Director of Public Prosecutions v Hoang Nguyen
[2012] VCC 1739
•7 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01773
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOANG THANH NGUYEN |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2012 | |
DATE OF SENTENCE: | 7 November 2012 | |
CASE MAY BE CITED AS: | DPP v Hoang Nguyen | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1739 | |
REASONS FOR SENTENCE
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Subject: Cultivation of cannabis
Catchwords: Cultivation of cannabis in a commercial quantity; sophisticated set–up
with two co-accused; total weight 48.84 kilograms with an estimated air-dried weight of 8.4 Kilograms; early plea of guilty; good prospects for rehabilitation; isolation in custody; uncertainty as to deportation; partly suspended sentence.
Sentence: Total effective sentence 2 years, 14 months to be suspended with
an operational period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr H. Thomas | Office of Public Prosecutions |
| For the Accused | Mr K. Oldis |
HER HONOUR:
1 Mr Nguyen you may remain seated for the moment. I will ask you to stand later. Hoang Thanh Nguyen, you have pleaded guilty to one charge of cultivation of narcotic plants in a commercial quantity and one charge of theft. You and two others, Vin Quang Dang and Cuong Van Doh set up the equipment for the cultivation of a cannabis crop in a house at 2559 Midland Highway, Lethbridge which was discovered by police on 1 March this year.
2 The police entered the house pursuant to a search warrant and made observations of five rooms being lined with plastic sheeting and the presence of extensive equipment, as well as a ventilation system in the process of being installed.
3 A few days later police installed an optical surveillance device at the property designed to record the coming and going of persons arriving there by car. The footage obtained revealed that you and the co-accused were visiting the property frequently with attendances by you being noted between March and June.
4 Three weeks later a further optical surveillance device was installed showing movement by persons inside the house. At the time of installation police observed a hydroponic system operating in four rooms of the house which contained cannabis plants.
5 Footage from the internal surveillance device showed you and others in the house on 28 April with activity by the co-accused Dang, consistent with harvesting of part of the crop. The following day you were observed to be carrying a large cannabis plant in the house.
6 You are the owner of a house at 94 Cloverdale Drive, Corio and at the time you were renting that house to the co-accused Doh. The police conducted physical surveillance on 3 May and saw you arrive at the house in Cloverdale Drive, collect Doh and then go to a business in Geelong where you looked at black irrigation hoses and fittings and purchased a roll of pipe and fittings. You then took Doh back to the house and dropped him there. Items connected with the cultivation of cannabis were later found at that house.
7 A week later you were seen at the house in Lethbridge carrying a large cannabis plant between rooms. Later that month you were observed carrying boxes inside the house and the following day you were observed doing various things connected with the cultivation.
8 Police executed a search warrant on 7 June 2012 and located a functioning hydroponic cannabis set-up with a reticulated watering system, high powered lighting suspended from the ceiling, chemicals, tools, documents in your name and an illegal bypass to the electricity distribution network. There were 66 cannabis plants in four of the rooms consisting of 33 plants close to maturity and 33 immature plants. There were 38 electrical transformers, 38 lights and shades with 400 watt globes and four charcoal filters.
9 The total weight of the plants when weighed that day, was 48.84 kilograms. The botanist estimated that the air-dried weight would be 8.4 kilograms.
10 You were arrested and interviewed by the police on 7 June 2012 during which you made a number of false denials, denying knowledge of the crop and stating you had only gone to the house to collect mail. However, you pleaded guilty at an early stage at the committal mention and you are entitled to a discount on your sentence for that plea because it has avoided the expense and inconvenience of a trial.
11 Whilst your denials in the record of interview do nothing to indicate any remorse you had for the offending, it is clear that you feel differently now and you have expressed your remorse to others. I also accept your plea of guilty as an indication of remorse.
12 The maximum penalty for cultivating a crop of a commercial quantity is 25 years imprisonment which reflects the serious nature of the crime, that is the production of a narcotic drug which causes a great deal of harm to the community. For theft the maximum penalty is ten years imprisonment and clearly that is also a serious matter.
13 You have spent 154 days in custody without applying for bail. Mr Oldis, who appeared on your behalf, urged me that in sentencing you I should limit the further time to be spent in custody as there is little need for specific deterrence. You are a person with no prior convictions and your upbringing was not such as to predispose you to criminal activity or antisocial behaviour. Your two older sisters came to court to support you and indeed they have been visiting you regularly in prison. Your elderly mother who lives in Vietnam, has not been told that you are facing this charge or that you are in prison.
14 As to your background, you are aged 38 and you came to Australia from Vietnam in 2000 when you were 24. You came here with your wife and lived here with her until 2004 when the marriage ended and that has been a matter of ongoing distress for you.
15 You completed your secondary schooling in Vietnam and had two years of further education in the field of chemistry, following which you worked in a chemical factory and later in the administration of a transport company. In Australia you have worked as a farm hand in market gardens and started a business of your own. But when that fell on hard times you unfortunately resorted to the cultivation of cannabis as a way to rectify your straitened financial circumstances.
16 The psychologist, Mr Michael Crewdson, assessed you recently and he diagnosed a pre-existing and untreated depressive condition and noted that your medical conditions of hypertension and diabetes type 2, had not been diagnosed until you were imprisoned. He thought these conditions, combined with the dysthymic disorder, may have contributed to your mental state at the time of the commission of these offences. That being said, it is not put that your criminal culpability is reduced, but that for a combination of reasons, the burden of imprisonment might weigh more heavily upon you than upon others.
17 I take into account that you are somewhat isolated having only your sisters to support and visit you in custody. I also take into account that your future in this country is uncertain because being a permanent resident, but not a citizen, you face the possibility of deportation once your sentence is completed. I understand that this uncertainty is weighing heavily upon you.
18 Mr Crewdson reports that you are very ashamed of your actions and that you feel unable to plan any future. You are still very affected by the break down of your marriage and you have not had any lasting relationship since then.
19 Your prospects for rehabilitation appear to be good given your background, and that suggests there is little need for the sentence I impose to focus on specific deterrence. General deterrence is of course a different matter, because those who might be inclined to engage in crime of this sort, must understand that very harsh penalties apply. That is why prison is appropriate and in determining the length of the sentence I must weigh the need for deterrence against your own personal circumstances with the mitigating factors to which I have referred.
20 Another matter to be considered in mitigation to some degree, is the prospect of the forfeiture of your property in Corio which you bought for $227,000 and your Iveco Van which you bought for $41,000. From what I have been able to discern from the prosecution case and your instructions to Mr Oldis, it would seem that they are both to be treated as tainted property and therefore liable to be forfeited. I am told that an application for forfeiture is to take place later this month.
21 A partly suspended sentence has the advantage of providing strong motivation for you not to offend again and your background suggests the court can have some confidence in your ability to abide that obligation. The prosecution sentencing range is that of a head sentence of two to three and a half years and a non-parole period of 12 to 18 months.
22 The quantity of cannabis places this case at the lower end of the range of seriousness for cultivation of a commercial crop, and accordingly taking into account all matters I have considered a wide range of sentencing options.
23 Having said that, it is appropriate to sentence you as follows: for Charge 1, cultivation of the crop, 20 months imprisonment; for Charge 2, theft of the electricity, eight months of which four months are to be served in cumulation upon the first sentence. That results in a total effective sentence of two years, of which 14 months are to be suspended. That leaves ten months for you to serve, of which you have already served just over five months. The operational period for the suspension is three years.
24 In relation to the suspended sentence, Mr Nguyen, I must tell you that once you are released and once that suspended sentence is operating, if you were to breach that suspended sentence in any way which might attract a prison sentence itself, then you would have breached the suspended sentence and you must come back to court with the very high likelihood that you would have to serve the rest of that time in prison. I declare that the 154 days spent in custody be declared as already served and I shall cause that to be noted on the court record.
25 Under s.6AAA of the Sentencing Act, if you had pleaded not guilty to these charges, I would have sentenced you to three years imprisonment with 18 months suspended.
26 The prosecution seeks an order under s.464ZF of the Crimes Act for a forensic sample of saliva to be obtained. I do not think you gave me any instructions about that did you Mr Oldis?
27 MR OLDIS: It is certainly not opposed, Your Honour.
28 HER HONOUR: Not opposed, thank you.
29 Mr Nguyen I must advise you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.
30 The prosecution also seeks an order for compensation of $1482.53 to be paid to Powercor Australia for loss of electricity. Once again Mr Oldis, do you have instructions about that?
31 MR OLDIS: Yes, that is by consent Your Honour.
32 HER HONOUR: I make that order by consent. Are there any matters that I have omitted Mr Thomas, first of all?
33 MR THOMAS: No, Your Honour.
34 HER HONOUR: Mr Oldis?
35 MR OLDIS: No Your Honour.
36 HER HONOUR: Thank you. Mr Nguyen may be taken down thank you.
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