Director of Public Prosecutions v Nguyen

[2024] VCC 51

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00952

DIRECTOR OF PUBLIC PROSECUTIONS

v

HIEP NGUYEN

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JUDGE:	HER HONOUR JUDGE ELLIS
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2024
DATE OF SENTENCE:	5 February 2024
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2024] VCC 51

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Two charges of cultivate a narcotic plant – cultivation simpliciter – plea of guilty

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981 (Vic)

Cases Cited:Markovic v The Queen [2010] 30 VR 589; Guden v The Queen [2010] VSCA 196; Worboyes v The Queen [2021] VSCA 169; Nguyen v The Queen [2017] VSCA 286;

Sentence:                  10 months imprisonment, followed by an 18 month community correction order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland	Office of Public Prosecutions
For the Offender	Mr M. Sturges	Stephen Andrianakis & Associates

HER HONOUR:

1Hiep Nguyen, you have pleaded guilty to two charges of cultivate a narcotic plant, namely cannabis, contrary to s72B of the Drugs, Poisons and Controlled Substances Act 1981.  The maximum penalty for this offence is 15 years’ imprisonment.

2Both charges concern your involvement in cultivating cannabis on 13 May 2021 at two separate residential addresses, namely 5 Glenys Court, Dandenong and 94A Windella Crescent, Glen Waverley. 

3At the time of the offending you were aged 26 years, residing in an apartment in Murrumbeena with Hao Le Phuong Nguyen and another female Dung Tran.

Circumstances of Offending

4The circumstances of the offending are set out in a summary of prosecution opening for plea dated 21 December 2023. 

5The premises at 5 Glenys Court, Dandenong were owned by Blerim Gimolli who leased the property to a female named 'Hoe' in November 2020.  Mr Gimolli attended the property fortnightly to collect the rent which was paid in cash by a male who introduced himself as Andy and provided a mobile phone number ending in 346.  The prosecution case is that you are the person identified as Andy, and this is not disputed.

6The premises at 94A Windella Crescent, Glen Waverley were owned by Richard Ng and these premises were leased in October 2020 to a female who provided a driver's licence in the name Hoa Le (not alleged to be Hao Nguyen).

7In April 2021 an investigation commenced into the suspected cultivation of cannabis at each of these two premises.  On 15 April police conducted a patrol of Glenys Court, Dandenong, and observed a silver/gold Lexus registration ABC 798, in the driveway of the premises. The Lexus was registered to Ms Hao Nguyen. She was observed collecting objects from the passenger side of the vehicle.  Approximately an hour later she was observed in the Lexus in the area of Springvale.

8On 13 May 2021 police executed search warrants at both the Dandenong and Glen Waverley premises, and investigators observed several rooms identified as having been converted to grow cannabis in a sophisticated set up involving high wattage globes, light shrouds, transformers and an automated watering system.  An illegal electrical bypass was located.

5 Glenys Court, Dandenong – (Charge 1)

9At the Dandenong address police seized a total of 136 cannabis plants in which the majority (57 and 58 plants) were in Rooms 3 and 4.  A bag of dried cannabis was located in the main hallway on the shelf of a linen press.

10Documents in your name were located in the top drawer of a bedside table inside the garage.  There were also electrical bypass cables and an invoice connected to the vehicle ABC 798.

11The combined weight of the cannabis at this address was found to be 87.632 kilograms.  This is over three times the prescribed commercial quantity of cannabis which is 25 kilograms or 100 plants.

94A Windella Crescent, Glen Waverley – (Charge 2)

12At the Glen Waverley premises police located and seized a total of 241 cannabis plants (2.4 times a commercial quantity) across various rooms, the bulk of which was 174 plants located in Room 2.

13An electrical bypass cable was also located in Room 1.

14The cannabis there was analysed and weighed and confirmed to be a combined weight of 89.79 kilograms which is over three times a commercial quantity by weight.

15A search warrant was also executed at your home address in Murrumbeena where various items were seized.

·A number of items were located in Bedroom 1 where Ms Tran was sleeping, including $5,100 of Australian currency, three mobile SIM cards and two diaries.

·In Bedroom 2, which was the bedroom you shared with Hao Nguyen, $10,000 of Australian currency in $100 notes in a storage cabinet boxed beside the bed.  There were three Apple iPhone’s, two of which you supplied the PIN for. 

·In the kitchen, $1,000 of Australian currency. 

·In a folder underneath the coffee table an AGL account for Glenys Court, Dandenong, and a water account for Windella Crescent, Glen Waverley. 

·There was also a receipt from Bunnings Warehouse for items consistent with the cultivation of cannabis. 

·A diary containing itemised lists of what appeared to be types of cannabis and products used to cultivate cannabis, with values next to some of the items.  The diary was mostly written in Vietnamese with some parts in English. 

·Police also seized an Apple laptop belonging to Hao Nguyen.

16Police examined the Lexus which was located across the road from the entrance to your apartment building. Ms Nguyen provided the key for the vehicle.  Upon searching it, police located tubing and ventilation ducts used in hydroponic set ups and an AGL gas account addressed to Thi Nguyen at 5 Glenys Court, Dandenong.

17Other documentation was found in a Toyota HiAce van located in the communal multi-level car park which included dried cannabis leaves in a back compartment of the van. 

18The investigation revealed that you had rented a white Toyota HiAce van[1] on 3 March 2021 and a second white Toyota HiAce[2] on 6 March 2021. The van that was searched by police was neither of these vans that you had rented.

[1] Registration 1RU 6XG.

[2] Registration 1RW 5TO.

19GPS data downloaded shows that both of the vans that you hired frequented the Glenys Court, Dandenong, and Windella Crescent, Glen Waverley, addresses in early to mid-March 2021.  In your account to Corrections you say that you were transporting fertiliser.

20The mobile telephones seized from the premises at Murrumbeena were examined by investigators.  One of the mobile phones was found to have a number ending in 346 being the number used by the tenant of the Glenys Court premises in Dandenong to communicate with the landlord, Mr Gimolli.  It contained messages with Mr Gimolli referring to the property in Dandenong and rental repayments.

21A black iPhone was found with a number ending in 339.  The contents of this mobile were mostly in Vietnamese but contained a number of images which appeared to depict:

·   the installation of an illegal electrical bypass at the Windella Crescent, Glen Waverley, premises.  That photo is date stamped 28 October 2020;

·   a photograph of the rear fence line of 94A Windella Crescent, Glen Waverley, date stamped 26 October 2020;

·   a notebook containing what appeared to be notes and mathematical sums relating to the cultivation of cannabis, date stamped 18 March 2021;

·   a commercial plant stimulator top booster, date stamped 5 November 2020;

·   a cannabis plant inside a hydroponic set up, date stamped 1 November 2020;

·   a photograph depicting the driveway of 5 Glenys Court, Dandenong, and a Lexus sedan, date stamped 22 September 2020; and

·   a photograph taken of you tending to a barbeque on the front porch of 5 Glenys Court, Dandenong, date stamped 2 October 2020.

22You were taken to the Moorabbin police station and made a 'no comment' record of interview. 

23It is agreed for the purposes of your plea that:

·        While there is evidence of the purchase of items from Bunnings Warehouse Coburg, there is no suggestion that you were involved in the installation of either of the cultivation set ups;

·        There is no direct evidence regarding how you cultivated, and accordingly, the prosecution case is a circumstantial one; and

·        Knowledge of commercial quantity cannot be proven beyond the relevant threshold given that the evidence tends to suggest your role may have been that of an occasional crop sitter and to run errands for those above you.

24For these reasons your role is accepted by the prosecution as being limited and peripheral, albeit that it appears to have been of some duration.  Pausing there, although there is reference to matters suggesting an earlier involvement (and indeed this appears to have been borne out in your description of your offending to Corrections), I sentence you in relation to your involvement in cultivating cannabis on the date as alleged in the indictment, namely 13 May 2021.

Procedural History

25You were arrested and remanded in custody on 13 May 2021.  You were granted bail on 1 September the same year.  You have spent 111 days in custody in relation to this offending.  Your time on remand was during the COVID-19 pandemic in which there were a number of restrictions in place in custody and you were unable to receive visitors. I accept that this was a stressful time for you given those conditions and I take this into account.

26Following a contested committal you were committed to stand trial on 2 June 2021.  There was a series of administrative hearings including case assessment hearings and the matter was listed for trial in July 2023. A sentence indication hearing was abandoned.  On 14 June 2023 the matter resolved to two charges of cultivation simpliciter.

27Proceedings against your co-offender, Ms Hao Nguyen, were discontinued on 23 June 2023.  The trial date was vacated and your plea hearing was heard on 24 January this year.

Personal Circumstances

28Mr Nguyen, you are now 28 years old.  You were born in Haiphong in the north of Vietnam in March 1995.  Your parents provided a stable home environment during your early childhood, but they worked several jobs as their finances were strained which meant that they were often absent from the home.  They separated eight years ago and you have had little or no contact with your father since.  You are very close with your mother who works on a small subsistence farm outside of Haiphong.  She is now of retirement age.  She is unable to afford to travel to support you and your young family.

29You completed your high school in Vietnam before travelling to Australia to study hospitality in 2014.  You studied a Hospitality Management Diploma at Ozford College.  You were a part-time student working casual jobs to fund your education.  You completed a Diploma in Business over four years on a part-time basis.

30Whilst in Australia you worked on a tomato farm, chicken packing factory, as a handyman, cleaner and delivery driver.  With the onset of the COVID-19 pandemic your education was suspended.  You lost your employment and found yourself struggling day to day.  You worked delivering food or undertaking cleaning jobs at the Springvale Market and also as a removalist.  You are currently not permitted to work in Australia as you are on a bridging visa. You are the primary carer for your children.

31You met your partner, Hao Nguyen, in 2019.  She arrived in Australian in 2016 to study accounting at La Trobe University and completed her degree in 2019.  You were both students living in a share house when you met and your relationship developed approximately six months later.  You have a young son who has just turned two and a daughter who was born in October last year.  You take care of both children and you are assisted by your partner’s mother while Ms Nguyen works in a café as a barista. Your partner’s employment pays for rent and living expenses.

32Ms Nguyen has developed post-natal depression requiring medication and psychological treatment. A letter from GP, Dr Cao, confirms this but there is no other detail as to whether she is receiving counselling or how she is coping.  You otherwise have no other family support.  Your partner’s mother is due to return to Vietnam shortly due to visa restrictions. 

Hardship

33It is submitted that imprisonment would cause you considerable family hardship.  As I have said, your partner is suffering from post-natal depression and a term of imprisonment will potentially increase this burden further.  Ms Nguyen would be alone in a foreign country with two children under the age of three.  Upon your return to custody she would need to cease her employment to care for your children. Your counsel does not submit that these amount to exceptional circumstances as discussed in Markovic v The Queen,[3] however, I accept that concern for your family would make your time in custody more difficult, especially knowing that your wife is raising two children in circumstances where her mental health is fragile.

[3] [2010] 30 VR 589.

Mental health

34As a consequence of the pandemic, you lost your employment and relied on your partner’s earnings during that period.  Prior to the pandemic you had provided financial support to your mother in Vietnam as per cultural expectations.  You were unable to continue to make these payments and your mother suffered financial difficulties due to the pandemic which caused you further anxiety.

35A psychological report prepared by Mathew Staois was tendered on the plea.  He opined that the relationship between your psychological functioning and the offending appears to have arisen in the context of social isolation, financial pressures, loss of employment, and limited practical and emotional support during the pandemic.  Given your financial hardship you were not in a position to ask immediate family members for financial support.  As a result, you reported coming into contact with negative peer influences who suggested that you crop sit to alleviate your financial pressures.

36Mr Staois opined that at the time of the offending you very likely met the criteria for adjustment disorder (mixed depression/anxious sub-type).  You have no diagnosed mental illnesses but have reportedly been very stressed and worried about these proceedings.

Plea of Guilty

37You come before the court with no prior convictions and you are to be sentenced as a first offender.  Your plea of guilty was not an early plea.  You entered a plea of guilty a few weeks short of your trial.  However, I accept that your guilty plea carries with it a utilitarian benefit as you have saved the court and the community the cost of a trial.  Your plea is an acceptance of your wrongdoing and I accept that it is some evidence of remorse.

38At the time that your matter resolved the court was still experiencing a backlog in trials as a result of the pandemic.  Since that time it has been determined that the backlog has now been reduced to pre-pandemic levels.  However, I accept that at the time you entered a plea of guilty there was a backlog and as a consequence your plea should attract an appreciable discount given the timing,[4] albeit that this no longer attracts the same weight, if any.  Nevertheless, I take this into account and I apply a discount accordingly.

[4] Worboyes v The Queen [2021] VSCA 169.

39Whilst you have been waiting for these matters to be finalised you have experienced significant stress and anxiety.  During this time you have become a father, you have engaged in volunteer work and you have remained free of further offences.  You have used your time on bail in a positive manner improving your prospects of rehabilitation.

Prospect of deportation

40As I have already noted, you are on a bridging visa and you are unable to work due to your visa status.  Your counsel submits that your visa will be cancelled should you receive a sentence of over 12 months’ imprisonment.  Your partner and your children are Australian citizens who hope and plan to remain in Australia.  You, too, wish to remain in Australia to build a life with your family.  You and your partner have no other meaningful support network within the community and are somewhat isolated.

41I accept that the prospect of deportation would make any sentence you receive more onerous as it may result in you losing the opportunity to settle permanently in Australia where you have now built a life and a family.[5]

[5] Guden v The Queen [2010] VSCA 196.

42Whilst I accept that anticipating potential deportation would cause you considerable stress, I cannot speculate as to whether or not your visa would be cancelled or whether you would be deported.

Nature and Gravity of Offending

43As the prosecution points out, this was clearly a sophisticated set up in both premises involving electrical bypasses, the purpose of which was to cultivate in order to traffic cannabis. A large quantity of cannabis was seized from each premises, both by weight totalling over 170 kilograms, and also by the number of plants.

44The prosecution submits that your offending was of some duration and this appears to be borne out by the timing of your visits to the vicinity of each crop house, your involvement in leasing the Dandenong premises in November 2020, and the fact that there are images on your phone of each of the premises from October 2020.  Indeed, you have admitted your involvement over a period of time to Corrections, but as I said, I must sentence you on the basis of the single date for which you have pleaded guilty. I do so on the basis that your involvement was peripheral, as is accepted by the prosecution, but it is not insignificant.

45I have had regard to the various factors identified by the Court of Appeal in the 2017 decision of Nguyen v The Queen.[6] These include the tasks performed by you in the enterprise, the nature of your relationship with the principals or leaders of the enterprise, the degree of trust and responsibility reposed in you, the size, scope and sophistication of the enterprise, and any expectation of rewards to be derived.

[6] [2017] VSCA 286 [27].

46There is no evidence as to you having any advanced relationship with those responsible for the crop but clearly there was some degree of trust vested in you. You expected to be paid for your role in this enterprise, however, you are not said to be the architect. You told Corrections that you were to be paid $200 for every visit and you attended three times a week.

47Clearly you were financially motivated but I accept that you became involved in this offending as a result of the stress associated with financial difficulties and being unable to adequately provide for yourself, particularly during the pandemic. I accept that this may have seemed an easy way to make some additional money but ultimately it has proved costly. It seems you now appreciate this and that bodes well for your prospects of rehabilitation. Whilst there was a considerable amount of money found at your home, the prosecutor, Mr. Buckland, submitted that it does not indicate the degree of reward you were expecting to receive, nor can the prosecution say that it was your money.

48Furthermore, whilst the quantity is significant, you are to be sentenced for cultivation simpliciter and not commercial cultivation. Again, the prosecution accept that your knowledge of the quantity of cannabis located at each address cannot be established to the requisite standard.

Prospects of Rehabilitation

49You have expressed your remorse and shame for your conduct and this is reflected in your guilty plea.  Your counsel submits that given your age, your education and work history, your lack of prior convictions and your lack of family support, that it is unlikely you will re-offend.  Accordingly, it is submitted that your prospects of rehabilitation should be viewed as positive.  Clearly, you exercised poor judgement in relation to this offending.

50Your lack of other supports is concerning, however, I accept that you remain motivated to rehabilitate so as to provide support for your partner and be a father to your young children.

Current Sentencing Practices

51I have had regard to comparable sentences for the offence of cultivate simpliciter. Your counsel and the prosecution have referred me to a number of cases in which there are similar features, but self-evidently no two cases are the same. Current sentencing practices is one matter to which I must have regard.

Sentencing Purposes

52I must have regard to the basic purposes for sentencing, namely, general and specific deterrence, just punishment, denunciation, protection of the community and rehabilitation.  The sentence I impose must reflect the seriousness of the offending and deter others who might be inclined to commit similar offences from doing so. Sadly, people like yourself with no prior criminal history are vulnerable to being recruited into this sort of offending which serves to only enhance the need for general deterrence to be given considerable weight in the sentencing process. 

53The sentence I impose must also deter you from committing further offences in the future.  It is necessary to denounce your conduct whilst ensuring that the penalty is one that is just.  This is to be balanced against the desirability to see you rehabilitate, a process upon which you appear to have already embarked.

54The prosecution submits that given the gravity of the offending, a head sentence with a non-parole period is warranted. Your counsel, Mr. Sturges, concedes that a term of imprisonment is necessary, however, he submits that this could be combined with a community correction order.

55Corrections have assessed you as suitable for a community correction order. The question for the court to determine is whether it is indeed appropriate in this case to combine a community correction order with imprisonment or whether a head sentence with a non-parole period is necessary.

56In this case I have concluded that having regard to all of the matters discussed that it is open to the court to impose a term of imprisonment followed by the supervision by Corrections under a community correction order, rather than on parole. I do so on the basis of your acceptance of your responsibility, your lack prior criminal history, your personal circumstances including your family situation, and your prospects of rehabilitation.

57Can you stand up please, Mr Nguyen.

Sentence

58On Charges 1 and 2, you are convicted and sentenced to 10 months' imprisonment, followed by a community correction order.

59The duration of the order will be 18 months. Corrections do not recommend you be under supervision, nor are there any recommendations for treatment, however, given that you appear to have engaged in this offending as a consequence of a possible adjustment disorder, I propose to make as a condition that you undergo any mental health treatment that Corrections may deem appropriate as part of the order.  Accordingly, I make the following conditions as part of the community correction order.

·You must undergo treatment and rehabilitation with respect to your mental health, if Corrections deem appropriate;

·You must undertake 50 hours of unpaid community work. I will allow that the hours of treatment and rehabilitation can count toward the entirety of the work order.

60There are also a number of core conditions attached to a community correction order.

·You must not commit any offence that is punishable by imprisonment during the 18-month period;

·You must comply with any and all obligations and requirements prescribed;

·You must report to and receive visits from Corrections during the period of the order;

·You must report to the nearest Community Correction Centre in Dandenong within two clear working days from your release from custody;

·You must let a Community Corrections officer know within two working days of a change of address or employment;

·You must not leave Victoria without first getting permission; and

·You must obey all lawful instructions and directions from Corrections.

61Mr Nguyen, you must comply with the conditions of this order. If you do not do so then you will likely find yourself back before me on a breach of the order. I would then need to resentence you for this offending and there is also likely there would be a penalty for the breach itself.

62In a moment you are going to be provided with some paperwork to indicate that you understand the conditions of the order as I have set out, and that you understand the need to comply with the order.

Pre-sentence Detention

63I declare 111 days pre-sentence detention to be deducted from the sentence imposed today.

6AAA

64But for your plea of guilty, I indicate I would have sentenced you to two years and three months' imprisonment with a non-parole period of 15 months.

Orders

65I make the order for disposal as sought by the prosecution which is unopposed.

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