Director of Public Prosecutions v Nguyen
[2022] VCC 371
•24 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01461
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CANH NGUYEN |
---
| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 March 2022 |
| DATE OF SENTENCE: | 24 March 2022 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 371 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Cultivation of a narcotic plant contrary to s72A Drugs, Poisons and Controlled Substances Act 1981 – offending occurred on a single day – time in custody more onerous due to COVID and language – excellent prospects of rehabilitation – gravity of offending towards the lower end – deportation – parity difficult to assess
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes v R [2021] VSCA 169; R v Walia [2022] VSC 12; R v Coviello [1995] VSC 173
Sentence:30 months imprisonment with a non-parole period of 20 months imprisonment
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms H. Whalley | Office of Public Prosecutions |
| For the Accused | Ms K. Farrell | Stary Norton Halphen |
HIS HONOUR:
Introduction
1Canh Toan Nguyen, you have pleaded guilty to a charge of cultivating a narcotic plant, being Cannabis, in a quantity not less than a commercial quantity. The cultivation occurred on 24 November 2020.
2The circumstances of your offending are set out in the document entitled “Summary of Prosecution Opening for Plea”, which is Exhibit A.
Circumstances
3In the late morning of Monday, 23 November 2020, in Ararat, two members of Victoria Police stopped the car you were driving. One of the police members smelled cannabis inside the car. They searched the boot and found three large bags containing 36.9 kilograms of cannabis. You and your passenger were arrested.
4The next day, the car was searched again and an invoice discovered. The contents of the invoice led the police to search 51 Lambert Street, Ararat, where they found a sophisticated hydroponic system occupying six rooms and including complex electrical, watering and lighting systems. They also found 144 cannabis plants of varying sizes and weighing 65.5 kilograms. The combined weight of the cannabis found in the boot of the car and in the house is 102.4 kilograms.
5You were interviewed on 24 November and were largely unhelpful in your answers.
6As explained by your counsel, due to the restrictions caused by the pandemic, you saw your work decline and your wife’s earnings were insufficient for your needs. Indicative of your tight circumstances, you and your wife rented a bedroom in a shared house. In those financial circumstances, you succumbed to the offer of $2,000 to drive to Ararat, harvest cannabis and deliver it to a person in a carpark in Ararat. You did these things except no-one turned up in the carpark. It was while driving in Ararat that the police intercepted your car.
7Your passenger, Thuan Duc Tran, was charged and pleaded guilty to a charge of possession of cannabis for the purpose of sale, being the cannabis found in the boot. He was sentenced to 225 days’ imprisonment.
Personal
8You are 56.
9You were born in Vietnam and are the eldest of 11 children.
10In Vietnam, you worked as a fisherman and eventually started a seafood business.
11You married in Vietnam and had three children. They are aged 25, 27 and 31. You and your wife are divorced.
12In 2009, you came to Australia on a business visa. In 2011, you met Tanh Tran and subsequently married. There are no children of this relationship. Although your wife is a permanent resident, you are in this country on a bridging visa. You are waiting for the approval of a partner visa but that is now unlikely to occur.
13In about 2014, you started a seafood business. It failed, causing you considerable financial cost. You obtained work cleaning cars for a car dealerships. Between 2016 and 2020, you worked as a handyman, mowing lawns and collecting rubbish. Your wife works as a cashier.
Discussion
14Section 5(1) of the Sentencing Act 1991 (the 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;
(e) to protect the community from the offender.
15In most cases, one or more of those purposes are relevant. It is true in your case.
16Plainly, the purposes of deterring you and deterring others from committing this or similar offences are important. The community cannot tolerate people committing the offence you have committed. My sentence should have such a deterrent effect. My sentence should manifest a denunciation of the offence. It should also act to protect the community from you. However, as I will explain shortly, your prospects of rehabilitation are excellent. As such, the purposes of specific deterrence and protecting the community from you assume a lesser importance since aspects of these purposes will be achieved through your rehabilitation. For if you are rehabilitated, then you will not re-offend by committing this or a similar offence again.
17Section 5(2) of the Sentencing Act sets out factors which I must, if they are relevant, take into account in sentencing you.
Maximum penalty
18The maximum penalty for this offence is 25 years’ imprisonment.
Current sentencing practice
19Neither your counsel nor counsel for the Director referred me to any case in this regard as to current sentencing practice. That is understandable as it is a reasonably common offence in this Court.
Nature and gravity of the offence
20The potential seriousness of the offence is indicated by the maximum penalty. To be a commercial quantity, there must be at least 25 kilograms of cannabis or 100 plants. In your case, the weight of the cannabis is more than four times this threshold. In the house, there were 144 plants.
21The upper level of a commercial quantity of cannabis is defined by the large commercial quantity which starts at 250 kilograms or 1,000 plants. In terms of weight, it is significant that the weight is about 40% of the threshold for a large commercial quantity.
22The charge is cultivation. Frequently, cultivation is said to occur over a period. In your case, the offending occurs on a single day.
23I have set out why you became involved. You were accompanied in the car but there is no other significance to that fact.
Culpability and degree of responsibility
24Your part was a relatively minor one in the context of the cultivation of this drug. You did not obtain the house, set up the hydroponic system or plant the crop.
25Overall, I would assess the gravity of your offending as being towards the lower end for this offence.
Guilty plea
26You pleaded guilty at the fourth committal mention hearing. It is agreed this was a guilty plea made at an early opportunity and I agree.
27Your plea of guilty is evidence of your remorse for your offending. I accept you are genuinely remorseful for the offending.
28Your counsel quoted part of paragraph 35 from the case of Worboyes v R[1]. It is worth quoting the paragraph in full to gauge the emphasis placed by the Court of Appeal upon a plea of guilty at this time:
“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.”
[1] [2021] VSCA 169.
29Overall, your plea of guilty entitles you to a very significant discount of the sentence I would have otherwise imposed if you had pleaded not guilty but had been found guilty after a trial.
Criminal history
30As to your criminal history, you have none. The fact you have reached 56 without a criminal history is a strong mitigating factor.
Experience in custody
31You have been in custody since November 2020. This time has been more difficult for two reasons. First, there have been the restrictions imposed by the pandemic, which apply to all persons in custody. Second, your ability to speak English is limited.
32The first reason has seen your inability to undertake courses. You did start an English course but it was cancelled. Your only contact with your wife has been by phone. You have not been able to speak to your mother in Vietnam. She suffers from cancer and her prognosis is bleak. This distresses you. You may not be able to see her again before she dies.
Deportation
33At present, you hold a bridging visa. Your position is the same as that outlined by Priest JA in sentencing an offender named Sandeep Walia[2]:
“I also take into account the likelihood that you will be deported to India upon the completion of any sentence I impose. You had made a life for yourself in this country which you will not be capable of resuming, and will serve your sentence in the certain knowledge that your life here will be lost. No doubt you will serve your sentence anxious about your future. Deportation will for you have punishing consequences additional to the sentence I impose.”
[2] R v Walia [2022] VSC 12 at [28].
34For you, the most significant punishing consequence will be your separation from your wife, whom you have known for 11 years. You came to this country in the first place because of its quality of life. That will also be denied to you. If you are deported, it is unlikely you will be ever allowed to return to this country.
Rehabilitation
35Your counsel submits your prospects of rehabilitation are excellent and I agree with that submission.
Usable parts
36For the purposes of the plea, your counsel submitted that the weight of the usable cannabis would have been less than 102.4 kilograms because that weight included stalks, moisture and dirt. In reply, counsel for the Director relied on paragraph 11 from the judgment of the Court of Appeal in R v Coviello[3]:
“In determining the weight of the drug it is appropriate to make the measurement in the light of the conditions existing at the time that the offence is seen to be committed. Thus, if a crop is "green" it is its weight in such condition which is to be measured. The crop is not to be taken as that which it would be when "dried" even though the drug only becomes usable when in that condition. Cf. R. v. Tsesmetzsis (CCA, 28 April 1980).”
[3] [1995] VSC 173.
37That case dealt with trafficking in the form of possession for sale. At the outset, the Court said the appeal involved only one question – “what did the applicant possess for sale when he grew a crop of cannabis?”[4]. You have pleaded guilty to the different offence of cultivation. On a theoretical level, since an ingredient of the offence is the weight of the drug and that is established by its actual weight at a particular time, then submitting it had a lesser weight for usable purposes is immaterial to the offence charged.
[4] At paragraph 3.
38On a practical level, there was no evidence as to what was the usable weight. Even if I thought it appropriate, there is no basis upon which to make a finding in that regard.
Parity
39I am conscious of the sentence imposed on your co-accused. Apart from the fact that a term of imprisonment was imposed, it is impossible to pay any other regard to the sentence imposed on him. I do not know anything about him personally, including whether he has a criminal history.
Sentence
40On the charge of cultivating a narcotic plant, being Cannabis, in a quantity not less than a commercial quantity, I sentence you to 30 months’ imprisonment. I will set a non-parole period of 20 months’ imprisonment.
41I declare the 485 days of your pre-sentence detention, not including today, as time already served under this sentence.
Section 6AAA Declaration
42If you had not pleaded guilty but had been found guilty I would have sentenced you to 40 months’ imprisonment with a non-parole period of 27 months’ imprisonment.
Disposal order
43I will make the disposal order as sought.
- - -
0
2
0