Director of Public Prosecutions v Ngo

[2017] VCC 450

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 16-02181
CR-17-00691

DIRECTOR OF PUBLIC PROSECUTIONS

v

VU VAN NGO
HIEN CHI DUONG

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	19 April 2017
CASE MAY BE CITED AS:	DPP v Ngo & Anor
MEDIUM NEUTRAL CITATION:	[2017] VCC 450

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	Office of Public Prosecutions
For Accused NGO	Mr D. Robertson
For Accused DUONG	Ms O. Trumble

HIS HONOUR: 

1Vu Van Ngo and Hien Chi Duong, you have each pleaded guilty to one charge of cultivating a drug of dependence in not less than a commercial quantity.  That crime carries a maximum penalty of 25 years' imprisonment

2You are 46 and 53 years of age respectively.  Each of you pleaded guilty at the earliest reasonable opportunity.  I accept that each of you has appropriate remorse and each of you must get the utilitarian benefit of that plea of guilty.  There are no prior convictions in relation to either of you.

3I point out that the Crown opening was exhibited on the plea so I do not propose to go into massive detail with it.  The circumstances of the offending are that you, Mr Ngo, had arrived in Australia and became acquainted with another co-accused, a Mr Trinh.  You resided at house in Leongatha for a period of time.  You worked on a farm around Leongatha until the farm work ran out.  You had debts in Vietnam.  For these purposes, co-accused Van Long Duong, that is your brother, Ms Duong, hired the pair of you for the task of growing crops.  Arrangements for that commenced in August 2015.

4On 20 November 2015, you, Mr Ngo, began residing at the house in Eccles Street, Leongatha.  You lived at the house and did not have to pay rent.  You lived there for a period of time before Long, as I will refer to him hereafter, began moving all the hydroponic equipment into the premises.  You arrived at around that time, it would appear, Ms Duong.

5You set up the equipment for the hydroponic crop and each of you would appear to have helped.  I am not going to go into what other co-accused have done or might not have done as the matter is listed for a contested committal in May.  In any event, you, Mr Ngo, were responsible for watering the plants when Long was absent and you were also responsible for the general upkeep of the house.

6A crop was planted and the first cannabis crop was successfully harvested by Mr Long around 15 February 2016.  You, Mr Ngo, were paid $2300 in cash by Long as you have admitted, and you had been told that the crop was divided into 50 units and sold for $100,000.  That is part of the cultivation.  You,
Ms Duong, cannot have that actually alleged against you.  Therefore, from the outset, even though there are a number of similarities about you, I think that you, Mr Ngo, are to be sentenced for a more serious offence.

7In any event, on 9 February 2016, police received information, raided the premises and a total of six arrests were made.  I do not propose to go into that any further as there are matters still pending.  In any event, it was obviously a significant marijuana crop growing inside the house, which I am told was due to be harvested in about five days' time.  There were 287 cannabis plants growing and they weighed a total effectively of 125 kg.

8Of course, insofar as you are concerned, Mr Ngo, there had been an earlier sale.  Whilst you may not have been told the truth about what it was sold for, it was obviously a sale of real significance and the amount in relation to you, of course, would therefore be greater in terms of weight and number of plants than for you, Ms Duong.  In any event, that is the situation we have reached.  Each of you has 387 days of pre-sentence detention.

9Pleas were put on behalf of each of you and, as is not uncommon in these matters, neither of you have any prior convictions.  You are both here on tourist visas as I understand it and you will both ultimately be deported.  The situation with each of you is you want to go home anyway, so the fear of deportation does not have as much effect or significance in this plea as it may in others.

10Your situation, Mr Ngo, is that you were a fisherman in Vietnam and you have a wife and two children still there.  As your counsel pointed out, there is little that can be really said for you.  However, what you have done is given an undertaking to give evidence against the remaining three co-accused and that evidence is clearly of real significance in the prosecution of them.  I take that into account and I always hold the view that a significant and demonstrable discount should be given for such cooperation.

11You will also, I have no doubt, spend the balance of the sentence in protection.  When the minimum term expires or has expired then as I understand it you will be taken to Maribyrnong.  What happens after that I have no idea and there is not much I can do about it in any event.  But that is the main thing going for you, Mr Ngo, if not the only thing other than the lack of priors and the plea.

12You, Ms Duong, have a number of difficulties.  You made significant admissions to the police and would have had some difficulty in terms of sheeting this charge home against you without those admissions, and clearly there were negotiations that took place.  You are now in your 50s.  You came to Australia, after a marriage breakdown from Vietnam.  You were in debt.  You have four children and you have three grandchildren.  I accept that you have not seen them now for some period of time.

13You also have a congenital foot condition which in prison has not been dealt with properly and I accept that that will be a continual worry for you.  You have been pretty isolated.  Neither of you as I understand it have any family visiting you or anything along those lines.  In the end, I am not allowed to take the deportation into effect in any other way than that I have indicated, but as I said, each of you just wants to get out of Australia and go home and I think the risk of each of you reoffending in this way in Australia is zero.

14However, it is serious offending and calls for the application of general deterrence, denunciation and appropriate punishment.  The prospects of rehabilitation for each of you with no prior convictions over such an extended period of time should be good, and as I said, the risk of you reoffending here is zero.

15Accordingly, taking into account all the matters that were put on behalf of each of you, on the charge of cultivation you, Mr Ngo, are sentenced to be imprisoned for a period of 22 months with a minimum of 13 months.  You, Ms Duong, 30 months with a minimum of 15 months.  I direct that 387 days be reckoned as having been served under each of these sentences.

16Insofar as you are concerned, Ms Duong, pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty you would have been sentenced to a period of three and a half years with a minimum term of two years.

17In your situation, Mr Ngo, the 6AAA declaration is a bit of a nonsense because you obviously cannot give an undertaking unless you pleaded guilty, but all things being equal and I think your involvement being higher, but for your plea of guilty and what was accompanied with it, that is the undertaking, I would have sentenced you to be imprisoned for a period of four years with a minimum term of two and a half.

18Any other orders I have to make?

19MS TRUMBLE:  No, Your Honour.

20HIS HONOUR:  Thank you.

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