Director of Public Prosecutions v Director of Public Prosecutions v Nguyen and Anor
[2016] VCC 199
•23 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case nos. CR-15-10951 & CR-15-01988
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIEN NGUYEN and HIEN NGUYEN |
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JUDGE: | Judge Smith | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 23 February 2016 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2016] VCC 199 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentence
Catchwords: Cultivation of a narcotic plant
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Mahady (Plea) Ms N. Resstel‑Pires (Sentence) | The Office of Public Prosecutions |
| For Tien Nguyen | Ms J. Hughes | Revill & Papa |
| For Hien Nguyen | Ms P. Chaya | Victoria Legal Aid |
HIS HONOUR:
1 Tien Nguyen and Hien Nguyen, you have both pleaded guilty to one charge of cultivation of a narcotic plant, namely cannabis L, in a quantity not less than a commercial quantity contrary to 72A of the Drugs, Poisons and Controlled Substances Act 1981.
2 The circumstances of your respective offending are as follows: on 27 August 2015 police executed a search warrant at premises at 46 Collenso Street, Sunshine West. Having obtained a forced entry to the premises, both of you and another person were seen running towards the rear of the premises. You were taken into custody. In six rooms of the premises police found a sophisticated hydroponic set‑up consisting of light shades, globes, wiring, electrical transformers, charcoal filters, pots of soil and a watering system used to cultivate cannabis. A total of 134 cannabis plants were located. Their total weight was 50.51 kilograms. There was also a quantity of dried cannabis found in the premises weighing 10.87 kilograms. An electrical bypass system was in place. You were both arrested and taken to the Sunshine Police Station where you participated in records of interview.
3 Tien Nguyen, you stated that you had moved into the premises about a month earlier, that you had a met a person who asked you to water the plants, that after expenses you were paid $2000 per month, that you had cut, dried and bagged the cannabis with other people, and that you had no idea what the cannabis or marijuana plants were.
4 Hien Nguyen, you told police that you had been at the premises for four or five days only, that you had been told that they were cannabis plants upon your arrival at the premises, that you had helped feed the plants with chemicals, that you were told that after finishing the job you would be paid, and that you had cut the plants and dried them.
5 Both of you were remanded in custody on that date and have remained in custody since.
6 By way of background, Tien Nguyen, you are aged 32. You were born in rural Vietnam and educated until midway through your final year of school. Your father passed away at that time and you moved to central Vietnam in order to find work to help support your family. You worked as a fisherman for a number of years and were also engaged in importing clothes from Thailand. In early 2015 you came to Australia, then aged 31, on a tourist visa. That visa has expired. You worked for a time picking strawberries.
7 I was advised by your counsel that you had met a person who offered you work watering the plants in question. The work was less strenuous and better paid than the work that you had previously done.
8 Although you told police that you did not know that the plants were cannabis or marijuana, I have no doubt that you fully understood you were involved in an illegal operation of one sort or another at the premises.
9 Your counsel tendered documents relating to your mother, who still resides in Vietnam. I accept that she suffers from a severe illness. It is not clear exactly how long she has suffered from that condition or symptoms of it, but part of the material tendered indicates that it came to notice after a CT scan in November last year. I accept that she is unwell.
10 Hien Nguyen, you are currently aged 22. You were aged 21 at the time of this offence. You also were born in rural Vietnam. Your mother passed away when you were aged six. You were brought up by your father and two older sisters. You came from a relatively poor family. Nevertheless, you were educated and completed the equivalent of year 12. You had intended to attend university and study accountancy. However, your father died when you were 18, as a consequence of which you could no longer continue to study. You had to support yourself financially. You were advised of opportunities to work in Australia and you managed to save some $2000 in order to come here.
11 You arrived here in October 2013, on a student visa. At that time you were 19. You deferred studying in order to work. As a consequence, your student visa was cancelled. You worked in the South Gippsland region doing farm work, mainly strawberry picking, for more than 18 months. The availability of such work then decreased.
12 You also instructed your counsel that you were approached by a person who offered you money to mind a house for him for ten days. You were told you would be paid approximately $1500 for doing so. You told police that you only became aware that the property was a crop house once you arrived there. You had been at the property, as I stated before, for four or five days prior to the raid by police.
13 The purposes for which a court may impose a sentence in respect of an offence include a number of matters, namely, the denunciation of your offending conduct, and to deter the offender and others in the community from committing such offences in the future, and also includes the protection of the community. I am required to have regard to a number of matters, including the seriousness of your offences, your culpability for them, and your personal circumstances.
14 In sentencing both of you, I take into account each of the matters set out in s.5(2) of the Sentencing Act 1991. I consider that the offence for which you are both now before this court is a serious one. In both your cases your motivation for committing the offence in question was, I consider, purely greed. You did what you did because you were offered money to do it.
15 With respect to you, Tien Nguyen, your counsel conceded that an immediate term of imprisonment was appropriate in your case. However, your counsel submitted, and I accept, that there are a number of mitigating factors relevant to your sentence. These are, firstly, your early plea of guilty. Such plea is demonstrative of some remorse on your part. In addition, your plea has utilitarian benefit in that witnesses will not be required to give evidence at a trial, and there has been significant saving of court time and resources.
16 Secondly, you have already been in custody since 27 August 2015, some six months. As a consequence of various events occurring at the Metropolitan Remand Centre prior to you going there, you have generally been restricted to your cell for some 22 and even 23 hours per day. I accept that this has made your incarceration to date more onerous than it would otherwise have been.
17 Thirdly, your full and frank admissions to police following your arrest have in all likelihood led to your prosecution for offences relating to a longer period of time than would otherwise have been the case.
18 Fourthly, you have no prior convictions and are to be sentenced as a person who has previously been of good character.
19 Fifthly, your role in this offending cannot be assessed as going beyond that of a crop‑sitter. There is no suggestion that you were involved in any of the entrepreneurial parts of this operation or the design and installation of any of the equipment found.
20 Your knowledge of your mother's poor health is likely to make any period of incarceration more onerous for you than it would otherwise have been.
21 I have been provided with a number of sentencing snapshots in relation to this offence, together with a further report concerning major drug offences prepared by the Sentencing Advisory Council in March 2015. I have noted the content of those documents. I have also been referred to and note the sentencing remarks of other judges in this court dealing with other persons who can appropriately be described as crop‑sitters. I accept that your role did not involve any of the entrepreneurial or planning activities in connection with the crop. Nevertheless, the role of a crop‑sitter is a vital one in the growing of such a crop and in its preparation for sale. Without people such as you, the preparation and marketing of crops such as this could not occur.
22 Tien Nguyen, just stand up for a moment, please. Taking all of the circumstances into account, in relation to the charge of cultivating a commercial quantity of narcotic plants contrary to s.72A of the Drugs, Poisons and Controlled Substances Act 1981, you are convicted and sentenced to a term of imprisonment of 18 months. I direct that you serve a period of 15 months before being eligible for parole. I declare that 180 days of pre‑sentence detention, not including today, be reckoned as having been served under that sentence and I direct that a declaration to that effect be recorded on the records of this court.
23 Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to this charge I would have sentenced you to a total effective sentence of 30 months' imprisonment with a minimum non-parole period of 20 months. Thank you. You can be seated.
24 In relation to Hien Nguyen, your counsel has submitted, and I accept, that there are a number of matters that should go in mitigation of your sentence. Firstly, you are relatively young. You were only 21 years of age at the time of the offence, and as such, you are to be considered as a youthful offender. You appear to have good prospects of rehabilitation. You have no criminal history and have not to date used drugs yourself. You appear to have relatively strong family support in Vietnam. You have had a relatively good education. You appear to be an intelligent person. In the circumstances, I consider that your rehabilitation is an important sentencing principle.
25 I accept that you are properly described as a crop‑sitter and had no involvement in the planning or entrepreneurial aspects of the crop. As I have said in relation to your co‑accused, the role of a crop‑sitter is an essential part of the growing of such a crop as this. You played an integral role, even for a relatively short time, in the enterprise.
26 Fourthly, you made an early plea of guilty. You made substantial admissions in your record of interview.
27 Fifthly, I accept that by your early plea and admissions you have shown remorse for your conduct and regret as to the impact that your incarceration will have upon your family.
28 Further, I accept that you will face additional hardship in prison by virtue of your lack of English language skills and the isolation from your family. I accept for the purpose of this sentence that you did not enter Australia with the intention of committing this or any other drug offences.
29 In sentencing you to a slightly lesser term of imprisonment than your co‑accused, I have taken into account that your offending is to be taken as being for a period of four days approximately whereas his was over a period of a month or more.
30 Just stand up, please, Hien Nguyen. With respect to the charge of cultivating a commercial quantity of cannabis contrary to s.72A of the Drugs, Poisons and Controlled Substances Act 1981, you will be convicted and sentenced to a term of imprisonment of 15 months. I direct that you serve a period of 12 months before being eligible for parole. I declare that 180 days of pre‑sentence detention, not including today, will be reckoned as being served under that sentence and I direct that a declaration to that effect be recorded on the records of this court.
31 Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to this charge, I would have sentenced you to a total effective sentence of 24 months with a minimum non-parole period of 20 months. Sit down, please.
32 There were ancillary orders sought, as I recall, namely, an order under s.464ZF. This is a query to both counsel. Are orders that your respective clients undergo a forensic procedure for the taking of a sample made by consent?
33 MS HUGHES: Yes, Your Honour. I've spoken to Mr Nguyen about that.
34 HIS HONOUR: Ms Chia?
35 MS CHIA: No, by consent, Your Honour.
36 HIS HONOUR: Does that mean they're not by consent or you haven't sought instructions yet?
37 MS CHIA: No, as in they are by consent, Your Honour.
38 HIS HONOUR: They are by consent? Thank you.
39 Pursuant to s.464ZF(2) of the Crimes Act 1958, I order that both of you, Tien Nguyen and Hien Nguyen, undergo a forensic procedure for the taking of a scraping from your mouth or a blood sample, or both, in accordance with Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I am satisfied that the making of such an order is justified because of the seriousness of the circumstances of your offending and because each of you have consented to it being made. I should warn both of you that, notwithstanding your consent to the order relating to the taking of a sample from you, if you do not permit such a sample to be taken, police are entitled to use reasonable force to obtain such a sample or blood sample from you. Do you understand that, Tien Nguyen?
40 TIEN NGUYEN: (Through Interpreter) Yes.
41 HIS HONOUR: Do you understand that, Hien Nguyen?
42 HIEN NGUYEN: Yes, Your Honour.
43 HIS HONOUR: Thank you. Pursuant to s.781 of the Confiscation Act 1997, I will make disposal orders in respect of the various items seized at the premises, which items are set out in an Annexure A to the order that I shall now sign.
SUPPLEMENTARY REMARKS ON SENTENCE
44 Since handing down these two sentences, the provisions of section 11 of the Sentencing Act 1991 have come to my attention.
45 Section 11(3) provides that a non-parole period fixed under s11(1) or (2) must be at least 6 months less than the term of the sentence.
46 It follows that I did not have the power to fix non-parole periods of 15 months in the case of Tien Nguyen or 12 months in the case of Hien Nguyen. The non-parole period in each case must be at least months less than the head sentence.
47 Accordingly, I have reconsidered the sentences and have determined to amend both of them.
48 On the afternoon of Tuesday 23 February 2016 all three counsel involved were advised by my associate of the proposed amendments to these sentences and asked to advise me if they wished to be heard on any aspects of the amended sentenced. Counsel for each of the Crown, Tien Nguyen and Hien Nguyen have advised my associate that they do not wish to be heard in relation to the proposed amended sentence. Accordingly I proceeded to make the amendments in their absence on that date.
49 In the case of Tien Nguyen, he is convicted of the offence and sentenced to a term of imprisonment of 18 months with a minimum non-parole period of 12 months.
50 In the case of Hien Nguyen, she is convicted of the offence and sentenced to a term of imprisonment of 15 months with a minimum non-parole period of 9 months.
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