Director of Public Prosecutions v Nguyen, Dat Tien
[2016] VCC 26
•8 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01750
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAT TIEN NGUYEN |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 27 January 2016 | |
DATE OF SENTENCE: | 8 February 2016 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v NGUYEN, Dat Tien | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 26 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – cultivation of narcotic plants – commercial quantity
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, s72A; Sentencing Act 1991; Crimes Act 1958
Sentence: Convicted and sentenced to a period of imprisonment of 10 months; s6AAA declaration: convicted and sentenced to 15 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Roper | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J Desmond | Victoria Legal Aid |
HIS HONOUR:
1 Dat Tien Nguyen, you have pleaded guilty to an offence that you, at Doncaster in Victoria between 14 July 2015 and 21 July 2015, cultivated a narcotic plant, namely Cannabis L, in a quantity that was not less than a commercial quantity applicable to that narcotic plant.
2 Such crime is contrary to s72A of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 25 years’ imprisonment.
3 The prosecution has prepared a written Summary of the circumstances surrounding the offending. Such Summary has been marked as an exhibit (Exhibit “1”) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such Summary are:
(a) That you are not quite 28 years of age, having been born in Vietnam on 16 February 1988. You came to Australia on a TU 572 Student Visa which lawfully entitles you to be in this country until 30 September 2016;
(b) After commencing an investigation into illegal drug activity at 17 Stanton Street, Doncaster, which I shall refer to as “the premises”, the police carried out surveillance of the premises between 15 July 2015 and 18 July 2015. During such time, a grey Audi sedan registered in your name attended the premises on two separate occasions;
(c) On 20 July 2015, the police attended the premises and again observed the Audi sedan parked in the driveway of the premises. At that time, police attended with a search warrant and knocked on the front door of the premises, at which time it was noticed that there was a strong smell of Cannabis. Forced entry was made to the premises where there was found a sophisticated hydroponic system being used to cultivate Cannabis throughout the house. In this respect, a book of photographs was tendered detailing what was found in the premises. (See Exhibit “2”);
(d) You were found in the basement of the premises where you were arrested. At that time, you were found in possession of the keys of the premises, the keys of the Audi sedan and also the Audi sedan registration;
(e) Examination of the Audi vehicle on 21 July 2015 found $150 in cash, and identification cards, including two Victorian Drivers Licences in your name;
(f) A search of the premises found eight separate rooms dedicated to the cultivation of Cannabis and hydroponic equipment, including light globes, light shrouds, water pumps, exhaust fans, charcoal filters, electrical timers, electrical power transformers and a small pH reader;
(g) In total, the police found 298 Cannabis L plants with a combined weight of 103.4922 kilograms. The Australian Crime Commission reports the current value of one mature Cannabis plant is between $2,000 and $5,000 and accordingly, the potential value for the entire fully grown Cannabis crop at the premises was between $596,000 and $1,490,000;
(h) When conveyed to the Box Hill Police Station you were interviewed with the assistance of a Vietnamese interpreter and, amongst other things, you stated:
§You had been in Australia for about two years and had met a friend named “Son” recently at a party and that “he offered me money to go water for two hours every day”;
§You meet up with Son every day at about 5.00 pm in Box Hill and you get paid “some days $500 cash and some days $1,000 cash”;
§That you had gone to the premises about six or seven times since about a week ago and that you attend every day after 7.00 pm, driving to the premises in the Audi sedan;
§That you go to the premises only to water the plants and that you had been given a key to the main door and stayed for about one or two hours watering the plants – half on one night and the other half on the following night;
§You stated that there were seven rooms containing Cannabis plants but you did not know how many plants there were;
§You denied helping Son set up the house, did not know how the plants got there and stated that the equipment was “already there” when you started;
§On 20 July 2015 when you were at the premises at the time of the police entering the premises, you stated:
“I was getting water from the bathroom, I ran to the basement because I heard banging noises on the door, I hid in the basement.”
4 You were charged on 21 July 2015 and at a committal mention on 15 October 2015, there was a hand-up brief following your plea of guilty. Counsel for the prosecution accepted that your plea of guilty was at the earliest opportunity.
5 Since your arrest on 21 July 2015, you have been in custody for a period of 203 days, up to and including 8 February 2016.
Your personal circumstances, educational and vocational background
6 Your counsel confirmed that you are a 27-year-old single student who came to Australia two years ago on a Student Visa.
7 Furthermore, he also confirmed that you were born in Vietnam in a coastal village called Nghe An, where your father was a fisherman. You attended school to the equivalent of Year 12, after which you commenced to work as a kitchenhand in Vietnam and hoped ultimately that you would have been trained as a chef.
8 On coming to Australia, you commenced a marketing course in Melbourne but did not complete such course as the English component was beyond you. Thereafter, you have had various periods of work in a Vietnamese restaurant and other manual employments. Immediate members of your family continue to live in Vietnam.
9 Up to the time of your arrest, you had been living in shared accommodation in Noble Park. Since your incarceration, you have had little contact with your family and you have instructed your counsel that because of your inability to speak English, you have found your period of incarceration to be very isolating as you are only able to speak to other Vietnamese prisoners. However, over the last month or so you have now obtained a job in prison.
Circumstances of your offending
10 Your counsel submitted that on your instructions, you met the person referred to as “Son” at a party and initially loaned him your car. After about two months of this occurring, you were asked by Son to water the plants at the premises for a period somewhere between a fortnight up to a month.
11 Again, on your instructions, the reason for your offending was that your father, who had commenced in work as a factory worker in Vietnam, had been made redundant, which placed a heavy financial strain on your family and caused marital difficulties between your parents in Vietnam.
12 Such situation was a source of stress for you and you wished to forward as much money as possible to your parents back in Vietnam to help support them.
13 There is no record of any offending of any type prior to the subject offending.
Submissions made by your Counsel in support of your plea in mitigation
14 Your counsel submitted that the following matters should be taken into account in mitigation of your sentence:
(a) You pleaded guilty to the offence at the earliest possible time which had the utilitarian effect of saving the time and cost of a trial;
(b) Such plea and your cooperation with police, evidenced by your full and frank answers to them during the investigation, is some evidence of remorse in relation to the offence;
(c) There is no record of any offending prior to this particular offence;
(d) That you were not involved in the set-up of the premises, obtained no benefit from the sale of the crop – other than being paid some cash to water the plants – and was in no way involved in any management decisions as to the criminal activity. In this sense, your counsel described you having a “low to intermediate role” in the scheme of the criminal activity undertaken;
(e) At the time of your apprehension, your involvement in the cultivation had only been for about a week or so and it was anticipated that your involvement would extend for a total period of somewhere between two to four weeks. Any benefit that you obtained was “very small” and consisted of the cash paid to you by “Son”;
(f) Although not a “young offender” by definition, you are still a relatively young man and have reasonable prospects for rehabilitation which should be assessed as “good”.
15 Your counsel submitted that in “normal circumstances”, a Community Correction Order would be appropriate. However, considering that you are on a Visa extending to 30 September 2016 and have the potential of being deported following any prison sentence, such a disposition would be inappropriate. It was submitted that an appropriate disposition would be for the sentence to represent the “time served” by you.
16 In response, counsel for the Director of Public Prosecutions generally accepted the propositions put by your counsel in mitigation of sentence but highlighted the following:
(a) The number of plants and the potential value of such plants were extremely high;
(b) In such circumstances, it is particularly important that any sentence reflect the principles of denunciation and general deterrence;
(c) Although it was clearly accepted that you were not the owner of such plants, and that your role was “minor”, you were still a necessary part of the operation.
Conclusion
17 The offence of cultivating narcotic plants – in this case, Cannabis – in not less than a commercial quantity is a serious offence, as clearly indicated by the maximum penalty of 25 years’ imprisonment. The potential sentence for such offence reflects the community’s desire to rid the community of illegal drug use and the various criminal activities associated with it.
18 In this case, it is important to remember that you have pleaded guilty to an offence which, because of the number of plants and the weight of the plants, is considered to be of a “commercial quantity”.
19 Consistent with the submission for counsel for the prosecution, the principles of denunciation and general deterrence are particularly important.
20 Notwithstanding the foregoing, I do accept that consistent with the submissions of your counsel, the following matters should be taken into account in mitigation of any sentence:
(a) Your plea of guilty was accepted by counsel for the Director of Public Prosecutions to be at the earliest possible time. Although the case against you would appear to have been quite strong, a plea of guilty at the very least has utilitarian value in saving the time and cost of a trial (see Phillips v The Queen [2012] VSCA 140 and in particular at paragraph [36]. However, it is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (again, see Phillips v The Queen op cit at paragraph [96]). In the circumstances of this matter, I do consider that the early plea of guilty, and more particularly the cooperation shown by you when dealing with the relevant authorities, does permit me to infer that you have some remorse for your offending;
(b) You have no criminal record;
(c) Your role in the offence can be described to be somewhat higher than “a sitter” but at the lower end of the chain, as you were only brought in to water the plants at a time when the criminal activity was well and truly established at the premises.
In this sense, your criminality was at the lower end, given that you had only then undertaken the watering for about a week and the extent of the job was for about two to four weeks on the available material. Furthermore, although you were paid some cash amounts for watering the plants, there was no suggestion that you would be involved in any distribution of the profits following the sale of the plants. Of course, as alluded to by counsel for the prosecution, it must not be forgotten that your role was a necessary role for the plants to flourish and be available for sale;
(d) You are still a relatively young man who hitherto, as I have noted, has no record of criminal activity and I accept that the dominating motive for your offending was to assist your family in Vietnam. I consider your prospects for rehabilitation are “reasonable”.
21 Your counsel submitted that you have the potential to be deported following any prison sentence served by you. As I understood the submission, such was not put as a mitigatory factor, but rather, in support of the submission that although a Community Correction Order would be appropriate in “normal circumstances”, such an order would be rendered futile if you were deported. Although not directly submitted, the same proposition could be said in relation to any non-parole period followed by a parole period. The issue of deportation in relation to the sentencing of an offender has become more certain since the amendment of the Migration Act 1958 (Cth) by the insertion of s501(3A). That section requires the relevant minister to cancel a visa if the visa holder is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a state or a territory, or if the person has been sentenced to a term of imprisonment of 12 months or more – see s501(3A)(a) and (b), s501(6)(a) and s501(7)(c) of the Migration Act 1958. This amendment was commented on by the Court of Appeal in DPP v Zhuang [2015] VSCA 96, wherein Redlich, Priest and Beach JJA stated:
“The issue of deportation and the consequences of the respondent were identified by the judge in a passage in his reasons that we have already set out above. His Honour took a very favourable approach to the issue so far as the respondent was concerned. No complaint of a specific error is made by the appellant in relation to the judge’s treatment of the issue of deportation. The judge’s conclusion, however, appears inconsistent with authority that deportation cannot be treated as a mitigating factor if, as the trial judge found, it is ‘not feasible to sensibly quantify the level of the risk that [the respondent] may be deported.
That said, since the sentencing of the respondent, the Migration Act 1958 (Cth) has been amended by the insertion of s501(3A). That section requires the relevant minister to cancel a visa of the kind possessed by the respondent if the visa holder is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory, or if the person has been sentenced to a term of imprisonment of 12 months or more. Absent some further amendment to the Migration Act between now and the completion of the respondent’s sentence, the respondent can now expect, with some certainty, to be deported upon her release from custody. That prospect presently being capable of quantification, it is now a mitigatory factor which, as the judge had already found, would increase the burden of her sentence. Whether the approach explicated the authorities in Guden and Peng will continue to apply in the light of the amendment to the Migration Act, which renders deportation certain in the case of certain offences, is not a matter we need to consider …” (See paragraph 54)
22 I consider it highly likely that you will be deported at the completion of any prison sentence, and I do consider it will be futile to order a Community Correction Order or, for that matter, order any particular parole period in all the circumstances. However, as I have noted, there was no particular submission that deportation should be seen as a mitigatory factor, and indeed, as I have already noted, your immediate family is in Vietnam and you seemingly have no established ties in Australia.
23 Taking all the foregoing matters into account I consider a custodial sentence to be appropriate.
Sentence
24 Please be upstanding, Mr Nguyen:
(a) In relation to the Charge, you are convicted and sentenced to a period of imprisonment of ten (10) months;
(b) I declare that you have served 202 days not including today as pre-sentence detention in relation to this offence and such period is to be administratively deducted from this sentence as time already served;
(c) Further, pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth until a sample of sufficient standard is obtained for the placement on the database. I must inform you that 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, 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;
(d) Further, pursuant to s77(1) of the Confiscation Act 1997, I order that the Cannabis cultivated and the equipment used in connection with the cultivation be disposed of;
(e) Further, pursuant to s32(1) of the Confiscation Act 1997, I order that the cash located in your vehicle when apprehended be confiscated.
(f) Pursuant to s6AAA of the Sentencing Act 1991, I declare that save for your plea of guilty, you would have been sentenced to a period of fifteen months’ imprisonment.
25 I have signed the relevant orders.
26 Anything arising out of this?
27 COUNSEL: No, your Honour.
28 HIS HONOUR: Yes. Very well. Take the prisoner. Yes. We will adjourn until 10.30 am.
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