Director of Public Prosecutions v Bang Tien Nguyen
[2018] VCC 1531
•25 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-18-01032
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BANG TIEN NGUYEN |
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JUDGE: | Her Honour Judge Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 September 2018 | |
DATE OF SENTENCE: | 25 September 2018 | |
CASE MAY BE CITED AS: | DPP v Bang Tien Nguyen | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1531 | |
REASONS FOR SENTENCE
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Subject: Cultivation of commercial quantity of narcotic plant
Catchwords: Section 5(2H) of the Sentencing Act 1991
Cases Cited:Quy Nguyen v R [2017] VSCA 127; Ngoc Nguyen v The Queen [2017] VSCA 286.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Farrell | Mr J Cain Solicitor for Public Prosecutions Victoria |
| For the Accused | Mr C Nikakis | Haines & Polites |
HER HONOUR:
1 You, Bang Tien Nguyen, have pleaded guilty before me to one charge of cultivation of a commercial quantity of a narcotic plant. The maximum penalty for this offence is 25 years' imprisonment.
2 On Monday 19 February 2018 the police were conducting surveillance of a residence at 49 Brunnings Road Carrum Downs which they suspected was being used to cultivate cannabis. At approximately 8.50pm, police observed you drive past 49 Brunnings Road and park in another street approximately 500 metres away. Police then observed you walk back to the house, look up and down the street, bring a council rubbish bin into the front yard and then enter the premises through the front door. You remained inside the premises for approximately 25 minutes before leaving through the front door. As you were leaving the premises, police approached you and you attempted to flee on foot but were arrested a short distance away. You had an Apple iPhone in your possession and keys to the house. Police noted that you smelt strongly of cannabis.
3 Police entered the property using your keys and observed cannabis plants growing hydroponically in four separate rooms. The plants were at various stages of maturity. Police also observed a motion sensor camera operating in the premises which sent notifications of motion sensor activations to your mobile phone. There were no other persons present in the house.
4 Police located 99 cannabis plants growing hydroponically within the four rooms and two garbage bags containing loose plant material. The combined weight of the plants and loose material was 55.22 kilograms.
5 The hydroponic systems in the four rooms included the usual items such as lights, shades, power boards and transformers. Face masks, gloves and chemicals were also found in the house. Your fingerprints were also located on a number of letters and an electricity bill located in the kitchen. An illegal electrical meter bypass was located in a wall cavity of the house which enabled access to unmetered electricity.
6 You were interviewed at Dandenong Police Station with the assistance of an interpreter. You made admissions stating that you had been taught how to water and look after the plants by someone you met at a coffee shop. You admitted that you had been cultivating cannabis at the premises for about four weeks. You estimated that there were about 90 plants in the house. You said that you received $500 a week to look after the plants and that you took over from someone else. You said that you parked your car some distance away from the house because the owners had told you to do that.
7 As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you offered to plead guilty to the charge of cultivating a commercial quantity of cannabis on 23 April 2018 which was before the first committal mention. The prosecution accepts that your offer to plead guilty was made at the earliest opportunity. When apprehended, you readily admitted your part in the crime. In the circumstances, I accept that your plea indicates remorse for your actions.
8 I have been told something of your personal history and your circumstances. You were born in Ha Tinh, Vietnam on 24 August 1989 and are 29 years old. At the time of the offending you were 28 years old.
9 Your family are involved in the fishing industry. After you completed your high school studies, you worked as a shop assistant at a chemist store. Your parents obtained finance from a bank in Vietnam and sent you to Australia as a student. You came to Australia in 2013 on a student visa. You overstayed your visa once it had expired on 10 June 2015 and as of this date, do not hold a current visa. You were residing unlawfully in Australia at the time of the offending.
10 Prior to your arrest, you were employed at a fish and chip shop in Springvale and were paid $500 per week cash for your work. You lived in a share house and continued to study. You studied English with the hope of furthering your experience in accounting. You had been working at the store for three years until you were approached with an offer of $500 per week to assist in the growing of crops. The opportunity to receive the cash amount was attractive to you. Earning $500 a week as a labourer in the fish and chip shop barely covered your rent and tuition fees. On top of that you had an obligation to your parents for the debt incurred in Vietnam.
11 During your time on remand you have taken the opportunity to complete a series of courses. You have enrolled in a Certificate of Spoken and Written English and have achieved a certificate of competency.[1] You have received Certificates of Completion in Anger Management,[2] Problem Gambling,[3] Cleaning Operations,[4] and Access to Vocational Pathways.[5]
[1] Exhibits 1 and 6.
[2] Exhibit 2.
[3] Exhibit 3.
[4] Exhibit 4
[5] Exhibit 5.
12 You have no prior convictions. I sentence you as a person of previous good character. You have been in no further trouble since this matter.
13 I am satisfied that the chances of your rehabilitation are reasonably good.
14 However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I am called upon by the Sentencing Act 1991 (Sentencing Act) to manifest the community's denunciation of your conduct and generally to impose a just punishment.
15 Your counsel referred to the fact that you do not hold a visa which means that you will be deported to Vietnam. He submitted that in those circumstances the court should impose a straight sentence of imprisonment.
16 The prosecution conceded that your role in the offending was no greater than that of a crop sitter. In Quy Nguyen v R[6] the Court of Appeal held that the characterisation of an offender’s role as that of a crop sitter “does not of itself displace the need to look at the circumstances of the offending as a whole and to weigh competing sentencing considerations in determining an appropriate outcome.”
[6] [2017] VSCA 127, [36].
17 The prosecution submitted that the offending is serious, involving 55.22 kilograms of cannabis which is twice the commercial quantity of cannabis, which is 25 kilograms. Although your role was that of a crop sitter, the operation in which you were involved was reasonably sophisticated with lights, shades, power boards and transformers. Face masks, gloves and chemicals were found in the house. An illegal electrical meter bypass was located in a wall cavity of the house which enabled access to unmetered electricity. A motion sensor camera had been set up which sent notifications of motion sensor activations to your mobile telephone. You watered and looked after the plants for which you received $500 a week.
18 Your counsel submitted that you had been involved in crop sitting for only one month and that you played a limited role. I assess your role at the lower category for this type of offending.
19 The prosecutor referred to the table of cases annexed to the decision by the Court of Appeal in Nguyen v The Queen.[7]The table refers to sentences imposed by this Court since 2016. I have had regard to those cases, although recognising that the sentence imposed in each case depends on its own circumstances.
[7] [2017] VSCA 286.
20 This is a category 2 offence.[8] Section 5(2H) of the Sentencing Act provides that in sentencing an offender for a category 2 offence, the court must make an order for imprisonment under Division 2 of Part 3.
[8] Section 3(h) of the Sentencing Act 1991.
21 In all the circumstances I have no alternative to the imposition of a custodial sentence. Would you please stand, Mr Nguyen?
22 I propose to record a conviction and sentence you to be imprisoned for a period of 18 months. I direct that you serve a minimum term of 12 months before becoming eligible for parole.
23 The Court orders pursuant to s. 33(1) of the ConfiscationAct 1997 that the sum of $205.70 and the black coloured iPhone be forfeited to the Minister.
24 Lastly, I order that the property referred to in the schedule to the disposal order, which I have signed this day, be forwarded to the State and direct that it be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date and then destroyed. What is the pre-sentence detention?
25 MR NIKAKIS: Two hundred and seventeen days, not including today. Two hundred and eighteen.
26 MS FARRELL: Two hundred and eighteen, not including today, Your Honour.
27 HER HONOUR: So what do you want me to - - -
28 MR NIKAKIS: Two hundred and eighteen days.
29 HER HONOUR: As prescribed by s18(4) of the Sentencing Act I declare that the period of time you have already spent in custody is 218 days. I direct that such be noted in the records of the court.
30 I declare pursuant to s.6AAA of the Sentencing Act that but for the plea of guilty, you would have been sentenced to a total effective sentence of three years with a non-parole period of two years. Yes, are there any further matters? If you could hand the - the orders to them? Thank you. All right, any further matters?
31 MR NIKAKIS: No Your Honour.
32 HER HONOUR: Yes, thank you. Could you please take Mr Nguyen into custody?
33 PRISON OFFICER: Excuse me, Your Honour. Is there an opportunity for defence counsel to communicate with the interpreter?
34 MR NIKAKIS: The problem is, the interpreters don't go down to the cells. So if I could have just a few minutes with my client and the interpreter? That would be - - -
35 HER HONOUR: Yes, very well. I'll leave the Bench.
36 MR NIKAKIS: Thank you Your Honour.
37 HER HONOUR: Thank you.
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