199 CLR 270166 ALR 330
R v Qutami [2001] NSWCCA 353
Judgment (2 paragraphs)
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EX TEMPORE REVISED JUDGMENT
Van Nieu Nguyen appears before this Court following his entering of a plea of guilty to one offence contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. That section creates an offence of knowingly taking part in the cultivation of more than a large commercial quantity of cannabis. As a consequence it carries a maximum penalty of 20 years imprisonment and there is a standard non-parole period prescribed by Parliament of 10 years.
Mr Nguyen entered his plea of guilty in the Local Court and it is agreed that he is entitled to the full 25% discount applicable to the early entry of that plea.
The facts are set out in an Agreed Statement of Facts which I propose to paraphrase comparatively succinctly. The aptly named Strike Force Grassy was an ongoing investigation carried out by a particular division of the New South Wales Police. It was focused on the use of premises for what is described as the enhanced indoor cultivation of cannabis by means of hydroponics.
In July 2022 investigators became aware of premises at 15 Greenbank Street, Hurstville in which it was suspected cannabis plants were being cultivated. It had the customary indicia of a level of disguise as to what was going on, or concealment as to what was going on inside the premises and the customary bypassing of electricity for the ongoing supply of that necessary assistance for the lighting and heating in the house where the hydroponics were being pursued.
Police made observations on a number of days in July and August 2022 and observed a vehicle turned up on a number of different occasions, and a person go from that vehicle into the premises. It is not suggested that person was the offender and indeed it is agreed in the Facts that there is no evidence that that person was the offender.
R v Nguyen [2024] NSWDC 499 | Case summary | Zoe
Eventually on 11 October the offender was observed in the vicinity of the premises. He was followed in the vehicle that he drove away from the premises at Hurstville. He was stopped by police and in due course he acknowledged that he had keys for the house at 15 Greenbank Street. Police in due course obtained a search warrant and used the keys which had been seized from the offender and entered the property. They observed hydroponic setups involving the use of pots, irrigation systems, lighting and lamp shades.
There were five rooms in the property, one of which was set up for accommodation and the other four rooms were set up for cultivation of the cannabis. There was an irrigation system which contained a pump and water and tubes running to numerous black pots which contained water and some of the plants had what appeared to be drops of water on them and the soil had dark patches.
Police felt several of the pots which appeared to be moist. While it is possible that in the time he had been observed to be inside the premises the offender had turned on the pump for watering purposes, it is difficult to be certain. To the extent that it is an aggravating feature that the Crown invites consideration of, the Court would need to be satisfied beyond reasonable doubt in accordance with the observations of the High Court in R v Olbrich [1999] HCA 54; 199 CLR 270; 166 ALR 330.
At all events it is pretty clear, and the offender in due course admits through discussions and consultation with, firstly, a psychologist and secondly, the author of a Sentencing Assessment Report that he, in effect, had been employed in generic description, as "a labourer", to go to the premises and carry out some menial tasks including cleaning. That may well have included turning on the watering system from time to time.
Whether or not that was his task or was the task of the person who was living at the premises, it is difficult to come to any firm conclusion.
The objective seriousness of the type of offence is, of course, reflected in the very substantial maximum penalty prescribed by Parliament but as Mr Steward correctly points out and reminds the Court, the different roles and different functions giving rise to cultivation of substantial quantities of cannabis range from the menial, to the planning and the setup and organisation, the funding and the potential to obtain profits and other different types of roles, distinguishing principals with persons less than that category.
The Crown acknowledges, in the written submissions from Mr Kato, solicitor from the Director's office, quite fairly that this falls to the lower end of objective seriousness when one views the particular role carried out by Mr Nguyen.
It is proper to note, of course, that the maximum penalty is elevated by virtue of the structured fashion of penalties for drug offences which increase depending upon the quantity of the drug or in the case of cannabis, the numbers of plants. However, 250‑odd plants falls to the lower end of large commercial quantity which cuts in at 200 plants and of course there is abundant authority in this Court and in the Court of Criminal Appeal that the function and role of an offender is a more influential and important and significant factor in assessing the moral culpability of an individual offender rather than the particular quantity of the number of plants in a particular instance. That point is underscored by the statement in the Agreed Facts that the offender, whilst he obviously would have seen that there were lots of plants in the premises, was unaware of the precise number.
His subjective criteria have been put before the Court in written documents. The Court is fully aware of the reservation that must attend such material, both in the form of letters of apology and through accounts which might be particularly on many occasions mitigatory, which are advanced through pre‑sentence reports or sentencing assessment reports and psychological reports.
The superior Courts in this State, since R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 and cases thereafter, have consistently reminded this Court, and indeed first instance judges in the Supreme Court itself, of the need to exercise a degree of reservation in such circumstances.
I am aware of the trenchant criticism by Bellew J in Lai v R [2021] NSWCCA 217 and his Honour's deprecation of the practice of the Court receiving information by such means. However, with the greatest of respect, that is not a trenchant criticism to which I subscribe.
The work of this Court may well come to a far greater level of slowness of progress were the Courts to insist on sworn evidence from every offender who wanted to put matters of mitigation before the Court.
That having been said I acknowledge the reserve which must attend the receipt of mitigatory accounts which remain untested.
However, in the present matter, whilst there is material subjective placed before the Court in that fashion, there are also aspects of the account given to third parties by Mr Nguyen which are bluntly concessions against his interest regarding his particular function and role in the present matter.
He was only observed by police to attend at the premises on one occasion but he admits through the conversations he has had with others that he had attended on more occasions than the single occasion seen by police. He also candidly indicated that his sole motivation, once he became aware of the nature of what he was involved with, was financial return to himself. Admittedly he made that concession or admission against the background of explaining how it was that he first became involved in the commission of the offence to which I will shortly turn.
The material provided to the Court indicates that he is, of course, a citizen of Vietnam where he was born and grew up with his family. He lived and initially grew up in a small village which contained about 500 people which appears to have survived, as it were, on rice farming with a standard of living described as quite poor although the village did have running water and electricity. His parents, who are currently in their 40s, moved away from the original place that they were living and moved to the south of Vietnam where they lived for about ten years. They found they could earn more money working in a clothing factory in the south than they could by their rural subsistence in rice farming in the north.
Mr Nguyen, who was a young boy of about 4 years of age at the time his parents departed, remained with his paternal grandparents who had been residing in the same house with him and also his parents before they moved away. That has had some effect on the closeness of his relationship with his own parents due to their absence for that period of about a decade.
In due course he stayed at school until about year 12 and was successful in applying for a student visa to come to Australia to pursue English language courses here and hopefully some form of continuing tertiary education that would assist him in getting some appropriate employment. He described his parents having encouraged him to come to Australia because they thought he would have a brighter future if he came to Australia to study.
In due course he arrived in Australia during the pandemic in December of 2021 and a deal of his initial study was required to be online rather than face to face classes because of the ongoing government restrictions as a consequence of the COVID‑19 pandemic.
In due course he obtained some part‑time employment and found, as a consequence of the restrictions that had flowed from the COVID circumstances, that he was not getting enough shift work or at least enough shifts in the restaurant where he was working as a waiter to cover his accommodation and student fees. He described to the psychologist being on the verge of being depressed. He was disappointed with some of his selection of courses and appears to have been a young man who was somewhat all at sea with regard to his future.
He described, again I note this material is not tested by way of cross‑examination or otherwise, but he described, while he was struggling to get enough work and earning enough money, meeting a man in the Vietnamese community who he claims told him that he could get some payment for attending to some premises for the purpose of cleaning it. Whether he became aware of the growing of cannabis at those premises prior to going to the premises or whether, as he asserted to the psychologist, he did not become aware until he went there, is a matter about which I could reach no firm conclusion. To the extent that it is relied upon as a mitigatory factor then of course he would bear the onus on the balance of probabilities pursuant to R v Olbrich. I could not be satisfied that that was the case.
Be that as it may, he attended by his own admission, on a number of occasions and I do note that the time at which he first says that he met the man that introduced him to this employment was at a time when the police were already keeping the premises under surveillance and he was not seen to attend the premises despite ongoing surveillance, the detail of which the Court is not apprised.
At all events following his arrest he was bail refused for a period in excess of seven months before being granted bail in June of 2023. He resumed his studies at the Strathfield College and had to work very hard to try and catch up because he had missed so much of his course while he was in prison.
He has subsequently found employment and he now works for a Vietnamese butcher at the Rhodes Shopping Centre where he gets regular shifts, so he is, in effect, permanent part‑time and he is working three shifts a week of four to five hours. His English skills are satisfactory for such employment and of course his studies are in English, although he did have some level of English when he first came to Australia, having learnt English, as he described it, from watching movies. He has continued in employment until the present time.
There have been no breaches of his bail and his character has been assessed by the psychologist who has described what he believes was a generalised anxiety disorder flowing from his background and circumstances attending to his growing up in Vietnam and what has happened since he came to Australia.
To the extent that he is a person who was perceived to be somewhat anxious it does not seem to me that it falls into the type of mental difficulty that would warrant any alternative approach to an appropriate outcome of this matter, nor does it rise, in my view, to having a causal connection with the offending.
Indeed, a person suffering from levels of anxiety might well have discontinued involvement in the offence once they became aware of the nature of it.
At all events he has been similarly assessed by the Sentencing Assessment Report author, the Community Corrections officer being a Vietnamese speaker from Fairfield Community Corrections Office who has assessed him as a 2/1 low risk of offending pursuant to the Level of Service Inventory - Revised and he has also been assessed as suitable to undertake Community Service work and such work could be provided to him to the equivalent of 21 hours per month.
He indicated to the author of that report, as he had to the psychologist, that his motivation had been that his financial circumstances outweighed concerns about the potential consequences and he recognised the wrongfulness of what he had become involved in. He expressed insight into the impact of his offending and the experienced author of the report described the level of remorse and apparent contrition as expressed to him.
The psychologist formed a similar opinion and by analysing and referring to the specific risk factors regarding re‑offending including the presence of a criminal history or association with antisocial associates, having antisocial attitudes, having employment skills, having antisocial personality traits or being involved in substance abuse, the conclusion to which the psychologist was driven was that he was at a very low risk of reoffending.
Implicit in what I have referred to is the fact that Mr Nguyen has had no previous involvement with the criminal justice system nor, as I say, has he had any involvement with it whilst he has been out on bail.
Against that background, the Crown, having had an opportunity to carefully look at the subjective material which has been provided, has come to a conclusion that it would not be an inappropriate exercise of judicial discretion to determine that the length of any prison sentence that would be appropriate would not disentitle the offender from consideration for an Intensive Correction Order.
I should make reference, in addition to the matters to which I have already referred, to the handwritten letter by the offender himself in which he underscores much of what he told the psychologist. He expresses truly regretting and feeling remorseful for what he has done. He described to the psychologist and adverts to it in his correspondence to the Court, the realisation of the harsh and difficult effects of drugs as a consequence of what he observed during the time that he was in custody for that period of some 7 months and 20‑odd days, approaching 8 months.
He has indicated that he has subsequently completed online courses, the certificates for which have been tendered, pursuant to which he has learnt more about the impact of drugs and also ways in which one can keep clear of involvement with persons involved with drugs. He sincerely apologises to the Court. He says he will never break the law again and he also, in terms, apologises to his parents for what he has put them through.
A reference which has been typed up from the translation of what was communicated by the offender's mother in Vietnam advises the Court of the various conversations that she and her husband, the offender's father, have had with him since his involvement in the offending. She reaffirms his expressions of remorse and contrition and she describes having encouraged him to repent his sins in the temple and also to do charity work. She recounts that her son has told her that he has been going to the temple and volunteering to do work through the temple to assist others who are in need of such help in carrying out the charity work through the temple.
He described to his mother about how scared he was in prison and the circumstances of being surrounded by inmates who had drug problems which forced him to see and face how drugs do indeed damage the community. She describes his fears regarding the outcome of the present proceedings and his concerns for the future.
There is a reference also that has been typed up from his cousin who similarly describes aspects of his personality consistent with some of the conclusions by the psychologist. It confirms the work at the butcher shop and indeed his cousin also works at that butcher shop. He described the shock that he felt when the offender was arrested and how difficult it was to comprehend something so contrary to his otherwise good character that would have led to his involvement in the commission of that offence. He described having had numerous conversations with the offender about the offence and similarly underscores the regrets and remorse described by the offender to him.
There is also a letter from the employer at T & T Quality Meats at Rhodes describing Mr Nguyen as being a good worker and the part‑time work that he has been doing at the butcher shop. He is described as being very hard working and a responsible staff member with a good work ethic. He is friendly and polite and gets on well with the other employees and is described as being a pleasure to work with. His employer knows of the criminal offence before the Court and humbly asks for him to be given an opportunity to prove that he has learnt a lesson and that he will still be able to work in the future at the butcher shop.
A further reference was provided by the Venerable Thich Nu Hue Khiet who is a nun of the Bao An Temple located at Cabramatta. It confirms the volunteer and charity work undertaken by Mr Nguyen and he is described as also attending the temple and helping with general chores around the temple such as cleaning the floor and altars. He described to the Venerable nun that going to the temple operates almost like therapy for the offender himself and has assisted him in changing himself.
He is described in that reference as being honest and upfront about the criminal offending and similarly describes expressions of regret and remorse. The author of this reference says that she believes he has come to fully appreciate the seriousness of his actions and he has promised to be a good member of the community. It is expressed that he has learnt during his time at the temple and that those lessons will be the moral compass which will assist him in the future.
The Court accepts the submission, notwithstanding the absence of sworn testimony, that the prospects for rehabilitation are excellent and indeed are reflected both in the steps taken by the offender since his admission to bail in pursuing further study, in pursuing the online courses with further enlightenment about the effects of drugs and reflected in the letters of reference which have been tendered and to which I have made reference.
The Court has also been provided with what is regularly described as the "blunt tool" of the Judicial Commission statistics which, of course, needless to say do not tell the entire picture although I must say the ability to hyperlink to such cases as have been published or reported is a very useful tool in looking at other cases in which one can, from time to time, find similar factual exemplars which, whilst not necessarily binding, do provide examples of the approach taken by other judges to similar objective factual, and in some cases, similar subjective circumstances.
There is, given the nature of the offence before this Court, no alternative but to a finding that the s 5 threshold is crossed, and the appropriate outcome is a term of imprisonment.
In the circumstances of this case, it appears to me that the starting point would be a period of 2 years, taking into account all of the circumstances and a 25% discount would lead to a determined sentence of 18 months in relation to that.
I have given consideration to the protection and safety of the community which is required pursuant to s 66(2) of the Crimes (Sentencing Procedure) Act and I am of the view that in accordance with the concession by the Crown and also the submissions ably advanced on behalf of the offender that it is appropriate that the sentence should be served pursuant to an Intensive Correction Order.
One area that has caused me some difficulty in consideration is that the approach previously taken in many sentences in this Court pursuant to the decision of the Court of Criminal Appeal in Mandranis v R [2021] NSWCCA 97 has been substantially qualified by the observations of Simpson J in DG v R (No 1) [2023] NSWCCA 320, a decision of November last year in which, in the circumstances of that case, the approach of discounting an appropriate sentence in order to bring a sentence within the parameters applicable to consideration of the imposition of an Intensive Correction Order was held to be an inappropriate utilisation of the sentencing function.
Her Honour specifically referred to the decision by the Chief Justice Sir Lawrence Street in R v McHugh (1985) 1 NSWLR 588 in which there was substantial criticism because of the effect on both the statistics retained regarding appropriate sentences and the appearance of a proper sentence by the applying of a discount rather than backdating a sentence to commence at an earlier point in time and imposing the actual term which was appropriate.
It is not clear I must say, to me, as to whether or not a consideration of the approach that was recommended in Mandranis remains appropriate where the determination is that a proper sentence would be within the parameters for consideration of an ICO and whether the length of term of the ICO could or should be backdated to take into account the period of time which has been served, in this case a period of seven months and 20 days.
In all of the circumstances I have given consideration to the length of time that has already been served in determining what seems to me to be an appropriate sentence. I think, and I should make it clear, that to reduce the period of time from 18 months to less than a year would be, in my view, an inappropriate exercise of discretion. In all of the circumstances what I propose is that the sentence to be served by way of ICO should be for a period of 14 months.
Would you stand up please, Mr Nguyen. Mr Nguyen, you are convicted of the offence to which you have pleaded guilty. There being no other appropriate penalty you are sentenced to a term of imprisonment for a period of 14 months. I have given consideration to the safety of the community which is the paramount consideration and I have determined that pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 the sentence which I have imposed on you is to be served by way of an Intensive Correction Order.
The sentence will commence on today's date. You must report to the Community Corrections office at Fairfield as soon as practicable but no later than 7 days from today's date. The standard conditions of the order will apply.
First, you must not commit any offences. Second, you must submit to supervision by a Community Corrections officer. Third, I direct that you are to perform community service by performing community service work for a period of 120 hours.
If you fail to comply with the conditions of the order the Commissioner of Corrective Services or the State Parole Authority may impose sanctions on you. Such sanctions may include a formal warning. They might lead to the imposition of more stringent conditions or it may include revocation of the Intensive Correction Order.
If the order is revoked you may be required to serve all or some of the period of your sentence in full‑time custody.
Finally, you are now directed to attend the Court Registry in the building next door where a copy of the order will be explained and given to you.
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Decision last updated: 23 October 2024