Director of Public Prosecutions v Nguyen

[2018] VCC 404

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-02273

DIRECTOR OF PUBLIC PROSECUTIONS

v

GIANG TO NGUYEN

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2018
DATE OF SENTENCE:	4 April 2018
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 404

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Lee	Office of Public Prosecutions
For the Accused	Ms N. Grunwald	Paul Vale Criminal Law

HIS HONOUR:

1Giang To Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant, commercial quantity.  This offence carries the maximum penalty of 25 years' imprisonment.  It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, prosecution opening for plea hearing.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.

2You are 39 years of age.  You are a Vietnamese national.  You are the holder of an Australian bridging visa whilst your application for permanent residency is being processed.  Between Friday, 14 July 2017 and Tuesday, 8 August 2017, the police observed on multiple occasions your motor vehicle parked within the residential premises at 118 Lindrum Road in Frankston.

3On 8 August 2017 you were seen parking your vehicle in the driveway at the front of that property.  You were arrested by police.  The police observed, upon entering the property, a large sophisticated hydroponic cannabis crop growing within numerous rooms of the house.  There appeared to be in excess of
180 cannabis plants being grown within that house.  You were in possession of an Apple iPhone, house keys and a garage remote control.

4The property was being used for the purpose of the cultivation of a hydroponic cannabis crop.  There were extensive wiring and lighting systems and transformers operating in an unsafe manner.  There was a system of water irrigation pipes in place providing water and nutrition to the plants.  An electrical bypass was located within the roof cavity of the house.  The cannabis plants were located in various stages of growth.  They were being grown hydroponically within four rooms of the premises.  The total amount of cannabis plants was 187.  The total weight of cannabis was 116.1694 kilograms.

5Your black Apple iPhone had several pop up notifications on the home screen detailing that a TP Link motion sensor cloud camera had been activated.  There were two TP Link motion sensor cloud cameras at 118 Lindrum Road.  The first camera was positioned on the exterior front of the property covering the front of the property and driveway area.  The second camera was positioned in the hallway of the property above the Room 1 door facing along the hallway covering the entrances to Rooms 2, 3 and 4 and the bathroom.  There was a TP Link cloud application on your phone which allowed you to remotely monitor the property and receive invasion alerts when the cameras were activated. 

6I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  You pleaded guilty at an early stage having indicated a willingness to plead guilty at a very early stage. 

7I accept on all the material before me that you are genuinely remorseful. 
You have no prior convictions.  I sentence you as a person of previously good character. 

8I have been told something of your personal circumstance and these matters are set out in detail in the outline of defence submissions upon plea, Exhibit 3.  As I have already stated you are 39 years of age having been born on 15 June 1978 in Vietnam.  You were educated to tertiary level in Vietnam and you worked for 12 years as a journalist and documentary writer for a government operated television channel in Vietnam. 

9You have two children, aged five and 11 years, from your first marriage and your ex-wife and these children reside in Vietnam.  You immigrated to Australia in 2013 on a student visa.  You commenced a Masters of Business Management course at Ballarat University.  You struggled financially and with your studies.  You left that course and pursued fulltime employment in 2015. 

10You married your second wife in 2015.  She has three children, aged 14, six and four years.  At the time of this offending you were living with your second wife in St Albans.  You ran your own cleaning company, GTN Cleaning Service and in addition to cleaning you undertook gardening and general handyman duties.  The business earned a modest profit of about $12,000 to $14,000 per annum.  Your wife received a Centrelink benefit.  You were struggling financially. 

11I accept the submission made on your behalf that you became involved in this offending as a result of financial pressure.  You have been in custody since 8 August 2017, 239 days excluding this date.  Whilst in custody you have not received any visitors.  You no longer have the support of your second wife either in respect of visits whilst you are in custody or in respect of your application for permanent residency.  You maintain phone contact with your eldest child in Vietnam.

12It is likely that as a result of this offending and subsequent incarceration your second marriage will be terminated and your application to reside in Australia will be unsuccessful.  I accept the submission made on your behalf that unless the Minister intervenes to reverse the decision to revoke your bridging visa you will lose the opportunity to remain in Australia.

13I accept that a term of imprisonment will be more onerous upon you given your immigration status, limited ability to communicate in English and lack of family support in Australia. 

14Whilst in custody you have been using your time productively.  You undertake English classes twice a week and you work as a cleaner.  As I have already stated the pre-sentence detention is 239 days excluding this date.

15Having regard to your good education and good work history, the absence of any physical or mental health issues and the absence of any drug or alcohol issues, I assess your prospects of rehabilitation as being good.

16Against these matters in mitigation, however, your actions were very serious indeed.  Whilst it is appropriate to categorise the cultivation as part of a mid-range operation your involvement is best described as that of a classic crop sitter.  The role of a crop sitter in the hydroponic cultivation of cannabis is an important one.  It is clear, from the observations made by the police, that this was a relatively sophisticated and large hydroponic cannabis crop.

17As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence.  Specific deterrence is less relevant as you have no prior convictions and I assess your prospects of rehabilitation as being good.  General deterrence is of considerable importance in a case such as this.  Superior courts have consistently emphasised that this type of offending must be discouraged. 

18I have had regard to current sentencing practices and the numerous recent authorities including Nam Son Nguyen v R [2016] VSCA 198 on this offending. It is clear from the extensive review of recent authorities undertaken by the Court of Appeal that this is serious offending. I am called upon by the Sentencing Act and it is appropriate that I manifest the community's denunciation of your conduct.  I must generally impose a just punishment.  It is not in issue that an immediate custodial sentence is required. 

19Having regard to all relevant facts and appropriate sentencing principles, on the charge of cultivation of a narcotic plant, commercial quantity, you are convicted and sentenced to three years' imprisonment. 

20The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist.  For that reason it cannot be fixed automatically.  All relevant factors and the sentencing principles that are to be taken into account, I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.  In all the circumstances I direct that you serve a minimum term of two years' imprisonment before becoming eligible for parole.

21As prescribed by s.18(4) of the Sentencing Act I declare that the period of time you have spent in custody is 240 days, that includes this date.  That period is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court. 

22I shall make the disposal order sought by the prosecution.

23Pursuant to s.6AAA of the Sentencing Act I state that the sentence and non-parole period I would have imposed but for the plea of guilty is the sentence of four years' imprisonment and a non-parole period of two years and six months.

24Does that cover all the formalities?

25MR LEE:  Yes it does, Your Honour.

26HIS HONOUR:  Thanks very much for your help, Mr Lee, Ms Grunwald.

27MS GRUNWALD:  As Your Honour pleases.

28HIS HONOUR:  Thank you.  The prisoner can be removed and I'll adjourn to 10.30 tomorrow morning.  Thanks.

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