Director of Public Prosecutions v Nguyen

[2022] VCC 267

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

Case No: CR-21-01949

Indictment No: M10294187

DIRECTOR OF PUBLIC PROSECUTIONS

v

NGUYEN DINH NGUYEN

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2022
DATE OF SENTENCE:	10 March 2022
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2022] VCC 267

REASONS FOR SENTENCE

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Subject: Criminal

Catchwords: plea of guilty; cultivate commercial quantity of cannabis; theft of electricity; possess drug of dependence; summary offences of possess prohibited weapon and dealing with property suspected of being proceeds of crime; likely prospect of deportation after sentence; whether a straight sentence of less than two years or imprisonment with a non-parole period appropriate.

Legislation Cited: Sentencing Act 1991 (Vic).

Cases Cited: Nguyen v The Queen [2021] VSCA 211; Le v The Queen [2021] VSCA 220; Dang v The Queen [2020] VSCA 24; Nguyen v The Queen [2016] VSCA 198; Worboyes v The Queen [2021] VSCA 169.

Sentence: Total Effective Sentence of 25 months‘ imprisonment with a non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar	Office of Public Prosecutions
For the Accused	Mr M. Amad (for plea) Mr R. Revill (at sentence)	Richard Revill Lawyers

HER HONOUR:

Introduction

1Nguyen Nguyen, on 11 February 2021, you, a 27-year-old Vietnamese national, were at your residence in Ringwood when the police attended with a search warrant.

2They found that two of the four bedrooms were dedicated to the cultivation of cannabis and that there was more cannabis growing in a hallway cupboard.  There were a total of 88 immature plants in the two bedrooms, ranging in ages from approximately 3 to 7 weeks post-nursery phase and heights from approximately 13 to 88 centimetres.  The two bedrooms had a sophisticated hydroponic setup with artificial lighting, exhaust fans, transformers, timers and power cables.  Further, the power consumed in those bedrooms was not being measured because the electricity meter had been bypassed. The hallway cupboard had 36 plants estimated to be up to 4 weeks post propagation and ranging in height from 16 to 19 centimetres.  In total, 124 cannabis plants were found at the property with a total weight of 7.192 kilograms.

3Your belongings, including identity documents, were found in a third bedroom which contained a single bed, dresser and office set up. In the living/kitchen area, $720.00 cash was found in your wallet. Three snap lock bags of methylamphetamine (ice) were found in the office set up in the third bedroom as well as a flick knife with the blade concealed.  The bags contained a total of 10.6 grams of impure and 9.033 grams of pure methylamphetamine.  About the house were bags of soil, fertiliser and magazines about cultivating cannabis.  Later analysis of your mobile phone revealed several applications related to the cultivation of cannabis.

4You were arrested and conveyed to Croydon Police Station, where you were interviewed with the assistance of an interpreter.  You told police that you signed the lease and moved into the house about six months ago after a person named Chu, who you had met at a club in the city, offered you $1,500.00 a month to mind the house.  You told police a number of lies.  In particular, you denied knowledge of the cannabis, theft of electricity, the applications on your phone and the flick knife.  You also said you had borrowed the cash in your wallet from a friend to buy food.  You did admit the ice was yours and said that you used it when you felt sad or had a headache.

5You were charged and remanded in custody, where you have been ever since.  You have spent 392 days in custody, not counting today.

6There was a contested committal on 8 September 2021 in which the botanist and the police informant were called.  The cross-examination was directed at establishing the quantity of drugs and extent of your involvement. 

7The matter resolved at the first Directions Hearing in this Court on 6 October 2021, and on 22 October 2021 you were arraigned and pleaded guilty to the three charges on the indictment.  Those charges were:

·Charge 1; cultivating a commercial quantity of cannabis between
24 December 2020 and 11 February 2021.  Those dates correspond to the age of the oldest plant.

·Charge 2; theft of electricity between those same dates with the amount of the stolen electricity estimated to be $2,802.06; and

·Charge 3; being a charge of possess a drug of dependance (namely methylamphetamine or ice) on 11 February 2021.

8On 18 February 2022 you also pleaded guilty before me to two related summary offences, being: Charge 5, possess a prohibited weapon (and that relates to the flick knife); and Charge 6, dealing with property suspected of being proceeds of crime (and that relates to the $720.00 in cash).

9A plea on your behalf was conducted before me on 18 February 2022 and it now falls to me to sentence you for your conduct.  The inevitability of an immediate term of imprisonment was conceded by your Counsel, Mr Amad, however he argued that a straight sentence of less than two years was within range and appropriate.  Ms Fallar, for the Crown, submitted that a sentence of imprisonment with a non-parole period was appropriate.

10In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[1]  Some tend towards leniency and some point the other way.  No one factor automatically prevails over any other, rather I must have regard to them all and give each the weight it deserves to arrive at a just sentence.

[1] Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).

Your personal circumstances

11Turning to your personal circumstances, which were outlined in Defence submissions.  You grew up in Vietnam.  Your family resides in a regional town in south Vietnam and runs an export business.

12You completed your schooling to the equivalent of Year 12 in Vietnam.  You then did an electrical course in Vietnam, which was run with the assistance of Chisholm College, and which led to an interest in coming to Australia to study.

13You arrived in Australia on a student visa on 10 August 2015 to study at Deakin.  You began studying English Studies with the intention of later completing a Bachelor of Civic Engineering, however you stopped studying part way through the first year of your Bachelor's degree after your family's business collapsed and they could no longer pay your course fees.

14As a result, your student visa lapsed in 2017 and you have been an illegal immigrant ever since.  Your status meant that you could not access medical, financial or other government-funded services, and were not eligible to work.  You found casual employment as a handyman but the financial and emotional toll of your situation apparently led you to first using methylamphetamine in 2019.  Your financial situation further deteriorated as you spent most of what you earned on drugs.  You began borrowing from friends and could not pay them back.  Your financial situation and visa status meant that you could not return to Vietnam through normal channels and you wished to avoid immigration detention.

15Whilst at the Metropolitan Remand Centre you were assaulted by another prisoner who had lent you money for a snack and then demanded a higher repayment.  To avoid further conflict you were sent to Fulham Correctional Centre, where you have been ever since.  Due to COVID-19 you have had little access to services and programs, including English classes.  Language remains a barrier.  To your credit, you have worked in the kitchens and, where possible, have assisted prison staff with interpreting.  You have had almost no contact from anyone in the community.  You have been able to speak to your family on the telephone once a week, but you have not told them that you are in prison.  They apparently think you are in immigration detention.

Objective gravity of your offending and moral culpability

16Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender.  If there was any doubt about the seriousness of the offence of cultivating a commercial quantity of cannabis, the maximum penalty of 25 years' imprisonment makes it perfectly clear.  So too does the fact it is a Category 2 offence, which makes a term of imprisonment other than one in combination with a Community Corrections Order mandatory unless certain exceptions exist.

17Because cultivation offences are quantity based, the quantity cultivated – which represents potential profits – is a critical factor in assessment of offence gravity.  Other factors of importance are the role of the offender and the scale, sophistication and duration of the activity.[2]

[2] Nguyen v The Queen [2021] VSCA 211, [30].

18A commercial quantity is prescribed to be 25 kilograms or 100 plants.  You are charged with cultivation over a period of 7 weeks of 124 plants.  Because of their relative immaturity they weighed less than the commercial weight.  Considering a large commercial quantity is prescribed to be 250 kilograms or 1,000 plants, on a purely quantitative scale your offending is towards the lower end of seriousness for this offence.

19As for your role, Mr Amad expanded on your account of how you came to live in the house.  After COVID struck you found yourself without work and still addicted to ice.  You were told you would receive $1,500.00 per month, free accommodation, food and drugs to mind a crop of cannabis.  You claimed you were asked to move out when the crop was installed and that your only role was to monitor and water the plants after they were brought into the house.

20As I indicated to Mr Amad, given you knew what you were there for I find your account of moving out improbable and I do not accept it.  It is also inconsistent with the differing ages of the plants.  That aside, I accept that the limits of your involvement and your financial reward were as you have described and that you were what has commonly come to be described as a 'crop sitter'.

21Whilst the gravity of offending and moral culpability of crop sitters is obviously less than those higher up in the hierarchy, they still play a vital role in the production line of the end product.  You were part of a sophisticated enterprise with expected significant profits.  The fact your involvement was of relatively limited duration was a matter of chance rather than design, but nevertheless you will not be punished for anything more than what you actually did.  I also take into account that you were motivated by financial difficulties, which, whilst not an excuse, is some explanation of your conduct.

22The offence of theft is punishable by a maximum term of 10 years' imprisonment and covers a broad spectrum of offending, from shop theft to sophisticated frauds.  You stole electricity to facilitate another serious crime, which heightens the gravity of the offence and your moral culpability.

23The maximum penalties of your other offences are as follows:

·     The possess drug of dependence, namely ice (when it is for personal use and not for trafficking, which is accepted to be the case in this instance), is punishable by a maximum term of 30 penalty units or one year imprisonment, or both;

·     The maximum penalty of possess a prohibited weapon is punishable by a maximum of 240 penalty units or two years' imprisonment; and

·     The offence of dealing with property suspected to be proceeds of crime is punishable by a maximum term of imprisonment of two years.

24All up, whilst your offending is serious and your moral culpability is high, they fall towards the lower end of the spectrum for crimes of their type.

Current Sentencing Practices

25To promote consistency of approach in sentencing, particularly the application of relevant principles, I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases, or both.  Whilst no two cases are the same, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.

26Ms Fallar referred me to recent Court of Appeal authorities, which, broadly speaking, reiterated the need for lower courts to increase the sentences imposed for offences of cultivating a commercial quantity of cannabis.[3]  I say 'reiterated' because the Court of Appeal has previously called for such an increase, but with no apparent effect.[4]

[3] See, eg, Nguyen v The Queen [2021] VSCA 211, which involved very serious offending; Le v The Queen [2021] VSCA 220; and Dang v The Queen [2020] VSCA 24.

[4] See, eg, Nguyen v The Queen [2016] VSCA 198, which involved mid-range offending.

27Mr Amad accepted that this was the purport of those authorities but argued they did not reflect the additional burden of imprisonment during the COVID-19 pandemic, nor pay heed to the principle in a case called Worboyes.[5]  In fact, the 2021 decisions to which the prosecutor referred were handed down in August 2021, which was after Worboyes, and at a time when the impact of COVID-19 on imprisonment was well and truly recognised.  Nevertheless, they did involve more serious offending than yours.

[5] Worboyes v The Queen [2021] VSCA 169.

28I have had regard to the Court of Appeal pronouncements and the authorities to which I have been referred, cognisant of the limitations inherent in such an exercise.  Ultimately my duty is to impose a just and appropriate sentence on you in the circumstances of this case.

Plea of guilty, co-operation and remorse

29You are entitled to a significant discount in your sentence for the fact you pleaded guilty and did so at a relatively early stage.  In so doing you facilitated the course of justice and took legal responsibility for your crimes.  The fact the case against you was overwhelming does not detract from the utilitarian value of your plea of guilty.  Moreover, as I have already alerted to in a case called Worboyes, our Court of Appeal has recently emphasised the need for sentences to reflect the high value of pleas of guilty during the pandemic, when the legal system is under considerable strain.[6]  I also accept that you are remorseful for your conduct, which warrants an additional discount.

[6] Ibid [39].

Your character and risk of re-offending

30Turning to your character and the risk of re-offending.  You have no prior convictions and no outstanding offences.  You are entitled to be sentenced as a person of otherwise good character and I am satisfied your prospects of rehabilitation are good.

Prospect of deportation

31I am told it is very likely you will be deported to Vietnam following your release from prison.  Given your circumstances in Australia and the fact all of your family are in Vietnam, this prospect does not appear to be a hardship.  Mr Amad made it clear that he was not relying upon it as a mitigating factor but did suggest it was relevant to whether a straight sentence should be imposed.

The burden of imprisonment

32You have been at Fulham Correctional Centre for most of the period of your incarceration, where you work in the kitchen and help with interpreting.  You have experienced hardship in prison because of COVID and otherwise.  As I said, you were assaulted whilst in the Metropolitan Remand Centre and have spent time in quarantine and in lockdown.  You have no family support, only being able to speak to your brother once a week.  There are no programs because of COVID and your English is limited.

Purposes of sentencing

33I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation and protection of the community.  A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.

34Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality.  What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality.

35In cases of commercial cannabis cultivation, such as this, general deterrence, just punishment, community protection and denunciation loom large in the sentencing process.  This applies even to sentences imposed on people low down in the criminal enterprise, as they still play a critical role.  Those who are tempted to be crop sitters must be deterred from doing so by the knowledge that if caught they will receive a term of imprisonment that makes the risk not worthwhile.

36I do not consider specific deterrence to be a significant sentencing consideration in your case, as I consider your risk of re-offending to be low.  Your Counsel sought a straight sentence of less than two years.  The Crown sought the imposition of a head sentence and non-parole period.  Weighing up the competing considerations, in my view a sentence longer than two years is called for.  I also see no reason not to impose a non-parole period.[7]

[7] Given the head sentence is greater than 2 years, the fixing of a non-parole period is mandatory unless the nature of the offence or past history of the offender make it inappropriate, see s 11 of Sentencing Act 1991 (Vic).

Sentence

37Mr Nguyen, given you are appearing via video link I will not ask you to stand whilst I deliver my sentence.

38On Charge 1, cultivating a commercial quantity of cannabis, I convict and sentence you to a term of imprisonment of 24 months; that is two years.  That is the base sentence.

39On Charge 2, theft of electricity, I convict and sentence you to 3 months' imprisonment; one month cumulative upon Charge 1.

40On each of Charges 3, 5 and 6 I convict and sentence you to 7 days' imprisonment, wholly concurrent with Charge 1, with each other, and with Charge 2.

41The total effective sentence is therefore 25 months; so two years and one month, and in respect of that sentence I set a non-parole period of 18 months.  That is, you must serve 18 months before you will be eligible for parole.  I do not know whether you will be granted parole, given your immigration status.  It is up to the Parole Board as to whether you are released at that time or not.

Pre-sentence detention

42I declare that you have served a total of 392 days pre-sentence detention, not including today, in respect of this sentence, and order that this declaration be entered in the records of the court and the period be deducted administratively.

Section 6AAA

43If you had pleaded not guilty to this charge and been found guilty by a jury, I would have sentenced you to a term of imprisonment of 3 years, 6 months, with a non-parole period of 2 years and 8 months.  So, Mr Nguyen, do you understand the sentence that I have imposed?

44OFFENDER (Through Interpreter):  Yes.

45HER HONOUR:  All right, thank you.

Ancillary orders

46Now, the Prosecution have applied for various ancillary orders, which I will grant.  They are a forfeiture order for the flick knife, a disposal order for the cannabis plants and a forfeiture order for the bypass equipment and the cash.

47MS FALLAR:  As the court pleases.

48HER HONOUR:  Right.  Are there any other matters that either Counsel wish to raise with me in respect of the sentence?

49MS FALLAR:  None from the Prosecution.   Thank you, Your Honour.

50MR REVILL:  None for the Defence, Your Honour.

51HER HONOUR:  All right, thank you.