Director of Public Prosecutions v Nguyen

[2016] VCC 876

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00384

DIRECTOR OF PUBLIC PROSECUTIONS

v

HOANG NGUYEN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 June 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 876

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos	Office of Public Prosecutions
For the Offender	Mr R. Backwell	Valos Black & Associates

HIS HONOUR:

1Hoang Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant in a quantity which was not less than a commercial quantity applicable to that plant, that is, cannabis L.  The period of your cultivation was stated to be from 16 February 2015 to 31 March 2015.

2You are one of two men who are concerned with this cultivation who have been dealt with.  Your co-accused, Tan Nguyen, pleaded guilty in the Magistrates' Court and was dealt with summarily for one charge of a cultivation simpliciter.  He was convicted and sentenced to 343 days.  He had served that period by way of pre-sentence detention, so that was his period of incarceration.  His plea was accepted after a contested committal on the basis that no DNA linked him in any way to the inside of the premises where the crop was located. 

3On 14 February 2015, using the co-accused's name, you rented a property in Taylors Hill using a number of identification documents.  At that address a large hydroponic cannabis crop was located by police.  This was fortuitous, as police had attended in order to perform a welfare check, in effect, in response to calls from neighbours which concerned a disturbance in that particular street.  That disturbance, it was reported, involved masked men who were carrying weapons.  It appears that police found the front door to the house damaged and kicked in.  Inside the house police discovered five individual rooms within which canvas inner rooms had been erected, which in turn contained the cannabis crop.  An electrical bypass was located, which the power company estimated to have syphoned off some $4,994 worth of usage by kilowatt hours.  The hydroponic system comprised of high wattage lights with lighting shrouds and electrical transformers.  Two hundred and sixty-three cannabis plants weighing 26.10 kilograms were found. 

4You were arrested when you were returning to the house in a van and police intercepted you nearby.  You and Tan Nguyen were in the van.  Keys to the house in question were found in the van.  A car registered to your co-accused was found nearby and that vehicle contained the power control box from the system in the house set-up.  Some items found inside the house were tested for DNA and revealed you as the main contributor to DNA generally found on those items.  Your co-accused was excluded.

5During the plea, the prosecution fairly put that there is no evidence that you were physically involved in the setting up of the cannabis crop, your DNA having been found on a can of Coke and a toothbrush, or toothbrushes.  However, the prosecution case, accepted upon your plea, is that you were more than merely a crop sitter, based at least on your involvement in the leasing of the premises.

6Upon your arrest, you went into custody and have been so detained for 450 days, excluding today. 

7Cultivation of a commercial quantity of a narcotic plant carries a maximum penalty of 25 years.  It is a serious criminal offence.  Although your involvement appears limited in time and in its nature, nevertheless you had a role in the oversight of this crop and lent an active role in its supervision by your presence.  You lent yourself to its set-up in relation to leasing the property, and that is the basis upon which your criminality will be judged.

8You have no prior criminal history, and I will take this previous good record into account.  It should be noted, however, that often a clean record is one of the attributes which those who have set up the crop look for, so although this factor can ameliorate your sentence, it does so only to some extent.  Such enterprises, like this cultivation, would not be able to be established and kept without the involvement of persons otherwise of good character, who, for their own benefit and convenience, usually small, participate in such conduct.  It would appear your benefit may have been to enable you to pay your study fees, although any such reward is impossible to quantify. 

9You came to Australia as a student, on a student visa, to undertake a marketing degree with your wife, who was studying accounting, with a view to returning to Vietnam to work in those capacities in the agricultural business owned by your in-laws.  It appears you will not now be able to fulfil that ambition.  You left two children in Vietnam, aged two and six, who are being cared for by your parents, who are retired.  You studied and worked in the western suburbs. 

10I will take your plea of guilty into account and accord the sentence a discount by law.  Despite a contested committal, your plea has a utilitarian value of having avoided a criminal trial.  I accept that despite the fact that the plea is not given at an early date, it is evidence of some remorse and regret and an acceptance of your responsibility, which facilitates the course of justice.

11Your reclusion has been experienced by you in a more severe regime than normal, with 22 to 23 hours of lockdown for about nine months, due to the June 2015 riots which occurred at the prison.  Such a regime is not the usual run of detention and constitutes a much harsher regime of reclusion, and I consider that I should take it into account in your favour when determining your sentence.  I should note, also, that whilst in custody, you have completed courses of education and have worked in prison industries, which is to your credit. 

12The other significant issue to which your case gives rise is your immigration status and the consequences upon it of your conviction and sentence.  At the beginning of the plea it was submitted that you would be deported.  It was said that your student visa had been cancelled, and that would mean not only leaving your wife behind in Australia to finish her degree, but the loss of the opportunity to finish your degree here.  I enquired further as to this aspect, and it appeared that further clarification was required, as the status of the visa was uncertain. 

13Upon request by the informant, a supervisor from Australian Border Force provided information to the effect that you are currently in Australia unlawfully because the student visa was cancelled in September 2015.  As an unlawful non-citizen, therefore, you are subject to the detention provision of the Migration Act.  Once you are released from custody, the Immigration Department will take you into detention.  However, beyond this first step, it is not possible to know what course your status will take. 

14Although you may be liable to be removed from Australia, you may be eligible to apply for a bridging visa, which would enable release, or to apply for another visa.  These are processes which may involve administrative decisions upon which I should not speculate.  Whereas it was said you are going to be deported, this remains currently a speculative outcome.

15In those circumstances, I will proceed to take this matter into account in the way outlined in the recent authority of Schneider, Da Costa and Konamala, all decisions of the Court of Appeal of this State, in relation to deportation.

16The risk of your deportation on the material available is one, in my view, on one view, which is quantifiable as likely.  I will, therefore, take into account the fact that your imprisonment will be experienced by you with the uncertainty surrounding what may well be a discretionary decision.  This assessment is of necessity imprecise, but in my view, particularly as your wife would be left behind, I ought to take this into account as well as the loss of opportunity to complete your studies.  This is more limited than a loss of opportunity to make a life in Australia as outlined in the authorities because, as was submitted, this was never your plan. 

17I also take the question of parity into account, although by way of its disposal in the summary stream, I consider that your co-accused was seen as merely assisting your greater involvement in this conduct.

18Please stand.

19On the charge of cultivation, you are convicted and sentenced to two years and three months' imprisonment with a non-parole period of 18 months. 

20But for your plea, I would have sentenced you to a total effective sentence of three years with a non-parole period of two years. 

21I note for the records of the court that you have already spent 450 days by way of pre-sentence detention.

22I have signed disposal orders in relation to the schedule attached to those orders. 

23COUNSEL:  As Your Honour pleases.

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