Director of Public Prosecutions v Nguyen

[2017] VCC 40

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -16-01782

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIN TRUNG NGUYEN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	31 January 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 40

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	Mr A. Moore
For the Accused	Mr D. Robertson

Pages 1 - 4

 

 

HIS HONOUR: 

1Tin Trung Nguyen, you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis and one charge of theft of electricity.  You are still only 21 years of age.  You pleaded guilty at the earliest reasonable opportunity and I accept that that is accompanied by appropriate remorse and of course you must get the utilitarian benefit of that plea of guilty.  Had you been dealt with very shortly after the offending, you could of course have been eligible for a Youth Justice Order.

2You have no prior convictions and that of course is of importance.  You are still a youthful or young offender.  I am told from the Bar table and from my own knowledge would take the view that there is almost a certainty of you being deported from this country back to your native Vietnam.  I take that into account in the sense that you, with a partner and a 16 month old child, would have to undergo the balance of this sentence with the knowledge or belief that you will probably be deported and that your small family may well be disrupted.  You will also of course, in that scenario, lose the opportunities that you would have had in this country to further yourself.  You are here on a student visa, which I am told has in fact expired.

3Pursuant to s.464 of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.

4In this particular matter, you co-accused, your partner, received a three month sentence in the Magistrates' Court.  I think parity is of no real significance in this particular sentencing set of circumstances.

5A summary of the offending has been exhibited.  You arrived in Australia on a student visa some six years ago to do your VCE, as I understand it.  Your partner, as I indicated, is still in Australia and is also a Vietnamese citizen.

6You were arrested and charged on 20 July of last year.  As I have indicated, you were fully confessional in that interview and you pleaded guilty at the first reasonable opportunity.  The description of what you said about this offending I find a bit difficult to believe.  The trouble that I have with that is that the version of events that you are giving certainly does not mitigate in terms of the sentence that I have to impose, but in any event, I will sentence on what you have said.

7In September 2015, a Mr Lam purchased a residence in Drouin.  On 15 April 2016, you and your partner commenced a tenancy of that address in Drouin.  On 20 July, police executed a search warrant.  The property consisted of a four bedroom house with the lower level containing two rooms.  Police gained entry and they found you and your partner in the building.  You were both arrested.  A hydroponic cannabis setup was located in the lower portion of the house as well as three main bedrooms on the main floor of the house.  You, yourself, had bypassed the electricity meter and said that you had the knowledge as to how to do that.

8You, as I understand it, said that you were shown that by your father and on my calculation, you came to Australia when you were 14, so I do not know how he is teaching you to electrical bypasses at that age, but if that is what you are saying, that is what you are saying.

9It is certainly a significant crop.  There were 195 cannabis plants seized, which is almost double the commercial quantity.  It weighed 65 kilograms, which is approaching three times the commercial quantity.  When you were interviewed by police, you told them that the plants had been growing for about two and a half months.  You were going to cut the flowers and that you were going to sell it but had not yet found a buyer.  You said that you learnt how to grow cannabis from a Vietnamese friend who had grown it in Canada and that you bought the supplies from a location in St Albans, where a van was provided containing seedlings and equipment for around $12,000.  Where you are supposed to have got that money from is anybody's guess.

10You said that you removed the meter and ran the electricity downstairs.  You said that your partner did not know that the plants were cannabis and did not help you in any way.  You said that the owner of the property did not know about the cannabis.  As to whether or not that is true, as I have indicated, I have got very grave doubts, but the fact of the matter is that you will be sentenced on the basis that you set this crop up, you purchased the equipment and you stood to gain by selling the cannabis.

11However, it cannot be said to be a low end cultivation in itself, though in your circumstances, your very young age mitigate strongly on your behalf as well as your plea of guilty.

12There is little that I have been told about your background, you have got no priors and in one sense, it probably does not make a lot of difference because you will most certainly be deported.

13At your age, prospects of your rehabilitation should be good.  The risk of your re-offending in Australia is in all probability close to zero and it can only be hoped that in the future, you will be able to resist such a temptation and that you and your small family can be reunited.

14Taking all those matters into account as best I can and as I said bearing very much in mind your age, on the charge of cultivate, you are sentenced to be imprisoned for a period of two years and nine months.  On the charge of theft, three months.  They are to be served concurrently. 

15Because of your age and because of your plea of guilty, I direct that there be a minimum term of 17 months, which is a lower minimum term than might otherwise have been the case.  I direct that 195 days be reckoned as having been served under this sentence and so that you fully appreciate the benefit that you have received from pleading guilty in this particular case, I say that but for your plea of guilty, you would have been sentenced for a period of four years and three months with a minimum term of two years and two months.

16There are no other orders, gentlemen?

17MR MOORE:  No, Your Honour.

18HIS HONOUR:  No, all right.  Nothing else needs to be done?

19MR MOORE:  No, Your Honour.

20HIS HONOUR:  You can just talk to him in the dock, if you want, for a moment.  I will just leave the Bench while you talk to him in there.

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