Director of Public Prosecutions v Nguyen

[2018] VCC 559

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR -17-00911

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAI NGUYEN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Shepparton
DATE OF HEARING:	24 April 2018
DATE OF SENTENCE:	24 April 2018
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 559

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr L. Dean	Slades & Parsons

Pages 1 - 7

 

 

HIS HONOUR: 

1Hai Nguyen, on 6 December 2016, you were arrested in a house at
19 Furphy Avenue, Kialla.  A police investigation, including surveillance of that property had been underway since August 2016.  A search warrant was executed on the adjoining properties at 19 and 19A Furphy Avenue, Kialla. 
The premises had been converted into growing cannabis.  In fact the walls between the houses had been removed, other plaster walls had been erected. 

2What was found was a total of 394 plants in various stages of development.  The total weight of the plants was 185.28 kilograms.  That is nearly four times the commercial quantity by plant numbers and 7.4 times the commercial quantity by weight.

3A co-accused, Mr Dang, was arrested on the same day.  He pleaded guilty to cultivation of a commercial quantity of cannabis.  I sentenced him on
28 June 2017.  I will adopt much of what I said in my reasons for sentence of Mr Dang here in these reasons for sentence.

4Given the prevalence of this sort of offending and the similarity in the methodology, I have used the same description in a number of my sentencing reasons including that of Mr Dang.  The Court of Appeal has adopted and repeated these words,

"The cultivation methods employed here were sophisticated.  The lighting that had been installed was such as to allow the plants to be grown indoors.  Power had been bypassed to allow for higher volumes of electricity to be consumed without detection and more importantly, cost.  There were filters, timers, irrigation and nutrition assistance.  These are all expensive items indicating there had been significant resources expended on the basis that large quantities of cannabis would be cultivated for profit."

5I add in this case, there were large quantities of cannabis heading towards harvest for the purposes of profit.  There were seven rooms in one house and two rooms in the other house all dedicated to growing cannabis.  Given the considerable efforts and expense involved in setting up this indoor horticultural enterprise, the plants in each room were strong and healthy.  The photographs tendered on the plea reveal this.  Thus, the yield of usable drug was likely to be very high.  The plants were at various stages of growth indicating that the harvest would be planned to be regular, providing ongoing cash flow.  It would seem that the horticultural enterprise was one involving crop rotation.

6All the features found at these adjoining houses are often found in suburban or country houses that have been converted into cannabis production operations.  The crime is hard to detect and even harder to establish who are the main players in the cannabis production and distribution chain.

7Before dealing with your role in this crime, it should never be forgotten that the cannabis grown by the cultivators ultimately has serious effects on many users, and our community bears a great cost while the entrepreneurial cannabis cultivators profit significantly.

8The entrepreneurial cultivators have for some time sought to avoid their own detection by having vulnerable individuals mind the crops.  These crop sitters, as they have become known, ensure that the equipment continues to operate.  Also they provide, it would seem from time to time, a degree of security for the crop.  Most importantly, they keep the entrepreneurs at arm's length from the crop while it grows to saleable product.

9You are charged with cultivating not less than a commercial quantity over the one day, that is the day of your arrest.  It seems that the prosecution says that you are at the lowest end of this operation.  Accordingly, I will deal with you as a crop sitter and you will be sentenced as such.  I dealt with Mr Dang in that way when sentencing him in June 2017.  Thus, it is not necessary to sentence you in the terms that the Court of Appeal described in another case of
Dai Nguyen where they said those above the crop sitters, that sentences for those individuals should be uplifted.  That is not the case here and I have not imposed a sentence with the intent to comply with the Court of Appeal indication that there should be an uplift in sentences.

10However, the gravity of the offending is clear.  This was a very significant operation.  The large amount of money involved in the establishment of it and very significant number of plants and a very significant amount of cannabis by weight.

11As the Court of Appeal has made clear, general deterrence is of great significance in respect to all those involved in these drug operations including those who take it upon themselves to be crop sitters.

12As to your personal circumstances, you are now 47.  You were born and raised in Vietnam.  You were educated to a tertiary level.  Thereafter, you worked in the accounts department of a company in Vietnam.  You had worked through your studies in the fishing industry and transport industry.  You married in 1992 and have a daughter, now studying at university.  The elderly parents of you wife fell ill and you incurred debts in paying medical bills. 

13You came to Australia to make better money so as to repay those debts. 
You secured a temporary work visa to learn, I was told, about the beef industry but nothing eventuated in respect of that industry.  You tried other agricultural or farm work, dealing with berries but ultimately you came to Shepparton and secured work here.

14You have a neck injury which made labouring on the farm difficult work for you.  You moved into the cannabis production that is connected to these two houses sometime in mid-2016, it would seem, though I keep in mind that you were only charged with commercial cultivation on the single day.  You had arrived in Australia on the temporary work visa in January 2016.

15As I have said, although you were charged with cultivation on
6 December 2016, the day of your arrest, your phone, which was seized, contained text messages dated July and August 2016 with instructions about growing cannabis and hydroponic equipment.  You were in communication with your young co-accused from August 2016.  Notwithstanding this, in your record of interview, you lied by telling the police that you had only met your co-accused by chance the day before your arrest.

16You initially indicated that you would plead guilty.  However, just prior to the plea hearing with your co-accused, you changed your mind and decided to go to trial, thus the prosecution had to do significantly more work, that is doing DNA analysis and a technical interrogation of your phone.  There was the need to get fingerprint evidence and that had to be prepared and CCTV footage from nearby shops.

17Although you have now pleaded guilty and have not contested the evidence either at committal or at the trial, the value of your plea of guilty is limited, that is more limited than that of your co-accused.  It is in effect a late later plea and only after much was done to get the trial ready.  There is no other evidence of remorse.  The circumstances of your plea, as I have indicated, contrast to that of your co-accused who was afforded significant benefit for his early plea of guilty.

18As a person who came to this country to work and then became involved in serious crime, unsurprisingly, you are now isolated from your family as you are held here in prison.  I do not ignore this hardship in fixing my sentence. 
Also, your language problems make prison harder, that is you struggle with English although I note that you have done courses in the prison both to understand the legal system and in cleaning operations.  You have a neck injury and it is put that this too makes gaol harder and I have taken this into account.

19You have no prior criminal offending in the past and now at 47 years, that matter is to your credit and I have taken it into account in fixing the sentence. 
Your rehabilitation will depend on you taking up your family responsibilities and their support in Vietnam, it is hoped that you do return to law abiding ways. 
You have the hardship of not being with your family while in prison and that includes further information that I have received and accept that your own mother is terminally ill.

20Those are the matters that I have been taken to in mitigation.  What was emphasised in a comprehensive written and oral plea was the principle of parity must play a role between you and your co-accused.  However, there are two significant matters in mitigation that were present in his case, the first being his youth as an immature 20 year old, while you in contrast are a 47 year old tertiary educated, mature, married man and father.  Your co-accused could also rely upon his lack of capacity perhaps to think things through.  You cannot put those matters forward as he could.

21Also, as noted already, he pleaded guilty at an early point and I considered that this was a matter in his favour because of his early plea.  You do not have the extent of the benefit that he did.  Thus, your sentence must be longer, lest the important policy imperative of making the benefit of an early plea palpable to all including other offenders.

22Thus, my sentence must be different to that of your co-accused, although I keep in mind that your roles were put as the same and I have operated on that basis.

23My sentence must express denunciation and deterrence in a practical way.  That was conceded in effect by your barrister by reason of an indication that there needed to be a sentence of imprisonment and a minimum term fixed.

24This crime has a long maximum term and is a costly blight in our community.  You played your role as a crop sitter in what was a very significant entrepreneurial cultivation, which would have brought about large profits. 
This was, as I have indicated, 7.4 times the commercial quantity for cannabis.  You must now, Mr Nguyen, face the consequences of that criminality.

25For committing the crime of cultivation of a narcotic plant in not less than the commercial quantity, you are sentenced to four years and nine months and I fix a minimum term of two years and six months before you are eligible for parole.

26You have already served 504 days in custody, this figure having been reckoned, I declare that 504 days as part of the sentence that I have just imposed.  I will ensure this declaration is entered into the records of the court so that the prison authorities are left in no doubt you have already served 504 days of the sentence that I have just imposed.

27Had you pleaded not guilty to this offence, and been found guilty of it, I would have imposed a sentence of five years and six months with a minimum term of three years and three months.  I propose to make the orders relating to disposal that have been applied for by the prosecution.

28MR CORDY:  As Your Honour pleases.

29HIS HONOUR:  Is there anything further?

30MR DEAN:  No, Your Honour.

31HIS HONOUR:  Thank you very much.  If there is nothing further, Mr Dean, thank you very much for coming up at short notice and with all the ups and downs that occurred in relation to that, I'm grateful to you.

32MR DEAN:  Thank you, Your Honour.

33HIS HONOUR:  To Mr Tran, the interpreter, thank you very much for your assistance.  Mr Dean might need some further help from you so if you are able to assist Mr Nguyen in speaking to his lawyer, I would be grateful.

34INTERPRETER:  I am, Your Honour.

35HIS HONOUR:  That will be in the police station.  So if you wouldn't mind, that is Mr Nguyen heading that way and Mr Tran coming out of the dock.  There is nothing else required?

36MR CORDY:  No, Your Honour.

37HIS HONOUR:  Thank you.

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