Director of Public Prosecutions v Nguyen

[2018] VCC 932

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-01933

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIEN NGUYEN

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	22 June 2018
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 932

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Saville
For the Accused	Mr B. Newton

HER HONOUR:

1Tien Van Nguyen, you have pleaded guilty on indictment to a single charge of cultivation of a narcotic plant, namely cannabis, in a commercial quantity. 

2The period of your offending was of some six months, that is, between 1 October 2016 and 11 April 2017.  The charge to which you have pleaded guilty carries a maximum penalty of 25 years' imprisonment.  This penalty reflects the seriousness with which Parliament regards this offence.

3The circumstances of your offending are set out in a document entitled "Summary of Prosecution Opening for Plea".  It is dated 19 June 2018 and is marked as Exhibit P1.

4The contents of this document are accepted by your counsel. 

5In short compass, on 11 April 2017, police attended at an address in Churchill to execute a search warrant under the Drugs, Poisons and Controlled Substances Act.  You were present and answered the door. 

6The search conducted by police located electrical equipment used for the purposes of cultivation of cannabis within five rooms of the house.  Three of the five rooms contained of hydroponic equipment used in the growing of cannabis, and included lightshades, lamps, ballasts, and a watering system.  One of the five rooms contained further cannabis plants in a container. 

7Room 1 contained 38 cannabis plants of approximately 34-74 cm in height, and weighed approximately 15.54 kg.  Room 2 contained some 16 cannabis plants, approximately 100-120 cm in height and weighing approximately 33.56 kg.  Room 3 contained ten cannabis plants measuring approximately 95-110 cm in height, and weighed approximately 20.36 kg.

8Leaves and flowering heads of the plants were located in both Rooms 2 and 3 and constituted approximately 34 kg of cannabis.  Room 4 contained 61 cannabis plants in a tub of approximately 10-18 cm in height and weighing 219.8 grams.

9The total number and weight of plants located by police at the house in Churchill on 11 April 2017 was 125 cannabis plants weighing 68.68 kg in total.  You were arrested at these premises.

10Your interview with police could only be described as full and frank, and you made many admissions against your own interest.  In addition to the information that was already available as a result of the search of the premises at which you were located by police on 11 April 2017, in your interview with police you admitted to growing three previous cannabis crops, to harvesting them and then providing the dried contents from that harvest to other persons in return for payment.

11It is your admissions to the police that have fleshed out the prosecution case against you such that they are able to fix the between dates of the allegations to which you have now pleaded guilty as a six-month period.

12Your admissions have allowed the prosecution to establish that you grew three previous crops at the address of some 26 cannabis plants on each of those occasions totalling 203 plants over a six-month period when combined with what was located by police on 11 April 2017.

13A commercial quantity is 100 cannabis plants or 25 kg of cannabis.  You are therefore responsible for growing approximately twice the commercial quantity of plants and two and a half times the weight of a commercial quantity.

14 Given the six-month time period, the quantity and weight of the plants identified as being part of that cultivation, the sophisticated hydroponic setup, the use of an electrical bypass to supply electricity for lighting and heating, the number of crops, and the staggered age and stage of the cannabis plants located by police on 11 April 2017.  This is a serious example of a serious offence. 

15I note that you will not be punished for the theft of electricity, but the bypass supports the description of this being a well-established and sophisticated business operation.

16It is accepted by the parties that your role is as per your record of interview with police.  You were not the architect of this enterprise.  It is accepted by the parties that given your admissions to dehydrating three previous crops and providing the product to unknown third persons for payment, the provision to you of a car and rent-free accommodation, that your role was over and above that of a mere crop-sitter.  There does not appear to be any need, nor evidence, on which to make any further finding over and above that which has been agreed.

17Your moral culpability was high in the sense that you knew you were involved in illegal activity, were motivated by earning money, were not an abuser of drugs or alcohol, were instructed in your task and performed it in accordance to those instructions for financial reward.  Your role was an essential one to this highly planned and sophisticated business of cannabis growth, cannabis production and the drug then entering our community.

18It is a lucrative business with enormous negative impact on the community.  Your role was to assist in that process and to shield principals in such enterprises from detection, and you did so, as I have said, for financial reward. 

19It is to your credit that in your interview with police, you provided police with the details of payments made to you, which was 100 dollars per day paid to your parents in Vietnam on three separate occasions at $4,500 on each of those occasions.  You detailed being provided with rent-free accommodation, a motor vehicle and food items.

20You also provided police with the names as were known to you of the persons who had contracted you to cultivate the cannabis, and as I have already outlined, your interview provided the prosecution with the parameters to the case against you.

21Your cooperation is relevant to the assessment of your remorse, willingness to facilitate the course of justice, and also to your rehabilitation prospects.  It is also clearly in the public interest that offenders should be encouraged to be frank with police investigations, and that such cooperation be reflected in the sentence imposed in order to encourage others to take a similar path.

22I take all of these matters into account in your case.  I have also taken into account your personal circumstances as raised by your counsel in careful written and oral submissions.  In brief compass, these include that you are now 45 years, having been born on the northern coast of Vietnam.  Your parents and siblings remain in Vietnam, and I am told that you have a close family.

23Your father worked as a fisherman, as did his father before him, and you entered the family tradition at the age of 22 years, having previously been involved in fish farming and general farming duties.

24Your mother was responsible for light farming and family upkeep.  You have the equivalent of a Year 10 education, and cannot speak, read or understand English.  You were married at 24 years and have two children, a male aged 21 years and a female aged 16 years.  Your wife and children also remain in Vietnam. 

25I was told that from 2012, the fishing industry in which you worked became interrupted through pollution, and making an income this way became more difficult.  Around this time, you commenced work as a seasonal lifeguard.  In this role, you were responsible for rescuing a child.  I was told that the parents of that child were extremely grateful to you, and funded your trip to Australia.

26When you came to Australia in 2015, you were under the belief that it would be to take up an employment opportunity, but the evidence before me is that you were on a tourist visa.  I find it difficult to accept that you would not have made any enquiries to the nature of your visa.  I do however accept that you came to Australia with the intention of working. 

27At the time of your offending, you were not authorised to be in Australia, having arrived on a tourist visa which had expired on 15 June of 2015. 

28In terms of your resort to offending, I was told that after you arrived in Australia you resided in a boarding house used by seasonal workers, and that you initially commenced work in crop-picking in rural areas.  This provided little financial reward.

29You were subsequently approached to cultivate cannabis in Churchill.  You were vulnerable to that approach due to your time away from home and perceived financial pressures.  As per your record of interview, this presented an opportunity to “make more money for less work.”

30You do not have any drug or alcohol issues.  You do not have any mental health issues. 

31You have pleaded guilty at an early opportunity.  Whilst the matter was listed as a trial before me, it resolved on a basis to which you had previously offered to plead guilty. I am satisfied that your plea is one of utilitarian value, has saved court time and expense, and in your case, I am satisfied that your plea is one of remorse, which was clear through your record of interview with police. 

32Over and above these factors is of course the extent of your admissions to police, which provided the foundation for a not insignificant portion of the Crown case.  These are all matters which must be weighed in your favour.

33I am also told that you are non-insulin-dependent diabetic and suffer from reoccurring kidney infection, but that you are being adequately treated for these conditions in a custodial setting.

34I accept that the custodial setting would be somewhat isolating for you in the sense that you are disconnected from family and can only speak with them approximately once a month by way of telephone.

35You are not able to have any visits from family, who I am told are aware of your predicament.  These are also matters which I take into account.

36It is likely that you will be deported upon your release from the sentence imposed on you today.  You have no prior criminal history, this is also a factor I take into account in assessing your prospects for rehabilitation, and it would appear that those prospects are good.

37The basis purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances, and those of any victim. 

38I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and reintegrated into society. 

39General deterrence is a matter of primary importance in sentencing for a commercial cultivation of cannabis. I accept that there is less need to give weight to either specific deterrence or the need to protect the community from you. I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act. 

40Section 5(2)(h) requires that I impose a term of imprisonment. In my view, it is the only appropriate sentence regardless of this requirement.

41I now turn to sentence. 

42For the single charge of cultivate a drug of dependence, namely cannabis, in not less than a commercial quantity, you are convicted and sentenced to two years and eight months' imprisonment.  You are to serve 20 months before being eligible for parole.  I declare that you have served 436 days by way of presentence detention.

43Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charge.  If not for your plea of guilty, I would have sentenced you to a total effective sentence of four years' imprisonment with a minimum of two years and ten months before being eligible for parole.

44Are there any matters arising from the sentence?

45MS SAVILLE:  No Your Honour.

46MR NEWTON:  Not from my point of view Your Honour.

47HER HONOUR:  Is there anything I need to repeat for you, Madam Interpreter?

48INTERPRETER:  No Your Honour.

49HER HONOUR:  Thank you very much, thank you.  If you could remove the prisoner.  Thank you once again for your assistance, Madam Interpreter.  I will stand down temporarily.

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