Nguyen v The Queen [2010] VSCA 127

Nguyen v The Queen [2010] VSCA 127 - VSCA 2010 case summary — Zoe

[36]

[15] I heard evidence from your treating psychiatrist Dr Rikas on 28 August 2008. Dr Rikas expressed the opinion that you were suffering from major depression of moderate severity. Your depression was mainly in response to this court case. Dr Rikas had been encouraging you to actually face your criminal trial and face the consequences of your actions. Dr Rikas was of the opinion that your depression might worsen if you have to go to prison and engage with a new doctor. I accept these opinions of Dr Rikas.

[16] You were assessed for medico legal purposes by Dr Adam Deacon, psychiatrist, on 5 December 2008. Dr Deacon gave evidence on your behalf. He was of the opinion that you were suffering from post-traumatic stress disorder and you were moderately severely depressed. Dr Deacon stated that there was no relationship whatsoever between your offending and your psychiatric condition. Thus, your psychiatric condition has no bearing upon your moral culpability. Dr Deacon was of the opinion that you remain a chronic suicide risk.

[17] I accept Dr Deacon's opinion that as a result of you psychiatric condition you are more vulnerable that the average prisoner. I am satisfied you have a significant psychiatric condition and I have applied the well-known principles set out in R v Verdins.[15] I accept there is a serious risk imprisonment will have a significant adverse effect upon your mental state. I accept that for you imprisonment will be a greater burden that for a person in normal health. This is not only because of your psychiatric condition, but also because of the provision of information by you to police concerning others allegedly involved in the cultivation.

[18] I assess your prospects of rehabilitation as being good.

...

[25] As well as the matters to which I have referred I must also take into account the need for general deterrence. I have significantly moderated the weight given to both specific deterrence and general deterrence in respect of you Hung Nguyen having regard to your personal circumstances, background and psychiatric condition. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. Superior courts have consistently emphasised the serious nature of this type of offending. Drugs of dependence have a deleterious effect upon individuals and society.[16]

[40]

[29] Where, as here, the offending conduct is the cause of the mental condition, the considerations separately described by Lush J and Allen J do, to some extent, fall away. In the words of Allen J, human sympathy would not necessarily say 'well, you would not expect him to get the same sentence as someone else'. That is because the offender is the author of his own predicament and may be viewed as an appropriate medium for making an example to others. The community would not expect the offender to be treated more leniently because he has had an adverse reaction to the discovery of his crimes and his fear of imprisonment. In such cases, the circumstances of the offender may be seen as similar to an offender who suffers from a pathological gambling addiction, or an addiction to drugs or alcohol, and who in the eyes of the law has contributed to some extent to their condition, so that on that account deterrence should not be reduced.

[30] Propositions 3 and 4 in Verdins must therefore be understood as subject to further qualification. In addition to the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, the aetiology of the mental condition may also be relevant in determining whether deterrence should be moderated. Where the mental condition arises as a reaction to the discovery of the offender's crimes or to the prospect of incarceration, little or no moderation of general deterrence should be allowed in the instinctive synthesis. This is such a case. The age of the offender and the nature and severity of the mental condition will determine whether there should be any moderation in specific deterrence.

[31] As to proposition 5, where it is concluded that the mental condition will make the serving of a term of imprisonment more onerous for that offender, it should generally receive its full measure as a mitigating factor in the instinctive synthesis, even though the condition arises as a consequence of the offending conduct. While each case is different, we do not consider that it will be appropriate in most cases to reduce the weight to be given to that mitigating circumstance because the appellant's offending conduct brought about his mental state.[20]

[58]

[17] There was a submission made on behalf of the Director that this was an appropriate case to increase the sentence by taking account of the increased prevalence of cannabis grown by hydroponics, and also the impact of the availability of such cannabis on society. Attention was drawn to statistical data submitted by the prosecutor on the plea to demonstrate the increase in that prevalence. The data seemed to be, by way of calendar years: 2001-17 cases; 2002-30 cases; 2003-56 cases; and for the year 2004 up until July, that is, half of the calendar year - 78 cases. It seems that there was no other information before the sentencing judge.

[18] In the course of the submissions to this Court it was urged that the Court take account of the increased prevalence and, on the basis of that factor together with the other submissions, provide the basis for the increase in sentence to be imposed on the respondent. This was a matter that in my view was not properly put to the sentencing judge, and indeed the data that was put before her Honour was very limited. It is not apparent, for example, as to whether the increase in cases can to some extent be explained by way of increased police surveillance or other matters in the course of police investigation.

[19] Of course, it might be that an increase in prevalence of a particular crime does provide a foundation or basis upon which to urge a court to increase the penalties that have been previously imposed. Indeed, such has occurred with respect to the offence of culpable driving. However, the offences in this case are distinguishable from the culpable driving offence because culpable driving of itself is a specific event that does not come to light in the community and to the attention of the police merely by way of increased police attention. It seems to me that it would be desirable in a case such as this, if the Director wishes to urge an increase in penalties, for a prosecutor at first instance to put material before the court, properly set out, explaining the foundation for the submission that there has been an increase, and as to why the court should adopt a different approach and increase the penalty above and beyond that previously imposed.

[20] Save for these remarks, as I indicated, I agree with the reasons and the disposition proposed by Buchanan JA.[34]

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