Director of Public Prosecutions v Nguyen
[2018] VCC 904
•20 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01107
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN SON NGUYEN |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 June 2018 | |
DATE OF SENTENCE: | 20 June 2018 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 904 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One rolled-up charge of possession of a drug of dependence (cannabis) – defendant leased two properties and had electricity connected to them, knowing that cannabis was to be cultivated there – total effective sentence six months’ imprisonment and a Community Correction Order of two years.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Regan | Office of Public Prosecutions |
| For the Accused | Ms N Karapanagiotidis | Victoria Legal Aid |
HER HONOUR:
1 Van Son Nguyen, you have pleaded guilty to one rolled-up charge of possession of a drug of dependence, namely cannabis L. As I am satisfied that the offence was committed for a purpose related to trafficking, the maximum penalty for this offence, pursuant to s73(1) of the Drugs Poisons and Controlled Substances Act 1981, is 400 penalty units or five years’ imprisonment or both.
2 The circumstances of your offending are summarised in the Prosecution Opening (Exhibit A) which I append to these sentencing remarks.
3 Police had been undertaking routine patrol duties on 12 August 2014 at 1.45am, when they noticed a black Toyota Camry motor vehicle, which is registered to yourself, parked at an angle facing the driveway of 183 Taylors Road, St Albans. They observed a male, Mr Hoang Lee, near your car holding a baton-like torch, which he was shining into the front yard of 183 Taylors Road. The police did a U-turn and then observed yourself shining an identical baton-like torch into the front yard, and then observed a third person, Mr Phung Van Lee, in the front yard of 183 Taylors Road, also carrying an identical distinctive baton-like torch. It was after police came upon the three of you they detected that cannabis was being cultivated at both 183 and 181 Taylors Road and that there was a bypass of electricity in each of the houses. All three of you were arrested and charged.
4 At 181 Taylors Road, there were 215 plants at various stages of growth. There were eight stumps of female plants consistent with recent harvesting. Indeed, police smelt and observed green clippings leading from the porch of that property when they attended there on 12 August 2014. Disregarding the weight of the stumps (168 grams), the total weight of the plants at 181 Taylors Road was 10.7174 kilograms.
5 At 183 Taylors Road, there were a total of 374 plants, most of which were in a fairly immature state of growth, but some of them were some weeks beyond the nursery phase. The total weight of the 374 plants was 6.301 kilograms.
6 The day after he was interviewed, Phung Van Lee, who is a Canadian citizen and who had been present in Victoria on a tourist visa, left Australia, and police have been unable to ascertain his whereabouts. The charges against Hoang Lee were discontinued by the prosecution on 5 March 2018, as there was a lack of evidence connecting him with either of the properties. This was not the case with Phung Van Lee or yourself.
7 At the time of his arrest in the front yard of 183 Taylors Road, Phung Van Lee had possession of a set of keys which contained the key to the front door of 183 Taylors Road and, also, keys to unlock a Toyota HiAce van which was parked in the driveway. This van was registered in your name and had been described by a next door neighbour, Mr Cubias, as having been parked in the driveway of 183 Taylors Road, where it would remain overnight. This took place for about a month after the property was freshly leased at the beginning of winter 2014.
8 In addition, inside 183 Taylors Road, Phung Van Lee’s DNA was found on a cap on the couch and, also, on the mouth of a bong and on a blue electric toothbrush. Further, at the time of arrest, Phung Van Lee had possession of mobile phones, which matched empty packaging inside 183 Taylors Road. Also, there was a mobile phone charging in the front bedroom which had a Canadian Lebara SIM card believed to belong to Phung Van Lee.
9 The evidence linking you with the property, apart from your presence there when police arrived in the early hours of the morning of 12 August 2014, was the fact that you had taken out a lease on 181 Taylors Road from Stockdale and Leggo, real estate agents, on 25 June 2014. You, together with your wife, Thi Nguyen, had also taken out a lease on 183 Taylors Road from a separate estate agent, Peter K Real Estate on 28 June 2014. When taking out the latter lease, you had produced a copy of the driver’s licences of yourself and your wife, and another person known to you, Long T Nguyen. You had also produced a bank statement in your name, a copy of a payslip in your name purporting to be from KT Fashions, as well as a letter confirming casual employment of you from KT Fashions.
10 In addition, when you were arrested, police found in your wallet a City West water bill and a Lumo Energy bill in your name and addressed to 183 Taylors Road, St Albans. The electricity to both houses had been connected in your name, and your address and mobile telephone number had been supplied to Lumo Energy.
11 When you were interviewed by police, you told them that you had just been driving past a property and saw the front gate open and stopped to have a look at it when police apprehended you, and you had nothing to do with that property. You went on to state that a couple of months previously, you had been to the casino and lost all the money you had brought along with you and “a guy just approached me and asked whether I wanted to have money to continue playing”. You claimed that he had advanced you a total of $30,000 and you lost it all. You said he told you that if you rented two houses for him then he would forfeit the debt. You gave him your mobile number and you went looking for property to rent in St Albans. You found two houses and, after he brought the money to pay for the bond and you succeeded in renting them, he never asked you for the $30,000 that he had given you as a loan.
12 You stated that you did not know anything about the person on behalf of whom you had rented the properties in your own name. You also claimed that, when police had come along Taylors Road early in the morning of 12 August 2014, you were by yourself, just out for a drive, and did not know either of the other two people who were in the vicinity of 181 and 183 Taylors Road.
13 You agreed that when you had gone to the estate agent to lease 183 Taylors Road, you showed him a payslip from a clothing factory where you once worked and gave your driver’s licence as identification and, also, a bank statement in the name of your wife and yourself. You agreed that the lease of 183 Taylors Road had been signed by yourself and your wife, and stated that, at first, she had refused to sign the form but, when you told her that you owed the money and that the guy might kill you, then she agreed to sign the form. You also used identification of a person, Long Thi Nguyen, who was an overseas student and a person whom you knew vaguely and who had used your address to apply for a driver’s licence.
14 You stated that you did not have the keys to the property. You admitted that the white van parked in the driveway of 183 Taylors Road was registered in your name, but that had been taken by “the guy who lent me money” as payment for the debt, and he was to change the registration to his name. You claimed to no longer be in possession of a key to that vehicle which you had given to him.
15 You stated that you just knew that you were to rent the properties for him, and you had no knowledge of what he used the properties for. You denied having anything to do with the cultivation of cannabis at the properties.
16 You were originally charged with two charges of cultivating a narcotic plant in a commercial quantity, two charges of possession of a drug of dependence, and two charges of theft of electricity. The charges were listed for trial on 7 May 2018. After pre-trial argument on 7 and 8 May, the matter resolved into a plea and, on 9 May 2018, you pleaded guilty to one rolled-up charge of possession of cannabis. Your plea of guilty was on a common law basis, rather than deemed possession pursuant to s5 of the Drugs Poisons and Controlled Substances Act. This basis involved acknowledgment of you having leased both properties and knowing that cannabis was present at both properties. The prosecution conceded that it had no evidence or you owning the sophisticated cultivation set-up at either property or having financed it, or that you had personally been involved in the cultivation of the cannabis plants.
17 You are presently aged 56 years, having been born on 11 November 1961. You were born in Vietnam into a poor family who supported themselves by fishing. You left school at the age of 13 in order to assist your parents, and have had no further education. When you were approximately 19 years of age, you and your family fled Vietnam because of conflict in your province. You spent approximately four years in a refugee camp in Macau, where you suffered poverty and were exposed to violence.
18 In 1984, you and your family were granted a humanitarian visa and settled in Sydney, and you subsequently became an Australian citizen. In 1985, you married and you have four children (now adults) from this relationship. You apparently separated in late 2009 or early 2010. According to your counsel, the breakdown of the marriage related to you having squandered your life savings and your share of marital assets on gambling.
19 You moved to Melbourne in 2010 and remarried later that year. You and your wife have two young daughters aged seven and four years respectively.
20 Apparently, not long after arriving in Australia, you obtained employment and, over the years, worked in various factories until you found a job as a baker, where you worked for some 10 years until your first marriage broke down. No evidence was produced to the court to demonstrate that you had been in any paid employment since moving to Melbourne in 2010. Your counsel stated that you had been receiving Centrelink payments, but continued to gamble.
21 Tendered at the plea hearing was a report from Mr Cummins, forensic psychologist, dated 21 May 2018 (Exhibit “1”). Mr Cummins took a history that you had first begun gambling in your early twenties when you were a refugee on Macau island. On the basis of your history that, in the past, you had lied to conceal the extent of your gambling, and that this was the cause of the breakdown in your first marriage, he considered that, pursuant to the DSM-V, you would have a diagnosis of a gambling disorder.
22 In addition, “(you) acknowledged (you) had been in the habit of gambling as a result of feeling depressed and frustrated”. He went on to record that you:
“Reported feeling generally depressed about the breakdown of (your) first marriage, not having contact with (your) adult children from (your) first marriage, having lost (your) life savings through gambling and now facing the prospect of imprisonment.”
23 Mr Cummins stated that it was unclear whether your gambling dependency preceded the development of symptoms of depression. He said you may (my emphasis) have been suffering from a recurrent major depressive disorder since your early twenties in the refugee camp at Macau, but you had definitely felt depressed from just prior to the ending of your first marriage and subsequently. He stated “on the balance of probabilities (you) has been suffering from a recurrent major depressive disorder of mild to moderate severity since the ending of (your) first marriage”.
24 He went on to state:
“It is reasonable to conclude (your) mental health would deteriorate further if (you) are incarcerated. At interview (you) looked and sounded depressed and (you) reported frequent and often daily negative ruminative thinking regarding (your) life in general and (your) current legal situation.”
25 I must say that Mr Cummins’ report does not impress me as a careful or thorough one. He makes no reference to any of the criteria specified in DSM-V for a major depressive disorder. It would appear that your depression is, at least, in part, reactive to your legal situation and the rest appears to be attributable to you having made a mess of your life by gambling and no longer having contact with the children from your first marriage.
26 It sounds as though gambling has been a problem for a very long time and, notwithstanding that you attribute the loss of your first marriage to it, you have taken no steps whatsoever to address it, until your solicitors apparently sent you to the Australian Vietnamese Women’s Association four weeks ago. From 21 May 2018 to 7 June 2018, you attended upon a gambling counsellor there on three occasions. (Exhibit “2”)
27 Nor have you done anything about addressing your symptoms of depression, which you described to Mr Cummins. Mr Cummins’ report reveals that you have been attending a treating general practitioner for the past seven or eight years, but there is no evidence that you have spoken to him about your depression or been prescribed any medication or other treatment. Indeed, you never informed your general practitioner about your gambling problem or your legal situation.
28 Unhappily, it is quite common that there is a connection between drug offences and gambling. It is possible that your gambling does explain the offending for which I must sentence you but, given that I consider that you have been less than full and frank in your record of interview with police in relation to simply “going for a drive” when they came upon you outside the two properties in the early hours of the morning, and that you did not know either of the other two people who were present there, notwithstanding that you each held identical and very distinctive baton-type torches, it is hard to know what to believe.
29 In any event, even if you do have a gambling disorder, it is of little mitigatory weight, in my view. This is so, particularly in the light of four years having passed since the commission of this offence and you not having done anything, at all, to address your gambling problem until persuaded by your solicitors to get some counselling a month ago.
30 In sentencing you, I take into account that there has been some delay in this matter ultimately coming to a legal conclusion since you were first charged and arrested on 12 August 2014. It appears that there have been a couple of adjournments occasioned by the need for the prosecution to obtain forensic material, and the fact that no interpreter was available to assist you on one occasion. I do take into account that the matter has been hanging over your head and weighed heavily upon you psychologically, which is a matter referred to in Mr Cummins’ report. I also take into account that you have not re-offended in this time, but nor have you ceased gambling until very recently, approximately three months ago.
31 In sentencing you, I also take into account your plea of guilty. It was a late plea, however, it is relevant to note that you had been charged with many more offences and, in particular, two very serious offences of cultivating a commercial quantity of cannabis. Your plea of guilty does have utilitarian benefit, but I consider that there is no evidence of remorse save for Mr Cummins extracting from you that you “did the wrong thing” but, at the same time, spoke about being upset about the delay in finalisation of the matter. I regard this as not meriting any great weight. Nevertheless, you are entitled to a discount on the sentence which otherwise would have been imposed had you not pleaded guilty.
32 In sentencing you, I take into account your personal circumstances of an impoverished and disadvantaged childhood and the fact that you do suffer symptoms of depression, albeit that your counsel did not argue that they in any way reduce your moral culpability or attract the principles in R v Verdins[1] save for making it more difficult to serve a term of imprisonment.
[1]R v Verdins (2007) 16 VR 269
33 Mr Cummins does state that “it is reasonable to conclude (your) mental health would deteriorate further if (you are) incarcerated”. As a general principle, people who suffer depression do find serving a term of imprisonment more burdensome than those who do not, but I am mindful of the fact that your depression is, at least, in part, attributable to your reaction to your legal situation.
34 Your counsel stated that you have some physical health problems. In 2007, you were hospitalised for suspected Tuberculosis and had some fluid drained from your lungs, and you have pain in your shoulders which causes you difficulty in raising your arms, as well as interfering with your sleep. No medical report concerning these health issues was provided to the court save for a document (Exhibit “3”), which noted that you have an appointment at the TB Clinic at Western Health on Wednesday, 25 July.
35 Your counsel stated that, although you were on a Newstart allowance, you had been given an exemption from looking for work because of these difficulties. They are of a vague nature and the lack of clarity about them makes it difficult to place much weight upon them in the sentencing process. However, I do take into account that your physical health problems may be a worry to you in serving a sentence of imprisonment.
36 Tendered as Exhibit “4” was a letter from Western Health Cardiology Clinic relating to your wife, which notes that in December 2017 she was describing atypical pain unrelated to exertion but not severe with no heart failure symptoms. There was an impression that she may have MIMOCA Syndrome, which was not explained, and it was thought wise to have a cardiac MRI to assess her for unusual causes of her increased troponin levels. The letter, dated 15 June 2018, said that your wife was to be reviewed in six months after the MRI scan was taken.
37 There is a lack of clarity about your wife’s condition. It cannot be easy for her having some health difficulties when she has the care of young children and, particularly, as it is apparent that only very recently did you inform her about your legal situation. I note that when Mr Cummins saw you last month, you had not told her because of embarrassment and shame, but your counsel told the court that you had informed her just recently. It was not argued that the circumstances of your wife and family constituted exceptional circumstances. However, I take into account that these may well be a cause of anxiety to you in serving a sentence of imprisonment.
38 In sentencing you, I do take into account that you have no prior or subsequent convictions. I was asked to infer that your prospects of rehabilitation were good. I simply do not know what to make of your prospects of rehabilitation. As far as I can glean, you have not worked in any significant way since you moved from Sydney to Melbourne in 2010, and have simply received Centrelink benefits and continued to gamble. Given that you identify gambling as the reason for your offending, and that you have done nothing to address it until very, very recently, in my view, it would be overly optimistic to say that your prospects of rehabilitation were good.
39 Mr Nguyen, it is not suggested that you were the instigator of this cultivation enterprise. However, those who undertake these illegal commercial crops are very substantially assisted when people like you, with no criminal history, organise the lease and connection of electricity to, not one, but two properties. In sentencing you, the court must denounce your conduct and place emphasis upon general deterrence so that others, who might me minded for financial reasons to assist cultivators of commercial crops, will know that they will receive appropriate punishment.
40 In sentencing you, it is important to note that you have the benefit of a rolled-up charge, and I am duty-bound to take into account all of the circumstances of the offence which involves the two properties. You materially assisted the person or persons conducting the commercial cultivation enterprise to distance themselves from the properties, making their identity more difficult to detect. Had the cultivation not been discovered by police, potential existed for very large quantities of this illicit drug to be released into the community, with the deleterious effects that are well-known.
41 Having considered all of the matters put before me at the plea hearing, I have concluded that only a term of imprisonment can appropriately reflect the gravity of the offending. However, being mindful of the maximum penalty of five years’ imprisonment, the fact that you have pleaded guilty, and that you have no prior or subsequent offending, I consider that the sentencing objectives of denunciation, general deterrence and just punishment can be achieved by combining a term of imprisonment with a Community Correction Order. In particular, a Community Correction Order will enable your gambling problem and mental health issues to be addressed, which will hopefully assist in your rehabilitation. I am also mindful that your English skills are very limited and that may be a matter where you can be given assistance by a Community Correction Order.
42 On one rolled-up charge of possessing a drug of dependence, you are convicted and sentenced to be imprisoned for a period of six months and, upon your release, to undertake a Community Correction Order for a period of two years.
43 The following terms are attached to the Community Correction Order:
(a)You must not commit, whether in or outside Victoria during the period of the order, an offence punishable by imprisonment.
(b)You must comply with any obligation or requirements prescribed by the regulations.
(c)You must report to and receive visits from the Secretary during the period of the order.
(d)You must report to the Community Corrections Centre specified in the order within two clear working days after the order comes into force upon you being released from custody.
(e)You must notify the Secretary of any change of address or employment within two clear working days after the change.
(f)You must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary.
(g)You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
44 In addition, the following conditions are attached to the order:
(a)You must perform 100 hours of unpaid community work during the period of the order.
(b)You must undergo treatment and rehabilitation relating to the underlying cause of your offending, in particular, gambling.
(c)You must undergo mental health assessment and treatment in relation to depression, as directed by the Office of Corrections.
45 Mr Nguyen, I am not able to make this Community Correction Order unless you agree to it. Do you consent to the order starting two days after your release from prison in six months’ time, with the terms and conditions which I have just read out in court?
46 Prisoner (via interpreter): “Yes, I do, Your Honour”.
47 Mr Nguyen, you must be aware that if, during the period of two years of the Community Correction Order you breach that order, then that, in itself, is a criminal offence punishable by a maximum of three months’ imprisonment. If you breach the order, you will be brought back before the court and, depending upon the seriousness of the breach, the order may be cancelled and you may be ordered to serve a further period of imprisonment.
48 Pursuant to s34(1) of the Confiscation Act 1997, I order the forfeiture to the Minister of $2,850 (Australian Dollars), one Samsung mobile GT, one Alcatel mobile phone, and one black Samsung mobile phone.
49 Pursuant to s78(1) of the Confiscation Act, I order the forfeiture to the State of the 26 items listed in the schedule to this order, and I further direct that they 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.
50 Finally, pursuant to s6AAA of the Sentencing Act 1991, I state that had it not been for your plea of guilty, the total effective sentence imposed would have been two years’ imprisonment with a non-parole period of 18 months.
- - -
Court Reference: CR-17-01107
Indictment Number: F11731592.1
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION
DIRECTOR OF PUBLIC PROSECUTIONS
v.
VAN SON NGUYEN
AMENDED
SUMMARY OF PROSECUTION OPENING FOR PLEA
_____________________________________________________________________________
Date of document: 9 May 2018
Filed on behalf of: Prosecution
Prepared by:
John Cain Solicitor’s code: 7539
Solicitor for Public Prosecutions Telephone: 96037666
565 Lonsdale Street Direct: 9603 7428
MELBOURNE VIC 3000 Email: [email protected]
Reference: 1502771
_____________________________________________________________________________
CHARGE:
Van Son NGUYEN - 181 & 183 Taylor's Road St Albans
1. Possession of a drug of dependence (Cannabis)
(between dates 27 June to 12 August 2014)
NOTE: This charge is based on common law possession
and not S. 5 deemed possession.
Overview
This plea involves a rolled-up charge involving 2 side-by-side cannabis "grow houses" at numbers 183 and 181 Taylors Road St Albans, from June to August 2014, where on 12 August 2014 a total of 589 small cannabis plants (not including stumps) were discovered.
In August 2014 the accused Van Son Nguyen (date of birth 11 November 1961) was living at 20 Burgundy Crescent, St Albans.
Van Son NGUYEN rents 181 Taylor's Road St ALBANS – 25 June 2014
Van Son Nguyen leased 181 Taylor's Road St Albans from Stockdale & Leggo real estate, St Albans, for a 12 month period commencing 25 June 2014. The lease period ran through to 25 June 2015. As a consequence of the discovery of cannabis at the property, Stockdale & Leggo then cancelled the lease declaring the property vacated on 15 September 2014.
During the initial period of the lease, 3 cash rental payments were made to Stockdale & Leggo, beng $1,474.00 for the period to 25 July 2014; $1,474.00 being for the period to 25 August 2014, and $1017.66 for the period to 15 September 2014.
Van Son NGUYEN rents 183 Taylor's Road St ALBANS – 28 June 2014
Van Son NGUYEN (together with Thi NGUYEN) leased 183 Taylor's Road St Albans from Peter K Real Estate, St Albans, on 28 June 2014. Documents lodged in support of the application were:
a. copy Van Son Nguyen Victorian Driver Licence
b. copy Thi K O Nguyen Victorian Learner Permit
c copy Long T Nguyen Victorian driver licence
d. CBA bank statement Van Son Nguyen
e. copy payslip in the name of Van Son Nguyen from 'KT Fashions'
f. confirmation letter of casual employment from KT Fashions for
Nguyen Van Son
Evidence of next door neighbour Richard Ernesto Cubias [185 Taylor's Road]
Cubias deposed that 'new tenants moved into [183] during the start of winter 2014, possibly around June. Not long after he saw 'a family of Asian background aged in their late 20's to early 30's with three children. A boy and a girl around 5, 7 years old and a younger toddler around 3 years old' [at 183].
Cubias then wrote, 'within the following two weeks of the family moving into the. property, I started to notice peculiar things occurring next door. There was no noise from children, no laughter or the sign of boisterous children playing. There was no smell of cooked food from the premises….. Later on, I noticed a small pile of building materials on the nature strip outside the property. It was not a large pile of materials but enough to require a ute or a van for removal. Within the next couple of days I noticed empty plastic pots on the nature strip outside number 183. These pots looked to be in good condition. There was maybe around 20 - 30 pots which made me think the family was in the gardening business. I also noticed a white Toyota van would be parked at the property almost everyday.'
Cubias continued, 'I do not recall the registration of the van but it had faded writing in regards to a business, along the side. I planned to ask the family, if I could have the pots for my own gardening. The same day I noticed the pots at the front of the property, I approached the driver of the van as he pulled into the property. I was sitting the kitchen and saw him pull into the driveway and within five minutes walked next door to speak to the driver of the van about the pots. As I got to. the front of the property I realised the pots were gone. A person had just walked into the house and was closing the front door. The person looked at me for a split second as I waved to get his attention. He looked at me, spoke to someone inside and then closed the door.'
Cubias also deposed that at about the 3.30 pm mark each day. a Black coloured BMW would be parked on the street at the front of the property. He later described the car in better detail, namely that it was 'a dark smokey-grey faded black-colour BMW maybe a 318i or a 323 model.'
Cubias deposed that 'a gentleman in his mid-forties, of Asian appearance, of medium build would exit the property each day and would get into the BMW and drive off.'
Cubias said that the BMW would stay at the address between 15— 30 minutes on average each day. The male never parked in the driveway and always parked on the street.
It appeared to Cubias that the white Toyota van with the business writing along the side "belonged" to the address. He said, 'This van always parked in the driveway and would remain overnight.' He deposed that 'this went on for about a month.'
Cubias further deposed that on the night prior to police attending at 183, during the evening around 8.30pm - 9.00pm, I went outside to feed his dog. As he went outside he caught a smell of someone smoking a joint. He described it as a pungent smell, a very strong smell but that he couldn't pin-point where it was coining from.
About an hour and half later, around 10.00pm he went outside to retrieve the dogs bowl, and noticed the smell, was still around. He deposed that it was a cross between burning grass and marijuana. It was a very leafy, wet grass smell. He could tell the smell was marijuana, it was a very leafy joint someone was smoking.
Not long after there seemed to be commotion coming from next door and it was then he saw that police were present, together with 3 Asian males.
Police involvement on the night of 11-12 August 2014
On 12 August 2014, at approximately 1.45am, police members from the Critical Incident Response Team were conducting patrols of the Brimbank area.
Whilst travelling west along Taylors Road, St Albans, the police noticed a black Toyota Camry (ZYA 745) registered to the accused Van Son Nguyen parked at an angle facing the driveway of 183 Taylors Road, St Albans, in the service lane of Taylors Road.
They also saw a male, subsequently identified as Hoang Lee of 5 Montague Way, Delahey, near the black Camry and to step onto the footpath outside 183 Taylors Road. They watched as Lee, holding a baton-like torch, shone the torch into the front yard of 183 Taylors Road.
The watching police drove past 183 Taylors Road, then U-Turned and ended up stopping their vehicle behind the black Camry. At about this time they saw a 2nd male on the footpath, subsequently identified as Van Son Nguyen, also shining a baton-like torch into the front yard of 183 Taylor's Road.
As the police members got out of their car to approach Lee, they saw yet another male who was actually in the front yard, also with a torch. That 3rd male was subsequently identified as one Phung Van Le.
Also, a Toyota HiAce van registered ZMG 908 was in the driveway of 183. The van was later determined to be registered to Van Son Nguyen.
Police attempted to speak with Van Son Nguyen, Hoang Lee and Van Le, but all three claimed to be not able to speak English.
Police then conducted an external check of the premises at 183 Taylors Road, St Albans and located an unlocked rear sliding door to the property. Upon sliding the door open and calling out to anyone inside, they smelled Cannabis inside. They entered the property locating a number of rooms with a substantial quántity of Cannabis plants under cultivation and hydroponic equipment within number 183.
Leading Senior Constable Bernard Jenkins, while standing out in front of 183, noticed that there was still a strong smell of cannabis that separately seemed to be emanating from next door, at number 181 Taylor's Road.
Jenkins went into the driveway of number 181, noting that the smell of cannabis was even stronger. Also, as he shone his torch on the driveway and front porch of number 181, he noticed a "notable amount of green clippings leading from the porch to the driveway …. [and] … by the shape and smell of the clippings I believed they were most likely cuttings from cannabis plants." The house at 181 appeared locked, but Jenkins noticed a bright light emitting from underneath the front door of 181.
The 3 males Van Son Nguyen, Hoang Lee and Phung Van Le were subsequently arrested.
A search of Nguyen's wallet revealed a City West Water bill along with a Lumo Energy bill in the name of Van Son Nguyen and addressed to 183 Taylors Road, St Albans.
A search of Phung Van Le located a set of keys, one Alcatel mobile phone (IMEI: 868478011825923) and one silver Samsung GT-C3520 mobile phone (IMEI: 359800057463762).
Nguyen, Hoang Lee and Van Le were conveyed to the Sunshine police station.
A search warrant was issued for both premises under the Drugs, Poisons and Controlled Substances Act permitting entry into both 183 and 181 Taylors Road. Police subsequently re-entered 183 and also entered 181.
Within 183 Taylor's Road, police located:
"Item No 1" 157 (small) cannabis plants - weight 288.4 grams
'These plants were in a fresh to slightly wilted condition and
measured approximately 12-18 cm in height. They were slender
[and] immature …. [and] had probably been propagated up to
4 weeks prior to [botanist Slattery's] examination.'
"Item No 2" 83 cannabis plants - weight 4.74 kg
'These plants were in a fresh condition and were immature.
53 of the plants measured approximately 20-25 cm in height …
[and] had probably been growing for approximately 2-4 weeks
(post nursery phase) at the time of [botanist Slattery's] examination.
30 of the plants measured approximately 30-55 cm in height …
[and] were bushy … [and] probably been growing for approximately
3-5 weeks (post nursery phase) at the time of [botanist Slattery's]
examination.'
"Item No 3: 101 (small) cannabis plants - weight 1.23 kg
'These plants were in a fresh condition and were immature.
92 of the plants measured approximately 18-25 cm in height [and]
were bushy … [and] had probably been growing for approximately
2-4 weeks (post nursery phase) at the time of [botanist Slattery's]
examination. The remaining 9 plants measured approximately 10-16 cm
and were slender … [and] had probably been growng for up to 6 weeks
(post nursery phase) at the time of [botanist Slattery's] examination.'
"Item No 4" 33 (small) cannabis plants - weight 42.6 grams
'These plants were in a fresh condition. They were slender [and]
immature … [and] had probably been propagated for up to 4 weeks
prior to [botanist Slattery's] examination.'
________ ________
374 plants 6.301 kg
Within 181 Taylor's Road, police located:
"Item No 1" Cannabis L (1 stump) - weight 26.5 grams
'This stump was in a fresh condition, was a mature
female ….. and probably had a growth period of at least
12 weeks post-nursery phase).'
"Item No 3" Cannabis L - weight 262.4 grams
[These were] '…. fresh to slightly wilted female flowering heads,
some of which were attached to short stems'
"Item No 4" Cannabis L (3 stumps) - weight 60.2 grams
'These stumps were in a fresh condition, were mature
females ….. and probably had a growth period of at least
12 weeks post-nursery phase).'
"Item No 6" Cannabis L (3 stumps) - weight 61.7 grams
'These stumps were in a fresh condition, were mature
females ….. and probably had a growth period of at least
12 weeks post-nursery phase).'
"Item No 8" 90 cannabis plants - weight 10.26 kg
'These plants were in a fresh condition and measured approximately
28-55 cm in height. They were slightly bushy to bushy, [and] immature
…. [and] had probably been growing for approximately 2-5 weeks
(post nursery phase) at the time [of botanist Slattery's] examination.'
"Item No 9" Cannabis L (1 stump) - weight 19.6 grams
'This stump was in a fresh condition, was a mature
female ….. and probably had a growth period of at least
12 weeks post-nursery phase).'
"Item No 11" 125 cannabis plants - weight 195 grams
'These plants were in a fresh condition and measured approximately
12-15 cm in height. They were slender, [and] immature [and] …
had been propagated up to 4 weeks [prior to botanist Slattery's]
examination.'
__________ __________
215 plants 10.8854 kg gross
The total weight of the 8 cannabis stumps was 168 grams.
It is agreed that the stump weight of 168 grams is to be subtracted from the 10.8854 total weight from
183181Taylor's Road, resulting in an agreed weight of 10.7174 kg at183181 Taylor's Road.
It is nevertheless also agreed that the presence of the 8 identified cannabis stumps within
183181 Taylor's Road evidences that 8 adult female plants were within183181 Taylor's Road in the latter part of the charged period.
Totals
A total of 589 Cannabis plants (not counting stumps) were seized from both houses by police.
Agreed final weight totals are:
(a)
181183 Taylor's Road - 6.301 kg
(b)
183181 Taylor's Road - 10.7174 kg (no stumps)____________
17.0184 kg
Fingerprints
The fingerprint examination inside 183 Taylors Road detected another print on the side of a plastic planter box used to cultivate cannabis, and the print was susbequently confirmed as Phung Van Le's left little finger.
DNA evidence
DNA consistent with that of Van Son Nguyen to a likelihood ratio of 100 billion was located inside a black beanie from the couch within Number 183.
DNA consistent with that of Phung Van Le was located inside the forehead cap of a black peaked cap found on the couch within 183, and also on the mouth of a bong, and also on a blue electric tootbrush at 183 Taylors Road, to a very high likelihood ratio.
Police Interview – Van Son Nguyen
When interviewed by police, Van Son Nguyen said he had been driving the black Toyota Camry because he simply wanted to go for a drive, and had stopped at 183 because he had seen an open gate. He said that he did not know the other 2 males who were at the property when police appeared.
He said that he had rented the 2 houses because a man who had loaned him $30,000 at the Casino, which he said that he had then lost, and that the man then said that he woud forgive the debt if Nguyen rented the houses.
He said that he had only been inside the houses at time of renting them and had given the house keys to the man. He said that the man had also taken possession of his whte van as part repayment of the $30,000 and had expected the man to transfer the registration, which never happened. He said that he did not know the man's full name or where he lived, or even his phone number because it was on an old phone.
Physical Circumstantial Evidence
The Cannabis leaf and stem material seen by Leading Senior Constable Bernard Jenkins on the driveway and porch of No 181 Taylor's Road was gathered up and photographed [see deps page 172]. Logically, this material seems likely to be linked to the 8 fresh Cannabis stumps within the house (Items 1, 4, 6 and 9). That material was not weighed and does not form part of the weight calculation.
The keys located on Phung Van Le at time of arrest were the same keys used by police to unlock the front door of 183 Taylors Road, St Albans to execute the Drug Warrant. The same set of keys also unlocked the Toyota Hiace Van ZMG 908 parked in the driveway of 183.
During the search of 183 Taylors Road, St Albans, police located an empty Alcatel mobile phone box, an empty Samsung GT-C3 520 mobile phone box and black Samsung mobile phone charging on the floor in the front bedroom (room 1).
The Alcatel and Samsung GT-C3 520 phone boxes match the IMEI numbers on the Alcatel and Samsung GT-C3 520 mobile phones located on Phung Van Le at time of arrest. The black Samsung mobile phone had in it a Canadian Lebara SIM card, believed to also belong to Phung Van Le.
Phung Van Le
Phung Van Le is not before the Court. He is a Canadian citizen on a tourist visa and has left Australia and is now believed to be back in Canada.
Hoang Lee
Although originally charged alonside Van Son Nguyen, a Notice of Discontinuance of Lee's prosecution was filed at the County Court at Melbourne on 5 March 2018.
Statutory Maximum
It is agreed between the prosecution and defenceThe prosecution submits that this case involves the application of section 73(1)(c)because it is concededthat is the offence was committed for a purpose related to trafficking, and therefore the applicable statutory maximum is:
s. 73(1)(c) 400 penalty units or level 6 imprisonment (5 years max) or both.
Pre-Sentence Detention
There is no pre-sentence detention in this case.
Priors
Van Son Nguyen has no priors.
Forfeiture and Disposal
Forfeiture and disposal orders will be sought in relation to all of the cannabis and hydroponic equipment.
Section 464ZF(2) Forensic Sample
A forensic sample is sought.
9 May 2018 Plea Prosecutor
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