Director of Public Prosecutions v Tran
[2019] VCC 2216
•18 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-19-01381
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHINH TRAN DIEP LE AN NGUYEN |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 18 December 2019 |
| CASE MAY BE CITED AS: | DPP v Tran |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2216 |
REASONS FOR SENTENCE
---Subject: Criminal Law - Sentence
Catchwords: Cultivation of narcotic plant
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic) s.72B
Cases Cited: R v D'Aloia [2006] VSCA 237, R v Cheung Wai Man (Unreported, Supreme Court of NSW 22 March 1991), DPP v Condo [2019] VSCA 127, Nguyen v The Queen [2010] VSCA 127, Doan v The Queen [2010] VSCA 250, Hasan v The Queen [2010] VSCA 352, Nguyen v The Queen [2017] VSCA 127, Nguyen and Ho v The Queen [2019] VSCA 134, McClelland v The Queen [2017] VSCA 124, DPP (Cth) v Omar [2019] VSCA 188, Bugmy v R [2013] HCA 37, L'Eveille [2018] VSCA 60
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Dawson | |
| For Accused Tran | Ms A. Liang | |
| For Accused Le | Ms J. Poole | |
| For Accused Nguyen | Ms K. Rolfe |
HIS HONOUR:
1In this matter which began before this Court on 31 October of this year,
Ms Dawson has appeared throughout in the proceedings, Ms Poole has appeared on behalf of Mr Le, Ms Allen and then Ms Liang on behalf of Mr Tran and then Ms Rolfe on behalf of Mr Nguyen.2The original hearing concerned only the indictment concerning Tran and Le and on that date, the matter was adjourned at the request of Ms Poole who sought time to establish evidence and submissions insofar as s.5(2H) of the Sentencing Act. Such time was granted.
3The parties however, that is Mr Le and Mr Tran pleaded guilty to the charge on the indictment that is CR-19-01382/81/02248 and that is the charge of cultivate a narcotic plant, in this instance cannabis, in a commercial quantity being an offence pursuant to s.72A of the Drugs, Poisons and Controlled Substances Act. The seriousness of such is demonstrated by the fact that the maximum sentence prescribed by Parliament is one of 25 years. This is also pursuant to the Sentencing Act, a category 2 offence.
4Given the adjournment, it was determined because of the similar circumstances and the role, albeit lesser, of Mr Nguyen to add to the proceedings, his indictment and on the resumed date that was done, that is 14 November 2019 when Indictment No.K11377937 was filed. I cannot remember,
Madam Prosecutor, did he plead on that day or had he already pleaded?5MS DAWSON: I believe he was arraigned on that day, Your Honour.
6HIS HONOUR: Yes and to which he pleaded, in this instance a lesser charge being cultivate a narcotic plant. However such cultivation taking place on the same day 29 May 2019 at the same premises and involving the drug cannabis, such an offence being an offence against s.72B of the Drugs, Poisons and Controlled Substances Act for which the maximum penalty is 15 years.
7At the time of the offending, Mr Le was and still holds, as I understand, a bridging visa. Mr Nguyen did hold a bridging visa, however I understand that has now been cancelled and Mr Tran was illegally in this country. Neither of the prisoners had any priors. The PSD insofar as all parties is confirmed today at 203 days. The prosecution has sought from me a forfeiture and disposal order which I have signed.
8Insofar as Mr Nguyen is concerned, he has served 203 days, which I think roughly works out, Madam Prosecutor, to seven months or so.
9MS DAWSON: Thereabouts, yes, Your Honour.
10HIS HONOUR: The prosecution has tendered today a copy of an email, sent to the court from the prosecutor, exhibit N4, which reads as follows,
“The Crown submits that Mr Nguyen had low level involvement in the cultivation and for a short period of time and noting that Mr Nguyen had already served 169 days PSD at the plea hearing and will have served 203 days as of 18 December, not including the date of sentence, the Crown does not submit that a term of imprisonment which extends beyond the time served is warranted in this case.”
11Given the circumstances as so demonstrated, and the facts as accepted by the prosecution, as I say to which I will have some comment in due course. But in regard to Mr Nguyen, the facts, in addition to the proposition put that the time served is sufficient, were that he was involved in a low-level assistance in the sense of he was only involved on the one day. He assisted in cutting of the cannabis, but only in a room which contained a maximum of some 14 kilos subsequently found. His assistance was for a short time and the plea is one of cultivate simpliciter. Without in anyway diminishing the excellence of
Ms Rolfe's submission I intend to pronounce a sentence insofar as Mr Nguyen's concerned that he be sentenced to a period of imprisonment of 203 days.
In those circumstances, I assume Ms Rolfe, you do not want to say anything more?12MS ROLFE: No, Your Honour.
13HIS HONOUR: Given that, the only other additional matter that I need to declare insofar as that is to comply with the provisions of s.6AAA as best as I can, given that Parliament requires a Judge to relate the benefit of a guilty plea as one factor only and to advise the benefit of that to an accused.
However, doing the best I can, can I make a declaration that had Mr Nguyen not pleaded guilty, the sentence I would have prescribed would have been a period of 10 months.14Given that Mr Nguyen is at least free to be released but will not be free in the sense of I assume he is sent off to detention then, is he?
15MS DAWSON: That is my assumption as well, Your Honour. I'm not sure as to the mechanics of it.
16HIS HONOUR: I don't think I really necessarily have to explain the intricacies of s.6AAA to your client.
17MS ROLFE: No, Your Honour.
18HIS HONOUR: Yes, well subject to your making your own decision, Ms Rolfe, I am going to order that your client be taken down and you have permission to leave the Bar table if you wish.
19MS ROLFE: Thank you, Your Honour. Might I briefly approach Mr Nguyen whilst the interpreter is present. .
20HIS HONOUR: Yes. Yes, Mr Nguyen can be taken down, Officer, thank you.
(Prisoner NGUYEN removed.)
21MS ROLFE: If I may be excused, given that Mr Nguyen has been taken down, Your Honour.
22HIS HONOUR: Yes, thank you, Ms Rolfe.
23Coming then to Mr Tran and Mr Le. Can I indicate firstly because it seems to me sometimes that people lose track of the seriousness of these crimes.
As a general approach for sentencing judges, in crimes of this type, the then Nettle JA said in Rv D'Aloia [2006] VSCA 237, [56], in the particular case, he was concerned with MDMA, which we are not in this case, but the general proposition was that so far as the effects of drugs are concerned, the matter may still be approached on the basis that all drugs which are prescribed and have deleterious consequences and antisocial proportions and that trafficking in any of them is therefore properly be regarded as a serious criminal offence.24Obviously we are not dealing with trafficking in this matter, but the analogy is important.
25Further, Sully J in of R v Cheung Wai Man (Unreported, Supreme Court of NSW 22 March 1991) said this:
'Such crimes are in a very real sense a declaration of war on the community. It is a distinct challenge that boast the concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no lesser challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted.'
26On the issue as to the quantity of the drugs involved, the maximum penalty prescribed is fundamental, and is always the yardstick, especially in a quantity based scheme, see the Court of Appeal in Director of Public Prosecutions v Condo [2019] VSCA 127, [28].
27In Nguyen v The Queen [2010] VSCA 127, [18] the Court of Appeal said:
'…the maximum of 25 years shows unambiguously how seriously the community through the parliament, views this conduct … 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, … 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.'
28Insofar as cultivation of a commercial quantity of a narcotic plant is concerned, in this instance what is described as a crop sitting, Nettle JA in Doan v The Queen [2010] VSCA 250, [17], said gaol is virtually unavoidable, due to general deterrence being so important in such cases.
29Further, in Nguyen v The Queen [2017] VSCA 127, in particular paragraphs [33] to [36], which involved cultivation of a commercial quantity of a narcotic plant of cannabis, a crop sitting, as to penalty the Court said this:
'Such penalty was "informed by the need for general deterrence and that the prevalence of a form of offending involved in the case gave rise to greater sensitivity in this regard."'
30In particular, this was so, and I stress this because there was some suggestion that there should be some particular status given to these offenders because they were young, had no priors and essentially it was submitted they were vulnerable. The Court said this:
'In particular, this was so because of the prevalent use of young persons with vulnerable immigration status to undertake the role of crop sitter or minder. The consequential buffering from detection of the organisers or principals of the scheme was also correctly identified by the sentencing judge as an additional factor, bearing on the importance of general deterrence ... It follows that the characterisation of the applicant's role as that of a crop sitter does not of itself displace the need to look at the circumstances of the offending as a whole and to weigh competing sentencing considerations in determining an appropriate outcome.'
31It is of interest that I, in addition, note a case to which I am shortly to refer to which concerned Judge Tinney. In Nguyen and Ho v The Queen, a determination of Priest and Beach JJA, [2019] VSCA 134 the Court said at [59]:
'While cases involving the cultivation of narcotic plants are often categorised by reference to whether the accused is, on the one hand, a crop sitter or played some ancillary role or, on the other hand, was an organiser or played a principal or proprietary role, the issue of the role of an offender involved in such offending is not a binary one. Moreover, while the term "crop sitter" may be a useful shorthand description in a case where it is clear that the offender's role is a low-level one, it is not a term of art of fixed or precise meaning. A sentencing judge is required to sentence an offender found guilty of commercial cultivation of a narcotic plant by reference to all of the facts of the case (including all of those able to be gleaned about the offender's role and involvement) and not by reference to whether the offender can be given some particular appellation.'
32It seems to me, those matters need to be considered very much by counsel, and in particular by prosecutors in these matters.
33That brings me to the general comment I want to make which really relates to also to that case involving Judge Tinney.
34Coming to Mr Tran, if we go to the opening, which I understand is accepted by you, Madam Prosecutor, as to the role, the Tran role is set out essentially at paragraph 12, this is the further summary, the one dated
14 November.35Tran was also interviewed with the assistance of a Vietnamese interpreter.
He said he was invited by Le to attend the address for a visit and to have fun. He said he had never seen cannabis before and it was something to see.
He said it was Le and Nguyen doing everything in the house and he was only watching.36Such circumstances, upon which I am to sentence Mr Tran, as set out in the prosecution opening were accepted by Tran's counsel as the matters which were appropriate for me to take into account. I am being asked, and this proposition has been put seriously to me, that it is accepted by the Crown that he is there only on one occasion and that he is watching and that is his only role. That is still the proposition of the Crown, as I understand it, is that correct?
37MS DAWSON: Your Honour, in relation to Mr Tran, I would also have reference to the matters in paragraph 16 as well.
38HIS HONOUR: Yes but they do not do anything, do they? You mean the reference to what is on his phone. Tran's mobile phone was analysed, passports of two tenants, yes I think I mentioned that during the thing.
There were also images of a potted plant and energy bill.39MS DAWSON: Yes.
40HIS HONOUR: Well that is true. Insofar as his role, there is nothing the Crown has but what has been put.
41MS DAWSON: Yes.
42HIS HONOUR: What I am about to say was said by their Honours Beach and Priest JJA, these matters are totally unreal. I must say I was very close to taking the view of Judge Tinney, simply not accept the proposition from the prosecutors as to role.
43The real danger, it seems to me, Ms Dawson, is this is a most serious crime and I am not necessarily criticising the prosecutor. The real criticism relates to the police. The police go there, they must have no doubt had a tip off. They are there for some time observing, they raid the place and we get a situation where the accused are able to say we have only been here one day. It is absolutely unreal and beggars reality. It seems to me that a very strong message should be sent by your office to the police that such investigations are totally unsatisfactory. It leaves the prosecutors, and the Court, in a totally unreal situation. This is a crime in which Parliament has prescribed a sentence, as I have said, for any role of 25 years. It does not matter whether it is an hour, it does not matter whether it is a day, that is the maximum sentence that can be prescribed. It seems to me for the police to be offering up a case of this dimension, with such investigation is a disgrace. But anyway, there we are. That is what I have got to do and it is obvious that I am not particularly happy about it. But there we are, that is what was accepted by the Crown. Counsel on behalf of Mr Tran made her plea on that basis, which I will come to.
44The plea made on behalf of Mr Tran included the submission, Exhibit T1, which I accept and part of that submission, pp.5 and 6, were a series of cases put to the Court for its consideration insofar as taking into account those cases in the sentence. Ms Poole was also good enough to do the same albeit that she also included three cases from this Court.
45I take into account all those cases but as was said by the Court of Appeal in Hasan v The Queen [2010] VSCA 352, at paragraph 49:
'Consistency is to be achieved by the application of the appropriate range, and not from the application of single instances of "like’ cases. The requirement that, for sentencing purposes, like cases be treated in a like manner, will be met if they are placed within the same (appropriate) range.'
46The issue of course ultimately for the Court is there any unjustified inconsistency.
47That matter was further commented upon, and I will not go into the issue as to comparable sentences, but essentially the Courts see past sentences as providing guidance to sentencing judges and appellate courts and such stand as a yardstick against which to examine a proposed sentence. Of course, as set out in Hasan, it is simply one of the factors which is taken into account. This was dramatically demonstrated by the High Court in the recent case of Dalgliesh (a pseudonym) [2017] VSCA 360.
48Insofar as the plea was concerned, there was no resiling that general deterrence must be at the forefront. The submission firstly dealt with the issue of McClelland [2017] VSCA 124; I had referred both counsel to the case of McClelland. It seems to me that the propositions put by Ms Liang are correct. McClelland, it seems, is relevant. There were similar circumstances.
The cultivation was for a further period than Mr Tran was involved in, that is seven days. True it is that McClelland had priors, but he did not have any priors of this seriousness. However, I do accept the proposition put that the substantial difference is that McClelland went to trial, there was issues as to delay and there were priors.49However, there is relevant consideration in that the proportion by way of reference to the qualifying figure was 2.46 times in McClelland, which is almost exactly the proportion in this case.
50Ms Liang stressed that her client was before the Court aged 24 with no priors. That there were no, such as the energy bill and passports, matters for which he has been charged. That he should be seen as a non-resident crop sitter, which I accept.
51Ms Liang submitted that he came to Australia as a refugee. I do not accept the proposition that he came because of being persecuted as a Catholic. There is no evidence of that and I do not accept that proposition despite the comments made by the good Father. He is before the Court now as an illegal resident. As I said, the issue as to imprisonment, the appropriateness of imprisonment was accepted. Stress was made in the plea as to the fact of him being a youthful offender. His background was set out on p.2 by way of his family and upbringing. The circumstances whereby he came to Australia, his occupation in Australia and the fact that he had no criminal history. That point of course must be subject to the relevant principles that I have already referred to, rehearsed by the Court of Appeal that persons in this situation are the very people that protect the masterminds in these crimes and the synthesis to be taken into account when pronouncing sentence in these matters.
52Further, insofar as aspects of sentencing are concerned, is the issue of reward. I am not sure whether there was any reward at all here but one would realistically, as the courts have said, take the view, even for one day that you are doing such for commercial gain. There is no evidence about it. But an important aspect in general analysis was set out in DPP (Cth) v Omar [2019] VSCA 188, at paragraph [13]:
'A case like this reinforces the importance of general deterrence. If someone in [Mr Tran's] position judged that the small reward he was to received justified taking the obvious risks, [the obvious risks are being found guilty of a crime of which the maximum penalty is 25 years] then it would suggest that the "risk-reward calculus" is still not a sufficient deterrent.'
53That is a proposition which is important for this Court to bear in mind.
54The courts as a matter of common sense, say that should be inferred, unless there is evidence to the contrary, that a person carrying out this type of crime was doing so for some financial benefit.
55The last general principle I want to state is as to immigration status. There is no status of Mr Tran, but in Nguyen v The Queen, Redlich JA talking of the principles set out in Gudenv The Queen [2010] 28 VR 288 at p.4 raised concerns as to the qualitative difference between an offender at the time of sentence who has an existing visa and offenders who are not lawfully resident in Australia because their visa has expired. Clearly, Mr Tran is at the bottom of that qualitative difference analysis.
56I take into account that he has pleaded guilty. He is entitled to a discount of penalty for that matter, for its utilitarian benefit and the assistance to justice that such course provides.
57It was submitted at paragraph 16 of the written submission that his prospects of rehabilitation should be seen as good. In many ways, while it is a hopeful matter, given his status, it really does not matter too much because he is going to be back in Vietnam, however would hope given this experience and the time spent in gaol, he will not commit any further criminality.
58I accept the fact that the plea in this matter was made almost at the earliest time possible, as I have said on a number of times. I accept that I need to take into account that he has been a foreign national in custody with limited contact.
I understand he has had that now once a week with his family or partner. He is doing well apparently in the kitchen at Port Phillip. He has been involved in woodwork and in undertaking English classes.59I stress again the proposition that he was young and vulnerable has to be considered against the substantial need for general deterrence, in order to stop the use of persons such as him in these type of cases.
I take into account that he has had pre-sentence detention of 203 days and I, as I have said, have taken into account the cases put to me in the matter by
Ms Liang.60If you would stand please, Mr Tran.
61You will be sentenced, Mr Tran, for this crime to a period of imprisonment of 18 months and I order that the period that you must serve before being eligible for parole is a period of 12 months.
62The 203 days that you have served, which is nearly equivalent to seven months, will be deemed pursuant to s.18 of the Sentencing Act as a period of service of this sentence, and a declaration to that effect will be registered in this court.
63Insofar as the requirements of s.6AAA are concerned, the Parliament requires this Court to tell you the benefit that you have had from pleading guilty. Can I indicate to you that had you not pleaded guilty, the head sentence that I would have given you would have been a period of 24 months. I do not intend to take that requirement any further than that.
64Are there any matters?
65MS LIANG: No, Your Honour.
66HIS HONOUR: Mr Tran can be taken away.
(Prisoner TRAN removed.)
67MS LIANG: Your Honour, might I be excused?
68HIS HONOUR: Yes, certainly. Thank you for your assistance.
69MS LIANG: Thank you, Your Honour.
70HIS HONOUR: Ms Poole, that now brings me to your plea. There were a couple of matters about your plea that concerned me and I want to indicate to you what they are. You may or may not want to do something about it in the sense you may even want to adjourn the case, but I just want to set out the matters.
71MS POOLE: Yes, Your Honour.
72HIS HONOUR: Firstly, when this plea was conducted, you put to me the principles of Bugmy v R [2013] HCA 37 and I accepted that the background of a refugee was probably such that would qualify. As I said to you at the time, it was my view that in the circumstances, given the totality of your client's time in Australia, that even if Bugmy principles did apply, and we all know what the Court says that they always apply, but it seemed to me in the circumstances of this case, that they did not reduce culpability and that is still my view.
73However, I have subsequently taken the view that the initial proposition is quite wrong. I do not accept that just because a person is a refugee from a country, he automatically qualifies under Bugmy principles. However, before I take this matter further, I want to ask the Crown what their view is. I refer to L'Eveille [2018] VSCA 60, in particular paragraph 26, where the Court said this:
'The High Court determined that deprived or traumatic childhoods of that kind may constitute a mitigating factor in sentencing such an offender, although each case must depend on its own facts in order to ensure "individualised justice." Mitigating factors of this kind are not confined to offenders of Aboriginal descent, but are equally applicable to any offender with a deprived background. Moreover, the concept of individualised justice requires that "[i]n any case which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background". The weight to be given to that material, in moderating the weight which would otherwise be given to specific and general deterrence and other sentencing considerations, depends on the circumstances of each case.'
74They go on actually to talk about full weight needing some further explanation and they quote actually from Bugmy, at paragraph 44. '
'Where Bugmy talks of the weight being given where an offender's exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated, such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the ability to control the response to frustration may increase the importance of protecting the community from that offender.'
75In L'Eveille at paragraph 29, the Court said:
'In the result, the High Court remitted Bugmy for reconsideration by the Court of Appeal as a sentencing court, to determine: … whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes of punishment, including rehabilitation, to the extent that [the sentencing judge] allowed.'
76They went on to say in L'Eveille:
'Here, the evidence of the respondent's background was lacking in detail and fairly weak in comparison to cases like Bugmy. The Crown's acceptance on the plea that it was sufficient to engage Bugmy principles is questionable. But, for the reasons given, it cannot be withdrawn on appeal. However, the Crown submission that the respondent's moral culpability nevertheless remained high should be accepted.'
77Now I know in that case, we were talking about a drug induced psychosis, but on further consideration, Ms Poole, I do not accept that simply because you are a refugee that you qualify under Bugmy. If the Crown has accepted that then I am bound, but I will make that enquiry. Have you accepted that proposition?
78MS DAWSON: Your Honour, it is not directly accepted. Certainly the fact that Mr Le was a refugee is one factor to take into account when the Court is considering.
79HIS HONOUR: Of course it is.
80MS DAWSON: But it is a matter for Your Honour.
81HIS HONOUR: My point is this, and I am not in any way saying that in any sentence, one would not take into account the circumstances and deprivation that a person has a refugee. We know he has been to Christmas Island, we know he has been on a boat. Fine. But it seems to me that is a long way from the principles of Bugmy. You may have had the finest upbringing you could have in Vietnam, indeed, if you go to Vietnam, it is a beautiful country and they are very caring people for their families.
82Now, I know circumstances in this case are he lost his mother at a young age, but there is nothing about his life that indicates to me that he qualifies firstly for Bugmy principles to even apply to him.
83MS DAWSON: Yes, and the Crown does not accept that on its face.
Not without further information as to the details, no.84HIS HONOUR: All right. Well that is the position you are in, Ms Poole. That is the first one I just wanted to put to you.
85MS POOLE: Yes, Your Honour.
86HIS HONOUR: It might be a moot point anyway because not only do I do not accept on the evidence that Bugmy principles apply, but as I have already told you, even if they did apply, it seems to me it does not reduce the culpability in this case, given your client's experience in the country, his employment and the fact that he choose willingly to come down here and take these risks.
87MS POOLE: Your Honour.
88HIS HONOUR: Yes.
89MS POOLE: Just in relation to that, it was not my intention to put the proposition as boldly that refugees automatically come within the compass of Bugmy.
The evidence in this case, I accept what Your Honour is saying, that it requires evidence and what Your Honour is saying is that you are not satisfied on the basis of the evidence and the evidence that I had was based on instructions and that was the situation that I had.90HIS HONOUR: That is why I wanted to be fair to you.
91MS POOLE: Yes, Your Honour.
92HIS HONOUR: That if you want to seek instructions, you want to adjourn the matter and you want to call evidence, that is my obligation to give you that opportunity.
93MS POOLE: Yes, Your Honour.
94HIS HONOUR: Let me finish the other matter.
95MS POOLE: Yes.
96HIS HONOUR: I do not think I am confusing it because I thought it was the proposition of both you, given the evidence of the priest in the matter that one of the matters I should take into account is that if your client ultimately and one really does not know with your client because he still has his bridging visa.
97MS POOLE: Yes, Your Honour.
98HIS HONOUR: Now the latest material from the sentencing authority, which you may or may not have seen, seems to indicate that even if the Minister makes a determination, the Minister is then required to reconsider the matter on an order of deportation and as best I understand it, there are a certain number of cases where on his reconsideration, that deportation that does not necessarily occur. But my view would be that your client is almost a certainty given the seriousness of this matter that even on reconsideration, he would be deported I would imagine, but of course that is subject to the refugee tribunal and a further consideration by the Minister as I understand the principles.
99However, in the sense that to take into the calculus of sentencing the fact that if he is deported, he will be in a position where he would be subject to persecution, I wanted to indicate that I do not accept that. I think I put that matter to the priest when I asked him the question.
100MS POOLE: Father Moate.
101HIS HONOUR: Moate, that's right. I said that to Father Moate, but can I just indicate to you that it just so happens that I spoke to one of the leading practitioners in the field and also made researches myself. There is no, as I can appreciate the situation, state of persecution of Catholics in Vietnam.
What the situation is, is that it is an atheist society that does not encourage religion in any way and one would imagine given their cultural background and the impact of Christianity in Asia, that is a very good thing. But anyway, I do not want to get in the social side of it.102But, there is a discrimination in the sense that if you proclaim your faith, if you happen to be a Catholic, there is a chance that you will not get the job because it is an atheist society. But as I understand from my discussions with persons experienced in the field, they has been no example before the relevant tribunals in this country of a determination of a person being allowed to stay in Australia, as against the Minister's determination to deport them, on the basis of an established system of persecution of Catholics in Vietnam and that matter I wanted to bring out as well because that is, as I understand the position, there is no evidence on that. I questioned the priest about that but I wanted to also say that if it was in fact your proposition that that was so, then again, you would need to bring evidence before me on that matter.
103MS POOLE: Your Honour, that was not a proposition of mine. We do not have evidence other than what Father Moate said in the box.
104HIS HONOUR: No.
105MS POOLE: And I have instructions in relation to some persecution as a Catholic and some restrictions on religious freedom that Mr Le referred to in his time in Vietnam but beyond that, I am well aware that I cannot ‑ ‑ ‑
106HIS HONOUR: Well I think what you said was that in fact he left on that basis, one of the reasons. But he was only 16 at the time he left, was he not?
107MS POOLE: Yes. He had left because of yes religious persecution and freedom but also because he was trying to survive without parents in that environment and those were his reasons. But a difficulty has been - well I will not take it any further than that, Your Honour.
108HIS HONOUR: So it is a matter really for you. I wanted to raise those two matters with you, Ms Poole. This matter has worried a bit because no one likes to deal with people who have been through the refugee situation. As I indicate, I do clearly take that into account as his background material.
109MS POOLE: Yes, Your Honour.
110HIS HONOUR: All I am saying is that I do not accept without further evidence that it qualifies as Bugmy on the principles as set out in L'Eveille. As you now are not relying on the issue as to whether Catholics are persecuted or not. I do not have to worry about the other queries that I have raised.
111MS POOLE: Your Honour, in relation to Bugmy, the majority of the cases from what I can see that are able to call upon those principles and are enlivened, they will have often a, it seems, like a psychological assessment or something like that, that might have the accused recounting their background to a psychologist. We do not have that in this matter. If that is something that Your Honour would be prepared to consider, then I can certainly make enquiries in relation to funding for that. I understand it is a matter for ‑ ‑ ‑
112HIS HONOUR: Well that is a matter for you.
113MS POOLE: Yes.
114HIS HONOUR: Because as I have said, even if Bugmy did apply and it always applies, once Bugmy is established, if you prove deprivation, it is a matter that is something that must be taken into account for the rest of the person's life. We understand the High Court says that.
115MS POOLE: Yes.
116HIS HONOUR: But my fundamental proposition is why I do not think it applies in this case to reduce the culpability is the circumstances of your client's life. He gets here, he goes through three years of detention. He gets then the opportunity - sorry, throughout the time he is supported by the community and I am not saying this in retribution, I am just stating the facts.
117The then goes and has a job and works for two years in Sydney getting good employment, gets himself into difficulty by gambling, comes to Melbourne, takes the risks of going in this. In my view, and I put it clearly, I do not think even if he was subject to principles in the sense of the High Court connecting the fact of alcohol abuse affecting a person's ability to commit violence or alternatively control a violent response. I do not see the connection.
118MS POOLE: Your Honour, the submission would be that the connection is the lack of moral guidance that he has had from coming out as an orphan.
119HIS HONOUR: He is 24 now.
120MS POOLE: He is.
121HIS HONOUR: He is an experienced person.
122MS POOLE: If that were to be the case, Your Honour, then the logical outcome of that is that assuming Bugmy applied, a person is effectively ultimately punished by way of not being able to call upon that if they have a period where they are law abiding in their life and then essentially it goes awry.
123HIS HONOUR: No, they are not punished for that. They are punished for deciding to commit such a serious crime. The question you asked me is the culpability reduced because of their background? My view is, even accepting Bugmy applies, there is no reduction in culpability here. If I accept in the circumstances and there was evidence, that the totality of his background could be labelled deprived, I cannot get the connection then when a person comes to Australia at 16, spends his time in detention, gets the assistance, as we have heard, of Father Moate, is part of a good group of young men apparently, according to Father Moate, finally gets himself a job, works hard, finds himself in difficulty and then decides to commit a crime.
124How his deprived background impacts on that, I just cannot get the connection.
125MS POOLE: Your Honour, the connection the lack of education, the difficulties that you then face when you are that young coming to Australia and essentially having to fend for yourself and obviously the lack of moral guidance he has had from a parental or family support figure, people around him, even in Australia, he has obviously had language difficulties. Your Honour, there is not much - the instructions that ‑ ‑ ‑
126HIS HONOUR: He has had the good Father. What better moral guidance could you have than Father Moate?
127MS POOLE: Your Honour, it may be that - I understand Your Honour's difficulty with the connection and with having some evidence to support it. Your Honour ‑ ‑ ‑
128HIS HONOUR: Do not get me wrong. I do not want this over today if you do not want it over. If you want to adjourn and consider the matter, I am happy to do it but I wanted to put that before you.
129MS POOLE: And I am grateful for that indication, Your Honour. If I were to adjourn it, I will be seeking however some time because I will be asking for him to be assessed because it may be that ‑ ‑ ‑
130HIS HONOUR: Do you want to get some instructions, I will stand down.
131MS POOLE: Yes.
132HIS HONOUR: All right. Sorry, wait on. I did confirm the Crown does not accept in these circumstances that Bugmy applies, is that right?
133MS DAWSON: On the evidence that is currently before the court, no.
134HIS HONOUR: No. All right. Well that is the point. Yes.
135(Short adjournment.)
136HIS HONOUR: Yes, Ms Poole.
137MS POOLE: Yes, Your Honour, thank you for that opportunity. I am instructed to seek an adjournment, Your Honour, with a view to explore in further the application of Bugmy.
138HIS HONOUR: Yes.
139MS POOLE: I have had a discussion with my learned friend regarding proposed dates and given the timing it takes et cetera, we were going to propose adjourning to 24 March, Your Honour, with any further defence submissions or materials to be filed by 10 March and prosecution materials to be filed by
17 March.140HIS HONOUR: Did you say, Ms Poole, 24 March? I think that is going to be quite safe.
141MS POOLE: Yes, Your Honour.
142HIS HONOUR: I am running a long trial. But I think we can say the 24th if that suits you both?
143MS DAWSON: Yes, it does.
144MS POOLE: As Your Honour pleases.
145HIS HONOUR: All right, thank you. I do not think in the circumstances it is going to be wasted time if I put it that way.
146MS POOLE: No, Your Honour, I would agree, and thank you for putting me on notice about those things.
147HIS HONOUR: Madam Prosecutor, I know we have to sometimes say things which no doubt police will say in my heaven but there is probably crops coming out of the woodwork around Victoria, but in the end, there has got to be evidence for us to act on. I think a timely suggestion that if you find something, it is do not go straight in because you are met with the problems we are having.
148MS DAWSON: Yes.
149HIS HONOUR: It seems to me a week or two weeks of surveillance.
150MS DAWSON: Yes. I can make assurances that the content of the prosecution opening is a fair precis of the evidence in this case.
151HIS HONOUR: Of course it is and that is half the problem, is it not?
152MS DAWSON: Yes.
153HIS HONOUR: Yes, thank you both for your assistance.
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