Director of Public Prosecutions v Nguyen

[2016] VCC 1197

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 16-00878
CR 16-00965

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUYEN NGUYEN
HUY NGUYEN

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JUDGE:	HIS HONOUR JUDGE WISCHUSEN
WHERE HELD:	Ballarat
DATE OF HEARING:	17 August 2016
DATE OF SENTENCE:	17 August 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 1197

REASONS FOR SENTENCE
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Subject:Sentence – Criminal Law – cultivation of narcotic plant in not less than commercial quantity

Cases Cited:Chalmers v The Queen [2011] VSCA 436; DPP v Moran [2012] VSCA 154;

Sentence:18 months imprisonment with 12 months non-parole period; 168 days of presentence detention declared; 6AAA 3 years imprisonment with non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For Accused Nguyen	Mr Marshall	Cameron Marshall & Associates
For Accused Nguyen	Ms Mahady	Valos Black

HIS HONOUR:

1Quyen and Huy Nguyen, you have each pleaded guilty to one charge of cultivation of a narcotic plant in not less than a commercial quantity.

2The maximum penalty for this offence is 25 years' imprisonment.

3The circumstances in which the offending occurred are set out in the prosecution opening (Exhibit 1), the accuracy of which you accepted through your counsel.

4Your offending was detected as a result of surveillance and the execution of a warrant at premises in Wendouree on 2 March this year. The residential house in which a cannabis crop was grown had been under surveillance since the beginning of February and a vehicle registered to you, Quyen, had been sighted there on regular occasions in the month before the execution of the warrant. 

5Despite attempts to avoid it, you were both arrested at the premises when the police arrived. Inside the house, what has become almost the standard “grow house” arrangement was found.  Nearly every room in the house contained cannabis plants in various stages of development along with the usual and extensive lighting, ventilation and irrigation equipment, fertilisers and chemicals - all of this powered by the theft of electricity by means of an electrical bypass, though neither of you have been charged with the theft of electricity. By the standards of domestic “grow house” cultivation, the crop was a relatively large one with a total weight of over 142 kg.  The tendered photographs,

[1] Exhibit 2.

show how extensive the operation was.[1]

6After your arrest, you were not interviewed due to the lack of an interpreter and you were both remanded in custody, where you have been ever since. Each of you indicated your intention to plead guilty at an early stage.  In each of your cases, I take your plea of guilty to be acceptance of responsibility for your criminal activities, evidence of your remorse, and by your plea, you have saved the community the cost and trouble of a trial and you are each entitled to have these matters taken into account in mitigation of penalty and I have done so.

7Neither of you have prior convictions of any sort. Nor do you have any physical or mental health problems, drug addiction or gambling problems.

8As to where the two of you fit in the hierarchy of this cultivation enterprise, it was accepted by counsel for the Director that your roles in the cultivation of this substantial crop was that of (what has become known in the vernacular of cannabis grow houses) as a “crop-sitter”.

9Quyen Nguyen, I state to you that I have taken the following matters into account in mitigation of penalty:

10You are 26 years of age and a Vietnamese national.  You are single and have no children. After completing secondary and tertiary education in Vietnam, you came to Australia on a student visa to further your studies in accounting, a visit partly financed by your parents who are rice farmers. I was informed on the plea that you were drawn into this criminal activity after a period of employment for which payment was refused and you began this work in the expectation that you would be paid $300 a day. In the month before this offending was first the subject of surveillance, you purchased a vehicle.  Some of the money to purchase it you had earned yourself, the rest of it was provided by your parents.  You were then living in the western suburbs of Melbourne.

11It was put and I accept that at the age of 26, you are still as an offender, relatively youthful, that custody will be more onerous for you because of your limited English and isolation from your family, none of whom are in Australia. I accept also that you, due to your age and lack of prior convictions, have good prospects for rehabilitation.

12Huy Nguyen, I state to you that I have taken into account the following matters in mitigation of penalty.

13You are 37 years of age and also a Vietnamese national.  You came to Australia in 2015 on a tourist visa with the intention of earning money to send back to Vietnam.  The plan was to make the money from fruit picking which you did for a number of months. I was informed, by reference to a letter you had written and that your counsel handed during the plea, that whilst you were here, your domestic circumstances at home changed considerably for the worse. Your wife left you for another man and abandoned your two children to your elderly and widowed mother. One of your children needed medical treatment at considerable expense and you accepted a loan to facilitate this from a man who soon after called in the loan and then told you that the way to repay it was to “sit” this cannabis crop.  In return for doing this, the loan would be forgiven at the rate of $250 a day.  Although you were in difficult circumstances, it was not submitted that you were operating under duress.

14I have taken into account your background and personal circumstances.  Your parents were farmers, your father had next to no involvement with you during your childhood and although you were good at school, you left at 14 to help provide for the family and went to work in Ho Chi Minh City.  There you met your wife with whom you have two children, one aged 9 and the other 12 months. When your father died, your mother came to live with you and this coincided with the financial strains that brought you to Australia, ostensibly as a tourist, but in fact to pick fruit to send money home to your family.

15Since your wife left, circumstances have been more difficult for your family because your mother has her own health problems and is reliant on support from her brother to manage your children. In prison, you have been industrious and have been in full time work as a cleaner and you have completed courses.  I was informed that you have already received notification that your visa has been cancelled and at the end of any sentence you will be deported, something you yourself desire. I accept also that your time in prison, away from your family and without local support will be more burdensome for you.

16I have considered in relation to the sentence to be imposed upon each of you, questions of parity and although there are differences in your age and motivations for your involvement in this offending, in the end I do not think that any difference in the sentence to be imposed on each of you is warranted here.

Your involvement in this criminal activity, (although necessarily my understanding of it is limited, because you have not been interviewed), seems to be the same.

17It was accepted that the sentence to be imposed must involve an immediate term of imprisonment and I was provided with an extensive collection of sentencing remarks in this court which the learned prosecutor agreed was a representative sample of current sentencing practices for this very common form of offending.  I have had regard to those matters.

18In both your cases, against the matters to be taken into account in mitigation of penalty must balance the fact that general deterrence must be given significant weight in the sentencing consideration. The cultivation of narcotic plants in domestic houses is difficult to detect.  It causes great damage to members of our community particularly its young, it is very often committed by people with no criminal history and, in the end, crop-sitters are an essential feature of a successful cultivation.

19Quyen and Huy Nguyen, I state to you that I have taken into account all the matters raised by each of your counsel on the plea and all relevant sentencing considerations in arriving at the sentence I am about to impose. On the single charge of cultivating a commercial quantity of cannabis, you are each convicted and sentenced to a term of imprisonment of 18 months' with a non-parole period of 12 months.

20I declare that each of you have spent 168 days in pre-sentence detention not including today and I direct that this be entered in the records of the court.

21Pursuant to s.6AAA of the Act, I state to each of you that had you been found guilty of this offence after a trial, I would have sentenced you to a term of imprisonment of 3 years with a non-parole period of 2 years.

22I propose to make the disposal order and the forensic sample orders as these were not opposed.

23Now Quyen Nguyen, the Crown has applied for forfeiture of the Honda motor vehicle on the grounds that it was “tainted property” within the meaning of s.3 of the Confiscation Act.

24The meaning of “tainted property” is explained in Chalmers[2].  The making of a forfeiture order was opposed and it was submitted on your behalf that all of the offending and all of the materials necessary to effect it were contained within the residential building at Wendouree and that the vehicle, though seen there whilst the property was under surveillance for about a month before the execution of the warrant, was not within the meaning of the definition of “tainted property” under the Confiscation Act; property that was used or was intended by you to be “used in or in connection with the commission of the offence”, the offence being the cultivation of cannabis.

[2]Chalmers v The Queen [2011] VSCA 436.

25Chalmers was considered later in Moran[3].  That case concerned the question of whether a house from which an expedition to commit a murder began and at which, after the murder, the car in which the murderers were transported was parked in the garage, and items used in the murder were returned and hidden in a safe, was sufficiently connected with the murder, that is the house.

[3]DPP v Moran [2012] VSCA 154.

26The Court of Appeal upheld the trial judge's ruling that the property was not tainted within the meaning of the legislation, as the “connection with” the offending itself was not sufficient. Here, in discussions with counsel and in the course of submissions, the only postulated connection with the cultivation that seemed available was an inference from the fact that the owner of the vehicle had, that is you, had a residence in the western suburbs and the crop was being tended in Ballarat.  So it could be inferred that you used the vehicle to drive between the two places. It was not suggested that the vehicle was used to transport any materials or any cannabis or to perform any function within the building in which the cultivation took place. There is also some evidence that the two of you had lived at the premises for at least some of the time during the crop-sitting by reference to the mattress in the kitchen and other personal items found in the premises. There was some reliance on the sequence of events- that the vehicle had been purchased in January, so just before your involvement in this cultivation occurred – and, so upon the inference that you used it to travel from the western suburbs to Ballarat to perform the cultivation activities. It is noted also that the vehicle was seen there frequently from the beginning of the surveillance until the warrant was executed. In the end, having regard to the analysis and the application of the section in the two cases in which I was referred, I am not persuaded that within the meaning of the definition of “tainted property”, the vehicle was used in connection with the cultivation for which you have been convicted.

27In my view, at its highest, its use was for personal transport, but that is not sufficiently connected with the offending and so the application for forfeiture of the Honda is refused.

28Are there any other orders sought?

29MR O'DOHERTY:  No, Your Honour.

30HIS HONOUR:  Ms Mahady, I understand you wanted to speak to your client before I have him removed?

31MS MAHADY:  Yes, if that is all right, Your Honour?  Just very briefly.

32HIS HONOUR:  Will it take long?

33MS MAHADY:  No, Your Honour.

34HIS HONOUR:  I will wait here whilst you do it.

35MS MAHADY:  Thank you.  Thank you, Your Honour.

36HIS HONOUR:  Would you remove the prisoners please.  Are there any other matters to be dealt with today?

37MR O'DOHERTY:  No, Your Honour.

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