Director of Public Prosecutions v Nguyen

[2018] VCC 396

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-17-01876

DIRECTOR OF PUBLIC PROSECUTIONS

v

DIEU VAN NGUYEN

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JUDGE:	HER HONOUR JUDGE CONDON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2018
DATE OF SENTENCE:	20 February 2018
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 396

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms C. Foot	Office of Public Prosecutions
For the Accused	Mr J. Pruden	Challenge Legal

HER HONOUR:

1       Dieu Van Nguyen, you have pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant, and one charge of theft.  The maximum penalty for commercial cultivation of a narcotic plant is 25 years’ imprisonment, and for theft ten years’ imprisonment.

2       The circumstances of your offending are contained in the prosecution opening which was Exhibit A upon the plea.  However, I will briefly summarise your offending.

3       On 1 June 2017 police attended at 1 Don Street, Reservoir.  At that time you were residing there with your wife and child.

4       You were arrested outside the house, and provided police with access to three large rooms at the rear of the house.  There was a fourth smaller room which looked like an old sauna.  In each of the four rooms attached to the rear of the property, cannabis plants were being cultivated hydroponically.  In Room 1 there were 35 cannabis plants; Room 2, 81 cannabis plants; Room 3, 35 cannabis plants; and Room 4, 39 cannabis seedlings.  A total of 190 plants were located, weighing 78.83 kilograms.  (This constitutes Charge 1 on the indictment)  An electrical inspector attended at the Don Street property and located and removed three electrical bypasses that had been installed.  (This relates to Charge 2 on the indictment).

5       You were then conveyed to the Melbourne West Police Station for the purpose of a record of interview.  In the course of your record of interview you made the following admissions:

(i)     You were sorry, you did a bad thing because you wanted to support your family after they lost the business and you owed people a lot of money.  You wanted to save your wife after she tried to kill herself, and you tried to make some money to pay people back, not to get rich.

(ii)    You had been growing the plants for nearly two months.

(iii)   You had not yet sold any of the plants.

(iv)   You had bypassed the electricity yourself a couple of months ago.

(v)    No one else had helped you grow the plants.

(vi)   Your wife knew nothing about you growing cannabis.

6       Your plea of guilty to this matter was entered at the earliest possible stage of proceedings and on the plea in mitigation, this fact was conceded by the prosecutor.  In the circumstances, I find that this is a plea of guilty consistent with a desire to facilitate the administration of justice, and also with remorse.  Indeed, expressions of remorse in relation to your offending were contained in that record of interview conducted on the day of your arrest.

7       In the course of that record of interview you explained the motive for your offending.  As a consequence of various business interests that you had, you accrued a substantial debt to various debtors (which included family members).  Tendered on the plea was Exhibit 1.  This document contained various tax invoices which related to a seafood wholesale business owned by you at the Preston Market and another seafood business owned by you at Point Cook.  The most recent of these, on 12 May 2017, indicated an amount owing by your business at Point Cook of close to $100,000.  In total I was told the debt owed by these businesses was in the region of $450,000.

8       You attempted to sell the family home (that being the residence in Don Street, Reservoir) in order to expunge the debt.  However, this did not occur as quickly as you wanted it to; and thus in an act of desperation you resorted to criminal activity.  It seems that the desire to rid yourself of the burden of your debt was the only motive for your offending.  You have otherwise been an honest and hardworking individual.  You are now 50 years of age.  In the circumstances, I was asked by your counsel to find that your prospects of rehabilitation are excellent, given that the catalyst for your offending was brought about solely by the burden of your debt.  I accept that submission.

9       As to your moral culpability for the offending, it was submitted by the prosecution that I should sentence you on the basis of greater moral culpability than a crop-sitter.  Your counsel agreed with that submission.  In the circumstances, therefore, my assessment of your moral culpability for this offending is made with regard to the following features:

(i)     That you were the sole proprietor/operator of the enterprise.

(ii)    That a considerable number of plants were involved, involving a total weight in excess of three times the threshold for a commercial quantity, being 25 kilograms;

(iii)   and that, whilst it was a relatively unsophisticated operation, there was some infrastructure involved, given that at least three of the rooms had been subject to an electrical bypass.

10      I turn now to your personal circumstances.  You were born in Vietnam and grew up in a family of two brothers and one sister.  Your parents worked as fishermen.  You left school in Grade 4 to work with your mother due to financial difficulties.  You arrived in Australia in 1984 as a refugee, after leaving Vietnam with your brother and sister-in–law.  You are an Australian citizen.  Your oldest brother currently lives in Sydney, you are very close to him and indeed regard him as a father figure.  Your youngest brother and sister live in Vietnam with your mother.

11      You are married with two children: a son aged 28, and a daughter aged nine. Both your wife and son were present in court.  Your wife remains very supportive of you, as does your son.

12      It appears your wife has been significantly impacted by your actions.  In a psychological report of Dr Sandra Nguyen, tendered as Exhibit 2 on the plea, your wife feels she has tried her best to support you during this stressful period; however, she reports difficulty with her own sleep, low mood, poor concentration, poor memory, and heightened anxiety.  She struggles to control her thoughts about you and the impact on your children once you are incarcerated.

13      You also reported to Dr Nguyen that you are very ashamed about your actions and that you have brought significant dishonour to your family by your offending. She diagnosed you with an adjustment disorder with mixed anxiety and depression.  These conditions are solely the consequence of your financial difficulties, the impact of your offending and the strain of your legal matters.

14      In the course of his plea in mitigation, your counsel submitted that I should rely on the following factors in amelioration of the sentence:

(i)     Your previous good character.

(ii)    Your plea of guilty.

(iii)   Your admissions to police upon arrest.

(iv)   Your favourable prospects for rehabilitation, especially given that the discrete set of circumstances that triggered your offending are no longer in existence.

(v)    The fact that given your age and lack of antecedents, your first time in custody will be a difficult prospect for you.

15      The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation, and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, and your personal circumstances.

16      In assessing the seriousness of the offending here, I take account of the fact that you were indeed the principal and sole proprietor of the crop and equipment.  Whilst there is no evidence that you were part of a greater criminal enterprise, your offending remains serious.  However, I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, offenders are rehabilitated and reintegrated into society.

17      Please stand, Mr Nguyen.

18      In relation to Charge 1, being a charge of cultivate a commercial quantity of a narcotic plant, I sentence you to a period of two years, six months’ imprisonment.

19      In relation to Charge 2, being a charge of theft, I sentence you to six months’ imprisonment.

20      I order that two months of the sentence on Charge 2 be served cumulatively with the sentence imposed upon Charge 1.

21      That makes for a total effective sentence of two years, eight months’ imprisonment, and I impose a period of 15 months before you become eligible for parole.

22 Pursuant to s18(4) of the Sentencing Act, I declare that you have spent four days (not including today) by way of pre-sentence detention.

23 Pursuant to s6AAA of the Sentencing Act, were it not for your plea of guilty to these offences I would have imposed a sentence of four years’ imprisonment with a non-parole period of two years.

24      I make the orders under s464ZF(2) sought by the prosecution.

25      MS FOOT:  I have copies of those.

26      HER HONOUR:  Thank you.  They have been signed.

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