New South Wales District Court CITATION: R v Nguyen, Andy [2009] NSWDC 390 HEARING DATE(S): 09/10/2009 JUDGMENT DATE: 13 November 2009 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ 1. Cultivate Prohibited Plant: Convicted. Sentenced non-parole period 16 months and 15 days. Balance of term 15 months. S.166 matters: 1. Possess prohibited drug: DECISION: Convicted. Sentence 4 months fixed term. 2. Organise or conducts or assist in organising or conducting drug premises first offence: Application on behalf of the Crown to withdraw the charge granted. 3. Use/consume/waste etc electricity without authority: Convicted. Sentence 4 months fixed term. CATCHWORDS: Criminal Law - sentencing - cultivate prohibited drug - 97 plants - electricity supply by-passed meter - distinguish between crops actual value and potential value - cultivation for financial gain - gambler - indebted to money lender - cultivation required by money lender as condition of continued loan - claim rejected in part - dangers of cannabis consumption - reasonable subjective circumstances - early guilty plea. LEGISLATION CITED: Criminal Procedure Act 1986 Pham v The Queen (2009) NSWCCA 266 CASES CITED: Mack v The Queen (2009) NSWCCA 216 Nguyen v The Queen (2009) NSWCCA 181 R v Van Cuong Nguyen (2008) NSWCCA 322 PARTIES: Regina Andy Nguyen COUNSEL: Defence: G. Jones SOLICITORS: Crown: Ms R Swift JUDGMENT 1. On 5 May 2009 police executed a search warrant on a premises at Byrne Street, South Granville. These were premises leased by Andy Nguyen for $300 per week. The search uncovered a small but sophisticated hydroponic set-up harnessed for cultivation of marijuana plants. Four of the rooms with nine or ten high powered globes housed half metre shades and varying numbers of cannabis plants. In total there were ninety-seven plants being cultivated. Also seized were; four power boards, thirty-five electrical transformers, five carbon filters, ten pedestal fans. Five of the plants were fifteen centimetres high, the remaining ninety-two were approximately one metre in length. 2. There was evidence indicative of a recently harvested crop. There were also a number of juvenile plants in the process of cultivating as though for future stock and there was eighty grams of cannabis secured in the fridge. 3. Today Andy Nguyen is to be held accountable for his criminal conduct in cultivating those ninety-seven plants and other S166 Criminal Procedure Act matters that arise from that cultivation. As sentencing judge it falls to me to determine the appropriate sentence for this criminality before this community by this offender. Further Facts 4. The premises at Byrne Street were apparently heavily fortified with steel bars and shutters. The premises were rented. There is nothing in the evidence before me that establishes that this offender erected or caused to be erected the steel bars and shutters; nor that it was a deal maker in his selection of these premises to lease. In my view the state of the exterior of the premises will not add or detract from the criminality involved in the cultivation. It presents simply as a neutral. 5. The offender readily admitted watering and growing the ninety-seven plants. I am satisfied he also fertilised them and remained at the premises, at least in part, to keep the crop secure. The electricity coming into the premises had been bypassed via the main electrical metre box. That means that he was using illegal means to aid his cultivation. While it is true that he has been charged with stealing the electricity it also aggravates the criminality of the cultivation. 6. The potential street value of the cannabis seized is said to be approximately $470,700. My understanding is that this valuation is based upon a per plant figure which on my calculation is $4,850 per plant. For that potential to be fulfilled the plants would need to have been mature, well laden and disease free. I do not understand the agreed facts to concede the cultivation seized by police was in fact worth that sum and I find it was worth substantially less. Nonetheless the potential value is a further factor in persuading me, as will be seen shortly, that the cultivation was not about debt repayment but rather it was about income stream. Those comments will become more clear in a moment. 7. I am satisfied the product of the cultivation was to be sold for financial gain and that it was to be his main source of income. Indeed he had given up his employment in order to pursue cultivation of the plant. In his interview with police the offender claimed he needed to pay debts. He told David Green, psychologist, retained by the defence, that he was a gambler who gambled on poker machines. That he developed a relationship with a Vietnamese/Chinese man who would offer him money to continue gambling. After he had lost his own money he apparently gambled seven days per week. Michael, the Vietnamese/Chinese man, was lending him $300 at a time until one day Michael told the offender that he owed $22,000 and wanted the money repaid. Assuming for the moment that he was paid $300 each day he gambled, that would have taken more than seventy days to reach the sum of $22,000. It also assumes that he never had a winning day in that period. Unable to repay the money he owed to Michael, Michael told him to resign as a baker and cultivate the crop, which he did. 8. In my court I have sentenced several Vietnamese offenders who give an almost identical account. As with many of the others this offender did not enter the witness box. His account is untested. I am not prepared to find that the accused responded to any person's demands to undertake the task of cultivating marijuana plants. In sentencing matters, anything favourable, or mitigating the offence, is required to be approved by the offender through evidence somehow or other, not necessarily from the offender, on the balance of probabilities. 9. As the evidence presently stands, as I say, I am not prepared to find he responded to any person's demands to undertake that task. That is not to say I reject the offender's account that he is a gambler or that he may well have debts to repay. The fact that this offender has given up work to focus on the cultivation is consistent with an intent to use the marijuana harvest as an income stream. The fact that there has been a prior harvest is also consistent with his using the proceeds as an income stream rather than a debt reduction to Michael. Indeed, so far as I am aware he may have already reduced his debt to Michael as a consequence of the first cultivation. Indeed there is no mention of debt reduction or an exit strategy once his debt is repaid, again consistent with an income stream rather than debt reduction to Michael. The impression one gets is that the arrangement in Byrne Street was meant to be an ongoing operation and not just an operation for the sake of extinguishing debt. Objective Criminality 10. When assessing objective criminality in drug matters the primary focus is to concentrate upon the potential for harm to the community. Drug dealing and therefore drug cultivation are crimes against the public health. Drug addicts are persons whose capacity to function as healthy motivated human beings is smothered to a greater or lesser extent by addiction. Also associated with drug use are diseases such as HIV, hepatitis because of lack of hygiene in sharing drugs. And while the risk is much more minimal in terms of cannabis use there is still the exchanging of cigarettes, bongs, and the like, where saliva residue from one person can easily be transferred to another. Hydroponic cultivation is a means of enhanced cultivation. Enhanced has three aspects: quicker growing time; more heavily laden plants and improved potency of the cannabis drug. All of these are factors impacting adversely upon the public health. 11. The link between marijuana consumption and serious mental health issues including paranoia, aggression and schizophrenia is now well established. Of course the enhanced form of the cultivation carries its own penalties and lower barriers for commercial and large commercial quantities. It is not therefore an aggravating feature of this offence but an element of it. 12. The operation was small, housed in four rooms. I find the motivation was for an income stream, that is, for the financial gain of the offender. He is not a cannabis user. He tried it once and did not like it. 13. There is no evidence he was locked into any distribution network. I am satisfied his involvement in the cultivation was recent, but there has been at least one harvest prior to his arrest. The size of the previous harvest is unknown but the current crop is likely to represent an expansion upon his earlier efforts. While I am unable to say he personally, actually himself, (pardon the tautology) installed the lighting, or personally bypassed the electricity mains, which were indeed bypassed, I am satisfied he either did so or authorised or caused these things to be done. I am satisfied he supplied or found the capital necessary to purchase the shades, globes, power boards, transformers and carbon filters. I am satisfied he purchased the initial stock of cannabis plants and thereafter used them to enlarge his own stock plants. 14. Eighty grams of cannabis, as I said earlier, were located in the freezer. I cannot be satisfied beyond reasonable doubt he had it for the purpose of supply, although it is likely because he claims to the Probation and Parole he did not like using cannabis himself. I should make it clear that because I cannot be satisfied beyond reasonable doubt of this he is not treated as having it in his possession for the purpose of supply. I think it likely, I am highly suspicious, but I am not satisfied beyond reasonable doubt. I am satisfied the cultivation of the ninety-seven plants demonstrates sufficient objective criminality as to require a substantial prison sentence. Subjective Matters 15. I come to the subjective features. Not only am I sentencing for the criminality involved in the growing of the ninety-seven plants but I am sentencing this particular offender for that crime. Matters personal to him may have some impact upon the sentencing outcome. His past background, history, health and the like may indicate that a greater or a lesser sentence should be imposed. Family Dynamics, Background and Relationship 16. Andy Nguyen was born in Hanoi Vietnam in 1975. He emigrated to Australia in 1997. His father was a university lecturer in descriptive geometry and his mother held a management position within the Vietnamese government. His parents owned a small business selling stationery goods until their retirement. There is one brother who is two years older residing in Vietnam, working as an architect. Mr Nguyen says the family is poor. 17. He met his first wife in 1999, she was a year older than he and had two children from a previous relationship. They married in February of 2000. He cared for her and her children, at least initially. Subsequently he began to drift away from the relationship. He liked to meet friends for cups of coffee after he had finished work and talk with them. From his perspective his wife was demanding, protesting vigorously when he spent time with friends. He sees his wife as jealous and insecure and she accused him of having a relationship with other women. Her criticisms led to arguments and ultimately, in 2002, she asked him to leave the family home. She was pregnant at that time with a son who was born in March of 2003. The offender has not seen the former wife and her children since 2002. It follows he has not seen his son since that time either. 18. In 2002 he commenced a relationship with his now current partner, and two children aged six and three are born from that union. That relationship ended in 2008 due to Nguyen's ongoing issues surrounding gambling. Of course whilst he has been in custody he has not been gambling so he and his partner have now reconciled. It is his intention to be with her upon his release. In that union there is a son, Tim, who, as I understand it is the younger son, still at pre-school. He has a speech difficulty, some of which may be reactive to the absence of the father, although the child seems to have had late developmental milestones. 19. An assessment of the boy was done by Minh Nguyet Nguyen, a speech pathologist with The Gift of Speech organisation. Her assessment was that based on observations with the clinic and in the pre-school setting, it was determined that Tim had a language delay, particularly in his expressive language area. He was not consistently using two or three word sentences to talk about what he was doing or to request for things. Tim was seen to be predominantly using gestures as a mean of communicating across both settings. His language skills were found to be severely delayed compared with his peers. His English skills are not developing due to the language delay in Vietnamese. His receptive language skills need to be monitored further. 20. The speech pathologist made a number of recommendations, there is no evidence before me whether any of those recommendations have been pursued or how seriously the family take the matter. Fiona Doan writes in a document tendered on behalf of the accused, "Our youngest child requires a lot of care as he has slow speech. I have taken him to the doctors so that they can help him overcome his problem." Education 21. Andy Nguyen completed his high school education in Vietnam. He did not experience any academic concerns but missed long periods of school due to ill health. Aged twenty-one or twenty-two he came to Australia to complete an English course. He studied English and business studies at the Strathfield International College and the Alpha Beta College Sydney for about two and a half years. He completed the English course and partially completed the business course, claiming that when he ceased study he did because he needed to support his then partner and her children. Between 2003 and 2008 he was employed continually in the same firm as a baker. In fact his first full-time job in Sydney had been at the fish markets in February of 2000 where he worked twelve hours a day, six days a week. He left that, unable to cope with those work hours and then began as a baker in Epping and worked there. 22. He ceased employment in 2008 when he commenced being the caretaker of the cannabis plants that are the subject of this offence. He has an offer of employment at the Bake 'n' Break bakery in Singleton run by Thi Huong Nguyen. General Health 23. While I note he missed significant amounts of school through health problems, his partner reports he has stomach problems which affect his daily lifestyle and eating requirements. She says custody will be hard for him because of his dietary needs. Mental Health Issues 24. David Green reports extensively on a history given to him by the offender touching background, family dynamics, relationship history, education, career moves, history of offence, degree of contrition, and potential for rehabilitation. He also takes a gambling history. Mr Green says: "Mr Nguyen described symptoms of mood disorder including depressed mood, anergia, anhedonia, social withdrawal, sleep appetite, concentration and libido disturbance. There was poor self esteem and some suicide ideation. He had difficulty concentrating at work and said he had burnt himself frequently on the ovens. He said he stopped caring about his life and began looking for places to enjoy." So far as I can tell there has been no psychological testing administered. In his comment and opinion Mr Green says: "It is my opinion based on Mr Nguyen's self report that he experienced a mood disorder, major depressive episode (using DSM/4 criteria) following the breakdown of his relationship with his wife. The circumstances of the breakdown and the fact that he has not been able to contact his wife, her children and his newborn son proved devastating for him and are in my opinion the significant contributor towards his depressed mood... It is my opinion Mr Nguyen experienced a psychiatric disorder pathological gambling (using DSM/4 criteria) and I note his symptoms include chasing his losses. Obsessive thinking about gambling. A belief that he would inevitably win money from gambling, and an emotive wanting to get revenge from a machine after a large loss." Expert opinion evidence should be presented in such a way as to explain the reasoning process. It would have been far more satisfactory if Mr Green had set out the criteria for each disorder he has diagnosed and explained which of the selections apply in this case. Having said that I accept that it is probable the offender does have a gambling problem and does experience depressed moods. The offender told Probation and Parole that for three years now his gambling has been an addiction, he claims in the two years prior to his arrest he had been at a local gambling club daily. 25. He told Mr Green that he liked gambling and thought about gambling constantly. He would hear the music of the machines in his head and was impatient to finish work so he could attend a club and gamble. He would attend a club after work from about 10am to 6pm, return home for a few hours sleep and then attend work. 26. He also said that he was focused on gambling, that he reduced his consumption of alcohol as it interfered with the time he could spend gambling. He also said he was "chasing the losses" and "genuinely believed it was possible to win large sums of money". 27. That account has one inconsistency insofar as I am concerned. He is a baker, most bakers have started their baking well and truly by 6am. Mr Nguyen has himself arriving home for a few hours sleep at that time. I am also prepared to accept that his desire to fund gambling and repay debts constituted some part of the offender's motivation for growing the cannabis. 28. As with most ventures for financial gain motivation is no one single focus driver, there are other things that financial gain can be spent upon, such as cars and other aspects of lifestyle. Character 29. This offender presents as a person of prior good character. He is thirty-four years of age, one of his referees describes him as having a good work ethic. Contrition 30. He told police and Mr Green that he was sorry for his involvement. To Mr Green he was able to personalise his contrition through insight into the impact cannabis/drugs had had upon his soul mate. I accept that he is genuinely contrite. His partner says he has told her of his remorse when she visits and speaks to him on the phone. Plea of Guilty 31. He was committed for sentence on 9 July 2009, having pleaded before the Parramatta Local Court. I am prepared to give him the full benefit for the utilitarian value of his plea. Rehabilitation 32. There are a number of positive rehabilitation indicators: o Has support of his partner and presumably a home to return to. o Has expressed contrition in terms that demonstrate some insight into the public health consequence of drug abuse. o Has linked his criminal behaviour to his gambling addiction, again demonstrating insight. o Had a good work ethic when in the community and an offer of employment upon his release. All of these factors suggest rehabilitation may be positive for him. The real test emerges, however, when released back into the community. Should he resume sustained gambling he will certainly return to crime. Probation and Parole should supervise him, monitor closely his predilection to gambling and require him to attend counselling and Gamblers Anonymous for the duration of the parole. 33. I do not regard requiring him to attend Gamblers Anonymous as onerous, I am told and accept that he has a capacity to understand English and would not be, as it were, sitting with a group of people simply to occupy his time. I am satisfied there is much he could get from attending such a meeting. Setting the Sentence 34. I have spoken of the capacity for harm to public health arising from enhanced cannabis production. This is a case where punishment forms an underpinning platform of the sentencing. Where there is punishment and in particular where that punishment requires incarceration, there is necessarily present both general and personal deterrence for other would be offenders. 35. I have had regard to four recent Court of Criminal Appeal cases when setting the sentence for this offence. Pham v The Queen (2009) NSWCCA 266, Mack v The Queen (2009) NSWCCA 216, Nguyen v The Queen (2009) NSWCCA 181 and R v Van Cuong Nguyen (2008) NSWCCA 322. 36. I note that of our research in respect of somewhere between eighty and one hundred and so plants, 112 plants, that three of the four cases that I have referred to are of Vietnamese. 37. This is Andy Nguyen's first time in custody. It will be difficult for him not only because of the loss of liberty involved but because he has a needy family outside the prison walls, particularly his second son. It is also said he has special dietary needs. 38. As matters presently stand the evidence is silent on the capacity of Corrective Services to cater for his needs. Their nature and extent have not been properly disclosed in evidence in any medical evidence before me. 39. Balancing the objective seriousness of his criminal conduct, the subjective history and the 21A matters, an overall sentence of three and-a-half years is called for. 40. I would discount that, as I said, on account of his earlier plea by twenty-five per cent which makes a discount of ten and-a-half months, giving an overall sentence now of thirty one and-a-half months. 41. In setting the minimum term and balance of term, I have determined to find special circumstances. The matters which have persuaded me that special circumstances are appropriate is firstly the rehabilitation in the community, particularly in respect of gambling control and his participation in community based support through Gamblers Anonymous. Secondly, the need to reintegrate into family life, quite possibly in the Hunter region where the position of employment has been offered to him. 42. Would you stand up please, Mr Nguyen. Andy Nguyen, you are convicted that you, on the fifth day of May 2009 at South Granville in the State of New South Wales did cultivate a number of prohibited plants, namely ninety-seven cannabis plants which amounts to no less than the commercial quantity applicable to that prohibited plant. 43. I note the maximum penalty for that offence is one of fifteen years imprisonment. I sentence you to a non-parole period of sixteen and one half months, commencing on 5 May 2009 and expiring on 4 September 2010. A balance of term expiring on 4 December 2011. I'm assuming those figures are right. Because the sentence is less than three years I can make an order in respect of your parole and I order that you be subject to supervision by Probation and Parole and that you attend such counselling and treatment as directed by your case manager with Probation and Parole, I commend to the Probation and Parole serious consideration of requiring you to attend gambling counselling and to attend weekly meetings, at least twice weekly, of Gamblers Anonymous. Any other order that I need to make? Drugs I suppose need to be destroyed do they? BROWN: That's correct your Honour. HIS HONOUR: I make an order requiring the drugs to be destroyed. Any other orders? NGUYEN: No your Honour. HIS HONOUR: All right. Thank you. They're not Form 1 but they must be 166 matters. The back-up offence, that's to be withdrawn is it Madam Crown? BROWN: Yes your Honour. HIS HONOUR: I give leave to the Crown to withdraw that. There should be some - yes, possess prohibited drug cannabis. 44. In respect of the possessing prohibited drug cannabis, eighty grams of that, I set a sentence of four months to date from 5 May 2009 and to expire on 4 October 2009. In respect of the use and consume/waste electricity without authority, I'm going to set a sentence of four months imprisonment to date from 5 October 2009 and to expire on 4 February 2010. 45. So those sentences, both will be concurrent with the sixteen and-a-half months, you'll be due for release and I order your release on 4 February 2010. Mr Nguyen you will be released on 19 September 2010 next year. Thank you. 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. 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