R v Nguyen
[2017] VCC 1939
•22 December 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-01294
Indictment No. H10940825
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUY THANG NGUYEN |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2017 | |
DATE OF SENTENCE: | 22 December 2017 | |
CASE MAY BE CITED AS: | R v NGUYEN | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1939 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Cultivation of narcotic plants – commercial quantity
Legislation Cited: Crimes Act 1958 s 72A, Sentencing Act 1991
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A Trotman | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms D Dempsey | Victoria Legal Aid |
1 Huy Thang Nguyen, you have pleaded guilty to an indictment containing one charge of cultivation of narcotic plants in a commercial quantity.[1] The charge is between dates and covers a period of 29 days.
[1] Drugs Poisons and Controlled Substances Act 1981 s 72A
2 The maximum penalty for cultivating a commercial quantity of cannabis is 25 years’ imprisonment.[2]
[2] Drugs Poisons and Controlled Substances Act 1981 s 72A
3 The prosecution has filed a summary of prosecution opening dated 2 October 2017, which I am told by your counsel I can treat as a statement of agreed facts.[3]
The facts
[3] Exhibit P1
4 You were 21 years of age at the time of committing this offence. You are now 22 years of age.[4] You therefore fall to be sentenced as a youthful offender.
[4] Date of birth is 20 September 1995.
5 At 7.55 pm on 4 April 2017, police executed a search warrant at 67 Croydondale Drive, Mooroolbark.
6 Upon gaining entry, police observed you attempting to leave the premises via the rear of the property. You were apprehended by police.
7 Inside the house police located five rooms being used to grow cannabis. Hydroponic equipment was being used in each of the five rooms.
8 An electrical bypass had been installed at the address. You are not charged in relation to this and it plays no role in the sentence I will impose on you.
9 One hundred cannabis plants were located inside the house, weighing a total of 69.04 kilograms.
10 Also located inside the house was a quantity of loose dried cannabis, weighing 3.64 kgs.
11 The total weight of the cannabis plants and cannabis seized was 72.68 kgs. The commercial quantity threshold is defined as being 100 plants and over 25 kgs.[5] Accordingly, this offending involved almost three times the commercial quantity.
[5] Drugs Poisons and Controlled Substances Act 1981 s 70 and schedule 1, part 2.
12 I was told by your counsel on the plea how you became involved in this offending. You consented to an approach to meet with a Mr Long, a Chinese man that you knew through people that you were living with in Springvale, and this approach was about a month before your arrest. Mr Long suggested crop sitting as a means of earning money.
13 You were not able to get work at that time and agreed to become involved in this offending. You were not a user of illicit drugs. Your motive for becoming involved in this offending was purely financial gain.
14 A record of interview was conducted with you at the Knox police station, with the assistance of a Vietnamese interpreter. During the record of interview, you said the following:
| · You had been cultivating the cannabis for about one month. · You were the sole person attending the crop. · You attended the house every day at about 4 or 5 pm and stayed until the following morning. You did not go to the house during the day. · Your role was to do everything necessary to nurture the crop to harvest. · You watered the plants. You put plant food in the water. You said it was a chemical. · There was a main pump that pumped the water to all the plants. · You knew that cannabis plants are illegal, but you claimed you did not know that these plants were cannabis. · You claimed that you only found out the plants were cannabis as a result of what you heard from police and the interpreter who called them cannabis in the interview room. I do not accept this claim. · You got this job when you were introduced to somebody through a friend. · Your family in Vietnam are bankrupt and you did this to get money. · You were paid $1000 to look after the plants and you were told that you would be paid $3000 once the crop was harvested. · You did not set up the cannabis crop, hydroponic equipment or the electrical bypass. |
Offence seriousness
15 Your counsel conceded that the following factors are relevant to the court’s assessment of the objective seriousness of the offending:
(a) The total weight of plants seized was nearly three times the commercial quantity by weight. The offence is a quantity based offence.[6]
(b) The cannabis was being cultivated in a hydroponic setup fitted with electrical by-pass in a residential premises.
[6] See eg Nguyen v The Queen (2010) 208 A Crim R 464
16 However it was also submitted by your counsel that the following factors are relevant when determining your role in the offending as being at the lower end:
(a) The number of plants was 100.
(b) The house was not leased from a known innocent victim.
(c) The period of cultivation was based on admissions in your record of interview, in the absence of surveillance or witnesses.[7]
[7] See R v Nguyen and Pham [2007] VSCA 250 [33] (Neave JA, Buchanan and Ashley JJA agreeing)
(d) The evidence of enrichment is based on admissions in your record of interview.
(e) It is not alleged that you were involved in organising the operation.
17 You received $1,000 and were promised $3,000 at the end of the growth cycle. Your involvement can be characterised as a “crop sitter” and was limited to attending the property overnight, watering and providing nurturance to the plants.
18 You participated in a record of interview and made admissions, including that you had been “crop sitting” at the property for over a month.[8]
[8] Hand Up Brief at p.178 (p.16 of ROI answer 122)
19 Cultivating a commercial quantity of cannabis is a serious criminal offence as indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum sentence in the criminal calendar. Crop sitters play an essential and vital role in this nefarious trade, which wreaks havoc on our youth, in particular, and causes enormous damage to the community at large.
20 In Doan v R,[9] an appeal against sentence involving a young offender and similar facts to the present case, T Forrest AJA (with whom Harper JA agreed) said:
[9] [2010] VSCA 250 [11]
The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum of 25 yeas [sic] imprisonment. Whilst there is no doubt that the role played by the appellant was of a menial nature, it was nonetheless necessary for the crop to flourish. The maximum penalty fixed by parliament unambiguously demonstrates how seriously the community views this conduct (see DPP v Duong[10]). Recently in this Court emphasis has been placed upon the importance attached to sentencing judges having regard to the maximum sentence fixed by Parliament (see Nguyen v The Queen,[11] DPP v CPD[12]). This court has also emphasised recently that general deterrence is an important consideration in sentencing for this type of offence (The Queen v Mason[13]) and that the link between general deterrence and the increasing prevalence of this offence is readily apparent.[14]
[10] [2006] VSCA 78.
[11] [2010] VSCA 127.
[12] [2009] VSCA 114.
[13] [2006] VSCA 55.
[14] Nguyen v The Queen (2010) 208 A Crim R 464, 468–9 [21] (Maxwell P, Buchanan JA agreeing)
Nettle JA said:[15]
In my view, lest there be any doubt about it, there should be no doubt that in cases involving cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of sentencing considerations. Consequently, as the judge rightly observed, in cases of this kind there is less room to give weight to considerations of such as youth and antecedents that would otherwise be the case. … in a case of this kind an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.
[15] Doan v R [2010] VSCA 250 [17]
21 Accordingly, whilst I have due regard to your youthfulness and lack of prior convictions, in sentencing you for this offence I must give primacy to the principles of denunciation, general deterrence and just punishment.
Personal circumstances
22 You entered a plea of guilty at the earliest opportunity, entering it at the committal mention on 28 June 2017. Moreover, you entered a plea of guilty to a between dates charge, which was based on your admissions alone.[16] You will receive a discount for the utilitarian benefit of your plea as well as the fact I find it indicates your willingness to accept responsibility for your crime and to facilitate the course of justice. Your counsel did not submit that there was evidence before me of true contrition and remorse in your case.[17]
[16]See R v Doran [2005] VSCA 271; R v Nguyen and Pham [2007] VSCA 165 [33] (Neave JA, Buchannan and Ashley JJA agreeing)
[17]See Barbaro v R (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA)
23 You have no prior criminal history.
24 You were born on 20 September 1995 in Vinh, Vietnam and your parents still reside there. They own a business selling motor bikes. You have an older brother, Huy Chung, who recently graduated with a degree in economics from the University of Hanoi. Your maternal grandmother lives with your family in Vinh. She cared for you and your older brother when you were younger whilst your parents worked long hours in the business.
25 You completed primary and secondary school in Vietnam and worked for the family business after school and on weekends. Your family financially supported you to come to Australia. You arrived in Australia on 30 October 2013 on a student visa.
26 Upon arrival in Australia, you enrolled in an information technology course at Swinburne University. Prior to commencing that course, you were required to complete an English (Elicos) course.
27 You obtained employment in a Vietnamese restaurant in Noble Park as a waiter. Your family were experiencing financial difficulties with their business and you began to work longer shifts in order to send money home to your family.
28 You disengaged from your studies and your visa was cancelled on 6 February 2015. You consequently lost your employment at the Vietnamese restaurant.
29 You were aged 21 at the time of offending. It was submitted on your behalf that principles regarding sentencing young offenders that were established in cases such as R v Mills[18] and R v Azzopardi[19] should be given some weight.
[18] [1998] 4 VR 235, 241
[19] [2011] 35 VR 43
30 It was acknowledged by your counsel that in cases of serious offending those principles may assume less weight.[20] However it was submitted that those principles have some application in your case because:
[20] ibid 57 [44] (Redlich JA)
(a) The offending reflects a degree of immaturity, you had a lot to lose and very little to gain by your actions. This was said to objectively demonstrate a lack of insight and judgment on your behalf.
(b) You still have the potential to be redeemed and rehabilitated.[21] Your criminality is not entrenched. You have no prior record of criminal convictions.
(c) Time in incarceration may impair, rather than improve, your prospects of rehabilitation.[22] You have a work history. You have the capacity to develop individual responsibility and you have the capacity to contribute to society.
[21] ibid 53 [34] (Redlich JA)
[22] ibid 54 [35] (Redlich JA)
31 I accept these are relevant considerations in sentencing you, and I will give them significant weight, however, as your counsel accepted, general deterrence must remain the paramount sentencing consideration in your case.[23]
[23] See above paras 18–19
32 You have a strong work history having gained employment whilst in Australia and previously worked in a family business in Vietnam while studying.
33 You have the support of your family in Vietnam who are aware of you being in custody. You have weekly phone contact with your family in Vietnam. You were also supported in court during the plea hearing by two "adopted aunties", a friend and one of the auntie's sisters.
34 You will be deported back to Vietnam upon release from custody and you intend to reside with your parents and obtain employment. You hope that once your brother has found employment the family will be able to once again assist with your education in Vietnam. I accept that there will be some increased custodial hardship by reason of your deportation, although this is tempered by the fact you have few ties with this country. I also accept you will be to socially isolated to some extent whist in custody by reason of your lack of English and social supports in the Victorian community.
35 You have been in custody since your arrest on 4 April 2017 and have served 262 days pre-sentence detention, up to but excluding today.
36 Your counsel has conceded on your behalf that a term of imprisonment is warranted in this matter. Clearly, this is the only realistic option available to me.
37 I have given consideration to current sentencing practice for this offence in light of the recent decision of the High Court in DPP v Dalgliesh (a Pseudonym)[24] and the recent decision of the Victorian Court of Appeal in Nguyen v R.[25] I accept that yours is not mid-range offending, but it is significant lower range offending, significant by reason of the weight being nearly three times the commercial quantity, your involvement over almost a month and the fact that you were the sole provider of care to the plants during that period.
[24] (2017) 91 ALJR 1063
[25] (2016) 311 FLR 289
38 Your counsel provided me with a table of “comparable cases”, dated 11 August 2017.[26] As is so often the case, the circumstances of the offending conduct and the personal circumstances of the offenders in cases of this type are so varied that the assistance provided by sentencing statistics and the sentences imposed in other cases for offences of a similar character is necessarily limited. Nonetheless, I have tried to garner some understanding of sentencing patterns in this State for this offence.
[26] Ex A2
39 In light of the seriousness of the offence, the objective gravity of the offending conduct, your role in it and your moral culpability, and taking into account your personal circumstances and all relevant mitigating factors — particularly your early plea of guilty; your youthfulness, both at the of time of committing the offences and today; your lack of prior criminal history; your admissions to police, which gave rise to a longer charged period of offending than might otherwise have been the case; some degree of custodial hardship; and your good prospects of rehabilitation — while giving effect to the principles of proportionality and parsimony, I am of the view that a relatively lengthy period of imprisonment is necessary to achieve the purposes for which this sentence is imposed, particularly the principles of denunciation, general deterrence and just punishment and the ultimate facilitation of your prospects of rehabilitation.
Stand up Mr Nguyen
On the charge of cultivation of a commercial quantity of narcotic plants (cannabis) you are convicted and sentenced to be imprisoned for 30 months.
I fix a period of 20 months before you are eligible for parole.
I declare pursuant to s18 of the Sentencing Act 1991 that the period you have served in custody in relation to these offences is 262 days (not including this day) which is to be reckoned as a period of imprisonment already served under the sentence I have just imposed and I direct that that declaration be entered in the records of the Court.
I declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty, I would have sentenced you to 42 months’ imprisonment with a non-parole period of 32 months’ imprisonment.
Remove the prisoner
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