Director of Public Prosecutions v Nguyen

[2016] VCC 1786

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01494

DIRECTOR OF PUBLIC PROSECUTIONS

v

THUONG XUAN NGUYEN

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2016
DATE OF SENTENCE:	24 November 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 1786

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director	Ms R. Marques	OPP
For the Accused	Ms A. Hancock	Emma Turnbull Lawyers

HIS HONOUR:

1       Thuong Xuan Nguyen, you have pleaded guilty to one charge of cultivating a narcotic plant (commercial quantity).

2       I have heard a summary of the offending.  It is not my intention to repeat the whole summary.  It has been tendered as Exhibit A in the plea proceedings.

3       Briefly, on 28 January 2016 police executed a search warrant at a property in Altitude Drive, Doreen.  Police located a total of 232 cannabis plants in various stages of maturity, weighing a total of 43.3 kilograms.  Several rooms in the house were being used for the cultivation of the cannabis.  The cultivation was supported by an elaborate hydroponic set-up.  There was an illegal electricity bypass in place.  

4       As the police were preparing to leave the address, they recognised a silver Toyota Camry that had been observed at the address previously drive past. They followed the vehicle.  It was seen parked nearby and you and another man were observed walking away.  Police approached and you began to run away.  You were arrested and found in possession of the keys to the house. Fertilisers and chemicals were located in the boot of the Toyota.  Your fingerprints were also located on a number of items, including personal items found in the house.  You were remanded in custody on the same day.

5       Mr Nguyen, you have pleaded guilty to a serious offence.  It has a maximum penalty of 25 years' imprisonment.  A commercial quantity of cannabis is 25 kilos or 100 plants.  You were in possession of 43.3 kilos or 232 plants.  The cultivation was sophisticated with the whole house effectively converted for the growing of cannabis; there was an elaborate hydroponic set-up and there was an electricity bypass. The fact that your offending was only over one month does reduce your culpability.  Whilst the prosecution concede that your role was that of a crop sitter and your culpability reduced as a result, it is also important to recognise that your role was necessary for the cultivation to flourish and to enable others to potentially profit from this illegal activity.

6       Mr Nguyen, because of the nature of this offending and its prevalence, general deterrence, just punishment and denunciation are all highly relevant sentencing considerations.

7       I now move to matters relevant to your background and other matters raised in mitigation.

8       You are a 44-year-old Vietnamese man.  You were born into a family of rice farmers and your father died when you were young.  You have three older siblings living in Vietnam.  Your counsel described your family circumstances as impoverished.  After completing school, you worked in rice fields or in factories in various places in Vietnam.  You were married and you have three children aged 12, ten and four.  Your wife is in the process of divorcing you.  She does not have the care of the children.  They are in the care of one of your cousins in Vietnam.

9       In 2012 you were working for a construction company and that company offered you the opportunity to travel to Australia in return for the payment of a large amount of money.  You came to Australia on a three-month tourist visa.  You initially worked in Queensland, but in more recent times you have worked as a fruit picker in Robinvale and Mildura.  You are in Australia unlawfully, having overstayed your visa.  Recently you received a deportation notice from the Department of Immigration.  

10      I am satisfied that you entered an early plea of guilty.  No witnesses have been required to give evidence and your plea has avoided the cost and expense associated with a criminal trial.  You will be given an appropriate sentencing discount for all these matters.

11      You have no criminal history, you have a good work history and you do not use drugs.  These facts augur well for your rehabilitation.  I accept that imprisonment is onerous for you because you have no family in Victoria to support you.  Also you will serve your imprisonment with the knowledge that you are likely to be deported when your sentence is completed; however, this latter point needs to be balanced against the fact that you overstayed your tourist visa and that you are in Australia unlawfully.  The prospect of deportation is not so onerous in this situation.  In addition, if you are deported, there is no great hardship as you will return to a place where you will live with and have the support of your family.

12      Mr Nguyen, will you stand please.

13      You are convicted and sentenced to be imprisoned for a period of two years.  You are to serve 12 months before being eligible for release on parole.  I make a declaration that you have served 301 days' pre-sentence detention.

14      Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of three years' imprisonment with a minimum term of two years.

15      Mr Nguyen can now be removed.  Ms Hoang, you can step down now and I thank you for attending and assisting in this matter. 

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