R v Nguyen

Sequence 7: Knowingly take part in cultivation of cannabis for commercial purpose

1. Police conducted fingerprint examinations and seized other items for DNA analysis. The analysis linked the co-accused Vu and Le to the premises. The offender's DNA and Fingerprints were not identified or found within the premises.
2. Subsequent investigation identified that the offender was responsible for the hiring of a rental truck used by Vu and Le. The offender also paid for this truck by using a credit card linked to his bank account. The rental truck was linked to 18 Melbourne Road Riverstone via an installed tracking system.
3. Police have also identified that during this timeframe, Ba Nguyen has been in mobile phone contact with the co-accused Vu and Le.
4. Police seized 4 mobile phones that belonged to the offender. The offender confirmed ownership of all the phones in his ERISP.
5. On Wednesday 12 August 2020, the offender was arrested following an execution of a search warrant at his residence in Canley Vale. He was conveyed to Fairfield Police Station and was explained his rights as per Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 with the aid of a Vietnamese interpreter.

ERISP

1. The offender participated in an electronically recorded interview during which he stated that he knew co-accused Le and Vu as they had resided together at Riverstone. He stated that he ran his own gardening business and that hiring of rental trucks was for this business and rubbish removal; and that he moved to Riverstone to be closer to his client's houses. He informed Police that he had lent a rental truck to co-accused Le and Vu.
2. Ba Nguyen stated that he had only been to 18 Melbourne Road, Riverstone on two occasions at the request of co-accused Vu to cut some grass. Ba Nguyen stated that he had never been inside the premise.
3. Ba Nguyen is the registered owner of a Hiace van, CX-41-DM, that was parked on the street outside his house. Upon search in the rear of this van, police smelt the strong scent of cannabis emitting from the vehicle and cannabis residue on the floor of the van. Police also observed the rear air vents to be taped over to prevent the smell of cannabis exiting the van. Police also observed the rear and side windows to be heavily tinted which prevented the windows from being looked through.

Form 1 offence; Dealing with property suspected of being proceeds of crime

1. During the search of the offender's home, police located $14,760 dollars of Australian Currency in various laces within Ba Nguyen's bedroom. Ba Nguyen claimed that the money was from his gardening business however stated that he only does one job every 2-3 days and each job he would charge around $200 to $450 depending on if rubbish needed to be removed. The amount the offender said he had earnt from gardening did not reasonably explain the large amount of cash found in the premises.
2. The funds are suspected of being proceeds of crime.

Culpability

1. In different forms, the offender explained the circumstances of his offending from his perspective. The first, and most direct, was a (translated) typed document dated 5 November 2021 addressed to the Court. The offender said that in February 2020 he returned to Australia from Vietnam amid the outbreak of COVID-19. He said the outbreak caused him financial hardship. He said that he unwisely decided to lend his car to his friends to use in the cultivation of illegal cannabis plants.
2. The offender explained to the Fairfield Community Corrections Officer, who prepared a sentencing assessment report dated 4 November 2021, that he had lost his job and was living with co-offenders (Nhat Xuan Le, Canh Huu Vu, Vo Van Nguyen and Hoang Nguyen). He asserted that he was pressured by the co-offenders to commit the offence. He also stated that he felt pressured because of his need to financially assist his family in Vietnam. Importantly, he admitted that whilst he was aware about the consequences of his behaviour, the financial advantage was more important to him. In other words, he made a choice. Nevertheless, the offender also explained that at the time of the offending, he had recently suffered a significant deterioration in his mental state. Since the offending, he had been assessed as suffering from depression.
3. In support of these assertions, the offender relies upon the report of his psychologist, Ms Fleur Taylor, who assessed him in August 2021 and prepared a report dated 13 September 2021. He told her that with the onset of the Pandemic in 2020, he was unable to meet daily expenses, including rental payments and became very concerned as to how he could support his (then) pregnant wife. He described symptoms consistent with depression: low mood, disturbed sleep, poor concentration and a sense of hopelessness. On one occasion, he said he experienced suicidal ideation, although that followed his arrest for the subject offending. Curiously, the offender confided to Ms Taylor that although he had mentioned his mental health to his general practitioner, he had not actively sought any counselling.
4. The offender told Ms Taylor that in the lead up to the offending behaviour, he was experiencing financial strain. This, he believed, impacted upon his mental health.
5. Given the absence of prior criminal history and the offender's description to her about his mental state in the lead up to the offending, Ms Fleur opined that his psychological state increased his vulnerability at the time of the offending. Further, the financial strain caused by the loss of work because of the Pandemic contributed to symptoms with depression. She believed that the offender's psychological deterioration not only contributed to the poor decision making contributing to his decision to engage in the offending but also what she understood to be the anti-social 'coercion' of the peers who he mixed with. That vulnerability was also 'potentially' exacerbated by the head injury he had suffered when a very young boy.
6. On the matter of culpability, the Crown submitted that the presence of the money the subject of the Form 1 charge established that the offending was financially motivated and that the offender stood to, and did profit from his offending.
7. I find that his culpability was partially diminished as a combination of financial pressures (rather than greed) and anxiety associated with a commitment to financially supporting family overseas his pregnant partner and his future employment prospects, overlaid with sense of social isolation; all of which caused depression. Contrary to the Crown's submission, I am unable to accept that it could be said that the offender actually profited from his involvement. This gives rise to a De Simoni concern when the offence on the Form 1 was the comparatively minor offence of possession of proceeds only reasonably suspected to be the result of offending.
8. I accept that this condition contributed to his mixing with what his psychologist referred to as 'anti-social' peers and his descent into the offending. To a degree, albeit a relatively small degree, this reduces the seriousness of his offending and hence the weight ordinarily accorded to general and specific deterrence.

Submissions

1. The offender submitted that the offence committed was at the lowest end of the range of offending for offences of this kind. There could be no suggestion that he was a principal of the enterprise. His involvement was limited to maintaining the exterior of the property on two occasions to cut the grass (for which he got paid) and allowing the co-offenders to use a rental truck. The number (50) of plants was more than a small quantity but less than a commercial quantity. There was no evidence on a range of matters typically bearing on the seriousness of the offending, such as: the maturity of the plants; their condition; the street value of the crop; the sophistication of the crop site; indications (such as fingerprints or DNA) that the offender actually went into the premises; any horticultural or other skills of the offender. Further, although this was said to be only a minor point, there was no evidence that the cannabis seized was disseminated into the community.
2. As a distinct point of difference, the offender submitted that the Agreed fact 17 was irrelevant. This vehicle was not linked to cultivation at the Riverstone property; which site was shut down by the police in May 2020. The offender was in possession of the vehicle in August 2020. The Crown submitted that this agreed fact established that the offender had used his own truck to facilitate movement of the cannabis grown. In this way, it enhanced his involvement.
3. On this issue, whilst I accept, as a matter of principle that transporting the cannabis within the truck would fall within the generally broad concept of knowingly part in cultivation, I am unable to find, beyond reasonable doubt that the truck identified in Agreed Fact 17 transported the cannabis, having regard to the lack of close temporal proximity between the time when the affected premises were shut down and the time when the vehicle was detected.
4. The Crown submitted the evidence indicated that the hydroponic set up was sophisticated. The Crown submitted that the offender hired a rental truck, used by the co-offenders (Vu and Le) to transport the cannabis and further that he was in contact with them. The offender was aware that the cannabis was being cultivated for a commercial purpose.
5. I accept that the offender's role in the enterprise was limited. He was not proven to be a principal. I accept the offender's submission that his role could be characterised as falling even below that of a 'crop-sitter'. His motivation was financial, but I accept that it was need rather than greed. Whilst he was aware that what he was doing was wrong, I accept that his culpability was reduced by the combination of a reduction in income caused by the Pandemic and what I consider to be the materialisation, if not exacerbation, of a level of psychological fragility (I do not find persuasive evidence of mental impairment arising from any knock to his head when he was a 6 year old). Like so many of those in his community, there was a looming sense of financial stress, not only in meeting living expenses, but also by continuing to provide financial assistance for family back in Vietnam. In my opinion, on the evidence before the Court put the offending fell towards the lowest end of the range of offending.

The offence on the Form 1

1. I take into account this offence in the dual sense conventionally understood: that generally speaking, it augments the considerations of specific deterrence and retribution that would ordinarily arise on sentencing for the principal offence. However, the offender's culpability in relation to that offending is no more nor less than what it is on the principal offence in the circumstances alluded to earlier in these remarks. In other words, I agree with the offender's submission that the elevation of these particular sentencing considerations is not particularly substantial in the circumstances.

Age and background

1. The offender was nearing the age of 31 at the time of his offending. He is a Vietnamese national.
2. Some of his background is set out in a sentencing assessment report. But most of it is set out in Ms Taylor's report. Ms Taylor is a well-credentialed forensic psychologist. In preparing her report, she had regard to the signed agreed facts, the facts contained in the Court attendance notice and a letter of instruction supplied to her. She conducted a psychological assessment, by 'virtual' means of the offender on 20 August 2021. This was during the Lockdown affecting Sydney.
3. The offender grew up in Vietnam and had a happy childhood. His parents were in a stable relationship and he had two siblings; he being the youngest. Ms Taylor opined that he had a strong sense of familial connectedness. He did however suffer a head injury from a very early age (6) which has had some enduring impact, in the form of headaches and difficulties in his memory and with concentration. Although she was not qualified to conduct a neuropsychological assessment, the offender, at least, believed that this left him vulnerable. As indicated earlier, I do not place weight on this subjective perception.
4. He managed, however, to complete the equivalent of high school education; albeit with below average grades. He was still able to enter into a TAFE course; and completed a Diploma in IT. He moved to Australia on a Student's visa in 2013. Although he commenced some study in the IT field, the language barrier and course load proved too difficult for him to overcome and he did not complete the study. He worked in various sectors: hospitality, retail and factory work and, more recently, as a handyman.
5. The offender commenced his own business as a handyman when the Pandemic struck. This severely limited his work as handyman (and also as a cleaner).
6. The offender placed into evidence a PAYG payment summary recording his receipt of gross taxable income for the financial year ended 30 June 2021 in the sum of $39,520.
7. He has been in a relationship with his partner for around 4 years. At the time Ms Taylor prepared her report, the partner was pregnant. She has since given birth. Aside from other sources of stress, apparently, the partner's visa status is uncertain; which has added to the offender's stress. The offender says he currently resides in this country under permanent residency.
8. He resides with his partner and a newborn child (born on 15 September 2021). The rest of his family live in Vietnam. He told Ms Taylor that he had few friends in this country. She believed this made him vulnerable to manipulation of anti-social peers once he became financially vulnerable.
9. He has had no prior history of alcoholic addiction or illicit substance abuse.

Antecedents

1. This is the offender's first offence. He is entitled to a degree of leniency on that account.

Prior good character

1. I take into account written references from his partner and cousin. His partner indicated that the offender was very supportive of her. Both emphasised that the offender had changed much since his offending. Of course, they cannot be treated as being independent or being proffered from an unbiased perspective. To be fair, however, the offender was reported as generally being socially isolated in Australia.
2. Evidence of no prior convictions is, in its own way, emblematic of good character, but this additional evidence is of little weight. For offences of the subject kind, the weight given to evidence of good character is usually of limited weight since it is very often persons who have hitherto led an unblemished life who are selected to perform the sort of role in the enterprise performed by this offender.

Plea

1. The offender is entitled to a 25% discount on his guilty plea.

Contrition and remorse

1. In his letter to the Court, the offender apologised for his offending. He accepted that what he had done was very serious and that he did not have excuses for his offending.
2. Ms Taylor indicated that the offender had expressed remorse to her and sadness for being caught up with 'anti-social' individuals.
3. The Fairfield Community Corrections Officer opined that the offender had demonstrated significant insight into how his offending impacted himself and the general community and observed that he was genuinely remorseful.
4. I accept that he is fully remorseful for his offending conduct.

Prospects of rehabilitation

1. I take into account the aforementioned expressions of regret and remorse and his reported resolution to live a law-abiding lifestyle moving forward. It is evident that he is very conscious of his responsibilities to his partner and their baby boy and his intention to work hard, be a good father and a good citizen.
2. In his typed letter, the offender spoke of his difficult time in incarceration. This, he said, caused him to reflect on how he had destroyed the trust and expectation of his family, relatives, and friends and recognised, on a larger scale, how his conduct had boosted crime, thereby affecting the community, security and health in Australia.
3. The Fairfield Community Corrections Officer identified him as being at a Low risk of re-offending, with reference to the LSI-R. He also identified him as being suitable to undertake community services work. Indeed, the Officer found that no other conditions, other than a supervised condition, was required to implement a supervision plan. It is also significant that the Community Corrections Officer alluded to his willingness and ability to receive intervention.
4. The offender remarked to Ms Taylor that he found the custodial environment he entered into after his arrest to be terrifying. Ms Taylor opined that should he obtain counselling to support his mental health and obtain gainful employment, his risk of recidivism may be moderated.
5. I observe that since his arrest, the offender has used his time productively. In evidence at the sentencing hearing was material demonstrating his participation in on-line courses regarding drugs and, specifically, marijuana. A reference was given by a financial controller of the Salvation Army attesting to the offender's participation in a Financial Literacy and Education Program for an hour on 15 November 2021. A reference of the same date was also given by the owner of a building and construction company, which referred to the offender's working full-time as an assistant to the business 6 days a week. The offender was spoken of in positive terms as a worker.
6. The offender's Counsel also emphasised that the offender has been on conditional bail for a period of over one year and two months; during which period he has re-established himself in the community and has been of good behaviour.
7. I find that in view of his prior good character, his genuine remorse and acceptance of responsibility for his offending, having the support of his partner, with what is his apparently good work ethic, the offender has very good prospects of rehabilitation.

PARITY

1. As noted at the outset of these remarks, the offender is one of four other co-offenders. Three of those have already been sentenced. The other remains to be sentenced this December. The Crown alluded to the parity principle, as discussed by the High Court in Green v The Queen (2011) 244 CLR 462.
2. The Crown placed before the Court sentencing remarks for the co-offenders, Le and Vu.
3. In respect to the co-offender Le, it may be observed that he pleaded guilty to a more serious offence (cultivating a large commercial quantity of cannabis plants, namely 330 plants). His involvement comprised watering and providing nutrients to the cannabis plants and touching the lights. He knew that there were 330 plants. Le was younger than this offender at the time of offending and had a not dissimilar employment history. Like the offender, he had no prior criminal history. But the background to Mr Le's offending was different: he had become indebted to a man and his offending was undertaken with a view to repayment of that debt. Unlike this offender, he had no mental health issues. Like the offender, he received a 25% discount on his plea and had excellent prospects of rehabilitation; the latter finding influenced by the circumstance that, as with this offender, he has found the experience of incarceration to be very onerous. This co-offender was sentenced to a term of 3 years' imprisonment, with a non-parole period of 1 year and six months.
4. In respect to the co-offender Vu, he was also charged with a different offence to this offender (being knowingly taking part in cultivating a large commercial quantity of drugs). Vu was a labourer who provided nutrients to the cannabis plants. He knew of about 200 plants. Unlike the co-offender Le and this offender, Vu's plea was entered after committal, so he only received a 10% discount. His subjective case was not as good as the offender's (or the co-offender Le's): there was no observable remorse and the sentencing judge was not satisfied he would not re-offend. Vu received a head sentence of3 years and 1 month and a non-parole period of 1 year and 7 months.
5. The Crown submitted that there were such substantial differences between the roles played by the offenders that the principle of parity had less significance; but the Crown did acknowledge the substantially lesser role played by the offender and given the similar subjective matters, a less harsh sentence would be warranted.
6. I consider that comparisons favour the offender more than the Crown was prepared to accept. The closer comparison is with the co-offender Le than the co-offender Vu. He pleaded to a less serious offence than these other co-offenders (already sentenced), had an apparently lesser awareness of the number of plants in the operation all were involved in. He had a psychological deterioration prior to the offending which meant that it was not just financial desperation alone which explained his offending and, in this way, his culpability was relatively diminished, in comparison with the co-offender.

INSTINCTIVE SYNTHESIS

1. I take into account the maximum penalty. Plainly the offending is very serious in its nature. As has been remarked in many cases of this kind, persons who take the risk to involve themselves in drug operations of this kind must accept condign sentences once detected. The reality, seen all too often in cases of this kind, is that without small time participants like this offender, sophisticated drug enterprises of the kind in evidence here could not be sustained. No matter how strong an offender's subjective case is - and this offender's subjective case is strong - general deterrence, denunciation and making the offender account for wrongdoing are powerful factors. Nevertheless, for reasons earlier remarked upon, the considerations of general deterrence, and more especially, specific deterrence are moderated in the case of this offender; not only because of his psychological condition which partly mitigates the seriousness of his offending, but also the demonstrable insight the offender has evinced since the offending. Specific deterrence has also been partially satisfied by the onerous experience that the offender has had from the relatively brief period he has had in custody. In saying that, I acknowledge that specific deterrence and retribution are, in principle, elevated because of the Form 1 but the offender's culpability in relation to that offending is no more or less than what it is on the principal offence. I have noted that he has very good prospects of rehabilitation and, with his expressed remorse, the important consideration of protecting the community is also moderated.
2. On balance, however, I consider that the nature of the offending is such that the s 5 threshold has been crossed. I note that the offender's Counsel concedes that this is so.
3. I note that the offender has been in custody for 20 days.
4. This brings into consideration the question raised on the offender's behalf, whether a full-time custodial sentence is more appropriate than a community based option and in particular an Intensive Corrections Order. As the authorities (including without limitation Parente v R [2017] NSWCCA 284 at [114]) indicate, having found that the s 5 threshold has been crossed, before the Court imposes an ICO, it must determine the appropriate length of the term of imprisonment (irrespective of how it is served) before finally considering alternatives to full time imprisonment.
5. As to the first of those steps, having considered the range of sentencing considerations in s 5, I am satisfied that the length of the term should be two years, taking into account the discount on the plea and the offence on the Form 1.
6. I now address the alternatives to full-time incarceration. In this regard, community safety is the paramount consideration (s 66(1) of the CSP Act) and the Court must consider whether serving the sentence by way of full-time offending is more likely to address his risk of re-offending.
7. As to the former question, it has been recognised that community safety it not just achieved by full-time detention. To the contrary, it is linked with considerations of rehabilitation, which is more likely to occur with supervision and access to programs in the community: R v Pullen [2018] NSWCCA 264 at [84]. I take into account the offender's evidence, not challenged by the Crown, regarding the further deterioration of his mental state during the period of full-time incarceration he has already endured. I also take into account his willingness, perhaps fairly described as belated willingness, to seek help by way of counselling to aid in his rehabilitation and his willingness to work. I have referred to his remorse and insight into his offending. I accept his Counsel's submission that the period since he received bail shows a level of effective re-integration into the community and he now willingly accepts responsibility that comes with being a father to a young child and having a supportive partner. I find that safety to the community is not likely to endangered by his serving his term of imprisonment by means other than full-time detention.
8. As to the latter question, I am strongly inclined to think that his risk of re-offending is preferably addressed outside the full-time custodial setting. I consider it likely that his rehabilitation would be set back by full-time detention, set against the non-custodial alternative. I accept the offender's submission that general deterrence is still served by the sentence of imprisonment but it is also of importance that the rehabilitation he has achieved so far not be negated.
9. I have already taken s 3A considerations into account when imposing the penalty of a term of imprisonment, but for the purposes of s 66(3), on balance, those considerations do not militate against the conclusion I have reached.
10. This might give rise to the problem adverted to by the Court of Criminal Appeal in Mandranis v R [2021] NSWCCA 97 where the offender has served a period of custody. In that case, Simpson AJA (Garling J and N Adams J agreeing) found (at [61]) that it would be expedient in that circumstance to adjust the term (in this case 2 years): "… by the deduction of a period equivalent to the term of pre-sentence custody, so that the ICO commences on the day it is made (in compliance with s 71) and is co-extensive with the term of imprisonment (as required by s 70). The sentence actually recorded and imposed would be less (by the length of the pre-sentence custody) than the sentence found to be appropriate to meet the purpose of sentencing"
11. In short, there is to be deducted from the period of 2 years, the period of 20 days.
12. I have noted that a Community Corrections officer has assessed the offender as suitable to undertake community services work. This fulfils the requirement in s 17D of the CSP Act.

SENTENCE

1. Mr Nguyen, please stand,
2. You are convicted on the offence H234975 Seq 7.
3. You are sentenced to a term of imprisonment of 1 year 11 months and 11 days ending 29 October 2023.
4. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence is to be served by way of intensive correction in the community.
5. This is subject to standard conditions: 1. you must not commit any offence; 2. you must submit to supervision by a community corrections officer.
6. With reference to cl 187(1)(c)(ii) of the Crimes (Administration of Sentences) Regulation 2014, it will be desirable if the community corrections officer be cognisant of Ms Fleur's report about the desirability of you attending counselling. I direct that Ms Fleur's report of 13 September 2021 be brought to the attention of the Community Corrections Officer of the Fairfield Community Corrections Office.
7. This form of serving the sentence is also subject to the additional condition that you be subject to a community services work condition of 240 hours, subject to the availability of work as affected by any COVID-19 restrictions.
8. You should understand your need to comply with these standard conditions and the additional condition. If you fail to comply with them, you are liable to serve the balance of your term of imprisonment in full-time detention.
9. You are to telephone the Fairfield Community Corrections Office within 7 days of these orders.
10. By consent, the Court orders pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989 (NSW) that cash in the sum of $16,000 found at Canley Vale on 12 August 2020 be forfeited to the State.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2021