Director of Public Prosecutions v Nguyen

[2016] VCC 1148

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00218

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUY NGUYEN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2016
DATE OF SENTENCE:	8 August 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 1148

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. White
For the Accused	Mr A. Malik

HIS HONOUR:

1Quy Nguyen, on 23 November 2015 the police searched premises at 82 Nichol Street, Yarram.  Premises including a large shed had been converted to growing cannabis.  There were a total of 307 plants at various stages of development.  The total weight of the plants was just in excess of 77 kilos.

2There were 11 rooms dedicated to cannabis production in the house, that is, the whole of the house.  The shed that was on the premises had internal rooms constructed that were also dedicated to cannabis production.

3A total amount of 307 plants and 77 kilos is three times the commercial quantity on both ways it is calculated, being kilograms or number of plants. 

4The cultivation methods were sophisticated.  The lightning that had been installed was such as to allow the plants to be grown indoors and thus kept away from the sight of members of the public.  The house had been, in effect, "closed up" so people couldn't see in.  Power had been bypassed to allow for higher volumes of electricity to be consumed without detection or cost.  The estimated amount of electricity stolen in this case is very significant, over $27,000.  There were transformers, a timer, reflectors, and a pulley system.  These are all expensive items, indicating there were significant resources being expended and a determination to grow large quantities of cannabis for profit.

5Given the considerable efforts and the expenses involved in setting up this indoor horticultural enterprise, the plants in each room were strong and healthy.  The photographs tendered on the plea reveal this.  The yield of useable drug was likely to be very high.  These were plants at various stages of growth, indicating that the harvest would be planned to be regular, providing ongoing cash flow.  All the features found in this house and shed are common with suburban houses and country houses that have been converted into cannabis production houses.  Crime is hard to detect and even harder to establish who are the main players in the cannabis production and distribution chain.

6Product grown by the cultivators has serious adverse effect on many users and the community bears a great cost as entrepreneurial cannabis cultivators profit significantly.  The entrepreneurial cultivators have for some time sought to avoid their own detection by having vulnerable individuals mind the crops.  The "crop sitters" as they have become known, ensure that the equipment continues to operate.  Also, they provide, it would seem, from time to time, a degree of security for the crop.  But most importantly, they keep the entrepreneurs at arms-length from the crop while it grows to a saleable product.

7When the sitters are arrested with the crop, as is the case here, it seems the entrepreneurs often avoid detection. 

8You Mr Nguyen were a crop-sitter, and will be sentenced as such.  I emphasise that.  Whichever way, however, this is looked at, the gravity of the offending is clear.  This was a significant operation worth a large amount of money, and the crop-sitter plays an important role. 

9Your counsel said that you were staying at the house from time to time, and that you had met a man at the Footscray market who said he had work paying $300 per week.  It was said that you received four payments of cash put in a letterbox.  There is no further information provided about this person that made the offer to you. 

10You are currently a young man, 22 years old and 21 at the time of the offending.  In 2012 at a very young age you came to Australia on a student visa.  It was a condition of your visa that you enrol in a course of study, but in the end you did not enrol for sufficient time or do sufficient time of the course, and your student visa was cancelled in November of 2015.  So your continued presence in Australia at the time of the arrest was unlawful.

11In August of 2014, you were arrested for the possession of cannabis, a small amount of 27 grams, and possession of hydroponic equipment stored in a shed.  This matter is yet to be finalised in the Magistrates' Court, notwithstanding it was two years ago, almost to the day.  But this arrest and those events, did not, it seems, deter you, and by September 2015, you were again involved in this very large operation.

12As I said, you are now 22.  Your parents and two siblings are in Vietnam.  You are still in touch with them as best you can while you are in custody.  You came to Australia upon completing high school intending to do a business administration course.  You did some English language and business and hospitality courses and obtained certificates for them in late 2014 and early 2015.  You worked in a shop and most often, it seems, as a farm labourer.  You hope to take up IT information technology work on your inevitable return to Vietnam.

13You were, I was told, until your arrival in Australia and involvement in these sorts of matters, a person of good character.

14Your sentence will be less because of your early plea of guilty.  Your plea is a sign of remorse.  You will go back to Vietnam and be reunited with your family.  It is hoped that the community in that country, your reform is settled once under the care and supervision of your parents.

15I take into account in your favour that you are a young person and until this offending were without conviction.  I take into account that you have limited English which will make prison harder for you.  Likewise, prison will be harder for you because you do not have the supports others resident in this country might have.  To your credit, you have done courses in the prison to try and improve yourself. 

16The crime of cultivating cannabis in a commercial quantity is punishable by a maximum term of 25 years' imprisonment.  Deterrence is of primary importance given the prevalence of this offence.  It is necessary that deterrence be to all those involved in entrepreneurial drug cultivation activity.  Also the theft of the electricity was large and requires limited, but nonetheless additional penalty, and deterrence is of importance in that regard as well. 

17It is also important to denounce your crimes.  That is, you became involved in criminal activity, which does have a detrimental effect on many in this community, and thus you must face the consequences of your crimes.  The only appropriate sentence is one of imprisonment, grave as that always is.  I will fix a non-parole period.  Whether you are released on parole is a matter for others, not me.

18I intend to impose an aggregate term for the crimes that you have pleaded guilty to, that is, the cultivation of a narcotic plant, being cannabis, not less than a commercial quantity, and the theft of the electricity.

19The aggregate term that I impose for those crimes is the following.  Can you please stand, Mr Nguyen?

20You are sentenced to three years and three months in prison for those, as an aggregate term, and I fix a non-parole period of two years.  Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of four years and three months with a non-parole period of three years.

21I am told that you have already served 260, did you say?

22MR WHITE:  Yes, Your Honour, 260.

23HIS HONOUR:  Two-hundred and sixty days on remand.  That is attributable or can be attributable to these offences.  So that figure of 260 days having been reckoned, I declare that that period of time is part of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already served 260 days of the sentence that I have just imposed.

24There are a number of orders that are sought by the prosecution, and I indeed to grant each of them.  The Crown seeks a disposal order in respect to the cannabis and all other property.  The Crown seeks a forfeiture order in respect of tainted property, and Red Energy, the power company, seeks compensation in the order of $28,534.47, being the cost of the electricity and other costs incurred by them.

25You can be seated.  Is there anything else required?

26COUNSEL:  No thanks Your Honour, thank you.

27HIS HONOUR:  I thank counsel for their (indistinct) assistance in regard to this matter, and I thank Madam Interpreter for assisting.  It may be that Mr Malik still requires your help later on when I leave.  I thank the informant for making the effort to come down from wherever he is stationed.  Thank you

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