Director of Public Prosecutions v Nguyen
[2023] VCC 2359
•30 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-01043
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANH TUAN NGUYEN |
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JUDGE: | HER HONOUR JUDGE SYME | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 November 2023 | |
DATE OF SENTENCE: | 30 November 2023 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2359 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Albert | Office of Public Prosecutions |
| For the Accused | Mr C. Nikakis | Haines & Polites |
HER HONOUR:
1Anh Tuan Nguyen, you have pleaded guilty to a single count of cultivating a narcotic plant, that being cannabis, at Derrimut, between
10 July 2020 and 18 November 2020. The maximum penalty for this offence is 15 years.2The charge is not one that falls within section 5A nor 6A of the Sentencing Act 1991 (Vic).
3In addition to the sentence imposed today, it is noted that you are potentially a candidate for deportation from Australia, due to your lack of citizenship. I am advised you have a bridging visa. I do not know what is likely to occur and have no jurisdiction to influence that.
4As at the time of this offending, you had no criminal convictions. However, on the 26th of October 2022, you were convicted and sentenced for an offence of trafficking in a drug of dependence (cannabis). This offending was discovered and charged on 22 June 2021. Details of that offending are as contained in my decision of 26 October 2022. Therefore, this offence was committed in the period prior to that offending.
5This is a minor complication to this sentence which will be further discussed below.
FACTS
6The facts relevant to the offence are as set out in the prosecution opening and not in dispute. The prosecution opening includes details of investigation and ancillary matters which were relevant to the investigation which, for purposes of efficiency, will not be repeated here but have nonetheless been considered.
OVERVIEW
7The premises in which this offending occurred was a factory in an industrial estate. A front fence and an electronic gate surrounded the property.
8The prosecution opening sets out that you approached another person,
Van Vuong, to lease the factory on your behalf, giving the excuse that you were not an Australian citizen. Vuong complied with that request.9You paid the bond of $44,948.75 and undertook to pay rent of $72,450 per annum, plus GST and outgoings. Vuong had leased another factory for you under similar arrangements. After the bond was paid and lease signed, Vuong gave the keys of the factory to you.
10The rent was not paid. Vuong eventually had to make rent payments himself.
11After the factory was leased, it was used for a cannabis plantation. A Ring Security motion sensor security camera and alarm were installed. Internet connections and electricity accounts were opened in the name of a fictitious person, with an email address associated with you and your then partner.
12Police ultimately recovered footage from 11 November 2020 through a CCTV camera next door to the factory. The footage shows the premises were regularly attended by a male and a female, who were suspected of being you and another. It was also noted that vehicles registered to other persons were frequently at the premises. Telephone records connected you with those attendances.
13The prosecution opening includes information which strongly suggests that you and another, referred to as Duy Nguyen (who was also using false identity documents) were personally involved, perhaps with others, in the cultivation enterprise.
14On 18 November 2020, other parties not associated with you also attended the factory, possibly, to commit a burglary there. You ultimately received notification on your Wi-Fi device that the factory surroundings had been entered without your prior knowledge. Shortly after, you received this notification, two vehicles, attended at the factory, possibly to confront the intruders. Duy Nguyen is suspected to be the occupant of one of those vehicles.
15In a related event, a person known as Gebru was shot and killed in the vicinity. It is understood that he was part of an attempted burglary into the premises. This event encouraged police investigations. You were, for some time, a suspect relevant to the death of that person. Significant further investigations into this death did not result in continuation of relevant charges against you.
16However, two days after this event, on 20 November 2020, police executed a search warrant at the factory. They found -
(a)The factory was used solely for cultivating cannabis by a sophisticated hydroponic system.
(b)385 cannabis plants of varying stages of growth. The total weight of cannabis was 152.32 kilograms. By way of context, it is noted that the commercial quantity for this substance is 100 plants or 25 kilograms.
(c)Police also discovered equipment and materials used for hydroponic cultivation, including multiple electrical items including light shades and 20 and 25 litre containers of liquid fertilizer.
17Forensic examination of items in the factory found:
(a)Analysis of a DNA profile and fingerprints on a water bottle and other items concluded extremely strong support for a connection with you.
(b)Further, a Hiace van was found by police on
21 November 2020. In the van were 85.65 kilograms of cannabis plants. The prosecution, however, do not suggest that you were involved with this van or the burglary.
18After detection of the cannabis plantation inside the factory, you took steps to disassociate yourself from evidence discovered at the property.
19The Ring Security Camera was deregistered from the Ring account attached to your phone and Wi-Fi. Your driver’s licence address and VicRoads account address was changed. You stopped using particular phone numbers previously used, and obtained another number in a false name.
SEARCH WARRANT – NGUYEN’S HOME
20I now move forward about six months to a search warrant executed at your home.
21On 22 June 2021, police executed a search warrant at 2/82 Biggs St. You,
Mr Nguyen and your partner, Phuong Do, were arrested.22Police found items including -
(i)the phones you were using around 18 November 2020;
(ii)a Ring doorbell device and invoices and accoutrements relating to the factory devices;
(iii)invoices for maintenance of the Ford Territory vehicle observed to be previously frequently associated with the factory.
23A search warrant was also attempted at the home of your alleged co-offender,
Duy Nguyen and his girlfriend. He fled and has not been found. He was not legally in Australia.24You were interviewed with an interpreter on the day of his arrest. You made no relevant admissions.
OTHER CHARGES
25You and Phuong Do were charged with offences arising from items found by police on 22 June 2021 at 2/72 Biggs Street. Police found:
(a) 139 cannabis plants and loose cannabis weighing a total of 76 kilograms;
(b) they also located hydroponic equipment, fertilizer and invoices for such items;
(c) a storage unit was also searched that day. There was also hydroponic equipment and paraphernalia at the unit alongside $46,000.
26You pleaded to trafficking a commercial quantity of cannabis that covered those items and as I said at the outset of these proceedings, you were sentenced on
26 October 2022 at this court, to a period of three years imprisonment with an 18 month non-parole period. I observe that you were taken to have no prior criminal convictions at that time. That sentence will complete on 20 or 21 June 2024 and your earliest date for parole was due on 21 December 2022.PLEA
27A plea was entered to this matter today, after negotiations relating to this and more serious matters were resolved. Your offer of a plea to this charge of cultivation was accepted by the prosecution on 3 November this year.
28The most significant complicating feature of this sentence is the fact that you were sentenced for similar offences in October 2022 and you are still in custody on that sentence. Notwithstanding your eligibility for parole about 11 months ago, you could not apply for same, due in part, to the charging of very serious charges shortly prior to the date of you become eligible for parole. As of today, you have served about two years and five months.
OBJECTIVE GRAVITY OF OFFENDING
29Matters that make the offending more serious: Generally, the quantity of the substance involved will be a consideration when assessing the objective seriousness of the offending. In the context of this case, the quantity, overall, is large, however, the prosecution concede that they cannot prove your knowledge as to the very large scale of the operation.
30The fact that you were involved in a similar type of offending within the same time frame, even though you were not convicted this time of that offending, is, however, a relevant factor in assessing your involvement in offending of this nature as a whole. A sentence for this matter cannot ignore that fact.
31While accepting it is not an aggravating circumstance, it must, to some extent, deprive you of the leniency you would have otherwise been entitled to as having no prior criminal convictions.
32The court is also entitled to take into account the sophistication of the factory set up. Significant hardware for cultivation was seized. The security system was extensive. The use of another person to formally apply for a lease shows a significant degree of planning and subterfuge. This was, as a whole, a well-planned and sophisticated operation.
33It is accepted, however, that your direct contribution to that sophisticated operation is largely unknown.
PERSONAL CIRCUMSTANCES AND BACKGROUND
34You are now aged nearly 33 years. Your personal information is presented in the report of psychologist, Mr MacKinnon. He interviewed you on 15 October 2022 via video link, while you were in custody awaiting sentence on those related matters. Mr MacKinnon noted significant communication difficulties at that time.
35For the purposes of the current hearing, you appeared personally with the assistance of a court interpreter. I have no further information other than that was previously provided, apart from some statements relating to your continued work in custody and progress and submissions from counsel.
36You report that you were born in Vietnam. You report a stable and supportive upbringing and you were well-educated completing an environmental engineering degree at university.
37You came to Australia in 2013, hoping, I am told, to continue your studies. That did not eventuate. You report a fairly unstable life in Australia, working at various labouring and handyman jobs.
38You report suffering a serious assault in 2009 in Vietnam, which resulted in your hospitalisation and you report, investigation of a then psychotic presentation. You were diagnosed in 2010, with what was noted to be undifferentiated schizophrenia, with paranoid and delusional elements and you were treated pharmacologically.
39I have no further information as to your psychiatric presentation since that time, although, you report to the psychologist, your distress at being in a custodial setting. It is not known whether this distress is related to any suggested post-traumatic stress disorder or any other psychiatric diagnosis.
40You report no significant substance abuse difficulties nor any other major antisocial behaviour. Mr MacKinnon, in his 2022 report, noted that you did not appear to labour with any antisocial or criminal traits. He also notes that you expect to be deported from Australia and once you are returned to Vietnam, you will reside with your parents.
41Notwithstanding a prior diagnosis, you do not suggest that you did not understand the serious nature of this type of offending, nor that there are any features of your presentation that may reduce your moral culpability.
42Mr MacKinnon observes, notwithstanding the communication difficulties that he experienced, you genuinely hope to resume a law-abiding lifestyle, presumably, in Vietnam.
43He also notes that when he interviewed you last year, you were finding imprisonment very difficult, especially because of cultural and language barriers, your inability to sleep properly, and a lack of mental health medication and support. You also have concerns which you reported about your family's position and health in Vietnam.
44I further note your counsel’s submission that since you were sentenced on the last occasion, you were reclassified as a result of new charges and spent some time in a maximum security prison. I am told this has caused some hardship. I observe a recent medical recommendation that you should be housed separately. I accept that this may relate to your mental health presentation.
45There is no direct evidence that your time in custody is more difficult due to your mental health presentation. However, any humane observer would note that a combination of your English language difficulties, your prior mental heath presentation, a change of security classification (which was apparently and ultimately unwarranted), made your time in custody onerous. I will take that into account in a general sense.
46You are entitled to a quantifiable benefit for an early plea of guilty to this charge, which is not the charge originally laid. The charge arose after a committal hearing and other negotiations about more serious, potential and related charges. The prosecution chronology sets out that once that charge was withdrawn, negotiations proceeded speedily. No trial date was required to be set and the prosecutors were not required to prepare the case for trial.
47Notwithstanding submissions otherwise, I see no separate evidence of remorse for your involvement in this offending. Your early plea may well have been an acceptance of the inevitable.
48However, there is ample evidence otherwise that you have good prospects of rehabilitation. I am told you have support in the community from your partner,
Ms Do.PURPOSES OF SENTENCING
49The purposes of sentencing are set out in section 5 of the Sentencing Act 1991 (Vic) and they frequently pull in different directions. General deterrence is a significant factor in matters of this nature, but this is somewhat ameliorated due to the fact of your current continued incarceration for the previously sentenced but later similar matter. The protection of the community and specific deterrence is addressed in the same manner. Your rehabilitation is a matter you are still trying to address while in custody by continuing to undertake education when it is available.
50A punishment which is just in the circumstances must take into account many competing considerations.
51As I observed at the outset, when sentencing you for this offence, a significant complicating feature is the sentence imposed by me for a similar offence in October last year.
52The case of Mills,[1] a 1988 High Court decision, sets out a guide for the correct approach in these circumstances. It requires the court to consider a reasonable total sentence that would have been imposed had, effectively, this court been considering a total effective sentence for all the matters in a single hearing. I accept the principles in Mills’ case that require the court to consider a head sentence and therefore non-parole ratio for the current matter with these matters in mind.
[1]Mill v The Queen (1988) 83 ALR 1.
53The court must therefore consider, as much as possible, the totality of all of your criminal behaviour and sentence you in such a way that takes into account this current offending and that previously sentenced.
54The court should then impose a non-parole period that reflects that notional total term.
55Included in my considerations in setting both the total term and considering any non-parole period is the fact that you have been in custody since June 2021 and were credited with many of those days in the previous sentence.
56In the previous sentence, you had the possibility of release on parole in December 2022, but were unable to obtain parole for the reasons stated above.
57The DPP have submitted that the subject of this offence and the offence for which you are currently serving should result in a sentence of imprisonment for this separate offending. They submit that the circumstances of the offending do not overlap. They submit that cumulation is appropriate to account for the additional criminality, but concede that some concurrency is appropriate because of totality.
58I was urged by your counsel to treat this matter entirely separately and he suggested that had you been dealt with only for this matter, a lower court may well have considered a non-custodial sentence for it separately.
59While that may be so, this court is aware of your other offending of a remarkedly similar nature within a similar time frame. A consideration of totality is the correct approach.
60Under usual circumstances, the ratio of the non-parole period to total term ratio, will take into account, as much as possible, the total amount of time you will be in custody. In the context of your complicated position, although setting a non-parole period would normally be a consideration, it seemed impractical in your circumstances.
SENTENCE
61The sentence that I therefore impose will be a ten month term of imprisonment, fixed term. That sentence will, of course, commence today. I further note that had it not been for your plea of guilty, I would have imposed an eighteen month term of imprisonment, with a non-parole period of thirteen months. I will also make the orders for destruction and forfeiture as sought by the prosecution and I note that they are by consent.
62MR ALBERT: As Your Honour pleases.
63MR NIKAKIS: The court pleases.
64HER HONOUR: Very well thank you, we will adjourn now.
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