Director of Public Prosecutions v Nguyen

[2017] VCC 1761

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00638

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUNG NGUYEN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2017
DATE OF SENTENCE:	27 November 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 1761

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Holmes	Office of Public Prosecutions
For the Accused	Ms A. Brennan	Victoria Legal Aid

Pages 1 - 9

 

 

HIS HONOUR: 

1Once again, this court is called upon to sentence a man without a prior criminal history for his involvement in a sophisticated cultivation of a commercial quantity of cannabis grown inside a suburban house.

2On 4 January 2017, police found you, Mr Nguyen, asleep in a house at
6 Ravensthorpe Crescent, Narre Warren.  The house had been converted into a cannabis production factory.  Located in four rooms of the house were a total of 166 plants weighing approximately 61.93 kg.  This is 1.6 times the commercial quantity of plants and 2.7 of the commercial quantity by weight. 

3Given the prevalence of this offending, I have had to deliver sentence in a number of similar cannabis cultivation cases in recent times.  As the methods used are often very similar, I have from time to time referred to my earlier sentencing remarks in passing sentence at the time.  The Court of Appeal in Quy Nguyen [2017] VSCA 127, decision on 2 June 2017, Osborn, Santamaria JJA and Croucher AJA. They repeated the words that I had used in that case and in earlier ones. Thus again, here, I refer to what I have said adapted when necessary to suit this case.

4The cultivation methods employed here in this house at Ravensthorpe Crescent, Narre Warren was sophisticated.  The lighting had been installed and was such to allow the plants to be grown indoors.  Power had been bypassed to allow for higher volumes of electricity to be consumed without detection and more importantly, cost.  There were timers, irrigation and nutrition systems.  These were all expensive items indicating there had been significant resources expended on the basis that large quantities of cannabis would be cultivated for profit.  Here, significant effort was made to conceal the cultivation on from the outside with coverings on the windows and false walls within the premises. 

5The photographs that were part of the hand-up brief revealed the rooms in which the cannabis were growing and they were albeit said they were spindly, nonetheless looked healthy enough.  Thus, the yield of usable drug was likely to be very high.  All the features found at this house in Narre Warren are often found in suburban or country houses that had been converted into cannabis production operations.  The crime is hard to detect and even harder to establish who are the main players in the cannabis production and distribution chain.

6Before dealing directly with your role in this crime, it should never be forgotten that the cannabis grown by the cultivators ultimately has serious effects on many users and on our community which bears a great cost while entrepreneurial cannabis cultivators profit significantly.  The entrepreneurial cultivators have for some time sought to avoid their own detection by having other often vulnerable individuals mind the crops.  These crop sitters as they have become known ensure the equipment continues to operate.  They also provide, it seems, from time to time a degree of security for the crop.  Most importantly, they keep the entrepreneurs at arm's length from the crop while it grows to a saleable product.

7Your counsel submitted that you were a crop sitter.  The prosecution does not dispute this categorisation.  Accordingly, I will deal with you as a crop sitter and you will be sentenced as such.  However, I refer to what the Court of Appeal in Quy Nguyen, the case I have referred to already, said of the task of assessing the gravity of the offence by reference to the role of an offender.  The court said at paragraph 29:

"The necessity of broadly characterising the role of an offender in this type of context was rejected by the High Court in Olbrich.  Gleeson CJ, Gaudron, Hayne and Callinan JJ in a joint judgment stated:

'It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where it is known, in a scheme of importation or distribution.  Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals.  However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known.  What may be a convenient shorthand method of describing facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether it is possible or appropriate.'"

8Their Honours went on and this remains part of the quote set out by the Court of Appeal in Quy Nguyen.  They went on,

"A distinction between 'couriers' and 'principals' may prove a useful shorthand description of different kinds of participation in a single enterprise.  And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms.  But this was not such a case.  Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced.  Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did."

9The Court of Appeal in Quy Nguyen then went on,

"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."

"In [that case, that is Quy Nguyen and remains the case here, the one before me of Tung Nguyen], the operation in which the appellant was involved was a very substantial one involving a sophisticated and extensive set up;  the incidental theft of a substantial quantity of electricity; an ongoing personal participation over a period of two and a half months; and the production of more than 2.7 times the threshold level required for a commercial quantity of cannabis.

"Whilst it is true that the evidence did 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."

10The court went on,

"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."

11As to your personal circumstances - I am sorry.  The court went on to conclude in this fashion:

"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."

12I intend to follow those principles. 

13As to your personal circumstances, you are now 43 years old.  You were born and raised in Vietnam.  At the age of about 23 or 24, you migrated to New Zealand.  Part of your family were already there.  Your family still reside in New Zealand.  You married in New Zealand and have two children.  Your marriage ended in 2013 and you of course were upset at that and determined to leave New Zealand to start afresh in Australia.  You remained in touch with your children before your arrest but that has ended upon your arrest and you are isolated from them now in custody. 

14You have indicated to your lawyers that initially the rent at a house you shared by three families was difficult for you to meet.  You were working as a nail technician, an occupation that you had with your wife, undertaken in New Zealand.  So the difficulties you faced financially led you to take up living at the Ravensthorpe house as it was rent-free.  This was part of the quid pro quo for you to be the crop sitter.  The promise of money from the crop never eventuated. 

15You initially told police you had nothing to do with the crop but now you have pleaded guilty on the basis of tending to the watering and the power needed for the growth of the plants.  You have limited English and accordingly, I will suitably moderate your sentence of imprisonment because gaol consequentially will be harder for you.  You are isolated from your family as I have noted and this too is a mitigatory matter.

16Your plea of guilty was early and thus you will receive the benefit of a lower sentence.  Your plea of guilty has aspects of remorse, that is taking responsibility for your criminality but nothing else was put forward on your behalf to establish further remorse or contrition.  Your prospects of rehabilitation are based on your lack of prior convictions and the support that you have or will have in New Zealand from your family, it being the case that you will inevitably be deported to New Zealand.  Nothing attaches to the fact of your deportation in this case. 

17As the Court of Appeal in Quy Nguyen identified and in other cases, deterrence is of primary importance given the prevalence of this offence.  It is, as the Court of Appeal has noted, necessary that deterrence be to all those involved in this entrepreneurial cultivation activity, including those who take it upon themselves to be crop sitters.

18It is also important to denounce your crimes.  That is you became involved in a criminal activity that has detrimental activity on many in this community and you must meet your just deserts.  In my denouncement of your crimes, there must be a practical impact where you face, as I said, the consequences of your criminality.  The only appropriate sentence, it seems to me, is one of imprisonment.  It is not put on your behalf that any other sentencing option was available. 

19It is hoped you continue to do all you can in prion to better and busy yourself as you have done thus far. 

20Can you please stand, Mr Nguyen?

21I impose an aggregate sentence for the cultivation in a commercial quantity and the theft of the electricity.  You are sentenced to 27 months' imprisonment and I fix a minimum term of 17 months.  You have already served 327 days on remand and I will ensure that this period of time, having been reckoned, I now declare that it is part of the sentence that I have just imposed.  I will ensure this declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already served 327 days of the sentence I have I just imposed. 

22Had you pleaded not guilty to this offence and then found guilty of it, I would have imposed a sentence of four years and three months with a minimum non-parole period of three years.  Four years three months with three years.

23MS BRENNAN:  Your Honour, I think I might have led you into error.  My submission say 327 days' PSD but the Crown has calculated 326 days and I trust them. 

24HIS HONOUR:  What is it?  What is their ‑ ‑ ‑ 

25MS BRENNAN:  I think my between-dates calculator might have included today.

26HIS HONOUR:  All right.

27MS BRENNAN:  So I apologise for that.

28HIS HONOUR:  What is the position, Ms Holmes?

29MS HOLMES:  Yes, 326 days, Your Honour.  I was about to rise to my feet.  It is ‑ ‑ ‑ 

30HIS HONOUR:  I just looked at your figure before I came and I was about to say, as I sometimes do, is it 327?  You would have corrected me.  I looked at your submission before.

31MS HOLMES:  Yes, I am sorry, Your Honour.

32HIS HONOUR:  It was no error of yours.  Not at all.

33Mr Nguyen, I just have to correct something.  I am told that the reckoning of the days that you have spent in custody thus far is more accurately 326 days.  Thus, this figure having been reckoned, I will declare that this 326 days is part of the sentence I have just imposed.  I will ensure that the declaration is entered into the records of the court so that prison authorities know what you have already served.

34There are other orders which I will sign.  They are for a disposal.  You do not need any of these things for any other crimes that might be connected with other people?

35MS HOLMES:  No.

36HIS HONOUR:  Have you had time to speak to him about the power compensation matter?

37MS BRENNAN:  I have, Your Honour.  I am instructed by him that he has a - believes that he will have limited capacity to pay it.

38HIS HONOUR:  A civil debt. They can take it up with him.

39MS BRENNAN:  All right.

40HIS HONOUR:  I intend to make the order that $9020.95 be paid to the corporate entity on this compensation order.

41MS BRENNAN:  As the court pleases.

42HIS HONOUR:  It is common that they have an address.  Is that so,
Mr Associate?

43ASSOCIATE:  I have that, Your Honour.  (Indistinct words.)

44HIS HONOUR:  Thank you.  Further application has been made, Mr Nguyen, that you provide a sample, a forensic sample or undergo a forensic procedure to obtain a forensic sample.  That is so that your DNA can be extracted and placed on a database.  I have considered that application and I intend to grant it due to the seriousness of the circumstance of the offence and the granting of the order is in the public interest.

45What you have to understand is this - that at the time that the authorities request you to provide the scraping from your mouth, that if you do not consent or cooperate at the time the officers have the authority to use reasonable force to enable the forensic procedure to be conducted.  Do you understand this?

46OFFENDER:  (Through Interpreter) Yes, Your Honour.

47HIS HONOUR:  Thank you.

48MS BRENNAN:  Your Honour, I took Mr Nguyen through that and he indicated it would be by consent.  I know Your Honour is making the order in any event.

49HIS HONOUR:  Yes, I made the other for the other reasons and his consent in the end would have been neither here nor there but noted.

50All right.  I have signed those documents.  Is there anything further in need of tidying up?

51MS HOLMES:  Just in relation to the PSD, Your Honour, the two calculators that are being used are showing different results and so Mr Nguyen should not - in my view - should not be penalised as a result of that.  So I will concede that the pre-sentence detention is ‑ ‑ ‑ 

52HIS HONOUR:  All right.  Is anyone using a calendar?  Or what sort of calculator?  It is an objective fact.

53MS HOLMES:  In any event, the prosecution is happy to concede 327 days, Your Honour.

54HIS HONOUR:  Thank you.  I now reverse what I said.  I think the provisions of the Sentencing Act - much overlooked - are that the task falls to the informant - I do not know why - to calculate that period of time.  In any event, we will put that to one side.  Three hundred and twenty-seven days is declared as the time that has been served so that will be entered into the records of the court.

55MS HOLMES:  Thank you, Your Honour. 

56HIS HONOUR:  Thank you.  Is there anything further required?

57MS HOLMES:  No, Your Honour.  

58HIS HONOUR:  Mr Nguyen can be removed.  Do you need the interpreter to assist you later, do you think, Ms Brennan?

59MS BRENNAN:  It would be helpful.

60HIS HONOUR:  Is that doable?

61MS HOLMES:  Yes.  No issue with that, Your Honour.

62HIS HONOUR:  Ms Pham, the defence lawyer might ask you to attend downstairs to explain a few more things if needed to Mr Nguyen.  Are you happy to do that?

63INTERPRETER:  More than happy to, Your Honour.

64HIS HONOUR:  Thank you very much for your assistance.

65MS BRENNAN:  I appreciate that, Your Honour.

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