Director of Public Prosecutions v Nguyen

[2019] VCC 744

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02497

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUONG NGUYEN

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JUDGE:	HIS HONOUR JUDGE D.A. SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2019
DATE OF SENTENCE:	8 May 2019
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2019] VCC 744

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pathmaraj	Solicitor for the Office of Public Prosecutions
For the Accused	Ms S. Mercer	Victoria Legal Aid

HIS HONOUR:

Introduction 

1Tuong Nguyen, you have pleaded guilty to a charge of cultivation of a commercial quantity of cannabis on 15 August 2018, contrary to s72(A) Drugs, Poisons and Controlled Substances Act.  The maximum penalty for this charge is 25 years’ imprisonment, reflecting the seriousness with which Parliament regards this offence.

Circumstances of Offending

2The circumstances of your offending are set out in the summary of prosecution opening, dated 11 April 2019, which was tendered at your plea hearing on
2 May 2019 and marked Exhibit A.  No issue was taken with that document by your counsel and accordingly, I will treat it as a document containing the agreed facts.

3By way of brief summary, at approximately 8.50am on 15 August 2018, police executed a search warrant at 280 Sanctuary Lakes Boulevard South in Point Cook.  Upon gaining entry to the property, police located yourself and a female in the downstairs area of the property, seated on a piece of cardboard on the floor, eating a meal in close proximity to a bed which appeared to have been slept in.[1] 

[1] The female was charged by police.  However, on a later date those charges were withdrawn.

4A sophisticated hydroponic set-up was located on the second story of the property.  Police located 211 cannabis plants growing across four bedrooms.  The entry into each room was covered with a cloth or tarpaulin.  In bedroom 1, police located 16 cannabis plants approximately 1.5 metres tall.  In bedroom 2, police located 16 cannabis plants, approximately 1.5 metres tall.  These plants were in pots connected by tubing to a centralised watering system with lights and shrouds suspended from the ceiling.  In bedroom 3, police located 32 cannabis plants being grown within a tent structure, and in bedroom 4, police located 147 cannabis plants, ranging between 20 and 50 centimetres tall.  The plants in bedrooms 3 and 4 were in pots that were not connected to a watering system, with lights and shrouds suspended from the ceiling. 

5The 211 plants were subsequently confirmed to be cannabis, and weighed 82.46 kilograms.  Pursuant to part 2 of Schedule 11 of the Drugs Poisons and Controlled Substances Act, a commercial quantity of cannabis is 25 kilograms or 100 plants.  The cannabis located clearly exceeded the commercial quantity threshold.  The number of plants was over double the commercial quantity, and the weight was over three times the commercial quantity. 

6An electrical bypass was located powering the hydroponic system, which was on the first floor of the property behind a cabinet.  The bypass was dismantled.

7Your car was parked in the garage of the property and your Apple iPhone was located on the floor in the rear lounge room. 

8At the plea hearing on 2 May 2019, I was provided with colour photographs detailing the nature of the hydroponic set-up.  The photos clearly reveal a professional, sophisticated and well organised criminal endeavour.

9Later that day, you were interviewed by police where you largely made no comment in relation to these allegations.  

Nature and Gravity of the Offence, and Your Role in it[2]

[2] Section 5(2)(c) and (d) of the Sentencing Act 1991

10Your counsel informed me of some of the background circumstances which were said to exist in the period leading up to your offending.  It was essentially submitted that your offending behaviour was triggered by financial and other instabilities.  You had arrived in Australia in 2016 on a working visa with the hope of finding employment and sending money back to your family in Vietnam.  Some months after your arrival in Australia, your identification documents were stolen. Having worked cash-in-hand jobs on farms and as a handyman, your visa expired in January 2017 and you then remained in the country illegally.

You had few supports, with your family remaining back in Vietnam, no identification and no legal status in Australia.  You had experienced transient homelessness, sometimes sleeping in a car.  You were taken in by a man whom you had known from Vietnam, but in August of 2017 that individual was murdered. You again became homeless.  I was told that you were then approached by an individual at the St Alban’s market and offered the amount of $600 to stay at the property where the cannabis was subsequently located.  You were tasked with minding the property at night, in particular.

11Much of what I was told by your counsel is consistent with what you have told forensic psychologist Dr Aaron Cunningham when he assessed you on 1 May 2019.  At page 2 of his report, dated 1 May 2019, tendered on your plea hearing and marked Exhibit 2, Dr Cunningham describes a similar background.  

Dr Cunningham indicates:

'He was then approached by people who offered their property for him to stay at night.  He stated that the situation seemed too easy, as he was due to be paid $600.  He stated that he was not informed of the extent of the illegality of the behaviour, and has been surprised that he was incarcerated.'

12Whilst you may not have been aware of the extent of the illegality when you agreed to mind the house, I have difficulty accepting that upon arriving at the house, and no doubt becoming aware of the sophisticated hydroponic set-up that is revealed in the police photographs, that you would not have been aware of the extent of the illegality involved.

13It was submitted on your behalf that your role could best be described as a “crop-sitter”.  The prosecution did not take issue with such a description.  There is no evidence that you were involved in the set-up of this operation.  Other than your presence in the property, your vehicle in the garage and your iPhone in the lounge room, I accept that there is no forensic evidence linking you to the drugs or drug paraphernalia. There is no evidence of any enrichment on your part, and there is no evidence of any involvement by you in any harvest.  The offending period covered by the charge on the indictment to which you have pleaded guilty is limited to one day, 15 August 2018. 

14I accept the submission that your role in this criminal activity was limited to minding the crop, and that you did not play any organisational role in the offending. Your role, in my view therefore, is at the lower end of involvement and it is my view that your offending therefore falls towards the lower end of offending of this nature, for the reasons I have just outlined. 

15However, the fact remains that you have involved yourself in extremely serious criminality, as reflected in the maximum penalty available for this offence of 25 years' imprisonment. Whilst your role was limited to that of a “crop sitter”, your role was vital for the success of this enterprise, as without cultivation of the crop there would be no sale of it and no profit to anyone.  This was ultimately a sophisticated cultivation set up.  The product grown by cultivators has serious adverse effects on many users and the community bears a great cost.  Your role as a “crop sitter” essentially ensured that the equipment continued to operate and the crop continued to grow.

Personal Circumstances

16I turn now to your personal circumstances.  At the time of your offending you were 49 years of age.  You are still aged 49.  You were born in the Ha Tinh province of Vietnam.  You are the fifth youngest of six children.  Your counsel described your difficult and impoverished background, including exposure to war related trauma as a child. When you were aged nine, your father passed away.  You were then sent to a family to act as a domestic servant for the next nine years, as your mother was unable to support you.  You were mistreated in your role as a domestic servant, often working from 4am to 9pm, only being allowed to attend school every second day, and you would be beaten on the occasions that you would fall asleep during the day.  At the age of 18, you completed your military service for two years before working in construction and living again with your family.  In 1990 you married your wife Than and you remain in a relationship.  You and your wife have three children, Long, aged 28, and two boys, Ngan, aged 24, and Ding, aged seven.  Your family remain in Vietnam and I was told that you have maintained telephone contact with them since being remanded in custody.  They are aware of your charges and remain supportive.   As I earlier indicated, you relocated to Australia in 2016, in the hope of improving your financial situation.  You informed Dr Cunningham that you had been forced by the government in Vietnam to quit your job as punishment for having a third child, which aggravated the financial strain on your family.

17I have already outlined your personal circumstances in the period leading up to your offending on 15 August 2018.  Following the murder of the man from Vietnam who had taken you in and provided accommodation for you amidst your declining financial circumstances, I was informed that you voluntarily gave evidence at the subsequent committal hearing in relation to the individual alleged to have been responsible for that murder, on 27 March 2018.  This was some five months prior to the offending to which you have now pleaded guilty.  You informed Dr Cunningham that you were in a car at the front of the property at the time of this man's murder.  Your willingness to give evidence in relation to that matter stands to your credit.  It is evidence, in my view, of your pro-social attitude, your willingness in that case to facilitate the course of justice, and to “do the right thing” in relation to informing the Court of your observations in relation to this most serious crime.  Coupled with your absence of prior criminality, this matter is relevant in my view in terms of an overall assessment as to your prior good character. 

Progress in Custody

18You were arrested on 15 August 2018, and have been in custody since this date.  You have now been in custody for 266 days, not including today's date.

19Whilst on remand, you have been located at the Fulham Correctional Centre.  I accept that your time on remand has no doubt been arduous, by virtue of your lack of English and your isolation from your family and supports.

20I was told by the prosecution that you will be subject to removal from Australia at the completion of your sentence.  As earlier indicated, your work visa had expired some time ago, prior to your involvement in your criminal offending.  I was told by your counsel that you planned to reunite with your family back in Vietnam. Given this, I do not view the strong likelihood of deportation as being a mitigating factor by virtue of any anxiety that may cause you, given your stated intentions.

21It is clear that whilst in custody, you have endured significant health issues.  You informed Dr Cunningham[3] that following your arrest you have suffered from chickenpox and shingles and had your gall bladder removed.  The medical documentation from the Fulham Correctional Centre, tendered on your plea hearing and marked Exhibit 3, provides further detail in relation to the gall bladder operation which took place on 29 October 2018. That documentation confirms that you were in hospital from 25 October 2018 until 7 November 2018.  In my view your significant health difficulties are likely to have made your time on remand particularly onerous.  I have taken those matters into consideration in sentencing. 

[3] Dr Aaron Cunningham, Psychological Report dated 1 May 2019, 2.

Sentencing Factors

22I turn now to sentencing factors. Section 5(2) of the Sentencing Act sets out the factors to which I must have regard in sentencing you and I have considered these matters carefully. 

23As indicated, I have noted the maximum penalty prescribed for this offence, being 25 years, reflecting the seriousness of the conduct to which you pleaded guilty.  

24I have referred to the nature and gravity of the offending, and your culpability and degree of responsibility for it.  As indicated, you have pleaded guilty to extremely serious offending.  Whilst your role in the offending is at the lower end, by virtue of you being a “crop sitter”, your involvement was nevertheless important to this operation for the reasons that I have outlined.  

25You pleaded guilty to this offence at a committal mention on 5 December 2018, at which point the matter proceeded by way of a straight hand-up brief.  It is accepted by the prosecution that you pleaded guilty at the earliest opportunity.  A significant discount is warranted given your early plea.  As submitted by your counsel, your early plea of guilty avoids the necessity for a trial which carries with it the utilitarian benefits that accrue from avoiding the time and expense of a trial, and it involves the acceptance of legal responsibility and a willingness to facilitate the course of justice. 

26Your counsel submitted that your plea of guilty was also reflective of remorse, warranting a further sentencing discount.  Your counsel conceded that there was no reference to the issue of remorse in the psychological report of Dr Aaron Cunningham.  Moreover, Dr Cunningham referred to you stating to him that you were not informed of the extent of the illegality involved in the hydroponic setup, and you were surprised that you had been incarcerated.  The prosecution submitted that this may be reflective of an insight problem.  Giving you the benefit of the doubt, I am prepared to make a slight allowance for the plea of guilty being reflective to some degree of remorse, but in the circumstances, only a modest allowance is warranted.

27As earlier indicated, I have taken into consideration your previous character[4], in particular your lack of prior convictions or findings of guilt, and your willingness to give evidence in relation to the committal proceedings regarding the murder of your ex-housemate. I also accept that you are a man with a difficult background, having endured loss, trauma and hardship in your childhood.  Notwithstanding that, you have raised a family, and maintained contact with them to the best of your ability whilst being in custody.

[4] Section 5(2)(f) of the Sentencing Act

28I have also taken into consideration your difficulties on remand, due to your health issues, language issues, and isolation from your family.  I note in that regard that Dr Cunningham is of the opinion following an assessment of your mental health that you present with symptoms of depression and anxiety.  

29Given your absence of prior criminality, your family’s support, the fact that your offending was not driven by drug addiction but rather triggered it would seem by financial pressures, and finally your plans to reside with your family in Vietnam in the future, I have formed the view that your prospects of rehabilitation are reasonably good.

30I have also taken into consideration the purposes for which sentences may be imposed, in accordance with s5(1) of the Sentencing Act.  As indicated, you have pleaded guilty to extremely serious criminality, and there is a need to punish you to an extent and in a manner which is just in all the circumstances. Given the nature of the offending, in my view, the primary sentencing consideration is that of general deterrence.  There is a need to impose a sentence which deters other like-minded individuals from engaging in such serious criminality.  Given your absence of prior criminality, in my view specific deterrence is not a particularly prominent consideration in your case. 

31Given that the offending to which you have pleaded guilty is a category 2 offence under s3(1) of the Sentencing Act 1991, I must make an order for imprisonment[5], unless one of the criteria under s5(2)(H)(a) to (e) applies. Your counsel did not submit that any of these matters applied in your case.

[5] Section 5(2H) of the Sentencing Act

32Indeed, your counsel on your behalf, conceded that in all the circumstances a term of imprisonment was warranted in this matter.  Whilst the prosecution submitted that a term of imprisonment with a head sentence and non-parole period was appropriate, your counsel submitted that it would be open to the Court to impose a sentence of less than two years without a non-parole period.

33Pursuant to s5(2)(b) of the Sentencing Act, I must have regard to current sentencing practices.  At the plea hearing on 2 May 2019, the prosecution provided the decision of Ngoc Nguyen v R [2017] VSCA 286. My attention was drawn to paragraph 27 of that decision, together with Annexure A, which comprised a comprehensive table of previous sentences, many involving “crop sitters”. Bearing in mind the sentiments in the High Court decision of Dalglish, I have carefully considered that decision and the authorities referred to in the table.  I have also had regard to the decision of Quy Nguyen v R [2017] VSCA 127, another decision dealing with cultivation of a commercial quantity of cannabis, where the offender fell to be sentenced as a crop-sitter.

Sentence

34Mr Nguyen, would you please stand. In relation to the charge of cultivating a commercial quantity of cannabis, you are convicted and sentenced to a term of imprisonment of 20 months. Pursuant to s11(2) of the Sentencing Act, I will not set a non-parole period.  I declare that you have served 266 days pre-sentence detention in relation to this offending, and such a period is to be administratively deducted from this sentence as time already served.

35Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter I would have sentenced you to a period of 30 months’ imprisonment, with a non-parole period of 20 months.

Ancillary Orders

36I will make the ancillary orders that have been sought in this matter, those orders not being opposed by you, those ancillary orders relate to a forfeiture and disposal order and also a forensic sample order. 

37Mr Nguyen, I inform you pursuant to s.464ZF(2) of the Crimes Act that you are to undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample in accordance with the relevant provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.  I make that order, given the seriousness of the circumstances of the offending, the fact that the order is not opposed and that the granting of the order is in the public interest.

38I must inform you. Mr Nguyen, that at the time of the request, if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.

39I indicate to the parties, I intend to sign those orders in chambers and those orders will be made available in due course.  Mr Nguyen, you can take a seat, thank you.  Are there any matters arising from the sentence, firstly, from the prosecution and defence?

40MR PATHMARAJ:  No,Your Honour.  Nothing from the prosecution perspective.

41MS MERCER:  No, Your Honour.

42HIS HONOUR:  Was I correct in terms of the pre-sentence detention figure of 266 days?

43MR PATHMARAJ:  That’s agreed, Your Honour.

44HIS HONOUR:  Yes.  Ms Mercer, I take it you’ll carefully explain to Mr Nguyen the balance remaining on his term of imprisonment?

45MS MERCER:  Yes, Your Honour.

46HIS HONOUR:  Yes.  Thank you very much.  Yes, Mr Nguyen can be removed.  Thank you very much.  Thank you, Madam Interpreter.  Yes, we’ll just adjourn the Court until 10.30.

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