Director of Public Prosecutions v Nguyen
[2024] VCC 674
•15 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00819
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN TUAN NGUYEN |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 May 2024 | |
DATE OF SENTENCE: | 15 May 2024 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 674 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Cultivate Cannabis --- Accused aged 25 --- Vietnamese --- Accused present at execution of warrant in 2017 --- Limited evidence tying him to the property --- Role likely crop sitter --- Single date offence --- Accused was remanded then bailed --- Summary charge of Failing to answer bail --- Accused remained living in Melbourne, got married, obtained spousal visa, started own business --- Warrant not executed for 5 years --- No explanation for failure of police to execute warrant --- Co-accused matter dealt with in the interim --- Accused of Vietnamese origin with poor English --- No prior criminal history --- No subsequent offending --- Now 32 years, married, with child and own business --- Early Plea of Guilty --- Remorse --- Delay
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 --- Bail Act 1977 --- Sentencing Act 1991
Cases Cited:The Queen v Olbrich [1999] HCA 54 --- The Queen v Khem [2008] VSCA 136 --- Boulton v The Queen (2014) 46 VR 308
Sentence: 12 Month Community Correction Order --- $1000 Fine
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Crouch | Office of Public Prosecutions |
| For the Offender | Ms E. Strugnell | McNally & Gleeson Lawyers |
HER HONOUR:
1Van Tuan Nguyen, on this day you have pleaded guilty to one charge of cultivating cannabis contrary to s72B of the Drugs, Poisons and Controlled Substances Act 1981. You have also pleaded guilty to a summary charge of failing to answer bail.
Summary of offending
2You are currently 32 years of age. You were 25 years old at the time that the search warrant was executed at 69 Rockpool Road in Truganina in the early hours of 10 February 2017. That search followed an anonymous ‘information report’ provided to Victoria Police about a single Vietnamese male residing at the premises and driving an SUV to and from the house. This premises was owned by a couple who were not charged with any offending.
3Your co-offender, Nua Van Tran, was inside the house, however, you jumped out the window and left the premises via a side fence, fleeing to the nearby wetlands. You were pursued and arrested and brought back to the property.
4At the property police discovered four rooms that were being used for the purpose of growing cannabis plants. Three of those had plants and hydroponic set up concealed behind a fake wall or a curtain. The fourth was a main room of the house with 69 plants in it under hydroponic set up. There were a combined total of 122 plants found weighing a combined 43.99 kilograms, which is over the commercial quantity threshold. The prosecution accept that you had no intention to cultivate a commercial quantity and as such your plea is to cultivate simpliciter.
5You were never interviewed, apparently because a Vietnamese interpreter could not be arranged. You were remanded on that day.
Failure to answer bail
6On 27 March 2017, after serving 46 days in custody, you were released on bail to appear at a committal mention at the Melbourne Magistrates Court on 3 May. You did not appear and a bench warrant was issued.
7The warrant was not executed until August 2022, almost five and a half years later. The matter was then listed for committal mention.
8You offered to plead guilty in October 2022 to the charge of cultivate cannabis, however, that offer was declined and the matter proceeded via a committal and to this Court. Ultimately the Prosecution accepted that charge and your plea to it.
Sentencing principles
9Cultivation of cannabis is a serious and prevalent offence. The movement of cannabis through the community relies on persons being willing to tend the crop as it grows. That is often a role for financial reward. I must reflect the community's denunciation of this type of enterprise and I must impose a just punishment. I accept Mr Crouch’s submissions on behalf of the prosecution that the role of a crop-sitter is significant to the success of the overall illegal business. It can involve participation in what is a relatively sophisticated criminal enterprise albeit at that lower level role.
10I must therefore impose a sentence which deters others from resorting to participating in the cultivation of cannabis as a path to financial gain. General deterrence, therefore, must be at the forefront of the sentencing synthesis.
Objective gravity
11In determining your role, and therefore the objective gravity of your particular offending, there are some unusual features.
12As I said, the quantity of cannabis found was in excess of the commercial threshold, which is 100 plants or 25 kilograms. I take that into account in a general sense, however, the prosecution properly concede that you had no awareness that the quantity of cannabis being grown was a commercial one, nor an intention to grow a commercial quantity.
13There is no evidence that you were in any way involved in the hydroponic set up, nor in fact that you were involved in actively planting or tending the plants – other than by your plea.
14The only pieces of evidence which tie you to the premises was in fact your presence on the day of the search and a letter which was found in a cardboard box in a bedroom. The letter was addressed to you but at a different address.
15There was no surveillance of the property prior to the execution of the warrant. None of the personal effects or vehicles located at the premises were linked to you in any way. The information report reported a single male residing at the property, with your co-offender admitting to three months’ residency at the property in his plea. He told police at the time of the search that his friend was visiting – that was apparently a reference to you.
16There is no forensic evidence of your presence in any of the four growing rooms, nor that you had involvement beyond a presence at the property with the knowledge that the cannabis was being grown.
17Although I accept it is not uncommon that role is difficult to determine due to the opaque nature of drug growing and trafficking operations, in your case on the evidence it is particularly unclear and does not go far beyond mere presence and your admitted involvement. To that end, your acceptance of responsibility for your offending and your involvement in this cultivation is significant. You must receive a real benefit for your plea.[1]
[1] The Queen v Olbrich [1999] HCA 54
18Ms Strugnell submits, and I accept, that I can only conclude that you were in effect a crop sitter for the single day of the execution of the warrant. In that sense, given your presence with the co-offender who admitted ongoing cultivation, residing at the house for approximately three months, I accept that there is no evidence you had single authority or control over the crop or were solely entrusted with it, as is often the case. There is no evidence that you were to receive any financial reward.
19In relation to the failure to answer bail, defence submit on your behalf that your failure to answer bail is as a result of a misunderstanding, perhaps brought about by your lack of English and your lack of familiarity with the legal process. I did not hear any direct evidence in that regard. The Prosecution could not shed any light on any reason for your failure to attend, and as I understand it you have never been interviewed in relation to that.
20I am in a position where there is no evidence as to the reason for your failure to attend. I accept, as you do by your plea of guilty, that it was your obligation to do so and that you did not have a reasonable excuse for not doing so. In my view it is likely that there was some confusion; you were 25 years old, you had never been involved in the legal system previously, you have no prior criminal history, you had not long been released from jail after serving 46 days. I would be surprised if you did not understand the seriousness of your predicament. In those circumstances, I would be surprised if your failure to attend was due to anything other than a misunderstanding or mistake.
21I am emboldened in that conclusion by the fact that you did not go anywhere. You were on bail. Although I have no evidence of the conditions of your bail, I can assume it was bail to a static address. You did not leave Australia, Victoria, or in fact Melbourne. You got married, had a child, started a business and obtained a spousal visa in the intervening period, all legal matters which would have easily revealed your whereabouts.
22It is unclear in those circumstances why it took so long for you to be apprehended. That is particularly so when there was a co-offender whose case was proceeding through the courts to his ultimate plea in this Court. The Prosecution could not shed light on what action was taken by the informant, if any, in relation to the warrant.
23I accept the submission of Ms Strugnell that the police have a duty to execute a warrant in a timely manner and bring the person to court. That did not happen here for reasons unknown. For those reasons I reject the prosecution submission that the delay is solely attributable to you and that you should not receive the full benefit in mitigation. Apart from your original failure to appear, which you accept by your plea of guilty was without excuse, I cannot form a view as to why the matter was unresolved for such a long period. I certainly cannot be satisfied that there were aggravating features, nor that the impact of delay should be given less weight.
24The warrant was executed in August 2022. Since that time you have engaged legal representation and you have attended every court appearance since.
Delay
25Delay is relevant to sentence in two ways: first, because an offender experiences the anxiety of having unresolved serious offences hanging over them for a period of time; and second, it can be relevant where an offender can demonstrate efforts towards rehabilitation in the intervening period.
26Both of those considerations apply here. It is clear from the character references which I have received that this matter has caused you ongoing stress and anxiety over the past seven years. You have not come to the attention of police in any way since your failure to answer bail.
27I also take into account in considering delay that the offer to plead guilty to this charge was originally made in September 2022 but was rejected until more recent consideration.
Personal Circumstances
28I turn now to your personal circumstances, having been assisted by the written and oral submissions of your Counsel.
29You were born in Vietnam as the third of four children to parents who worked in agriculture.
Education and Employment
30You arrived in Australia in December 2012 as a 20 year old to study IT in Perth. You discontinued your course after a month because you struggled with the English language component of the course. You then moved to Victoria.
31You have been consistently employed since your arrival, working for five years as an agricultural labourer, picking snow peas in Korumburra, before becoming a stonemason. You have always earnt a salary and have in the past sent money back to your family in Vietnam.
32You were married in September 2022 to your wife, Michelle Tah. You and she met in 2018 through social connections. After being friends for several months, you started dating. Ms Tah has three children from a previous relationship, they are aged 10, eight and seven. You and she have a five-year-old daughter together.
33Ms Tah has written a letter for the purposes of these proceedings. It is evident from her letter that you and she have a very close and positive relationship. She has been present throughout. She says ‘I love the way he cares for me and the way he cares for everybody around him before he thinks about himself.’
34She writes of your care for her after she gave birth to your daughter and your ongoing hands-on role in raising your child and your step-children. She says, ‘It is a blessing to have such a wonderful husband giving me all the comfort and support I needed.’ She returned to work after your daughter was six months old with your support. She says despite your own work commitments you collect the children from school, participate in activities with them and in home duties. She describes you as ‘an amazing father and husband who always communicates openly and honestly.’ It is clear she and the children are reliant on your support and involvement in their lives.
35Your wife works full time in the stone masonry company which also employs you. She is in the office scheduling work while you do stonemason work on site. You deal directly with customers and she says you are an asset to the company.
36Last year you started a Charity Logistics company that delivers charity items. For that purpose you first learnt to drive a heavy vehicle and obtained a heavy vehicle licence. Your wife says this company is your way of contributing back to the community. You do not earn an income from that work but perform it voluntarily. She says, ‘Even though it is at its early stages, he wants it to become a bigger company so that it makes more of a positive difference. He has the will to contribute every little effort to make things better.’
37Along with your wife’s letter, I have received a letter from your brother-in-law and a friend.
38Your brother in law, Matthew Ta says that in his ‘view the offending is very out of character.’ He describes you as ‘a family man and [would] never put [yourself] in this position again.’ Mr Ta also says that you are ‘a responsible man. [You] are always by [your] wife’s side, supporting her every time she encountered difficulties.’
39One of your friends, Nguyen Anh Hey Le states that he knows that you are ‘very remorseful for [your] conduct and lives with the regret everyday, especially given the impact it is having on [your] family.’ Mr Le also states that he ‘believes that [your] offending does not stem from [your] true personality at all.’
40Importantly over the years you have discussed this matter with your wife. She says this has caused you a lot of ongoing stress and anxiety. She knows you are accepting your responsibility and she describes you as ‘Young and stupid and making a very big mistake that has haunted him ever since and will continue to be the biggest regret of his life, well after the case is finished.’
Plea of Guilty
41You have pleaded guilty to this offending and you receive the benefit of that plea. A plea of guilty has a utilitarian benefit in that it saves the court and the community the time and cost of a criminal trial.
42Given the offer to plead guilty was made in 2022, I treat your plea of guilty as made at the earliest opportunity. Your plea is of a high value for the reasons I have already outlined.
43A plea of guilty can also be relevant if it reflects remorse on the part of an offender for their conduct. In those circumstances a plea of guilty should result in a sentencing discount.
44All three references mention your remorse and your efforts to turn your life around since that time.
45Mr Le says that you are ‘willing to do anything and everything to prove [you are] not the same person as the one who commit[ed] the crime.’ He also states that you are ‘very regretful and disappointed about the past, and how [you] got involved in the crime.’
46Your wife states that she knows that you are ‘accepting responsibility’ and that this ‘was a once off mistake.’
47Mr Ta says that you are ‘a caring and loving person and that [you will] do things out of [your] way to help others.’ He says that he firmly believes that ‘with [your] good character and dignity, [you] will not violate the law again.’
Prospects of rehabilitation and delay
48You have no prior criminal history, nor any subsequent matters.
49You are well-supported by your wife and your extended family.
50Your Counsel submits that your prospects of rehabilitation are excellent. You have worked in the intervening period establishing a business and a family and obtaining a visa.
51I accept that you have excellent prospects of rehabilitation and that specific deterrence has very little work to do here.
Parity
52When sentencing multiple offenders the issue of parity is usually live, however, it is accepted by the prosecution that it has little relevance here, given in particular that your co-offender pleaded guilty and was sentenced on the basis of cultivating a commercial quantity of cannabis, and accepted by his plea his ongoing involvement in that role for at least three months and having been recruited for that purpose. In addition he was to receive a financial benefit.
Risk of deportation
53I also take into account that you are currently in Australia on a spousal visa but are not a citizen. As such, any sentence involving a period of actual imprisonment over 12 months is likely to result in automatic cancellation of your resident status and likely deportation. Case law establishes that that is a relevant consideration in sentencing.[2]That issue is particularly relevant to you given you are established in Australia with your wife, child and stable work.
[2] The Queen v Khem [2008] VSCA 136
Sentencing submissions
54Ms Strugnell on your behalf submitted that the time you have already served, being 46 days’ imprisonment, along with a community correction order, is the appropriate sentence in all the circumstances.
55Mr Crouch on behalf of the Prosecution submits that cultivating cannabis requires imprisonment but accepts that in your case a combination sentence is open. He submits, however, that the time served is inadequate to reflect the objective seriousness and the need for general deterrence. That is, the Prosecution submit that I should return you to prison before releasing you to a community correction order.
56The Prosecution also submits that the summary offence of failing to answer bail warrants imprisonment with some degree of cumulation.
57I have taken the submissions of counsel into account and the matters that I have outlined.
Maximum penalty
58I have also taken into account the maximum penalty for cultivating cannabis is 15 years’ imprisonment and for failing to answer bail the maximum penalty is two years’ imprisonment.
Current sentencing practices
59I take into account current sentencing practices. I have had regard to a number of cases which were helpfully referenced by Ms Strugnell in her submissions. As always there are similarities and differences between both offending and offender. Ultimately, I am required to impose a just sentence in all the circumstances and that is what I have endeavoured to do.
60Imprisonment must always be a last resort in sentencing. I have formed the view that it is appropriate here, however, that the appropriate length of that term reflects the period you have already served.
61In coming to that conclusion I have also taken into account the principles outlined by the Court of Appeal in the case of Boulton[3] in relation to the appropriateness of a community correction order, even in circumstances relevant to a serious offence.
[3] Boulton v The Queen (2014) 46 VR 308
62Mr Nguyen, if you could stand up please.
Sentence
63On Charge 1 of cultivation of a narcotic plant, you are convicted and sentenced to 46 days’ imprisonment in combination with a 12 month community correction order.
64The conditions of the community correction order are that you are to perform 100 hours of unpaid community work. That is in addition to the core conditions.
65On summary Charge 1 of failure to answer bail, you are convicted and fined $1,000. In the circumstances I have outlined I do not accept that the objective gravity of this charge is such as to warrant the sanction of last resort. In my view a significant fine is appropriate.
66I declare that you have served 46 days’ imprisonment and that that period should be reckoned as having been served under this sentence.
67Mr Nguyen, I cannot impose a community correction order without your agreement to undertake that order.
68Before I ask if you agree to undertake that order I need to make you aware that if you breach that order either by any re-offending or by breaching any of the conditions, which would include failing to undertake the unpaid community work, so if you breach that order you would be brought back to me and it would be open to me to re-sentence you for this offending. Do you understand that?
69OFFENDER: Yes.
70HER HONOUR: Do you agree to undertake the community correction order?
71OFFENDER: (Through interpreter) Yes, I do, Your Honour.
72HER HONOUR: Thank you very much.
s.6AAA Declaration
73But for your plea of guilty – so if you had not pleaded guilty to this offending – the sentence I would have imposed would have been one of 12 months’ imprisonment.
74Have a seat there, Mr Nguyen. I will have the community correction order prepared and printed out for you to sign.
75Ms Strugnell, I believe Sunshine will be the closest community correction - - -
76MS STRUGNELL: Yes, that’s my understanding, Your Honour.
77HER HONOUR: Yes, thanks. Were there any ancillary orders, Mr Crouch, I meant to ask.
78MR CROUCH: No, Your Honour.
79HER HONOUR: Thanks. Any other matters to raise, counsel?
80MS STRUGNELL: Not from me, Your Honour.
81MR CROUCH: Not from me, Your Honour, at this time.
82HER HONOUR: Thanks. You’re welcome to assist Mr Nguyen, Ms Strugnell.
83MS STRUGNELL: Thank you, Your Honour.
84HER HONOUR: Mr Nguyen, your signature on the community correction order is your promise that you will complete that order, do you understand that?
85OFFENDER: (Through interpreter) Yes, Your Honour.
86HER HONOUR: All right, thanks very much. Thanks, counsel, for your assistance, we will now adjourn.
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