R v Nguyen; R v Pham; R v Nguyen

[2019] NSWDC 887

District Court

New South Wales

Medium Neutral Citation:

R v Nguyen; R v Pham; R v Nguyen [2019] NSWDC 887

Hearing dates:

22 October 2019

Date of orders:

22 October 2019

Decision date:

22 October 2019

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

N. A. Nguyen – sentence of imprisonment of 1 year 10 months to be served by way of ICO
Pham – sentence of imprisonment of 1 year 10 months to be served by way of ICO
N. B. T. Nguyen – sentence of imprisonment of 2 years 6 months with a non-parole period of 1 year 6 months

Catchwords:

CRIME — Drug offences — Enhanced indoor cultivation — Knowingly take part in enhanced indoor cultivation
SENTENCING — Appeal against sentence — Co-offenders

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:

R v Qutami (2001) NSWCCA 353

Category:

Sentence

Parties:

Regina (Crown)
Ngoc Anh Nguyen (Offender)
Van Thanh Pham (Offender)
Ninh Bac Thi Nguyen (Offender)

Representation:

Andrew Kemp (Crown)

 

Robert Steward (counsel) (Offender – N. A. Nguyen)
Gregory Jones (counsel) (Offender – Pham)
Tim Hammond (counsel) (Offender – N. B. T. Nguyen)

  Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2018/00264898 (N. A. Nguyen); 2018/00264904 (Pham); 2018/00264894 (N. B. T. Nguyen)

EX TEMPORE REVISED JudgEment

INTRODUCTION

1. The Court is concerned once again with the use of a dwelling house in a suburban area for the purposes of the cultivation by enhanced means of cannabis plants.

THE OFFENCES

2. The three offenders before me are each charged with knowingly taking part in the cultivation by enhanced indoor means of prohibited plants discovered in the course of an investigation of the premises. The conduct is charged contrary to s 23 (1A) Drug Misuse and Trafficking Act 1985 for which the maximum penalty specified is imprisonment for 15 years and a fine represented by 3,500 penalty units. There is no standard non-parole period for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

PLEAS OF GUILTY

3. There are agreed facts that are common to all three offenders, save that in the case of Ninh Bac Nguyen there is an additional paragraph describing the presence of DNA material and fingerprints that were matched to her indicating that she had a greater role in the enterprise in contrast to the other two offenders, Ngoc Anh Nguyen, who is as I understand it, not related to the other offender of the same family name, and Van Thanh Pham.

4. All three offenders were committed for sentence to this Court from the Local Court in Penrith after the procedures that are currently undertaken in proceedings such as this whereby issues are resolved at that level and pleas are generally indicated at an early stage attracting by force of the legislation a discount of 25% to the sentence that would have otherwise been imposed. This effectively mirrors the Common Law principles whereby an offender in the circumstances of an early plea would receive a discount of 25% to reflect utility. The discount will apply to each of the offenders and to the sentence that one would arrive at upon the synthesis of objective and subjective facts informing the decision for what period they should be punished for this misconduct.

5. The synthesis includes the extent to which there is demonstrated contrition and remorse and the prospects for rehabilitation. I am satisfied in each case that prospects for rehabilitation should be seen to be strong and I am satisfied in each case that there is demonstrated contrition and remorse.

6. No one offender has given evidence before me but in each case. There is material tendered, in all of which the representations contained are consistent. I am confident that I can accept those representations and that applying the circumspection advised by Smart AJ in R v Qutami (2001) NSWCCA 353, I may find as I have indicated, contrition and remorse and good prospects for rehabilitation. As his Honour made clear, the statements untested by cross-examination not given under oath or affirmation are admissible and should be given appropriate weight after appropriate caution is exercised in the consideration.

PRE-SENTENCE CUSTODY

7. The offender Ngoc Anh Nguyen has been in custody before this for nine days but is now subject to bail; the Crown concedes that the bail conditions have been observed.

8. The offender Ninh Bac Nguyen has been in custody since her arrest on 28 August 2018, a period of one year and 55 days. Her sentence that I will impose today must be backdated to commence on the date of arrest.

9. The offender Van Thanh Pham has been in custody before this for a period of ten days before he was granted bail; the Crown concedes in his case also, that he has been compliant with bail since his release.

10. Each of the offenders confirmed their plea in the Local Court and each confirmed here in this Court that they are guilty of the offences with which they were each charged.

THE FACTS

11. As I said, the agreed statement of facts in each case is the same, with the exception that in the Crown bundle for the offender Pham he is referred to as the offender and the others are referred to as co-offenders one and two respectively. When I come to each of the other bundles, the particular offender in each case is referred to as ‘the offender’ with the others referred to as ‘co-offenders one and two’.

12. In June 2018, the police received information that a house in Seven Hills was being used for the cultivation of cannabis. The offenders were not the lessee or owner of the premises.

13. The facts describe the geography of the streets surrounding the location of the house and point to the commencement of surveillance about 2pm on 28 August 2018 from some point or points proximate to the premises.

14. At 10.10pm on that day, a Mazda 6 with New South Wales registration came into Ozark Street and stopped about 100 metres south of the house. Ngoc Ahn Nguyen was in the driver’s seat and Van Pham was in the front passenger seat. Ninh Bac Nguyen was in the rear passenger seat. All three attended the location to take part in the cultivation of the cannabis plants that were cultivated within by enhanced means.

15. Over the next 19 minutes, the offenders were out of the vehicle. According to the facts, they each left once, walking around the vicinity and then re-entered the car. This is consistent with counter-surveillance as the Crown indicated.

16. Ninh Bac Nguyen had a green and white plastic bag. Within that 19 minute period Ngoc Ahn Nguyen drove the car around the area and passed the house out of sight, re-appearing on multiple times, again conduct consistent with anti-surveillance practices.

17. At 10.29pm, he drove the car north on Everest Street out of sight. At 10.30pm, he appeared on the footpath on the western kerb of Everest Street and entered the house. At 10.40pm, Pham appeared on the western kerb of Everest Street and he entered the house. At 10.45pm, the car re-appeared with Ninh Bac Nguyen driving. She parked it on the eastern kerb of Everest Street and then at 10.50pm she drove the car south along Everest Street, made a U-turn and then drove the car out of sight.

18. At 11.30pm, Ngoc Ahn Nguyen left the house and pushed a rubbish bin to the kerb in front of the premises. He then walked south along Everest Street to Ozark Street and out of sight. He returned to the car and then re-occupied the driver’s seat with Ninh Bac Nguyen moving to the rear of the car.

19. About 11.31pm, the offender Pham exited the house and walked north along Everest Street towards Vesuvius Street and out of sight. He was carrying a white and green plastic bag similar to that which Ninh Bac Nguyen was seen with earlier.

20. At 11.32pm, the car re-appeared on Blacktown Road, about 100 metres from the intersection of Ozark and Everest Streets. Ngoc Ahn Nguyen performed a U-turn; Pham appeared and entered the front passenger seat.

21. At 11.33pm, Ngoc Ahn Nguyen drove southwards onto the Prospect Highway.

22. At 11.34pm, the police stopped the car with Ngoc Ahn Nguyen in the driver’s seat, Pham in the front passenger seat and Ninh Bac Nguyen in the rear seat.

23. The vehicle was searched and a white and green plastic bag was found in the front passenger foot well. This was consistent with what had been seen earlier. It contained a clear plastic bag which in turn contained a quantity of vegetable matter that emitted a powerful smell of cannabis. No effort was made to have the content of the bag analysed.

24. At 2.50am, the police entered the house and found cannabis plants under cultivation.

25. At 7am, a search of the house was commenced and it was found that there were 144 cannabis plants in various stages of growth, that the majority of which were mature growing in multiple rooms. There were electricity by-passers. There were transformers, heat lamps, high pressure sodium globes, water pumps, fans and fertilizer and other garden products.

26. The greater involvement of Ninh Bac Nguyen is supported by the proposition that a toothbrush and a plastic drink bottle were located. DNA was found and the forensic analysis of the toothbrush and the drink bottle indicated DNA matching the profile of the offender Ninh Bac Nguyen.

27. There were there fingerprint impressions in the house including one on a sodium globe. The fingerprint on the sodium globe matched a fingerprint impression of Ninh Bac Nguyen.

28. Thus, in her case, there is evidence of some participation in addition to that which was observed in the course of the surveillance conducted by the police.

29. It is also relevant as I have noted that there was counter-surveillance upon which the offenders engaged. Whether that was at the instance of one or more of them or all three is difficult to assess, but the fact that each of them engaged in individual acts in my view could not allow for any finding other than that in each of the individual cases they were engaged upon counter-surveillance.

30. They are not charged with the commercial quantity of these plants which, according to schedule 1 in the Drug Misuse and Trafficking Act 1985 is set at 50 plants for cultivation by enhanced indoor means. The prosecution has proceeded on the basis that the Crown could not prove to the requisite standard knowledge in these offenders of the quantity of plants that were under cultivation inside the premises.

31. I agree with the submissions made that, objectively, the offending for the two males, Ngoc Ahn Nguyen and Van Pham, is at the lower end of range of objective seriousness. The offender Ninh Bac Nguyen, however, should be in my view set at a point above low-range, perhaps halfway between low-range, towards mid-range. Minds always differ upon where one places an assessment of objective gravity and there is implicit in this, a significant measure of imprecision as recently discussed in the Court of Criminal Appeal.

32. One way or another, it is my finding that Ninh Bac Nguyen is placed at a higher level upon the scale when compared with the other two.

NINH BAC NGUYEN

33. She was born in 1958 and is now 61 years of age. There is no antecedent record of offences against her name. There is a sentence assessment report. She came to this country in 2018 on the tourist visa. She lived in what could be described as modest circumstances. She was earning very limited income in a restaurant where she worked excessive hours and where she also slept. It was, I would suggest, bordering on slave labour as described in the documents before me. All of her family are in Vietnam. She has a husband from whom she is estranged as a consequence of domestic abuse to which I shall come in greater detail. She has children and grandchildren in Vietnam and other family in Vietnam. She has no family ties in this country.

34. The sentence assessment report records that she denied being aware of the illegality of her actions, suggesting that her belief was that she was engaged upon the legitimate employment of caring for medicinal herbs. By her plea of guilty, she has disavowed that misrepresentation. She admits that her involvement was financially motivated and that the opportunity arose by way of a customer that she had met at a restaurant.

35. She demonstrated limited insight to the Community Corrections officer who prepared the report but I would put that to one side in light of the course she has taken in these proceedings.

36. She was having financial difficulties. She did not understand the Community Service obligations that might have been available in other circumstances. She is assessed with a low risk of re-offending by Community Corrections.

37. The psychologist’s report I have for Madam Nguyen was written by Raymond Hudd on 12 October 2019. There is a question over his reported diagnosis such as was recently discussed by Johnson J apart from others in the Court of Criminal Appeal to the effect that he would not be qualified to diagnose conditions, though he may make observations of presentation which might lead to a conclusion that there are symptoms and features consistent with a diagnosis that might be from a qualified person.

38. She grew up in North Vietnam close to Hanoi and at her age of 61 it must be that she was in that region during the course of the war that was there waged between the Americans and Australians on one side and the Vietnamese on the other, with the frequent and intensive air strikes that took place over that country. There is nothing in any of this material before me dealing with any of that or the impact it might have had upon her. In any event she progressed to the equivalent of Year 7 in her education. She is the third eldest of eight children. Her mother is alive and in frail health and quite elderly now; her father died in 1994. She has a strong relationship with her mother and her siblings, all are supportive of her. There is reference to her violent marriage which ended 10 years ago, her husband drank regularly and excessively and then physically and verbally abused her, several times a week. There are two sons from the marriage aged respectively 38 and 41 and they have children of their own. There is a strong attachment between her and her sons and their families but since she has been in this country her ex‑husband has been looking after the grandsons aged 16, 13 and 12 and this is causing her significant concern because she does not trust him to provide adequate and proper care for them. She is anxious to return to Vietnam before her mother dies and there is some risk that might be imminent according to what she told the psychologist.

39. There is a physical characteristic noted, twitching or contortions of her face, said to have been some sequelae or consequences of a cardio‑vascular episode that was not further investigated. She has told the psychologist that this has been extant for some five or six years and is progressively worse as time passes. She came to Australia on a visitor’s visa in December 2015; she has been working 12 hours a day for $120 in a kitchen and living at the rear of a restaurant which she rarely left.

40. This assessment was made face to face at the correctional centre where she was being held. She was diagnosed as I have said but I would suggest that the observations are consistent with a diagnosis of generalised anxiety disorder and chronic adjustment disorder with depression. There is a discussion of the relationship between that finding or opinion and the offending and what symptoms would be demonstrated. The suggestion is that she was suffering from some form of disorder before coming to Australia, the product of the abuse she suffered at the hands of her husband and what she saw of ongoing abuse to her children by him. She had the ongoing trauma of these unfortunate circumstances where she was working and living in this restaurant for a very modest return and then there is a recommendation for treatment and ongoing counselling.

41. I have no further material from the offender. It is conceded on her behalf that the line of s 5 Crimes (Sentencing Procedure) Act has been crossed and that no sentence other than imprisonment is appropriate. I have turned my mind to the option of an Intensive Corrections Order in her case; I do not believe it is appropriate to resort to those provisions in light of the evidence of her participation in this enterprise. There are however ample bases upon which to find special circumstances. They include that she has no English; she is isolated in this country. According to the records she has not been in gaol at any time previously, there is no evidence of any custodial offences I might add. She is someone who has demonstrated, I am satisfied, appropriate contrition and remorse and prospects of rehabilitation. I have allowed her the 25% discount to the sentence I would have otherwise imposed.

SENTENCE OF NINH BAC NGUYEN

42. I will deal with her sentence now so that she knows what is occurring. She is convicted of the offence; I specify a term of imprisonment of 2 years and 6 months that will include a non-parole period of 1 year and 6 months. It commences on 28 August 2018, the non-parole period will expire on 27 February 2020, and the balance of the sentence will expire on 27 February 2021.

43. The orders are the offender is convicted; I impose a non‑parole period of imprisonment of 1 year and 6 months commencing on 27 August 2018 to expire on 27 February 2020. I impose a further period of imprisonment of 1 year to commence at the expiration of the non-parole period, to expire on 27 February 2021. I will leave the exhibits on file for such time as the parties require.

NGOC ANH NGUYEN

44. In the case of Ngoc Anh Nguyen, he is 22 years of age born in 1997. He has no antecedent offences. A sentence assessment report tells me that he lives with his wife and that he is financially supported by her and his parents. He denies any financial problems. He denied being involved in the cultivation of cannabis and was unaware that the property was being utilised for criminal activity, according to what he told the officer. Clearly he has disavowed that misrepresentation by his plea of guilty. He is willing to undertake community service and he is suitable for that work. The psychologist who assessed him wrote on 17 October 2019. This was Mr Bradley Jones, to whom the offender admitted his offending, and adopted as relatively accurate the summary of the offending in the agreed Statement of Facts. He was a friend of the offender Pham but did not know Madam Nguyen.

45. According to this he was asked to drive Mr Pham and Madam Nguyen to the house; he was asked by Mr Pham to drop them about 100 metres from the house and then to drive around the neighbouring streets to look for police. He was curious about the cannabis being cultivated and went inside, he saw the cannabis plants, lights and pots, became scared and wanted to leave, and allegedly approached Mr Pham to tell him to find his own way home because he was leaving. However Pham and Madam Nguyen decided to leave as well. He was asked to take the red lid bin out to the street which he did; they entered the vehicle and left the premises. When he was stopped by the police and was arrested he claimed he was never offered or paid any money for his participation in this offence.

46. He had a very close and loving relationship with his mother with whom he speaks regularly, so too his father. His father and mother have been caring and affectionate with no conflict in their marriage. He had an unremarkable childhood having all that he needed and there could be nothing to draw from his past that might have contributed to his participation in this crime. He married in March of this year and his wife at the time of the report was four months pregnant.

47. He has no history of drug use although he does take moderate quantities of alcohol. There is nothing in his psychological background to suggest any reason for his committing this crime. He is assessed at a low risk of reoffending. There is a letter from the offender apologising for his crime. He did not understand the damage that cannabis could cause to people’s health in the community which he now has learned including of course mental health issues contributing to the commission of further crime. He was exposed to inmates in gaol and learned how their drugs destroyed their lives and their families. He is trying hard to change to be a better person and he will not be back in the criminal justice system, he says.

44. His wife has provided a reference; clearly she has great affection for him and she asks for some leniency in the determination of the matter. Mr Steward has provided written submissions identifying all the points that are relevant to the assessment of sentence in this matter. I accept his submissions as to the significance of the 144 plants found. There is no evidence regarding their condition or the street value. There is no assertion as to the sophistication of the set up but I would note that the implication in the description is that this was at the level of sophistication that the Court has come to see in various cases of this type. There is no evidence that he was involved beyond the participation that was observed in the course of the surveillance and there is nothing to suggest he received any reward.

45. It was said to me that the line of s 5 is crossed but that sentence could be served by way of an Intensive Corrections Order in the community and that he could contribute to the community with service under the terms of the Order. I agree with all of those submissions and accordingly I shall take that course.

46. The sentence I impose upon him will be identical to that imposed upon Pham so I will deal with Mr Pham’s subjective case next and then come to the task of imposing the sentence.

VAN THANH PHAM

51. The material tendered on behalf of Mr Pham includes a report from Huan Diep, an alcohol and other drug counsellor, speaking to the sessions that Mr Pham has attended bringing him into a state of awareness regarding the drugs in which he was involved. There is no history though that he is a drug user. There is a report from a Buddhist nun reporting upon the offender’s attendances at the Temple and the counsel that he has sought there. There is a letter expressing remorse, it is written in Vietnamese but there is a translation available speaking of the progress he has made including his stable job and income and his better life with everything improving. The baby born to him and his wife is the subject of reports provided from health care centres and health care professionals. His work ethic is described in the document from the company that employs him as a tiling apprentice and there is a character reference from a close friend, Van Tuan Tran, and the letter from his wife to which I have referred, anxious for her husband to be at large to provide the assistance she needs with the baby.

52. I agree with what was said on his behalf by Mr Jones that this is a case that could be dealt with by way of an Intensive Corrections Order in the community. The submission made was that minds will differ as to whether or not the line in s 5 was crossed. I am satisfied that it was crossed but the sentence I am going to impose can be served by way of an Intensive Corrections Order in the community.

SENTENCES FOR NGOC ANH NGUYEN & VAN THANH PHAM

53. Each of them will be required to perform some community service; it will be of modest proportion though so that they can continue on with the progress they have made towards their rehabilitation.

54. I have had regard to the material before me; I believe it is sufficient without requiring a further report assessing specifically the suitability for an Intensive Corrections Order. I have had regard to s 66 in respect of each of these offenders, community safety is the paramount consideration but I am satisfied that an Intensive Corrections Order is more likely to address the offenders’ risk of reoffending.

55. In each case the offenders Ngoc Anh Nguyen and Van Thanh Pham are convicted. In each case I impose a sentence of imprisonment of 1 year and 10 months; I have allowed the discount to which I earlier referred. The sentence will commence today. The standard conditions will apply, they must not commit any offences and they must submit to the supervision of the Community Corrections Office. In each case I require that they perform 100 hours of community service and I will leave it to the Community Corrections officers to determine the placement and when that service shall be concluded.

56. The offender Ngoc Anh Nguyen is to report to the Bankstown Community Corrections office by telephone no later than 4pm tomorrow, 23 October 2019. I note that should he have community service work he is to report to that office at 11am on 23 October 2019 that can be confirmed by the officer.

57. In the case of Van Thanh Pham he is to report to the Bankstown Community Corrections office no later than 4pm tomorrow, 23 October 2019. He too may make the contact by telephone for arrangements to be put in place and he is also to report to that office on 23 October 2019 at 10am if community service is a condition that can be confirmed by the officers when contact is made. I will leave the exhibits on file.

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Decision last updated: 07 May 2020