Director of Public Prosecutions v Tan Thang Nguyen
[2022] VCC 695
•17 May 2022
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-21-01960
DIRECTOR OF PUBLIC PROSECUTIONS v TAN NGUYEN ---
JUDGE:
HIS HONOUR JUDGE ROZEN
WHERE HELD:
Melbourne
DATE OF HEARING:
29 April 2022
DATE OF SENTENCE:
17 May 2022
CASE MAY BE CITED AS:
DPP v Tan Thang Nguyen
MEDIUM NEUTRAL CITATION:
[2022] VCC 695
REASONS FOR SENTENCE
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Subject CRIMINAL LAW – Sentence Catchwords: Cultivating Cannabis Not Less than Commercial Quantity - Theft of Electricity - Intentionally Damaging Property - Cannabis Crop House - Crop Sitter.
Legislation Cited Drugs, Poisons and Controlled Substances Act 1981 (Vic.);
Sentencing Act 1991 (Vic.)Cases Cited Ngoc Nguyen v The Queen [1997] QCA 177; R v Nguyen [2021] VSCA 346; Commonwealth DPP v Thomas [2016] VSCA 237; Mohtadi v The Queen [2018] VSCA 238; Selaci v The Queen [2020] VSCA 276; Worboyes v The Queen [2021] VSCA 169; Dang v The Queen [2022] VSCA 69.
Sentence Three Years’ Imprisonment – Twenty Month Non-Parole Period ---
APPEARANCES:
Counsel Solicitors For the DPP Ms A. Liantzakis For the Accused Mr C. Nikakis HIS HONOUR:
1 Tan Thang Nguyen, you have pleaded guilty to:
a) a charge of cultivating cannabis in not less than a commercial quantity, which has a maximum sentence of 25 years' imprisonment;
b) a charge of theft of electricity, which has a maximum penalty of 10 years' imprisonment; and
c) a charge of intentionally damaging property, which also has a maximum penalty of 10 years' imprisonment.
2 I sentence you today on the basis of the Summary of Prosecution Opening dated 7 April 2022, which is an agreed summary. The following summary of your offending is drawn from the Opening.
Factual background
3 On 18 February 2021 police attended at 1 Fryer Court, Forest Hill, and executed a search warrant pursuant to section 81 of the Drugs, Poisons and Controlled Substances Act 1981 (Victoria). This attendance followed the receipt by police in early February of information from United Energy to the effect that the property was using a large voltage of energy but the voltage was not reflected in the meter reading. This is typically associated with use of premises for what is known as a cannabis crop house.
4 Police had also conducted surveillance of the property and had been informed by a neighbour that the property appeared to be vacant and that a male named “Toni” attended the property in a white van from time to time.
5 On 18 February 2021, after there was no response to their loud call of 'police, search warrant', police began to force entry. At this time you answered the door from inside the premises. Police saw small pieces of green vegetable matter on your clothes. You were alone in the house.
6 Upon entry police discovered a hydroponic cannabis grow house with plants at various stages of growth in five rooms. A total of 248 plants and a number of other items, including an iPhone and some written notes, were seized by police. Your fingerprints were located on the back of an A4 lined piece of paper found in the kitchen. Handwritten instructions on how to cultivate cannabis were written on the piece of paper. On the iPhone were photographs of a cannabis plant, an electrical bypass, and a note with instructions on how to cultivate cannabis.
7 The total weight of the seized plants was 72.37 kilograms. Approximately 63 of the plants were mature and the remaining 185 were seedling plants. The commercial quantity of cannabis is 25 kilograms or 100 plants. The number of plants seized was 2.4 times the commercial quantity by number of plants, and 2.8 times the commercial quantity by weight.
8 You pleaded guilty to cultivating the cannabis crop between 15 August 2020 and 18 February 2021, a period of a little more than six months and that is Charge 1, cultivation of a narcotic plant in not less than a commercial quantity.
9 A representative of United Energy also attended at the premises on
18 February 2021. He removed an electrical bypass located in the roof cavity. The total illegal use of electricity between 15 August 2020 and
18 February 2021 exceeded 69,557 kilowatts. That is Charge 2, theft of electricity.
10 The installation of this bypass caused the internal walls of the premises to be damaged, and that is Charge 3, intentionally damage property.
11 Later on 18 February 2021, you participated in a recorded interview with police officers at Box Hill police station. I will return to consider some of the answers you gave during that interview later in these reasons. At the conclusion of the interview you were charged and remanded in custody.
12 Section 5(2) of the Sentencing Act 1991 (Victoria) outlines the matters to which this court must have regard in sentencing you. Relevantly for your case I am required to have regard to the maximum penalty, the nature and gravity of the offences, your culpability and degree of responsibility for the offences, current sentencing practices, and your previous character. I will consider each of these in turn.
13 The maximum penalty for the offence of cultivating a narcotic drug in not less than a commercial quantity is imprisonment for 25 years. This reflects the seriousness with which Parliament views this offence. Further, the offence is a Category 2 offence, and as a result I must sentence you to a term of imprisonment unless one of the exceptions in section 5(2H), paragraphs (a) to (e) of the Sentencing Act 1991 applies. Your counsel did not argue that any of the exceptions applies in your case and I find that they do not.
14 The maximum penalties for Charges 2 and 3 are both 10 years' imprisonment.
15 An assessment of your culpability and degree of responsibility for the offences necessitates a consideration of a range of factors, including your role and position in the enterprise, the sophistication of the enterprise, and the quantity of the drugs involved.
16 On the question of your role, I note that you are the only offender who has faced charges in relation to this commercial crop. In your record of interview you said that you rented the house from the landlord. You stated that you go by the name Toni. You identified a woman, Ms Huan Nguyen, who you said had been growing cannabis plants at the house. You said that she paid you $3,000 per month, from which you paid the landlord $2,000 each month. Ms Nguyen has not been charged and does not appear to have been located by police.
17 You also told police that on the day of your arrest you had gone to the house to cut the plants and clean up the house for which you were being paid an additional seven or eight thousand dollars.
18 You explained that it was the money and 'a bit of greed' that motivated you to be involved in the cultivation of the crop as you were stuck for money after you lost your job during the pandemic.
19 In written submissions the Director of Public Prosecutions submitted that your offending 'falls in the mid-range of objective gravity', having regard to the period of cultivation, your motivation for offending, and the quantity of cannabis involved.
20 In the case of Ngoc Nguyen v The Queen, the Court of Appeal emphasised that the role that an offender plays in a drug cultivation enterprise 'is an important factor relevant to an assessment of the culpability of the offender'.[1] However, as the court accepted in that case, 'it is not always possible to specify the position and role of an offender' in a particular case. Similarly, the label attached to an offender's role should not distract attention from the tasks performed by the offender in the enterprise.
[1]Ngoc Nguyen v The Queen [2017] VSCA 286 at [27].
21 At the hearing of your plea, your counsel, Mr Nikakis, submitted that you were 'probably more than a crop sitter but certainly not the ultimate owner' of the crop. Ms Liantzakis for the DPP accepted that while you were not a mere crop sitter, nor were you the principal offender.
22 You have pleaded guilty to cultivation over a period which exceeds six months. This is a lengthy period of offending. However, on the limited evidence before me it is clear that you were not a principal of the kind discussed by Redlich JA in the case of Nguyen.[2] There is no evidence that you owned the crop or other equipment at the premises, that you sourced nutrients for the crop or invested your own funds in the crop cultivation.
[2]Nguyen (2016) 311 FLR 289, 310 [63].
23 The evidence is that you rented the house, you were present at the house on a number of occasions and you were harvesting the crop on the day of the police raid. I can infer that you had some involvement in looking after the crop based on the evidence of instructions on your phone and the evidence of your fingerprints on the written instructions for cultivating cannabis.
24 As noted in paragraph 7 above, the crop was large as measured both by its total weight and the total number of plants. Further, the arrangement was quite sophisticated having regard to the electric bypass and the presence of overhead electrical wiring and lighting in several rooms of the home.
Current sentencing practices
25 I turn to consider current sentencing practices. I was referred by the prosecution to R v Nguyen [2021] VSCA 346 at paragraphs 39 to 41 which the DPP submitted provides 'clear guidance from the Court of Appeal that the sentencing principle with general deterrence and denunciation for crop sitters required the imposition of an immediate term of imprisonment'. In that case, a sentence by this court of 18 months' imprisonment with a 12 month non-parole period was left undisturbed by the Court of Appeal.
26 However, there is a number of relevant differences between that case and the present one which I consider make it of limited assistance to the court in the present matter. The differences include:
(a) the charge in that case was one of cultivating narcotic plants contrary to section 72B of the Drugs, Poisons and Controlled Substances Act 1981 which carries a lower maximum penalty than cultivating a commercial quantity;
(b) The offender 'had only been at the premises for a couple of days' and was less culpable than his co-offender;
(c) The quantity of cannabis involved was only 31.52 kilograms; and
(d) the offender had been stabbed while in prison awaiting sentence and faced the risk of deportation.
27 The DPP in this case did not provide the court with a table of similar cases but did attach to its submissions the most recent snapshot from the Sentencing Advisory Council. That document describes sentencing outcomes for the offence of cultivating a commercial quantity of narcotic plants in both this court and the Supreme Court between 2016 and 2021. The document reveals that during that time 345 people were sentenced for cultivating a commercial quantity of narcotic plants, and that 97.4 per cent were given a principal sentence of imprisonment. However, the document says nothing about the circumstances of individual cases and is therefore of no assistance to the court in determining current sentencing practices for the reasons explained by the Court of Appeal in the case of the Commonwealth DPP v Thomas.[3]
[3] [2016] VSCA 237 at [182].
28 In assessing current sentencing practices, a court is not limited to the materials provided to it by the parties. As the Court of Appeal explained in Commonwealth DPP v Thomas:
'In order to achieve systematic fairness, a sentencing judge with or without the assistance of the parties must inform themselves as to any relevant history of sentencing patterns within which a sound exercise of the sentencing discretion may be made'.
29 Given the importance of the quantity of the drugs under cultivation to the assessment of objective seriousness, decisions of the Court of Appeal in cases where facts were closer to those in the present case include
Mohtadi v The Queen[4] and Selaci v The Queen[5]. In each of these the offender pleaded guilty to cultivation of a commercial quantity of Cannabis.[4] [2018] VSCA 238.
[5] [2020] VSCA 276.
30 In Mohtadi the offender cultivated 77.63 kilograms of Cannabis and the period of offending was two months. Although he was not the principal he 'played an important role in the existence and maintenance of the set up in his home'. A sentence of three years and eight months with a non-parole period of 20 months was described as both 'reasonable and appropriate' by the Court of Appeal.[6]
[6] [2018] VSCA 238 at [50].
31 The quantity of the drugs in Selaci was also a little over three times the commercial quantity. The offender was sentenced as a principal. A total effective sentence of 3 years 10 months, with two years 2 months non-parole was described by the Court of Appeal as 'quite moderate'.[7]
[7] [2020] VSCA 276 at [15].
32 While these cases provide me with some guidance, limited assistance is to be gained from earlier cases. As the Court of Appeal stated once again in Thomas, 'Sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished'.[8] All cases turn on their own particular facts.
[8] [2016] VSCA 237 at [176].
33 The final matter of general principle to which reference should be made is the repeated indications by the Court of Appeal that sentences for commercial quantity cultivation are too low having regard to the maximum penalty and the need for denunciation and general deterrence.[9]
[9] See Minh Tri Nguyen v The Queen [2021] VSCA 211 at [44]-[45].
34 Finally, I must have regard to your previous character. The information before me about your personal circumstances is quite limited. No character references or expert reports were relied upon by your counsel.
35 You were born in Vietnam in 1973. At the time of your offending you were
47 years of age and you are now 48. In 2009 you moved from Vietnam to Australia and you married the following year. In 2012 your wife gave birth to your daughter, and in 2014 you became an Australian citizen.
36 Your daughter is now 10 years old and lives with her mother in Deer Park. You are no longer married to your daughter's mother. You remain close to your daughter and try to have as much contact with her as you can.
37 You are a house painter and your business was significantly affected by the COVID-19 pandemic. It was submitted on your behalf that at the time of your offending you were facing financial pressure to support your daughter.
38 Upon your arrest on 18 February 2021, you were remanded in custody where you underwent 14 days of quarantine at the Melbourne Assessment Prison. You were subsequently transferred to the Melbourne Remand Centre where you experienced lengthy periods of lockdown during which you were largely confined to your cell. You are currently at Fulham Correctional Centre where there are some Vietnamese speaking offenders. Since your incarceration you have not had any face to face visits. Your counsel submitted that you have completed courses whilst in custody, however I note no course details or certificates were provided to the court.
39 This is your first time in custody. Importantly you have no criminal history whatsoever, and you are entitled to the full benefit of this, particularly having regard to your age, now 48 years. You do not suffer from dependency on drugs or alcohol.
40 In the circumstances having regard to your plea of guilty representing, as it does, remorse, your age, your good prior character and your family responsibilities I assess your prospects of rehabilitation as good.
41 I take into account the greater utilitarian benefit of your guilty plea at this time than would be the case in normal pre-pandemic times. As the Court of Appeal stated in Worboyes v The Queen, your guilty plea in current circumstances attracts an 'additional augmented mitigatory effect on sentence' because it 'will benefit the beleaguered administration of justice' in this state.[10] You must benefit from a 'perceptible amelioration of sentence'. [11]
[10]Worboyes v The Queen [2021] VSCA 169 at [35].
[11]Barnard v The Queen [2022] VSCA 42 at [18].
42 I note that the Court of Appeal has more recently, on more than one occasion, stated that what it said in Worboyes is no 'empty platitudeness mantra'.
43 I note further that cases such as Mohtadi and Selaci, which I have discussed above at paragraphs 29 to 31, were decided before the Court of Appeal decided Worboyes.
44 Mr Nguyen, you are convicted and sentenced as follows:
45 On Charge 1 of cultivation of a narcotic plant in not less than a commercial quantity, three years' imprisonment.
46 On Charge 2, theft of electricity, six months' imprisonment.
47 On Charge 3 of intentionally damaging property, the prosecution accepts that there is no evidence of the repair costs, making any assessment of the relative seriousness of the offending difficult. Further, there is no evidence that you installed the bypass and the charge is therefore put on the basis that you were complicit in the offending. I sentence you to three months' imprisonment on this charge.
48 Charge 1 is the base sentence. Historically in such cases courts have ordered that part of the sentence for the theft of electricity be served cumulatively on the base sentence. This is because the theft conceals the cultivation offence and makes it more profitable.[12] However, in the very recent Court of Appeal decision of Dang v The Queen, that court held that a theft of electricity charge in a cultivation case such as the present one is 'inextricably linked with, and part of the cultivation charge'. [13] Having regard to totality, the sentence according to the Court of Appeal in Dang should be served concurrently with the sentence on the cultivation charge.
[12] See Nguyen v The Queen [2013] VSCA 63 at [30].
[13]Ibid at [35].
49 In response to a question about Dang from the Court during the hearing of the plea, counsel for the DPP submitted that the court would not fall into error if the sentences on Charges 2 and 3 were ordered to be wholly concurrent on the base sentence. Consistently with the decision in Deng v The Queen I order that the sentences on Charges 2 and 3 be served concurrently on the sentence imposed on Charge 1. The total effective sentence is therefore three years' imprisonment.
50 I order that you serve 20 months before becoming eligible for parole.
51 I declare that 453 days, not including today, be reckoned under section 18 of the Sentencing Act 1991 as pre-sentence detention.
52 Pursuant to the Confiscation Act 1997 (Victoria), I make the forfeiture and confiscation orders sought by the prosecution, noting that they are not opposed.
53 Finally, pursuant to section 6AAA of the Sentencing Act 1991 I declare that had you pleaded not guilty to the charges and had you been found guilty of each of them after a trial, the sentence I would have imposed would have been a total of four years and six months, with a minimum term of three years
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