Director of Public Prosecutions v Duc Thinh Nguyen and Giang Van Hung
[2018] VCC 1725
•29 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 18-01333
CR 18-01334
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUC THINH NGUYEN and GIANG VAN HUNG |
---
JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2018 | |
DATE OF SENTENCE: | 29 October 2018 | |
CASE MAY BE CITED AS: | DPP v Duc Thinh Nguyen and Giang Van Hung | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1725 | |
REASONS FOR SENTENCE
---
Subject: Cultivation of commercial quantity of narcotic plant
Cases Cited:Quy Nguyen v R [2017] VSCA 127; Ngoc Nguyen v The Queen [2017] VSCA 286.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Hogan (Plea) Ms K. Richter (Sentence) | John Cain Solicitor for Public Prosecutions |
| For the Accused | Mr A D Robertson (Plea) Mr R. Breisch (Sentence) | Challenge Legal |
HER HONOUR:
1 You, Duc Thinh Nguyen and Giang Van Hung, 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 Wednesday 28 March 2018, police attended at 25 Huntington Terrace in Wollert. Police forced open the front door of the house which had been barricaded from the inside with two large planks of wood across the door, held by metal brackets at each end.
3 Police entered the house and discovered the two of you in the front bedroom. You, Mr Hung, told police that you did not live at this address and that you lived at an address in Sunshine West. You were both arrested and taken to the Mill Park police station.
4 Police located four rooms with cannabis plants being hydroponically grown in various stages of maturity. The plants were growing under heated lamps and shrouds and were connected to an automatic watering system. The floor and walls of the room were covered with silver wrap insulation. The police located a total of 94 plants weighing 78.756 kilograms.
5
There were 40 plants in bedroom 2 weighing 71 grams. There were 17 plants in bedroom 3 weighing 185.7 grams. There were 18 plants in bedroom 4 weighing 37.75 kilograms. There were 19 plants in bedroom 5 weighing
40.75 kilograms.
6 Police also seized from the house numerous items associated with the cultivation of cannabis including fertiliser material, heat lamps, lamp shades, extraction fan timers, electronic transformers, power boards and carbon filters. Police located two pages of handwritten notes that contained instructions on how to cultivate cannabis.
7 Police located an electrical bypass in a wall cavity of the front bedroom. Police also located a CCTV system with a hard drive in a walk-in robe.
8 The prosecution conceded that the role of each of you in the operation was no greater than a crop sitter. In Nguyen v R,[1] 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.”
[1] [2017] VSCA 127, [36].
9
The prosecution submitted that the offending was serious, involving
78.756 kilograms of cannabis plants, which is three times the threshold for commercial quantity. There was a sophisticated hydroponic set up with extraction fans and light shrouds. An electrical bypass was found in the house. The plants themselves were at various stages of growth. There were some mature and some immature plants.
10 Having considered the whole of the evidence, I assess the role of each of you to be at the lower category for this type of offending.
11 As has been pointed out by your counsel, there are some mitigating factors. Each of you has pleaded guilty. You are each 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 each of you intimated your intention to plead guilty to these charges at the first available opportunity.
12 Both of you were introduced to the organisers of this crop by acquaintances but do not wish to nominate who those people were as you fear repercussions for yourselves and your families.
13 Both of you believed that you would receive 10 to 15 per cent of the value of the crop when it was harvested and sold. You have not received any payment for your activity nor do you expect to as you were arrested before this occurred.
14 Neither of you has any prior convictions. I sentence each of you as a person of previous good character.
15 Both of you wanted to reside in Australia but now expect to be deported at the end of any sentence imposed. Both of you know that deportation will lead to embarrassment for you and your family.
16 I have been told something of the personal history and circumstances of each of you.
Turning first to you, Duc Thinh Nguyen
17 You were born on 20 December 1997 and are 20 years old.
18 You are a Vietnamese national who entered Australia on a student visa, which expired on 9 August 2017.
19 You were studying English in Australia at the Cambridge Institute in Elizabeth Street in Sydney when your family in Vietnam ran into financial difficulties. You were unable to continue your course as a result of which your student visa was cancelled. You then worked as a waiter.
20 You have an aunt living in Sunshine but have not had a visitor whilst in custody for five months. Your family in Vietnam are aware of your predicament.
21 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 must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. 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.
22 On the other hand I do not apply those considerations with as much force as I might if you were older, for you are a young offender and must and will be sentenced as such. Your rehabilitation is a primary concern in fixing an appropriate sentence. I am satisfied that there are reasonable prospects for your rehabilitation.
23 The prosecutor referred to the table of cases annexed to the decision by the Court of Appeal in NgocNguyen v The Queen.[2] This 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.
[2] [2017] VSCA 286.
24 This is without doubt a serious offence. As a young offender, you are still eligible for a Youth Justice Centre order under s32 of the Sentencing Act. Section 3 of the Sentencing Act defines a young offender as being under the age of 21 at the time of sentencing.
25 As you are aware, I have sought and obtained a pre-sentence report in your case. I have done so with a view to making a Youth Justice Centre order under s32 of the Sentencing Act. The pre-sentence report dated 16 October 2018 (the pre-sentence report) states:
Mr Nguyen advised that he has been held at a number of locations whilst on remand including:
·Melbourne Assessment Prison three days
·Metropolitan Remand Centre four to five days
·Fulham Prison Approximately six months
Mr Nguyen advised that he is currently housed at Fulham Prison in Unit L7 and there are about one hundred prisoners in this particular unit. However, Mr Nguyen stated that he is housed in a cottage/pod with nine males of Vietnamese heritage. He stated that he likes it because they “cook their own food but there is one man who cooks really good”.
Mr Nguyen advised that he is able to communicate with the men in the cottage in his first language. He stated that they are able to cook and share many traditional Vietnamese meals together each day.
Mr Nguyen advised that this daily routine consists of rising at 8.30 am each morning, gym from 10 am for an hour, educational programs depending on the schedule and then lunch. Mr Nguyen advised that he attends English classes and an anger management course that is facilitated by “Vietnamese professionals”. He stated that the afternoon is spent in the unit either playing table tennis or cards. Mr Nguyen advised that the unit is locked down at 5 pm, however, the nine prisoners in the cottage have open door access to the living area. He advised that he usually goes to sleep between midnight and 1 am.
Mr Nguyen did not report any difficulties with being in remand so far with the exception of “feeling homesick”. He noted that he has finances placed into his account by his “uncle” each month and this allows him to call his family in Vietnam each morning. Mr Nguyen has not experienced any negative attention from other prisoners and stated that he had not had any reportable incidents in remand. Information received from the prison authorities noted two incidents. A smoking implement was found in a shared accommodation area and there was no specific evidence that it belonged to Mr Nguyen. A second incident involved Mr Nguyen accidentally hitting his head whilst playing table tennis. No injuries were reported and it was considered a minor accident.
Mr Nguyen reported a stable sleep routine, a healthy appetite and stable mood. He did not report any medical of [sic] mental health issues at the time of interview.
26 For the reasons outlined in the presentence report, the authors (Gene Bell and Robert Ross) concluded that “It is the view of the Department of Justice and Regulation (Youth Justice) that Mr Nguyen does not meet the criteria stipulated in the Act and is therefore considered to be a non-suitable candidate for a Youth Justice Centre Order.” In summary, the reasons stated were:
"He has limited capacity in English as a second language and this will significantly impact his ability to engage with both staff and sentenced young men in the Youth Justice Centre. There are also limited opportunities for Mr Nguyen to engage with others of Vietnamese heritage that will ultimately lead to a greater sense of social and cultural isolation whilst in custody. His mental health may be negatively impacted in this regard. Mr Nguyen will also be limited in his placement options in the Youth Justice Centre due to his immigration status and likely deportation. It is my view that Mr Nguyen’s prospects for rehabilitation and his overall mental health would be best served in his current placement at the Fulham Correctional Centre."
27 I am bound to and do take into account parity of sentence with your co-offender.
28 Mr Nguyen, would you please stand?
29 This is without doubt a serious offence. In all the circumstances, I have no alternative to the imposition of a custodial sentence. 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.
30 I declare pursuant to 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 2 years.
31 As prescribed by s 18(4) of the Sentencing Act I declare that the period of time that you have already spent in custody is 215 days. I direct that such be noted in the records of the court. Yes, you may take a seat. Thank you.
I turn then to you, Giang Van Hung
32 You were born on 24 January 1996 and are 22 years old. You are Duc Thinh Nguyen’s cousin.
33 You are a Vietnamese national who entered Australia on a student visa which expired on 23 May 2018. You were also studying English in Sydney but did not complete your course. You needed to extend your visa and pay your fees. You went to Melbourne, completed an English course and commenced a Motor Mechanic’s course which you did not enjoy. You then completed a six-month course in Leadership in Management. You commenced a Commercial Cooking class just weeks before you were arrested.
34 You have one aunt in Australia who has visited you once in five months.
35 Your father was originally paying your fees but stopped doing so at the beginning of 2018 as he fell ill with lung disease. You obtained part-time work as a handyman and washing cars. Your family in Vietnam are unaware of your predicament and you do not want them to know about it.
36 You are only 22 years old and are lonely in custody.
37 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 must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
38 On the other hand I do not apply those considerations with as much force as I might if you were older, for you are a youthful offender and must and will be sentenced as such. Your rehabilitation is a primary concern in fixing an appropriate sentence. I am satisfied that there are reasonable prospects for your rehabilitation.
39 This is without doubt a serious offence. In all the circumstances, I have no alternative to the imposition of a custodial sentence. Would you please stand? Thank you.
40 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. I am bound and do take into account parity of sentence with your co-offender.
41 As prescribed by s18(4) of the Sentencing Act, I declare that the period of time that you have already spent in custody is - - -
42 MS RICHTER: Two hundred and fifteen - sorry, 215 days, Your Honour.
43 HER HONOUR: And that is agreed?
44 MR BREISCH: Yes, Your Honour.
45 HER HONOUR: Thank you. is 215 days. I direct that such be noted in the records of the court.
46 I declare pursuant to s6AAA 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.
47 You may both stand.
48 I make an order pursuant to s464ZF that each of you provide a sample of your saliva. I am required by law to say to you that those charged with taking that sample are authorised to use such force as may be necessary to effect the taking of the sample.
49 Lastly, I order that the property referred to in the schedule to the disposal orders which I have signed this day be forfeited 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.
50 All right. Yes, I hand down those orders. Are there any further matters?
51 MS RICHTER: No, Your Honour.
52 HER HONOUR: Thank you. Yes, could you please take down the prisoners into custody? Yes, thank you. I will leave the Bench.
- - -
2
0