Director of Public Prosecutions v Nguyen
[2021] VCC 1257
•31 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00075
CR-20-00076
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Thu NGUYEN; The TRAN |
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JUDGE: | His Honour Judge Hannebery | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 July 2021 & 31 August 2021 | |
DATE OF SENTENCE: | 31 August 2021 | |
CASE MAY BE CITED AS: | DPP v Nguyen; DPP Tran | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1257 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: cultivation of a narcotic plant in not less than a commercial quantity - trafficking in a drug of dependence – theft - permitting the use of premises for cultivation of a drug of dependence
Legislation Cited: Sentencing Act 1991
Sentence: Tran - Total effective sentence of 3 years and 9 months imprisonment and direct that you serve a period of 2 years and 6 months before you are eligible for parole. Nguyen - Community Corrections Order of 12 months duration – 75 hours of community work.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Devlin | Solicitor for the Director of Public Prosecutions |
For The Tran For Thu Nguyen | Mr T. Danos Mr M. Kozlowski | Giorgianni & Liang Lawyers Papa Hughes Lawyers |
HIS HONOUR:
Introduction
1The Anh Tran, you have pleaded guilty to Indictment C1912812.1 containing three charges, being cultivation of a narcotic plant in not less than a commercial quantity, trafficking in a drug of dependence and theft.
2The maximum penalties for those offences are as follows:
(a) Charge 1, cultivation of a narcotic plant in not less than a commercial quantity: 25 years' imprisonment;
(b) Charge 2, trafficking in a drug of dependence: 15 years' imprisonment;
(c) Charge 3, theft: 10 years' imprisonment
3Cultivation of a commercial quantity of a narcotic plant is a category 2 offence pursuant to s 5(2H) of the Sentencing Act 1991. The court must impose a term of imprisonment unless an exception applies. Mr Danos of counsel, who appeared on your behalf, did not seek to rely on an exception.
4Thu Nguyen, you have pleaded guilty to one charge of permitting the use of premises for cultivation of a drug of dependence on Indictment K11985322.1. The maximum penalty this offence is 5 years' imprisonment.
5You have also consented to this court hearing and have pleaded guilty to one summary charge of dealing with property suspected of being the proceeds of crime. The maximum penalty for this offence is 2 years' imprisonment.
Summary of Offending
6The offending was set out in the summary of prosecution opening, which was Prosecution Exhibit 1 on the plea. In a somewhat abbreviated form the circumstances of the offending are as follows:
7You are married and resided together at an address in Hampton Park with your two children.
8
At approximately 3 pm on Monday 29 July 2019, police executed a search warrant on your address at Hampton Park. At that time, Mr Tran, you ran into the rear of the premises and were intercepted by a police officer. A short time later, you,
Ms Nguyen, arrived at the premises and spoke to police and advised that you lived at the property with your husband.
9Police searched the premises and located a sophisticated hydroponic setup growing cannabis which included heat lamps, a watering system and an illegal electrical by-pass in the roof (Charge 3, Tran – Theft of Electricity). The search revealed 138 plants weighing 119 kgs of cannabis plants and 38 bags of dried cannabis weighing 13.29 kgs in the freezer (Charge 1, Tran – Cultivation of a narcotic plant in a Commercial Quantity, Charge 2, Tran – Traffic Drug of Dependence, and Charge 1, Nguyen – Permitting Use of Premises for trafficking/cultivation of a drug of dependence). Police also located $24,000 in cash in the front centre console of a Toyota Prado, driven by you, Ms Nguyen (Summary Charge 4, Nguyen – dealing with property suspected of being the proceeds of crime).
10Mr Tran, you were arrested and interviewed. You were shown a photograph of the cannabis and confirmed that it was a narcotic plant and stated that your, “wife was not aware of this.”
11Ms Nguyen, you were arrested and interviewed and made a “no comment” interview except for stating that you lived at the house with your husband and children.
Nature and Gravity of Offending
12The Tran, you have pleaded guilty to cultivating cannabis in not less than a commercial quantity. The inherent gravity of that offence is evident from its maximum penalty of 25 years' imprisonment.
13The offending extended over a month. You cultivated 138 plants weighing 119 kgs. The cultivation in question was 1.38 times the commercial quantity in number and 4.76 times the commercial quantity in weight. It is significant that the cultivation occurred in your own private residence.
14The cannabis was cultivated through a sophisticated hydroponic setup at your address which included a watering system and heat lamps. You are also charged with theft of electricity due to the implementation of an illegal electrical meter bypass in the roof. The exact quantity of electricity stolen was not quantified by the prosecution, however the bypass was in place for one month.
1532 bags of dried cannabis weighing 13.29 kgs were found in a freezer at your address. The cannabis was cut and dried. It was stored in 32 individual packages. The vast majority of those packages weighed about 400 grams each.
16There is no evidence beyond these observations as to the origins of the cannabis nor of any specific plan for its sale. The prosecution have conceded that they cannot exclude that you were storing the cannabis the subject of the trafficking charge for another person.
17Even having regard for this concession, you are still guilty of trafficking on the basis that you knew that the cannabis was to be sold. The amount of the cannabis possessed for sale was over half the designated commercial quantity. This is a significant example of the offence of trafficking.
18The nature of Charges 1, cultivate not less than a commercial quantity, and 2, trafficking a drug of dependence, means that the sentencing purposes of general deterrence, denunciation, protection of the community, and the imposition of a just punishment all have importance in this case.
19Ms Nguyen, you have pleaded guilty to permitting the use of your premises for trafficking/ cultivation of a drug of dependence. The inherent gravity of this offence is comparatively lower than the offence charged against Mr Tran, as the maximum penalty is 5 years' imprisonment.
20You concede by your plea of guilty that your will was not overborne. You voluntarily permitted your premises to be used by your husband for the cultivation operation, and that you did so for the substantial period specified in the charge, namely from 29 May 2019 to 29 July 2019.
21You reported to psychologist, Sandra Nguyen, that your husband was, “not only dominant and controlling but he was also very possessive and jealous man”. You told Ms Nguyen that you are not allowed to have friends beside your work colleagues and that you could not go out without him, and that you did, “not dare to disobeyed him or go against what he said”. Whilst you told Ms Nguyen that you did try to tell your husband that you disapproved of his actions in using the residence for cannabis cultivation, you “did not dare” to notify the police of your husband’s activities.
22You also reported to Ms Nguyen details of previous incidents of family violence that you say contributed to your reticence to defy your husband’s wishes.
23Whilst none of this material is evidence on the plea of Mr Tran, and as such I do not take it into account in any adverse way on his sentence, it is material that is relevant to the moral culpability borne by you, Ms Nguyen, for permitting her premises to be used for your husband’s cultivation.
24Based on the background as set out to the psychologist, the nature of your relationship made it harder for you to resist your husband’s activities. You had the responsibility for the two young children of the marriage. You were conscious of the consequences for them were you to report your husband’s activities to the police. These matters do not entirely excuse your offending but they do mean that your moral culpability is low.
25The nature of the offence, however, requires that general deterrence still has application to your offending.
26Ms Nguyen, you have also pleaded guilty to a separate charge in relation to $24,000 cash located in the front centre console of the Toyota Prado registered in Mr Tran’s name but regularly driven by you.
27Summary Charge 4 contends that this money was reasonably suspected as being the proceeds of crime. This offence does not require proof of the exact criminal activity from which the money was derived or realised, nor even proof that it was in fact proceeds of crime. The offence is committed when the $24,000 was dealt with by you, in this case by possession of that money in the car, in circumstances where it was reasonable to suspect it to be the proceeds of crime. As such, the culpability is limited by the very specific elements of the offence established by your plea.
Personal Circumstances
28The Tran, you are 30 years old and were born in Vietnam. You completed Year 12 and then studied a Diploma relating to pharmaceuticals before coming to Australian in 2011 on a student Visa. Since coming to Australia, you have been employed in various unskilled roles including as a boner in a chicken factory and a labourer in a popcorn factory. You met your wife, the co-offender, Ms Nguyen, in 2015 and were married in 2016. You have two daughters with Ms Nguyen aged 4 and 3 years old. You currently hold a permanent Resident Visa. You have no prior convictions.
29Thu Nguyen, you are 25 years old and were also born in Vietnam. Your parents divorced when you were 8 years old. You report witnessing family violence between your parents and having a strained relationship with your brother. You came to Australia with your mother when you were 14 years old. You commenced schooling in Australia but ceased at the end of Year 10. You commenced working full time as a nail technician.
30You met Mr Tran through a mutual friend. Once you were married you began living together. You opened your own nail business shortly after being married. You report that Mr Tran controlled both your families’ finances and the finances of that business. You also have no prior convictions. You have been diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood by Dr Nguyen but there were no contentions made that Verdins' principles applied in your case.
Plea of guilty
31The Tran, you pleaded guilty after a resolution between the parties was reached through the court’s case conference procedure. Thu Nguyen, you applied for a sentence indication on the charge of permitting the use of premises for cultivation of a drug of dependence and the summary charge of dealing with property suspected of being proceeds of crime. You received an indication that you would not be likely to receive a period of imprisonment commencing immediately if you pleaded guilty to those charges. You accepted that indication.
32By your pleas of guilty you have spared the time and resources that would otherwise have been expended on contested proceedings. Whilst not at the earliest available opportunity, your pleas are of substantial utilitarian benefit. That benefit is of enhanced worth given the pressures placed on court listings because of the impact of pandemic restrictions.
Prospect of Deportation
33Mr Tran, I am instructed that you are not an Australian citizen. You are a Vietnamese citizen who resides here on a permanent resident visa. As such, you are vulnerable to deportation on character grounds once a sentence of greater than 12 months' imprisonment has been imposed. Whilst your deportation or otherwise is a matter ultimately for either judicial review or for the discretion of the relevant Minister, I accept that the spectre of deportation, and potential separation from your family, is an additional burden of imprisonment that I consider as a matter in mitigation.
Prospects of rehabilitation
34Mr Tran, you have pleaded guilty. You have no prior convictions nor anything subsequent. Since coming to Australia in 2011 you have a substantial history of employment. Since being in custody you have engaged in and completed several educational courses.[1] You are the father of two young children. Ly Minh Hoang, who runs the day-care centre attended by your children, attests to your devotion to them and theirs to you.[2] You have expressed remorse for your actions, most notably in a personal letter to the court.[3]
[1]Defence of Tran Exhibit 3.
[2]Defence of Tran Exhibit 1.
[3]Defence of Tran Exhibit 2.
35Whilst your offending is very serious, I consider in all the circumstances that you have good prospects of rehabilitation.
36Ms Nguyen, you similarly have no prior convictions. Your offending is of substantially lesser gravity than that of your husband. You pleaded guilty and expressed remorse for your actions. The psychological report assesses your chances of recidivism to be low.
37In all the circumstances I consider that you have excellent prospects of rehabilitation.
Parity
38I must have regard to the principle of parity to ensure consistency in punishment. When two co-offenders are sentenced, any significant difference in sentences imposed upon them should be capable of rational explanation. Given the disparate offences, maximum penalties, roles and personal circumstances between Mr Tran and Ms Nguyen, I consider it is necessary to impose considerably different sentences upon each of you.
Impact of COVID-19 pandemic
39The Tran, you have been in custody since your arrest on 29 July 2019. I have regard for the fact that a substantial portion of your time on remand has been subject to pandemic restrictions which has reduced your capacity to undertake courses in custody and your personal visits have also been restricted. However, you have completed some courses and that is to your credit.[4] I accept that these pandemic restrictions have been an additional burden of your imprisonment, and that this situation is likely to persist for the foreseeable future.
[4]Defence of Tran Exhibit 3.
Submissions on Sentence
40Ms Nguyen, Mr Kozlowski appeared on your behalf and submitted that given the nature of the relationship between you and Mr Tran, your lack of criminal history, and your mental health, that an adjourned undertaking condition that you continue counselling was appropriate. Mr Kozlowski also urged the court to consider not recording a conviction against Ms Nguyen. He submitted that a non-conviction outcome is an acknowledgement by the courts of the lower end nature of the offence, and that this may have some impact upon your capacity to sponsor your father in his efforts to immigrate to Australia from Vietnam.
41At the conclusion of the first plea date, you were assessed for a Community Corrections Order and found suitable.
42Mr Tran, Mr Danos appeared on your behalf and conceded that imprisonment involving a head sentence and a non-parole period was inevitable. He contended, however, that the sentence imposed should reflect the considerable number of matters in mitigation.
43Mr Devlin, who appeared on behalf of the Director submitted that the principle of general deterrence required the imposition of a head sentence and a non-parole period for the offending as it relates to Mr Tran. In relation to Ms Nguyen, Mr Devlin submitted that a Community Corrections Order was the appropriate sentencing outcome.
44I intend to impose such an order, however, having regard for what I consider to be the gravity of the offending and the requirements of general deterrence I intend to impose that order with conviction.
Sentence
45The Tran, I sentence you as follows:
46On Charge 1, cultivating a narcotic plant, being cannabis, in not less than a commercial quantity, you are convicted and sentenced to 3 years and 3 months imprisonment.
47On Charge 2, trafficking in a drug of dependence, you are convicted and sentenced to 1 year and 9 months imprisonment.
48On Charge 3, theft, you are convicted and sentenced to 3 months imprisonment.
49I direct that 6 months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed for Charge 1. This makes for a total effective sentence of 3 years and 9 months imprisonment.
50I direct that you serve a period of 2 years and 6 months before you are eligible for parole.
51Pursuant to s 18(4) of the Sentencing Act1991, I declare that you have spent 763 days in custody by way of pre-sentence detention, not including today, and I declare that to be entered into the records of the Court.
52Pursuant to s 6AAA of the Sentencing Act 1991, if you had pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 4 years and 9 months with a non-parole period of 3 years and 6 months.
53The prosecution made application for a forfeiture and disposal order relevant to property located at the house related to the drug cultivation. Counsel on your behalf did not oppose the making of this order and I make the Order in the terms sought.
54Thu Nguyen, I sentence you as follows:
55What I am proposing to do at this stage, on Charge 1 and Summary Charge 4, is record a conviction and place you on a Community Corrections Order for a period of 12 months from today's date.
56Before I ask if you to consent to such an order being made, I have to tell you something about the order, so you know what it means.
57The following core conditions apply to all Community Corrections Orders as follows:
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b) You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order;
(c) You must report to the Community Corrections Centre at Dandenong Community Corrections Services within 2 clear days from today, and you may report via telephone;
(d) You must notify the Secretary, or his or her nominee, of any change of address or employment within 2 clear working days after that change;
(e) You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee;
(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.
58There are a number of other conditions attached to this Order, and they apply to you:
(a)
You have to perform 75 hours of unpaid community work over a period of
12 months as directed by the Regional Manager (s48C);
(b) You must be under the supervision of a Community Corrections Officer for a period of 12 months;
(c) You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s48E);
59Ms Nguyen, I can only impose a Community Correction order if you agree to such an Order being imposed. So I need to tell you just a little bit more about the nature of these orders.
60I advise you that if you contravene or breach that order by committing further offences that you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s83A(d)).
61You can also in those circumstances be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment (s83A(s)).
62So you have got to be extra careful for the next 12 months. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the Court and you will be re-sentenced on the two charges that are before me. So you understand that?
63I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, worker if you like, as part of this order, a substantial fine can be imposed (s83A(e) and A(f)).
64Ms Nguyen, sorry, I might have been going a little bit quickly for the interpreter so I apologise if I was. Do you need any of that explained to you again?
65INTERPRETER: It is all good, Your Honour.
66Do you consent to the Community Corrections Order on the terms I have just outlined?
67INTERPRETER: Yes, I do.
68I will impose that sentence on Charge 1 and Summary Charge 4.
69The prosecution also made application for a forfeiture order relevant to the $24,000 in cash. Counsel on your behalf did not oppose the making of this order and I make the Order in the terms sought.
70Are there any other orders that are required and is the presentence detention correct?
71MR DEVLIN: Your Honour, I always caveat of my mathematics, but I have had my instructor check. We get 764 days.
72HIS HONOUR: Does everyone agree with that? If everyone is happy with that I will amend that order then so that the order will be that I declare that you have spent 764 days in custody by way of presentence detention, not including today. I think Mr Danos has just gone. If I make that adjustment. Is Mr Danos' instructor still on the line? They have both dropped off.
73I will just see if I can quickly get them back to find out just before I finish the link entirely. Apparently my associate has tried to call and it has gone straight to voicemail.
74MR DEVLIN: Your Honour, I will contact my learned friend and I am sure he will not have a problem because it is an extra day, but I will contact him straight away. If there is any difficulties we will come back via your associate.
75HIS HONOUR: Thank you. I will presume that that is all concluded then so thank you all for your assistance. I will adjourn the court now.
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