Director of Public Prosecutions v Nguyen

[2017] VCC 217

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 16-01974

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN RI NGUYEN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	6 March 2017
DATE OF SENTENCE:	10 March 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 217

REASONS FOR SENTENCE
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Subject:  Cultivate not less than commercial quantity.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:  Three years/22 months non-parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson
For the Accused	Ms M. Carroll

Pages 1 - 4

 

 

HIS HONOUR: 

1You have pleaded guilty to two charges.  The first charge is that between
1 January 2016 and 25 May 2016 you cultivated a narcotic plant, cannabis L, in a quantity that was not less than commercial quantity.  The maximum penalty for this offence is imprisonment for 25 years.  The second charge relates to theft of electricity between 17 February 2016 and 25 May 2016.  The maximum penalty for this offence is ten years' imprisonment.

2The circumstances of your offending are contained in a prosecution summary dated 23 November 2016.  That summary was tendered in evidence and was read in open court by the prosecutor, Mr Gibson.  I marked that document as Exhibit A.  Your counsel, Ms Carroll, did not suggest that the summary was inaccurate in any way.

3In August 2015 your son Peter Nguyen contacted an estate agent in Romsey, indicating that he was interested in looking at a property that agent had listed for sale at 16 Coleraine Drive in Romsey.  A statement in the depositions from the estate agent shows that the property was a rural property with a large shed constructed on it.

4Arrangements were made for your son to view the property.  Eventually you and your son and two women inspected the property, and after some negotiations the property was purchased and the contract was put into the name of a woman who is said to be your son’s wife.  Her name is Tran Trinh Viet Thi.

5You and your son commenced to live in the property with other members of your family in November 2015 and you invited neighbours to the property for a barbecue.  Soon after settlement the floor of the large shed on the property was concreted.  Your neighbours asked your son to see inside the shed.  He said he would have to ask you, and then both you and your son told the neighbours that they could not see inside the shed.  Later the entry points to the shed were covered with shade cloth to prevent looking in.

6In early May 2016 Powercor, the electricity supplier to the property, reported to the police electrical bypass was being used at the property, and observations by police that followed showed that a large water tank had been installed behind the shed.

7When police attended at the property on 25 May 2016 to execute a search warrant they found a cannabis crop growing in the shed, which had been divided into five rooms and in and cannabis plants were growing in each room.  You and others have established a sophisticated hydroponic setup in the shed.  Photographs of the setup were admitted into evidence as Exhibit B, and dried cannabis was located within the house.

8In all there were 100 plants, the threshold for a commercial quantity by number of plants, weighing 163.5 kilograms, the threshold for a commercial quantity by weight being 25 kilograms. The plants were at a number of stages of maturity and expert evidence suggest that the most mature plants had been growing for 14 to 16 weeks, suggesting that you and probably others commenced growing the crop soon after settlement of the purchase of the property on 18 November 2015.  In terms of weight, the amount of cannabis found at the property was six to seven times the commercial quantity threshold.

9You were arrested and conveyed to the Kyneton police station.  You speak little or no English and because a Vietnamese interpreter was unavailable, you could not be interviewed.

10Your son Peter was arrested at the property later that day.  He made a no comment record of interview as is his right.  He has also been charged with these offences and he is contesting the charges.  I was told he claims to have played no part in the growing of the cannabis and blames you as the person responsible for it.  His charges are listed for a contested committal on 31 March 2017.

11On your plea your counsel told me on instructions that you were a “crop sitter” and played that part in the offending.  She told me that you were motivated to play that role after you incurred gambling debts at Crown Casino of more than $200,000, and that you were approached by persons to whom you owe that money to pay off the debt by committing the offending.  Whilst you may have incurred gambling debts, I do not accept that you played the role in the offending as a mere “crop sitter”.  In my view, you can properly be classified as a principal in the offending.  I accept others were involved, probably your son and probably others, but you were a principal.  You were part of the group that inspected the property and you lived that the property with your family.  You grew the cannabis crop and you have pleaded guilty to the charge of cultivating it.

12This was a sophisticated commercial hydroponic setup.  I accept for the purposes of sentencing you that I should regard your offending as falling within the midrange for this kind of offending.

13You are aged 60, in reasonable health.  You suffer from diabetes and high blood pressure and high cholesterol, all of which are controlled, but you have no other significant health issues.  You migrated to Australia via Indonesia as a refugee in 1989.  You have two children, your co-accused who is married with two children, and a daughter.  I was told and accept you hold permanent residency status in Australia and you have spent time residing both here and in Vietnam, where you previously operated a fish-farming business that was apparently sold not long before the house was purchased.  You have not worked in Australia and have received Centrelink payments and lived off earnings from your fish-farming business in Vietnam.

14You have no prior convictions and that is to your credit. You pleaded guilty to the charges and you indicated that you would do so at the earliest opportunity at committal mention.  For that, you are entitled to a reduction in sentence.  I also treat your plea as an indication of your remorse.  By your plea you have saved the time and cost of a trial and all that needs to be taken into account in arriving at an appropriate sentence.

15This is a serious example of what is a serious offence.  It is a reasonably prevalent offence, so that any sentence must deter others from offending as you have.  The sentence is guided by application of the principle of general deterrence.  The sentence must also reflect appropriate denunciation.  I cannot say you will not again re-offend in this way but I would think that your prospects for rehabilitation are reasonably good.  There was no evidence that you have had any treatment for your gambling problem, which I was told was the reason that caused you to offend.  Whilst it exists, you remain a risk of re-offending.  You seem to have good supports within the community available to you upon release from prison.

16Would you please stand, Mr Nguyen?

17On Charge 1 you are convicted and sentenced to a term of imprisonment of two years and nine months.

18On Charge 2, you are convicted and sentenced to a term of imprisonment of six months.

19I direct that three (3) months of the sentence imposed on Charge 2 cumulate upon the sentence imposed on charge one, making a total effective sentence of three years' imprisonment.

20I direct that you serve a minimum term of 22 months' imprisonment before being eligible for release on parole.

21I declare that there has been 288 days' presentence detention and that 288 days be reckoned as having been already served under the sentences passed this day and be entered into the records of the court and deducted administratively.

22I declare that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of five years' imprisonment and I would have ordered that you serve a minimum of three years' imprisonment before being eligible for release on parole.

23MR GIBSON:  If Your Honour pleases.

24HIS HONOUR:  Any questions arising out of that?  Very well.  Would you take Mr Nguyen into custody, please?

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