Director of Public Prosecutions v Ngo
[2016] VCC 1035
•20 July 2016
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00957
Indictment No. G10646186
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CONG HAI NGO |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 18 July 2016 | |
DATE OF SENTENCE: | 20 July 2016 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Ngo | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1035 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – cultivating a narcotic plant in not less than a commercial quantity – plea of guilty
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Sentence: Total effective sentence of 9 months’ imprisonment. Section 6AAA declaration: 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Cordy | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr L Barker | Valos Black & Associates |
HIS HONOUR:
1 Cong Hai Ngo, you pleaded guilty to one charge, namely cultivation of a narcotic plant namely Cannabis L in a quantity not less than a commercial quantity which carries with it a maximum penalty of 25 years’ imprisonment.
2 The cannabis crop which you were tending comprised 148 plants with a total weight slightly less than 97.55 kilograms, which was growing in a sophisticated hydroponic system set up within a number of rooms of the property situated at 31 Sydenham Avenue, Bendigo.
3 It is not suggested that you were the architect of this scheme, nor is it in issue that:
· You were not involved in the setting up of the crop;
· Your only involvement in the scheme was your activity in watering and providing nutrition to the crop, in which activity you were involved on one occasion on one single day; and
· You were paid $200 to accompany your co-offender to Bendigo where you engaged in the relevant offending.
4 Your relevant personal history is as follows:
· You are thirty-five years of age and were born in Vietnam on 3 November 1980. You are the eldest of three children. You were educated in Vietnam to university level, where you completed a Bachelor of Finance degree in 2004. Thereafter you obtained employment with the Water Supply Commission.
· You are married. You have two children: a son aged ten and a daughter aged eight. Your family have always lived in your parents’ house. Your father worked in the public service. Your mother ran a fairly successful food store.
· From about 2011, due to your father’s ill health and the failure of your mother’s business, your relatively modest income provided the main income for your family. Given your father’s ill health he required cardiac surgery, the cost of which was significant. For that reason it was determined that you should come to Australia where you could work whilst you undertook studies in English for the purpose of attaining a masters in accounting.
· In Australia you worked in a number of unskilled areas. Unfortunately you commenced gambling and it was through this activity that you met the person responsible for introducing you to the Sydenham Street property and the activity involved in your offending.
5 You do not have any prior convictions and aside from the charges which you now face, you have not previously come to the notice of the Australian authorities.
6 It is put on your behalf that you have never been involved in a criminal activity prior to committing this offence, that you have never been imprisoned before and that your current situation is a source of acute shame to you.
7 Within the prison system you have worked full time in a prison kitchen as a cook. You have no friends or family in Australia. You have no visitors in prison.
8 I accept that you have previously been of good character, that you miss your family and that your sentence of imprisonment involves considerable shame and hardship for you.
9 I am further satisfied, having regard to your lack of relevant history, your tertiary qualifications and your work history, that you have good prospects for rehabilitation and that it is unlikely that you will in the future find yourself before a criminal court.
10 I am satisfied that at the time of your record of interview you made full and frank admissions as to your criminal conduct and that you indicated your intention to plead guilty to the charges which you now face at the earliest opportunity.
11 Your plea of guilty has saved the community the very significant time and court expenses associated with a committal or a trial and the inconvenience and pressure caused to witnesses by a requirement to give evidence. Each of these factors entitle you to a significant discount in the sentence which I would have imposed if you had not pleaded guilty.
12 Whilst I am satisfied that in sentencing you the need deter you from further offending of this type assumes little significance, the sending of a message to others that criminal behaviour of this type will not be tolerated is of fundamental importance.
13 In cases of this type I am obliged to send a message which discourages people from involving themselves in activity which in any way supports the criminal industry which produces illicit drugs, by demonstrating that anyone who provides support to that industry will receive harsh punishment, whatever the level of their involvement.
14 Whilst I must denounce your conduct I must equally impose a punishment upon you which is just in all the circumstances.
15 Your activity of supporting the management of a significant crop of cannabis involves serious criminal conduct on your behalf. That this is so is demonstrated by the fact that the charge of cultivation of narcotic plants in a commercial quantity carries a maximum prison term of twenty-five years.
16 It is not in issue that you are to be deported upon the completion of your prison sentence. It is not put that your deportation should be taken into account in the sentence which is imposed.
17 Whilst I accept that the role that you played in the criminal operation associated with the production of the cannabis crop was limited to watering the crop and that you were in no way a principal or one of the principals involved in the planning and the establishment of this criminal enterprise, it is clear, however, that the crop you tended was relatively large and there is no suggestion that you did not know you were participating in a criminal offence. Neither is there any evidence that you could not have resisted the offer made to you that you should engage in the criminal activity involved in this instance.
18 Taking all of these matters into account, I am satisfied that I have no option but to impose a term of imprisonment upon you, having regard to the serious nature of the criminal activity in which you have engaged.
19 Given the serious nature of the offences you have committed and taking into account each of the matters I have mentioned, and giving appropriate weight to all relevant sentencing considerations, I am satisfied that you should be sentenced as follows:
Please stand up Mr Ngo
20 On Charge 1 of cultivating a commercial crop of cannabis, you are convicted and sentenced to 9 months’ imprisonment.
21 The total effective sentence which I have imposed is 9 months’ imprisonment.
22 The time you have spent in custody to date with respect to these offences is to be taken into account as time served by you in respect of these sentences. Pursuant to the Sentencing Act, I declare that the period of 141 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that this declaration and its details be noted in the records of the Court.
23 Pursuant to s6AAA Sentencing Act 1991, I declare that but for your plea of guilty, I would have imposed a sentence of 15 months’ imprisonment without parole.
24 I will make the Forfeiture and Disposal Orders which are sought in this matter given the seriousness of the charge in this instance. Given the seriousness of the charge I will make the further order permitting the retention of the forensic sample obtained from you.
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