Director of Public Prosecutions v Nguyen

[2017] VCC 595

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00047

DIRECTOR OF PUBLIC PROSECUTIONS

v

HIEP QUANG NGUYEN

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 May 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 595

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Wilson
For the Accused	Ms S. Stafford

HER HONOUR:

1Hiep Quang Nguyen, you have pleaded guilty before me to one charge of cultivating a narcotic plant in a quantity not less than a commercial quantity.  The maximum penalty for that offence is 25 years' imprisonment. 

2The facts of the matter were opened by the prosecution, and a summary of the prosecution opening was tendered as Exhibit A.  Madam Interpreter, would you be assisted by a written copy of the ‑ ‑ ‑

3INTERPRETER:  I am fine, thank you.

4HER HONOUR:  All right, thank you.  You were arrested when police executed a warrant on a property situated at 32 Palladium Circle, Beveridge on 22 June 2016.  You fled the premises.  You drove past, saw police present, and then you left.  You were pursued and arrested soon after.  The keys to the property were located in your pocket.

5The search revealed some 81 plants with a total weight of 59.5 kg.  On investigation, the electricity account at the property related to a service connected to the premises from 19 April 2016, and it was in your name.

6On further investigation, your fingerprints were found on two of the power ballasts in the house, and on one of the lampshades located in the premises. 

7No record of interview was conducted at the time of your arrest, as there was no interpreter available, and a later opportunity to conduct an interview that was not taken advantage of, because your solicitor indicated that you intended to reply "no comment" to any questions.  Therefore, the prosecution chose not to interview you at that point.

8You were remanded following your arrest, and have remained in custody since that date.  You have now spent some - how many days now, 328?

9MR WILSON:  Three twenty-eight, Your Honour.  Not including today.

10HER HONOUR:  Three hundred and twenty-eight days in custody.  You pleaded guilty to the charge for which you are before the court today on 17 November 2016, or you indicated that you would plead, and you are therefore entitled to an appreciable discount due to the utilitarian benefit of your plea, as there was indeed no contested committal and no trial in this matter.

11Given the maximum penalty for this offending, Mr Nguyen, you have appreciated that the cultivation of cannabis is regarded as a very serious matter. 

12I now turn to your personal background.  You were born and raised in Vietnam in a middle-class family in Haiphong.  Your family run a hotel business, and your one sibling has some success in a small business in England.  You came to Australia in April 2013 in order to study English.  You commenced two courses.  You completed the first, and the business which followed on from that, you did not finish.

13In April 2016, you commenced at Cambridge International College, studying a course in English for an Academic Purpose.  This was a full-time course, requiring daily attendance, and you were still involved in that course at the time of your arrest. 

14During your studies, you lived in two rooms with a number of Vietnamese students, with people coming and going.  You were not working, as your parents continued to support you.  However, it was in the context of your relatively isolated position within the Vietnamese community, not working to support yourself, and studying full-time, that you took up the suggestion of a very close friend of yours to earn yourself some extra money by attending the property I referred to previously, to tend to the plants and do some cleaning.

15I note that you remain in constant contact with your family, and although they are disappointed by your offending, both they and your fiancé of some years remain loyal and supportive of you.  That bodes well for your rehabilitation.

16You were 22 years old at the time of your offending, and that being so, I sentence you as a youthful offender.  There are a number of principles which apply in such a case, including that rehabilitation is more important than general deterrence, and youth in a first offender is a primary consideration. 

17In your case, your lack of prior convictions and the limited nature of your offending here would indicate that your prospects for rehabilitation are excellent, and when you are released, I understand you will be deported, and you will return to Vietnam and recommence your life with your family. 

18This further supports, in my view, your prospects at rehabilitation.  You have been in adult prison, and have suffered to some degree from your isolation from your family and your home, and by the fact that your English is limited, despite having studied for some three years.

19You have occupied yourself in the almost one year that you have been in custody by completing a number of courses and working as a factory hand, kitchen hand, cleaner and machinist.

20I now turn to the other matters I am to take into account in sentencing you.  Your counsel has made submissions on your behalf that your offending was over a very limited period, that you were essentially a crop-sitter, not a party who was to receive part of the proceeds that were eventually to flow from this cultivation, and on your behalf it was submitted that you were to receive some $2,000 a month for your involvement in the enterprise.  You were not, as the matter played out, paid any of that promised money.

21The prosecution made submissions that you were more involved, given that the electricity account established sometime in April was your name, and receipts in relation to items relevant to the cultivation were found in your car.  However, there is nothing else to link you to the cultivation of an evidentiary nature.  You were not charged with the theft of electricity which flowed from the sophisticated electrical bypass which was present at the property.

22The cultivation itself was over three rooms with plants in various stages of maturity.  Although your fingerprints were found on two of the electrical ballast boxes, there is nothing else to tie you to the premises or the cultivation, apart from the fact that you had the keys which enabled you to enter the property, and the receipts that were found in your vehicle.  Your version of events was that you only went to the house on weekends due to your study obligations, but you also lent your car to the friend who involved you in this scheme, and it may have been him that was attending during the week, and who had purchased items from Bunnings for which receipts were located in your vehicle.

23In the absence of any evidence to the contrary, I find that you were used as a crop-sitter, and that you did not stand to participate in the eventual profit which could have been derived by the cultivation of such a large amount of cannabis.

24I was referred to some analogous cases in the Court of Appeal, and one from the County Court, and both counsel made submissions.  Indeed, it is conceded by counsel for the Director of Public Prosecutions that your offending is in the lower range.  It does not form part of that medium range which was subject of criticism from the Court of Appeal relating to sentences in the upper-mid range for their leniency, and where it was indicated that sentences in that range of offending should be raised.  Your offending does not fall within that category.

25I take into account the principles of general deterrence, which is important in the battle to eliminate the cultivation and marketing of cannabis in this state, despite there not being very much evidence of its success.  And in order to conform to that principle, the sentence I impose should deter others who intend to embark on this sort of activity from so doing.

26I further take into account in determining your sentence specific deterrence.  However, as submitted by your counsel, and on assessing the experience that you have been through, and given your previous good character, it is most probable in my view that you will have been significantly deterred from offending in such a way again by the experience that you have had and the time you have already spent in prison in Australia.

27I am further required to denounce your offending on behalf of the community, and I do so.  The community is engaged in an ongoing struggle, as I said, against drug use, because that lays the foundation for criminal activity.  With all nature of ancillary crimes affecting the users of the drugs, their families, and the entire community. 

28In participating in this enterprise of cultivation, you have played a small role in the ongoing market of misery which plagues our community today.  You of course will not bear the brunt of any of that because you will be returning to Vietnam.

29I am further required to impose just punishment in all the circumstances, and in so doing, I take into account the matters put on your behalf by your counsel.  It is conceded of course by your counsel that a term of imprisonment is the only available option in these circumstances.  I therefore intend to sentence you to a term of imprisonment which will represent to some degree the seriousness of your offending, while taking into account all of the matters put on your behalf, including your previous good character, your role in the enterprise over a limited period, and I consider your role as limited on the evidence that is before the court.

30I also take into consideration your age and the fact that I sentence you as a youthful offender.  Will you now stand, please?

31As to Charge 1, you are sentenced to a term of two years' imprisonment.  I order that you serve 13 months' imprisonment before being eligible for parole.  I order that the presentence detention of 328 days be deemed time already served, and that that fact be entered into the records of the court.

32I also make the ancillary orders that have been indicated to me by the prosecution, and I will ask for those orders to be handed up to me now.

33Then, pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have sentenced you to three years and three months' imprisonment with a non-parole period of 23 months.  Did you understand all that?  Thank you

34INTERPRETER:  Yes, he did.

35HER HONOUR:  Thank you, yes, take a seat there.  I will make the order that a forensic sample be taken, and I do so because the seriousness of the circumstances of the offending warrant the order, and the order is in the public interest.

36I am obliged to warn you that at the time of taking the sample, if you resist in any way, an authorised police officer may use reasonable force in order to ensure that that is carried out.  I will also make a disposal order, and that is that a number of items shall be forfeited to the state, and they are the matters set out in the Schedule, and include various items seized from the premises.  So I will also make that order.

37Is there anything arising out of anything I said?

38MR WILSON:  Nothing further, Your Honour.

39MS STAFFORD:  No Your Honour.

40HER HONOUR:  I will hand those orders down.

41MR WILSON:  Thank you Your Honour.

42HER HONOUR:  Thank you, so I am not quite sure now what is going to happen to Mr Nguyen.  He will be sent to - he has got another month to serve, is that correct?

43MS STAFFORD:  Yes.

44HER HONOUR:  But then he will be taken in Immigration Detention?

45MS STAFFORD:  As I understand it.

46HER HONOUR:  Yes, all right.  So you understand that,
Mr Nguyen?  You have another month, approximately, to serve, and then I believe you will go to Immigration Detention, all right?  Thank you.

47MR WILSON:  May it please the court.

48HER HONOUR:  Did you want to speak to your client?

49MS STAFFORD:  I will make use of the interpreter and speak to him in the cells.  Thank you.

50HER HONOUR:  All right.  Madam Interpreter, will you accompany counsel down to speak in the cells?  Thank you.

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