Director of Public Prosecutions v Nguyen

[2018] VCC 985

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

AT GEELONG
CRIMINAL JURISDICTION

CR-18-01044
CR-18-01045
CR-18-01046

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUNG NGUYEN
DUNG VAN NGO
QUAN QUAN LE

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Geelong
DATE OF HEARING:	25 June 2018
DATE OF SENTENCE:	28 June 2018
CASE MAY BE CITED AS:	DPP v Nguyen & Ors
MEDIUM NEUTRAL CITATION:	[2018] VCC 985

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:  Sentencing – cultivation of drug of dependence in a commercial quantity – cultivation of a drug of dependence - early plea of guilty

Legislation Cited:                   Sentencing Act 1991
Cases Cited:

Sentence:Ngo: 2 years and 6 months’ imprisonment with a non-parole period of 2 years; Nguyen and Le: 2 years’ imprisonment with a non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Sharpley	Office of Public Prosecutions
For the Accused DUNG VAN NGO	Mr N. Hutton at Plea Hearing. Mr C Wareham at date of Sentence.	Valos Black and Associates
For the Accused HUNG HONG NGUYEN	Mr C. Nikakis	Haines & Polites
For the Accused QUAN QUAN LE	Mr C. Wareham	Valos Black & Associates

Pages 1 - 12

 

 

HIS HONOUR:

1Dung Van Ngo, you have pleaded guilty to one charge cultivation of a narcotic plant, namely cannabis L, in not less than a commercial quantity, contrary to s.72A of the Drugs, Poisons and Controlled Substances Act of 1981.

2Hung Nguyen and Quan Quan Le, you have both pleaded guilty to one charge of cultivation of a narcotic plant contrary to s.72B of the Drugs, Poisons and Controlled Substances Act.

3The circumstances of your offending were set out in some detail in the summary of the prosecution opening, which was tendered at your plea hearing as Exhibit A. 

4On 27 July 2017, at approximately 5.30 pm, police were conducting reconnaissance at premises in Queenscliff, which I shall refer to as "the Queenscliff premises", in relation to an ongoing investigation into suspected cultivation of cannabis at those premises. 

5The investigators observed a black Alfa Romeo, registered to Mr Nguyen, leave the address. Police intercepted the vehicle.  Mr Ngo was driving the vehicle.  Mr Nguyen was a passenger. 

6A search of the vehicle and of Mr Ngo and Mr Nguyen was conducted.  Various items were located, including three mobile phones and various sets of keys. 

7One of the phones was located in the front passenger seat of the vehicle, where Mr Nguyen had been seated.  Enquiries revealed that the contact number of this phone had been provided to an electricity provider in relation to the supply of power to the Queenscliff premises, and also to certain premises situated in Curlewis, which I will refer to as "the Curlewis premises”.

8The same contact number had also been provided by persons who had earlier leased both the Queenscliff premises and the Curlewis premises. 

9That evening, Mr Ngo and Mr Nguyen were conveyed back to the Queenscliff premises.  Police executed a search warrant.  A set of keys that were seized from Mr Ngo's pocket, were used by investigators to gain access to those premises.  Inside, investigators located hydroponic equipment which was being used to cultivate cannabis.  A power bypass had been installed above one of the kitchen cupboards. 

10A full search of the premises was conducted the following day. Four rear rooms had been set up as hydroponic growing rooms.  Each contained cannabis plants growing under lights and shrouds.  The following items were located and seized:

·Twelve large cannabis plants were located in Room 1, weighing 13.46 kilograms. 

·Fourteen large cannabis plants were located in Room 2, weighing 16.48 kilograms. 

·Forty large cannabis plants were located in Room 3, weighing 12.06 kilograms.

·Fifty-two small cannabis seedlings, located in Room 3A, which was a walk-in robe in Room 3, weighing 117.9 grams. 

·Twelve cannabis plants located in Room 4, weighing 10.9 kilograms.

·A total of 47 shrouds, 48 globes and 54 transformers were seized. 

11There was a total of 130 cannabis plants located at the Queenscliff premises, with a total weight of 53.018 kilograms. 

12A commercial quantity of Cannabis L is defined in the Act, as consisting of not less than 100 plants, or of plants weighing not less than 25 kilograms.  It follows that the plants found at the Queenscliff premises constituted a commercial quantity.

13A number of items of clothing and person items were seized for DNA analysis with the following results: 

·Mr Ngo's DNA was found on a toothbrush at the premises. 

·Mr Nguyen's DNA was found inside a glove found at the premises.

14On 27 July 2017, Mr Ngo and Mr Nguyen were conveyed to the Curlewis premises, where investigators executed a search warrant.  A set of keys seized from Mr Nguyen's vehicle was used by investigators to gain access to this address.  After gaining access to the Curlewis premises, police located hydroponic equipment being used to cultivate cannabis.  A power bypass had been installed. 

15At approximately 12.20 am on 28 July, crime scene guards at the Curlewis premises observed Mr Le, driving a motor vehicle near to the Curlewis premises.  He observed police present, parked his vehicle and walked away from the address on foot.  He was located a short time later by police, hiding in the rear yard of a nearby house. 

16Mr Le was subsequently taken into custody and searched, at which time police located a set of house keys to the Curlewis premises.  A search of his vehicle revealed black, heavy-duty tubs, retractable vents and plant nutrients that were the same as the hydroponic items used to cultivate cannabis, located inside both of the Queenscliff and Curlewis premises.

17A full search of the Curlewis premises was later conducted.  Investigators found that three rooms on the second floor of the property, had been set up as hydroponic growing rooms, each containing cannabis plants growing under lights and shrouds.  A fourth bedroom was set up containing lights and shrouds, however no cannabis plants were growing in that room.  The following items were located and seized:

·Twenty-one cannabis plants in Room 1, weighing 17.12 kilograms.

·Forty-two small cannabis plants in Room 2, weighing 2.7 kilograms.

·Twenty-one large cannabis plants in Room 3, weighing 17.16 kilograms. 

·A total of 47 shrouds, 27 globes and 52 transformers were seized.

18There was a total of 84 cannabis plants located at the Curlewis premises, with a total weight of 36.98 kilograms.

19Although that weight of cannabis plants would indicate that the crop at the Curlewis premises was a commercial quantity, Mr Le you have not been charged with cultivation of a commercial quantity, but merely with cultivation of cannabis and I shall sentence you on that basis only.

20A number of items of clothing and personal items were seized for DNA analysis from the Curlewis premises.  Mr Le's DNA was found on two water bottles and a pair of underwear found at those premises. 

21Mr Ngo, you were interviewed by police and admitted to attending the Queenscliff premises a few times, to visit friends.  You also admitted to having slept overnight at the premises, but told police you were unaware of the cannabis crop and not involved in the cultivation of it.  You denied ever attending the Curlewis premises and could not explain how house keys for those premises came to be in the car that you were driving.

22Mr Nguyen, you were interviewed by police and admitted to regularly attending the Queenscliff premises to look after the garden for friends.  You stated that you had been inside the premises, mainly in the living area and kitchen, but denied awareness of the cannabis crop or that you had been involved in the cultivation of it.  You denied ever attending the Curlewis premises and could not explain how the house keys to those premises came to be in your car.  You denied any knowledge of a cannabis crop at the Curlewis premises.

23Mr Le, you were interviewed by police and made no admissions, other than stating that you had never been to the area and had got lost driving around.  You declined to answer further questions put to you. 

24Mr Ngo, you are 33 years' old.  At the time of your offending you were aged 32.  You are a Vietnamese national.  You married in 2013.  You have a wife and a young child who live in Vietnam.  In Vietnam you had been employed as a sales, restaurant worker and promotional worker.  You lost your job and could not find work.  You came to Australia in 2015 on a tourist visa that was valid for three months.  You overstayed that visa to work and send money back home to your family.  You were initially employed as a farm worker and builder. 

25Your counsel informed me that after these jobs finished, you met a woman who offered you work, helping out at her house.  That house was the Queenscliff premises.  Counsel submitted that you worked there for two weeks, with the expectation of getting paid, but never received any remuneration.  You have no family in Australia.  I was informed that you feel isolated here and have only received two gaol visits from a friend since being remanded.

26Mr Nguyen, you are 34 years' old.  At the time of your offending you were 33.  You were born in Hanoi and are also a Vietnamese national.  You have a wife and nine year old son, currently residing in Vietnam.  You are a well-educated man.  You have a science and mathematics tertiary qualification from Hanoi University.  From 2009 to 2014 you were employed in the sales division of the HSBC Bank in Hanoi.  In 2014 you arrived in Australia on a three month holiday visa.  You overstayed this visa.  You obtained a cash job as a handyman and cleaner. 

27I was informed by your counsel, that you encountered difficulties returning to Vietnam, due to your family's business failing and they being unable to fund your return. 

28Mr Le, you are 33 years' old.  You are from central Vietnam.  You have a wife and a ten year old son, who currently live in Ho Chi Minh City.  In Vietnam you worked for the State Railway Corporation for 12 years.  In addition, you and your wife had set up a timber business which encountered financial difficulties.  I was informed that you and your wife were tricked by members of a criminal organisation and lost most of your money.

29In 2015 you arrived in Australia on a tourist visa.  Shortly afterwards you made application for refugee status.  A bridging visa was issued to allow you to remain in Australia.  The terms of that visa were, that you were not permitted to obtain employment here.  You had no means to support yourself.  Your intention had been to work and send money back to Vietnam, to assist and support your wife and son.  Your counsel inform me that your financial position in Australia was precarious.  You had no ability to support yourself or your family.

30Section 5 of the Sentencing Act provides for the purposes for which courts may impose sentences. They include the punishment of you to an extent, and in a manner which is just in all of the circumstances. To manifest the court's denunciation of your conduct in which you engaged, and to deter you and others in the community from committing such offences in the future. I am required by s.5 of the Sentencing Act, to have regard to a number of matters including the seriousness of your offences, your culpability for them and your personal circumstances. I have taken into account each of the matters set out in sub-s.2 of s.5 of that Act.

31The maximum penalty prescribed for cultivation of a narcotic plant in not less than a commercial quantity, is 25 years' imprisonment.  The maximum penalty for cultivation of a narcotic plant is 15 years' imprisonment.  Those maximum terms reflect the seriousness with which Parliament views these offences.

32I have been provided with a number of sentencing snapshots in relation to the offence of cultivation of a drug of dependence in a commercial quantity and the offence of cultivation of a drug of dependence and I have perused a number of sentencing decisions referred to by counsel.  Those snapshots are of limited assistance to me.  There is a shortage of information regarding the circumstances of offending and the individual circumstances relating to the offenders.  Further, sentencing considerations such as prior convictions and the like, are not specified.

33Each of your counsel has submitted, and I accept, that there are a number of mitigating factors relating to your sentences. 

34Firstly, each of you pleaded guilty at a relatively early time.  Such a plea has utilitarian benefit, in that witnesses were not required to give evidence at a committal or a trial.  It may also be demonstrative of some remorse on your part, although I do note that none of you were honest to police when you were first interviewed.  That was your right, to say nothing.  But it displays no co-operation with police, at that time.

35Second, all three of you have no prior convictions.  Each of you are to be sentenced as persons who have previously been of good character.  I understand that this is the first time that any of you have been in custody.

36Thirdly, you are all of similar age.  You are married with relatively young children.  Whilst your age does not permit me to classify you as young offenders, as defined in the Sentencing Act, you are all nevertheless still of an age where the vast proportion of your lives lie ahead of you.

37Fourthly, none of you speak English or have family in Australia.  It was submitted by your counsel and I accept, that your lack of English and absence of family support in Australia, will make imprisonment more burdensome than would otherwise be the case. 

38I bear in mind that each of you came to Australia to find work, so that you could send money home to your families.  Since your arrest, any such money you were sending to them has no doubt ceased.  Whilst upset or stress to members of your family is not a matter that I would be able to take into account, the fact that you each have wives and relatively young children in Vietnam, without your financial support, is likely in my view to make the service of any prison sentence more burdensome upon you, than would otherwise be the case.

39Finally, on the evidence, each of your roles in the cultivating operation, especially in relation to Mr Le and Mr Nguyen, appears to be relatively minor.  Your counsel submitted and I accept, that your roles in this offending can fairly be described as that of a crop-sitter, which I understand would consist of the basic minding of the crop, including some care and maintenance of it, full details of which are not before me.

40There is no suggestion made by the prosecution that you, or any of you were involved in any of the entrepreneurial aspects of the operation or in the design or installation of any of the equipment found at the premises.  Nevertheless I consider that your roles were vital for the success of the enterprises.  Without cultivation of the crop, there would be no sale of it and no profit to anyone.

41Mr Ngo, you have been in custody since 27 July last year, which I calculate to be 339 days.  Is that correct?

42MR SHARPLEY:  336, I think, Your Honour.

43HIS HONOUR:  Not including today?

44MR SHARPLEY:  Not including today.

45HIS HONOUR:  I was advised by your counsel that during that time, you have engaged in a number of educational courses in gaol, including coffee making, English language and culture.  Completion of these courses is to your credit.  You have also been working in horticulture within the prison system.  Your counsel inform me that following your release from prison, you are looking forward to returning to Vietnam, to be reunited with your family.

46Please stand up, Mr Ngo. Taking all the circumstances into account, Mr Ngo, in relation to Charge 1, cultivation of not less than a commercial quantity of a narcotic plant, contrary to s.72A of the Drugs, Poisons and Controlled Substances Act, you are convicted and sentenced to a term of imprisonment of two years and six months. 

47I direct that you shall not be eligible for parole until you have served two years of that term.  I declare that you have served 336 days of pre-sentence detention, and I direct that such a period be reckoned as served as part of this sentence, and recorded in the records of this court accordingly.

48Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these charges, I would have sentenced you to a total effective sentence of three years and directed that you not be eligible for parole until you had served two years of that term.  Thank you, you may be seated.

49Mr Nguyen, please stand.  You have also been in pre-sentence detention since 27 July last year, which is 336 days.  I was advised by your counsel that during that time you have also engaged in a number of educational courses and certificates relating to those courses were tendered at your plea hearing.  That is to your credit.  Your counsel also tendered two clean urine sample test results and three certificates of completion of drug and alcohol rehabilitation programs.

50I was informed by your counsel that you have maintained regular contact with your wife and child since you have been in prison.  

51Taking all the circumstances into account, in relation to Charge 2, cultivation of a narcotic plant contrary to s.72B of the Drugs, Poisons and Controlled Substances Act, you are convicted and sentenced to a term of imprisonment of two years. 

52I direct that you shall not be eligible for parole until you have served 18 months of that term.  I declare that you have served 336 days of pre-sentence detention and I direct that such period be reckoned as time served, as part of this sentence, and recorded in the records of this court.

53Pursuant to s.6AAA, I declare that had you not pleaded guilty to these charges, I would have sentenced you to a total effective sentence of two years and six months and directed that you not be eligible for parole until you had served 2 years of that term.

54Mr Le, I was advised by your counsel that you have tried to make productive use of your time on remand, having undertaken courses in English, art and woodwork, which is to your credit. Your counsel informed me that you also are anxious to return to Vietnam and be reunited with your wife and son. Taking all the circumstances into account, in relation to Charge 3, cultivation of a narcotic plant contrary to s.72B of the Drugs, Poisons and Controlled Substances Act of 1981, you are convicted and sentenced to a term of imprisonment of two years.

55I direct that you shall not be eligible for parole until you have served 18 months of that term. 

56Mr Le, you were remanded in custody on 28 July 2017.  You were granted bail to appear on 20 October 2017, but failed to appear in court for a committal mention on that date.  A warrant was issued for your arrest.  That warrant was executed on 18 January 2018 and you have been on remand since that date.  It follows that you have been in pre-sentence detention for 210 days.

57I declare that you have served 210 days of pre-sentence detention and I direct that such period be reckoned as served as part of this sentence and recorded on the records of the court.

58Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these charges, I would have sentenced you to a total effective sentence of two years and six months, and directed that you not be eligible for parole until you had served two years of that term.

59You may be seated, thank you.

60Now, what ancillary orders - Mr Sharpley?

61A disposal order, Your Honour. 

62MR WAREHAM:  That is not opposed, Your Honour.

63HIS HONOUR:  Thank you, Mr Wareham.

64MR SHARPLEY:  Does Your Honour have that with you already?

65HIS HONOUR:  Yes, I do.  Excuse me while I just complete the dates on these documents.  These disposal orders refer to equipment that was seized from 65 Stokes Street, Queenscliff, which I referred to earlier as the Queenscliff premises, and 28 You Yangs Avenue, Curlewis, which I referred to as the Curlewis premises.

66MR SHARPLEY:  Yes, Your Honour.

67HIS HONOUR:  You need four or only three, of this order?

68MR SHARPLEY:  Three, I think, Your Honour. 

69HIS HONOUR:  I make those orders accordingly.  Anything else that counsel want to say to me?

70MR SHARPLEY:  No, Your Honour.

71MR WAREHAM:  No, Your Honour.

72HIS HONOUR:  Yes.  The three accused gentlemen can be taken downstairs, thank you.

73MR WAREHAM:  Your Honour, could I just approach them before they are taken?

74HIS HONOUR:  Yes.  By all means.  Yes.  Nothing else, gentlemen?

75MR SHARPLEY:  No, Your Honour.

76MR WAREHAM:  No, Your Honour.

77HIS HONOUR:  Yes.  Thank you. 

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