DPP v Nguyen [2017] VCC 844

3 Counsel for the prosecution tendered a Summary of Prosecution Opening setting out the circumstances surrounding your offending in relation to the charge. Such summary has been marked as an exhibit, Exhibit 1, and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are, and I shall do this by dot points.

• You were born in Vietnam in May 1990 and are presently aged twenty-seven years. At the time of the offending, you were aged twenty-six.
• You are a Vietnamese citizen and came to Australia in 2014 on a student visa, and now are on remand in relation to this offending.
• At approximately 5.30pm on Friday, 14 February 2017, police executed a search warrant at 26 Tattenham Street, Caulfield East, after receiving information from the owner of the house that the tenants may have been engaged in illegal activity. Enquiries revealed that on 31 July 2016, the house had been leased to a tenant calling herself Hien Nguyen and utilising a fake driver licence.
• At the time the warrant was executed, you were the sole occupant of the house. You attempted to flee from a rear door, but on observing police, ran back to the house and were ultimately arrested in the rear room of the house after police forced entry.
• On searching the house, the police located 133 cannabis plants growing hydroponically in five rooms of the house and eight large bags of cannabis cuttings and stems at the rear of the premises. The combined weight of plants, stems and cuttings were 119.35 kilograms.
• The hydroponic systems found in the four rooms included such things as lights, light shades, timers, exhaust fans, power boards and transformers. There was also located digital scales, power boards, transformers, and gardening gloves in the shed.
• Various documents were seized from the premises involving cards and documents in your name and a set of keys, including keys to the house, as well as keys to a car registered to you which was parked in the driveway.
• There was an illegal electrical meter bypass located in the roof cavity above the meter position, which enabled access to unmetered electricity.
• On 14 February 2017, you were interviewed at the Caulfield Police Station with the assistance of an interpreter and answered "No comment" to all questions regarding the alleged offending.

4 You have been on remand since your arrest on 14 February 2017, and your period of pre-sentence detention up to the date of the plea, not including 19 June 2017, was 125 days.

5 The prosecution accept that you have no prior convictions or, indeed, any subsequent or pending matters.

6 Furthermore, you offered to plead guilty to the charge on the Indictment at a committal mention hearing on 2 May 2017, and the prosecution accepts that such offer to plead guilty was made at the earliest opportunity.

7 The prosecution also tendered a booklet of photographs detailing various aspects of the premises where the offending occurred (exhibit 2). Also tendered was a document setting out a Sentencing Snapshot dated June 2016 in relation to "cultivating a commercial quantity of narcotic plants" (exhibit 3). Such document sets out the sentencing trends in the higher Court of Victoria between 2010-2011 to 2014-2015. I will return to that document shortly.

8 Your counsel tendered a "Defence outline of plea submissions" dated 16 June 2017, and a certificate certifying that you completed a Diploma of Management under the auspices of the Della International College Pty Ltd (see Exhibit A).

9 On the basis of the submissions made by your counsel, I note the following and again I will go by dot points:

• As I have already recorded, you were born in Vietnam and educated to the equivalent of a Year 12 standard in Vietnam. You are an only child and your father passed away approximately one month ago whilst you were on remand. Your mother is fifty-six years old and she lives alone in Vietnam.
• You maintain contact with your family in Vietnam through friends in Melbourne and by telephone calls from prison when you can afford to make them. Generally, you are lonely and isolated in custody.
• On arriving in Australia in 2014, you had limited English language skills. Since coming to Australia, you have completed an English language program at Griffith University in 2014 and a Diploma of Management at the Della International College in 2015 (see Exhibit A). At the time of your arrest, you were enrolled in an Advanced Diploma of Leadership and Management at Della International College, and a Bachelor of Business (Management) at Cambridge College.
• You have no history of illicit drug use or problematic alcohol use.
• Since being on remand, you have found prison life difficult, essentially through loneliness. You are currently being held at the Fulham Correctional Centre in Sale, and there have been no disciplinary issues.

10 It was submitted by your counsel that your role in relation to the cultivation of the illicit drugs was no more than what is colloquially referred to as a "crop sitter", and indeed the evidence would suggest that such crop sitting was for a short duration from 9 February 2017 to 14 February 2017. It was submitted that there was no suggestion that you cultivated by tending to the plants, watering, feeding or harvesting them. In particular, the enterprise was not funded by you, or controlled by you, and there was no expectation of sharing in any profits. There was no financial interest in the house.

Mitigating circumstances relied on by your counsel

11 It was submitted by your counsel that the following matters are relevant in mitigation of sentence:

(a) Your plea of guilty, which has been accepted by the prosecution to be at the earliest possible time. Furthermore, partly based on such plea of guilty, and the instructions given by you to your counsel, you are remorseful about your actions in assisting in the cultivation of the cannabis crop and, indeed, the impact on your family as a result of your criminal activity.

(b) The period of offending was limited to five days.

(c) You have no prior convictions of any nature and, indeed, there is no suggestion of any other offending.

(d) Following recent changes to the Migration Act 1958 (Commonwealth), you face the prospect of the cancellation of your student visa and deportation. Generally, reference was made to Nam Son Nguyen v DPP [2016] VSCA 198 and, in particular, paragraphs 16-37. Your counsel submitted that the uncertainty of your future weighs heavily upon you, with the prospect that you will be deported, causing you not to be able to complete your education or return to this country.

(e) That given your lack of prior convictions, your relative youth, and the limited nature of your offending, your prospects for rehabilitation were submitted to be "extremely good".

12 Your counsel referred to two relatively recent decisions involving "crop sitters", a decision of His Honour Judge Wischusen in DPP v Quyen Nguyen & Huy Nguyen delivered on 17 August 2016 [2016] VCC 1197, and a decision of His Honour Judge Punshon in R v Truong Bui delivered on 22 January 2016 [2016] VCC 37. In the first decision, Judge Wischusen ordered a period of imprisonment of eighteen months, with a non-parole period of twelve months, whereas Judge Punshon ordered a period of imprisonment of twenty-one months, with a non-parole period of twelve months.

13 Counsel for the prosecution accepted that you could be appropriately described as a "crop sitter". He did submit that the quantity was relevant and that the weight of the crop is not insignificant.

14 Furthermore, consistent with your characterisation as a "crop sitter", there is no evidence that you were playing any higher role, involved in the setting up of the enterprise or, indeed, any potential profit sharing.

15 In particular, the prosecution did tender a "Sentencing Snapshot" in respect of the offence of "cultivating a commercial quantity of narcotic plants" relevant to the period from 2010/2011, to 2014/2015 (see Exhibit 3).

16 Such Snapshot reveals that over the period from 2010/2011 to 2014/2015, 414 people were sentenced in the higher courts for the principal offence of cultivating a commercial quantity of narcotic plants. Over that five-year period, 87 per cent of people were given an immediate custodial sentence. The length of total effective sentences ranged from two months (combined with a community correction order) to six years and nine months, while the median, or middle, total effective length of imprisonment was two years and two months; meaning that half of the total effective sentence lengths were below two years and two months and half were above.

17 The most common total effective imprisonment length was two, to less than three years.

18 Of course, it must be stressed that the offence of cultivating a commercial quantity of narcotic plants involves a person who sows the seed of a narcotic plant or grows, tends or nurtures a narcotic plant, without being authorised or licensed to do so. Furthermore, such "Snapshot" does not demarcate between those pleading guilty to the offence, and those who plead not guilty and are subsequently found guilty by a jury.

19 As I have already recorded, you entered Australia on a student visa in 2014, and your counsel submitted that following recent changes to the Migration Act 1958 (Commonwealth), you face cancellation of your visa and deportation. Reference was made to Nam Son Nguyen v DPP [2016] VSCA 198, in particular at paragraph 16, wherein it is stated that such situation pertaining to the uncertainty of your future would weigh heavily upon you, and that you have sustained extra curial punishment of a type that makes your situation different from the vast majority of offenders.

20 It was further submitted that it would be open to the Court to make a finding that your prospects of rehabilitation are excellent.

21 The offence of cultivating a commercial quantity of narcotic plants - in this case cannabis - is a serious offence, as clearly indicated by a maximum penalty of twenty-five years' imprisonment. The potential sentence for such offence reflects the community's desire to rid the community of illegal drug use and the various criminal activities associated with such use.

22 I accept the submissions of both counsel that your role in cultivating a commercial quantity of narcotic plants can be appropriately described as a "crop sitter" - being at the lowest end of the activities associated with such offence. In this respect, there is no evidence whatsoever that you were involved in setting up the enterprise at the property in Caulfield East, or ultimately to be involved in the distribution of the cannabis or profit sharing from such offending.

23 Of course, it must be borne in mind that the cultivation of a commercial quantity of cannabis does require "crop sitters" to allow such cultivation to take place. Furthermore, the quantity of the narcotic plant to be cultivated was of a "commercial quantity" - that is to say, a weight of 25 kilograms or one hundred plants.

24 Consistent with the submissions of your counsel, the following matters should be taken into account in mitigation of any sentence:

(a) Your early plea of guilty, which was accepted by the Director of Publication Prosecutions to be a plea at the earliest time. Although the case against you would appear to have been quite strong, a plea of guilty, at the very least, has utilitarian value in saving the time and cost of a trial - see Phillips v R [2012] VSCA 140 at paragraph 36. It is always a question for the sentencing judge whether remorse, or a willingness to facilitate the course of justice, and acceptance of responsibility, are to be drawn from a plea of guilty - again, see Phillips v R (op cit) at paragraph 96. I do consider that your early plea of guilty is evidence of some remorse and, indeed, I also note that you have informed your counsel of your remorse in committing such offence and the upset that you will cause your family.

(c) Since coming to Australia to further your education, you have, hitherto, shown real endeavour to advance yourself by completing the English language program at Griffith University in 2014 and a Diploma of Management at the Della International College in 2015. Furthermore, you were enrolled for an Advanced Diploma of Leadership and Management and a Bachelor of Business (Management) at the time of your arrest. I consider that, most probably, you are an intelligent person who sadly made a frightful choice in choosing to become a crop sitter for some material gain. However, I do accept, given the small time of offending, your past record, and your probable intelligence, your prospects of rehabilitation should be considered as "good".

(d) Presumably, you continue to be on a student visa and, as submitted by your counsel, face the prospect that ultimately your visa will be cancelled and you will be deported to Vietnam. Obviously, such a course of action would cut short your prospects of further education in Australia and cause you to return to your native country in shame.

Reference was made by your counsel to the Court of Appeal decision of Nguyen v R which, in part, was an appeal by the accused that the sentencing judge was wrong in not taking into account the burden of the accused and the risk of his deportation at the conclusion of his term of imprisonment. In that particular case, the appellant had overstayed a family-sponsored visitor's visa and, at the time of the offending, had been an illegal immigrant for a number of years. The Court noted that a person who resides in Australia legally under a visa at the time of sentencing does have the added uncertainty of not knowing whether an application for the revocation of the decision to cancel the visa will succeed, and the consequences that follow.

25 After a consideration of all of the matters, I consider, consistent with the submissions of both counsel, and indeed current sentencing practices, that you should be convicted and sentenced to an immediate period of imprisonment. I consider that such a sentence should involve considerations of general and specific deterrence, together with just punishment.

26 I will grant the application by the prosecution for the disposal of various items seized by the police from the property.

(a) In relation to Charge 1, you are convicted and sentenced to a period of 16 months' imprisonment, with a non-parole period of ten months.

(b) I declare that you have served 136 days in pre-sentence detention and such period should be administratively deducted.

(c) I order the disposal of the various items seized by the police from the property.

(d) Pursuant to s.6AAA of the Sentencing Act 1991, I declare that save for your plea of guilty, I would have ordered a sentence of twenty-four months, with a non-parole period of sixteen months.

HIS HONOUR: Very well, yes, take the prisoner down. Yes, thank you, we'll adjourn temporarily.