Director of Public Prosecutions v Nguyen

[2021] VCC 752

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01817

DIRECTOR OF PUBLIC PROSECUTIONS

v

MINH NGUYEN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2021
DATE OF SENTENCE:	9 June 2021
CASE MAY BE CITED AS:	DPP v NGUYEN
MEDIUM NEUTRAL CITATION:	[2021] VCC 752

REASONS FOR SENTENCE

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Subject:

Catchwords:             Plea, cultivation of cannabis -commercial quantity, proceeds of crime, admissions as to role, aggravating offence and period of offending, DORAN discount, financial motive, more than crop sitter, prospects of deportation, in relationship and with small child with Autism disorder, good prospects of rehabilitation.

Legislation Cited:

Cases Cited:

Sentence:         Two and a half years imprisonment, 18 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Maguire	Office of Public Prosecutions
For the Accused	Ms Li	Michael Gleeson and Associates

HIS HONOUR:

1Minh Nguyen, you pleaded guilty to one charge of cultivation of a narcotic plant, Cannabis L, in a commercial quantity and negligently dealing with proceeds of crime.  Just pardon me for a moment.  Is there an agreed pre-sentence detention period?  I make it at 311 days.

2MS MAGUIRE:  Your Honour, I understand that it is 317 days.

3HIS HONOUR:  Seventeen, all right.  Yes, thank you.  The cultivation charge ranges between 7 July 2020 and 27 ultimately 2020, while the second charge relates to an offence committed on 27 July 2020, specifically to $1,400 in cash. 

4Cultivation of a commercial quantity of cannabis carries a maximum penalty of 25 years imprisonment, while the proceeds of crime charge carries a five years imprisonment maximum.  You are a Vietnam citizen.  You are residing in Australia unlawfully, having entered Australia on a temporary work visa in 2011.  These are which expired in May of that year.

5The circumstances pertaining to your offences were summarised in an agreed opening for the plea.  They may be outlined briefly.  On 27 July 2020, police searched a property at Frankston South, pursuant to a warrant.  Outside the house the noted the windows were bordered shut.  They forced the front door and they found you inside the house.  A large hydroponic system had been set up in many rooms to grow cannabis in pots under lights.

6Transformers and filters had been installed and an illegal metre bypass had been put in place to - as well as extensive wiring running to power boards, which were connected to unmetered mains cable, diverting electric power illegally through the hydroponic systems in the house.  Rubber gloves and cloth gloves were found and police seized cannabis leaf weighing a total of 4.4 kilograms, and 158 cannabis plants, with a total weight of 19.02 kilograms.

7A car parked in the driveway to the property was searched.  It contained numerous bags of potting mix and chemicals for the cultivation of cannabis, as well as a Victorian licence and bankcards in your name.  One thousand four hundred dollars in cash, twenty-eight $50 were found in the glove box of the car, subject of Charge 2.  The keys to the car were on the kitchen bench, inside the house.  Police conveyed you to the Frankston police station and interviewed you, with the assistance of a Vietnamese interpreter.  You made a number of important admissions.  You told police you had started coming to the address three weeks before from 7 July.  This answer enabled the laying of an in between dates charge, rather than an offence related to a single day.

8You told them you attended every second day, staying between 45 minutes to a bit over an hour each time.  You told police you watered plants, but you said you did nothing else to help them grow.  The potting mix and chemicals used in cultivation found in your vehicle contradict this answer somewhat.  You said you worked at the property by yourself and had been, 'Hired to work', there.  However, you then told police that you had received a payment of four and a half thousand dollars for your work and that at harvest time, you had been promised to receive 50 per cent of the proceeds.

9This also was an answer which aggravated your offending, placing you well beyond the role of a crop sitter and much closer to an organise and principal.  As is often the case in this kind of matter, it is difficult to define precisely your role in this enterprise.  What can be said is that based on the evidence of the findings in the house, and your answers when interviewed by police, some inferences can be drawn about your participation in this cultivation.

10You have told police your involvement stemmed from the need for money, for which you told them, you were desperate.  You knew this cultivation was illegal, as you ultimately admitted to police and you must have realised the risk you were exposing yourself, by your participation in it, but you were prepared to participate for its potential financial benefit.  You had already received four and a half thousand dollars on your say so and had expectation of a half share in the rewards at the point of harvest and beyond.

11You named two other Vietnamese men by their first names, who were said by you to be connected to the cultivation but offered no further details.  This information did not lead to other arrests by police and you remain the only person charged for this crop.  I do not consider that these names are of assistance to investigating police, or that they can assist you further in the sense of attracting a reduction in your sentence.

12However, in my view, the authorities make clear pursuant to principles restated in Doran's case, that your admissions which I have already mentioned enliven such a reduction in your sentence, as is appropriate, which I will apply in recognition that such admissions aggravate your role from that of a mere crop sitter, in that you were to share substantially in the profits from the cultivation, necessarily aggravating your role.  You are entitled to have that fact taken into account, together with the admission as to length of involvement and together with the other admissions, which you made when interviewed.  I will take these matters into account in sentencing you.

13Your admissions are also some evidence of remorse and taking responsibility for the offence in the facilitation of the criminal justice process.  In this sense, I accept your pleas accompanied by remorse and is of itself, evidence of it, together with your admissions.  Yours was an early plea of guilty, offered at the earliest opportunity.  It has an utilitarian value of having avoided a criminal trial and has added value, due to the current and recurring issues of the COVID-19 pandemic, which has heavily impacted on the delivery of criminal justice in this state since last year.  I take all of these matters into account in reduction of your sentence.  Your cooperation and admissions also bear upon your prospects of rehabilitation to which I will refer in a moment.

14Your offending was sophisticated with the hydroponic set-up, an electrical bypass and the usual accoutrements of a modern cannabis cultivation. More importantly, cultivating a commercial quantity of cannabis carries a high maximum penalty as I have stated, because the legislators have recognised its seriousness. It is also classified as a category 2 offence, requiring a custodial sentence to be imposed, unless an exception under s5(2)(H) of the Sentencing Act can be established.

15In this case, your cultivation was just short of a commercial quantity, but the number of plans well exceeded the numerical definition. That is, it exceeded the commercial quantity by 58 plants. Your counsel did not seek to establish any of the exceptions under s5(2)(H). It was conceded your role is higher than a mere crop sitter. As I have indicated, the precise role you play, the participation of others at what level of involvement cannot be clearly delineated. However, a person who stands to share 50 per cent of the harvest is not, 'A hired hand to work'. And both the money found - the amount you said you received, the frequency of attendance and the presence of items in your car indicate a higher role.

16It is trite and often repeated in such cases that labels or categorisations should not obscure the various factors that are relevant and not distract from a proper assessment of the gravity of the offending.  There may have been an offer to cultivate cannabis by others, as you indicate in your interview.  An offer which was accepted by you to deal with what you saw as your need for income, but you did so consciously and purposefully, contributing significantly to the crop's success.

17It was argued that if the proceeds were to be shared, this impacted on the degree of financial reward anticipated.  In my view, a 50 per cent share is a significant share, in whatever the reward was to be.  It was argued that the involvement of others showed, 'A lack of connection and trust between these higher up in the organisation and yourself'.  I reject this proposition.  The frequency of attendance and the substantial share in the proceeds run counter to the conclusion asserted.  Your moral culpability is tied primarily to the financial motivation for this crime.  I consider that it is established and therefore it is relevantly high.

18I take your personal circumstances into account.  You are 47 years of age.  You were raised in Vietnam.  You left school at an equivalent of Year 10 and you did labouring work at the docks and obtained a forklift licence.  You have no prior criminal history.  You came to Australia in 2011 and having overstayed your visa, you will become subject to possible deportation on your release from custody.  Although I should not and do not speculate as to the administrative application of the law, or any outcome of such proceedings concerning that issue, I do accept that this adds to the burden of imprisonment and I take it into account.

19I do so especially as you have, over the last ten years, established a relationship with a woman you met in 2016 and with whom you share a three-year-old child.  You resided with Ms Wong at the time of the offending, together with her daughter, a 16-year old.  Ms Wong is an Australian citizen with fulltime factory work.  She has the primary - she was the primary income earner in fact, and you were the primary carer for the two children.  Unfortunately, the two children suffer, one with depression, the older child and the other with autism, recently diagnosed. 

20This no doubt will add both to the burden of detention and to the burden of the prospects of deportation.  Up to March of 2020, you had fulltime employment at a farm.  Your hours were gradually decreased as the pandemic hit our community, until your employment was terminated in June 2020.  I was told you borrowed money from friends, some $4,000, and you would not have been eligible for government funding.

21Coincidentally, I note that your child has received an NDIS funding plan approval from July 2020.  However, these funds would not have been disbursed to you directly, but would have met the needs of your child, relieving some of the financial stress in part.  Nevertheless, you felt motivated to embark on this foolish enterprise. 

22You have spent 317 days in custody.  Your first experience of reclusion and that has included a significant portion, subject in 2020, and again in 2021, to lockdown restrictions and periods in isolation and limited movement.  This has heightened your isolation and curtailed in person visits.  Despite your limited knowledge of English, however, other Vietnamese have been in your unit.  I take the conditions of your remand into account in setting a period of imprisonment.

23Despite these limitations, I note you have undertaken educational and language programs when available.  You have also gained employment in the prison gardens in the last couple of months.  Before that, you were cleaning office areas at the Fulham Correctional Centre from August 2020.  One additional matter pertains to your health.  You suffer from gout and this condition causes you discomfort on some occasions, rendering you unable to walk freely.  This sometime lasting up to three days.  However, you have been able to receive treatment for management of your symptoms.  I take this condition into account.

24I have received certificates relating to your completion of educational courses, in general education, kitchen operations, basic business skills program.  I was shown a letter by a general practitioner in connection to your partner's daughter and medication to deal with her depression, disabling her from being able to provide childcare for her sibling.  I also received a letter from your partner,
Ms Wong.  She writes of her disappointment at your predicament, the impact upon the family, the financial struggles which you were experiencing and her dismay that you could resort to such criminal conduct.

25She speaks of you as a caring father and partner and the pressures which propelled you towards this path, in the company of, 'Bad people'.  She remains supportive and confident of your rehabilitation.  In my view, the period of imprisonment which has already been imposed upon you, and which will accompany your sentence, will have been a salutary lesson and deterrent to you in the future.  In this respect, when coupled with your admissions, your remorse, your plea of guilty and your lack of prior history, I conclude that aided by family support, past work history and your prospects of rehabilitation are good.

26In this sense also, the sentence itself will reflect a lesser weight which is required for specific deterrence in your case.  However, the principles of general deterrence and just punishment and the continued need for denunciation of this type of offending is clearly paramount.  While community protection need not figure in the sentencing matrix here, when directed at you specifically, its relevance remains generally as to this type of criminality, which continues to wreak havoc in our community.  Your prospects and other ameliorating factors which I have mentioned will nevertheless result in what I consider, to be a merciful sentence. 

27On the cultivation of a drug of dependence, in not less than a commercial quantity, you are convicted and sentenced to two and a half years imprisonment.  On the charge relating to the proceeds of crime, you are convicted and sentenced to four months imprisonment.  I order those terms to be concurrent.  I order a non-parole period of 18 months imprisonment.

28I declare that you have served 317 days by way of pre-sentence detention and will have that number noted in the records of the court.  But for your plea, I would have sentenced you to three and a half years, with two years and two months as a non-parole period.  I have signed forfeiture and disposal orders in this matter.  Ms Maguire, are there any other ancillary orders that are required in this matter?

29MS MAGUIRE:  No, Your Honour, there is nothing further.  As the court pleases.

30HIS HONOUR:  Ms Li, I note that Mr Nguyen and the interpreter are still online and available if you wish to speak to them, I am happy for you to do so now, if that is what you would require, otherwise I will simply cut the link.  Thank you, Ms Maguire, I might just severe the link with your connection.  Thank you.

31MS MAGUIRE:  Yes, Your Honour, I will leave the meeting, thank you.

32MS LI:  Thank you, Your Honour, yes, yes if I can have a word with Mr Nguyen.

33HIS HONOUR:  All right.

34MS LI:  I believe his partner Ms Wong is also on the link as well.

35HIS HONOUR:  That is fine.  I will leave the Bench and you can have a conversation with them and when you are finished, we will severe that link.  All right.

36MS LI:  Thank you, Your Honour.  As Your Honour - as the court pleases.

37HIS HONOUR:  Yes, thank you.

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