Director of Public Prosecutions v Nguyen
[2015] VCC 1854
•11 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01830
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NAM THANH NGUYEN |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2015 | |
DATE OF SENTENCE: | 11 December 2015 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1854 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of cultivating a narcotic plant, namely cannabis L, and one summary charge of dealing with property suspected of being the proceeds of crime -
Legislation Cited:
Cases Cited:
Sentence: Total effective sentence 12 months’ imprisonment together with CCO of 2 years -
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G Walton | Solicitor for Office Public Prosecutions |
| For the Accused | Mr C Nikakis | Haines & Polites Solicitors |
HER HONOUR:
1 Nam Thanh Nguyen, you have pleaded guilty to one charge of cultivating a narcotic plant, namely, cannabis L. The maximum penalty for that offence where the Court is not satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking in that plant, which is the situation in your case, is 15 years' imprisonment. In addition, to one summary charge of dealing with property suspected of being the proceeds of crime has been transferred to this Court pursuant to s242 of the Criminal Procedure Act 2009. You have pleaded guilty to that charge, for which the maximum penalty is two years' imprisonment.
2 The circumstances of your offending are summarised in the Prosecution Plea Opening (Exhibit “A”). The indictable charge arises from police having executed a search warrant on 8 April 2014 at residential premises owned by you at 8 Orville Street, Coolaroo (“the property”). They found that the house had been converted into a sophisticated cannabis farm, with a bypass of electricity, multiple power cables and electrical transformers, high watt globes, an irrigation system and plant nutrients. Inside the laundry, police located 49 cannabis seedlings, which weighed 79.6 grams. A further 60 mature cannabis plants, which weighed 7.2 kilograms, were growing inside two bedrooms at the back of the house. In addition, loose cannabis, which had been taken from plants, was found inside a bowl and inside a garbage bin. This weighed a total of 59.4 grams. Thus, the total number of plants was 109 and the total weight of cannabis found was 8.59 kilograms.
3 Police also located $9,050 in cash inside a Toyota HI Ace van parked in the driveway of the property. This vehicle was registered in your name. Also in the vehicle was your wallet, which contained bank cards, a driver’s licence and other identifying documents.
4 The prosecution submitted that, although it was unable to prove that you intended that a commercial quantity (100 plants or 25 kilograms) would be grown, you should be sentenced on the basis that the cannabis was cultivated for a purpose relating to trafficking. In this regard, I note that a traffickable quantity of cannabis is 250 grams or 10 plants. The scale and very sophisticated nature of the cultivation, in my view, is convincing evidence of a purpose relating to trafficking. As previously stated, where a Court is not satisfied on the balance of probabilities that the cultivation was not committed for any purpose relating to trafficking then, pursuant to s72B(b) of the Drugs Poisons and Controlled Substances Act 1981, the maximum penalty applicable to the offence is 15 years' imprisonment.
5 You are presently aged thirty-one years, having been born on 5 January 1984. You come before the Court with a limited prior history. On 24 August 2004, you appeared at Melbourne Magistrates’ Court on charges of robbery, attempted robbery and recklessly causing injury. Without conviction, you were sentenced to an aggregate fine of $2,000.
6 In a plea on your behalf, Mr Nikakis told the Court that you were born in South Vietnam. Your father had fled Vietnam in 1989 and resettled in Australia. In 1996, when you were aged fifteen years, he sponsored you to come to live in Australia. After arriving in Australia, you undertook English classes and then attended school until you completed Year 12 at Broadmeadows Secondary College in 2001. Thereafter, you started a course in robotics as Swinburne TAFE, but did not finish it, and later began a telecommunications course at RMIT, but did not finish it. Mr Nikakis stated that you had done a variety of unskilled labouring jobs picking fruit and vegetables in various areas in Victoria and in 2010 worked for a time installing pink batt insulation.
7 Mr Nikakis stated that, on 19 May 2010, you had purchased the property for $275,000, of which $245,000 consisted of a loan from the Commonwealth Bank. In response to my inquiry as to evidence of your earnings which would have enabled you to save for a deposit on the property and to convince the Commonwealth Bank that you had the ability to service a mortgage loan, Mr Nikakis stated that he had no evidence. He conceded that, other than the depositional material which showed that you did not file a tax return for any years other than 2004 and 2010, he had no information on your income. The only information he had concerning your work installing insulation was in the depositions, which indicated that you had started work with Nthome Insulation Services on 13 October 2009.[1] He was unable to say for how long that employment lasted or what your earnings from it were. He conceded, in accordance with the depositional material, that in 2011, 2012 and 2013 you were in receipt of a Newstart allowance.[2]
[1]Depositions, p 65
[2]Depositions, p 79
8 Mr Nikakis stated that you were remanded in custody for a period of 184 days from 16 June 2014 until you were granted bail on 16 December 2014 due to the delay in your trial getting on for hearing. You had initially been charged with the more serious offence of cultivating a commercial quantity of cannabis, as well as theft of electricity. A contested committal hearing was held on 15 October 2014 and, following a number of directions hearings, on 29 July 2015, the matter resolved into a plea to the two charges to which you have pleaded guilty. By reason of your plea of guilty, you are entitled to a discount on the sentence which would otherwise have been imposed. It is a utilitarian plea which has facilitated the course of justice and saved the time and expense of a trial, however, it was not submitted by your counsel that it is a remorseful plea and I find no evidence of remorse.
9 As far as the actual circumstances of offending itself are concerned, Mr Nikakis urged the Court to note that you were not living at the property, but had leased it to a cousin, Thuan Trung Tran, on 20 February 2014.[3] He pointed to photographs in the depositions which showed that police had located identifying documents for Mr Tran at the property.[4] This person has not been charged with any offence. Mr Nikakis pointed out that the fingerprints of an unknown person were found on lighting shrouds at the property. However, Ms Walton, for the prosecution, drew to the Court’s attention that, also, your fingerprints were found on those shrouds.
[3]Residential Tenancy Agreement, Depositions pp 29 – 30
[4]Depositions, p 190
10 The fact of the matter is that you owned the property and, less than two months prior to the police attending there, you had ostensibly leased it to someone else. However, there had been very significant alterations made to the property in order to install the infrastructure of lighting and watering for the cannabis crop. Sixty of the plants were mature and, in the context of your car being in the driveway (albeit with slashed tyres) and containing such personal items as your wallet, driver’s licence and other items of identification, it is not credible that you did not know what was going on in this house. Mr Nikakis submitted from the Bar table that you had discovered a few weeks before police arrived what was going on and tried to get it to stop, but did not do anything about it. I cannot accept that submission because there is simply no evidence upon which it is based. Mr Nikakis further submitted that the sum of $9,050 found inside your van had been earned by you “working for cash” as a handyman. Again, there is simply no evidence which I could accept as a foundation for such a submission. In any event, it is contrary to your plea of guilty to the charge of dealing with property suspected of being the proceeds of crime.
11 Mr Nikakis stated that you have a de facto wife and three children aged ten, eight and eighteen months. Your father and your de facto wife were in Court to support you. Apparently, there had been a period of marital separation at around the time of your offending and you were living at your father’s house, but Mr Nikakis stated that you are now reconciled with your family. He indicated that, since being released on bail in December, you had tried to obtain work but only recently managed to secure a job at Ocean Fresh Seafood in Melton. A letter from the manager of that business, Daniel Phan, dated 26 November 2015, stated that you had commenced there as a full time employee on 7 November 2015. A payslip for the period 22 November to 28 November showed a base salary of $700 per week and a total of $2,240 earned for the year to date. These documents were tendered as Exhibit “1”.
12 Ms Denise Aberdee was called to give evidence on your behalf at the plea hearing. She described herself as a forensic clinician, having been involved in various mental health and drug and alcohol services and also the Credit Bail Program over a number of years. She stated that another Vietnamese client referred you to her on 10 August 2015 and you had continued to see her every week since for counselling. She stated that she undertook drug and alcohol and mental health screening but that you had not disclosed any drug or alcohol issues. She said that you appeared depressed but she was not qualified to speak about clinical depression. She said she had “gone out of (her) counsellor role and gone into a case management role” by trying to help you apply for jobs or courses. She claimed that last week you came in with a big smile and told her that you had the job as a fish monger. She described your having obtained employment as “a huge factor”. However, under cross-examination, she stated that she had not understood that you had commenced the job yet, as you were waiting to find out the outcome of your court case. It was difficult to resile this evidence with Exhibit “1” and Mr Nikakis did not enlighten the court any further in relation to the discrepancy.
13 Ms Aberdee stated that you had told her that prison was “a terrible experience” because you missed your children and partner badly, but had said that it was karma and you deserved this “bad luck” because you did not “bring this situation to the notice of the police”.
14 Mr Nguyen, there really has been very little material put in mitigation of this serious offending. It seems that you are person who, since leaving school, has never finished a course and has what, at best, could be described as a patchy employment history. There is no evidence that you have worked with any stability or regularity over the last 10 years and the means whereby you have supported yourself remain unexplained. There is no suggestion that you suffer from a drug addiction which might have caused you to embark on this cultivation enterprise. There is really no inference able to be drawn other than that you must have undertaken it for sale and for financial gain. However, there is no evidence that this particular crop had been the subject of any sales prior to police executing the search warrant at the property.
15 I agree with the prosecution submission that this cultivation was highly organised, well-resourced and sophisticated. The electrical bypass (not suggested to have been done by you), the comprehensive irrigation, lighting, shrouds and illumination and nutrients had all been used successfully to produce a flourishing crop of cannabis plants. The quantity of plants makes it a serious example of the offence of cultivation. Drugs are a scourge on our society and emphasis in sentencing must be placed on denunciation of your conduct and general deterrence. In all of the circumstances, there can be no doubt that the only appropriate sentence is a term of imprisonment.
16 Mr Nikakis urged the court to impose a sentence which combined a term of imprisonment with a Community Correction Order. He submitted that the time already served by you in custody is sufficient to give effect to general deterrence and a lengthy Community Correction Order could give effect to other sentencing considerations. He urged that your defacto wife needs your support in caring and providing for your three children. The prosecution have conceded that a term of imprisonment, in combination with a Community Correction Order, is within the appropriate range of sentences.
17 Because of the dearth of material put forward on the plea, I really have little way of assessing your prospects of rehabilitation. Ms Aberdee stated that she did not detect that you had any drug or alcohol abuse issues. The assessing Community Corrections Officer reported that no treatment needs were identified and that you had no history of any mental health concerns. Your prior criminal history is very limited and a long time ago. I accept that you have found imprisonment traumatic and you miss your family. You are thirty-one years of age and it is high time that you applied yourself to earning an honest living to support your family. For this reason, it seems to me that you will need considerable support when you are released from prison and I consider that a Community Correction Order to try to assist you to become a productive, employed member of society is in your interests and in the best interests of society. I am mindful that you will already have served a punitive component of your sentence by being incarcerated for what I consider to be the appropriate period of 12 months, so I consider that only a modest amount of the punitive element of the Community Corrections Order, unpaid community work, should apply. However, it is appropriate that you be under supervision for the period of the order
18 On the indictable charge, Charge 1, cultivation of a narcotic plant, cannabis L, you are convicted and sentenced to be imprisoned for a period of 12 months together with a Community Correction Order of two years. On the summary charge, Charge 2, dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to be imprisoned for a period of two months concurrent with the term of imprisonment imposed on the indictable Charge 1.
19 I declare a period of 194 days’ pre-sentence detention be reckoned as time already served under the sentence imposed this day.
20 The terms of the Community Correction Order are as follows:
(a)You must not commit whether in or outside Victoria during the period of the order an offence punishable by imprisonment;
(b)You must comply with any obligation or requirement prescribed by the Regulations;
(c)You must report to and receive visits from the Secretary during the period of this order;
(d)You must report to the Community Corrections Centre specified in the order within two clear working days after the order coming into force;
(e)You must notify the Secretary of any change of address or employment within two clear working days after the change;
(f)You must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(g)You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
21 In addition to the terms, the following conditions apply:
(1)You must perform 150 hours of unpaid community work;
(2)You must be supervised, monitored and managed as directed by the Secretary for the period of the order;
(3)You must undertake any programs to address your offending behaviour as may be directed by the Secretary.
22 Mr Nguyen, I cannot make this order unless you agree to it. Do you consent to an order with the terms and conditions which I have just read out?
PRISONER: I agree, your Honour.
23 You must understand that, if you breach this order without a reasonable excuse, you will have committed another offence which carries a penalty of three months' imprisonment. Should that occur, you may be brought back to Court for contravening the order and it is possible that the existing Community Correction Order may be cancelled and you may be ordered to serve a further term of imprisonment.
24 Pursuant to s78(1) of the Confiscation Act 1997, I order forfeiture to the State of the property referred to in the Schedule I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
25 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider that this order is warranted by reason of the seriousness of the circumstances of the offending. Mr Nguyen, you need to understand that if you do not consent to the taking of a scraping from the mouth, then the police are entitled to use reasonable force to enable that forensic procedure to be conducted.
26 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for you plea of guilty, the sentence imposed would have been four years' imprisonment with a non-parole period of two years.
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