Director of Public Prosecutions v Nghiem

[2019] VCC 644

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-02181

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUAN NGHIEM

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	9 May 2019
DATE OF SENTENCE:	9 May 2019
CASE MAY BE CITED AS:	DPP v Nghiem
MEDIUM NEUTRAL CITATION:	[2019] VCC 644

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For Accused Nghiem	Mr C. Nikakis	Haines & Polites

HIS HONOUR: 

1Tuan Vu Nghiem, you have pleaded guilty to one charge of cultivation of cannabis simpliciter.  You are now 23 years of age.  You are a citizen of Vietnam and you have no prior convictions, obviously in this country.  Yours is a situation where deportation is inevitable and as I understand through your counsel, indeed desired.  The circumstances of the offending are that on 1 May 2018, police executed a search warrant at a property in Leongatha.  They smelt cannabis, announced their presence at the front door and no one answered.  After a minute or so, police forced the front door of the house and entered and two men were seen quickly leaving the rear door of the house.  They were told to stop and both ran. 

2You, as I understand it, ran into scrub and in doing so - arrests were made at the scene or later on with both you and your co-accused and ultimately you were placed in custody.  Your visa expired years ago and you have been here ever since.  You have now done 373 days and the suggestion from your counsel and a very sensible one, if I may say so, is I sentence you to 380 days and your exit from the country can then be organised in an orderly fashion.

3Your history is simple.  You completed Year 12 in Vietnam and arrived with a two and a half-year student visa in 2013.  You attended several courses at various institutes and when that visa expired, you have worked cash in hand on various jobs, being butcher, handy-man and building construction.  All of this is with Vietnamese employers who were probably paying you an absolute pittance and you told your counsel, that when you were arrested, you had only been at the premises a short time. 

4The fact of the matter is, that even though there were some 206 plants in the premises, weighing nearly 50 kilos, it is impossible to determine when you became involved, it is impossible to determine your knowledge of the situation other than I have to sentence on the basis that you were not aware that in fact, it was a commercial quantity.  I think in these circumstances, there is no point in me saying much else.  General deterrence will obviously have to play a part.  Specific deterrence is a waste of time because you are going to be deported.  Denunciation and appropriate punishment, I think will be adequately satisfied by the imprisonment of 380 days. 

5Accordingly, on the charge of cultivation, I sentence you to imprisonment for a period of 380 days.

6I direct that 373 days be reckoned as having been served under this sentence. 

7Pursuant to s.6AAA I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of 18 months, with a minimum term of 12.

8MR NIKAKIS:  As Your Honour pleases.

9HIS HONOUR:  There is no point in - I will make it but - who is that for?  It is for Mr Nghiem, it is all right.

10MR DEVLIN:  Your Honour, it will add to the Vietnamese database of the DNA, so there is some public interest in ‑ ‑ ‑

11HIS HONOUR:  Is this for Mr Nghiem, not Mr ‑ ‑ ‑

12MR DEVLIN:  Sorry.

13HIS HONOUR:  Yes.

14MR NIKAKIS:  The problem is, again, it is that order for the DNA gets stalled for 28 days.

15HIS HONOUR:  That is right, yes.  Waste of time.

16MR DEVLIN:  Yes, I must admit my friend is right.  I had not factored that into it but I have made the application.  It is a matter for Your Honour.

17HIS HONOUR:  Just as a matter of discretion, I will refuse it.

18MR NIKAKIS:  As Your Honour pleases.

19MR DEVLIN:  As Your Honour pleases.

20HIS HONOUR:  Eighteen months of the 12 months (Indistinct).  All right.  If there is nothing else we need to do, we will just simply adjourn the other matter.

21MR SHARPLEY:  Yes, Your Honour.

22HIS HONOUR:  If something turns up, let me know.

23MR SHARPLEY:  Yes, Your Honour.

24HIS HONOUR:  Otherwise, you know what I am going to do.  I just do not want to be acting where I literally have no proof of any of this.

25MR SHARPLEY:  No.

26HIS HONOUR:  Yes.  It is as simple as that.  If there is no proof of any of this, well I will give him the same as Mr Nikakis has got.  All right.

27MR SHARPLEY:  Yes, Your Honour.

28HIS HONOUR:  All right.  Thank you for that.

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