DPP v Nguyen [2017] VCC 510

County Court of Victoria|2017-05-03

Subject: Cultivation of cannabis (commercial quantity)

1 Hoang Nguyen, you have pleaded guilty to one charge of cultivation of a commercial quantity of cannabis. The maximum penalty for the offence is 25 years' imprisonment and you have no criminal history at all.

21 April 2017, was marked as Exhibit A on the plea. There were some amendments, one in handwriting and some orally in the running in terms of the quantity of plants and the weight of cannabis. A statement from a botanist was filed on the plea as well as some photos. Your counsel told me that this was an agreed opening.

3 I regard it then as unnecessary in such circumstances to restate now the full factual basis of sentencing. Exhibit A will remain on the court file. I will not go beyond that agreed material as amended.

4 The summary describes the nature of the crop that you were cultivating. You were caught red-handed within a house at 42 Hillview Avenue, Mount Waverley on 11 October 2016.

5 Within the property there was a sophisticated hydroponic cannabis setup. There were 100 plants of varying sizes. The total weight of the plants excluding roots was a touch over 45 kilograms. Commercial quantity is therefore reached by plant number and by weight.

6 This was clearly a professional undertaking, as the summary and the photographs make clear, though it is not suggested that you are the architect of the venture.

7 These premises were dedicated to the growing of cannabis and you were cultivating the drug for reward.

8 These premises were what is sometimes referred to as a "grow house" or "crop house". You were a "crop sitter".

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

10 You were arrested at the property on 11 October of last year. You have been in custody since. Your interview with police on the 11 October was not a truthful account but that is not a matter in any way in aggravation. You probably panicked at your predicament, which would be perfectly understandable.

11 Mr Terry conducted an excellent plea on your behalf and relied upon a number of matters in mitigation. The matters raised in mitigation included:

• The absence of any prior criminal history and good prospects of rehabilitation;

• The likelihood of your deportation and the impact of that process upon you;

• Your increased custodial burden. Initially he submitted that you had an increased custodial burden owing to two matters, one being your relative isolation in custody, the other being the impact upon you of the features of depression spoken of in the report of psychologist, Ms Lechner. As to that second basis, he initially relied upon the 5th limb of a case that you heard discussed yesterday named Verdins. The prosecutor challenged that evidentiary basis and required that Ms Lechner be called for

cross-examination. The report had only that day been provided to the Crown and they objected to it without the author being called. I believe sensibly Mr Terry withdrew that submission as to any Verdins factors in this case. I clarified yesterday that this altered stance was not merely because of any difficulties with Ms Lechner's availability and made plain that if that was the position, it could be attended to by way of an adjournment. He said that that was not the issue. He had time to reflect on the disputed Verdins submission and conceded that the evidentiary basis was really not made out. I asked him again today and he maintained that Verdins was not in any way being relied upon by him. He persisted, though, in the submission as to there being an increased burden owing to your isolation in custody.

12 Your counsel made submissions as to the level of seriousness of the offence and the weight to be given to various purposes of sentence. He was conceding the inevitability of an immediate term of imprisonment. The question was how long.

13 Ms Sedgwick, who appeared on behalf of the Director of Public Prosecutions yesterday, argued that there was no increased burden owing to any isolation. Mr Brown, who appears today to prosecute, sensibly withdrew that submission. He argued that general deterrence was of real significance and did not accept the suggestion that less weight should be paid to general deterrence owing to your position within the hierarchy. As to the deportation issue, he argued that it should attract little weight. There was no loss of opportunity to permanently settle here but that there may be some increase in custodial burden.

14 I turn now to your background. I have no reason to doubt what I was told of your personal and family background and l am not going to restate it all now. It is set out in quite some detail in the excellent written plea submissions (Exhibit 1) as well as in the report of Ms Lechner ( Exhibit 2).

15 Very briefly stated, you are 28 years old, born on 19 April 1989, though you were 27 at the time of the offending. You were born in rural Vietnam and you were one of two children. Your father died when you were very young, and not that long after that unhappy event, your mother and sister then moved to Germany. You have not seen them since. You remained in Vietnam with your grandmother, who it would seem was something of a disciplinarian. You lived in relative poverty as you had prior to your mother's departure. You finished the equivalent of year 12 but it was not easy given your financial state. Your grandmother died in 2013. You saw little future in Vietnam and sold some land that had been left to you by her and came to Australia. This was on a student visa, though you never even commenced the degree at Swinburne. Instead you found employment in various menial jobs generally as a farm labourer in country Victoria. It follows that you were in breach of your visa from a very early stage. That visa required you to study and limited the amount of paid work you could do. That was the sole basis of your being permitted to come to this country. You ignored each of these conditions almost from the outset. I am told that you were recruited to tend this crop and promised the sum of $500 per week and board. You have been in custody since arrest in October of last year.

16 You have no criminal history. It is argued that you will almost certainly be deported, and your visa has been cancelled.

17 I turn then to the matters raised in mitigation. You have pleaded guilty and you have done that at the earliest stage. I reward you for your guilty plea and the stage at which that plea was entered. You have facilitated the course of justice. 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 been saved the time, cost and effort associated with a contested hearing, either in this court or in the court below. I take those matters into account in your favour. They are clearly mitigatory.

18 Your counsel argues that you have some remorse. A guilty plea is often but not always indicative of some remorse. Your guilty plea was entered at the earliest opportunity. In addition, there are some references to your feelings about your involvement in the crime in the report of Ms Lechner.

I am prepared to find that you do have some remorse. I take the existence of remorse into account in mitigation.

19 I turn now to the issue of the suggested increased custodial burden. You have been held in a prison since October of last year. It is a very new experience for you.

20 You are, to an extent, isolated. You are in a foreign country and you await the end of any sentence imposed by this court and then your deportation back to Vietnam. You do not particularly look forward to that day. But in the meantime you sit in prison. You have very limited English skills. You have no visitors. None of this can make life in prison easy. I think it is more difficult for you than many others without those factors, so I do take into account this increased burden, though it is not a large matter in mitigation. It is the inescapable consequence of committing a serious crime in this country.

21 As to your rehabilitation, your counsel argues that you have good prospects. You have no criminal history at all. You have none of the conditions which so often would impede rehabilitation, for instance, drug addiction or serious and complex mental health problems. Though by no stretch of the imagination a 'young offender', you are still a relatively young man and one with no criminal record. You have made the very poor decision to commit this serious crime. You have been arrested, charged and brought before the courts. You pleaded guilty at the earliest opportunity and exhibit some remorse. You have been in prison for quite some time already and that will continue once sentenced. You have developed some insight. Many of these features will have a role in deterring you into the future. I believe you have a low risk of re-offending in this way in the future. I actually do think that you do have good prospects of rehabilitation, though it seems to me that they will take shape in another country. That is, back in your homeland, Vietnam.

22 You will likely be deported. It is not if, but when, in my judgment. Your visa was only a student visa and it has been cancelled. You had breached the terms of it well and truly prior to your movement into this crime. Additionally, of course, I will be passing a sentence which would have you fail the character test under the Migration Act in considering any fresh visa application. I suppose anything is possible. I suppose, for instance, it is always possible that you might successfully move to have a visa issued or cancellation reconsidered, but I regard it as unlikely in the extreme given your failure to honour the last visa and the commission of the serious offence which would certainly have you fail the character test. So, I do not think it is speculative to conclude that you will be deported. I will act on the basis that you will be. The issue is how I take that fact into account if at all. Each case is different and none of the authorities to which reference was made dictate how in a given case the matters ought be reflected. That is because each case is very different.

23 Your counsel was relying on those cases dealing with the mitigatory weight that may be given to deportation. Those cases, including the cases of Guden and the more recent cases of Da Costa Junior, Konamala, Schneider and Nguyen, they deal with the potential impact of deportation, both upon the service of sentence and in the loss of opportunity to permanently settle in this country. Your counsel argued that each matter was raised here.

24 Well, it is very hard to see how you could have entertained any hope of permanent settlement in this country. Any suggestion that you had lost the opportunity of permanent settlement in this country was, in my view, something of a fiction. You came on a student visa, one which had particular conditions attached to it. A visa which you had deliberately breached well and truly before this serious crime was committed. You came in 2014 and never even attended the degree course at Swinburne. Nor did you persist in the English language course. As to your coming to Australia then, this was not some family reunion scheme. There was no family. You had no connections to this country or at least none that I have been told about. You had not married or formed any intimate lasting personal relationship in the period of your stay or had a child with an Australian citizen. There are certainly no family connections here. No ties that I am aware of. Indeed, as I have already said, I take into account, as I have been asked to by your counsel, in a mitigatory fashion your isolation in prison, isolation courtesy surely of your lack of connections in this country. You really had no valid basis to remain in this country well prior to the unfortunate decision to commit this crime. I note some of the matters raised by Redlich JA in the case of Nguyen v The Queen [2016] VSCA 198 at paragraph [35] dealing with what he said were the qualitative differences that can exist in this area. See. He did not reach any concluded views, but his comments make good sense, in my view.

25 What prospect did you ever really have or believe you had of permanently settling in this country? Even if you had complied with the visa? But, of course, you did not. You certainly had no realistic prospect of settling in this country once you breached the terms of the visa, and that well and truly predated the commission of the crime and, for that matter, the sentence that I will shortly pronounce. I do not believe that in the circumstances of this case it is appropriate to give any weight to the claimed loss of opportunity to permanently settle in this country. I do not believe that it operates as an additional punishment at all in the setting of this case. Nor do I regard the expectation of deportation as having any significant role in increasing the burden of your sentence. There is a world of difference between your case and one where the burdens of potential deportation would understandably be severe. For instance, someone who has long and meaningful connections to this country, a family, a job, a house, children, a wife or partner, an established life and serving a prison term knowing of the probability of deportation and loss of opportunity to remain in the country. Of possibly being repatriated to a country they left as an infant or teenager, one that has never in truth been a home at all, even possibly without knowledge of the relevant language in that land. Then there is a case such as yours, with no basis to believe you had any realistic desire or expectation to permanently settle here, precious few, if any, links in the Australian community and repatriation back to a land you grew up in for the first 24 years of your life and where presumably you must still have some extended family. Well, I do not believe that the burden of service of any sentence is greatly increased owing to your knowledge of the likelihood of deportation. I suppose it has you wondering when the blow will fall and there may be some period in immigration detention prior to the ultimate expulsion from the country. You are probably also wondering what lies ahead for you in that country. So I do not ignore those factors.

26 I am not ignoring either submission of your counsel. I just do not believe that there is any loss of opportunity of permanently settling here. I am not persuaded that there is any additional punishment, severe or otherwise, brought about by the likely deportation. I will give some very modest weight to the increased custodial burden for the reasons mentioned above, that is, the uncertainty of movement at the end of sentence and the uncertainty of what lies ahead for you back in your homeland.

27 You will have to serve the sentence that I will shortly pronounce and then you will be deported. However, the certainty of your deportation does not mean that I can have regard to that fact when considering whether or not to fix a

28 I am not entitled to predict whether a person will be granted parole or not, or if granted parole, the conditions of such parole.

Section 5(2AA) prohibits such thoughts. 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.

29 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 the judge determines justice requires, having regard to all of the circumstances of the case. See the case of Schneider paragraph 23.

30 Now here there is the relatively fictional nature of potential parole release in your case. Often enough, as I understand it, a prisoner can be deported upon reaching the end of the non-parole period, though again, I must not speculate about that happening in this case.

31 I cannot let your deportation drive the sentencing discretion. It does not. I must pass an appropriate sentence, and if that is one that enlivens or even 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 them into account. Again see s.5(2AA).

32 So your likely deportation, 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. In fact, 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, and neither are enlivened here. See s.11 of the Sentencing Act. There is no third category dealing with the impossibility or improbability of an actual release into the community.

33 I address now some general remarks to you. No one has suggested that you are the architect of this scheme. No one has suggested that you are the kingpin. Your involvement was as a crop sitter and arose out of your desire to be paid. You were committing this serious crime for reward.

34 That is a very common motivation for people engaged in this sort of venture. Well, in your case, was it need or greed? It is hard for me to know as your only account as to involvement is in your dealings with Ms Lechner. It is totally untested. You gave no sensible or truthful account to the police. The fact is that not every person wanting or needing money embarks upon serious criminal conduct. You did. You chose to. You should not have. That is obvious.

35 It is hard to know whether it was greed or need and very often there is a very fine line between these two concepts. However, as your counsel suggests, there is no material before me suggesting any lavish lifestyle, so I am inclined to act on this case being closer to need than greed. You may have been vulnerable owing to your financial position, but I am certainly not able to find that you have been deceived or misled in any way. Nor has your counsel suggested that you were. You have gone into this venture with your eyes wide open.

36 You were doing what virtually every person engaged in such activities does. You were taking a calculated risk. You made a choice, that is what it was, to commit this serious crime. You hoped not to be caught. You surely weighed up the risks.

37 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 the true nature of your relationship to others in the hierarchy, I will certainly sentence on the basis that you were a crop-sitter for the very limited time covered by the indictment. That is, after all, the agreed position placed before me.

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

39 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 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 profit was central to the event, for at least someone down the line. Not for you, but at least for someone. Why else would such equipment be obtained and set up and a house be converted into what was virtually a cannabis factory? Why else would you expect to be paid for your efforts looking after such a crop, whatever it was that you were to be paid?

40 I really am not able to ascertain your expected financial reward. You have given an account. Who knows if that is true? I have no idea at all. I am not satisfied of your account on the balance of probabilities. I am satisfied beyond reasonable doubt though, of course, that you expected to be paid. That much is conceded. I have no doubt about that at all.

41 So you have chosen to commit a serious crime. You do not fall to be sentenced for financing this crop house, or setting it up, or being at the head of the hierarchy. Plainly you did not set it up. The police have a fair idea as to the identity of the main player and it was not you. You were installed to grow the crop.

42 Well, this particular crop house had all the hallmarks of a professional undertaking, and that must have been plain to you. No doubt those people standing further up the hierarchy from you, whoever they may be, had an expectation of a significant yield of an illegal drug, being cannabis. They had the hope of a harvested crop no doubt 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. There is a yield statement. But the court really does not need a valuation statement to appreciate the inherent value of this drug. Though your counsel placed some weight on the yield statement, one must not overlook the fact that the execution of the warrant stopped this crop in it tracks on 11 October. The yield statement does not even attempt to calculate yield from 52 of the 100 plants. This was an unmistakeably commercial venture and you knew it. You were the cultivator with specific instructions to tend this crop.

44 That there seems to be a never-ending stream of people such as you 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.

45 The people up towards the top of the hierarchy, well, they seldom sit in the dock of a court. That is because they install hired underlings such as you to do the essential work and to lessen their own risk of apprehension. I will sentence on the basis that you were a low level functionary, a crop sitter, but no doubt you were there to perform a necessary and a crucial role.

46 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 to dissuade you and others from committing this sort of offence. As I have said already, you do not stand to be sentenced as the architect of this scheme, but you were very obviously a necessary player. Without players such as you, that is, people who are prepared to involve themselves in the cultivation of crops, well the crops themselves will not exist. They will not flourish without people who are prepared to cultivate them. Your role was obviously deemed to be a necessary one, or you would just not have been asked to perform it. It is that simple. See the case of Doan v. R [2010] VSCA 250.

47 This crime carries a maximum term of 25 years' imprisonment. I must pay regard to the maximum sentence. The Court of Appeal of this State has spoken often enough 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 last year.

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

49 Sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation. As I have said, they are good.

50 I must consider the need for specific deterrence, that is deterring you from committing crimes in the future. You have been arrested, you have been charged and you have pleaded guilty. You have some remorse. You have no criminal record. You have already been in custody and for the first time. It has not been easy for you and nor will it be in the period ahead, and then you will be deported.

51 Specific deterrence has already been achieved to a degree. I believe it is therefore open to significantly reduce the weight to be given to specific deterrence, as well as to community protection in this case.

52 However, this is an offence that generally requires substantial punishment. See the case of DPP v Duong [2006] VSCA 78.

53 As I have also already said, general deterrence is a very significant purpose of sentencing in a case such as this. I just do not accept the contention of your counsel in paragraph 37 of his outline that the message should be aimed more pointedly at people further up the hierarchy, that you are not an appropriate vehicle through which a message can be sent. As I have said, there is seemingly a never-ending stream of hired underlings coming before this court. The message must be sent to people such as you not to engage in this sort of crime. Your counsel, in dealing with sentencing practice for this offence, took me to the Major Drug Offences Sentencing practice paper that broke the offending down into a number of clusters. In fact, the majority of those charged with the offence (51%) had a house sitting or ancillary role. It is of note that 100% of those in cluster 1 type cases claimed to be crop sitters or in some ancillary position. It follows then that crop sitters represent a large proportion of those offenders committing this offence. The message must surely be sent to those potential offenders.

54 Those who choose to engage in this activity, at whatever level, are virtually always taking a calculated risk. It is taken on because of the hope of some financial reward, as I am sure it was in your case. 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 a significant term of imprisonment.

55 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, in my judgment, a very significant purpose of sentencing in this case.

56 I pay regard to current sentencing practices, as I am required to. Mr Terry, well, he took me to all manner of statistics, to the Sentencing Advisory Council snapshot, to the SAC STAT data, to the Major Drug Offence paper, to clusters and median sentences and most common sentences and median non-parole periods and then to the percentages of those sentenced. We worked our way through all manner of these statistics. Assumptions were being made as to the nature of cases dealt with in some of the SAC STAT data.

57 I have looked at the Sentencing Snapshot No.197 of 2016, also at the Major Drug Offences report to which I was referred. I have looked also at the repository of material held at the Judicial College of Victoria sentencing site, which includes 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.

58 When prison was selected as a disposition, the median sentence disclosed in the sentencing snapshot is two years, with the most common sentence falling between two and three years. The most common non-parole period fell between one and two years and the median non-parole period is 15 months. They are more current statistics than those in the Major Drug Offences paper. The median in the Major Drug Offences report is higher at two years and three months, so that relates to a different time frame 2008-9 to 2012-3. The median for cluster 1 house sitters was two years. All that means is that half the sentences were shorter, half were longer, and all of this statistical data predates the recent Court of Appeal decision of Nguyen.

59 I accept that the case of Nguyen is directed at medium level cultivations. I do not judge that decision to have recommended any alteration to sentencing practices for this sort of case, namely a crop sitter. 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 and the weight to be given to punishment and general deterrence. I have looked also at the more recent decision of Kieawkaew and Nguyen, [2016] VSCA 269

60 That is what happens these days to judges in this court on a daily basis. A relatively straightforward case then descends to statistics and tables and schedules of cases and charts and so called comparable cases which often enough are not even comparable. The court is taken to median and most common sentences. All of this designed to address the concept of Current Sentencing Practices, which, though obviously important, is one of a large number of matters that a court must have regard to. It has spiralled hopelessly out of control, in my view, in the last few years. It is a shame that it has. It has significantly increased the burden of sentencing in this court.

61 Well, I do not come onto the Bench to pass sentence as a statistician. I come onto the Bench as a judge and I am exercising a sentence discretion as a judge, not in another case for another crime committed by another person but upon you for your crime.

62 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 any authority as to the sentence called for in this case. I am not required to sentence in accordance with a median. 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, and your counsel made that submission to me.

63 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.

64 Your counsel suggested that your offending fell towards the very bottom of offence seriousness, owing to its limited duration, the cannabis quantity and your role. The prosecutor, Mr Brown, challenged that submission, pointing out the quantity of the drug. He argued that it fell in the lower category but not at the lowest margin of that range.

65 I do not agree with your counsel's submission. As I have said already in the course of these reasons, this was not some low level venture at all. I have seen commercial quantity crops achieved by plant number alone with 100 plants so small that the total weight was under three or four kilograms. I have seen crops with very few plants weighing in just above the 25 kilograms, just above the commercial quantity threshold. Within the last year or two, I as a single judge of this court have seen commercial quantity crops in an open air setting with very low prospects indeed of any meaningful yield at all. No hydroponics, no great set-up, no infrastructure, no hallmarks of commerciality at all. I have seen crops grown in very amateurish conditions; in sheds, in garages, in makeshift settings. I have dealt with cultivation of commercial quantity crops that have not been associated with any commerciality at all with my finding as to the crop being grown predominantly for personal use down the track, with there being no reward or expectation of any reward.

66 In your case, there were 100 plants. It is true that that is bang on the commercial quantity. But you were cultivating those particular 100 plants seen in the photographs. The plants weighed over 45 kilograms, so it is approaching twice the commercial quantity by weight. You were a paid crop sitter, one who had been promised money and board. You had no addictions or pressing mental health issues compromising your judgment. The house was clearly a professional undertaking. It is true that you do not fall to be sentenced for setting up the house, but 'blind Freddy' would understand the seriousness of the venture entering those premises for the first time. You did. The commerciality is a given as you were to be paid. You saw pretty much what I see in the photos.

67 Now the arrest interrupted the crop and your cultivation of it and it was clearly a viable concern. It was a dedicated crop house with a number of rooms under cultivation and you were the sole cultivator. It is not minor offending by any stretch of the imagination. The offending is not at the very lowest level at all in my view, though it is not mid-range and is clearly a very long way removed from the top or upper level of offence seriousness. I do not lose sight of the fact that you are a crop sitter and that places you in the lower level.

68 I have taken into account all of the submissions that have been made on your behalf, also the exhibits which include the report of Ms Lechner. I have not seen the need to descend to the detail of that report but I have taken it into account including the reference to the details of your background and your feelings of remorse.

70 I think you will recall that yesterday there was an application made for a disposal order and it relates to various items set out in the schedule to that order which your counsel is awake to. There is no issue taken with the disposal order. It is made under the provisions of s.78 of the Confiscation Act. I have signed that order. I do not regard it as necessary to pronounce chapter and verse the details of the order. I have signed it and it is pronounced in the terms in which the order is set out. So the property referred to in the order can be held in a way contemplated by that order, all right? So much then for the disposal order.

71 So for your purposes, it deals with the actual plants themselves, the phone, some keys and the power bypass.

72 Secondly, there was an application for compensation. It pertains to the damage in the premises as a result of the cultivation that you were part of. It is not suggested that you have set up the premises, obviously, but again there is no issue here that the order ought be made, it is not opposed, and I again have signed that order. I should add also that I have taken into account the making of that order in the sentence imposed by the court.

73 You are ordered to pay to the owner of the premises, Dong Le, compensation in the sum of $1200, and that is made pursuant to the provisions of s.86 of the Sentencing Act. So I have signed and have pronounced that order.

75 On the charge of cultivation of a commercial quantity of cannabis, I convict and sentence you to 27 months, or two years and three months' imprisonment.

77 You have already served 204 days of this sentence in pre-sentence detention and that s.18 declaration is to be entered into the records of the court.

78 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of this offence by a jury, I would have convicted and sentenced you to four years' imprisonment. I would have fixed a non-parole period of two and a half years. That statement is to be entered into the records of the court.

79 Just have a seat for a moment, please. All right. Mr Terry and Mr Brown, are there any matters I have overlooked in terms of ancillary orders or - - -

81 HIS HONOUR: All right. Will you go down and see your client, Mr Terry, or not?

83 HIS HONOUR: Yes, all right. All right, well, look - - -

84 MR TERRY: Actually, Your Honour, I should say this. If possible, I will speak to him now briefly with the interpreter. He's not sure if she's available to come to the cells.

85 HIS HONOUR: All right, let me just see. I mean sometimes it presents an issue with the management of someone. Is there any issue with Mr Terry speaking briefly to his client with his client remaining in the dock?

86 PRISON OFFICER: Yeah, that will go all right, sir.

87 HIS HONOUR: I will leave the Bench. I don't need to sit here for that to happen, but normally I have an accused removed from the court when I am out of the court, but, Mr Terry, you might have difficulty getting downstairs and seeing him, especially with an interpreter as well, given the time.

88 Yes, all right. That completes the matter then. So I will sign that order, then I will get off the Bench and you will be free to do that and - - -

91 HIS HONOUR: Mr Nguyen, just remain seated. That completes the matter then. I will leave the Bench. The case is concluded, but Mr Terry will come down and just have a brief chat to you down there in the dock. It is going to be difficult for him to come downstairs with the interpreter, I think, given the time, all right?

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Judgment (93 paragraphs)

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