Director of Public Prosecutions v Duc Nguyen
[2013] VCC 371
•27 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00091
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUC NGUYEN |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 27 March 2013 | |
CASE MAY BE CITED AS: | DPP v Duc Nguyen | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 371 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms T. Saville | |
| For the Accused | Mr J. Milsom |
HER HONOUR:
1 Duc Tan Nguyen you have pleaded guilty to one charge of cultivating a narcotic plant, namely Cannabis L in a quantity that was not less than a commercial quantity applicable to that narcotic plant in contravention of s.72A of the Drugs Poisons and Controlled Substances Act 1981. The maximum penalty for this offence is 25 years imprisonment.
2 You were born on 8 September 1968 and are a Vietnamese citizen. You arrived in Australia on 14 July 2010 on a one month tourist visa which expired on 14 August 2010.
3 Ms Saville on behalf of the prosecution, tendered and read out in open court, a summary of the evidence against you. This is Exhibit 1. You have admitted the truth and accuracy of that summary, apart from the fact that you say that you were due to be paid $15,000 in total at the end of three months, but had in fact at the time of your arrest, only been paid $10,000. I sentence you on the facts as set out in that document.
4 The offence relates to the period between 19 June and 19 September 2012. On 17 September 2012 police obtained a search warrant pursuant to the Drugs Poisons and Controlled Substances Act in relation to 41 Springfield Road, Springvale South. Police attended at the premises on 19 September 2012 and executed the warrant. You were in the kitchen of the house. Police observed a sophisticated hydroponic cannabis crop in four rooms of the house.
5 Police located a total of 102 cannabis plants in various stages of growth and some cannabis in plastic bags. The total weight of the cannabis located at the premises was 55.29 kilograms. This is the basis of Charge 1.
6 On 19 September 2012 you were arrested and interviewed at the Dandenong Police Station with the assistance of a Vietnamese interpreter. You admitted to being hired nearly three months earlier to water the cannabis at the premises which you had been doing every two days for about a half an hour to one hour. You also admitted to harvesting every six weeks and to being paid at a rate of $5000 per month for your work.
7 For the purpose of the exercise of the sentencing discretion I accept that your role was simply that of watering the cannabis plants; that you were not living at the premises but that you were being paid to attend there every two days for about half an hour to an hour, to water the plants. I accept that you had only been doing this work for less than three months prior to your arrest.
8 Your background and personal circumstances were outlined by your counsel. You grew up in northern Vietnam and lived with your parents. You completed the equivalent of Year 12 at school and then joined the army. You served for a period of four years and trained as a nurse. After leaving the army you married and had two children. You worked as a nurse in a medical centre for a number of years. You divorced your wife some time prior to 2009.
9 In 2009 you went to New Zealand to visit your son who was working there as a chef. You stayed there for a few months and then came to Melbourne on a one month tourist visa to see friends. You liked it here and did not want to return to Vietnam because of the corruption and human rights abuses there. You knew it was illegal to overstay your visa, but did so. You stayed in Melbourne and worked as a fruit picker earning more than you had earned in Vietnam.
10 You began relationship with your current wife and married her in November 2011. She is an Australian citizen who has lived here for 20 years and is paying off a mortgage on a home in Dandenong. She works in sewing and packaging. You tried unsuccessfully to have children and you and your wife decided to embark on IVF treatment. Learning that a considerable sum of money would be required for the IVF treatment, you were motivated to obtain well paid work. You were recruited for the crop sitting activities over coffee with friends.
11 I note that you have overstayed your visa and are therefore an unlawful non-resident. I also note that your wife is currently seeking legal assistance on your behalf from a migration agent and that you intend to apply for a visa to remain in Australia.
12 Your counsel informed me that your application for a visa maybe adversely affected by the imposition of a term of imprisonment of 12 months or more. Under s.501(3) of the Migration Act 1958, the Minister may refuse to grant a visa to a person if the Minister reasonably suspects that the person does not pass the character test. Under s.501(6) of the Act, a person does not pass the character test among other things, if the person has a "substantial criminal record." Substantial criminal record is defined in sub-s.(7)(c) as where the person has been sentenced to a term of imprisonment of 12 months or more.
13 You have no prior convictions which is a significant factor weighing heavily in your favour. You have already spent 189 days in custody. You suffer from diabetes and gout and receive treatment for both of these conditions. You have lost ten kilograms while in custody.
14 Your mother knows that you are in gaol and is ashamed. She suffers from high blood pressure and is upset about your situation. Your wife has been distressed to have been without you in the past six months, particularly since her mother died three months ago. She is also upset that your incarceration has interrupted your IVF plans.
15 The Crown submitted that the appropriate sentencing range in the circumstances of your offending is two and a half to four years, with a non-parole period of one and a half to three years.
16 In written submissions filed after the plea hearing the prosecution referred to the Sentencing Advisory Council Sentencing Snapshot for cultivating a commercial quantity of narcotic. That document reveals that the median sentence for this offence was two years and three months. The average non-parole period was one year and four months. The most common sentence received for this offence was two years imprisonment with a non-parole period of one year. Partially suspended sentences were also given with the most common being a sentence of three years with two years suspended. Six out of 218 people received a sentence of less than one year imprisonment.
17 Your counsel submitted that the appropriate range is considerably less, but did not articulate any basis for this submission. He also submitted that you were likely to be deported if sentenced to a period of imprisonment of 12 months or more. I invited counsel to exchange and file any further submissions on this issue after the hearing.
18 Your counsel provided me with a number of comparative sentences and relied on the principles set out in the case of Guedon v R [2010] VSCA 1966. Your counsel relied on this case for the proposition that the likelihood of you being deported if sentenced to a term of imprisonment of 12 months or more, was a relevant sentencing consideration.
19 I have received brief written submissions from the prosecution to the effect that these principles only apply if there is evidence that the offender will be deported following release. In this case, the prosecution submitted, the evidence is only to the effect that a term of imprisonment of more than 12 months or of 12 months will, upon its expiry, enliven the discretion of the Minister for Immigration either to revoke an existing visa or to decline to renew one. Accordingly, deportation is properly to be viewed as a completely speculative possibility says the prosecution, and should therefore not play a role in the sentencing exercise.
20 As for the cases submitted by your counsel, I note that the cases of DPP v Razek and DPP v Williams involved the relatively unsophisticated set up for the cultivation of cannabis for personal use of the offenders on medical grounds. That the latter case was described by the sentencing judge as an exceptional one.
21 The case of R v Dowty is of little assistance because the accused there received an informer's discount after providing two statements to police and giving an undertaking to the court that he would give evidence at trial.
22 In the cases of DPP v Vo and DPP v Dim I note that both accused provided character references, that the offending was in the context of repaying gambling debts and that the ranges submitted by the Crown were lower than those submitted by the Crown in this case.
23 The charge is a very serious one. Illicit drugs pose an enormous problem in our community. You knew that cultivation of cannabis was wrong and that the crop was intended to be sold at substantial profit on the black market but you did it for the money. You were not a drug user.
24 Those involved in the illicit drug trade at any level must ordinarily expect severe punishment. In cases such as these principles of general deterrence, denunciation, protection of the community and just punishment are significant sentencing considerations.
25 However I accept that you were not involved in establishing the criminal venture at 41 Springfield Road, Springvale South and that you participated in the venture as a person watering the plants a few times a week at the house for only a relatively short time before your arrest. I note that the number of plants located at the premises was only just over the minimum required to meet the definition of commercial quantity.
26 Overall however, the weight of the cannabis recovered from the premises was over twice the minimum weight which is 25 kilograms, needed to qualify as a commercial quantity but considerably less than the weights involved in large commercial quantities which are usually over 250 kilograms.
27 I note that you cooperated fully with police upon your arrest and gave the police details of your employer, although you had very little knowledge of him. You are a non-English speaking unlawful non-resident. You say that you were seeking to make money to fund IVF treatment for your wife. I accept that because of your financial circumstances in the context of the proposed IVF treatment, you were vulnerable and easily recruited. I accept that your participation was toward the bottom end of the scale in this venture.
28 I note that you are very ashamed and remorseful about what you have done. I note that your motivation was not one of personal greed but rather a desire to start a family by funding your wife's participation in an IVF program.
29 You made full admissions when interviewed by police and pleaded guilty at an early time; that is at the committal mention. Your plea indicates your true remorse and warrants a substantial discount not only for this reason, but also because you are entitled to a statutory discount for that plea. I acknowledge that your plea is of social utility and that the community has been spared the cost and expense of a trial. No witnesses were required to give evidence against you.
30 I note that this is your first time in custody and that you are in a foreign prison and speak little English. I understand that you intend to apply for a visa to enable you to stay in Australia. Any application by you for a visa will have to be considered by the Minister for Immigration.
31 There is no evidence at this stage before me that deportation is inevitable after the completion of any term of imprisonment, whether it is for a term of 12 months or more. Rather, the only evidence is to the effect that the Minister for Immigration may exercise a discretion once you apply for a visa to either grant or refuse to grant you a visa. At this stage therefore, one can only speculate as to what your visa status will be in the future. For this reason I consider that the principles set out in Guedon do not apply to your case.
32 Doing the best I can to balance all of the above factors I will now sentence you for the offence. Would you please stand.
33 Duc Tan Nguyen for the offence of cultivating a commercial quantity of cannabis, Charge 1, you are convicted and sentenced to a term of imprisonment of 24 months. The total effective sentence is 24 months. I order that you serve a period of 12 months before becoming eligible for parole.
34 Pursuant to s.6AAA of the Sentencing Act and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea the sentence I would have imposed is as follows. Three years imprisonment with a non-parole period of two years. I will also direct that the sentence that would have been imposed but for the plea of guilty, be noted in the court records.
35 Under s.18(4) of the Sentencing Act 1991, I declare, subject to being corrected by counsel, that a period of 189 days of pre-sentence detention is to be reckoned as time served on the sentence that I have imposed upon you and deducted from the sentence you will serve.
36 I have also signed the disposal orders ordering that the items in the schedule be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
37 I also propose to make the forensic order sought. My reasons for making this order are that I am satisfied that in all the circumstances the making of the order is justified for the following reasons. The seriousness of the circumstances of the offending, the fact that the order is not opposed and that the granting of the order is in the public interest. I make the forensic order in the following terms. The court orders that pursuant to s.464ZF(2) of the Crimes Act 1958 that Duc Tan Nguyen undergo a forensic procedure for the taking of a scraping of the mouth and/or a blood sample in accordance with Sub-division 30(a) of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database.
38 I inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the Police Force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted.
39 I have signed the relevant orders. Are there any other matters?
40 MS SAVILLE: No Your Honour.
41 HER HONOUR: Very well. We will just prepare the final orders and provide them to you. While we are waiting did you want to approach Mr Nguyen?
42 MR MILSOM: If I may Your Honour.
43 HER HONOUR: Yes. Mr Milsom I am proposing to adjourn but that does not prevent you from having a few moments if you like in the body of the court, so that is up to you. I will just adjourn and leave you to it. Thank you.
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