Director of Public Prosecutions v Nguyen
[2023] VCC 626
•18 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR-22-02254
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THI HANG NGUYEN |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 April 2023 | |
DATE OF SENTENCE: | 18 April 2023 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 626 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Cultivate a narcotic plant not less than a commercial qty – sophisticated hydroponic set up - crop sitter
Legislation: Sentencing Act 1991; s5(2H); Drugs, Poisons and Controlled Substances Act 1981
Cases cited:Nguyen v The Queen [2010] VSCA 11, DPP v Duong [2010] VSCA 250, Tuan Doan v The Queen [2010] VSCA 250, Nguyen v The Crown [2016] VSCA 198, Worboyes v The Crown [2021] VSCA 169
Sentence: Convicted and sentenced to 15 months' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Tamburro | Director of Public Prosecutions |
| For the Accused | Mr J. McGarvie | Stary Norton Halphen |
HIS HONOUR:
1
Thi Hang Nguyen, in the County Court of Victoria at Melbourne today, which is 18 April 2023, you have pleaded guilty to a single charge of cultivating a narcotic plant in not less than a commercial quantity on indictment No.N10607599.
The charge has a maximum sentence of 25 years' imprisonment.
2 This charge is a Category 2 offence under the Sentencing Act which means this court must order a term of imprisonment only, unless you can establish an exception pursuant to s5(2H) of the Sentencing Act.
3 You have no prior criminal history alleged against you, and consequently the serious offender provisions of the Sentencing Act do not apply in your case.
The circumstances of your offending
4 The prosecutor tendered a Summary of Prosecution Opening for Plea dated 16 March 2023. It was Exhibit ‘A’. The prosecutor read the summary into the record of the court.
Background
5
In November 2022, Nhung Thi Thanh Pham, who is known as “Pham”, purchased a property at 1 Evans Street in Lalor. The property was settled in
February 2022. Mr Pham advertised the property for lease in a Vietnamese newspaper and on Facebook.
6 On 10 February 2022, Mr Ha S. Nguyen contacted Pham on Facebook Messenger, making an application to lease the property. The two men agreed to a rental of $380 per week. Mr Pham then went overseas, and Mr Nguyen took possession of the Lalor property.
7
On 28 March 2022, at about 6.30 in the evening, the police forced entry to the Lalor property. The police had with them a relevant search warrant. The police discovered a hydroponic cannabis crop set up throughout the house at the
Lalor property. The house had three bedrooms.
8 In the first bedroom, located immediately to the right of the front door, it contained hydroponic lights, a carbon air filtration system, a watering system, and large sized cannabis plants. The large plants appeared to be maturing and contained flowering heads. The plants were supported by bamboo stakes and plastic ties.
9 The second bedroom was the next one over from the first bedroom. It contained hydroponic lights, a carbon air filtration system, a watering system, and flowering cannabis plants in plastic pots of varying sizes.
10 The third bedroom contained hydroponic lights, a carbon air filtration system, and large cannabis plants in plastic pots. The large sized plants appeared to be maturing and contained flowering heads. The plants were supported again by bamboo stakes and plastic ties.
11 The hydroponic crop is properly shown in the photographs contained within the deposition pp139 to 150, which is Exhibit ‘B’. The irrigation system was set up in the laundry with a black tub and water pump.
12 Fertilisers and other cultivation equipment was found in the bathroom, the laundry and the kitchen. The house also contained other features indicative of a hydroponic growth system such as garbage bags of waste material; makeshift electricity circuits added to the various walls, including an electricity diversion in the ceiling.
13
Following the search of the house the police seized 95 cannabis plants from
the three bedrooms. In total there was 12 plants from the first bedroom which weighed 20.15 kilograms. There were 71 plants seized from the second bedroom weighing 951.6 grams, and in the third bedroom 12 plants were seized, weighing 19.4 kilograms. According to the analyst, the 95 plants determined their total weight to be around 40.5 kilograms, which is 1.62 times the commercial quantity threshold prescribed under the Drugs, Poisons and Controlled Substances Act (“DPCSA”)
14 You were arrested at the property. A male at that time, a co-accused was also detained by police, but I have been informed has subsequently, or will have the charges against him withdrawn.
15 You were searched and found in possession of a phone; $150 in cash; a bank card in your name, and a South Australian driver's licence in another person's name.
16 Your clothes appeared to be covered in green plant clippings and they smelled strongly of cannabis. You told the police the clippings were from having just mowed the lawns, although the grass in the back yard did not appear freshly mowed at the time of the police attendance.
17 You asked to speak to a lawyer, and police told you that they had organised one for you at the Preston police station.
18 During the search the police identified a Ring CCTV security camera in the wall socket in the rear room. A review of the footage revealed that you had attended the Lalor property on nine occasions between 12 and 26 March 2022.
19 On 28 March 2022, you were interviewed at the Preston police station. You had the assistance of a Vietnamese interpreter. During that interview you made the following statements:
(a) You were at a friend's house to help out because your friends had gone to Sydney for two days;
(b) You were asked to help so you went there, opened up and had a look. You were asked to put some water inside;
(c) By ‘put water inside’, you meant to take the hose, put it inside and turn it on and go home;
(d) You had only attended the house twice;
(e) The first time you attended the house you did not take any notice of any of the plants there;
(f) Everyone told you the plants were cannabis and that you knew they were cannabis;
(g) You knew it was illegal to grow cannabis in Victoria;
(h) You had been at the house 10 minutes before the police arrived;
(i) The plant clippings on your legs were definitely grass from the lawn; and
(j) You were not aware of any CCTV in the house and was not aware of the Ring CCTV application being installed on your phone.
20 You have been in custody since your arrest on 28 March 2022. You have served 386 days pre-sentence detention, not including today.
Personal circumstances
21 You are now 37 years old. You have been in custody since your arrest for this offence on 28 March 2022. You have no prior convictions.
22 I was informed during the course of the plea hearing that there is an outstanding warrant for alleged drug offending in South Australia. You are entitled to the presumption of innocence in regard to that matter in this sentencing process.
23 You are a survivor. You were born into a poor family in rural Vietnam. You have two older brothers and one younger brother. Your mother died when you were nine years of age. Your father worked as a fisherman and was away from the family home for extended periods.
24 You and your siblings worked in all forms of domestic duties, including cleaning, doing laundry, and picking up rubbish for other member families of your village. You only had two years of formal education in Vietnam. When you were approximately 10 years of age and home alone, four men came to your house and raped you. You have survived this egregious event.
25 At the age of 13 years old, your father was injured and was unable to continue working as a fisherman. Partly in grief and partly from being unable to work, he succumbed to alcoholism and his role as a father for you diminished accordingly.
26 Between the ages of 16 to 21 years old, you moved to Saigon and worked in various factory roles, including the making of shoes and soft toys. At 21 years of age, you returned home to your village and married in the following year. You had your only child, a daughter, when you were 22 years old.
27 Unfortunately, your husband was a gambler and a drunk. He beat you and physically abused you. He wanted you to work in the sex industry to make money for your family. Despite your lack of education, you managed to obtain a low-level administrative job with an insurance company and came to Australia on a conference visit in 2010.
28 Whilst you were here in Australia you met other Vietnamese women who encouraged you to stay in Australia and not return to your abusive marriage. Your plan at that stage was to stay in Australia, make enough money to get your daughter to Australia, and thereafter raise her here. None of that plan has been realised.
29 Your daughter, who is now 15 years old, has been raised by your cousin since she was two. Whilst you have worked in Australia you have remitted funds to Vietnam to support your daughter and your estranged husband. Your return to Vietnam will be complex and challenging for you.
30 Whilst you have been in Australia you have worked in low paid jobs in the fruit and vegetable and agriculture sector. You initially worked in Werribee and more recently in South Australia. You injured your back in 2021 and moved back here to Victoria. It was in this time that you were introduced to the offer of watering some plants and being offered $300 for your role. I have been told you were never paid.
31 You have no history of drug addiction or drug use, issues with gambling or other indicators that lead to criminal activity.
32 You have been assessed by Jeffrey Cummins, a forensic psychologist. His report dated 17 March 2023 was Exhibit 2. He has not diagnosed you with any psychological or psychiatric disorders. He noted you were having counselling from West CASA. That report was Exhibit 3. Ms Halliburton from CASA describes you as resilient and hardworking.
33 Whilst you have been in Dame Phyllis Frost Prison you have worked in the laundry. You have also attended limited education courses in the prison. That education was set out in Exhibit 4.
34 Your involvement in this crime has evolved as a result of a seriously compromised childhood and a life experience of deprivation and little to no formal education. You have survived sexual assault as a young girl and physical abuse for the short duration of your marriage in Vietnam.
35 You have worked in low paid agricultural work within the community of fellow Vietnamese workers. Once you were injured at work, your options for financial survival were compromised in a setting where you were an unlawful non-citizen. Consequently, I conclude your moral culpability for this offence is moderated by a combination of those circumstances. Your level of moral culpability for this offending will be reflected in the sentence.
Sentencing considerations
36 The basic purpose for which a court may impose a sentence of imprisonment are just punishment; deterrence both specific and general; your rehabilitation, and denunciation of your actions and the protection of the community.
37 I have to have regard to the seriousness of the offence, your culpability for it, and your personal circumstances. I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, an offender such as yourself is rehabilitated and reintegrated into society, either here or elsewhere.
38 You have no prior convictions here in Australia and, as far as I know, nothing contrary to your prior good character in Vietnam. This has been your first period of incarceration. To date you have been in custody for a total of 386 days.
39 I take into account your plea of guilty to this offence. Your plea of guilty is at an early stage. In the sentencing process you are entitled to the full benefit of an early plea of guilty.
40 Your plea of guilty to this charge has utilitarian value to the community. Your plea of guilty has saved the community the expense of court proceedings, including a trial. Your plea of guilty has given certainty of outcome for this case and your plea of guilty, combined with your statements to Mr Cummins, are evidence of your remorse in this case. I accept that you are remorseful for this offending.
41 Your plea also demonstrates you are willing to facilitate the course of justice in this community, and it clearly indicates that you accept your responsibility for your criminal conduct.
42 I accept that your plea of guilty in the circumstances of the tail end of the COVID-19 pandemic has substantial utilitarian value. The practical management of jury trials in this state is yet to be fully resolved. You have not sought to delay the finalisation of this prosecution by conducting a trial on some unknown future date.
43 In addition, it is relevant to take into account some of the lockdown restrictions which you would have experienced in the course of your time on remand, as indeed all prisoners in Victoria. In short, you are entitled to a consideration of what is called the ‘Worboyes discount’ in the finalisation of your sentence.
44 As part of the governing principles to be considered in sentencing, I must take into account current sentencing practices. That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases. The prosecution submitted nine comparable cases for my consideration in this case. I have considered those cases and the statistics in relation to sentences and current sentencing practices.
45 I am mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. Current sentencing practices are but one of the factors I am required to regard in fixing your sentence.
46 Section 5(2H) of the Sentencing Act is relevant because this offence
is described as a Category 2 offence. Your counsel, Mr McGarvie,
appropriately conceded you could not satisfy the requirements under
s5(2H)(a), (c), (d), or (e), which means a period of imprisonment is the only appropriate sentence.
47 The objective seriousness of your offending is indicated by the following factors:
(a) You had attended the premises on nine occasions between the charge dates of 12 and 26 March 2022;
(b) The cannabis crop found at the premises was a substantial crop. It consisted of 95 plants and 40.5 kilograms of cannabis;
(c) The weight of the cannabis is 1.6 times the commercial quantity of cannabis under the DPCSA;
(d) The premises was a sophisticated hydroponic arrangement with three separate rooms with various stages of cannabis plant growth;
(e) The premises was fitted with lamps, air filters, irrigation systems and an extra power system to facilitate the hydroponic growing of cannabis;
(f) The only evidence in this case about your financial benefit is your statement to Mr Jeffrey Cummins that you were offered $300 to water the plants for
two to three days. As I stated earlier, it seems you were not paid due to your arrest.
(g) Your role in this hydroponic cannabis crop was that of a crop sitter for the charge period.
48 I assess your role at the lowest end of what is described in the authorities as the mid-range for this type of offending. Your role is for a limited time involving nine visits to the crop. You were to be paid a relatively small amount of money for your work. Nevertheless, without your involvement in this criminal enterprise the cannabis crop cannot be grown and/or harvested. In short, the activity of watering and tending to the cannabis crop is integral to the success of the criminal enterprise conducted by persons unknown and undisclosed.
49 The Court of Appeal in Victoria has made a number of pronouncements on the seriousness of the charge of cultivating a commercial quantity of cannabis L. President Maxwell, as he then was, in Nguyen v the Crown [2010] VSCA 11, said about the seriousness of this offence as follows:
'As has been regularly pointed out in sentencing decisions, this is an offence for which Parliament has set the highest maximum penalty in the criminal calendar, 25 years' imprisonment'.
50 In a later case of the DPP v Duong, also reported in [2010] VSCA 250, Buchanan JA stated as follows:
'The maximum penalty of 25 years shows unambiguously how seriously the community, through Parliament, view this conduct'.
51 The case of Duong was followed in a case of Tuan Doan v The Queen where Forrest JA stated as follows:
'The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum of 25 years' imprisonment. Whilst there is no doubt that the role played by the appellant was of a menial nature, it was nonetheless necessary for the crop to flourish. The maximum penalty fixed by Parliament unambiguously demonstrates how seriously the community views this conduct'.
52 Furthermore in the case of Doan, Nettle JA stated as follows:
'I only wish to add a brief observation concerning the submissions advanced on behalf of the appellant, that the judge erred in the emphasis which His Honour placed on the importance of general deterrence. In my view, lest there be any doubt about it, there should be no doubt that in cases involving the cultivation of narcotic plants in not less than a commercial quantity, general deterrence is at the forefront of the sentencing considerations.
'Consequently, as the judge rightly observed, in cases of this kind there is less room to give weight to the considerations such as youth and antecedents that would otherwise be the case. In the result the judge also correctly found in a case of this kind that an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable'.
53 I also refer to a case of Nguyen v The Crown reported at [2016] VSCA 198. This case was also referred to both by the prosecutor and your counsel today. In that case the Court of Appeal found that the current sentencing practices for this offence did not reflect the objective seriousness of the mid-range offending.
54 In a sentencing regime based substantially on the quantity of narcotic plant, you have pleaded guilty to cultivating a crop of 95 plants which weighed
40.5 kilograms of cannabis. As I said earlier, the weight of the crop is 1.6 times the commercial quantity. It was a substantial crop.
55 I take into account your personal circumstances. You have no prior criminal record. You are an unlawful non-citizen, your visa to Australia having expired years ago. I anticipate you will be deported to Vietnam at the expiration of your sentence.
56 I have regard to the fact that your time in custody both on remand and as a sentence prisoner will be more difficult for you due to having no family here in Australia. You have telephone contact with your sister-in-law, and on occasion with your 15-year-old daughter. I accept that this lack of connection to family makes your time in custody more onerous. I also take into account some of your time in custody has been subject to the COVID-19 restrictions, which again is another factor making your incarceration more onerous.
57 I also take into account the fact that most likely you will be deported to Vietnam at the completion of your sentence. The uncertainty surrounding your future is a matter I take into account. Your hope and plan to remain in Australia has been interrupted by this offending and this sentence. You have been in Australia since 2010, and will be returned to your country of origin after an absence of 13 to 14 years.
58 I assess your prospects of rehabilitation as good. You have no prior criminal history. Despite your deprived upbringing and moving to a country where you did not speak English, you have managed to work and support yourself over the whole of your life. When you return to Vietnam you will be able to reengage with your family and your daughter, and hopefully return to a law-abiding life.
59 The principles of sentencing, but particularly general deterrence and also specific deterrence, denunciation of your actions and protection of the community are the most important considerations in your case. A term of imprisonment is the only appropriate and just sentence.
60 On the charge of cultivating cannabis in not less than a commercial quantity you are convicted and sentenced to 15 months' imprisonment. I declare you have served 386 days pre-sentence detention, not including today.
61 But for your plea of guilty, pursuant to s6AAA of the Sentencing Act, I would have sentenced you to three years' imprisonment with two years and
four months non-parole period.
62 There has been a disposal and a forfeiture order, which I assume is not opposed.
63 MR McGARVIE: That's right, Your Honour.
64 HIS HONOUR: Thank you. I have signed both the forfeiture and disposal orders. Ms Nguyen, in effect that is a sentence, what we call a straight sentence of 15 months. Of that sentence you have served 386 days, not including today. Is there anything further?
65 MR TAMBURRO: Nothing further from the Crown, Your Honour.
66 HIS HONOUR: Thank you.
67 MR McGARVIE: No.
68 HIS HONOUR: Thanks. I think they will be taking your client straight back to the prison now.
69 MR McGARVIE: They might. I wonder if I could ask that I just have a couple of minutes with Ms Nguyen and the interpreter in the dock, if that is all right.
70 HIS HONOUR: Yes, I'll do that. I'll remain. You can speak freely ‑ ‑ ‑
71 MR McGARVIE: Yes, yes.
72 HIS HONOUR: ‑ ‑ ‑ to them. I'll just remain here to make sure everything is the same.
73 MR McGARVIE: If the court pleases.
74 MR TAMBURRO: If the court pleases. Thank you, Your Honour.
75 HIS HONOUR: There's no hurry, Mr McGarvie.
76 MR McGARVIE: Thank you.
77 HIS HONOUR: Madam Interpreter, thanks very much for your assistance and particularly thanks for coming back so we could finalise this matter today.
78 INTERPRETER: Yes, I'm very happy to.
79 HIS HONOUR: Thank you.
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