Director of Public Prosecutions v Nguyen
[2023] VCC 1934
•24 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01321
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUNG NGUYEN |
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JUDGE: | HER HONOUR JUDGE ELLIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 October 2023 |
DATE OF SENTENCE: | 24 October 2023 |
CASE MAY BE CITED AS: | DPP v Nguyen |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1934 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: one charge of cultivating a narcotic plant – plea of guilty – no prior criminal history –
Legislation Cited: Crimes Act 1958 (Vic); Drugs Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Nguyen v The Queen [2019] VSCA 134; Nguyen v The Queen [2017] VSCA 286; Worboyes v The Queen [2021] VSCA 169; Nguyen v The Queen [2021] VSCA 346; Nguyen v The Queen [2016] VSCA 198; (2016) 311 FLR 289
Sentence: Term of imprisonment of 2 years 2 months, with a non-parole period of 14 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Liantzakis | Ms A. Ventura Office of Public Prosecutions |
For the Accused | Mr D. McGlone | Ms D. Jovanovska |
HER HONOUR:
1Hung Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant, namely cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant contrary to s72A of the Drugs, Poisons and Controlled Substances Act1981 (Vic). This offence carries a maximum penalty of 25 years' imprisonment.
2The circumstances of the offending were set out in a summary of prosecution opening for plea (Exhibit A). On 5 April 2022 at approximately 11.40 am, Victoria Police executed a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act1981 at 13 Mahogany Drive, Point Cook. The premises were leased in three names, and enquiries have since revealed that the names and identification provided to the landlord were fraudulent.
3Upon police knocking on the front door of the premises, you were seen to exit the back door and jump the rear fence. Police entered and observed a smoking cigarette butt on the coffee table in the lounge room and the sliding back door open. Police then commenced a search for the offenders.
4You were subsequently located on Yuruga Boulevard in Point Cook and arrested. You initially denied any involvement in being at the premises, stating you were visiting a friend, before ultimately making admissions to being at the address. You were conveyed to the Werribee Police Station for the purposes of a record of interview. On the way to the police station, you told police that you were at the premises to look after the plants.
5A search was conducted of the premises, and investigators identified that five of the bedrooms had been modified, each room being used for the cultivation of cannabis. All five rooms contained lights, shrouds and water systems. The following was located in each of the rooms:
·Room 1: 113 cannabis plants weighing 2.12 kilograms;
·Room 2: 20 cannabis plants weighing 20.08 kilograms;
·Room 3: 12 cannabis plants weighing 27.48 kilograms;
·Room 4: 10 cannabis plants weighing 12.38 kilograms;
·Room 5: 18 cannabis plants weighing 37.60 kilograms.
6Also located was an assortment of chemicals, plant nutrients, irrigation hosing, power transformers and equipment consistent with cultivation of cannabis in additional rooms within the residence. An electrical bypass had been established in the wall of the master bedroom wardrobe.
7Police also seized the cigarette butt from the ashtray on the coffee table and two teacups from the same table. In the garage, police located loose green vegetable matter (later determined to be 27 grams of cannabis) in the glovebox of a white Holden Commodore station wagon, registration 1AT 6PT (registered to a Huong Thi My Vu).
8A total of 173 cannabis plants were seized from the premises. A forensic botanist examined the plants, which weighed a total of 99.60 kilograms.
9A commercial quantity applicable to cannabis L is 25 kilograms or 100 plants. Accordingly, the weight of the plants was just under four times the commercial quantity applicable to that drug.
Record of interview
10You participated in a record of interview the same day as your arrest. In that interview, you made a number of admissions including:
·being at 13 Mahogany Drive, Point Cook;
·going to the address once a week on Tuesday and being there on three occasions;
·knowing there was cannabis in the bedroom;
·smoking cannabis every day;
·having loose cannabis in the vehicle; and
·running when police knocked on the door.
11You gave an account to police in which you said that your associate, Han, drove your girlfriend's vehicle to the address. You denied ever selling cannabis. You said that you were basically just there to 'help the guy out to do cleaning' and that you got paid for it. You said, 'Yes, I do know that there is illegal, like, cannabis inside the house'. You told police there was no evidence of you doing anything in the house such as harvesting, drying or anything at all. You said that all you do there is cut the grass, mop the floor and vacuum, and if anyone pressed on the doorbell, you would attempt to open the door and just talk to them.
12You told police that you were to be paid $4,000 every two months. You said that it was hard times and you needed money. You stated that when you heard police at the door, the other person that you were with started panicking and that you had no clue, but you just followed him and started running as well. You said there was no evidence of you watering the plants, and you said you were caught outside of the property and you were just there to do cleaning.
13You told police you knew the house had cannabis in there because you smoked it yourself. The person you were there with had said to you, 'Just do your cleaning. I'll do my own job. Like, you know, that's what you do'.
Mobile phone
14During the investigation, police examined your mobile phone and photographed the contents. These contained photographs depicting a hand holding green vegetable matter. The high-resolution photographs were later analysed for fingerprints, which returned a match to you. The contents of your phone were later downloaded, and police located a photo of a plastic bag containing green vegetable matter believed to be cannabis marked for deletion. The metadata reveals that the photographs were taken at an approximate address of 20 Marlin Crescent, Point Cook, which is 1.21 kilometres from the premises that were searched.
15Your phone also indicated a search history on YouTube conducted on 23 March 2022, with questions such as 'how to grow cannabis plant from seed' and 'how to germinate cannabis seed'. There were also videos, including 'beginner grower's guide to how to plant your cannabis seeds after you germinate them', other videos on how to germinate and plant cannabis seeds and how to grow marijuana indoors. Your phone also provided evidence of you entering the address of 13 Mahogany Drive on a Chrome app on 23 August 2021.
16Your phone was registered to a Mrs Thi Hoa Hoang, which police believe is a family member of your partner. Enquiries revealed that your mobile phone was in the Point Cook area on 22 March, 29 March and 5 April 2022. There were various text messages within your phone in which there was discussion about trafficking cannabis and other drugs of dependence. There were also Signal app exchanges between yourself and other individuals which depicted messages consistent with the possession of drugs of dependence and trafficking cannabis and drugs of dependence.
17The prosecution do not allege that you were trafficking in the cannabis that was being cultivated, and nor are you to be sentenced in relation to that. However, these messages are relied upon by the prosecution to support the assertion that the cannabis was being cultivated with a view to it being trafficked. The purpose of relying on these messages is to establish that your role in the cultivation went beyond that of a mere crop sitter.
18The prosecution submits that this demonstrates your level of awareness and that you were not simply at the premises to clean. It is submitted that you have a greater level of involvement than somebody who was attending to simply tend to the crop. I will come back to this shortly.
19You have not spent any time in custody in relation to this offending except for the five days on remand since your plea hearing, and you come before the court with no prior criminal history.
Sentencing Act Provisions
20The offence of cultivation of a narcotic plant in a commercial quantity is a category 2 offence.
21Pursuant to s5(2H) of the Sentencing Act1991 (Vic), the court must impose a custodial order (other than a combination sentence) unless an exception under s5(2H)(a)-(e) applies. There is no submission in this case that any of these exceptions are open.
Personal Circumstances
22Your personal circumstances were set out on the plea and detailed in a report prepared by clinical and forensic psychologist, Mr Jeffrey Cummins. You are now 32 years of age, having been born in Vietnam in July 1991. You arrived in Melbourne with your father when you were eight years old, and the two of you had previously spent two years living in New Zealand. You are now an Australian citizen.
23You have largely been in the care of your father, growing up. Your parents separated when you were aged six. Your mother remained in Vietnam and has since remarried and has one child from her current marriage. You speak with your mother approximately once per year.
24As I have said, you grew up in the care of your father. He lives in Melbourne and currently works as a chicken boner. He has since remarried and has two daughters from his second marriage. When you were about 16 years old, you were evicted from the family home by your father because you were not progressing well at school. You have not spoken with him in approximately seven or eight years. Your father is described as having been critical of you and frequently yelled at you. Neither of your parents have had any trouble with the law, nor have either of them had any problems with drugs or alcohol.
25You attended primary school in Melbourne, and by that time you were able to speak reasonably fluently in English. You attended high school but left midway through Year 10 due to poor attendance. You then enrolled in a carpentry apprenticeship at Victoria TAFE in Newport and completed this apprenticeship over five years. You initially attempted to operate your own carpentry business, but this was unsuccessful, and you began working as a carpenter via real estate agents. More recently, you have been working in the caravan industry at Essential Caravans. You have also been in receipt of a Centrelink pension, particularly during the COVID-19 lockdown.
26You began smoking cigarettes from the age of 15 and then experimenting with cannabis a year or so later. You have reportedly been a daily smoker of cannabis from the age of 18. Over time, you would typically smoke 1 ounce of cannabis per week. You told Mr Cummins that you now smoke cannabis once in a while; maybe every two weeks you would get through three or four bongs. You have never experimented with or regularly used any other drugs of dependence.
27From around the age of 18 up until about a year ago, you were frequently playing the pokies at various venues. You have acknowledged that, at times, you have been addicted. Over the past 12 months, you have played approximately once per week at the pokies. Although you say you are no longer addicted to gambling, it seems that this still presents something of a problem for you.
28You have never been married. You were in a relatively serious relationship when you were 23, but that ended after two years. You are currently in a relationship and have been with your girlfriend for approximately eight months. She currently works as a nail technician. She has prepared a reference and has come to court in support of you.
29I note that your character referees describe this offending as very much out of character and that you are deeply remorseful for your actions. The reference from your girlfriend attests to the support that you have provided to her and to her two boys. That you assist her with taking care of the boys, taking them to and from school, and that you are very generous with your time and money.
30I have also received a reference from a friend, Mr Hoang Duy Bui, who has known you for a number of years and describes you as a very talented young man. He notes that you always reflect on your own life choices, constantly striving for genuine self-improvement. You are willing to accept accountability for your actions through decency and reflection.
31Finally, a reference was submitted by your employer at Essential Caravans, who is aware that you are attending court in relation to a drug charge. He notes that you have consistently been observed to be a responsible and honest individual. Your quality of workmanship is praised highly by staff, employers and customers. You are said to be very generous with your time and have always been willing to attend for emergency work for rented households when required. Your employer considers that your offending is also very much out of character.
32According to Mr Cummins, you have no documented mental health history. Upon questioning by Mr Cummins, you said that you regarded yourself as a traumatised person but did not elaborate further on this issue.
33It is the opinion of Mr Cummins that you have most probably been intermittently suffering from symptoms of a major depressive disorder over many years dating back to your early to mid-teenage years, and that it is very probable you have been self-medicating on cannabis.
34Mr Cummins opines that you appear to have limited insight into your overall psychological functioning and into the seriousness of the offending to which you have now pleaded guilty. You are said to feel overwhelmed by your current legal predicament and have struggled to accept the notion that you will be facing a term of imprisonment in circumstances where you have expressed that the cannabis plants were not owned by you. It appears that you have been somewhat naïve in relation to the seriousness of the situation in which you ultimately found yourself.
35Mr Cummins has encouraged you to seek mental health treatment with a focus on your dysfunctional upbringing. In his view, you have probably been feeling psychologically lost for many years.
36It seems that your problems with gambling have led to you committing this offending. When you initially began gambling at the age of 18, you were able to pay for your gambling through your earnings. However, it is submitted on your behalf that following a downturn in employment in 2020, with the introduction of the COVID-19 restrictions, you were unable to find work and soon found yourself having accumulated a debt as a result of your gambling, which you could not repay.
37At this time, you were approached by a person by the name of Han, whom you knew from your work in the construction industry. You saw this as an opportunity to pay off your outstanding gambling debts and to maintain a lifestyle through which you thought you could impress your friends.
38Your counsel submits that you were arrested before you were ever paid for your involvement in this offending. Mr McGlone submits there is no evidence that you materially benefitted from the offending in any way, and you were only able to pay your outstanding debts after securing employment at Essential Caravans. On this point, the prosecution accepts that there is no evidence of enrichment in this case.
Nature and Gravity of Offending
39This is a serious offence which is reflected in the maximum penalty applicable. That Parliament has seen fit to make it a category 2 offence also reflects the seriousness with which Parliament views offences of this nature. The quantity of plants, being almost three and a quarter times the required 100 plants for a commercial quantity (or looking at it another way, the combined weight is almost four times the required weight to constitute a commercial quantity), makes this offending serious.
40I have had regard to the role you played. The prosecution submitted that your role extended beyond that of a mere crop sitter. Your counsel submits that I should not be satisfied that it goes much beyond that, acknowledging the text messages, but Mr McGlone submits this is consistent with you seeking to ingratiate yourself with the person who recruited you. You were clearly there to tend the crop and you did so over a period of just under three weeks. I take the duration of your offending into account. It was not lengthy, but nor was it confined to a single day.
41In the 2019 decision of Nguyen v The Queen,[1] the Court of Appeal said at paragraph 59:
While cases involving the commercial cultivation of narcotic plants are often categorised by reference to whether the accused is, on the one hand, a crop sitter or played some ancillary role or, on the other hand, was an organiser or played a principal or proprietary role, the issue of the role of an offender involved in such offending is not a binary one. Moreover, while the term 'crop sitter' may be a useful shorthand description in a case where it is clear that the offender's role is a low-level one, it is not a term of art of fixed and precise meaning. A sentencing judge is required to sentence an offender found guilty of commercial cultivation of a narcotic plant by reference to all of the facts of the case (including all of those able to be gleaned about the offender's role and involvement) and not by reference to whether the offender can be given some particular appellation.
[1] [2019] VSCA 134 (Priest and Beach JJA).
42In determining the extent of your role, I have had regard to the various factors identified by the Court of Appeal in the 2017 decision of
Nguyen v The Queen.[2] These include the tasks performed by you in the enterprise, the nature of your relationship with the principles 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. There is no evidence as to you having a particularly advanced relationship with those responsible for the crop, but clearly there was some degree of trust vested in you. You expected to be well paid for your role in the enterprise.[2] [2017] VSCA 286 [27].
43The set-up within the house was sophisticated, and although it is not submitted that you were involved in the hydroponic set-up or with the electrical bypass, it would have been apparent to you that the grow operation was considerable. The crop house was well established, and the presence of the electrical bypass is relevant to the assessment of the gravity of the offending.
44I accept that you likely found yourself caught up in a situation which may have been more advanced or serious than you initially appreciated. I accept that you engaged in this offending in order to pay off your debts and, accordingly, you were motivated by money. I accept that you do not appear to have been enriched in any way by this.
45As I have noted, the prosecution relies on text messages and Signal messages on your phone as evidence that perhaps you stood to gain a more significant financial benefit for your involvement in this offending. I am not sure that it quite goes to this level, but I accept that it does demonstrate that you had some understanding as to the purpose of your role to grow and tend to the cannabis crop. The searches conducted on your phone indicate that you were not oblivious to what it was that you were being asked to do and, at the very least, you were seeking to ensure that you carried out your role properly.
46I accept that there may have been a degree of naivety as to the seriousness of your offending, but you must have had some awareness that the ultimate gain was to traffic in the cannabis to which you were tending. This is indeed reflected in the text messages. Again, I note you are not to be sentenced for trafficking. It seems that there were others involved in the enterprise, and you were not the architect of this crop, nor was it yours to manage alone.
Plea of Guilty
47I take into account the fact that you have pleaded guilty at the earliest opportunity. You were arrested and charged on 5 April 2022 and pleaded guilty at a committal mention on 27 July of the same year. There has been some delay in these proceedings, but they are not attributable to you. The matter was initially listed for a plea hearing in February of this year, but it was adjourned to enable your counsel to obtain further plea material by way of a psychological report. By entering a plea of guilty, you have spared the court and the community the time and expense of running a trial. Your plea has a utilitarian value, and it also indicates that you have accepted responsibility for your offending. It is also some evidence of remorse.
48The fact that you entered a plea of guilty at a time when the courts were affected by a considerable backlog of trials as a result of the COVID-19 pandemic means that you are entitled to an additional discount for pleading guilty. As the Court of Appeal articulated in Worboyes v The Queen,[3] there should be an amelioration of sentence as a consequence of pleading guilty in the climate of the pandemic. Given that you entered a plea in July last year, and at a time when the backlog was considerable, I take this into account in the way envisaged by the court in Worboyes.
[3] [2021] VSCA 169 ('Worboyes').
Prospects of Rehabilitation
49Given the fact that you have no prior criminal history, that you accepted responsibility for this offending, coupled with the impression that you now appear now to understand the gravity of the situation in which you now find yourself, I consider that you have extremely good prospects of rehabilitation.
Sentencing Purposes
50The basic purposes for sentencing are 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 offending from doing so. So much has been made clear in the 2021 Court of Appeal decision in
Nguyen v The Queen.[4] When it comes to offences of this nature, general deterrence has been described as the paramount sentencing purpose. Sadly, people like yourself, with no prior criminal history are vulnerable to being recruited into this sort of offending. This only enhances the need for general deterrence to be given considerable weight in the sentencing process. The sentence I impose must also deter you from committing further offences in the future. It is also necessary to denounce your conduct whilst ensuring that the penalty is one that is just.[4] [2021] VSCA 346 [38]-[41].
51I must also ensure that the sentence is one that enable you to rehabilitate, which is very much in the community's interests.
52As noted when I remanded you following your plea hearing on 19 October 2023, this is your first time in custody, and you are understandably somewhat anxious about that.
Current Sentencing Practices
53I am obliged to have regard to other sentences for similar offending and I have done so. Current sentencing practices is but one of the factors I must consider. Self-evidently, no two cases are alike. I have had regard to the 2016 Court of Appeal decision in Nguyen v The Queen.[5]
[5] [2016] VSCA 198; (2016) 311 FLR 289.
54Your counsel submits that I ought to impose a straight sentence of imprisonment. However, given the importance of general deterrence, I am not satisfied that this would adequately reflect the gravity of the offending. Nor would it be consistent with current sentencing practices. I have determined that a head sentence with a non-parole period is warranted here, but I have imposed a longer period of parole to reflect your lack of prior criminal history, plea of guilty and the importance of ensuring your rehabilitation.
Sentence
55Can you stand up, please, Mr Nguyen.
56On Charge 1, the charge of cultivate narcotic plant in a quantity not less than the applicable commercial quantity, you are convicted and sentenced to two years and two months' imprisonment. I fix a non-parole period of 14 months. This is the period of time you are required to serve before becoming eligible for parole.
57I declare five days' pre-sentence detention to be deducted from the sentence.
58I also indicate that but for your plea of guilty, I would have sentenced you to two years and eight months' imprisonment with a non-parole period of 18 months.
59You can have a seat, thanks, Mr Nguyen.
60OFFENDER: Yes, Your Honour.
61HER HONOUR: Finally, I make the order for disposal and forfeiture, which I understand is unopposed.
62HER HONOUR: Thank you.
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