Director of Public Prosecutions v Thanh Cinh Nguyen
[2020] VCC 754
•1 June 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-20-00324
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANH CINH NGUYEN |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2020 | |
DATE OF SENTENCE: | 1 June 2020 | |
CASE MAY BE CITED AS: | DPP v Thanh Cinh NGUYEN | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 754 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - Sentence – Early plea of guilty to cultivation of a commercial quantity of cannabis and possession of a small amount of methylamphetamine for personal use – Crop sitting role over two months in exchange for residing at crop house rent-free – Crop only slightly exceeded statutory threshold for a commercial quantity – Relevant criminal history for drug-related offending – Charged and remanded in custody before Covid-19 pandemic reached Australia – Total effective sentence of 3 ½ years with a non-parole period of 2 ½ years – Pre-sentence detention of 182 days declared – 6AAA indication: but for the plea of guilty, a total effective sentence of 4 years and 9 months with a non-parole period of 3 ½ years would have been imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms C. Cameron | Office of Public Prosecutions |
| For the Accused | Mr G. Davis | Ann Valos Criminal Law |
HIS HONOUR:
Introduction
1 Thanh Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant (Cannabis L) in a quantity that was not less than a commercial quantity (charge 1) and another of possess a drug of dependence (methylamphetamine) (charge 2). Those offences carry maximum custodial penalties of 25 years and 1 year, respectively.[1]
[1] The maximum penalty for charge 2 is based on an acceptance by the prosecution and the Court that Mr Nguyen possessed the methylamphetamine for his own use rather than for any purpose related to trafficking.
2 I have had regard to the amended typed prosecution opening which your counsel acknowledged could be treated as an agreed statement of facts for sentencing purposes.[2]
Circumstances of the offending
[2] Exhibit A, dated 26 May 2020.
3 On the morning of 2 December 2019, you were apprehended attempting to flee a residential address in Sunshine West which police had attended to execute a drugs search warrant. You and the other male present, your friend, Vuong Phat, were duly apprehended and later interviewed.
4 During the subsequent search, police located Cannabis plants in two bedrooms of the house (rooms 1 and 2) and in two bedrooms of a rear bungalow (rooms 3 and 4).
5 Rooms 1 and 2 contained identical hydroponic set-ups which included globes, a self-watering system and a charcoal filter. Room 1 contained 50 medium sized Cannabis plants while room 2 contained 6 large Cannabis plants. Room 3 contained 48 juvenile Cannabis plants. Room 4 contained 11 large Cannabis plants and a hydroponic set-up that included globes and a self-watering system.
6 In total, therefore, police located 115 Cannabis plants, the combined weight of which was later found to be 32.69 kilograms (charge 1).
7 I note that this was a little over the statutory threshold for a commercial quantity of Cannabis, which is 100 plants or 25 kilograms.
8 While an illegal electrical bypass was located at the premises, you were not charged in respect of that.
9 When police searched the bedroom in which you were staying, they located a snap lock bag containing 0.63 grams of the drug, methylamphetamine, which you later told police was yours. Your admitted possession of that drug forms the factual basis for the possession offence alleged in charge 2.
10 By contrast, you later denied possessing the larger amount of methylamphetamine found in the same room (22.5 grams). You are not charged with or to be sentenced for that amount. I mention it only by way of background and context, just as I have done in respect of the illegal electrical bypass.
Arrest and interview
11 After your arrest, you were interviewed by police with the assistance of an interpreter. Among other things, you told police that your friend Tam had allowed you to stay at the premises rent-free for the preceding month or two on condition that you took care of the plants by watering them. You had understood that growing those plants was illegal but decided to ‘take the risk’ as you had nowhere else to stay. You went on to explain that you had been the only person caring for the plants during that period. According to you, Tam had only attended from time to time, while your other friend, Vuong, had just been visiting. You admitted to possessing the smaller quantity of methylamphetamine and explained that you had been smoking it just before the police attended the premises. In relation to the larger quantity of methylamphetamine, you told police that it belonged to ‘others’ who attended the house.
Pre-sentence detention
12 As you have remained in custody since the date of your arrest, you have now spent 182 days in pre-sentence detention for this matter, not including today’s date. That period will be declared shortly, when you are formally sentenced.
Guilty plea, remorse and level of co-operation
13 I note that this matter resolved at the earliest reasonable opportunity; namely at the first committal mention hearing on 25 February 2020.
14 You are entitled to and will receive a significant sentencing discount for taking that course as and when you did. It has saved the community from the cost and time of a trial and shows remorse on your part.
15 The admissions that you made to police went well beyond a bare acknowledgement of being involved in cultivating the crop on the day of your arrest. You volunteered the fact that you had been performing a crop sitting role for up to two months by that time. It was only because of that admission that you were able to be charged with and prosecuted for a two-month between dates cultivation rather than a single date cultivation. Had you not been so forthcoming and faced a commercial cultivation charge at trial, you would have had an arguable defence as the prosecution would have faced some difficulty proving that you had the requisite state of mind regarding the commercial quantity of the crop.
16 So, the relevance of that admission extends well beyond a mere demonstration of remorse on your part. It represents a higher level of co-operation than is usually seen in this type of offending. Accordingly, I have had regard to it and given it appropriate weight when determining the sentence to be imposed in this case.
Criminal history
17 As the criminal record filed with this court shows, Mr Nguyen, you have a very relevant and concerning criminal history for drug-related offending.
18 On 18 July 2011, you were sentenced in this Court for two charges of trafficking in a drug of dependence. Charge 1 related to heroin and charge 2 concerned methylamphetamine or MDMA.[3] A total effective sentence of 3 years’ imprisonment was imposed, of which 2 years was suspended for an operational period of 2 years. 19 days of pre-sentence detention was declared.
[3] The criminal record does not record what type of drug and the sentencing reasons are somewhat contradictory; suggesting at [1] that it was methylamphetamine and at [5] that it was MDMA.
19 I have read the sentencing judges’ reasons for imposing that sentence on you.[4] The offending occurred on 16 May 2010 and was clearly serious. On that day, police intercepted and then searched the vehicle you were driving. Under the bonnet, they discovered 411.7 grams of heroin of 50 per cent purity and 4.7 grams of MDMA of 90 per cent purity.[5] You and your passenger were charged on an acting in concert basis; it being put that the two of you obtained the drugs in Sydney and then transported them to Melbourne in your vehicle. You told police that you had agreed to do so in exchange for being paid $5,000. I note that you were sentenced on the sole basis that you were found in possession of trafficable quantities of those two substances. The heroin had a wholesale value in excess of $100,000 and a street value in excess of $300,000. I also note that in addition to being sentenced to a partially suspended sentence, your car was forfeited as tainted property.
[4] [2011] VCC 942 (Judge Allen)
[5] Ibid, at [5].
20 Later, on 20 June 2014, you were sentenced in the Melbourne Magistrates’ Court to an aggregate term of 18 months’ imprisonment for one charge of trafficking heroin and two charges of deal with property suspected of being proceeds of crime. The brief summary of that offending provided by the prosecution at this plea hearing,[6] reveals that it occurred on 20 November 2013 and involved the sale of two rocks of heroin for $2,000 and the possession of two separate sums of cash which totalled $5,845.[7]
[6] Undated (part of exhibit B).
[7] Made up of separate amounts of $1810 and $4035.
21 You have other findings of guilt and convictions as well.
22 On two occasions in 2001, you were fined for having entered a casino whilst on an exclusion order; on the first occasion without conviction and on the second occasion, with conviction.
23 Finally, and most recently, on 16 June 2015, you were sentenced to an aggregate term of 5 months’ imprisonment in relation to one charge of deal with property suspected of being proceeds of crime and a related charge of breaching the prescribed terms/conditions of your parole. As the prosecution summary provided for that offending makes clear,[8] it occurred on 23 February 2015 and involved your possession of over $20,000 in cash that police located at your home while executing a drugs search warrant.
Personal circumstances
[8] Part of exhibit B
24 I now turn to your personal circumstances, Mr Nguyen.
25 I commence by noting that you were aged 50 years during the period of your current offending. You are now aged 51, having been born on 1 January 1969.
26 You were born and raised in a rural area near Saigon, Vietnam. You are the second youngest of nine children. Your parents worked in the local rice paddies and the family was poor. You left school in Year 9. You are literate in Vietnamese but not English.
27 At age 18, you avoided being conscripted into the army by fleeing Vietnam on a fishing boat. It was an arduous trip which culminated in you spending 3 years living in crowded conditions at a Malaysian refugee camp. From there you travelled to Australia with refugee status. You have since obtained Australian citizenship.
28 You began speaking English in Malaysia and then studied English for about 3 months following your arrival in this country. You then commenced work, picking fruit. After that, you and a number of friends ran an industrial pressing business for about five years. You then ran your own textile sewing business until it was forced to close due to declining levels of work. Since that time, you have only been able to secure intermittent casual work when not in receipt of unemployment benefits.
29 Over the years, you have maintained phone contact with your parents and siblings, all of whom have remained living in Vietnam. You have visited them on one occasion, in 2012. You have felt guilt over the years for not visiting them more frequently and for not providing them with financial support. That sense of guilt was exacerbated in 2019, when your parents died within a couple of months of each other.
30 You lived in a de facto relationship with a woman named Lam Trinh for approximately 7 years, between 1991 and 1998. That relationship broke down as a result of your then significant gambling addiction. You have three adult children from that relationship; two sons and a daughter, all of whom remained living with your partner after the separation. Your contact with your children declined somewhat during and following your previous incarceration. You feel a sense of guilt and shame for not being able to better provide for them. However, you profess to remain committed to them and aspire to obtain future employment so that you can be a better provider for your family.
31 Your life became transient and unstable after the breakup of your defacto relationship. Your life then spiralled downwards when your mother became terminally ill. When, a short time later, she and then your father passed away, you suffered from overwhelming grief, as well as feelings of helplessness, guilt and shame. You turned to drug use and quickly developed an addiction to ‘Ice’. In that context, you accepted an offer to tend the subject cannabis crop in exchange for being able to live at the premises rent-free. Being financially strapped and homeless at the time, you decided to accept the offer and take the risk.
32 You were assessed by the clinical psychologist, Alison Mynard, on 14 May this year. I have had regard to her report of 21 May when determining the sentence to be imposed in this case.[9]
[9] Exhibit 2 on the plea.
33 In her view, you presented as someone without any thought disorder or cognitive deficits likely to significantly impair your insight or judgement into your current behaviour or offending behaviour.[10] You are in reasonable physical health for someone of your age.
[10] Ibid, page 5.1.
34 You do not consume alcohol but commenced using methylamphetamine on learning that your mother was terminally ill. You continued using it for about 5-6 months until your arrest in late 2019.[11] You profess to now being aware of the dangers of using that drug, which you acknowledge is addictive. You deny ever using any other type of drug.
[11] On the plea, Mr Nguyen’s counsel indicated that the drug use had commenced earlier, after Mr Nguyen was released from custody for the sentence he received in 2015.
35 As for your past gambling addiction, Ms Mynard noted that in 2000, you were diagnosed with and treated for a pathological gambling disorder.[12] In that context, you saw a Dr Wong for several counselling sessions after he had assessed you for the purposes of a forthcoming Court case. On your own account, you have not gambled for many years and would prefer to spend any money you do have on other things. That may be understating the seriousness of the issue somewhat, as you also told Ms Mynard that gambling is no longer an issue as you cannot gamble because you have no money.
[12] By a Dr Wong; see reference in exhibit 2 at page 4.3.
36 In the history that you provided to Ms Mynard in relation to the current matter, you explained that you stayed at the crop premises for several months after being invited by a friend to ‘look after the place’. The cannabis plants were not yours, but you were looking after them ‘for someone else’. You became involved because you had been homeless for two months and had no work or other source of income. You told Ms Mynard that you will ‘take responsibility’ for your ‘wrong actions’. You expanded on that by saying you took responsibility ‘because you were there’.[13] Ms Mynard went on to note the following in that context:
Mr Nguyen admitted that he was at a very low and desperate point in his life and regrets his actions considerably. Although Mr Nguyen had struggled to take full responsibility for his actions, Mr Nguyen does show a degree of taking responsibility for his actions in saying that he was living in the house and knows that he needs to take responsibility for his actions.[14]
[13] Ibid, at page 4.7.
[14] Ibid, page 5.9-6.1.
37 Ms Mynard noted that in 2019, you were experiencing significant grief and great difficulty coping with the stress of your deteriorating life circumstances and that you had few sources of support outside of your children. Your addiction to ice significantly impaired your judgement and, on your own admission, you were desperate and making decisions that you now regret. In her professional opinion, you were likely suffering from an Adjustment Disorder in the lead up to and time of your parent’s death, and had prominent symptoms of anxiety and depression, with great difficulty coping with everyday functioning. In her view, your thinking processes were impaired, and you appear to have become more impulsive, take more risks and not really care so much anymore.[15]
[15] Ibid, page 5.8
38 As for your recent period spent on remand for this matter, you told Ms Mynard that ‘it’s pretty normal in custody’ and that you ‘got used to being in custody’ last time you were there. You have had no problems with other inmates and largely keep to yourself. To your credit, you work in the prison laundry, washing clothes.
39 Whilst Ms Mynard noted that imprisonment does not appear to be particularly onerous for you presently, she allows for the possibility that, in the event of a ‘longer sentence’, you will experience a decline in your mental health from an increased level of depression and feelings of helplessness and inadequacy.
40 Whilst there were no submissions made on your behalf regarding the impact of the Covid-19 pandemic, I make some allowance for it being a source of concern and for the fact that rehabilitation and other programs are not as readily available as previously.
41 I also make some allowance for the fact that English is not your first language.
42 Ms Mynard considered how best to address your negative cycle of housing instability, unemployment and family disconnection, as well as your recourse to drug use. As she notes in her report, you have had only limited treatment in the past, for a gambling addiction, which you found helpful. Unsurprisingly, she recommends further treatment in the future to assist in the building of coping strategies, relapse prevention and learning to express and manage emotions more effectively. She considers that psychological treatment, housing support, employment support and alcohol and other drug counselling are all important in your case, indeed necessary, if you are to achieve your full potential and long-term rehabilitation.
Gravity of the offending
43 The objective gravity of your offending is an important consideration for this Court.
44 It must be acknowledged at the outset, that this type of offence is intrinsically serious, as is amply demonstrated by the very high maximum penalty fixed by Parliament, namely 25 years’ imprisonment.
45 The quantity here, whether by reference to plant number or weight, was not significantly in excess of a commercial quantity. That is a very relevant consideration for an offence type that has a ‘built-in’ quantity based sentencing regime. A commercial quantity does not become, by statutory definition, a large commercial quantity, unless and until it is exceeded by a multiple of ten. The amount in your case was clearly at the lower end of that quantity range.
46 Another important consideration is the role performed by the offender. In your case, Mr Nguyen, it is not in dispute that you were a crop sitter who resided in the crop house and looked after the crop. As such, your involvement is lower than and to be distinguished from an offender who was positioned higher in the criminal operations’ hierarchy. You did not invest in nor stand to gain any of the profits of this criminal venture.
47 That said, you did benefit financially in the sense that you were provided with rent-free accommodation for the entirety of the period that you were involved as a crop sitter. It was not as if you received nothing.
48 When considering your role, it must also be borne in mind that crop sitters perform a menial but essential function in the overall operation; without them, the crops would not survive and those higher up in the operation would not be as insulated from detection and prosecution as they are.
49 And, importantly, you performed that role over a period of two months. There is nothing to suggest that over that period, you had any serious second thoughts about being involved. Indeed, on your own account, you knew of the illegality and wrongness of what you were doing but took a calculated risk in the hope that you would not be caught. Thus, your involvement was calculated and pre-meditated rather than short-lived or spontaneous. In saying that, I do not lose sight of the fact that your initial decision to become involved was made while under financial and emotional pressure. Your personal circumstances at that time, and afterwards, provide an explanation but not an excuse or legal justification for what you did.
50 It must have been readily apparent to you that this was a commercially orientated and ongoing criminal operation that you were involving yourself with. The residential property appears to have been largely devoted to its success, with two bedrooms of the house and a rear bungalow set aside for the growing of the plants, which were at differing stages of maturity.
51 Whilst each counsel devoted some time to addressing the Court as to where this case fitted in the range or spectrum of offending for offences of this type, I do not intend to dwell on that matter, at least not to any great extent or unnecessarily. I have gone to some lengths to isolate some of the more important aspects of this offending so as not to fall into the trap of merely fixing a label or descriptor to the offending devoid of the necessary context. In short, while not an architect or high-level offender in this operation, Mr Nguyen nonetheless played the very type of role that is necessary if the venture is to succeed and be profitable. Although this was serious offending by Mr Nguyen, it would have been even more serious were it not for his more limited role in a cultivation enterprise that was only slightly in excess of a commercial quantity.
52 All things considered, I have concluded that Mr Nguyen’s offending falls between the low and mid points on the spectrum of seriousness for this type of offending and that his moral culpability for that offending must be viewed as reasonably high.
Relevant sentencing principles
53 In this case, general and specific deterrence, denunciation and just punishment must feature prominently in the sentencing task. Protection of the community is another important consideration.
54 This type of offending is inherently serious, difficult to detect and, unfortunately, prevalent. The community is, with good reason, very concerned about the fact and frequency of commercial drug growing enterprises. Rightly, there is an expectation within the community, that when offenders are caught, they will face serious consequences.
55 In your case, Mr Nguyen, I have no doubt that you well knew the seriousness of what you were getting into. You have a relevant criminal record for
drug-related offences and past sentences of imprisonment appear not to have sufficiently deterred you from yet again becoming involved with drugs for what may be considered a relatively small reward, given the risks.
56 It is clear that such a record means that the extent to which the Court can extend you leniency on this occasion is more limited than it otherwise would have been had you not had such a record.
57 Appropriate regard must still be given to your age and prospects of rehabilitation. In the end, all relevant things considered, I have concluded that those prospects are, at best, fair. They would no doubt be enhanced, were you to successfully complete the type of counselling and treatment that Ms Mynard recommends. It is very much hoped that such assistance will be offered to you, if not during your remaining time in custody, then, in the event of you being released on parole, while on parole.
Sentencing submissions and analysis
58 In his plea on your behalf, your counsel appropriately acknowledged that the seriousness of your offending warranted a term of immediate imprisonment in the form of a head sentence with a non-parole period. He also pointed out those matters in mitigation which needed to be balanced in the mix when determining the appropriate sentence, including your early plea of guilty.
59 The prosecution highlighted what they submitted were some serious aspects to your current offending, and the need to deter and punish you for it, as well as the need to discourage others who are contemplating such offending. They also submitted that the seriousness of your offending called for a head sentence with a non-parole period.
60 The sentencing submissions of both the defence and prosecution were entirely appropriate in my view as nothing short of a significant custodial sentence is appropriate in all the circumstances of this case. The sentence to be imposed here is, however, less than it otherwise would have been on account of the matters that could be relied on in mitigation by Mr Nguyen, including but not limited to his significant admissions to police and his early plea and remorse.
Sentence
61 Mr Nguyen, I have balanced and weighed the relevant sentencing considerations in your case as best I can. In respect of the two charges on the indictment, you will be convicted and sentenced to the following terms of imprisonment.
62 For charge 1, to a term of 3 ½ years’ imprisonment.
63 For charge 2, to a term of one month’s imprisonment.
64 In all the circumstances, I do not propose to order any degree of cumulation as between the sentences imposed for charges 1 and 2. The sentences will therefore be served concurrently.
65 The total effective sentence is therefore 3 ½ years’ imprisonment.
66 In respect of that head sentence, I fix a non-parole period of 2 ½ years.
Section 6AAA indication
67 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for his plea of guilty to these offences, I would have sentenced Mr Nguyen to a total effective sentence of 4 years and 9 months’ imprisonment with a non-parole period of 3 ½ years.
Pre-sentence detention
68 Pursuant to s.18 of the Sentencing Act, I declare that Mr Nguyen has served a total of 182 days pre-sentence detention, not including today’s date, in respect of the sentence that I have imposed on him today. I order that such period is to be reckoned as already served under that sentence, and I further order that the declaration and its details be entered in the records of this court.
Ancillary orders
69 Finally, I make the disposal order in the amended terms sought by the prosecution, pursuant to s.78 (1) of the Confiscation Act 1997.
Other matters
70 Counsel, are there any matters that either of you wish to raise at this stage in relation to either the sentence or the sentencing reasons? Ms Cameron?
71 MR DAVIS: Nothing arising, Your Honour.
72 HIS HONOUR: Ms Cameron, your microphone is on mute. Try that again, Ms Cameron, if you could. Ms Cameron, there is a problem with your audio from your end. I take it if you shake your head, there is nothing you wish to raise. All right. Well, I see that is the case.
73 Mr Davis, would you appreciate a couple of minutes to speak to your client with the assistance of the interpreter before WebEx hearing is terminated?
74 MR DAVIS: Yes. That would be very useful, Your Honour. I had to do it later in the week but now would be better.
75 HIS HONOUR: I am not suggesting this is to replace that but it may help him to hear from you very briefly at this stage.
76 MR DAVIS: Thank you, Your Honour. I appreciate that.
77 HIS HONOUR: So I will be the Bench. My staff will need to remain but the prosecutor will leave the WebEx hearing and you can do that in as much privacy as is allowed. So I will let you do that with Mr Nguyen now.
78 MR DAVIS: Thank you, Your Honour. I appreciate that.
79 HIS HONOUR: Thank you. Thank you, Madam Interpreter.
80 INTERPRETER: Thank you, Your Honour.
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