Director of Public Prosecutions v Nguyen

[2023] VCC 2187

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 22-00997

DIRECTOR OF PUBLIC PROSECUTIONS

v

DIEU NGUYEN

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2023 and 14 November 2023
DATE OF SENTENCE:	24 November 2023
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2023] VCC 2187

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Charge of cultivating a commercial quantity of a narcotic plant – summary charges of dealing with property suspected of being the proceeds of crime and committing an indictable offence while on bail – search of premises discovered cannabis plants – offending whilst on bail – relevant criminal history – medium level involvement – plea of guilty at later stage – lack of remorse – Covid-19 restrictions whilst in custody – delay – uncertain prospects of rehabilitation

Legislation Cited:      Sentencing Act 1991

Cases Cited:DPP v Nguyen [2018] VCC 396; Veen (No 2) (1988) 164 CLR 465; Nguyen v R [2021] VSCA 211; Thanh Van Nguyen v R [2019] VSCA 134; Worboyes v R [2021] VSCA 169; Biba v R [2022] VSCA 168; DPP v Clark [2023] VSC 220; Green v R [2011] HCA 49; Duc Nguyen v R [2021] VSCA 346; Bui v R [2015] VSCA 313 and Thanh Nguyen v R [2019] VSCA 134

Sentence:                  Three years and five months imprisonment with a non-parole period of two years and seven months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Hamnett	Office of Public Prosecutions
For the Accused	Mr C. Hooper	Richard Revill Lawyers

HIS HONOUR:

Introduction

1Mr Nguyen, I propose to sentence you to a total sentence of three years and five months’ imprisonment. I will set a non-parole period of two years and seven months’ imprisonment. I declare your 689 days of pre-sentence detention (excluding today) as time served under my sentences.

2You pleaded guilty to a charge of cultivating a commercial quantity of a narcotic plant. You also pleaded guilty to two summary charges: dealing with property suspected of being the proceeds of crime and committing an indictable offence while on bail.

3The circumstances of your offending are set out in the document entitled, 'Summary of prosecution for plea', (Exhibit A). You agree with its factual contents.

Circumstances

4On 4 January 2022, police members searched the premises at 22 Marcia Street, Thomastown. You were present, as was your co-accused, Kien Vu. Although I do not know the number of rooms in the house, the police found cannabis plants and equipment in many rooms. Paragraphs 14 to 19 of Exhibit A describe the contents of those rooms. Briefly, they contained:

(a)   Rooms 1 and 2, each contained 8 medium sized cannabis plants in their own pots, with heat lamps and irrigation. When found each of the heat lamps was operating;

(b)   Room 3 is an open kitchen area. On a table was a tray containing 144 juvenile plants. There were plastic lids covering the trays, a tarpaulin sheet enclosing the trays and a fluorescent light above them;

(c)   Room 4 held 111 cannabis plants, of which 89 were juvenile plants and 22 were medium sized plants. The plants were situated in one half of the room with multiple heat lamps operating. There were no plants in the other half;

(d)   Room 5 was a smaller, concealed alcove attached to Room 4. This room contained plant cuttings with flowering heads laid out on drying racks and a garbage bag with dried plant cuttings. The room itself had heat lamps, fans, an air filter and electrical wiring.

5The house’s bathroom was used to irrigate and fertilise the plants. Its garage contained a large amount of equipment, being heat lamps; fans; bright lighting; cabling; irrigation systems; electrical equipment; carbon air filtration systems and empty plant pots.

6Another room of the house contained empty plant pots and cultivation equipment. A large amount of other equipment was found throughout the house.

7Overall, there were 271 cannabis plants weighing 18.115 kilograms. In paragraph 35 of Exhibit A the cannabis is divided into six categories and described.

822 Marcia Street was then owned by two persons, described in exhibit A as 'victims'. How you gained possession of the premises is not revealed. Apart from the involvement of Kien Vu, there is no basis to find others were involved in the cultivation. 

9Your van was parked in the driveway of 22 Marcia Street. A search of it found a bag containing your wallet and driver licence. The wallet contained $740 in cash. 

10The police also found your Apple iPhone. It had been hidden. It had a function called a 'significant locations’ function'. This recorded the approximate addresses frequented by the phone’s user. Analysis of this function showed you had attended the Marcia Street address on at least 43 occasions between 5 November and 29 December 2021. The period of your attendances ranged from six minutes to two hours and 24 minutes.

11Also found in your van were the keys to your home at 310 Dalton Road, Lalor. The police searched those premises and found some fertilisers, empty pots and heat lamps similar to those found at 22 Marcia Street. Despite your counsel’s submission, I would infer these items related to the cultivation at
22 Marcia Street, especially the presence of heat lamps.

12At this time, you were on bail. You had been charged with cultivating cannabis and other related offences. These charges have not yet been determined. Your wife is a co-accused. Apart from the fact you were on bail, these charges remain undetermined and are of no relevance.  

13When the police found you in the house, you were wearing latex gloves. The gloves were photographed while you wore them. According to Exhibit A, they appeared to be covered in cannabis residue. I agree with your counsel, this assertion cannot be treated as establishing the gloves were covered in cannabis resin. It appears to be an expression of opinion by someone who is not established as qualified to do so. My viewing a photograph of the gloves places me in the same position: invited to form an opinion while lacking the specialisation to do so.  

14You were interviewed on the day of your arrest. You gave a number of false answers to the questions asked. You have been in custody since 4 January 2022.

Criminal History

15You have appeared in a criminal court once. On 20 February 2018, on the charges of cultivating a commercial quantity of a narcotic plant and theft, you were sentenced to a total of 32 months’ imprisonment with a non-parole period of 15 months’ imprisonment.

16The sentencing remarks were provided[1]. Your enterprise was somewhat similar to the enterprise here. Rooms of a house were used to cultivate cannabis hydroponically. You were solely responsible for the cultivation. There were 195 plants, weighing 78.83 kilograms.

[1] [2018] VCC 396.

17The judge discussed the collapse of your seafood businesses, the heavy indebtedness it left and your recourse to offending to repay the debt. Accepting that the 'discrete set of circumstances that triggered your offending' no longer existed, she considered your prospects of rehabilitation were favourable.     

Personal

18You are now 56. You were born in Vietnam although you are now an Australian citizen. You have little formal education. You have a wife and two children, a son aged 32 and a daughter aged 15. Your daughter suffers from depression. You have a younger brother and sister living in Vietnam. 

19In late 1982, you and your older brother fled Vietnam. You spent a year in a refugee camp in Indonesia before travelling to this country in 1984.

20You worked for three months as a panel beater and then as a carpenter before moving from Sydney to Melbourne in 1986. You worked for two years in a paper mill before moving to Brisbane where you worked as a fisherman for a year. In 1988, you returned to Melbourne, working in a printing company for 14 years. In 2000, you started a seafood business, operating it until 2016 when it failed and you were bankrupted.

21As I said earlier, you were sentenced to a term of imprisonment in February 2018. You were released from custody during 2019 and obtained work selling televisions and household electronics for a homewares company. After three years, you lost this job because of the charges you presently face and your remand in custody.  

Discussion

Purposes

22Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in; and,

(e)   to protect the community from the offender.

23Each of those sentencing purposes is relevant to your sentencing. The purpose of general deterrence is relevant mainly due to the prevalence, and potential seriousness, of the offence.

24As to the purposes of specific deterrence, protecting the community from you and denunciation, your counsel referred to the case of Veen (No 2)[2].  There is a paragraph from the joint judgment which is relevant to your sentencing[3]:

'There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences…The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.'

[2] (1988) 164 CLR 465.

[3] At p 477.

25This offending shows your continuing disobedience of the law. You were sentenced in 2018 and released from custody during 2019. This offending starts in November 2021. These facts also show your moral culpability is high. They also point to the need to deter you and others from committing this offence of cultivation in particular, to protect the community from you and to denounce your behaviour. 

26Section 5(2) of the Sentencing Act sets out various matters which I must take into account where they are relevant to your case.

Maximum Penalties

27The maximum penalties for the offences are:

(a)   for cultivating a commercial quantity of a narcotic plant – 25 years’ imprisonment;

(b)   for dealing with property suspected of being the proceeds of crime – two years’ imprisonment; and

(c)   for committing an indictable offence while on bail – a fine of 30 penalty units or three months’ imprisonment.

28Committing the offence of cultivating a commercial quantity of a narcotic plant while on bail is an aggravating factor. Parliament dealt with the aggravation through s 16(3C) of the Sentencing Act, which provides:

'Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.'

Gravity of the offences

29As the court said in Nguyen v The Queen[4] :

'Because the offences are quantity-based, the quantity cultivated will ordinarily be a factor of critical importance.'

[4] [2021] VSCA 211 at [30].

30It is important because the legislation makes it so. The quantity may throw light on the scale of the operation and, generally, the scale of the profit the operation is expected to generate.

31Your charge of cultivating a commercial quantity of cannabis is due to the number of the plants, not their weight. The threshold is 100 plants or their weight of 25 kilograms. Here, the number of plants is 271, while their weight is 18.115 kilograms. Despite the number of plants, the low weight is due to the large number of juvenile plants. They are depicted in several photographs tendered by the prosecution. A botanist examined the plants and divided them into items. Item 3 comprised 144 plants weighing a total of 236.6 grams, just over a quarter of a kilogram.

32In terms of a commercial quantity, the number of the plants is nearly three times the threshold, while their weight was about three-quarters of the threshold. Combining the number and their weight, it is fortunate the police intervened when they did. You can reap the benefit of their early intervention. Most of the plants were very immature while the rest were only medium sized. In terms of number and weight, these plants are at the lower end of the range encompassed by the offence of cultivating a commercial quantity of a narcotic drug, bearing in mind the threshold for a large commercial quantity of cannabis is 250 kilograms or 1000 plants. 

33Exhibit A describes this cultivation as sophisticated and so it was. It was widespread over the interior of a house and its garage. There were many plants, mostly juvenile. There was a large amount of equipment used in the cultivation.  

34Apart from your presence at the property on the day the police attended and your guilty plea, your intention to cultivate a commercial quantity is shown by your frequent attendances at the property over the space of almost two months. You were heavily involved in the cultivation of the plants. You were involved for financial gain. However, it is not suggested you were the mastermind of this enterprise.

35In one of the cases relied upon by the prosecution, the court discussed the expression, 'crop sitter as a form of low-level involvement'[5]. I would not describe your involvement as low level. You actively cultivated this crop over a period of about two months. Ignoring the nature of the substance on the gloves you wore when arrested, you were wearing gloves. I cannot find you were involved in acquiring the possession of the house or acquiring and setting up the equipment. Your involvement was above the low-level and at the medium level.

[5] Thanh Van Nguyen v R [2019] VSCA 134 at [59].

36Although some of the cases referred to me involved fewer plants, their weights were well in excess of the weights of the plants you were cultivating. Owing to the immaturity of the plants, it is impossible to gauge, even generally, what sort of profit may have come from these plants. The crop may have failed to some extent even though there had been some success shown by the finding of dried cannabis.

Guilty plea

37The prosecution provided a chronology of court events leading to your guilty pleas on 9 November 2023.

38You were arrested on 4 January 2022. The next day, there was a filing hearing in the Magistrates’ Court. There followed four committal mention hearings. At the fourth, on 8 June 2022, you were committed for trial and entered guilty pleas to the charges. However, on 18 October 2022, in a directions hearing in this court, your positioned changed. You no longer wanted to plead guilty to the charge of cultivating a commercial quantity of a narcotic drug, and the plea hearing set for 24 October 2022 was vacated.

39Thereafter, there were several court events, including an unsuccessful bail application, an informal sentence indication and a formal sentence indication hearing. By 9 May 2023, you had again pleaded guilty after rejecting the formal sentence indication given by a different judge of this court. The plea hearing on 11 September 2023 was adjourned by another judge to be heard by me, presumably on the basis I had sentenced your co-accused, Kien Vu.

40In terms of the timing of your guilty pleas, the effective pleas were not entered at the earliest reasonable opportunity, not that your counsel submitted they were. Theoretically, the criminal justice process started with the filing hearing and would have ended with a trial by jury. You enabled the process in the Magistrates’ Court to end early by allowing your committal at the fourth committal mention hearing.

41After several hearings in this court on 9 May 2023 you had pleaded guilty again. It has been a bumpy journey to this stage. The timing of a guilty plea is important for it affects the amount of resources devoted by the criminal justice system to your case. Here, more resources were used because of your change of mind. I would not describe your guilty pleas as early; they were entered towards the mid-point of the process.

42One of the advantages of an early guilty plea is it advances the course of justice by enabling other proceedings to proceed to finalisation earlier. Although you have used up some of this court’s resources in the various hearings, compared with the resources required in a jury trial, they amount to little.

43Often guilty pleas are evidence of an offender’s remorse. I do not accept they are in your case. They are an acceptance of the inevitable given the apparent strength of the prosecution’s case against you. I do not accept you are remorseful. By pleading guilty though, you have taken responsibility for your offending.

44The crisis addressed in Worboyes v The Queen[6] and other cases has abated. Recently, this court announced it had overcome the backlog of cases due to the pandemic. Nevertheless, the virus still disturbs the smooth running of jury trials in this court, whether through the unavailability of witnesses or the loss of jurors. There is still some additional discount available to a guilty plea over and above that available in usual times[7].

[6][2021] VSCA 169.

[7] See Biba v R [2022] VSCA 168 at [26] and DPP v Clark [2023] VSC 220 at [50].

45Your guilty pleas entitle you to a significant discount on the sentences which would have been imposed if you had been found guilty after a trial by jury. 

Custodial conditions

46For some of your time in custody you have experienced the greater restrictions caused by the pandemic, including more than two months spent in lockdown conditions where movement within and outside of prisons was limited.

47From the day you were committed until now is about 17 months. It is too long for the determination of a guilty plea, but some of the delay is due to your changing position on your plea. I note your case was set down for a plea hearing on 24 October 2022, but that hearing was vacated because you intended to change your plea to the principal charge. There is limited delay which is not attributable to your actions.

Parity

48Your counsel relied upon paragraph 30 of the judgment of the majority in Green v The Queen[8]:

'In Lowe v The Queen and in Postiglione v the Queen, this court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise.  Those decisions are not authority for the proposition that the principle applies only to persons so charged.  The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form.  Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application.  Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes.  The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant.  The existence of those difficulties may be accepted.  So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions.  Those practical difficulties and limitations, however, do not exclude the operation of the parity principle.  The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.'

[8] [2011] HCA 49.

49On 2 December 2022, I sentenced your co-accused, Kien Vu, on a charge of cultivating a narcotic plant to 332 days’ imprisonment and a community correction order of 12 months’ duration with special conditions of unpaid community work, supervision and assessment and treatment for drug abuse or dependency. The maximum penalty for that offence is 15 years’ imprisonment. The subject matter of Mr Vu’s charge was the same as in your case, namely, 271 plants weighing 18.115 kilograms. In my sentencing remarks, I described Mr Vu’s involvement[9]:

'…through your lawyers, you said you were there [at the Thomastown premises] to mix fertiliser and help your co-accused fertilise the plants.'

[9] [2022] VCC 2144 at [4].

50In my sentencing remarks, I did not say why Mr Vu was not charged with cultivating a commercial quantity even though the number of plants placed the offence in the commercial quantity category. The difference in the charges must lie in the lack of knowledge of the quantity of the drug. The prosecution could not establish Mr Vu’s knowledge of the quantity whereas it does so with you. That is, the prosecution could not establish Mr Vu intended to cultivate a commercial quantity of cannabis while it can do so with you. Exhibit A describes your far greater involvement in the cultivation of the cannabis than that of Mr Vu, especially through the analysis of your iPhone.

51Apart from the different maximum penalties, another difference in the charged offences lies in the charge of cultivating a commercial quantity of a narcotic plant. Under the Sentencing Act that offence is a category 2 offence. As such, I must impose a custodial sentence, not being a combination sentence, as contended for by your counsel, unless an exception applies. You rely on grounds which fall well short of the circumstances which are substantial and compelling and exceptional and rare and justify the approach advocated by your counsel. 

52In terms of criminal histories, you have one court appearance where the principal charge was the same as the principal charge here. You were sentenced to a significant term of imprisonment.

53Your co-accused, Mr Vu, had a more extensive criminal history than you. Between 5 September 2003 and 11 August 2021, he had appeared in a criminal court on four occasions and had been convicted of ten offences. Seven of those ten offences were drug related. His most severe sentence was imposed in this court on 17 July 2017 where he was sentenced to four years’ imprisonment with a non-parole period of three years’ imprisonment for trafficking a commercial quantity of a drug of dependence and burglary.

54The parity principle is an aspect of the fundamental concept of equal justice. In a passage quoted by the court in Green’s case[10]:

'Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant aspect.'

[10] At [28].

55Even though charged over the same plants, there are relevant differences between your situation and that of Mr Vu. You are charged with a more serious offence than Mr Vu. Why that was done did not rely on an idiosyncratic decision by the prosecution. The charge against you limited my sentencing options, including the sentence which I imposed on Mr Vu. There is a much greater maximum penalty for your offence than that of Mr Vu’s offence. Your involvement in the cultivation was much greater than that of Mr Vu.

56For those reasons, your sentences do not require an identical, or near identical, outcome with that of Mr Vu. Nevertheless, it is appropriate for me to sentence you because of my earlier sentencing of Mr Vu. 

Prospects of rehabilitation

57As I said earlier, although guilty pleas may be considered evidence of remorse, I am unable to find you are.

58While in custody, you have undertaken several courses with the Kangan Institute and completed subjects successfully. They are a Certificate II in Engineering, a Civil Construction Skill program, a Course in Initial General Education for Adults, a Certificate III in Cleaning Operations and a Certificate II in Skills for Work and Vocational Pathways. The results relate to 2022.

59These studies are encouraging. You are gaining qualifications which will assist in the workforce after you are released from custody. Stable employment assists in a person’s rehabilitation. Even though you committed these offences while employed, you are looking to the future.

60One should not overlook the deterrent effect of my sentences today. They demonstrate this type of offending receives significant sentences of imprisonment.  

61Overall, I consider your prospects of rehabilitation are most uncertain. I would not assess them as poor, as the prosecution contends.

Current sentencing practices

62In relation to current sentencing practices, the prosecutor referred me to four judgments of the Court of Appeal[11]. She also referred me to the sentencing remarks of the judge of this court who sentenced you in February 2018. Finally, she referred me to a sentencing snapshot for this offence, published by the Sentencing Advisory Council[12].

[11] Duc Nguyen v R [2021] VSCA 346; Minh Nguyen [2021] VSCA 211; Bui v R [2015] VSCA 313 and Thanh Nguyen v R [2019] VSCA 134.

[12] Number 271, April 2022. Four

Sentence

63On the charge of cultivating a commercial quantity of a narcotic drug, I sentence you to three years and three months’ imprisonment. 

64On the summary charge of dealing with the proceeds of crime, I sentence you to one month imprisonment.

65On the summary charge of committing an indictable offence on bail, I sentence you to one month imprisonment.

66The sentence on the cultivation charge is the base sentence. The sentences on the other charges will be served cumulatively upon themselves and upon the base sentence. The total effective sentence is three years and five months’ imprisonment. I will set a non-parole period of two years and seven months’ imprisonment.

67I declare your 689 days of pre-sentence detention (excluding today) as time served under my sentences.

S 6AAA

68If you had not pleaded guilty to these charges but were found guilty after a trial, I would have sentenced you to a total effective sentence of four years and three months’ imprisonment.

Disposal and Forfeiture Orders

69I will make the disposal order in the terms of the draft.  I will make the forfeiture order, but only in respect of the black Telstra mobile phone (Exhibit 4) and delete Item 2, Apple iPhone (Exhibit 11).  

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