Director of Public Prosecutions v Nguyen

[2020] VCC 1955

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01259

DIRECTOR OF PUBLIC PROSECUTIONS

v

THUY TU UYEN NGUYEN

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2020
DATE OF SENTENCE:	3 December 2020
CASE MAY BE CITED AS:	DPP v NGUYEN
MEDIUM NEUTRAL CITATION:	[2020] VCC 1955

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Cultivation of a narcotic plant – Commercial quantity – Cannabis –Crop sitter - 209 cannabis plants – Came to Australia on a Student Visa – Lowest in the chain – Imprisonment

Legislation Cited: s.72A Drugs, Poisons and Controlled Substances Act 1981

Cases Cited:Nguyen v The Queen [2019] VSCA 134 -R v D’Aloia [2006] VSCA 237 - Guden v The Queen [2010] VSCA 196 - R v Pidoto [2006] VSCA 185 - The Queen v McLeish (1982) 30 SASR 486

Sentence:Total effective sentence of 2 years and 6 months imprisonment with a minimum of 20 months imprisonment before being eligible for parole. Pre-sentence detention declared of 177 days.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. McGarvie	Office of Public Prosecutions
For the Accused	Ms A. Liang	Giorgianni & Liang Lawyers

HIS HONOUR:

1Thuy Tu Uyen Nguyen, who is 24, being born on 24 January 1996 in Vietnam and who arrived in Australia pursuant to a student visa in 2015, pleaded guilty before this Court, by way of WebEx proceedings on Friday 13 November 2020.

2On that day, Ms McGarvie appeared for the Director, as she does today, and the Ms Nguyen was represented by Ms Liang, who also appears today.  By way of occupation, the prisoner was a student.  She came by way of her student visa to study a cooking course initially, and then a business course conducted by an organisation called CIC Education.  I am not too sure of what that does, but I am well aware that it is quite active in providing education to persons who come to Australia by way of student visa and/or come to Australia in order to seek permanent residence. 

3On 13 November 2020, Ms Nguyen pleaded guilty to the one charge on the indictment, being indictment number L11375791. The indictment is a charge pursuant to s.72A of the Drugs, Poisons and Controlled Substances Act, a charge of cultivate a commercial quantity of narcotic plant, in this instance, being cannabis, at Cobblebank, which is a suburb near Melton, on 10 March of this year.  The seriousness of this charge is demonstrated from the maximum sentence determined by Parliament of 25 years imprisonment. It is also a defined Category 2 offence and pursuant to the provisions of s.5(2H), must be met with a sentence of gaol.  There is no suggestion or application to vary that circumstance by way of a submission to establish exceptional circumstances under that section. 

4Insofar as the particular offending, this was detected by a real estate agent undertaking annual checks of the property where the cultivation was taking place, on behalf of the owner.  Found at that premises by the agent was subsequently counted as 209 cannabis plants and 80.57 kilograms respectively insofar as the designation of a commercial quantity, pursuant to Schedule 11 Part 2 of the Act, double the plant volume and three and a half times the quantity by way of weight. 

5The period over which Ms Nguyen is charged is 16 days, from 25 February 2020 to 10 March 2020 and she is charged by way of agreement as a crop sitter.  The particular circumstances as to what Ms Nguyen did is like many of these cases very vague.  In this instance, we are lucky enough to be able to have the benefit of CCTV footage from a premise across the road, of the premises where this cultivation was taking place.

6Those photographs are set out in the depositions at pg. 109 to 117 and therefore provide the basis for demonstrating the period in which Ms Nguyen crop sat this commercial quantity.  The words I am about to say have no relationship to this sentence.  They also take into account, to paraphrase Gilbert and Sullivan, that a policeman's life is not a happy lot. I do not necessarily mean this as criticism, however, the investigators, and indeed the Director, have an obligation to provide the Courts with appropriate information, especially when sentencing on matters of this seriousness.

7It is of concern to this Court, and I have mentioned it on a number of occasions, recently in sentencing in these matters and I ask Ms McGarvie to ensure that the Director is made aware again of my comments, that the investigating police and therefore the Director, are handing up circumstances or facts about offences of this seriousness, with which the Parliament has prescribed a maximum penalty of 25 years gaol, which is the highest penalty, but for a life sentence in the criminal structure of this state, where there has been a failure of full investigation.  What appears in this case is that having been detected by the estate agent on her annual check, the police simply went to the premises.  There was no further investigation, stakeout or any steps taken to try to ascertain, not only Ms Nguyen’s full role, if there was any further role from being a crop sitter of the accused, or the role of any other people.  As I say, fortunately, we had a neighbour who was able, by way of the CCTV footage, to prove that Ms Nguyen had at least for a period of sixteen days been in attendance at the premises.

8Why I make these comments as to the lack of investigation and indeed, the term used of the unreality of these crimes being presented to this Court, which is then required to pronounce sentence.  These matters were spoken about in Nguyen v The Queen [2019] VSCA 134, [46], where the Court of Appeal spoke of the comments made by Judge Tinney, the sentencing Judge in that case. As I say, all of those matters have no relationship to Ms Nguyen. I accept the agreement made, leading to this plea, that Ms Nguyen is to be sentenced as a crop sitter.

9As detailed today, the pre-sentence detention served to date is 177 days.  As the learned prosecutor said, there is a requirement for a declaration under s.6AAA and the disposal order has been signed by me.  The record of interview was entered into with no interpreter.  There were no further details really obtained.  There were no follow ups of the cars or persons seen on the CCTV footage.  The matter resolved on 12 October 2020 and clearly, it is to be noted that that is a particular early time, given the offending took place in March 2020, it is now before the Court for sentencing, and that is taken into account in the prisoner's favour.

10Insofar as the prosecution opening Exhibit A is concerned Ms Liang, on behalf of Ms Ngyuen, accepted that they are the facts upon which I am to sentence her client. The prosecution further tendered Exhibit B, being submissions as to sentence and submitted to the Court as detailed in [10] of such document, that a sentence should involve an immediate term of imprisonment, with a parole period.

11In the plea, Ms Liang tendered Exhibit 1 and spoke to the material set out in those submissions.  The student visa that I have referred to has now expired.  As I have earlier said, Ms Nguyen is now aged 24.  She was here and studying since 2015.  It appears that perhaps the background to this criminality is the impact of the COVID-19 situation in this state and indeed, in the world.

12It would appear that the part time job that Ms Nguyen had ended and further, her financial situation was impacted by distress at home in particular, father’s illness.  That meant Ms Nguyen had no income coming from home.  She has not been able to get work and it would appear therefore that the economic benefits of being involved in criminality of this sort was why she agreed to commit this criminality that has been demonstrated before the Court.  It was submitted by Ms Liang that I should take the view that this is low to mid-range offending, by a person who is young, vulnerable and with no priors.  The prosecutor submitted I should take the view it was mid-range offending. 

13Insofar as an assessment of this offending is concerned the Court of Appeal in Quy Nguyen v R [2017] VSCA 127, [32] to [33] said:

'It was also open to the judge to form the view that the maximum penalty of 25 years imprisonment stipulated for the cultivation offence was informed by the need for general deterrence and that the prevalence of the form of offending involved in this case gave rise to greater sensitivity in this regard'.

14At [34]:

'In particular, this was so because of the prevalent use of young persons with vulnerable immigration status to undertake the role of crop sitter or minder'.

15It is also appropriate to mention [35] through to [36], where the following was said at [35]:

'The consequential buffering from detection of the organisers or principals of the scheme was also correctly identified by the sentencing judge as an additional factor bearing on the importance of general deterrence'.

16And at [36]:

'It follows that the characterisation of the appellant's role as that of a crop sitter does not of itself displace the need to look at the circumstances of the offending as a whole and to weigh competing sentencing considerations in determining an appropriate outcome'.

17While I accept that Ms Nguyen’s role, was a lower role any role in this serious offending requires appropriate sentencing.  Ms Liang also submitted that her client, given the background, was a good candidate by way of rehabilitation.  I do not know whether I can come to that conclusion, all I know is she has no priors.  One would hope, with the experience that Ms Nguyen is now getting by way of remand and subsequent sentence, that she will be not stupid enough, for economic gain, to commit criminality again.  One would hope that she will rehabilitate herself.

18It was submitted that this is the first time Ms Nguyen was in custody.  Obviously, given her background, she has limitations by way of support from the family and in particular, with the current crisis, visitors are restricted to her.  I take into account all of the principles set out in the Court of Appeal recently and various bail applications, as to persons on remand such as Ms Nguyen, as to the risk of COVID-19, the loss of opportunity to undertake various programs and the loss of the ability to have visitors and indeed, as I understand also, the universal half day lockdown that is affected.

19The principles of Guden v The Queen [2010] VSCA 196, [25] seem also applicable. Given the sentence that will be pronounced here, and given what I understand to be the intransigent view of the Immigration Minister, it is almost certain that, as a result of this sentence, Ms Nguyen will be deported back to Vietnam. Such no doubt will make the time that she serves even more difficult and distressing and of course, reflect upon the sacrifices made by her own family to get her to Australia and to have her undertake studies, which all is now lost. I also accept that this makes the time that she will be in custody more onerous. Exhibit 2 tendered by Ms Liang were a series of cases and analysis of those. I accept those as appropriate guideposts. However, as the High Court has said in Dalgliesh (2017) 91 ALJR 1063, 1075, each sentence must be an individualised sentence, based upon the facts of each particular case.  I note of course the certificates tendered insofar as the courses that she has undertaken, being Exhibit 3.

20Insofar as sentencing for these crimes, I want to go through a number of factors which are appropriate.  The particular authorities begin with R v Pidoto and O'Dea [2006] VSCA 185, [34], where four of the Appeal Justices in their joint judgment noted that the structure that Parliament has adopted, was a hierarchy of seriousness defined by, and only by, the quantity of the drug of dependence that has been trafficked. Clearly, what I am about to say relates generally, and one can substitute for the word 'traffic' the word 'cultivated'.

21Of course, the particular circumstances of Pidoto were different.  As I have said, we are dealing here with a cultivation case, not trafficking.  But the principles are still the same.  At [62] in Pidoto, the Court of Appeal indicated the ultimate question for a sentencing Court, given such structure is:

'It is not whether (in that case) trafficking of one drug is to be viewed more seriously than traffic of another.  But what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed in dealing with the material involved'.

22Coming then to R v D'Aloia [2006] VSCA 237, [56] where Nettle AJ, as he then was, set out the general approach for sentencing Judges in these types of cases. I make the point again that in that case, he was dealing with MDMA. He said as follows:

'As far as the effects of MDMA are concerned, the matter maybe approached on the basis that all of the drugs which are prescribed, have deleterious consequences of antisocial proportions and that trafficking (and again I substitute cultivation), in any of them, is therefore appropriate to be regarded as a serious criminal offence'.

23As discussed during the plea, with Ms Nguyen's counsel, albeit she was easy prey, and her role is as agreed a crop sitter, the fact is that anyone, as I have already said, who performs any role in these crimes, must suffer appropriate punishment.  This was pointed out in R v McLeish (1982) 30 SASR 486, [492], where the Court spoke of the failure of Courts generally, and the authorities, to find the top persons in these criminal endeavours and therefore, as to how one should sentence recruits such as Ms Nguyen in these crimes.

24I accept, as I have already said, that we are dealing with a crop sitter and therefore, a minion in the organisation.  However, the Court in McLeish said as follows:

'It seems to me to follow, that after making all dual allowance for the personal circumstances, and antecedents of a prisoner, the facts of the particular case and the need to show mercy as is compatible with the safety of the public, a Court should impose such a sentence, as will spell out clearly to those minded to establish or continue an unlawful organisation for providing drugs, as well as potential recruits, the simple truth that a person who participates in such an organisation, at any level, and I stress at any level, must expect, and will receive, a heavy penalty'.

25Now as I have discussed, given the number and weight of the drug here, the sentence is subject to a recent decision made by the Court of Appeal in Nguyen & Pham v The Queen [2018] VSCA 322, where the prisoner had 182 plants, I in fact was the sentencing judge and imposed gaol of six years, which was reduced to three years and nine months. The person in that case was a crop sitter and obviously there are parallels to this case.

26In that case, the Court of Appeal referred to McClelland v R [2017] VSCA 124, which involved some 73 plants, where the original sentence imposed was five years, with a minimum of three and on appeal, the sentence substituted by the Court of Appeal was three years and nine months, with a minimum of two years and five months. Hence, despite my personal inclination, given the seriousness of these crimes, that the sentencing should be higher.

27This Court obviously has to follow the directions and indications given by the Court of Appeal and in those circumstances, I sentence Ms Nguyen accordingly.  As I said Ms Nguyen, given the circumstances that we are in, it is not appropriate for me to ask you to stand.  You just remain seated where you are.

28For this offence, you will be sentenced to a period of imprisonment of 30 months and I order that the period that you must serve prior to being eligible for parole is 20 months. 

29I declare, pursuant to s.18, that the pre-sentence detention that you have served by way of remand is 177 days and that such period be deemed service of this sentence, and that this declaration be recorded in the records of this Court. 

30As I have indicated, I have already signed the disposal order. 

31As requested by the prosecutor, pursuant to the provisions of s.6AAA, the Parliament requires me to tell you the benefit that you have obtained by pleading guilty in this matter.  It is a very difficult requirement for a Judge to comply with because the Parliament requires me to look at only one factor, that is the plea of guilty.

32However, doing as best I can, despite the number of matters that I have mentioned in this case, can I say that had you not pleaded guilty, the sentence that you would have got would not have been 30 months, with the minimum of 20 months to serve before being eligible for parole, but a sentence of 40 months, with a period of 30 months being the period that you would have had to serve before being eligible for parole.  Hence an indication of the benefit to you, of your plea in this matter.

33Yes, I wish you well when you return to Vietnam, which I am sure you will, as best I can perceive it.  Does either counsel want to clarify any matter or do I need to refer to any other matters that are of concern to counsel in any way?

34MS McGARVIE:  No, Your Honour.

35MS LIANG:  No, Your Honour.

36HIS HONOUR:  Thank you.  I thank both counsel for their assistance and cooperation.  Yes, thank you Madam Interpreter.

37MS McGARVIE:  Your Honour pleases.

38HIS HONOUR:  Ms Liang, do you want to take the benefit of being in the lobby at the moment?

39MS LIANG:  Yes, Your Honour, if I could have an opportunity to speak to Ms Nguyen?

40HIS HONOUR:  Yes, thank you.  Well I think, as I best understand it from my associate, what we do is adjourn the Court.  You then have the benefit of talking, as you now have the benefit to your client, through the interpreter and as best I understand it, there is no recording of those discussions. 

41MS LIANG:  As the Court pleases.

42HIS HONOUR:  As I say, as best I understand it.  Yes.

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