Director of Public Prosecutions v Nguyen

[2017] VCC 1779

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01864

DIRECTOR OF PUBLIC PROSECUTIONS

v

THUY NGUYEN

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2017
DATE OF SENTENCE:	28 November 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 1779

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:    Cultivation of narcotic plant - theft of electricity - denunciation -           vulnerable offender - general deterrence - limited role of   offender - financially motivated offender
Legislation Cited:                  Sentencing Act 1991 (Vic) Drugs, Poisons And Controlled
  Substances Act 1981
Cases Cited:  Wong v The Queen [2001] 207 CLR 584; Ngoc Nguyen v The
  Queen [2017] VSCA 286
Sentence:  Total effective sentence 11 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Andrews	Office of Public Prosecutions
For the Accused	Mr T. Hancock	Ann Valos Criminal Law

Pages 1 - 7

 

 

HIS HONOUR: 

1Thuy Ngoc Nguyen, you have pleaded guilty to one charge of cultivating narcotic plant, namely cannabis, over the period between 13 December 2016 and 17 January 2017. 

2On 2 December 2016, police commenced an investigation into the suspected cultivation of cannabis at 28 Kinlock Street, Macleod which is a large five-bedroom residential property with a double garage.  The investigation revealed that the tenant of the property, Hong S. Nguyen, had left Australia and that he had a previous conviction for the cultivation of cannabis.  During the investigation, police observed you at or in the vicinity of this property on three occasions before your arrest on 17 January 2017. 

3On 13 December 2016, police observed a Toyota sedan URQ 709, registered in your name parked in the driveway of the property.  Investigators saw your girlfriend walk out of the house in order to put the rubbish bins on the nature strip.  At that time, all of the windows to the house were covered with shutters and blinds, with electric-powered lighting apparent on the top level of the house.  Checks with the Australian energy market operator revealed that no retailer was supplying electricity to those premises.  It was apparent to investigators that the electricity to the house was being unlawfully accessed.

4On 20 December 2016, police were again conducting surveillance at the premises when they observed your Toyota pulling into the driveway.  You were accompanied by your girlfriend, Ly Ly Nguyen.  You both gained access by using a key to unlock the front door.  Later in the evening, Ms Nguyen was observed again putting the rubbish bins on the nature strip. 

5On 5 January 2017, police patrolling the Macleod area intercepted your Toyota at a location commonly used as a thoroughfare to travel to Kinlock Street.  At this time, police were able to identify both yourself and your girlfriend. 

6Finally, on 17 January 2017, police attended the premises at Kinlock Street in possession of a search warrant issued under the Drugs, Poisons And Controlled Substances Act 1981. At 8.23 pm, you drove your car past the address and around the block before returning to the premises and parking in the driveway. When police made their presence known, you attempted to run away but you were tackled to the ground and eventually restrained and handcuffed. During the arrest, you dropped a set of keys which included the keys to the Toyota and to the premises. You were identified by police as having previously attended at this house on the occasions to which I have already referred.

7A search of your car located items commonly used in connection with hydroponic cultivation of cannabis including heavy duty tape, shroud-hanging chains and a ventilation tunnel. 

8Inside the premises, police discovered a sophisticated hydroponic operation set up in nine rooms throughout the house, including the garage.  Each of the grow rooms was set up with a water and lighting system. Chemicals and a water pumping system were discovered in the bathroom.  In addition, an electrical bypass was set up within a makeshift room in the garage.  All power to the house had been accessed through that bypass. 

9The following day, a botanist examined the plants found inside the house.  There was a total of 250 cannabis plants weighing a total wet weight of
111.37 kg.  The plants varied in height and maturity from seedlings of 10 cm to mature plants of up to 158 cm.  I was told that 171 of the 250 plants were regarded as being mature.

10When interviewed that evening with the assistance of an interpreter at the Heidelberg police station, you initially stated that was the first time - namely 17 January - that you had been to this address.  When told that police had observed you and your girlfriend and the premises previously, you said that you had been there once or twice to tidy things up. 

11Upon further questioning, however, you stated that you knew who was growing cannabis in the house and that you had first been contacted by that person and went to the house about a month before.  You told police that you would go there three times per week, usually at night to tidy things up.  You said you had been paid $500 on three occasions to go there.  You said that you shared those payments with your girlfriend who had assisted. 

12When asked if you wished to say anything in answer to the charge, you said,

"In terms of explanation, we go there to tidy things up.  We know there were cannabis plants in there but because of the money involved, because of the money reward and because we needed the money to help our families in Vietnam, that's why we accepted to do it.  We are not involved in the cultivation itself." 

13This matter has proceeded to plea on the basis that the prosecution were not able to prove that you had an intention to cultivate at least a commercial quantity of cannabis.  Moreover, there is no evidence to suggest that you had any knowledge of the existence of the electrical bypass.  It is accepted that you are not to be sentenced as a principal in this operation.  It is also accepted that you must have been brought in to assist in this operation once it was already well underway. 

14Whilst it appears that your role could be fairly characterised as ancillary, perhaps akin to a crop sitter, it is important to recognise that your willingness to engage in this criminal behaviour helped maintain a sophisticated criminal enterprise designed to maximise profit from drug trafficking.  The maximum penalty for this offence is 15 years' imprisonment.  The offence to which you have pleaded guilty is to be distinguished from commercial cultivation which is punishable by a term of 25 years' imprisonment.

15Turning to your personal circumstances, you were born in Vietnam on 25 May 1994 and at the time of the offending, you were 22 years of age.  You grew up in a fishing village in northern Vietnam.  Your parents still reside there together with your two younger siblings.  I was told that your family are dependent on fishing to make ends meet and that in 2016 they were affected by an environmental disaster in the area in which they lived, which killed much of the fish stock upon which they and local residents were dependent.  Accordingly, your family have struggled greatly since that time. 

16You completed the equivalent of Year 12 in Vietnam before arriving in Australia on a student visa on 15 May 2013.  At that time, you intended to undertake a 55-week English course as well as a hospitality course at Box Hill TAFE.  For reasons that are not entirely clear, you dropped out of those courses shortly after you commenced and the large international fees that were paid on your behalf by your family were apparently forfeited.  I was told that you undertook a variety of different types of work to subsist and send money back to your family in Vietnam. 

17On 8 May 2014, your student visa was cancelled because you were no longer enrolled in a registered course of study.  From that time on, you were not lawfully entitled to remain in Australia.  You formed a relationship with Ly Ly Nguyen who had also had her student visa cancelled.  Ms Nguyen was also charged and remanded in respect of this offence, however, she was discharged at committal on 13 September 2017 and was deported to Vietnam. 

18You were approached to become involved in this offending, I was told, when you were working on a snow pea farm, earning approximately $70 a day.  You were trying to earn enough money to cover your board, food as well as send money back to your family in Vietnam.  It was said in respect of this offending that you had received $1500 for the work you had done at the property. 

19Mr Hancock who appeared on your behalf relied on a number of matters in mitigation including your plea of guilty which he said had utilitarian value but was also indicative of remorse.  I note that you offered to plead guilty to this offence on 29 August 2017 and that the following month that offer was accepted by the Crown.  There was no committal, therefore, in respect of this matter and I am prepared to treat your plea as occurring relatively early in the process. 
Mr Hancock also relied on your limited ancillary role in the enterprise which spanned a period of 35 days. 

20He said you were a vulnerable person because of your financial difficulties, your youth and your illegal status in Australia.  He relied on your youthfulness, namely that you were 22 at the time of the commission of the offence and are now 23 years of age.  He also relied on your lack of prior criminal convictions in either Australia or Vietnam and the fact that you had been in custody in difficult circumstances since your arrest on 17 January 2017.  That is for the last 315 days.  Your English is very limited.  You have no friends or family who visited you and therefore your time in custody has been difficult and isolated.

21Having regard to those matters, it was submitted that the 314 days you had already served at the time of the plea represented sufficient punishment for your offending. 

22Ms Andrews who appeared on behalf of the Crown submitted that the time you had served in custody was not sufficient having regard to the primary sentencing purposes of denunciation and general deterrence.  She said that it was important having regard to the nature of this offending and its prevalence and that those who may be contemplating engaging in similar activity understand that they will be severely punished. 

23Ms Andrews recognised that you did play a limited role but argued that it was a role that was necessary in the establishment and running of this operation.  The sentence imposed, it was submitted, needed to take those matters into account. 

24In my view, of particular concern in this matter is the weight and the number of plants involved in combination with the sheer scale of the overall operation.  That said, whilst the quantity of drugs involved is always likely to be an important consideration in fixing sentence, a number of High Court authorities such as Wong v The Queen [2001] 207 CLR 584 and Pham v The Queen [2015] HCA 39 make it clear that quantity is not the sole determining factor in assessing an offender's criminality.

25In the context of imposing sentence in relation to cultivating a commercial quantity of cannabis, Their Honours Kaye and T. Forrest JJA in the decision of Ngoc Nguyen v The Queen [2017] VSCA 286 at paragraph 27 stated that,

"It is important that any label that is attached to the offender's role should not obscure, or distract attention from the various factors that are relevant to a proper assessment of the gravity of the offending in a particular case.  Those factors ordinarily include matters such as the tasks performed by the offender in the enterprise, the nature of his relationship with the principals or leaders of the enterprise, the degree of trust and responsibility reposed in the offender, the size, scope and sophistication of the enterprise, and any expectation of the offender in respect of the rewards to be derived from the enterprise."

26I also must be careful to proceed on the basis that you are to be sentenced for cultivation simpliciter and not commercial cultivation, notwithstanding the quantities involved. 

27Whilst I accept Ms Andrews' submission that the role you played in this criminal enterprise was necessary for its continued operation, it is apparent that you were a long way removed from the principal of that enterprise.  That principal has in fact been identified by the investigation.  It is not suggested you played any role in the entrepreneurial aspects of the operation.  It is not suggested you had any financial stake in it and it is apparent that you were not part of this operation or enterprise when it was set up and commenced. 

28On your account, your role was limited to about 12 visits to the property over a period of 35 days for which you say you were paid $1500.  Although you did not give evidence on the plea, the objective evidence tends to support the contention that your role was indeed limited.  For example, during the currency of the police investigation which commenced on
2 December 2016, you were observed at or in the vicinity of this property on just four occasions. 

29Moreover, I accept that your plea of guilty, your relative youth, your vulnerability in this country, the difficult circumstances under which you have had to endure custody and the fact that you have no prior convictions in this country or in Vietnam mitigates your position considerably. 

30Would you please stand, Mr Nguyen?

31Balancing as best I can your limited role and the other matters personal to you as against the need to denounce your conduct and in particular to give expression to general deterrence, you will be sentenced to a term of imprisonment of 11 months. I will declare that 315 days has already been served by you by way of pre-sentence detention and I further declare that pursuant to s.6AAA of the Sentencing Act 1991, that but for your plea of guilty I would have sentenced you to a term of imprisonment of 15 months.

32Just take a seat for a moment please, Mr Nguyen. 

33Are there any other matters arising, counsel?

34MS ANDREWS:  No, Your Honour.  

35HIS HONOUR:  Mr Hancock?

36MR HANCOCK:  No, Your Honour. 

37HIS HONOUR:  Yes.  I will leave you to have a quick word with your client before he is taken away with the benefit of the interpreter, Mr Hancock.

38MR HANCOCK:  I do appreciate that, Your Honour.  Thank you.

39HIS HONOUR:  Adjourn till 10.30 tomorrow. 

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