R v Nguyen; R v Nguyen

[2020] NSWDC 811

District Court

New South Wales

Medium Neutral Citation:

R v Nguyen; R v Nguyen [2020] NSWDC 811

Hearing dates:

2 April 2020

Decision date:

06 April 2020

Jurisdiction:

Criminal

Before:

Norrish QC DCJ

Decision:

Dang Nguyen – sentenced to a term of imprisonment of 14 months to be served by way of an Intensive Correction Order,

Thang Nguyen – sentenced to a term of imprisonment of 21 months; non-parole period 10 months 16 days.

Catchwords:

Crime – sentence – knowingly take part in cultivation commercial quantity cannabis – equal culpability – no prior criminal convictions – minor but important roles – prior good character - pleas of guilty – COVID-19

Thang – not a user of drugs – took casual work for cash – special circumstances –remorse – good prospects of rehabilitation – deportation

Dang – low risk of re-offending

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

Brown v R [2020] VSCA 60

DPP v De La Rosa [2010] NSWCCA 194

Category:

Sentence

Parties:

Regina (Crown)
Dang Tung Nguyen (Offender)
Thang Van Nguyen (Offender)

Representation:

Counsel:
Mr R Seward (Dang Nguyen)

Solicitors:
Mr J Staples (DPP)
Mr L Nguyen (Thang Nguyen)

File Number(s):

2019/00157975
2019/00157976

Publication restriction:

No

Judgment

1. I am today giving my reasons for sentence in relation to two prisoners, Dang Tung Nguyen and Thang Van Nguyen.

Thang Nguyen’s sentencing orders have been made in his presence earlier.

2. Both prisoners pleaded guilty at the Local Court and in this Court to the same charge. That charge was that they individually, knowingly took part in the cultivation of a commercial quantity of prohibited plants. The particulars of the charge are that the offence was committed on 20 May 2019 at Beverly Hills. The quantity of cannabis plants was 191. The is an offence that carries a maximum penalty of 15 years imprisonment and/or 3,500 penalty units under the relevant provision of the Drug Misuse and Trafficking Act 1985. There is no standard non-parole period.

3. I will refer to Thang Nguyen as Thang and Dang Nguyen as Dang for the purpose of these remarks.

4. Both men are equally culpable for the crime to which they have pleaded guilty. Both men at the time of the offending had no prior criminal convictions. Dang is approximately five years older than Thang. Dang was born in March 1992. Thang was born in July 1997. Thang had been in continuous custody from 20 May 2019 until he appeared before me on 2 April this year. Dang, after his arrest, obtained bail but returned to custody when charged with another offence which I understand to be that of affray. Dang was sentenced in relation to the offence of affray to a Community Release Order for six months. I have taken that fact into account.

5. The two offenders were arrested on premises at Beverly Hills on 20 May 2019. Those premises had been rented in September 2018 by an individual using false identification. This is the usual method of renting premises for the cultivation of cannabis by enhanced means. The Judges of this Court see this practically every time such a case comes before the court.

6. The real estate agents representing the owner organised an inspection of the premises on 24 April 2019. That inspection was rescheduled to be conducted on 20 May 2019. The agents were asked to reschedule that inspection again but instead the agents went to the property and discovered the hallmarks of indoor cannabis cultivation. Police were called and on their arrival at the property they found the two prisoners inside. The offenders tried to hide and then they tried to escape. Both endeavours were unsuccessful.

7. A subsequent search by warrant revealed an enhanced indoor cultivation of cannabis. There were five individual "rooms" converted for that purpose. Two of the rooms contained cannabis plants at various stages of growth. Two of the rooms contained cannabis plant stems cut near the base evidencing recent cultivation. Police later removed 16 bags of cannabis leaf and plant stalks from inside the property weighing a total of 70.222 kilograms. The weight however is acknowledged to be of plant matter that was wet and not dried. Inside the house were various items and equipment used for the purposes of indoor cultivation of cannabis. Apart from sophisticated lighting and other items, there were 150 electrical transformers throughout the property. Also found were fans, tools and large quantities of fertiliser. The windows were boarded up.

8. It is not the Crown case, on the basis that the Crown cannot prove this beyond reasonable doubt, that the accused were concerned with the cultivation of the leaf and stalk matter that was removed. DNA consistent with the prisoner Dang was found on a latex glove and on the steering wheel of the vehicle found in the driveway. A fingerprint of Dang was also found on a light bulb. Fingerprints of Thang were found on a light bulb in one of the rooms.

9. The Agreed Statement of Facts states that the two prisoners' role in taking part in the cultivation included being on the premises on the day of arrest and acting as security guards while maintaining and cleaning the property. In other words each of the offenders could be described as a crop-sitter as that term is used in many judgments relating to the sentencing of offenders of this type. There is no evidence that either offender leased the premises, financed the cultivation or was responsible for the commencement or propagation of the cultivation.

10. There is no evidence that either offender had any particular technical expertise relating to the cultivation of cannabis. The only day that can definitely be established as a date upon which the two offenders were present at the property is the date of their arrest. I cannot accept the assertion of both of the prisoners that this was the only day that the relevant prisoner was at the premises. But I cannot determine beyond reasonable doubt how many days beyond the one day I am speaking of that they were at the premises performing the functions identified in the facts.

11. One prisoner asserted that he was to be paid $200 a day to work two or three days at the premises. This representation has not been subject to the test of cross-examination by the Crown. The Crown concedes, however, that in the absence of other evidence it is impossible to be satisfied beyond reasonable doubt of the precise period of time each offender was at the premises.

12. The Crown in its helpful written submissions when discussing the objective seriousness of the offending, noted the number of plants and the character of the cultivation. The Crown's depiction of it is accurate. This was a commercial operation representing an activity of organised crime. But, as is recognised in the submissions of all the parties, on the evidence available to the court the prisoners are to be sentenced as persons at a low level of culpability for this particular crime, not to be sentenced as organisers, financiers and/or principals. Notwithstanding this, noting s 3A Crimes (Sentencing Procedure) Act 1999 in respect of which I will hereinafter refer to as "the Act", general deterrence is of relevant consideration.

13. As the Crown points out enterprises such as this commonly seen in our court are unable to be sustained without the involvement of persons such as these offenders. The Crown concedes their role was minor on the available evidence but still important. Care, maintenance and security of such properties to protect cultivations are important roles. And as the comparative cases made available to me and my own sentencing experience reveals, people of the backgrounds of these two men are commonly recruited to perform these roles.

14. In the context of the helpful submissions made by counsel for the two accused regarding the objective features of the matter I have taken into account the number of plants and the respective roles of the offenders.

15. In the context of the terms of s 21A(2) of the Act the principal aggravating factor is that the criminal activity represents the activity of organised crime. Although, these two offenders could not be seen as members of a particular organised criminal network, but more accurately described as servants. As I said earlier without going into the detail the hallmarks of this offending are to be found in many cases referred to in the comparative sentencing exercises brought to my attention.

16. While the offence committed by each offender was committed for financial gain in each case I cannot conclude that this is a relevant aggravating factor under s 21A(2) of the Act. There is no evidence that either offender was expecting to share in the profits of the enterprise which would have been considerable. It would seem consistent with their usual occupations that they would receive wages. This "financial reward" is best considered pursuant to s 21A(1) of the Act.

17. In regard to the objective offending the various matters identified by both the Crown and the respective defence counsel are largely common between the parties. The parties are in general agreement as to the relevant considerations to be taken into account in relation to the objective facts. It is to be borne in mind however that this is a very substantial cultivation having regard to the number of plants and the fact that a large commercial quantity of prohibited plants under this provision is 200 plants.

18. The Crown submissions reflect a matter that I detected from reading the relevant table of the Drug Misuse and Trafficking Act 1985. That is, that the same number of plants are required to establish an indictable quantity as a commercial quantity. That appears to me to be an anomaly, but fortunately it does not create an injustice in this particular matter.

19. I have a Sentencing Assessment Report in relation to Thang, but I have none in relation to Dang, through no fault of his own. Both prisoners have produced reports from psychologists.

20. So far as Thang is concerned he has no dependants in Australia. His visa to be in Australia was cancelled sometime in the past. He is subject to what is described in the Sentencing Assessment Report as "active custodial immigration alerts". He told the Community Corrections Officer that he was working for cash in hand prior to his involvement in the current matter. He seems in the report to deny his involvement in this criminal activity, claiming according to the Community Corrections Officer, that he was at the premises for "legitimate contracted employment activities". This does not accord with the history he gave the psychologist, nor the letter of apology he wrote to this Court.

21. He grew up in Vietnam coming to Australia in 2015. He lived in Perth for a period of time hoping to study civil engineering but was unable to complete an ‘English as a Second Language’ course. Just prior to his arrest he had lost casual employment as a chicken boner. He has been working as a painter in custody and expects to be deported. He claims not to be a drug user nor addicted to any drugs.

22. The psychologist did not "diagnose" him as suffering from any psychological or psychiatric disorder. The psychologist said on release from custody he would benefit from vocational, educational and social skills training and from monitoring of his associations. The Community Corrections officer assessed him as being at ‘low risk’ of re-offending.

23. In the context of assessing an appropriate non-parole period, bearing in mind for those purposes, I ignore the fact that he will be deported, I accept that he would need professional assistance to adjust to community living, he would benefit from counselling in relation to employment and training. I am prepared to make a finding of "special circumstances" pursuant to s 44 of the Act. The sentence imposed on him will be backdated to the date he came into custody.

24. In concluding upon the appropriate sentence in this matter I have taken into account his role, his subjective circumstances and the mitigating factors arising under s 21A(3) of the Act, particularly that he was a person without prior convictions, was previously of good character, is unlikely to re-offend, has good prospects of rehabilitation, his evidence of remorse through his letter of apology, and his plea of guilty.

25. Thang and Dang are both entitled to a discount of 25% upon the appropriate sentence for their early pleas of guilty. I point out in relation to Thang that his counsel conceded that the s 5 ‘threshold’ had been crossed. The fixing of a term of imprisonment with a non-parole period is the only practical way of dealing with this particular prisoner. No community based options are available for him given his prospective deportation.

26. In the case of both Thang and Dang I have had regard to the two schedules of supposed comparative cases setting out sentences at first instance over the last ten years in respect of offences of similar character, making allowances for the fact that no two cases are alike or identical save for the two cases of the two men before me today. Those comparative cases with the limited information within the schedules provide guidance as to a range of sentence imposed by a range of different judges.

27. With regard to the co-accused Dang, he has been in custody for a shorter period than Thang. There is no Sentencing Assessment  Report in relation to him but I see no reason for him to be ineligible to serve a term of imprisonment by way of Intensive Correction Order. I note in relation to the schedule of comparative sentences that some offenders have been given the benefit of the inherent leniency of such an order for similar offending. Usually this is in circumstances of low culpability without prior convictions.

28. This prisoner's subjective circumstances are very similar to those of Thang but for two matters. Dang has a lawful entitlement to remain in Australia and since being charged in relation to the current offence he has been charged with another offence. The charging of the prisoner with that other offence however is not of such significance as to warrant not taking the course that I have foreshadowed, although it may reflect unfavourably upon his prospects of rehabilitation. He has explained to the psychologist the circumstances of that offending, it seems disconnected with the circumstances of the current offending, and his prospects of rehabilitation need to be seen in the context of him being a person who for approximately 28 years was able to avoid offending.

29. The prisoner came to Australia in 2013 having been born in Vietnam and studying in Vietnam to university level. He undertook a Bachelor of Business degree in 2018 but had difficulties because of his lack of English. He asserted in his history to the psychologist that when he arrived at the house Thang was already there and appeared to have prior knowledge of the cultivation. This is a representation I cannot use against Thang. Dang is the person who claimed that he was to be paid $200 per day for two or three days work.

30. The psychologist who prepared a report in relation to this prisoner reflected upon a history of mild head injury in childhood and a possible diagnosis of Attention Deficit Disorder. The psychologist expresses the opinion that the prisoner became clinically depressed when struggling with his university studies in Australia. However he said he was not experiencing an episode of depression when he committed the offence. He opines that the prisoner on presentation to him was suffering from a ‘major depressive disorder’. He suggests that this disorder existed before and after the offending.

31. In the absence of any evidence of any previous diagnosis of mental illness and noting the inability of the Crown to cross-examine the prisoner about the history given to the psychologist, I am not prepared to accept the diagnosis of the psychologist. However, I am prepared to accept that in a clinical examination, the prisoner has presented with symptoms of depression reactive to his current incarceration. This is understandable when one bears in mind the comments within the report of the prisoner's fears concerning coming into custody and then returning to custody. The prosecution properly points out, without citing authority now, that courts should approach opinions based upon representations not subject to test, in the absence of independent or objective evidence, with circumspection.

32. The psychologist in his report goes through a number of matters relevant to risks of re-offending. These matters include criminal history or lack of it, the prisoner's associations, his attitudes, his employment history and his family relationships, any history of antisocial conduct, substance abuse difficulties, amongst other matters. The psychologist, with regard to these matters, assesses the prisoner at ‘low’ risk of re-offending. Notwithstanding his subsequent charging I have no reason to doubt this essential analysis.

33. His counsel referred me to the well-known decision of McClellan J in DPP v De La Rosa [2010] NSWCCA 194, particularly at [177]-[178]. There is clearly, even on the psychologist’s evidence, no mental illness or disorder causally connected to the offending. There is no cogent reason for lesser weight to be given to general deterrence. Although, as with his co-accused, there is nothing with regard to this offender to indicate that greater weight should be given to specific deterrence.

34. I note the symptoms of depression assessed by the psychologist may impact upon his circumstances of custody, given that he is essentially in custody for the first time in his adult life, I accept that this may make his circumstances of custody more onerous than might otherwise be the case. I am prepared to accept in his case that the same mitigating factors arise under s 21A(3), save for the fact that he has not expressed his remorse in the same insightful terms as his co-accused.

35. Bearing in mind however, that he has been in custody for over six months, ultimately by regard to all the purposes of sentencing that are relevant arising under s 3A of the Act, in my view the promotion of his rehabilitation can be best served by fixing from today a term of imprisonment to be served by way of Intensive Correction Order as opposed to a non-parole period.

36. The sting in the tail for the prisoner though is this. Although he will have at this point spent less time in custody than Thang, if he is in breach of his Intensive Correction Order he may spend more time in custody than Thang because it will be a matter for the Parole Authority when he can be released, should he be returned to custody. Without going into the detail of the cited authorities on this point, parity principles would demand all things being taken into account, the two offenders essentially should be treated the same. The total time fixed for imprisonment for each offender will approximately be the same, but the practical circumstances of both prisoners do not permit Thang to be treated the same as Dang, having regard to the time that he has already spent in custody and the fact that he is to be deported.

37. I make it very clear that if both offenders had come before me with the same sentencing options available I would have treated them essentially the same.

38. Mr Dang Tung Nguyen, I am proposing to make the orders. I will get the interpreter to repeat everything I say in the Vietnamese language.

39. Mr Dang Tung Nguyen, you are convicted. There being no other appropriate penalty you are sentenced to a term of imprisonment for a period of 14 months. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 the sentence imposed on you is to be served by way of Intensive Correction Order. The sentence will commence today, 6 April 2020. You must report to the Community Correction Office at Fairfield as soon as practicable but no later than ten days from 6 April 2020.

The standard conditions of this order apply. Firstly, you must not commit any offence and you must submit to supervision by a Community Corrections officer.

You must be of good behaviour and you must submit to the supervision of Community Corrections. The Court is satisfied that exceptional circumstances exist for not imposing an additional condition for the following reason: The offender has spent six months 11 days in full-time custody.

If you fail to comply with the conditions of this order sanctions may be imposed by the Commissioner of Corrective Services or the Parole Authority. Those sanctions may include a formal warning imposing more stringent conditions or may include revocation of the order. If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.

A copy of this order is to be provided to you by officers of the Department of Corrective Services.

40. The sentencing of each of these offenders occurs in the course of widespread public concern regarding the COVID-19 pandemic. The risk to these two prisoners of infection whilst in custody is not known to the Court. Issues relating to this aspect of the matter have been raised by me and by counsel in the course of submissions. I have had regard, for example, to the decision of the Victorian Court of Appeal in Brown v The Queen [2020] VSCA 60 particularly to the observations of the majority at [48]. This pandemic, I accept, is causing additional stress and concern for prisoners as well as other members of the community outside of prisons. The extent to which it may be taken into account however is a matter to be resolved on the particular facts of each individual case. In this particular matter this issue was not a significant issue in the disposal of each of the sentence proceedings.

41. It was noted however, by way of passing comment that when the two offenders appeared before me on Thursday they were placed side-by-side in a small audio visual booth or room without any regard to social distancing. As the situation dawned on me, if not others, I sought that the two offenders be separated and with the consent of the parties sought to deal with the two matters at separate times. I very much appreciate the co-operation of the parties in enabling me to do that. Otherwise in ordinary circumstances the two offenders would have been dealt with together at the same time.

42. Mr Nguyen, you should be released today or at the latest tomorrow. But you should understand that if you want to commit further offences you will go back to gaol and you are also now subject to a six month order of the Local Court.

43. The following orders were made in regard to Mr Thang Van Nguyen on 2 April 2020:

You are convicted. Sentenced to term of imprisonment by way of non-parole period of 10 months 16 days to commence on 20 May 2019 and expiring on 4 April 2020. I fix a balance of sentence of 10 months 14 days to expire on 18/02/2021.

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Decision last updated: 15 January 2021