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District Court 22 October 2019

R v Nguyen; R v Pham; R v Nguyen

[2019] NSWDC 887

Drugs
OFFENDERS

Citation: R v Nguyen; R v Pham; R v Nguyen [2019] NSWDC 887
Court: District Court of New South Wales
Date: 22 October 2019
Judge(s): Bennett SC DCJ

Background

Three offenders appeared for sentencing after each pleaded guilty to knowingly taking part in the cultivation of cannabis by enhanced indoor means, contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985. Police surveillance in August 2018 observed the three travelling together to a residential property in Seven Hills and engaging in conduct consistent with counter-surveillance before entering the premises. Inside, police subsequently discovered 144 cannabis plants in various stages of growth, along with sophisticated cultivation equipment including heat lamps, electricity by-passers, water pumps, fans, and fertiliser.

The prosecution did not charge the offenders in relation to a commercial quantity of plants, accepting it could not prove to the required standard that any of them had knowledge of the precise number of plants under cultivation. One of the offenders, Ninh Bac Nguyen, had a greater degree of involvement: DNA matching her profile was found on a toothbrush and drink bottle inside the premises, and a fingerprint attributed to her was found on a sodium globe used in the cultivation setup. She had also been in continuous custody since her arrest on 28 August 2018, a period of approximately one year and 55 days.

The other two offenders, Ngoc Anh Nguyen and Van Thanh Pham, had each spent only short periods in pre-sentence custody before being granted bail, which each had observed. None of the three was the owner or lessee of the property.

  • What sentence was appropriate for each offender upon a plea of guilty to enhanced indoor cultivation of prohibited plants under s 23(1A) of the Drug Misuse and Trafficking Act 1985, carrying a maximum of 15 years imprisonment?
  • Whether each offender was entitled to a 25% discount on sentence for an early guilty plea.
  • Whether contrition, remorse, and rehabilitation prospects could be accepted on the basis of unsworn, untested statements, applying the principles from R v Qutami.
  • Whether the sentences should be served by way of Intensive Corrections Orders rather than full-time custody.

Decision

Bennett SC DCJ accepted that all three offenders had demonstrated genuine contrition and remorse, and that each had strong prospects for rehabilitation. Applying the caution prescribed by Smart AJ in R v Qutami, the court accepted unsworn representations in each offender's case as admissible and accorded them appropriate weight. A 25% discount was applied to each sentence to reflect early guilty pleas entered at the Local Court stage.

The court differentiated the role of Ninh Bac Nguyen from those of her co-offenders, noting the forensic evidence linking her to prior attendance at the premises. Her sentence included a formal non-parole period and a further term of imprisonment, though the court was satisfied that her sentence could be served by way of an Intensive Corrections Order in the community, particularly given her personal circumstances including a young child.

For Ngoc Anh Nguyen and Van Thanh Pham, the court was satisfied that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (requiring a court to be satisfied that no other sentence is appropriate before imposing full-time imprisonment) had been crossed, but that an Intensive Corrections Order would better address the risk of reoffending. Each received a sentence of 1 year and 10 months imprisonment, to be served by way of an Intensive Corrections Order with a community service component of 100 hours.

Orders Made

For Ninh Bac Nguyen:
- Convicted of the offence
- Non-parole period of 1 year and 6 months imprisonment, commencing 27 August 2018 and expiring 27 February 2020
- Further period of imprisonment of 1 year, commencing at the expiration of the non-parole period and expiring 27 February 2021
- Sentence to be served by way of an Intensive Corrections Order

For Ngoc Anh Nguyen and Van Thanh Pham (each):
- Convicted of the offence
- Sentenced to 1 year and 10 months imprisonment, commencing 22 October 2019
- Sentence to be served by way of an Intensive Corrections Order
- Standard conditions applied (no further offences; supervision by Community Corrections)
- 100 hours of community service required

Key Takeaways

  • Under s 23(1A) of the Drug Misuse and Trafficking Act 1985, a maximum penalty of 15 years imprisonment applies to enhanced indoor cultivation of prohibited plants, and no standard non-parole period exists for that offence.
  • Unsworn and untested statements of remorse remain admissible in sentencing proceedings, but courts must apply the circumspection described in R v Qutami before finding contrition and good rehabilitation prospects on that basis.
  • A 25% sentence discount for an early guilty plea applies in this context, consistent with both the legislative framework and the common law utility principle.
  • Where co-offenders are sentenced together for the same cultivation enterprise, forensic evidence of greater individual involvement (such as DNA and fingerprints linking an offender to prior attendance at the premises) can properly result in a more substantial sentence for that offender.
  • The District Court confirmed that crossing the s 5 Crimes (Sentencing Procedure) Act 1999 threshold does not automatically preclude an Intensive Corrections Order: the court may still impose such an order where it is more likely to address the risk of reoffending than full-time custody.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(1A) and Schedule 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Div 1A; s 5; s 66

Cases:
- R v Qutami (2001) NSWCCA 353