Director of Public Prosecutions v Nguyen
[2018] VCC 418
•5 April 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-02233
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANH NGUYEN |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 March 2018 | |
DATE OF SENTENCE: | 5 April 2018 | |
CASE MAY BE CITED AS: | DPP v NGUYEN | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 418 | |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Cultivate commercial quantity of cannabis - non-prohibited person possessing registered general category handgun without licence - possess cartridge ammunition - commit indictable offence whilst on bail
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:33 months’ imprisonment with 22 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Crown at hearing For the Crown at sentence | Mr A. Trotman Ms S. Gillahan | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Ms C. Beissmann Ms R. Taranto | Victoria Legal Aid |
HIS HONOUR:
1 Thanh Nguyen, you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis, one charge of being a non-prohibited person possessing a registered general category handgun other than for the purpose of collecting without being the holder of a licence, one transferred summary charge of possession of cartridge ammunition and one transferred summary charge of committing an indictable offence whilst on bail.
2 The maximum penalty for cultivating a commercial quantity of cannabis is 25 years’ imprisonment. The maximum penalty for a non-prohibited person possessing a registered general category handgun other than for the purpose of collecting without being the holder of a licence is 4 years’ imprisonment or 240 penalty units. The maximum penalty for possession of cartridge ammunition is 40 penalty units. The maximum penalty for committing an indictable offence whilst on bail is 3 months' imprisonment or 30 penalty units.
3 By way of background you are now aged 30, having been born on 18 November 1987, and at the time of the offending you were 29 years old.
4 You have a criminal record about which I will go into more detail shortly.
5 On 4 April 2017 you were charged by police in relation to possession of cannabis and driving whilst suspended. You were bailed from the Keilor Downs Police Station to appear at the Sunshine Magistrates' Court on 24 April 2017. On 24 April 2017 the matter was adjourned and your bail was extended to 15 August 2017. You were therefore on bail at the time of committing these offences.
6
As to the circumstances of this offending, on 27 July 2017 a search warrant was executed by police at premises at Maidstone. Police gained entry to the building.
7 At the same time you ran out of the rear of the premises and attempted to climb over the rear fence. Police yelled at you to stop and get on the ground. You complied and were arrested.
8 Upon searching the premises police located cannabis plants growing in four rooms of the house. Hydroponic equipment was being used to assist with growing the plants.
9 The following items were seized by police from inside the house.
· 33 cannabis plants, the weight of plants being 126.776 kilograms;
· three plastic bags containing dried cannabis, the weight of cannabis being 2.32 kilograms;
· one jar containing dried cannabis, weight of cannabis 6.1 grams;
· a loaded revolver handgun, located in the front room underneath a pillow on the couch, wrapped in a sheet - you told police that you sleep in this room; and
· four ammunition rounds, located in the front room in a box inside a drawer.
10 The total weight of all cannabis seized was 129.102 kilograms.
11 An electricity bypass had been installed at the premises.
12 On 27 July 2017 a record of interview was conducted by police with you. During this interview you stated the following:
· I am the only person who stays at the house. I have been staying there for 2 months.
· I was selling the cannabis.
· I came to the house and it was all set up. I feed the plants with water and chemicals.
· I receive money for looking after the plants, $5,000 for three months. I am paid by a friend.
· The bigger plants were about two months from harvesting and the smaller plants about three or four months.
· I leave the cannabis for my friends to sell but I also sell the cannabis for $20 a stick.
· I don’t sell much, I really just smoke it. It’s none of my business, I don’t like to get involved with it.
· I was not aware that the gun was there. It is not my gun. I don’t know who the gun belongs to.
· I may have touched the gun a little while back, but not recently.
13 I now turn to your personal circumstances.
14 As I noted earlier you are now aged 30 and you were 29 at the time of offending.
15 You were born in Vietnam in 1987 and came to Australia with your family when you were two years old.
16 You are educated at secondary level and finished Year 12.
17 You commenced an apprenticeship in plumbing but did not complete it due to your developing illicit drug use. You have a scant work history with your longest job being five months on a farm. In the months prior to your current incarceration you were unemployed and claiming Centrelink benefits.
18 You met your current wife in Vietnam and you have been together for the last four years. You have one daughter aged four. Your wife is supportive of you.
19
Your drug use commenced by smoking cannabis when you were 16 years old. You still regularly use cannabis and freely acknowledge that you are addicted to it. You started using heroin when you were 21 and you were dependent upon it at age 23. You also have reported using methamphetamine in the past. Also around age 23 you had engaged for a time with drug and alcohol counselling.
20 You have been diagnosed with schizophrenia and have been receiving treatment for this condition for the last five years, having been admitted to hospital on several occasions including the Royal Melbourne Hospital and the Sunshine Adult Acute Psychiatric Unit. You are currently being treated with the anti-psychotics Olanzapine and Zuclopenthixol.
21 Dr Nicholas Owens, consultant psychiatrist, has provided a report on your mental health.
22 Dr Owens has confirmed the diagnosis of paranoid schizophrenia. Your illness is persistent and the likelihood is that you will require ongoing anti-psychotic treatment for the foreseeable future. Currently your mental state is stable whilst medicated and you show no current evidence of active symptoms. You also meet diagnostic criteria for cannabis dependence. In Dr Owens' opinion, it is unlikely that your mental health will deteriorate as a result of imprisonment if you maintain the current treatment. Relapse is likely if you were to unilaterally stop treatment against medical advice.
23 Cultivation of cannabis in a commercial quantity is regarded as serious offending. It calls for the application of principles of general deterrence, that is, to make an example of you as an offender to deter other like-minded persons, and also, where appropriate, specific deterrence directed at you. The legislation is predicated on the basis that cannabis is harmful and that denunciation by the court and the protection of the public is of special importance.
24 You took your chances in maintaining the cannabis crop for the purpose of financial gain and personal use of some cannabis. Specific deterrence is important. Furthermore, this type of assistance to the financiers and developers of relatively sophisticated cannabis plantations is not uncommon and principles of general deterrence are particularly important.
25 Your complete involvement in the crop is difficult to fully determine. However, the evidence is clear that you were engaged in a maintenance role above that of a casual visitor. You had been living at the premises and closely maintaining the development of the crop over a period of two months. You were prepared to maintain possession of a loaded revolver whilst you were at the crop, most likely as either a deterrent to others in protection of the crop or for your protection. In my view your role can be regarded as a serious ‘functionary’. There is insufficient evidence to accept that you were implicated in the setup of the crop or in the wider entrepreneurial activities and purposes of the crop.
26 Your offending is also aggravated by the fact that it was committed whilst you were on bail.
27 In all the circumstances, I am guarded about your prospects of rehabilitation which, in my opinion, will only be achieved if you maintain the therapeutic treatment you are currently receiving for your mental health.
28 Among other previous offending you have a prior conviction for possessing heroin in 2009, and in 2010 you received a gaol sentence from this court for trafficking in heroin.
29 In mitigation I take into account the matters submitted by your counsel and in particular:
· your full admissions to the police;
· your plea of guilty which I note was made at the earliest opportunity, both for its utilitarian benefit and as an indication of remorse;
· the context of your mental health condition in combination with your long-standing addiction to illicit drugs; and
· the support you have from your family and wife.
30 I am satisfied that in all the circumstances your role in this cultivation calls for the imposition of a sentence of imprisonment and your counsel responsibly conceded that the degree of sophistication of the enterprise and your personal circumstances do warrant such disposition.
31 Mr Nguyen, could you please now stand.
32 On Charge 1 of cultivating a commercial quantity of cannabis you are convicted and sentenced to two years and six months' imprisonment.
33 On Charge 2 of being a non-prohibited person possessing a registered general category handgun other than for the purpose of collecting without being the holder of a licence you are convicted and sentenced to six months' imprisonment.
34 On the transferred summary charge of possession of cartridge ammunition you are convicted and fined $500.
35 On the transferred summary charge of committing an indictable offence whilst on bail you are convicted and sentenced to one month’s imprisonment.
36 Charge 1 is the base sentence.
37 I direct that three months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. The sentences are otherwise concurrent.
38 The total effective sentence is two years and nine months' imprisonment.
39 I direct that you serve a minimum period of 22 months' imprisonment before being eligible for parole.
40 You have been remanded in custody since your arrest on 27 July 2017. Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 252 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
41 For the purposes of s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is a term of imprisonment of four years with a non-parole period of three years.
42 At the plea hearing the Crown sought an order which was consented to for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, your prior convictions warrant the making of the order, the order is by consent and the granting of the order is in the public interest.
43 I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Nguyen?
44 OFFENDER: Yes, Your Honour.
45 HIS HONOUR: Thank you. At the plea hearing the Crown also sought disposal and forfeiture orders in relation to the items seized by police to which you also consented, and I have made those orders also today.
46 Are there any other matters from either counsel?
47 MS TARANTO: No, Your Honour.
48 MS GILLAHAN: No, Your Honour.
49 HIS HONOUR: Thank you, Mr Nguyen, you may leave now.
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