Director of Public Prosecutions v Nguyen

[2016] VCC 2075

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01587

DIRECTOR OF PUBLIC PROSECUTIONS

v

THUAT VAN NGUYEN

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2016
DATE OF SENTENCE:	22 November 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 2075

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Harrison	OPP
For the Accused	Mr J. Saunders	Valos Black & Associates

HIS HONOUR:

1Thuat Van Nguyen, you have pleaded guilty to one charge of cultivating a narcotic plant (cannabis).  This charge has a maximum penalty of 15 years' imprisonment.

BACKGROUND CHRONOLOGY

2On 3 January 2014, which was the date of this offence, you were arrested and charged with cultivating a narcotic plant.  You were bailed to appear at the Werribee Magistrates' Court on 7 May 2014.

3On 6 January 2014, you were charged with a more serious charge, of cultivating a commercial quantity of cannabis-L.  The filing hearing was listed for
5 February 2014.  You failed to appear at the filing hearing, and a warrant was issued for your arrest.

4On 17 June 2014, the Immigration Department advised the Victorian Police that you were an unlawful non-citizen.  In effect, you were on the run from February of 2014 until March 2016, a period of two years.

5On 21 March 2016, you were seeking your Vietnamese passport so you could travel home to your family in Vietnam.  You turned yourself into the police, and were bailed to appear at the Melbourne Magistrates' Court on 4 April 2016.  A bridging visa was issued, and it expired on 29 April 2016. 

6On 26 April 2016, at the instigation of your legal representatives, your bail was revoked, as your bridging visa was about to expire.  You have been in custody since that date. 

7There have been a number of court procedural hearings, but you finally entered a plea of guilty to the current charge on 14 September 2016, however the agreement to the plea was on 15 August 2016.  The prosecution accept that your plea of guilty is at an early opportunity.

CIRCUMSTANCES OF THE OFFENDING

8I will refer in part to the summary that was set out by the prosecution. 

9At approximately 10.30 am on Friday 3 January 2014, police were in the vicinity of Mercanture Boulevard in Tarneit, owing to information received about a disturbance in that area.

10Police observed that the front door of the house at 13 Mercanture Boulevard was ajar, and on closer inspection, appeared to have been kicked inwards.  The police announced their presence and entered the house.  When they entered the house, they observed you exiting one of the rooms on the right of the front door. 

11The police noticed that that room contained a hydroponic system, and you were then arrested.  Police observed that there were a number of plants growing in two further rooms in the house.  You were conveyed to the Werribee Police Station for interview.

12At approximately 3 pm, police executed a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act at 13 Mercantour Boulevard in Tarneit.

13In the front bedroom, police located an electrical bypass in the wall of the wardrobe.  In what was described as Room 1 of the premises, police located an unknown number of pots filled with soil under hydroponic equipment, consisting of 17 light globes and 17 light shrouds. 

14In Room 2 of the premises, police located 12 pots full of soil under hydroponic equipment, consisting of 11 light globes and 12 light shrouds.

15In the hallway cupboard, police located a switchboard system and 42 electrical transformers.

16In Room 3 of the premises, police located an unknown number of pots filled with soil under hydroponic equipment consisting of nine light globes,  nine light shrouds, and nine electrical transformers.

17In Room 4 of the premises, police located one cannabis plant stem and root, and an unknown number of pots filled with soil under hydroponic equipment, consisting of eight light globes, nine light shrouds, and nine electrical transformers.

18In Room 5 of the premises, police located 56 cannabis plants, weighing a total of 239.6 grams.  These plants were grown under hydroponic equipment suspended from the ceiling.  The hydroponic equipment consisted of one light globe and one light shroud.

19In the kitchen, the police located two cupboards containing cannabis plants as follows:

20In cupboard one, it contained 28 cannabis plants, weighing a total of 38 grams and 20 leafy stems of cannabis plant, weighing 19.3 grams;

21In cupboard two, it contained 43 cannabis plants, weighing a total of 69.9 grams and eight leafy stems of cannabis plant, weighing 9 grams.

22In Room 6 of the premises, police located three cannabis plants, weighing a total of 291.3 grams, 42 cut cannabis plants weighing a total of 2.71 kilograms, and 44 unidentified plant roots in 44 pots.  These items were located under hydroponic equipment suspended from the ceiling.  The hydroponic equipment consists of six light globes and six light shrouds.

RECORD OF INTERVIEW

23You participated in a police interview at Werribee police station. You stated that you knew nothing about the setup of the cannabis plants growing at the property, and you answered "I don't know" to all other allegations put to you.

PERSONAL CIRCUMSTANCES

24You were born on 10 October 1991, you are now 25 years old.  At the time of offending, you were 23 years old.  You had spent 210 days in presentence detention since your bail was revoked in the dying days of your bridging visa.

25You were born in Hai Duong province in Northern Vietnam.  You are the youngest child of three siblings.  You have one older brother and sister.  Your mother was a hardworking farm worker, who encouraged education in her children.  Your father is an alcoholic, and did not work or contribute to the family wellbeing.

26In 2007, your eldest brother moved to South Korea to get work to support your mother.  Both you and your sister were able to complete your education due to the efforts of your mother and your older brother.  Both of your siblings are married and live in Ho Chi Minh City.

27You completed Year 12 in 2009.  You obtained employment in a computer company, FPT-Aptech.  In the course of your employment, you took up a computer education program.  After almost two years of study, you obtained a Diploma in Software Engineering. 

28In 2013, you moved to South Korea to gain further qualifications in computer engineering.  Your time in South Korea was difficult, and you decided to study in Australia at Swinburne University.  You arrived in Australia on
3 November 2013. 

29Your course of study was to commence in 2014.  Initially, you lived with your uncle in Robinvale, but on returning to Melbourne, you answered an advertisement for a handyman, and that is how you became involved in this criminal enterprise.

30You are now in custody.  You will be deported to Vietnam on your release from prison.  You will return to Vietnam to assist your mother.

SENTENCING CONSIDERATIONS

31The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both general and specific, rehabilitation, denunciation, and protection of the community. 

32In sentencing you, I must have regard to a range of factors, such as the seriousness of your offence, your culpability for it, and your personal circumstances.  I am required to balance the interests of the community in denouncing your criminal conduct, with the interests of the community in seeking to ensure, as far as possible, offenders such as yourself are rehabilitated and reintegrated into society.  In your case, that will be deportation to Vietnam.

33You are a relatively young offender.  You have no prior convictions, either here in Australia, or in Vietnam.  There are no outstanding charges that need to be finalised against you.  This period of incarceration is your first time in custody.  As I have said earlier, the agreed presentence detention is 210 days.

34I take into account current sentencing practices for this offence, and I have had regard to the sentencing statistics, but I accept that your case is different from other cases, as they are from each other.   

35The seriousness of this offence is demonstrated by the maximum penalty of 15 years' imprisonment.  Whilst I accept your role was that of a crop-sitter in nature, and over a relatively short period of time, it is a necessary role for the cannabis crop to flourish. 

36A consideration of general deterrence is to be given the most weight in cases of cultivation of cannabis. 

37In your particular case, the cannabis crop is at an early stage, and the weight of the crop is, at the time of the offending, 3.38 kilograms.  It entails a total of some 200 small plants. 

38In a quantity-based sentencing regime, this amount of cannabis places this offence at the lower-end of this type of offending.  Nevertheless, there is a degree of sophistication in terms of the amount of pots, light shrouds, transformers and electricity diversion in this enterprise.

39I have taken into account your plea of guilty.  The prosecution agrees that your plea is made at an early stage.  At the time of your interview with police, you denied any - or just said you did not know anything about it.  A plea of guilty by you to this charge has a utilitarian value to the community.  Your plea of guilty has saved the community the expense of court proceedings, including committal and trial.

40Your plea of guilty has given a certainty of outcome for the community at large.  Your plea of guilty is also evidence of your remorse.  I accept that you are remorseful for your offending.  Your plea of guilty to this charge is a clear display of your willingness to facilitate the course of justice in the community, and your plea of guilty also indicates your acceptance of your criminal activity in early 2014.

41I accept that your time in custody will be accompanied by a degree of hardship due to your isolation from your family in Vietnam.  This necessarily means that you have very limited visits whilst in custody, although I have been told a girlfriend of yours does visit.  Other than that, you have the ability to make one phone call per week lasting 12 minutes to your family in Vietnam.  I take this element of hardship into account when fixing an appropriate sentence.

42I assess your prospects of rehabilitation as good.  On release from prison, you will be deported to your home country, Vietnam.  You are young and educated, which is a good sign for a positive future for you. 

43To quote your counsel, your one attempt at criminality has been an abject failure with significant and immediate impact on your young life. 

SENTENCE

44On Charge 1, you are convicted and sentenced to 12 months' imprisonment. 

45Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty I would have sentenced you to two and a half years imprisonment with a minimum non-parole period of two years imprisonment.

46I declare that you have served 210 days presentence detention, which is to be deducted administratively from the sentence I have just imposed.

47Pursuant s.446ZF of the Crimes Act, I have authorised the authorities to take a DNA sample from you.  The reason for that is that the seriousness of the offence, that it is in the interest of justice to do so and that you consent to that order.

48Just so you understand, I have authorised the authorities to take from you a swab from inside your mouth.  It is usually done with cotton wool.  If you do not comply with that, they can use reasonable force to obtain it, do you understand that?

49OFFENDER (Through Interpreter):  Yes, Your Honour.

50HIS HONOUR:  Thank you.  Is there anything else?

51COUNSEL:  No Your Honour, nothing further.

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