Director of Public Prosecutions v Nguyen
[2019] VCC 1525
•18 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-00951
Indictment No: J13344546
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LINH TUAN NGUYEN |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 September 2019 |
| DATE OF SENTENCE: | 18 September 2019 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1525 |
REASONS FOR SENTENCE
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Subject: Cultivation of cannabis (commercial quantity) not ‘mere’ crop-sitter. Possess property suspected of being proceeds of crime.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Gurry | Office of Public Prosecutions |
| For the Accused | Ms A. Liang (For Plea) Ms C. Flocke (For Sentence) | Giorgianni & Liang |
HIS HONOUR:
1 Linh Tuan Nguyen, you have pleaded guilty to one charge of cultivation of a commercial quantity of cannabis and one related summary offence of possession of property suspected of being the proceeds of crime. The maximum penalty for the cultivation offence is 25 years’ imprisonment. The summary offence carries a 2 year maximum term.
2 You are 29 years of age and have no criminal history.
3 This matter was opened to me yesterday by Ms Gurry who appeared on behalf of the Director of Public Prosecutions. She opened in accordance with an agreed written opening, dated 29 August 2019. That document was marked as Exhibit A on the plea. Some amendments were made in running, notably to the weight of the cannabis which had been significantly misdescribed in the opening. The weight was inflated by over 59 kilograms as a result of a misreading of grams for kilograms in one item on the botanist’s certificate. I raised my concerns, they were justified and the amendment was made. It was an agreed opening.
4 It seems to me quite unnecessary in the circumstances to descend to the full detail of the sentencing facts. I will not stray beyond that agreed material.
5 Exhibit A and the photographs attached to the depositional materials disclose the nature of the crop that you were cultivating. On 24 December 2018, you were caught red-handed within the house at 79 Munro Street, Coburg. You were there with another male who is going for trial, a man named Pham.
6 Within the property there was a sophisticated hydroponic cannabis setup. There were 240 plants, 88 of those were small seedlings which weighed a total of only 59 grams not the 59 kilograms as the original summary suggested. The total plant weight was 20.07 kilograms not 79.28 kilograms. There was a further quantity of 59.6 kilograms of cannabis. I ignore for the purposes of the calculation the 7.09 kilograms mixed cannabis in item 1. The total weight of cannabis therefore was just under 80 kilograms, (79.7 kilograms) not the
140 kilograms which would have gone forward absent my intervention. Commercial quantity was still reached very comfortably both by plant number and by weight.
7 Items were found on one of your phones which made plain that you had some connection with those who had set up the house. There were copies of identification documents which had been used in the rental of the property in April of that year. They had been sent to you in an email. In addition there were earlier utility bills as well as photographs on your phone of items typically used in cultivation.
8 You were arrested at the property on 24 December 2018 and have been in custody since. You gave a ridiculous account to the police in the formal interview. That is not a matter of aggravation.
9 These premises were what is sometimes referred to as a 'grow house' or 'crop house'. There was no furniture within. You were no ‘mere crop sitter’ as your counsel concedes. She gave an account of your instructions to her as to how and why you had been engaged and as is not uncommon in this area, it made little real sense. As far as I can follow it, you said that a third party approached you and asked you to pay the bills for the property and you were for some reason provided with an email with the false identification documentation which had been used in the rental. There was also a photo of an earlier bill on your phone as well as email addresses. You told the court through your counsel that you had been asked to attend the property to clean it and to check that it was okay and to pay the bills and you would be paid $500 per attendance. You said you had attended no more than 5 times. You had been given the keys and a remote control for the garage. You asked Mr Pham to attend on the day that you were arrested. It is unclear why you would have done so or why he would have attended or why the principal would have been comfortable with another person being introduced to the property. Pham seemingly had some past connection to another crop at another premises as the summary makes clear. Your counsel argued that what you did was done for financial gain. That you acted out of financial need.
10 At the time of your offending, your wife was in custody herself for cultivation of cannabis and had been in custody from April of 2018. It was argued that you had financial need though you were living in a house that was owned by your wife. No material touching upon financial need was placed before me. Neither you nor your wife who was in court were called. I will come back to discuss your account in due course.
In Mitigation
11 Ms Liang conducted a plea on your behalf. She took me to your personal details and background. She relied upon a number of matters in mitigation including the following:
· Your guilty plea;
· The stage of the plea;
· The presence of some remorse;
· The absence of any prior criminal history and what were said to be your good prospects of rehabilitation;
· The likelihood of your deportation and the impact of that process upon you including the increase in custodial burden and the loss of prospects of permanent settlement in this country;
· An increased burden owing to your understanding of your wife’s predicament in the currency of your sentence and also a sense of isolation provoked by the language barrier and inability to do courses and programs;
12 Your counsel made submissions as to the level of seriousness of the offence and the weight to be given to the various purposes of sentence. She conceded that your role was above that of a crop-sitter but took issue with the 2016 case of Nguyen having any role to play in my task. She was conceding the inevitability of an immediate term of imprisonment and one requiring the fixing of a NPP.
Prosecution
13 Ms Gurry who appeared on behalf of the Director of Public Prosecutions of this State argued that general deterrence was of real significance in this sort of case. She made submissions about the other purposes of sentencing and your role as being above that of a crop-sitter. She argued that Nguyen had some application here. You had a high level of culpability, it was an unmistakably commercial set up and you could have been under no illusions as to the seriousness of your crime. Your own wife was at that stage in custody for similar conduct she reminded me. Whilst accepting that the risk of deportation would increase your burden in custody the prosecution did not accept that it was possible to have regard to the ‘likely’ loss of prospects of permanently settling in this country. It was just too speculative.
Background
14 I turn now briefly to your background. I have no reason to doubt what I was told of your family background and see no need to restate it all. Your family background really has nothing at all to do with your offending. Briefly stated, you are 29 years old, born on 1 July 1990. You were born and raised in Vietnam. You have an older sister who still lives there. Your parents who also still live there, work in the fishing industry. You were educated to the equivalent of year 12 and then moved to Hanoi to study at University. You obtained a degree in telecommunications and worked in a number of factory jobs before returning to work with your parent’s business. You came to Australia on a student visa in 2013 and were enrolled at the Western Sydney University. You moved to Melbourne after a month and you have worked in various factories since. You met your wife in early 2014 and married in October of that year. You were granted a spousal visa and then subsequent to that a permanent residency visa was granted in 2018. Your wife is an Australian Citizen. You have a 4 year old daughter. You have been in custody since arrest in December of last year. You have been doing courses and programs in custody. You receive visits from your mother in law, daughter and uncle.
15 You have no criminal history at all.
16 It is argued that you will likely be deported from this country. I was told that your visa has not to this point been cancelled. See exhibit 2.
17 I turn then to consider the matters raised on your behalf.
Guilty plea
18 I turn firstly to your plea of guilty. You have pleaded guilty. You have done that at the earliest stage. I reward you for your guilty plea and the stage at which that plea was entered. You have facilitated the course of justice. You, unlike your co-accused, have taken responsibility for your offending and done so at the earliest stage. Witnesses have been spared the experience of coming to court. The community has been saved the time, cost and effort associated with a contested hearing, either in this court or in the Magistrates Court. I take those matters into account in mitigation.
Remorse
19 Your counsel argues that you have some remorse. A guilty plea is often indicative of some remorse. Your guilty plea was entered at the earliest opportunity. Ms Liang frankly conceded that there was no other evidence of any remorse here. It was an overwhelming case against you. I am though prepared to find that you do have some level of remorse which I take into account in mitigation.
Rehabilitation
20 Your counsel argued that you have good prospects of rehabilitation. You are a 29 year old man and one with no criminal record at all. You have made the very poor decision to commit this serious crime. You were though of course no teenager. You were 28 years of age. A mature and intelligent man. You have been arrested, charged and brought swiftly into custody on the day of your arrest. You pleaded guilty at the earliest opportunity and as I have said, you exhibit some remorse. You have been in prison for a decent time already and that will continue once sentenced by me. These various things will have a role in deterring you into the future.
21 I believe you have a relatively low risk of re-offending in this way again in the future. I believe that you do have good prospects of rehabilitation either in this country or in Vietnam.
Deportation
22 I turn then to the issue of deportation. A sentence of 12 months or more will bring into play the automatic cancellation provisions within the Commonwealth Migration Act. A sentence of that dimension is just unavoidable here as is conceded by your counsel. I will work then on the theory that you will have your permanent residency visa cancelled. That it will take place.
23 You would then have rights under the Migration Act to request a review of any such determination and then further rights to review that decision if necessary in a tribunal or court or both. Where will all that end up? Well, I work on the theory that your visa will be cancelled, but in terms of those review powers, I have no idea how they will play out. It would involve pure speculation on my part.
24 I am not assisted by the document marked as exhibit 3 being the statistics as to revocation of those automatic cancellations. Those figures relate to revocation outcomes in the year ending 31 December 2018. They disclose that about 33% of people had their visas reinstated. Frankly, I must say, I am very surprised it is as high as that. The graph does not provide any further figure as to the percentage of people who were not successful who then took the matter to the next stage, to a tribunal or court and the extent to which that group of people had any success.
25 Nor is this a statistical exercise. Either for me or the Minister or his delegate. I cannot just look at the figures and say, ‘you have a 33 % chance of having your visa reinstated and hence a 66% chance of that not happening’. It is not a statistical exercise. Presumably the Minister or his delegate will need to actually consider your case in accordance with the relevant guidelines. You are married to an Australian citizen. You have a child who is also an Australian citizen. They are important links to this country. Where will this all end up for you? Who knows?
26 If your visa is cancelled, as one would expect it will be, you would then be looking at movement from prison, not back out into the community but to an immigration detention facility with the spectre of deportation at the end of that process. That is a pretty unsettling prospect for any person, I am sure of that.
27 I do take into account cases dealing with the relevance of the risk of deportation including the Guden v The Queen [2010] VSCA 196 line of cases considered in Allouch v The Queen [2018] CSCA 244 and more recently in the case of Loftus v The Queen [2019] VSCA 24.
28 It is not my task as a judge to select a sentence to actively avoid the operation of these provisions.
29 You probably had no realistic expectation of settling in this country when you arrived on a student visa, one which you almost immediately breached by ceasing to study. That likely changed when you married in 2014 and went on to become a permanent resident. As I have said, you are married to an Australian Citizen and you have a child who also is an Australian citizen. So you now have sizeable connections to this country and an understandable desire to remain here. Separation from your wife and child which would arise by way of deportation is an unpalatable and distressing notion to you, I am sure of that.
30 I accept then that your custodial burden is increased owing to the knowledge of the risk of deportation. It will make your life very uncertain as you serve out the sentence that I will shortly pass. It will not be easy to have that uncertainty in your mind as to how this will all play out.
31 So I will give some weight to the increased custodial burden for the reasons mentioned above and I include in that exercise your understanding of the fact that your wife and child are endeavouring to cope without your assistance as you serve out this sentence. I cannot pay much regard to the claimed isolation brought about by your lack of English. There are plenty of people in prison who speak your language. I do though accept that it makes it harder for you to participate in programs and courses and take it into account in that way.
32 I do not believe I can make any judgement at all as to the claimed likelihood of actual deportation occurring here and hence the loss of opportunity to reside permanently this country. The risk of deportation is there, there is just no question about that and that undoubtedly increases your burden and I take it into account in that way. But as to whether you will ultimately be deported and hence lose the opportunity of permanently settling in Australia, I can have no real idea. It is pure guesswork and I am not able to guess or speculate about that.
General remarks
33 I address now some general remarks to you. The prosecution have not suggested that you are the principal. They do not know who is. However, your involvement was removed from being a crop sitter. Your counsel concedes that fact and argues that you were committing this serious crime for financial reward.
34 That is a very common motivation for people engaged in this sort of venture. Well, in your case, was it need or greed? You gave a completely untruthful account to the police. Your explanation for becoming involved as advanced to this court is hard to accept. I do not accept it on the balance of probabilities. Financial need is raised and yet there is nothing placed before me suggesting or supporting that position. You had a roof over your head. It was your wife’s house. You were not debarred from working legitimately as by then you had a permanent resident visa. Your wife was herself in custody for a similar style offending. That would surely be a very strong disincentive to becoming involved in the same style of serious offence. Anyway I am not satisfied on the balance of probabilities of any dire financial position. In the course of the plea, I raised what I perceived as the many difficulties that I had in accepting your instructions. Your counsel chose not to call you or your wife on the plea.
35 You must have gone into this venture with your eyes wide open.
36 You were doing, I am sure, what virtually every person engaged in such activities does; taking a calculated risk. You made a choice, that is what it was, a choice to commit this serious crime. You, like most, hoped not to be caught. You must surely have weighed up the risks given your wife’s then predicament.
37 I have to take into account the nature and the gravity of the offence. Though it is hard to know with any certainty how you became involved, how you were recruited, or the true nature of your relationship to others in the hierarchy, I will certainly sentence on the basis that you were not the principal or the person who set up the crop. But you were no ‘mere’ crop sitter. You had the keys to the house, you had the remote control to the garage and you had, as one of your functions, the paying of bills. You had details of the false names that had been used in the lease. You have evidently had the right to introduce others to the property for instance Pham on this day. You had relevant images on your phone. I will never know exactly what you were doing or what you were going to be paid. But even your account as to the paying of bills would speak of some financial arrangement between you and others further up the hierarchy. Presumably you were being recompensed for paying bills and shielding then the principal in this way from scrutiny and detection.
38 As I have said in other cases, I say now in yours, this crop and its ultimate success has been interrupted by the execution of the warrant by the police. You clearly knew that you were embarking upon a very serious crime. How can there be any doubt about that given your intelligence and the nature of the set up and the fact that you own wife had been locked up for the same style of offending. This was very obviously a highly elaborate, highly organised criminal activity. It would be obvious to anyone looking at it, that profit was central to the event, for at least someone down the line. Not for you, but at least for someone above you in the hierarchy whoever that was. Why else would such equipment be obtained and set up and a house be converted into what was essentially a virtual cannabis factory? Why else would you expect to be paid for your efforts whatever it was that you were to be paid?
39 I am not able to ascertain the true expected financial reward here. I am certainly not satisfied of your account on the balance of probabilities as to your modest reward. I am satisfied beyond reasonable doubt that you expected to be paid and paid well given the scale of the risk that you knew you were shouldering.
40 This particular crop house had all the hallmarks of a professional undertaking, and that must have been plain to you.
41 There seems to be a never-ending stream of people such as you prepared to involve themselves in cultivation of narcotic plants for reward and plenty of people superior in the hierarchy prepared to pay such people for that role. That speaks clearly as to the large potential illegal profits involved in this style of prevalent venture. It is serious criminal conduct.
42 The people up towards the top of the hierarchy very seldom sit down in the dock of a court. That is because they install and/or recruit hired underlings such as you to do the essential work and to lessen their own risk of apprehension. You were not some low level crop sitter. It was more than that here, as is conceded.
43 Without players such as you, that is, people who are prepared to involve themselves in the management and the cultivation of crops such as these, the crops just would not exist. Your role was obviously a necessary one or you would not have been asked to perform it. It really is that simple. See the case of Doan v R [2010] VSCA 250.
44 This crime carries a maximum term of 25 years’ imprisonment. I must pay regard to the maximum sentence.
45 Hydroponic cultivation 25 or 30 years ago was a real rarity. This sort of cultivation is now very common indeed. It is a serious crime and you knew it.
46 Sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation. As I have said, I believe they are good.
47 I must consider the need for specific deterrence, that is deterring you from committing crimes in the future. You have been arrested, you have been charged and you have pleaded guilty. You have some remorse. You have no criminal record. You have already been in custody for a significant time and for the first time. Specific deterrence has already been achieved to a degree here. I believe it is therefore open to moderate the weight to be given to specific deterrence, as well as to community protection in this case.
48 However, this is an offence that requires substantial punishment. See the case of DPP v Duong [2006] VSCA 78.
49 As I have also already said, general deterrence is a very significant purpose of sentencing in a cases such as these. There is seemingly a never-ending stream of hired underlings coming before this court. The message must be sent to people such as you not to engage in this sort of crime.
50 Those who choose to engage in this activity, at whatever level, are always taking a calculated risk. It is always taken on because of the hope of some financial reward, as I am sure it was in your case. Well, people must understand that with that potential reward comes a significant and a real risk of detection, of prosecution and then the likelihood of the imposition of a significant term of imprisonment.
Current sentencing practice
51 I pay regard to current sentencing practices. It is not a single, controlling factor. It is one of the matters a court has to have regard to. I have looked at the Sentencing Snapshot No. 222 of 2018 as well as the more up-to-date SACStat data for the offence of commercial cultivation. I have also looked at some of the material held at the Judicial College of Victoria sentencing site, including an overview of commercial cultivation sentences dealt with in the Court of Appeal. See 33.13.5.1 and 2. I have ignored the large commercial quantity cases, as there is a higher maximum penalty at play in those cases. Much of the data though would predate the decision of Nguyen in 2016.
52 The fact is that there have been many cases over many years querying the adequacy of sentencing practices for this crime. The case of Nguyen [2016] VSCA 198 sets out a number of those cases and also has a fair bit to say as to the inadequacy of sentencing practices for this crime when committed at certain levels.
53 There is much by way of statement of principle within that case that is clearly relevant to my task. The case contains many statements as to the seriousness of the crime of commercial quantity cultivation of cannabis and the weight that needs to be given to punishment and general deterrence.
54 Now, it is true that case of Nguyen was not focussing on low-level players. It was more directed at medium-level cultivations and the compression of sentences that seems to have taken place over the years. Your counsel argue that the case has no application here. I do not agree. You are no low level player. Your counsel does not suggest you are a mere crop-sitter. Your role was clearly more significant than that.
55 The Court of Appeal has spoken often enough also as to the danger of applying adjectives or labels to try to describe a person's role. Those sorts of things can actually obscure a person's conduct. Focussing on the actions and conduct is what is important, not the label that is applied. As the Court of Appeal said recently in another case of Nguyen v The Queen [2019] VSCA 134 at paragraph 59:
'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.’
56 Your culpability was high enough here. You can be contrasted with very low-level players such as low-level crop-sitters. You were not one. Your own counsel describes your role as falling at a mid level.
57 Now, I have mentioned the sentencing statistics and also these other cases. Statistics always have limitations and so too do other examples of sentences imposed on other people. I am not going to sentence you according to the average or most common previous sentencing outcome. They are just statistical terms. Every crime is different and so too is every offender. Other cases, even though they disclose sentences that have been imposed upon other offenders, are not precedents.
58 I note in that recent decision of Nguyen v The Queen [2019] VSCA 134 that the sentences of three years and eight months imposed in that case were confirmed on appeal. I note also the statements of that Bench of the Court of Appeal in paragraph 65 that sentences in that region are, as the Court of Appeal said, entirely unexceptional even for crop sitters.
59 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 where a term of imprisonment is almost unavoidable.
60 General deterrence must be at the forefront of any sentence imposed by the court. That much again is made plain in virtually all of these decisions.
61 This was not some low level venture. This is a quantitative based regime. I am not allowed to make judgments as to the relative harmfulness of drugs. I have seen commercial quantity crops achieved by plant number alone with 100 plants so small that the total weight was under 3 or 4 kilograms. I have seen crops with very few plants weighing in just above the 25 kilogram threshold, so just tipping above the commercial quantity threshold. Within the last few years, as a single judge sitting in this court, I have seen commercial quantity crops in an open air setting with very low prospects indeed of any meaningful yield. Crops with no hydroponics, no great set-up, no infrastructure, no hallmarks of commerciality at all. I have seen crops grown in very amateurish conditions; in sheds, in garages, in makeshift settings. I have dealt with cultivation of commercial quantity crops that have not even been associated with any commerciality at all with a finding as to the crop being grown for personal use with no expectation of any monetary reward.
62 In your case, there were 240 plants. Well over 2 times the commercial quantity by plant number and over 3 times by weight. This was a sizeable crop by any measure. You were doing it for money. You had no addictions. You had not used drugs. You had no pressing mental health issues or debts as far as I can see that compromised your judgment. This crop house was clearly a professional undertaking.
63 Now the arrest interrupted the crop and your cultivation of it. It is not minor offending by any stretch of the imagination. The offending is nowhere near the lowest level in my view and I accept it falls at the mid level, assuming a judge can still use that sort of term. Plainly the summary offence is far less serious.
64 Now, there is an application for a forensic sample. It is not opposed. I order pursuant to s.464ZF of the Crimes Act that you undergo a forensic procedure for the taking of scraping from your mouth in accordance with subdivision 30A of part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I am satisfied that it is appropriate to make this order, that it is justified owing to the seriousness of the circumstances of the offence, the fact that the order is not opposed and that I judge it to be in the public interest. What this deals with then is the forensic sample. Now, someone in a position of authority will approach you in custody and run a swab around the inside of your mouth to take a forensic sample for placement on the database. It is not a particularly invasive procedure. I have authorised the least invasive process being a scraping from your mouth. I have not authorised a blood sample at this stage but I have to tell you that the authorities can use reasonable force to enable that procedure to be conducted. But it really should not be an issue for you. I have signed that order.
65 Yes, all right, if you could stand up please, Mr Nguyen.
Sentence
66 On the charge of cultivation of a commercial quantity of cannabis, I convict and sentence you to 3 years and 10 months' imprisonment.
67 On the related summary offence of possession of property suspected of being the proceeds of crime, you are convicted and sentenced to 1 month's imprisonment.
68 That 1 month term will be served concurrently upon the base sentence.
69 That results then in a TES of 46 months or 3 years and 10 months' imprisonment.
Non-parole period
70 I fix a non-parole period of 2 ½ years.
Section 18 pre-sentence detention
71 You have already served 267 days of this sentence by way of pre-sentence detention and that s.18 declaration is entered into the records of the court.
Section 6AAA
72 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to 6 years' imprisonment. I would have fixed a non-parole period of 4 ½ years. That statement is also to be entered into the court records. Just have a seat then for a moment please. I will see if there is anything else that I need to do. Are there any outstanding issues at all or not?
73 MS GURRY: No, there is not, Your Honour, thank you.
74 HIS HONOUR: Your client has been in custody for a significant period already, Ms Flocke. So, there is no need for me to make any sort of custody management directions?
75 MS FLOCKE: No, Your Honour. No.
76 HIS HONOUR: You will go down and see him downstairs and ‑ ‑ ‑
77 MS FLOCKE: I will, Your Honour, with the interpreter.
78 HIS HONOUR: Yes, all right, thank you for that. All right, well, Mr Nguyen - I will just sign the formal orders. Give me a moment. Yes, well, look I have signed that formal order. So, Mr Nguyen can be removed please.
Ms Flocke will come down and see you downstairs, Mr Nguyen.
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