Director of Public Prosecutions v Thi Thuoc Nguyen

[2022] VCC 1628

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-22-00733

DIRECTOR OF PUBLIC PROSECUTIONS

v

THI THUOC NGUYEN

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	7 September 2022
DATE OF SENTENCE:	21 September 2022; non-parole period amended on 26 September 2022
CASE MAY BE CITED AS:	DPP v Thi Thuoc Nguyen
MEDIUM NEUTRAL CITATION:	[2022] VCC 1628

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords: One charge of cultivating cannabis in a commercial quantity – s.6AAA declaration: 2 years 6 months imprisonment with a non-parole period of 20 months.

Legislation Cited:      Sentencing Act 1991; Confiscation Act 1997; Drugs Poisons and Controlled Substances Act

Cases Cited:Worboyes v R [2021] VSCA 169

Sentence:                  15 months imprisonment with a non-parole period of 9 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Roper	Solicitor for Public Prosecutions
For the Offender	Ms Anhn Liang	Giorgianni & Liang Lawyers

HER HONOUR:

1Thi Thuoc Nguyen, you have pleaded guilty to one charge of cultivating a narcotic plant, namely cannabis L, in a commercial quantity.  That offence carries maximum penalty of 25 years’ imprisonment.

2The circumstances of your offending are detailed in the summary of prosecution opening.[1]

[1]Exhibit “A”

3On 8 November 2021, police executed a search warrant at what were ostensibly residential premises at 16 Creswick Drive, Point Cook.  Upon arrival at the front door, police announced their presence and the fact that they had a search warrant.  When no response was forthcoming, police forced entry and located a sophisticated setup for the hydroponic cultivation of cannabis.  The house had eight rooms containing cannabis crops.  Police located 250 cannabis plants with a combined weight of 108.26 kilograms and, also, loose harvested cannabis totalling 430.2 grams.  The total weight of the cannabis was over four times the legally defined commercial quantity of 25 kilograms.  The number of plants were over 2 ½ times the legally defined commercial quantity of 100 plants.  Throughout the house police found large amounts of plant fertiliser, nutrients, secateurs and other material associated with the cultivation. 

4There was no one present inside the premises when police entered.  In the front bedroom, police located two boxes of prescription medication and a pharmacy receipt in your name.  In that same room, they also located four illegal circuits which caused electricity to bypass the meter, however, it is not alleged that you were involved in the installation of those.

5A neighbour in the adjoining house at 14 Creswick Avenue approached police and advised them that a CCTV camera at his home had detected a person in his back yard.  Police found you hiding around the side of his property, and the owner of that property identified you as being his neighbour and the occupant of 16 Creswick Drive where the cannabis crop had been located.  You were arrested and taken to be interviewed, with the assistance of a Vietnamese interpreter. You made a “no comment” record of interview, as is your entitlement.  You were taken into custody on that day, 8 November 2021, where you have remained until the present time.

6Following the charge being laid against you, there was a filing hearing on 9 November 2021.  Six months later, at a committal mention on 5 May 2022, you indicated your intention to plead guilty to the charge, and no contested committal was held.

7You are presently aged 55 years having been born in January 1966 in Vietnam.  You come before the court with no prior criminal history.

8Ms Liang appeared before the Court to conduct a plea in mitigation on your behalf. Unhappily, notwithstanding that Ms Liang speaks your language and claimed to have conferred with you on a number of occasions, both the oral and written submissions put by her were so inadequate in their detail that she consented to you personally speaking to the court in an endeavour to provide some enlightenment about several salient matters. By virtue of a combination of your counsel’s submissions and what you personally told the court via an interpreter, the following history emerged: you were born in Hai Phong, which is a coastal city and port located some 120 kilometres south-east of Hanoi.  You grew up in a family of six siblings in Vietnam. Your father who was a farmer, died in 2011.  Your mother, presently aged 97 years, is frail and suffers a number of health issues.  Your husband lives in Hai Phong with your mother.  He is 55 years old and used to work as a labourer in the construction industry, however, approximately 10 years ago, he ceased working following a heart attack at work. Subsequently he has suffered four strokes, which have left him paralysed along one side of his body.  This paralysis makes it very difficult for him to move about and he requires the assistance of a stick.  It has also caused his mouth to be asymmetrical and he is unable to speak. He requires assistance with many activities of daily living as he is not even able to hold a bowl in order to eat meals.

9On 13 March 2020 you travelled from Vietnam to Melbourne to assist your daughter, Ngoc Minh Pham, who lives here. She was expecting her first child, who was born 10 days later, in March 2020. Prior to that, in Vietnam, you had been running a small but successful business selling traditional Vietnamese food primarily to cater for various functions. In addition, you had been caring for both your mother and your husband.

10It is apparent that you arrived in Melbourne on a 3-month tourist visa which expired in June 2020.  Ms Liang told the Court that you had made an application to extend that visa as the difficulties with travel occasioned by the onset of the COVID‑19 pandemic and associated restrictions made it impossible for you to return to Vietnam.  Ms Liang stated that you still had a valid visa to remain in Australia but was unable to inform the Court as to the nature of such visa.  In any event, it is apparent from a reference from your daughter, Ngoc Minh Pham, dated 4 September 2022[2] that you had been a resourceful and hardworking person in Vietnam, running your business, as well as looking after your mother and your husband, prior to arriving in Australia in March 2020 to help her daughter once she had given birth to her child.  She confirmed that you cooked for her and her husband and helped look after the baby until the baby was six months old and that the onset of the pandemic had made it impossible for you to return to Vietnam. 

[2]Exhibit “2”

11Your daughter also stated that, when her baby was about six months old, she received a call from her father in Vietnam who said that it had become apparent to the family that you had incurred a gambling debt in Vietnam of the equivalent to $60,000 AUD, which you had hidden from the family.  According to your counsel, this became known to your family because your creditors started to make demands upon them back in Vietnam.  Your daughter stated that, as your business in Vietnam had come to a halt during the pandemic, you looked for a job working at a vegetable farm. 

12I asked your counsel whether, at any stage during the pandemic restrictions and up to the period when you were arrested for this offending on 8 November 2021, you had applied for permission to travel to return to Vietnam in order to continue looking after your husband and mother or doing what you might have been able to do to pursue your catering business. Ms Liang said she did not know.  Accordingly, again, you were called upon to assist the Court and it appears that no such application was made and no information was provided as to if and when it may have been possible to do so, or whether there was any other opportunity for you to return to Vietnam prior to your arrest late last year. You told the court that you didn’t apply to return to Vietnam “because flights were expensive”. 

13You stated that, for a time, you were still helping your daughter with cooking and washing but, upon a date which was never made clear to the Court, you obtained a job somewhere in the Ararat or Ballarat region harvesting grapes.  You stated that, usually, on about three days per week your daughter would drive you at 3:00am to a location in Melbourne where you were picked up at 3:30am and driven to the vineyard. You worked from about 6:00am to 10:30am, had a 15 minute break, and then continued working until 1:00pm. You had a 30 minute lunch break and then worked again until 3:00pm, following which you were driven on the 3-hour return trip to the location where you had been picked up in the morning.  Your daughter would collect you from that location and you would arrive home at around 6:30pm or 7:00pm.  You told the Court that you were paid $15 per hour, thus $120 for an 8-hour day, but from this amount, $15 was deducted for the hire of secateurs, as well as $50 for the costs of your being transported to and from the vineyard.  You stated that you did not know for how long you kept undertaking that work and I must say that you impressed me as being evasive.

14In paragraph 9 of your counsel’s submissions dated 3 September 2022,[3] it was stated as follows:  “Mr (sic) Nguyen had accrued a debt of approximately $60,000 in Vietnam. This was due to her gambling.  Whilst she was living with her daughter, she would frequently attend Sunshine Marketplace.  There she met a male named Tuan.  He befriended her and became aware of her situation and asked whether she needed work.  He offered to pay her $3000 a month to be a crop sitter.  Given her precarious situation she agreed to do so.”

[3]MFI – “1”

15Your counsel was unable to tell the court when you had met “Tuan” or any of the circumstances surrounding your employment, simply noting that the charge before the Court alleged cultivation of a commercial quantity of cannabis on one day only, 8 November 2021.  When I asked you when it was that you had met the man “Tuan” at Sunshine Marketplace, you again impressed me as being evasive, stating that it was in the afternoon but you could not remember the date.  You then claimed that it was “about two months before I was arrested”.  You told the Court that “Tuan” had asked whether you worked on a farm and when you said, yes, he asked you if you wanted to do “house minding”.  When I asked what this meant and whether you were referring to the charge of cultivation to which you had pleaded guilty, you stated that it did and you had worked for “Tuan” for "about a month prior to being arrested”.  Your counsel, Ms Liang, then said that you slept at the property and watched over it for “about a month and a bit” and you were living there in order to “make it look like a normal property” by taking out bins and keeping up an appearance that someone was living there.  She stated that you had instructed her that others came to the house to water the plants and fertilise them and do other things but you did nothing at all with the plants.  She stated that you had been told that you would be paid $3,000 per month (presumably in addition to the free accommodation that you received through living at the property) and that you had been paid this sum once prior to the date of your arrest. I must say that, although your counsel conceded that you knew that the cannabis cultivation was illegal, your claim that you “did nothing” in relation to the cannabis plants themselves, but just lived in the crop house so that it “looked lived in”, appears to traverse your plea of guilty given the definition of “cultivate” in section 70 of the Drugs Poisons and Controlled Substances Act. Regardless of that, there appeared to be agreement between the Prosecution and your counsel that your role was equivalent to that of a “crop sitter” and that you should be sentenced accordingly.

16There had been no mention in either your counsel’s submissions or the reference from your daughter, Ngoc Minh Pham, or another reference (undated) from your niece, Thi Thu Trang,[4] that you had, at any stage, sent any money back to Vietnam for any purpose.  It was only when I asked your counsel whether you had paid off any of the gambling debt, which was put as the reason that you had engaged in this offending, that any suggestion that you had sent any money to Vietnam emerged. 

[4]Exhibit “1”

17I asked about the circumstances in which you had incurred the $60,000 gambling debt, and I must say that your counsel’s explanation of the gambling system was completely incomprehensible.  You then stated that, prior to leaving Vietnam, you had been earning from your catering business approximately 6,000 Vietnamese Dong (somewhat less than $40 AUD) per day, but, due to your gambling, had been losing between 5 million and 20 million Dong per day (approximately $300 to $1,200 AUD).  You stated that this debt had accrued over 3 to 4 years, although you had ceased gambling for nearly a year before you came to Australia. You claimed to have become indebted to your creditors to the equivalent of $60,000 AUD and the people from whom you borrowed the money were demanding it back.  You claimed to have told them that, although you were leaving the country, you would only be away three months and you would pay them when you returned. My note of what you told the court is, “after I left Vietnam, hooligans from the Underworld came to hassle my family, demanding that they pay money that “we” (my emphasis) owed them, so I had to work to pay them”. When I asked you about your use of the word “we”, you confirmed that it was a family debt, but later conceded that it was solely your debt incurred from gambling. Indeed, you stated that you had kept this debt secret from your family, who only became aware of it 5 or 6 months after you had come to Australia because your creditors had started to make demands upon them.

18Despite the fact that there had been no mention of you repaying any of the debt up until that point in the plea hearing, you then claimed that you had sent “some” money to your creditors in Vietnam, as well as some money to help support your mother and husband.  At the conclusion of the plea hearing, I stated that I would adjourn the matter for sentence, but would accept material in support of your allegation that you had sent money both to your creditors in Vietnam and also to help support your family. 

19Subsequent to the conclusion of the plea hearing, a receipt dated 22 February 2021 for a money transfer of $300 AUD (on its face showing this to be equivalent to 5,415,000 Vietnamese Dong) was tendered as an exhibit.[5]  This showed the sender was, Ngoc Minh Pham, your daughter in Braybrook, and the recipient had been your other daughter, Thu Hoa Pham, who lives in Hai Phong in Vietnam with your husband and mother.  Also part of that same exhibit was a further letter from your daughter, Ngoc Minh Pham, dated 15 September 2022, confirming that she had sent this transfer and that, of the $300, $200 had been provided by you for your husband and mother in order to buy medicine and that the remaining $100 had been supplied by her. 

[5]Exhibit “3”

20Further plea submissions filed on your behalf dated 15 September 2022[6] noted that the money transfer to which I have just referred occurred whilst you were engaged in farm work (that is, not during the offending for which I must sentence you).  The submissions went on to state in paragraph 6 as follows:  “Ms Nguyen is unable to provide a money transfer receipt for the transfer of part of the money she received for engaging in this offending. She maintains that 15 million Vietnamese Dong was transferred to her family in Vietnam to purchase a fridge, a further 15 million Vietnamese Dong was transferred to her family to purchase medicine for her husband and mother, and 7 million Vietnamese Dong was transferred to repay her debt.” There is no indication of when these transfers took place or why no receipts are available for them.  Given your lack of facility in the English language and the fact that you had relied upon your daughter living in Braybrook to send the one amount for which a receipt is available, it is a fair inference that you would have needed assistance from your daughter or someone else to forward the other three amounts which you claim to have sent to Vietnam. 

[6]MFI– “2”

21Ms Liang stated at the plea hearing that you had given $2,700 of the $3000 AUD paid to you for your role in the cultivation to your niece so that she could forward it to your family and debtors. I note that the reference from your niece, Ms Thi Thu Trang Nguyen[7] made no reference to this having taken place, and no supplementary material has been tendered from her.

[7]        Exhibit “1”

22Whilst I accept that you may well have been worried about how your mother and husband were faring in Vietnam, I fail to see the relevance of you having contributed $200 to the $300 sent by your daughter to your family nine months prior to your offending. I have concerns about the truth and accuracy of your account and find that I cannot be satisfied on the balance of probabilities that you did send further money to either your family or creditors. There was so much of the plea in mitigation which was not clear and I expressed my view that you appeared to be making things up as you went along.  In any event, your counsel conceded at the plea hearing that she had been instructed that you got involved in this illicit offending for which I must sentence you because you needed to pay your gambling debt.  She conceded that she had not been given instructions prior to my asking questions that you had worked in order assist your family in Vietnam.

23Ms Nguyen, it is plain from the material before the Court that you are a person of some capability.  You completed your education in Vietnam to the equivalent of Year-12 level and then entered the workforce to help with the family farm, and later worked at retail markets, before setting up your own restaurant and catering business, which your counsel stated you ran from the date of your marriage in 1989, until you came to Australia in 2020.  There is no evidence that you are a person of low intelligence. You are of mature age, not like some young crop sitters, with whom this court deals, for whom consequential thinking skills seem not to be active.  I accept that your reason for coming to Australia was to assist your daughter in the early months following the birth of her child, and then you became detained here due to the pandemic.  You did have some legitimate “farm work” for a time, but it appears it was very poorly paid which, unhappily, occurs when people are aware that people like you do not have much bargaining power as a non-resident.  Be that as it may, you have abused the hospitality of Australia in assisting with this illegal cultivation enterprise.  It was a substantial crop and you knew that it was illegal, as evidenced by you hiding from police when they attended the property.  Although the prosecution mentions in its submissions that there is “[e]vidence of remorse by [your] plea of guilty and cooperation with investigators”,[8] I find no evidence of either remorse or cooperation.  You hid from police and made a no-comment record of interview, (as is your entitlement).  Although you pleaded guilty at an early stage within six months of being charged, I have already commented that you appeared to be less than full and frank when you spoke to the Court during the plea hearing. 

[8]Prosecution Submissions dated 5 May 2022, MFI -A, page 2, paragraph 4(b)

24The seriousness of this offending is indicated by the maximum penalty of 25 years’ imprisonment, together with the fact that s5(2H) of the Sentencing Act 1991 requires the Court to impose a term of imprisonment unless you can bring yourself within the exceptions referred to in that provision. None of the exceptions apply to you. There is no suggestion that you played any role in setting up this sophisticated cultivation enterprise and you are to be sentenced as a crop sitter, which is towards the lower end of the hierarchy of offending for this type of offence. However, it is important to bear in mind that, were it not for people like you, who are prepared to assist those masterminds behind these cultivation enterprises, then those people would not prosper. In particular, your role in trying to make it appear that this was simply a suburban residence where you lived, was deliberately assisting the architects of the scheme to avoid detection. Illicit drugs do a great deal of harm in our community. For that reason, this Court must denounce your conduct and place emphasis upon general deterrence this means sending a message to others who are minded to assist those who set up cultivation enterprises so they will know that it will not be worth there while and they will be appropriately punished. Having said that, I accept that what you stood to gain from your involvement was relatively insignificant compared to the large commercial profit which the organisers stood to make, had police not thwarted their plans by executing a search warrant. The evidence is that you were to be paid $3,000 per month and you were apparently to live there rent free.

25You are entitled to a discount for the utilitarian benefit of your plea of guilty, which is enhanced by the fact that it was entered in May this year, when courts were still struggling to deal with the backlog of trials occasioned by the restrictions imposed when the pandemic was at its worst.  This requires an acknowledgement of your facilitation of the course of justice, which is deserving of a tangible discount beyond that which would normally be attracted for the utilitarian value of saving the State the time and cost of a trial.[9] Another impact of the pandemic restrictions is that you were required to undertake fourteen days of isolation for quarantine purposes when being taken into the prison system, and that there have been periods of decreased out-of-cell hours, along with times when you have been unable to receive personal visits and also a limited number of rehabilitation programs available. I accept that, having never been in prison before and having very little capacity in the English language would have made it a lonely and confronting time for you. I also acknowledge that, although the situation of your mother’s advanced age and health problems,[10] and the health issues and limitations of your husband,[11] do not rise to the level of exceptional circumstances, they are, nonetheless, matters which a court should take into account as causing you anguish while you have been in custody, given that you used to take care of your mother and husband when in Vietnam.  I also understand you have health issues of your own by way of a back condition, which the first reference from your daughter[12] states makes it difficult for you to sit for long periods of time.  Indeed, it would appear there was medication in your name for this, one of which was Lyrica, in the bedroom of the crop house where you were staying.  It is to your credit that, notwithstanding this problem, you have apparently regularly worked whilst in custody, as a cook.  Although I have been critical of your lack of frankness with the Court, I accept that you are, by nature, a kind and caring person.  This is evident from the references tendered from your niece and your daughter, who live in Australia.  You have no prior criminal history. Provided you do not get caught up in a gambling habit again, one would hope that your first experience of criminal offending, being in prison, and having to be dealt with by the Criminal Justice System in a foreign country, might prove a salutary lesson, and that your prospects of rehabilitation should be reasonable. 

[9]Worboyes v R [2021] VSCA 169

[10]Exhibit “4”

[11]Exhibit “5”

[12]Exhibit “2”

26In all of the circumstances, there is no doubt that the only appropriate sentence is one with a head sentence and a non-parole period.  It is plain that you will be deported in due course, but there is no hardship attached to this, as you had no entitlement to live here and you would simply be returning to your city and country of origin, where the rest of your family live.

27On one charge of cultivating cannabis in a commercial quantity, you are convicted and sentenced to be imprisoned for a period of 15 months.  I direct that you serve a period of 9 months before becoming eligible for parole.  I declare a period of pre-sentence detention of 317 days to be time reckoned as already served under the sentence imposed this day.

28Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your plea of guilty, the total effective sentence imposed would have been 2½ years, with a non-parole period of 20 months.

29Upon your conviction for the offence of cultivating a narcotic plant, Cannabis L, in a commercial quantity, and upon being satisfied that the property in the Schedule to the order I am about to make was used, or intended to be used, in connection with the offence, or was derived or realised, directly or indirectly by you or another person from the commission of the offence, I order, pursuant to s78(1) of the Confiscation Act 1997, that such property be forfeited to the State. I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this day, or the conclusion of any appeal proceedings, where it may be tested or analysed, and then destroyed. The property in the Schedule compromises the cannabis plants and dried cannabis, face masks, a toothbrush, electrical bypasses and a Mount Franklin water bottle.

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