Director of Public Prosecutions v Nguyen, Duc Nhan
[2018] VCC 392
•7 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-17-01776
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUC NHAN NGUYEN |
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JUDGE: | HER HONOUR JUDGE CONDON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February 2018 | |
DATE OF SENTENCE: | 7 March 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Nguyen, Duc Nhan | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 392 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of cultivate narcotic plant - commercial quantity - – one charge of theft – summary charge of dealing with proceeds of crime
Legislation Cited: Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981, s72A and s74(1); Sentencing Act 1991
Cases Cited: Nguyen v R (2016) 311 FLR 289; [2016] VSCA 198
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For Prosecutions | Ms S Holmes | Office of Public Prosecutions |
| For the Accused | Mr S Lindner | Ann Valos Criminal Law |
HER HONOUR:
1 Duc Nhan Nguyen, you have pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant, one charge of theft, and to a summary charge of dealing with property suspected to be the proceeds of crime. The maximum penalty for cultivate a commercial quantity of a narcotic plant is twenty-five years’ imprisonment, the maximum penalty for theft is ten years’ imprisonment and the maximum penalty for deal proceeds of crime is two years’ imprisonment.
2 The exact circumstances of your offending are contained in the Summary of Prosecution Opening which was exhibit “A” upon the plea in mitigation; however, I will briefly summarise your offending.
3 On 15 June 2017, police attended at an address at 5 Harrington Drive, Narre Warren South to execute a search warrant. They forced entry into the premises and identified that the property was being used to hydroponically grow Cannabis. Cannabis was being grown in five bedrooms of the premises and there was an electrical bypass in place.
4 Police located and seized $1,435.00 in your wallet. Upon a search of the house, they found twelve Cannabis plants in Room 1, nine Cannabis plants in Room 2, thirty-nine Cannabis plants in Room 3, nine Cannabis plants in Room 4 and nine Cannabis plants in Room 5. (This constitutes Charge 1 – cultivate commercial quantity of Cannabis).
5 The 78 plants were identified as Cannabis L, with a combined weight of 91.06 kilograms. Energy Australia calculated the amount of the energy stolen as a result of the electrical bypass was $24,096.50. (This constitutes Charge 2 – theft).
6 You were interviewed on the same day, where you made the following admissions:
(i)that it was your house;
(ii)that the cannabis plants belonged to you;
(iii)that you believed there were 78 plants; and
(iv)that you grew the plants.
7 You indicated your intention to plead guilty to these matters on 4 September 2017 at the committal mention. In the circumstances, I find that it is a plea of guilty consistent with the desire to facilitate the administration of justice and with remorse.
8 You are currently forty-seven years of age. You were forty-six years of age at the time of these offences. With the exception of one previous court appearance on 14 August 2012 for possess Cannabis, resist police and deal with property suspected of being the proceeds of crime, you have no prior criminal history.
9 As to the motive for your offending, this was not disclosed in the record of interview. I was told by your counsel that in the period leading up to the commission of these offences, you were a daily Cannabis user, spending approximately $50 per day. It was submitted on the plea that you envisaged consuming at least some portion of the crop. Given the objective circumstances surrounding your offending (including the weight of the plants), I will proceed to sentence you on the basis that some profit was anticipated from this commercial enterprise, albeit one where you were the sole proprietor. I also accept that there is no evidence before me which indicates that you were part of a larger criminal enterprise or that any other third parties was involved.
10 The prosecution submitted that I should sentence you on the basis that your moral culpability is more serious than that of a crop sitter. Furthermore, it was submitted that you are at the lower end of the category referred to as ‘Cluster 2’ in the Court of Appeal decision of Nguyen v R.[1] I accept that submission.
[1](2016) 311 FLR 289; [2016] VSCA 198
11 Therefore, in assessing your role in this offending, I have taken into account the following circumstances:
· You were the sole proprietor.
· The weight of the plants is in excess of three times the threshold for a commercial quantity (25 kilograms).
· That whilst it was not overtly sophisticated, the diversion of electricity reflects some infrastructure, designed as it was to conceal your offending.
· The period of the cultivation, which was between 6 March 2017 and 15 June 2017.
12 You have been in custody since 15 June 2017. You are currently incarcerated at Fulham Correctional Centre and whilst there, you have undertaken courses to improve your English and in occupational health and safety. Both of these matters are to your credit. This is your first experience of life in gaol.
13 At the time of your arrest, you were in Australia pursuant to permanent residency. About one month prior, in May 2017, you applied for Australian citizenship. I accept that the burden of imprisonment will be increased for you by dint of, firstly, your cultural and linguistic isolation and secondly the risk of deportation faced by you at the conclusion of a term of imprisonment.
14 I turn now to your personal circumstances.
15 You were born in Hai Phong, Vietnam, the youngest of eight children. You left school in Grade 3 to help support your family. In 1985, some ten years after the conclusion of the Vietnam War, you were forced to attend a re-education camp where you were made to perform hard labour whilst still a teenager. In 1989, you were able to flee Vietnam to Hong Kong by boat and you were there held in immigration detention for seven years. Whilst in immigration detention in Hong Kong, you met a woman who was to become your second wife. In 1996, you were deported back to Vietnam and lived with your mother. In 2002, you married your first wife. There were two children of that union. Your eldest daughter, Vy, who currently resides in Australia with family friends. Your younger daughter lives in Vietnam with her mother and you have no contact with either your ex-wife or your youngest daughter.
16 In 2008, whilst in Vietnam, you reignited the relationship with the woman you had met earlier in Hong Kong immigration detention. You married her in Vietnam in that same year and she was an Australian citizen. In 2010, you both came to Australia and you began work as a seasonal farm labourer in South Australia and Victoria, and in the same year you became a Cannabis user and regularly started to gamble, playing poker machines. In 2016, you separated from your second wife when she became unable to tolerate your self-destructive behaviour, which included heavy Cannabis use and gambling on the pokies.
17 Present in Court was your oldest daughter, Vy Nguyen. She is 15 years of age and a year 10 student at Fountain Gate Secondary College. Your time in custody has clearly had a profound impact on her. She wrote a reference which was tendered on the plea as exhibit 3. In the course of that letter, she describes how you taught her to do well in school, focus on her education and to be a good girl. She also describes you as being a very hard worker and that she looks up to you, appreciates you and thanks you every day for what you have done for her and what you are willing to do for her. She also said that you have apologised to her for putting her through this. She is your only relative in Australia.
18 You do not receive any visits in custody and the only contact you have is from daily telephone calls with your daughter, Vy.
19 Tendered on the plea was a psychological report from Ms Alison Mynard, clinical psychologist, exhibit 2. She describes you as having some insight about the wrongfulness of your actions. She assessed you as having Post-Traumatic Stress Disorder as a consequence of the range of traumatic experiences you have had in your life. In particular, she notes that the most traumatic time for you was when you were in detention in Hong Kong and the horrors that you witnessed. She considers that you suffer from a Major Depressive Disorder, Drug induced psychosis, gambling use disorder and cannabis use disorder. In her view, you have self medicated through your entrenched Cannabis use, and used gambling as a “quick fix” for avoidance of loneliness, isolation and negative emotional states.
20 In the course of written submissions, it was contended that principle 1 of R v Verdins was enlivened. Reduction of the sentence was said to be warranted because of “the conditions suffered by Mr Nguyen early in his life, his mental health issues and cannabis addiction were contributing factors to his offending conduct.” As I made clear in the course of the plea, this was not a case where the evidence before me enabled reliance on any of the limbs outlined in R v Verdins.
While Ms Mynard expressed a view that incarceration could inflame your symptoms of PTSD and depression, this was contingent upon there being no treatment options available for such conditions whilst in custody. No evidence was placed before me that this was indeed the case.
21 You have no formal psychological or psychiatric history as such. You do not take any prescription medication, nor have you ever. Whilst incarcerated, you have not been attended upon by any prison mental health professionals beyond the standard assessment upon reception into prison by either psychiatrists or psychologists. In Ms Mynard’s opinion, you require psychological support to assist you to combat psychological difficulties in order to reduce your chances of relapsing into Cannabis use and potential subsequent offending.
22 Given the relatively minor infraction in 2012, for which you received a bond, I am of the view that your prospects for rehabilitation are generally good.
23 In the course of his plea in mitigation, your counsel submitted that I should rely upon the following factors in mitigation of sentence:
· Your plea of guilty.
· Your admissions to police.
· Your difficult background growing up in war-torn Vietnam and subsequent traumatic experiences as a refugee.
· Your limited prior criminal history.
· The fact that at forty-seven years of age, you are experiencing your first time in custody.
· The prospect of deportation and consequent separation from your daughter, Vy.
24 It was submitted that whilst these offences are serious, the manner of your offending and absence of any further significant related charges places you at the medium to lower end of the sentencing scale and that a Community Corrections Order is an appropriate disposition.
25 As I indicated in the course of the plea in mitigation with your counsel, I am of the view that in the circumstances of this case the offending is too serious to warrant a non-custodial disposition. While it is true there is no evidence that you were part of any greater criminal enterprise, this offending remains serious.
26 The basic purposes for which a court may impose sentence are punishment, deterrence – both specific and general – rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it and your personal circumstances.
27 However, I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, offenders are rehabilitated and reintegrated into society.
28 Please stand Mr Nguyen.
29 In relation to Charge 1, being a charge of cultivate a commercial quantity of a narcotic plant, I sentence you to 20 months’ imprisonment.
30 In relation to Charge 2, being a charge of theft, I sentence you to 6 months’ imprisonment.
31 I order that 4 months of the sentence on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.
32 In relation to Charge 6, being the summary charge of deal with proceeds of crime, I sentence you to one month’s imprisonment. I order that this sentence be served wholly concurrent with the sentences imposed on Charge 1 and Charge 2.
33 That makes for a total effective sentence of 2 years’ imprisonment and I impose a period of 14 months before you become eligible for parole.
34 Pursuant to s18(4) of the Sentencing Act 1991, I declare that you have spent 265 days (not including today) by way of pre-sentence detention.
35 Pursuant to s6AAA of the Sentencing Act 1991, were it not for your plea of guilty to these offences, I would have imposed a sentence of 4 years’ imprisonment with a non-parole period of 2 years.
36 I make the orders in the terms sought, being a forensic sample order, a disposal order and a forfeiture order.
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HER HONOUR: You may be seated, Mr Nguyen. Is there anything arising, counsel?
MS HOLMES: Your Honour, there's also a compensation order sought.
HER HONOUR: Yes, I saw that.
MS HOLMES: Yes.
HER HONOUR: I'm not going to order that.
MS HOLMES: No issue with that, Your Honour.
HER HONOUR: No.
MS HOLMES: It's sought as a matter of - - -
HER HONOUR: It's a substantial amount.
MS HOLMES: It's sought as a matter of - - -
HER HONOUR: Mr Nguyen's going to be punished from - by dint of imprisonment, and I'm sorry, corporations such as Energy Australia can - I made my point, I'm not making that order.
MS HOLMES: Thank you, Your Honour.
HER HONOUR: All right. But all the other orders are made.
MS HOLMES: It's sought as a matter of course - - -
HER HONOUR: Yes, I know.
MS HOLMES: - - - when theft is on the indictment, but I have no issue with that.
HER HONOUR: I know, I appreciate that - - -
MS HOLMES: Thank you.
HER HONOUR: - - - but I'm not going to make that order.
MR LINDER: I have no submissions at this point.
HER HONOUR: All right. Well we'll adjourn the court until 10.30, thank you.
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