Director of Public Prosecutions v Nguyen (a pseudonym)

[2021] VCC 1875

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRAHAM NGUYEN (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	May 2021
DATE OF SENTENCE:	November 2021
CASE MAY BE CITED AS:	DPP v Nguyen (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1875

REASONS FOR SENTENCE
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Subject:Cultivation of a commercial quantity of a narcotic plant; trafficking cannabis

Catchwords:              Guilty verdict after trial – cultivation of 281 cannabis plants and trafficking 7.6 kg of cannabis at 2 properties –– hired handyman – no criminal history – assistance for the purpose of Sentencing Act s 5(2H)(a) - poor health – risk of deportation – good prospects of rehabilitation

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Andrew Farmer v The Queen [2020] VSCA 140; R v Cartwright (1989) 17 NSWLR 243; R v Biba [2021] VSC 327; Tala Matamata [2021] VSCA 253; Nguyen [2021] VSCA 211; Brown [2020] VSCA 60; Jones [2021] VSCA 114; Selaci [2020] VSCA 276; Guden (2010) 28 VR 288; Akot [2020] VSCA 55; Matamata [2021] VSCA 253

Sentence:                  Total effective sentence of 4 years’ imprisonment and minimum non-parole period of 2 years and 6 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Temple (For Plea)	Office of the Director of Public Prosecutions
For the Offender	Ms A. Kapataniak	Nelson Brown Legal

HIS HONOUR:

1Graham Nguyen[1], on 11 June 2021, after a trial before me, you were found guilty of:

(a)   one charge of cultivation of a commercial quality of a narcotic plant, namely cannabis; and

(b)   one charge of trafficking a drug of dependence, namely cannabis.

[1] A pseudonym.

Circumstances of offending

2Between 12 March and 20 March 2020, you were involved in the cultivation of cannabis at a Ballarat[2] property.

[2] Location anonymised.

3Between 19 and 20 March 2020, you were involved in trafficking cannabis at a Stawell[3] property.

[3] Location anonymised.

4The evidence established:

(a)   The Ballarat property had been modified to allow for the cultivation of cannabis to go undetected and was being used as a substantial cannabis grow house. 

(b)   On 20 March 2020 when police searched the property:

(i)it was found equipped with wall and floor coverings, lamps, bastion roof vents, grow pots and an electricity bypass;

(ii)281 plants were being grown in a kitchen cupboard, an office, a bedroom and in the garage;

(iii)there were bags of harvested cannabis stalk and leaf waste product in two bedrooms, the laundry and garage; and

(iv)there were empty grow pots in three bedrooms.

(c)   It was highly likely, at some time, you had handled personal items, namely, a toothbrush and an asthma puffer and a glass tumbler found in the kitchen.

(d)   Your mobile phone had been used in the vicinity of Ballarat on 12, 15, 17 and 19 March 2020. 

(e)   

Keys, which fitted the door locks to the Ballarat property, were found in

Mr Kim's[4] car a on 20 March 2020 when police arrested him and you. 

(f)    In his phone, Mr Kim had a screenshot of an envelope addressed to the resident of the Ballarat property. 

(g)   In your phone, you had a screenshot of Mr Kim's driver's licence, a photo of an electrical bypass and photos of black plastic bags with pieces of cardboard, containing handwritten Vietnamese writing, which were similar in appearance to the bags of harvested leaf and stalk found at the Ballarat property.  Mr Kim had sent you the photos of the plastic bags on 19 March 2020 at 8.54 pm. 

(h)   In your wallet, you had a Bunnings trade account card.

[4] A pseudonym.

5Additionally, the evidence established:

(a)   On 19 March 2020, you made a return trip from the Stawell property to Ballarat, with Mr Kim, in his car. 

(b)   You had slept overnight at the Stawell property on 19 March 2020 with Mr Kim. 

(c)   You and Mr Kim were present at the property on 20 March 2020 when police attended. 

(d)   At that time:

(i)there was a strong smell of cannabis inside the house;

(ii)heaters and fans were operating in a room where cannabis was being dried on a rack;

(iii)the drying cannabis weighed 7.6 kilograms; and

(iv)in the same room, there were three bags containing harvested cannabis leaf and branch waste product. 

(e)   An illegal electricity bypass had been fitted to the meter at the Stawell property.

(f)    Your mobile phone had been used in the vicinity of Stawell on 19 March 2020.

6The evidence also established you were a handyman who lived and worked in Melbourne.

Conduct of your trial

7You conducted your trial on a limited basis. You admitted a number of facts. Only two witnesses, the botanists who examined the cannabis found in the respective properties, were required to give evidence. Cross-examination elicited facts favourable to your defence.

8You admitted you were involved in the cultivation of cannabis at the Ballarat property, but denied you knew or were aware there were more than 100 plants growing at the premises. You argued, because not all the plants were obvious, I could not be satisfied that you did.

9You argued I could not be satisfied on the evidence when and for how long you were at the Ballarat premises, during the charged period, and what you did when you were there and, accordingly, the prosecution had not excluded, as a reasonable possibility, that you attended the property to carry out legitimate repairs and did not know the extent of the cannabis cultivation there.

10You denied any knowledge or awareness of the cannabis drying in a room at the Stawell property. Specifically, you denied you possessed the drying cannabis for sale or were preparing it for sale.

11You argued there was no evidence you handled the drying equipment, or were drying cannabis, or went into the room where the cannabis was drying at all. You argued, again, the prosecution had not excluded, as a reasonable possibility, you were an innocent travel companion with Mr Kim, in his car, on the return trip to Ballarat from Stawell, and that you were an innocent visitor who was hired to carry out house repairs at the Stawell property.

12I rejected your arguments that your presence, at relevant times, in the Ballarat vicinity, and, at some time inside, the Ballarat house, as well as your presence at the Stawell property on 19 and 20 March 2020, was an explicable coincidence, or in some other way consistent with innocence. 

13Considering the evidence as a whole, I was satisfied you were involved in the cultivation of cannabis plants at the Ballarat property between the dates alleged.

14Considering the cultivation operation was substantial, with cannabis plants growing in four rooms and cannabis leaf and stalk in others, and apart from the 79 plants, which were being grown in a kitchen cupboard, the remaining 202 plants were obvious by their presence, I was also satisfied the only reasonable conclusion to be drawn from the whole of the evidence is between 12 and 20 March 2020:

(a)   you intentionally cultivated not less than 100 plants, cannabis plants, at Ballarat; and

(b)   you were aware there was a significant and real chance that you were cultivating not less than 100 cannabis plants.

15I was also satisfied, on the whole of the evidence, between 19 and 20 March 2020, you went from Stawell to Ballarat, with Mr Kim, where you collected fresh cannabis plants from the Ballarat property, harvested the cannabis heads from the plants and were drying the cannabis heads in a room at the Stawell property, and when, with Kim, you did this, you were preparing the cannabis, which weighed 7.6 kilograms, or 30.4 times a trafficable quantity, and you were in possession of it, with the intention it would be sold. 

16Police arrested you on 20 March 2020 at the Stawell property, in relation to the cannabis found drying there.

17At interview, you said you had been hired to demolish cabinets and remove old furniture at the Stawell property. You said you did not know the name of the person who hired you. You said you had stayed at the house overnight with Mr Kim. When asked about the drying cannabis you said you had nothing to do with it.

18You were charged and remanded in custody.

19On 16 October 2021, you were admitted to bail.

20On 11 June 2021, following your guilty verdicts, I remanded you in custody.

Criminal record

21You have no criminal record.

Personal circumstances

22You were born in 1975 in Vietnam. You are aged 46 years.

23You are the oldest of five siblings. Your father was a truck driver and your mother a home carer. Your father died in 2004. Your mother lives in Vietnam with your siblings.

24You lived in a country town and went to local schools. When you left school, you went to work in the family trucking business.

25In 2001, you went to Korea to work and study. You undertook a motor mechanic apprenticeship. In 2006, you returned home.

26In 2013, fearing religious persecution, you fled Vietnam by boat. You arrived in Australian waters on 13 June 2013. Australian authorities intercepted your near Christmas Island where you were held for one year.

27In 2015, you were granted a bridging Visa and came to Victoria.

28On 3 March 2017, with the Minister’s consent, you applied for a Safe Haven Enterprise Visa.

29On 9 March 2018, the Department of Home Affairs (‘the Department’) refused your visa application. The Immigration Assessment Authority affirmed the Department’s decision, and you are currently on a bridging Visa E pending the determination of your appeal.

30The circumstances of your application are set out in the letter of your immigration lawyers, JT Lawyers.[5]

[5] Exhibit 15.

31Your lawyers have identified grounds of review with reasonable prospects of success.

32On 4 January 2017, you married an Australian citizen, Anh Truong[6]. Because you arrived in Australia irregularly, she cannot sponsor you for a Visa.

[6] A pseudonym.

33You have instructed your immigration lawyers she is fragile and needs your support. You contended, by your incarceration, she will be highly disadvantaged and left unsupported.

34Your counsel, Ms Kapataniak, told me you had separated from your wife prior to your arrest and reconciled with her after you were released on bail. I was told, since your remand in custody, your relationship has been complicated.

35Your immigration lawyers have advised you, should you be sentenced to more than 12 months’ imprisonment, your current bridging Visa will be cancelled because the Department is likely to find you do not pass the character test. In the event, you will be deported to Vietnam.

36I received character references from:

(a)   your wife;[7]

(b)   your sister-in-law;[8]

and five of your friends[9]

[7] Exhibit 8.

[8] Exhibit 7.

[9] Exhibit 5, Exhibit 6, Exhibit 4, Exhibit 3, Exhibit 2.

37Your friends, including 2 workmates, describe you as hard-working and a good handyman, and also a good son. You attend your temple with some of them where you have participated in volunteer activities.

38Your sister-in-law wrote you are friendly and well-liked and you support your parents.

39Your wife also described you as hard-working, kind and helpful.

40Your cardiologist, Dr McGovern[10], wrote you had coronary bypass surgery in 2016.[11] In 2020, you presented to Emergency Department at Sunshine Hospital with chest pain.[12] You were monitored for a period and discharged home. Dr McGovern reviewed you in April 2021. He arranged an echocardiogram and a stress test to assess your graft function, but you have been unable to attend those appointments since you have been remanded in custody.

[10] A pseudonym.

[11] Exhibit 11.

[12] Exhibit 13.

41Your general practitioner confirmed you are prescribed aspirin and a cholesterol medication, Atorvastatin, for your heart condition.[13]

[13] Exhibit 14.

42In prison you have been supported by a counsellor through an Indo-Chinese prisoner support program. She wrote you have expressed remorse for your crimes and have struggled with your incarceration.[14]

[14] Exhibit 10.

43You have also completed a vocational cleaning short course in prison.[15]

[15] Exhibit 1.

44A Psychologist, Gina Cidoni, assessed you on 23 August 2021.[16]

[16] Exhibit 16.

45She reported you experience regret, guilt and remorse for your crimes.

46You told her you had borrowed $5,000 to pay your immigration lawyer’s fees and were desperate and being threatened when you offended.

47You presented to her as distressed and depressed.

48In her opinion, you qualify for diagnoses of adjustment disorder with severe depression and anxiety.

49She suggested this disorder would have impaired your ability to think clearly when you offended.

50She had acknowledged there were limitations to her testing and assessment and, in the course of submissions, I indicated I was not prepared to act on that suggestion without more.

51Ms Kapitaniak did not pursue any reliance on Verdins principles other than to submit prison is more burdensome for you because of your mental health.

Defence submissions

52In comprehensive and powerful submissions, Ms Kapitaniak urged me to impose upon you a combination sentence of imprisonment and a Community Correction Order.

53Cultivation of a commercial quality of a narcotic plant is a Category 2 offence. Parliament intends an order for imprisonment, without a Community Correction Order, should ordinarily be made.[17]

[17] Sentencing Act 1991 (Vic) s 5(2I)(a).

54There are statutory exceptions to the legislative norm.

55Your counsel submitted your case is an exception because you have assisted law enforcement agencies in the investigation or prosecution of an offence.[18]

[18] Sentencing Act 1991 (Vic) s 5(2H)(a).

56In September 2021, your solicitors provided the prosecution with a “can say” statement.[19]

[19] Exhibit 19.

57You offered to make a police statement and, on 26 October 2021, at your request, the informant, with his Sergeant, spoke to you in prison.

58Regrettably, prison officials would not permit the interpreter service to be engaged without prior approval. Using your broken English, police were able to obtain some details of the information you wanted to give.[20]

[20] Exhibit B.

59You disclosed, about two months before you were arrested, a woman, Hoang[21] responded to your handyman advertisement in a local newspaper and you did some work for her at her home.[22] You said, when you finished that work, she asked you to do some building work, which included making a bedroom inside the garage and installing a roof fan, at a Ballarat property. You said you had nothing to do with the cannabis being grown inside the property; that work was done by Kim and her.

[21] A pseudonym.

[22] Exhibit C.

60You said, when police gave you the opportunity to make a phone call before you were questioned, you rang Hoang and told her you had been arrested. You said she told you to shut your mouth and say nothing to police or else your family in Vietnam would be at risk. You said you know her ex-husband. You described him as a violent man, who has returned to Vietnam, and you are afraid of what he could do.

61You also said Hoang had paid another man to buy the Stawell property, where you were arrested, in his name.

62Your “can say” statement is more comprehensive.[23]

[23] Exhibit 19

63In that statement, you stated the Hoang engaged you to do work at both the Ballarat and Stawell properties. You provided her address and telephone number, which is the number you called from Stawell police station, and gave the names of her Facebook account and Yellow app profile. You also identified her car and its registration number.

64You said Mr Kim told you she was the true owner of the Stawell property and she hired him to grow cannabis.

65You said, in early 2020, she asked you to assist Kim with whatever he needed. You said you agreed because you were desperate for money to pay your migration lawyers.

66You indicated you were willing to help police prosecute her and to give evidence in proceedings against her.

67The informant provided the court with an intelligence document.[24]

[24] Exhibit D.

68In 2020, police were investigating several commercial cannabis crop houses in the Stawell – Ballarat townships. They believed a Vietnamese syndicate had set them up.

69On 20 March 2020, they arrested you. Before they questioned you, you used your phone to contact Hoang, on the pretext you were calling your girlfriend. As you have recently disclosed, you were alerting her to your arrest. The service you used and the service you called were both registered in her name at her address.

70In the course of their investigation, police discovered cannabis was being grown at another property in Ballarat and being prepared for sale at another property in Stawell.

71On 13 May 2020, police discovered 300 cannabis plants being grown at another property in Stawell. They arrested three persons, including one whose address was the Hoang’s address.

72On 19 May 2020, they discovered another 300 cannabis plants being grown at a home in MacArthur[25]. Police had seen a Lexus wagon, registered to a person whose address was Hoang’s address, at the premises.

[25] Anonymised location.

73Your disclosure Hoang hired you to work at  Ballarat and  Stawell  is consistent with police intelligence.  However, without physical  or forensic evidence linking her to any of the four properties, police do not have sufficient information to charge her with any offence.

74In the informant’s opinion, your disclosure,  without  any corroborating evidence, is not of any significant value.

75The informant questioned the genuineness of your motive for disclosure, considering:

(a)   you denied any involvement when police questioned you; indeed you alerted Hoang to your arrest; and

(b)   your disclosure did not come until after you had been convicted of these offences at trial.

76Relying on the Court of Appeal decision of Andrew Farmer v The Queen,[26] Ms Kapitaniak submitted, to determine whether there should be a departure from the mandatory requirement to impose a prison term, without a Community Correction Order, the sole question is: Have you provided assistance in the investigation or prosecution of an offence? Accordingly, in her submission, whether your information will lead to any prosecution and whether your motive is simply self-interest are irrelevant.

[26] [2020] VSCA 140 [69].

77She submitted you should be afforded a substantial sentencing discount for your cooperation.

78She submitted that the police already had intelligence about Hoang does not diminish the value of your cooperation because you did not know police were aware of links between her and/or her address and cannabis cultivations they were investigating.

79She submitted, relying on R v Cartwright,[27] you are entitled to the discount whether or not your information significantly assists authorities. In her submission, it is sufficient it could have assisted authorities.

[27] (1989) 17 NSWLR 243, 253 (per Hunt and Badgery-Parker JJ).

80In further mitigation of penalty, she relied on:

(a)   the additional hardship of prison, due to removed visits, reduced programs and increased isolation during the pandemic;[28]

(b)   your poor physical and mental health; and

(c)   the risk of deportation resulting from a sentence of 12 months’ imprisonment or greater.[29]

[28] R v Biba [2021] VSC 327 [38].

[29] Tala Matamata [2021] VSCA 253, [28]-[31]

81She submitted, considering you have no prior convictions and your remorse, demonstrated by the limited way you conducted your trial, your prospects of rehabilitation are good.

82She submitted time served together with a community corrections order is a just and appropriate sentence for you.

Prosecution submissions

83Ms Temple, who appeared for the prosecution, in written and oral submissions,[30] submitted, considering there were 281 plants, weighing 27.6kg, growing in a large number of rooms at a property which had been modified to allow for the cultivation to go undetected, your offending is objectively serious. And, accordingly, general deterrence, denunciation, community protection and specific deterrence are important sentencing purposes.

[30] Exhibit A.

84She submitted, relying on Andrew Farmer v The Queen, where assistance to police is relied on, the information provided “has to be capable of assisting police in their investigation”.[31]

[31] [2020] VSCA 140 [80].

85She submitted because your disclosure is “not of any significant value” to police, I should not be persuaded the exception under s 5(2H)(a) of the Sentencing Act 1991 (Vic) applies.

86She submitted, because of the limitations to the Cidoni report, I should not be satisfied you have a mental impairment which “substantially” reduces your culpability or that the burden of imprisonment will be “materially greater” for you.[32]

[32] Exhibit 16; see Sentencing Act 1991 (Vic) s 5(2H)(e).

87She accepted:

(a)   you are of prior good character; and

(b)   your time in custody is more onerous due to COVID-19 lockdown conditions.

88She submitted your offending warrants the imposition of a term of imprisonment with a head sentence and a non-parole period.

Consideration

89As the maximum penalty of 25 years’ imprisonment demonstrates, cultivation of a commercial quantity of cannabis is a serious offence.

90As a Category 2 offence, Parliament intends a term of imprisonment, without a Community Correction Order, should ordinarily be imposed.[33]

[33] Sentencing Act 1991 (Vic) s 5(2I)(a).

91There are limited exceptions.

92Where an offender relies on s 5(2H)(a) of the Sentencing Act 1991 (Vic), there is a single question to be decided, namely: “Has the offender provided assistance… in the investigation or prosecution of an offence”.[34] The kind, extent or quality of the assistance is not relevant to the question.[35]

[34] Andrew Farmer v The Queen [2020] VSCA 140 [69].

[35] Ibid [79].

93Because you have identified the person who hired you and, if police could obtain other evidence of her involvement in cannabis cultivation, your disclosure might assist in her prosecution, I am satisfied you have provided assistance in the relevant sense.

94I am also satisfied when you identified Hoang as the person who hired you and the true owner of the Stawell property, you did not know police already had intelligence on her.

95However, I am not satisfied your assistance is a significantly mitigating factor in your case.

96The mitigatory effect of assistance depends on various factors including the benefit to authorities.[36] Your disclosure is of limited benefit to police.

[36] Ibid [71].

97Your offer of assistance was made only after your trial and, when police arrested you, you secretly alerted Ms Hoang to your arrest, and, and interview, you denied any knowledge of cannabis. While contrition is not a necessary ingredient, assistance motivated by genuine remorse would warrant greater leniency.[37]

[37] R v Cartwright (1989) 17 NSW LR 243, 252-3 (Hunt and Badgery-Parker JJ).

98You are entitled to a modest reduction in your sentence for providing information which could have assisted authorities.

99However, your assistance is not of such significance as to warrant a substantial discount on sentence which would justify a departure from the legislative norm which s 5(2H) of the Sentencing Act 1991 (Vic) prescribes.

100In Nguyen,[38] the Court of Appeal said the offender’s role and the scale, sophistication and duration of the cultivation activity are relevant to assessing the seriousness of your offence. And “[b]ecause the offence is quantity-based, the quantity cultivated will ordinarily be a factor of critical importance.”[39]

[38] [2021] VSCA 211.

[39] Ibid [30].

101Your offending was serious.

102You were involved in the cultivation of 281 cannabis plants, (2.8 CQ), over an eight day period. The cultivation set up at Ballarat was extensive; there were plants growing in four rooms including the garage which, on your own admission, you had modified. You were also involved in the preparation of 7.6 kg cannabis, (0.30 CQ), harvested from the Ballarat property, by drying it for sale at Stawell. Your motivation was financial gain.

103When considering comparable commercial quantity cultivation cases, the Court, in Nguyen, observed, “[t]here is such similarity between hydroponic cultivation operations that, very often, the only real point of differentiation between one case and another is the quantity cultivated.”[40]

[40] Ibid [37].

104I have considered a number of appellate decisions.

105In Brown,[41] where the Crown conceded a sentencing error, the Court resentenced the offender to 2 years’ and 6 months’ imprisonment for cultivating 226 cannabis plants; in circumstances where the totality principle had application because the offender also fell to be sentenced for trafficking cannabis he had grown.

[41] [2020] VSCA 60.

106In Jones,[42] the Court considered a sentence of 2 years’ and 10 months’ imprisonment for cultivation of 199 plants to be unexceptionable; in circumstances where the sentencing judge had accepted the cannabis cultivation was essentially for self-use to alleviate chronic back pain.

[42] [2021] VSCA 114.

107In Selaci,[43] the Court described as “moderate” a sentence of 3 years’ and 10 months’ imprisonment for cultivation of a quantity a little over 3 times a commercial quantity.

[43] [2020] VSCA 276.

108And, in Nguyen, the Court of Appeal, described a sentence of 5 years’ and 6 months’ imprisonment for cultivation of 405 plants as moderate.[44]

[44] [2021] VSCA 211.

109In each case, the offender had pleaded guilty and was given a sentencing benefit for it.

110I am satisfied there are some extenuating circumstances to your offending, that is, you were under financial pressure to pay legal expenses for your Visa application and appeal. I accept your explanation, after initially employing you as a handyman to do work at her home,  Hoang employed you to do building work at the Ballarat property, where you were involved in the cultivation of cannabis, and the Stawell property, where you were involved in the trafficking of cannabis.

111I have also moderated  your  total effective sentence and non-parole period to take into account: 

(a)   firstly, the increased burden of prison, due to the removal of prison visits, reduction in programs and increased isolation during the public health pandemic;[45]

(b)   secondly, your poor health which will make prison additionally hard for you; and

(c)   thirdly, the prospect of deportation, which will make your incarceration more difficult and is additional punishment because of the risk you will lose the chance to permanently settle in Australia.[46]

[45] R v Biba [2021] VSC 327.

[46] Guden (2010) 28 VR 288 [25]; Akot [2020] VSCA 55 [34], [38]-[39]; Matamata [2021] VSCA 253.

112I also take into account your prospects of rehabilitation which I accept, considering your lack of any criminal history, are good.

Parity

113Kim pleaded guilty to trafficking, on the basis he travelled to Ballarat to harvest and collect cannabis and brought it back to Stawell for drying. A Magistrate, at Stawell, sentenced him to 8 months’ imprisonment.

114You are guilty of the same conduct so I must also have regard to his sentence in accordance with the parity principle.

115Mr Nguyen, by the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation.

116Considering the circumstances of your offending, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

(a)   on the charge of cultivating a commercial quantity of a narcotic plant, you are convicted and sentenced to 3 years’ and 9 months’ imprisonment; and

(b)   on the charge of trafficking a narcotic plant, you are convicted and sentenced to 10 months’ imprisonment.

117I direct 3 months of the sentence I have imposed on Charge 2 be served cumulatively with the sentence I have imposed on Charge 1.

118Your total effective sentence is 4 years’ imprisonment, and I fix a period of 2 years and 6 months before you are eligible for parole.

119I declare you have already served 376 days of your sentence by way of presentence detention.

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