Director of Public Prosecutions v Nguyen

[2021] VCC 1309

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00760

CR-21-00610

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUC MINH NGUYEN

VU DUC NGUYEN

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 September 2021
CASE MAY BE CITED AS:	DPP v Nguyen & Anor
MEDIUM NEUTRAL CITATION:	[2021] VCC 1309

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Stephanides
For Accused V. Nguyen	Mr L. Richter
For Accused D. Nguyen	Mr R. Melasecca

HIS HONOUR: 

1Duc Minh Nguyen, you have pleaded guilty to one charge of cultivation of narcotic plants, namely Cannabis L, contrary to s72B of the Drugs, Poisons and Controlled Substances Act 1981.

2Vu Duc Nguyen, you have pleaded guilty to cultivation of narcotic plants, namely Cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant, contrary to s72A of the Drugs, Poisons and Controlled Substances Act.

3The circumstances of your offending were set out in some detail in the summary of prosecution opening which was read to the court and tendered at your plea hearing as Exhibit A.  In summary, the circumstances were as follows. 

4On 12 October 2020, police lawfully executed a search warrant at the premises of 56 Solitude Crescent, Point Cook.  You were both located within those premises.  A search of the premises revealed a total of 142 cannabis plants weighing a total of 31.52 kilograms.  92 of those plants were located in the roof cavity of the premises weighing 31.46 kilograms. 

5In an under-bench kitchen cupboard, police found 50 mature cannabis plants weighing 60.5 grams.  In addition, there was a white plastic bag located on the kitchen bench containing 24.2 grams of dried cannabis.  Also located at the premises were a number of transformers, a box containing a bowl, scissors, scales, gloves and plant tie wire.

6In the main bedroom of the premises, an electrical bypass had been installed.  This was concealed within the wall behind the plaster.  Further equipment including lighting, packaging, large black grow tubs, tarpaulins, large lampshades and other hydroponic equipment was located in the rear of a white Toyota van parked in the garage of the premises.  This vehicle had been hired by you, Duc Minh Nguyen, using your name and a driver's licence number and had been paid for using your personal credit card. 

7Other items seized from the property by police were a wallet containing cards in the name of Vu Nguyen, two iPhones and SIM cards seized from Vu Nguyen, an iPhone with a SIM card seized from Duc Minh Nguyen which was the phone utilised to hire the Toyota van, an Apple iPad located in the main bedroom where both of you had been located and arrested and a small quantity of cash located in the main bedroom.  You were both remanded in custody on the date of your arrest and have been in custody since. 

8Later, on the morning of your arrest, you both made taped records of interview with police and appear to have been relatively cooperative. 

9On 25 March 2021, you Vu Duc Nguyen, indicated that you would plead guilty to one charge of cultivating cannabis in a commercial quantity.  On 15 April 2021, the matter involving you, Duc Minh Nguyen, proceeded to a contested committal, and I am told that on that date you offered to plead guilty to a charge of cultivating cannabis.

10Vu Duc Nguyen, the maximum penalty for the offence of cultivating cannabis in a commercial quantity or not less than a commercial quantity, is 25 years' imprisonment.  

11Duc Minh Nguyen, I am not satisfied on the balance of probabilities that your offending was not committed for any purpose relating to trafficking of cannabis.  It follows that the maximum penalty for your cultivation of cannabis is 15 years' imprisonment.

12A commercial quantity of Cannabis L is defined in the Act as consisting of not less than 100 plants or of plants weighing not less than 25 kilograms.  It follows that the plants found at the Point Cook premises constituted a commercial quantity.  I take into account that it is only you, Vu Duc Nguyen, who is charged with cultivating a commercial quantity of cannabis.  Duc Minh Nguyen, is charged with the lesser offence of cultivation of cannabis but not in a commercial quantity.

13I will now deal, if I may, with both of you separately.

14Duc Minh Nguyen, you are 29 years of age.  You were born in Russia of Vietnamese parents who were in that country for work purposes.  You went to live with your grandparents in Vietnam when you were young whilst your parents remained in Russia.  You had virtually no contact with them until many years later.  You travelled to Australia in 2014 when aged about 22.  You were granted a student visa and commenced study in Melbourne.  Your study results were unsatisfactory.  I was told that you found your course difficult. 

15You moved to Sydney where you undertook another course, a certificate in Business Management.  You continued in that course until July 2017 before ceasing.  You were advised by Migration officials of a notice of intention to consider cancellation of your student visa in March 2018 to which you did not respond.  Your visa was cancelled at a hearing before the Migration Tribunal in July 2019.  You have, I was told, appealed against that decision.  Nevertheless, your right to work in this country has been cancelled.  It was in these circumstances that you committed the offence for which you are now to be sentenced.

16Whilst you have been on remand in prison, you were the victim of an attack upon you.  You were stabbed.  You were treated in hospital.  It appears that you have made a relatively good recovery from injuries suffered on that occasion.  There is no medical evidence indicating ongoing physical problems.  However, I accept that you have suffered ongoing psychological issues as a consequence.

17I am in possession of a report from Dr Sandra Nguyen, clinical psychologist dated 11 August 2021.  Dr Nguyen performed an assessment and evaluation of your mental status by means of a video teleconference on 8 August 2021.

18In summary, her report discloses that you were diagnosed with post-traumatic stress disorder and an adjustment disorder with mixed anxiety and depressed mood.  You experienced significant anxiety and depressive symptoms due to your concerns for your parents' health issues, the impact of your offending on your family and the court hearing, that you had grown up being raised by your maternal grandparents from about the age of five and felt very alone, abandoned and unloved by your parents.  Once in Australia, fears concerning the health of your parents were accentuated and you developed depression.  You did not seek treatment for that condition.

19Back in Melbourne, you found casual work, but this ceased as a consequence of the Covid-19 pandemic.  You expressed to Dr Nguyen what she considered was sincere remorse and sorrow for your offending actions.  Dr Nguyen was advised by you that you want to resume study in a trade such as a carpenter and want to rebuild your life.  Dr Nguyen considered that your recidivism was low and that your prospect of rehabilitation was good.

20Your counsel made a number of submissions on your behalf regarding matters said to be relevant to mitigation of your sentence.  Your stabbing whilst in prison by a fellow inmate and the hospitalisation that followed do not appear to have been in any way attributable to you.  The assailant has since been moved to another gaol and it appears unlikely that you are in any continuing danger.  Nevertheless, the incident was, it was submitted, a form of extra curial punishment and I accept that.

21I accept that the incident amounts to a punishment in its own right.  Your indication that you would plead guilty to this charge was made at a relatively early time although after a committal hearing had occurred.  I accept that both of your parents are in relatively poor health.  I accept that you have been unable to provide any meaningful assistance to them following your placement in custody.  Nevertheless, my understanding is that both of your parents reside in Vietnam, and it is unclear to me as to whether you had plans to travel there to assist them or whether your plan was always to continue to reside in Australia. 

22Your time in prison has coincided with the Covid-19 pandemic and it is compounded by general lockdowns throughout your period of incarceration.  I accept that persons in prison are likely to be more vulnerable to the Covid-19 outbreak than the general population due to confined conditions in which they live together for prolonged periods. 

23I note the comments of the Court of Appeal in this state in R v Brown and R v Worboyes and accept that your life in prison is even more restricted and difficult than it would otherwise have been and your contact with the outside world has been severely curtailed.  Your increased anxiety about your family is understandable and I shall give weight to these matters.

24I note that you have no prior convictions of any sort in either Australia or Vietnam. I take into account the sentencing principles set out in s5 of the Sentencing Act.  I consider that the principal purposes for which I have to sentence you are firstly to punish you to an extent and in a manner which is just in all of the circumstances. 

25Secondly, to deter you and other persons from committing offences of the same or similar character and thirdly, to manifest the denunciation by the court of the type of conduct in which you engaged.  I accept that your role in the cultivation of cannabis located at the Point Cook premises was a lesser role than that of your co-accused Vu Duc Nguyen.  I accept that you had been present at the premises for only a few days before your arrest and that you had little knowledge of the extent of the cultivation taking place in the premises. 

26Nevertheless, your role was an important one in the overall project, the cultivation of crops requires maintenance of the crop and you knowingly assisted Vu Duc Nguyen in the cultivation for more than two days and took an active part in the operation of hiring a van for the specific purpose of moving hydroponic cultivation equipment. 

27I take into account the letter from Phuong Tu Lu who is a family friend of your parents in Vietnam.  She and her husband reside here in Melbourne.  She has indicated that she and her husband are willing to support you until you receive a Visa and that you will be permitted to live at their home free of charge and with their support.  It appears that they have spoken to a student friend who has confirmed that he will be able to assist you in any future studies undertaken by you.  I take into account that you have been in custody for a period of 330 days already, not including today.

28In the circumstances, I do not consider that any sentence not involving a period of incarceration would be sufficient in your case.  In particular, I consider that the principles of deterrence, personal deterrence and general deterrence for others in the community are of real importance here. 

29Duc Minh Nguyen, on the charge of cultivating cannabis contrary to s72B of the Drugs, Poisons and Controlled Substances Act 1981, you are convicted and you are sentenced to a term of imprisonment of 18 months. I declare that you shall not be eligible for parole until you have served 12 months of that sentence. I declare that you have served 330 days of pre-sentence detention and I direct that such period be reckoned as served as part of this sentence and recorded as such on the records of the court. Pursuant to s6AAA of the Sentencing Act I declare that had you not pleaded guilty to this charge, I would have sentenced you to a total effective sentence of 30 months' imprisonment and directed that you not be eligible for parole until you had served 20 months of that term.

30Vu Duc Nguyen, you are 26 years old and were 25 at the time of your offending.  You were born and raised in Vietnam.  Your father, regrettably, was a problematic gambler and alcoholic.  You were subjected to emotional and physical abuse as a child.  When you were about 14 years of age your father deserted the family.  Your mother fled to South Korea with your younger brother.

31You have not seen your immediate family since that time.  You were left to be brought up by various cousins and they cared for you well.  Two of your older cousins came to Australia and obtained work here.  You completed secondary education in Vietnam followed by an IT program in Hanoi, completing about six months of that course before coming to Australia.  You arrived in Australia in 2014 on a Student visa.  You commenced an English language course in preparation for an IT course at Victoria University but withdrew from studying after six months without having completed the IT program. 

32You obtained some work in general maintenance and as a handyman.  At the time of your offending, you were on a bridging visa awaiting determination of an application by you for a protection visa.  You were described by your counsel as being somewhat isolated and living a lonely existence in Australia.  You have enjoyed good physical health and fitness, free from any serious diseases or injuries in your time in Australia to date. 

33At present, you were uncertain about whether you would be permitted to remain in Australia.  I accept that this is something that is liable to weigh heavily upon you in future months or years pending such a decision.  As is the case with your co-accused, you have no prior criminal history either in Australia or Vietnam. 

34It is accepted that you offered a plea of guilty at an early stage of this proceeding.  You appear to have cooperated with police following your arrest.  I accept that your plea and the circumstances of it indicate remorse for your offending on your part.  I am in possession of a report from Mr Ian McKinnon, a consultant psychologist dated 14 August 2021.  He performed an assessment of you via a video link on 14 August this year with assistance from an interpreter.  Mr McKinnon was of the view that you were not suffering from symptoms that met any clinical criteria for any major diagnosable psychological disorder. 

35He found that your functional intelligence and general cognitive functioning appeared to fall within the normal range.  He did, however, consider that you appeared to be suffering from a mild reactive anxiety, a direct response to your current legal predicament.  He noted that your English language skills were not yet sufficiently developed to make tertiary studies in Australia feasible and that this hurdle is likely to have jeopardised your original plan for studying here. 

36I note that during your assessment by Mr McKinnon you were unwilling to provide him with any explanation as to your offending.  Accordingly, he was unable to offer any useful opinion as to the possible contributing factors.  Mr McKinnon thought that you were coping well enough in the prison environment and that you were likely to continue to do so.  He considered that you appeared to be generally remorseful over your offending although it is difficult to understand how he would reach that opinion when you had been unwilling to provide any explanation for your offending to him. 

37He noted that, given your lack of personal support in this country, there does appear to be a risk that limited post-release accommodation options and other difficult life circumstances might force you to seek the assistance of former negative associates with some associated risk of you reoffending. 

38On the other hand, he thought that if you could secure stable and suitable accommodation, that risk of reoffending was low. 

39Your counsel noted that your admissions to police were of genuine assistance to their enquiries.  He submitted that it would have been open to you to deny knowledge of the plants in the ceiling and contest the commercial quantity aspects of the charge.  Rather, you made full admissions as to your involvement with the crop and your concessions of guilt are of significant value.  I accept those submissions.

40Whilst I do not entirely share Mr McKinnon's views that you are unlikely to offend again provided you found adequate supports, I do think there are some prospects for your rehabilitation.  I note that prior to your arrest and remand, you had been in Australia for some seven years.  In that period, you appear to have made limited attempts to learn the English language which would, unsurprisingly, make tertiary education extremely difficult for you and make it more difficult to obtain employment. 

41Your period of incarceration to date has coincided with the Covid-19 pandemic and as I have discussed previously in relation to your co-accused, I take into account that incarceration for you and him would involve far more of a burden than it might have at earlier times.  I accept that your movements and activities are far more restricted than previously would have been the case and that your contact with the outside world is severely curtailed.  There is, of course, no guarantee as to how much longer the pandemic will continue. 

42Notwithstanding your counsel's submissions, I do consider that specific and general deterrence are of particular relevance in sentencing you.

43I take into account two letters provided to me from two of your cousins, Huong Tu Ibrahim and Phong Le.  Both consider that the offences to which you have pleaded guilty are totally out of character.  They are both part of the family with whom you went to live with after your family split when you were about 14 years of age. 

44They are both residents of Australia and have been for some time.  Despite the difficult circumstances in which you have found yourself, it appears that after you moved to live with your cousins in Vietnam you were well cared for until your decision to travel to this country. 

45The offence to which you have pleaded guilty is a serious one.  Cultivation of a commercial quantity of cannabis is considered by our parliament to be a very serious offence as indicated by the maximum sentence laid down by parliament.  I consider that any sentence not involving a significant period of incarceration would be inadequate in all the circumstances. 

46In mitigation of that sentence, I do take into account your cooperation with the police, your early plea of guilty and the fact that your prison sentence has been, until now, and will continue to be, more difficult than it would otherwise be by reason of the Covid-19 pandemic. 

47Vu Duc Nguyen, on the charge of cultivation of not less than a commercial quantity of Cannabis L contrary to s72A of the Drugs, Poisons and Controlled Substances Act 1981, you are convicted and sentenced to a term of imprisonment of two years and six months.  I direct that you not be eligible for parole until you have served 20 months of that sentence.  I declare that you have served 330 days of pre-sentence detention and I direct that such a period be reckoned as served as part of this sentence and recorded as such in the records of this court.

48Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to this charge, I would have sentenced you to a total effective sentence of three years' imprisonment and directed that you not be eligible for parole until you had served two years and six months of that term.

49In relation to ancillary orders - just bear with me for a moment.  Mr Richter and Mr Melasecca, have you sighted this forfeiture order in its amended form? 

50MR MELASECCA:  No, but I have had it all communicated to me, Your Honour, and I am satisfied my learned friend has got it right.

51HIS HONOUR:  Sorry, our reception must be ordinary.  Can you just repeat what you just said?

52MR MELASECCA:  I have not sighted it, but I have been advised of it by my learned friend, and I am happy with its contents as discussed.

53HIS HONOUR:  It is actually fairly simple in that the amended schedule lists only two items, one is the electrical bypass and two is the sum of $70 in Australian cash.

54MR MELASECCA:  Yes, that is (indistinct), Your Honour, thank you.

55HIS HONOUR:  Thank you.  Mr Richter, have you sighted the order?

56MR RICHTER:  I have not, but I am in the same position.  I see no difficulty with those. 

57HIS HONOUR:  Yes.  Right, I will make the order in its amended form.  Are there any other orders or directions sought by the Crown or by counsel?

58MR MELASECCA:  No, Your Honour.  I think you have dealt with PSD already, Your Honour (indistinct) I think you have.

59HIS HONOUR:  What was that, Mr Melasecca?

60MR MELASECCA:  You have declared the pre-sentence detention, I believe.

61HIS HONOUR:  Yes, I did.

62MR MELASECCA:  Yes, thank you, Your Honour.

63HIS HONOUR:  Yes, that being the case, I will adjourn the court until 9.30 tomorrow morning.  Thank you.

64MR RICHTER:  As Your Honour pleases.

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