Director of Public Prosecutions v Nguyen

[2018] VCC 1437

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00932

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUC VAN NGUYEN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2018
DATE OF SENTENCE:	6 September 2018
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 1437

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty to one charge of cultivation of a narcotic plant in a commercial quantity – one charge theft – aged 23 -  student visa – no priors – paid to grow crop in his home – did not provide equipment or electricity bypass - young – vulnerable – no family supports – owed parents large amount of money – 12% of a large commercial quantity -  gravity at lower end of range -  limited English – general deterrence
Sentence: 3 years 3 months non-parole period  18 months

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms G. Overend	OPP
For the Accused	Ms A. Wong	VLA

HER HONOUR:

1Duc Van Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant in a commercial quantity and one charge of theft.  In 2017, you and the co-offender Ngoc Thi Pham were living together at 21 Castella Court, Meadow Heights.  In December 2017, police began an investigation into the cultivation of cannabis at that address. 

2On 9 January 2018, they executed a search warrant there.  At 8.55 am, they knocked on the door, but there was no response, so they used a jemmy bar and forced open the screen door.  You then opened the front door with
Ms Pham standing beside you.  During the search of the house, police found in three bedrooms a total of 120 cannabis plants, weighing 30.01 kilograms.  That is Charge 1, the charge of cultivating. 

3The details were that bedroom one contained sixteen bushy immature female cannabis plants, weighing 16.14 kilograms.  Bedroom two contained ninety-one slender to slightly bushy immature cannabis plants, weighing in total 1.13 kilograms.  Bedroom three contained twelve bushy immature female plants, weighing 12.18 kilograms.  In the garage, one bushy immature female cannabis plant weighing 558.4 grams was found.  Equipment was set up to grow the cannabis, consisting of irrigation systems, growing lights and electrical transformers.  Fertilisers and chemicals were found in the bathroom and there was an electrical bypass in the roof.  That is Charge 2, the charge of theft.  Personal items belonging to you and Ms Pham were found in the house and a mattress was in the living room.

4You were arrested and interviewed, but you made no comment and Ms Pham denied having anything to do with the cultivation, saying that she cooked and cleaned the house.  She later pleaded guilty to a charge of possessing cannabis and was sentenced to 148 days in prison, which was time already served.  You pleaded guilty to these charges at a committal mention, at the time of a straight hand-up brief process.  You have remained in custody since your arrest, resulting in pre-sentence detention of 240 days, not including today.  The maximum penalty for cultivating cannabis in a commercial quantity is 25 years imprisonment and for theft it is 10 years.

5Your personal circumstances are that you were born in Vietnam and you are aged 23.  You are a Vietnamese national, and at the time of the offending, you were in Australia unlawfully.  Your parents are farmers in Vietnam.  You did well at school and studied at university for about a year and a half.  In late 2013, when you were 19, you came to Australia to study a four year business degree at the Melbourne Campus of Queensland University.

6Your parents raised the sum of $20,000 for this, but after a year and a half of studying, you had no further funds for university fees and could not continue.  You had to abandon your education, age 20, and begin working to support yourself.  Meanwhile you had met Ms Pham and you wanted to stay in Australia to be with her.  She was here and remains here on a student visa.  This was your first serious relationship and ultimately you wish to return to Vietnam to your parents farm with her.

7You began working as a kitchenhand in St Albans and then worked at a suburban laundrette.  Your student visa was cancelled in around 2017, as you were no longer studying.  You are a person with no prior convictions and with no problems with drug or alcohol abuse.  You are reportedly in good health, both physically and mentally.

8You and Ms Pham lived together in the house at 21 Castella Court, which you rented in July 2016.  You renewed the lease in April 2017.  In October 2017, there was a routine inspection conducted of the house which was satisfactory.  Your instructions are that you incurred a debt of $10,000 by borrowing this money for a friend who needed it to pay her school fees.  You borrowed it from an acquaintance called Quan.

9When your friend failed to repay the money, Quan demanded that you repay it yourself by way of instalments of $1,200 per month.  In an attempt to ensure payment, Quan made threats towards your family and you were afraid of him.  As a result, when you were unable to maintain the payments, Quan referred you to a person called Vy for work and Vy offered to pay you to house and look after a cannabis crop.  Vy offered to cover your rent and bills and to pay a further sum of $2,000 for looking after each crop at the time of harvest.  You agreed to this arrangement as you did not know how else to repay the debt.

10With the search by police being conducted in January this year, and the residential inspection having been carried out in October, it follows that the crop was the first and only crop involved.  The prosecution has questioned the reliability of your instructions as to the existence of the $10,000 debt, submitting that it is unlikely that you would have obtained the loan for a friend and noting that you have not provided the names of anyone else involved until now.

11There is no evidence of enrichment which would be the alternative motive for the offending.  It is already clear from your decision to take part in the enterprise that you are very young and vulnerable, with no family supports here and owing your parents a lot of money.  Your judgment has likely been significantly influenced by your youth and naivety and whatever the truth may be as to why you became involved, in the context of your circumstances, it is of no great importance.

12The fact remains that it is very serious offending, with a maximum penalty of twenty-five years imprisonment.  The enterprise was complex and sophisticated, with the amount of cannabis grown being slightly more than a commercial quantity and being 12 per cent of a large commercial quantity.  Those figures place the gravity of the offending at the lower end of the range.  Added to this is that the expected financial gain was modest, with a fixed fee payable and with no equity in the enterprise or share of the profits.

13While you provided the house, you did not own or provide the equipment and did not set up the electricity bypass, nor did you manage or organise the enterprise in any way.  Provision of the house is a substantial contribution of course and it places your ranking at a higher level than a mere crop sitter.  At the same time, it is to be borne in mind that you did not lease the house for this purpose, but it had been your established residence for some time before you became involved.

14It appears that you took on all the usual responsibilities of a crop sitter of course, and your provision of the house for the cultivation does add an extra dimension to those responsibilities. 

15Whilst in prison, you have been isolated with no visitors and only telephone contact with Ms Pham, and very occasional telephone contact with your family in Vietnam. Your English is limited and there are a few prisoners with whom you can converse.  Once you are sentenced, you will await either deportation or transfer to a detention centre pending deportation and that uncertainty is likely to weigh upon you, and is a matter I take into account.  Deportation itself is not productive of anxiety, as you wish to return to Vietnam with Ms Pham who remains here only until you are deported. 

16You pleaded guilty at an early stage, so you are entitled to a discount on your sentence for the utilitarian benefits of having avoided a trial and I also accept it as an indication of remorse.  Your prospects of rehabilitation are good as a person of previous good character and your youth means that these prospects should be given considerable weight.

17The sentencing of a person who has cultivated narcotic plants should play a role in deterring others from the same offending and that principle is relevant to the nature and length of the sentence.  Despite that, your youth and circumstances call for some leniency.  I have had regard to several other recent sentencing decisions, but as Ms Overend, the prosecutor, said, there are no comparable cases, although some can provide guidance in terms of relevant principles and a range of similarities.

18I sentence you to three years imprisonment for Charge 1 and one year for Charge 2.  I order that three months of the sentence for Charge 2, be served in cumulation upon the sentence for Charge 1, resulting in a total effective sentence of three years and three months.

19I order that you serve a minimum period of eighteen months before being eligible for parole.

20You have spent 240 days in pre-sentence detention and I declare that to be reckoned as already served and I shall note that on the court record.

21If you had pleaded not guilty to these charges, I would have sentenced you to four years imprisonment, with a non-parole period of two and a half years. 

22Finally, the prosecution seeks an order for a forensic sample of saliva to be obtained, that application is not opposed and I make that order.  I must advise you that the police have the power to use reasonable force to obtain the sample, but I trust that will not be necessary. 

23Ms Overend, is there anything that I have omitted or neglected?

24MS OVEREND:  No, Your Honour.

25HER HONOUR:  No, thank you.  Ms Wong, anything?

26MS WONG:  No, Your Honour.

27HER HONOUR:  Thank you.  Thank you Madam Interpreter.

28INTERPRETER:  Thank you, Your Honour.

29HER HONOUR:  Officers, you may take Mr Nguyen now, thank you.  Thank you for your assistance.

30MS WONG:  Thank you.

31MS OVEREND:  Thank you, Your Honour.

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