Director of Public Prosecutions v Nguyen

[2017] VCC 667

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00151
CR-17-00153

DIRECTOR OF PUBLIC PROSECUTIONS

v

XUAN THI NGUYEN

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2017
DATE OF SENTENCE:	29 May 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 667

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director	Mr S Balek	OPP
For the Accused	Mr C Nikakis	Haines and Polities

HIS HONOUR:

1.Xuan Thi Nguyen, you have pleaded guilty to one charge of cultivating a narcotic plant, one charge of cultivating a narcotic plant (commercial quantity) and one charge of theft.

2.The maximum terms of imprisonment for these offences are – cultivation, 15 years; cultivation of a commercial quantity, 25 years; and theft, ten years. 

3.You have also pleaded guilty to a related summary offence of dealing with property suspected of being the proceeds of crime.  This offence carries a maximum imprisonment term of two years. 

4.I have heard a summary of the offending.  It is not my intention to repeat the whole summary.  It has been tendered as Exhibit A in the plea proceedings.

5.Briefly, on 17 July 2016, there was a fire at a property at 24 Bellini Avenue, Wheeler’s Hill.  Fire fighters extinguished the fire and police also attended the property.  The police observed a functioning hydroponic cannabis crop set up inside the house.  The police executed a warrant the next day and located 60 cannabis plants weighing 89 kg growing hydroponically in five rooms of the house.

6.Police seized various documents associated with the lease of the property.  Your fingerprints were located on a clear plastic folder, two pieces of paper and an AGL gas bill.  Your fingerprints were also found on a packet of coffee and a drinking glass seized from the house.  CCTV footage showed you paying the gas bill at the local post office.  Your mobile phone contained text messages between yourself and the real estate company.  In one message dated 18 May 2016 you falsely identified yourself as the fictitious wife of the alleged tenant.  Your phone contained photos of cannabis plants and when you were arrested on 31 August, you were in possession of the key for the front door of the house.

7.At about 9.08 am on 31 August 2016, police observed you drive your car to 
7 Russ Court, Wantirna South.  You entered the house and, after leaving the house approximately 40 minutes later, you were arrested and found to be in possession of $7550 in cash.  Police obtained a search warrant and entered the property using a key they had taken from you.  Police found an elaborate hydroponic set-up that supported 229 cannabis plants weighing 15.35 kg in four rooms and a cupboard in the house.  An irregular wiring connection allowed access to unmetered electricity.

8.You were interviewed by the police and stated that you met a Vietnamese man called Hoang who offered you $3000 to look after the plants at the Wantirna South property.  When asked about your possession of such a large sum of money you said that you had borrowed an additional $500 from the man called Hoang and you maintained that the remaining $4000 was borrowed from a friend.  You were remanded in custody on the same day. 

9.The police sought to interview you about the Wheeler’s Hill property on 30 September 2106.  You exercised your right to silence.

10.Ms Nguyen, you have pleaded guilty to serious offending.

11.At the Wantirna South property you were involved in maintaining a commercial quantity of cannabis.  The cultivation was sophisticated.  There were 229 plants (more than twice the number required for a commercial quantity); there was an elaborate hydroponic set-up and there was an electricity bypass.

12.At the Wheeler’s Hill property you were involved in the cultivation of 60 plants weighing 89 kg.  This house also had an elaborate hydroponic set-up.  As far as this cultivation is concerned, the prosecutor explained that although the cultivation was significant, the Crown could not prove that you had the requisite intention to cultivate a commercial quantity.

13.The prosecutor accepted that you were not the principal offender or organiser in relation to these two crops.  However, he did submit that your involvement in two crops and the circumstances of your involvement in each crop shows that you were more than just a crop sitter.  Your counsel did not take issue with that submission.  I agree with it.

14.In assessing your level of culpability it is appropriate to focus on your role in the offending.  You were actively engaged in maintaining two crops for the benefit of others.  At the Wheeler’s Hill property you represented yourself to the real estate agent on at least one occasion as the wife of the fictitious tenant (this was in the context of a text message apologising for the late payment of rent).  Your fingerprints were found on various items connected to the leasing of the premises and on some items in the premises.  You paid the gas bill for the premises on 11 July 2016 and you were found in possession of a front door key for the premises when you were arrested on 31 August 2016.  As far as this property is concerned you were not just a menial worker, you clearly had a trusted and ongoing role in the cultivation.  When arrested at the Wantirna South property you were in possession of $7550 in cash.  Your explanation that you had “borrowed” $4500 is not credible.  In addition, you admitted to the police that you had been living in the house and attending to the cultivation of the plants.  These facts show that you had a trusted and ongoing role in this cultivation also.

15.Ms Nguyen, with this offending, general deterrence and just punishment are central sentencing considerations.

16.I now move to matters relevant to your background and other matters raised in mitigation.

17.You were born in Vietnam on 30 October 1990.  You were 25 years old at the time of the offending.  You are now 26.

18.You are the eldest of three children.  Your mother, father and younger sister reside in Vietnam.  You have a younger brother who is currently living in Japan.  Your father has worked in the construction industry for most of his life.  He has apparently experienced financial difficulties in recent times. 

19.You attended school and university in Vietnam.  You travelled to Australia in 2013 to undertake further studies, entering the country on a student visa.  You commenced an English course at Oxford College in Melbourne before deciding to transfer to a course in accounting and business management conducted by an organisation called the South Pacific Institute.  You were apparently unaware that you needed permission from the Department of Immigration to transfer from one training institution to another.

20.In January 2015, you discovered that your visa was cancelled.  You felt embarrassed at your situation and your parents were no longer able to assist you financially.  You endeavoured to support yourself by working in various Vietnamese grocery shops and bakery shops.  It was in these circumstances that you were approached and offered ‘easy’ money by those who stood to profit from growing large cannabis crops.

21.There is not much that can be said in mitigation.

22.You have entered an early plea of guilty.  No witnesses have been required to give evidence and your plea has avoided the cost and expense associated with a criminal trial.  You will be given credit for all these matters.

23.In determining sentence I recognise that you are still a relatively young woman, with no prior criminal history, who will be undertaking her first sentence of imprisonment.  Given these facts you would seem to be a good prospect for rehabilitation.  I accept that imprisonment is difficult for you because you have no family in Victoria to support you. 

24.Your counsel conceded that this was not a case where your sentence should be moderated because the prospect of your deportation at the end of the sentence made your sentence onerous, or that there was any hardship arising from the prospect of your deportation.

25.In imposing sentence I must, of course, ensure compliance with the principle of totality.

26.Ms Nguyen, will you please stand.

27.You are sentenced to the following periods of imprisonment -

28.Charge 1 - 21 months.

29.Charge 2 – three years. 

30.Charge 3 - six months.

31.Related summary offence - three months.

32.I order ten months of the sentence on Charge 1, three months of the sentence on Charge 3 and two months of the sentence on the related summary offence be served cumulatively upon each other and cumulatively upon the sentence imposed on Charge 2.  This makes a total effective sentence of four years and three months.  I fix a minimum term of two years and nine months before you will be eligible for release on parole. 

33.I declare 271 days' pre-sentence detention.

34.Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective term of five years and nine months with a minimum term of four years and three months. 

35.I make the disposal and forfeiture orders sought by the prosecution.

36.I order that you provide a buccal swab, pursuant to s.464ZF of the Crimes Act 1958, to the authorities. I must warn you that if you fail to cooperate with the authorities in the taking of the sample, reasonable force can be used to obtain the sample and the sample can be a blood sample. I make this order because of the seriousness of the offending, the order is not opposed and the order is in the public interest.