Director of Public Prosecutions v Nguyen
[2013] VSC 477
•16 September 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2012 0179
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN HUNG NGUYEN |
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JUDGE: | WEINBERG JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 April 2013 and 26 August 2013 | |
DATE OF SENTENCE: | 16 September 2013 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 477 | |
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CRIMINAL LAW — Sentence — Plea of guilty to one charge of cultivating a large commercial quantity of cannabis, and one rolled up summary charge of dealing with property suspected of being the proceeds of crime — Offender held managerial role in large cultivation operation — Conflicting psychological evidence relating to intelligence — No significant remorse — Offender sentenced to eight years and nine months’ imprisonment with a non-parole period of six years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Champion SC, DPP | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr C Nikakis | Haines & Polites |
HIS HONOUR:
Van Hung Nguyen, you have pleaded guilty before me to one charge of cultivating a large commercial quantity of cannabis, and one rolled up summary charge of dealing with property suspected of being the proceeds of crime. The period during which the cultivation offending occurred was 1 September 2011 to 18 April 2012, and the summary offence occurred on the date of your arrest. It is now my task to sentence you for those offences.
The maximum penalty for cultivating a large commercial quantity of cannabis is life imprisonment. The maximum penalty for dealing with property suspected of being the proceeds of crime is two years’ imprisonment.
I shall begin by saying something about your background.
At the time of the offending, you were 40 years old. You speak little English and require the assistance of an interpreter.
You are a Vietnamese citizen who arrived in Australia lawfully from Vietnam on 12 August 2002. You came to Australia with a business visa connected to your attendance at an agricultural show in Brisbane. On 12 September 2002, you became an illegal visitor when you failed to attend the agricultural show or meet a state government representative.
You lodged an application for a business visa on 14 April 2011. You then applied for a bridging visa in Australia, which has since been denied. Accordingly, your presence in Australia is, and has been for many years, unlawful.
In an interview with Victoria Police on 18 April 2012, you indicated that you worked as a fruit picker until two years prior to your arrest. You were remunerated in cash for that work. After that, you arranged home repairs or renovations for various people. You were also paid cash for this work.
You have a number of bank accounts into which you have deposited money to pay some of your expenses including your rent and car repayments.
At the time of your offending you claimed that you were expecting payment from a particular repair/renovation job and only had enough money for food. You also maintained that no one in Vietnam had sent you any money.
I turn now to the circumstances surrounding your offending. These were outlined by the Director, Mr Champion SC, in the course of his plea opening.
On 23 August 2011, members of Victoria Police obtained information in relation to a large cannabis syndicate operating in the north-western suburbs of Melbourne. You were their main target. On 21 September 2011, the police executed a warrant on a property located at 112 Black Dog Drive Melton. At this address police located a total of 201 cannabis plants growing in a sophisticated hydroponic set up. The police seized the plants and hydroponic equipment and found your fingerprints on some of this equipment. On 22 December 2011, the police executed a warrant on a property located at 26 Lomandra Bowl Melton. The police located 285 cannabis plants growing in another sophisticated hydroponic set up. Again the police seized the plants and the equipment. The police located your fingerprints on a Coca-Cola can found in the kitchen of that house.
On 29 December 2011, the police installed a tracking device in your car in addition to keeping you under visual surveillance. From this date until 17 April 2012, the tracking device detected your attendance on multiple occasions at a number of addresses containing houses where large amounts of cannabis were being grown. I refer to these properties as the ‘crop houses’. The police found your fingerprints at some of these crop houses. Through tracking your movements, the police located 21 properties containing crop houses. The police seized 4590 cannabis plants with an approximate total weight of 1,279.6 kilograms from these 21 properties. Of the plants seized, 1,697 were of high quality with an estimated value of anything up to $2.3 million if sold in kilogram lots.
In addition to visiting the crop houses, the police saw you attending a hydroponic shop in St Albans and, on a number of occasions, attending various Bunnings Warehouse stores before visiting the crop houses. Further, you attended a number of Harvey Norman stores on different occasions to purchase, in no particular order, three Plasma televisions, two DVD players, a lawn mower, a vacuum cleaner, two refrigerators, an internet television and a printer. The Director submitted that these purchases were for the use of those people (to whom I will refer as ‘crop sitters’) employed at the crop houses to look after the cannabis plants. The police have since arrested and charged 13 of these crop sitters with cultivating cannabis. I understand from the Crown’s summary of opening that these crop sitters have been sentenced to imprisonment for varying periods of between two to three years. The police have been able to establish links between you and a number of these crop sitters.
I will now turn to the mechanics of the cultivation operation.
The police observed sophisticated systems for growing and cultivating cannabis in the crop houses. For example, in all of the 21 houses, electricity meter arrangements were altered in order for the meters to be bypassed. Further, the police found typical hydroponic cultivation systems which included reticulated watering systems, high powered lighting arrangements suspended from ceilings, chemicals, cultivating tools and equipment, and in some instances, harvesting equipment such as drying and cutting machines. Some houses also contained automated nutrient feeding systems installed in roof cavities. The total value of the hydroponic equipment located at the 21 properties is approximately $787,765.
During the period 23 February 2012 to 11 April 2012, you took steps to change the number plates of your vehicle on three separate occasions. The Director submitted that you made these changes in an attempt to prevent your vehicle from being identified in the vicinity of the crop houses. You told police that you changed your numberplates on three separate occasions in the hope that the total combination of the digits would equal nine. You said it was a ‘Vietnamese thing’ and, upon further questioning, you said that you ‘just like to change the numberplates’. I find the Director’s explanation more compelling in the circumstances, and I will return to this in due course.
The reasons which you gave police for attending a number of the 21 properties on which the crop houses were situated included that you were visiting friends or playing cards. You even said that you visited the property located at 26 Lomandra Bowl Melton not knowing who resided at the house; you simply followed your friends there for a drink. When police asked you why you attended some of the other properties containing crop houses you provided similarly evasive responses.
I will now turn to the items that police found at your home during your arrest. These items are the subject of the rolled up summary charge of possessing property suspected of being the proceeds of crime. Police located $39,900 cash hidden behind a kitchen drawer, $2,150 cash in your wallet, two pairs of Tag Heuer Sunglasses (which cost $1,750 each), one Rolex watch (valued at $37,960), one Tag Heuer watch (valued at between $1,000 and $2,000), numerous expensive clothing items (with a combined cost of $884), two pairs of Louis Vuitton Dress Shoes (which cost $950 and $750 respectively) and an Apple Mac Book Pro laptop computer. The estimated total value of these goods and cash was in excess of $87,594.
You told police that the cash hidden in your kitchen was the money that you had ‘accumulated from working’ and that you ‘didn’t dare put them in the bank [sic].’ You told Mr Jeffrey Cummins, the Forensic Psychologist who assessed you on 4 April 2013, that the cash hidden in your kitchen was money that you were saving to pay an immigration agent for you to obtain your permanent residency, while you had purchased the sunglasses and shoes yourself. You also told Mr Cummins that you had jointly agreed to lease a BMW four wheel drive with a number of friends. Mr Cummins’ report states that you ‘looked surprised when [he] said the Summary of Charges referred to this vehicle being valued at around $130,000.’
I do not consider any of these explanations to be at all credible. I find it particularly difficult to believe that you were earning just enough money for food but you were splashing out on extraordinarily expensive shoes at Louis Vuitton. Further, I do not accept that your fruit-picking and sporadic building work afforded you the kind of income that ever supported the purchase of two pairs of sunglasses which cost $1,750 each. If you were as impecunious as you maintained, you would not have spent more than $5,000 on shoes and sunglasses alone.
Another question that comes to mind when considering Mr Cummins’ report is why you had a need for three mobile phones, two of which you had purchased, at the time of your arrest. It is highly likely, in my view, that you acquired these mobile phones in order to facilitate your involvement in the cannabis cultivation enterprise.
This leads me into a consideration of the conflicting reports regarding your mental state and your fitness to plead.
In contrast to Mr Cummins’ report which attested to you having an IQ of 40, a further psychological assessment conducted by Professor James Ogloff, a Clinical and Forensic Psychologist, found that you do not have an intellectual impairment and are unlikely to have an IQ of below 85. As I expressed at the plea hearing held on 15 April 2013, Mr Cummins’ conclusion that you have an IQ of around 40 is utterly implausible. If you had an IQ of that order, you would simply not be able to function in any recognised sense. Mr Cummins agreed that someone with an IQ of below 40 would not be able to drive a motor car, let alone perform many of the tasks that you routinely carried out.
Mr Cummins applied an abbreviated form of the Wechsler Adult Intelligence Scale called the WASI2. The question of the usefulness of the WASI2 was not in issue, nor did counsel for either side question whether you had actually scored as low as you did on the test applied by Mr Cummins. When I asked Mr Cummins whether, bearing in mind what is known about you, it is possible that you have an IQ of around 40, Mr Cummins responded that at a practical level your functioning would indicate that your IQ should be higher than that.
Professor Ogloff clarified that there are three components that must be found for a person to have an intellectual disability. Firstly, the person’s IQ has to be less than 70. Secondly, the person has to have significant adaptive functioning limitations, meaning difficulties in day-to-day living, and finally the limitations have to have been present during development. As to this second component, Professor Ogloff noted that you have held some employment, you are able to wire money overseas, you have bank accounts, you were able to pass written and practical driving tests and you are able to care for yourself. You have a number of hobbies which include playing cards and chess, as well as participating in various educational activities offered to you in prison such as studying English and computers. You told Professor Ogloff that you even win at chess, on occasion.
Both Mr Cummins and Professor Ogloff agreed that a person with an IQ of around 70 would exhibit deficiencies in day-to-day living. In Professor Ogloff’s opinion, people in the vicinity of that level of intellectual functioning are able to be employed in very simple tasks. They are able to live with support but are unable to live on their own and navigate the world entirely independently. They would certainly not be able to play chess.
Professor Ogloff re-applied the WASI2 test, which was applied by Mr Cummins, and arrived at essentially the same score as did Mr Cummins. Professor Ogloff gave evidence that one of the difficulties in conducting intelligence testing using conventional measures such as the WASI2 test is that it does not contain any independent determination of the person’s response style. Therefore, the individual may underperform and it is impossible to detect whether that is based on an intentional lack of motivation for doing well. Professor Ogloff therefore administered two additional tests – the Test of Memory Malingering and the Validity Indicator Profile – the non-verbal components of those tests assisting him to make a determination about whether you may have been intentionally underreporting or underperforming on those tests.
Professor Ogloff said that you gave up very quickly on items by replying that you did not know the answer. The literature and clinical experience, according to Professor Ogloff, suggests that such responses are unusual in people with an intellectual disability. Professor Ogloff concluded that your performance on these additional tests was such that it would unlikely to have been the results of someone who made an effort to perform the best on the tests. Professor Ogloff found that you performed significantly worse than one would expect by chance.
I accept Professor Ogloff’s conclusion that you are in no way mentally impaired. I consider it highly likely that you attempted to deliberately underperform on the tests administered by both Professor Ogloff and Mr Cummins. You did so in the belief that this would somehow be of benefit to you on the plea before me. Even if you did not deliberately set out to underperform on these tests, but simply failed to score well because of some kind of depression, anxiety or feelings of powerlessness, as suggested by Mr Cummins, at least as a possibility, I still do not accept that you are in any realistic sense a person whose moral culpability for your offending should be regarded as reduced. I think that you knew exactly what you were doing, and knew full well that it was wrong.
You have spent ten years in this country and in that time you have travelled between States undertaking different types of employment ranging from fruit picking to the organisation of repairs and home renovations. You manage your own finances through a number of bank accounts, you cook and clean for yourself, you maintain your personal hygiene, you clearly understand how to go about purchasing things that you require or desire and you regularly socialise with friends or acquaintances. You are also capable of undertaking educational courses and you can even play chess. While you may have a very low educational background and possibly an IQ that is below average, I am of the opinion that you are fully responsible for your actions.
Mr Nikakis, who appeared on your behalf, submitted, based on Mr Cummins’ evidence, that you suffer from some kind of mental impairment, thereby invoking the principles expounded in R v Verdins.[1] In Verdins, it was held that impaired mental functioning, whether temporary or permanent, could be relevant to sentencing in a number of ways. Mr Nikakis submitted that, in accordance with Verdins, your impaired mental functioning reduced your ability to exercise appropriate judgement. He submitted that Verdins applied even if your true IQ was not 40 but between 70 and 80. I am not persuaded by that submission. I think your IQ is significantly above 70, and even if it is below average, that fact alone does not entitle you to a Verdins discount.
[1](2007) 16 VR 269 (‘Verdins’).
This brings me to consider your level of involvement – or ranking – in this cultivation operation. Mr Nikakis submitted that your involvement in the cultivation operation was limited to a level not far above the crop sitters. He submitted that your involvement was limited to functions that you have learnt over a period of time and which therefore indicate that you are a person of low intelligence. I do not accept this submission. You had three phones, two of which you purchased outright, together with pre-paid sim cards. You changed your numberplates on three separate occasions. You purchased electronic items from different Harvey Norman stores for the use of the crop sitters. You attended a number of Bunnings Warehouse stores to buy materials required in the cultivation operation. Yours was a managerial role. It required a certain level of sophistication not expected of a truly low-level employee. While it is likely you were taking orders from someone above you in the chain of command, I accept, as the Director submitted, that you were an overseer of some kind.
Mr Nikakis briefly raised the matter of your future in this country. Mr Nikakis did not submit that I should take the prospect that you will be deported upon expiry of your term of imprisonment into account, and nor could he, given the state of the law on this subject.[2] In any event, you have been in Australia illegally for the past ten years. I do not have regard to the fact that the possibility of deportation will bear upon the impact that your time in custody will have upon you as you serve your sentence. The possibility of deportation will have no more effect upon you as you serve your sentence than it had in the ten years that you have been an illegal immigrant in this country.
[2]DPP v Yildirim [2011] VSCA 219.
While specific deterrence may not a matter of primary concern in your case, given the almost certainty that you will be deported, and will therefore not reoffend in this country, general deterrence is obviously an important sentencing consideration for offences of this nature. I am required to take into account the need to denounce your behaviour as being unacceptable in our community and to fix a sentence which ensures appropriate punishment. The threshold for a large commercial quantity of a drug of dependence is 250 kilos or 1000 plants. The cultivation operation in question involved four and a half times that threshold. As the Director pointed out, this is the largest identified quantity of cannabis cultivated or trafficked in Victoria since the introduction of the large commercial quantity category in 2002. Your sentence must therefore reflect the gravity of your offending.
The Director brought to my attention a case[3] involving the cultivation and trafficking of a large commercial quantity of cannabis (between 3,000 to 3,500 plants) on a scale similar to the operation in which you were involved. The appellants in that case argued that their nine year sentences were manifestly excessive considering the actual low yield (and relative low street value) of the cannabis crops. The Court of Appeal rejected those submissions. While the appellants in that case were clearly at the top of the chain, and the ultimate benefactors of the sale of the cannabis, and you are not to be so regarded, I cannot say with any certainty where you are placed, or what benefit you would have gained from the sale of the cannabis. It is clear that you operated significantly above the crop sitters and I believe that the cash and luxury items found at your home is evidence that you occupied a relatively significant role in the entire cultivation enterprise.
[3]R v Sibic [2006] VSCA 296.
I have considered the other cases referred to by the Director, all of which involve the cultivation of a large commercial quantity of cannabis. Of course, the circumstances of each case are very different and each and every set of circumstances needs to be considered individually. But in an effort to achieve some level of sentencing consistency, I consider them in turn.
I have not found DPP v Tri Nguyen[4] particularly helpful (as the Director foresaw) as the accused in that case had very limited involvement in the overall scheme. The accused, who was effectively a crop sitter, was sentenced to two years’ imprisonment for cultivation of a cannabis crop (comprising 1308 plants with a total weight of approximately 882 kilograms). A further difference to be noted in that case is that the accused made full and frank admissions as to his criminal conduct and indicated his intention to plead guilty to the charge at the earliest possible time. You are not in that category, having contested your committal.
[4][2012] VCC 1681.
Moving on to those decisions which may provide some sentencing guidance, I am assisted by the Court of Appeal’s decision in DPP v S [No 2].[5] In that case the Director brought an appeal against an accused who breached an implied obligation to give truthful evidence. The appeal was allowed and the accused was re-sentenced from six years’ imprisonment to a term of eight years’ imprisonment with a non-parole period of six years. The accused, as discussed in an earlier decision,[6] was employed as a crop sitter on a farming property where he would tend to a large cannabis crop. The plants and other cannabis involved weighed a total of 1,511.83 kilograms. The Crown valued the yield estimate at between approximately $843,500 and $5,061,000.
[5][2009] VSCA 127.
[6]R v S [2006] VSCA 134.
In sentencing the accused at trial, the judge considered the fact that the accused was assisting in the prosecution of his co-offenders. She considered that his culpability was lower than that of those he was assisting. In particular, her Honour accepted that the assistance provided by the accused to the authorities involved his doing all that he was asked to do, in that he made full statements implicating his co-accused and went as far as attempting to obtain admissions from them whilst he was equipped with covert recording devices. As far as remuneration was concerned, the sentencing judge expected the accused to benefit in the future from the sale of the cannabis crop, but was doubtful that this would involve much more than some remuneration for his work as caretaker.
The appellant in DPP v S [No 2][7] was far more cooperative than you have been. Despite his later failure to give truthful evidence, he assisted the police investigating the matter with information about his co-accused. As I mentioned earlier, this appellant was effectively a crop-sitter (albeit for a very large crop of cannabis). Your position in the chain of command is much higher. I take these factors into account in sentencing you.
[7][2009] VSCA 127.
I will now deal with Spiteri v The Queen.[8] The appellant and a co-accused leased a factory and set up a cannabis cultivation operation featuring hydroponic equipment and an electronic bypass system. Police located 1,025 cannabis plants at the factory which, when combined with loose cannabis also found at the factory, had a combined weight of 268.9 kilograms. The appellant showed remorse over his offending and was generally cooperative with police.
[8][2011] VSCA 33.
The appellant was initially sentenced to seven years and eleven months’ imprisonment with a non-parole period of four years and nine months. That total sentence incorporated a nine month prison sentence which related to the theft of electricity. This sentence was reduced on appeal by reason of a parity issue which has no application to your own case.
Before I sentence you I will comment on what seems to me to be your lack of remorse. You have shown little indication that you acknowledge the gravity of your offending, or that you feel any genuine remorse for what you have done. As I have previously said, I believe that you set out to underperform on the psychological tests administered to you, and I consider that this reflects your lack of any such remorse. I will have regard to your plea of guilty, in so far as it is of utilitarian value (as it plainly is) as well as your prior good character and other mitigating factors. These include the burdensome nature of your imprisonment based upon your inability to speak English, and your lack of family ties in this community. I will not, however, give you credit for any genuine remorse. You have not been particularly helpful to police investigating the cultivation operation. Although you pleaded guilty at a relatively early stage, you most certainly did not do so at the first available opportunity.
The sentence of this Court in relation to charge 1, the charge of cultivating a large commercial quantity of cannabis, is that you be imprisoned for a term of eight years and six months. The sentence in relation to charge 2, the charge of possessing property suspected of being the proceeds of crime, is that you be imprisoned for a term of six months. I order that three months of the sentence on charge 2 be served cumulatively upon the sentence imposed on charge 1, thereby making a total effective sentence of eight years and nine months. I fix a non-parole period of six years.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty on charge 1, I would have imposed a sentence of 11 years, and on charge 2, a sentence of 12 months, of which six months would have been cumulative. That would have made a total effective sentence of 11 years and six months. I would have fixed a non-parole period of eight years.
I declare that the number of days already served under the sentence is 516 days, not including this day, and I direct that the fact of that declaration and its details be entered into the records of the Court.
I shall make a forfeiture order under s 33(1) of the Confiscation Act 1997 in relation to cash and other items connected to this case. I order that the following items are to be forfeited to the Minister:
Location of item/s
Item/s
26 Lomandra Bowl, Melton West
ThinkPad laptop computer
7 King Circuit, Caroline Springs
LG televisions with remote controls (2 sets)
4 Brampton Court, Delahey
LG LCD television
AWA DVD player
Phillips stereo system
8 Stanthorp Street, Burnside Heights
$2,153.80 cash
Tag Heuer sunglasses (2 pairs)
Rolex watch
Tag Heuer silver and gold coloured watch
Louis Vuitton dress shoes (2 pairs)
Toyota Aurion sedan, registration YXE519
$39,900 cash
9 Thomas Street, St Albans
Changhong television
Jaguar amplifier
Audi sedan, registration TGA335
28 Thorndon Drive, St Albans
Television and DVD player
60 Botanica Springs Boulevard, Brookfield
Toyota sedan, registration YYE234
I shall also make an order pursuant to s 464ZF(2) Crimes Acts 1958 that Van Hung Nguyen undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Subdivision 30A of Part 3 Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database.
Finally, I shall make an order pursuant to s 78(1) of the Confiscation Act 1997, the forfeiture to the State of the property referred to in the schedule attached to the disposal order be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
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