Director of Public Prosecutions v Coung Nguyen

[2018] VCC 1837

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01685

DIRECTOR OF PUBLIC PROSECUTIONS

v

CUONG NGUYEN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	2 November 2018
DATE OF SENTENCE:	9 November 2018
CASE MAY BE CITED AS:	DPP v Coung Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 1837

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Cultivate narcotic plant commercial quantity (cannabis) – Role as crop sitter – Relevant criminal history

Sentence:Convicted and sentenced to 3 years’ imprisonment with non-parole period of 2 years’ imprisonment – 165 days pre-sentence detention declared as having been already served – s.6AAA Sentencing Act 1991 declaration – Ancillary order – Disposal order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Farrell	Solicitor for Public Prosecutions
For the Accused	Mr A. Pyne	VLA

HER HONOUR:

1Cuong Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant, namely cannabis, in a commercial quantity.  This offence has a maximum penalty of 25 years' imprisonment which reflects the seriousness with which Parliament regards the offence and is one of the matters that I must take into account in sentencing you.

2I was told that you were 32 years old at the time of the offending and had been living in Australia on a spousal visa.  At 9.30 pm on 28 May 2018 members of Victoria Police attended a residential property in Ringwood which they believed was being used to cultivate cannabis.

3At approximately 9.50 pm they observed a silver Toyota Corolla sedan arrive at the address and park in the garage.  Shortly thereafter the police executed a search warrant.  The police knocked loudly on the front door several times and demanded entry.

4After receiving no response they forced entry.  They found plasterboard had been erected in the hallway to block entry into the rest of the house.  After pushing through the plasterboard they discovered numerous cannabis plants growing in a hydroponic set up.

5At the same time two police officers attended the back of a premises and knocked on the laundry door.  You answered the door and were placed under arrest.  Police found 84 mature and semi-mature cannabis plants.  The approximate total weight of the plants was 68.22 kilograms.

6The plants were located in four different rooms which had been converted to facilitate the hydroponic cultivation of cannabis.  This set up consisted of lamps and ballasts suspended from the ceiling and connected to timers, carbon filtered exhaust fans and a water pump system.

7An electrical bypass had also been installed in the roof space.  It is estimated that this equipment would have used approximately 408 kilowatts per hour each day.  You were taken into custody and interviewed.  You admitted to cultivating the cannabis plants for the past month, stating that you attended the premises every second day to water and fertilise the plants.

8You said that you were approached at St Albans Market by a man named Tu who offered you work.  This person drove you to the address and provided you with keys and instructions.  You were promised $10,000 at the completion of the job.

9You said that you knew when to harvest the plants as you had grown cannabis previously.  You said that you did not know Tu's phone number.  Mr Nguyen, your offending is most serious and warrants a punishment which is just in all the circumstances and your conduct must be firmly denounced.

10The quantity of the crop was significant being nearly two and a half times the threshold weight for commercial quantity in respect of cannabis.  Although you did not set the crop up you were involved in the cultivation of a crop of some sophistication and which also involved an electrical bypass which posed a danger to the public.

11Your role as a crop sitter and being actively involved in tending to the plants over the course of a month reveals that you were in important worker for those higher up in the chain, whoever those people might be.  I find your explanation as to how you came to be involved in this cultivation as somewhat spurious as it is difficult to accept that someone who you had never met before approached you at a market and seemingly happened to know that you had a background in cannabis cultivation.

12In any event, I put my suspicions aside and sentence you on the basis of the role that you had in this enterprise for a month motivated by financial gain.  Strong weight must attach to general deterrence in a bid to deter others from behaving as you have in respect of this most prevalent crime.

13You had a criminal history which dates back to 2012 with court appearances in the Magistrates' Court in 2014, 2015 and 2016.  You have previously been dealt with for cannabis possession and weapons offences and in May 2015 you were convicted of cultivating a narcotic plant, receiving a community corrections order for 18 months.

14On my calculation that order expired in late November 2017 so you commenced to commit the offence now before me about five months after the expiry of this order.  These matters are relevant to my assessment of your prospects of rehabilitation and the weight that I must give to specific deterrence.

15In your favour I allow for a significant discount in the sentence that you would otherwise receive because you entered a plea of guilty at an early stage.  In doing so you have saved the witnesses the time and trouble of giving evidence at committal and trial and you have saved the community the time and expense of contested proceedings.  Over and above this I allow for the fact that you have further facilitated justice by volunteering to police that you had been involved in the cultivation for one month in circumstances where as I understand the situation the prosecution would not have known this.

16Your counsel did not rely on insightful remorse as a factor in your case which was a wise decision.  While I am sure that you are very sorry that you were caught and are in serious trouble with all that this may well entail for the future you do not seem to have had any hesitation in becoming involved yet again in cannabis cultivation, this time on a far grander scale.

17I take into account your background.  You were born in Howlong in North Vietnam.  Your father was a middle ranked officer in the armed forces but was not well paid and your mother worked at a local market selling clothes.  You have a sister who lives in Vietnam and sells clothes and a younger brother who studies in Australia on an international student visa.

18You completed high school to the equivalent level of Year 12 and then studied boating at a technical college where you learnt how to run a boating business.  However, you moved to Australia to marry a woman who you had met online.  You and your wife had three children who are now ten, six and two years old.

19Initially you lived and worked in Mildura and then in 2009 you and your family moved to Melbourne.  Both in Mildura and Melbourne you could only obtain very low paid work as a fruit picker and later as a hairdresser on a casual basis, as well as a self-taught tattoo artist.  You went on to sell second hand goods at a market but you always found it very hard to make a living.

20At the time of the offending you were unemployed and had separated from your wife.  You were living with your brother although you saw your children almost daily as you and your wife remained on good terms.  You had been receiving a Newstart allowance but this was suspended from time to time as you were found not to have attended job seeker appointments and were not doing enough to obtain some work.

21You were in this poor financial and apparently unmotivated position when you became involved in the offending which is now before me.  I have factored in that this is your first time in custody and also that your time in gaol will be harsher as you have the worry of the strong prospect that you will be deported after you are released from gaol.

22In your case your close ties with your children will make this concern a very real and difficult one for you whilst you are in gaol.  I was told that your former wife takes your children to visit you whilst you have been in gaol.

23In view of your criminal history and the nature of the offending on the occasion before me, although also factoring in your facilitation of justice, I find that your prospects of rehabilitation are guardedly fair and I must place fairly solid weight on specific deterrence.

24When I speak of facilitation of justice I have also factored in your volunteering to police the length of time in which you had been involved in the cultivation.  Without that information they might not have known.  Mr Pyne conceded on your behalf that a sentence of imprisonment with a non-parole period was the only available sentence in your case and the prosecution agreed.

25I was provided with a table of sentences imposed in other cases of this type to give me some guidance in respect of current sentencing principles, but bearing in mind that this is but one factor that I must take into account in sentencing you.

26After considering all relevant matters in your case I have arrived at a sentence which in my view adequately addresses the weight that needs to be applied to all relevant sentencing principles and considerations.

27Would you please stand up?  You are convicted of the offence.  I make the disposal orders sought by the Crown and not opposed by you.  You are sentenced to three years' imprisonment and I direct that you serve two years’ imprisonment before becoming eligible for parole.

28If not for your pleas of guilty I would have sentenced you to five years' imprisonment with a non-parole period of four years’ imprisonment.  I declare that you have already served 165 days by way of pre-sentence detention.  Take a seat for a moment please.

29Is there anything arising from those remarks?

30MS FARRELL:  No, Your Honour.

31MR PYNE:  No from me, Your Honour.

32HER HONOUR:  Thank you.  I am just wondering if counsel for Mr Nguyen would like to have a word with him with the help of the interpreter before he is removed?

33MR PYNE:  Your Honour, I should indicate the interpreter has very kindly agreed to accompany me down to the cells so that won't be necessary.

34HER HONOUR:  Yes, thank you very much.  Very well, then if Mr Nguyen could be removed, thank you?

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