R v Nguyen [2018] ACTSC 130

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10

Rama v The Queen [2006] ACTCA 25

1. On 14 March 2018, the offender entered a plea of guilty to an offence of cultivating a commercial quantity of a controlled plant. This is an offence contrary to s 616(3) of the Criminal Code 2002 (ACT). It carries a maximum penalty of 25 years' imprisonment and/or a fine of $375,000.

2. The guilty plea was not entered at the earliest opportunity. It followed a period during which the offender maintained his innocence. After negotiations between the parties, the offender pleaded guilty to one count in an indictment dated 13 March 2018. Notwithstanding his initial reluctance to admit his guilt, the offender is entitled to a discount for the utilitarian value of his plea, which I assess at 20%.

3. The offender has also asked that three additional offences of using a false document (CC 2015/7913; CC 2015/7914; CC 2015/7915) be taken into account. In each case, the false document was a New South Wales driver's licence.

4. The offender was born in Vietnam in 1977. He is currently 40 years' old. He went to Sweden in 1993 to join his father. He came to Australia from Sweden in 2014. His ex-wife and 13 year old son remain in Sweden. I assume that the offender is a Swedish national and is likely to be deported back to that country at the conclusion of his sentence. He said in evidence that he anticipates a reconciliation with his wife.

5. Although his description of events following his arrival in Australia has an air of invention about it, there was no direct evidence to contradict his story and for present purposes I do not treat it as untrue.

6. The offender did not receive much of an education. He worked as a factory hand in Sweden.

7. The offender reported experiencing a medical condition as a child but suffers no current issues with this condition. He has had knee surgery but continues to suffer from pain and is likely to need a knee replacement sometime in the future. I note he moved with some difficulty in travelling to and from the witness box.

8. The offender does not have a criminal record in Australia. ACT Corrective Services have reported that they are not aware of the offender having any criminal record in Sweden or any other country. The offender's otherwise good character should be taken into account.

9. The offender denies consuming alcohol or using drugs. He was, however, content to make drugs available to other persons. According to the author of the Pre-Sentence Report, the offender:

...stated he agreed with the Amended Case Statement but minimised his offending behaviour and did not appear to take any responsibility. He claimed he was aware his actions were illegal but felt he had no choice but to participate when given the opportunity as he had no money left.

10. I had the same impression from his evidence in the witness box.

11. The details of the offending conduct are set out in the Statement of Facts (Ex 1). In summary, the offender used his false driver's licence to enter into a lease at three separate properties. Each property was modified and converted into a cannabis grow house, containing sophisticated hydroponic equipment. Photographs of the setup can be found in Exhibit 1.

12. The properties were modified to create new walls and windows. The operation was obviously quite sophisticated.

13. It appears that the offender's role in the operation was to use the driver's licence to visit potential properties and sign the necessary rental agreement forms. On instruction, he also attended properties and assisted in the cultivation of the plants. The offender was obviously involved in the cultivation exercise, although more as a paid follower than as a leader.

14. There was some dispute as to the number of plants with which the offender was involved. There was direct evidence linking him to 470 plants but the Statement of Facts refers to 840 plants. I think the correct approach is to treat him as having been concerned with the cultivation of 840 plants.

15. The offender has been in custody since 17 March 2017.

16. The sentencing process involves a consideration of the principles and purposes of sentencing, as set out in sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is also important, because it provides that a person should not be sent to prison unless there is no other alternative.

17. There is no alternative to a period of fulltime imprisonment in this case. While this offender was only a cog in the operation, he was nevertheless an important and active participant. His offending should be regarded as being of approaching medium objective severity.

18. As noted above, the offence carries a maximum penalty of 25 years' imprisonment and/or a fine of $375,000. The maximum penalty indicates the seriousness with which society treats this type of offence. Supplying drugs is not only illegal but, perhaps even more importantly, is likely to lead to the addiction of users and all the mental and social problems that flourish from addiction. The length of the maximum penalty also indicates, in a proportionate sense, the length of the sentence that should be imposed on this offender.

19. I have had regard to the authorities handed up by the Crown. Rama v The Queen [2006] ACTCA 25 contains a very useful analysis of a number of broadly comparable sentences.

20. I think the appropriate sentence is 2 years and 6 months' imprisonment. Reducing this by 20% for the plea of guilty produces a sentence of 2 years' imprisonment. In reaching this sentence, I have taken into account the three additional charges of using a false document. I think the Non-Parole Period should be 18 months.

(a) In respect of the offence of cultivating a commercial quantity of a controlled plant (XO 2018/31286), the offender is sentenced to 2 years' imprisonment commencing on 17 March 2017 and ending on 16 March 2019.

(b) I set a Non-Parole Period of 18 months commencing on 17 March 2017 and ending on 16 September 2018.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.