DPP v Ton & Nguyen [2017] VCC 222

Sentence: Ton: Convicted and sentenced to a total effective sentence of 24 months' imprisonment with a non-parole period of 12 months

Nguyen: Convicted and sentenced to a total effective sentence of 17 months' imprisonment with a non-parole period of 9 months

1 Dinh Cao Ton and Giap Canh Nguyen, you have each pleaded guilty to one charge of cultivating a commercial quantity of cannabis pursuant to s72(a) of the Drugs Poisons and Controlled Substances Act 1981.

2 Mr Ton, your offending occurred between 16 March 2016 and 22 June 2016.

3 Mr Nguyen, your offending occurred between 5 June 2016 and 22 June 2016.

4 A Prosecution Opening was tendered on the plea. It is an agreed summary.

5 The relevant offending conduct can be summarised as follows:

6 In June 2016, police were conducting surveillance of a property at 12 Hopkins Way, Wallan. On 6 June 2016, police observed a Toyota Camry, registration 1DG7LF, parked at the address. This vehicle was registered to you, Mr Ton.

7 On 22 June 2016, at approximately 8.10am, a number of Victoria Police members attended at 12 Hopkins Way, Wallan to execute a s 81 Drugs, Poisons & Controlled Substances Act 1981 search warrant.

8 Upon entering the premises, you, Mr Nguyen, were arrested by police and were subsequently identified through a Victorian Drivers Licence receipt found within the premises.

9 A search of the house located a hydroponic cannabis setup in six of the rooms.

(a) Room One - 55 cannabis plants in a small incubator and one cannabis plant next to the incubator - total weight of plants 121 grams;

(b) Room Two - 24 cannabis plants underneath 24 heat lamps, 2 charcoal filters and 24 electrical ballasts - total weight of plants 34.9 kilograms;

(a) Room Three - 56 cannabis plants underneath 8 heat lamps, one charcoal filter and 8 electrical ballasts - total weight of plants 9.58 kilograms;

(b) Room Four -13 cannabis plant stumps underneath 13 heat lamps, one charcoal filter, 13 electrical ballasts and a mixture of harvested cannabis flowers, branches and stems. The cannabis was examined with the following findings:

(i) Total weight of 13 cannabis plant stumps - 797 grams

(ii) Harvested branch portions in a fresh condition - total weight 1.66 kilograms

(iii) Harvested mature female flowering branches in a fresh conditions - total weight 22.1 kilograms;

(e) Room Five - 9 cannabis plants and 2 cannabis plant stumps underneath 11 heat lamps, one charcoal filter, 11 electrical ballasts and a mixture of harvested cannabis flowers, branches and stems. The cannabis was examined with the following findings:

(i) 9 cannabis plants (one was partly harvested) - total weight 20.32 kilograms

(iii) Harvested mature female flowering branches in a fresh condition - total weight 4.85 kilograms

(f) Room Six - 64 cannabis plants in a small incubator (total weight 141 grams) and two plants on the kitchen floor (total weight 5 grams).

11 A total of 211 cannabis plants were located throughout the house. The total weight of all the cannabis seized, including plants, stumps and harvested material, was 94.6 kilograms.

12 An electrical bypass was located in the master bedroom wall.

13 Mr Nguyen, you were arrested by police and conveyed to the Wallan Police Station for the purpose of an interview. You stated to police that you had been living at the address and were there to water and cut the plants. You stated that your friend (Mr Ton) was due to arrive at 10:00am.

14 At approximately 10:10am, you, Mr Ton, attended 12 Hopkins Way, Wallan in your Toyota Camry, registration 1DG7LF. You went to the front door of the house, opened the security door and observed police inside. You attempted to flee; however, you were arrested by police and identified by a Victorian Drivers Licence found in your possession.

15 Police searched your vehicle, Mr Ton, and located two light shades similar to those in the property, power cords, plastic sheets, timber framing and screws. In your wallet was Mr Nguyen's drivers licence.

16 Mr Ton, your fingerprints were subsequently located on the following items:

(a) Two light fittings located in the boot of your car;

17 Mr Ton, you were interviewed with the assistance of a Vietnamese interpreter on 23 September 2016 at the Fulham Correctional Centre. During the interview you stated, inter alia, the following:

(a) That you did not know how many plants were in the house (Q&A 27);

(b) The other person working with you was Mr Nguyen (Q&A 32);

(c) You could not find farm work and met a man named "Tuan" who offered you work feeding and watering the plants (Q&A 33);

(d) You sometimes lived at the crop house (Q&A 35);

(e) Everything was already set up when you first went to the house (Q&A 36);

(f) You had been working with the plants for about a month (Q&A 37);

(g) You did not understand much about the plants, but you could not find a job and needed money (Q&A 38);

(h) You were told you would be paid $3,000 to $4,000 per month, but you had not yet been paid (Q&A 39);

(i) You did not try to run away from police on 22 June 2016, but when you saw people inside the house, you panicked (Q&A 42);

(j) You did not know what the equipment in the car was for. Tuan told you to take it to the crop house (Q&A 45-46);

(k) Tuan dropped the equipment off outside his house in St Albans (Q&A 51);

(l) You first met Tuan at a strawberry farm where you were working for three seasons (Q&A 47-50);

(n) You came to Australia on a Student Visa in 2013, which expired in March 2016 (Q&A 104-106);

(o) You overstayed your Visa because you wanted to get some money to support your family back in Vietnam (Q&A 107).

18 Mr Nguyen, you were interviewed with the assistance of a Vietnamese interpreter on 26 September 2016 and during the interview, you stated, inter alia, the following:

(a) You came to Australia on a Student Visa after finishing Year 12 in Vietnam and could not afford the education here so had to work instead (Q&A 20);

(b) You were asked by "Dinh" (Mr Ton) to help him with the crop house (Q&A 33-34);

(c) You met Mr Ton whilst picking strawberries about six months before your arrest (Q&A 40);

(d) You helped look after the house and water the plants, which you knew were cannabis and illegal (Q&A 42-43);

(e) You were first taken to the crop house on 5 June 2016 and given instructions on how to look after the plants by Mr Ton (Q&A 46-47);

(f) Mr Ton taught you everything about caring for the plants whilst you were living at the address (Q&A 61);

(g) Mr Ton visited the house every three or four days (Q&A 62);

(h) The night before the warrant was executed, Mr Ton told you to start harvesting the plants the next morning and Mr Ton would come to collect them at 10.00am (Q&A 53);

(i) When police attended, you were in the middle of cutting the branches (Q&A 56);

(j) Mr Ton told you you would be paid for your initial work and then would receive 25 per cent of the revenue after harvest, which you thought was about $3,000 to $4,000 (Q&A 63);

(k) Mr Ton told you the house would be set up when you first arrived, but you did not know who set it up (Q&A 76).

19 I now turn to the objective gravity of the offending and to your respective roles.

20 The maximum penalty for this offence is 25 years' imprisonment. This reflects the relative seriousness of the offence of cultivation of a commercial quantity of cannabis.

21 The hydroponic set up, the electronic bypass, its location in a factory and the sheer scale of production all bespeak of a high level of sophistication. As I said earlier, a total of 211 cannabis plants were located weighing 94.6 kilograms.

22 Part 2 of Schedule 11 to the Drugs, Poisons and Controlled Substances 1981 stipulates the commercial quantity of a narcotic plant is 100 plants or 25 kilograms. Whether measured by weight or quantity, the cannabis located was well in excess of the commercial quantity threshold.

24 Both counsel accepted, realistically, that an immediate custodial sentence was probable.

25 That all said, when assessing your culpability, it was submitted by your respective counsel, and conceded by the Prosecution, that your offending, Mr Nguyen, can be characterised as falling in the lowest category of seriousness which is generally reserved for offenders such as crop sitters who generally have no financial interest in the crop, and you, Mr Ton, in the lower category. (See DPP v Nguyen [2016] VSCA 198).

26 Neither of you was involved in the establishment of the cannabis crop. It was already set up and in operation when you became involved. It is also not alleged that either of you installed the electricity bypass. Neither of you had a proprietary interest in the operation. You were both involved for a relatively short period of sentencing.

27 I sentence you upon the basis that you each played a similar role as crop sitters attending to the crop on someone else's behalf.

28 In terms of your actual activities at the factory, I find that your roles were nonetheless different. You, Mr Ton, were the older man and introduced Mr Nguyen to the enterprise. However, you in turn were subordinate to a Mr Tuan but you had been involved in the enterprise for a longer period, being from March 2016 until 22 June 2016 compared to 5 June 2016 and 22 June 2016 for Mr Nguyen.

29 Mr Ton, in your interview, a summary of which I have reproduced above, you talk about how you were lured into this enterprise by the person you refer to as "Mr Tuan". You talk about your meetings with Mr Tuan at the house but you had no means of contacting him and would merely await his attendance. At no point do you say Mr Nguyen met with Mr Tuan or that Mr Nguyen was directly involved in any of these interactions or arrangements.

30 While you do not explicitly say it, Mr Ton, the clear import of your admissions is that you introduced Mr Nguyen, having met him at the strawberry farm, into this enterprise after you yourself had been recruited by Mr Tuan. This finding is substantially consistent with Mr Nguyen's admissions.

31 In these circumstances, in my view, you, Mr Ton, do sit to some degree above Mr Nguyen.

32 Having said all that, I do not lose sight of the fact that you both fall to be sentenced as crop sitters and that you are both low down on the hierarchy of moral culpability. Further, while you, Mr Ton, were closer to the leadership or directional structure of this enterprise, you were clearly not part of it.

33 Both of you claim that although you were promised payment for the sitting, neither of you had received any reward.

34 Whether either of you in fact received payment does not make a material difference. You both acted for monetary gain, that much is clear. I sentence you both on the basis that there was an expectation that you would be receiving payments one way or another from Mr Tuan. The financial gain was, it would seem, always going to be relatively modest. You were to be paid for your labour, not a share in the profit as such.

35 I turn to your personal and mitigating circumstances and to you, first, Mr Ton.

36 You have no prior criminal history. You are therefore entitled to rely on your good character. It was put to me by your counsel that you have no criminal record in Vietnam and you have never been in trouble with the authorities. I sentence you upon that basis.

37 Mr Ton, you were born in Nghe An Province, Vietnam on 14 January 1974. You are aged 43. You were 42 at the time of the offending. Your parents were both farmers, producing mainly rice. Your mother passed away in 2010 and your father in 2011. You have one sibling, an older sister, who resides in a rural area in Vietnam. You are married with two young daughters, aged ten and five years. Your wife and children live in Vinh City within the Nghe An Province in Vietnam.

38 When you first left school, you worked on the family farm but prior to coming to Australia on a Student Visa in 2013 (which expired in March 2016), you had been working for a taxi company where your role was washing and cleaning cars. That company went bankrupt in 2012 and as a result, you lost your job. You were unable to secure another job in Vietnam, which caused significant financial hardship for your family.

39 Your wife runs a very small business buying and selling products at the local markets and in the streets. Your family has survived financially on the money made through this enterprise and also upon support from the extended family.

40 It was your intention to obtain qualifications in Australia, which you hoped would enhance your employment prospects in Vietnam. Although your Visa expired on 15 March 2016, you remained in Australia trying to earn more money to take home to your family in Vietnam.

41 Whilst in Australia, you enrolled in, and completed, the following courses:

• Certificate III in ESL (Access) at the TK Melbourne College, which you commenced on 7 October 2013 and completed on 30 April 2014;

• Certificate IV in Business at the St. Peter Institute, which you commenced on 7 July 2014 and completed on 11 January 2015; and

• Diploma of Management at the St. Peter Institute, which you commenced on 23 February 2015 and completed on 9 August 2015.

42 Instructions and assessments for the above courses were in English. Despite this, you have instructed your counsel that your English is very limited. You further instruct that other Vietnamese students in the classes assisted you with the course work and assessments.

43 Whilst in Australia, you engaged in some casual work as a kitchenhand in a restaurant and as a farmhand on a strawberry farm.

44 It was whilst working on the strawberry farm that you came into contact with a person named "Tuan" who recruited you to look after the crop house.

45 You instructed that you have personally never used illicit drugs.

46 You further instructed you were offered $3,000 to $4,000 per month to look after the crop house daily for a period of two to three months. It was your intention to complete the crop sitting role then return to strawberry farm work if possible or return to Vietnam.

47 It is to be noted that Mr Nguyen, in his Record of Interview, claims that you recruited him to work at the crop house and instructed him on feeding, watering and harvesting the plants. Further, it is alleged you took his passport when he started working at the house. These matters do not form part of the factual basis alleged against you by the Prosecution and, accordingly, I put these allegations to one side when deciding upon your sentence.

48 You co-operated with police and made full admissions.

49 You pleaded guilty at the earliest possible opportunity, at committal mention, and the matter proceeded by way of a straight hand-up brief. Your early plea is evidence of remorse, acceptance of responsibility for your offending and it also carries a utilitarian benefit in saving the community the time and expense of protracted criminal proceedings.

50 I accept that custody to some extent will be more burdensome for you given your isolation from your family in Vietnam and your limited English skills. As I said earlier, your family resides in Vietnam. Your family members are not able to assist you. You associate with fellow Vietnamesespeaking prisoners only. I take this additional burden into account.

51 You have shown yourself to be capable of achieving qualifications, which were obtained between October 2013 and August 2015. Details of your education have not been provided but you have been a breadwinner for your family in the past and I will accept that you came to Australia with the view of enhancing your education for the purposes of obtaining better employment in Vietnam.

52 You are not psychiatrically unwell and I will accept the submission that you are not a drug user, and although not strictly a youthful offender, I will accept that you are likely to live an entirely normal and law-abiding life in Vietnam, as you did prior to coming to Australia, once you are ultimately released from prison. I accept that your prospects of rehabilitation appear to be relatively good.

53 Mr Nguyen, I now turn to your personal and mitigating circumstances

54 You have no prior criminal history. You are therefore entitled to rely on your good character. It was put to me by your counsel that you have no criminal record in Vietnam and you have never been in trouble with the authorities. I sentence you upon that basis.

55 Mr Nguyen, you were born in the rural district of Do Luong, Vietnam on 10 January 1995. You are aged 22. You were aged 21 at the time at the time of the offending.

56 Growing up in Vietnam, you lived with your parents and two older brothers, who were born in 1985 and 1990. Your father was a tailor who worked from home but he died in 2002 when you were aged seven. Thereafter, your mother worked incredibly hard in order to provide food and shelter for you and your siblings. Your older brother died in 2012 of a hereditary disease and your other brother is currently working in South Korea.

57 You completed Year 12 in 2013 and instructed that you obtained high grades. When you finished school, your mother organised for you to come to Australia as an international student and you instructed that she paid a "middleman" approximately $30,000 to $35,000 to organise "everything".

58 You entered Australia on a Higher Education Sector visa on 15 March 2014. You were aged 19 at the time. You were enrolled to study business administration at Ozford Institute of Higher Education in Lonsdale Street, Melbourne. Your visa was valid for four years until 15 March 2018.

59 On your arrival in Australia, you had to complete an English course to improve language skills but after a few months in Australia, you incurred financial problems in paying for your course fees, as well as accommodation and living expenses. You abandoned your education in order to work to support yourself. You instructed you also sent money back to your mother in Vietnam. You instructed you obtained work through the Vietnamese community in St Albans and through Facebook pages for local Vietnamese. At the relevant time, you were sharing a room at 8 View Street, St Albans.

60 You worked on a number of farms, picking asparagus, strawberries, tomatoes, cucumbers and other produce. The main farm you worked on was in Lilydale and you worked there for nearly two years. There were a lot of Vietnamese working at that premises.

61 During the 2016 strawberry picking season, you met and befriended your co-accused, Mr Ton, at the Lilydale farm.

62 By June 2016, the fruit picking season had finished and you instructed that Mr Ton asked you to come and help in the crop house, watering and cutting plants, in order to earn money.

63 You instructed that your co-accused, Mr Ton, took you to the crop house on 5 June 2016 and when you arrived there, everything was already set up in the house. You remained there until your arrest on 22 June 2016, a total of 17 days.

64 You co-operated with police and made full admissions of your involvement.

65 Like Mr Ton, you pleaded guilty at the earliest possible opportunity, at committal mention, and the matter proceeded by way of a straight hand-up brief. Similarly, I take the view that your early plea is evidence of remorse, acceptance of responsibility for your offending and it also carries a utilitarian benefit in saving the community the time and expense of protracted criminal proceedings.

66 I accept that custody to some extent will be more burdensome for you, given your isolation from your family in Vietnam and your limited English skills. Your family members are not able to visit you, given that they reside in Vietnam.

67 You spent your first four months on remand at the Metropolitan Remand Centre. During this time the restrictions which were put in place following the riots in June 2015 were still in effect. As a result of this you have been subject to a stricter and more onerous form of custody management. You instruct that you would usually spend 16 hours locked in your cell with four hours outside and four hours in unit, though occasionally you would be confined to your cell for 2 days. This was further compounded by the fact that there were few other Vietnamese prisoners in your unit with who you could converse.

68 You are still a young man at age 22. The youthful offender principles apply. As such, rehabilitation remains an important component of any sentence.

69 I accept your counsel's submission that your prospects of rehabilitation can be said to be good. Although you did not complete any of your studies whilst in Australia, I will accept that your limited English and the need to provide money back to Vietnam were factors involved in this situation.

70 You have shown in the past that you are capable of obtaining high grades to a Year 12 standard. Your intention upon release is to return to Vietnam to obtain a qualification and to support your mother, and you are still a young man.

71 In sentencing both of you, I must have regard to a range of different factors. I must give effect to the principles of deterrence, both general and specific. I must deter other people from behaving like you. I must deter you from repeating such behaviour, though because of my findings with respect to your respective prospects of rehabilitation, specific deterrence carries less weight here. I must express the community's denunciation of your conduct and promote your rehabilitation. I must also have regard to current sentencing practices for offences of the kind you have committed and I must balance your personal circumstances. I am also mindful of the principles of parity which concerns the relativities of your respective sentences.

74 On Charge 1, cultivate a commercial quantity of cannabis, you are convicted and sentenced to twenty-four (24) months' imprisonment.

75 I direct that you serve a minimum of twelve (12) months' imprisonment before becoming eligible for parole.

76 You have been in custody since the date of your arrest on 22 June 2016. You have spent 266 days in custody in relation to these matters, not including today.

77 Pursuant to s18 of the Sentencing Act 1991, I declare 266 days to be reckoned as the period of imprisonment already served under this sentence.

Section 6AAA

78 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a total effective sentence of three years' imprisonment with a nonparole period of 18 months.

81 On Charge 1, cultivate a commercial quantity of cannabis, you are convicted and sentenced to seventeen (17) months' imprisonment.

82 I direct that you serve a minimum of nine (9) months' imprisonment before becoming eligible for parole.

83 You have also been in custody since the date of your arrest on 22 June 2016. You have spent 266 days in custody in relation to these matters, not including today.

84 Pursuant to s18 of the Sentencing Act 1991, I declare 266 days to be reckoned as the period of imprisonment already served under this sentence.

Section 6AAA

85 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a total effective sentence of 25 months' imprisonment with a nonparole period of 15 months.

87 The Prosecution have made application for a disposal order pursuant to s77 of the Confiscation Act in this matter with respect to certain property. The order is not opposed by either you, Mr Ton, or you, Mr Nguyen. I will make the order in the terms sought.

88 The Prosecution have also made application for a forensic sample pursuant to s464ZF(2) of the Crimes Act from both you, Mr Ton, and you, Mr Nguyen. This was not opposed by either of you. I make the order in the terms sought, based upon the seriousness of your offending. It will be an intimate sample and I must advise both of you that the authorities may use reasonable force in order to obtain the sample.