Director of Public Prosecutions v Nguyen
[2013] VCC 386
•14 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-02343 & CR-12-02363
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HONG SON NGUYEN HUNG DAI NGUYEN |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2013 | |
DATE OF SENTENCE: | 14 February 2013 | |
CASE MAY BE CITED AS: | DPP v Nguyen & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 386 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: cultivation of a narcotic plant – commercial quantity – cannabis
Legislation Cited: s.72A of the Drugs, Poisons and Controlled Substances Act 1981
Cases Cited:R v. Pidoto & O'Dea [2006] VSCA 185 – Bala v. R [2010] VSCA 78 – R v. D'Aloia [2006] VSCA 237 – R v. McLeish (1982) 30 SASR 486 – DPP v. Duong [2006] VSCA 78 – Nguyen v. R [2010] VSCA 127
Sentence – Hong Son NGUYEN: total effective sentence of 20 months imprisonment with a non-parole period of 14 months imprisonment
Sentence – Hung Dai Son NGUYEN: total effective sentence of 3 years imprisonment with a non-parole period of 2 years imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms T. Saville | Ms M. Milardovic (Office of Public Prosecutions) |
| For the Accused For the Accused | Mr T Kassimatis Ms O. Thompson | Mr S. Parker Victorian Legal Aid |
HIS HONOUR:
1 In this matter, Mr Hung Dai Nguyen and Mr Hong Son Nguyen each pleaded guilty to one charge under Indictment No. 1208673. Respectively, each offence concerns a breach of s.72A of the Drugs, Poisons and Controlled Substances Act 1981, being the cultivation of narcotic plant, in this case cannabis, and in this instance to a commercial quantity.
2 The seriousness of such an offence can be ascertained from the fact that Parliament has prescribed as a maximum penalty for such offence the maximum defined period of imprisonment that can be prescribed under the Sentencing Act 1991, being twenty-five years imprisonment, a level 2 penalty.
3 The relevant commercial quantity as set out in the Act, or in the Schedule to the Act, is one hundred plants or twenty-five kilos. In this instance we are dealing with one hundred and ninety-two plants and twenty-seven kilos, which were found at the premises at 9 Jellis Avenue, South Morang, when it was subjected to a raid on 5 September 2012 pursuant to warrant.
4 By agreement with all counsel, the summary of prosecution opening was tendered as Exhibit A.
5 At the time of these offences, Mr Hung Dai Nguyen was aged twenty-seven and Mr Hong Son Nguyen was aged thirty. The circumstances whereby they came about to participate are somewhat different. Neither, obviously, is anywhere near the top of the criminal tree. Both have been recruited. Mr Hung Dai Nguyen was recruited from Vietnam, where, it would appear, he had had a very basic upbringing and been subjected to poverty. He and his fellow prisoner have no prior offences, so they are the perfect patsies, to use the term, to be utilised in circumstances such as this.
6 Mr Hung Dai Nguyen, as I say, was recruited from Vietnam and it would appear that for the period mentioned in the Indictment, being 26 July 2012 through to 6 September 2012, he was involved in the process of cultivating this commercial crop. It would appear somewhere along the way he recruited Mr Hong Son Nguyen to assist him, Mr Hong Son Nguyen’s role seems much less, on its face, than does that of Mr Hung Dai Nguyen and that is certainly the view of the prosecution, given the difference in suggested sentences that were put to me by the prosecution. Suffice to say, of course, whatever their roles, each is guilty of a very serious offence against the criminal law of this State.
7 As was pointed out by the Court of Appeal in R v. Pidoto & O'Dea [2006] VSCA 185, at [34], when considering the principles appropriate to sentencing in these matters, four of the Court of Appeal Justices noted that the structure now adopted by Parliament has "adopted a hierarchy of seriousness defined by and only by the quantity of the drug of dependence which has been trafficked".
8 Subsequent to that, in Bala v. R [2010] VSCA 78, at [12], the same Court said that the sentencing regime is quantity-based, which means that quantity will ordinarily be the key indicator of the seriousness of the offence, although of course never determinative of penalty.
9 As a general approach to sentencing of these types of crimes, Nettle JA said in R v. D'Aloia [2006] VSCA 237, at [56], and this was of course not to do with cannabis:
"… the matter may still be approached on the basis that all of the drugs which are proscribed have deleterious consequences of antisocial proportions and that trafficking in any of them is therefore properly to be regarded as a serious criminal offence."
Those comments apply equally to this case.
10 I point out what I had earlier said to Mr Kassimatis, where in R v. McLeish (1982) 30 SASR 486, 492 the Court spoke about the failure of Courts, and the authorities generally, to be able to dig out and prosecute the persons at the top of the chain in these criminal operations and the circumstances of how one should sentence recruits, such as these two, to these organisations, Wells J said:
"It seems to me to follow that after making all due allowances for the personal circumstances and antecedents of the prisoner, the facts of the particular case, and the need to show such mercy as is compatible with the safety of the public, a Court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organisation for purveying drugs, as well as to potential recruits, the simple truth, that a man [or any person] who participates in such an organisation at any level… must expect, and will receive, a heavy penalty."
11 The final reference I want to make as to general propositions of law relates to the cannabis itself. As Buchanan JA said in DPP v. Duong [2006] VSCA 78:
"The grave harm which cannabis grown by modern methods can inflict has been noted by many Judges. Generally the offence requires substantial punishment."
12 Within such a legal scenario, I heard the pleas presented on behalf of the respective prisoners. Ms Thompson, appearing as counsel for the Victorian Legal Aid, presented a plea on behalf of Mr Hung Dai Nguyen. I thank her for her written outline. To say the least, she said as best as could be said in these circumstances. One of the matters that stands out is that Mr Hung Dai Nguyen is a classic recruit, in the terms I referred to in R v. McLeish as was said at paragraph 20 of counsel’s submission, Mr Nguyen was well aware that he came to Australia to look after a cannabis crop, and also was well aware that he was to be well paid for doing so.
13 The consequences, of course, for persons who take such risks, seeking to obtain financial gain, are obvious. Ms Thompson set out Mr Hung Dai Nguyen’s unblemished record, his impoverished background, and his early plea. Ms Thompson submitted that he has said now that he appreciates the risk he took and is aware, from being in prison for nearly five months, how important one’s freedom is. As I said, it is a very hard lesson when one decides to take big risks for the purposes of earning money. However, his early plea and the remorse that it demonstrates, rather than just being remorse for the position he finds himself in, is clearly to be taken into account.
14 I also accept that because of his lack of English and his separation from his family in Vietnam, in particular his wife and young child, incarceration will be more difficult than it would otherwise be. However, it can also be said that there is a large Vietnamese element now in our prisons, many, unfortunately, related to this type of offence.
15 Ms Thompson went through all of the various sentencing guideline factors and I accept those matters, it seems to me all of those are obvious, and also provided the sentencing statistics in paragraphs 49 and 50, which I will come to in due course.
16 Insofar as Mr Hong Son Nguyen, Mr Kassimatis, in a crisp submission, noted the difference which has been recognised by all counsel between the two prisoners. While he was not naïve enough to put to the Court that his client had no further involvement than simply on the single day that he is charged with, he noted that such is what he is charged with, that is, cultivating this product to that degree on this one day.
17 Again, Mr Hong Son Nguyen had no priors. Again, he has had a similar background. No doubt, again, he was able to be recruited for financial reasons. He had in fact, most unfortunately for him, decided to go back to his family in Vietnam. He was apparently to leave on the following 25 September and unfortunately, because of this activity, he did not get there.
18 As against Mr Hung Dai Nguyen, Mr Hong Son Nguyen apparently came to Australia legally. He was on a visa waiver program, and was to try and seek work and hopefully bring his wife out here. Unfortunately as a result of this criminality, all those hopes will be now no longer able to be achieved and no doubt ultimately, as with his fellow prisoner, when the imprisonment imposed is served, he will be deported.
19 I accept that his plea is utilitarian. I accept he has no priors. However, the matters that I referred to in R v. McLeish apply equally to him. One day, or five months' involvement, in this such a crime renders one subject to severe sanction, for which the maximum penalty, I have already indicated, applies.
20 As to the appropriate range in these circumstances, clearly there is discrimination to be effected between both prisoners. The submission, without detailing an actual range, put to me by Ms Thompson, pointed to the sentencing statistics and that the most common sentence for the offence, in the most recent snapshot, was a period of two years with a non-parole period of one year.
21 Insofar as Mr Hong Son Nguyen, Mr Kassimatis submitted that a lesser range was applicable to his client on the basis of parity. Given that he had already served five months, he essentially submitted that on the bottom line perhaps his client would not have to serve any additional time in prison.
22 The prosecution submitted that the appropriate range for Mr Hung Dai Nguyen was between two to three and a half years maximum with a minimum period of one to two years, and in regard to Mr Hong Son Nguyen, a period of eighteen to twenty-one months with a minimum period to serve of between nine and eighteen months.
23 It is a difficult situation but perhaps a fortunate situation for them both to be sentenced at the moment. Recently, in Nguyen v. R [2010] VSCA 127, there has been some very strong remarks about current sentencing practice made by the Court of Appeal. In that case, the person involved was given a sentence of three years with a minimum of two, although the totality of product was much higher, being sixty kilos.
24 The learned President, at [28], took the view that the current sentencing practice was not consistent with what Parliament intended, given the setting of the high maximum. He analysed the sentencing statistics as were appropriate then and thought that perhaps the relatively low figure is explained by a pre-Pidoto & O’Dea view being taken by the Courts. He then referred to the comments that I have already mentioned, insofar as Buchanan JA, and went on to say, at [30]:
"… It seems to me that the Victorian community would be entitled to ask why sentences for this offence have been consistently under - or well under - one fifth of the maximum."
25 As I say, there has been nothing more formal done about such concerns and a subsequent case in September in the Court of Appeal, not the same constituted Court of Appeal, involving a similar fact situation to this, which was the cultivation of one hundred and seventeen plants with a weight of twenty kilograms, the Judge in that case determined appropriate sentence of two years with a non-parole period of fourteen months. Both persons involved were young and with no priors.
26 Such cases, as with the sentencing statistics, as has been pointed out regularly by the Court of Appeal, are matters which serve to educate the individual synthesis with which a Judge brings to a case.
27 In this instance, this is a serious instance of cultivation, in particular by Mr Hung Dai Nguyen. He has illegally come to Australia, not that he is sentenced for that in any way, but the purpose of coming to Australia was only to indulge in this criminal activity, and to do so for a financial reward. In that instance the views I have referred to in R v. McLeish must be taken very much on board by a sentencing Judge, that is that persons who are recruited and are utilised in such manner and any persons likely to act in such way must realise that the consequences will be harsh.
28 I accept that in the circumstances the role played by Mr Hong Son Nguyen is different. However, I consider the range as put by the prosecution is not outside the ballpark at all in regard to both these prisoners.
Sentence – Hung Dai NGUYEN
29 Mr Hung Dai Nguyen, if you would stand please.
30 For your role you are convicted of this offence, sentenced to a maximum period of imprisonment of three years and a minimum period of two years.
31 I declare that the period that you have served, being one hundred and sixty days, will be deemed to be service of this sentence and a declaration be made to that effect and recorded in the records of this Court.
32 Pursuant to s.6AAA of the Sentencing Act 1991, to the extent that I can comply with such a requirement, I simply say that had you not pleaded guilty the maximum penalty I would have prescribed for you was a period of four years.
33 The forensic orders and the disposal orders will apply to you, as your fellow prisoner.
34 Ms Thompson, is there anything else that I have to attend to?
35 MS THOMPSON: No, Your Honour, however, there was one – Your Honour referred to Mr Hung Dai Nguyen's wife and child. That is Mr Hong Son Nguyen.
36 HIS HONOUR: Yes, I am sorry, that was a mistake. I apologise for that. He has just got his mother back there. He had come out to assist his mother in her illness. Yes, I apologise for that and I thank you for that. Yes, you can take a seat please.
Sentence – Hung Dai NGUYEN
37 Mr Hong Son Nguyen, if you would stand please.
38 You are convicted of this offence and sentenced for your role to a period of imprisonment of twenty months with a minimum non-parole period of fourteen months.
39 I declare, pursuant to s.18 of the Sentencing Act 1991, that the one hundred and sixty days you have served to date be deemed as service of this sentence and the declaration to that effect be recorded in this Court.
40 Again, to the extent that I can, I simply want to say that had you not pleaded guilty the maximum penalty that I would have prescribed upon you would be a period of twenty-eight months imprisonment.
41 The forensic and disposal orders will equally apply to you, and can I say to both of you that should you not willingly provide a forensic order, there is provision for the police to come back to Court to get an order. I would hope that is not necessary.
42 Do either counsel wish to me to deal with any other matters?
43 MS SAVILLE: Yes, Your Honour.
44 HIS HONOUR: Yes, Madam Prosecutor?
45 MS SAVILLE: In relation to Your Honour's comments about the Crown's range in relation to Hong Son Nguyen, Your Honour stated the total effective sentence with eighteen to twenty-one months.
46 HIS HONOUR: Yes.
47 MS SAVILLE: In fact, the Crown range was eighteen months to two and a half years.
48 HIS HONOUR: Was it? Two and a half years.
49 MS SAVILLE: Thank you, Your Honour.
50 HIS HONOUR: I am sorry, it must have been my writing. Yes, well, in regard to that I consider that is too high in the circumstances. Two and a half years on top for him in the circumstances I consider would be too high.
51 All right, Madam Interpreter, thank you for your assistance. Would you tell both the Nguyens, no doubt their counsel will come down and explain to them the ramifications of the sentence. However, in layman's terms, Mr Hung Dai Nguyen has to serve a period of imprisonment of three years with a minimum of two years. I cannot tell you what immigration authorities do in regard to that matter. He will make some enquiries about that himself. Mr Hong Son Nguyen has to serve minimum twenty months with a minimum of fourteen months, and one hundred and sixty days is already deemed of service of both those sentences.
52 Do you have any queries, Madam Interpreter?
53 INTERPRETER: No, sir.
54 HIS HONOUR: Yes, well, the prisoners can be taken away.
55 (Prisoners removed.)
56 HIS HONOUR: I will hand those photos back, Madam Prosecutor. Thank you for your assistance, Madam Interpreter. Yes.
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