Director of Public Prosecutions v Chau

[2018] VCC 22

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01735

DIRECTOR OF PUBLIC PROSECUTIONS

v

THANH CHAU
TUYEN NGUYEN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 January 2018
CASE MAY BE CITED AS:	DPP v Chau & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 22

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Ramsay
For Offender Chau	Mr L.K. Barker
For Offender Nguyen	Mr I.J. Polak

HER HONOUR: 

1Thanh Ne Chau and Tuyen Van Nguyen, you have each pleaded guilty to one charge of cultivating a narcotic plant, namely cannabis-L, in a commercial quantity.  The facts underlying your offending are as follows:

2The two of you are both Vietnamese nationals who came to Australia on student visas.  At the time of this offending, you were both living in Australia illegally.  Your visa, Mr Chau, was cancelled on 11 May 2015; and your visa, Mr Nguyen, was cancelled on 15 March 2016.  On 25 January 2017, police executed a warrant on premises at 3 Sancho Drive, Cranbourne East where an operational hydroponic setup was located comprising 180 cannabis plants. 

3The total weight of the crop was 21.72 kilograms, the plants all growing at various stages of maturity.  The entire house was set up for cultivation of cannabis., all five bedroom containing equipment for cultivating cannabis, three of them only however actually having plants growing.  There were also seedlings in a cabinet in the kitchen.

4The plants varied in maturity from seedlings to plants, six to eight weeks old and it appeared that only the lounge room was inhabited. 

5After executing the warrant, police noticed a car drive suspiciously past their residence and park across the street, the two of you being the occupants of that vehicle.  The two of you were both arrested and taken to Dandenong Police Station where you each engaged in a record of interview with police.

6Essentially, you Mr Chau, made no comment in relation to the record of interview.  You, Mr Nguyen, gave answers but made no admissions.

7The maximum penalty for cultivating a commercial quantity of a drug of dependence is 25 years' imprisonment.  The two of you have been remanded in custody and each matter was listed for a contested committal on 30 August 2017. 

8You, Mr Chau, entered a plea of guilty on that date before any evidence was called whilst you, Mr Nguyen, did proceed to committal but only the informant was cross-examined and the matter was adjourned part-heard for the provisions of a forensic services statement.

9Once that statement confirmed that your DNA, Mr Nguyen, was located on items found in the house, you entered a plea of guilty before the recommencement of the committal hearing.

10I now turn to your personal circumstances beginning with you, Mr Chau. 
You are 30 years of age and were born in a small rural community in Vietnam.  You are the second of two children born to your parents.  Both your parents had the occupation of teacher. 

11This was, however, a poorly paid occupation although your family would technically be seen as middle class and is apparently well regarded within the community.  You grew up in a two room house in an area where the local economy was essentially underpinned by fishing. 

12Your older brother died of lung cancer at age 14 after which your mother was unable to continue teaching and as the family grew up, it therefore relied on one income only. 

13You completed the equivalent of Year 12 at a local government school and then undertook a Bachelor of Accountancy at a nearby university from which you graduated aged 23 and then worked in a construction company as an accountant for three years, during which time you were paid the equivalent of $350 dollars a month; most of that income going towards your parents. 

14It was the family dream, and this appears to be the case in both your situation and that of Mr Nguyen, that you be sent to Australia to make your fortune as it were, send monies back and the financial future of the family thereby being secured and realised.

15So therefore your family scraped together money and paid for you to come to Australia, you arriving here in November 2013.  The idea was that you would undertake a business management course at the Holmes Institute in Melbourne.  The plan was also that you work part-time, the family having heard of the supposedly very high wages in Australia and remit some of that money back to your family.

16You came to Melbourne and took up residence in a share house in Springvale also occupied by you, Mr Nguyen.  Unfortunately, you had almost no English.  The course was to start in 2014 however in the interim, your search for work enabled you only to find employment on a strawberry farm about one hour from Melbourne. 

17This involved essentially work from 6 am to 6 pm, five days a week from which you were paid $120 dollars per day.  Once rent and living expenses were taken into account, and plus money being sent back to your family, you had very little left over. 

18Because you were not able to find part time work, but only the work involving the long hours of farm work, you were unable to begin your course.  You worked on the strawberry farm for a year and then obtained employment as a labourer in a butcher's shop in Springvale; again, working very long hours, 6 am to 8 pm six days a week for which you were paid $650 dollars.

19In November 2016, your mother was diagnosed with thyroid cancer for which she underwent surgery in January of that year.  She then underwent six months of radiotherapy and now undertakes on-going treatment in Hanoi which is 300 to 400 miles from your family home.  She travels there by bus or train and must say for a week either side of the treatment.  This put extra pressure on your financially as the costs associated with her treatment were prohibitive. 

20Further, in April 2016, there was an environmental catastrophe in the area where you grew up due to what can only be described as gross environmental offending by a large local steel company whereby toxic discharges into the sea essentially destroyed the local fishing industry.  The net result of this has been that the local economy has been devastated and your father's wage has been cut. 

21Whilst working at the butcher's shop, you met a customer who told you about the East Cranbourne cultivation and offered you a position whereby you would make the property look as if it was inhabited and you were to occasionally water plants and administer fertilizer. 

22You were to be paid $6000 dollars for these activities.  You were paid $3000 dollars, most of which you sent back to your parents.  It is agreed that your activities in relation to this crop lasted about a week.

23You have had a difficult time in prison.  You were held for five months in the MRC, undergoing some of the restrictions in the aftermath of the riots there, one month at Port Phillip, six months at Fulham.  Essentially, you have had no visitors and very limited, and only telephone, contact with your parents. 
It is expected that once your sentence has been completed, you will be deported to Vietnam so that your family's dreams of you making your fortune in Australia have been destroyed.

24I now turn to you, Mr Nguyen.

25You are the middle of three children born to your parents.  You undertook an engineering degree in Vietnam and worked for a year with a construction family.  You come from the area/province as Mr Chau, the two of you know each other and again, your family got money together in order to send you to Australia and again, hopefully, establish employment here which would secure the family fortunes into the future. 

26Again, you arrived in Australia having enrolled in  business studies but also had very little English and were forced to undertake first an expensive English course.

27You too took up accommodation in a share house in Springvale; you too were able to find employment on a strawberry farm where, again, you laboured for long hours, for little pay and found yourself in a difficult financial position once you had paid rent, and sent money home.

28You undertook this farm work for a period of two years and you were also offered accommodation at the house plus money for attending to the crop.  Again, the prosecution case is that your criminal activities in relation to that crop lasted for about a week. 

29You too have had a very difficult time in gaol.  You have been isolated and depressed.  You have done a series of available courses.  You have worked in sewing and laundry work at the gaols.  You have fortnightly calls at home. 

30Your situation has been exacerbated both in terms of your own personal distress and the financial pressures upon you in that your father, who was a carpenter, had a serious stroke two years ago and you owed something in the region of $13,000 dollars for the studies you had undertaken.  You failed the English course.

31I turn back to you, Mr Chau.

32You were also engaged in crop-sitting in another house in Heidelberg around the same time as the offending that has brought you here before this court.  Obviously a crop of lesser magnitude, given that when you were arrested and charged in relation to that address, that matter was dealt with in the Magistrates' Court where in June 2017, you received a six month sentence.

33It is my view that I should sentence you having regard to the totality of an appropriate sentence encompassing both sets of offending so that on the face of it, it would seem that you are receiving a lesser sentence than Mr Nguyen but that sentence will be served cumulatively to the sentence you have already undertaken, the end result being that you will be serving a term of imprisonment of about 15 months whereas Mr Chau will be serving a sentence of 12 months comprising time served.

34I note that both in your case and in Mr Nguyen's case, the two of you are expected to be deported once your sentences have been completed.  In sentencing you, I take into account the fact that neither of you have prior convictions.  You are both persons who come from respected families with no criminal history. 

35I accept the difficult circumstances underlying and surrounding this offending.  That is, the unrealistic dreams that accompanied your arrival in Australia, your failure to find work - whereby you could appropriately support yourself, financial pressures upon on each of you in relation to your families and the duties and obligations you felt towards them, given the sacrifices they had made to send you to Australia in the first place. 

36I note that early pleas of guilty were entered.  I accept you are remorseful for your offending.  I accept that but for the circumstances surrounding each of you once you arrived in Australia, it would have been unlikely that you would be persons who would ever have appeared before a court, charged with criminal convictions.

37Could you stand up please?

38Mr Chau, on the charge of cultivating a commercial quantity of marijuana, you are sentenced to nine months' imprisonment.  I declare that 183 days of that sentence has already been served by way of pre-sentence detention.  It is important to understand that this sentence will be served from today so that overall, you will be released after Mr Nguyen.

39Mr Nguyen, how many days - what is the PSD for Mr Nguyen?

40MS RAMSAY:  365.

41HER HONOUR:  Mr Nguyen, you are sentenced to 365 days imprisonment.  I declare that this 365 days has already been served by way of pre-sentence detention.  Have a seat gentlemen.

42Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you, Mr Chau, to a term of imprisonment of 20 months with a minimum term of 16 months and you, Mr Nguyen, to a term of 16 months with a minimum term of 12 months.

43All right. 

44MR BARKER:  May I approach my client briefly, Your Honour?

45HER HONOUR:  Yes.

46MR BARKER:  Thank you.

47HER HONOUR:  Yes?  What have I done wrong, Ms Ramsay?

48MS RAMSAY:  No, no, nothing.

49HER HONOUR:  I think my 6AAA declarations were a bit dodgy, I must say.

50MS RAMSAY:  Could be but I am not sure if that is important.

51HER HONOUR:  I do not think it is either but even so, yes?

52MS RAMSAY:  No, I was just going to remind Your Honour that we have made applications for some ancillary orders.

53HER HONOUR:  Yes, of course, no.  I do not know if a s.464ZF application is necessarily ‑ ‑ ‑

54MS RAMSAY:  All I am instructed to do ‑ ‑ ‑

55HER HONOUR:  ‑ ‑ ‑ but then again on my ‑ ‑ ‑

56MS RAMSAY:  All I am instructed to do is ask, Your Honour.

57HER HONOUR:  Yes, of course you are.  Then again - I do not know.  Something like that - no, I am inclined to grant it.  Have either of you got anything to say?  I mean, I know that they say they are going to back to Vietnam but they might come back.  And if things go wrong - it is the s.464ZF application?

58MR BARKER:  Nothing to say, Your Honour.

59HER HONOUR:  Normally I do not necessarily grant them out of hand but I - I kind of think that in a case like this, it might be appropriate.

60MS RAMSAY:  It is only for Mr Nguyen here.  Mr Chau is - has already had an application put on file which may ‑ ‑ ‑

61HER HONOUR:  Has he?

62MS RAMSAY:  ‑ ‑ ‑ well have been from the previous ‑ ‑ ‑

63HER HONOUR:  Do you think this ‑ ‑ ‑

64MR POLAK:  I do not believe that he will be allowed to come back.

65HER HONOUR:  Five years, I think it is?

66MR POLAK:  At least not for five years.  He has got no intention of coming back.  I am just concerned about how it would impact on his deportation, the fact that ‑ ‑ ‑

67HER HONOUR:  How would it affect his - if he has to - if they take a swab, how does it affect his deportation?

68MR POLAK:  Because what is likely to occur ‑ ‑ ‑

69HER HONOUR:  Yes, they will hang on to him until they do?

70MR POLAK:  Yes.

71HER HONOUR:  Right, well, no, I will not grant one.

72MS RAMSAY:  Police have already got one for Mr Nguyen.

73HER HONOUR:  Well, then it should be a retention.

74MS RAMSAY:  It should be a retention.

75HER HONOUR:  All right.

76MS RAMSAY:  I have been asked to apply to take a sample.

77HER HONOUR:  I am more than happy to do a retention.  I will not do a - if you have got a - just send me the paperwork for a retention.

78MS RAMSAY:  As Your Honour pleases.

79HER HONOUR:  All right.  Otherwise it is ‑ ‑ ‑

80MR POLAK:  Well, that is not opposed, Your Honour.

81HER HONOUR:  Good on you, Mr Polak.  A wise decision.  All right?  All right and there is another forfeiture order.  No, that was a fair enough point, Mr Polak.  Thank you.  All right.  I will not sign the s.464.

82MS RAMSAY:  Sorry, Your Honour, we will arrange for that to be sent through.

83HER HONOUR:  There is the ancillary orders back again.  Is that everything?  I thank counsel very much for their assistance in this matter and we will adjourn to - I will give these back to - this is photos - thank you for that, Ms Ramsay.

84MS RAMSAY:  As Your Honour pleases.

85HER HONOUR:  Yes, thank you.  We will adjourn to?

86ASSOCIATE:  9.30.

87HER HONOUR:  9.30 on Monday morning.  Thank you very much.

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