Director of Public Prosecutions v Nguyen

[2016] VCC 852

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00724

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUC NGUYEN

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2016
DATE OF SENTENCE:	21 June 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 852

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lenthall	Office of Public Prosecutions
For the Accused	Ms. Z. Broughton	Victoria Legal Aid

HIS HONOUR: 

1Mr Nguyen, you have pleaded guilty to one count of cultivating narcotic plants, they being in terms of weight and number, of a commercial quantity.  Just so you understand that, because of the number of plant that can be said to be
a commercial quantity, like it can be in terms of the weight, you exceed both weight and numbers, in the authorities being able to say that this is
a commercial quantity. 

2You have heard the learned prosecutor, Ms Lenthall, tell this court that the maximum sentence that may be imposed for this offence is that of 25 years' imprisonment.  That term of imprisonment fixed by the Parliament, should indicate that the Parliament, on behalf of the community, view cultivating as
a very serious offence.  It is conceded by the Crown, or the prosecution, and urged upon me by Ms Broughton and correctly so, that you are right at the bottom end of offending. 

3Mr Nguyen, for having pleaded guilty, I will impose a lesser sentence than
I otherwise would have imposed, in other words you receive a discounted sentence for having pleaded guilty.

4Mr Nguyen, the circumstances of your offending are as follows, and I am quoting directly from Ms Lenthall's opening that she prepared some days ago.

"It was at about 10.30 am on Wednesday 3 February of this year, that police officers from Northcote Police Station attended at 491 St Georges Road in Thornbury, to execute a warrant which was issued under the provisions of the Drugs, Poisons and Controlled Substances Act.  That address in St Georges Road consists of a front milk bar, behind which there is a four bedroom residence.  That residence is accessible via
a locked door which is behind the milk bar counter.  In addition, there is also an attached bungalow in the backyard."

5Mr Nguyen, you were present behind the milk bar counter when the police arrived.  You unlocked that door that was behind the counter to give the police officers access to that rear residence.  You accompanied them into the backyard and unlocked the bungalow with a key, which was hidden under some flat cardboard boxes nearby to the bungalow door. 

6A search of the residence and of the bungalow was conducted.  In total, 289 cannabis plants were located, in various stages of growth throughout the house or residence and in the rear bungalow. 

7The four bedrooms of the residence and the bungalow, each contained sophisticated hydroponic cultivation systems, which included light fittings, transformers, shades, extractor fans and electrical items and other equipment.  The kitchen contained a small tub with cannabis seedlings, as well as a plastic bag with loose cannabis in it.  An electricity bypass was located in the roof cavity.  Those bypasses in themselves are sophisticated and obviously installed by those that understand electrics. 

8The front milk bar was found to be non-operational.  The fridge was turned off, drinks that were in the fridge were warm, indicating it had not been turned on for some time, and other food found within the premises was outdated, the "use by" date having expired.  Of the 289 plants, they were analysed by a botanist and the weight was found to be 58.44 kilograms. 

9Mr Nguyen, you were arrested and taken back to the Northcote Police Station.  You, with the assistance of a Vietnamese interpreter, were interviewed by the investigating police officers and to your credit, you did not mess around, you made full admissions to committing this offence. 

10Mr Nguyen, you are a Vietnamese citizen.  You came to Australia on a three month tourist visa.  You arrived in Australia on 12 March 2013, three years ago. 

11I pause there for a moment and add, as Ms Broughton said on your behalf this morning, apparently because of I say, and I hope this is accurate, the political situation in Vietnam, and you coming from the wrong side of the politics, you cannot pursue your true profession and are therefore employed much below what your status should be and you struggle to adequately supply for you wife and child.  That was part and parcel of your reason coming to Australia, to see if you could better yourself, in terms of being a good provider to your family, which no doubt included your elderly mother. 

12Your visa expired after the three month period and you obviously have overstayed the period allowed by the visa and were unlawfully within Australia.  Having done that, you have probably got no chance of ever returning.  If you had done it in a more sophisticated manner, you might have been able to even apply for some sort of refugee status, but we will never know now. 

13Mr Nguyen, you are now aged 57, having been born on 20 October 1958.  You got a bit ahead of yourself before when you said you were 58, you turn 58 in October of this year. 

14I will now quote directly from what Ms Broughton has prepared and given to me this morning.  Your father was a soldier who, after the fall of Saigon, was sent to a re-education camp.  "Re-education" I don't think is the operative word, I think it is almost a prison camp, where he found himself compelled to work out in the fields.  I do not know what sort of re-education that is.

15In 1978 your father was killed when he stepped on a mine while working in the fields.  Your mother and younger sister still remain living in Vietnam.  You attended school at Tandinh High School in District 3 Saigon.  When Saigon fell you were forced to join the young enterprise movement and perform farming work for three years. 

16You obviously, by what comes next, are a man of intellect.  Ms Broughton says you were studying to be a solicitor or lawyer and an economist.  Those studies were frustrated by those in charge of the political system that then existed. 

17As Ms Broughton said, your tertiary education, or your university education ended and you were forced to return to the provinces, similar to your father, to perform farm work.  You did that for a period of three years. 

18At the end of that three year period, your request that you be transferred was accepted and you were transferred to an organisation that assisted people under the age of 15 years, who suffered from disabilities, mostly physical type disabilities, where you were involved in prosthetic work.  You continued to work in that field for 20 years, with a special interest in customising equipment for young, fit and healthy people suffering from disability.  Loss of limbs, perhaps from war activity, perhaps from health reasons such as polio and things of that nature. 

19You eventually pursued your interest through studying, yet again, and achieved a degree in five years, relative to that type of work.  You worked for the Department of Justice as a volunteer, however you were unable to obtain paid work. 

20You married in 2005 and had your daughter, Pham Phuong Nguyen, in that same year.  Your marriage ended in divorce in 2013.  As you have heard
Ms Broughton say today, the marriage fell apart because of lack of funds and you were unable to support your wife and child, which caused unhappiness and displeasure between you and your wife. Apparently your wife is still supportive, in a sense that she co-operates, in terms of managing the child, but at this time because of you being in custody, you cannot contribute. 

21In this unhappy scenario, where there is no funds, you travelled to Australia in order to seek employment that would enable you to support your family, especially your daughter, who was then studying at a private international school in Vietnam.  It is a great shame you did not do that through lawful means, as distinct from coming here and taking your own actions in finding work on
a visitor visa. 

22You have worked on farms, in factories, and bakeries in Melbourne and Queensland.  You initially had a job working in a poultry factory boning chickens for at least a year.  You left the poultry factory for a bakery, where you held that employment for over a year.  Then in early-2016, you found yourself in Melbourne. 

23Now you heard Ms Broughton raise this, and unfortunately, the courts hear this all too often, very regularly.  Those who are employing you are aware of the fact of the illegal status you have, in terms of work permits, that is, you don't have one.  So you are then subjected to exploitation by others, and all too often, by your own.  When I say that, by other Vietnamese person who perhaps are now permanently living and residing in Australia. 

24You would be quite surprised to know how often that form of exploitation is seen in many forms, or that type of exploitation of people is seen in many forms by police officers and judges.  The young, those of the female gender are often horrifically abused because of their illegal status, they will not and cannot come forward to protect themselves. 

25Ms Broughton, your counsel, in her submissions, correctly and accurately submits that with your lack of English, and secondly, being totally removed from your family, find it more difficult to manage prison life.  You do not have visitation rights exercised by family friends or members and you have very limited access or contact with others.  This escalates the discomfort that you, as distinct from others, encounter whilst in prison. 

26I commend the Vietnamese Women's Association.  I continually hear of their good work in this place.  When I say "in this place", in Footscray in particular and other areas where Vietnamese people reside.  They apparently have taken an interest in you and at least you have had some contact with those who try and assist.  I rather suspect, by going to Fulham Prison, that you were removed from that service, simply because of the tyranny of distance. 

27Perhaps I should add this, and you may not like it, but it is a fact.  I am a little cynical, in the terms of the problem associated with your isolation, to this extent.  I can say that over the last six weeks, I have dealt with at least five Vietnamese people, all lacking in English, all in custody for the same or very similar offence that you find yourself charged with.  That indicates to me that there is lots of Vietnamese speaking people in the custodial system, so perhaps there is more there that you can chat with than otherwise might be the case. 
I cannot speak about Fullham, but I can certainly speak about the Melbourne Remand Centre and Port Phillip Prison.  I am not being critical of you, but that is the cold hard fact, and I say a little more about that in a moment. 

28Mr Nguyen, this house-sitting of crops in our society is becoming prolific, especially in the terms of the number of Vietnamese individuals who are being charged with the offence of crop-sitting.  The unfortunate observation that I can make is that the majority of persons charged are all indigent or in very poor circumstances, lacking in funds.  Thus they are easy targets for the criminally inclined, all too often other Vietnamese, and they take advantage of the impecunious state of people such as yourself.

29I accept, as does the prosecutor, that you are at the bottom of the criminal enterprise, in terms of your involvement in the production or the activity in growing marijuana or cannabis.  It was said, and I think you were surprised, taking into account what you saw coming over the counter in the shop, that you were even receiving $80 a day.

30To your credit, you revealed to the investigating police officers, when interviewed, that it was through Hung that you met Mai, and thus became involved in this criminal activity.  It is the Hungs and the Mais of this world that have to be arrested and dealt with by the criminal justice system.  Unfortunately, these phantom-like figures disappear into the ether as soon as the police officer arrives, and I am not that naïve as to know why you do not know who they are.  Because all too often the drug industry is heavily surrounded by extreme violence. 

31To your credit, as you said to those investigating policemen, and I quote what you said:

"I saw the police officer come.  I was very worried because I know that
 I now have to go back to Vietnam." 

32It is conceded by your counsel that on completion of any sentence imposed by this court, that you will be deported. 

33Mr Nguyen, the Sentencing Act in this State indicates that and I will read it to you.  It says:

"That I am directed and must take into account the provisions of that Act, in particular s.5, wherein it is set out that the purposes of sentencing are for just punishment."

34The words used are similar to these: 

"The purpose of sentencing is to punish the offender", which of course is you, "to an extent and in a manner that is just in all of the circumstances."

35The next sub-section within that section, directs the court to general and specific deterrence.  That means, any sentence imposed is to deter you and others from committing the same or similar offences. 

36At the same time, the following sub-section speaks of establishing a proper rehabilitation program or scenario and you may have heard Ms Broughton and I discussing that recently, this morning.  I will say a little more about that in
a moment. 

37Last but not least, the section directs judicial officers such as myself to denounce this sort of behaviour. 

38As I said earlier, the emergence of the crop-sitter is becoming almost an epidemic.  The marijuana industry is apparently lucrative for those at the big end of production.  This type of criminal industry is to be denounced in the strongest of terms. 

39When speaking of your rehabilitation, you may have heard me say, it is a little difficult for magistrates or judges in this State to understand what rehabilitation might mean when a fellow such as yourself will be deported.  But from what I have been told by Ms Broughton on your behalf, is that you are obviously an industrious and hardworking man when you are at home, in Vietnam, and no doubt on your return, you will, if possible, be seeking further work.  Further, being indicative of your willingness to be employed, you were a billet, as I understand it, working in the laundry - it is the laundry, is it not? 

40MS BROUGHTON:  Workshop. 

41HIS HONOUR:  Workshop whilst at Fullham Prison. 

42Mr Nguyen, I assure you that I have taken into account all that has been said on your behalf by Ms Broughton.  I again indicate that I take into account your plea of guilty.  This plea is indicative of your remorse.  You were obviously remorseful as soon as you saw that policeman coming through the door, because you knew what was going to happen. 

43I again quote Ms Broughton's submission, because it is correct, so rather than writing it myself, I directly quote it.  Ms Broughton quotes the cases of The Commonwealth Director of Public Prosecutions v Estrada; v Yuan; v Byun, probably two Vietnamese men, wherein the Court of Appeal in 2015 VSCA 22, handed down on 20 February 2015 said this: 

"The court explored the weight that ought to be given to foreign nationals serving time in custody, separated from friends and family."

44At paragraph 38, the court said:

"One might ordinarily expect that foreign nationals, incarcerated in Australian prisons, will find imprisonment more burdensome by virtue of the fact that usually they will be separated from family and friends and thus derived from the companionship, comfort and support one gets from family or friends." 

45I spoke of that earlier and the Court of Appeal directly addresses that issue. 

46The court further said - that is the Court of Appeal, further said:

"That fact will, in our opinion, always be relevant to the exercise of the sentencing discretion, but the weight that that is given will vary from case to case."

47Again, as I said earlier, I do take into account everything that has been said.  It has become almost - it is not a plague, but it is a very, very common offence now unfortunately, so obviously some at the top end are making substantial sums of money through the illicit drug trade. 

48You will be convicted and sentenced to 18 months' imprisonment. 

49Pursuant to s.18 of the Sentencing Act, you are to be given credit for having served 139 days of imprisonment.

50Pursuant to s.78(1) of the Confiscation Act, I am not going to read them all out, but the long list of plants and chemicals and hydroponic equipment will be forfeited to the State, and that property is to be placed in the custody of the Chief Commissioner of Police to be held by him until 28 days from this date or the conclusion of any appeal proceedings, where it may be tested, analysed and then destroyed. 

51MS BROUGHTON:  As Your Honour pleases.  And there's no non-parole period set? 

52HIS HONOUR:  No non-parole period set, no.  It is less than two years, so
I believe I do not have to do that. 

53MS BROUGHTON:  That is true.

54HIS HONOUR: Further, I think the only other thing I do is to announce the s.6AAA. Is there any other orders sought other than that?

55MS LENTHALL:  No, Your Honour.

56HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act - I find this sometimes a little difficult, but I think, had it not been for your plea of guilty,
I would have imposed a prison term, I believe, of at least 30 months', with
a minimum term of 24 months'. 

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