Director of Public Prosecutions v Nguyen
[2015] VCC 1368
•11 September 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 14-02119
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAI NGUYEN |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 September 2015; 11 September 2015 (for further plea and sentence) |
| DATE OF SENTENCE: | 11 September 2015 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1368 |
REASONS FOR SENTENCE
---Subject: Sentencing; cultivate cannabis; theft of electricity
Catchwords: Plea of guilty
Legislation Cited: Sentencing Act 1991 s 44; s 6AAA
Cases Cited: R v Verdins[2007] VSCA 102
Sentence:Charge 1: 13 days imprisonment followed by CCO for 2 ½ years, unpaid community work and assessment and treatment; Charge 2: CCO for 6 months with community work, partially cumulative.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper (on plea) Ms L. Stevenson (at sentence) | OPP |
| For the Offender | Ms E. Turnbull | Emma Turnbull Lawyers |
1HER HONOUR: I am in a position to sentence Ms Nguyen. You can remain seated, Ms Nguyen, until I tell you that I require you to stand.
2Mai Thi Nguyen, you have pleaded guilty to one charge of cultivating a narcotic plant, namely cannabis, and one charge of theft of electricity.
3The maximum penalty for the cultivation of cannabis is 15 years' imprisonment, and for theft it is 10 years' imprisonment. Although you will not be receiving a sentence anywhere near that severe, those respective maximum penalties indicate the relative seriousness with which parliament regards offences of this nature, and I have taken them into account as doing so.
4These offences occurred over a two‑and‑a‑half‑month period. Between 17 April 2014 and 3 July 2014 you were staying at a house at 24 Canberra Grove Lalor tending to the growing of cannabis plants under a hydroponic system. Although it is not suggested that you set up the growing arrangements or owned either the plants or equipment, the house at those premises was leased in your name and the electricity account was in your name.
5When police executed a search warrant there on 3 July 2014 they found many items identifying you, evidence that you stayed there, and no evidence that anyone else was staying there. They found five rooms in the house contained sophisticated hydroponic setups for the growing of cannabis. A total of 80 plants at various stages of development with a combined weight of 77.826 kilograms were found.
6A botanist examined the plants and estimated the age of the oldest plants to be between 11 to 13 weeks, so the period of the cultivation was estimated based as set out in the charge, that is between 17 April and 3 July, based on the age of the oldest plants. Photographs taken indicate that there were advanced plants but also some much smaller ones, indicating a planned growth cycle for a continuing crop.
7Charge 1 is of cultivating a narcotic plant. Although the weight of plant material found was more than three times the threshold amount for commercial quantity of that narcotic plant by weight, the charge brought against you is for cultivating cannabis and not for cultivating a commercial quantity.
8Police also found an electrical bypass in the roof of the house which allowed for unmetered electricity to flow throughout the house, and that was undoubtedly to power the fans and lights and any other equipment associated with the cannabis crop. The photographs show a considerable number of transformers and exhaust fans in place. Representatives from SP Ausnet and Electrical Inspections Victoria attended the scene and disconnected the power. The company to which the cost of power should have been paid was Red Energy Pty Ltd, and there was evidence of unbilled consumption of electricity during the cultivation period. There has been no estimate of the value of the stolen electricity put before me. Those are the circumstances giving rise to Charge 2, theft of electricity.
9No one was present when police executed a search warrant at the house on 3 July 2014, but a number of items identified you as staying there, including a driver's licence, a passport, and documents including your citizenship certificate and tax receipts. Further, a car registered in your name was found parked in the driveway. The documents found there led police to your home address where you were arrested.
10During a video recorded interview you answered "No comment" to allegations of cultivating cannabis. You did this after obtaining legal advice, as was your right. You did admit to police that you were the only person living in the house and that you had been renting it since February 2014. You also told them that the rent for the property was approximately $1,300 per month which was directly paid into the landlord's account. It was not clear the source of those funds as you were not receiving Centrelink payments and did not have a job, and there was no explanation for how the rent could be paid.
11The basis for your plea of guilty, accepted by the prosecution in this case, is that you were an employee of the arrangement, minding and tending the crop, and that you did not have a proprietary interest - that is any ownership - in the cannabis being grown or the hydroponic equipment.
12Objectively viewed, this was cultivation of cannabis at a relatively serious level for the charge, that being the charge of cultivating cannabis and not cultivating a commercial quantity of cannabis. In reaching that view I take into account the sophisticated hydroponic arrangement extending over five rooms, and apparently that being the apparent purpose for which the house was rented. Further, the plants found were at varying stages of development, indicating that there was planning in the plantings and in the overall cultivation. Nevertheless, as it is accepted that you were minding it, and had not planned or set it up, your level of culpability would not extend to that level of seriousness.
13You were apparently approached at a party by some people you had not met previously and were offered money if you would agree to become involved in looking after a cannabis crop. Your lawyer says that you understood that you were to be paid a percentage of the sales profits from the cannabis, or at least an amount based on the success or otherwise of the crop. I have not been told how much money you expected to receive. Whether or not you were naive about that, it is clear that your motivation was to be paid money, and it is not suggested that you were under any particular pressure to agree. It is clear that you were involved from the commencement of this operation, because the lease of the house and electricity account were in your name.
14I accept that your role was as a minder of the crop and for that you were left instructions on how to maintain the plants. You did not plan or set it up, but without someone performing your role a crop such as this could not reach maturity to be harvested so the role should not be regarded as minor. There was no effort made to disguise your involvement. I assess your role at a medium level of seriousness for these offences.
15You have pleaded guilty to these charges and are entitled to some leniency in your sentence for doing so. I am told that you agreed to plead guilty to these charges on 9 June this year, which had been fixed as the first day of the trial. Although that cannot be said to be a plea made at the earliest opportunity, the prosecution accepts that there was a much earlier offer made to plead guilty to the charges now before me. In other words, the issue was whether Charge 1 should be as to cultivation of a commercial quantity of cannabis, and the prosecution ultimately did not pursue that more serious charge.
16Your plea of guilty can be taken to have the utilitarian value of saving the community the time and cost of a disputed trial, and as an acknowledgment of responsibility for the offences by you. I accept that in your case it also reflects some remorse. I shall tell you after I have sentenced you what the sentence would have been had you not pleaded guilty.
17I turn now to your personal circumstances and history.
18You are now aged 29. You were born in Hong Kong and came to Australia at the age of three with your parents and siblings. You are the youngest of four children, having two older brothers and an older sister. You became an Australian citizen as a young child at an age you do not recall. You attended school but left after Year 10. You apparently had difficulties in high school both with your studies and personally. I have read that when aged 16 you had suffered a serious incident which considerably destabilised and undermined your sense of yourself. Nevertheless you clearly had problems before then as you had started using marijuana you say at about age 14, and also had been drinking alcohol, having been exposed at home to your father's alcohol problems. You apparently engaged in binge drinking from your teenage years and were drinking alcohol daily as well as smoking cannabis.
19You did have various jobs over the years after leaving school. You worked for some years as a nail technician in your sister's beauty salon which still runs, and where I am told your mother still works part‑time. You have also worked in various jobs called "pick and pack" and are currently working at such a job at Jalna Yoghurts. My impression is that since you left school you have floated between jobs and have not settled into any stable occupation.
20I am told that in approximately 2010 you commenced a friendship and then a relationship which continues with Mr Chimm, who has been in court to support you. His sister has written one of the several character references that I have read. I am told that he has no criminal record, is studying and is a stable influence for you. I note that you are reported as still struggling with your moods, especially anger, and that your anger has been directed towards Mr Chim at times, although none of the authors of character references tendered mentioned knowing of your anger moods.
21I am told that Mr Chim describes you during the period leading up to your offending as having increased angry moods as well as drinking heavily and smoking cannabis, often going on benders, especially at parties. He obviously knew all of these aspects of your habits but none of the others close to you did.
22You say that it was at one of these parties that you were approached and offered monetary reward to mind a cannabis crop.
23Following your arrest on the day the crop was found by police, you were remanded in custody having been charged with cultivating a commercial quantity of cannabis. I am told that this was your first contact with the criminal justice system. You spent 13 days at Dame Phyllis Frost Centre, which was a very salutary experience for you. Your vulnerable personality and mood and inexperience of such a place I am told led you to being stood over by some other prisoners. I am told that you spent most of the time on your own whilst you were there, and that indeed you spent a considerable amount of time there crying.
24You were then bailed to live at your sister's house where you have been living with her and her husband, and their young child. Your boyfriend has also been living there.
25Since then you have made what your lawyer describes as a spectacular effort towards your own rehabilitation. Given your history I accept that you have taken very considerable steps towards your rehabilitation although in the context of the cases I see I would not put it as high as spectacular. It is argued on your behalf that there is little more that you could have done to show that you have learnt your lesson and do not intend to offend again.
26You attended your general practitioner in August last year, that is in the month after your release from custody. Your GP created a mental health care plan for you and by September you were in treatment with a psychologist, Ms Maria Fedele. An attendance report from Ms Fedele outlines that you attended a total of 10 sessions under a mental health care plan between 17 September last year and 22 April this year. It outlines that you wanted to attend for further sessions but were ineligible for further bulk billed sessions during the first 12 months. On my calculation a further plan could be put in place now if it were considered appropriate by your doctor.
27Ms Fedele considered that you presented with anxiety, depression, anger management issues, relationship issues, past childhood abuse issues and alcohol misuse issues. In the later sessions you presented with stress and a worsening of your depression and anxiety due to the upcoming trial, which I take it at that stage was still for the charge of cultivating a commercial quantity of cannabis.
28Your sessions with Ms Fedele are described as involving various types of psychological counselling, and by the end you were reporting no issues with alcohol. I am told that you also presented of your own accord at Caraniche Drug and Alcohol Service. A letter confirms attendances on 19 or 20 individual counselling sessions between September last year and May of this year, the last being reported both as an attendance and non‑attendance; that is why I say 19 or 20 sessions. I am told that you are still engaging in counselling there and that you wish to continue to do so.
29I am also told that you say that you have not touched cannabis since the day you went into custody and are determined never to go back there, that is back to prison, and to make the effort to remain free of such drug use.
30I am also told that you have over the last year made considerable efforts to improve your prospects of employment. You undertook a Microsoft Excel course for which I have seen a certificate. You also undertook training for spiritual development at a reiki centre. Further, for the first six months of this year, you undertook a course at Melbourne Polytechnic being Certificate IV in Accounting which has now concluded. I am told that you recognise that obtaining work directly in the accountancy field may well be difficult for you with these charges on your criminal record, but that this course was also undertaken overall in an attempt to improve your various employment or occupational skills. You have also obtained this year an Australian Business Number and registered a Domain name from which website you were hoping to establish a business of selling candles.
31Whilst these aspects of further qualifications and occupation are in their very early stages, I have been provided with material that reflects that you have recognised the need to try to establish yourself in a stable income earning occupation.
32I have also read a number of personal references about you from family members and friends, most of whom have known you for a considerable period, and also one from a fellow mature age student you have met this year in your accountancy course. All of the references describe being shocked at learning of your offending and believing it to be out of character for you. Referees talk of you being kind and attentive to friends. Some of them talk about your willingness and trustworthiness in minding young children, including the references from your sister and from your brother‑in‑law.
33None of the references, including those from people who have known you a very long time, mention that you have been using cannabis since the age of 14; none mention any knowledge of your abuse of alcohol. Ms Turnbull on your behalf accepts that none of the references refer to any knowledge of those matters or your other difficulties, but submits that this is consistent with the assessment for the mental health care plan stating that you have difficulties disclosing matters to your family. It is also submitted that you have kept up a facade over many years to hide these matters from those close to you. I am told that your sister, brother‑in‑law, and at least some of the others, now know of this background and all know why you are before the court on these charges.
34It is not suggested that your underlying mental health vulnerabilities or conditions enliven what are known as the principles in Verdins' case in mitigation of your sentence. What is submitted on your behalf is that after experiencing 13 days in prison on remand for these charges, you have been shocked and motivated into turning your life around. You are now in your late 20s and are seriously addressing what have been long‑standing issues with abuse of cannabis and alcohol and underlying mental health conditions that previously you kept hidden from family and friends, except presumably from your boyfriend. The experience of 13 days in custody is therefore said to have been very salutary to you, and that that has been the catalyst for you to bring about change in your life.
35I am urged to impose a non‑custodial sentence, at least from here on, which will enable the rehabilitative steps taken so far with some success to continue. The positive progress so far is also relied upon as reducing the need for specific deterrence as a sentencing factor in your case, that is reducing the need to deter you from further offending.
36Although you have no prior criminal history your lawyer appropriately refrained from relying on what would otherwise have been able to be regarded as good character, given your disclosure of very long‑standing illegal use of cannabis.
37The prosecution submits, and your counsel concedes, that general deterrence is of significance in a case such as this. That means that there is the need for your sentence to send the message to others tempted to engage in this type of offending, that it will attract serious punishment.
38The prosecution submits that although most of the reported cases deal with the more serious level of offence of cultivation of a commercial quantity of cannabis, the extent of the cultivation in this case puts it at a relatively high end of seriousness for the offence with which you are charged, that is cultivating cannabis simpliciter. The maximum penalty reflects that this is still a serious offence, that maximum penalty being 15 years' imprisonment.
39The prosecution submits that based on past authorities this would be a level of offence warranting a sentence of imprisonment to adequately bring about general deterrence. However, since the Court of Appeal decision in Boulton and the flexibility that case has emphasised in addressing of sentencing factors with a Community Corrections Order, it is conceded by the prosecution that provided the terms of a Community Corrections Order were of sufficient duration and severity such an order would be a sentencing option available in your case.
40I requested a pre‑sentence report on your suitability for a Community Corrections Order. You have been assessed as suitable, with recommendations for extensive conditions of rehabilitation and treatment as well as supervision and community work. I note that on the risk assessment tool applied by Community Corrections Services you have been assessed at being at medium risk of reoffending.
41As I have already stated, in my view this is an instance of cultivation of cannabis where the extent of the cultivation put it at a relatively serious level, even taking into account that your role was at a less culpable level as a minder of the crop. It is in my view still necessary for general deterrence and the need for just punishment to be given importance as sentencing factors in this case.
42Further, although the value of the electricity stolen has not been put before me, either as agreed, or even as to its possible range, and there is inadequate material on which I could make an estimate of that, I regard the sophistication of the system and the amount of equipment which was operating over the 10 to 11 weeks of the cultivation period as indicating that the theft was not insignificant in its extent.
43A very significant factor in my view in this case is that you have served a short time in custody. I accept that that was a particularly salutary experience for you. Even that short period can convey general deterrence in your sentence. It does seem to have motivated and galvanised you into taking positive steps to address what were apparently long‑standing issues for you, and impressed upon you the need to establish yourself more stably and in a steady occupation for the future.
44Given the concession by the prosecution that a Community Corrections Order of significant duration and penalty component could satisfy sentencing factors in this case, while also promoting your rehabilitation, I have decided that a Community Corrections Order will be the penalty from this point onwards, but I do intend to incorporate the relatively short time spent in custody when you were on remand.
45In fixing the total number of hours of unpaid community work as the penalty component, I have taken into account the need for some cumulation to reflect the second charge of theft which involved a separate although connected offence against the electricity supplier.
46Would you stand up now, please. Mai Thi Nguyen, on the charge of cultivating cannabis you are convicted and sentenced to 13 day's imprisonment to be followed by a Community Corrections Order of two and a half years' duration. I declare 13 days of presentence detention as reckoned served and direct that that be recorded in the records of the court. That means that you will not need to serve any further time in prison under this sentence.
47The conditions of the Community Corrections Order on this charge will be, first, unpaid community work of 250 hours; supervision, that you must submit to assessment and treatment as directed for drug use for cannabis, also for alcohol abuse, and for mental health conditions.
48On Charge 2, theft of electricity, you are convicted and sentenced to a Community Corrections Order for six months' duration with the single condition that you perform 100 hours of unpaid community work.
49I direct that the duration of the two Community Corrections Orders be concurrent but that 50 hours of the community work imposed for Charge 2 be cumulative on the amount of community work imposed for the sentence on Charge 1. That means in effect the total duration will be two and a half years of the Community Corrections Orders, with a total of 300 hours of unpaid community work, but I have divided it between the two charges to reflect their relative seriousness.
50In addition, on both of those Community Corrections Orders, all of the usual terms of a Community Corrections Order apply. I know those will have been explained to you during the assessment, but I will repeat them briefly here.
51First, you are to report within two clear working days to the appropriate Community Corrections office. I think that was Greensborough, and the address will be on the order that you will receive. That will be produced by the computer as saying you must report by 4 pm on next Tuesday. Even though there is an argument about whether that is two clear working days, I suggest you report by 4 pm next Tuesday to overcome the need for the argument. In addition, you must accept visits from Community Corrections officers, and you must obey all lawful directions of Community Corrections officers. You must notify Community Corrections officers of any change in the address of where you are living or of where you are working within two clear working days of any change of address occurring. You must not leave Victoria, the State of Victoria without first obtaining permission from Community Corrections officers, and most importantly, you must not commit any other offences throughout the duration of the Community Corrections orders.
52As I have said, in addition to the unpaid community work, the conditions on the first CCO are of supervision, and assessment and treatment as directed for cannabis use, for alcohol abuse and for mental health issues. Do you understand the terms and conditions of those orders?
53OFFENDER: Yes.
54HER HONOUR: Do you agree to comply with them?
55OFFENDER: Yes.
56HER HONOUR: In addition I make an order for a forensic sample to be taken from you. This is to enable your DNA to be taken so it can be placed on the state's database. I confine that order to a scraping from the mouth. The reasons I make the order are the nature of the offending under Charge 1 and that the order was unopposed. I inform you, as I must, that if you resist the taking of the sample police may use reasonable force to obtain the sample. However, as I am confining it to a scraping from the mouth, that is not too intrusive. It is the rubbing of a swab on the inside of your cheek in your mouth, and there should not be force needed unless you resist.
57Finally, I am required under s.6AAA to state what your sentence would have been if you had not pleaded guilty but been found guilty of these same charges by a jury. That is as usual an artificial decision for me, but doing the best I can, I state that but for your plea of guilty I would have imposed a term of 18 months' imprisonment on Charge 1, six months' imprisonment on Charge 2, with two months of that cumulative, making a total effective sentence of 20 months' imprisonment with a non‑parole of 12 months.
58You can take a seat while I check that the terms of those orders are understood while the CCOs are produced, and also to check if I have left out anything.
59Is there anything I haven't covered?
60COUNSEL: No, Your Honour.
61HER HONOUR: Ms Turnbull, you looked surprised at something I said earlier. Did I misstate any aspect of it?
62MS TURNBULL: No, Your Honour, I have bad hearing and I was trying to catch Your Honour.
63HER HONOUR: No, I understand the bad hearing issues. I just thought I was loud enough, but I was trying to differentiate the Charge 1 from the alternative charge that I understood was the original charge brought. I'll just check the order that should be produced, the community Corrections order part of it.
64MS TURNBULL: Your Honour, can I just raise one matter. Neither my friend or I have any experience with the Corrections orders being structured the way that Your Honour's done it in terms of concurrent hours. I'm not suggesting that Your Honour has done anything incorrect, because I can't find anything in the Act to suggest otherwise.
65HER HONOUR: I have done some others relatively recently, and we have had to be careful on how, and make clear on the order under ‑ it's put in as a free form, not a pre‑set part to make clear what the total is from the two.
66MS TURNBULL: Thank you, Your Honour.
67HER HONOUR: I do realise that there's an ability to impose the same Community Corrections Order for more than one charge. That is something different from an aggregate sentence.
68MS TURNBULL: Yes.
69HER HONOUR: And I considered both of those options, but in the end I thought I should reflect the sentences separately, but obviously some concurrency and some cumulation for the theft of electricity, and that's why I've done it this way. I'll let you check what the wording is, but we'll make sure that in being forwarded to Community Corrections a copy of what the total intended is.
70MS TURNBULL: Thank you, Your Honour. If Your Honour pleases.
71HER HONOUR: The address on these is 6 Red Oaks Way South Morang, that's the sister and brother‑in‑law's address.
72MS TURNBULL: Yes, that's the current address.
73HER HONOUR: And any change of address has to be notified to Community Corrections officers within two clear working days. The first one of those, that's on Charge 2, can be handed down now because that's not being altered.
74MS TURNBULL: Thank you, Your Honour, may I approach the dock?
75HER HONOUR: No, just check it first.
76MS TURNBULL: Yes.
77HER HONOUR: Then they can both be signed together. There will be a separate one produced on the other, on Charge 1, and that's what's still in the computer system. On the one that's on Charge 2 for six months, that doesn't include a supervision condition. Is that ‑ it hadn't printed out?
78MS TURNBULL: No.
79HER HONOUR: That's good. I wasn't intending it to be. It was just ‑ because the supervision will attach to the longer CCO. Yes. If those are in order, my associate will go with you if you also want to explain them to your client, and she'll be asked to sign them.
80MS TURNBULL: Thank you.
81(Community Corrections Orders signed and acknowledged.)
82HER HONOUR: I have also signed the two Community Corrections Orders, so those will be copied and a copy given to Ms Nguyen and a copy for the prosecution. I have also signed copies of the order for the forensic sample and a copy will be given to each side accordingly. I think that's all that needs to be done at this stage on this matter. In that case that brings this matter to a close. Ms Nguyen can be released from the dock.
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