Director of Public Prosecutions v Nguyen
[2020] VCC 1294
•21 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00344
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUU NGOC NGUYEN |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 August 2020 | |
DATE OF SENTENCE: | 21 August 2020 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1294 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic);
Cases Cited:R v Doran [2005] VSCA 271; Latina v The Queen [2015] VSCA 102; DPP v Nguyen [2016] VCC 1555; DPP v Vu [2016] VCC 1953
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Porceddu | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms A. Liang | Giorgianni & Liang Lawyers |
HIS HONOUR:
Introduction
1
Huu Ngoc Nguyen, you have pleaded guilty to two charges of cultivating a commercial quantity of cannabis contrary to s72A of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for this offence is
25 years’ imprisonment. Pursuant to s3(1) of the Sentencing Act 1991, this offence is a Category 2 offence, meaning that a custodial order must be made unless a special reason applies. Your counsel did not submit that any of these exceptions apply in this case.
Offending
2 The circumstances of your offending were set out in an agreed Summary of Prosecution Opening dated 27 July 2020 (Exhibit A). This document set out the factual basis upon which you will be sentenced.
3 By way of brief summary, the charges to which you pleaded guilty arise from a police investigation into a large drug syndicate that was involved in the cultivation of commercial quantities of cannabis throughout Melbourne. The cannabis was cultivated within rented properties, including factories, that contained identical hydroponic set-ups. Police executed warrants on eight properties and charged 10 members of the syndicate. You have pleaded guilty in relation to the cultivation of a commercial quantity of cannabis relating to properties in Drouin and Springvale, on the basis that you were engaged by others to tend to the plants. You would also take plants and dry them at the Springvale property.
4
Charge 1 relates to your actions at a property in Drouin, Victoria, between
20 March 2019 and 17 April 2019, some four weeks. Police investigations had revealed, in relation to a property at 27 Skipton Street, Drouin, that it had been purchased around September 2018, but no furniture had ever been moved in. When the property was first sold, two young males in a white van had come every day for about a week, and construction noises could be heard all day.
5 In November 2018, AusNet conducted checks at the property that indicated voltage patterns consistent with a crop house where an electrical bypass was operating. The house had been rented to two individuals who did not exist, and false documentation had been used for this purpose by the syndicate across several properties.
6 On 20 March 2019, at 5.37 pm, police conducted surveillance at the property and observed a male at the address watering the yard and putting the bin on the nature strip. A Toyota Camry was parked inside the garage with the roller door up. Police followed this vehicle from the address to the Princes Freeway where it was intercepted. You and the other occupant of the vehicle, Mr Ly Ly Nguyen, were not arrested at this time.
7 A few weeks later, on 17 April 2019, police executed a search warrant at the Skipton Street property. Police discovered that the whole house had been transformed into a cannabis cultivation house with added rooms and an electrical bypass installed. No one was present at the address. Police seized a total of 319 plants weighing a total of 138.34 kilograms. The commercial quantity of cannabis as listed in the Drugs, Poisons and Controlled Substances Act 1981 is 25 kilograms or 100 plants. The amount seized was therefore 3.1 times in excess of the commercial threshold in relation to the number of plants, and 5.5 times the commercial threshold in relation to the weight.
8 Charge 2 on the Indictment relates to a property at 48 Gray Street in Springvale. On 17 July 2019, at 6.38 am, police executed a search warrant at this property. There were three persons inside, two males and one female. Upon entering the house police observed you to come out of a doorway and then immediately turn to go back into the room. You were then arrested, as were the other two occupants of this property.
9 Police located a substantial quantity of cannabis plant material drying out on a large table in another back bedroom and a hydroponic cannabis set-up that was concealed under the house. Inside the property, police seized 253 plants and 40 leafy stems weighing a total of 3.44 kilograms and 57.085 kilograms of drying cannabis in the various locations. This is 2.5 times in excess of the commercial quantity threshold in relation to the number of plants and 2.4 times the commercial quantity threshold in relation to weight.
10 Police also seized a large amount of cultivation equipment such as lighting, power boards and exhaust fans in the bedroom, under the house and in the shed. A number of other items were seized, including car keys matching the four vehicles in the driveway, keys which were later found to access a crop factory in Dandenong South, numerous mobile phones, laptops, $1,840 cash, and two Vietnamese passports, one in your name.
11 You were taken to the Dandenong Police Station and interviewed. In that interview, amongst other things, you told police that the cannabis did not belong to you, a person would come to the house every day and collect you to work and then return you home. The work was watering cannabis. A person drove you far away to do it. You started doing this two or three months ago and you were paid $100 cash per day. You owed money to the hospital and needed to send money to your family in Vietnam to support your parents. Once you were finished with watering you would take the cannabis back to the house to dry it. You were picked up to water the plants every second day. The cannabis that was located at the Springvale address did not belong to you, but you put it there. You did not know where 27 Skipton Street, Drouin was, and that was not an address where you were watering plants.
12 As I have said, you were arrested on 17 July 2019, and you have been in custody since this time, a period of 401 days.
13 Following your admissions in the police interview, this matter resolved to a plea of guilty at the committal hearing which commenced on 20 February 2020, but prior to the calling of any evidence. Given the number of other individuals charged by police in relation to other properties, and that this matter was booked in essentially for a block committal hearing, it was conceded by the prosecution that this was a plea of guilty at the earliest opportunity in the circumstances.
Background
14 Turning now to your background, you are currently 49 years of age, having been born in Quang Binh Province, an area on the north central coast of Vietnam. Both of your parents, now in their eighties and frail, have been farmers. You have two sisters aged 39 and 52. You are married and have three children aged 7, 24 and 27. Your wife is now a farmer, having previously worked in the fisheries industry. The entirety of your family reside in Vietnam.
15 You were educated up to Year 10 level before entering the workforce to assist your family financially. You have worked in the fisheries industry in Vietnam.
16 You came to Australia on 26 May 2015 on a medical treatment visa to have an operation to remedy an intestinal issue from which you had been suffering. This operation was undertaken at the Sunshine Hospital in July 2015. You made the decision to unlawfully remain in Australia past the expiration of your temporary visa in order to find work to pay for the medical bills and also to assist your family back in Vietnam. In that regard, you obtained work on farms, as a handyman, rubbish removalist and also as a general labourer.
17 Your family’s financial predicament was significantly exacerbated following the Formosa marine life disaster in 2016, a water pollution crisis connected to the local Formosa steel plant, effectively wiping out a significant proportion of the local marine life and therefore significantly impacting upon the livelihoods of many, including your family. I accept that your decision to remain unlawfully in Australia was significantly influenced by your desire to assist your struggling family in Vietnam. I have little doubt that your isolation from your wife and children would have been difficult for you.
18 I also accept that your financial circumstances and isolation from your family would have made you vulnerable to an approach by this criminal syndicate in March 2019. You were offered $100 cash per day, to be taken to properties, water the plants under instruction and then taken back to where you lived in Springvale. You would also take some of the cannabis to your property in Springvale where it would be dried.
Nature and Gravity of the Offending
19 In formulating an appropriate sentence in your case, I am required to have regard to the nature and gravity of the offending. Your offending is very serious, as reflected by the maximum penalties applicable for the two charges, 25 years’ imprisonment. You were involved in the commercial cultivation of cannabis across two properties, and two distinct time periods between March and April, and between April and July, covering a total period of some four months. In relation to both properties, both the number of plants and the weight of cannabis well-exceeded the commercial quantity threshold.
20 As highlighted by the prosecution in this case, the scope and size of the overall operation was significant. The length of offending, some four months in total, was also significant. Further, there was a level of sophistication, as these were well-resourced and effective cultivation set-ups. The planning and production was commensurate with a large commercial scale. For all of these reasons, the objective gravity of the offending is significant, in my view.
21 I am also required to have regard to your level of culpability and responsibility for this offending. I accept in this regard that there is no evidence that you set up either property or had any close relationships with those higher up within this criminal enterprise. There is also no evidence that you received any financial profits from the sale of the cannabis. Your role it seems was essentially to water and tend to the cannabis plants, and to transport some of the crop to the Springvale property for drying. For your actions you were paid $100 per day, an amount that was no doubt significant to you but, in the broader scheme, can hardly be described as significant financial involvement. You were also not alone in the cultivation process and, in that regard, can be seen perhaps as a relatively small cog within a larger machine, so to speak.
22 However, the fact remains that through your actions you voluntarily chose to involve yourself in a sustained period of serious offending. In my view, you were both a trusted and essential member of this criminal enterprise, being entrusted to tend to the cannabis across two properties. Without individuals such as you being willing to mind the crop, the crop cannot mature and be processed for sale.
23 It is also clear that your motivation for engaging in this offending was money. However, I accept that your motivation was not greed, rather it was to pay for medical bills on your part and to support your struggling family back in Vietnam. In all the circumstances, I am satisfied that your level of criminal culpability is comparatively low, albeit in relation to offending which was objectively serious.
24 In formulating an appropriate sentence in your case, I have had regard to your plea of guilty which was entered, in all the circumstances, at the earliest reasonable opportunity. Your plea of guilty has saved the community the cost and delays associated with a criminal trial. Witnesses have been spared the experience of coming to Court. You have facilitated the course of justice and have taken responsibility for your offending. I have taken these matters into account in mitigation.
25 When you were interviewed by police, you made full admissions in relation to the conduct covered by both Charges 1 and 2, and I am satisfied that a further sentencing discount is warranted on the basis that these admissions are indicative of your remorse. Furthermore, pursuant to the principles articulated in R v Doran [2005] VSCA 271 and Latina v The Queen [2015] VSCA 102, further leniency on sentence is warranted due to the extent of your admissions to police. In relation to both matters, your admissions made clear the duration and extent of your offending.
26 You told police that you had been engaged in watering the cannabis plants for two to three months and had attended the house every second day. I accept that your voluntary admissions elevated the gravity of your offending and exposed you to the risk of a more substantial term of imprisonment, therefore warranting a sentencing discount.[1]
[1]Latina v The Queen [2015] VSCA at [17]
27 The prosecution in this case conceded that such a mitigatory allowance was warranted in relation to Charge 1, as it was said that your admissions were significant. However, the prosecution submitted that the same could not be said to the same extent in relation to Charge 2, as you were essentially caught red-handed in a house full of cannabis. It was argued that even without your admissions, the police would have had a prima facie case in relation to commercial quantity, by virtue of the number and weight of the plants and cannabis.
28 I agree that the extent of the mitigatory allowance is clearer in relation to Charge 1. However, your fulsome admissions to police are, in my view, reflective of your remorse. Your admissions also reduce the need, in my view, for any sentence to personally deter you, and increases the prospects of your successful rehabilitation.[2]
[2]R v Doran [2005] VSCA 271 at [14]
29 In formulating an appropriate sentence in your case, I have also had regard to your prospects of rehabilitation. At the age of 49, you have no prior convictions. Nor are there any other criminal matters pending. Your offending was not born of any drug addiction or other problematic behaviour. I accept that you retain the support of your family in Vietnam. I also accept that although your methodology was fundamentally flawed, you were motivated to assist your family in times of hardship.
30 I also accept that your considerable period in custody to date, knowing that your elderly and frail parents are at home and, in the absence of any contact with your wife and children, has proven to be a significant deterrent in relation to any future criminality on your part. I understand that you wish to return to Vietnam as soon as possible.
31 In all of the circumstances, I regard you as having good prospects of rehabilitation, for the reasons I have outlined.
32 I have also taken into consideration the circumstances in which you have been in custody. You do not speak English. You have, at least recently, been at Fulham Correctional Centre and, whilst I understand that there are other Vietnamese prisoners at Fulham, the circumstances in which you have been in custody have no doubt been more onerous due to your cultural and linguistic isolation. You have, however, managed to use your time productively, working in the kitchen as a cleaner five days a week, and engaging in various courses. In that respect, I have had regard to the certificates and courses which were tendered at your plea hearing (Exhibit 2).
33 Your productive use of time in custody further evidences, in my view, your positive prospects of rehabilitation. Like all prisoners, in recent months you have endured the circumstances of the COVID-19 pandemic. This has of course resulted in the cessation of any visits and restrictions on employment and therapeutic courses. Of particular relevance in your case, however, it has no doubt also caused a significant degree of anxiety, as the virus has slowly entered the custodial setting. Given the obvious mandated restrictions on your liberty and movement, I accept that the anxiety caused by COVID-19 entering the prison setting has made your period of custody to date more onerous, and a mitigatory allowance is therefore warranted.
34 In formulating an appropriate sentence in your case, I have also had regard to current sentencing practices, as just one of the relevant factors in sentencing. In addition to having regard to previous decisions of the Court of Appeal, both the prosecution and your counsel drew my attention to previous decisions of the County Court,[3] both of which I have had regard to.
[3]DPP v Nguyen [2016] VCC and DPP v Vu [2016] VCC 1953
Applicable Principles
35 In relation to offending of this type, the sentencing principles of general deterrence, denunciation and community protection are particularly important. Other like-minded individuals must be deterred from considering becoming involved in this type of offending, which has significant adverse effects upon the broader community. Any penalty I impose must send that message, and appropriately denounce your offending behaviour.
36 As conceded by the prosecution, in the circumstances of your case, the sentencing principle of specific deterrence is of less relevance. Furthermore, the prosecution concede that your prospects of rehabilitation are good.
37 The serious drug offender provisions from the Sentencing Act 1991 apply in relation to sentencing for Charge 2, as you fall to be sentenced as a serious drug offender in relation to that charge. In sentencing, in relation to Charge 2 therefore, I am required to consider protection of the community from you as the primary sentencing purpose, and I may impose a longer sentence than otherwise would be needed to achieve that sentencing purpose. Furthermore, the presumption of concurrency is overturned in relation to Charge 2. In this case, the prosecution did not submit that a disproportionate sentence was required in relation to Charge 2, notwithstanding the serious drug offender provisions.
38 The offending covered by Charge 2 involves an entirely distinct time period, and an entirely distinct location. In my view, and subject as always to the overarching principle of totality, a degree of cumulation is required between the two charges to reflect these distinctions in your offending.
Sentence to be Imposed
39 Mr Nguyen, I am now ready to pass sentence on you in relation to these two charges.
40 On Charge 1, you are convicted and sentenced to 1 year and 8 months’ imprisonment.
41 On Charge 2, you are convicted and sentenced to 2 years’ imprisonment.
42 Pursuant to s6F of the Sentencing Act 1991, I declare that you have been sentenced in relation to this charge as a serious drug offender, and I order that this fact be entered into the records of the Court.
43 I order that 6 months in relation to Charge 1 be served cumulatively upon the sentence imposed on Charge 2, making a total effective sentence of 2 years and 6 months. I declare that you serve a period of 1 year and 9 months before becoming eligible for parole.
44 Pursuant to s18 of the Sentencing Act 1991, I declare a period of 401 days as pre-sentence detention. This amount will be deducted from your sentence.
45 Had you not pleaded guilty, I would have imposed a sentence of 3 years and 9 months’ imprisonment, with a non-parole period of 2 years and 9 months.
46 Finally, I will make the forfeiture and disposal orders sought by the prosecution, these orders not being opposed by you. Mr Porceddu, can I confirm with you that there is both a forfeiture and disposal order that has been made by the prosecution?
47 MR PORCEDDU: That is correct, Your Honour, both those orders were sent to the Court, both disposal and forfeiture.
48 HIS HONOUR: Yes, and just confirming, Ms Liang, those orders are not opposed?
49 MS LIANG: No, Your Honour.
50 HIS HONOUR: Whilst I have you, Ms Liang, any ambiguities or issues in relation to the sentence?
51 MS LIANG: No, Your Honour.
52 HIS HONOUR: Mr Porceddu, any issues from your perspective?
53 MR PORCEDDU: No, Your Honour, thank you.
54 HIS HONOUR: Thank you, Madam Interpreter, for your assistance.
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