Director of Public Prosecutions v Nguyen
[2016] VCC 686
•19 May 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00851
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAO NGUYEN & ORS |
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JUDGE: | His Honour Judge Montgomery | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 19 May 2016 | |
CASE MAY BE CITED AS: | DPP v Nguyen and Ors | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 686 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L. Stevenson | |
| For the Offender | Mr M. Cunningham |
HIS HONOUR:
1 Do we have an interpreter?
2 INTERPRETER: Yes.
3 HIS HONOUR: Yes.
4 INTERPRETER: Good morning, Your Honour.
5 HIS HONOUR: Thank you.
6 BICH NGOC HUYNH, sworn as Interpreter:
7 HIS HONOUR: Thank you.
8 INTERPRETER: Thank you, Your Honour.
9 HIS HONOUR: If you can go into the dock, thanks.
HIS HONOUR:
10 If you could stand up please, Mr Nguyen. Hao Tien Nguyen, you have pleaded guilty to one charge of cultivation of a commercial quantity of narcotic plants, one charge of trafficking in a drug of dependence and two charges of theft. The facts of the matter are contained in the prosecution summary, Exhibit 1. I will not now recount the facts, they are not disputed by your counsel. Any reader of these reasons can refer to that exhibit to place the sentence in its factual context.
11 This is a serious example of this type of offending. The matter was settled from about February of this year, after ongoing discussions between the parties. In your record of interview, you denied the offending and ran a contested committal. In my view, these crops were your crops and reprehensibly you involved your son in this criminality. Your counsel filed written submissions and supplemented them orally, a report from Alison Mynard, clinical psychologist, was tendered on your behalf.
12 In that report she set out your personal and family history, your significant relationships and your education and vocational history. She referred to your substance abuse concerning the smoking of cannabis and indeed, you told her that this habit led you to growing the plants here to support it. You told her of your experiences in the Melbourne Remand Centre and years earlier of being in detention in Hong Kong.
13 She said you do not appear to be psychotic or have any dillusional thinking and your level of insight into problems you have was moderate. She said you reached a diagnostic criteria for major depressive disorder and general anxiety disorder. You told her that at the time of this criminality, you were struggling financially after the failure of your businesses and you were finding it difficult to source the money to purchase your cannabis for addiction.
14 You told her that because of those factors, you could not manage financially and it seemed viable to grow plants to support that addiction. As I will say later on, I do not accept that as the only reason for your involvement in this criminality. It is clear from the scope of the cultivation and an admission that you were also attempting to assist one of your son's financially from this operation, that there was a financial motivation involved.
15 In mitigation, your counsel relied on (1), you have no other criminal history; (2), you have pleaded guilty; (3), the factors set out in the report I have just referred to; (4), detention is difficult for you because of your previous detention in Hong Kong; (5) you have served a significant period of pre‑sentence detention. Your counsel outlined the conditions of such, including during the MRC riots in which you were not involved; (6) as to specific deterrence, he submitted that a signficant level had already been achieved; (7) he said your risk of reoffending was very low; (8) he relied on your age, you are now 52; (9), he referred to your motive as to funding your habit and assisting your son financially; (10) he directed submissions to the issue of parity, in particular, a co‑accused, Duc Nguyen. He submitted that I should consider imposing a sentence that equalled the amount of pre-sentence detention you have served and the placing of yourself on a community corrections order.
16 I have considered all of those matters and taken them into account. I sentenced your son, Hoan Nguyen to 11 months' custody plus a community corrections order on the basis that he was a crop sitter at two locations, see [2016] VCC 159. I sentenced Duc Nguyen, a co-accused to seven months' custody and a community corrections order, see [2015] VCC 437.
17 He had pleaded guilty to one charge of trafficking in a commercial quantity. He had served 220 days pre-sentence detention. He was aged 24, pleaded guilty at an early opportunity and had a limited role in the operation. I reject the parity submission with Duc Nguyen and yourself made by your counsel for those reasons I have outlined, there is a clear distinction. He was not in charge, he had a limited role, he only faced one charge and he pleaded guilty early. In sentencing you, I have had regard to the sentencing snap shots and cases handed up so that I could take into account current sentencing practices.
18 You have pleaded guilty to these charges, not at the earliest possible stage but you have still pleaded guilty and are entitled to a discount because it has saved the community the cost of a trial and also it is an acknowledgement of a responsibility by yourself.
19 In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am required to balance those interests with the interests of the community in denouncing your criminal conduct and the interests in the community in seeking to ensure, as far as reasonably possible that you as an offender are rehabilitated. I am mindful of the provisions of section 5 of the Sentencing Act and in particular, section 5(4C) which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is imposed.
20 I have reviewed the case of Boulton and in considering if a CCO would be appropriate in your case. In my view, the objective seriousness of your offending disqualify me from imposing such an order as an appropriate penalty, either on its own or in combination with a term of imprisonment.
21 General deterrence, that is I must impose a sentence that deters others from like conduct, is an important sentencing consideration here. In relation to specific deterrence, I take into account the fact that you have no other criminal history and that your offending occurred at a late stage in your life. This suggests to me that you might not reoffend, however, I do not consider I am in a strong position to make a guess as to your rehabilitation. Those factors suggest to me that upon release, you will not reoffend. If that is correct, specific deterrence has a limited role by way of comparison to an offender who has an extensive criminal history.
22 A number of cases were handed up to me and I have considered those. The case most on par with yours was a decision handed up by the prosecutor and see by your counsel of Nam Son Nguyen, case of His Honour Judge Carmody of this court [2015] VCC 1378, 23 September 2015. Of course a sentencing decision from this court is not an authority for my purposes, however, it can provide some guidance to me.
23 I have taken into account, as I have said, all of your counsel's submissions and in particular your age, your plea of guilty, parity, your personal circumstances, the fact that you have served pre-sentence detention. As I have said, I do not accept that you are involved in this solely for the purposes of growing marijuana or cannabis to satisfy your own personal habit, for the reasons I have already stated.
24 You have no other criminal history and I have made comments as to your rehabilitation prospects. What is the PSD?
25 MS STEVENSON: 399 days, Your Honour, not including today.
26 HIS HONOUR: 399.
27 MR CUNNINGHAM: That sounds correct, Your Honour, I must admit I haven't calculated today myself ‑ ‑ ‑
28 HIS HONOUR: Don't tell me it sounds correct, do you agree with it or not?
29 MR CUNNINGHAM: Yes, I do, Your Honour.
30 HIS HONOUR: Thank you.
31 In my view, I can impose an aggregate sentence pursuant to s.9(1) of the Sentencing Act as the offences form part of a series of offences of the same or similar character, that is self apparent from a reading of the summary in this case.
32 Taking all those factors into account, I impose an aggregate sentence of three and a half years with a nonparole period of two and a half years. Declare that the time of 399 days that you have already served, be reckoned to be part of the sentence of imprisonment that I have just imposed. I declare under s.6AAA of the Sentencing Act - something I always find difficult to assess as it seems to me to be an artificial requirement, however, I am by law asked to make that requirement. If after a jury trial you were convicted, I would have sentenced you to a term of imprisonment in the range of six years with a nonparole period of four years.
33 Were there any other orders sought? I cannot remember.
34 MS STEVENSON: Yes, Your Honour. There's a disposal order and a 464ZF order.
35 HIS HONOUR: Yes, thank you.
36 MS STEVENSON: I can hand up the copies.
37 HIS HONOUR: What's your attitude to those?
38 MR CUNNINGHAM: Neither of those are imposed, Your Honour.
39 HIS HONOUR: Thank you.
40 MR CUNNINGHAM: I've seen the documents that my friend is handing up.
41 HIS HONOUR: I make an order for disposal pursuant to s.77(1) of the Confiscation Act in the terms of the order that I sign. I make an order pursuant to s.(2) of the Crimes Act, of the taking of a forensic sample for the purposes of DNA. Having considered the seriousness of the circumstances of the offence, I am satisfied the order is justified. I am justified in making the order because of the seriousness of the circumstances of the offending and the order is by consent or not opposed.
42 What's the date, the 19th?
43 Mr Nguyen, I have just signed an order enabling the authorities to take a forensic sample from you. Through your counsel you have indicated you do not oppose that, however, if when the authorities come around to take that sample, you change your mind and do not consent, I tell you that the authorities can use reasonable force to enable that procedure to be conducted.
44 Are there any other matters I need to attend to?
45 COUNSEL: No, Your Honour.
46 HIS HONOUR: Thank you. You can take Mr Nguyen out.
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