DPP v Ha and Nguyen [2016] VCC 1305

24 August 2016, was marked as Exhibit A on the plea. Your counsel, Mr Revill, told me that this was an agreed opening.

3 I regard it then as unnecessary in those circumstances to restate now the full factual basis of sentencing. Exhibit A will remain on the court file and I will not go beyond that agreed statement. Exhibit A also contains some photographs.

4 The summary describes the nature of the crop that you two were cultivating. You were caught within a house at 2 Roselea Street in Box Hill North on 18 May of this year. Within the property there was a sophisticated hydroponic cannabis setup. There were 271 plants of varying sizes. The total weight of the plants was under 25 kilograms (24.619 kilograms) so it is plain enough that many of the plants were very small. Commercial quantity is reached by plant number, not by weight.

5 This was clearly a professional undertaking, as the summary and the photographs make clear.

6 These premises were dedicated to the growing of cannabis and you two were the cultivators.

7 These premises were what is sometimes referred to as a "grow house" or "crop house". You were the "crop sitters".

8 Words such as "grow house" or "crop house" and "crop sitter", well they would have meant nothing 25 years ago. Now they are terms confidently used by counsel in court and understood by judges when they are used and that says something as to the prevalence of this style of offending.

9 You were each arrested at the property on 18 May of this year. You have been in custody since. Neither of you were co-operative with the police, but that is not a matter in any way in aggravation. You "no commented", as was your right, Mr Nguyen, and you told a series of lies, Ms Ha, including claiming not to know that it was cannabis or even the surname of your co-accused. You in fact had been married to him. However as I make plain, none of this is in any way aggravating.

10 Mr Revill acted for both of you on the plea and relied upon a number of matters in mitigation. The only real difference was your pregnancy, Ms Ha. The matters raised in mitigation included:

• In each case, your difficulties in prison, given the language issues and additionally in your case, Ms Ha, your pregnancy and concerns in that respect;

• In each case, the absence of any prior criminal history;

• In each case, your desire to return to Vietnam and the certainty of that outcome here.

11 Your counsel made submissions as to the offence being a relatively low level example of the crime. He placed before me your instructions to him as to the reasons behind your involvement in the crime. He was conceding the inevitability of an immediate term of imprisonment, but argued that the court could take into account the fact that you would not be entitled to be released on parole as justifying not fixing a non-parole period.

12 Ms Harper, who appeared on behalf of the Director of Public Prosecutions, submitted that this was serious offending, involving as it did, a commercial quantity cultivation and a large array of equipment. She took me to the recent case of Nguyen [2016] VSCA 198. On that score, your counsel was not familiar with that case. That was surprising on two levels. Firstly, he was conducting this plea on your behalf and really should have been familiar with the decision, as it was a recent and important decision of the Court of Appeal. Secondly, his firm was the firm actually engaged in that case. In any event, I stood the matter down to permit him to read the decision and then to make submissions, if he chose to.

13 I turn to your background. In each case, I was told little of your personal circumstances and it went very little beyond what is contained in the written submissions. I have no reason to doubt what I was told of your personal family background and l am not going to restate it all now. In common is that you each came to Australia in 2015 on tourist visas, though at different times. You had been married to each other, but had divorced in Vietnam. There are two children who are staying with relatives in Vietnam and they are well looked after. They are eight and ten years of age.

14 You each came to Australia on tourist visas in early-2015 with the hope of making money to send back to relatives. You met again in Australia a few months before the offending. I am told that neither of you were in a great financial position and the cultivation was to be explained by reference to the need for money in your case, Mr Nguyen. I was told that you met someone at the casino and your expected reward was $50 per day and that you had not even been paid. I was told that you had no expectation of any financial reward, Ms Ha.

15 I made plain to your counsel that I had difficulty accepting to the requisite degree, your various instructions as to how you came to be involved and the financial expectations, or lack thereof. Your counsel chose not to present any evidence in these areas. The only police interview was yours, Ms Ha, and it was an exercise in minimisation and far from truthful. You had provided no explanation, Mr Nguyen, and there was no evidence before me in any of these areas, just instructions from you to your counsel. Well I will not act on them.

16 I am met by the sort of vacuum that very commonly exists in this sort of case. Submissions based on instructions and without any evidentiary foundation at all. Again though, I make plain, this is not a matter in aggravation. Ultimately

I just do not know how you came to be involved, or what amount of money you each hoped to realise. I do not know what your respective financial positions were, though I note that the car at the property was yours, Mr Nguyen, and you told counsel that you had purchased that for $7,000. You each also had the funds to come to Australia in early-2015, and had chosen to remain away from your children for over 12 months.

17 The fact is, neither of you have any criminal history and you are pregnant and due to give birth in February 2017, Ms Ha. You both wish to return home.

18 I turn then to the matters raised in mitigation. You have each pleaded guilty and at the earliest stage. In each case, I take these matters into account in your favour. I reward you for your guilty plea and the stage at which that plea was entered. You have facilitated the course of justice and you must be rewarded for that stance. You have owned up to your crime and taken responsibility for it and at the earliest stage. Witnesses have been spared the experience of coming to court. The community has also been saved the time, the cost and the effort associated with a contested hearing, either in this court or the court below. I take these matters into account in your favour.

19 No submission was made as to the existence of any remorse in this case. I see no evidence of remorse in the materials. Certainly none was pointed out to me. A guilty plea is often indicative of some remorse. Your guilty pleas were entered at the earliest opportunity.

20 In each case, I take the existence of some remorse into account in mitigation. That is to say, the remorse implied by your early guilty plea.

21 I turn now to the issue of the suggested increased custodial burden. You have each been held in a prison since May of this year. It is a very new experience for each of you. It is not easy.

22 You are, to an extent, isolated. Many potential visitors live overseas and presumably cannot visit, including of course, your two children. You each eagerly await the end of any sentence imposed by this court and then your certain deportation back to Vietnam where you can pick up the pieces of your lives. You each have very limited English skills and that cannot make life in prison easy. In each case, I do take into account this increased burden.

23 Additionally, in your case, Ms Ha, you are pregnant and you are due to give birth in February of next year. I do not ignore your pregnancy, or the impact that it and the birth of your child in prison will have upon you. It is an unpleasant prospect to contemplate a life starting in such a setting. There has been no suggestion of any lack of appropriate facilities to manage your pregnancy, nor could one seriously be made. There is nothing before me suggesting that your welfare, or that of your unborn child, is in any way in jeopardy. Hopefully you will be given permission for your child to remain with you after birth, although of course, I cannot make any judgment as to the success or otherwise of that application, nor I suppose, can you know and that is the point that Mr Revill makes. Your medical issues will obviously be adequately attended to. However, you will be worried by the whole uncertainty of arrangements, not knowing for sure whether you will be able to keep your child with you or not.

24 Even if you are allowed to keep your child with you, of course that is not the end of it. It surely could not be as pleasing an arrangement raising a baby in such a setting as would exist in a non-custodial setting. So prison is rendered more difficult for you. Ultimately, I proceed on the basis that your pregnancy and your subsequent delivery of a child in prison will impose an additional burden on you whilst you are in prison and that it will make it more onerous for you to serve any sentence that I impose and I take that matter into account in mitigation of the sentence imposed upon you. See R v. Frazer [2001] VSCA 101.

25 I do not accept the suggestion that I should or could find some hardship actually suffered by the child. I do hope the birth proceeds smoothly, but the child has not yet even been born and as unpleasant a setting as a prison no doubt can be for an adult, to an infant it is hard to accept that there would be any ability to discern between a custodial and non-custodial arrangement. Anyway I do not believe that submission as to the impact upon your as yet unborn child was well founded.

26 As to your rehabilitation, well in each case, your counsel did not place any submission before me as to your prospects. The fact is though that neither of you has any prior history at all. You have each made a very poor decision indeed to commit this serious crime. You know that. I think in each case, you have quite good prospects of rehabilitation, though they will clearly lie in another country. That is, in your homeland, Vietnam.

27 You will both be deported. It is not if, but when? Your visas were only tourist visas and had well and truly expired prior to your foray into this crime. You will both be deported and you both wish that to happen. The sooner the better is your shared sentiment.

28 Your counsel was not relying on those cases dealing with the mitigatory weight that may be given to deportation. Those cases, the cases of Guden and more recently Da Costa Junior, Konamala, Schneider and Nguyen, deal with the impact of deportation, both upon the service of the sentence and in the loss of opportunity to permanently settle in this country. There was no suggestion that either of you had lost the opportunity of permanent settlement in this country, no suggestion even that this was ever your hope. You each came on a tourist visa which had expired well before this crime was committed. Nor is there any issue as to there being some doubt about whether you will be deported or not, or your strong desire in that respect. You both want to be deported and you will be. The issue is when?

29 You will have to serve the sentence that I will shall shortly pronounce and then you will be deported and that is what you want. However, the certainty of deportation does not mean that I can have regard to that fact when considering whether or not to fix a non-parole period. In fact, as I understand it, deportation is not something that I can take into account when considering the issue of the fixing of a non-parole period in your cases. Your counsel suggests that I can take into account that fact and the fact that you will not be released on parole, that as there is no practical application of conditional release in your cases, that the fixing of a non-parole period serves no useful purpose and for those reasons I should decline to fix one.

30 I do not believe that I am permitted to approach the task in this way. I am not entitled to predict whether a person will be granted parole or not, or if granted parole, the conditions of such parole. See the case of Schneider.

Section 5(2AA) prohibits my entering into that process urged upon me by your counsel. I must sentence on the basis that you will serve every day of the head sentence that I pronounce. That is the position for any person sentenced, whether there are deportation issues or not.

31 The fixing of a non-parole period provides for the possible mitigation of punishment through conditional freedom, when appropriate, once the prisoner has served the minimum time that the judge determines justice requires, having regard to all of the circumstances of the case. See the case of Schneider paragraph 23.

32 Now we all understand the fictional nature of potential parole release in your cases. Often enough, as I understand it, a prisoner can be deported upon reaching the end of the non-parole period, though again, I am must not speculate about that happening in this case. The fact is, I cannot let your deportation drive the sentencing discretion. It does not. I must pass an appropriate sentence, and if that is one that compels the fixing of a non-parole period, so be it. I must put from my mind in this regard the impediments to your actually being released on parole, or the likelihood of your being released.

I must put aside those considerations in every case, as I cannot take those matters into account. Again see s.5(2AA).

33 So deportation, well it justifies neither a longer non-parole period, or a shorter non-parole period, or the fixing of no non-parole period. It is irrelevant to the task of my fixing a non-parole period. Indeed, contrary to your counsel's submissions, if you are sentenced to a term of two years or more, I am positively obliged to fix a non-parole period. I must do so, unless one of two considerations is enlivened, either the nature of the offence, or the nature of your past history. Neither are enlivened here. See s.11(1) of the Sentencing Act. There is no third category dealing with the impossibility of release into the community.

34 I address now some remarks to both of you. Though not accepting either account as to how and why you came to cultivate, I am certainly not reaching against you any finding as to your being the architects of this set up. No doubt financial advancement is the explanation for your crimes. It always is.

35 It is a common explanation provided by people engaged in this sort of venture. Well in your case, was it need or greed? I do not really know. The fact is that not every person wanting or needing money embarks upon serious criminal conduct. Each of you did. You chose to. You should not have. That is obvious.

36 I am not told that there were any sizeable debts driving the crime. In fact you, Mr Nguyen, had purchased a car seen in Photograph 36, for some $7,000. Nor though am I able to find that either of you were living anything resembling a lavish lifestyle. It is hard to know whether it was greed or need and very often there is a very fine line between those two concepts. I am certainly not able to find that you had been hoodwinked or exploited in any way.

37 You were doing what virtually every person engaged in such activities does. You were each taking a calculated risk. You made a choice to commit this crime. You hoped not to be caught. Well, it has backfired and it is not as simple as then saying to the court, "Send me home". That cannot be the message conveyed by this court to others.

38 I have to take into account the nature and the gravity of the offence. Though it is hard to know with any certainty how you became involved, how you were recruited, or what your true day-to-day role was, or the nature of your relationship to others in the hierarchy, I will sentence on the basis that you were crop-sitters.

39 The seriousness of your conduct though is not to be judged by the menial or relatively unsophisticated nature of your work, or your relatively low point in any existing hierarchy.

40 As I have said in other cases, I say now in yours. This crop and its ultimate success has been interrupted by the execution of the warrant by the police. You clearly each knew that you were embarking upon a serious crime. I am satisfied of that beyond reasonable doubt. This was very obviously an elaborate, organised criminal activity. It would be obvious to anyone looking at it, that large profit was central to the event, for at least someone down the line. Not for either of you, but at least for someone. Why else would such equipment be obtained and a house be converted into a virtual cannabis factory? Why else would you expect to be paid for your efforts, whatever it was you were to be paid?

41 I am not able to ascertain your expected financial reward. I am satisfied beyond reasonable doubt that you each expected to be paid. I have no doubt about that at all. You each had chosen to commit a serious crime. Neither of you stand to be sentenced for financing this crop house, or setting it up, or being at the head of the hierarchy.

42 But this particular crop house had all the hallmarks of a professional undertaking. No doubt those people standing further up the hierarchy from you, whoever they may be, had an expectation of a very significant yield of an illegal drug, being cannabis. The hope of a harvested crop to send out onto the market for large illegal profit.

43 There is no valuation statement in this case as to the worth of the crop or its likely yield. The court really does not need such a statement to appreciate the inherent value of this drug. That there seems to be a never-ending stream of people such as you two, prepared to involve themselves in cultivation of narcotic plants for reward and people superior in the hierarchy, prepared to pay such people for that role, well that all speaks very clearly as to the large potential illegal profits involved in this style of venture.

44 The people up towards the top of the hierarchy seldom sit in the dock of a court. That is because they install hired underlings to do the essential work and to lessen their own risk of apprehension. I will sentence on the basis that you were each low level functionaries, but no doubt you were there to perform

45 I am required to manifest this court's denunciation of your criminal conduct and I do. I must also punish you. I am required to seek to deter or dissuade you and others from committing this sort of offence in the future. As I have said already, you do not stand to be sentenced as the architects of this scheme, but you were each obviously necessary players. Without players such as you, that is people who are prepared to involve themselves in the cultivation of crops, well the crops themselves, they will not exist. They will not flourish without people who are prepared to cultivate them. So your role was obviously deemed to be a necessary one, or you just would not have been asked to perform it. See the case of Doan v. R [2010] VSCA 250.

46 This crime carries a maximum term of 25 years' imprisonment. The Court of Appeal of this State has spoken often of the prevalence of this crime and of its inherent seriousness. Also of the inadequacy of sentencing practices, most recently in the case of Nguyen, [2016] VSCA 198, a decision from August of this year.

47 Hydroponic cultivation 25 years ago was a rarity. This sort of cultivation is now very common indeed. You have each chosen to cultivate a commercial quantity of cannabis. It is a serious crime and you each know it and you knew it. Again, I have no doubt about that at all. You tried to get over the back fence,

Mr Nguyen. You hid under a plastic sheet, Ms Ha. This was not low level offending. It is not a harm-based regime. It is a quantity-based regime and the commercial quantity is 100 plants, or greater than 25 kilograms. You were cultivating 271 plants.

48 Sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation. They are quite good in this case.

49 I must consider the need for specific deterrence, that is to your being individually deterred from committing crimes in the future. Well you have been arrested, charged, you have each pleaded guilty. You have already been in custody and for the first time. It has not been easy for either of you and nor will it be in the period ahead. You will both be deported.

50 Specific deterrence has already been achieved to a degree for each of you.

I believe it is therefore open to reduce the weight to be given to specific deterrence, as well as to community protection in this case. However, this is an offence that generally requires substantial punishment. See the case of

DPP v Duong [2006] VSCA 78. As I have said, general deterrence is a very significant purpose of sentencing in a case such as this.

51 Those who choose to engage in this activity, at whatever level, are virtually always taking a calculated risk. That risk is taken on because of the hope of some financial reward, as I am sure it was in both of your cases. Well people must understand that with that potential reward comes a significant and a real risk of detection, of prosecution and then the likelihood of the imposition of

52 This court must send a message loud and clear to others in the community who might be minded to commit this sort of serious offence and there are evidently plenty that are so minded. General deterrence is a very significant purpose of sentencing in this case.

53 I pay regard to current sentencing practices, as I am required to. I have looked at the Sentencing Snapshot No.197 of 2016. I have looked also at the repository of material held at the Judicial College of Victoria sentencing site, including an overview of commercial cultivation sentences in the Court of Appeal. I ignore those decisions dealing with large commercial quantity. I have looked at the actual case summaries as well and the recent sentencing decisions. The median sentence disclosed in the sentencing snapshot is two years, with the most common sentence falling between two and three years. Obviously much of the data would have predated the Court of Appeal decision in the case of Boulton v The Queen. All of it predates the recent decision of Nguyen.

54 I accept that this recent decision has some limitations, as it is slanted at medium level cultivations. I do not judge it to have recommended any alteration to sentencing practices for this sort of case, the one that I am dealing with. Still there is much by way of statement of principle within that case that is relevant to my task. That is, as to the seriousness of the crime of commercial cultivation.

55 The fact is that there are inherent limitations in making any judgment based on statistical material. There are also real limitations in looking at other cases. None of them is an authority as to the sentences called for in this case. One thing that is clear from the cases in this area, including that recent decision of Nguyen, is that cultivation in a commercial quantity is undoubtedly a serious crime, where a term of imprisonment is almost unavoidable. It is a prevalent crime in the community and general deterrence is and must be at the forefront of any sentence imposed by the court. See the case of Pham [2007] VSCA 234, and also the case of McGrath.

56 As I have said, this was not a low level venture at all. There were over 270 plants, so well over twice the commercial quantity by plant number. I accept that the weight was far smaller, not even exceeding the commercial quantity. However the arrest interrupted the crop. It was a viable concern and its seriousness can be gauged by the nature of the set-up, including the equipment and the plant number. It was a dedicated crop house and you two were the cultivators. It is not low level offending at all. The only real point of distinction between you is the pregnancy. I have commented already on the impact of that upon your imprisonment, Ms Ha.

57 However whilst no submission was addressed to me, in your case, Mr Nguyen, there is also, it seems to me at least, an increased burden flowing to you as well. You may ultimately get permission to attend the birth, I do not know one way or the other, and I cannot speculate about that, but even if you are lucky enough to attend the birth of your child, you would have no prospects at all of being present beyond that point as your child grows and that is surely a serious detriment to suffer as a new father and would also, in my judgment, surely further increase your burden of imprisonment.

58 Ultimately then I see no real basis to greatly distinguish between you. There will be some reduction in your case, Ms Ha, to recognise what I judge to be the greater burden in your case, presented by the pregnancy, birth and hopefully caring for a baby in a prison environment.

59 Ms Ha, in fact I will have you remain seated. On the charge of cultivation of

a commercial quantity of cannabis, in your case, Ms Ha, I convict and sentence you to two years' and four months', or 28 months' imprisonment. In your case

60 Mr Nguyen, if you would stand up, please. In your case on that same charge of cultivation of a commercial quantity of cannabis, I convict and sentence you to two years' and nine months' imprisonment, or 33 months'. In your case, I fix a non-parole period of 21 months.

Section 18 pre-sentence detention

63 You have each spent 110 days in custody already. Pursuant to the provisions of s.18 of the Sentencing Act 1991, I declare that period as having already been served. What that means is, you have each already served 110 days and that declaration is to be entered into the records of the court.

A disposal order is sought, pursuant to s.78 of the Confiscation Act, and in each case it is consented to. It just relates to the various equipment that was seized at the house. I have signed that order. I order, pursuant to the relevant provision, the forfeiture to the State of the property referred to in the schedule, and I direct it be handled in the manner described in this order. I have signed that order.

65 Secondly, in each case, a forensic sample is applied for. Again that is not opposed and I am prepared to make that order, owing to the seriousness of the offending, the fact that the order is not opposed, and that I judge it to be in the public interest. Now what that relates to then, in each case, is that there will be a taking of a scraping from your mouth. It is not an invasive procedure. I have not authorised a blood sample, just the mouth scraping. That will happen while you are in custody. Now, the authorities can use reasonable force. They should not need to use any force, it is a pretty straightforward process. No doubt if they encounter difficulties doing it, they would come back and apply for a blood test, or a blood sample. In any event, I have signed that order in each case as well.

66 In each case I have taken into account your guilty plea. Had you actually pleaded not guilty and been found guilty by a jury following a contested trial,

I would have imposed a more significant sentence upon each of you. If you had pleaded not guilty and been found guilty by a jury, I would have convicted and sentenced you each to five years' imprisonment. I would have fixed

a non-parole period of three and a half years. That statement also is to be entered into the records of the court.

67 Now, are there any matters that I have overlooked? Any other matters I need to deal with at all, either of you?

69 HIS HONOUR: No, all right. So that completes the matter then. Are you going to go down and see your clients downstairs?

71 HIS HONOUR: Yes, all right. I am assuming the interpreter will be available for that. I will sign the order now and then they will be removed. Yes, all right, well I have signed those orders then, so Ms Ha and Mr Nguyen can be removed, thank you. Thank you, 10.30 Monday please.