change of address, even some six weeks after police had executed a search warrant at the property. I conclude that these factors are consistent with what you told police, namely, that this was your first attempt at growing cannabis albeit that you did have
Transcript of Trial evidence of Ms Sowter pages [93]-[94]
Transcript of Trial [75]
36 immature plants which could be fairly inferred to be consistent with your stated intention to grow a second crop.
30Mr Patton noted that the prosecution had indicated, in accordance with Ms Sowter’s statement, that the dried quantity of the cannabis cultivated by you would have been approximately 13 kilograms, which would realise a market value of between approximately $5,000 and $6,000 per kilogram. He submitted that such evidence does not point to great enrichment, given that your mortgage repayments were $2,600 per month or $13,200 over one year or $26,400 over two years. If the air dried weight of the 36 more mature plants was around 13 kilograms, the potential sales would realise between $65,000 and $78,000. It is difficult to be precise as to the amount of money the crop may have collected, although you told police that you intended to sell the cannabis once It was harvested, you had made specific arrangements for sale of the crop in the “wholesale amounts” of one kilogram or lesser weights, which may have realised greater value. As you were apparently the sole proprietor of this cultivation enterprise, you would not have to share any profit with others. However, one certainly sees far larger profit margins in cases of this sort. Ms McMaster for the prosecution conceded that yours was not the most serious example of commercial cultivation “by a long shot”. As the weight was almost three times the commercial quantity, it is an offence of gravity, however, the ease with which investigators were able to identify you as the cultivator given that you had not taken steps to distance yourself from the property, and the absence of some of the other often-seen aggravating factors to which I have earlier referred, point to an enterprise, overall, which falls between the low and mid-range for this offence.
31In sentencing for this charge the Court must denounce your conduct and place emphasis on general deterrence. General deterrence means that, in sentencing you, a message must be sent to others in the community who might be minded to cultivate commercial crops of cannabis that it will not be worth their while and they
will receive appropriate punishment. Having said that, there are some unusual features to this case.
32You have no prior criminal history. All the material tendered on the plea suggests that you were a hardworking and contributing member of society. Bearing in mind that the downturn in your employer’s business was such that your work hours were cut in half, as was your income, I am satisfied on the balance of probabilities that the primary reason for embarking on this curious and most unwise decision to cultivate cannabis was through financial necessity, but the quantity by weight indicates that there would have been some level of enrichment to you, albeit unable to be measured with any precision.
33As already stated, it is unusual and extremely unfortunate that the commercial weight of the plants was not a factor put to you during your record of interview and, indeed, it is somewhat surprising that an interpreter was not made available to you at that time, as it plain that your English is far from perfect. You readily made admissions in relation to the matters which were put to you in your record of interview about diverting electricity and cultivating the crop. I have already been through the somewhat protracted history of the charge being changed from cultivation simpliciter to cultivation of not less than a commercial quantity, your mistaken plea of guilty before the Magistrates’ Court to the more serious charge and the circumstances behind the grant of leave to you to change that plea. In all of the circumstances, notwithstanding that you ran a trial, I am satisfied that you are remorseful for breaking the law in this way, which appears to be contrary to your earlier good character. You showed contrition in relation to the theft of electricity charge to which you pleaded guilty and had been frank with police that you had personally undertaken the steps to divert the electricity from going through the meter box as you had the skills due to your trade as a welder.
34Notwithstanding that you have had this charge of cultivating in a commercial quantity hanging over your head through various delays, you continued to work
hard with your employer and took steps to atone for your acknowledged wrongdoing in cultivating cannabis (albeit not acknowledging the intention to cultivate a commercial quantity), by continuing to offer your services to maintain the mobile shower trucks for homeless youth, as well as volunteering at the Red Cross Distribution Centre to assist those in the community who are in needy circumstances.
35Another reference from Peter Nhan Nguyen, leader of the Vietnamese Youth Movement at Holy Eucharist Church in St Albans, dated 14 October 202221, stated that you have been helping out with the Youth Movement there, as well as being an active participant in other charitable activities outside the parish. The author states that you have an excellent reputation in the faith community by respecting and paying attention to the needs of others.
36The combination of factors to which I have referred cause me to conclude that your decision to embark upon cultivating cannabis, although a somewhat puzzling and grave one, is not something that you are likely to do again. Hence, I have concluded that there is not a need for great emphasis upon specific deterrence in your case. I consider your prospects of rehabilitation to be good. I have little doubt that you find being in custody a very foreign experience, given that you had never before had any contact with the criminal justice system. In all the circumstances I find that it is appropriate to foster your good prospects of rehabilitation by setting a relatively low non-parole period.
37At the plea hearing, your counsel Mr Patton stated that the property would be forfeited pursuant to the provisions of the Confiscation Act, but notwithstanding your loss of it, that was not a matter to which the Court could have regard in sentencing you. The prosecutor, Ms McMaster, made no submission in response.
38Following the conclusion of the plea hearing, I sought further submissions as to the statutory provisions applicable to forfeiture of the property. I invited the parties
Part of Exhibit ‘3’.
to address the issue of whether the Court could take forfeiture of the property into account in sentencing you as there had been no mention of evidence that the property had been acquired unlawfully. In particular, I invited defence to make submissions which might satisfy the court that the provisions of s5(2A)(a) and (ab) of the Sentencing Act had application in which event a court may have regard to a forfeiture order in sentencing an offender.22
39In response to my invitation, I received further submissions from the parties as follows:
MFI-3 – Submissions from defence counsel, Mr Alex Patton, dated 3 July 2024.
MFI-C – Submissions from prosecution counsel, Ms Georgia McMaster, dated 8 July 2024.
MFI-4 – Further submissions from defence counsel, Mr Alex Patton, dated 10 July 2024.
MFI-D – Further submissions from prosecution counsel, Ms Georgia McMaster, dated 12 July 2024.
MFI-5 – Subsequent further plea submissions from defence counsel, Mr Alex Patton, dated 15 July 2024, including a title search dated 26 November 2021 relating to the property (Exhibit 5), your Commonwealth Bank statements from 1 January 2017 to 31 December 2019 (Exhibit 6) and the your Notices of Assessment from the Australian Taxation office for the years 2017, 2018, 2019 June 2021 (Exhibit 7).
MFI-E – Subsequent further plea submissions from prosecution counsel, Ms Georgia McMaster, dated 16 July 2024.
An email sent to parties dated 3 July 2024, Annexure 1.
MFI-6 – Further submissions from defence counsel, Mr Alex Patton, dated 18 July 2024, including an affidavit from the you unsigned, but sworn on 24 July 2024. (Exhibit 8).
40On your behalf, Mr Patton accepted the invitation and submitted that his earlier submission had been mistaken and that the court is permitted to take forfeiture of the property into account pursuant to s5(2A)(ab) of the Confiscation Act.
41I have found the protracted and piecemeal submissions by defence to be frustrating. From the outset, the court was not provided with a coherent chronology as to when the property was purchased, the source of the deposit for it, details of any mortgage loan taken out in relation to it or records pertaining to your repayment of such mortgage and the source of such repayments. Mr Patton essentially asserted that there was no suggestion that the property had been unlawfully acquired, it would be automatically forfeited, and you would lose approximately $90,000 of equity which you had in it and that this factor should be taken into account in mitigation of sentence.23
42Ms McMaster, on behalf of the prosecution, filed submissions in reply. It was not until these submissions24 that the court became aware for the first time that the property had already been sold. This occurred pursuant to a contract of sale dated 1 February 2022, with settlement effected on 3 March 2022. The prosecution advised the Court that the proceeds of sale, $119,780, had been deposited in your bank account (presumably after any mortgage loan had been satisfied) and that this sum is the subject of a restraining order made under the Confiscation Act on 3 March 2022. You have filed an application for exclusion under the Confiscation Act on the grounds that the property from which these proceeds have come had not been unlawfully acquired and was not tainted property.
MFI-3
MFI-C and MFI-D
43Subsequent submission by Mr Patton consisted essentially of further assertions: “There is no suggestion that at the time of purchasing the property Mr Nguyen was engaged in any unlawful activity, let alone any unlawful activity concerning the house”. He conceded that, given that the property had been used in connection with the subject offending it came within the definition of “tainted property” in s3 of the Confiscation Act. Thus, he submitted: “The sentencing court should proceed on the basis that, given the inextricable connection between the offending and the property, the exclusion application will not succeed.”25
44On 15 July 2024, the Court sent an email to the parties indicating the need for you, Mr Nguyen, to provide evidence in support of the proposition that the property had been lawfully acquired as this factor needs to be satisfied before the court could take forfeiture of it into account pursuant to s5(2A)(ab).26
45In response to that email, Mr Patton, filed further submissions. 27 Amongst other things, Mr Patton stated, “We rely on the Land Title Search Statement found at Depositions page 72” (which document was not before the court but has since been extracted and exhibited28). This document shows that the property at 70 Judkins Avenue was registered in your name on 31 May 2019, that is, some two years prior to the commencement of the offending for which you are to be sentenced. Mr Patton attached to the submissions the following documents: ATO notices of assessment issued to you showing your taxable income from 2017 to 2021, excluding 202029, together with statements from your Commonwealth Bank account from 1 January 2017 to 31 December 2019.30
MFI 4
An email sent by the court to parties in this matter dated 15 July 2024, Annexure 2.
MFI-5
Exhibit 5
Exhibit 7
Exhibit 6
46A further submission from Mr Patton,31 finally set out the history of the acquisition of the property and enclosed an unsworn affidavit by you (ultimately sworn today).32 The court understands the following:
(a)the property was purchased on 31 May 2019 for $600,000.
(b)you paid a deposit of $60,000 from your Commonwealth Bank Account and the balance of the purchase price was met by a mortgage loan from Bank West. As this was your first home loan, you were not required to pay stamp duty.
(c)you allege that your employment since arriving in Australia, initially for VN Truck bodies and then from MVP Truck Bodies, enabled you to save money for the deposit and to pay the mortgage instalments.
(d)you stated in your affidavit that, “Prior to purchasing the property, I lived with my now ex-wife. She worked and her wages were used to help pay expenses.” 33
47In his final submissions, Mr Patton made reference to interest rates and submitted that, on a 30-year home loan for $540,000 those interest rates would be in the vicinity of $1,600 to $1,800 per month.34 If this were so it makes no sense that, when in financial hardship, you would apparently continue to pay an amount of approximately $1000 in excess of the interest on your mortgage by repaying the bank $2,600 per month. I have already referred to the lack of evidence that you contacted your bank to make any alternative arrangements when you say your salary was halved during the COVID-19 pandemic.
48The Australian Taxation Office Assessments tendered on your behalf, show that your taxable income in the year ending 30 June 2017 was $48,140, upon which
MFI-6
Paragraph 9 of the Affidavit of Thanh Hong Nguyen sworn 24 July 2024, Exhibit 8.
Ibid, paragraph 8.
Paragraph 4 of MFI-6
tax of $7,192 was payable, giving you a net income of $40,940.50. For the year ending 30 June 2018, your taxable income was $46,969 upon which tax of
$6,811.92 was payable, giving you a net income of $40,157.08. For the year ending 30 June 2019, your taxable income was $52,834, upon which tax of
$8,718.05 was payable, giving you a net income of $44,115.95. Thus, at the time you signed the contract of sale and incurred a mortgage loan repayment obligation of $2,600 per month, it is apparent that your net monthly income was $3,676.32. After deduction of the mortgage repayment of $2,600, you would have been left with a disposable income of $1,076.32 per month. It is difficult to see how you could have sustained yourself on this amount in addition to sending money to your relatives in Vietnam, as you claimed. In your affidavit you have stated that prior to purchasing the property you lived with your now ex-wife and her wages were used to help expenses.35 At the plea hearing, no mention was made of you having ever been married or that your wife had financially assisted you. The court has not been provided with any evidence as to when you married, when you separated or what wages were earned by your former wife.
49Mr Patton’s analysis of the financial information provided to the court was scant indeed. It is not incumbent upon this court to pore over multiple pages of bank statements to try to find evidence that the purchase of your property was lawful. It is incumbent upon you to satisfy the court that it was lawfully purchased. The analysis of those bank records provided by your counsel was essentially confined to pointing out that you received income from MVP Truck bodies and paid mortgage instalments. I can see from your bank statements that the wages generally comprised payments of $687 and $948 at different times of the month. Although, at times, higher amounts, for example of $1,183 and $723 or other variations appear in the bank statement.36 The payments to which I have just referred generally have a description of wage or “mvpwage”, although it was never
Paragraph 8 of Exhibit 8.
See for example page 7 to 12 of the Commonwealth Bank Records for the period 1 January 2019 to 30 June 2019, part of Exhibit 6.
made plain upon what precise date you had commenced work within that employment. Your affidavit refers to having previously working with MVP Truck Bodies, but the only payments evident to me from that source are amounts of $896 and $914, both paid into your account on 13 Feb 2024.
50What is apparent from your bank statement is that there are some substantial payments which carry a description of either “kenny” or “kenny pay MVP”, in particular an amount of $9,950 credited to your account on 22 April 2019 and
$10,000 on 24 April 2019. No explanation has been provided as to the reason for such substantial payments. There are quite a number of deposits into your account for other than wages. These are for amounts ranging from $500 to $5000 and some considerably larger by way of payments of $9000, $10,000, $12,000 and
$14,000 which are apparent from 26 January 2017 through to 16 December 2019. It is unclear to the court to what these amounts relate, some of which are just referred to as “Nguyen T funds trns”, “transfer from Thuy Nguyen Combank app”, “shop spending”, transfer from XX8036 Netbank described as “Muon”, and transfer from a variety of different people, such as Huong Huynh Huong, Phan Nguyen described as “lend”, Thuy Nguyen described as “Em Chau”, Anh Nguyen described as “sim” and Thuy Nguyen described as “jojo”.
51Over the period covered by your Commonwealth bank statements between 1 January 2017 and 31 December 2019, there are either money transfers or cash deposits into your account in excess $225,790, leaving aside minor amounts under
$100. Of these $81,970 consists of cash deposits. The cash deposits and transfers amounted to approximately $35,000 in 2017, $43,420 in 2018 and $143,370 in 2019. These amounts do not include payments marked as wages, albeit the figure does include the amounts of the unexplained large amounts of $9,950 from “Kenny” which is designated as pay. I here note that, on the letter head of the
reference provided by your employer the email address is [email protected]
52Whilst there may be legitimate explanations for the matters arising from my examination of your bank accounts, this court has not been provided with any explanations. The prosecution submitted that in these circumstances the court cannot be satisfied that the property was lawfully acquired. After careful consideration, bearing in mind that there is an onus on an offender to prove a factor in mitigation on the balance of probabilities, I have concluded that I cannot be satisfied on the balance of probabilities that the property was lawfully obtained. I hear note that in DPP v Kapkidis the Court of Appeal quoted with authority a proposition from R v Mcleod38:
“It is for the offender to present ‘credible material’ identifying the source of the property so as to permit the sentencing judge to form a positive conclusion that at least some substantial portion of the property has been lawfully acquired.” 39
53Whilst I make it plain that I cannot be satisfied on the balance of probabilities that the property was lawfully obtained, nor is there any evidence before me that it was unlawfully obtained prior to you commencing the cultivation of cannabis. Hence, it would be wrong of this court to speculate that you have been involved in unlawful activity in the past and my analysis above has been confined to determining whether you should or should not be entitled to any amelioration of your sentence because of the forfeiture of the property. I have found you should not be so entitled, but this does not impact upon my earlier findings regarding your prospects of rehabilitation.
54In arriving at the sentence I intent to impose, I have had regard to current sentencing practices, but it is trite to say that no two cases are the same and I have pointed out some uncommon features in your offending.
Exhibit 1.
(2007) 16 VR 682
Kapkidis v the Queen (2013) VSCA 35 at p16 [46].
55On Indictment No: M12404633A, on one charge of cultivating not less than a commercial quantity of cannabis you are convicted and sentenced to be imprisoned for a period of three years and four months.
56On Indictment No: M124046333B, on one charge of theft of electricity you are convicted and sentenced to be imprisoned for a period of six months.
57The base sentence is that imposed on Charge 1 Indictment No: M12404633A, I direct that one month of the sentence imposed on the charge of theft of electricity on Indictment No: M124046333B be served cumulatively upon it.
58The total effective sentence is thus 3 years and 5 months imprisonment.
59I direct that you serve a period of 20 months’ imprisonment before becoming eligible for parole.
60I declare a period of 83 days presentence detention to be time reckoned as already served under the sentence imposed this day.
61Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your plea of guilty on the charge of theft of electricity, the sentence imposed on that charge would have been 9 months’ imprisonment.
62As you have been convicted of a Schedule 1 offence pursuant to the Confiscation Act 1997 (VIC), namely cultivation of a narcotic plant in a commercial quantity, and upon being satisfied that the property referred to in the Schedule is a drug of dependence and/or property that is prescribed by the regulations that was used or intended to be used in connection with the commission of the offence or was derived or realised directly or indirectly from the commission of the offence, I order pursuant to s78(1) of the Confiscation Act 1997 that the property referred to in the schedule be forfeited to the state and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or
analysed and then destroyed. The property referred to in the schedule is an electrical bypass, a blue toothbrush, a blue/silver toothbrush and samples from the cannabis plants.
ANNEXURE 1
CSV-CCV-JUDGE HOGAN CHAMBERS (CSV)
From: CSV-CCV-JUDGE HOGAN CHAMBERS (CSV)
Sent: Wednesday, 3 July 2024 2:40 PM
To: Georgia McMaster; Erin Phillips
Cc:Alexander Patton; Theo Magazis; [email protected]; CSV-CCV-JUDGE HOGAN CHAMBERS (CSV)
Subject: RE: Thanh NGUYEN - Sentence
Her Honour recalls Mr Patton submitting that the offender’s property will be forfeited under the Confiscations Act, but that is not a matter which Her Honour can take into account in the sentencing process. Could parties please provide reference to the relevant statutory provisions relating to this submission?
CSV-CCV-JUDGE HOGAN CHAMBERS (CSV)
ANNEXURE TWO
From: Sent: To:
Cc: Subject:
Categories:
CSV-CCV-JUDGE HOGAN CHAMBERS (CSV)
Monday, 15 July 2024 1:45 PM
Alexander Patton; Georgia McMaster; Erin Phillips; Theo Magazis CSV-CCV-JUDGE HOGAN CHAMBERS (CSV)
RE: DPP v Thanh NGUYEN
Her Honour is concerned to pass sentence in this matter as soon as possible and, as a matter of fairness to the offender, to have regard in sentencing him to the forfeiture of the proceeds of sale of 70 Judkins Avenue provided she is able to be satisfied of the pre-requisite to doing so stipulated in s5(2A)(ab) of the Sentencing Act 1991, namely, that the property was acquired lawfully.
In Kapkidis v The Queen, applying R v McLeod, the court of appeal made it clear that “The sentencing judge is not required to speculate as to whether, or to what extent, the property in question was lawfully acquired…” and emphasised that the offender must present credible material on this issue (Footnote 1).
Thus far all that has been provided are assertions by defence as to the lawful acquisition, without any evidence. Her Honour draws to counsels’ attention paragraph 27 in R v McLeod, where Nettle JA’s remarks in R v Tabone were applied, namely, that mere assertions from the bar table are not evidence and in the absence of evidence there will be no error in a judge declining to take the effects of forfeiture into account (Footnote 2).
If such evidence is not available, given that there appears to be no doubt that the proceeds are “tainted” property and that the offender’s application for exclusion pursuant to the Confiscations Act cannot succeed, then the withdrawal of the offender’s application for exclusion would permit the court to take forfeiture into account.
Her Honour has requested that defence consider it position and advise the Court accordingly by Wednesday 17 July 2024.
Her Honour proposes to sentence on Thursday 18 July 2024 at 2:15PM.
Footnote 1: [2013] VSCA 35 p16 para 46
Footnote 2: [2007] 16 VR 682 pp 688-9
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