Director of Public Prosecutions v Nguyen

[2018] VCC 1025

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02465
CR-17-02471

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHAU NGUYEN
DOAN NGUYEN

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	4 July 2018
DATE OF SENTENCE:	4 July 2018
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 1025

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Wilson	OPP
For Accused C Nguyen	Mr A. S. Dickenson	Giorgianni & Liang Lawyers
For Accused D Nguyen	Mr W. Hartnett	Papa Hughes Lawyers

HIS HONOUR:

1Doan Tran Nguyen and Chau Tan Tye Nguyen, you have pleaded guilty on indictment No.C1711214.  You, Doan Nguyen and Chau, to one charge of cultivation of a narcotic plant over a period of some three months at the start of last year.  In addition, you, Chau Nguyen, have pleaded guilty to an extra count of theft of electricity, before me.  Some $12,563 of electricity was stolen.

2The facts of your offending are set out in Exhibit A, the prosecution opening.  I was informed by both your counsel that I could treat this document as an agreed statement of fact.  I incorporate the document into these reasons for sentence and sentence you on the basis of the facts set out therein.

3Simply put, you, Chau Nguyen, found yourself in financial difficulty, had developed a gambling issue and after being approached by somebody you met at the casino you grew cannabis in the house owned by your then de facto partner, Doan Nguyen.

4Police executed a warrant in April last year and located 45 kilograms of growing cannabis in 34 plants.  They also located a bypass to steal electricity.

5You, Chau Nguyen, made substantial admissions in your record of interview with the police, describing how you came to be involved, your involvement in a previous crop and your plans for the future.

6You, Doan Nguyen, allowed your partner to grow the crop in your house.  But I accept that you played a secondary role in the cultivation.  Chau was the motivating or the prime mover.

7Each of you made offers to plead at an early stage to cultivate simpliciter.  It took some while for this to succeed, but eventually the Crown have accepted pleas to cultivate simpliciter and did not persist with the charge of cultivating a commercial quantity.

8It is accepted that the Crown cannot establish an intention to cultivate a commercial quantity in each of you.  Nonetheless, although it is a non-commercial offence, the enterprise was clearly commercial, designed to raise money and is still to be seen as a serious criminal offence.

9Each of you filed written submissions.  On behalf of you Chau Nguyen, Exhibit CN1 are your counsel's submissions.  CN2 being certificates and references tendered is support of those submissions.

10You, Doan Nguyen, your counsel tendered written submissions, Exhibit DN1 and supporting documentation, DN2.  References as to your character and esteem in the community.

11I have taken into account all the matters set out in those submissions and as it is apparent, in discussion with your counsel I have considered at length the matters raised over night.

12In respect of each of you I take into account your plea or pleas in your case, Chau, of guilty.  Those pleas have significant utilitarian value.  You are both entitled to a reduction in sentence to reflect those pleas of guilty and I will return to the effect of that reduction subsequently.

13Both of you have no prior convictions and both of you have no subsequent convictions.  The character references attest to your good character.  However, I do note in relation to you, Chau, that you have made an admission of previous involvement in cannabis cultivation.  Even though you have no priors that somewhat detracts from your prior good character, but not to any great extent.

14So far as you are both concerned you both made admissions to the police against interest.  You both cooperated with the police making interviews and in your case, Chau Nguyen, made substantial admissions against interest, to which I have referred.

15General deterrence is the primary sentencing consideration for offences of this type.  People who grow cannabis, which is an altogether far too common offence in our community, need to understand that they will go to prison.

16It appears to me that the - well, each case is different.  Yours is a case of non-commercial allegation and as such has a much lower maximum penalty than commercial cultivation.  It is a mid to upper level example of a non-commercial cultivation, in my view.

17You, Chau Nguyen, have served 384 days in custody and you Doan Nguyen, 225.  In my view that is not an adequate penalty for the offence you have committed.  However, I am reluctant, for the reasons I discussed with your counsel, to send you back to prison.  It seems to me an appropriate disposition for both of you is to sentence to a term of imprisonment equal to the amount of time you have served and to impose a community corrections order from this day forward with some work hours to further punish you for you offending.  Each of you have agreed to enter such a community corrections order.

18Would you stand up please.

19Dealing with you first, Chau Tan Nguyen, you, on relation to both charges of cultivate a narcotic plant and theft of electricity, you are sentenced to an aggregate term of imprisonment of 384 days.  Together with a community corrections order for a period of 18 months from today's date, and you are to undergo 150 hours of unpaid community work or perform 150 hours of unpaid community work in that time.  Do you agree to such an order?

20ACCYSED CHAU NGUYEN:  (Through Interpreter)  Yes, Your Honour.

21HIS HONOUR:  Yes, thank you.

22Turning to you, Doan Nguyen, in respect of the one charge of cultivating a narcotic plant you are sentenced to be imprisoned for 225 days and in addition you are to undergo an 18 month community corrections order with 100 hours of unpaid community work.

23Pursuant to s.6 - sorry, I declare that 384 days of the sentence imposed upon you, Chau Nguyen, has already been served by way of pre-sentence detention; and 225 days of the sentenced imposed upon you, Doan Nguyen, has been served by way of pre-sentence detention.

24Pursuant to s.6AAA of the Sentencing Act, I can indicate that but for your pleas of guilty you, Chau Nguyen, would have been sentenced to a term of imprisonment of three years, with a non-parole period of two; and you,
Doan Nguyen, would be sentenced to a term of imprisonment of 20 months with a non-parole period of 12 months.

25INTERPRETER:  Sorry, Your Honour, could you please repeat the last ‑ ‑ ‑

26HIS HONOUR:  But for your plea of guilty, Doan Nguyen, you would have been sentenced to a term of imprisonment of 20 months with a non-parole of
12 months.

27I make an order for both of you in respect of s.464ZF of the Crimes Act.  You will have to go to a police station and a mouth swab will be taken for a DNA database.  You will get an appointment to go.  I am obliged to inform you both that the authorities are entitled to use reasonable force to obtain that sample, so it is your interest to cooperate.

28Finally, in relation to you, Chau Tan Tye Nguyen, I order that you pay compensation to AGL in the sum of $12,563.13, in respect of the stolen electricity.  Are there any other orders required?

29MR WILSON:  Nothing further, Your Honour.

30HIS HONOUR:  You can both come forward and sit behind your counsel while the orders are prepared and you can come out and sit up the front.  We'll get the CCO signed.  Thank you for your assistance, madam interpreter.

31UNIDENTIFIED SPEAKER:  Thank you, Your Honour.

32INTERPRETER:  Thank you, Your Honour.

33HIS HONOUR:  Sorry, I need to - counsel, rather than me - Mr Hartnett.

34MR HARTNETT:  Sorry, Your Honour.  Sorry, I haven't explained to them, but I'm sure you will, that if they breach the order they'll be brought back before me and resentenced.  I'm obliged to explain the effect of the order.  If they come back, they go in.

35MR HARTNETT:  Yes.

36HIS HONOUR:  All right.  Which community corrections centre?  Where do they live?  One's - do you know where they're going?  All right, as long as you go - they've got to report within 48 hours to the appropriate community corrections centre, which I'll tell you where it is when we get the orders printed.

37MR HARTNETT:  My client is on Footscray.

38HIS HONOUR:  Yes, well is there a community corrections centre in Footscray?

39MR HARTNETT:  (Indistinct words.)

40HIS HONOUR:  I don't think so.  Sunshine, won't it?

41ASSOCIATE:  (Indistinct) Sunshine.

42HIS HONOUR:  He'll have to go to Sunshine within 48 hours and where does your client live?

43MR DICKENSON:  Lalor.

44HIS HONOUR:  I don't even know where that is.  We're trying - western suburb, is it?  Reservoir.  Reservoir community corrections centre for her.  They'll expect them there within 48 hours, where they'll sort out what they're going to do.  Yes, don't worry about that, just the CCOs at this stage.  No, go home.  Would you have both your clients sign those documents please.

45MR DICKENSON:  Your Honour, may I have the assistance of the interpreter.

46HIS HONOUR:  Yes, madam interpreter, would you help.  We'll photocopy and give everybody a copy of it, including the prosecution.  Will you send over the 464ZF for me to sign?

47MR WILSON:  My understanding was that they had been e-filed, but I'll follow that up.

48HIS HONOUR:  I haven't seen them, but I'll - it's the non-custodial one that I'll sign.

49MR WILSON:  Yes, (indistinct words.)

50HIS HONOUR:  Well, I'll sign it and get it back to you.

51MR WILSON:  Thank you, Your Honour.

52MR HARTNETT:  I'm trying just to ask, Your Honour, his mother is ‑ ‑ ‑

53HIS HONOUR:  How much he can do and when, he'll sort it out, yes.

54MR HARTNETT:  Yes, and his mother is quite sick in Vietnam.  But of course he can ask Corrections permission to leave the country (indistinct words.)

55HIS HONOUR:  And if he has any issues he can always come back to me if he can't get what he wants.

56MR HARTNETT:  Thank you, Your Honour.

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