Director of Public Prosecutions v Nguyen

[2020] VCC 1767

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-01026

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHUNG NGUYEN

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2020
DATE OF SENTENCE:	6 November 2020
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2020] VCC 1767

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW – Sentence
Catchwords:  Cultivate narcotic plant – commercial quantity - deportation
Legislation Cited:  Sentencing Act 1991; s. 3(1), s. 5(2H)

Cases Cited:DPP v Nguyen [2010] VSCA 11, DPP v Duong [2010] VSCA 250, Tuan Doan v The Queen [2010] VSCA 250, Huey Tran Dang [2020] VSCA 24, Nguyen v The Queen [2017] VSCA 286

Sentence:Total effective sentence of two years and three months’ imprisonment with a non-parole period of 15 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Director of Public Prosecutions
For the Accused	Mr C. Marshall	C Marshall & Associates

HIS HONOUR:

1Phung Van Nguyen, on 5 November 2020 at the County Court in Melbourne you pleaded guilty to a single charge on the indictment No. L11080695:

Charge 1, cultivation of a narcotic plant which was cannabis in not less than a commercial quantity.  This charge has a maximum penalty of 25 years' imprisonment. 

2Your plea hearing was conducted with your consent via video link from Marngoneet Prison to the County Court in Melbourne.  Your counsel and the prosecutor appeared remotely by the Webex platform which is used in courts during the COVID-19 restrictions imposed by the Victorian Government.  You required the assistance of an interpreter, Ms Nguyen, during the course of this plea hearing.

3You have been in custody for a total of 185 days pre-sentence detention, not including this day, the day of your plea hearing. 

4You are a Vietnamese national.  You came to Australia on a student visa on 23 May 2013.  Your visa was cancelled on 14 November 2016.  You have been unlawfully in Australia since November 2016.

Circumstances of your offending

5The prosecution tendered an Amended Prosecution Summary of Offending which was Exhibit “A”.  On 5 May 2020, you opened the door to the police at a premise located on Edgar Street in Portland.  The police executed a search warrant at the premises.  During the police search, the following items were located in the house:   

·A mobile phone;

·your wallet which contained $360;

·54 cannabis plants which were growing in the second bedroom under hydroponic set-up weighing a total of 104.5 grams;

·four cannabis plants and leafy stems located in the fourth bedroom, weighing a total of 3.3 grams and a key to the rear shed.

6In the rear shed, which measured 18 x 13 metres, there had been an internal structure constructed of timber and lined plaster boards.  There were four separate sections in the shed that had internal walls.  Each room had a hydroponic set up that had with it lamps, water and chemicals to assist with the cultivation of narcotic plants. 

7The police located in that shed the following items: 

·17 plants weighing a total of 142.7 grams;

·66 cannabis plants weighing a total of 1.24 kilograms;

·36 cannabis plants weighing a total of 1.93 kilograms;

·24 plants weighing a total of 22.36 kilograms;

·13 cannabis plants weighing a total of 24.28 kilograms;

·24 cannabis plants weighing a total of 33.8 kilograms;

·24 plants weighing a total of 33.92 kilograms;

·one bag of dry leaf weighing a total of 107.2 grams;

·seven large black plastic bags containing cannabis leaf mixed with an unidentified material weighing a total of 36.18 kilograms; and

·a tub containing cannabis weighing a total of 1.67 kilograms. 

8There were 160 electrical transformers which were referred to as ballast, and there were four timer units.  There was a total of 228 cannabis plants together with cannabis leaf mixture and cannabis in a tub located with a total weight of 172.85 kilograms.  The commercial quantity for cannabis is 25 kilograms or 100 plants. 

9In this case, that means that the total of the cannabis is 2.25 times the commercial quantity by plant number or nearly seven times the commercial quantity by weight.  Those matters form the basis for the cultivation of narcotic plant not less than a commercial quantity.

10A further search of the house found that the three-phase electrical supply had been rewired and by-passed the metre box of the house.   The prosecution in this case accept that you were not involved in the installation of the bypass.

11On the same day, Powercorp were called to attend the premises and they cut off the power supply. 

12You were then conveyed to the Portland Police Station where you were interviewed by the police with the assistance of a telephone interpreter service and during the interview, you made the following admissions:

·You stated that you had been at the house for the past two weeks;

·you said you were at the address because someone had asked you to house-sit;

·you do not know who asked you to house-sit;

·you were paid to look after the cannabis plants and knew what cannabis was;

·you had watered and added chemicals for the purposes of looking after the cannabis plants;

·you had been paid $3,000 in cash to look after the plants for the two weeks;  

·the money that was located on you, which was the $360 in your wallet, was not part of that $3000;

·you thought that there were approximately about 150 plants at the address; and

·you were not licenced or authorised to cultivate cannabis and that you did not reveal who the person was that asked you to house-sit.

13Your phone was analysed, and the location service showed that you had made ten trips to Edgar Street in Portland between 21 March and 30 April 2020. 

14The prosecution case as outlined in the prosecution opening for plea dated
15 October 2020, is that you were a crop-sitter for a period of nearly two weeks and by your own admission and were paid $3,000 for that two week period.  The prosecution does not allege you had anything to do with the electrical bypass or the setting up of the cannabis crop growing system at the premises. 

Personal Circumstances

15At the time of the offence you were 28 years old, you are now 29.  You have no prior criminal history.  You are a Vietnamese citizen.  You are the eldest child of four siblings.  Your father was a fisherman but has passed away.  Your family background is one of modest means in rural Vietnam.  You completed high school education in Vietnam.  You then studied Law in Vietnam at a tertiary level for two years. 

16In 2013, you borrowed money to pay for your passage to Australia on a student visa.  Your intention was to study a business management course in Queensland.  You did seasonal work in Bundaberg to support yourself financially.  You never even commenced the planned business management course. 

17You then moved to Victoria to continue the seasonal work of picking cherries and tomatoes in the Leongatha area.  Later you worked for a two year period in Derrimut for a timber flooring company.  You lost that job due to the COVID-19 outbreak and the downturn in business for that company. 

18Since your time in Queensland you have been in a relationship with a Vietnamese national who is also in Australia on a student visa.  Together you have a two year old son who was born here in Australia.  At the time of the offending you were supporting the family financially.  You are not entitled to social security payments because of your lack of residency status and in fact, you are an illegal person living in Australia. 

19You have limited English language skills and will be deported to Vietnam at the completion of your sentence.  It was submitted your partner's plan is to remain here in Australia with your son for the long term. 

Sentencing Considerations 

20The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, your rehabilitation, denunciation of your actions and the protection of the community.  I have to have regard to the seriousness of the offence, your culpability for it, and your personal circumstances.

21I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible as an offender such as yourself is rehabilitated and reintegrated into society either here or elsewhere, in your case, in Vietnam.

22You have no prior convictions here in Australia and as far as I know, nothing contrary to your prior good character in Vietnam.  This is your first period of incarceration.  You have been in custody for a total of 185 days which is the pre-sentence detention in this case.  I take into account your plea of guilty to this offence.  Your plea of guilty is at an early stage.  In the sentencing process, you are entitled to the full benefit of an early plea of guilty. 

23Your plea of guilty to this charge has utilitarian value to the community.  Your plea of guilty has saved the community the expense of court proceedings, including a trial.  Your plea has given a certainty of outcome for this case and your plea of guilty is evidence of your remorse.  I accept that you are remorseful for your offending. 

24Your plea also demonstrates you are willing to facilitate the course of justice in this community and it clearly indicates that you accept your responsibility for your criminal conduct.  As part of the governing principles to be considered in sentencing you I must take into account the current sentencing practices. That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases. 

25I am mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.

26The offence of cultivating a narcotic plant in not less than a commercial quantity is a category two offence under s.3(1) of the Sentencing Act 1991.  The Act stipulates that pursuant to s.5(2H) that a court must make an order for a term of imprisonment unless the prisoner, that is you, can establish that a special reason set out in s.5(2H)(a), (b), (c), (d) or (e) applies in this case.

27Appropriately your counsel, Mr Marshall, concedes that no special reason applies in your case.  The only appropriate sentence in this case is a term of imprisonment.  On the issue of current sentencing practices the prosecutor submitted that the only appropriate sentence is a term of imprisonment.

28Your counsel, Mr Marshall, helpfully provided a table setting out a number of other County Court sentencing results for similar offending to your own.  Of course the amounts of the cannabis both by plant number and weight vary from your own offending.

29The personal circumstances of the other offenders are not set out in that table but they all appear to have Vietnamese names.  I just make that as a comment. 

30The objective seriousness of your offending is indicated by the following factors:

(a) you are to be sentenced for the period of two weeks cultivation between
21 April 2020 and 5 May 2020;

(b) you were paid $3000 for your involvement in the cultivation of the cannabis crop for that period;

(c) the crop found at the premises on the day of your arrest was a substantial crop.  As I have said before, it was two and a quarter times the commercial quantity by plant number or nearly seven times the commercial quantity by weight;

(d) you thought there were 150 plants at the premises, so you knew this was a substantial cannabis crop.  That goes to your culpability;

(e) the set up in the rear shed at the premises was sophisticated and substantial with lamps, hydroponic irrigation, transformers, chemicals and internal walls to make separate sections for the cannabis crop;

(f) the prosecution does not allege that you set up the shed or bypassed the electricity;

(g) whilst you made admissions to police about your role and involvement in the cannabis crop you did not reveal the identity of the person who asked you to sit the crop.  That perhaps is not surprising.

31I assess your role as that of a crop sitter.  You were alone at the property when the police raid took place on 5 May 2020.  You had been involved with the crop for two weeks and received a $3000 payment for your role.  The crop was a substantial crop in size and sophistication.

32The criminal enterprise of growing a cannabis crop cannot take place without your involvement and the trust placed in you by those who conduct the criminal enterprise itself. 

33The Court of Appeal in Victoria has made a number of pronouncements on the seriousness of the charge of cultivating a commercial quantity of Cannabis L.

34President Maxwell in the Court of Appeal in the case of DPP v Nguyen [2010] VSCA 11 said about the seriousness of the offences as follows, and I quote:

'As has been readily pointed out in sentencing decision this is an offence for which Parliament has set the highest maximum penalty in the criminal calendar, 25 years' imprisonment.'

35In a later case of DPP v Duong, which is also reported in 2010, 250, Buchanan, Justice of Appeal, stated as follows:

'The maximum penalty of 25 years shows unambiguously how seriously the community through Parliament view this conduct'.

36The case of Duong was followed by a case of R v Tuan Doan, where Justice of Appeal Forrest stated as follows:

'The offence of cultivating a commercial quantity of cannabis is serious offence carrying a maximum of 25 years' imprisonment.  Whilst there is no doubt that the role played by the appellant was of a menial nature it was nonetheless necessary for the crop to flourish.  The maximum penalty fixed by Parliament unambiguously demonstrates how seriously the community views this conduct.'

37Justice of Appeal Forrest then referred to the case of Duong and said as follows:

'Recently in this court emphasis has been placed upon the importance attached to sentencing judges having to have regard to the maximum sentences fixed by Parliament.  This court has also emphasised recently that general deterrence is an important consideration in this type of offence and that the link between general deterrence and the increased prevalence of the offence is readily apparent.'

38In that same case Justice of Appeal Nettle as he then was and is now just about to retire from the High Court stated as follows:

'I wish only to add a brief observation concerning the submissions advanced on behalf of the appellant that the judge had erred in the emphasis which His Honour placed on the importance of general deterrence.  In my view, less there be any doubt about it, there should be no doubt that in cases involving the cultivation of narcotic plants in not less than a commercial quantity general deterrence is at the forefront of the sentencing considerations.  Consequently as the judge rightly observed in cases of this kind there is less room to give weight to the considerations such as youth and the antecedence which would otherwise be the case.  In the result the judge also correctly found that in the case of this kind that an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.'

39Your counsel in his submissions referred to the case of Huey Tran Dang which is reported at 2020 VSCA 24.  In that case the Court of Appeal at paragraph 15 stated as follows:

'In drug offences generally including the cultivation of cannabis the quantity of the drugs and the role of the offender are important indicia of the gravity of the offending.  The quantity of drugs is reflected in the statutory scheme and will also reflect the dimensions of the enterprise and in a general sense the scale of profit that the enterprise may be expected to generate.'

40In the same case a court decided with approval the pronouncements made by the Court of Appeal in Nguyen v R which is reported at 2017 VSCA 286 at paragraph 27 the court said as follows:

'It is important that any label that is attached to the offender's role should not obscure or distract attention from the various factors that are relevant to a proper assessment of the gravity of the offending in a particular case.  Those factors ordinarily include matters such as the task performed by the offender in the enterprise, the nature of his relationship with the principals or leaders of the enterprise, the degree of trust and responsibility that are reposed in the offender, the size, scope and sophistication of the enterprise and any expectation of the offender in respect of rewards to be derived from the enterprise.'

41All of that is relevant in your case.  This case was referred to as Nguyen 2017 by the Court of Appeal.  In Dang's case the Court of Appeal went on to outline that the fact that a person is a crop sitter does not mean there is a benchmark or tariff that is to be applied in the formulation of a sentence.

42The focus when sentencing an offender such as yourself must remain on what the offender has done in relation to the cultivation that forms the subject matter of the charge rather than the label to be applied to it.

43I assess your prospects of rehabilitation as being good.  You are clever and have the advantage of tertiary education in Vietnam.  You have a supportive family as I understand it who will assist you to resume your normal life upon your return to Vietnam.

44My assessment of your rehabilitation prospects is further supported by your plea of guilty here today and your lack of any prior criminal history.  I also accept that your plea of guilty in circumstances of the COVID-19 pandemic has a substantial utilitarian value. I note that the practical management of a jury trial has yet to be resolved in this state.  You have not sought to delay the finalisation of this prosecution by conducting a trial on an unknown date in the future.

45In addition, it is relevant to take into account the impact of the lockdown restrictions that have been imposed as a result of COVID-19 pandemic and that will be applicable to you and indeed upon all prisoners in the State of Victoria or an uncertain time in the future. As a result of those restrictions you will not have the opportunity for contact visits from your partner or your son.  There is a risk of you having to spend more time in your cell than otherwise would be ordinarily the case.

46Your placement and the COVID-19 restrictions also means that you have limited opportunity to participate in courses during your time in prison which will limit your rehabilitation in the early stages of your sentence.  You will also no doubt be suffering some anxiety due to the COVID-19 risk to yourself personally as you have no control over the risk of methods controlling the risk whilst you are in custody.

47All of those circumstances will mean that your time in custody will be and continue to be more onerous than otherwise would be the case for a prisoner in normal times.  I accept that your time in custody will be accompanied by a degree of hardship due to the isolation from your family in Vietnam.

48As I understand it you have had no contact with your family since your incarceration although you have tried to have some, and I take this element of hardship into account when fixing the appropriate sentence. 

49I also take into account the fact that most likely you will be deported once you have completed your sentence.

50The uncertainty of your future is a further matter that will make your time in custody more onerous.  The principles of sentencing of general deterrence predominantly and specific deterrence, denunciation of your actions and the protection of the community are the most important considerations in your case.

51A term of imprisonment is the only appropriate and just sentence.

52In respect of Charge 1, I sentence you as follows:  you are convicted and sentenced to two years and three months' imprisonment.  I fix a non-parole period of 15 months' imprisonment.

53Pursuant to s.6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to three and a half years' imprisonment with a two and a half year non-parole period.  I declare that you have served 185 days pre-sentence detention not including today and I will sign the disposal order which was sought by the prosecution today.

54Is there anything further, Mr Prosecutor?

55MR ROPER:  No, Your Honour.

56HIS HONOUR:  Is there anything further, Mr Marshall?

57MR MARSHALL:  No, Your Honour.

58HIS HONOUR:  Thank you.  In summary, Mr Nguyen, you have been sentenced to two years and three months' imprisonment with a minimum term of
15 months' imprisonment.  Thank you.  Madam Interpreter, before I go I note your name is Nguyen as well and I did make some comment about that name coming up frequently in other court cases.

59Separate that for the moment.  What I want to do is thank you specifically for your assistance here today in difficult circumstances to interpret remotely for someone who is in custody from the position that you are doing it and I am grateful to you for your assistance today.

60INTERPRETER:  Thank you very much, Your Honour.

61HIS HONOUR:  Members of counsel, thank you also for your assistance.  Thanks.

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