Director of Public Prosecutions v Nguyen

[2017] VCC 1899

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BALLARAT

CRIMINAL JURISDICTION

CR 17-01209

DIRECTOR OF PUBLIC PROSECUTIONS

v

THI THU TRA NGUYEN

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Ballarat
DATE OF HEARING:	12 December 2017
DATE OF SENTENCE:	14 December 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 1899

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Sentence – cultivating a narcotic plant (commercial quantity) – theft.

Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), Sentencing Act 1991 (Vic).

Cases Cited: R v Hassan [2010] VSCA 352, DPP v Charles Dalgliesh (a pseudonym) [2017] HCA 41, Quy Nguyen v The Queen [2017] VSCA 127, R v Olbrich [1999] 199 CLR 270.

Sentence: Convicted and sentenced to a total effective sentence 16 months imprisonment (aggregate).

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke	Office of Public Prosecutions
For the Accused	Mr D. Gray	Giorgianni and Liang Lawyers

HIS HONOUR: 

1On Tuesday 12 November, Ms Thi Thu Tra Nguyen pleaded guilty to two charges in Indictment No.G129911200. The first of those was a charge of cultivate a narcotic plant, an offence pursuant to s.72A of the Drugs, Poisons and Controlled Substances Act, for which the maximum penalty prescribed, it being a commercial quantity of cultivation, is a period of 25 years' gaol. 

2The second charge was one of theft.  It involved theft of electricity.  The period was some 87 days, from 5 August 2016 to 31 October 2016, and remarkably, I am not sure what this indicates, perhaps it is indicative of the amount of electricity generation needed to produce the produce found, but according to the instructions from the prosecution, over that 87 days some $26,264.20 of power was expended, which seems remarkable.  The circumstances in regard to this matter were accepted by Mr Gray as being fully detailed by the learned prosecutor in his summary dated 17 October 2017. 

3Ms Nguyen is now 22, but at the time was 21 and was in Australia on a student visa.  Her co-accused, Mr Duytin Cao, who was 27 years of age at the time of the offending, was sentenced for the same charges by Judge Meredith and was given a significant discount on the basis of him indicating that he was prepared to give evidence and make an undertaking as to same, insofar as his supposed girlfriend, Ms Nguyen.

4As His Honour remarked in his sentencing remarks, which we tendered as Exhibit B, this was a very sophisticated set-up.  The relevant figure for a commercial quantity of cannabis by way of number of plants is 100.  It is noted that there were 332 plants found on this particular day, that is three times the figure for a commercial quantity. The weight as set out in the Act is 25 kilograms to qualify to be classified as a commercial quantity, and the weight found on this day was ten times that amount, that is 234 kilograms.  The learned prosecutor sought forfeiture, which I have signed. 

5Insofar as the sentence of Judge Meredith, he sentenced Mr Cao, on the drug to a period of 15 months, and on the theft charge to five months.  He cumulated those two, so that the total aggregate sentence was a period of 18 months with a non-parole period being set at 11 months. 

6Insofar as the role played by Ms Nguyen, the Crown accept that she was technically a sitter, an assistant sitter so to speak, to her boyfriend, the person who was, on his admissions, receiving $3000 a week for the work he was doing.  Of course, even in those circumstances Ms Nguyen was receiving an indirect benefit in the sense that she was helping her boyfriend pay off funds he apparently owed, no doubt to the loan sharks which entrap these type of people.  Her role also was to drive him to the site in her car.  In paragraph 5 of the opening prepared by Mr Bourke, there were substantial observations of her car at the premises made by the police, and the assistance was also given, according to the co-accused, whereby she helped him harvest and tend to the crops.  In the record of interview which Ms Nguyen made, she said she did not know what the plants were.  I, of course, do not accept that.

7To date the PSD is a figure of 409 days, and I note the early plea made in this matter at the earliest time that such an indictment was offered, being
13 September 2017.  Insofar as the plea of Mr Gray is concerned, he did not cavil with the view of the Crown that, while a sitter, she was and did play a lesser role than her boyfriend, Mr Cao.  It is accepted that she had no priors prior to these offences either here or in Vietnam.

8Parity was an issue that was raised by Mr Gray.  However, Mr Gray accepted that the significant issue which arose in Cao does not arise here, that is, the informer's discount provided by Judge Meredith.  Mr Gray stressed Ms Nguyen's still relative young age.  Albeit she is no longer defined a young offender, with a person of such young age, with no prior offences whatsoever, I accept that rehabilitation is obviously an important factor here. 

9Mr Gray accepted that an appropriate sentence must involve a period of immediate imprisonment, and further, given that her student visa was cancelled, it was also accepted that she will be deported, after she serves her time.

10Exhibit 2 was tendered, which were a number of certificates, firstly, from Box Hill TAFE and subsequently from very courses she has undertaken while being in prison.

11The relevant sentencing principles were recently, insofar as a sitter is concerned, considered by the Court of Appeal in Quy Nguyen v R [2017] VSCA 127.

12In that case, as against this particular indictment, which is a one day charge only as to the cultivation, there was three months period of sitting, the amounts were similar by way of plants.  That is, in Nguyen, which the Court of Appeal considered, there were 307, here there is 322, however, in Nguyen, there were only 75 kilograms, whereas here we are up to 234 kilograms.  The appeal was dismissed, Judge Mullaly, being the sentencing judge, had given Quy Nguyen a period of imprisonment of three years and three months with a minimum of two years. 

13However, there are factors that are relevant to the general concepts of sitter.  May I begin at paragraph 29, where the Court of Appeal quoted the High Court in R v Olbrich [1999] 199 CLR 270, 277 [14], where the High Court set out that it is a somewhat difficult distinction to make between couriers, principals and sitters, and they made the comment that it is important when doing such a characterisation, not to lose sight of the fact that whether a person is a courier or a principal must not obscure the assessment of what a person has committed by way of offence, and as I have said, a serious offence.

14The Court of Appeal in Nguyen went on to say:

"Thus a finding that an offender was not a principal or organiser may not prevent the conclusion that the offending involved a significant participation in a criminal enterprise."

15They referred, as in this case, to the sophisticated and extensive set-up, the incidental theft of a substantial quantity of electricity, and as I said, the difference in that case was the ongoing personal participation over three and a half months.  There was, however, in the materials an admission by Mr Cao that there had been in fact a harvesting.  However, the charge is for one day.

16At paragraph 32 of Nguyen the following was said:

"Whilst it is true that the evidence does not establish that the appellant had more than a modest financial interest in the outcome of the operation, nevertheless the offending was serious for the reasons identified by the sentencing judge."

17At 33 the court said:

"It was also open to the judge to form the view that the maximum penalty of 25 years' imprisonment stipulated for the cultivation offence was informed by the need for general deterrence and that the prevalence of the form of the offending involved in this case gave rise to greater sensitivity in this regard."

18In an earlier case that I dealt with in these sittings I made the point as to the frequency and number of this type of offence.

19At paragraph 34 in Nguyen, the Court of Appeal said:

"In particular, this was so because of the prevalent use of young persons with vulnerable immigration status to undertake the role of crop sitter or minder."

20They refer in paragraph 35 to the consequential buffering from detection of the organisers and concluded at paragraph 36:

"It follows that the characterisation of the appellant's role as that of a crop sitter does not of itself displace the need to look at the circumstances of the offending as a whole and to weigh competing sentencing considerations in determining an appropriate outcome."

21I refer, of course, to the principles set out in R v Hassan [2010] VSCA 352, and recently in Dalgleish by the High Court, and more recently in DPP v Charles Dalgliesh (a pseudonym) [2017] HCA 41 by the Court of Appeal, as to the importance for the court to prescribe a sentence according to the actual circumstances of the crime.

22It is, of course, difficult in these circumstances to balance His Honour Judge Meredith's sentence with the appropriate sentence that should be handed down to Ms Nguyen in this case.  As I said, from paragraphs [16] to [18] His Honour set out the issue as to the informer discount and described the discount as given as being substantial, based upon authority. 

23It is clear, given the principles that I have just referred to by the Court of Appeal, that the sentence given, being an 18 month aggregate and an 11 month
non-parole, demonstrates a significant discount has been effected by Judge Meredith.  It means that parity, obviously cannot be applied in full because the substantial factor which led to such discount, does not occur in this case.  Despite that, given the lesser role as put by the Crown, given her younger age, it is necessary to try to balance those factors.

24Mr Gray spoke of the current difficulties of persons who are sentenced and serving an aggregate term of imprisonment, with getting parole and then being returned to their country of origin.  Mr Gray advised that it is his client's desire to be returned to her country of origin as soon as is possible. 

25Balancing all of the matters as best I can, I have determined that in regard to both counts I will impose an aggregate sentence of 16 months.  It seems to me that that is the best way to try to align the sentence of Ms Nguyen with the sentence given to Mr Cao, understanding the difference, of course, that the substantial factor relevant to Mr Cao does not apply in this case.

26Pursuant to s.18 of the Sentencing Act, I order that the 409 days served to date be deemed as service of this sentence, so by giving Ms Nguyen a period of
16 months, she has approximately another three months to serve before she would complete the sentence and therefore be deported back to Vietnam.  In the circumstances, similar to yesterday, Mr Prosecutor, though there is an application for a 464ZF, I cannot really see the point.

27MR BOURKE:  Your Honour made it.

28HIS HONOUR:  I have already made it.

29MR BOURKE:  Yes.

30HIS HONOUR:  All right.  I suppose there is three months for it to be done in gaol, isn't there.

31MR BOURKE:  Indeed there is.

32HIS HONOUR:  Yes, all right.  I have signed the forfeiture order.  There is no application for compensation.  I think that's all I have to do.  Mr Gray, any matters that - yes, 6AAA.

33MR BOURKE:  6AAA, Your Honour.

34HIS HONOUR:  Any matters that concern you apart from me indicating the matter of 6AAA?

35MR GRAY:  No, Your Honour, only did Your Honour grant the application for the 464?

36HIS HONOUR:  I did and signed it.

37MR GRAY:  Thank you, Your Honour.  No, I don't have anything ‑ ‑ ‑

38HIS HONOUR:  It is very difficult in a case like this to determine precisely because of the comparison factors, I know this is not always appropriate, but obviously it would have been far better for Judge Meredith to determine this matter.  However, doing as best I can and taking into account, as Parliament requires, only the factor of the plea of guilty, can I indicate that had there not been a plea of guilty in this case, the sentence imposed would have been a period of three years, with a non-parole period of two years.

39Ms Nguyen - Madam Interpreter, if you would stand up, please - you will be sentenced to a period of imprisonment of 16 months.  You have currently served 13 and have another three to serve and then you will be subject to deportation. 

40Madam Interpreter, it is important for me to tell Ms Nguyen that, as the result of her pleading guilty, she has received this straight sentence instead of a sentence I would have otherwise prescribed for her, being a period of three years with a minimum of two years to serve before being eligible for parole, and in her case a parole period could not necessarily have been guaranteed, and I cannot really explain why, but anyway that is the position.   Mr Gray, any matters that I need to finalise?

41MR GRAY:  I'm sorry, Your Honour?

42HIS HONOUR:  Any other matters?

43MR GRAY:  No.  Thank you very much, and I thank everyone for arranging the video link, Your Honour.

44HIS HONOUR:  Good luck with - where are you, Judge?

45MR GRAY:  Her Honour Judge Gaynor.

46HIS HONOUR:  I am certain she will look after you.

47MR GRAY:  Thank you, sir.

48HIS HONOUR:  Thank you both for your assistance.  Yes, Ms Nguyen can be taken down.  Thank you, officers. 

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