Director of Public Prosecutions v Nguyen
[2021] VCC 683
•27 May 2021
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| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 21-00131
Indictment No. L12104389
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANH QUANG NGUYEN |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2021 | |
DATE OF SENTENCE: | 27 May 2021 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 683 | |
REASONS FOR SENTENCE
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Subject:Between dates cultivation of commercial quantity of cannabis (9 months); Knowingly deal with proceeds of crime, possess drugs of dependence (heroin and MDMA); Summary offence possess ammunition; 130 plants and loose cannabis weighing 124kg. Earlier harvests. Early guilty plea. Relevant criminal history. 47-year-old
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Porceddu | Office of Public Prosecutions |
| For the Accused | Mr N. Howard | Haines & Polites Lawyers |
HIS HONOUR:
Thanh Quang Nguyen, earlier today you pleaded guilty to one charge of cultivation of a commercial quantity of cannabis, one charge of knowingly deal with the proceeds of crime, one charge of possession of drugs of dependence, there are two drugs specified on that charge, and a summary offence of possession of ammunition without authority.
The maximum penalty for the cultivation is 25 years. The proceeds of crime offence has a 15-year maximum penalty. I will treat the possession of drug offence as having the lower maximum penalty of one year, satisfied as I ultimately am that your possession was not in any way connected to trafficking. The ammunition offence is really the least of your worries. It is punishable only by a fine.
You are 47 years of age and you have a relevant criminal history before the courts.
This matter was opened to me by the prosecutor, Mr Porceddu, in accordance with a written summary dated 16 May 2021. You heard your counsel, Mr Howard, tell me that it was an agreed summary.
The agreed summary which will be marked as Exhibit A refers to the photographs that are contained within the depositional material.
I will sentence on the basis of the full agreed summary and for that reason, it is really not necessary for me to set out all of the facts in these my reasons.
I am going to say something only very briefly as to the facts and I am doing that so that my sentencing remarks and in fact my ultimate sentence are explicable to anyone who reads them.
That agreed summary (Exhibit A), describes the crop that you were cultivating at 16 Palana Court, Springvale. As you know, Operation Sapphire had been an investigation into cultivation and trafficking of cannabis in suburban Melbourne and four properties were targeted in this cluster of offending. Two other accused have been charged. One of those men, Hung Nguyen, was dealt with by Judge Mason earlier this year. I have read those remarks and the parties agree that he is not strictly a co-accused. He is just another man cultivating another crop. That crop was in Pakenham. There is no relationship at all between the two of you and so there is no issue of parity of sentence at all. It is, as I said in the course of the plea, just another example of a sentence imposed in this area. The other man, Duy Phuong, is said to have a connection to multiple properties but his case has not yet been finalised.
You were responsible for the cultivation at 16 Palana Court, Springvale. Your car had been observed there earlier in the year, on 5 May 2020.
Now a warrant was executed upon that address early in the morning on 3rd September 2020. Police entered the premises and arrested you. Your car was out in the drive.
As the photographs and the summary disclose, there was a sophisticated hydroponic cannabis set-up with a number of rooms under cultivation as well as a bypass of the power meter. Now, you are not charged with the theft of the electricity.
Fifty-three items were seized and the summary goes into the detail of all of those. I shall not. The items included some cartridge ammunition, a quantity of dried cannabis as well as $2,580 cash. There were 130 cannabis plants weighing in at over 103kg, as well as about 20kg of loose cannabis, some dried, some mixed. There was the usual, if I can use that term, array of equipment including timers, transformers, lighting shades, filtration systems and watering systems, as well as a large amount of fertilizer containers and drums. A single tablet containing ecstasy, as well as 8.4 grams of heroin (I believe by mixed weight) were also found. Given the quantities of those drugs, as I say, I will treat the possession charges as attracting the lower penalty provision, which is a one-year maximum.
As to the cannabis, well, you had over the commercial quantity by weight and by plant number.
You were interviewed by the police and you made full admissions. I am not going to set them all out. Some of those admissions are extracted in the agreed summary but I have read the full interview. You were obviously very co-operative. You admitted previous harvests producing around 20 pounds or 9 kg of dried cannabis. You said you were living there rent-free and provided up the harvested dried cannabis to your superior, Ba, who paid you $4,000 for it. You told the police that you needed money for your daughter who was in Vietnam.
You have been in custody since being charged. The procedural chronology is set out in the agreed summary.
In Mitigation
Now, Mr Howard appeared on your behalf and he conducted a very sensible and thorough plea. He prepared a detailed and excellent written outline of submissions which was marked as Exhibit 1.
He took me to your personal background and your work history. He made submissions as to your role as well as your reasons for committing the major offence which was obviously the charge of cultivation. He conceded that the Court could only be guarded as to your future prospects of rehabilitation. He conceded the financial motivation, the high culpability here, and the gravity of the offending.
There were only a handful of matters in mitigation.
They were:
· Your early guilty plea;
· Your cooperation with the police
· The presence of some remorse;
· An increased custodial burden arising from the COVID-19 as well as from concern as to the welfare of your family and daughter in Vietnam.
The commercial cultivation offence is what is referred to in the Sentencing Act1991 as a 'Category 2 offence' and your counsel was not suggesting that you fell within any of the exceptions to those provisions. He conceded the inevitability of a prison term with a non-parole period being fixed. That concession was undoubtedly correct. In those circumstances, I do not intend to say anything more about those various exceptions to the operation of s.5(2H), as they have no application at all to my task.
Prosecution
The prosecutor, Mr Porceddu, had little need to make any submissions on the plea. That is often the position when a sensible and realistic plea has been conducted, as it was here. The Director of Public Prosecutions was calling for an immediate term of imprisonment and with a non-parole period being fixed but of course your own counsel had readily conceded that such an outcome was inevitable here.
Background
I will turn only briefly to your background. There is detail set out in paragraphs 3-10 of the written submissions and there is no utility in my repeating all of that detail. I have no reason not to accept that background.
Very briefly stated, you were born on 28 August 1973 and so are now 47 years of age. You were born in Vietnam. Your mother left the family when you were a toddler. You and your brother were raised by your father who had some very bad experiences in the war. He was often unwell.
You finished high school in Vietnam and at the age of 16, as I understand it, went to Malaysia as a refugee. You studied English. You and your father came to Australia in 1990 when you were about 17. You lived in Adelaide and did an English course and then enrolled in Year 10. Sadly, your father died in 1991 and you ceased schooling and then went into the workforce. In your mid-20s you moved to New South Wales.
You married in 1997. Now, that marriage ended in 2007 and there were no children of that relationship. You started gambling after the breakdown of that marriage and incurred some debts.
You married a second time in 2013 and have a 13-year-old daughter. That cannot be right. Well, that is based very much on the personal circumstances set out in the plea document but my maths are not dazzling. The written submission describes, Mr Howard, your client meeting Ms Ann in 2010, later marrying in 2013 and it seems to suggest there is one daughter of that relationship, Ivy, who is now 13.
MR HOWARD: Yes, I see Your Honour's point certainly.
HIS HONOUR: Maths was not my strong point - - -
MR HOWARD: Nor mine, Your Honour.
HIS HONOUR: - - - which is probably why I am up here but those maths do not add up anyway.
MR HOWARD: No. I accept that.
HIS HONOUR: So have you got any other information as to the age of Ivy or not?
MR HOWARD: Certainly my instructions were 13, Your Honour, but I accept that the maths does not add up.
HIS HONOUR: Anyway, look, perhaps it is unimportant.
MR HOWARD: Yes.
HIS HONOUR: You have a daughter of that relationship. It is said that she is 13. There might be some mistake in terms of that. But it is academic. You have a daughter of that relationship. You are divorced from your second wife and she and your daughter, Ivy, live in Vietnam. For completeness, you are an Australian citizen and so the spectre of potential deportation does not hang over your head in this case as it does in so many others.
Your employment history is set out in paragraph 7 of the written submissions, it has generally been in horticulture, and farming or labouring or factory jobs. You must have had some issues with drugs including ice and heroin, but I am told that is now in the past. The drugs found that form the subject of Charge 3, I was told, were from a different era and I am prepared to act on that.
Your criminal history is not that lengthy but your counsel concedes it is relevant to my task. There is an old assault matter dealt with in South Australia that does not in any way inform my task. I put that aside. However, this is now the second serious drug offence that you have committed. In 2013, you were jailed for 4 ½ years with a two-year and nine-month non-parole period for importing a marketable quantity of heroin. Those sentencing remarks were referred to and I have looked at them and indeed I think I should probably mark them as an exhibit here. Not a Crown exhibit but a defence exhibit, as I think they are referred to in the defence submissions. So I mark them as Exhibit 2 on the plea. Judge Maidment in that case referred to you committing that importation. It was an importation on your person; indeed, I think as I read the materials, secreted within your body. He referred to you taking a roll of the dice, and hoping that you would not bow to temptation in the future. Well of course you have.
Since release in 2015, you have lived alone in Springvale. You went before the court in 2018 on weapons and drug offences and received a community corrections order with a treatment condition. So it is very hard to accept the submission that is no doubt based on your instructions that you really have not had problems with drugs. Plainly you have. You were back before the court in 2019 again on a drug offence.
Since release from prison you had worked in casual labouring and construction jobs. You have been in custody since arrest and have been doing courses and using your time usefully. You have experienced the impacts of the COVID-19 virus as a prisoner. You have been understandably worried about your ex-wife and daughter and how they are faring.
Guilty plea
I turn then to the matters raised on your behalf; firstly your guilty plea. You have taken responsibility for your offending and have pleaded guilty at what I will treat as the earliest stage. Witnesses have been spared the experience of coming to court for a committal hearing in the lower court or for a trial up in this court. It follows then that the community has been saved the time, the cost and the effort associated with either a committal or a trial. You have in those ways facilitated the course of justice. Your guilty plea also took place in the setting of the interrupted operations of the court brought about by the COVID-19 virus. That is worthy of some extra recognition. It is plain that any trial would have been significantly delayed. I take all these matters into account in mitigation in the ways urged upon me by Mr Howard.
I also take into account the fact that you co-operated with the police and made full admissions. They were extensive admissions and as your counsel correctly submits, you provided the police with much detail as to your level of involvement. You told them really what you had been doing and for how long and why. You were not obliged to do so any of those things. You just did. You volunteered that information. So that level of co-operation also has to be rewarded. It is worthy of extra recognition and in a meaningful fashion because you supplied this information to the police. The police had some sense obviously of the earlier involvement with your car being spotted in May, but your admissions were extensive, and they provided the police with information they could not have been aware of. In fact, your description of the duration of the offending has been selected as the commencement date of Charge 1. So of course whilst it plainly is more serious that you were cultivating for a sustained period, on the other hand you voluntarily provided that and other details and must be adequately rewarded over and above the run of the mill allowance that might apply to ‘mere’ cooperation (see the case of Doran).
Remorse
Your counsel argues I think impliedly that there is some remorse here and founds that submission on your guilty plea and your level of co-operation and admissions.
A guilty plea is often but not always indicative of some remorse. The case against you, was of course an overwhelming one. That in no way impacts upon the weight that I have given to your guilty plea. That weight is totally unaffected by the strength or otherwise of the case or the presence or absence of remorse. I mention the strength of the case only as the strength of the case may have an impact on the inferences that might be drawn from the fact of a guilty plea. What else could you really do in this setting? You were caught out cold in a veritable cannabis factory. That is the reality.
However, having reviewed the materials, I am prepared to find the presence of some remorse in this case which I take into account in your favour. Again, you get a benefit flown to you from your attitude upon the interview with police.
COVID-19
I turn to the implications of the COVID-19 pandemic. The COVID-19 virus and the response to it by those who are running the prisons undoubtedly has increased your prison burden. You have been in custody since September of last year, so that is already for a significant enough period. Prison has been a more stressful environment whilst you have been held on remand. You have served 22 days in quarantine and there would have been limitations on in-person visits for a sizeable portion of your remand time as well as lack of access to the full range of courses and programs. Social distancing has not been easy. I am sure there has been worry about catching the virus in such a setting where there really is no level of autonomy.
As to what lies ahead in the community or in prison, it is very hard for me to know.
The impacts of the virus upon prisoners has been lessening, with the resumption of
in-person visits earlier this year and for that matter courses.
But the events of the last few months with the circuit-breaker lockdown and the temporary suspension of visits which that produced shows that, whilst we have been travelling well in the community, it is really not that difficult to see how restrictions may yet start up again in a prison setting. Indeed, the events of the last few days with some mask requirements coming back into force following a recent outbreak in Melbourne shows how delicately we are all poised. Contact tracers have been working overtime with over 70 exposure sites. In fact, I feared even as I came onto the Bench we might be heading into another lockdown and that lockdown was in fact announced in the currency of the plea being heard; a seven-day lockdown has been called. So, there will be ongoing anxiety amongst prisoners as to how they will fare in the future. I take that into account as well. I cannot know if limitations will start up again and if so, for how long. I am not free to speculate on that score.
But I take into account the impact of the virus in the ways urged upon be by your counsel.
I am not able to find that you are suffering from what is described in the written submissions as a reactive depression. There is just no evidence at all to support that view. Nor can I place any great weight on your concerns for your family as increasing your prison burden. You willingly offended and being distanced from them was the inevitable outcome if caught. But, in reality, you were already distanced from them. They are overseas. I do accept though that you worry about their position but that really can only be given quite modest weight here as I think is conceded by Mr Howard. There are many prisoners who no doubt worry as to their loved ones who are living on the outside of prison.
Rehabilitation
I turn now then to your prospects of rehabilitation. Your counsel was not suggesting that they were particularly rosy, he was not using any sort of extravagant language or adjectives. Nor should he have.
Your counsel submitted that the Court could only be guarded given this offending and your past offending, but he was urging me to find that you have some prospects of rehabilitation. I want to make it plain to you, as I hope I did in the course of the plea, that you do not fall to be sentenced a second time for any of that past offending. You were sentenced and served the sentences. It is just that I do have to make judgments as to your prospects of rehabilitation and risk of reoffence and the extent to which I must seek to deter you. Your criminal history is a bit of a worry in that respect even though it is not a lengthy one.
This was serious criminal conduct committed by a mature adult with a relevant prior criminal history. For the second time, you have committed a serious drug offence. You have pleaded guilty at an early opportunity; you are remorseful to a degree and you made very full admissions. Again, the interview assists you. It is clear to me from that interview that you were not some cunning or streetwise hardened criminal. That sort of person would have kept their mouth shut I suspect. That gives me cause to hope for some change in your life. You have been in custody; you will have to serve the sentence which I will shortly pronounce which will surely play some role in deterring you from offending in the future. In the past, you have had a relatively decent employment record which also gives me some cause for hope. You have been using your time wisely in custody. I am certainly not going to write you off and say that you have no prospects of rehabilitation. I do not believe that is the position. I believe you have some realistic prospects of rehabilitation and I take that into account in your favour.
General remarks
I make now some general remarks as to your offending. It was obviously serious offending. You know that. Your counsel described it as grave offending. He conceded that general deterrence and denunciation are important considerations. So too punishment and denunciation. Well, he is right. They are.
The cultivation of a commercial quantity of cannabis is punishable by a 25-year maximum term of imprisonment.
I must pay regard to the maximum penalty.
It is conceded that you played a crucial role. You nurtured, watered, fertilised, harvested and then dried the crops. You purchased materials, you paid bills. You lived on the premises and had a high level of autonomy ultimately presenting the dried cannabis to your superior. It was obviously a highly sophisticated set up and your motive was a financial one. You are not charged with installing the bypass or establishing the leases. In a way, it does not really matter what label is applied to describe you. You were not at the top of the tree, I make that plain. I do not treat you as a principal. Those at the top of the tree seldom actually sit in the dock of a court. But you were in it up to your neck, paying bills and obtaining equipment such as the fertiliser you spoke of in the interview. Though your counsel submitted at paragraph 13 that you were at a relatively low level, he elaborated in the course of his oral submissions and really, he was distinguishing you from Duy Phuong who had connection to multiple properties. You did not. In any event, Mr Howard described your culpability as high. He is right. It is. You were not some minor player with little stake in the success of this venture. You were doing all that was required to bring the cuttings all the way along to harvest and then presenting the dried product to a superior in exchange for a large enough sum of money. There really is no reduction of culpability in this case.
It is a between dates cultivation. It is a significant enough period where you have had many opportunities to reconsider your very poor choice. Sadly, you did not and you went on to continue this serious offending.
You are not able to point to some minimal or fleeting connection to the crop or to being some very poorly paid underling with no autonomy, taking all the risks and for little reward, as so often is the case in this domain.
You were plainly taking a calculated risk. You were “rolling the dice” again. I am sure you must have weighed up the risks versus the potential financial rewards. The lure of the reward won the day here. You obviously hoped you would not be caught, but there can be no doubt at all that you knew that this was a serious criminal event.
Monetary reward of some description is at the heart of virtually every cultivation. You told the police what you had received and what you expected to receive by way of payment. It is hard to know what to make of those figures. I really cannot know exactly what you hoped to gain financially but I am very confident it was a sizeable enough monetary reward on offer for you to take what you knew was a serious calculated risk.
I am not able to find any real or dire financial need here. Mr Howard concedes that point. Nor though, when I look at the case, is there any suggestion that you were flush with funds or living some extravagant lifestyle. You were living in this house and the photographs do not depict a particularly attractive venue to live in.
There is no reduction though in your culpability in this case and, as I say, your counsel concedes your culpability is high.
As I have said in countless other cases over the years, I say now in your case; this crop and its ultimate success has been interrupted by the execution of the warrant by the police on this day in question. It was obviously an elaborate, planned and organised criminal activity. There is nothing spontaneous in your major crime, being the commercial quantity cultivation. You must have known looking at what you were doing that you were caught up in a serious criminal enterprise.
Sentencing always involves the balancing of a number of purposes or principles. One of the purposes relates to your rehabilitation. I cannot ignore that. I do view those prospects in a guarded fashion, but I do take some solace or comfort from your attitude to the investigators and your very full admissions. So as you see, again, your cooperative attitude gives real benefits here, to you.
I must denounce your criminal conduct.
I am required also to punish you and do that justly and proportionately. Punishment is an important purpose in this sort of case.
I have to deter you, as well as others, from committing this sort of offence.
Now, specific deterrence, which is the term us lawyers refer to, is the need to deter the particular accused, well, that is important in this case for very obvious reasons. This is another instance of a serious drug offence committed by you. Being apprehended and sentenced to a sizable term of imprisonment in 2013 has not deterred you from committing this serious crime. From rolling the dice again. So I will try again to deter you. Community protection also has a role to play in all of this.
There is also a strong need to give weight to the principle of general deterrence. That principle relates to the need to deter other offenders and that is a significant purpose of sentencing in this sort of case as is correctly conceded by Mr Howard.
Those who choose to engage in this activity at whatever level are almost always taking a calculated risk, as you were. It is almost always taken on because of the hope of financial gain. Well, future potential offenders must understand that this is actually a serious crime and that though there is that potential for financial reward or gain, it actually comes with a very large risk. The risk is of detection, arrest, prosecution and then the likelihood of the imposition of a significant term of imprisonment.
This court must send that message and it must be sent loud and clear to others in the community who might be minded to commit this sort of serious and prevalent offence. There are plainly enough of those people out there, as is demonstrated by the sheer weight of numbers of people who are brought before this court on commercial quantity cultivations. It is obviously a prevalent offence.
Current sentencing practice
I must and I do take into account current sentencing practices. It is not a single, controlling factor but one of the matters a court must have regard to. I mentioned in the course of the discussion on the plea that I have looked at the Judicial College of Victoria Material and I have also consulted the Sentencing Snapshot No.247 of 2020. Well, they are statistics and the case is never going to be determined on statistics but those statistics disclose that in the period covered by the data, which is from 2014-15 to 2018-19, 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.
As I have said, I have also looked at the material held at the Judicial College of Victoria New Sentencing Manual which includes an overview of commercial cultivation sentences dealt with in the Court of Appeal. One must put aside any of those cases dealing with a large commercial quantity as that is a different offence with a higher maximum penalty in play.
There have been a large number of cases over the years querying the adequacy of sentencing practices in this area. The case of Nguyen[1] which has been cited by your counsel sets out a number of those cases at paragraphs [139] - [142]. That case spoke of the inadequacy of sentencing practices for this crime when committed at certain levels. The Court of Appeal was critical of the fact that the current sentencing practice had seemingly remained the same, notwithstanding the many occasions that it had actually been questioned in the Court of Appeal. Not just the same but they commented on the very narrow band of sentences with an obvious merging of more serious cases into the lowest band. That case contains many statements as to the seriousness of the crime of commercial quantity cultivation of cannabis and statements as to the weight to be given to punishment and general deterrence.
[1]Nguyen v The Queen [2016] VSCA 198
Now, that case was not focussing on low-level players and was more directed at what are described as medium-level cultivators. The Court of Appeal spoke of the compression of sentences that they said had taken place over the years and that fact was very much on display in that sentencing snapshot that I have just referred to where a crime punishable by a 25-year maximum period had only two offenders sentenced to greater than six years over the period covered by those statistics. The Court of Appeal spoke of the need for an increase in sentences at least in relation to mid-level players so that the range of sentences are uplifted and substantially expanded beyond that tight band. So there must then be some caution exhibited when looking at sentences that predate that decision. There must also be caution when looking at statistical material based on earlier sentences that predate that decision.
Your counsel concedes your high level of culpability here and the commission by you of an offence falling at what is described as the middle of the scale of objective seriousness; in other words, a mid-range offence.
The Court of Appeal has spoken often enough as to the danger of applying adjectives or labels to describe a person's role. Those sorts of things, they say, can actually obscure a person's conduct. What is more important is focussing on the actions and conduct, not the label that might be applied to describe it. As the Court of Appeal said in a different case of Nguyen, a decision dating from 2019:
'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'.[2]
[2]Nguyen v The Queen [2019] VSCA 134 at paragraph [59]
Well, you fulfilled a vital role and you were engaged at a level well above a run of the mill or mere crop sitter. That is conceded. But even if the label crop siter really could be massaged to fit your case (and I do not believe it can), what was it that you were doing in relation to this crop? That is the key question and the answer is everything. You were the sole cultivator. You were not the principal but you were doing everything in your powers to bring the plants to maturity, harvesting, drying and then intending to present the dried cannabis to your superior. You were doing what you were doing in the expectation of a sizeable enough financial gain. Of that, I have no doubt. So you had a stake in the success of the crop. You were not being paid some pitiful weekly sum. You were also insulating the principal from risk.
You comfortably fall above the very low-level players so often brought before this court and that is conceded. I am sure that is so but equally plainly, when I look at the actual crop that I am dealing with and your role, your case is not in the worst or very worst category, assuming one can use such terms following the High Court decision in Kilic[3].
[3]Kilic v The Queen [2015] VSCA 331
I have mentioned the sentencing statistics and also looking at other cases within the Judicial College of Victoria Manual. Well, as I have indicated, statistics have inherent limitations. They are just numbers. They will never tell me any of the real story as to why a sentence was imposed. When a sentence is imposed, a court is required to take into account a whole range of matters, both of aggravation and mitigation. The sorts of things that I am dealing with in my remarks to you now. Well, those matters very much shape the sentence and the statistics never disclose them. I am not going to sentence you according to what has been the most common or average previous sentencing outcome as disclosed in the data. They are just statistical terms.
Every crime is different and so too is every offender. The sentence is not arrived at by applying a label to describe the offender, be it “crop sitter” or “owner” or “principal”. What I have got to do is sentence you for your crime and so I must examine what you actually did.
Other cases, even though they disclose the sentences imposed upon other offenders, are not precedents for me to follow unless they can be distinguished.
It should not be forgotten that there is also no such thing as one correct sentence.
I mentioned in the course of discussions with counsel another decision of Nguyen[4], from 2019, where sentences of three years and eight months were confirmed in the Court of Appeal in that decision and where there were statements from that Bench of the Court of Appeal (JJA Priest and Beach) stating that sentences in that region are entirely unexceptional, even for crop sitters (see paragraph [65]).
[4]Nguyen v The Queen [2019] VSCA 134
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 the court. It does, in fact, loom large in this, my sentencing exercise, as is readily conceded by your counsel.
It is no part of my task to be making judgments as to the relative harmfulness of the given drugs covered by the Drugs Poisons and Controlled Substances Act. This is a quantitative-based regime. Commercial quantity for cannabis is 25 kilograms or above, or 100 plants or above. As I have said, you had just over 124 kilograms of cannabis with 130 plants. That is of course just what you were found with on the day of the execution of the warrant. You had admitted previous harvests and around 9 kilograms of dried cannabis previously supplied to Ba. But even looking at what you were found with, you were way over the commercial quantity by weight (close to five times) and comfortably over by plant number. You did not just scrape in over the commercial quantity threshold on either measure. Quantity is always going to be a significant enough matter in this sort of case.
This was serious criminal offending.
The proceeds of crime offence, I have scarcely described. It does not fall anywhere near the same level of seriousness. Nor the possession of drugs. The ammunition charge is, as I have said, really the least of your worries. It is punishable only by a fine.
Totality
I have given consideration then to the overall effect of the sentences to be imposed by me. I have engaged in a last look at the overall effect of 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. Your criminality was high here, as is conceded. I must send you to prison and there is simply no debate about that.
Ancillary Orders - Disposal and Forfeiture
There are a couple of ancillary orders sought in this case. There is no issue taken with the making of them. They are both consented to.
The first of those is a disposal order sought pursuant to the provisions of s.78 of the Confiscations Act. I am satisfied the criteria for the making of that order is made out. I am satisfied it is appropriate pursuant to those provisions to forfeit to the State the property referred to in the schedule. It is to be held and dealt with in a manner contemplated by that signed order.
Secondly, there is a forfeiture order under the provisions of s.34(1) of the Confiscations Act pertaining to the cash that was seized. Again, there is consent to the making of that order and it is appropriate to make it. I am satisfied the criteria is made out and I order that that property referred to in the schedule be forfeited to the Minister.
I have announced each of those orders in very much an abbreviated fashion. There is consent to each of them being made.
Sentence
I will have you remain seated then.
On Charge 1, which is the charge of cultivation of a commercial quantity of cannabis, you are convicted and sentenced to four years' imprisonment. That is the base sentence.
On Charge 2, knowingly dealing with the proceeds of crime, I convict and sentence you to one month's imprisonment.
On Charge 3, that is the possession of the two drugs of dependence, the heroin and the ecstasy, I convict and sentence you to seven days' imprisonment.
On the related summary offence, the ammunition offence, you are convicted and fined the sum of $400.
Cumulation
The base sentence then is the four years imposed on the cultivation of a commercial quantity of cannabis charge. In the circumstances, I have decided that the other sentences will run concurrently with the base sentence and upon each other.
Total effective sentence
It follows then that the total effective sentence is therefore the four-year term imposed on Charge 1.
Non-parole period
I am required as a matter of law to fix a non-parole period when passing a sentence of that dimension. I must not speculate as to whether you will be released on parole. The Adult Parole Board are in control of that decision and it has got nothing to do with me. Indeed, I am prohibited from even considering that matter.
I fix a period of 2 ½ years during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
You have spent already 266 days on remand by way of pre-sentence detention. I declare that period of 266 days as having been served pursuant to this sentence.
Section 6AAA
I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these various offences by a jury, I would have sentenced you to be imprisoned for 5 ½ years. I would have fixed a non-parole period in that setting of four years.
Now, let me just see if there is any other matter that I need to deal with. Any other matters from your perspective, Mr Porceddu?
MR PORCEDDU: No, Your Honour.
HIS HONOUR: Mr Howard, from yours?
MR HOWARD: No, Your Honour.
HIS HONOUR: Now, I am assuming you will be making some arrangement to speak with your client about this sentence and his rights in relation to it?
MR HOWARD: Yes. That is right, Your Honour.
HIS HONOUR: I am happy to give you a little bit of time at the end of this process but that is not a private conversation of course.
MR HOWARD: Not at all. That is understood, Your Honour.
HIS HONOUR: Are you wanting me to give you that opportunity to at least speak to him to tee up the next sort of event or not?
MR HOWARD: Well, perhaps my client can hear me right now and I will arrange for a video link later today.
HIS HONOUR: All right. It will be today. You will arrange it today or - - -
MR HOWARD: I will arrange it today.
HIS HONOUR: To try and do it today or to - - -
MR HOWARD: It will probably be tomorrow.
HIS HONOUR: All right.
MR HOWARD: Yes.
HIS HONOUR: Well, look, you have heard that then, Mr Nguyen. I hope you understand the actual form of the sentence. It can be a bit confusing; I am sure of that. But I have sentenced you to a four-year term of imprisonment. I have fixed a
non-parole period of two and a half years and you have already served the first 266 days of that because you get credit for that and, as I have said, if you had pleaded not guilty and been found guilty, you would have obviously done far worse than that.
But Mr Howard is going to be in contact with you. He will be teeing up a video link to speak to you to discuss what has occurred here today and your rights in relation to that. Do you understand?
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right. Very well. So he will be in touch with you and that will be in the near future and you will be able to have a chat to him about what has taken place and your rights in relation to the sentence that I have passed but otherwise I think that completes the matter then. So there are no other matters from you, Mr Howard?
MR HOWARD: No, Your Honour.
HIS HONOUR: There is no need for me to make any sort of custody management directions? I mean he has been there.
MR HOWARD: No, Your Honour.
HIS HONOUR: Yes. Well, look, thank you each of you for your assistance and Mr Howard will be in touch with you, Mr Nguyen. So I will disconnect the link then at this stage. Thank you.
All right.
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