Director of Public Prosecutions v Nguyen
[2021] VCC 758
•9 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WARRNAMBOOL
CRIMINAL JURISDICTION
CR 20-01249
CR 20-01708
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THI MEIN NGUYEN TAI VAN TRAN |
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JUDGE: | HER HONOUR JUDGE QUIN |
WHERE HELD: | Warrnambool |
DATE OF HEARING: | 9 June 2021 |
DATE OF SENTENCE: | 9 June 2021 |
CASE MAY BE CITED AS: | DPP v Nguyen & Anor |
MEDIUM NEUTRAL CITATION: | [2021] VCC 758 |
REASONS FOR SENTENCE
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Subject: Cultivate a commercial quantity of cannabis
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | OPP |
For Accused Nguyen | Mr M. Sturges | Haines & Polites |
For Accused Tran | Mr J. Siggins | Challenge Legal |
HER HONOUR:
1Thi Mein Nguyen and Tai Van Tran, you have both pleaded guilty to cultivating of a commercial quantity of cannabis. Your charge, Nguyen, is between the period 9 April 2020 to 14 May 2020 (Charge 1); whereas your charged period, Tran, is between 13 and 14 May 2020. The difference is based on your admissions in your record of interview. The maximum penalty for this offence is 25 years' imprisonment. The offence is a Category 2 offence under the Sentencing Act. This means that unless a, 'Special reason', exists the court must impose a sentence of imprisonment, and cannot impose a sentence of imprisonment in combination with a Community Correction Order. Neither of your counsel submitted that you could establish a, 'Special reason'.
As to the circumstances of your offending by way of background
2At the time of your offending you, Tran, were aged 39 and you, Nguyen, were aged 60. You, Tran, were an illegal immigrant and you, Nguyen, were staying in Australia on a bridging visa. At about 7 am on 14 May 2020, police arrived at a property at 94 Kent Road, Hamilton (the premises). You were both in the lounge and were arrested.
3I note that the purchase of the premises on 15 October 2019, negotiations for its purchase, and various accounts relating to the premises were all in names different to yours.
Search of premises
4At the premises, internal walls had been added to the house. Various rooms had a hydroponic set up with heat lamps, water and chemicals being used to cultivate Cannabis L plants. The Cannabis L plants, at varying stages of growth, were being grown in eight different rooms as set out in paragraph 9 of the Crown Opening.
5A total of 317 Cannabis L plants were found in the premises.
6Various hydroponic equipment was located including electrical power boards, timer boards and transformers. Police seized five electrical timer units, 39 small electricity ballasts and 105 large electrical ballasts. Police also found other items including cash, notebooks, ANZ paperwork and certified passport in Nguyen's name, five mobile phones and an iPad, Origin Energy paperwork, vacuum storage bags, fans and heaters.
7An electrical bypass was found in Room 2.
8A later search of the premises located two cloth masks with DNA results linking you, Nguyen, to one of these items.
Record of Interview
9When interviewed by police, you, Nguyen, told police that you had been at the property for about five weeks. You were told to feed the plants two times a day and to do the trimming. You said you anticipated receiving $200 a day but had not yet received any funds. You maintained that you were working for someone and you were not involved in the cultivation for commercial purposes.
10You, Tran, told police you had been hired to do work at the premises. That work involved you cutting the plants which someone else was to collect. You told police you had been at the premises a couple of days and that you anticipated being paid $400. You said you became involved even though you knew it was illegal because as an asylum seeker you had no right to work or income.
Examination of Cannabis L
11On 27 May 2020, the plant material taken from the premises was examined by a botanist; the itemised results and weights are set out in paragraph 16 of the Crown Opening.
12In total, there were 328 Cannabis L plants with a weight in excess of 130 kilograms.
13A commercial quantity of Cannabis L is 25 kilograms or 100 plants.
Personal circumstances
Nguyen
14You, Nguyen, are currently aged 62. Your husband is deceased. You have two adult children and six grandchildren. You left school at the equivalent of Grade 5 and have worked a number of sales jobs. Before you left Vietnam, you worked for an indoor furniture company in Hanoi which I was informed went broke.
15You came to Australia in October 2017 after your husband had died the year before. You had a bridging visa and you worked in Sydney before coming to Melbourne. I was informed that you came to Australia in an endeavour to pay off debts that you had accrued whilst caring for your ill husband. You obtained work washing dishes in restaurants in Richmond and Springvale.
16You have no prior convictions. You have never had any problems with drugs, alcohol or mental health issues. You are in good physical health.
17As to your reasons for being involved in this offending, I was informed it was to assist in paying off the debts outlined above. You were promised $200 a day for this work and were driven from Melbourne to Hamilton. You were provided food and essentials whilst living at the premises. It was accepted by the prosecution that your role was as outlined in your interview, namely to care for the crop.
Tran
18You, Tran, are currently aged 41 having been born in Vietnam in May 1980. You are married with three children and your family all remain living in rural Vietnam in impoverished circumstances. You have had little formal education and worked as a labourer and farm hand. Due to your financial circumstances and family responsibilities, you have had to work outside of your country for extended periods. You have spent time working in Korea sending funds home, enduring difficult or harsh conditions, and having to have long periods of separation from your family.
19You came to Australia on a six-month visa in 2018 ultimately hoping to bring your family over here on a Protection Visa. You worked in this country illegally as an unskilled labourer in various places around Australia. Your application for a Protection Visa for you and your family was rejected, though you remained obtaining cash work when you could. You were living a meagre existence sending any funds you could home to your family.
20You also have no prior convictions an similarly you have never had any problems with drugs, alcohol or mental health issues. You are in good physical health.
21As to your reasons for being involved in this offending, with COVID your options for earning money decreased as there was less labouring work and your status as an illegal immigrant meant you were ineligible for any benefits.
22I was informed that you had indicated that you were approached by an unknown member of the community in which you were living and offered on a cash basis to cut flowers. That you only expected one or two days of work at around $400 per day.
Gravity of offending – objective seriousness
23In respect of the amount of cannabis, it was more than five times the threshold for weight (130 kilograms) and more than three times the threshold for plant numbers (328). As I indicated previously, commercial quantity for plants is 100 and 25kilograms for weight. There is no disputing it was a significant amount of cannabis.
24The photographs in the depositions reveal a relatively sophisticated set up.
25It was conceded by the prosecution that your roles were that of what is commonly referred to in these types of cases as a crop sitter.
26Neither of you have any prior convictions and I take both of your previous good characters into account.
27I take into account your pleas of guilty.
28You, Tran, pleaded at the earliest opportunity and although you, Nguyen, ran a committal, the focus at that hearing was on issues surrounding your record of interview and the prosecution conceded your plea could be regarded as an early plea of guilty.
29Further, there is a significant utilitarian benefit in the plea saving the community the cost and inconvenience of a trial and avoiding the need for witnesses to give evidence. Your pleas are also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice. The value of your plea is more enhanced with the COVID situation and delays that has caused within the legal system with significant backlogs.
30I accept your pleas of guilty are also indicative of remorse by both of you and is consistent with your candid responses in the record of interview with police when you were arrested. Your counsel, Tran, submitted you were remorseful and sincerely regretted your involvement and the shame that it had bought upon your family.
31I understand you are both likely to face deportation at the end of your sentence. It was not submitted by either of your counsel that you had lost an opportunity to settle in this country with strong and continued attachment to your families in Vietnam.
32As to the burden of custody, neither of you have been able to have contact with your family. You are relatively isolated in custody and both have language issues. You have been subjected to more restrictions with the COVID situation. You, Tran, have had heightened concern for your family being unable to provide them with any funds. It is the first time in custody for both of you.
Rehabilitation
33I accept given your personal circumstances, lack of prior history, cooperation with police and this being your first experience of custody, that you both have good rehabilitation prospects.
Sentencing Principles
34The offence of cultivation of an amount not less than a commercial quantity of cannabis is a serious offence carrying a maximum penalty of 25 years. Whilst the role played by both of you at the premises could be described as being a sitter, your role was nonetheless necessary for the crop to flourish. The maximum penalty fixed by Parliament unambiguously demonstrates how seriously the community views this conduct.
35The Court of Appeal has emphasised recently that general deterrence is an important sentencing consideration for this type of offence and that the link between general deterrence and the increasing prevalence of this offence is readily apparent. General deterrence and denunciation loom large in the sentencing exercise.
36Specific deterrence is also relevant but of more limited weight given your lack of priors and limited involvement in the cultivation in terms of both your roles and the time involved. Further, I accept that your prospects for rehabilitation are good and this was not disputed by the prosecution.
Sentencing Principles
37It was not suggested you should be treated differently from each other in the ultimate disposition that I impose. This was so, even recognising the lengthier period of involvement of you, Nguyen, given your personal circumstances including your age and that you had a similar role in respect of the crop.
38The sentence imposed must reflect the gravity of the offence and the offending conduct, general deterrence and just punishment but should also have regard to the matters personal to you and other mitigating circumstances and other relevant sentencing principles.
39If you could both please stand.
40In respect of Charge 1, Ms Nguyen, you are convicted and sentenced to a term of imprisonment of 18 months.
41In respect of Charge 2, Mr Tran, you are convicted and sentenced to a term of imprisonment of 18 months.
Pre-Sentence Detention
42I declare pre-sentence detention of 391 days.
Application
43I have made the disposal order and that has been signed.
44Pursuant to s6AAA of the Sentencing Act, if you had not plead guilty to these matters, I would have imposed a term of imprisonment of four years with a non-parole period of two.
45Are there any other matters, Mr Cordy?
46MR CORDY: No, Your Honour.
47HER HONOUR: Thank you. Anything else from counsel?
48COUNSEL: No, Your Honour.
49HER HONOUR: Thank you. Thank you.
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