Director of Public Prosecutions v Nguyen

[2017] VCC 1962

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01566
CR 17-01712

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAM NGUYEN
HONG NGUYEN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2017
DATE OF SENTENCE:	14 December 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 1962

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr H. Boyd-Wilson	Office of Public Prosecutions
For Accused H. Nguyen	Mr M. McGrath	James Dowsley & Associates
For Accused N. Nguyen	Mr O. Smith	Pica Criminal Law

HIS HONOUR:

1Nam Song Nguyen, your involvement in the cultivation of cannabis is a little bit different to the usual that comes before this court.

2Firstly on 23 November 2010, you were seen leaving an address in Tarcoola Drive, Burnside.  You were arrested in the driveway.  A police search of those premises revealed five cannabis grow rooms containing cannabis plants and hydroponic equipment.  As is common, an electrical bypass was located.

3Police seized 101 cannabis plants which weighed 24.53 kg.  There was additional plant material in the premises, bringing a total weight of cannabis seized up to 25.41 kg.

4You claimed in your police interview that you had stayed in the premises just for one night to look after the house for a friend who was going interstate.

5You were bailed to appear at the Melbourne Magistrates' Court on 11 February 2011.  You failed to appear and a warrant was issued for your arrest.  You were not located by the police until May 2017.

6On 11 May 2017, police executed a warrant at 108 Biltmore Crescent, Roxburgh Park.  Inside those premises were seven rooms dedicated to growing cannabis.  Again there was hydroponic equipment and an electrical bypass.

7Later on that day, you Nam Song Nguyen arrived at the address together with you, Ms Hong Thi Nguyen.  You were both arrested by the police.

8Because of the unavailability of an interpreter on that day, neither of you gave a police interview.

9The total number of plants at the Roxburgh Park address was 243 which weighed a total of 123.278 kg.  This is 2.4 times the commercial quantity by plant numbers and 4.9 times the commercial quantity by weight.

10You, Nam Song Nguyen, faced two indictments.  In respect to the property at Burnside in 2010, you were indicted on one charge of cultivation of a narcotic plant.  This charge is often described as cultivation simplicter.

11The prosecution preferred this charge against you, notwithstanding that you had exceeded the threshold for a commercial quantity both by plants and by weight, but barely so.  Thus, this is a serious example of cultivation simplicter.

12On a separate indictment, you Nam Song Nguyen indicted for cultivating a narcotic plant in a commercial quantity and theft of electricity related to the Roxburgh Park premises in May 2017.

13You, Hong Thi Nguyen are charged with possession of a drug of dependence, namely cannabis being 123 kg of cannabis at the Roxburgh Park house.

14In respect to the premises at Burnside, where the charge is not a commercial quantity, I have considered all matters and I am left with no doubt at all that the cultivation was for the purposes of sales, and thus the maximum term is 15 years' imprisonment for you, Nam Song Nguyen.

15In respect of you, Hong Thi Nguyen, I have considered all of the materials and the evidence and I have no doubt that your crime of possession of the drug of dependence was for purposes other than personal use and for sale.  Thus, I have no doubt the pile penalty of five years' imprisonment is applicable to you as the maximum term.

16In respect of you, Nam Song Nguyen, as I indicated, you gave a record of interview in respect to the Burnside premises, maintaining that you were at the premises at the request of a friend to look after the house while he was away for a short time.  You nominated this friend as Lien Tran.

17Ultimately you gave evidence on your plea and said that you were asked to water the plants at the Burnside premises but had not done so before you were arrested.  Nonetheless you have pleaded guilty to cultivation.

18In respect to the Roxburgh Park premises, you gave evidence that you met a man at a Pokies venue in McIntyre Road, Sunshine, who indicated to you that he could help you with your debts if you agreed to look after the crop at Roxburgh Park.

19You only knew this man by a single name.  You said in your evidence that there was no arrangement for how much money you would receive, how or when you would receive it, save that it would be after the crop was harvested.  No details that you could give were provided to locate this man.

20Your evidence was vague and unimpressive in this regard.  However for reasons best known to them, the prosecution did not challenge one bit of this evidence.

21Your counsel submitted that you were a crop sitter and no more at both of the cannabis production houses.

22As noted, your circumstances are unusual because you have been caught twice at cannabis production houses and on both occasions are said to be a crop sitter.  In the end the prosecution agreed in effect with the proposition that you were a crop sitter at both houses.

23As indicated to you and to your counsel in the course of your plea, you will be sentenced as a crop sitter on both occasions.  But the circumstances of the second house are more serious because of your earlier conduct.

24The features of these two properties are common with many suburban houses that have been converted into cannabis production operations.  The crime is hard to detect and even harder to establish who are the main players in the cannabis production and distribution chain.

25It is plain that the equipment here in these premises was expensive, indicating that there were significant resources being expended and there was a determination to grow large quantities of cannabis for profit.

26The premises at Roxburgh Park indicate just how successful the cultivation was in growing the cannabis given the very large amount of cannabis that was found.

27Cultivation methods at both premises were sophisticated.  The power had been by-passed to allow for higher volumes of electricity to be consumed without detection or cost.

28The product grown by the cultivators has serious adverse effects of many users and on the community.  The community bears a great cost as the entrepreneurial cannabis cultivators profit significantly.

29In the end given all the evidence in this case, even as unsatisfactory as it was, as indicated during the course of your plea, you will be sentenced, Mr Nguyen, as a crop sitter at both premises.

30However as has been identified by the Court of Appeal, general deterrence and denunciation remain weighty matters for all involved in what is a serious crime.  It is notable that both houses were serious examples of the particular crime you were charged with.

31You, Nam Song Nguyen, are now 40 years old.  Your siblings live in Vietnam.  You were educated to Year 12 in Vietnam followed by vocational training and worked as a primary school teacher and education administrator.

32You married in 2005 and had two children, both still in Vietnam.  You came to Australia in April 2007 on a student visa.  You had borrowed money for that purpose and you gave evidence as to that being a weighty debt on you to this day.

33You indicated that you have worked in a chicken shop and on farms around Victoria.  You sent money back to Vietnam when you could.  Your father in his letter indicates how needed you are back in Vietnam.

34Your visa expired in 2011.  You have been living illegally in Australia from that time together with the fact that from early 2011 you had a warrant for your arrest.

35The first cultivation matter is relevant to your moral culpability for the offending in 2017.  I keep in mind not to double punish you as a consequence of you facing both charges.

36You have no prior convictions and pleaded guilty at an early stage.  Your sentence will be less because of your early plea of guilty.  This has a further dimension in that you absconded on bail in 2011, meaning that your facilitation of the course of justice is not evident in respect to the first property.

37I take into account that you have limited English which makes prison harder for you.  You have limited capacity to have contact with your family.  There is an element of isolation and I take that into account as well.

38You will be deported upon your release.  Thus your rehabilitation is a matter for you to obey the laws in your native country.  You will be supported by your family once you return.

39The crime of cultivating cannabis in a commercial quantity is punishable by a maximum term of 25 years' imprisonment.  In this instance, the crime of cultivating a cannabis simpliciter, as it is called, is punishable by a maximum term of 15 years' imprisonment.

40Deterrence is of primary importance given the prevalence of this offence.  It is necessary that the deterrence be to all those involved in entrepreneurial drug cultivation activity.  Also the theft of electricity in respect to the Roxburgh Park matter requires some but limited additional penalty and deterrence is of importance in that regard as well.

41It is also important to denounce your crimes.  That is because you became involved in criminal activity which has, as I have said, a detrimental effect on many in this community.  Thus you must now face the consequences of your crime.

42The only appropriate sentence is one of imprisonment and I will fix a non-parole period though whether and when you are released on parole is a matter for others, not me.

43It was urged that there be a degree of concurrency between the two indictments.  What will occur is that I will revisit your sentence to ensure that the total punishment fits the totality of your crimes in a proportional way; no more and no less.

44I will return to your sentence, that is, the precise figures after dealing with the criminality and the personal circumstances of Ms Nguyen.

45As noted, you, Hong Thi Nguyen, pleaded guilty to one charge of possession of a drug of dependence.  I consider that the appropriate maximum term in your case was five years' imprisonment.

46Your role in this criminality was very limited.  Of importance in your case is that you have been in custody since 11 May 2017, that being 217 days, thus to this day.

47You are 42 years old and were born in North East Vietnam.  In 1996 you married and have two adult children who remain in Vietnam.  Both are doing well.  Your husband still lives in Vietnam.

48In 2012, at the age of 37, you travelled to Australia on a three month tourist visa.  You remained in Australia working here to send money back to support relatives, all of whom have health issues.

49A sister of yours also came to Australia but she resides her legally.  You have worked on farms and as a fruit picker for approximately five years.

50You met your co-accused in early 2017 and formed some type of relationship.  You said your complicity in the offending was possession by being at the house and thereby via deeming provisions, you were in possession of the cannabis there.  It is not said that you had anything to do with the cultivation or were engaged in any of the entrepreneurial aspects of this crop.

51You pleaded guilty at an early opportunity.  This means that your sentence will be less than it otherwise would have been.  You have no prior convictions here in Australia or in Vietnam.  You have a strong work history, a stable family, notwithstanding that your children are being raised in Vietnam in your absence.

52You have significant family support in Vietnam where you know you will inevitably be deported at the end of your sentence.

53I take into account that you have language difficulties while in prison and although you are able to speak to your children, are isolated, having only visits from your sister.

54What was submitted at the time was that you have spent sufficient time in prison thus far and the just and appropriate penalty for your offence would be, in effect, the time you have served.

55Your crime requires that there be an element of denunciation and deterrence.  Those purposes together with your rehabilitation are sufficiently met by a term of imprisonment of an order that you have already served.

56It is a sentence that is highly tailored but it seems to me that the just and appropriate term is precisely the number of days you have spent in custody thus far.

57So the sentences that I impose are these.  Mr Nam Song Nguyen, can you stand. 

58On indictment A13550898, that is for committing the crime of cultivation of cannabis at the Burnside property, you are sentenced to 14 months' imprisonment;

59On the related summary offence of failing to appear, you are sentenced to two months' imprisonment, that is cumulative upon the sentence that I have passed on the cultivation at Burnside.

60The sentence for those offences thus is 16 months.

61On indictment C1711240, that is cultivating in a commercial quantity cannabis at Roxburgh Park and for the crime of theft of electricity, you are sentenced to an aggregate term of three years.

62I order that ten months of the sentence that I imposed on the indictment A13550898 together with the fail to appear be cumulative upon the sentence that I imposed on indictment C1711240.

63That gives a sentence of three years and ten months and I fix a non-parole period of two years and six months before you are eligible for parole.

64You have already served 217 days in custody.  That figure having been reckoned, I declare that it is part of the sentence that I have just imposed and ensure that this declaration is entered into the records of the court, so the prison authorities are left in no doubt that you have served 217 days of the sentence I have just imposed.

65Had you pleaded not guilty to these offences and been found guilty of them, in total there would have been a sentence of five years with a minimum term of three years and nine months.

66Hong Thi Nguyen, the sentence to be imposed on you is this.  For possession of a drug of dependence, you are sentenced to 217 days in custody.  You have already served 217 days in prison already.

67That figure having been reckoned, I declare that that figure of 217 days as part of, in fact, the whole of the sentence that I have just announced.  I will ensure that that declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already served 217 days, that is, the whole of the sentence that I have just imposed.

68Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a sentence of two years with a minimum term of 16 months.

69Are there any further orders?

70MR BOYD-WILSON:  There were applications made, Your Honour, for forensic samples in respect of each accused, a disposal order and a compensation order in respect of Mr Nam Nguyen.

71HIS HONOUR:  Certainly.  Anything you wish to say about any of those matters if you have not said it already?

72MR McGRATH:  No, Your Honour, just checking the compensation order was for - yes.  No issue with any of those orders.

73MR SMITH:  And none for Ms Hong Nguyen.

74HIS HONOUR:  I'll sign those orders now.  Both the accused and the interpreter can be seated.

75The applications for forensic samples.  I propose to make those orders in the case of Nam Song Nguyen.  I am satisfied because of the seriousness of the circumstances although he does not have prior convictions and the fact that there are two matters adds to the seriousness of the circumstances.  He does not stand in the way of the order being made and it is in the public interest that the order is made.

76Mr Interpreter, could you please explain to Nam Song Nguyen that I have made an order that he provide a forensic sample, a scraping from his mouth.

77INTERPRETER:  Yes, Your Honour. 

78HIS HONOUR:  At the point when the authorities come to take that sample, if he does not co-operate, they are authorised to use reasonable force to undertake that procedure.  Thank you.  Could you please explain to Hong Thi Nguyen the same.

79In her case, I consider the seriousness of the crime, the fact that it is not - she does not stand in the way of it and it is in the public interest.  How it is going to be done, I am uncertain but it is a matter for the authorities.  They may have to do it in Immigration Detention.

80Is there some arrangements in respect to that, do you know, Mr Boyd-Wilson or not?  Or is not a matter for you?

81MR BOYD-WILSON:  I am not aware unfortunately, Your Honour.

82HIS HONOUR:  Mr Smith, has there been any information that you have been provided by your client or anyone about that?

83MR SMITH:  Nothing, Your Honour.

84HIS HONOUR:  Mr Boyd-Smith, you have provided me with a copy of some orders to sign where she might go to a police station in North Melbourne, but that is not going to happen, so I am not signing that.

85MR BOYD-WILSON:  No, Your Honour.

86HIS HONOUR:  Is there anything further required?

87MR McGRATH:  No, Your Honour.

88MR BOYD-WILSON:  No, Your Honour.

89HIS HONOUR:  All right.  Well Ms Hong Nguyen, it will be necessary for you to return downstairs, at what point prison authorities having been told that you have done every day of the sentence, what they then do is a matter for them.  But you have served your prison sentence.  As to when you are released and where to is a matter for the prison authorities and immigration officials.  Do you understand?

90OFFENDER H NGUYEN:  Yes, Your Honour.

91HIS HONOUR:  Thank you very much Mr Tran for your assistance to the two accused. Mr Nam Nguyen and Ms Hong Nguyen, you have to head downstairs now.  Prison authorities will look after that.  Thank you very much for your assistance this morning.

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