Director of Public Prosecutions v Nguyen

[2017] VCC 831

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

AT BALLARAT
CRIMINAL JURISDICTION

CR-17-00280
CR-17-00383

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUC NGUYEN
VAN NGUYEN

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	21 June 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 831

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	Mr P. Bourke
For Accused Nguyen	Ms Pisasale
For Accused Nguyen	Mr P. Casey

Pages 1 - 13

 

 

HIS HONOUR:

1Duc Nguyen, you have pleaded guilty to two charges of cultivate a narcotic plant in a commercial quantity, the plant being cannabis L. 

2Van Nguyen, you have pleaded guilty to two charges of cultivate a narcotic plant in a quantity not less than a commercial quantity, the plant being cannabis L. 

3Each of the charges against each of you is identical.  You are charged as co-offenders in this criminal enterprise. 

4Neither of you have a prior criminal history and I accept that each of you have entered a plea of guilty at an early stage. 

5The facts of the matter are set out in Exhibit 1, the prosecution summary.  Apart from the factual determinations I shall shortly make, the facts are not disputed by your counsel and any reader of these reasons can refer to that exhibit to place the sentences in their factual context.

6Briefly stated, there were two crops of cannabis growing hydroponically, one at 5 Mountview Drive, Sebastopol, the other property, 41 Maple Avenue, Wendouree.  The total number of crops amounted to 359, with a weight approximately of 202.78 kg. 

7Submissions have been made as to the roles each of you had played in the cannabis operation.  It is important for a sentencing judge in looking at that fact to actually concentrate on what each of you did. 

8You, Duc Nguyen, attended at both premises as a crop sitter.  You used the car of an associate to facilitate your offending.  The prosecution have conceded and I accept that, (1), you are to be sentenced as a crop sitter at both properties; (2), you are not to be sentenced as having a role in setting up the system; (3), you are not to be sentenced as having a role in setting up the electrical bypass system or had knowledge of it.

9Your counsel said, on instructions, that you became involved in this enterprise through playing poker machines in Sunshine and you were promised, although at the stage of arrest, had not received, a large financial reward.  Your counsel submitted that I could only be satisfied that your involvement was from
6 August 2016 to 31 August 2016. 

10In paragraph 6 of the prosecution opening, on 6 August 2016, police were conducting a routine patrol in the Sebastopol area when they intercepted a white Toyota Camry, 1GT 9KC, turning out of Mountview Drive, Sebastopol.  Both accused were in that vehicle.  That vehicle was subsequently located on 31 August 2016 out the front of 5 Mountview Drive, Sebastopol. 

11From 8 September 2016, both that vehicle and the vehicle belonging to the co-accused were observed out the front of 5 Mountview Drive (see paragraph 12 of the opening). 

12Paragraph 13 states, "Subsequent, that is after 8 September, surveillance established that both vehicles, the white Camry and the silver Honda wagon, were associated with both the Sebastopol and Wendouree addresses." 

13In paragraph 4 of the opening, it is said in June 2016, "Acting on information, investigations were begun by the police concerning 41 Maple Avenue, Wendouree, and found the following:  Part E, the vehicle with registration 1GT 9KC, a white Toyota Camry sedan was associated with the property.  That vehicle was registered to the accused, Van Quon Nguyen.”  It has not been explained to me what that actually means, on what basis that conclusion was arrived at. 

14I invited the prosecutor to draw my attention to evidence establishing your association with either of the addresses prior to 6 August 2016, apart from that statement I have just referred to paragraph 4E, nothing was forthcoming.

15The prosecutor submitted that because of the maturity of the plants seized, I could infer that your involvement, in effect, was from the time of the planting of the crops.  I have no evidence before me as to when and who planted the crops.  It would be speculative to find that you were present at that time.  I may have suspicions about the length of your involvement but on the material before me, I can only be satisfied beyond reasonable doubt that it had occurred between 6 August 2016 and 31 August 2016. 

16Now, between those dates you were certainly involved in this joint criminal enterprise with the co-accused.

17You, Van Nguyen, had a more substantial involvement that your co-accused in this operation.  You owned the premises at 41 Maple Avenue, Wendouree.  A substantial hydroponic setup existed there, electricity was bypassed and the house had been structurally altered to create more spaces of the cultivation. 

18On 6 August 2016, the car in which you and the co-accused were occupants, were searched by police and the paraphernalia associated with cultivating cannabis was found in the vehicle. 

19In your role of cultivating the crop at the second grow house at 5 Mountview Drive in Sebastopol, that house was owned by your stepdaughter.  Your counsel submitted, on instructions, you did not know this, although later on the plea he seemed to suggest that the mother of your stepdaughter was responsible for your involvement.  That seems to me to be a contradiction.

20I also make the comment that you are able to provide instructions as to that, but have provided no instructions as to how you actually became involved, what you were to obtain from it, and what your role was.  Mr Casey said he had difficulty in obtaining instructions from you. 

21I find, beyond reasonable doubt, as a matter of inference, that you would have been aware that the property at 5 Mountview Drive, Sebastopol, was owned by your stepdaughter.  I am reinforced in that finding by the instructions provided to me in respect of your relationship with the mother of the owner.

22Because of these matters, I find that your role, vis-à-vis your co-offender was a greater one.  I was invited by the prosecutor to find that you were the organiser of this operation.  There is no evidentiary basis upon which I could do so, and the report of the neuropsychologist suggest it would be beyond your mental capacity to be such a person.  Again, for me to make any findings as to who organised all this would be speculative. 

23I do note, however, that you had sufficient awareness of your criminality to lie to the police about it.  Mr Casey did not put to me, on instructions, what you stood to gain from your involvement in this enterprise.  However, I do conclude that it would have been done for financial benefit. 

24Because of the number of properties involved, the degree of planning required, particularly as evidenced by the structural alterations to your house, the nature of the hydroponic setup, the quantity and weight of plants, I find this offending to be in the mid-range of offending in respect of cultivation of cannabis. 

25I have discussed with counsel this morning, the comments of the Court of Appeal in the case of Nguyen v The Queen [2016] VSCA 198 apply. The court in that case directed that for mid-range sentencing for cultivation in a commercial quantity, sentences should be incrementally increased (see paragraph 152).

26As discussed with counsel this morning, I had a query in my mind whether that applied to a crop sitter.  Upon analysis of paragraph 152, it is my view that it does apply to a crop sitter who falls within the mid-range.

27The court opined at paragraph 150, "Sentence imposed upon offenders who fall within the mid-category of seriousness do not reflect consistency in the applications of principle.  There has been inadequate emphasis given to general and specific deterrence and denunciation.  Consequently, the standard set do not adequately reflect the objective seriousness of the offending or the offender's moral culpability for engaging in such criminal conduct for profit that is so harmful the community" 

28Duc Nguyen, I accept that you have no other criminal history.  I accept that you plea of guilty was at an early opportunity and thus, you are entitled and have received a discount for your plea, as an acceptance of responsibility by you for your offending and the fact that it has saved the court the time and expense of a jury trial.

29Your counsel filed a written outline of submissions and in that, set out your personal history.  You were born in 1980 in Haiphuong, Vietnam.  You have a brother who works in Vietnam and a sister who lives and works in Germany.  You parents are retired and live in Haiphuong.

30You completed primary and secondary education to Year 12 and then pursued a course in mechanics, an industry in which you worked for some eight years in Vietnam. 

31You, in 2003, married your then wife.  There was a problem with having children, which caused strain in the relationship.  Both you and your wife moved to Australia in 2006 and lived in Perth.  At that stage, you were on a spouse visa, I am told. 

32In 2013, due to financial and emotional pressures, the marriage finished.  You then, at a time shortly after, became in illegal person in Australia because you were no longer entitled to be here on a spouse visa.  You moved to Sunshine in Melbourne and worked as a sub-contractor handyman.  You want to go back to Vietnam.  The fact that you will probably be deported has no benefit to you in the sentencing process. 

33It was put that you will have limited support whilst in custody; there is a language barrier.  Although I am sure there are a number of Vietnamese inmates in our various prisons.  But you will be away from your family and limited supports, and I take that into account. 

34You provided to the court a letter of remorse, which you dictated to a friend who put it in English.  Such a document, of course, is self-serving, but I take it into account because at least you took the trouble to set out your remorse for being involved in this offending. 

35It is difficult to assess any prospects of rehabilitation, as you want to go back to Vietnam and I am not in a position to make any comments about what will happen when you do so.  The fact that you have had an occupation in Vietnam and you have no other criminal convictions, suggest to me that you possibly can lead a law-abiding life when you return. 

36Van Nguyen, similarly, you have no other criminal history and I take that into account.  I take into account your plea of guilty. It was made at an early opportunity and it is an acceptance of responsibility by you for your offending and has saved the court the time and expense of a jury trial.

37You are now aged 53 and your counsel relies on that.  It does not seem to me to be a significant factor.  The essence of the plea was directed towards your mental health problem. 

38In 2015, a CT scan was done and a diagnosis of a head injury was made, that is evidence of injury was found to be to the left-frontal lobe.  You had had a number of indicators of that, including chronic headaches, insomnia, forgetfulness, et cetera, as outlined in the report of Dr Thai Ohtsuka from The Oaks Health and Psychological Group report. 

39There are number of other medical reports substantiating that.  A neuropsychology report from Suzanne Brown, clinical psychologist, was tendered.  It was made on 10 May 2017 and is a comprehensive report. 

40It outlined your personal circumstances and the fact that your injured in a motor vehicle accident in 2011.  It said that you have re-partnered and married your current wife three years ago, and you have children who live in Sydney but you have no contact with them.. 

41You attended school in Vietnam to Year 7 and then went into the army for a period of three years.  Following that, you worked as a farmer for seven years.  You escaped Vietnam, travelled to Hong Kong, lived in a refugee camp, but you were sent back eventually, and obtained work as a bus driver.  It was at that time that you sustained the motor vehicle accident injuries. 

42You were in hospital for 20 days after that accident.  In paragraph 4.6.3, it is set out that a CT scan showed an abnormality in your left-frontal lobe, measuring 3.5 cm by 2.5 cm, that involved cortical grey matter and deep white matter.  Her reported concluded that this abnormality could represent an area of gliosis (that is scarring) associated with a previous history of cerebral contusion, that is traumatic brain injury or haematoma, that is bleeding in the brain.  You had been seeing Dr Ohtsuka before your involvement in this offending. 

43A number of neuropsychological tests were conducted by Suzanne Brown and she concluded in paragraph 6.2.2, "It's my opinion that Mr Nguyen's primary diagnosis is neurocognitive disorder due to traumatic brain injury."  She concluded that the neurocognitive disorder was of a severity that would be expected to degrade your ability to lead an independent life. 

44She concluded that you would not cope well if you spent a significant period in incarceration.  She said you have a number of vulnerabilities, including impaired cognition and low mood that would make it harder for you to function in prison that the average person, and said there is certainly a risk that your mood would deteriorate. 

45Mr Casey, on your behalf, submitted that the principles of Verdins, known as point 5 and point 6, were thus invoked by those conclusions.  Point 5 of Verdins refers to, "The condition at the time of sentencing, the existence of a condition at the date of sentencing that may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health"; and 6, "Where there's a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment."

46The Crown did not oppose that submission and, in my view, upon an assessment of the report, it is well-founded and I have taken that into account. 

47Mr Casey then relied on Verdins points 1 to 4, basing it on the conclusion of Ms Brown in paragraph 6.3.1 of her report.  She said,

"It's my opinion that Mr Nguyen would have a great deal of difficult independently operating sophisticated hydroponic systems across two properties.  His cognitive impairments would restrict his ability to plan and establish complex systems.  He would struggle to effectively monitor, modify, or troubleshoot systems issues.  Mr Nguyen demonstrates poor planning and problem-solving abilities, and it would seem unlikely that he would be able to set up multi-component systems, including obtaining technical equipment, installing an electricity supply, and stocktake.  His limited concentration and attentional capacity would likely mean that he could not easily multi-task or deal with many things at once.  His memory impairment would make it very difficult to learn new methods, take on board lengthy instructions, read paragraphs of text, remember codes or phone numbers, or monitor crops and systems on a regular basis." 

48For the reasons as discussed during the course of the plea with Mr Casey, I reject his submission and, in particular, refer to the case of O'Neill [2005] VSCA 325, where the Court of Appeal said at paragraph 75:

"To show the necessary connection to the offender and to so enliven limbs 1 to 4 of Verdins, the offender must establish that the mental impairment affected the offender's ability to appreciate the wrongfulness of the conduct or obscure the offenders intent to commit the offence or impair the offender's ability to make calm or rational choices or to think clear at the time of the offence."

49Ms Brown's report does not address, in my view, either of those issues, and there is no expert evidence upon which I could find that limbs 1 to 4 of Verdins enlivened. 

50However, as I have already noted, I have taken her report into account in making a finding that I could not be satisfied, beyond reasonable doubt, that you were the organiser of this criminal enterprise.  I also take your medical issues as a result of your injury into account as a general sentencing proposition. 

51Mr Casey initially submitted that I could impose a combined term of imprisonment plus a community corrections order, which would mean a 12 month sentence or less plus a CCO. 

52Because of the seriousness of the offending, I believe that that submission cannot be sustained, particularly if one refers to the case of Nguyen, so I rejected that. 

53Alternatively, he submitted that I consider a lengthy parole period.  He submitted that you have has good prospects of rehabilitation.  It is a difficult assessment for me to make, prospects of rehabilitation.  I know very little about your involvement in this matter, apart from the material on the brief. 

54I note that in being assessed by Suzanne Brown, she received no history of how or why you became involved in this or what your role actually was.  I know very little about your current partner, apart from the fact her stepdaughter owned one of the properties in question. 

55Because of the paucity of the material, I am really not in a position to assess your prospects of rehabilitation, apart from looking at the fact you have no other criminal history.  As I said, I take that into account. 

56I take into account all the submissions made by both the prosecution and two defence counsel.  As I have indicated, I have looked at the sentencing snapshots and the summaries of various cases in connection with this type of offending. 

57The basic purposes of which a court may impose a sentence are punishment, general deterrence, both specific and general rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances. 

58I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community and seeking to ensure, as far as possible, offenders are rehabilitated in society.  I express my denunciation of the behaviour, as the Court of Appeal said in Nguyen, the issue of general deterrence, that is to impose a sentence sufficient to deter others who want to be involved in this type of criminal enterprise. 

59Of course, people would not be involved in this crime for profit if there was not a market for cannabis.  What is demonstrated by the number of crop sitting cases, and I hear and other judges hear in this court, there is a substantial market for that drug.  Thus, criminals will take advantage of that market, grow the product, and seek to sell it.

60The product itself is a dangerous product, particularly with people who have mental health issues.  It is no role of the court to make any comments about people's use of the drug.  But what is clear is that if people were not using it, people would not indulge in this type of criminal offending.  It is a serious example of this type of offending. 

61Pursuant to s.9(1) of the Sentencing Act, it is my view that I can impose an aggregate sentence because the conditions are met. 

62In relation to Duc Nguyen, I impose the following aggregate sentence:  I impose a sentence of two years six months.  I direct that you serve a period of one year and six months before being eligible for parole. 

63Mr Van Nguyen, I impose an aggregate sentence of four years and direct that you serve period of two and a half years before you are eligible for parole.  I have set that two and a half year period to serve before being eligible for parole in the light of the submissions made by your counsel as to the effect your imprisonment will have or the difficulties or burden your imprisonment will have upon you because of your mental health issue.  Otherwise time served before being eligible for parole would have been longer. 

64The period of time for each of you of 243 days that each of you have served is to be reckoned as part of the term of imprisonment I have just imposed.

65MR BOURKE:  Two forty-three, Your Honour.

66HIS HONOUR:  Two forty-three, is that now what I said?

67MR BOURKE:  I think you said 240.

68HIS HONOUR:  Two forty-three, I meant.  I have to make a 6AAA declaration.  I always find this a difficult, if not impossible, task as a trial can often change one's view of these matters, but doing the best I can for Mr Duc Nguyen, if the matter had proceeded to trial and he was convicted, a sentence in the order of five years with a non-parole period would have been imposed. 

69In respect of Mr Van Nguyen, a sentence of seven years with a non-parole period of five years would have been imposed.  There are two forensic sample orders?

70MR BOURKE:  Yes, Your Honour.

71HIS HONOUR:  Have I got those?

72MR BOURKE:  I think I might have them, sir.  Excuse me, sorry.

73HIS HONOUR:  Yes, and what about the other order you were going to amend, the conversation order.

74MR BOURKE:  I understand they have been amended, it has been amended, Your Honour.

75HIS HONOUR:  All right.  Disposal order.

76MR BOURKE:  There is a 464 for each man, Your Honour.

77HIS HONOUR:  Give me those.

78MR BOURKE:  Two copies.  A disposal order and forfeiture orders, Your Honour - I think there is three copies of each of those.  I am not sure whether Your Honour meant to or not but in relation to Mr Duc Nguyen, the 6AAA, did Your Honour intend to declare a non-parole period?

79HIS HONOUR:  Mr Duc, 503, I think I said.

80MR BOURKE:  Thank you, Your Honour.

81HIS HONOUR: Yes. I make an order for - your counsel both agree to these so I will not ask you say anything - forfeiture order pursuant to s.32(1) of the Confiscation Act in terms of the order that I sign. I make an order for disposal, pursuant to s.77(1) of the Confiscation Act in the terms of the order that I sign.  I make an order in respect of Mr Duc Nguyen for the taking of a forensic sample.  I am satisfied that considering the seriousness of the circumstances of the forensic sample offence, that the order is justified for the following reasons, the seriousness of the circumstances warrant the offence, the order is, by consent, not opposed.  It is 2017 we are in, are we not?

82MR BOURKE:  Last time I checked, Your Honour, yes.

83HIS HONOUR:  I have to amend your order.

84MR BOURKE:  Thank you, sir.

85HIS HONOUR:  It says 2016.  Mr Duc Nguyen, I have just signed an order for the taking of a forensic sample.  Through your counsel, you have not opposed that.  If/when police come around to take that forensic sample. I inform you, police may use reasonable force to enable that forensic procedure to be conducted.  There is Mr Duc Nguyen. 

86In relation to Mr Van Nguyen, I will change the date to 2017.  Having considered the seriousness of the circumstances of the forensic sample offending, I am satisfied the order is justified of for the following reasons, the seriousness of the circumstances warrant the offence, the order is, by consent, not opposed. 

87Mr Van Nguyen, I have just made an order for the taking of a forensic sample from you.  I inform you, when police come around, if you change your mind and decide not to cooperate, police may use reasonable force to enable that procedure to be conducted.  Are there any other orders or matters I need to attend to?

88MR BOURKE:  No, thank you, Your Honour. 

89COUNSEL:  No, Your Honour.

90HIS HONOUR:  No, all right.  Can you take both gentleman out, thank you?  Thank you.  Both of you are excused, thank you.

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