Director of Public Prosecutions v Nguyen

[2021] VCC 1694

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01565

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUY VAN NGUYEN

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JUDGE:	HIS HONOUR JUDGE BAYLES
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2021
DATE OF SENTENCE:	28 October 2021
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2021] VCC 1694

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentencing

Catchwords:  Plea of guilty; one charge cultivating cannabis; related summary charges; Circumstances of Covid-19 taken into account; Offending at the lower end of the range; Good prospects of rehabilitation; Crop sitter; No prior convictions

Legislation Cited:           Sentencing Act 1991 (Vic) s 5(2H) and s73; Drugs Poisons and Controlled Substances Act 1981 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Cameron v The Queen (2002) 209 CLR 339; Youssif Tawfik v The Queen [2021] VSCA 289;

Sentence:Sentence to eight months imprisonment with 184 days have been served as pre-sentence detention against this sentence.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Paganis	A. Cameron
For the Accused	Mr C. Terry	J. Valos

HIS HONOUR:

1Quy Van Nguyen, you have pleaded guilty to one charge of cultivating cannabis in not less than a commercial quantity. The maximum penalty for that offence is 25 years' imprisonment. You also consented to this court hearing one related summary offence, being one charge of failing to notify VicRoads of a change of personal particulars, namely your residential address, within 14 days of a change, and you pleaded guilty to that charge.  The maximum penalty for that offence is 14 days imprisonment or 3 penalty units.

2The charge of cultivate a narcotic plant in a commercial quantity is a schedule 2 offence under the Sentencing Act 1991 and pursuant to s 5 (2H) of that Act, I am required to impose a custodial order for that offence, unless certain circumstances are made out, which were not contended for in this case by
Mr Terry, who appeared on your behalf. Consequently, I am required to impose a custodial sentence, although s 5(2H) says nothing about the length of such sentence.

3A Summary of Prosecution Opening was filed on the plea hearing and marked Exhibit P1. I adopt that summary as part of these reasons for sentence.

4In short compass, on 28 April 2021, police investigators attended at an address at 5 Wetlands Way in South Morang. Police knocked on the door with no response.  They entered the premises and you were observed to exit through the rear door in an attempt to escape from police by jumping over fences and through neighbouring properties.  Police chased you and you were ultimately arrested about 100 metres away. A Victorian drivers licence was located inside a vehicle parked in the garage of the residence and the keys to that vehicle were located within the master bedroom of the premises.

5Upon entry to the premises police located a sophisticated hydroponic cannabis crop within three rooms inside the premises. Parts of the residence had been converted and housed equipment and plants for a hydroponic set up. One room contained 15 large mature cannabis plants weighing a total of 18.4 kilograms.  A second room contained nine large mature cannabis plants weighing 13 kilograms. A third room contained 58 small juvenile cannabis plants which weighed a total of 165 grams.  In total, there were 82 cannabis plants weighing a total of 31.566 grams.

6An illegal electricity bypass was located, which allowed the connection not to be metred and thus the theft of electricity, however you were not charged for this and accordingly will not be sentenced for it.

7When interviewed by police you made admissions, saying that you had been residing at the premises for approximately 40 to 50 days and you were the sole resident; when you moved in, everything was already set up; you said that you owed a gambling debt of $18,000 to someone, so you moved into the house to look after the plants in order to waive that debt; you were given instructions on a piece of paper on how to look after the plants; you said you were not aware of the electricity bypass; and you admitted that you failed to notify VicRoads that you were then living at that address.

8You pleaded guilty to the charges, at what appears to have been the first committal mention in the matter and the prosecution accepts that this plea was entered at the earliest opportunity.  There was limited evidence of subjective remorse, and Mr Terry did not seek to rely on the presence of remorse, beyond a moderate level that may be ascribed to any plea of guilty.

Nature and Gravity of Offending

9I am required to have regard to, and thus to assess the nature and gravity of the offending.  Mr Terry submitted that the offending can be described as at the lower end of the range of offences of its type.  In support of that submission, Mr Terry drew my attention to the fact that the total weight of cannabis in this case is approximately 31 kilograms, which is about 1.25 times a commercial quantity of cannabis and far less than the upper limit for a commercial quantity.

10I note that the threshold for a commercial quantity of cannabis is 25 kilograms or 100 plants, and a large commercial quantity is 250 kilograms or 1000 plants. On that basis, the present quantity of cannabis by weight is about 0.125 times a large commercial quantity by weight and 0.082 times a large commercial quantity based on number, although there is less significance in that number given that the commercial quantity in this case is obtained by weight.  Mr Terry submitted that the legislative scheme is a quantity based one and thus the weight of the drugs is a significant factor in the assessment of the objective seriousness of the offending.

11On that basis, by an assessment of the quantity of cannabis cultivated here, this case can be said to be very much towards the lower end of the range of commercial quantity.  Of course weight is not the only factor by which the seriousness of the offending is to be assessed, that is the weight of the cannabis.  Ms Paganis, who appeared on behalf of the Director of Public Prosecutions, in written submissions, submitted that:

(a) The hydroponic set up was a sophisticated hydroponic cannabis crop set up over three rooms of the residence, where parts of the residence had been converted and housed equipment and plants necessary for the set up;

(b) The residence also included an illegal electrical bypass, resulting in theft of electricity, although I note that you individually were not responsible for that;

(c) Upon police arrival at the residence you attempted to abscond and evade police where he exited the premises through the rear door and jumped over fences and through neighbouring properties you were ultimately apprehended and arrested;

12Ms Paganis submitted that the offending seemed to be motivated by the desire to repay a gambling debt and that the offending occurred over a period of just over a month, it was not an isolated incident.

13I would add to those matters that it appears that this crop of cannabis was clearly a commercial crop, not just in the sense of the quantity, but in the sense that its purpose was clearly for sale and profit, although who was to profit from it is not apparent.  It was a sophisticated set up involving a significant number of plants, an electricity bypass and a significant amount of equipment used in the illegal cultivation of cannabis.

14However I do accept Mr Terry’s submission that the regime for criminal offences of this kind is quantity based and therefore that must be a significant factor in the assessment of the objective seriousness of the offending. Taking all matters into account, I am prepared to accept that this instance of the offence of cultivating cannabis in a commercial quantity is objectively towards the lower end of the range for offences of its type.

Culpability and Degree of Responsibility for the Offending

15I am also required to have regard to your culpability and degree of responsibility for the offending.  This involves an assessment of your role in the cultivation of the cannabis plants, and your level of responsibility for the commission of the offence. You told police that you accrued a gambling debt to a person you met at the Crown Casino, and that you moved into the house to look after the plants in order to waive that debt.

16Ms Paganis submitted that the prosecution did not dispute that as an explanation for how you came to be involved in the offending, however, she did point out that there were some discrepancies in what you told police and what you told a forensic psychologist, Ms Sandra Cokorilo, and that there did not appear to be much by way of further explanation for how and why these events occurred.

17Cannabis crop houses of this kind frequently come before the courts.  They are crimes that are often difficult to detect.  It is often more difficult to determine who are the main players in the cannabis production and distribution chain.  The role that you played is often referred to as a 'crop-sitter'.  It is an important and necessary role in the illegal cultivation of cannabis.

18It is often performed by vulnerable people who assume a level of risk, and keep those who are ultimately responsible for the illegal production of cannabis at arm's length from the crop and from detection by police.

19The charge period is from 20 March 2021 to 28 April 2021, being a period of about 40 days.  Ms Paganis pointed out that this is at least a moderate period of time and not a single day offence.  It seems that this period of time was taken from your admission to police about how long you had been living there.  You told police that everything was already set up when you moved in and you were given instructions on a piece of paper on how to look after the plants.

20In terms of an assessment of your role and responsibility for the commission of the offence, you played a crucial role in the illegal production of cannabis at this crop house.  At the same time, it could be said to be a relatively interchangeable role, and a role that is often played by vulnerable people who are used to keep those higher up the chain at arm's length from detection.

21The explanation that you gave to police, which was expanded upon by
Mr Terry in the course of the plea hearing, and also expanded upon in a psychological report tendered on your behalf, was that you had been at the Crown Casino and in one night, a friend’s acquaintance lent you money over the course of the night and you continued to gamble until you lost a total of $18,000.  This explanation is plausible and would appear to be at least consistent with a recognised method of recruitment of people to perform the type of role that you performed in this case.

22Based on your background, to which I will refer shortly, and the explanation given by you as to how you came to be involved in this offending, I am prepared to take the view that it was vulnerability that drew you into the offending, and that in all the circumstances your role in this offending was towards the lower end of the spectrum.

Personal Circumstances

23I turn to your personal circumstances.  You are currently 28 years old.  You were born in Haiphong in Vietnam.  Your father was violent and an alcoholic.  You grew up in poverty.  You experienced bullying at school.  You came to Australia in 2012 on a student visa and worked casual jobs. You supported your family in Vietnam financially.  You are married and have a 15 month old daughter.  You have been remanded mostly at Marngoneet prison and due to the COVID-19 pandemic and the lockdowns associated with that, you have not seen your wife or daughter in person since you have been remanded in custody.  That is a matter of some significance and I see that as a hardship beyond the normal experience of imprisonment.

Matters in Mitigation

24Mr Terry relied upon the following matters in mitigation.  You pleaded guilty at the earliest opportunity, and you did so during the COVID era.  Mr Terry relied heavily on the principles in Worboyes and the impact of the COVID-19 pandemic and lockdowns on the criminal justice system.

25In that case, the Court of Appeal referred to the delays caused by the lockdowns and the inability of the courts to hear jury trials, resulting in what is referred to as a crisis in the criminal justice system in the state of Victoria.

26In that case the court said that:

‘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]

[1]Worboyes v The Queen [2021] VSCA 169, [35].

27Mr Terry relied heavily on this proposition and the need for a clear and palpable reduction in sentence to reflect this.  Mr Terry submitted that in order to give proper effect to this principle, there must be a clear and palpable reduction in the sentence as compared with what would otherwise have been imposed before the circumstances of the COVID-19 pandemic.  This reduction must be over and above the usual reduction to be given to a sentence due to a plea of guilty in normal circumstances.

28I accept that submission, and I intend to give you a significant reduction in your sentence due to your plea of guilty, as compared with what you would have received at a time before the COVID-19 pandemic affected the criminal justice system.

29I also take into account that prison during the COVID-19 pandemic is likely to be a more stressful environment with restrictions on the usual level of freedom, activity and movements of prisoners.  Although Mr Terry did not submit that any particular burden was experience by you during the period of the pandemic, I do take into account that the spectre of COVID-19 in a prison environment is likely to be stressful.  You have not been allowed in person visits from your wife or 15 month old daughter for the period of time that you have been in custody.  I was also told that you have limited English language skills and there are only four other Vietnamese speaking prisoners that you have contact with.

30A psychological report was tendered on your behalf from Ms Sandra Cokorilo assessed your risk of re-offending as being low.  I also note that you have no prior convictions, you are 28 years old and you have been in Australia since 2012.  On the basis of all of these matters I regard your prospects of rehabilitation as being good.

Current Sentencing Practices

31I must also have regard to current sentencing practices for offences of this kind.  There are of course different views about how current sentencing practices are to be assessed.  One view is that regard can be had to comparable cases and where factual circumstances are relevantly similar, then similar outcomes are to be expected.  I note the recent comments of President Maxwell of the Court of Appeal in the recent case of Tawfik v R and Saputra v R. [2]

[2]Youssif Tawfik v The Queen [2021] VSCA 289.

32There His Honour discussed the notion that a consideration of comparable cases is also an exercise in equal justice.  His Honour cited the High Court in Cameron v R where it was stated:

'Where the facts and circumstances of crimes and the subjective factors of those who commit them are the same, arguably equal justice requires that there be an identity of, and not different, outcomes in the punishments that they receive.'[3]

[3]Cameron v The Queen (2002) 209 CLR 339, 353 [45] (emphasis added).

33To that end, Mr Terry provided me with a number of comparable cases where offenders had received sentences less than 12 months' imprisonment.  Of course no two cases are the same and I must have regard to the matrix of objective and subjective matters in each of those cases as provided to me. Ms Paganis also provided me with a number of comparable cases to which I have had regard.  

34Mr Terry’s submission as to the ultimate disposition was that I should impose a straight sentence not greatly exceeding the time already served, which is about six months' imprisonment.

35Ms Paganis, on behalf of the prosecution, submitted that a term of imprisonment with a head sentence and a non-parole period was appropriate and necessary to reflect the seriousness of the offending.

36Whilst in accordance with sentencing principle, Ms Pagonis did not descend to submissions about figure or a range of sentences, I do note that a sentence of imprisonment with a non-parole period requires a minimum sentence of
12 months or more.

Sentence

37Having taken all matters into account, in particular:

(a) your plea of guilty, entered during the COVID era, and the significant discount that I intend to give you as a reflection of that;

(b) my assessment of where this sits in the range of offences of its type

(c) your role in the offending which I have assessed as being towards the lower end of the spectrum;

(d) your personal history and background;

(e) the fact that your imprisonment has been and will continue to be during the COVID era which does have an impact on the manner in which imprisonment is served and increases the burden of imprisonment.

38With all those matters being taken into account you will be sentenced as follows:

39On the charge of cultivating cannabis in a commercial quantity you will be sentenced to a term of imprisonment of eight months.

40I declare that a period of 184 days have been served as pre-sentence detention against this sentence.

41On the summary offence of failing to notify VicRoads of your change of address you will be convicted and discharged under s73 of the Sentencing Act.

42In relation to s6AAA I declare that had you not pleaded guilty to this charge, I would have sentenced you to imprisonment for a term of 12 months.

43I make the disposal order granted in relation to the 82 cannabis plants and one electrical bypass that was seized and I do not make that order in relation to the iPhone.

44MS PAGANIS:  If Your Honour pleases, thank you.

45MR TERRY:  As Your Honour pleases.

46HIS HONOUR:  Are there any other matters?

47MS PAGANIS:  No, Your Honour.

48MR TERRY: Your Honour, just one very minor issue. I think Your Honour said s73 proved and dismissed. I think that is s76 from memory, but I stand to be corrected.

49HIS HONOUR: No, s76 is an unconditional dismissal which is something slightly different from what I intended. I am just looking it up here. Section 76 is the dismissal of a charge without recording a conviction and s73 is a court may discharge a person whom it has convicted of an offence.

50MR TERRY:  Sorry, right, yes, Your Honour, that makes sense.

51HIS HONOUR:  No problem.  Is everything else clear about that sentence?

52COUNSEL:  It is, Your Honour, yes.

53HIS HONOUR:  Are there any other matters that I need to deal with?

54MR TERRY:  No, Your Honour, I would just ask for a moment to speak with Mr Nguyen with the interpreter.

55HIS HONOUR:  Yes, I will leave the Webex link in a moment and you can have that time.

56MR TERRY:  Thank you, Your Honour.

57HIS HONOUR:  Thank you.  We will adjourn the court please.

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