Director of Public Prosecutions v Nguyen

[2018] VCC 1019

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
(Not) Restricted
Suitable for Publication

Case No. CR-18-01091

DIRECTOR OF PUBLIC PROSECUTIONS

v

CUONG THANH NGUYEN

---

JUDGE:	HIS HONOUR JUDGE C RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2018
DATE OF SENTENCE:	28 June 2018
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 1019

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:             PLEA – Cultivate narcotic plant – Cannabis L – Not less than a commercial quantity – Plea of guilty.

Legislation Cited:     Sentencing Act 1991

Sentence:                 3 years’ imprisonment with a non-parole period of 2 years’ imprisonment; 234 days pre-sentence detention; Disposal order; Forensic sample order; 6AAA declarations: 4 years’ imprisonment with a non-parole period of 3 years’ imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms P. Thorpe	Office of Public prosecutions
For the Accused	Ms A. Brennan	Victoria Legal Aid

HIS HONOUR:

1       Cuong Thanh Nguyen, on 22 June 2018 you pleaded guilty to one charge that between 28 August 2017 and 6 November 2017 you cultivated a narcotic plant, namely Cannabis L, in not less than a commercial quantity.  The maximum penalty for this offence is 25 years’ imprisonment.

2       You are a man without prior conviction.

3       Tendered as Exhibit A and read aloud in court was the summary of prosecution opening on plea.  In summary, you were residing at 9 Treeve Parkway in Werribee and assisted in the setting up of a cannabis crop at that address, and maintained that crop between the dates on the indictment, until police executed a warrant at that address on 6 November 2017.

4       When police executed the warrant at the address in Werribee they found you and your co‑offender, Anh Duong, present at the address, as well as 132 cannabis plants, that weighed 59.13 kilograms, being grown hydroponically.

5       You were arrested, but were not interviewed under caution because there were no Vietnamese interpreters available.  You were remanded in custody, as you had overstayed your visa and were illegally in Australia.

6       Your plea was entered at committal prior to any witnesses being called.  Accordingly, your plea should be regarded as an early one.  You are entitled to the benefits that flow to you from your plea, being that it is some evidence of your remorse and that it has utilitarian value.

7       You are 25 years of age, having been born on 19 August 1992 in Vietnam.  During the course of your plea your father, who is 66 years of age, was described as a retired veteran, having suffered serious wounds from his military service.  In addition, your father is deaf and requires the care of your mother, his wife.  Your mother is 70 years of age and suffers from diabetes.  Both your parents are cared for through the local hospital.

8       It was put on your behalf that your offending was in part motivated by a gambling debt accumulated by your older brother that needed repayment.

9       You travelled to Australia on a student visa after studying cookery in Vietnam for two years.  You intended to study English in Australia.  You arrived in Australia some three years ago, and your airfare was paid by your parents, who took out a loan to fund your travel.  Initially you did study English; however, thereafter you began work as a butcher, and you worked at that trade for 6–8 months in Springvale before you travelled to Sydney, where you worked as a butcher for more than two years.  You returned to Melbourne in June or July of 2017.

10      You travelled to Melbourne from Sydney because you were promised work in Melbourne.  That work ended up being cultivating a commercial crop of cannabis.  It was put on your behalf that you did not know the people who were in charge of the crop, and that you had never been in contact with them except at the beginning of the criminal enterprise.  You instructed counsel that a person would attend at the house once per week to check on the crop, and that your role was to add water and nutrients to an automatic watering system.

11      It was put on your behalf that your time in prison has been difficult because of your lack of English-language skills, in that you cannot speak, read, or write English.  However, since being on remand you have undertaken English-language study, one hour per week.

12      The crop that you cultivated was a truly commercial one, in that the plants ranged from seedlings to mature plants so permitting a regular cropping process.  You were offered payment for your efforts, although the amount of this payment was not revealed upon your plea.

13      It was put on your behalf that you have good prospects for rehabilitation, however that rehabilitation will take place in Vietnam.  It is inevitable that you will be deported back to Vietnam.  I was told that you have supportive parents, and that you will be able to live with them in Vietnam, and that your skills in cookery and butchering will enable you to find work in Vietnam.

14      The crime of which you have been convicted is both serious and prevalent.  The maximum penalty is 25 years’ imprisonment.  Your role in the criminal enterprise was something more than a “crop sitter”, in that you assisted in setting up the crop in addition to maintaining it.  General deterrence must be the principal purpose of sentencing in respect to your offending.

15      Doing the best I can, taking into account your personal circumstances and the objective circumstances of your offending, and applying sentencing principles, I sentence you to three years’ imprisonment and order that you serve a minimum of two years’ imprisonment before you will become eligible for parole.

16      I declare that you have served 234 days by way of pre-sentence detention, not including today.

17      I declare that but for your plea of guilty I would have sentenced you to four years’ imprisonment with a minimum term of three years.

18      Now in respect to you, Mr Nguyen, the Crown have made an application for a disposal order in respect of the drugs and paraphernalia connected with the cultivation of the crop at Werribee and I have signed that order.

19      Also in respect of you, they have made application for what is known as a forensic sample, that is a scaping of your mouth.  I have granted that order because of the seriousness of the circumstances of your offending warrant making the order and the granting of the order is in the public interest.  I must inform you that if at the time of request, you do not consent to the taking of a mouth scraping, under the supervision of an authorised member of the Victoria Police, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted, and I have signed three copies of that order.

(Prisoner removed.)

- - -