Director of Public Prosecutions v Nguyen
[2021] VCC 727
•9 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
20 01176
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN CHIEN NGUYEN |
---
JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2021 and 4 June 2021 | |
DATE OF SENTENCE: | 9 June 2021 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 727 | |
REASONS FOR SENTENCE
---
Subject:Cultivation of a commercial quantity of a narcotic plant, possession of cannabis, theft of electricity
Catchwords:
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:DPP v Stefan Nikollaj [2019] VCC 774; DPP v Van Lam and Huon Bui [2019] VCC 2073; Van Pham v The Queen [2020] VSCA 114; Williams v The Queen [2018] VSCA 171; Damian Quaresima v the Queen [2017] VSCA 306;
Sentence: 151 days' Imprisonment served by way of pre-sentenced detention, Community Corrections Order for two years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Miss S. MacDougall Mr L. McAuliffe | Office of the Director of Public Prosecutions |
| For the Accused | Mr N. Brown | Nelson Brown Legal |
HIS HONOUR:
1Van Chien Nguyen, on 27 May 2021, you pleaded guilty to:
§one charge of cultivation of a narcotic plant;
§one charge of possession of a drug of dependence; and
§one charge of theft.
2Your offending occurred between 7 October 2019 and 2 March 2020.
3The circumstances are set out in the summary of prosecution opening which was Exhibit A. They are agreed facts.
4You owned a two-storey house at Springvale South where you lived alone.
5On 2 March 2020, police executed a search warrant at your home.
6Inside the house, they found cannabis growing in upstairs rooms.
7They seized;
(a) slightly bushy, immature plants ranging in measurement from 76 to 110 centimetres which weighed 1.86 kilograms;
(b) slender, immature plants measuring from 10 to 14 centimetres which weighed 24.1 grams; and
(c) bushy, near-mature plants measuring from 90 to 105 centimetres which weighed 21.75 kilograms.
8The total weight of the 34 cannabis plants seized was 22.63 kilograms. Your growing of these plants constitutes the charge of cultivation of a narcotic plant.
9A commercial quantity of cannabis is 100 plants or 25 kilograms.
10Police also located 15 plastic bags which contained 4.83 kilograms of dried cannabis and they found other dried cannabis which weighed 1.17 kilograms.
11The total weight of dried cannabis was 6 kilograms. Your possession of the dried cannabis constitutes the charge of possess a drug of dependence.
12A traffickable quantity of cannabis is 250 grams.
13There were numerous lights, transformers and fans which were being used to cultivate the cannabis plants. An electrical bypass had been fitted to the electricity metre. You had stolen electricity valued at $10,856.88 during the period of cultivation.
14You returned home while police were at your premises. They arrested you for cultivation and possession of the cannabis.
15When police interviewed you, you told them you owned the house and you had lived there for around four to five years. You said you lived alone and were unemployed and had no income. You exercised your right to remain silent when allegations of cultivation and possession of cannabis and theft of electricity were put to you.
16You were refused bail and remanded in custody.
17On 31 July 2020, you were admitted to bail on strict conditions which included reporting to police, a curfew and abstinence from cannabis.
18You have a very limited criminal record.
19
On 29 June 2016, at Dandenong Magistrates' Court, you were released on a
12-month undertaking, with the condition you pay $300 to the court fund, for careless driving and failing to report an accident to police when the owner was not present.
20You were born on 1 February 1967 in the Ga-Yin province in Vietnam and are aged 54 years.
21You are the seventh of eight children. Your parents raised you on a rice and coconut farm. You went to local schools. You left school during Grade 7 to work on the family farm. You witnessed violence at home and you also saw the trauma of the civil war. Your family struggled financially. When you were 16 years old you left home and went to a larger city where you worked on boats. There you were living in poverty, so you decided to leave Vietnam. On your first attempt to flee, you were arrested and imprisoned for one and a half years. On your second attempt, you made it to Malaysia where you lived in a refugee camp for three and a half years. While you were there, you saw a friend shot dead.
22In 1987, you successfully migrated to Australia on a humanitarian Visa. You arrived in Queensland where you lived for a year before moving to Melbourne where you retained work as a machine operator. Around 1990, you became an Australian citizen. Until 2016, when you suffered an injury at work, you had worked continuously either as a machine operator or welder. On 27 September 2016, you had surgery and were off work for nearly two years. You returned to work briefly in 2018 but struggled and, in early in 2019, you were made redundant.
23You have two daughters, aged 23 and 21 years, from your first marriage and a third daughter, aged eight years, from your second.
24Your oldest daughter, Joanna, gave impressive evidence before me. She owns her own home where her younger sister and their mother live with her. Both girls have jobs in the retail industry.
25She confirmed your good word record and its interruption by your workplace injury. She said, when you lost your job, she helped you look for other work but, because of your age and your injury, jobs were hard to find. She said you were very anxious you would lose your home because, without paid employment, you were struggling to meet the mortgage payments to ING Bank. When you were arrested and incarcerated, she and her sister tried to negotiate hardship relief with ING for you.
26She told me, when you were released from gaol, you returned to your home and became the primary carer for your youngest daughter, Anna, because her mother had re-partnered.
27She said you are very close to your youngest daughter who would prefer to live with you than her mother. She said you take her to and collect her from school daily. She also said you have obtained work at the Dandenong fish Market three to four days a week, and your older daughters and Anna’s mother, who lives nearby, help you with Anna’s care.
28To my observation, your three daughters, who all supported you in court, have great affection for you and for each other.
29Dr Aaron Cunningham, a psychologist, assessed you on 12 May 2021.[1] You told him, after your work injury, to deal with shoulder pain, you began drinking heavily and using cannabis. You said you stopped using cannabis when you were arrested.
[1] Exhibit 3.
30You said, when you offended, you were worried about losing your home because you could not work. You grew the cannabis crop for your personal use and to make money. You expressed remorse for your actions.
31In Dr Cunningham’s opinion your escalating cannabis and alcohol abuse, in the context of increased financial stress, your shoulder pain and no work was the main contributor to your offending.
32I accept his opinion, which was unchallenged.
33Psychometric assessment indicated you have some impairment with your thinking and reasoning.
34Dr Cunningham recommended mental health, and drug and alcohol treatment, to reduce your risk of reoffending.
35Mr Brown, who appeared for you, relied on the following documents:
(a) His written plea submissions;
(b) A letter, dated 19 April 2021, of Dr Josephine Ong, your GP;
(c) The psychological report, dated 24 May 2021, of Dr Aaron Cunningham;
(d) The drug screens dated 14 May 2021 and 20 May 2021;
(e) A letter, dated 21 May 2021, of your friend, Thanh Lihn Thai;
(f) A letter, dated 21 May 2021, of another friend, Bong van Thai;
(g) A letter, dated 21 May 2021, of another friend, Ho Tan Luong;
(h) A letter, dated, 20 May 2021, of another friend, Van An Nguyen;
(i) A letter, dated, 20 May 2021, of another friend, Khiem Lam; and
(j) An ING bank default notice dated 30 March 2021.
36Dr Ong confirmed your right shoulder required surgical repair. She prescribes you analgesics for ongoing pain and, in September last year, referred you to counselling for depression.
37Recent ‘clean’ drug screens verify you are managing your shoulder pain without resorting to cannabis use.
38Your friends are witnesses to your previous good character, your remorse for your wrongdoing, your good work ethic, your care for your family and your need for financial stability.
39ING’s lawyers have served a default notice, dated 30 March 2021, on you. You had felt constrained in your dealings with the Bank by the restraining order authorities had obtained in respect of your home. However, with the resolution of this proceeding, the Order is to be set aside and you are hopeful you can negotiate with ING to avoid forfeiting your home.
Defence Submissions
40In written and oral submissions Mr Brown acknowledged your offending was serious. You admit, under the pressure of unemployment and possible mortgage default, you grew cannabis for profit. You were holding the dried cannabis for others for the promise you could keep some of it for your personal use.
41Relying on:
(a) Your early guilty plea;
(b) Your remorse;
(c) Your trauma history in Vietnam and Malaysia;
(d) Your prior good character;
(e) Your good work record;
(f) Your compliance with stringent bail conditions;
(g) The steps you have taken towards your reformation since your release on bail; and
(h) Your very good prospects of rehabilitation,
Mr Brown submitted I should sentence you to a term of imprisonment, equivalent to the time you served on remand, in combination with a community correction order.
42Mr Brown referred me to two sentences of this court, DPP v Stefan Nikollaj [2019] VCC 774 and DPP v Van Lam and Huon Bui [2019] VCC 2073 where community correction orders were imposed for cultivation of cannabis offences.
Prosecution submissions
43Miss MacDougall, who appeared for the prosecution, contended, in written[2] and oral submissions as the principal in a sophisticated cannabis cultivation for trafficking purposes, your offending is a serious example of a serious offence. She accepted, confined as it was to a single property, it was less complex than some other cases.
[2] Exhibit B.
44She also accepted:
(a) You have no history of any prior relevant offending;
(b) You should receive the benefit of an early plea which has high utilitarian value in light of the public health pandemic disruption to jury trials; and
(c) Your time in remand was more onerous due to a COVID lockdown.
45She referred me to Van Pham v The Queen [2020] VSCA 114, where the Court of Appeal dismissed an offender’s appeal against a sentence of two years' imprisonment with a non-parole period of 15 months, as a recent cannabis cultivation case comparable to yours.
46She submitted, notwithstanding a community corrections order may remain open even in cases of very serious offending,[3] a community corrections order or combined sentence of imprisonment and a community corrections order would be outside the proper sentencing range.
[3] See Williams v The Queen [2018] VSCA 171 at [47].
Consideration
47I have had regard to the matters set out s5(2) the Sentencing Act including current sentencing practices.
48There are similarities between the circumstances of your offending and the offending in Van Pham [2020] VSCA 114, to which Miss MacDougall referred, and Damian Quaresima [2017] VSCA 306.
49Van Pham pleaded guilty to one charge of cultivation of a narcotic plant and one charge of theft of electricity.[4] He grew 18 cannabis plants, which weighed 31.35 kilograms, over a period of four months, at a property he owned, and stole electricity valued at $10,206.79. He was 54 years old when he offended and had no prior convictions. He pleaded guilty at an early stage. He claimed his offending was motivated by a gambling problem.
[4] Van Pham v The Queen [2020] VSCA 114.
50The Court, per Priest and Beach JJA, at [32], said:
… the judge sentenced the appellant on the basis that he committed a serious example of a serious offence… We see no error in that approach.
51The Court rejected the argument the sentence imposed was wholly outside the permissible range and said, at [39]:
… on one view, the total effective sentence and non-parole period imposed by the judge were moderate.
52In Damian Quaresima [2017] VSCA 306, the Court dismissed the offender’s appeal against an aggregate sentence for cultivation of a narcotic plant and theft of electricity of nine months' imprisonment with an 18-month community correction order. The appellant had grown 40 cannabis plants, which weighed 30.5 kilograms in two rooms at his home over a period of six to seven weeks. He pleaded guilty at the earliest opportunity. The sentencing judge had rejected his evidence he had a substantial cannabis habit and grew the cannabis for his own use to battle depression. The appellant contended on the appeal that a term of imprisonment was not mandated. The Court of Appeal, per Weinberg and Priest JJA, rejected the argument and said, at [16], the sentence imposed was within the sentencing range. Relevantly, Mr Quaresima he had a prior conviction for cannabis cultivation.
53I have also considered the sentences of this court in Nikollaj and Lam & Bui where the offenders were released on a community correction order without imprisonment. In the former case, the offender was a crop sitter who fell to be sentenced for a single day of offending; in the latter, the offenders had a very limited role in the cultivation. In each case, the objective gravity of the offending was less than yours. The personal circumstances of the three offenders were not materially dissimilar to yours.
54But for two factors, I would have imposed upon you a similar sentence to Van Pham’s sentence.
55Firstly, I am satisfied there are some extenuating circumstances to your offending, that is, after you had suffered a workplace injury and lost your job, you were under financial stress to make mortgage payments and contribute financially to your daughter’s support. Given the size of your operation, I am satisfied you grew the cannabis to make money. I am also satisfied you were partly motivated to obtain cannabis for your personal use as a painkiller.
56Secondly, for 10 months, since your release on bail, you have obliged stringent bail conditions, obtained work, assumed the care of your eight-year-old daughter and abstained from cannabis use. I am satisfied you have substantially advanced your rehabilitation which, necessarily would be interrupted, were I to imprison you for a further period.
57Yours was serious offending.
58In Williams v The Queen [2018] VSCA 171, the Court of Appeal, per Beach and Hargrave JJA, said, at [47]:
As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation. And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.
59I have had you assessed for a community correction order and you have been found suitable.
60As I had considered a mental health condition to a community correction order, you were assessed by the Mental Health Advice and Response Service (MHARS). You presented with anxiety and low mood. You told the assessor speaking about your past trauma made you feel worse and you had found previous counselling traumatic. Considering you are accepting your GP’s treatment, the assessor’s opinion is, mental health treatment should not be mandated on a community correction order. I accept her recommendation.
61Overall, I am satisfied a properly condition community correction order, in combination with a prison term equivalent to your pre-sentence detention, is capable of achieving all sentencing purposes in your case.
62As I consider, there should be some additional punitive component to your sentence, I will include a community work condition in your community correction order.
63Because the offences, for which you are to be sentenced, are founded substantially on the same facts and form part of a series of offences of a similar character I will impose an aggregate sentence upon you.
64Please stand, Mr Nguyen.
65By the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
66Considering the circumstances of your offending, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:
67On the charges of;
· cultivate a narcotic plant, namely cannabis;
· theft; and
· possess a drug of dependence, namely cannabis,
you are convicted and sentenced to 151 days' imprisonment and a community correction order which is to commence today. The duration of the Order will be two years. In addition to the core conditions, I impose the following special conditions:
· Drug treatment and rehabilitation;
· Programs to reduce offending;
· Supervision; and
· 100 hours of unpaid community work.
68I direct up to 50 hours of your treatment and programs be credited towards your work.
69I declare you have served 151 days of your sentence by way of pre-sentence detention.
70I make an order for disposal of the electrical bypass, a Colgate toothbrush, blue gloves, two envelopes and the cannabis samples.
71Whilst there is some artificiality in the process, I declare, pursuant to s6AAA of the Sentencing Act, but for your guilty plea, I would have imposed a sentence of two years' imprisonment and fixed a minimum non-parole period of 15 months.
72Mr Nguyen, before I can make the order community correction order, I need to be satisfied that you consent to the order and that you understand the terms of it. You had earlier indicated to the community corrections assessing officer that you are prepared to consent to an order. I will have the order prepared and I will give Mr Brown the opportunity to discuss its conditions with you and after he has done that, I will ask you whether you understand the terms of the order proposed and whether you are prepared to consent to it and if you are prepared to consent, I will make the order.
73You may have a seat. I will stand down shortly while that is done. I will return to the Bench after you, Mr Brown, had the opportunity to speak to Mr Nguyen.
74MR BROWN: Yes, Your Honour.
(Short adjournment.)
75HIS HONOUR: All right. Before I make this order, Mr McAuliffe, are there any matters arising out of my sentencing remarks or any other matters pertaining to sentence you wish to raise?
76MR McAULIFFE: Your Honour, there are only in relation to the first question, nothing arising out of your remarks, Your Honour.
77HIS HONOUR: Yes.
78MR McAULIFFE: I do notice as with your second question that in the summary of prosecution opening, there was first a compensation order sought in respect of the theft of the electricity from AGL.
79HIS HONOUR: Yes, and Miss MacDougall told me that was not being pursued, I thought.
80MR McAULIFFE: Thank you, Your Honour, indeed. That is the only matter, Your Honour.
81HIS HONOUR: All right. Thank you for bringing that to my attention, Mr McAuliffe.
82Well, Mr Brown, I note that Mr Nguyen has signed the acknowledgment that he understands the effect - - -
83MR BROWN: Yes.
84HIS HONOUR: - - - and the conditions of the order I propose, and he consents to it being made. I will make that order and Mr Nguyen can leave the dock.
85MR BROWN: May it please Your Honour.
86HIS HONOUR: All right. Mr Brown, you can be excused.
87MR BROWN: Yes, Your Honour.
88HIS HONOUR: Thank you. Mr McAuliffe, thank you also for your attendance, you are now excused.
89MR McAULIFFE: Thank you, Your Honour.
- - -
5
0