Director of Public Prosecutions v Nguyen

[2017] VCC 527

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00080

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOA NGUYEN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 May 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 527

REASONS FOR SENTENCE
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Subject: Cultivate narcotic plant not less than a commercial quantity.
Sentence: 2 ½ years imprisonment. – non parole period 15 months.[

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Tueno
For the Accused	Ms S. Stafford

HIS HONOUR:

1Thoa Ty Nguyen, you have pleaded guilty to one charge of cultivating a narcotic plant, cannabis-L in a quantity that was not less than a commercial quantity.  The maximum sentence for this offence is 25 years' imprisonment.

2For the purposes of the Sentencing Act 1991, this offence is a serious drug offence. The circumstances of your offending are contained in a prosecution summary that was tendered as Exhibit A and read to the court by the learned prosecutor. Your counsel, Ms Stafford, accepted that the summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you. It is therefore not necessary that I refer to all that is set out in the summary, except in an abbreviated fashion.

3Your offending occurred on Monday 22 June 2016.  On that day, the police executed a search warrant at premises where you were living and working as what is known as a "crop sitter".  Police found a sophisticated hydroponic cannabis crop growing at the premises.  There were 229 plants found and the calculated weight of those plants is 152.25 kilograms.  That is more than the commercial quantity threshold and as you can see from the maximum sentence which the parliament of this state has imposed for this offence, your offending is very serious.

4You did not set up the crop and nor did you rent the house.  You are an illegal immigrant of the country and at a time when you were most vulnerable because you were alone, in poor health and with little money, you were approached to work as a crop sitter, which you did, and your job was to attend to the crop, water it and provide fertiliser et cetera.

5Although this is a serious offence and you are implicated in it, there are others involved in this offending whose conduct should be regarded as being far more serious.  Nevertheless, these sorts of offences cannot take place without the need for people such as you to look after the crop, and any sentence imposed by the court must appropriately denounce your offending and serve as a deterrent to anyone who wants to become involved in this kind of offending.  That if they do so and are apprehended and convicted, there will be severe punishment.

6But to your credit, you have pleaded guilty to the charge and you did so at the earliest available opportunity.  For that, you are entitled to a reduction in sentence because you have saved the time and cost of a full trial, and the reduction and sentence that I will afford to you will be reflected in the sentence that I will shortly pass.

7You have been in custody now by way of pre-sentence detention for 316 days.  You have no relatives in this country and I was told and accept that you have had no visitors whilst you have been in prison at the Dame Phyllis Frost Centre.  I accept that your time in prison will have been much harder for you than for normal citizens of this country because you have been alone and isolated with no visitors.

8Your counsel, Ms Stafford, provided me with a very helpful written outline which contains much information about you and I need to take that into account.

9You were born on 7 April 1966 and you are 51 years of age.  You were born into a hard working class family in Vietnam and prior to travelling to Australia, you lived there with your daughter who recently turned nine years of age.  She is presently residing with relatives in Vietnam and you desire to return to her as soon as possible.  As I said, you are an illegal immigrant and I was told and accept that you will be deported immediately upon your release.  And in passing sentence, I have had full regard to your desire to be released as soon as possible so that you can return to Vietnam to be with your daughter.

10Your parents are both deceased and you enjoy the support of an older sister and a younger brother, both of whom still reside in Vietnam.  You were married in 2004 and you and your partner enter into a karaoke business which failed and incurred various debts, and I was told and accept that it was because of your poor financial situation in Vietnam that you left your daughter and travelled to Australia in the hope of earning more money to relieve yourself of those debts.

11Prior to travelling to Australia, you engaged in office work.  But it paid little, and so it was when you came to Australia, you were vulnerable to those persons who would seek to exploit you.  The sort of people that grow these cannabis crops, motivated by greed.  You were unwell.  You have hypotension and high cholesterol issues and a thyroid complaint.  You have served your time well in prison.  You have been an exemplary prisoner, caused no trouble and you have completed a number of courses which was the subject of evidence before me.

12I am satisfied that because of your plea of guilty and the way you have conducted yourself from the time you were arrested that you are very remorseful.  I think your prospects for a full rehabilitation and it is most unlikely that you will commit this offence or any other offence again.  This has been a salutary lesson to you.

13Unfortunately, it is a lesson that you have had to learn the hard way.  I think just from the information that I have seen that your visit to Australia for the purpose of trying to relieve yourself of debt and thereby remaining as an illegal immigrant was misguided and that is unfortunate.

14The sentence that I must impose must reflect the seriousness of the offence and be guided by application of the principle of general deterrence in order to deter others.  It must also denounce your offending but have proper regard to the principles of justice, that is, the sentence must be fair, and it must have regard to the fact that you have pleaded guilty, cooperated fully, you are remorseful and that your prospects for rehabilitation are very good.

15On the charge of cultivating a narcotic plant, cannabis-L, in a quantity that was not less than a commercial quantity, you are sentenced to a term of imprisonment for two and a half years.

16I fix a period of 15 months which you must serve before you are eligible for release on parole.

17For the purposes of s.89DI of the Sentencing Act, I declare that I have sentenced you as a serious drug offender and that be entered into the records of the court.

18I declare that there has been 316 days pre-sentence detention and that 316 be reckoned as having been already served under the sentence passed this day and be entered into the records of the court and deducted administratively.

19For the purpose of s.6AAA of the Sentencing Act, I state that had it not been for your plea of guilty to the charge, I would have imposed the term of imprisonment of five years and I would have ordered that you serve a minimum term of three years before being eligible for release on parole.

20The prosecution seeks the making of a forensic sample order.  That was not opposed by your counsel.  For the reasons stated in the order, I will sign it, which means that whilst you are in prison, a police officer may approach you for the purposes of taking a forensic sample from your body which is a mouth swab.

21There any questions arising out of that?

22COUNSEL:  No, Your Honour.

23HIS HONOUR:  See if there are any appeals, Linda, will you.  So, I have signed that order.

24MS TUENO:  Thank you.

25MS STAFFORD:  As Your Honour pleases.

26HIS HONOUR:  Could I thank you both for your submissions.  Could you take Ms Nguyen into custody please.  Thank you, Ms Nguyen.  Just adjourn the court temporarily.

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