R v Dung Nguyen
[2013] VCC 1244
•6 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-02052
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUNG CHI NGUYEN |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September 2013 | |
DATE OF SENTENCE: | 6 September 2013 | |
CASE MAY BE CITED AS: | R v Dung Nguyen | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1244 | |
REASONS FOR SENTENCE
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Subject:Sentencing – Cultivation of cannabis – 2 charges – one in a commercial quantity
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 3 years imprisonment with 6 months suspended for 12 months. Time served.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Ruddle | OPP |
| For the Accused | Mr B. Lindner | Tait Lawyers |
HIS HONOUR:
1 Dung Chi Nguyen you have pleaded guilty to two charges of cultivating cannabis, one of which was in a commercial quantity.
2 Your pleas came late. Your trial began before me on 13 August. At that stage an indictment containing 17 charges including 5 charges of cultivating cannabis, three of which were in a commercial quantity as well as drug possession, dishonesty offences and using and supplying false information was before me.
3 I heard pre-trial argument concerning severance and the tendering of evidence from a witness alleged to be ‘unavailable’ but before any rulings the prosecution advised that the case would be ‘recast’ and filed-over a new indictment containing the two charges to which you have pleaded together with other associated charges. A lengthy voir dire concerning the admissibility of identification evidence was then conducted. On 26 August I ruled that the prosecution could lead evidence of observations of you, on 7 June 2010, fleeing the property housing the commercial cultivation.
4 I then heard argument concerning the admissibility of particular passages in a record of interview. In the course of argument it became clear that it was likely the prosecution would seek to rely on evidence of ‘incriminating conduct’. It also became clear that the interview had not been accurately interpreted and arrangements to have the interview re-interpreted were made. There was an additional question concerning your mental state at the time of the interview and arrangements were made to obtain an expert opinion on this matter.
5 On Thursday 29 August I adjourned the matter until yesterday, 5 August, however, I was contacted later that day and told the matter had been resolved. On Friday 30 August a new indictment was filed-over and you pleaded guilty to the two current charges. The prosecution accepted these pleas in satisfaction of all the allegations reflected in previous charges.
6 The prosecutor, Ms Ruddle, opened the circumstances of the offending by reading from a written document headed ‘Summary of Prosecution Opening on Plea’, which was tendered.
7 You acted in concert with you wife, Linh Doan. Charge 1 concerns a hydroponic commercial cannabis crop at 1 Hooker Ave, Springvale, where the police located 233 plants weighing 75.454kg. The cultivation occurred between 22 April and 7 June 2010. Charge 2 concerns a hydroponic cannabis crop at 12 Arthur Court, Noble Park where 78 plants weighing 11.67kg were located. This cultivation is alleged to have occurred between the first day of February 2010 and 15 June 2010.
8 Both crops were sophisticated enterprises.
9 After discovery by Sgt Hughes you took steps to avoid detection and fled to Western Australia from where you were arrested on 17 February 2011 and extradited back to Melbourne.
10 You were interviewed on 22 February 2011 and although I cannot be certain about the precise words used by you, the thrust of your defence was that you were associated with others who were involved with cannabis but you were working undercover for the authorities.
11 You have been in pre-trial custody for far too long. Your case has been very difficult for the court to manage. There were serious concerns about your fitness for trial late last year. There have been problems with legal representation.
12 Your wife pleaded guilty to three charges of cannabis cultivation including two properties where commercial crops were grown. One of these properties is the Hooker Avenue property to which you have also pleaded guilty. Your wife also faced charges of cannabis possession, making a false report to police and obtaining by deception.
13 She indicated an early intention to plead guilty prior to the commencement of the committal. Her plea was heard on 20 January 2012 before Judge Parsons. She was sentenced to a total effective term of 3 years and 6 months imprisonment with a non-parole period of 18 months. She had been in custody for almost a year at the time of sentencing and was released on parole on 31 August 2012 after serving 18 months in prison. The penalty imposed for each of the commercial crops was 2 years imprisonment and the penalty for the cultivation simpliciter was 9 months imprisonment. Nine months of the sentence on one of the commercial cultivation charges and 6 months of the sentence for the cultivation simpliciter charge were accumulated on the remaining commercial cultivation charge which would have produced a sentence of 3 years and 3 months for the three cultivation charges. Three months of a six month sentence for obtaining property by deception was also accumulated making for the total effective term of 3 years and 6 months.
14 Ms Ruddle emphasised that Ms Doan’s case could be distinguished from yours because she pleaded guilty early, was the sole supporting parent of your and her son aged 17 months who was in prison with Ms Doan and would continue to be there, as well as an allegation made by Ms Doan to a psychologist that she suffered domestic abuse from you.
15 Judge Parsons said Ms Doan "certainly showed a remarkable resolve to persist in criminal activity of a very serious and protracted kind". He said that but for the guilty pleas the total effective sentence would have been for 4 ½ years with a non-parole period of three years. He thought Ms Doan had reasonably good rehabilitation prospects. She had no prior criminal history. She was, of course considerably younger than you being only 26 at the time of sentence and 24 at the time of offending.
16 I noted in discussion that I thought the sentence modest. The non-parole period was short.
17 The prosecution accepts that parity is an important sentencing consideration despite my view that the sentences imposed on your wife was lenient.
18 Your counsel, Mr Lindner, outlined your personal history. It was also detailed in a psychological report prepared by Bernard Healey.
19 I will not repeat the details but you are 47 years old. You were born in Vietnam. You father died in 1975 when you were in Year 7 at school. Your mother is still in Vietnam. She is frail and you want to visit her. You had a limited education and worked as a fishmonger until fleeing Vietnam, by boat, aged 24. You were in Indonesia for 4 years before coming to Australia as a refugee in 1994. Your marriage to Ms Doan was your second marriage. Your first marriage broke down because your wife was extravagant and had a gambling addiction. You have two teenage boys from your first marriage and of course you and Ms Doan had a son. You married Ms Doan when she became pregnant in 2009. You lost contact with Ms Doan in May this year.
20 Mr Healey thought your intellectual functioning was below average with 85 percent of people your age doing better.
21 In Australia you have worked as a farmer and more recently organising labour for farm work.
22 You have not been well in custody. You have taken anti-depressant medication for many years; you take medication for high blood pressure and high cholesterol. You suffered a serious work related injury to your back in 2001 and have experienced severe neck pain in prison.
23 It was accepted that time spent on remand is usually more onerous than incarceration as a sentenced prisoner. Nevertheless, you have done the best to occupy yourself in prison and undertake courses. Separation from your family and worry about your mother has been a heavy burden. Your mother and children from your first marriage are unaware that you are in prison. I accept your counsel’s submission that prison has been difficult and is likely to have had a salutary effect on you. You have been mentally unwell in prison.
24 You wrote a letter addressed to me in which you expressed remorse and a determination not to offend in the future. Ms Ruddle submitted that I should give the letter little weight concerning remorse given the apparent late change of attitude. I think this is right.
25 You have a criminal history but it is not significant.
26 As noted earlier there have been concerns about your mental health. Mr Lindner, however, disavowed any reliance on the principles in Verdins case.
27 Your counsel submitted that I should accept that your role in the offending was limited to moving hydroponic equipment at the request of your wife and for the benefit of others who were the principals behind the cannabis growing. As I understood the submission, it was that you and your wife essentially assisted with transport. I noted that the submission was based mainly on instructions and submissions from the Bar table. The prosecution resisted this submission.
28 It is not possible for me to precisely define your role. However, I accept the prosecution argument that it was greater than you claim. You were present at the deceptive renting of Hooker Avenue. You were discovered at the premises by Sgt Hughes in June 2010. Arthur Court was owned by your first wife and you approached an agent asking him to manage but not inspect the property. These facts alone suggest a much closer association with the properties than you claim. Other material was relied upon by the prosecution to connect you to the properties and confirm your interest in them. Moving equipment alone would be an important role, however, I reject the submission that your role was so limited.
29 Your pleas of guilty were late. The plea to the Hooker Avenue crop came after a ruling concerning the admissibility of identification evidence. The pleas, however, were a resolution where both you and the prosecution gave ground. Serious charges you faced are now not to be pursued. I understand the difficulty of making partial admissions when faced with numerous allegations. You must benefit from your pleas of guilty. Despite the fact that the trial was first listed before me in mid-August your pleas still save much time, expense and the need for witnesses to give evidence. You have acknowledged your guilt of the charges.
30 Mr Linder strongly submitted that I should not impose a non-parole period. This was in the hope that the sentence would be less than the time served. If it were to exceed it he submitted that I should impose a total effective sentence not greater than 3 years and then suspend some part of the sentence to enable your immediate release. The holding in suspension of part of the sentence for a period of time would act as a deterrent, he submitted. Although, of course, he earlier submitted that the lengthy time you have already spent in custody would be expected to have a significant deterrent impact.
31 You, personally, also urged me to not to impose a non-parole period.
32 Ms Ruddle argued that a sentence of 3 years or less would be insufficient albeit the sentence would not have to exceed 3 years by any great margin. In particular she submitted that the sentence for the Hooker Avenue commercial cultivation should be between 2 ½ and 3 ½ years.
33 I was referred to a number of cases and sentencing statistics.
34 In my view parity is an important issue. Your wife received a very modest non-parole period. Although the head sentence exceeded 3 years by 6 months she faced additional charges including another commercial cultivation.
35 I need to pay regard to her sentence and determine whether any sentence passed by me would give rise to a justifiable grievance by you.
36 The prosecution has sought a forfeiture order concerning the Mitsubishi Lancer registration QHU546. You resisted this order. The question is whether I am satisfied that the car was used in connection with the commission of one or both of the offences on which I propose to convict you. I accept the arguments of the prosecution that I should infer that the car was used to facilitate drug activity at both properties, certainly the Hooker Avenue property where it was located when you fled. Accordingly, I intend to make the order and it will attach to Charge 1.
37 Each of the sentences I intend to impose are modest as is the total effective sentence but in my view they are appropriate given all the circumstances.
38 On Charge 1, cultivation of a commercial quantity of cannabis you will be convicted and sentenced to 2 years and 4 months imprisonment.
39 On Charge 2, cultivation of cannabis you will be convicted and sentenced to 16 months imprisonment.
40 Charge 1 is to be the base sentence. I order that 8 months of the sentence on Charge 2 is to be served cumulatively on Charge 1 making for a total effective sentence of 3 years.
41 I order that 6 months of this sentence is to be suspended for a period of 12 months.
42 As noted in discussion I could have achieved the same total effective result by imposing an aggregate sentence. It would also have been permissible, as I see it, to structure the sentences slightly differently to achieve the same total effective sentence. The two crops seem to have been cultivated in tandem over roughly the same period.
43 You have now served 932 days pre-sentence detention, that is 2 years, 6 months and 20 days. This period is to be reckoned as time already served under the sentence I have imposed.
44 That means you have served the operative period of the sentence I have imposed.
45 You need to understand that if you commit another offence punishable by imprisonment during the next 12 months you will be brought back to me for further sentence.
46 Had you not pleaded guilty of course you would have been at risk of other charges, however, on the two charges before me, I expect I would have sentenced you to about 4 years imprisonment, perhaps more. It is difficult to estimate what non-parole period I might have imposed but it would not have been less than 2 years and 6 months.
47 You have consented to me making an order for the taking of a forensic sample. I will make the order. My reasons will appear in the order. You must understand that a police officer may use reasonable force to obtain the sample.
48 Mr Lindner and Ms Ruddle, Mr Nguyen is now to be released from custody. The usual practice is that he needs to be processed before leaving the court and of course the formal orders would need to be signed and provided to the jail authorities. Can you explain that to your client so he knows exactly what is happening?
49 MR LINDNER: I'll do that.
50 HIS HONOUR: Very well, let me just sign these orders. You or Ms Greensill can go and tell him now if you like, just to make sure he understands.
51 MR LINDNER: We can both approach.
52 HIS HONOUR: Very well.
53 Where should Mr Nguyen report for the obtaining of the forensic sample? Can either of you help me with that? It has been left blank in the document.
54 MS RUDDLE: Your Honour, I'm instructed that Springvale has the facilities.
55 HIS HONOUR: So Springvale police station?
56 MS RUDDLE: Yes, Your Honour.
57 HIS HONOUR: Very well, thank you.
58 All right, is there anything else I need to do?
59 MS RUDDLE: Nothing further, Your Honour.
60 MR LINDNER: No, Your Honour.
61 HIS HONOUR: Very well. Can I thank you both for your help; it is a difficult case and if I can say so, I thought you both were highly professional and highly competent. Thank you very much.
62 MS RUDDLE: May it please the court.
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