Director of Public Prosecutions v Nga Nguyen
[2014] VCC 2066
•3 December 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02015
Indictment D11851525.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NGA THANH THI NGUYEN |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 November 2014 | |
DATE OF SENTENCE: | 3 December 2014 | |
CASE MAY BE CITED AS: | DPP v Nga Nguyen | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2066 | |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: Cultivate Cannabis Commercial Quantity – Theft of Electricity
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Plea) (Sentence) | Mr R Hamill Ms N. Schmitz | Solicitor for Office Public Prosecutions |
| For the Accused (Plea) (Sentence) | Mr D Brustman QC Mr S. Andrianakis | Stephen Andrianakis & Associates |
HIS HONOUR:
1 Nga Nguyen, you have pleaded guilty to one charge of cultivating a drug of dependence, namely cannabis L, in a quantity not less than the commercial quantity applicable to that narcotic plant, contrary to s72A of the Drugs Poisons and Controlled Substances Act 1981. You have also pleaded guilty to one charge of theft of electricity contrary to s74 of the Crimes Act 1958.
2 A summary of the circumstances of your offence is as follows. In June 2013, you were the registered proprietor of a house and land situated 10 Tussock Crescent, Sydenham. Police suspected that those premises were being used to cultivate cannabis.
3 On 18 June 2010, you drove from premises in Delahey and collected your two children from their primary school. You then proceeded to the Tussock Crescent premises. You entered the premises with your children. About 30 minutes later, you left the premises and shortly afterwards were intercepted by police. You were taken back to the premises. On entering, pursuant to a warrant, it was immediately apparent that the premises were being used for purposes of commercial cultivation of cannabis.
4 A number of photographs were tendered. In total, 143 cannabis plants of varying heights and weights were located. These had a combined total weight of 23.28 kilograms. A further quantity of 828 grams of dried cannabis was located. The oldest plants found to be growing at that time were between four to six weeks in maturity.
5 Toothbrushes in the main bathroom of the premises were later analysed. Your DNA was found to be on both of them.
6 An illegal electricity bypass had been cut into the mains electricity servicing the residence. The electricity supplier, AGL, has calculated the cost of electricity stolen over the period of time the cannabis was growing in the residence to be $8,746.51. The name of the customer to whom AGL had agreed to supply electricity was yourself.
7 In due course, you made a “no comment” interview and pleaded not guilty to these charges and one other.
8 On your behalf it was submitted that although you were clearly complicit in this cannabis growing operation, it was almost wholly the enterprise of another person.
9 I was told by Senior Counsel appearing for you that you had, at that time, significant debts arising from a period where Centrelink payments of about $87,000 had been overpaid to you. The overpayment arose out of non-disclosure on your part that you owned this particular property. You had been in receipt of Centrelink payments for the previous five years.
10 I was told that your mother, a resident of Vietnam, had sent some $40,000 to you to assist with the repayments that you had been ordered to make. You were apparently paying the balance by way of instalments and that your mother was generally funding these. At some stage, your mother ceased making these payments and you could not afford the payments due.
11 You met a man at the Casino in Melbourne who advised you that he needed a house in which to grow cannabis. You allowed him access to your house for that purpose and he agreed to pay to you the sum of $3,000 per month, which was about the amount that you owed Centrelink on a monthly basis.
12 It was submitted that this was entirely an operation controlled by that man and you had little to do with it. Nevertheless, I was told that you did attend to watering of the plants over some weeks. In any event, there seems little doubt that you well knew what you were doing and that it was illegal. The finding of DNA on toothbrushes at the premises would indicate that you were not merely visiting from time to time but that you were, at least on occasions, staying there.
13 It was submitted that notwithstanding the arrangement that you had previously made, you had not actually received any moneys at the time of your arrest. Since that time, the man in question has severed all contact with you. Your counsel has indicated that you would be prepared to assist police, if asked, concerning the identification of the man in question.
14 Your counsel also advised me that in addition to the Centrelink debt, you had also been indebted to a person who might be described as a loan shark and which loan involved a high interest rate. I was told that you had been threatened if you did not pay that debt, harm would come to your children. On that basis, your mother paid the loan shark out in full.
15 As a consequence of your offending, your house at Tussock Street has been forfeited. I was advised that you had purchased the home for approximately $340,000 in 2008 on an interest only loan. Prior to that , you had sold a property in Braybrook for $275,000 which, after repaying a mortgage loan, left you with about $100,000 clear. You purchased a BMW motor vehicle with those proceeds. You then borrowed what appears to be most of the purchase price of the Tussock Crescent home.
16 I was instructed that the interest only loan currently stands at approximately $325,000. There were no submissions made to me as to the current value of the home. It appears to me that you are likely to have little equity in it but, whatever that equity is, you will lose.
17 You were born in August 1979 in the northern part of Vietnam. You are currently aged 35. You attended school until the age of 18. Soon after, you came to Sydney to study English. Your parents paid for this.
18 You married in 2000 and came to Melbourne. You separated soon afterwards and divorced. You have one child from that marriage, now aged approximately twelve. She is still at primary school. You entered into a new relationship with Tran Dinh in 2003. You separated from him in 2005. You have a son from that relationship now aged 9.
19 I was told that you have sole care of both children and that you receive no maintenance from the father of either child.
20 In terms of employment, you were employed as a chicken processor for about three years following your arrival in Melbourne. Since, you have worked at times as a part time waitress. You worked between three and five days per week and earned between $200 and $500 per week after tax. You received some financial assistance from you mother.
21 You have no relevant criminal history.
22 I was advised that you have no drug problems and there are no offences since the current offences were committed and none pending.
23 A psychologist, Carla Lechner, saw you on in August, October and most recently in November 2014. Her report dated 10 November was tendered. Ms Lechner considered that you were currently suffering from a depressed mood, which is not surprising given the circumstances in which you now find yourself. She considered that you would benefit from some counselling. She states that you were “refreshingly frank” in admitting that you committed these offences to obtain quick money to repay debt without thinking about the consequences. She considered that you were currently exhibiting symptoms of adjustment disorder with depression reactive to your pending Court hearing. You were concerned about who would care for your children in the event of an immediate term of imprisonment.
24 Your eldest child apparently has no involvement with her father. Ms Lechner was apparently told by you that your son’s father had been physically abusive towards you and that you have been effectively a single mother with no support network or family. There was no other reference to your son’s father in her report.
25 Ms Lechner considered that you presented as a “low risk” of reoffending.
26 At your plea hearing, evidence was called from Mr Duong Hoang. His evidence was that he had known you for three years and saw you, on average, every week or two. He had met you whilst playing at a badminton club at Altona. His evidence was that you were a good person and close to your children. He said he was aware of your gambling problem and observed that you were stressed but when he heard of the charges that you faced, he was very surprised. He knew nothing of the cultivation of cannabis at your home until told by your lawyer.
27 I was told by your counsel that you had made an arrangement for your children to live with another couple who themselves had two children. At the time, he told me he had no other instructions concerning those care arrangements.
28 On a date after the plea hearing, I received two affidavits, one sworn by Naomi Margaret Schmitz on behalf of the DPP on 25 November 2014 and another sworn by Stephen Andrianakis sworn 30 November 2014 concerning arrangements for the care of your children and also concerning the nature of your relationship with Duong Hoang.
29 Having read those affidavits, I am of the view that satisfactory arrangements have been made for the care of your children in the event that you were incarcerated. Although such incarceration would undoubtedly be distressing for your children and for you, I am not of the view that, in the event of your incarceration, the effect on your children could be described as exceptional circumstances. I note that both children have resided with the father of your younger child since 18 November 2014 and there is nothing to indicate that arrangement will not continue or is an unsatisfactory one. Further I note that you have arranged with friends to care for the children in the event that he is unable to do so. In the circumstances, I do not consider that your sentence should be discounted as a consequence of any hardship to your family.
30 However I do take into account in mitigation of your sentence that the situation as regards your children will, in all likelihood, cause you anxiety if you are incarcerated for any length of time. It remains the case however that you embarked upon these offences well knowing that you had 2 children who were in your care. I further note that you were observed by police taking your children to the premises in question and, in effect, exposing them to your criminal conduct.
31 I accept that Mr Hoang is not in a de facto relationship with you. Had I been satisfied that this was the case I would not have hesitated to refer his evidence to the OPP for further investigation.
32 Counsel for the DPP advised me that notwithstanding your counsel’s submission that you were a relatively small bit player in this operation, police inquiries had not discovered evidence of the involvement of any other person in the offence. I consider that you were far more than a crop sitter in that you were the owner of the house, at the very least you provided your house for the express purpose of growing cannabis, and that you had attended at the premises in order to water the plants. Your activities, on any view, were carried out for financial gain of one sort or another.
33 I have taken into account in determining your sentence the matters referred to in s5 of the Sentencing Act which I shall not set out in full here. It suffices to say that I consider that the most important of those matters are:
(a)the need to denounce your conduct;
(b)special deterrence – that is, to deter your from offending in this manner again;
(c)general deterrence – that is, to deter others in the community from offending as you have done; and
(d)current sentencing practices.
34 I am conscious that you have no prior convictions and that you have resided in Australia since about 1997.
35 Nevertheless your offence in cultivating cannabis in a commercial quantity is a serious one. Your role in providing the crop house and attending there to water the plants was an essential one for the project to commence and to succeed. I do not consider it could be described as a minor role.
36 Your plea of guilty was only made on the day of your scheduled trial. Nevertheless, it does have some utilitarian value in that witness will not be further inconvenienced and Court resources will not be wasted.
37 I am not satisfied that your belated offer to co-operate with police (made only on the occasion of your plea) and well after the date of your scheduled trial, is likely to be of any value to authorities.
38 I have taken into account that, as a consequence of the seizure of the property at Tussock Crescent you will probably lose some portion of its value although there was no evidence as to the amount of such loss.
39 I have taken into account that the maximum penalty for the cultivation offence is 25 years imprisonment.
40 In all the circumstances, I consider that a sentence involving immediate incarceration is warranted.
41 Nga Nguyen, in relation the two offences with which you are charged, you are sentenced to an aggregate sentence of 2 ½ years with a minimum period before being eligible for parole of 15 months.
42 Pursuant to s6AAA I declare that had you not pleaded guilty to these offences I would have sentenced you to a term of imprisonment of 3 years with a minimum non parole period of 2 years.
1There are ancillary orders sought, as I understand it. I have here, firstly a disposal order in relation to a number of items, including a Korean passport, toothbrushes, items of clothing, electrical items and the like. Have you seen these orders, Mr Andrianakis?
2MR ANDRIANAKIS: No, I haven't, Your Honour.
3HIS HONOUR: I don't know why you haven't, they were produced to me on the last occasion, but just have a look, there's a disposal order ‑ ‑ ‑
4MS SCHMITZ: They weren't opposed at the plea hearing, Your Honour.
5HIS HONOUR: Yes, I think that was right.
6MR ANDRIANAKIS: That might be the case. I wasn't involved at that stage.
7HIS HONOUR: I think Mr Brustman was here, he was aware of them.
8MR ANDRIANAKIS: Yes.
9HIS HONOUR: Yes, all right.. I think in those circumstances I will make the orders. They consist of the disposal order, the forfeiture order in relation to a Nokia phone and a compensation order in the sum of $8746.23 in favour of AGL Energy Limited. Just pause while I sign those, if you would. I've made those orders in the form provided to me. Any other matters counsel want to raise.
10COUNSEL: No, Your Honour.
11HIS HONOUR: Ms Nguyen may be taken downstairs and we will adjourn the court temporarily.
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