Director of Public Prosecutions v Tinh Ngoc Nguyen
[2019] VCC 750
•23 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Restricted Suitable for Publication |
Case No. CR-19-00022
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TINH NGOC NGUYEN |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2019 | |
DATE OF SENTENCE: | 23 May 2019 | |
CASE MAY BE CITED AS: | DPP v Tinh Ngoc Nguyen | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 750 | |
REASONS FOR SENTENCE
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Subject: Sentence – Cultivate commercial quantity of narcotic plant (cannabis L)
Catchwords: Doran discount, 'crop-sitter', isolation in custody
Legislation Cited: s.72A of the Drugs, Poisons and Controlled Substances Act 1981
Cases Cited: R v Doran [2005] VSCA 271; Latina v R [2015] VSCA 102; DPP v Gjyla [2019] VCC 84; DPP v Dalgleish [2017] HCA 41; Nguyen v The Queen [2016] VSCA 198
Sentence: 22 months with NPP 17 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L Dawson | Office of Public Prosecutions |
| For the Accused | Mr J Overall |
HIS HONOUR:
1 Tinh Ngoc Nguyen, you have pleaded guilty that, at Narre Warren in Victoria between 17 September 2018 and 17 October 2018, you cultivated a narcotic plant, namely cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant, contrary to s.72A of the Drugs, Poisons and Controlled Substances Act 1981.
2 The offence carries a maximum penalty of 25 years' imprisonment.
Circumstances of offending
3 The circumstances of your offending are outlined in an agreed summary tendered by the prosecution and marked Exhibit 'A'.
4 In summary, you came to Australia on a three-month tourist visa on or about 3 August 2018. For at least one month before your arrest, you were living at 44 Summerlea Road, Narre Warren. That property had been under investigation by police in relation to a potential cultivation of cannabis since March 2018.
5 On 17 October 2018, at approximately 2.15pm, police executed a search warrant at the property. You were present at the property at the time of the execution of that warrant.
6 During the police search, cannabis plants at varying stages of maturity were found to be growing in hydroponic conditions in five rooms of the property.
7 In total, 219 cannabis plants were found and seized. The total weight of the seized cannabis was 22.39 kilograms. A commercial quantity of cannabis is 100 plants or 25 kilograms. The number of plants found by police amounted to more than double the prescribed commercial quantity for cannabis by reference to the number of plants seized. The total weight of the plants was less than the commercial quantity.
8 Police also located an electrical bypass outside the property. Inside the property, police found a 28-plug electrical box with a timer and an 8-plug electrical box with a timer, both of which were set up inside the laundry cupboard and from which electrical cables ran to supply electricity to the hydroponic equipment found in each of the five rooms in which the cannabis was growing.
9 You were arrested and taken to the Narre Warren police station and interviewed. During that interview, you made full admissions to the cultivation of the cannabis, including:
(a) that you had been cultivating the cannabis for at least one month;
(b) that you had watered the cannabis plants; and
(c) that you had cut branches from the larger cannabis plants to create a further plant or plants.
10 During the interview, you told police that you cut the branch from the big tree, and 'the small tree I make'. It is not clear from your answer how many small trees you made.
11 You had not received any payment for your work but did expect to receive payment upon completion of the crop.
12 As submitted by your counsel, there is no suggestion that you were involved in the establishment of the crop, the watering system, the electrical bypass, the obtaining of the plants, or in any of the financial arrangements for the crop.
13 It was submitted by the learned prosecutor that the crop had the hallmarks of a professional set-up, and that those higher up in the chain would have expected to make a large profit from the crop.
14 I turn to your role in the offending and the gravity of the offence.
15 The maximum penalty for this offence of 25 years' imprisonment reflects the relative seriousness of the offence of cultivation of a commercial quantity of cannabis. The learned prosecutor described the system in operation at 44 Summerlea Road, Narre Warren as being of 'moderate sophistication'. I accept that submission. Further, the number of plants found at the property, as earlier stated, was more than twice the commercial quantity threshold. Through your conduct, you assisted in this serious offending.
16 It was submitted by your counsel that your offending falls into the lowest category of seriousness for the offence of cultivation of a commercial quantity of cannabis, given your role as a 'crop-sitter'. This was not really disputed by the learned prosecutor.
17 It was further submitted by your counsel that even within the category of offenders referred to as 'crop-sitters', your conduct fell at the lower end. I accept that submission.
18 Exactly how you came to be involved in the cultivation is unclear. In your interview with police you stated that those for whom you worked organised for you to travel to Australia, and that they 'found' you at the airport. I am prepared to accept, consistent with the submissions put on your behalf, that initially you were not aware that you would be engaged in criminal activity. However, that must have been apparent to you once you commenced cultivating the cannabis.
19 In your letter to the Court dated 17 May 2019, which was tendered on the plea hearing and marked Exhibit '1', you stated that you “knew that drugs are illegal”, and further, that you knew that “both in Vietnam and Australia this crime is very serious.”
20 Your motivation for committing the offence was born out of a need to pay sizeable debts owing in Vietnam and to pay for your wife's medical expenses.
21 Further, I accept that whilst you were to be paid for your labour, you had no other financial interest in the crop.
Personal background
22 You are 58 years of age, having been born in March 1961 in Vinh City, Nghe An City Province, Vietnam. You have been married for some 37 years to your wife, Thu Thi Nguyen, who has also provided a reference to this Court. You have three adult children and two grandchildren. Your wife, children and grandchildren all live in Vietnam.
23 You completed high school in 1979, and from 1979 to 1981 you studied part-time and received a Diploma in Taxation. You worked in the Tax Department of the Nghe An City People's Committee from 1981 to 1991. In 1991 you left Vietnam to work in a furniture factory in Japan. You returned to Vietnam in 1993. In 1994 you established a small retail business selling used furniture and whitegoods which you imported from Japan. That business ceased operation in 2012. In 2013 you established a small retail business selling golf equipment. That business remains in operation.
24 On 11 April 2018 you were assessed by Mr Patrick Newton, a psychologist, and a report dated 1 May 2019 prepared by him was tendered at the plea hearing and marked Exhibit '3'. Mr Newton assessed your mental state as normal and that you do not suffer any mental disorder or manifest any behavioural issues of concern. There are no concerns relating to alcohol, illicit drug use or gambling.
25 I do note that you reported to Mr Newton that you were recruited to tend the cannabis crop but you were not aware that you were cultivating an illegal plant. I am not prepared to accept what you told Mr Newton, given your plea of guilty and given what you have set out in your letter dated 17 May 2019, referred to above.
26 Mr Newton stated that given the absence of a mental disorder, your good employment history, and the fact you do not suffer any behavioural problems (such as addiction or problem gambling), as well as your intact intelligence, your prognostic outlook is positive. I am prepared to sentence on that basis.
27 Your wife in Vietnam, suffers from a number of health problems including thyroid dysfunction and a persistent cough, and cannot visit you whilst you are in custody.
28 You came to Australia on a three-month tourist visa, which was valid between 3 August 2018 and 3 November 2018. You told Mr Newton that the reason you had come to Australia was to search for better paid work so that you could provide funds to support your family and to clear your debts. You instructed your counsel that you owe some $AU124,000 in business debts and debts arising from the treatment of your wife's health problems.
29 You have no prior criminal history in either Vietnam or Australia and as a 58 year-old man that is a matter very much to your credit.
Mitigating factors
30 A number of factors have been relied on by your counsel in mitigation of the penalty I must impose.
31 As already stated, you are 58 years of age with no prior criminal history. You have otherwise led a good and industrious life and you are entitled to rely upon your good character.
32 You are a devoted husband and father to three children and grandfather to two children. Your motivation for committing the crime was to obtain funds to clear your debt problems and also to assist with payment of your wife's on-going medical costs.
33 You made full admissions as to your offending behaviour when interviewed by police. You pleaded guilty at the earliest opportunity, that being at the committal mention on 10 January 2019.
34 Your plea of guilty is evidence of your remorse, your acceptance of responsibility for your offending, and it has also saved the community the time and expense of a committal hearing and trial.
35 Your counsel relied on the case of R v Doran[1] in two respects. First, in your interview with police, you voluntarily disclosed that you had been cultivating for a period of about one month. It is submitted that, but for that admission, the charge against you may have been confined to one day. The prosecution accepts that submission, as do I.
[1][2005] VSCA 271
36 The second basis upon which your counsel relied on the principle in Doran was your admission in the police interview that, in addition to watering the plants, you also cut 'the branch from the big tree' and then replanted that cutting or those cuttings. Your counsel was not able to tell me whether that conduct involved one or more plants. In that circumstance of not knowing the number of such plant or plants which you replanted from the cuttings, I do not make a further reduction in penalty on the basis of a Doran discount. You do, however, receive a benefit for your cooperation and admissions, which includes the admission as to cutting and replanting.
37 The prosecution did not suggest that the gravity of your offending was increased in any significant sense by reason of that admitted cutting and replanting. It could not do so without knowing the numbers involved. In other words, the prosecution was not able to place this offending within a more serious category of the offence of cultivation, which would have exposed you to the risk of a more substantial period of incarceration.[2]
[2]See Latina v R [2015] VSCA 102 at [11]
38 In Latina v R, the Court stated at paragraph 17:
'If admissions are made as to facts concerning the commission of that offence that are unknown by the investigators which materially elevate the gravity of the offence, such voluntary disclosures entitle the offender to a discount on the sentence that would otherwise be imposed for the offence of that gravity.' (Emphasis added)
39 I do not consider that the admission made by you in respect to the cutting and replanting materially elevates the gravity of the offence.
40 You do not speak English and your family all reside in Vietnam. You do not receive visits in custody. I am told that you do associate with fellow Vietnamese speaking prisoners who assist you in your interactions with prison officers.
41 I accept that, as a result of your isolation from your wife and family, as well as your lack of English skills, custody will be more onerous for you. That will no doubt cause you some distress.
42 It was submitted on your behalf that upon the completion of your sentence, you hope to return to Vietnam as soon as possible. It was submitted that the uncertainty as to how long that will be after you are released from prison adds to the burden of your imprisonment.
43 Your counsel relied upon the decision of her Honour Judge Hogan in DPP v Gjyla.[3] In that case, her Honour noted that there was no evidence before her as to the period in immigration detention that would have to be endured, as is the case here. Her Honour was nevertheless willing to take into account the uncertainty of further detention after being released from prison and the attendant anxiety caused thereby.
[3][2019] VCC 84
44 Whilst there is no evidence before me as to your anxiety as a result of this uncertainty, I am prepared to accept, given your strong desire to return to your family in Vietnam, that you will suffer some anxiety. Accordingly, I take that into account in assessing the burden that your incarceration will have upon you.
45 Given your age, your lack of prior convictions, the level of your education and your work history, as well as the fact that there are no psychological issues, I consider that your prospects of rehabilitation are very good.
46 I also accept that you are genuinely remorseful for your involvement in this offence and that you have suffered shame and loss of face. You stated in your letter to the court 'I will never again bring shame to my family or damage to members of the community by being involved with drugs'.
Sentencing principles
47 I am required to have regard to a number of sentencing principles.
48 The offence for which you have pleaded guilty is a serious one. As I earlier stated, it carries a maximum penalty of 25 years' imprisonment. The role of a crop-sitter is an important one to those involved in the hydroponic cannabis cultivation.
49 In sentencing you I must give effect to the principles of general and specific deterrence. I must deter other people from offending in the way that you have offended. General deterrence is of primary significance to the sentencing exercise I must perform.
50 As I consider your prospects of rehabilitation to be very good, as well as the fact that you have no prior convictions, specific deterrence will carry less weight than it otherwise would.
51 I must also manifest the community's denunciation of your offending, as well as impose a sentence that reflects just punishment.
52 The sentence I impose must also be designed to promote your rehabilitation.
53 I am obliged to have regard to current sentencing practices in determining sentence, though I note the guidance of the High Court in DPP v Dalgleish[4] that current sentencing practices are one of the many factors that must be taken into account in sentencing. I have had regard to numerous sentences imposed by this Court for the offence of cultivating a commercial quantity of cannabis set out in the Judicial College of Victoria's Sentencing Manual, as well as the case of Nguyen v The Queen[5], to which both parties referred in the course of the plea hearing. I have had particular regard to the case of DPP v Duong and Pham[6], a decision of the Chief Judge of this Court which involved the application of a 'Doran discount' in similar circumstances.
[4] [2017] HCA 41
[5] [2016] VSCA 198
[6] [2016] VCC 1327
54 You have been in custody since 17 October 2018. Pre-sentence detention, not including today, is 218 days.
55 HIS HONOUR: I declare 218 days to be reckoned as the period of imprisonment already served in respect to the sentence I am about to impose. Mr Nguyen, if you would now stand, please?
56 On the charge of cultivating a commercial quantity of cannabis, you are convicted and sentenced to 22 months' imprisonment.
57 I direct that you serve a minimum of 12 months' imprisonment before becoming eligible for parole.
58 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a total effective sentence of 28 months' imprisonment with a non-parole period of 17 months.
59 HIS HONOUR: All right. Mr Overall, you will explain that to your client in - - -
60 MR OVERALL: Yes. Mr Nguyen is going to make a phone call to me tonight, when I have my interpreter with me and that will be explained to him in full.
61 HIS HONOUR: You are able to see him in the cells here and I can - - -
62 MR OVERALL: Yes, I will - - -
63 HIS HONOUR: - - - and I can ask the interpreter to remain if that would assist?
64 MR OVERALL: That would be very good, Your Honour. Thank you.
65 HIS HONOUR: Madam Interpreter, will you assist counsel to explain the effect of my sentence and orders to Mr Nguyen?
66 INTERPRETER: Yes, Your Honour.
67 HIS HONOUR: At the completion of this sentence?
68 INTERPRETER: Yes, Your Honour.
69 HIS HONOUR: Thank you. Now, it was a forfeiture order that you sought, was it, Ms Dawson?
70 MS DAWSON: Yes. Forfeiture and disposal, Your Honour.
71 HIS HONOUR: All right.
72 MS DAWSON: And I understand those have now been emailed to your instructor.
73 HIS HONOUR: Yes.
74 MS DAWSON: Your Honour's associate.
75 HIS HONOUR: Mr Overall, you have seen the application for forfeiture and disposal?
76 MR OVERALL: Yes, Your Honour.
77 HIS HONOUR: Yes.
78 MR OVERALL: No objections.
79 HIS HONOUR: No, all right. There being no objection, I make the forfeiture order as sought by the learned prosecutor. I also make the disposal order, as sought. Have I covered all of the matters?
80 MR OVERALL: I think that has done very well, Your Honour. Thank you very much.
81 HIS HONOUR: Yes. Ms Dawson?
82 MS DAWSON: Yes, Your Honour. Yes.
83 HIS HONOUR: All right. Thank you. I will just sign the orders and then we will adjourn. Thank you, officer, Mr Nguyen can be taken downstairs. Before you do that, with the presence of the interpreter, I just want to thank both counsel for your very helpful submissions.
84 MR OVERALL: Thank you, Your Honour.
85 HIS HONOUR: We will adjourn the court.
86 (At this stage the accused left the court.)
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