Director of Public Prosecutions v Nguyen

[2017] VCC 315

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02116
CR 16-02117

DIRECTOR OF PUBLIC PROSECUTIONS

v

BA NGUYEN
TRINH VO

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 March 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 315

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Hickling	Office of Public Prosecutions
For Accused Nguyen	Mr T. Alexander	Defteros Lawyers
For Accused Vo	Mr M. Cunningham	Defteros Lawyers

HER HONOUR:

1Ba Hu Nguyen and Trinh Phuong Vo, you have both pleaded guilty to cultivation of a commercial quantity of cannabis (Charge 1), possession of a drug of dependence (cannabis) (Charge 2), and cultivation of cannabis (Charge 3).

2The maximum penalties for these offences are as follows:  cultivating a commercial quantity of cannabis, 25 years; cultivating cannabis, 15 years; possession of cannabis, (where not more than a small quantity, and not committed for the purpose relating to trafficking), not more than five penalty units.

3As to the circumstances of your offending, on 8 July 2015 at about 8.20 am, police attended at an address in Mount Waverley to execute a search warrant.  A car registered to you, Nguyen, was parked in the driveway.  Nobody responded to police knocking on the front and back doors, so they forced entry into the house.

4On searching the house, police discovered cannabis plants being grown hydroponically in four of the rooms.  Equipment and materials were later analysed by a fingerprint expert, and each of you were found to have a fingerprint on a different relevant article.

5All of the plants were examined, and the total amount of plants and weight of them were 73 cannabis plants with a weight of 102.52 kilograms.  A commercial quantity of cannabis is 25 kilograms or 100 plants.

6The following day police attended the house where you were both residing in Footscray.  The car at the Mount Waverley premises was registered to this address.  On searching that premises, police located 9.6 grams of cannabis in a bedroom.  A small quantity of cannabis is 5 grams.  There was also other materials relating to cannabis growth.

7On 16 June 2016, almost 12 months later, police attended at a property in Sunshine where you were both residing.  You, Vo, were home on their arrival.  The premises were searched, and the following was located:  cannabis; various chemicals and seedlings in the bathroom; cannabis plants growing hydroponically in a spare bedroom, and; cash in the sum of $1,250 in your bag, Vo.

8You, Nguyen, arrived at the premises as a consequence of police request, and you were both arrested.  All of the plants were examined, and the total amount and weight was 14 plants or approximately 8 kilograms. 

9You were both interviewed by police.  During your interview, you Vo admitted in respect of the Sunshine residence that a friend gave you some cannabis seeds, that you had purchased transformers, and you had spent between $1,000-$2,000 on equipment.  You admitted cutting the plants.

10You admitted to having a small quantity of cannabis at the Footscray premises.  You admitted to watering the plants and staying at the Mount Waverley house, and that you were paid $500 or sometimes $1,000, per week.

11During your interview, you Nguyen admitted that you grew marijuana at the Sunshine house to save money.  You admitted cutting, drying and selling the plants.  You admitted to buying four small plants and cutting them to grow more, and that you used chemicals mixed with water to assist in the plant's growth.  The Sunshine property was rented in your wife's name.  You said that you had met a man at a coffee shop who suggested that you look after the plants at the Mount Waverley property.  You were paid between $4,000 and $5,000 for looking after the plants at those other addresses (that being Mount Waverley) for about six weeks.

12You admitted you had cultivated and dried plants three or four times.  You said you did not use marijuana, and the cannabis found at the Footscray house was from the Mount Waverley house.

13As to your personal circumstances, you, Nguyen, are currently aged 31.  You grew up in Vietnam and arrived in Australia on a student visa in 2007.  You commenced studies at Latrobe University and Cambridge International College for a Certificate IV in Automotive and a Diploma in Business.  You were funded initially by your parents in Vietnam though your father became ill and you were then required to borrow funds from others in Vietnam in order to support yourself in this country.

14In 2012, you commenced working at a butcher's in Footscray.  In 2015, you commenced work at La Ionica Poultry, and were employed there at the time of this offending.

15You Vo are also aged 31 years.  Your father is deceased and your mother lives in Vietnam.  You came to Australia in 2008 on a student visa, and have either completed or partially completed a number of courses in English, hairdressing, business administration, accounting and event management.  You had hoped to obtain relevant accounting qualifications to be able to work in that field when you returned to Vietnam.

16You have worked as a nail technician therapist since your arrival in this county, and have had various other jobs.  I was informed that at the time of this offending, you were both earning about $600 per week through legitimate means.

17You were married in July 2011, and your daughter was born in November 2013.  You have had difficulties financially supporting your daughter, and she has resided in Vietnam with your mother, Vo, from a very young age.  Apart from being a great distance from your child and missing the early milestones and developments in your child's life, there have been other difficulties with your respective parents' health. 

18Your families in Vietnam have required you to provide financial support, both for your daughter and for their own medical needs.  Your motivation for this offending stems from those financial stressors.

19You initially became involved in the Mount Waverley and Footscray property so as to provide additional funds for your family.  You received between $1,000 and $2,000 per week, a significant amount of money, though I was informed that most of these funds were for the purposes outlined above. 

20As to the gravity of offending or its objective seriousness, in respect of the Mount Waverley property, the amount of cannabis was four times the threshold for a commercial quantity.  It was a significant amount of cannabis.

21The photographs in the depositions reveal a relatively sophisticated setup.  You were involved in making rental payments for the property.  You admitted your involvement over this nine-week period, attending to or cutting three or four crops.

22You were paid a significant amount of money for your involvement.  In respect of this property, your role was more involved than that of a sitter, though it is accepted that you were not involved in setting up the business or other aspects of it.

23A disturbing aspect of your offending was that once you became aware that these properties had been discovered by police, you left the property in Footscray and ceased involvement at Mount Waverley.  However, 12 months or so later you set up your own cultivation in Sunshine.  Although I was informed that this was for similar financial motives, the re-establishment by you both of a cannabis crop is another aggravating feature of your offending.

24You were not merely sitters or just attending to growth and cutting of plants in respect of this crop.  I do however accept, as was submitted on your behalf, that you did not as a consequence of your criminal activities fund a lavish lifestyle, rather the funds were provided to your family in Vietnam.

25Neither of you have any prior convictions, and I take both of your previous good characters into account.  I take into account your pleas of guilty.  You have both pleaded at the earliest opportunity, and there is a significant utilitarian benefit in the plea, saving the community the costs and inconvenience of a trial and avoiding the need for witnesses to give evidence.

26Your pleas are also indicative of your acceptance of responsibility for your actions and show a willingness to facilitate the course of justice.  I accept your pleas of guilty are also indicative of remorse by both of you, and is consistent with your candid responses in the record of interview with police when you were arrested.

27I understand that you are both likely to face deportation at the end of your sentences, however it was always your intention to return to your families in Vietnam and be reunited with your daughter.  It is not the situation that you have extensive and strong ties to Australia which you have now compromised.

28I accept, given your personal circumstances and lack of prior history, that you both have good rehabilitation prospects.  I was informed that you, Vo, have utilised your time in custody working, though there have been some restrictions due to an injury of the tasks that you can perform.

29The offence of cultivation of an amount not less than a commercial quantity of cannabis is a serious offence, carrying a maximum penalty of 25 years.  Whilst the role both of you played at the Mount Waverley premises could be described as a sitter with responsibility for some other peripheral tasks, your role was nonetheless necessary for the crop to flourish.  The maximum penalty fixed by Parliament unambiguously demonstrates how seriously the community view this conduct.

30The Court of Appeal has emphasised recently that general deterrence is an important sentencing consideration for this type of offence, and that the link between general deterrence and the increasing prevalence of this offence is readily apparent.

31I am also conscious of the Court of Appeal's remarks in the recent decision of Nguyen regarding this offence.  However, I do not consider that you come within the category of offender who is referred to in that decision, with you being lower down the rank in your role in the cultivation of the cannabis at Mount Waverley.

32Specific deterrence is also relevant, given your continued involvement after you knew police had discovered the activities at Mount Waverley, and the different role that you took on in respect of the cultivation of cannabis at Sunshine some 12 months later.

33It was not suggested that you should be treated differently from each other in the ultimate disposition I impose.  It was recognised that there should be a degree of cumulation in respect of the sentence imposed in relation to Count 1 and 3.  The sentence imposed must reflect the gravity of the offence and the offending conduct, general deterrence and just punishment, but have regard also to the matters personal to you, other mitigating circumstances, and other relevant sentencing principles.

34If you could both stand, please?

35In respect of Charge 1, you are both convicted and sentenced to a period of imprisonment of three years;

36In respect of Charge 2, you are convicted and fined the sum of $200.

37In respect of Charge 3, you are both convicted and sentenced to a period of imprisonment of one year.

38Six months of the period imposed in respect of Charge 3 will be cumulative on the sentence imposed in respect of Charge 1, giving a total effective sentence of three and a half years.  I set a non-parole period of 20 months in relation to that sentence.

39You have each served 275 days of pre-sentence detention - sorry, no, that is not correct.  What is it now?

40MS HICKLING:  Two-hundred and eighty-one days, Your Honour.

41HER HONOUR:  All right.  You have served 281 days pre-sentence detention, and I declare that pursuant to the relevant section of the Sentencing Act.

42Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this offence, I would have imposed a sentence of imprisonment of six years, with a non-parole period of four years.

43Were the ancillary orders made the other day?

44MS HICKLING:  Yes they were, Your Honour.

45HER HONOUR:  Yes, all right.  Is there any other matters that I need to deal with?

46COUNSEL:  No thank you, Your Honour.

47HER HONOUR:  No?  All right, thank you, I will just stand down.

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