Director of Public Prosecutions v Nguyen

[2018] VCC 316

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -17-02236

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANH NGUYEN

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	20 March 2018
DATE OF SENTENCE:	20 March 2018
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 316

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr C. Pearson	Emma Turnbull Lawyers

Pages 1 - 4

 

 

HIS HONOUR: 

1Anh De Nguyen, you have pleaded guilty to one charge of cultivating a narcotic plant, namely cannabis, in not less than a commercial quantity.  That carries a maximum penalty of 25 years' imprisonment. 

2Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise that should you refuse to provide such a sample, police may use reasonable force to take it from you and that order is made and handed down.

3You are 28 years of age and you pleaded guilty at an early, reasonable opportunity.  You, in my view, lied to police when first arrested but in the ultimate, have pleaded guilty and must get the utilitarian benefit of that.  I accept in this situation that whilst it might be problematic, I will give you the benefit of the doubt insofar as remorse is concerned.

4Importantly, but it is so often the case in these matters, you have no prior convictions either here or in Vietnam.

5I sentence on the basis that the probability is and in fact I would have thought the certainty but I will work on the probability that you will be deported at the conclusion of your minimum term.  I sentence on the basis that you undergo a sentence having had any hopes of a life in Australia all very probably dashed and that will be an extra burden on you as you undergo the balance of this sentence.

6A summary of the offending is that you are now 28 years of age and you have been in Australia for a period of some three years as a holder of a student visa.  You were involved in an institute of technology in Queen Street, where you were studying business.  Obviously at the moment, you have been in custody now for 224 days and not employed.  You had been working in a restaurant in the Fitzroy area and were having difficulty with that because you were being called upon to work longer hours than your student visa allowed.

7It would appear clear, and there is no dispute, that in the months preceding this offending, you had had financial difficulties and were under financial stress.  I am told that you were gambling to a very significant extent and the Crown opening indeed points out that you had certainly at the time of your arrest, a number of debts to various persons including the ANZ Bank.

8You went from premises in Devonshire Road, Sunshine to Kirrak Street in North Wonthaggi.  You told police you had an agreement to live there rent free and stated that a man attended daily and brought you food, which you did not pay for.  You claim that you do not know the name of the male who attended and do not have a phone number for him.

9Police had received information regarding suspicious activity at that address in North Wonthaggi and they exercised a search warrant.

10When they went there at 8.30 am on 8 August 2017, you were there apparently asleep on a bed in the dining room.  Police conducted a search of the premises, there were cannabis plants found inside the house and also in two bungalows, one down the side and one out the back.  You were arrested, you were in possession of keys and there had been an electrical bypass installed.

11All in all, police found a total of 209 cannabis plants on the property, weighing in the vicinity of 90 kilograms and that would be with a wet weight.  It is clear that all the plants were being grown in a hydroponic way when there were tubs of water, fertiliser, nutrients and all the accoutrements that go with such an operation.

12When you were interviewed by police, you said you had only been there for a week.  You said you had been down there two months earlier.  You basically tried to say you did not know what the plants were, you thought it was some sort of farm and generally counsel said minimised your role.  I think you just simply lied about it.

13In any event, you have ultimately pleaded guilty, even though there are no admissions to police of actually cultivating to this level.

14It is clear that insofar as your claim that you only been there a short time and whilst I sentence on the basis of I do not know how long you have been there, counsel for the Crown pointed out to me that your phone had been in Wonthaggi for a long time, even if you had not and there were multiple, multiple phone calls from your phone from Wonthaggi from April onwards.  Whether you were involved in the original setting up of the crop or not, I have no idea.  I make it clear I am to sentence you on that basis and I sentence you effectively as a sitter, though I have grave suspicions about it all.  A gaol sentence for an operation of this size, even for a sitter, is inevitable and it must be a significant one.

15I then turn to you matters personal to you and to cases that were given to me.  Comparable cases in a situation like this are always difficult to apply.  Some are less, some are higher.

16You had provided references and I accept that prior to this offending, you had been a person of good character.  I do not know what your study results had been.  It all seems a bit odd to me that the application for deferral seems to have been signed in October of 2017, some two months after you went into custody, but in any event, I sentence on the basis that you had been studying here, that you were on a student visa and that you were accepted well within the community and you are spoken highly of by the people who have provided the references.

17To your credit, you have completed courses in gaol and if you are deported, the prospects of you, insofar as specific deterrence are concerned are no business of mine.  The risk of you reoffending in this country would be nil.  But that is a matter that is to be taken into account later on by authorities.  Although I have indicated what my perceived view would be as to what will occur.

18All those matters can be taken into account.  You assert that you come from a respected family in Vietnam, but the difficulty with it is, Mr Nguyen, that the role that you played is one which is commonly used and enables the operators of such organisations to conduct their businesses of growing and then selling drugs with impunity.  People must be deterred from undertaking the role that you undertook and of course, there must be an appropriate punishment for it.

19Taking all those matters into account, on the charge of cultivation, you are sentenced to be imprisoned for a period of two years.  Bearing in mind your relative youth and your lack of prior convictions, I fix a minimum term of 12 months before you become eligible for parole and I will direct that 224 days be reckoned as having been served under this sentence.

20Pursuant to s.6AAA, I say that but for your plea of guilty, you would have been sentenced to a period of imprisonment of three years with a minimum term of two years.

21Any other orders I have got to make?  That is it?

22COUNSEL:  No, Your Honour.

23HIS HONOUR:  All right, you can take him now, thanks gentleman and lady.

(Prisoner removed.)

‑ ‑ ‑