Director of Public Prosecutions v Nguyen

[2017] VCC 1325

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00942

DIRECTOR OF PUBLIC PROSECUTIONS

v

LONG NGUYEN

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2017
DATE OF SENTENCE:	14 September 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 1325

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A.Harrold
For the Accused	Mr L. K. Barker

HIS HONOUR:

1Mr Nguyen, you have pleaded guilty to one charge of cultivating a narcotic plant, namely cannabis.  The date of your offending ran from 10 February 2016 to
12 May 2016.  The maximum penalty for cultivating cannabis where a trafficking purpose is not excluded is 15 years.

2I should say by way of background there is a co-accused in this matter and he is Mr Thang Huu Le.  There are, in addition, two other related offenders; Mo Thi Nguyen and Hoai Thi Nguyen. 

3The offending which forms the subject matter of your plea occurred at 10 Roderick Street, Doncaster East.  The circumstances of that offending are as follows.

4You first met with the landlord of this property, Mr Victor Wang on
30 December 2015, during which meeting you asked to rent the house.  You later transferred a $500 deposit to Mr Wang to hold the property and on 7 February 2016 signed a 12 month lease.

5The lease formally commenced on 10 February 2016 and was taken in the false names of Le Van Long and Nguyen Van Tanh.  You had provided Mr Wang with a photocopy of yours and Mr Le's driver's licences which had both been falsified with those fake names.

6Mr Wang subsequently communicated with you about the Doncaster property by text message until 7 April 2016 after which time he received no further response from you.

7On 13 April 2016, police located what has been described as a sophisticated hydroponic set up containing 153 cannabis plants growing within a residence at 32 Lidsdale Avenue, Frankston, “the Frankston property”.

8On 12 May 2016, you were arrested in connection with this property and you were remanded into custody where you have remained under one status or another until this date.  Thus it is that the between dates for your offending run from the date of the lease to the date of your arrest in relation to that Frankston property.

9Following your arrest on 12 May 2016, Mr Wang received a phone call from a female who said she was your sister.  The female told Mr Wang that you had gone overseas and she would now live at the Doncaster property, indicating also that she would pay the rent and the bills.

10Mr Wang agreed to this arrangement and continued to correspond with this female about the property until 10 September 2016, after which time Mr Wang received no further communication.

11During the investigation into the Frankston property, the police seized and examined two mobile phones taken from you at the time of your arrest.  In short, the data extracted from these phones led police to believe that you may also had been renting the Doncaster property and that a further cannabis crop might be growing there.

12On 8 June 2016, police attended at the Doncaster property and observed that the vast majority of the windows to the house were covered.  Police knocked on the front door but there were no persons present at that time.

13On 4 August police arrested Mr Le for his involvement in the cannabis crop found at the Frankston property.

14His mobile phone, that is to say Mr Le's mobile phone was seized and upon analysis police discovered a text message containing the residential address of the Doncaster property.

15This led police to return to that property on 5 September 2016 where they again observed that the majority of the windows were covered and no vehicles were present.

16Officers walked to the left side of the house and observed through an uncovered window a pair of heavy duty garden shears and a disposable glove on the floor.

17On 13 September 2016, police applied for and were granted a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act in respect of the Doncaster property.

18Later that day police conducted observations on the Doncaster property and observed a silver Toyota Camry parked in the driveway of that address.  Enquiries were conducted on the vehicle and revealed the register owner to be Mo Thi Nguyen.

19On 16 September, police again attended at the Doncaster property and observed a gold Toyota Camry within the driveway.  Enquiries were conducted on this vehicle and revealed the registered owner to be Hoai Thi Nguyen.

20Later that day, police executed the search warrant at the Doncaster property and located a hydroponic setup within.  No persons were found in the premises.

21Four separate rooms of the house were dedicated to the cultivation of cannabis with a further tray of young plants located in a cupboard in the kitchen.  The total amount of cannabis located in the premises was 228 plants weighing 125.28 kg. 

22The equipment seized included lamp shades, globes, transformer units and electrical switchboards and other items.

23As the search progressed, police observed the previously mentioned silver Toyota Camry driving slowly past the Doncaster property and then quickly driving away.  Police intercepted this vehicle and located Mo Nguyen and Hoai Nguyen within and they were later charged and remanded into custody for cultivation of the cannabis at the Doncaster property.

24Following the arrest of Mo and Hoai Nguyen, police reanalysed the mobile phone and discovered that you had been in contact with both these females before being remanded into custody on 12 May 2016.  A photograph of Mo Nguyen's passport had been saved on your mobile phone on 21 April 2016.

25Mr Wang was then contacted and requested to provide copies of the identification used by the tenants to rent the Doncaster property.

26Police observed that the photocopied driver's licence provided to Mr Wang at the time the lease was signed were the exact same licences that had been used by you to rent the Frankston property.  There thus appeared a clear and identified connection between those two properties.

27On 2 November 2016, the exhibits seized from the Doncaster property were examined by a fingerprint expert and your fingerprints were later identified on four lamp shades.

28On 17 November 2016, you were sentenced in this court by Her Honour Judge Hannan for cultivating a commercial quantity of cannabis at the Frankston property and were sentenced to 14 months imprisonment with 189 days pre-sentence detention declared.  This pre-sentence detention ran from your arrest date, that is to say 12 May 2016. 

29I say here, it is unfortunate that the two matters were not able to be joined up, so that you faced but one indictment and but one set of proceedings.  However can I stress, that by that comment, no criticism at all is intended of the investigating police officers in this matter.  But the fact of that absence of being joined up has significance to my sentencing discretion.

30In respect of the subject matter of this indictment concerning the Doncaster property, you were formally arrested and interviewed in respect of your involvement on 8 February 2017.

31In that interview you denied any knowledge of the property or having any dealings with it.  You were charged on that same date and the matter resolved at the first committal mention.

32Your involvement with the property thus ceased when you were arrested on 12 May 2016.  From that point on, it appears that care of the property and of the crops within were taken over by Ms Hoai Nguyen and probably others until the execution of the search warrant on 16 September 2016.

33It is unknown how many plants were cultivated between 10 February 2016 and 12 May 2016 or the state of the crop at the time of your arrest, as was confirmed indeed on the plea.

34Accordingly the prosecution conceded that your criminal liability for the cannabis cultivated by you was in an amount less than the commercial property.  That concession was, it seems to me, both in accordance with law and also of fairness. You fall to be dealt with for an amount less than a commercial quantity and I stress that.

35I turn now briefly, as I may, to your personal circumstances.  You were born on 4 December 1996 and are now aged 20.  You were 19 at the time of this offending.  I am told by your counsel and make clear I accept the life story that he has provided to me.

36You were born in a small fishing village named Tân Trạch commune in Quảng Bình province on Vietnam's north central coast where fishing was the sole economic activity and thus the sole means of economic support for your family.

37Your father Viet Truong Nyguyen is now aged 47.  He worked as an employed fisherman on various boats that were owned by others.  Your mother Thi Noc Nguyen is now aged 37.  She performed duties at home raising the family.

38I am told by your counsel that the life as an employee fisherman generated little more than a mere subsistence income.

39You are the eldest of three children.  Both of your siblings are still at school.  Your family continues to live in the same home.

40Despite harsh economic times, I accept that your family is well-regarded locally and that no member of your family has any history of trouble with the law.

41You completed the equivalent of Year 11 at a local government school in July 2013.  You were supported throughout your studies by your parents, who as most parents do, have great hopes for their children.

42Your parents, it seems, found the resources, the financial resources, to send you to Australia to study Information Technology at La Trobe University.  In this it is clear your parents wanted a better life for you and believed that Australia could provide as such.

43You arrived in Australia in August 2013 and settled in homestay accommodation with a family from the Philippines in Bundoora.

44The transition to Australia, I am told, was not easy for you.  Every aspect of life was unfamiliar.  Your university course was meant to start at the beginning of the 2014 academic year.  You undertook six months of English through the university.  Money was tight.  You were not working and your savings were going down.

45When the 2014 academic year arrived you were simply unable to afford the tuition fees.  As a consequence and in due course, your student visa was cancelled.  The reality is that from that time forward, at the age of 17, you were living on the margins of society and in effect, living from hand to mouth.

46You worked cleaning and performing menial duties at a greengrocery in Preston Market and moved around homes relying on your friends for accommodation.

47At one point I am told you obtained work picking grapes at a property near Bendigo.  You were paid $70 a day for your labour and were provided with the most basic accommodation.

48I accept that you remitted some money back to Vietnam to support your parents, a need that in your mind was exacerbated by the environmental disaster that had befallen Quảng Bình province.

49I am told that you met a man named Tuanh at a party for a friend in late 2015.  He, Tuanh, was older and appeared more experienced and successful in Australian society.  Although no evidence was provided and the identity of the man cannot be established, I accept that you were so approached.

50He in effect groomed you.  He showed an interest in your life, telling you that he could help you.  In time you were asked in effect, to lend your identity for the lease of both the Frankston and the Doncaster properties and in relation to the Doncaster property at least were given the $500 that was provided to Mr Wang as a deposit.

51Subsequently you were asked to attend the properties to provide assistance in setting up the hydroponic systems.  For your assistance in this criminal enterprise I am told that you were to be paid $2000 which sum you never received.

52As already stated, you were formally arrested and charged in relation to this matter on 8 February 2017 at which time you were serving a sentence.  The sentence that you had been serving lapsed on 11 July 2017.  You have thus been remanded in relation to this matter from 12 July 2017.

53You have now been continually in custody for close to 16 months since your arrest on 12 May 2016.  You have utilised your time beneficially whilst in prison and have undertaken various courses.  I accept that you now wish to return to Vietnam to be with your family.

54Mr Nguyen, the objective gravity of your offending falls to be determined by reference to all of the facts of this case.  The use of suburban houses for the growing of cannabis for onward sale and profit is all too prevalent.  So is the use of marginalised individuals such as yourself to act as front persons for the enterprise.

55Such deployment and use of persons such as yourself helps to ensure that the organisers of the business avoid detection.

56You leased the premises that were to be used as a grow house for an elicit crop of cannabis.  Once access to that property had been obtained, you knowingly assisted in some part in installing the hydroponic setup found within when the warrant was executed in September 2016.

57In the course of discussion on the plea and by virtue of the assistance I was given by both counsel, it was accepted that you could sit under the category of "house sitter" which is category B of the sentence advisory council report of March 2015 that was cited at p.7 of the defence submissions tendered on the plea.

58But wherever you precisely fit in the classification of offenders the role you were playing was integral and cannot be underestimated for the simple reason that every role, no matter how small, contributes to the success of the criminal enterprise.  Also I note that your involvement in the property where the crop was grown, stretched over a period of three months.

59Mr Nguyen, I accept that you were young and perhaps naïve.  I further accept that due to your lack of immigration status, you were compelled to live on the margins of society and as such, liable to fall prey to those who had a criminal role for you to fulfil.  That reduces, in my view, your moral culpability.

60However, it must have been clear to you that the setup was an unlawful purpose connected to the growing of cannabis for profit.  Any other conclusion in my view flies in the face of common sense.

61The basic purpose for which a court may impose a sentence are punishment and general deterrence, which is to send a warning to the world at large, and specific deterrence, which is to send a warning to you, that the courts will not tolerate such offending.

62There is also denunciation.  There may be protection of the community and as importantly your prospects for rehabilitation.

63I must have regard to a range of matters including the serious nature of the offending, your culpability for it, your personal circumstances.  So I am required to balance the interest of the community in denouncing criminal conduct with the interest of community in seeking to ensure as far as possible that offenders are rehabilitated and reintegrated into society.

64After the sentencing submissions of the parties, the prosecution submitted that general deterrence with denunciation and just punishment should be at the fore.  This type of offending is always too prevalent and can only be met with an immediate term of imprisonment.

65Your counsel submitted in what were comprehensive, illustrative and helpful written submissions, that delay resulting in the loss of possible concurrency and totality, should be at the forefront of my sentencing considerations.

66In short your counsel submitted the submission was to the effect that there should only be a modest further term of imprisonment, "to allow for your almost immediate repatriation to Vietnam".

67I agree with the spirit of those submissions.  Just punishment for this offence must in my view be mediated by considerations of totality.  There may however be a difference opinion as to what precisely is meant by modest and almost immediate.

68Mr Nguyen, in sentencing you I take into account the following matters.  Your youth and your naivety.  Your early plea of guilty and the prosecution have again fairly accepted that your plea of guilty should be viewed as tendered at the earliest opportunity.  This has both what is called a utilitarian benefit.  It saves the court time and public expense.

69I also accept that your plea in this instance is indicative of substantial remorse.  I further accept separate from your plea that you are now remorseful for your offending.

70I accept that you have good prospects for rehabilitation and I accept that by virtue of your lack of sufficient English and separation from family overseas, that imprisonment is more onerous for you.  I have had particular regard to the delay in this matter resulting in the loss of possible concurrency and the principle of totality.

71Mr Nguyen, on the charge of cultivating a narcotic plant, you are sentenced to a term of imprisonment of five months. Pursuant to s.18(4) of the Sentencing Act 1991 and reliant upon the agreed submissions of counsel at the Bar table, I declare that you have served 64 days of the sentence that I have imposed on you, and I direct that this be recorded into the records of the court.

72Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, you would have been sentenced to a term of imprisonment of nine months.

73Mr Barker, can I ask, are there any custody management issues of which you are aware that need to go through?

74MR BARKER:  No there are not, Your Honour.

75HIS HONOUR:  Anything else, counsel?

76MS HARROLD:  No, Your Honour.

77MR BARKER:  Before Your Honour leaves the Bench, may I approach my client?

78HIS HONOUR:  Of course, Mr Barker.

79MR BARKER:  Thank you.  Thank you, Your Honour.

80HIS HONOUR:  Anything else, Mr Barker?

81MR BARKER:  No, Your Honour.

82HIS HONOUR:  I am just going to quickly address the group.  Can I thank
Mr Barker and Ms Harrold, both of you for your assistance in this matter and apologise to you and Mr Barker, to your client, for the delay.

83MR BARKER:  Not at all, Your Honour.

84HIS HONOUR:  So counsel is excused.

85MS HARROLD:  Thank you, Your Honour.

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