Director of Public Prosecutions v Duong
[2013] VCC 457
•22 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01938/39
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOUNG DUONG DUNG CHEN NGUYEN |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 February 2013 | |
DATE OF SENTENCE: | 22 March 2013 | |
CASE MAY BE CITED AS: | DPP v Duong | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 457 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr H Tighe | OPP |
| For the Accused | Mr D Cronin (Duong) Mr D Glynn (Nguyen) | Emma Turnbull & Associates James Dowsley & Associates |
HIS HONOUR:
1 Dung Chen Nguyen and Houng Anh Duong, you have each pleaded guilty to one charge of cultivation of cannabis, over a three month period between September and December 2011, and one of theft of electricity, over the same period.
2
On 15 December 2011, a search warrant was executed at a house in
3 Bickley Avenue, Thomastown. Three rooms were being used or had the appearance of having recently been used for the hydroponic cultivation of cannabis.
3 One room contained recently harvested cannabis, which was spread out to dry. In the same room there were pots, containing the roots and stems of plants. It appeared that the drying cannabis had just been harvested from those pots.
4 Another room contained immature plants, growing in pots, with an irrigation and lighting system in place for them.
5 Another room contained cannabis seedlings. They were growing under hydroponic lights and there was some hydroponic equipment in the house, which appeared to have been recently dismantled.
6 In total, 95 cannabis plants, weighing 29.82 kilograms was found. That weight represents both the mature plants, which were drying and the immature ones and the seedlings.
7 Further investigations showed the electricity had been diverted. A bypass was located in the wall cavity of the lounge room. At the time of the police raid, the bypass had been installed and operating for three months. The value of the electricity bypassed and stolen from True Energy, over that three month period, was $5,278.96.
8 On 7 June 2011, three months before the electricity began to be diverted, and three months before the start of the period that you have pleaded guilty to for cultivating the cannabis, the two of you had met with the owner of the house in Bickley Avenue, Thomastown. You, Mr Nguyen, had signed a 12 month residential tenancy agreement with her and she was given the impression that you were going to live there.
9 A day after the raid on the house, police executed a search warrant on a house at 60 Alamein Road in West Heidelberg. That was the house where the two of you were living. Mail addressed to the grow house at Bickley Avenue was found there.
10 Each of you was arrested on the day of the raid and each of you made a "no comment" interview. Despite the "no comment" interviews, once the hand-up brief was served and the botanist's evidence was provided, each of you indicated your preparedness to plead guilty to the charges now before me. I accept this as a plea of guilty at an early stage. You are each entitled to the benefit of that.
11
Each of you accept the Crown summary. Each of you accept your motivation for involvement was financial gain. It was but on behalf of you, Mr Duong, that you were drawn into this by the older and more experienced co-offender,
Mr Nguyen. Mr Cronin told me that you instructed you did not know how to divert the electricity or how to cultivate cannabis, but you had simply followed instructions given to you by Mr Nguyen.
12 It was put on behalf of Mr Nguyen, by Mr Glynn, that there was no evidentiary basis for distinguishing between roles and that you, Mr Nguyen, accept responsibility for your actions, as they have been shown to be in the depositions. Mr Glynn advised that on his instructions, he had no submissions to put in relation to the roles played by each of you or how you acquired the necessary knowledge to establish the grow house and cultivate the plants.
13 Nothing was put to indicate that either of you were mere crop sitters. Nothing was put to indicate that you instructed you were acting at the behest of anybody else and it was frankly acknowledged, your motivation was for financial gain, for paying your tuition fees and funding your lifestyles.
14 There is no evidentiary support for a finding that either of you had any greater knowledge or involvement than the other. You each made those "no comment" interviews to which I have referred and neither of you provided any further information or assistance to the police about your roles or the involvement of the other or anybody else.
15 I am not prepared to act on unsupported Bar table assertions of a reduced role by you, Mr Duong. Whether you had no knowledge of how to do it and only acted under instructions or not, is not to the point. Your pleas of guilty indicate that you were a willing participant, knowingly undertaking the task of cultivating the cannabis and using the diverted electricity to make it cheaper and to assist in avoiding detection.
16 It is clear that sentencing considerations of denunciation, general deterrence and punishment are significant here. There are good reasons why cannabis cultivation is illegal. It can no longer be argued that cannabis is a harmless drug. Those who seek to profit from cultivating drugs must understand that when detected, they will be punished, and punished in a way that should serve as a deterrent to others who think it is an easy way to make money or to those who have no qualms about participating in a pernicious trade which causes untold harm to those affected by it.
17 Dealing then with matters personal to each of you and the matters that were relied on in mitigation. You, Mr Nguyen, are now 28. You were born in Vietnam and came to Australia five years before the offending, in 2007, on a student visa. You, Mr Duong, are now 21. You too were born in Vietnam. You came to Australia in October 2010, about a year before the offending began. You too came here on a student visa.
18 Each of you had been living in shared accommodation in student houses and not long after you arrived, Mr Duong, you met Mr Nguyen and the two of you became friendly. You ended up sharing a house together and with some other students and it was during this time that you were housemates that you embarked upon the cultivation venture.
19 It was put that each of you was young or relatively young and vulnerable because you arrived here as young people on student visas, without family support. For each of you, you have been here alone. You parents and siblings have remained in Vietnam. It was put that each of you was under financial pressure because your families in Vietnam were struggling to support you adequately whilst you were studying here and that you were unable to make good the shortfall with the money that you could earn, limited to 20 hours of part-time work a week.
20 A struggle to support yourselves on your family allowance or because income from part-time work is insufficient, is no excuse for engaging in the cultivation of cannabis for gain and I do not consider that to be a mitigating factor. I was told each of you had come to Australia with high hopes of obtaining Australian residency and then citizenship and of making lives for yourselves here. I was told that each of your families had made sacrifices to send you to Australia and support you in your studies and I was told that each of you was conscious that you had failed to live up to your family's expectations and ashamed that you had let them down. I accept that in respect of each of you.
21 If you have dashed your prospects of obtaining Australian residency or citizenship, and if you have disappointed your family's expectations, you must accept that it is entirely through your own actions that that has come about. The dashing of prospects and the disappointing family expectations, I do not consider to be a mitigating feature.
22 I accept that each of you is sorry for the position you find yourself in, regretful that you may have adversely affected your prospects of remaining here and regretful that your hopes and those of your parents and extended families may have been dashed.
23 You, Mr Duong, gave evidence on the plea. I accept, having heard you, that you are genuinely sorry for what you have done. So far as you, Mr Nguyen, are concerned, I accept that you are sorry for the consequences that have been visited upon you, however there is no evidence of anything other than a pragmatic acceptance of the consequences of being caught.
24 I accept that each of you must have been of good character in Vietnam, in order to obtain your student visas and the additional documentation provided on your behalf, Mr Nguyen, confirms that.
25 You, Mr Nguyen, have one previous court appearance for an abalone fishing offence. Save to say it means you do not come before the court as a first offender, I do not consider it to have any relevance to the assessment to the sentencing today.
26 You, Mr Duong, have no previous convictions.
27 Each of you spent 14 days on remand, immediately after being charged and before being released on bail. I accept that that experience of the 14 days on remand was a sobering and frightening one for each of you. I am told and I accept that each of you has complied with your bail conditions and neither of you has any pending charges. In other words, you have kept out of trouble since release. That, of course, counts in your favour.
28 However, I do not accept that you did not appreciate the seriousness of your conduct, until you were arrested and remanded. Although I do accept that the experience of remand has brought home to you, in a way you were perhaps prepared to try and ignore the seriousness of the offending, and I accept that it carries considerable weight, when I consider the need to deter you personally from offending in like manner again. I consider, therefore, that the weight to be given to specific deterrence for each of you is relatively low, because of these matters I have just referred to.
29 Mr Nguyen, you now have a family of your own here. Since your arrival you have formed a relationship with a young woman and just days before your plea, she gave birth to a son. She is at court today to support you, along with the child.
30 You live with your partner and the woman who has been described as her mother. Although not biologically her mother, it appears that she stood in the role of mother to your partner throughout much of her life. Ms Hien, her mother, has provided you with somewhere to live and also with employment. You are assisting her in her manicuring business, and when she gave evidence before me, said she regarded herself as the closest you had to a parent figure, here in Australia.
31 In her evidence, she spoke in very positive terms of your relationship with your partner, of your devotion to her and your care for her and the newborn baby. She spoke well of you too, in your work for her in her business. She said you were a hard worker, who carried out your tasks properly and as directed, and she has promised to continue to support you and your partner, both in providing a home and employment. I accept, therefore, that means you have family support here and what is clearly incentives to remain out of trouble in the future.
32 Since being charged, you Mr Duong have been taken under the wing of the Carmody family. Through them you now have stable employment and contact with a family who is providing you with adult guidance and inclusion in their family and social life. Mrs Carmody came to court to support you and gave evidence on your behalf. She described you as shy, polite and sorry for what you had done. She gave evidence about the work you were doing in your apprenticeship and your studies, in the family business and gave evidence of the continued support, both in employment and family support and supervision that they are prepared to offer you. I accept that you too have significant support now and an incentive to remain out of trouble.
33 So far as your studies are concerned, you Mr Nguyen had enrolled in various English, accountancy and business courses since 2009. I was initially told that you had done courses at Stott's College, up until late 2010 or 2011. That you had then done a Certificate 4 Diploma of Business and that you were due to graduate with a Diploma of Accountancy in June 2013. I was also told that you were enrolled in a Bachelor's degree at Carrick Institute, commencing on 15 July this year. Some certificates of enrolment were produced but initially nothing was provided to indicate that you had completed any of the courses in which you had enrolled.
34 After some enquiry, I was told that you undertook but did not complete all of the courses at Stott's, and that although you undertook the Certificate 4 course, between July 2011 and August 2012, you had not submitted all the work required to qualify for your certificate. On the material now produced to me it looks as if that has been rectified and your Certificate 4 has been issued. However the Diploma of Accounting course that you had enrolled for, for the 2012/2013 year, was not undertaken by you, you had deferred that, but I was told that you intend to do the course for which you are enrolled at the Carrick Institute, due to commence in July of this year.
35 You, Mr Duong, seem to have had a better or more consistent record in relation to your studies and pursuing work than Mr Nguyen. You successfully completed an intensive English course and a Pathway to study in Australia course and you are now engaged, full-time, in an apprenticeship with Exhaust Bros, as I understand it under the supervision of Mr Carmody. That has both a work and a study component and I am told it is your intention that you will undertake the study part of it, whilst working for Exhaust Bros, either at their Geelong store or another one. Mrs Carmody gave evidence that the company would support you in doing your studies as well as your work.
36
Although, Mr Nguyen, you do not seem to have been as diligent in pursuit of your studies as Mr Duong, each of you, I accept, has good prospects for and an incentive to remain offence free in Australia and to engage in your studies and successfully complete them, in order to maximise your prospects of remaining here under your visas. And I have identified already the materials put before me, that I accept that support all of that. Because of the difference I have identified in the approach to studies, I give that more weight for you,
Mr Duong than I do for you, Mr Nguyen, but it still gets weight for you,
Mr Nguyen. I am not discounting it.
37
The other distinguishing feature between you is your age and the length of time each of you have been in Australia at the time of the offending. You,
Mr Nguyen are 28 and you had been in this country for five years. You are properly regarded as an adult. You are seven years older than Mr Duong, a significant gap between 21 and 28, or 19 and 26 as it was at the time of the offending. You were older, more mature and more attuned to the ways of life here, having spent five years here, than was Mr Duong.
38 Mr Duong, by contrast, you are properly to be regarded as a young offender. You were 19 at the commencement of the offending period and had been in Australia for less than a year. The significance of living in a different country, without family support is greater for you, in my view, than it is for Mr Nguyen. I accept the submission that you would be properly regarded as a young and vulnerable person in the prison system.
39 It was acknowledged on behalf of each of you that no sentence, other than one of imprisonment was appropriate. The submissions put on behalf of each of you was that the sentence should be fully suspended. I do not consider that a fully suspended sentence is appropriate, having regard to the material before me, as to your participation in the cultivation of the crop and the frankly acknowledged motive of financial gain.
40 I do, however, consider it appropriate to impose partially suspended sentences on each of you. I consider that the head sentence should be the same for each of you, but that the period required to be served before the balance is suspended, should be different because of the distinguishing features I have identified between the two of you.
41 Mr Nguyen, can you please stand?
42 On Charge 1 of cultivate cannabis, you are sentenced to be imprisoned for a period of two years and six months. On Charge 2 of theft of electricity, you are sentenced to be imprisoned for a period of three months, and I direct that one month of that be served cumulatively upon the sentence on Charge 1. That makes a total effective sentence of two years and seven months. I suspend two years and three months of that, for a period of two years and three months. You have spent 14 days in pre-sentence detention and I direct that that be counted and reckoned as part of the sentence, already served. That means you are required to serve a term of four months immediately, but that is from today, already reduced by the 14 days that you have already served.
43 I must warn you that if you commit any offence, punishable by imprisonment, during the period of the suspended sentence, that Parliament directs that you must be brought back before this court and most likely before me and that that sentence be restored, that is that you would be required to serve the balance of two years and three months, unless you can establish exceptional circumstances arising since today.
44 I have been asked to make Ancillary Orders for disposal of items found at the house and for retention of the forensic sample taken from you. I was told that you do not oppose the making of either of those Orders and I propose to make them in the terms sought.
45 Mr Tighe, they are the only Orders, aren't they, in respect of Mr Nguyen?
46 MR TIGHE: Yes, Your Honour.
47 HER HONOUR: Yes, thank you. Could you please remove Mr Nguyen.
48 Mr Duong, can you now stand?
49
On Charge 1 of cultivation of cannabis, you are sentenced to be imprisoned for a period of two years and six months. On Charge 2 of theft of electricity, you are sentenced to be imprisoned for a period of three months, and I direct that one month of that be served cumulatively upon the sentence on
Charge 1. That means a total effective sentence of two years and seven months. I propose to suspend two years, six months and 14 days of that sentence, and the period for which it is suspended is the same, that is, two years, six months and 14 days. That means you are required to serve
14 days imprisonment.
50 I declare that you have spent 14 days in pre-sentence detention and direct that that be counted and reckoned as the sentence already served. That means that you have already served the term of imprisonment that I require to be immediately served and the balance of your sentence is suspended.
51 I must warn you too that if you commit any offence punishable by imprisonment, during the period that your sentence is suspended, that Parliament requires that you be brought back before this court and probably before me and that the sentence be restored, that is that you are required to serve the balance of it, unless you can establish that exceptional circumstances have arisen since the date of passing of this sentence.
52 Do you understand that?
53 I have also been asked to make Ancillary Orders for you, for retention of the forensic sample taken from you, for disposal and for forfeiture. Again, those Orders were either consented to on your behalf or were not opposed and I propose to make them in the terms sought.
54 You can take a seat while I just make sure I have covered everything that needs to be covered.
55 Do the Orders that I have announced, reflect what I said I intended to do?
56 My Associate tells me, if my intention is that the only time required to be served under the suspended sentence for Mr Duong is the 14 days he has already served, then the period that should be suspended is two years, six months and 16 days.
57 MR TIGHE: Yes, Your Honour.
58 HIS HONOUR: All right, well let me correct that then. So the period that is suspended is two years, six months and 16 days. And it is suspended for two years, six months and 16 days.
59 MR TIGHE: Yes, Your Honour. There is just 6AAA declarations to be made.
60 HER HONOUR: Thank you. Thanks Mr Tighe.
61 MR TIGHE: I am sorry, for Mr Nguyen as well. It just occurred to me as Your Honour was pronouncing sentence for Mr Duong that Mr Nguyen didn't receive the benefit of an indication of what the sentence would have been had he not pleaded guilty.
62 HER HONOUR: Thank you. Thank you for that. If I make the 6AAA pronouncements now, without bringing Mr Nguyen back into court, I do not want to do that unless I have to, because it is obviously not a good time to bring him back.
63 MR TIGHE: No.
64 HER HONOUR: Mr Milsom, do you have time to go down to the cells and explain 6AAA declaration?
65 MR MILSOM: Yes, Your Honour, of course.
66 HER HONOUR: Thank you.
67 MR TIGHE: I am content with that course, Your Honour.
68
HER HONOUR: Thanks Mr Tighe. Pursuant to s.6AAA of the Sentencing Act, I declare that but for the pleas of guilty, I would have imposed a total effective sentence of four years and two months and I would have fixed a non- parole period in respect of Mr Nguyen, of two years and in respect of
Mr Duong of 18 months.
69 Any further Orders that are required to be made.
70 MR TIGHE: No, thank you, Your Honour.
71 HER HONOUR: All right, thank you, adjourn.
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