Director of Public Prosecutions v Nguyen

[2024] VCC 592

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00875

DIRECTOR OF PUBLIC PROSECUTIONS

v

MINH NGUYEN

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JUDGE:	HIS HONOUR JUDGE GEORGIOU
WHERE HELD:	Melbourne
DATE OF HEARING:	18 April 2024
DATE OF SENTENCE:	2 May 2024
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2024] VCC 592

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Cultivation of drug of dependence – permit premises to be used for cultivation of cannabis – plea of guilty.

Legislation Cited:                Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991.

Cases Cited:

Sentence:  32 days imprisonment, Community Corrections Order of 2 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	D. Cordy	Office of Public Prosecutions
For the Accused	H. Rattray S. Andrianakis (for sentence)	Stephen Andrianakis & Associates

HIS HONOUR:

1Minh Nguyen you are charged that at Eaglehawk on 19 August 2020, being an owner of premises at 175 Jobs Gully Road, you intentionally permitted Anh Tung Hoang to use those premises for cultivation of a drug of dependence.

2This is an offence contrary to s72D(2) of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for this offence is one of five years’ imprisonment.

3On 5 March 2024, following a sentence indication hearing, I indicated that if you pleaded guilty to the charge, the penalty I would impose is one of a period of imprisonment of 32 days together with a two-year community corrections order with conditions, including the performance of unpaid community work.

4

On 19 August 2020, following the execution of a search warrant at 175 Jobs Gully Road, police located 223 cannabis plants, weighing a total of 192 kilograms.  An illegal electrical bypass system had also been installed at the property. 

Anh Tung Hoang was charged with and sentenced for the offences of cultivating a commercial quantity of cannabis and theft.  You are not charged with those offences, and it is not put that you were involved in the cultivation or theft of electricity.

5The circumstances of your offending are set out in the prosecution opening for sentence indication, Exhibit P2.  It forms the basis upon which you fall to be sentenced.

6In summary, the case put against you, and which is not disputed, is that you were aware that your property was being used to cultivate cannabis and that you had intentionally permitted others to do so in consideration of rental payment.  I was informed that you received $1,500 per month by way of rental payment for the premises.

7The purchase of the property settled on 16 July 2019.  On that same day, a water account was established in your name and utilised your mobile telephone number. An electricity account was set up in a fictitious name.  A series of emails were also created between an account purporting to be yours and accounts in the name of the fictitious person.  While it is not suggested that you created the false documents, it was accepted that you were aware of their falsity and use in relation to the tenancy.

8You were arrested at your place of employment on 8 October 2020.  At that time, you were living at an address in Phyllis Parade, Deer Park.  You were remanded in custody and spent 32 days on remand until you were released on bail.

9When interviewed by police, you denied any knowledge of the cultivation of a commercial quantity of cannabis on your property.  You did not provide an account of how you rented out 175 Jobs Gully Road or to whom you rented the property.

10It is not an element of the offence to which you have pleaded guilty that you knew the quantity of cannabis that was to be cultivated on your property.  Furthermore, it was not put that you were aware of the quantity of cannabis being cultivated or that you were to receive any benefit, apart from the payment of rent. 

11Your plea of guilty was only entered after the sentence indication hearing.  Your case was listed for trial at the County Court sitting at Bendigo in October 2023, but was vacated for the purpose of the sentence indication hearing.

Personal circumstances

12You were born in Vietnam in August 1990, and you are now 33 years of age.  You were 29 years of age when you committed this offence.

13You came to Australia in 2008 and have since become an Australian citizen.  Your parents live in Vietnam and are aware of your offending.  You have a brother living in Melbourne who is employed in the construction industry. 

14In Australia you completed a course in hospitality in 2009.

15You have two children from two different relationships.

16Your eldest child, Damon, is 12 years of age and lives with his mother, your first wife, in Melbourne.  You and your first wife were married in 2010 and separated in early 2014.  Following the breakdown of that relationship, you moved to Sydney where you opened a nail salon business.  It was there that you met your second wife.

17It was only after your move to Sydney that you discovered that your oldest son was experiencing developmental difficulties.  He was at that time travelling between Melbourne and Sydney on a monthly basis, as part of a shared contact arrangement.  As a result of his difficulties, you, along with your new partner, returned to Melbourne in late 2015.  You and your partner married in May 2017.

18You have a second child who was born in December 2014 and is now nine years of age.  Following his birth, your wife, that is his mother, suffered severe postnatal depression.  She also has a number of other medical conditions, including hyperthyroidism and suffered migraine headaches.  

19Your oldest child suffers, I was told, has been diagnosed with severe autism spectrum disorder and whilst not completely non-verbal, has great difficulty in communicating.  You have regular contact with him both in person and over the telephone.  You were his primary carer for much of the time you were married to his mother, between 2010 and 2014.  Your youngest child also suffers from autism, but I was not informed of the extent of his condition.

20You have a significant history of work since your arrival in Australia.  It was put on your behalf that you have worked hard in order to provide for your family.

21In 2010, you obtained employment as a chicken boner.  You have mostly worked in that industry since then and would often work six days per week.  In addition to working on a full-time basis, you have also worked on a part-time basis as an Uber driver and as a hairdresser, for which you are also trained.  I was informed that you provide child support payments for your children by way of agreement with their mothers.  When interviewed by police, you told them that all you ever do is 'work and sleep'. 

22You are currently working as a process worker at a pork factory.

23Regarding the house at Eaglehawk at which the cannabis was grown, I was informed that you were not able to maintain the mortgage payments in the absence of rental payments and, as a result, the house was seized and sold by the bank at a loss to you.

24You purchased the Eaglehawk house when living in Cairnlea and working in Bendigo, at the Hazeldene chicken farm.  Given the long commute, you decided to purchase the property, intending that you and your family would reside there.  However, shortly after agreeing to purchase that property, you ceased work at Hazeldene and decided to remain living in Melbourne.  The main reason for your decision to remain in Melbourne was that your first wife told you she would refuse permission for your oldest child to visit you in Bendigo. Accordingly, you decided to remain in Melbourne and rent out the Bendigo property.

25I was informed that you became aware that the premises would be used to cultivate cannabis shortly after you became the owner of that property on 16 July 2019. Your reason for becoming involved in the offending was to receive regular rental payments.  It was put on your behalf that you were effectively asked to turn a blind eye to what was occurring, which you did.  It was also put that the rental payment you received was in line with market rental.

26You have never before been in trouble with the law and I was informed by

Mr Rattray, who then appeared on your behalf, that you do not suffer from any substance abuse or mental health issues.  However, those instructions you then gave him are at odds with what you reported to the author of the community correction assessment report.

Sentencing considerations

27It was submitted by your counsel and the learned prosecutor that the scale of the cultivation occurring on your property, which was significant, has some relevance to the sentencing process.  Whether that proposition is correct or not, may well depend upon the particular facts and circumstances of the case.  There is no evidence before me suggesting that you were aware of the size of the cannabis crop or the extent of the cultivation occurring at your property.  It was not put that you were to benefit in any way other than the receipt of rental payments.

28However, you were clearly aware of the fact that cannabis cultivation was to occur, and you intentionally permitted another person to use your premises for that purpose.  You willingly allowed this to occur.  You did so in order to receive some $1500 per month.  It was never explained why you could not have rented out your premises to others not engaged in illegal activity.  In the circumstances, and in the absence of any matters that reduce your moral culpability, I find that your culpability for this offence to be relatively high.

29In assessing the nature and gravity of your offending, I also have regard to the maximum penalty which might be imposed, namely one of five years’ imprisonment.  The inherent gravity of this offence is reflected in the maximum penalty, and can readily be contrasted with the more serious offence of cultivation in a commercial quantity, which carries a maximum penalty of 25 years’ imprisonment, or of the offence of cultivation of cannabis, which carries a maximum penalty of 15 years’ imprisonment.

30When interviewed by police, you admitted to owning the property, but denied any knowledge of the cultivation of cannabis.  You did not provide an account as to how you came to rent out the property.

31As stated, your plea of guilty occurred following the sentence indication hearing.  You accepted the sentence indication once it was given.  You have saved the court and community the time and expense of a criminal trial and have spared witnesses from having to give evidence at a trial.  Whilst it could not be said that you pleaded guilty at the earliest opportunity, I nevertheless accept that your plea of guilty is of significant utilitarian benefit entitling you to a real measure of leniency.

32Although there is no evidence of remorse, I consider that you have reasonable prospects of rehabilitation, given that you have never before been in trouble with the law; your excellent work history; and what appears to be a strong commitment to your children.  I have little doubt that the 32 days you spent in custody, your first time in gaol, would have been a salutary experience and one that reduces somewhat the need for specific deterrence.  That said, I am nevertheless concerned about your recent disclosure concerning drug use and unless you receive appropriate treatment, then you are at risk of further offending.

33I have also had regard to the fact that it has now been some three years and eight months since this offence was committed.  However, although you have complied generally with your conditions of bail, your drug use during this period means that I cannot find that you have rehabilitated since the commission of this offending.  However, I accept that having this charge hanging over you for that period has been a source of anxiety to you.

34In sentencing you, I have regard also to the need for general deterrence, denunciation and just punishment.  Others in the community who engage in similar offending, should understand that they risk significant punishment.  Your conduct in allowing your property to be used for illegal purposes is to be denounced by this court.

35Since the sentence indication hearing, you were assessed for a community correction order.  A report from the Department of Justice has been provided to the court and you are considered suitable for such an order.

36The sentence I propose includes a community correction order.  Before I may place you on a community corrections order, I require your agreement.  The sentence I propose is as follows:

37You will be convicted and sentenced to a term of imprisonment of 32 days and placed on a community correction order with the following conditions:

·The order will last for two years, commencing 2 May 2024 and ending 1 May 2026. 

·You must attend at the Reservoir Community Correctional Services Office in Reservoir within two clear working days after the commencement of this order. 

·You must comply with any obligation or requirement prescribed by Regulation 15 of the Sentencing Regulations 2021. That means you must not attend at the Department of Corrections, or any other place where they direct you to attend, under the influence of drugs or alcohol.

·You must report to and receive visits from the Secretary or his or her delegate. 

·You must let a community corrections officer know within two clear working days of you changing your address or job.

·You must not leave Victoria, without first getting permission to do so from the Secretary or his or her delegate. 

·You must obey all lawful instructions from and directions of the Secretary or his or her delegate.  When I speak of delegate, I mean also a community correction officer. 

38In addition to those mandatory terms, you are also required to perform 150 hours of unpaid community work over a period of 18 months, as directed by the regional manager.

39I order will order that 40 hours of treatment and rehabilitation satisfactorily undertaken, are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.  If you fail to comply with this order, the Secretary to the Department of Justice or his or her delegate, may give you a direction to perform additional hours of unpaid community work in accordance with the provisions of the Sentencing Act 1991. 

40You must be under the supervision of a community corrections officer for a period of two years.

41You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager.

42You must undergo any mental health assessment and treatment and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager. 

43Mr Nguyen, do you understand the conditions that I have just read out that will attach to a community order?

44OFFENDER:  (Through interpreter) Yes I do, Your Honour.

45HIS HONOUR:  Do you also understand that should you breach the community correction order, you will be brought back before this court and you will be resentenced on the charge of intentionally permitting the use of your premises for cultivating a drug of dependence, and you will be sentenced for the breach of the order.  Do you understand the consequences of what may happen to you if you breach the order?

46OFFENDER:  (Through interpreter) Yes I do, Your Honour.

47HIS HONOUR:  Do you consent to being placed on the order on those terms?

48OFFENDER:  (Through interpreter) Yes I do, Your Honour.

49HIS HONOUR:  Very well, the community correction order to be made will be in the terms I have just read out to you.  

50To be clear, you are convicted and sentenced to a term of imprisonment of 32 days and you are to be placed on a community correction order on the conditions that have been read to you.

51Pursuant to s18 of the Sentencing Act, the period of imprisonment already served under this order is reckoned to be 32 days.

52Pursuant to section 6AAA of the Sentencing Act, had it not been for your plea of guilty, the sentence I would otherwise have imposed is one of nine months’ imprisonment. 

53HIS HONOUR:  Mr Andrianakis, does your client consent to that forfeiture order? 

54MR ANDRIANAKIS:  Yes, Your Honour, that's consented to the forfeiture of the two mobile phones.

55HIS HONOUR:  All right, I will make that order. 

56If there are no other matters, I will adjourn the court.  Thank you both for your assistance and to you too Ms Tran.

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