Director of Public Prosecutions v Nguyen
[2023] VCC 206
•16 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Horsham CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 22-02146
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| QUY NGUYEN |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Horsham | |
DATE OF HEARING: | 13 February 2023 | |
DATE OF SENTENCE: | 16 February 2023 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 206 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Plea of guilty - Cultivate commercial quantity of narcotic plants – fail to display L plates – drive as learner driver without experienced driver – risk of deportation – low moral culpability
Legislation Cited: Sentencing Act 1991 (Vic), s 5(2H); Migration Act 1958 (Cth)
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: 14 months’ imprisonment
Convicted and discharged of related summary offences
s 6AAA: 2 years’ imprisonment with a non-parole period of 14 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McKenry | Office of Public Prosecutions |
| For the Accused | Mr R. Barton | Sarah Pratt & Associates |
HER HONOUR:
1Quy Nguyen, you have pleaded guilty on indictment to one charge of cultivating a commercial quantity of a narcotic plant, namely cannabis. Additionally, you have consented to two summary related offences of being a learner driver and driving a vehicle without an experienced driver and not displaying L plates when driving being dealt with by this Court and you have pleaded guilty to each of these offences.
Circumstances of offending
2The full circumstances of your offending have been set out in some detail in the summary of prosecution opening. This document was tendered on the plea and marked as Exhibit A. A summary of your offending is as follows: on Wednesday 2 February 2022, you were intercepted by police driving a white Toyota Camry sedan on Ararat Road in Stawell. You were alone in the vehicle.
3When you were approached by police, they requested to see your licence and you showed them your international licence. It however became apparent that you had a Victoria Learner's Permit only and that that expired on 30 January 2028. That gives rise to one of the related summary offences, number 6.There were no L plates displayed on either the front or the rear of your vehicle and that gives rise to the other related summary offence, Charge 7.
4You told the police that you were in Horsham to sell some lights, however, the person did not turn up. Your story changed and the police became suspicious and then conducted a search of your vehicle, under the Drugs, Poisons and Controlled Substances Act.
5When you got out of your vehicle, you tried to hide an item in your hand. The police asked to see the item, and you showed them a bottle of liquid plant growth hormone, called 'Clonex rooting hormone gel'. You also had $577.50 in cash in your wallet. You also showed the police five cardboard boxes that contained what were labelled 'grow lamps' that were in the boot of the car. The police also found a book in the vehicle which was titled 'Marijuana Growers Handbook' and that was on the back seat.
6You offered to show the police the person you were going to sell the lights to and you unlocked your phone. When the police had a look at your phone, they saw a room in a house containing what appeared to be a large amount of cannabis plants being grown. There was also a photo of the exterior of a house showing number 4 and a large Yakka plant next to the front door. When asked about the house, you stated you did not know the address, however, it was near Target in Horsham.
7Horsham police made enquires and located the address as 4 Schwarz Avenue in Horsham. They then took photographs of the property and sent them to the police that were speaking to you. You confirmed that this was the correct address and that you had been there earlier in the day and it was full of cannabis plants.
8You were then arrested for the offence of cultivate and possess cannabis and at this stage you were given your caution and rights. You were taken back to Stawell police station for further enquires and interview. You were then taken to the Horsham police station and you were able to get some legal advice over the phone.
9At around 2.40 pm, the police executed the search warrant at the above premises, at 4 Schwarz Avenue, where they located a large hydroponic cannabis operation, including seven rooms which contained a total of 173 cannabis plants, of which approximately 142 were of a mature size, capable of harvesting. The police also located a large quantity of dried cannabis head in the central dining area of the premises, which had been harvested from one of the rooms and was being trimmed and prepared for transport. All items were seized by police and held at the Horsham police station.
10A forensic scientist with the Victoria Police Forensic Services Centre examined the plant material and found it to be the in a variety of forms including female flowering heads in dried condition, female flowering branches, female flowering heads and leaf and female flower fragments; cannabis mixed with plant material which could not be identified; stripped stems that dried but in a slightly mouldy condition; plants that were in a fresh condition about 13 to 16 centimetres in height that were slender and immature; cannabis plants in a wilted to dried condition measuring up to approximately 46 centimetres in height; cannabis plants in a wilted condition that measured approximately 117 to 138 centimetres in height; bushy female cannabis plants that were mature; cannabis plants in a wilted condition approximately 120 to 134 centimetres in height; cannabis plants in a fresh to slightly wilted condition that measured approximately 55 to 62 centimetres in height; cannabis plants that were approximately 120 to 128 centimetres in height; and cannabis plants that were 23 to 57 centimetres in height; cannabis plants that were in slightly wilted condition and measured approximately 12 to 15 centimetres in height.
11In total, the police located just over 100 kilograms of cannabis which included the 173 plants.
Nature and gravity of offending
12The cultivation of a narcotic plant in not less than a commercial quantity is an inherently serious offence as is evidenced by the maximum penalty of 25 years' imprisonment and its designation as a Category 2 offence under the Sentencing Act. Subsection 2H of s5 of that Act states that the Court must impose a custodial order for this offence, unless a special reason as set out in paragraphs (a) to (e) of that subsection exists. In determining the gravity of any drug offence, the circumstances of the particular offending, the amount of drug involved and the role of the offender are all important considerations.
13The weight of cannabis in your case was four times the commercial quantity. Further, there was a sophisticated setup that included a bypass of electricity and an elaborate hydroponic set up. Fertiliser, lights, a book about growing cannabis were located in the car you were driving. Further, when police searched the house at Schwarz Avenue, there was cannabis in various forms and stages that evidenced the ongoing nature of the enterprise.
14Your counsel, Mr Barton, submitted that although the offending was serious your role and your moral culpability were low. You had only become involved in this offending for a week through helping an 'uncle'. There was no evidence that you have received any profit or that you might receive any benefit in the future. In addition, there was no evidence of your involvement in the setup of what could only be described as a 'grow house'. Mr McKenry for the prosecution conceded that the Crown could not dispute this position. I accept that your moral culpability is low and that you should be seen as a crop sitter who was involved for a limited duration.
15The two summary related driving offences are punishable by fines only and with regard to this offending, I take into account that there was no bad driving involved on your part and that you had an international licence.
Personal circumstances
16I was told that you were born in May 1995 and you are currently 27 years of age. For the last 376 days - it is probably actually 379 days now - you have been incarcerated. For you, the consequences of your offending have been direct and extreme. This is particularly so in light of the fact that you have no prior history.
17You were born in Viet Tri in northeast of Vietnam. You came to Australia in 2014 on a student visa. You have no family or relatives in Australia and have very few, if any, friends. Your experience in custody in these circumstances has been isolating. You have had no visitors and your only contact with the outside world has been the occasional phone call to your parents and family in Vietnam.
18Your parents and two younger brothers live in Vietnam. Your father ran a family business supplying ceramic tiles to the construction industry in Vietnam. Unfortunately, this business went bankrupt in 2017. At this time. you applied for a protection visa, which is yet to be processed.
19Whilst in Vietnam you completed your schooling and came to Australia to study. Initially, you settled in Queensland and studied English. You moved to Melbourne in 2018 after enrolling but then abandoning a marketing course.
20Whilst in Australia, I was told you have had various forms of employment including working casually in Vietnamese and Chinese restaurants. You have also worked in the building industry laying ceramic tiles. Whilst in custody, you have worked cleaning offices, which sounds to be a trusted position.
Plea of guilty
21I accept your plea was entered at a relatively early stage prior to a contested committal where no witnesses were cross examined.
22Your plea has a significant utilitarian value in that it has spared the court the time and expense of what would have been a reasonably lengthy trial.
23I also consider that your plea of guilty and partial admissions to police demonstrate some acceptance of responsibility by you for your offending and they are also indicative of some remorse.
24Although there have been inroads made by the court into the backlog of cases in the wake of the COVID-19 pandemic, what the Court of Appeal have said in the case of Worboyes v The Queen remains relevant. I therefore give greater weight in mitigation to your plea of guilty recognising that it is a plea that has eased the burden of the backlog of trials. Accordingly, I propose to allow a significant discount for your plea of guilty.
Deportation
25Mr Nguyen, you are not an Australian citizen. Given your offending, you are very much at risk of deportation. I understand that you have a bridging visa and upon release from prison, you would be transferred to immigration detention if your bridging visa were to be cancelled.
26You have lived in Australia since 2014. You have no ties in Australia and all your family are in Vietnam. A sentence of 12 months' imprisonment or more triggers the mandatory cancellation provision of the Migration Act[1] and places you at risk of deportation and you have now been in custody for over a year.
[1]Migration Act 1958 (Cth).
27I accept that the prospect of deportation has made your time served in gaol on remand somewhat onerous. I also accept that deportation, should it occur, would constitute an additional punishment because it would destroy the opportunity for you to settle permanently in this country. The courts have recognised that the impact of deportation may vary depending upon the offender's circumstances. I consider that in your case that there will be some impact upon you but in circumstances where you have no real ties to Australia and family in Vietnam, deportation will not be as onerous for you as it is for others who are well-settled and well-connected in this country. I take into account the likely consequences of the risk of deportation to the extent I can in your case. In doing so, I am mindful that such consequences cannot replace or stand as a proxy for the imposition of an appropriate sentence reflecting the nature and gravity of the offending before the Court.
Sentencing principles
28The basic purposes for sentencing are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. I note that there are no victim impact statements in this matter, but it is clear and well‑known that drugs cause substantial harm to the community. There is certainly a need in this case to deter others who might be minded to engage in offending similar to yours.
29I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case. I have also had regard to the current sentencing practices for cultivation of a commercial quantity of cannabis. Also, I have had regard to the principles of parsimony and proportionality.
30There was no dispute between the parties that a term of imprisonment is warranted for your offending. In light of the nature and the gravity of your offending, I consider that a term of imprisonment is the appropriate sentence. There was no evidence put before the Court to support your counsel's submission as to the actions of the Adult Parole Board. I accept that you would have anxiety about your future in terms of issues of parole, but I have come to the conclusion that a straight sentence of imprisonment is appropriate in your case.
31In reaching this view, I have taken into account the time you have already served in custody and your role in the offending. I have no reason to question that you have anything other than positive prospects for rehabilitation given this is your first offence and you have been directly and immediately punished in the most severe way. It would therefore be entirely artificial to set a period of parole to a sentence that you have effectively or to some extent already served.
32Taking into account all relevant matters and the submissions of the parties, on the charge of cultivation of a narcotic plant in a commercial quantity, you are convicted and sentenced to 14 months' imprisonment.
33Pursuant to s18 of the Sentencing Act, I declare that you have served 379 days as presentence detention.
34On each of the two summary related offences of driving without an experienced driver and driving without L plates, you are to be convicted and discharged.
35Pursuant to s6AAA, but for your plea of guilty I would have sentenced you to two years' imprisonment with a non-parole period of 14 months.
36I intend to make the disposal order in the terms sought by the prosecution.
37Now, is there anything further, either Mr Barton or Mr McKenry?
38MR McKENRY: No, Your Honour.
39MR BARTON: No, the disposal order is consented to.
40HER HONOUR: Thanks for that, Mr Barton. So Mr Nguyen, 14 months. So that means you have got a little over a month or about a month and a half to serve and then you are on a bridging visa so presumably you will be released and there may be action taken later down the track. But that is a matter for another organisation and not me. All right.
41OFFENDER: Yes, thank you. Thank you so much.
42HER HONOUR: Thanks. Mr Barton, I'm not sure how much time we've got on the link but there might be a little time for you to just be able to debrief with your client.
43MR BARTON: Yes, thank you.
44HER HONOUR: All right. So thanks everyone and we'll adjourn.
45MR McKENRY: Your Honour pleases.
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