Director of Public Prosecutions v Nguyen

[2018] VCC 175

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR‑17‑01993
CR‑18‑00020

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUI NGUYEN
QUAN NGUYEN

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2018
DATE OF SENTENCE:	26 February 2018
CASE MAY BE CITED AS:	DPP v Nguyen & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 175

REASONS FOR SENTENCE
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APPEARANCES: For the Director of Public	Counsel	Solicitors
Prosecutions	Ms H. Bate	Office of Public Prosecutions
For Accused Qui	Ms M. O’Brien	Stary Norton Halphen
For Accused Quan	Ms S. Parsons	Doogue & George

1HIS HONOUR: Qui Nguyen, you have pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant, namely cannabis, contrary to s.72A of the Drugs, Poisons and Controlled Substances Act1981.  The maximum penalty for that offence is 25 years’ imprisonment. 

2Quan Nguyen, you have pleaded guilty to one charge of cultivating a narcotic plant, namely cannabis, contrary to s.72B of the Drugs, Poisons and Controlled Substances Act1981.  The maximum penalty for that offence in the circumstances of this case is 15 years’ imprisonment.

3Qui Nguyen, you pleaded guilty at the committal mention and your early plea has spared the community the expense of a complex criminal trial.  I accept that it is also evidence of a degree of remorse in your case.  I have taken your plea into account in your favour in mitigation of sentence. 

4Quan Nguyen, you pleaded guilty following a committal mention, but your plea is nevertheless an early plea and it too has spared the community the expense of a criminal trial.  I accept that it is evidence of your remorse and I have also taken your plea into account in your favour in mitigation of sentence.

5Neither of you have any prior convictions, subsequent convictions, or outstanding charges. 

6The prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –

7On 5 June 2017, police executed a search warrant at premises located at 11 Caldwell Road, Williams Landing, and there arrested Quan Nguyen and your sister, Quin Nguyen.  A search of the premises revealed 50 semi-mature cannabis plants, weighing a total of 21 kilograms, under cultivation in the premises.

8A body of other evidentiary material established that Quan Nguyen was residing there.  Following a review of Quan and Quin Nguyen’s mobile telephones, five other nearby addresses were searched by investigating police. 

9At 7 Florey Avenue, Point Cook, 76 semi-mature cannabis plants, weighing 92.08 kilograms, were located.

10At 183 Dunnings Road, Point Cook, 69 semi-mature cannabis plants, weighing 40.36 kilograms, were located. 

11At premises in Marble Road, Point Cook, 140 semi-mature cannabis plants, weighing 12.79 kilograms, were located.

12At 7 Santander Crescent, Point Cook, 136 semi-mature cannabis plants, weighing 42.81 kilograms, were located. 

13At 16 Freshet Avenue, Point Cook, 151 semi-mature cannabis plants, weighing 20.79 kilograms, were located. 

14At each property, the cannabis was being grown with sophisticated hydronic systems.  An electrical bypass was used in each instance.  Each property was the subject of a residential tenancy agreement and in each instance Qui Nguyen was one of the named leasees in the agreement.

15This was an organised, sophisticated, and well-resourced operation to cultivate a very significant quantity of cannabis.  The prosecution accept that the role of Quan Nguyen was to crop sit the crop located at the premises in Williams Landing.  His sister, Quin Nguyen, was charged with possession of cannabis and dealt with in the Magistrates’ Court, receiving a sentence of 100 days’ imprisonment, which she had already served.  Three further offenders arrested in the course of the investigation are to be dealt with in this court on 15 May 2018.

16In total, 622 semi-mature cannabis plants were seized, weighing a total of 229.83 kilograms.  Accordingly, the amount of cannabis in the case of Qui Nguyen is at the upper end of the commercial quantity of that plant.  It was initially submitted on behalf of the prosecution that Qui Nguyen was the head of the syndicate responsible for the cultivation of the cannabis.  Following submissions in relation to his role, it was accepted by both parties that I should sentence him on the basis that he occupied a middle management role, involving supervision and significant responsibility in the syndicate. It is clear from the evidence before me that this is the case, and as I had said, this was accepted by his counsel. 

17The profits to be gained from this substantial criminal operation would have been significant and in the case of Qui Nguyen, it is clear that he was motivated to share in those profits.  The sentencing principles applicable in this case are well established and were restated by the Court of Appeal in Nam Son Nguyen v R [2016] VSCA 198.  The sentence that I impose must be calculated to deter others from offending in this serious manner.  And in my opinion, specific deterrence is also applicable in each of your cases. You must also be punished for your crimes. 

18Your cases are, of course, quite distinct and the application of the relevant sentencing principles in your cases must be considered separately by me, and I have done so.  Furthermore, in the case of Qui Nguyen, your moral culpability is heightened by the fact that you enlisted your son to offend.  And it would appear that your offending also caused, in part, your daughter to offend. 

19In the case of Quan Nguyen, you made full admissions to investigating police when interviewed. In the case of Qui Nguyen, you were not interviewed due to the unavailability of an interpreter. 

20I now turn to your personal circumstances. 

21Qui Nguyen, you were born in Vietnam on 6 July 1963 and are now aged 54.  You left Vietnam in 1985 and travelled to Hong Kong to work as a chef.  You married there and your two children were born there.  In 1994, the family moved to London and established a nail salon business, which is currently operated by your wife and daughter, who has now returned to England.

22You arrived in Australia on a tourist visa in 2012 and have remained here illegally.  Your counsel submitted that you travelled here to visit a niece at a time that you were experiencing difficulties with your wife.  She submitted that you developed a gambling addiction and this in turn led you to offend.  There is no evidence before the court to support this, and as I have said, in my opinion you offended in order to share in the large profits on offer from your crimes.  You are in good physical and psychological health.

23I accept, however, that the hardship of imprisonment will be compounded in your case by reason of your isolation from your family.  Your son, who is in prison with you, will be deported on his release.  You, too, will be deported on your release.  But in neither case is this fact relied on as further evidence of hardship.  Your isolation in prison will be further increased by the fact that you speak little or no English.

24I accept that your prospects for rehabilitation are good, although some caution in that regard is required by reason of your role in the offending before the court. 

25Quan Nguyen, you were born in Hong Kong on 19 January 1994 and are now aged 24.  Accordingly, you are a youthful first offender and I accept that in such a case, rehabilitation is a significant sentencing consideration.  You completed your secondary education in England and it would appear that you were a capable student and sportsman.

26Following your secondary education, you completed a business management course and you and your sister opened the nail salon that continues to be operated by your family.  You have a partner who returned to England prior to your arrest and in January 2018, she gave birth there to a daughter.  I accept that you are now most anxious to be reunited with your partner and young child.  I further accept that your prospects for rehabilitation may properly be described as good. 

27Your counsel submitted that I should fix a non-parole period in your case. That would provide for your release in the near future and this submission was not opposed by the prosecution. 

28In arriving at an appropriate proportionate penalty in the case of Qui Nguyen, I have also had regard to the summary of sentences set out by the Court of Appeal in Ngoc Nguyen v R [2017] VSCA 286 in relation to the offence of cultivating a commercial quantity of cannabis.

29In the result, the sentence of the court is as follows: 

30Qui Nguyen, in relation to the charge of cultivating a commercial quantity of cannabis, you are convicted and sentenced to be imprisoned for six years.

31I direct that you serve three years and 9 months before becoming eligible for release on parole. 

32I declare you have served 257 days by way of presentence detention, not including today. 

33But for you plea of guilty, I would have imposed a total effective term of imprisonment of eight years and fixed a non-parole period of five years and six months.

34Quan Nguyen, in relation to the charge of cultivating cannabis, you are convicted and sentenced to be imprisoned for two years and three months.

35I direct that you serve nine months before becoming eligible for release on parole. 

36I declare that you have served 266 days by way of presentence detention, not including today. 

37But for your plea of guilty, I would have sentenced you to a total effective term of imprisonment of three years and three months and fixed a non-parole period of 18 months.

38I have made the forfeiture and disposal orders sought by the prosecution.

39HIS HONOUR:  We’ll adjourn until 10.30.

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