Director of Public Prosecutions v Nguyen
[2019] VCC 1168
•26 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR 18-02461
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIEN HUY NGUYEN |
---
| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 April, 1 May, 25 July 2019 |
| DATE OF SENTENCE: | 26 July 2019 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1168 |
REASONS FOR SENTENCE
---Subject: Sentencing
Catchwords: Plea of guilty – cultivating commercial quantity of cannabis – 177 plants weighing 31.65 kilograms – accused’s role as crop sitter – prior offence of same nature resulting in prison sentence – visa not cancelled after prior offence but deportation highly likely following sentence now imposed – sentenced as serious drug offender – prior parole revoked so no PSD towards current sentence - some moderation to total cumulation - accused now 26 years old.
Legislation Cited: Sentencing Act 1991 ss.6B, 6D, 6E, 6F, Schedule 1, Clause 4(a)(iv); 6AAA.
Cases Cited:
Sentence: 2 years’ imprisonment with a non-parole period of 13 months---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S Joosten (on plea) Ms N. Burnett (on further plea and sentence) | Office of Public Prosecutions |
| For the Accused | Ms H Bate (on plea) Ms E. Stevens (on further plea and sentence) | Lethbridges |
HER HONOUR:
1Mr Nguyen, you can stay seated until I tell you I require you to stand. I need to explain why I am going to impose the sentence I have decided on.
2Tien Huy Nguyen, you have pleaded guilty to a charge of cultivating cannabis in no less than a commercial quantity.
3The maximum penalty for this offence is 25 years' imprisonment. That reflects how very seriously this type of offending is viewed by Parliament on behalf of the community.
4You have also admitted a prior criminal conviction for the identical offence committed in 2014, and for which you were sentenced in the County Court on
30 January 2015. I shall say more later about the relevance and consequences of that prior conviction.5The present charge is based on what police found on 5 September 2018, when they executed a search warrant at a residence in Point Cook. You had been observed to arrive there in a car earlier. When police gained entry to the premises, you were seen to leave the house by the rear door but, on seeing police in the backyard, you re-entered the premises and hid in the roof cavity. You were subsequently found there, and from there you were arrested.
6Inside the house, police found four rooms upstairs that had been converted for hydroponic cultivation purposes. Each room contained cannabis plants at various stages of growth. There was also a small tub of cannabis plants in the downstairs hallway. Police found equipment for cultivation throughout the house and in the boot of the car you had been driving. An electrical bypass of the power supply was found in the lounge room, which I take as an indication of the extent and intent of those setting up the cultivation, but you have not been charged with theft of electricity.
7I have no further information as to your role in the cultivation. An interview was unable to be conducted with you by police after your arrest, due to the unavailability of a suitable interpreter. The Crown accepts that you were minding the crop, or, as it has become known, “crop sitting.” There is nothing to indicate that you yourself had planned or set up this cultivation, nor that you were to share in its profits, nor assist in its distribution.
8According to your counsel, you agreed to carry out some functions in minding this crop to earn money to support yourself and to send back to your family in Vietnam. Unfortunately, your story is an all too common one which comes before this court. I accept that you did not personally initiate, or control, or stand to make substantial profits from this cultivation. However, the prevalence of hydroponic cultivation of cannabis in houses which have been set up, or at least substantially given over for this purpose, with people willing to live in or frequently visit to check that the hydroponic system is functioning and to tend to the plants, must be discouraged by courts imposing sentences for this type of offending. The type of role you seem to have carried out enables these operations to occur – that is, the extensive cultivation and all too prolific distribution of this drug in the community, which, as courts often note, has an acknowledged harmful impact on individuals, their families and on the whole community.
9It is of course usually the person carrying out the type of role that you did who is likely to be caught by police, while those planning and controlling the cultivation may shield themselves from discovery. However, that does not mean that a person in your position does not know that the purpose is a serious offence and takes the risk of detection.
10As you had not only tended a previous crop, but had been in this Court and sentenced to imprisonment for your role in it, you must have been well aware that you were engaging in serious offending and could expect a term of imprisonment to be imposed, if you were caught.
11I have minimal information about the extent of this crop, except that 177 growing plants were found, which weighed approximately 31.65 kilograms. This was above the threshold for a commercial quantity, both in number of plants (the threshold being 100), and also above the threshold weight of 25 kilograms. Given the weight for that number of plants, I have assumed that not many of the plants were well advanced in growth at the time you were caught.
12Nevertheless, objectively, there having been set up four rooms for staged cultivation, and the number of plants, reflect that it was intended to produce considerable quantities, and indeed had already produced above a commercial quantity in weight, although only by a relatively small margin. This was a cultivation of cannabis in not less than a commercial quantity, as I have said both in number of plants and weight, but was nowhere near the size or extent of many of the cultivations for a commercial quantity which come before this Court. The maximum penalty is an objective reflection of the seriousness of the potential of this crime, covering the full range of cases that fall within it. I assess the objective seriousness of this offending as relatively low for a commercial quantity, but it must still be regarded as a serious offence.
13I assess your role as at a relatively low level of culpability for the offence of cultivating a commercial quantity of cannabis, you being a crop sitter and the charge relating only to the one day of involvement on which you were found. However, as I have said, the overall objective seriousness of this type of offending means that even a low level of personal culpability is still serious, and the sentence I impose must convey general deterrence to discourage others tempted to engage in the level of involvement that you did.
14You were arrested at the scene, having first tried to leave the house, and then hidden in the roof cavity. This reflects an intention by you to evade capture by police, and certainly not immediate contrition. However, as you were aware that your visa had been cancelled, I do not attribute your attempt to evade arrest as solely related to trying to evade detention for this offence, and with what I have recently learned about your intellectual functioning, about which I will say more shortly, I also take into account that this may have been a rash or impulsive reaction to run and hide.
15Although no record of interview was possible and therefore no fulsome admissions were obtained, I accept that within a reasonably short period, through your lawyers, a plea offer was made. At the first committal mention, at the end of November last year, that is, barely two months after your arrest, you indicated a plea of guilty to this charge, which I take as an early plea.
16You are entitled to some leniency for the plea of guilty, both because of its utilitarian value in saving the community the time and cost of further investigations and hearings, and saving the need for witnesses to attend court. I also accept that it indicates a willingness by you to facilitate the course of justice and accept responsibility for your offending. I am urged to find that it is an objective sign of remorse by you. I have no evidence that you experience remorse in the true sense. I accept that you very much regret becoming involved in this type of offending again, not only because of its consequences to you, but also because you feel it has brought shame to your parents back in Vietnam, and you are ashamed for letting them down and for putting more burden on them by being unable to provide financial support whilst you are imprisoned.
17I shall tell you after I announce your sentence what it would have been had you not pleaded guilty, but been found guilty of the same offence after a trial.
18I turn now to your personal circumstances.
19You are now aged 26. The charged offending and your arrest occurred the night before your 26th birthday.
20You were born in Vietnam, and raised there by hardworking parents, of modest means, in a supportive family. You have two sisters. I am told one is older and married and lives separately, and you have one considerably younger sister still living with your parents.
21I am told that while in your final year of secondary school in Vietnam, when aged 17, you suffered serious injuries in a motorcycle accident, and those injuries included a head injury, for which you still bear a sizeable scar. When this case was first heard by me in April, there was no medical evidence available about your injury, or any ongoing effects, but I was then asked to adjourn the sentence when some medical evidence from Vietnam had become available. The sentence has been twice adjourned to enable not only that evidence to be translated into English, but also a neuropsychological assessment of you to be made.
22There is now a translated medical report from a hospital where you were treated in Hanoi. It confirms that on 17 February 2010, after a traffic accident, you were admitted with multiple injuries. You were unconscious and had a Glasgow Coma Score of 8, which has to be compared with a full score of 15, and it was noted your pupils were unequally dilated, and you had bleeding from the left ear. You were diagnosed with head trauma, with blood accumulation outside of the dura, on the top left temple. You were taken to surgery, and the accumulated blood was drained and other injuries tended to.
23I am told that as a result of that head injury, you have little memory of your early life. You also have little memory of the specific treatment you had in hospital. The report indicates you were discharged from that hospital after only five days, but I am told you remained in hospital for about 20 days, and underwent many months recuperating. The report is not inconsistent with that, because it says you were discharged to hospital.
24I am told you then returned to school the next year, but apparently with academic and social difficulties, and you were suffering low mood. You repeated and passed your final school year, but it seems that your earlier, more promising success at studies may have been impeded.
25I am told that your parents had set aside their savings to enable you to be sent to study in Australia. You arrived here in 2012. In the first year, you were to study English, but failed to pass. The following year, 2013, you commenced a course in marketing at South Pacific TAFE, but also failed that year. You felt the pressure of knowing how much financial burden there had been on your parents in sending you here, and the implications of you failing in your studies.
26Although you were working to support yourself and sending money back to your parents, you were under financial pressure, and as that was known to whoever recruited you, you were asked to mind a cannabis crop. That occurred in July 2014 and you were charged with cultivating a commercial quantity of cannabis. You pleaded guilty before another judge of this court, His Honour Judge Punshon, in January 2015. You were sentenced to two years' imprisonment, with a non-parole period of 12 months. In that case, the total cannabis involved was 225 plants, weighing 54.2 kilograms, and the offending charge was over a 19 day period. Objectively, therefore, the quantity of cannabis and extent of your offending at that time was greater than under the present charge. On the other hand, you were aged only 21 at the time of that offending, and 22 when sentenced, so you had the benefit of being before the court for a first offence and younger than you are now, although I still regard you as in the range of youthful offenders. It seems now clear that there was no information before the Court on that occasion of the medical implications, or consequences of your head injury back in Vietnam.
27You were paroled on 25 July 2015, after presentence detention was taken into account. Notwithstanding that it had been expected when Judge Punshon sentenced you that your visa would be cancelled, you were released on parole into the community, because apparently no action had yet been taken by the Immigration Department in relation to your visa. You complied with parole conditions for the first three to four months, until you received notice from the Immigration Department that your visa was to be cancelled, and for that reason you went into hiding, rather than report on parole. Failure to report, however, put you in breach of your parole conditions.
28Over the next two and a half to three years, you managed to avoid being found by either immigration or Parole Board authorities, by moving out of the Springvale area. I do not know what efforts were put in to trying to find you, but I do take you to have been deliberately staying away from areas or activities where you thought you might be found. I am told that you found intermittent accommodation with various friends and worked doing casual handyman jobs for cash. You had to find money also for any medical treatment, because you could not be covered by Medicare.
29You managed to support yourself, and send some money to your family. However, you were under financial pressure, and again were approached to mind a cannabis cultivation, to which you agreed. You were apparently this time offered a payment in advance as a loan, and accommodation, but you were to work off repayments. I am now told that you had not received the money that was to be advanced. Nevertheless, your motive for becoming involved in this offending was clearly financial gain, although I do not know the figure, and even if you did not in fact get paid. I accept that you were not to share in profits from the cultivation and that you undertook this arrangement in circumstances of personal financial need, rather than from greed, but those factors do not decrease your blame. It is just that if those other factors had been present, they would have aggravated, or made it worse.
30I have already mentioned that you suffered a serious head injury when aged 17 and still at school in Vietnam. There has recently been a neuropsychological assessment to ascertain your current level of neuropsychological function, and whether you are likely to be suffering any consequences of that injury that may have contributed to your offending, or may otherwise be relevant to your sentence.
31On 5 July, that is, earlier this month, you were assessed by Ms Laura Scott, a clinical neuropsychologist, who administered various recognised tests and interviewed you over approximately four hours at Loddon Prison, with the assistance of a Vietnamese speaking interpreter.
32Ms Scott notes that the results on the tests that she administered produced overall a full scale IQ score which would put you in the extremely low range, but it is her opinion that the results are an underestimate of your cognitive functions overall and she says those results should be interpreted with caution. That means that she thought your cognitive functions are, in fact, probably better than the actual scores reflect, but she cannot say how much better, and I will not be speculating about that with any actual score range. She attributes the likely underestimation as being due to language and cultural differences, and your struggling to concentrate at times due to pain and tinnitus, as you were complaining of both at the time, and also fatigue that she noticed in you towards the end of a long session with her. I accept that you were not deliberately trying to underperform on the tests, but I note Ms Scott's comments about using caution interpreting the results. Also, as I said to your counsel yesterday, I regard the overall score as likely to be an underestimate when objective aspects of your functioning are considered. I cannot make any assessment of how much underestimated the results may be.
33Ms Scott assesses your pre-accident functioning as likely to have been in the low average range. She found several aspects of it now well below expectation, ranging from lower to upper limits of the extremely low range, but there are scores for intact working memory, basic language and verbal and visual skills, and basic aspects of executive functioning. She considered the overall pattern was consistent with an acquired brain injury – specifically a traumatic brain injury – having been suffered as reported in the hospital report by you in 2010.
34She also found you to be suffering severe levels of stress and depressive symptoms, and extremely severe anxiety on the DASS-21 test, and she thought those psychological symptoms were compounding with the effects of your lowered cognitive functioning, which resulted from your head injury.
35She considered that your difficulties with planning and reasoning, combined with reductions in abstract reasoning, would make you prone to taking up an easy solution to a complex problem, and that you have weak response inhibition, which would make it more likely that you would make short sighted or impulsive decisions, rather than stop and consider the implications. I accept from this part of her opinion that the consequences of the traumatic brain injury and psychological distress, are likely to have been factors contributing to your decision to enter into this offending. To this extent, I accept that your culpability for the offending should be assessed as somewhat lower than had your decision-making not been influenced by these consequences of your traumatic brain injury and your psychological condition.
36Nevertheless, you clearly did know that agreeing to mind this cannabis crop was illegal and wrong, and while your ability to reflect fully on the implications of engaging for a second time in such conduct may have been limited by your impulsivity and reduction in abstract reasoning, you clearly knew from the previous time that it was illegal and likely to land you in prison if you were caught again.
37I accept that the cognitive functioning limitations from your head injury are likely to make your time in prison more burdensome in some respects, although, as
Ms Scott points out, the regular schedule of prison life and structured environment would be easier for you in the short term. She gives the opinion that if you were moved often in the prison system, it would be harder for you to adjust than for others without your functioning problems. The prosecution points out that that is merely speculative and a theory. I have no power to influence where you are placed in the prison system, but I note that it seems that you had settled satisfactorily at Loddon Prison, where you had been appointed as kitchen billet and had made some Vietnamese-speaking friends. So if you can be returned there, it would be preferable for you. It is also said that you have accessed some medical treatment there for the pain, of which you complain in your jaw, and you are also said to suffer tinnitus. If you are as severely depressed and anxious as Ms Scott assessed, it would be in your interest to try to access some mental health professionals whilst still in prison, at least for assessment. I recognise that the assistance of an interpreter will presumably be necessary for that type of assessment.
38You have been in custody since your arrest on 5 September last year. That is now 324 days, or about six weeks short of 12 months. When your parole was cancelled, you were required to serve the whole of the remainder of your sentence, that was 12 months, and the time you have been in custody since
5 September has been attributed to the balance of your previous sentence, and will not count as pre-sentence detention towards the sentence I impose. I will take it into account under the principle of totality. That is, I will take into account the total period you will be required to serve in custody at this stage, and also the total for the two offences for which you have been charged and sentenced. However, as you fall under a particular section that makes you a serious drug offender, the law says that the totality principle does not apply to its usual degree, and sentences imposed in these circumstances should be served wholly cumulatively, unless directed otherwise.39You seem to have spent your time in custody over the last ten or more months constructively. I am told that about two weeks after your arrest, you were transferred to Loddon Prison, and you applied there to work there as soon as you could. You became the kitchen billet within your unit, which I take to reflect that you were regarded as well behaved and responsible enough to take on the position of billet. You have also been studying, both English and cooking. I am told that there have been no disciplinary issues. I was also told that there are other Vietnamese prisoners there, so you have been able to talk and have found some friendships there.
40Otherwise, you have very limited contacts with other people, having no friends or family visiting you, and you are limited to a phone call once a week to your parents' home. I am told that when you ring there, you speak with whoever might be home at the time. Your family clearly do not have funds to travel to Australia to visit you. I am told that you look forward to your phone calls to your family, but that you also feel ongoing guilt when you do talk with them, because of the position your offending has put them in. You know that your parents had expected to be able to retire, or at least greatly reduce their workloads, if you had fulfilled their hopes of you studying successfully in Australia, and being able by now to contribute financially to the family.
41Unfortunately, an offender's imprisonment all too often places both emotional and financial pressure on his or her family, and the law does not allow for that to generally be a mitigatory factor – that is, a factor that should be taken to reduce the sentence. I do take into account, and have made a modest reduction in your sentence, for the fact that I am satisfied that your time in prison on this sentence will likely be more burdensome for you because of several factors, including your concern for your family in Vietnam, and your feeling of guilt about the consequences to them of your imprisonment, as well as from your being isolated and without visitors and also because you are aware that on your release this time, you will most likely be deported from Australia, probably without the chance of returning, so you have lost the opportunity your parents gave you by sending you here to study.
42I am told that you have not been a regular drug user yourself and also not a gambler. Those circumstances, together with the constructive approach you have taken in prison, undertaking both work and study, are all positive indications for your prospects of rehabilitation in the future. Now that I have reports about your traumatic brain injury, it may be that those prospects will be more dependent upon you obtaining appropriate treatment and support services. It is to be hoped that, as you are still in your 20s, you will be able to establish a stable and constructive life for yourself in the future. That, of course, is highly unlikely to be in Australia, but I am told that there are prospects for you on your return to Vietnam to initially work in your parents’ shop, and then undertake some business options with other family there. At your age, and despite your future being unlikely to be in Australia, I have considered your prospects of reform and rehabilitation as having some relevance, but not being the most important sentencing factors.
43As you have previously been sentenced to imprisonment for a drug offence, I am referring there to the definition in s.6B of the Sentencing Act, you now fall to be sentenced on the current offence as a “serious drug offender.” That means that I must regard protection of the community as the paramount purpose for which the sentence is imposed.[1] To achieve that purpose, I may impose a sentence longer than what is proportionate to the gravity of the offence. In the current case, I do not consider that a disproportionate sentence is needed to achieve protection of the public, especially as you are likely to be removed from Australia when released, and I note that the prosecution did not urge a disproportionate sentence.
[1] s 6D of the Sentencing Act
44Another consequence of being sentenced as a serious drug offender is that the sentence I impose is to be served cumulatively on your current uncompleted sentence, except to the extent that I direct it not be.[2] I take into account that this provision is intended to limit the usual application of the principle of totality, but does not wholly exclude its application. You have already served approximately ten and a half months of the total 12 months that had remained of the previous sentence. Completion of the 12 months would be the full period of the head sentence of the earlier sentence imposed by Judge Punshon. In the circumstances, I consider that there is sufficient cumulation achieved by having the sentence I impose commence today. I have modified both the head sentence and non-parole period I will impose to take that into account, namely, that you have been almost ten and a half months in prison up to today, before the sentence I impose commences.
[2] s 6E of the Sentencing Act
45Notwithstanding that s.6D(a) requires that the protection of the public be the paramount sentencing purpose, I regard general deterrence in this case as at least equally important. It is necessary that courts send the message of stern punishment to others tempted to engage in this type of offending, including to persons such as you under financial strains at the time, that they may be offered or tempted into this type of offending. Community denunciation is also an important factor, as the harm done by the widespread supply of this drug to the community is well established, although disputed by some people. As you have offended in this manner before, specific deterrence is also relevant – that is, to discourage you from engaging in this type of offending again.
46I would have conveyed this through a significantly longer sentence than the last one that I am about to impose, but in light of the neuropsychological evidence now available that was apparently not available when you were last sentenced, I have adjusted the sentence I am going to impose to take that into account, as well as the features of it I have already explained.
47It was conceded on your behalf that the serious nature of this offence, together with the fact that you have committed a similar offence before, require that no sentence other than imprisonment would adequately address all sentencing principles.
48I have already discussed all of the matters I have taken into account in mitigation.
49Would you stand up now please.
50Tien Nguyen, on the charge of cultivating cannabis in not less than a commercial quantity, you are sentenced to imprisonment for a term of two years. I fix as the minimum term before you can be eligible for parole,
13 months. I intend that sentence, head sentence, and of course the non-parole period to commence today. To achieve that, I direct that 41 days of this sentence be served concurrently with the sentence you are currently undergoing. I make that direction under s.6E of the Sentencing Act.51I declare that you are being sentenced as a “serious drug offender” and direct that that be recorded in court records. That is pursuant to s.6F.
52For the purposes of s.6AAA of the Sentencing Act, I state that if you had not pleaded guilty and been found guilty on this charge after a trial, and if all other circumstances, including the now known information about your head injury, had been the same, I would have sentenced you to three years' imprisonment, with a non-parole period of two years, all commencing today.
53You can take a seat for a couple of minutes while the order is prepared and while I check with counsel that I have covered everything that I needed to and that the calculation is right. That is, the 324 days, up to but not including today. I have deducted from 365 days, it being a period of a year and I get to 41, so I think I have achieved what I have said I am aiming at. The sentences I impose commence today and I have directed the 41 days concurrency. I will have you both check that you think that does achieve that.
54Sorry, Ms Burnett, have you - sorry - have you checked that, or not. What I have also done is looked - I have not got a copy of the Parole Board's order, but he was arrested on 5 September last year.
55MS BURNETT: Yes.
56HER HONOUR: Twelve months from then expires on 4 September of this year. So, what I have also done is, take four days in September, 31 days of August, then I have counted back from 31st July. Today is the
twenty ‑ ‑ ‑57MS BURNETT: Sixth.
58HER HONOUR: ‑ ‑ ‑ sixth. If you count today through 26, 27, 28, 29, 30, 31, six days. So six days, four days and 31 days is 41.
59MS STEVENS: I think we're both happy with that, thank you Your Honour.
60MS BURNETT: Yes, that's right, Your Honour.
61HER HONOUR: Thank you. Now, have I covered any other - there were no ancillary orders sought, I gather?
62MS BURNETT: No, that's right, Your Honour.
63HER HONOUR: All right. Now, there's one last thing before I sign off on an order. The medical information is newly obtained, even though your client has been in custody for ten and a half months. Do you want any custody note in relation to it, or is it now really something that could ‑ ‑ ‑
64MS STEVENS: If it would assist Mr Nguyen ‑ ‑ ‑
65HER HONOUR: Well, I have no way of knowing that, because the neuropsychological report - the only part of it that might, in my view, have particular relevance to custody is the diagnosis of a severe level of anxiety and depression, or symptoms of, but it's hidden in there, if I might say and her real expertise is as a neuropsychologist, not a clinical psychologist. I haven't overlooked that that test was administered and I've taken into account the results.
66I don't really see how the rest of the report would alter custody management, but I am prepared to forward it, if you wish it to be. Like all neuropsychological reports, there's a lot of dense material in there that's not going to make an immediate impact on where Mr Nguyen is taken today, but if you would like it sent –
67MS STEVENS: If Your Honour was to send it, it might assist, whereas if the prison was to order their own reports, that will take some time, in any event.
68HER HONOUR: They won't order a neuropsychological report.
69MS STEVENS: I was being hopeful perhaps, Your Honour.
70HER HONOUR: More than hopeful. I've never heard of that occurring.
71MS STEVENS: I think Your Honour did remark yesterday that they're expensive.
72HER HONOUR: There is access to Forensicare practitioners, psychologists and psychiatrists, and no doubt mental health nurses, mental health practitioners I think is the general word used now. But there's not the ordering up of reports that I'm aware of at all, within the system.
73MS STEVENS: I doubt also - I doubt at Loddon as well, if he was to return there, that that's anywhere near the level of assistance that he'd receive. Perhaps maybe at Ravenhall, but certainly not at Loddon.
74HER HONOUR: I think Forensicare has mobile units now, but again, well out of my control, let alone day to day knowledge of how it operates.
75MS STEVENS: I can't see any harm from forwarding the report, and perhaps it is a very good suggestion by Your Honour that the report, if it can be of some assistance, is forwarded.
76HER HONOUR: Well, it can be - as a custody note, I'll just say: 'Copy neuropsychological report attached' ‑ ‑ ‑
77MS STEVENS: Thank you Your Honour.
78HER HONOUR: ‑ ‑ ‑ but of course the - do you want to get your client's instructions? It reveals a lot of personal information that some people don't want disclosed. Once it's in the system, it's in the system.
79MS STEVENS: I will double check with the ‑ ‑ ‑
80HER HONOUR: There are privacy issues. I never forward them without asking.
81MS STEVENS: If I can just take a moment?
82HER HONOUR: Yes.
83MS STEVENS: Thank you Your Honour. Thank you for that time, Your Honour. Mr Nguyen would prefer that it's forwarded to the prison in the event that it does help him obtain some further treatment.
84HER HONOUR: I am not at all sure it will help him obtain further treatment, but there is mention of the need for it in there, the psychological treatment, but he will also have to request it.
85MS STEVENS: I think so as well and I'll speak to him about that, Your Honour.
86HER HONOUR: All right, we'll put a custody note: copy of neuropsychological report attached. Refer - sorry, I'm just trying to find the mention of the - sorry, Ms Stevens, if you could refer me, if you can find it, more quickly than I can, the reference to severe and extremely severe levels on the DASS inventory? I think it was severe depressive symptoms and extremely severe anxiety?
87MS STEVENS: There's a comment, Your Honour, on p.10 under emotional function, but it's not the DASS comment.
88HER HONOUR: Ten, sorry. Well that's one part where it appears.
89MS STEVENS: And also on p.11, my friend's just pointed out that the summary and assessment also comments upon that, especially in the last sentence down the bottom of the page.
90HER HONOUR: The last sentence, yes, all right.
91MS STEVENS: So there's ‑ ‑ ‑
92HER HONOUR: Could we say in that custody note? 'Refer "emotional function"' on p.10 and last sentence, p.11, 'relating to severe levels depressive symptoms and anxiety.'
93All right, I've signed the orders now.
94The net effect, Mr Nguyen, is that a further two years’ imprisonment starting today. Thirteen months from today you will be eligible for parole. It is up to the Parole Board to decide that. And as you know, the chances are, or more than chances – it is very likely that when you are released on parole, you will be taken to immigration detention.
95Do you want to or you have got time to go downstairs to talk to your client, or do you only need him for a short time?
96MS STEVENS: If Mr Tran has a moment ‑ ‑ ‑
97HER HONOUR: Yes, it would be best with Mr Tran here to be able for you to talk with him. I will ask that Mr Nguyen be kept in the courtroom for a few minutes so his counsel, with the help of the interpreter, can talk with him.
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