Director of Public Prosecutions v Nguyen
[2019] VCC 1422
•29 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-00684
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUNG NGUYEN |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2019 | |
DATE OF SENTENCE: | 29 August 2019 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1422 | |
REASONS FOR SENTENCE
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Catchwords: Sentence –
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Locke (Plea) | Office of Public Prosecutions |
| For the Accused | Mr M McLellan | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1 Dung Nguyen, the indictment upon which you fall to be sentenced alleges that, on the 2nd of November 2018, you did cultivate a narcotic plant, namely Cannabis L. in a quantity that was not less than a commercial quantity.[1] You have pleaded guilty to that offence which carries a maximum penalty of 25 years’ imprisonment. You have no prior criminal history.
Plea of guilty
[1] Indictment J12876083.
2 You were committed to this Court for trial following a contested committal hearing on 8 April 2019. At the initial directions hearing on 10 April 2019, your trial was listed to commence on 18 May 2020. Plea negotiations then took place between April and July 2019 and culminated in you pleading guilty to this charge when arraigned on 18 July 2019.
Circumstances of the offending
3 The circumstances of your offending were opened at the plea hearing on 21 August 2019 in accordance with the typed prosecution opening dated 6 August 2019.[2] At the time of your offending, you were aged 24. You are now 25, having been born on 17 April 1994.
[2] Exhibit A.
4 At approximately 8.30am on 2 November 2018, Police executed a search warrant at a residential address in Doveton. You were present and allowed police to enter. They then discovered a hydroponic cannabis growing operation in five rooms of the house; there were 9 plants in room 1, 12 plants in room 2, 136 plants in room 3, 12 plants in room 4 and 20 plants in room 5. As the tendered police photographs show, those plants were at varying stages of maturity.
5 The total weight of the 189 plants located was 21.19 kilograms.
6 The search also located an illegal electrical bypass.
7 You were promptly arrested and cautioned by police at the scene. Later that day, you were interviewed at Dandenong Police station with the assistance of a Vietnamese interpreter.
8 You told police that someone had asked you to go to the house two times a week to water the plants for a period of two weeks or a month. For that involvement you were promised $2,000, which you regarded as a lot of money. You said that you did not expect to see anyone after that period. You also told police that when the plants had ‘appeared four days ago’, you did not know what they were. On your account, when you started asking questions the person told you that you did not need to know and that if you kept asking questions you would not be given the job or paid any money. You informed police that the person who had asked you to water the plants had bought you two cars. You professed not to know that person’s name or phone number.
9 At the plea hearing, I questioned your counsel about the nature and context of your offending and about some of the answers that you had given police when interviewed. After taking further instructions from you, he indicated the following. You claim to have been recruited when you were approached ‘out of the blue’ by a complete stranger. You maintained that you did not know the name or phone number of the person who had recruited you . As you understood the situation, you were being asked to ‘fill in’ for others who were on holidays. The first time that you attended the crop house was five days before your arrest. On that date, you cleaned the house. You attended on the following day, and each day thereafter until your arrest, in order to water the cannabis plants. As the police intervened before you had finished your 2-4 week stint of caring for the crop, you were never in fact paid any money. When you told police that you had been given two cars, what you were meaning to convey was the fact that you were asked to complete the necessary documentation so that you would appear to be, for all intents and purposes, the registered owner of the two vehicles which were kept at the crop house. You did as you were asked. Whilst you never owned either of those vehicles, you were permitted to use them from time to time and had driven one of them on the date of your arrest.
10 As indicated by your plea, you now admit to having known at the time that you were involving yourself with a crop of cannabis plants.
11 At the plea hearing, the prosecution were prepared to concede that your role was that of a crop sitter and one to be viewed as falling at the bottom of the hierarchy of those involved.
12 Whilst I accept that you were not the architect or a principal in this criminal venture, I do not accept everything that you have previously claimed. I certainly do not accept that you were just approached ‘blindly’ or that you did not know or have any means to contact your recruiter. You certainly knew you were involving yourself in an illegal enterprise with a commercial element; the size of this crop was substantial and the amount of money you were promised for what was, on any view, a limited involvement, was significant.
13 And, it should not be forgotten that in doing what you did, you were providing a layer of insulation and protection to those who had more to gain from this criminal enterprise.
Personal Circumstances
14 I will now briefly describe your personal circumstances, Ms Nguyen. You were born in Vietnam, in the city of Hai Phong. You travelled to Australia on a student visa in September 2014. On arrival, you were unable to study nursing at RMIT University as you had intended because of your poor English skills. Instead, you took English classes for two years before studying nursing for a year at a private college called TK College.
15 You married in 2016, while in Australia. Your husband was an Australian citizen of Vietnamese heritage. After marrying, you applied for a partner visa. The marriage ended in 2018 due in part to the financial stress occasioned by your inability to work while on a bridging visa. Following the separation, you abandoned your partner visa application. Thus, at the time of your offending, you were single, unemployed and living in a share house. In that sense, you were somewhat vulnerable to whatever approach was made to secure your involvement in this criminal venture.
16 You have remained in custody since your arrest and initial remand. You have been able to have some phone contact with your parents and two siblings in Vietnam. You intend to return to live and work in that country as soon as soon as the relevant authorities permit you to do so. It would seem that you will be able to secure such employment as you have a firm job offer from your sister who manages a beauty parlour.
17 You remain single and have no children. There has been no suggestion that you have any drug, alcohol, gambling or physical or mental health related issues.
Relatively early plea
18 Given the procedural history of this matter, I consider your plea of guilty to have been entered at a ‘relatively early stage’ rather than an early or late stage. That plea has saved the witnesses from having to give evidence at trial and spared the community from the cost and time associated with such a trial. I also consider that plea to be reflective of some remorse on your part.
19 You are entitled to and will receive a commensurate discount in your sentence for taking that course when you did.
Other matters in mitigation
20 By way of additional matters in mitigation, I note the following.
21 Your role was a very limited one. That involvement was of very short duration and confined to making sure that the plants were watered.
22 At 25, you are still a relatively young woman.
23 You have no prior or subsequent criminal history. Your very unwise decision to become involved in this criminal operation appears to be an aberrant but nonetheless serious error of judgement on your part.
24 It must be noted, however, that it is very often the case that those recruited to perform the more limited but nonetheless important roles in such illegal cultivation operations are of previously good character. In that context, the weight to be given to your previous good character must be ameliorated to some extent in order to ensure that an appropriate level of recognition and weight is given to general deterrence.
25 Your family are aware of your current predicament but continue to support you.
26 You have a firm offer of employment on your release.
27 You have what I regard to be good prospects of rehabilitation.
28 This Court accepts that you are isolated in custody and the burden of imprisonment for you is an onerous one. You have no family in this country and possess limited English skills. You appear younger than your biological age and are diminutive in size. You have had no previous experience with the criminal justice system or with the adult custodial environment.
Gravity of the offending
29 Apart from matters personal to you, Ms Nguyen, this Court must also have regard to a number of other matters, including the objective gravity of your offending.
30 As is clear from the very high maximum penalty which Parliament has seen fit to fix for this type of offence, any such offence must be viewed as being intrinsically very serious. Your counsel accepted as much at the plea hearing.
31 In your case, the number of plants (189) was nearly double the threshold amount for a commercial quantity and 18.9% of a large commercial quantity.[3] By weight (21.19 kg), the cannabis was slightly less than 85% of a commercial quantity and just under 8.5% of a large commercial quantity.[4]
[3] Under the relevant legislation, a commercial quantity of cannabis is 100 plants while a large commercial quantity is 1000 plants.
[4] Under the relevant legislation, a commercial quantity of cannabis is 25 kg while a large commercial quantity is 250 kg.
32 I again note that the level of your involvement was very limited and of short duration. It can, in my view, be properly characterised as falling at the lower end of seriousness for this type of offending.
33 But that said, it must still be viewed as a serious offence. While limited, the role that you performed was nonetheless important to the health of the crop and so to the ultimate success of the criminal venture in which you chose to become involved. It also provided a measure of insulation to others with a greater level of involvement. Your sole motivation for becoming involved was financial gain. The fact that you may have been in need of money at the time provides a reason and context for your offending but by no means any justification or excuse.
34 I consider your moral culpability for this offending to be relatively high notwithstanding your limited role. I am in no doubt that you well knew that this was an illegal commercial enterprise that was capable of reaping large rewards for those with a financial interest in its success. The fact that the owners of this crop could afford to pay you $2000 for what was, after all, the performance of a menial task over a relatively short period would have made that very clear to you. The seriousness of what you were getting involved in would have also been conveyed by the overall level of secrecy and the need to have you appear as the registered owner of the vehicles kept at the crop house.
Relevant Sentencing Principles
35 Clearly, general deterrence, denunciation and just punishment must loom large in this sentencing exercise. Specific deterrence, while also relevant, does not, in my view, need to be given quite the same degree of emphasis. Ms Nguyen’s age and prospects of rehabilitation are also important considerations.
36 This type of offence is notoriously prevalent and difficult to detect. It is the source of widespread community concern and disquiet. Understandably, the community looks to the Courts sentencing those who have committed such offences to impose appropriately stern punishments in order to deter other like-minded persons from offending in a similar fashion and to make it crystal clear that such serious criminal conduct will be strongly denounced and roundly condemned.
37 This court must justly punish Ms Nguyen for her offending. Any assessment of what is just must take account of matters which relate to the offending and to her personally, including those in mitigation, and the relevant sentencing principles that need to be applied. Self-evidently, this offending calls for a relatively substantial punishment. As I understand it, none of that is in dispute and both parties have acknowledged that this case calls for a custodial sentence.
38 This court must also have regard to Ms Nguyen’s age and prospects of rehabilitation, which I have assessed as reasonable on the available material.
Sentencing submissions
39 In his written sentencing submissions, counsel for Ms Nguyen appropriately acknowledged the intrinsic seriousness of this type of offence as well as the fact that a penalty involving a head sentence with a non-parole period was ‘most likely’. However, he submitted the fact that Ms Nguyen’s offending fell at the lower end of the spectrum of seriousness for offences of this type should be reflected in any sentence imposed, including the non-parole period. He urged the Court to fix a ‘lower than usual non-parole period’ in all the circumstances.
40 For their part, the prosecution highlighted the need to emphasise general deterrence and denunciation when sentencing for this offence. As they submitted, vulnerable people like Ms Nguyen are often employed as a shield by those more involved in commercial cultivations. Ultimately, the prosecution submitted that this offending was sufficiently serious so as to warrant a custodial sentence in the form of a head sentence with a non-parole period.
Section 5 (2H) of the Sentencing Act
41 For the sake of completeness, this Court should note that section 5(2H) of the Sentencing Act 1991 applies in this case. That section states, in effect, that in sentencing an offender for a category 2 offence, a Court must impose a custodial sentence (other than one imposed in combination with a community correction order under s.44) unless one or more of the defined criteria are established. Those criteria include where the offender has provided assistance to the prosecuting authorities or promised to do so, where the offender is under 18 and has a particular psychosocial immaturity that has resulted in a substantially diminished ability to regulate his or her behaviour compared to the norm, where the offender had impaired mental functioning that is causally linked to the offending and substantially reduces his or her level of moral culpability or where such impairment would result in the offender being subject to significantly more than the ordinary burden or risks of imprisonment, where the Court proposes to make a Court Secure Treatment Order or a residential treatment order, or where there are substantial and compelling circumstances that justify not making a custodial order that is not a combination sentence imposed under s.44.
42 In regards to the latter criteria, s.5(2)(ɪ) states that in determining if there are substantial and compelling reasons that justify not making a custodial order of the required type, the court must have regard to the Parliament’s intention and whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
43 It was common ground at the plea hearing, that by reference to s.3, the offence of cultivating a commercial quantity alleged in charge 1 of this indictment is, by definition, a category 2 offence for the purposes of s.5 (2H) of the Act.
44 Further, the defence did not seek to persuade the Court that any of the criteria just mentioned could be established or were otherwise engaged in this case. I consider that to have been an appropriate concession in all the circumstances.
Analysis
45 In my view, this offending is sufficiently serious to warrant a custodial sentence in the form of a head sentence with a non-parole period.
46 But, in determining the sentence, in particular the non-parole period, I have given what weight I can to the matters in mitigation upon which Ms Nguyen can rely. There is, however, a level below which this Court should not go in fixing the length of the non-parole period; it should not be so low or so disparate with the head sentence that it undermines the very sentencing principles which this Court must emphasise.
Sentence
47 In the end, I have decided to sentence you as follows, Ms Nguyen.
48 On the charge of cultivation of cannabis in a quantity not less than a commercial quantity, you will be convicted and sentenced to a term of 3 years’ imprisonment.
49 In respect of that head sentence, I fix a non-parole period of 1 year and 8 months.
Pre-sentence detention
50 I declare that Ms Nguyen has already served a total period of 300 days pre-sentence detention, not including today’s date, in respect of this sentence and I order that such declaration be entered in the records of the Court and that the period be deducted administratively.
6AAA Indication
51 Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that had Ms Nguyen pleaded not guilty and been found guilty of this charge, she would have been sentenced to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 ½ years.
Ancillary Orders
52 Pursuant to s 78(1) of the Confiscation Act 1997, I grant the prosecution application for a disposal order in relation to the electrical bypass, which I note was not opposed by the defence.
53 I further order that pursuant to s.464ZF(2) of the Crimes Act 1958, that Ms Nguyen undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30A of Part 3 of the Act, until a sample of sufficient standard is obtained for placement on the database. Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied that in all the circumstances the making of the order is justified for the following reasons: the seriousness of the circumstances of the offending warrant the order, the granting of the order is not opposed, and the granting of the order is in the public interest.
54 Ms Nguyen, I am required to inform you that should you not consent to provide the sample when asked to do so, police can use reasonable force to obtain a blood sample from you. Do you understand what I have just told you?
55 OFFENDER: Yes, your Honour. (through interpreter)
56 HIS HONOUR: Very well. Thankyou.
Other matters
57 Counsel, are there any matters which either of you wish to raise at this stage in relation to the sentence or my sentencing reasons?
58 MS CARPENTER: No, your Honour.
59 MR McLELLAN: Nothing further, your Honour.
60 HIS HONOUR: Do you wish to speak briefly to your client with the assistance of the interpreter before she is taken downstairs?
61 MR McLELLAN: Yes, I'd appreciate that time, Your Honour, thank you.
62 HIS HONOUR: All right, well I'll need to remain on the Bench while that's done.
63 MR McLELLAN: Thank you, Your Honour.
64 HIS HONOUR: You can approach the dock now.
65 Mr McLELLAN: Thank you for that time, Your Honour, nothing further.
66 HIS HONOUR: Ms Nguyen may now be taken downstairs, thankyou.
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