DPP v Nguyen & Anor [2018] VCC 1322

1. Hoc Thi Nguyen and Van Thanh Nguyen, you may remain seated. You have both been found guilty by a jury of one charge of cultivation of a narcotic plant in not less than a commercial quantity contrary to s.72A of the Drugs Poisons and Controlled Substances Act of 1981.
2. The circumstances of your offending are as follows.
3. In the morning of 21 February 2017, police officers attended an industrial factory in North Geelong to execute a search warrant. The factory was surrounded by an electric fence. Police cut the power to the fence and obtained entry to the premises. Upon entering the premises, police located a fork-lift and hundreds of empty cardboard boxes stacked on top of each other. Tables and chairs were set up with tea-making facilities and other items. No person was then present.
4. A corridor area between the shelves of boxes led to an open doorway. Inside the doorway were a series of rooms within which were hydroponic systems growing cannabis plants at various stages of development. The electricity meter had been bypassed and shrouds, transformers, and globes were used to assist in the cultivation of the plants. The cartons and fork-lift were apparently there to create the impression of an operating factory.
5. The plants were later examined by a botanist and found to be cannabis L. The total number of plants there were 337 and their total weight was 63.9 kilograms. A commercial quantity of cannabis is defined as 100 plants or more, or plants weighing 25 kilograms or more.
6. After police entered the factory, a police officer left and went to his unmarked police car which was parked outside. As he did so, he observed a vehicle slowing and indicating to turn into the factory. You two were the occupants of that vehicle. You observed the police officer and changed direction. The vehicle then accelerated past the factory gate and turned right, driving through another industrial building and on to the road behind. The police officer gave chase and activated his siren and lights. Your vehicle was pulled over.
7. Hoc Nguyen, you were the driver and registered owner of the vehicle. Van Nguyen, you were the passenger. The vehicle had been observed by police parked within the electrified fence of the factory four days earlier on 17 February 2017.
8. You were both arrested at the scene and the vehicle was searched. In the boot were ten transformers consistent with those located as part of the hydroponic cannabis setup at the factory. Police seized a number of items from the tea table area inside the factory. These items were examined and submitted for DNA analysis, the result of which indicated:
   • Hoc Nguyen's DNA was found on a blue peaked cap.
   • Van Nguyen's DNA was found on an asthma pump, a cap, and on the inside of a boot.
9. This conduct constituted the offending for which you were convicted.
10. Section 5 of the Sentencing Act provides for the purposes for which courts may impose sentences. They include:
    • The punishment of you to an extent and in a manner which is just in all of the circumstance.
    • To manifest the court's denunciation of your conduct in which you engaged.
    • To deter you and others in the community from committing such offences in the future.
    • The protection of the community from you.
11. I am required by s.5 of the Sentencing Act to have regard to a number of matters, including:
    • The seriousness of your offences.
    • Your culpability for them.
    • Your personal circumstances.
    • Whether or not you pleaded guilty to the offences.
    • Whether you have shown remorse for your offending
    • Your prospects of rehabilitation.
    • Whether or not you have relevant prior convictions.
12. I have taken into account each of the matters set out in subsection 2 of s.5 of the Act.
13. The maximum penalties prescribed for cultivation of a narcotic plant in not less than a commercial quantity is 25 years' imprisonment. That maximum term reflects the seriousness with which Parliament views this offence.
14. On the evidence, each of your roles in the cultivating operation appears to be what is often described as that of a 'crop sitter', which as I understand would consist of the basic minding of the crop, including some care and maintenance of it. There is no evidence that either of you were involved in any of the entrepreneurial aspects of the operation such as the locating and leasing of the premises, the design or installation of any of the equipment found at the premises or in the proposed marketing of the crop.
15. There was no evidence that either of you had any financial interest in the crop beyond payment you were to receive for your attendance. Nevertheless, I consider your roles were vital for the success of the enterprise. Without people such as yourselves being prepared to care for and look after the crop, there would be no harvest, no sale and no profit to anybody.
16. Further, your pleas of not guilty indicate an absence of remorse on your part for your offending. You are not entitled to any discount of sentence which attaches to a plea of guilty.
17. I will now deal with Hoc Nguyen. Hoc Nguyen, by way of background you are 28 years old. At the time of offending you were aged 26. You were born in Vietnam where you completed secondary education, followed by obtaining a Bachelor of Mechanical Engineering at the University of Industry in Ho Chi Minh City. You migrated to Australia in April 2013 and commenced English language and accounting classes at RMIT. Up until the time of your remand you continued to study on a part-time basis.
18. Since coming to Australia you have been employed as a meatpacker and a handyman. You are presently on a bridging visa awaiting a decision on your application for permanent residency.
19. You met your wife in June 2014 and were married in August the following year. Your wife has recently completed a Bachelor of Business and Economics and is presently seeking professional employment. You have maintained contact with her throughout your remand, although her ability to visit you has been affected by your relocation to the Fulham Correctional Facility. You report no significant difficulties in prison, although your limited English language is a barrier to communication with other prisoners and staff.
20. Your parents and siblings remain in Vietnam. Your counsel informed me that your conviction and remand has had a significant effect on your parents as the news of your offending and apprehension has spread through their local community. As a result, they have severed their relationship with you, which has made your time in custody more difficult.
21. You do not report any mental health issues beyond those to be expected from a person serving a first term of imprisonment. I was informed that you suffered a serious back injury in April 2018, the result of a workplace accident, and were hospitalised for several days. Following your discharge from hospital you returned to work but aggravated the injury. At the time of your conviction counsel informed me that you were prescribed strong analgesia and that this medication had not been made available to you in custody.
22. There are matters which go in mitigation to your sentence.
23. You are presently on a bridging visa awaiting a decision in relation to permanent residency. Your counsel submitted that the likelihood of a cancellation of your visa is a matter to which the court must give regard in considering the sentence to be imposed.
24. I was referred to recent changes to s.501 of the Migration Act. Your counsel submitted that:
    • Previously, the position was that a sentence of 12 months or more will, upon its expiry, enliven the power of the minister to revoke an existing visa or decline to renew one.
    • Following recent changes, the situation has effectively reversed in that a sentence of 12 months or more enlivens an obligation on the minister to cancel the visa of a person unless an application for a reversal of that decision is successful.
25. I was referred to the Court of Appeal decision of Da Costa Junior v The Queen [2016] in which the Court of Appeal discussed the differences between the position before and after the amendments. Whilst their Honours acknowledged that there was "a qualitative difference between the two sets of circumstances," the court was ultimately "not persuaded that for the purposes of sentencing, any change of approach was required".
26. In 2010 the Court of Appeal in the matter of Guden v The Queen made it clear that a sentencing court cannot be asked to speculate about the likelihood of deportation.
27. Notwithstanding the recent changes to the Migration Act, the ramifications of a conviction upon your visa are presently uncertain. While a sentence of imprisonment of 12 months or more will trigger the operation of s.501 and may lead to the cancellation of your visa, any assessment of the risk of deportation remains imprecise.
28. I shall not speculate as to the fate of your application for permanent residence. I do, however, take into account that any time spent in prison will be more onerous upon you than would otherwise be the case because of your concern about deportation upon your release.
29. Your counsel submitted that you have excellent prospects of rehabilitation. You have no prior convictions. This is the first time that you have been in custody. You are to be sentenced as a person who has previously been of good character.
30. Two character references were tendered on your behalf, from a friend, Mr Bui, and your former employer, Truong Vu Nguyen. They each speak highly of you and consider you to be a person of good character.
31. You were 26 years old at the time of offending. Whilst your age does not permit me to classify you as a young offender as defined in the Sentencing Act, you are nevertheless of an age where the vast proportion of your life lies ahead of you.
32. Taking into account your relative youth and previous good character, I accept that your prospects for rehabilitation are good.
33. Hoc Nguyen, taking all of the circumstances into account, in relation to the charge of cultivation of not less than a commercial quantity of a narcotic plant contrary to s.72A of the Drugs Poisons and Controlled Substances Act you are convicted and sentenced to a term of imprisonment of two years and six months. I direct that you shall not be eligible for parole until you have served 18 months of that term.
34. Mr Senia, have you done the calculations as to time spent in custody pending sentence?
35. MR SENIA: Yes, Your Honour, 75 days.
36. MR PATTON: I agree with that, Your Honour.
37. HIS HONOUR: Thank you. I am informed that you have been in custody pending sentence for 75 days, not including this day. I declare that such period of detention be reckoned as part service of this sentence and be recorded as such in the records of this court. I shall return to ancillary orders shortly.
38. In relation to Van Nguyen. You are aged 52, aged 51 at the time of your offending. A report from Alice Kroll, psychologist, dated 24 July 2018 was tendered on your behalf. In it, Ms Kroll sets out your background in some detail.
39. You are the eldest of five siblings. You were born in an industrial town in North Vietnam. Your parents were separated by war when you were an infant. Your mother was unable to look after you and you were raised by your grandmother and your mother's siblings until about the age of nine.
40. You described a hard life growing up, such that you spent half of your childhood working in the markets to earn money for food. You spoke highly of your mother, who despite being poor and uneducated worked hard to provide for your family. Your father was an ironworker who you described as authoritative. You reported that whilst it was common practice to be whipped, overall you were treated as what you described as a normal child of the family.
41. You attended school up to Year 7, although struggled due to your family circumstances and had to discontinue thereafter as your family could not afford to pay for your further education. When you were about 16 years old you stowed away on a boat heading to Hong Kong. There you lived in a refugee camp where you later met up with your family. From there the Catholic Church in Australia supported your application to migrate.
42. You moved to Australia with your parents and siblings in 1985 when aged 20. You married a Vietnamese woman who you had met when visiting your father's family in Vietnam. You had four children together, now aged between 17 and 26, before that marriage ended. Ms Kroll reported that you maintain an amicable relationship with your first wife.
43. You married again for a short period, ending in 2002, to a foreign student who you had sponsored. You appear to have maintained a good and supportive relationship with your children.
44. Since moving to Australia you have worked in various jobs, including as a farmhand and as a tiler. You have experienced long periods of unemployment. You were working as a tiling subcontractor in the lead up to your arrest.
45. There are a number of mitigating and aggravating factors pertaining to you.
46. Your criminal record was tendered which contains details of prior offences. On 13 March 2009, some nine years ago, you were convicted of a number of offences:
    • one count of cultivating a commercial quantity of cannabis;
    • one count of trafficking cannabis (in a non-commercial quantity);
    • one count of theft of electricity; and
    • one count of possessing proceeds of crime.
47. You pleaded guilty to those charges. You were sentenced by a judge of this court to a term of imprisonment of three years with a non-parole period of 18 months. The circumstances of that offending were outlined in His Honour's sentencing remarks:

In June 2008, police had executed a search warrant on your home. Police located a hydroponic crop of cannabis spread over five rooms, containing a total of 163 cannabis plants weighing 72.26 kilograms. Police also found $5000 cash in the handbag of your second wife. Police searched a second house where a further hydroponic cannabis crop was located and a total of 48 plants, weighing 38.83 kilograms, was seized. The electricity had been bypassed in both premises.

1. Here, your counsel submitted that there were a number of distinguishing features between your previous offending and the current offending for which I am sentencing you today. To summarise, those differences were that:
   • The prior offending occurred during a "between dates" range of a little more than four months. The current offending is a single date charge only. There is no evidence in the present case to link you to the premises on any day other than the day of your arrest.
   • The previous offence concerned crops consisting of a total of 211 plants weighing just over 111 kilograms in the two houses. The current crop, 63.9 kilograms, in the one location, although it has to be said there were 337 plants found in total.
   • There is no allegation in the current offending that you trafficked cannabis, stole electricity or dealt with the proceeds of crime.
   • There was evidence of enrichment in your prior offending; there is no evidence of enrichment in the current matter, although I infer that you were to be paid for your crop sitting.
   • There was evidence that you had a significant role in the cultivation of the cannabis in the prior offending. There is no such corresponding evidence in the current matter.
2. Your counsel conceded that your criminal history was a relevant factor which can be taken into account in determining the appropriate sentence; however, it was submitted that it ought not to be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the present offence. I accept those submissions.
3. I was referred to the High Court decision of Veen v R, a decision of 1987, in which four Justices of that court stated that the criminal history of an offender is a fact which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence and to do so would be to impose a fresh penalty for past offences. I have taken that principle into account.
4. Whilst your prior offending obviously has relevance in determining your sentence, as well as in assessing your prospects of rehabilitation, I have not given it such weight as to leave what would be in my opinion a disproportionate sentence in all the circumstances. Nevertheless, it appears to me that you do not seem to have learned a great deal from your earlier conviction. Your repeat offending leads me to believe that your prospects for rehabilitation are at best guarded.
5. A number of character references were tendered on your behalf from:
   • Each of your four children.
   • Ms Linh, a nun at the Buddhist temple that you frequent.
   • A close friend of your son.
   • A cousin and a niece of yours.
   • Three persons who had previously worked with you.
   • Three friends of yours.
   • Your brother Hong.
6. They each speak highly of you. They speak of you in admiring and supportive terms. All consider you to be a person of good character. All expressed the view that your offending behaviour is out of character. Many speak of your qualities as a father and family man. Your children speak of the distress that your finding of guilt has caused them. They refer to you as a supportive and encouraging father. I take those into account, although I note that none of the persons who provided character references for you made any reference to your prior conviction or to the matter for which you are presently before the court.
7. Van Nguyen, taking all the circumstances into account and, in particular, your prior conviction, in relation to the charge of cultivating not less than a commercial quantity of a narcotic plant contrary to s.72A of the Drugs Poisons and Controlled Substances Act you are convicted and sentenced to a term of imprisonment of three years. I direct that you shall not be eligible for parole until you have served two years of that term.
8. Mr Senia, pre-sentence detention?
9. MR SENIA: Ninety-four days, Your Honour.
10. MR DEFTEROS: We concur with that, Your Honour.
11. HIS HONOUR: Thank you, Mr Defteros. I am informed that you have been in custody pending sentence for 94 days not including today. I declare that such period of detention be reckoned as part service of this sentence and recorded as such in the records of the court.
12. MR DEFTEROS: If Your Honour pleases.
13. HIS HONOUR: In relation to the disposal orders, I have made the orders in the form that were handed to me on a previous occasion. Counsel, have you seen those proposed orders? If not, I will hand them down to you.
14. MR DEFTEROS: No, Your Honour, I don't believe so.
15. HIS HONOUR: They can be handed down to you at this stage. Yes, thank you. My associate can make copies of that order for counsel as I leave the Bench. Is there anything further that I should have attended to but have not?
16. MR SENIA: Your Honour, there is just one issue I would seek to raise. I'm just trying to download the Sentencing Act on my phone at the moment, I'm having some difficulties.
17. HIS HONOUR: I've got it here.
18. MR SENIA: It's in relation to s.6D of the Sentencing Act which is the serious offender provisions. I'm not sure if this was canvassed on the last occasion.
19. HIS HONOUR: No, it was not. It was?
20. MR SENIA: I understand, Your Honour, Mr Van Nguyen is to be sentenced as a serious drug offender because of the prior.
21. HIS HONOUR: Because of the previous sentence.
22. MR SENIA: And pursuant to s.6F I understand there's a requirement that the court enters into the record in respect of that offence that the offender was sentenced as a serious offender. It's Part 2A, Your Honour, I've just got it now on my phone. Part 2A is the serious offenders provision.
23. HIS HONOUR: Part 2A of the Act.
24. MR SENIA: Of the Act, yes, and then scrolling down to s.6F which is serious offender status to be noted on the record.
25. HIS HONOUR: Yes. Then if one goes to s.16 - did you take me to?
26. MR SENIA: Section 16 of the Act, Your Honour?
27. HIS HONOUR: Yes. Did you refer me to that or did I mishear you?
28. MR SENIA: No, it was just s.6F.
29. HIS HONOUR: Sorry, I misheard you then. That is a mandatory direction contained in subsection 1 of s.6F. Is there any suggestion by counsel that

Mr Hoc Nguyen is not a serious offender for the purposes of the Act?

30. MR PATTON: Hoc Nguyen certainly isn't, Your Honour, I think it's Van Nguyen.
31. HIS HONOUR: Sorry, Van Nguyen has the prior conviction.
32. MR DEFTEROS: No, Your Honour, I think this was the subject of some debate when Miss Coombes appeared on the previous occasion and Your Honour did hear argument about that, and I think we did file some - yes, we did have a debate about that before Your Honour on a previous occasion.
33. HIS HONOUR: Yes. A serious drug offender is defined as an offender - other than a young offender which we are not concerned with here - who has been convicted of a drug offence for which he has been sentenced to a term of imprisonment.
34. MR DEFTEROS: Yes.
35. HIS HONOUR: And he would certainly come within that definition.
36. MR DEFTEROS: Yes.
37. HIS HONOUR: Drug offence is defined in Clause 4 of Schedule 1 and from memory, I don't think there is any doubt he comes within Clause 4. Just let me confirm this. Yes, firmly within Clause 4(iv) s.72A.
38. It is appropriate then that I include in my orders that I shall enter into the records of this court in respect of this offence the fact that Van Nguyen has been sentenced as a serious offender. Notwithstanding that being brought to my attention, it is not my intention to alter the sentence that I have indicated was to be imposed. The specific reason that I have not imposed a higher sentence than that was imposed some years ago by Judge Taft, I think it was, of this court, I do consider that the evidence here was this was a single date offence and that was all that Mr Van Nguyen was convicted of, and that can be contrasted sharply with the nature of the prior offence back in 2008.

39. MR DEFTEROS: Just one matter. I think the Crown did concede on the previous occasion, Your Honour, that they were not seeking a disproportionate sentence.
40. HIS HONOUR: They did not seek a disproportionate sentence.
41. MR DEFTEROS: And Your Honour has found aggravating circumstances in relation to the sentence of Van Nguyen in your reasons.
42. HIS HONOUR: Yes, I did. Do you want to say anything further, Mr Senia?
43. MR SENIA: I agree with that, Your Honour. The effect of sentencing an offender as a serious offender, Your Honour, is that the court is to consider protection of the community from the offender as the primary sentencing purpose. Your Honour has taken, as my friend says, into account the prior matter. The only submission I make in relation to that is that it should be entered in the record pursuant to s.6F.
44. HIS HONOUR: Yes, and it will be.
45. MR SENIA: Thank you, Your Honour.
46. HIS HONOUR: Anything further?
47. MR SENIA: No, Your Honour.
48. MR DEFTEROS: No, I agree with that.
49. HIS HONOUR: Mr Nguyen and Mr Nguyen may be taken downstairs.
50. COUNSEL: As Your Honour pleases.