DPP v Nguyen [2017] VCC 308

3 On 7 September 2016, police executed a search warrant at the premises at 10 Second Avenue, Dandenong North for which you were the lessee. No persons were present when the police executed the search warrant.

4 In two rooms of the premises, police found a sophisticated hydroponic set up consisting of potted plants connected to an irrigation system through which water and liquid nutrients were supplied to the plants. Installed above the plants were high voltage lights, light shades and charcoal filters. A total of 111 cannabis plants were located. The total weight of the plants was 23.09 kilograms. There was an electrical bypass system in place.

5 On 15 November 2016, police executed a search warrant at 2-8 Renfree Street, Dandenong. Upon attending at the premises, police announced their presence multiple times. Police positioned in the backyard of the premises observed you run to the back door. Upon seeing the police officers, you changed course and jumped through a window pane above the kitchen bench smashing the glass and lacerating your knee. Once outside, you attempted to evade arrest. Police succeeded in forcefully subduing you and taking you into custody.

6 Following your arrest, police officers searched the Renfree Street premises and discovered three rooms set up for the growing of cannabis in a manner similar to that found at the Second Avenue premises. Each of the rooms had potted plants connected to an irrigation system used to cultivate cannabis. Above the plants were high voltage lighting, light shades and charcoal filters. A total of 65 plants were located in four rooms of the premises. The total weight of those plants was 18.37 kilograms. Again, an electrical bypass system was in place at the Renfree Street premises also.

7 Upon your arrest, you exercised your rights and declined to be interviewed by police.

8 In all, the crops at the two premises consisted of 176 plants of varying degrees of maturity, weighing 41.46 kg.

9 By way of background, you are aged 29. You were born in Vietnam. You completed high school until the age of 18 and went on to study Engine Mechanics at an equivalent of TAFE in Vietnam for two years.

10 In August 2009 you travelled to Australia on a student visa where you studied an English Language course which you completed in June 2010. Your visa expired on 14 March 2013. Since that date you have remained in Australia unlawfully.

11 While living in Australia, you worked at an Asian grocery, a chicken processing factory, and at a restaurant as a kitchen-hand.

12 You have been in a relationship with a partner of Vietnamese origin for some three years. Together, you have a two-year-old son.

13 While in Australia, you have received financial support from your family in Vietnam. After the birth of your child you experienced financial problems.

14 I was advised by your counsel that your father, who lives in Vietnam, fell ill prior to your offending and required surgery. As a result, you wanted to earn money that you could send back to your father to pay for that surgery. Notwithstanding, I note there was no evidence concerning your father's health.

15 Your counsel informed me that you were approached with a "job opportunity" where you would earn between $500 to $600 per week caring for the crops at the two houses. You were provided with instructions on how to harvest and care for the crops. Counsel stated that you had never met the person who organised the houses.

16 The purposes for which a court may impose a sentence in respect of an offence include a number of matters - the denunciation of your offending conduct, to deter the offender and others in the community from committing such offences in the future, and the protection of the community. I am required to have regard to a number of matters, including the seriousness of your offences, your culpability for them, and your personal circumstances. I have taken into account each of the matters set out in s.5(2) of the Sentencing Act 1991.

17 The maximum penalty prescribed for cultivation of a narcotic plant in a commercial quantity is 25 years' imprisonment and the maximum penalty for theft is ten years' imprisonment.

18 I consider that the offences for which you are before this court are serious ones. It is plain that you played an important role in the cultivation process at both houses.

19 Your counsel has submitted, and I accept, that there are a number of mitigating factors relating to your sentence.

20 Firstly, you pleaded guilty at the committal mention hearing in February of this year. Such plea has utilitarian benefit in that witnesses will not be required to give evidence at a trial. It is also demonstrative of some remorse on your part. However, I note that upon police attending at the Renfree Street premises you did your best to evade arrest which placed the attending police officers at risk of harm. Further, you do not appear to have assisted police in the identification of any others involved in the crops.

21 You have been in custody since 16 November 2016, a little over four months. Your counsel informed me that, whilst in custody, you have been engaged in manufacturing water pipes and that you have encountered no disciplinary issues during your period of incarceration.

22 You have no prior convictions and you are to be sentenced as a person who has previously been of good character. I note that this has been your first time in custody.

23 Your counsel submitted that your age permits me to classify you as a youthful offender. I accept that, although you could not, strictly speaking, be considered as youthful, you are nevertheless still of an age where the vast proportion of your life lies ahead of you.

24 Your counsel tendered up a report from Dr Aaron Cunningham, a psychologist, who examined you in February 2017. He observed that you did not present with any mental illness, although you had experienced some depression and stress since your incarceration. He also noted that you would benefit from returning to Vietnam after sentence where you enjoy family support. Whilst you have not been in contact with your partner and son since being detained in custody, you indicated that, upon returning to Vietnam, you would arrange methods of contact with them. Dr Cunningham concluded that maintaining family support would positively influence your prospects of rehabilitation.

25 I have been provided with a number of sentencing snapshots in relation to the offence of cultivation of cannabis in a commercial quantity. I have perused a number of the sentencing decisions referred to.

26 Your role in this offending can fairly be described as that of a crop sitter which, in addition to minding the crops, included the care and maintenance of them. There is no suggestion made by the prosecution that you were involved in any of the entrepreneurial aspects of the operation or in the design or installation of any of the equipment found there. However, I am satisfied that your role was vital for the cultivation, harvesting, and eventual sale of the crops and the anticipated profits that would result from such sales.

27 The prospect of deportation in the future is a factor that may bear on the impact a sentence of imprisonment has on an offender. Your counsel has submitted that because you are a Vietnamese citizen currently residing in Australia without a valid visa, a sentence of imprisonment may result in your deportation upon your release. I accept that an offender who serves a term of imprisonment in expectation of being deported following release may experience a greater burden while serving that sentence. Your counsel handed up a decision of the Court of Appeal of Nguyen v The Queen [2016] VSCA 198 involving an offender who had overstayed his visa and faced possible deportation arising from a sentence of imprisonment. In relation to that issue, Redlich JA stated:

"It is entirely speculative whether the Minister may grant a waiver of the 'no further stay' condition so as to enable the appellant to pursue an application for a partner visa. Even if the appellant's risk of deportation was a relevant mitigatory factor, it was not of an order that leads me to conclude that a different sentence should be imposed."[1]

28 I have also noted the 2016 judgment of the Court of Appeal in De Costa Junior v The Queen, particularly at paragraphs 22 to 34. In the event that you are deported following a prison term, I note that you have supportive family in Vietnam. Indeed Dr Cunningham, the psychiatrist, is of the view that you will benefit from completing a sentence and returning to your family support in Vietnam.

29 Whilst your prospect of settling in Australia, if that was your intention, upon sentence of imprisonment may be diminished, I am disinclined to speculate on the outcome of any decision of the relevant Minister in respect of your visa. Moreover, there is no evidence before me concerning your visa status save for the fact that your student visa expired about four years ago.

30 Taking all of the circumstances into account, in relation to the charge of cultivating a commercial quantity of narcotic plants contrary to s.72A of the Drugs, Poisons and Controlled Substances Act 1981 and the charge of theft contrary to s.74 of the Crimes Act 1958 (Vic), you are to be convicted and sentenced to an aggregate term of imprisonment of 24 months. I direct that you serve a period of 15 months before being eligible for parole.

31 I declare that 126 days of pre-sentence detention, not including today, be reckoned as having been served under that sentence and I direct that a declaration to that effect be recorded on the records of the court.

32 Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these charges I would have sentenced you to a total effective sentence of 36 months' imprisonment with a minimum non-parole period of 24 months'.

33 There were ancillary orders sought and I do not believe I made them on the earlier occasion. Is that correct?

34 Ms TUENO: That's correct, Your Honour. I did provide Your Honour with copies of those orders but they were not made.

35 HIS HONOUR: Yes. The first of those orders is a disposal order relating to the equipment found at the houses and the cannabis plants. I have signed that order today. The second order sought was an order pursuant to s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample in accordance with subdivision 30A of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I believe I was told on the last occasion, Ms Liddy that your client consented to such an order?

37 HIS HONOUR: Notwithstanding your consent to a sample being taken,

Mr Nguyen, I am required to tell you that if you do not end up consenting to a sample being taken, police may use reasonable force to enable that forensic procedure to be conducted. I make that order.

38 The draft order that was handed up on the previous occasion contains a misprint. It refers to Schedule 1 offences, namely trafficking in a drug of dependence - commercial quantity. That should be cultivating a drug of dependence, should it not?

40 HIS HONOUR: I will just alter that. Is there anything else that counsel want to raise with me at this time?

[1] Nguyen v The Queen [2016] VSCA 198 at [36].