Director of Public Prosecutions v Nguyen and Do
[2016] VCC 561
•6 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01238
CR-15-01239
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUY VAN NGUYEN |
| and |
| HUONG LAN THI DO |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 April 2016 | |
DATE OF SENTENCE: | 6 May 2016 | |
CASE MAY BE CITED AS: | DPP v Nguyen & Do | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 561 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – pleas of guilty to recklessly dealing with $190,602 being the proceeds of crime - s194(3) Crimes Act 1958 – husband Nguyen and wife Do purporting to rent their four properties which were being used as “grow houses” for the cultivation of hydroponic cannabis crops – mature offenders with no prior convictions – different roles played – Nguyen sentenced to 12 months’ imprisonment, 6 months suspended – Do sentenced to 9 months’ imprisonment wholly suspended.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J Wheelahan | Solicitor for the Office of Public Prosecution |
| For the Offenders | Mr R van de Wiel QC (plea) Mr J Valos (sentence) | Valos Black & Associates |
HIS HONOUR:
1 Duy Van Nguyen and Huong Lan Thi Do, you have each pleaded guilty to one charge of recklessly dealing with the proceeds of crime, for which the maximum penalty is 10 years’ imprisonment (charge 1).[1]
[1]Contrary to section 194(3) Crimes Act 1958.
2 I must sentence you now on behalf of the community.
Circumstances of offending
3 The circumstances of your offending are set out in an agreed summary of prosecution opening, which was read out in Court. A summary will suffice. You are a married couple. Between 1 August 2012 and 12 September 2013, you were the registered proprietors of four properties at Tarneit, Truganina, Caroline Springs and Keilor Downs and allowed other persons to use them as “grow houses”, where cannabis plants were hydroponically cultivated and electrical by-passes were connected.
4 On 12 September 2013, police executed search warrants and discovered 113 cannabis plants growing at Tarneit, 179 at Truganina and 92 at Caroline Springs. Hence, there was a total of 394 plants seized where not less than 100 plants constitutes a commercial quantity for cultivation purposes. You, Mr Nguyen, were arrested at the Keilor Downs property. No cannabis was located there, but damage to it was consistent with cultivation having taken place.
5 Banking, accounting and tenancy documents were seized from your matrimonial home at Sunshine North. Examination of them by a forensic accountant revealed the existence of sham “rental agreements” for each of the four properties. Your tax records purported to show rental income and that “receipts” for rental income had been issued during the relevant offending period. This was all a sham - it is agreed that together you recklessly dealt with $190,602, being the proceeds of the money you derived directly from the occupiers of the properties or the organisers of the schemes from their cultivation and sale of a commercial quantity of cannabis, not from tax evasion. This figure has been established from an examination of legitimate income essentially derived by you from your operation of a butcher shop at the Footscray market during the offending period. Significantly, it is not suggested that either of you were involved in the cultivation or trafficking of the cannabis.
6 You both lied in police interviews conducted on 12 September 2013, when you claimed to have been legitimately renting the premises and banking receipts and denied any knowledge of cultivating cannabis. You, Mr Nguyen, said you collected the rent and your wife managed the rental agreements and banking. You, Ms Do, said that you had received rent in the form of money and cash, provided receipts in return and did all the bookwork for the enterprise. You said that you conducted property inspections once every six months.
7 You were charged on 12 September 2013 with cultivating cannabis and theft of electricity, but not with the present charge. There was then delay while police made further inquiries. You conducted a contested committal in July 2015 at which time you indicated a willingness to plead guilty in respect to the money derived. Ultimately, on 17 December 2015 the present charge was substituted and you pleaded guilty, which is accepted to be at the earliest time.
8 You, Mr Nguyen, were held in custody for 21 days after your arrest until bail was granted on 2 October 2013. There is no presentence detention for you Ms Do. After the plea hearing on 18 April last, I extended bail to today.
Background and personal circumstances
9 I shall turn to your respective backgrounds and personal circumstances. First, to you Mr Nguyen. You are now 44 and have no prior or subsequent convictions. You were born in Vietnam; you have two younger brothers in Canada and one younger sister in Australia. Your parents are hard-working folk who still live in Vietnam. None of your family have ever been in any trouble. After finishing school in Year 12 equivalent, you worked in Vietnam for some years. Then in 1997, when you were 25, you came to Australia and are now an Australian citizen. Since arriving here you have always been in fulltime, productive work. You have worked as a farmhand, grocery assistant and factory-hand processing chickens. You ran a butchers shop at the Footscray market from 2000 until 2007, when you purchased the business for $70,000 and worked there until you sold it in 2012 for $40,000. Then you worked in home renovations for two years. From 2014 to the present, you have been employed by your own company, which supplies retail seafood. You were first married in 2000, from which relationship there are two children, now 14 and 15. You were divorced in 2005 and still provide financially for those children. You married Ms Do in 2006 and from that relationship there are two sons aged 9 and 14. I have been provided with ATO Notices of Assessment for the years ending 2014 and 2015, which suggest you have had a very modest taxable income over those years. You have had some minor medical issues in the past, but presently keep good health.
10 Turning to you Ms Do, you are 39 and have no prior or subsequent convictions. You were born in Vietnam and have one older brother. Your father died in 1980. You completed school to Year 12 level in Vietnam and obtained a teaching diploma. You came to Australia in 1999, when you were 22, and are now an Australian citizen. You have worked fully and productively as a teacher, a casual seamstress, a kitchen-hand and, with your husband, processing chickens in a factory for four years. Then you worked in the family butcher business from 2007 to 2012. You are currently managing a market-stall and earning $65,000 per annum. An ATO Notice of Assessment for the year ending 2014 indicates you had a modest income for that year. Your mother, who is aged 67 and has some health difficulties, is currently living with you and your husband in your home. You were first married in 1998 in Vietnam and divorced in 2005, there being no children from that relationship. You married Mr Nguyen the following year and there are the two boys for whom you care, as well as undertaking the work I have described. You have had some medical issues in the past, but presently there is no problem in that regard for you.
Mitigating circumstances
11 There are a number of common mitigating circumstances. You each come from modest circumstances in Vietnam and since immigrating to Australia you have worked fully and productively. Obviously, you have made enough money to purchase the four properties where the cannabis was growing and your own matrimonial home (with some loans from the bank). It would appear that you are good parents to your two sons, and also care for Ms Do’s mother, who lives with you. You are both voluntarily involved with your Buddhist temple, engaged in assisting with building works and making donations to assist needy children. There is no suggestion of drug, alcohol or mental health issues for either of you.
12 Importantly, you are both mature offenders with no prior criminal history and nothing subsequent. Although you both initially denied your offending, you ultimately pleaded guilty at the earliest time, which pleas have saved significant time, cost and inconvenience to the community and have been of utilitarian benefit, particularly as they avoided a trial which would have been complex and may have run for a couple of weeks. Accordingly, your pleas have served the ends of justice and for that reason alone there should be a significant discount in penalty. I am sure you regret your offending, but I am unable to conclude that you are remorseful for it. Ultimately, the pleas appear to respond to the significant forensic work which revealed your dishonesty.
13 You significantly cooperated with authorities concerning a complex consent confiscation order that you will pay $348,772 to the Crown, representing your equity in the properties at Tarneit, Caroline Springs and Keilor Downs. This figure will be paid by 18 October 2016 from borrowings secured against the properties you own. Failing that, the three properties will be forfeited to the Crown. Additionally, you will immediately forfeit $65,000 to the Crown, which is held by you in various bank accounts. The fourth property at Truganina was sold without net profit and is not subject to the forfeiture order. The making of this order means you will have suffered the significant financial penalty of $413,772 arising from your involvement with this offending.
14 Finally, as explained, there has been significant delay of about 2½ years to properly investigate the matter and resolve the other charges. All this time you have had the stress and anxiety of the matter hanging over you and the delay is all the more significant as there has been rehabilitation in the meantime in that neither of you have been charged or convicted of other criminal conduct and it does appear that you have moved on with your lives with continuing hard work and care of your two sons and their grandmother. I am satisfied that each of you have very good prospects of rehabilitation.
Other sentencing considerations
15 There are, of course, other important sentencing considerations. The first is that I must have regard to the maximum penalty of 10 years’ imprisonment, which does reflect the serious nature of the charge. Of course, that figure is reserved for the worse case, of which yours is not an example.
16 I must sentence you on the basis that you have acted recklessly as to whether or not the money you gained was the proceeds of crime, but not that you intentionally dealt with the proceeds of crime. However, your offending took place over a lengthy period of 13 months and persistently involved the use of sham documentation to suggest that legitimate rental income was earned from your ownership of the four properties. The use of “grow houses” to cultivate commercial quantities of cannabis is a prevalent and serious enterprise which ultimately trafficks cannabis into the community with its attendant negative effects upon our community and way of life. You are not to be punished for that nefarious activity but you each understood the properties were likely being used for this purpose and you were content to make money from such enterprise.
17 The parties are agreed that there is a proper legal and moral distinction to be drawn between you as co-offenders. This is because it is accepted that you, Mr Nguyen, played a greater role in the matter than your wife, in that you had direct contact with the occupiers of the premises and received cash money from them, you were the director. You, Ms Do, played the role of providing sham documentation and banking the proceeds, you were the administrator. Although you each engaged in serious offending, it is proper to impose different sentences upon you given the different roles you played and the hardship your children would experience with both parents incarcerated.
18 As to current sentencing practice, I did consider SAC figures for this offence for 64 offenders between January 2010 and December 2012 but they revealed a broad range of sentences and were not of great assistance. The prosecution presented a number of sentence cases concerning this offence, but in the next breath indicated that none of them contained any statement of principle and really did not need to be read. I did consider them but there was a broad range of sentences which reflected a wide array of factual circumstances, none like the present matter; and often the offender was dealt with for associated offences as well. They are not comparable cases and of limited assistance. Ultimately, every case must turn on its own facts and circumstances.
19 It was submitted that neither of you merit a custodial sentence. Whilst acknowledging that imprisonment must be a last resort, I do not agree with this submission. I accept the prosecution submission that yours is such a serious example of the offence that imprisonment should be imposed, given that your offence concerns such a substantial sum of money and your criminal conduct took place over a very lengthy period of time. The principles of general deterrence, just punishment and denunciation require the imposition of a custodial sentence against each of you. Given the period of offending, specific deterrence is of some relevance but considering your good characters, only to a limited extent. In light of the mitigating circumstances and the need to promote your rehabilitation, the prosecution accepted it was open to impose a wholly or partially suspended sentence of imprisonment.[2]
[2]The offence was committed before 1 September 2014 and was neither ‘serious’ nor ‘significant’ as those expressions were understood in the Sentencing Act 1991.
20 I must apply the principle of proportionality in your favour and avoid the passing of a crushing sentence upon you. I have considered the terms of the former section 27 of the Sentencing Act 1991 and I am satisfied that in light of the combined effect of the mitigating circumstances it is desirable that the sentences of imprisonment to be imposed should be, in your case Mr Nguyen, partially suspended, and, in your case Ms Do, fully suspended. In making that decision in your favour Ms Do, I have also considered the need for your children to have at least one parent to look after them.
21 Finally, on behalf of the community, I strongly denounce your offending.
Sentence Nguyen
22 Mr Nguyen, please stand up. In deciding to suspend part of the sentence of imprisonment to be imposed on you, I inform you of two things. First, that the purpose and effect of the proposed order for suspension is to enable your certain release from prison at a specified date in the future, once you have served part of the sentence. There will be no question of you being assessed as eligible for parole, nor any order for parole supervision. Secondly, once you are released from prison, the balance of the sentence will be suspended for a period of six months, which is known as the operational period. You will have that sentence hanging over you. You should understand that if, during the operational period of the sentence you commit another offence punishable by imprisonment whether in or outside of Victoria, in the absence of exceptional circumstances, you should expect to be brought back to Court and resentenced to the balance of the suspended sentence. Remember that there are many offences which are punishable by imprisonment, including driving offences. Do you understand what I have said?
23 OFFENDER NGUYEN: Yes.
24 HIS HONOUR: Thank you. On the charge you are convicted and sentenced to 12 months’ imprisonment. I order that six months’ of that sentence is to be suspended for a period of six months. I declare that the period of 21 days’ pre-sentence detention be treated as having already been served by you on that sentence to be served and direct that that declaration be entered in the records of the Court. But for your plea of guilty I would have sentenced you to 18 months’ imprisonment, with a minimum of 12 months to serve. Please sit down.
Sentence Do
25 Ms Do, please stand up. As indicated, I do propose to fully suspend the term of imprisonment to be imposed on you. I should inform you of two things. First, the purpose and effect of the proposed order for suspension is to enable your immediate release today. You will not be going to prison today. Secondly, the sentence will be suspended for a period of nine months, which is known as the operational period. You will have that sentence hanging over you. You should understand that if, during the operational period of the sentence, you commit another offence punishable by imprisonment, whether in or outside Victoria, in the absence of exceptional circumstances, you should expect to be brought back to Court and resentenced for the length of the suspended sentence. Remember, there are many offences which are punishable by imprisonment, including driving offences. Do you understand what I have said?
26 OFFENDER DO: Yes.
27 HIS HONOUR: On the charge, you will be convicted and sentenced to nine months’ imprisonment. I order that that sentence is to be wholly suspended for a period of nine months. But for your plea of guilty, I would have sentenced you to 12 months’ imprisonment to serve six months.
Ancillary orders
28 Mr Nguyen, please stand up again. Each of you have consented to the prosecution’s application for the taking of a forensic sample. I am satisfied that I should make that order for each of you, given the seriousness of the offending, the consent you have provided and that the granting of the order is in the public interest. Accordingly, pursuant to s464ZF(2) of the Crimes Act 1958 you are each ordered to undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Subdivision 30A of Part III of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. I should inform you that, notwithstanding your present consent, if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, which is a simple and painless process, 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. Please sit down for the moment. I hand that signed order to the prosecution.
29 Mr Valos, will you explain to Ms Do the process of attending the police station for that purpose?
30 MR VALOS: Yes, your Honour.
31 HIS HONOUR: As to the confiscation order, I note the filing of the minutes of the proposed consent order and I will sign the order. I hand that signed order to the prosecution.
32 I ask counsel are there any matters arising?
33 COUNSEL: No your Honour.
34 Ms Do, please come out of the dock and sit in court. Mr Nguyen, you need to go with the prison officers, thank you, please remove Mr Nguyen.
35 [Offender Nguyen removed]
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