Director of Public Prosecutions v Nguyen
[2021] VCC 1364
•4 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00350
Indictment No.K11870275.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN NGOC NGUYEN |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 June 2021 |
DATE OF SENTENCE: | 4 June 2021 |
CASE MAY BE CITED AS: | DPP v Nguyen |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1364 |
REASONS FOR SENTENCE
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Subject:Cultivation of commercial quantity of cannabis; possess methylamphetamine and cocaine; handling stolen goods. 444 plants weighing 45 kilograms; foreign national. No prior appearances. 24 years old. Not mere crop sitter. Risk of deportation.
Cases: R v Mills [1998] 4 VR 235, Azzopardi v The Queen [2011] VSCA 372, Guden v The Queen [2010] VSCfA 196, Allouch v The Queen [2018] VSCA 244, Loftus v The Queen [2019] VSCA 24
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Nibbs | Office of Public Prosecutions |
For the Accused | Mr D. Sala | Giorgianni & Liang Lawyers |
HIS HONOUR:
1 Van Ngoc Nguyen, you have pleaded guilty to one charge of cultivation of a commercial quantity of cannabis as well as charges of possession of methylamphetamine and cocaine and, finally, a single charge of handling stolen goods.
2 The maximum penalty for the individual charge of possession of a drug of dependence is dependent upon whether a court is satisfied on the balance of probabilities that the possession was in no way connected to trafficking. The onus is on you to bring yourself within that lower penalty provision. As to the cocaine, it was a very small quantity and I am satisfied that you have done that and so the lower penalty will apply. I am not so satisfied for the methylamphetamine charge. Your counsel suggested that the majority of that drug would have been used by you. Ultimately, I am not satisfied the lower penalty provision applies, as I am not satisfied that the possession of that drug is not in any way connected with trafficking. So that matter has the five year maximum penalty whereas the cocaine charge has the 12 month maximum. The 'handling' charge has a 10 year maximum penalty. The most serious charge though, by far, is the commercial quantity cultivation, which is punishable by a maximum term of 25 years' imprisonment.
3 You were born on 18 June 1996 and are 24 years of age and you have no prior criminal history.
4 The matter was opened to me on Tuesday of this week by the prosecutor, Mr Nibbs. He relied upon an agreed written opening dated 1 June 2021 and that document was marked as Exhibit A on the plea.
5 As the written summary sets out all of the facts, there is just no point in my re-stating them now in my reasons. I will sentence on the basis of that agreed statement and I mention just a few matters as to those facts so that these reasons - and, in fact, my sentence - can be readily understood by anyone who happens to access these remarks.
6 That written opening together with the various photographs attached to the depositional material shows the nature of the crop that you were cultivating.
7 The charges arises from a Victoria Police investigation into the preparation, cultivation and trafficking of cannabis in metropolitan Melbourne. Warrants were executed at a number of properties. The property that you were connected to was at 5 Gartner Street, Brighton and a warrant was executed there on 22 May 2019.
8 Within the property there was an elaborate hydroponic cannabis setup. There were 444 plants weighing just over 45 kilograms. A mobile phone was set up at that property as a CCTV device and it was connected up to your residential address in Clayton South. You were linked to email addresses on that phone. A number of items located at the crop house had DNA matching your DNA, as well as your partner's, Ms Huynh. You tended this crop, it seemed with another man, and your phone had messages implicating you in this exercise.
9 Upon the search of your house in Clayton South, a small quantity of cocaine was found, as well as a larger quantity of methylamphetamine. There were also two stolen licences and two stolen passports, hence the handling charge.
10 There were also some items associated with hydroponic cultivation found at your house. Some of the text messages implicating you are set out at p9 of the summary. You were giving directions and you were promising monetary amounts to the crop sitter. You were coming to arrangements with that person. You were no mere crop sitter yourself, that is for sure, and that is conceded.
11 When interviewed by the police you declined to comment, as was your right.
12 The matter resolved by way of an Emergency Case Management listing before me.
13 You have pleaded guilty. Your partner, Ms Huynh, is your co-accused, and she is going for trial at this stage. It is said that she is the person referred to as 'Jessica'.
14 You have been in custody from the date of your arrest.
15 So much then for my brief summary of the summary; that is all it is. I will sentence in accordance with the more complete agreed document.
In Mitigation
16 Mr Sala conducted a very thorough and realistic plea on your behalf. He prepared a brief written outline marked as Exhibit A and also relied upon some certificates and course documents.
17 He placed before me details of your personal and family background, and he provided your explanation for the offending and your motivation. It was, he said, a profit making exercise driven to some extent by the cost of your drug addiction, as well as to sustain your lifestyle more generally. He made submissions about the relative gravity of the offending and what he said were your very good prospects of rehabilitation. He made submissions about the weight to be given to the various purposes of sentencing.
18 He raised a number of matters in mitigation. Chiefly, they were:
· Your relatively early guilty plea;
· The presence of some remorse;
· Your relative youth and the absence of any prior criminal history;
· Also the risk of deportation was raised;
· The impact of the COVID-19 global pandemic upon your custodial experience, as well as your isolation in custody.
19 Mr Sala conceded the inevitability of a term of imprisonment and one of a duration requiring the fixing of a non-parole period.
Prosecution
20 The prosecutor, Mr Nibbs, on behalf of the Director of Public Prosecutions of this State, was calling for a prison term and one requiring the fixing of a non-parole period. That was quite uncontroversial and of course had already been conceded by Mr Sala.
Background
21 I will turn then to your background, but I am going to do it briefly. I am not going to set out all that I have been told about you. I have no reason to doubt the family details provided to me and I just see no need to repeat them all.
22 You are 24 years of age, almost 25. You were born on 18 June 1996. You were born in Central Vietnam and you are the middle of three children. You were raised by your parents, who had fairly simple jobs and no great prosperity, as I have gleaned from the materials. Your father in fact had assumed a debt in relation to a farming property of some description and that figured in some fashion in the decision ultimately made for you to leave Vietnam.
23 You left school at the age of 16 with the equivalent of a Year 9 education and you were encouraged to leave Vietnam by your father. Your two other siblings have also left that country. Your father has since died. Your mother remains in Vietnam.
24 You arrived in this country by boat, illegally, and went into immigration detention as a teenager; a 16 year old. You were ultimately sponsored by a person described as an 'auntie' and were released into the community. You did some English language study. You moved around Australia but drifted down to Melbourne and were alone and young. I was told that you fell in with some bad types. You started using methylamphetamine and developed a habit. It was argued that the addiction in some way led in to this decision to cultivate cannabis.
25 I have no interview account here, or even any account provided by you to a psychologist. I have really what are your untested instructions given to
Mr Sala. I am prepared to find that you were a drug user; that seems clear enough. Funding your drug use cannot provide the full explanation for what was a profit making exercise, and one with a level of planning. You were in this to make money and that much is readily conceded. The context was of being a drug user, but that is not mitigatory.
26 You are still quite young and you have no criminal history. You have been doing such courses and programs as are available to you in custody and you have been in custody throughout the disruptions caused by the COVID-19 pandemic. You fear that you will be deported. You have been distanced from your partner and her child. That child is still young and though you are not the biological father, you have stood in the position of father from very early on in that child’s life.
27 This is a between dates charge and plainly you were not cultivating at the lowest of levels.
28 I turn then to consider the other matters raised on your behalf. The first of those is your guilty plea.
Guilty plea
29 You have pleaded guilty and that is at an early enough stage, but plainly it is not the earliest opportunity. You know that. There was a brief committal conducted. There were other charges which ultimately have not proceeded. You have ultimately, in the course of that Emergency Case Management listing before me, taken responsibility for your offending and you have facilitated the course of justice by doing so. The community has been saved the time, cost and the effort associated in an actual trial up in this court in your case. There is a utilitarian benefit in pleading guilty and I must pass a lesser sentence upon you. There is also a heightened value to your guilty plea, given that it took place in the midst of the COVID-19 disrupted operations of this court. The trial would have been significantly delayed. Well, now, of course, there is no need for a trial in your case.
Remorse
30 A guilty plea is often indicative of some remorse. Your plea, as I have said, I am going to treat as a relatively early one. You are not mucking around placing foolish versions before the court about why you did what you did, but nor are you prepared to describe fully your conduct or your relationship with others. I understand your desire to protect your partner but your counsel, on a number of occasions on the plea in response to questions posed by me, said he could not provide an account of various aspects of your offending. You had instructed him not to. You are a young man and you have no criminal history and, ultimately, I am prepared to accept your counsel’s submissions and find that your guilty plea is indicative of some level of remorse and I take that into account in your favour in mitigation.
Youth
31 I turn to your age. Now, Mr Sala did not make any direct submissions as to those cases dealing with the importance of youth. The fact is though you are only 24 now, turning 25 in a couple of weeks, and you were only 22 years old when you offended. So you are still young enough, that is for sure, and with no criminal history. It is your first experience of prison and in a none too pleasant setting, amidst the COVID-19 disruptions.
32 Now, the principles which apply to the sentencing of a youthful offender, as set out in cases such as Mills[1] and Azzopardi[2]; they are well known by us all. I will not re-state them all and, as I have said, your counsel did not make a ‘song and dance’ about your youth here, so these principles have to be adapted to one of your age. You were not, after all, some silly teenager. You were 22. Still, I think they have some application to my task.
[1]R v Mills [1998] 4 VR 235
[2] Azzopardi v The Queen [2011] VSCA 372
33 The law usually treats youth as a matter of importance. Young people are less mature. They are more prone to making mistakes or to acting without deeply thinking through the consequences of their actions. I wonder whether you really thought through the consequences of your potential deportation from this country? I doubt if you did. More weight is devoted to rehabilitation. Less weight is usually given to principles such as punishment and deterrence.
34 So it is for these, and other reasons, that young people are generally less culpable and the benchmark for sending a youthful first offender to prison is understandably a very high one. It is of course amply met here, there is no question about that.
35 The law recognises the fact that young or even youthful offenders are more able to be rehabilitated. They are less set in their ways and the community has a sizeable stake or interest in the rehabilitation of any offender; but more so when there is a youthful offender. At the end of the day, of course the community does not need to be protected from someone who is actually rehabilitated.
36 Well, as I say, you are a relatively youthful offender. I do not and cannot treat the age of 21 as being some critical cut off point in terms of the application of some of these principles. It is a critical date, however, in terms of the availability of Youth Justice detention. That is not available in your case, but your relative youth I think is a matter of some importance to my task. It cannot just be ignored, but the weight to be given to youth and rehabilitation varies from case to case and is not just applied automatically in the same way in every case.
37 Generally speaking, the more serious an offence the less weight can be given to youth and rehabilitation, and that is because more weight is given to other purposes of sentencing. I will not lose sight of your relative youth but, regrettably, of course you have committed a serious offence indeed in the commercial cultivation charge, and you were not some silly teenager. You were an adult, but a young one, and I do not lose sight of that.
Rehabilitation
38 What then are your future prospects of rehabilitation? Mr Sala was arguing that you have very good prospects of rehabilitation and he was pointing to your relative youth and your lack of criminal history. Also, the efforts that you had made in custody. Also, your guilty plea and the presence of some remorse. As against that, of course, you have committed what you must have known was a serious crime. It was not in any way spontaneous. I see no evidence of any dire financial need in this case, nor was it suggested there was. Drug use may have been part of the context but it is no excuse at all, nor can it provide a complete explanation for what was serious pre-meditated offending.
39 You have been in prison since your arrest and, as I have said, it has not been a pleasant experience. You are isolated from your partner, who is a co-accused. Also from a child that you really took on as your own.
40 I am sure these things have collectively driven home to you how bad a choice you have made to offend in this way. I am equally sure that the term that you have served to date, and the prison term which you will continue to serve following my sentence today, will play some role in deterring you into the future. Your relative youth and your lack of criminal history give me some cause for genuine hope.
41 I am then prepared to find that you actually have good prospects of rehabilitation. It remains to be seen though if they take shape in your homeland, Vietnam, or in this country. That is in the ‘lap of the Gods’ for the moment.
COVID-19
42 I accept that the COVID-19 virus and the response to it by those running the prisons has undoubtedly increased your burden of imprisonment. Prison has been a more stressful environment. Social distancing has not been easy. No doubt there is worry about catching the virus in such a setting where, unlike a community setting, there is no level of autonomy in prison. You have been in prison throughout this period, which has been impacted by the COVID-19 virus, and it has not been easy. A number of courses and programs would have not been fully available for a decent portion of your time in custody. There have been no visits for a large period of that time. It has undoubtedly been an isolating experience for you and it is your first taste of prison. Even when restrictions were lifted you received no visits, as it was felt best not to be associating with your ex-partner, who is a co-accused. I mean, I am not even sure she would have been allowed in the prison, frankly, but the reality is you have been very isolated. It has not been easy.
43 As to what lies ahead on the pandemic front, it is impossible for me to know. The impacts of the virus upon prisoners had been lessening, with visits and courses getting back underway earlier this year. As we all know, we have been experiencing these ups and downs as the events of the last few months, and indeed the last week or two, have made plain. We had a circuit breaker lockdown in February and that then led to the temporary suspension of visits. We have had the issues over the last week or so with another lockdown and the extension of that earlier this week, and these all have implications for prisoners. So whilst we have been travelling very well in the community, it is not that difficult to see how restrictions may yet spring up again, as they have in the last week. I am sure there will be some ongoing anxiety amongst prisoners as to how they will fare. I take that into account. I cannot know if the limitations will be prolonged or if, once lifted, they may start up again down the track, I just do not know, and I am not free to speculate about those sorts of matters, but I take into account the impact of the virus in the ways urged upon me by your counsel.
Deportation
44 I move to the aspect of deportation. Now, Mr Sala was initially really not placing much, if any, weight on the aspect of your potential deportation. Ultimately, it seems to me he relied to some extent upon an increased burden arising from that risk.
45 The mitigatory impact of the risk of deportation as contemplated by the case law relates to the increased prison burden, as well as the additional punishment represented by the loss of the opportunity to continue residing in this country.
46 I do take into account the many cases dealing with the relevance of the risk of deportation including the Guden[3] line of cases, which have been considered in many other cases including, for instance, Allouch[4] and Loftus[5].
[3]Guden v The Queen [2010] VSCA 196
[4]Allouch v The Queen [2018] VSCA 244
[5]Loftus v The Queen [2019] VSCA 24
47 It seems safe for me to work on the assumption that you will have your visa cancelled automatically. In a way, I am told you are hoping that somehow they overlook that: well, there is no reason to think they will, so I will work on that assumption your visa will be cancelled. You will have rights in relation to having that decision reconsidered. Mr Sala told me that you would seek to exercise those rights. In terms of those review powers, well, I have no idea at all how they will play out, nor do you. It would involve pure speculation on my part.
48 In the course of the plea I raised the Sentencing Advisory Council paper published back in November 2019, 'Deportation and Sentencing', which disclosed that a decent enough proportion of those who have their visas cancelled automatically actually have that decision overturned. Well, that is a published paper; I see no need for that to be marked as an exhibit. The success rate, at least in the three years covered by that research, was between 34 to 41% (see paragraph [24]). It was a surprisingly high figure.
49 I raised with the parties in the course of the plea the updated figures; these are the visa statistics kept by the Department of Home Affairs from the last calendar year, and I did that so at least they would have the opportunity of addressing me on this topic. In fact, what I will do is I will mark those statistics as Exhibit B. They are in as a Crown exhibit but of course, they are not, but I flag them and they have been discussed.
50 Those up to date figures disclose that 37% of those who sought reconsideration were successful. Again, that is quite surprising. These figures, and those dealt with by the Sentencing Advisory Council, do not, as I understand it, include those who have had their reconsideration refused, who then review the matter in a tribunal and then succeed.
51 So where will this all end up for you? Well, it is impossible to know. I am prepared to find an increase in your custodial burden arising in this case. I am sure there will be uncertainty in your mind as to what lies ahead. It will not be easy and it will increase the burden of imprisonment, but will you actually be deported? I cannot know.
52 Your counsel concedes that is so. As I have said, if your visa is cancelled, you will have those rights to have that decision reconsidered. If that process goes against you, in some settings there is then a right of review to a tribunal, so there is a large degree of speculation in reaching any view as to the likelihood of actual deportation for the reasons that I have spelled out. However, I do not ignore that matter either. I do accept that if it occurs it will be a large blow to you. You have a connection to this country. You came here as a minor - as a 16 year old. You have a relationship with an Australian citizen. You have a child that you have treated as your own for a number of years. Your father is no longer alive in your homeland. Your mother is, but you have really had no connection to Vietnam for a number of years. Australia has been your home for many years, so the prospects of being disconnected from this country would be worrying for you. No doubt these aspects would feature in the request for the reconsideration of the cancellation of your visa, but ultimately I will give some weight then to the two limbs referred to in the Guden line of cases. The increased prison burden, that is not speculative. I have no doubt there will be an increased imprisonment burden. The loss of the opportunity to permanently reside here is of course far less certain.
General remarks
53 I want to address now just some general remarks to you about the nature of the offending. I am really going to focus on the cultivation of the commercial quantity. I will say very little about the other offences.
54 You were in this for money, and at an obviously higher level than a mere crop sitter. Your counsel frankly concedes that is so. Virtually every person engaged in this style of crime is doing it for money. I am not satisfied on the balance of probabilities that there was any real financial need in your case. Your drug use is not mitigatory and it cannot provide the full explanation behind this offending. You have made a choice, and the choice was to commit what you must have known was a serious crime.
55 Well, I have to take into account the nature and the gravity of your offending. There is much you are not prepared to disclose about this offending. That is your choice. It is your right, and I do not penalise you in relation to that, and I understand that you have concerns for your partner, whose trial remains outstanding. I understand all of that but I mention it only as, on occasions, your counsel spoke of your remorse to be gleaned from your 'genuine' description of your offending. Well, it was a qualified set of ‘instructions’ you gave, as Mr Sala conceded.
56 You plainly were operating at a level well above that of a mere crop sitter. The texts make that very plain, so too the link to the CCTV camera set up in the house. You were exercising powers over the crop and judgments as to the level of remuneration of an underling. You are a long way removed from a low level player. Indeed your counsel conceded that you were involved, as he said, in the setup of the crop and were doing so to make money. It was a business. He said there was no suggestion of there being any shadowy figure above you in the hierarchy pulling the strings. He conceded that you had the stake in the success of this crop as the cannabis was being grown by you to be sold. Now, I am not dealing with you for trafficking, but those concessions make clear that you are far removed from the low level crop sitters that we so often see in this area. Mr Sala argued that I should not penalise you for this level of frankness and that I should also take into account that many of those who claim to be crop sitters probably are not. Well, my answer to that - both on the plea and now - is that I must deal with you for your crime. I have to assess the seriousness of your crime. I am not dealing with other offenders and making judgments as to their role. I am dealing with you in a case where your counsel concedes your higher level role and the material supports that, in any event.
57 I must have sentenced over a dozen commercial cultivators in the last couple of years and, of course, I am only one judge of many who sit in crime on this court. It is a prevalent crime, which is conceded by your counsel.
58 It seems to me there are only so many ways that one can describe these crops and these principles of sentencing. As I have said in so many other cases, I say now in yours; this crop and its ultimate success has been interrupted by the execution of the warrant by the police. You clearly knew that what you were embarking upon was a serious crime. This was very obviously a highly elaborate, highly organised and highly criminal activity. You knew that.
59 Sizeable illegal profit of course was central to this crime. Now, I cannot know exactly what financial reward you hoped to gain here, but it must have been quite significant to have you take what was obviously a calculated risk.
60 You had a key role in this crop. As your counsel says, it was ‘your crop’.
61 This crime carries a maximum term of 25 years' imprisonment and I must pay regard to the maximum sentence.
62 Now, sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation. I believe they are good. They may well take shape back in Vietnam; only time will tell on that score.
63 I must consider the need for specific deterrence; that is the need to deter you from committing crimes in the future. Well, as I have said, you have been arrested, charged and you have pleaded guilty. You have some remorse and you have no criminal record. You have already been in custody for a significant enough time - and for the first time and it has not been easy - so specific deterrence has already been achieved to a degree. Though I must give this purpose some weight, I do accept your counsel’s submissions that it is open to moderate the weight to be given to specific deterrence. In fact, not just that purpose, but also community protection. That too can be moderated. However, the case law makes very clear that this is an offence that requires substantial punishment[6]. General deterrence is also a significant purpose of sentencing in cases such as these. It does loom large.
[6]DPP v Duong [2006] VSCA 78
64 There is, seemingly, a never-ending stream of commercial quantity cultivators brought before this court. Those who may be tempted in the future to commit this sort of serious crime must understand that there is the real risk of arrest, prosecution, and the imposition of a substantial prison sentence down the track. Those who choose to engage in this activity, at whatever level, are always taking a calculated risk. You were. Future likeminded potential offenders must understand that with that potential reward on offer comes a significant and a real risk of detection, prosecution, and then the likelihood of the imposition of a significant term of imprisonment.
65 The message sent by the courts must be such as to cause future potential offenders to actually pause for thought and to reflect and, hopefully, to reconsider their decision. The serious risks must neutralise or even outweigh the lure of what might seem to be easy financial reward on offer in this area.
Current sentencing practice
66 I pay regard to current sentencing practices. It is not a single controlling factor. It is one of the matters that I must have regard to.
67 I have looked at the Sentencing Snapshot No. 247 of August of last year. The statistics disclose that in the period covered by that data, where prison was selected, sentences ranged from a period of a little over a month to six and a half years, with the most common sentence falling in the band of two to less than three years.
68 I have also looked at the material held at the Judicial College of Victoria Sentencing Manual, including an overview of commercial cultivation sentences dealt with in the Court of Appeal. Of course I disregard any cases dealing with large commercial quantity. There is a higher maximum penalty at play for that offence and necessarily greater quantities of the plant either by number or weight.
69 As was mentioned on the plea, there have been a large number of cases over the years querying the adequacy of sentencing practices for this crime. The case of Nguyen sets out a number of those cases[7]. That was a case that spoke of the inadequacy of sentencing practices for the crime when committed at certain levels. The Court of Appeal, in that decision, was critical of the fact that current sentencing practices had seemingly remained the same, notwithstanding the many occasions that it had been called into question in the Court of Appeal. It is a case that contains statements as to the seriousness of the crime of commercial quantity cultivation of cannabis and the weight to be given to punishment and general deterrence.
[7]Nguyen v The Queen [2016] VSCA 198 at [139] to [142]
70 Now that case, Nguyen[8], was not focussing on low-level players. It was more directed at what were described as 'medium-level' cultivators. The court spoke of the need for an increase in sentence at least in relation to mid-level players, so that the range of sentences are uplifted and substantially expanded. There had been, they said, a merging of the sentences and insufficient distinctions drawn between serious cases and less serious cases.
[8]Ibid
71 The Court of Appeal has spoken as to the danger of applying adjectives or labels to describe a person's role. Those sorts of things can actually obscure a person's conduct. Focussing on the actions and the conduct is what is important, not the label that is applied to describe it. The Court of Appeal said recently in yet another case of Nguyen:
'A sentencing judge is required to sentence an offender by reference to all of the facts of the case (including all of those able to be gleaned about the offender's role and involvement) and not by reference to whether the offender can be given some particular appellation.'[9]
[9]Nguyen v The Queen [2019] VSCA 134 at paragraph [59]
72 Well, it is conceded you were not some minor player or ‘mere’ crop sitter. It is a between dates charge and plainly you were exercising some significant judgments over this crop and the premises. I was told it was your crop; that you had set it up and were doing so for profit. You had an underling but were still, to some extent, hands on. You were committing an unmistakably serious crime, and doing so for money, and your culpability was nowhere near the lowest of levels.
73 I have mentioned the sentencing statistics and also some other cases which I have looked at. Statistics have got inherent limitations; they will never tell much of the real story as to why a sentence was imposed.That is because when a sentence is imposed, a court is required to take into account a whole range of matters of both aggravation and mitigation; the sorts of things that I am dealing with now. Those sorts of things are never disclosed in the data. I am not going to sentence you according to what has been the most common previous sentencing outcome, as disclosed in the statistics. Nor are other cases in any way precedents.
74 I mentioned in the course of the plea another decision of Nguyen[10] where the sentences of three years and eight months were confirmed in the Court of Appeal, with the Bench comprising Priest and Beach JA stating that sentences in that region are entirely unexceptional, even for crop sitters.
[10]Ibid at [65]
75 It is clear from the many cases in this area that cultivation in a commercial quantity of this drug is a serious and prevalent crime and that general deterrence must be at the forefront of any sentence imposed by this court.
76 This is a quantitative based regime. Weight and plant number, while it was of course not the only matters of importance, will always be of real importance. Often they are the only things distinguishing individual cases.
77 Commercial quantity for cannabis is 25 kilograms or above, or 100 plants or above. Well, you were cultivating 444 plants weighing in at a touch over 45 kilograms. This was a sophisticated and unmistakably serious criminal setup; one where you had a high level of responsibility.
78 A large commercial quantity is set at 1000 plants or 250 kilograms. That figure then is fixed at 10 times the commercial quantity, either by reference to plant number or weight. Well, you had over four times the commercial quantity by plant number, so approaching half the large commercial quantity by that measure.
79 This was serious offending and falling nowhere near the lowest levels. I do accept, though, that it is not at the very highest of levels where, for instance, there may be a principal player engaged in multiple premises with all manner of hired underlings and criminal structure. That is not what I am dealing with. Nor though is there any significant reduction in your culpability here. Your cultivation, in my judgment, comfortably falls at least at the mid-range.
80 I have scarcely mentioned the other charges and, as I said earlier, they are far less serious. They pale almost into insignificance. It is a small quantity of cocaine that is consistent, in my view, with personal use. The ice is a larger quantity but still not enormous. I cannot exclude a purpose with some connection to trafficking and so the higher penalty provision applies, but that then does not permit me to deal with you for trafficking. It is a charge of possession that I am dealing with you for, though with the higher maximum penalty applicable. The handling is not the most serious example of such a charge. There has been no explanation as to why you had licences and passports in your possession, just that it is the sort of crime which goes hand in glove with a cultivation such as this.
81 I have engaged in a last look at the sentences in endeavouring to avoid a sentence that might be crushing upon you and to ensure that the overall effect is consistent with your overall actual criminality. Regrettably though, you have committed a serious offence in this commercial cultivation charge. Your criminality is high.
82 There is an application for a disposal order and also a forfeiture order. They are consented to. I will attach my electronic signature to those orders and I now pronounce them in a very much abbreviated fashion.
Disposal order
83 As to the disposal order I am satisfied that the criteria for the making of the disposal order is made out and I order pursuant to s78(1) of the Confiscation Act 1997 the forfeiture to the State of the property referred to in the Schedule. I direct that it be dealt with in the manner contemplated by that signed order.
Forfeiture order
84 As to the forfeiture order, again I am satisfied that the criteria for the making of that order is made out and I order pursuant to s34(1) of the Confiscation Act 1997 that the property referred to in that Schedule be forfeited to the Minister.
Sentence
85 Now, normally I would get you to stand at this stage but I won't, of course. I'm sentencing you over the internet so I will have you remain seated, thank you. I'm sorry to have taken so long to get to this point. I will now pass the formal sentences of the court.
86 On the charge of cultivation of a commercial quantity of cannabis I convict and sentence you to 48 months or four years' imprisonment. That is the base sentence.
87 On the charge of possession of drugs of dependence - there are two of those charges, they have differing levels of seriousness. I do not believe a prison term is even warranted for the cocaine charge, which is Charge 3 on the indictment. On that charge you are convicted and fined $400.
88 The other charge, Charge 2, has the higher maximum penalty and a larger quantity of the drug. On that charge I convict and sentence you to 14 days' imprisonment.
89 On the handling charge, Charge 4, you are convicted and sentenced to seven days' imprisonment.
Cumulation or concurrency
90 Now, those two smaller prison sentences - the 14 day term and the seven day term - will be served concurrently upon the base sentence and upon each other.
Total Effective Sentence
91 So this results in a total effective sentence in your case of 48 months or four years' imprisonment.
Non-parole period
92 I must fix a non-parole period and I cannot let the prospect of deportation intrude upon that exercise either in terms of the need to fix a non-parole period or the duration of that non-parole period. Nor am I free to consider whether or not you will be released on parole. That is entirely in the hands of the Adult Parole Board and I am prohibited from taking that possibility into account.
93 I fix a period of 28 months, or two years and four months, during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
94 You have already served 688 days of this sentence by way of pre-sentence detention and that s18 declaration is entered into the records of the court.
Section 6AAA
95 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury I would have convicted and sentenced you to five and a half years' imprisonment. I would have fixed a non-parole period of three years and 10 months and that statement is also to be entered into the records of the court. I'll just see if there's anything else I need to attend to there. Mr Nibbs, Mr Sala, are there any other matters that I need to deal with?
96 COUNSEL: No, Your Honour.
97 HIS HONOUR: All right. Mr Sala, presumably you'll be in contact with your client - - -
98 MR SALA: Next week.
99 HIS HONOUR: - - - to discuss what's occurred here today and his rights, but you'll contact him next week, will you, or - - -
100 MR SALA: Next week. Yes, Your Honour. Next week.
101 HIS HONOUR: So you'll tee up some sort of - are you wanting to do what we did the other day? Are you wanting to speak briefly to him now, using the existing link once we've all left the meeting, or not?
102 MR SALA: Thank you for the offer, Your Honour. I have already some wheels in motion for interpreters and so forth, so I'll definitely be having a conference with Mr Nguyen next week, so the ball's already going.
103 HIS HONOUR: Okay, that's fine.
104 MR SALA: Thank you, Your Honour.
105 HIS HONOUR: All right, thank you. Well now, look, Mr Nguyen, Mr Sala then will be in contact with you next week and that will be to discuss what's occurred here today and your rights in relation to that. Okay? Yes, all right. Well, I think that that completes the matter then. So nothing else from either of you?
106 MR SALA: No, Your Honour.
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