Director of Public Prosecutions v Nguyen

[2016] VCC 451

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-02149

DIRECTOR OF PUBLIC PROSECUTIONS

v

BA SINH NGUYEN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	10 and 31 March 2016
DATE OF SENTENCE:	18 April 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 451

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Cultivate cannabis – Traffick cannabis – Theft – Deal with property suspected being proceeds of crime – Uncertainty surrounding role in respect of crop house – Deportation inevitable, although not relied upon as hardship

Legislation Cited:     Drugs Poisons and Controlled Substances Act 1981

Sentence:Convicted and sentenced to Total Effective Sentence of 10 months’ imprisonment – Pre-sentence of 236 days declared – s.6AAA Sentencing Act declaration – Ancillary orders – Disposal, Forfeiture, Compensation and Forensic Sample Orders made

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Solicitor for Public Prosecutions
For the Accused	Ms L. Papadinas	Representation through Justice Connect

HER HONOUR

1Ba Sinh Nguyen, you have pleaded guilty to one charge of cultivating cannabis, one charge of trafficking cannabis, and one charge of theft, as well as one summary charge of dealing with property suspected of being proceeds of crime.  The first two charges have a maximum penalty of 15 years' imprisonment, while theft has a maximum penalty of ten years' imprisonment, and dealing with property suspected of being proceeds of crime, has a maximum penalty of two years' imprisonment.

2Your offending was opened by the prosecution as follows:

3By way of background, I was told that you are now 34 years old.

4You arrived in Australia on 6 February 2013 as an overseas student.[1]

[1]ROI (p234, Q55)

5By October 2014, your course attendance was under 80 per cent and you were in breach of your student visa attendance requirements.  TK Melbourne Education and Training College advised you that they would be notifying the appropriate Government agency.[2]

[2]Letter from Susanne Forgan (p.115)

6On 22 November 2014, you, together with three other people known as Dau, Le and Duong, signed a lease agreement concerning a property at
122 Wimbledon Avenue in Mount Eliza.[3]

[3]Exhibit 1 (p.78)

7The lease agreement commenced on 26 November 2014, with a rent of $330.00 per week.  You indicated that you worked part-time in sales, with an income of $2,000 per month, and additional family support of $24,000 per annum.

8You did not live at this address.

Offending

9On Wednesday 26 August 2015, at about 10.15 am, police executed a Drugs Poisons and Controlled Substances Act 1981 search warrant at the address in
Mt Eliza.  Police forced the entry, as no one was home at the time.

10Inside the house, police found cannabis plants in different stages of maturity within four rooms.  These rooms were dedicated to the cultivation of cannabis and were fitted with complex hydroponic growing equipment.

11The plants were found growing under lights and hydroponic watering systems, which were operating at the time. [4]

[4]Statement of Constable Megan Zurek (p.21)

12These plants were subsequently examined by a botanist on 31 August 2015. [5]

[5]Certificate of Susan Elizabeth Fidian dated 4/9/2015 and statement dated 27/11/2015.

13In Room 1, police found 15 cannabis plants and three garbage bags containing cannabis leaves.[6] 

[6]Exhibits 2 and 3, photographs 15, 16, 36

14In Room 2, police found 16 plants. [7]

[7]Exhibit 5, photographs 29-31

15In Room 3, police found 43 cannabis plants and eight bags containing  cannabis leaves.[8]

[8]Exhibit 10 and 15, photographs 34, 38

16In Room 4, police found 14 cannabis plants, one bundle of dried stalks, and one bag containing cannabis leaves.[9]

[9]Exhibit 16, 20 and 21, photographs 63-69

17In total, 89 cannabis plants were seized from the premises.  The plants weighed 32.27 kilograms.  This gives rise to  Charge 1, cultivating a narcotic plant.

18These plants were in a wilted condition and were immature.  Forty three of the plants measured about 20 to 36 centimeters in height and were slender to slightly bushy.

19The other 46 plants measured about 60 to 76 centimeters in height and were slightly bushy female plants.  Leaves and flowering heads constituted approximately 15.3 kilograms.  This would equate to an air-dried weight of about 3.8 kilograms, if the plants had been fresh at the time of examination.  However, as they were in a wilted condition, the botanist expected their leaves and flowering heads to lose less than three-quarters of their weight when they dried, resulting in an air dried weight in excess of what was referred to previously.

20The larger plants, along with the 43 smaller plants, would have increased considerably in weight had they grown to maturity, resulting in an increased yield of leaves and flowering heads.

21The larger plants had been growing for about seven to ten weeks and were in the post-nursery phase, while the smaller plants had been growing for between three and four weeks, also in the post-nursery phase at the time that the police seized these. 

22The total weight of the dry cannabis was 996.1 grams.  This consisted of fragmented leaves and female flowering heads.  This gives rise to Charge 2, trafficking in a drug of dependence.

23Police also seized cannabis mixed with material that could not be identified, due to its potentially hazardous condition.  The mixture was located in 11 garbage bags and had a total weight of 32.05 kilograms.  It included leaves and harvested stems, some of which appeared to be moldy and partly burnt.[10]

[10]Photograph 63, 64

24The mixture of cannabis and other material that was not identified, weighing 10.94 kilograms, included harvested stems and branches in a dried condition.

25Police also seized from the address numerous items associated with the cannabis cultivation, including transformers, light globes, light shrouds and hydroponic chemicals.

26Your fingerprints were found on a plastic container and on a power box junction.[11]

[11]Exhibit 42 (p.109)

27An illegal electricity by-pass, which was found under the roof tiles of Room 3, was operating.[12]  This gives rise to Charge 3, which is the charge of theft.

[12]Statement of Constable Megan Zurek (p.21)

28The total amount of the theft is $13,878.52.[13]

[13]Statement of Ben Mack dated 7 January 2016.

Arrest and Interview

29At about 5.15 pm, you attended the address and drove your car into the driveway.  You were found in possession of the keys to the front door of the house, two mobile phones and a number of receipts for various fertilisers.[14]

[14]Exhibit 38 (p.104)

30You were also found to be in possession of $860 cash.  This gives rise to the summary offence of dealing with property suspected to be proceeds of crime.

31You were arrested and taken to the Mornington Police Station.  A record of interview was conducted and some of the answers which you gave were as follows:[15]

[15]Record of Interview (pp.226-245)

32You told police that you rented the house with some friends, but that you were not living there.  (Question 63)

33You could only remember one person named Thanh.  (Question 77)

34You did not know what was going on in the house.  You said, “I just went there for fun, I don’t know.”  (Question 88)

35You said, “I don’t know” when the police asked you about your belongings being found in the house.  (Question 96)

36You said that a friend named Hung gave you the notebook with the names of chemicals and receipts.  (Question 108)

37When you were asked about the cultivation of cannabis and theft of electricity, you answered, "No comment."  (Questions 103, 106 and125)

Charge History

38You were charged with the offences on 26 August 2015 and remanded in custody, where you have remained ever since.

39These matters resolved at the committal mention on 2 December 2015.  You made an application for summary jurisdiction, but that was refused.

40Mr Nguyen, your offending is serious.  It involved significant quantities of cannabis, having regard to the threshold weights for cultivating a commercial quantity and trafficking cannabis.  You cultivated cannabis in excess of the commercial threshold, however I do not sentence you for the more serious offence, as it is not said that you had the necessary state of mind to prove this offence.  However, the fact that the weight of the cannabis which you cultivated exceeded the threshold for commercial quantity, indicates that this is a serious example of cultivation.  

41Having said this, I also factor in that the plants growing were not in an advanced state, although there was evidence that some harvesting had already occurred. I was assured by the prosecutor that the trafficking charge did not overlap with the cannabis cultivation charge.  It was accepted by your counsel that you were in possession of the cannabis which related to the trafficking charge for the purposes of sale.

42Your counsel said that you had become involved in this enterprise after meeting some fellow gamblers at Crown Casino, and that you acted out of a need for financial gain to pay off mounting debts, and because of social pressures from these people.  She submitted that you played the role of a crop sitter, but the Crown submitted that your role was higher than that.  In the end, I am unable to make a finding as to your precise role in this crop house, apart from a finding that you played an active role in the cultivation of the cannabis, and that you stood to derive a financial benefit from this.  As to whether you stood to gain as a principal or as an underling is not clear.

43On any view, your offending is serious and deserving of a punishment which is just in all of the circumstances and your offending must be denounced.  Strong weight must be given to general deterrence in a bid to deter others from offending as you have.  It is well recognized that cannabis can do a great deal of harm to those who use it and is also a gateway drug which often leads vulnerable people in our community down a path of drug-taking
self- destruction.  Their families and the community are also usually impacted by this.  

44You were not drug-addicted yourself.  I was told that you needed some money for your gambling debts, having come to Australia to try to make a better life for your family.  I was also told that you were able to afford a return trip to Vietnam in May 2014, but that after this, your financial situation went downhill due to gambling.  I have no material before me in respect of your financial status or problems with gambling, but you have told your counsel that you intend to address your gambling issues at some stage down the track.

45In all of the circumstances, I regard your moral culpability as high.

46To your credit, you entered pleas of guilty to the offences at the committal mention stage, and you are therefore entitled to a fairly significant discount in the sentence that you would otherwise receive, as you have saved the witnesses the time and trouble of giving evidence, and you have saved the community the time and expense of running contested proceedings.  I accept that you are remorseful for your offending, insofar as it has affected you, but
I am not so convinced that you have remorse or insight in respect of the damage that your offending could cause to others.  However, I accept that you feel ashamed of what you have done.

47You have no prior convictions and you have the ability to work in honest occupations.  You were working in an hotel in Vietnam for a number of years before coming to Australia and you have qualifications in speaking French, which is something you can use in the future to help secure employment.  I was told that you are eager to return to Vietnam, where you will try to return to your former job at the hotel.  While studying here, you also worked as a farm hand for a period of time.

48I take into account your background, which was set out in your counsel’s written submissions and she referred to this in the course of her plea.  You were born in Da Nang in Vietnam and your parents are very hard-working business people in the fresh produce trade.  You are married with two children.  Your family lives in Vietnam, although your wife has been out to visit you whilst you have been in gaol.  She stayed here for a few months, but she has since returned home.

49You were a bright student and have a degree in Linguistics from the University of Da Nang, where you majored in French.  You came to Australia to study English, but it appears that this pursuit did not last very long.  You have undertaken some English courses whilst on remand.

50I was told by your counsel that you have been suffering from recurring headaches, which were akin to migraines, and that these headaches had plagued you for a good deal of your life.  You have received medication for these while you have been in custody, although this has been problematic, as you usually suffer these at night when you are in lockdown and only receive medication the next morning.  I was told that you are extremely depressed and anxious about your present situation.  In the absence of any expert opinion about this, I can only accept that these are not formally diagnosed conditions, but I accept that you are experiencing lowered mood and that you are anxious about your situation.

51I take into account that this is your first time in gaol and that because of this, as well as your sense of isolation and your lowered mood and anxiety about your situation, as well as your headaches, that time in custody has been and would be more difficult than would otherwise be the case.

52In view of your lack of prior convictions, your experience of gaol, your sense of shame and your willingness to take responsibility for your offending, as well as your formal skills and strong work ethic and plans for the future, I find that you have good prospects of rehabilitation and I that I only need to place limited weight on specific deterrence.

53It is inevitable that you will be deported after you are released from gaol.  This was not relied on as a hardship, as you are looking forward to going home.  It is conceded by your counsel that an immediate term of imprisonment is appropriate, but her primary submission is that you ought be sentenced to the time in gaol that you have already served.  Her secondary submission was that you ought be sentenced to a straight term of imprisonment, in view of your impending deportation once you are released.  The Crown submitted that the time you have already served is within the range, although the prosecutor submitted that I might consider that a greater term of imprisonment was warranted, in view of the seriousness of the offending.

54I have considered the submissions of your counsel and those of the prosecutor.  I have come to the view that, in view of all the matters put to me, and considering the weight that I must attach to all relevant sentencing principles, as well as considering the sentencing snapshots provided and having regard to current sentencing practice, that you ought serve a further term of imprisonment, but that this will not involve a non-parole period, such that you will not have much longer to serve.

55Would you please stand up.

56You are convicted of each of the offences.

Ancillary orders

57I make an order for a forensic sample to be taken from you, by way of a scraping from the mouth.  I make the order because it is not opposed by you, because of the seriousness of the offences, and because it is in the public interest to do so.  I warn you that if you do not co-operate with the officer who is authorised to take the sample, reasonable force may be used to ensure your compliance.  When I talk about a scraping of the mouth, it is simply a procedure of using an item, like a cotton bud to get some saliva from your mouth.   

58I also make a disposal order and a forfeiture order in the terms set out in the documents handed to me, and I make a compensation order in respect of the electricity you stole and such order involving payment to Origin Energy.  These orders are not opposed by you.

59You are sentenced to the following terms of imprisonment:

60Charge 1, nine months' imprisonment;

61Charge 2, three months' imprisonment;

62Charge 3, two months' imprisonment;

63The summary charge of dealing with property suspected of being proceeds of crime, one month imprisonment. 

64I direct that one month of the sentence on Charge 2, be served cumulatively with the sentence on Charge 1, so that is one month in addition to the nine months', but that otherwise, all sentences are to be served concurrently.  This produces a total effective sentence of ten months' imprisonment.  So the total sentence is ten months' imprisonment. 

65I declare that you have already served 236 days, which will be deducted from the ten months', as I declare it as having already been served by way of
pre-sentence detention.

66If not for your pleas of guilty, I would have sentenced you to a total effective sentence of three years' imprisonment, with a non-parole period of 18 months'.

67Yes, thank you.  Take a seat for a moment please.

68Is there anything arising? 

69COUNSEL:  No, Your Honour.

70HER HONOUR:  Now, did you need a moment to speak with your client, before he is taken to the cells, or not?

71MS PAPADINAS:  I will go down and see him.

72HER HONOUR:  All right.  Will the interpreter be available to attend at the cells? 

73MS PAPADINAS:  Yes, Your Honour.

74HER HONOUR:  Yes, Ms Hong?

75INTERPRETER:  Yes, Your Honour. 

76HER HONOUR:  Thank you very much.  All right, if you might remove the prisoner.  Yes, thanks Ms Hong.

77INTERPRETER:  Thank you, Your Honour.

78HER HONOUR:  Thank you, Counsel.  We will now adjourn.

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