Director of Public Prosecutions v Nguyen
[2017] VCC 1377
•20 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-17-00083
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VIET NGUYEN |
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| JUDGE: | HIS HONOUR JUDGE WISCHUSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 September 2017 |
| DATE OF SENTENCE: | 20 September 2017 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1377 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Cultivating a Narcotic Plant (Commercial Quantify)
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991
Cases Cited: Nguyen v The Queen [2016] VSCA 198
Sentence:Convicted and sentenced to a sentence of two years, six months’ imprisonment with a non-parole period of 15 months. Section 6AAA declaration five years’ imprisonment with a non-parole period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Trotman | Office of Public Prosecutions |
| For the Accused | Mr M. Reardon | Victoria Legal Aid |
HIS HONOUR
1Viet Dung Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant in not less than a commercial quantity. The maximum penalty for this offence is 25 years' imprisonment.
2The circumstances in which the offending occurred are set out in the amended prosecution opening on the plea (Exhibit 1), the accuracy of which you accepted through your counsel.
3Shortly stated, the circumstances were these. Following a period of surveillance, police executed a search warrant at a house in Palladium Circle, Beveridge. This occurred on 22 June 2016.
4The search revealed that the house was being used as a cannabis grow-house set up in what has unfortunately become the usual way. That is, extensive equipment, including hydroponics and grow lights, were being used to cultivate cannabis plants in most rooms of the dwelling. Again, as is usual, the cultivation was powered by means of an electrical bypass.
5The amount of cannabis being grown weighed 152.5 kilograms, and consisted of 229 individual plants. The amount involved was, by weight, about six times the commercial quantity.
6As the charge indicates, your involvement in the cultivation, and the basis on which you are to be sentenced today, is limited to cultivation on the single day of the charge. That is, the day of the search.
7The prosecution accepted that your role in the cultivation was that of a mere crop-sitter, and I was informed by your counsel that you had entered into the cultivation in return for free accommodation just before the search warrant was executed.
8During the search, you were located in the master bedroom, and arrested. You were not interviewed, due to the inability of the police to obtain the services of a Vietnamese interpreter. You have been in custody since your arrest, and it was agreed on the plea that you have been in custody, excluding today, for a period of 455 days.
9The procedural history of this matter is that you contested a committal hearing on 23 January this year, and were committed to stand trial. You entered a plea of guilty to this single charge at the final directions hearing on 22 May this year.
10I take your plea to be an acceptance of responsibility for your criminal conduct. By your plea, you have facilitated the course of justice and saved the community the time and cost of a trial. I take your plea to be some evidence of remorse for your actions, though it was not entered until a late stage. You are entitled to have these matters taken into account in mitigation of penalty, and I have done so.
11You have no prior convictions, you are now 40 years of age, and apart from some dental issues referred to in your counsel's written submissions, which became Exhibit 2, you have no physical or mental health issues, nor any problems with substance abuse.
12Mr Nguyen, I state to you that I have taken the following matters into account in mitigation of penalty: as already mentioned, your plea of guilty and your lack of prior convictions; I have taken into account your personal circumstances, and these were explained to me by your counsel during the plea.
13You are now 40 years of age. You spent nearly all of your childhood in a Catholic orphanage in Vietnam. You left there to begin labouring as an assistant to a handyman at the age of 13, and did that work until about the age of 20, when you began training to become a truck driver whilst working part-time in a brickworks.
14Once qualified, you worked driving trucks for about 11 years, until you had saved enough money to purchase a van and become a taxi driver. This you did for the next couple of years.
15You married at the age of 20, but have been divorced from your wife since 2015. You have two children, a son, now aged 21, who lives in Brisbane, and a younger son, age six, lives in Vietnam with his mother.
16You left Vietnam in 2013 due to religious persecution, which manifested itself in your arrest on charges of sedition for an apparently quite innocent activity, and in the confiscation of your taxi van. This was followed by the continued harassment of yourself and your older son at his school.
17In that setting, you left Vietnam and made your way to Indonesia, and from there by a boat to Australia, where you spent 18 months in immigration detention upon your arrival.
18Eventually you obtained a bridging visa, and you moved to Melbourne for a time. Then you moved to Perth for a while before returning to Melbourne at the end of 2015. Your bridging visa has expired whilst you have been in custody, and I was informed that unless the Minister decides otherwise, you will be deported upon your release from custody.
19You have not had steady employment in Australia, other than a period in a grocery shop, and part time work as a handyman's assistant, which is what you were doing at the time of your arrest.
20I was informed, and I accept, that your time in remand has been more burdensome for you for a number of reasons. You have no family support, you have no friends in Australia. You speak hardly any English, and have to rely on other Vietnamese prisoners to interpret the goings-on in the prison environment, and you are of course concerned about deportation, and about what may happen to you when you do return to Vietnam. I accept that these concerns will operate throughout any sentence that is imposed by me.
21Whilst you have been in custody, you have completed a number of courses, and certificates relating to them became Exhibit 3.
22In sentencing you, I must have regard to the principle of parity, and I was informed that your co-accused was sentenced to a term of imprisonment by Judge Lacava of two years and six months, with a non-parole period of 15 months. I was told also that she had been charged with the cultivation on the basis of a single day, and it was put by your counsel that the evidence was that she was already living there, and had been for some time before you arrived at that place. It was not suggested that her involvement was other than as a crop-sitter. I should mention also that she entered her plea of guilty before the committal hearing commenced, and so at an earlier stage than you did.
23It was conceded that the gravity of your offending is such that a term of imprisonment to be immediately served is the only appropriate sentencing disposition, and having regard to current sentencing practices of which I am aware in this court, and as canvassed by the Court of Appeal in Nguyen v The Queen [2016] VSCA 198. I accept that this is so.
24Now, against the matters that are to be taken into account in mitigation, it must be balanced the fact that this is very serious offending, as the maximum penalty set by Parliament shows. The amount cultivated was six times the commercial quantity. The cultivation of narcotic plants in domestic houses is difficult to detect, prevalent and causes great damage to members of our community, particularly its young. It is often committed by people with no criminal history, and in the end, crop-sitters are an integral part of commercial cultivation.
25Reference to authority shows that general deterrence is to be given weight in the sentencing consideration, and I am required by the Sentencing Act to manifest the community's denunciation of your conduct and to otherwise impose just punishment.
26Mr Nguyen, I state to you that I have taken into account all the matters raised by your counsel on the plea, and all relevant sentencing considerations in arriving at the sentence I am about to impose.
27On the single charge of cultivating a narcotic plant (cannabis-L) in a quantity that was not less than a commercial quantity, you are convicted and sentenced to a term of imprisonment of two years and six months.
28The non-parole period is the minimum term that justice requires you to serve, having regard to all the relevant circumstances that exist, and for that reason, it cannot be fixed automatically. All relevant factors and sentencing principles have to be taken into account, and I have to consider when you should be eligible for mitigation of confinement, and in turn, rehabilitation under conditional supervision.
29In all the circumstances, I direct that you serve a minimum term of 15 months before becoming eligible for parole.
30As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have already spent in custody (not counting today), is 455 days, which is to be reckoned as time already served under this sentence, and I direct that this be noted in the records of the court.
31Now, there is an application made by the prosecution for a forensic procedure for the taking of samples pursuant to s.464ZF of the Crimes Act for you to undergo a forensic procedure for the taking of saliva samples. I propose to make this order, which I was informed was not opposed.
32A disposal order is also sought. I will make that order. The forfeiture order sought in relation to Items 3, 4 and 5 was not consented to. For reasons discussed with your counsel in the course of submissions, it is my view that the cash and communication devices were sufficiently connected with the cultivation, in that they were used or intended to be used by you in connection with the cultivation, and I propose to order that they too be forfeited.
33Pursuant to s.6AAA, I state that had you been found guilty of this offence after a trial, the sentence I would have imposed is a sentence of five years' imprisonment with a non-parole period of three years.
34Are there any other matters?
35MR TROTMAN: No Your Honour.
36MR REARDON: No Your Honour, may it please the court.
37MR TROTMAN: If Your Honour pleases.
38HIS HONOUR: Could you remove the prisoner please? Four o'clock.
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