Director of Public Prosecutions v Nguyen & Ors
[2023] VCC 242
•22 February 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02464
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IGNATIUS SMITH RANDY NGUYEN LE PHUNG |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 February 2023 | |
DATE OF SENTENCE: | 22 February 2023 | |
CASE MAY BE CITED AS: | DPP v Nguyen & Ors | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 242 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Pleas of Guilty – Cultivating a Narcotic Plant – Cannabis L. – Three co-accused – Relatively minor role in operation – Involvement as 'crop sitter or cutter'– Seriousness elevated by quantity and complexity – Prospects of deportation – Demonstrations of remorse – Bugmy inapplicable – General deterrence – No prior criminal histories
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 72B; Crimes Act 1958 (Vic)
Cases Cited:Ngoc Nguyen v The Queen [2017] VSCA 286; The Queen v Pham [2015] HCA 39; DPP v Doran [2005] VSCA 271; Bugmy v The Queen [2013] HCA 37; Boulton v The Queen [2014] VSCA 342
Sentence: Smith – Conviction; Imprisonment (52 days); CCO (30 months, 150 hours unpaid community work)
Nguyen – Conviction; Imprisonment (29 days); CCO (30 months, 150 hours unpaid community work)
Phung – Conviction; Imprisonment (29 days); CCO (30 months, 150 hours unpaid community work)
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Paganis | Office of Public Prosecutions |
| For the Accused Smith For the Accused Nguyen For the Accused Phung | Mr P. Bloeman Mr T. Battersby Ms J. McGarvie | Giorgianni & Liang Lawyers Giorgianni & Liang Lawyers Fayman Lawyers |
HER HONOUR:
Ignatius Smith, Randy Nguyen and Le Phung, you have each pleaded guilty to one charge of cultivating a narcotic plant, Cannabis L.[1]
[1]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 72B.
The maximum penalty for the charge is 15 years’ imprisonment.
At the time of the commission of these offences, you were living together, along with your wife, Mr Smith, and your four children. You, Mr Nguyen and Ms Phung, are married; Mr Smith is married to Ms Phung’s elder sister, making her your
sister-in-law.
On your plea, a prosecution opening originally filed on the accused's application for summary jurisdiction and revised on 22 February 2023 was tendered and became Exhibit A and forms the factual basis for this sentence; it is attached to and forms part of these reasons. I will not repeat each fact here but summarise the factual basis for your pleas in this way.
In March 2021, police began an investigation into the cultivation of cannabis at a house in Bentleigh culminating in the execution of a warrant on 16 March 2021. You were all found in the house. Your car, Mr Smith, was in the garage. Spread over three separate rooms was a complex hydroponic cannabis crop: air conditioning units, lamps and irrigation was in place to service the crop. Windows were sealed from heat and light. A large amount of cannabis was found in tubs around the house.
Police located and seized the following items from various parts of the property:
·room 1: 29 Cannabis plants;
·room 2: 8 Cannabis stems with leaves and buds;
·room 3: harvested cannabis plant material, two buckets of cannabis buds, a bag filled with cannabis trimmings and a mobile phone (originally attributed to you, Mr Smith, but I understand now the prosecution no longer press that assertion) and
·an electrical bypass was found in the garage.
In total, the cannabis located and seized at the house is of a combined weight of 95.48 kilograms.
You Mr Smith and you Mr Nguyen were photographed with cannabis residue on your clothing that day, this was apparently also observed, but not photographed, on you Ms Phung.
You were each arrested. You Mr Nguyen exercised your right to silence. You Ms Phung answered questions, essentially to the effect that you had just arrived at the property and had no involvement in the cultivation taking place there.
You, Mr Smith, said that you were asked to go to the property by a person named ‘Thai’ who gave you the remote to the garage. You said that you had essentially been engaged by Thai to harvest the crop, which caused your attendance for the first day being 15 March 2021, returning the following day, 16 March 2021. You told the police you had been promised $750 per day for the first two days, then another $1500 for another two days.
The owner of the property was spoken to; he told police he had leased the house to a person named Daniel, also known as Anh Nguyen. The property owner had been provided with false documents in the rental process.
As I said, assertions originally made about the contents of a phone originally attributed to you Mr Smith, were ultimately abandoned. Ms Phung you were found with a phone with a 'Ring' application on it, which linked your phone to the doorbell at the property. DNA on a shower cap found in room 3 of the property was linked to you Mr Smith and you Ms Phung.
Nature and gravity of the offending
Cultivation of cannabis is an inherently serious offence, by reference to the maximum applicable penalty and it is plain by reference to authority that those who profit from exploiting others' misuse of drugs fall to be sternly punished.
You have each pleaded guilty to 'cultivating simpliciter' but the quantity involved, being 95.48 kilograms, does elevate the seriousness of your offending. The setup used to farm this indoor crop was complex and extensive. It involved bypassing the electricity, though I note there is no proof that any of you participated in that side of the operation.
In analysing how the nature and gravity of such an offence might be assessed, in Ngoc Nguyen v The Queen, the Court said:
'[Relevant] factors ordinarily include matters such as the tasks performed by the offender in the enterprise, the nature of his relationship with the principals or leaders of the enterprise, the degree of trust and responsibility reposed in the offender, the size, scope and sophistication of the enterprise, and any expectation of the offender in respect of the rewards to be derived from the enterprise.'[2]
[2][2017] VSCA 286 [27].
I observe that the charge pertains for two of you to a single day, the day of the warrant's execution on 16 March 2021, on the basis that you Mr Nguyen and Ms Phung, were there for the purpose of harvesting the cannabis on just that one day. The Crown asserts of you Mr Smith, that it cannot prove any particular act undertaken by you on the first day of your attendance other than your presence; the Crown does not dispute that your role was that of 'crop sitter or cutter'. The person who rented the premises is not said to have been you, Mr Smith.
I am also aware that the quantity of the drug involved, was a substantial one in this case. However, I must also be careful to not allow that quantum to become the controlling factor in my assessment of the seriousness of your offending.[3] It is not of little moment, but I pay due regard to the other features relevant to your role and culpability.
[3]The Queen v Pham [2015] HCA 39 [42].
By reference to the quantum of drugs involved, but balanced by your brief relationship to this operation, I find your culpability in the overall enterprise to fit in the low range of seriousness in the scale of similar offending.
Personal Circumstances
Ms Phung
You are now 30 years old, were born in Vietnam and your family, who were farmworkers, lived in poverty in that country. You completed a degree in early childhood learning in Vietnam and worked in that role until you came to Australia in 2016 on a spousal Visa sponsored by a man who is now your ex-husband. You met Mr Nguyen through your brother-in-law Mr Smith, and on 6 January 2018, you married and you plan to have a family in the future. You have worked as a nail technician consistently since your arrival in Australia. You are a permanent resident but not a citizen of Australia. Your father is 65 years old now and is retired. Your mother passed away in 2020 in difficult circumstances; given travel restrictions you were unable to be with her in her final days. You have an older sister and younger brother both still in Vietnam. I have taken into account the employment reference of Ms Loan Chong, who employs you at her nail salon and writes of your kindness to the other staff, your popularity with customers and your hard-working nature.
Because you are still not a citizen of Australia, you face some prospect of deportation as a result of these matters, and I accept that the uncertainty of that has weighed upon you both in the time that you spent in custody and on this period while on bail.
You have no prior convictions nor subsequent charges. You have strong family support, stable accommodation and consistent employment. I find that your prospects of rehabilitation are excellent.
You spent 29 days in custody on this case in the onerous conditions imposed by the COVID-19 pandemic and with little ability to communicate with other prisoners due to your limited English.
Mr Smith
You are now 53 years old and you were born in Ho Chi Min City in Vietnam in 1969. Your father served in the South Vietnamese army during the war and served time as a prisoner of war in that conflict. Your father was imprisoned after the North Vietnamese takeover of the South and your father's imprisonment caused your family to suffer extreme poverty; your father passed away in 1991.
You were educated until Year 7 but at the end of the war children who had 'worked for' the South were excluded from further education. In 1988 you finally fled, successfully arriving in Malaysia, staying there about 12 months and reaching Australia in 1989. Your family joined you some years later.
You have worked solidly ever since as a kitchen hand, a restaurant worker, a cleaner and in other roles. You have been married to Ly for 13 years. You have four children aged between seven and 25 who are all studying or working. Your 11-year-old suffers from a range of developmental and other problems and needs extra care. You also care for a nephew, a 13-year-old whose family still live in Vietnam. You are now an Australian citizen. You changed your name to ‘Ignatius Smith’ after a family with that name supported you when you arrived in Australia. I have taken into account the personal references for you tendered on your plea. Ms Jane Martin writes warmly of your participation in the school community that she leads and of your care for the children in your care and your generosity with providing Vietnamese food for school events. Your son Quan, an aviation student, writes with great affection of the unrelenting service you have given your family and the wider community.
Mr Nguyen
You Mr Nguyen are now 28, and you were 26 at the time of your offending. You were born in Australia, raised primarily by your mother. You have one sister younger than you. You were educated in Melbourne, and after completing Year 12, went to RMIT and completed a diploma and an advanced diploma in interactive digital media.
After you graduated you worked as an environmental services officer at Crown Casino for five years; but lost that role as a result of these charges.
Since your release on bail, you have worked in large hotels. You have been in a relationship with your co-accused, Ms Phung for five years and I have taken into account the letter of your sister Lisa Nguyen, who writes of your hard-working and loyal nature in your family. She also writes about changes you have made to your life since your release from custody and her observations of your resolve and determination since that time.
Matters in mitigation
All accused
You have each pleaded guilty, I note to a lesser charge than that originally alleged, and therefore stand to receive a significant utilitarian benefit. You have each saved the community the cost and difficulty of a trial, moreover you have done this in the wake of the COVID-19 pandemic - a fact which renders your pleas of guilty even more valuable than in normal times and this will be taken into account on your sentence.
You each spent a period of time in custody during some of the more difficult days of the pandemic and all the anxiety and privations that formed part of the custodial landscape at that time, and I have taken that into account.
You each have no criminal history and come before the court as a person of previous good character and I take that important feature of your cases into account.
I find in relation to each of you that you have strong, excellent even, prospects of rehabilitation: you do not have drug or alcohol issues, you each have a warm and supportive family, a good employment history and prospects and have each complied with your bail for over 21 months.
Circumstances of Delay
Each of you have had these charges hanging over your head for a very long time; this has prevented you Ms Phung and Mr Nguyen from starting the family that you desire; it has also established that you have each been able to conduct yourselves properly in the community and establish the beginnings of your rehabilitation. I take the punitive aspect of the delay into account as well as what you have been able to do in the community since being granted bail.
I find that both by your pleas and by your response to your charges you have each demonstrated remorse for your participation in this offending.
Ms Phung
Of particular of note in your case Ms Phung is the fact that your citizenship status is less assured than your co-accused and although I will not be imposing a sentence that incurs an automatic triggering of the cancellation provisions under the Migration Act, this has been by no means a certain outcome during the period you have awaited your sentence and there may still be some uncertainty from this feature in the future and I take this into account.
Mr Smith
Turning to you Mr Smith. You made admissions to being at the house for an additional day and this is the only evidence the prosecution had of this fact and as such you are entitled to a discount pursuant to the principal in the case of DPP v Doran;[4] you establish the Crown case against yourself (about that day) and this allows me to make other positive findings in relation to you on this sentence: particularly specific deterrence, remorse, and rehabilitation. There are also public policy considerations in rewarding those who assist in their own prosecution.
[4][2005] VSCA 271.
You Mr Smith, at the time of the offending, were assisting a family member in obtaining medical treatment. You borrowed money to do this and your repayment of the money was in some ways linked to your participation in this offending.
On your case your barrister submitted that the principle in the case of Bugmy[5] applied in mitigation. I acknowledge that your early years as a child in Vietnam and your flight as a refugee from that country were periods of enormous difficulty for you, however the rest of your life suggests that you have been resilient and hardworking and have not carried those burdens in ways that have blighted your conduct more generally. I do take your background into account as I must, but under the more general rubric of taking your personal circumstances into account. I do not apply the Bugmy principle in your case.
[5]Bugmy v The Queen [2013] HCA 37.
Applicable sentencing principles
General deterrence must be a significant feature of this sentence. I find that the protection of the community is best achieved by your rehabilitation and by a sentence that best supports you not reoffending and does not risk your corruption by exposure to the conditions of imprisonment.[6] Each of you have, as a person of prior good character and no prior convictions, spent a period of time in custody prior to your release on bail and I have no doubt this was a painful and shocking experience for each of you, given your backgrounds and your lack of experience in such an environment. I find that specific deterrence has been affected by these terms of imprisonment substantially; it will not benefit the community to have any of you exposed to that environment for any longer than is absolutely necessary. You must also of course be justly punished for what you did and this sentence must denounce your conduct publicly.
[6]Boulton v The Queen [2014] VSCA 342 [109]-[110].
Parity
I have given parity considerations some thought. Mr Smith's liability is by a small margin the greater, having made admissions to presence on an additional day, but there is otherwise little or nothing to distinguish you either on liability or in mitigation.
Consideration
I have considered the gravity of this offending and your personal circumstances and the matters put on your behalf. It is clear that there is a very substantial role for general deterrence in cases where people seek to profit, however modestly, from the production of drugs that damage people’s lives. Balanced against this is the futility of imprisoning people with your lack of criminal history and good prospects of rehabilitation. I have also taken into account in my consideration of the applicable sentence, that the prosecution submitted that a combination sentence in this case was not outside sentencing range.
In the end, I will impose on each of you a period of imprisonment either equal to, or slightly beneath the time you have already served, in combination with a community corrections order. I have considered whether to attach special conditions to these orders and have concluded, given your lack of prior history and good health, the only condition will be on each of you 150 hours of unpaid community work.
So Mr Smith, if I could ask you to stand up for me please.
On the charge of cultivating cannabis, Mr Smith you are convicted and sentenced to 52 days imprisonment in combination with a Community Corrections Order of 30 months duration with 150 hours unpaid community work to complete. Thank you, Mr Smith, you can take a seat.
Mr Nguyen, if you could stand up for me please.
On the charge of cultivate cannabis, Mr Nguyen you are convicted and sentenced to 29 days imprisonment in combination with a Community Corrections Order of 30 months duration with 150 hours unpaid community work. You will note that I have made the sentence of imprisonment to be equal with that already served by Ms Phung. Thank you, Mr Nguyen, you can take a seat.
Ms Phung, if you could stand for me please.
On the charge of cultivate cannabis you are convicted and sentenced to 29 days imprisonment in combination with a Community Corrections Order of 30 months duration with a condition of performing 150 hours unpaid community work. Thank you, Ms Phung, you can take a seat.
I declare in relation to Mr Smith's sentence, 52 days imprisonment already served to be deducted from this sentence.
In relation to Mr Nguyen, I declare 29 days imprisonment already served to be deducted from sentence and I note, but do not declare, the additional 20 days already served.
In relation to Ms Phung, I declare that 29 days imprisonment be declared and deducted from the sentence as already served.
Pursuant to s 6AAA of the Sentencing Act I note that had you not pleaded guilty but been found guilty after trial, which is in this case a particularly artificial exercise, I would have imposed a sentence of three years with a non-parole period of two years.
Ms Paganis, are forfeiture and disposal orders sought?
MS PAGANIS: Yes, they should be, but we haven't drafted them yet, Your Honour, which is an oversight on our behalf.
HER HONOUR: I see.
MS PAGANIS: We can send them through, if that is all right, if no party takes issue with that.
HER HONOUR: I take it it will be a classical one for the destruction of the - - -
MS PAGANIS: The plants, the plant material, yes.
HER HONOUR: - - - the plants and there was no cash or anything like that, was it? So it will simply be - - -
MS PAGANIS: No. It will be basically the substance of paragraph 13 essentially.
HER HONOUR: Yes. Does anyone have anything to say in relation to an order, a future order that is to be drafted?
MS PAGANIS: I am so sorry, Your Honour, it should have been - it's complete oversight.
HER HONOUR: I will make the order in chambers. There is no objection, I take it?
COUNSEL: No, Your Honour.
HER HONOUR: All right. Counsel, just a moment, my associate will just need a moment to print the orders and I would like each of you to take a moment with the assistance of Madam Interpreter, to explain the orders that your clients are about to consent to, and also just to make sure that your clients are being sent to the appropriately located Community Corrections Office. Please give your clients some advice about their obligations under the order and in a moment if they are agreeable to committing themselves to undertaking the order, they will be signed and signed by me. I will stand down for that process to occur.
(Short adjournment.)
HER HONOUR: Yes, counsel have you each had an opportunity to explain the terms of the various orders to your clients?
COUNSEL: Yes, Your Honour.
HER HONOUR: All right, before I forget I would like to thank Madam Interpreter for her work today, it's not easy, I can see. It's a business up there, thank you, Madam Interpreter.
INTERPRETER: Yes, thank you, Your Honour.
HER HONOUR: I will sign the orders now and you can take a copy with you as you leave. Thank you, and I will note that without opposition the order for disposal will be made once those draft orders are submitted to my chambers, Ms Paganis.
MS PAGANIS: It's just been sent through to your associate, literally as Your Honour was coming on the Bench.
HER HONOUR: Terrific, all right. I will attend to that today.
MS PAGANIS: There was a few items we had to put in it but it was essentially what is in the opening.
HER HONOUR: Paragraph 13, yes.
MS PAGANIS: Yes. And the toothbrush and the shower cap and some latex gloves that were used, and all the items in relation to the electrical bypass, yes.
HER HONOUR: Good, all right, thank you for your assistance with this case.
MS PAGANIS: Thank you, Your Honour.
HER HONOUR: Thank you, counsel.
COUNSEL: Thank you, Your Honour.
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