Director of Public Prosecutions v Nguyen
[2023] VCC 2259
•1 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01017
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MY QUOC NGUYEN |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 November 2023 | |
DATE OF SENTENCE: | 1 December 2023 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2259 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Cultivation of a narcotic plant – Cannabis L – early plea of guilty to cultivate simpliciter – not guilty of cultivation in a commercial quantity following trial by judge alone – serious example of cultivation – large quantity of plants and sophisticated hydroponic and electrical systems – evidence of knowledge of quantity limited to singular room – short duration and limited connection to property – low moral culpability – motivated by financial gain – no prior history – general deterrence – limited need for specific deterrence – genuine remorse – good prospects of rehabilitation – non-citizen on a bridging visa
Sentence: 15 days’ imprisonment reckoned as time served
12-month Community Correction Order
s6AAA – 10 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. D’Arcy (Plea) Ms J. McGarvie (Sentence) | Office of Public Prosecutions |
| For the Accused | Ms S. Joosten | Giorgianni & Liang Lawyers |
HER HONOUR:
1Mr Nguyen, your matter came before me as a judge alone trial on 2 October 2023 and at that time you pleaded not guilty to one charge of cultivation in a commercial quantity of cannabis and guilty to Charge 2 of cultivation of cannabis.
2On 19 October 2023 I delivered my verdict and I found that you were not guilty of Charge 1, cultivation in a commercial quantity of cannabis, and guilty of one charge of cultivation of cannabis. You now fall to be sentenced in relation to the charge of cultivate a narcotic plant namely cannabis. The maximum penalty for this charge in the circumstances of your case is 15 years' imprisonment.
Circumstances of offending
3The evidence in the trial was heard on one day and was of relatively short compass. The prosecution called evidence from three police witnesses and tendered a total of 93 photographs, an unmarked floor plan of the Wollert property, a floorplan marked by the witness Sergeant Johns, the exhibit log from the day of execution of the warrant and the botanist certificate. The evidence was not disputed. In the circumstances, I accepted the evidence of the witnesses and the contents of the exhibits.
4After consideration of the evidence I made the following particular findings of fact and it is upon these facts that you will be sentenced:
(a) You were located by police at the house at 2 Edenvale Boulevard, Wollert on 23 February 2022.
(b) Senior Constable Saleh observed you to arrive at the premises at 5.46 pm. You entered the premises in your wife's Toyota Kluger via a garage accessible from a rear laneway. You used a remote later found in the car on the key ring, to open and close the garage.
(c) Senior Constable Saleh notified other police of his observations and a search warrant was executed at the property. Entry was forced via the front door at approximately 6.04 pm.
(d) You were in the premises for no more than 18 minutes in total and you were in the house for some time less than 18 minutes.
(e) Upon entry police smelt cannabis and observed electrical equipment, black pipes, curtains over doorways, electrical ballast or transformers and that there were lights on in some of the rooms.
(f) The water tap in the laundry was turned on. The black pipes from the laundry connected to black pipes in Room 5. Senior Constable McWhirter turned the tap off.
(g) The photographs tendered and marked Exhibit A are a true depiction of the house after the police had commenced to process the scene.
(h) The police identified seven rooms that contained various quantities of cannabis plants at various stages of maturity.
(i) The house had been modified and set up to grow cannabis. There was a sophisticated electrical system in place with lights operated on timers. There were pumps and black pipes used for watering in both the laundry and central bathroom. The watering system in the central bathroom was inactive. There were no timers for these pumps. There was ventilation.
(j) The botanist certificate tendered and marked Exhibit E accurately quantifies the amount and weight of the plants located as follows: Room 1 contained 16 plants that weighed 28.4 kilograms; Room 2 contained 39 plants that weighed 15.05 kilograms; Room 3 contained 64 plants that weighed 1.14 kilograms; Room 4 contained 17 plants that weighed 28.2 kilograms; Room 5 contained 20 plants that weighed a total of 61.2 kilograms; and Room 6 contained 16 plants that weighed 49.40 kilograms; and Room 7 contained 39 plants that weighed 39.5 grams.
(k) A total of 211 plants that weighed approximately 183 kilograms were located growing at the Wollert house.
(l) You were found hiding amongst cannabis plants in the rear corner of Room 5. You were arrested by police within five to seven minutes of police entry to the property. At the time you were wearing black gloves.
(m) A search of the house was conducted. The police located various items including: a box of black latex gloves in the kitchen, an opened bag of fertiliser near Room 7, bedding in the front room; an internet dongle connected to a camera; identification documents for you in your vehicle; an A4 page with growing instructions for a growing cycle written in both English and Vietnamese and 10 to 15 bags of fertiliser of the same brand in the boot of your wife's vehicle.
(n) A floorplan marked up by the informant to include rooms with designated numbers and the path you would have taken to be in the laundry, is accurate.
(o) There were no fingerprints, DNA or other forensic evidence located by police.
(p) Surveillance on the Wollert property on 14 February 2022 was conducted. No person nor the Toyota Kluger were seen on this occasion.
(q) Apart from your presence on 23 February 2022 you had no other connection with the property, the rental arrangements or the owner.
(r) You do not have prior convictions.
Nature and gravity of offending
5Your counsel Ms Joosten correctly conceded that your offending is serious. Further, she did not dispute that the court must take into account that there was a sophisticated hydroponic set up that was used to grow 211 plants that weighed 183 kilograms in total and in the room in which you were arrested there were 20 plants that weighed 61 kilos. However, Ms Joosten submitted that your moral culpability is limited to your intent to cultivate cannabis simpliciter and you must be sentenced in accordance with the trial verdict.
6Other factors Ms Joosten urged the court to consider on the question of the gravity of your offending were; that your role was limited to attendance for no more than 18 minutes; you attended for the purpose of cultivation; you expected to receive financial gain; that you had no involvement in other aspects of the enterprise such as the lease of the property, setting up the equipment; and you had no proprietary interest.
7Mr D'Arcy and later Ms McGarvie for the prosecution submitted that the seriousness of your offending could be derived largely from the quantity of the plants grown and the sophistication involved in growing them. Both counsel for the prosecution submitted that in the circumstances the court should impose a term of imprisonment with a head sentence and a non-parole period.
8Further, Ms McGarvie drew to the court's attention to the fact that there were some inconsistencies between instructions or comments you had made to the psychologist and later to Corrections.
9Mr Nguyen I must sentence you in a manner that is consistent with the trial verdict. I accept that given the quantity of cannabis and sophistication of the hydroponic set up this is a serious example of the cultivation of cannabis. I also accept that there is no evidence that you leased the premises or that you set up the hydroponic equipment or that you had attended there on any occasion other than the day or your arrest. Further, in circumstances where the evidence is that you were in attendance at the property for only 18 minutes on one day, I consider that you had only a limited role in the enterprise. Further, although you admit you were involved for financial gain there is no evidence that you had any proprietary interest in the cannabis at the premises. On the basis of these factors I find your moral culpability to be relatively low.
Personal Circumstances
10You were born in August 1995 and you are now 28 years old. At the time of the offending you were 26 years old.
11You were born in Quong Binh province, a rural coastal area in Vietnam. You have three brothers and one sister. Your parents work on a farm growing rice and corn. Although your family coped financially you were required to assist on the farm in your spare time.
12You completed high school education to Year 12 equivalent and after leaving school you started a university course studying education but left after three months.
13In 2014 when you were 19 years old you enrolled in a business degree at James Cook University in Brisbane and migrated to Australia. Unfortunately, you discontinued your studies because you were unable to pay the fees.
14Since this time you have worked on different farms, in an Asian grocer, as a handyman and cabinet maker.
15You recently applied for a protection visa and are unemployed as you are unable to work full time hours on your current bridging visa.
16You met your wife Nhi Tran in 2018 and you married in 2021. Ms Tran migrated from Vietnam in 2013 and is also on a bridging visa. You share a son named Vinh aged 20 months who was born during your remand for these matters.
17You and your wife are expecting a second child in early 2024.
18Your wife has experienced mental health issues which have been exacerbated as a result of your arrest.[1] She has been diagnosed with major depression with anxiety symptoms[2] and your wife suffers from insomnia, frequent crying spells, suicidal thoughts and self-harm. She relies heavily on you for the day-to-day care of your son and is extremely anxious about the outcome of these legal proceedings. She has been receiving treatment from a psychologist since November 2022.
[1] Report of Thuy Dinh, Psychologist dated 26 September 2023, [5].
[2] Ibid, [6]
19You have no issues with drugs and alcohol and you have no diagnosed mental illness although you reported feelings of stress and anxiety waiting for the outcome of these proceedings.
Matters in mitigation
20Your counsel relied upon a number of matters in mitigation. Firstly, that you indicated your intention to plead guilty to cultivation of a narcotic plant on 13 May 2022 at the committal mention stage of this matter only three months after your arrest. In the circumstances I accept that your plea of guilty should be regarded as a plea at the earliest opportunity.
21The prosecution did not accept your plea and so you elected to run a trial in relation to the commercial quantity cultivation charge and you were acquitted of that charge. The trial was confined to the narrow issue of your intention to cultivate in the commercial quantity alleged. The trial was therefore relatively brief and only three prosecution witness were called to give evidence.
22In relation to the cultivate cannabis charge I accept the utilitarian value of your plea of guilty. Further, I accept that you attempted to facilitate the course of justice and avoid a trial. I take into account the benefit of your plea in the context of the court backlog, which though now easing, was still a relevant issue when your case entered the court process.
23Your counsel also submitted that you are extremely remorseful for your offending. This submission was supported by various sources of evidence. First, your plea of guilty; second, your expressions of remorse detailed in the psychological report of Mr Simmons; third, your repeated apologies to your wife; fourth, each of the testimonials tendered on your behalf, and lastly, I watched you in court during the trial and plea and could see that you have taken this matter extremely seriously. I accept that your remorse is genuine.
24This matter has now been hanging over your head since your arrest in February of 2022. For 18 months you have lived with the prospect of being found guilty of serious offending that would have resulted in a lengthy period of imprisonment and almost certain deportation. I consider this would have been burdensome for you particularly in circumstances where this would have had a negative impact on your family and young child. I take this into account in your favour in sentencing you.
25A report from Thuy Dinh, psychologist, was tendered on your plea. This report detailed the debilitating and serious mental health issues suffered by your wife. It also detailed the crucial role you play within the family supporting your wife and caring for your young child. Your counsel did not submit that your incarceration would result in exceptional family hardship, however, I accept that were you to be imprisoned, any time in custody would be onerous for you given your difficult family situation.
26You have no prior convictions and are to be sentenced as a person of otherwise good character. I accept you have positive prospects for rehabilitation.
Sentencing principles
27General deterrence, just punishment and denunciation are prominent sentencing considerations in drug-related offences of this type. The law aims to address the damage caused by illicit drugs in various ways, particularly by targeting those responsible for their cultivation and distribution who usually benefit financially at the expense of the health and wellbeing of individual drug users and communities.
28In your case the premises in which you were arrested was a sophisticated crop house that was set up purely for the purpose of cannabis cultivation. Although the evidence indicates that you had a very limited involvement in the enterprise, in my view general deterrence remains the most important sentencing consideration. You became involved in this offending for financial gain in circumstances where you knew what you were doing was illegal.
29Specific deterrence is of less relevance in this sentencing exercise. It is apparent from your numerous expressions of regret and the character references provided that the consequences of engaging in this conduct have been powerfully brought home to you. You have had to endure the upset and disappointment of those closest to you and you initially spent 15 days in custody in circumstances where you have led a law-abiding life having never been charged with a criminal offence. This time in custody was made all the more difficult as it coincided with the birth of your first son and meant that you were not there to support your wife.
30Your lack of prior history, genuine remorse and the presence of protective factors such as your growing family, combine in your case to satisfy me that your prospects of rehabilitation are positive.
31I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case and I have had regard to the current sentencing practices for the charge of cultivation of cannabis. I have also had regard to the principles of parsimony and proportionality.
32I have considered the sentencing statistics for cultivating in non-commercial quantities of narcotic plants and I note the limitations with statistics in general, however, I have considered them to have some utility in arriving at my ultimate disposition. Further, I have considered comparable cases from the Court of Appeal and also from this court[3]. Each case obviously turns on its own facts. Cases where terms of imprisonment were imposed, usually involved the offender having some greater participation in the offending, in addition to knowledge and intent to gain financially from significant amounts of cannabis and usually involved them having relevant prior history.
[3]Nguyen v R [2001] VSCA 346; DPP v Philip Kennedy [2019] VSCA 127; Nguyen v R [2016] VSCA 198; DPP v Minh Phan [2023] VCC 1523; DPP v Hien Lam [2023] VCC 2182; DPP v Thi Hoa Diep & Tat Tan Nguyen [2022] VCC 2002; DPP v Hong Thoai & Huy Nguyen [2022] VCC 685; DPP v Hien Thi Phan [2021] VCC 1747; DPP v Heng Fu Kou [2021] VCC 1532; DPP v Xuan Pham [2020] VCC 116; DPP v Van Lam & Houn Bui [2019] VCC 2073
Disposition
33After consideration of what is the right penalty for you and balancing as best I can the nature and gravity of the circumstances of your offending, your moral culpability, with your previous good character and each of the factors you have in your favour, I have come to the conclusion that a combination of imprisonment and a Community Correction Order is the appropriate penalty in your case.
34At your plea hearing I requested a pre-sentence assessment to be conducted by Corrections to assess your suitability for a Community Correction Order and Corrections found you to be a low risk of general re-offending and found you suitable to complete an Order.
35Mr Nguyen, if you could please stand.
36In relation to the charge cultivation of a narcotic plant, being cannabis, you are convicted and sentenced to 15 days' imprisonment. In addition, you are placed on a Community Correction Order for a period of 12 months. The sole condition of this Community Correction Order is that you perform 200 hours of unpaid community work over that 12-month period. Because the community work is the only condition of the order, upon satisfactory completion of the unpaid work the order will expire. So if you complete those hours quicker the order will be over. I have set it at 12 months to give you a period of time in which to be able to do them and I have noted that you have a lot of other commitments.
37In addition to the community work condition there are some standard conditions that I need to tell you about. I need to make sure that you understand what is involved in a CCO. First and foremost, you must not commit any offence that is punishable by imprisonment during the 12-month period of the Correction Order. You are required to advise your supervising Corrections officer of any change of address where you are living or working within two clear working days, and it is a term of all Community Correction Orders that you must submit to visits as directed and obey instructions and directions of the Corrections officer. You cannot leave the State of Victoria without Corrections prior permission. If you breach any of those conditions or you do not comply with the condition that I have imposed, that would be a contravention of the order and it would mean that you would be brought back before me and be dealt with for a breach. Potentially you could receive a term of imprisonment, as one of the options I have would be to re-sentence you. I do not believe that you are going to breach the order and I am quite confident that you will do the community work that I have set for you.
38You must report to the Sunshine office of Community Corrections before 2.00 pm, that is within two working days of the order coming into effect, which is today.
39I can only place you on a Corrections order if you agree. So, firstly, do you understand what is involved?
40OFFENDER: (Through Interpreter) Yes, Your Honour.
41HER HONOUR: And do you agree?
42OFFENDER: (Through Interpreter) I agree.
43HER HONOUR: Alright. An order has been drafted up and I will get you to sign that order in one moment.
44MS JOOSTEN: Your Honour, may I approach?
45HER HONOUR: Sure. Thanks Ms Joosten.
46I have signed that order.. You have served 15 days by way of pre-sentence detention and I reckon this as time already served. In addition, I will make the disposal order in the terms sought by the prosecution.
47Pursuant to s6AAA of the Sentencing Act, had you not pleaded guilty to the charge of cultivation of a narcotic plant, I would have sentenced you to 10 months' imprisonment.
48Is there anything further?
49MS McGARVIE: No, Your Honour.
50MS JOOSTEN: No, Your Honour.
51HER HONOUR: Thanks very much. Thank you, Madam Interpreter, I think you have been here all the way through so thanks very much for your assistance.
52INTERPRETER: Thank you, Your Honour.
53HER HONOUR: I am sure Mr Nguyen has thoroughly appreciated that. And thanks very much – can you pass on my thanks to Mr D'Arcy.
54MS McGARVIE: Yes, I will, Your Honour.
55HER HONOUR: And thanks very much Ms Joosten.
56MS JOOSTEN: Thank you, Your Honour.
57HER HONOUR: You ran a very good trial..
58MS JOOSTEN: Thank you, Your Honour.
59HER HONOUR: We will adjourn.
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