Director of Public Prosecutions v Thai Son Nguyen
[2017] VCC 1008
•28 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00194
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THAI SON NGUYEN |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 July 2017 | |
DATE OF SENTENCE: | 28 July 2017 | |
CASE MAY BE CITED AS: | DPP v Thai Son Nguyen | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1008 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Drugs, Poisons & Controlled Substances Act 1981; Sentencing Act 1991; Crimes Act 1958
Cases Cited:Boulton & Ors v R (2014) 46 VR 308; R v Mills (1998) 4 VR 235; Pitone v R [2017] VSCA 3; Azzopardi & Ors v R (2011) 35 VR 43
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms K. Churchill | Office of Public Prosecutions |
| For the Accused | Mr L. Gwynn | Valos Black & Associates |
HER HONOUR:
1
Thai Son Nguyen, you have pleaded guilty to one charge of cultivating
a narcotic plant (commercial quantity). The maximum penalty applicable for that offence is 25 years’ imprisonment.
2 This crime arises from events which culminated on 18 July 2016, when police attended a property in Sidbury Avenue, Wendouree.
3 It is not necessary for me to recount in great detail the facts in this matter, as the matter was opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious.
4 I turn to a background of your offending.
5 You are a Vietnamese citizen and entered Australia on a student visa in 2014. You are 22 years of age at the time of sentence, 21 at the time of your offending.
6 Your co-accused in this offending, Truong Van Nguyen, is also a Vietnamese citizen and came to Australia on a spousal visa in 2012.
7 Your co-accused is proceeding to trial which, I understood, is listed in October 2017. It is not proposed that you will give evidence on behalf of the prosecution at that trial.
8 I turn to your offending.
9 At 9.30 am on 18 July 2016, police conducted surveillance at 17 Sidbury Avenue, Wendouree and observed a 2005 Honda Accord (registration 1HH 1BP), parked in the carport of the house behind closed gates. That car was registered in the name of your co-accused.
10 At approximately 3.34 pm, police re-attended that address in Sidbury Avenue and executed a search warrant, pursuant to the Drugs, Poisons & Controlled Substances Act 1981. You and your co-offender were inside the house.
11 Police walked to the front door and called out, “Police. Open the door.” There was no reply, so they forced entry into the house. Upon entry, you and your co-accused ran down the hallway and tried to flee out the back of the house. Police yelled out, “Police. Don’t move” and they managed to apprehend both you and your co-offender. You were both arrested and cautioned.
12 Police conducted a search of the house and inside located a hydroponic cannabis set-up, operating throughout five rooms. Located were 265 cannabis L plants in various stages of growth, with a total weight of 153.17 kilograms (approximately six times the quantity for commercial quantity).
13 An electrical bypass had been installed which facilitated a bypass of the electricity meter of the house and the unlawful use of electricity supplied by Red Energy to run the hydroponic set-up. The total amount of electricity stolen from Red Energy was 41513 kilowatts an hour (uncharged).
14 Police took photographs at the house and also seized items associated with the hydroponic set-up, as set out within the Prosecution Opening(paragraph 8).
15 On the kitchen bench there was a Samsung mobile phone which belonged to you and an iPhone 6 mobile phone which belonged to your co-accused, together with a set of eight keys on a key tag with ‘house’ written on it. Those keys contained a key for the Honda motor vehicle and house keys for the Sidbury Avenue property, which opened the entrance and rear garage doors of the house. The prosecution alleges that those keys belonged to your co-accused.
16 Located in the centre console of the co-accused’s motor vehicle were the items referred to in the Prosecution Opening (paragraph 11), and as amended when read into the transcript, specifically referrable to moneys located.
17 You were arrested, taken to Ballarat Police Station and interviewed. In that interview you made a number of admissions.
18 This matter resolved to a plea of guilty on the morning of the committal on 7 February 2017, prior to any witnesses being called. You were charged on 18 July 2016 and went into custody on that date. At a committal mention, the matter was listed for contested committal on 7 February 2017. Counsel, who then appeared on your behalf, made an offer to the prosecution prior to any witnesses being called, as per the current indictment. That offer was accepted by the prosecution and you pleaded guilty on 7 February 2017. The matter then came to this court for your plea hearing on 17 July 2017. I accept, therefore, you have pleaded guilty at the earliest opportunity, and that in your record of interview you made a significant number of admissions regarding your role in this offending.
19 You are entitled to have the fact of your plea of guilty and the timing of it taken into account in your favour and I do so. The community, by your plea, has been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial.
20 I also accept, as stated, you intimated your intention to plead guilty early and note in that regard, you made admissions to police when interviewed. In the circumstances, I am prepared to accept your plea of guilty indicates remorse for your offending.
21 You do not have any prior court appearances, nor any subsequent appearances, which means you have not come to the attention of the police in Australia since you arrived on a student visa in 2014.
22 Mr Gwynn prepared an outline of written submissions for your plea hearing and addressed them during it.
23 Mr Gwynn submitted, and it was conceded by the prosecution, your role was properly categorised as a “crop-sitter”. The prosecution also conceded your participation in this offending was restricted to the date on the indictment, being 18 July 2016. Prior to that, there had not been any surveillance of you, or any other evidence suggesting involvement by you in this crop.
24 In your record of interview, you told police your role was to water the plants and that you had appropriate knowledge regarding the lighting. You were there on this day with the co-accused, you said, to harvest the mature plants. You admitted your role in this offending was for financial reward, saying you hoped to receive $5,000 once the crop was harvested.
25 Mr Gwynn conceded general deterrence was an important sentencing consideration and that a term of imprisonment was warranted in all of the circumstances of this case, his submission ultimately directed to duration. That, in my opinion, was a sensible concession.
26 Mr Gwynn submitted there are a number of matters that put you in good stead for your future rehabilitation, referring to your plea of guilty to the charge, including such being indicative of remorse. As I have said, I accept that is so.
27 Mr Gwynn also referred to your extensive admissions in the record of interview, including your knowledge there was a commercial quantity of plants involved.
28 Further, that you did not have any prior or subsequent convictions.
29 Mr Gwynn also relied upon your youth as a relevant sentencing consideration, being 21 at the time of this offending and as I have said, 22 at time of sentence.
30
You are currently in adult prison and he submitted you presented as someone who was young and were somewhat vulnerable. He referred me to the decision of R v Mills[1] and also Pitone v The Queen[2], with reference to the focus on
a young person’s rehabilitation prospects.
[1] (1998) 4 VR 235
[2] [2017] VSCA 3
31 It is important to bear in mind that the principles in Mills, however, are general propositions and are not of usual or automatic application. Each case depends on the circumstances of the offending, as well as the offender (see DPP v Lawrence[3]).
[3] (2004) 10 VR 125
32 The relevance of rehabilitation was, however, as I recently referred to in Pitone (paragraphs 19-21).
33 Mr Gwynn also submitted your admission that this was a commercial quantity was significant, as there were no fingerprints, no surveillance of you and no DNA evidence to place you at the scene, apart from this day.
34 Mr Gwynn submitted you were not a user of illicit substances and, as such, were not encumbered by issues which would otherwise stand in the way of your successful rehabilitation.
35
He further submitted the time you had spent on remand of approximately
364 days, as at the date of your plea hearing, had been a salutary lesson.
36 Mr Gwynn referred to your parents being aware of your incarceration, however had not been able to visit you. You planned to return to Vietnam upon release from custody to resume living with them. You felt relatively isolated in custody, with no other family in Australia. There have been rare visits by friends, but not in any great number. You had some telephone conversations with your parents.
37
While in custody, you have studied English, a course you completed and were currently studying mathematics. According to Mr Gwynn’s written submissions, you had also been working as a cleaning billet in your unit at Fulham Prison.
A Certificate of Completion of the Problem Gambling Program – Vietnamese, was also before me.
38 Turning to your arrival in Australia on a student visa, I was told you were given a visa as part of a ‘package’, which meant you were required to initially enrol in two English courses. Those were completed by you. The second course, apparently, completed on 14 June 2016, however, you received notification from the Department of Immigration you had not met the requirements of the visa, as you had not enrolled in another course to commence after that date. Then, of course, on 18 July, you were arrested for the offending before me. Your student visa had initially been granted on 20 January 2014 and enabled you to study Information Technology. Ultimately, your visa was cancelled in January of this year. The time to lodge an appeal against that decision had passed and you would be returning home upon release.
39 You instructed you wanted to return to Vietnam to be with your parents. Mr Gwynn submitted your imprisonment had weighed heavily upon you in the interim.
40 He submitted that general deterrence need not loom large as a sentencing consideration in your case.
41 Mr Gwynn submitted you had excellent prospects of rehabilitation. I am satisfied your prospects are good.
42 Details were provided within Mr Gwynn’s outline of your personal history. You were born in Central Vietnam, your father is 49, your mother 47. You have two younger sisters, 16 and 12, and you were educated to the Year 12 equivalent in Vietnam. Your parents operate a modest wholesale business in Vietnam, selling coffee beans and you have previously worked in that business and hoped to continue with that when you return to Vietnam.
43 You did not have any health problems, nor were you on any prescribed medication.
44 Mr Gwynn’s primary submission was that I should sentence you to time served, that to impose a term of imprisonment with a community correction order to follow would not be possible, given your current visa status. His other submission, without abandoning his primary submission, was that if I imposed a sentence of a term of imprisonment, it should allow for a non-parole period close to the time you had already spent in custody.
45 Ms Churchill, on behalf of the prosecution, conceded the admissions you made to your offending were significant. Your plea of guilty was important and was entered early. She conceded there was no other evidence to suggest your involvement in this property, except for your admissions and being seen there on that day. She conceded your rehabilitation prospects were favourable, in part, due to your youth.
46 The prosecution submission was that a head sentence with a non-parole period was appropriate in all the circumstances.
47 There has recently been an analysis of sentencing for cultivating a commercial quantity of cannabis in Nguyen v The Queen[4]. There is no doubt the courts regard offending such as yours very seriously indeed, noting as I do, your role as ‘crop sitter’ and how that was defined.
[4] [2016] VSCA 198
48 The court observed that over the last decade, the court has directed attention to the seriousness of this offence (cultivation of a commercial quantity of a narcotic plant), its increasing prevalence and the inadequacies of the existing practice. In Nguyen the court cited Doan v The Queen[5], in which the Court agreed:
[5] [2010] VSCA 250
“It is instructive that over the last decade this court has directed attention to the seriousness of this offence, its increasing prevalence and the inadequacies of the existing practice. A useful starting point is Doan v R. T Forrest AJA, with whom Nettle and Harper JJA agreed, said:
The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum of 25 years imprisonment. Whilst there is no doubt that the role played by the appellant was of a menial nature, it was nonetheless necessary for the crop to flourish. The maximum penalty fixed by Parliament unambiguously demonstrates how seriously the community views this conduct. See DPP v Duong. Recently in this court, emphasis has been placed upon the importance attached to sentencing judges having regard to the maximum sentence fixed by Parliament. See Nguyen v R, DPP v CPD. This court has also emphasised recently that general deterrence is an important consideration in sentencing for this type of offence, R v Mason, and that the link between general deterrence and the increasing prevalence of this offence is readily apparent.
Nettle JA, with whom Harper JA agreed, further observed that there should be no doubt that in cases involving cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of sentencing considerations so that ‘an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.’
Next in Nguyen v The Queen[6], Maxwell P said:
[6] [2010] VSCA 127
As has been regularly pointed out in sentencing decisions, this is an offence for which Parliament has set the highest fixed maximum in the criminal calendar: 25 years’ imprisonment. As Buchanan JA noted in DPP v Duong, the maximum of 25 years shows unambiguously how seriously the community, through the Parliament, views this conduct.
And it is of course irrelevant which drug is being cultivated. So much was made clear by the decision of this Court in Pidoto. Since that 2006 decision, the sentencing regime has remained unchanged. There has been no move to establish a scheme under which the sentencing court is expected to decide whether one drug is more harmful than another. As the court said in Pidoto, this is a quantity-based sentencing regime. Although quantity will not bear an arithmetical relationship to sentence, the quantity involved is a very significant matter in sentencing for these offences.
This court has referred regularly in the last 12 months to the obligation of sentencing judges to have regard to the maximum sentence fixed by Parliament. As the Court said in DPP v CPD:
The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice. But sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty.
In Duong, Buchanan JA said:
Generally this offence requires substantial punishment. The increasing number of hydroponic crops of cannabis detected in the last few years is material.
In The Queen v Mason, his Honour said:
General deterrence is an important consideration in sentencing for the offence of cultivation of a commercial quantity of cannabis.
The link between increasing prevalence and general deterrence is self-evident.” (see Nguyen[7] paragraphs 139 to 141).
[7] [2016] VSCA 198
49 Regarding current sentencing practices, Court of Appeal Redlich JA in Nguyen said:
“The current sentencing regime has persisted for far too long. It has wrongly informed community thinking and left misconceptions unaltered in some parts of the community about the seriousness of such conduct.
For the immediate future, sentencing courts must, by increments, increase the sentences for mid-category offending, so that the range of sentences is uplifted and substantially expanded. To enable the identification of the correct sentence for particular offending conduct, CSP for that category of seriousness of the offending must be sufficiently broad to encompass a wide range of criminal conduct within that category of the offence. The corrected range should include sentences that have previously been reserved for offending which fell at the lower level of the upper category of seriousness. The uplifted range should not include sentences that have previously been reserved for less culpable offenders such as crop sitters falling toward the upper end of the lowest category.”
50 The court focussed on uplifting mid-range offending and yours is less culpable.
51 In my opinion, to impose the primary disposition urged by your counsel would not adequately or appropriately reflect all relevant sentencing considerations.
52 As well as those matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
53 Specific deterrence need not loom large in the sentencing process, as I note you do not have any prior criminal history or anything subsequent and your offending was on one day.
54 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending.
55 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
56 I sentence you as follows.
57 On Charge 1, convicted and sentenced to 2 years’ imprisonment and I direct you serve a period of 13 months before you are eligible for parole.
58 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of this offence following jury verdict, I would have sentenced you to a term of imprisonment of 3 years and 6 months, with a non-parole period of 2 years and 6 months.
59 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 375 days in custody, I would like that checked, (up to and including yesterday, 27 July) and I direct that that be entered into the records of the court as pre-sentence detention. We will come back to that in a minute.
60 The prosecution made application, pursuant to s.464ZF Sentencing Act 1991 for a forensic sample. This was consented to by counsel on your behalf. I make the order in the terms sought. It will be for a saliva sample and I do that on the basis of the seriousness of your offending. I must advise you the authorities may use reasonable force in order to obtain that sample.
61 The prosecution also made application for a disposal order in relation to the drugs and equipment that was seized from the property. Again, your counsel consented to the order being made on your behalf, and I make the order in the terms sought.
62 I did not think there were any other matters. Now how did we go with the PSD? Have a seat for the minute please.
63 MS CHURCHILL: Your Honour, I had calculated 375, up to and including yesterday. On mine.
64 HER HONOUR: Well, why not, 375.
65 MR GWYNN: Agree, Your Honour.
66 HER HONOUR: All right, so it is 375.
67 MS CHURCHILL: Yes.
68 HER HONOUR: So in general terms, and I do not want anyone quoting me on the maths, he has done about a year and ten days, give or take. Is that 365 plus ten?
69 MS CHURCHILL: That is right, Your Honour.
70 MR GWYNN: Yes.
71 HER HONOUR: And he has got another - and add 13 months, so it is about 20 days, do not quote me on that, to go. Does that sort of make sense?
72 MS CHURCHILL: That is about right, Your Honour, yes.
73 MR GWYNN: It does, Your Honour.
74 HER HONOUR: So that you can explain that to him.
75 MR GWYNN: Yes, Your Honour.
76 MS CHURCHILL: Yes.
77 HER HONOUR: That is the upshot of it, without doing the exact days.
78 MR GWYNN: Yes.
79 HER HONOUR: All right. Can I thank you both for your assistance.
80 MR GWYNN: Thank you.
81 HER HONOUR: Is there anything further? No?
82 MR GWYNN: No, thank you.
83 MS CHURCHILL: No, Your Honour.
84 HER HONOUR: All right, well thanks for that. So, Mr Nguyen, you know, ask Mr Gwynn, but it is about 20 more days to go and that is the end of that non-parole period, all right? We will see what happens after that. All right?
85 MS CHURCHILL: Yes, Your Honour.
86 HER HONOUR: Thanks for that everyone.
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