Director of Public Prosecutions v Thoai

[2022] VCC 685

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-02226

CR 21-02227

DIRECTOR OF PUBLIC PROSECUTIONS

v

HONG THOAI

HUY NGUYEN

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JUDGE:	HIS HONOUR JUDGE HANNEBERY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2022
DATE OF SENTENCE:	19 May 2022
CASE MAY BE CITED AS:	DPP v Thoai & Ors
MEDIUM NEUTRAL CITATION:	[2022] VCC 685

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW

Catchwords:              cultivation of narcotic plants – plea of guilty – parity

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)

Sentence:                  51 days' imprisonment to be followed by a community corrections order of 12 months; 27 days' imprisonment to be followed by a community corrections order of 12 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Solicitor for the Director of Public Prosecutions
For Accused Thoai	Mr C. Oldham	Valos Black & Associates
For Accused Nguyen	Mr C. Nikakis	Haines & Polites Lawyers

HIS HONOUR:

Introduction

1Hong Thoai and Huy Nguyen, you have both pleaded guilty to one charge each of cultivation of narcotic plants contrary to s72B of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for this offence is 15 years' imprisonment.

Summary of offending

2On 24 June 2021 the police were observing a house in Craigieburn subject to a drug investigation.  You, Mr Thoai, and you, Mr Nguyen, were observed leaving the address in a vehicle.  Investigators intercepted your vehicle and found that you, Mr Thoai, smelt strongly of cannabis and had fresh dirt marks on your knees.

3A search warrant was subsequently executed on the address.  Inside the house were five rooms converted for the purpose of cultivating cannabis including the installation of an electrical bypass.  A total of 211 cannabis plants of varied sizes and maturity were seized, with a total weight of 31.76 kilograms, and those facts constitute Charge 1 for you, Mr Thoai, and Charge 2 for you, Mr Nguyen; cultivation of narcotic plants.  You were both conveyed to the Fawkner police station, interviewed, and then remanded in custody.

Nature and gravity of offending

4That the offence of cultivation of a narcotic plant is serious is reflected in the maximum penalty of 15 years' imprisonment where, as is the case here, it has not been made out on the balance of probabilities that the offence was committed for a purpose other than trafficking.  The gravity of an individual offence, however, will depend upon its specific circumstances.  In this case the crop was grown at premises owned and rented by persons other than yourselves.  There is no suggestion that you had any commercial interest in the sale of the plants save for what might be inferred to be the financial gain you received for the tasks you undertook to assist the cultivation.

5The crop you have both assisted to cultivate is substantial.  Whilst you are not to be sentenced for any intent to cultivate a crop in excess of the commercial quantity its size remains relevant to an assessment of the offence.  You have both willingly and unlawfully assisted in the cultivation of a crop that you knew to be of significant proportions.  The hydroponic set up that was employed to cultivate the cannabis which is the subject of the current charges was relatively sophisticated.

6The evidence establishes that you, Mr Thoai, attended the site of the crop on 24 June 2021.  The dirt on your knees and the smell of cannabis emanating from you at the time of police interception supports the inference that you had undertaken a task that brought you into close proximity with the plants.  You also made purchases relevant to the cultivation at Bunnings on 13 May 2021.

7In relation to you, Mr Nguyen, it is accepted for the purposes of the plea that your attendance at the premises was limited to 22 minutes on the day of your arrest.

8I do not consider that either of you are crop sitters in the way that term has come to be used.  In my view that description infers a level of ongoing guardianship for the crop, which is not made out on the evidence in relation to either of you.

9Your actions in relation to the cultivation, Mr Thoai, were somewhat greater than yours, Mr Nguyen.  As such, some minor level of disparity is appropriate.

Personal circumstances: Hong Thoai

10Mr Thoai, you are now 22 years old and about to turn 23.  You had just turned 22 at the time of the offending.

11You were born in Can Tho, Vietnam.  Your parents and your one sibling continue to reside there.  You came to Australia in December 2018.  You entered as a holder of a student visa.  Since coming to Australia you have predominantly lived in Victoria.  You instructed that you intend to continue your education in Australia and to open a business when your education is complete.

12You completed your secondary schooling in Vietnam.  You commenced tertiary studies in the medical field and completed two years of study before you came to Australia to learn English.

13Your student visa has now been cancelled by the Minister for Home Affairs.  You have applied for a new protection visa that can be processed while you are onshore.

14Since being released on bail for this you have been assisting a friend with his painting business.  You instruct that you have the prospect of further continuing employment in this business.

15You are single and have no children.

16You have no prior criminal history and nothing subsequent and I note that there has now been two exhibits tendered that also attest to your otherwise good character.

17Based upon your prior and subsequent good behaviour and your proven capacity for study and employment I see your prospects of rehabilitation as good.

18I accept that you are a young man for whom rehabilitation remains a primary sentencing consideration.

19There remains considerable uncertainty as to whether you will be granted a visa to enable you to remain in Australia permanently. Whilst I do not intend to impose a sentence that would, by definition, mean you would fail the character test as set out at s501(3) of the Migration Act 1958 (Cth), there remains the possibility that the Minister may refuse to grant you a visa based upon the criminal record you now have. I accept that the possibility of deportation is the cause of substantial concern for you and represents a form of extra curial punishment in itself.

Personal Circumstances: Huy Nguyen

20Huy Nguyen, you are 27 years old.  You were 26 years old at the time of the offence.  Whilst you are not a youthful offender you are still a young man and the community retains a strong interest in fostering your rehabilitation.

21You arrived in Australia in 2014 on a student visa.  You attended Ozford College in Lonsdale Street, Melbourne.  Upon completion of your course you obtained employment at a grocery business known in Sunshine West.  You have worked for the employer since that time, including after your release on bail.[1]  Over the last 8 years you have worked consistently long hours in that business.

[1]Defence of Nguyen Exhibit 3.

22You have no prior criminal history, nor anything subsequent.

23You have been married since December 2019.  You and your wife have a 2 year old son.  Your wife has a long history of postnatal depression, with symptoms that have been very significant on occasions, and she continues to be medicated for that condition.  She has found your arrest and subsequent imprisonment on these matters especially difficult.[2]

[2]Defence of Nguyen Exhibit 2.

24Whilst your wife's circumstances do not reach the level of exceptional circumstances required for them to have a direct impact upon sentencing I accept that your anxiety about her situation is a significant burden for you to bear and I take that into account on sentence.

25I consider that you have good prospects of rehabilitation.

Plea of guilty & COVID-19

26Both you, Mr Thoai, and you, Mr Nguyen, served your periods of pre-sentence detention during a time when the prison environment was made more burdensome by virtue of pandemic restrictions.  I take this matter into account on sentence.

27You have both pleaded guilty at an early stage in proceedings.  By your pleas of guilty you have saved the time and resources that would otherwise have been expended on contested proceedings.  The utilitarian value of your pleas of guilty is especially significant in circumstances where restrictions caused by the pandemic have placed enormous pressures on court listings.

28I accept that both of your pleas of guilty are indicative of some level of contrition for your offending.

Sentencing principles

29The nature of your offending is such that general deterrence is an important sentencing consideration.  In both your cases there is a somewhat lesser need to deter you from further offending but specific deterrence retains some significance.  I must impose a sentence that denounces your conduct, protects the community and represents a punishment that is just in all the circumstances.  I must also foster the good prospects of rehabilitation that I have concluded you both have.

30I have been referred to a number of previous sentencing decisions.  Each case of course turns on its own circumstances and it was not contended that any individual case was especially like this one.  I take into account current sentencing practices to the extent they can be determined.  In a broad sense, for the offence of cultivation simpliciter an analysis of previous cases reveals that periods of imprisonment, community corrections orders and sentences combining the two have been previously imposed by the courts.

Sentencing submissions

31Mr Grant, on behalf of the Director of Public Prosecutions, submitted that in relation to each of your cases the need to reflect both general and specific deterrence meant that a sentence involving a period of immediate imprisonment was appropriate,[3] though he did not submit that it must be a period more than that which you have already served on remand.

[3]Prosecution Exhibit 2.

32Mr Oldham on behalf of you, Mr Thoai, submitted that a sentence of imprisonment of a length equating to your pre-sentence detention combined with a lengthy community corrections order with a work component was appropriate in the circumstances.[4]  At the conclusion of your plea you were assessed for such an order and were found suitable.

[4]Defence of Thoai Exhibit 1.

33Mr Nikakis on behalf of you, Mr Nguyen, submitted that a community corrections order was appropriate in your case.[5]

[5]Defence of Nguyen Exhibit 1.

34I must have regard to the principle of parity to ensure consistency of punishment.  When co-offenders are sentenced any significant difference in sentences imposed upon them should be capable of rational explanation.  In this case it is appropriate that there be some disparity between your sentences to account for your differing roles in the offending, as I have previously outlined.

Sentence

35Mr Thoai, I sentence you as follows.

36On Charge 1, cultivation of narcotic plants, you are convicted and sentenced to 51 days' imprisonment to be followed by a community corrections order of 12 months duration with a special condition that you undertake 100 hours of unpaid community work.

37Pursuant to s18(1) of the Sentencing Act 1991 I declare that there are 51 days of pre-sentence detention reckoned as already served.

38Pursuant to s6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have imposed a sentence of 6 months' imprisonment to be followed by a 12 month community corrections order.

39Mr Nguyen, I sentence you as follows.

40On Charge 2, cultivation of narcotic plants, you are convicted and sentenced to 27 days' imprisonment to be followed by a community corrections order of 12 months duration with a special condition that you undertake 100 hours of unpaid community work.

41Pursuant to s18(1) of the Sentencing Act 1991 I declare that there are 27 days of pre-sentence detention reckoned as already served.

42Pursuant to s6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have imposed a term of 5 months' imprisonment to be followed by a community corrections order of 12 months.

43The prosecution sought disposal of the cannabis crop material and plants, which was not opposed, and I make that order in the terms sought.

44So on Charge 1 for you, Mr Thoai, and on Charge 2 for you, Mr Nguyen, you are placed on community corrections orders for a period of 12 months from today's date.

45Now, before I ask you to consent to such orders being made I am going to tell you both a little bit more about the orders so you know what they mean, so just listen carefully to this.

46The following core conditions apply to all community correction orders:

·You must not commit, whether in or outside Victoria during the period of the order, an offence punishable by imprisonment;

·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order;

·You must report to the Community Correction Centre at Sunshine within two clear days from today;

·You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change;

·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee;

·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.

47There is another condition applied to each of your orders:

·You both have to perform 100 hours of unpaid community work over a period of 12 months as directed by the regional manager.

48Now, I can only impose a community correction order if you agree to such an order being imposed and I will tell you a bit about the consequences for breaching such an order.

49If you contravene the order by not fulfilling the conditions, or if you breach the order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for the breach.  You can also be re-sentenced for the offences that are before me now and, of course, one of the options available would be a term of imprisonment.  So you have got to make sure that while you are on this order you do not commit any further offences during the term of the order that might incur a term of imprisonment, otherwise you would almost certainly be back before the court and re-sentenced on the charges that are before me.

50I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, being a Community Corrections officer as part of this order, a substantial fine can be imposed.

51Now, Mr Thoai, I'll start with you.  Did you understand those conditions?  I'm sorry, I think you're on mute.  We'll need to just get it on the transcript, that's all right.  So Mr Thoai, did you understand those conditions?

52OFFENDER THOAI:  Yeah.  Yes, (indistinct words).

53HIS HONOUR:  All right.  And do you consent to the community corrections order on the terms I've just outlined?

54OFFENDER THOAI:  Yes.

55HIS HONOUR:  Okay, thank you.  Now, Mr Nguyen, did you hear and understand those conditions of the community corrections order I just read out?

56OFFENDER NGUYEN:  Yes.

57HIS HONOUR:  And do you consent to a community corrections order being made on the terms I've just outlined?

58OFFENDER NGUYEN:  Yes.

59HIS HONOUR:  Thank you.  All right, are there any further orders required?

60MR NIKAKIS:  No, Your Honour.

61MR GRANT:  No.  Thank you, Your Honour.

62HIS HONOUR:  Thank you very much.  I'll otherwise adjourn the court until 10.30.

63MR GRANT:  Your Honour pleases.

64MR OLDHAM:  It please the court.

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