Director of Public Prosecutions v Nguyen

[2021] VCC 1615

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00722

DIRECTOR OF PUBLIC PROSECUTIONS

v

THANH NGUYEN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2021
DATE OF SENTENCE:	21 October 2021
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2021] VCC 1615

REASONS FOR SENTENCE

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Subject: cultivation of a narcotic plant (Cannabis L) not less than a commercial quantity applicable to that plant and others.   SERIOUS DRUG OFFENDER

Sentence: 4 years 9 months imprisonment. Non parole 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Watson
For the Accused	Ms C. Park

HIS HONOUR:

1Thanh Nguyen, you have pleaded guilty to four charges on indictment and a related summary offence. 

2Charge 1 is a rolled up charge of cultivation of a narcotic plant (Cannabis L) that was not less than a commercial quantity applicable to that plant.  The offending in this charge occurred over a two month period between 18 August 2020 and 27 October 2020.  The maximum penalty for this offence is imprisonment for 25 years.

3The cannabis was grown hydroponically and you stole the electricity that enabled the crop to grow.  You pleaded guilty in Charge 2 to theft of electricity between 18 August 2020 and 27 October 2020.  The maximum penalty for this offence is imprisonment for 10 years.

4When arrested on 24 November 2020, you were found to be in possession of a further small quantity of methylamphetamine, and a small quantity of cannabis.  You pleaded guilty in Charges 3 and 4 to possession of each of these drugs.  It is accepted by the prosecution that you possessed each of these drugs for self-use, and not for trafficking.  In those circumstances the maximum penalties for the offences in Charges 3 and 4 is imprisonment for one year.

5In addition, when arraigned you pleaded guilty to a related summary charge of dealing in property suspected of being proceeds of crime and you consented to that summary charge being dealt with by me in this court.  That related summary charge arises from the fact that when arrested on 24 November 2020 you were found in possession of $6,055 suspected of being proceeds of crime.  The maximum penalty for that related summary charge is imprisonment for two years.

6As you can see from the maximum penalties provided for by the Parliament, especially that applicable to Charge 1, these offences that you have pleaded guilty to are regarded very seriously. Further, the offence in Charge 1 is a “category 2” offence for the purposes of s5(2H) of the Sentencing Act 1991 (“the Act”). Because that is the case here, a court must impose a sentence being a term of imprisonment unless a special reason exists for not doing so within s5(2H)(a) – (e) of the Act.  It has not been suggested here by your counsel that any special reason exists within those sections of the Act and I must make an order sentencing you to a term of imprisonment.

7When sentencing for this kind of offending the sentencing court must have proper regard for the sentencing principles of deterrence (both general and specific), denunciation and just punishment having regard to your prospects for rehabilitation.

8When arraigned you admitted a lengthy criminal history from 24 previous court appearances which does not include appeals.  You are now aged 35 and you first appeared in court in 2004 aged 17.  You have a number of prior convictions for drug offences (including trafficking cannabis in 2006) and dishonesty offences and two prior convictions for dealing with property suspected of being proceeds of crime.  You have received a number of non-custodial dispositions from various courts, many of which you have breached.

9However, in March 2009 you were convicted in this court of a Commonwealth offence of importing a marketable quantity of a border controlled drug, heroin. You were sentenced on that occasion to be imprisoned for a period of three and a half years. That particular prior conviction means that in sentencing you on the offence in Charge 1, I must regard you as a serious drug offender within section 6B(2) of the Act.

10Because you have prior convictions for drug offending Part 2A of the Act also must be considered to apply in the sentencing of you. Because you were convicted in this court in March 2009 of a Commonwealth offence of importing a marketable quantity of a border controlled drug, heroin, you fall to be sentenced on Charge 1, a further drug offence, as a serious drug offender within s. 6B(2) of the Act.

11That means in your case that in determining the length of any prison sentence imposed on Charge 1 where you fall to be sentenced as a “serious drug offender”, protection of the community from you must be the principal purpose for which the sentence is imposed. In order to achieve that purpose, I may impose a sentence longer than that which is proportional to the gravity of the offence considered in the light of its objective circumstances, within section 6D of the Act. 

12This does not mean that the principles of proportionality and totality of sentencing are to be disregarded unless, in the exercise of my discretion, I consider that the circumstances before me make it appropriate to do so for good reason. 

13I do not consider that a disproportionate sentence is called for on Charge 1.  In my view, the overall total effective sentence I will impose will properly, and adequately, provide for protection for the community.  I note the position of the prosecution is that I have not been asked to impose a disproportionate sentence on Charge 1. 

14Further, section 6E of the Act provides that every term of imprisonment imposed on you as a serious drug offender for a drug offence must, unless otherwise directed, be served cumulatively on any other sentence I impose on you. 

15I will impose some cumulation of the sentences imposed on some of those charges, and order some concurrency, which I regard as appropriate, taking account of all of the circumstances discussed. 

16I must also have regard to current sentencing practices for offending of this kind. In TheQueen v Kilic (2016) HCA 48 the High Court said current sentencing practices are an important factor to be taken into account by a sentencing judge, but only one of a number of factors, the most important being an assessment of the overall level of offending.

17In Minh Tri Nguyen [2021] VSCA 211, a decision handed down by the Victorian Court of Appeal on 4 August 2021, the Court at paragraphs 36 to 48 discussed current sentencing practices for the offence in Charge 1. The Court surveyed a number of cases where an accused had faced sentencing for the offence of cultivation of a drug of dependence, cannabis, in a commercial quantity. The analysis is very helpful here. In some of the cases the quantity alleged was higher than the quantity cultivated by you. In others it was lower. The Court of Appeal at paragraphs 44 and 46 drew attention to the fact that despite repeated indications by it that sentences for the offence should be increased, nonetheless sentences had remained essentially unchanged. The Court of Appeal’s analysis did not refer to situations where a sentencing court was required to sentence an offender as a serious drug offender which is the case here.

18That brings me to set out in a summary way a brief description of your offending.

19The circumstances of your offending are summarised in an outline prepared by the prosecution dated 7 September 2021, Exhibit A.  The relevant parts of that document were read in open court by the prosecutor Ms Watson.  There was no suggestion by your counsel Ms Willard that the prosecution summary was inaccurate or misleading in any way.  In those circumstances it is not necessary that I here set out in full all the detail of your offending, and I do so only in an abbreviated way.

20You have been in a relationship with your co-accused Thien Minh Dang since 2012.  At the time of offending you lived together with two children at a property at Braeburn Place in Werribee.  Both you and Dang were the tenants of that property since 20 March 2018.  The both of you also rented property together at Leafy Road, Werribee since 25 November 2019.

21Police in Altona were suspicious that you and Dang were growing cannabis.  On 14 October 2020 police were conducting surveillance at the Braeburn Place property.

22On the 27 October 2020 police executed a search warrant at the Leafy Road property.  There was no person present at the property but various items found at the property linked you and Dang to the property.  Police entered the property and found a sophisticated hydroponic set up cultivating cannabis.  A total of 58 plants weighing 47.62 kilograms in various stages of development, and dried loose cannabis weighing 2.56 kilograms, were found.  An electrical bypass was found in the front bedroom wall.  The quantity of cannabis located at Leafy Road is about twice the commercial quantity threshold by weight.

23Police also later executed a search warrant at the Braeburn Place property where there was also no-one present, although there was evidence suggesting a person was living at that address.  Here police found that the three upstairs bedrooms were being used to grow another sophisticated cannabis crop.  At Braeburn Place 76 plants weighing a total of 41.39 kilograms were found.  Another electrical bypass was also located.  Charge 1 cultivate a drug of dependence cannabis in a commercial quantity. Charge 2 theft of electricity.

24Police also located $6,055 cash in the main bedroom together with small quantities of methylamphetamine and cannabis in zip lock bags.  Charges 3 and 4 and related summary charge.

25I admitted into evidence as Exhibit B a number of coloured photographs from the depositions which depict the size and sophistication of the hydroponic cultivations of cannabis that you established at both the Leafy Road Property and the Braeburn Place property.

26Police cleared both properties of the plants and set up.  Investigations showed that the electricity supplier Origin Energy had lost $4,219.37 worth of electricity from the Leafy Road bypass, and $3,510.02 from the Braeburn Place bypass.

27At some point both you and Dang returned to the Braeburn Place property.  You were both aware police were investigating you, and you told police this was the case.  You were both arrested on the 24 November 2020 and interviewed.

28You told police a man named Ly Nguyen talked you into growing the cannabis.  You also told police you were growing the plants to smoke yourself.  Ms Willard told me on the plea that you would not claim that the crop was grown for self-use.  I accept you were generally cooperative with the investigating police and you provided the information enabling a between dates charge or rolled up charge in Charge 1 to be laid.

29Dang denied living at Braeburn Place and denied knowledge of the existence of the cannabis crop at either address.

30Clearly your offending in Charge 1 is very serious.  You cultivated cannabis at two locations using a sophisticated but proven method of hydroponic cultivation.  You devoted both houses almost exclusively to the growing of cannabis and you obtained all of the necessary equipment and paraphernalia to enable the crops to thrive.  The offending occurred over three months and involved theft of electricity to avoid detection. The growing crop at both locations combined consisted of 134 plants weighing 89 kilograms.  Other dried loose cannabis weighing 2.56 kilograms were also found.  In total, about three and a half times the commercial quantity threshold by weight for cannabis was the result of your criminal behaviour.  I accept this quantity is much less than a large commercial quantity threshold.  You committed these acts for the purpose of profit and your explanation to the police that you cultivated to smoke the cannabis is self-evidently implausible.  You may have been assisted by others unknown but you were clearly playing a principal role in cultivating the cannabis crop at each location.  You were definitely not in the role of a crop sitter.  Your moral culpability for this offending was high. In my judgement your offending in Charge 1 is about mid-range for this kind of offending.  I accept that there is no evidence that you were enriched by your offending in Charge 1.

31Both you and Dang were remanded into custody.  You have served 331 days pre-sentence detention.  All of that time has been served whilst prisons have been in a state of lockdown caused by the COVIC-19 pandemic.  This has made life in prison very much more burdensome than it would normally be with prison visits restricted, movement of inmates within the prison restricted including 14 days isolation upon entry, and courses normally available to inmates on remand severally reduced.  Face to face visits have been cancelled and restricted.  You have been on a waiting list to complete a drug and alcohol course but due to the pandemic and prison conditions in consequence, you have been unable to commence the course.  In passing sentence I have taken these matters into account.

32Dang was dealt with in the Magistrates’ Court on 29 July 2021 where she pleaded guilty to two charges of permitting use of premises for the purposes of cultivation and one charge of possession of a drug of dependence.  She was sentenced with convictions to an adjourned undertaking to be of good behaviour for a period of 18 months.  Those charges were obviously far less serious than the charges that you now come to be sentenced.  There is no suggestion in this case that the issue of parity in sentencing arises.

33You have pleaded guilty to the charges, and that is very much to your credit. You indicated that you would plead guilty at the second committal mention and the charges proceeded to this court by way of a straight hand-up brief.  I treat you as having pleaded guilty at the earliest opportunity.  By pleading guilty you have saved the time and costs of a trial and committal.  That is especially important in the present environment where this court is faced with a considerable backlog in criminal trials because of the COVID-19 pandemic.  By pleading guilty you have not contributed to that backlog and you are entitled to a recognisable reduction in sentence as a result.

34By pleading guilty to each of the charges, you have accepted responsibility for your offending and you have advanced the administration of justice.  For that you are entitled to, and will receive, a reduction in sentence and this will be reflected in the overall sentence that I will soon impose.  Your pleas of guilty also signify your remorse for this offending which I have taken into account.

35I turn to some matters related to your background.  Your counsel Ms Willard provided me with a helpful outline of her submissions in writing.  I borrow from those submissions.

36You were born in Vietnam.  You have five sisters and one brother.  Your parents separated in 1990 and your mother subsequently left Vietnam leaving you and your siblings behind.  You came to Australia in 1996 with your younger brother. You were 10 years old.  You lived with your mother and her new partner in Footscray where they ran a textile business from their home.  I was told and accept that your stepfather was both physically and emotionally abusive toward you.  You attended Footscray West Primary School and your parents would make you sew when you arrived home from school, sometimes until late in the evening.

37I was told and accept that you were a good student whilst in Vietnam.  However, in Australia where you attended secondary school in Footscray, you struggled with English.  You were required to attend a language centre for one year between primary and secondary school.

38I was told and accept that your step uncle was a drug dealer who injected you with heroin at age 14 and you have struggled with drug use ever since.  This is clearly reflected in your criminal history which I have briefly summarised above.

39You ran away from home aged 15 and lived in a boarding house in Sunshine.  In that environment I was told and accept that you were further exposed to drugs and your habit became entrenched.

40You left school in Year 11.  You have worked previously as a machine operator in a noodle factory and for Domino’s Pizza and in restaurants.

41You met your first partner at age 17.  She fell pregnant at the age of 19 and together you have three children.  Those children are now aged 14, 16 and 17.  That partner left you when you were gaoled in 2009.  Prior to being remanded on 24 November 2020, you were seeing your children each weekend.  You have not seen them whilst on remand.

42You were diagnosed with schizophrenia approximately three years ago.  You were treated with a depot injection monthly.

43Ms Willard did not submit that there was a direct causal nexus between your drug addiction and the offending.  However, she did submit that your offending occurred in the context of your long-standing drug addiction which may be traced back to your traumatic childhood.  I accept that to be the case.  I accept that your longstanding addiction to drugs has contributed to your engaging in this offending.

44I received into evidence a report from the Royal Melbourne Hospital North Western Mental Health dated 4 March 2021.  That records that you have previously been diagnosed as suffering from schizophrenia, polysubstance abuse, bronchial asthma and hepatitis C.  You have had at least five inpatient psychiatric admissions at Sunshine Adult Acute Psychiatric Unit between January 2014 and 27 October 2020.  In the past you have been treated with a depot injection of Aripiprazole 400mg once a month.  At times you have fallen into medication non-compliance in a background of methamphetamine use.

45I also received into evidence a medical report from First Step dated 2 March 2021.  You first sought treatment for heroin dependence in 2010.  You were placed on the methadone program between November 2018 and February 2019 when you were prescribed Suboxone but you soon after ceased engagement.  The First Step report is from Dr John Sherman who was of the opinion that you suffer from serious mental health issues and had been suffering for a number of years in addition to heroin addiction.

46I received a psychological report from Miss Alison Mynard dated 6 September 2021. That report attempts to document much of your background history consistent with the written submissions of Ms Willard.  Ms Mynard opined that you suffer from paranoid schizophrenia, post-traumatic stress disorder, cannabis dependence and stimulant use disorder (methamphetamine).  She thought that these conditions are more likely to improve with targeted, evidence-based trauma focused treatment.  She was of the opinion that your mental health issues are quite severe and you used substances for many years in attempts to cope.

47In passing sentence I have taken all this into account.  I accept that because of the state of your mental health your time in prison is likely to be more burdensome for you than for most prisoners.  I have especially taken into account your history of mental health in fixing a non-parole period.

48The evidence clearly shows to me that you have been a long-term offender with chronic mental illness probably exacerbated by long term drug abuse from various drugs including heroin and methamphetamine.  Without proper, targeted and long term treatment, on the evidence available and having regard to your prior convictions, your prospects for rehabilitation are, I think, poor.  In fixing a sentence on Charge 1 I must have full regard to the protection of the public in sentencing you as a serious drug offender.

49Your counsel accepted that having regard to your offending, and your past criminal record and including that I must sentence you as a serious drug offender on Charge 1, that I must impose a term of imprisonment and fix a non-parole period.  She asked that I consider fixing a non-parole period that would give you a longer than normal time on parole.  In passing sentence I have accepted that submission.

50In passing sentence I have taken all of these matters fully into account.

51On Charge 1, cultivate a narcotic plant cannabis in not less than a commercial quantity, you are convicted and sentenced to a term of imprisonment of four and a half years.

52On Charge 2, theft of electricity, you are convicted and sentenced to a term of imprisonment of three months.

53On Charge 3, possess a drug of dependence methamphetamine, you are convicted and sentenced to a term of imprisonment of one month.

54On Charge 4, possess a drug of dependence cannabis, you are convicted and sentenced to a term of imprisonment of one month.

55On the related summary charge of dealing in property suspected of being proceeds of crime, you are convicted and sentenced to a term of imprisonment of six months.

56I direct that three months of the sentence imposed on the related summary charge cumulate upon the sentence imposed on Charge 1, making a total effective sentence of four years and nine months.

57I direct that you serve a minimum term of three years' imprisonment before you are eligible for release on parole.

58I have sentenced you on Charge 1 as a serious drug offender and direct that my having done so be entered into the records of the court.

59There have been 331 days served as pre-sentence detention.  I direct that 331 days be reckoned as having been already served under the sentences passed this day, be entered into the records of the court, and be deducted administratively.

60For the purposes of s6AAA of the act I state had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of seven and a half years' imprisonment and I would have fixed a non-parole period of five and a half years.

61The prosecution sought a number of ancillary orders for forfeiture of various items seized.  Those ancillary orders were not opposed and I will sign them.

62Are there any questions arising out of that, Ms Watson?

63MS WATSON:  No, thank you, Your Honour.

64HIS HONOUR:  And Ms Park?

65MS PARK:  No, Your Honour.

66HIS HONOUR:  Thank you.  Now, Ms Park, did you wish to speak - I cannot - do you wish to speak with Mr Nguyen, Ms Park?

67MS PARK:  Yes, if there is some availability of time, Your Honour.

68HIS HONOUR:  Yes, well I will arrange for Mr Boswell - my Tipstaff will do that after I leave the Bench.  I will leave the Bench now.

69MS PARK:  Thank you, Your Honour.

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