Director of Public Prosecutions v Nguyen

[2016] VCC 585

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01755

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRUNG TUAN NGUYEN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 May 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 585

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hannan
For the Offender	Mr A. Brand

HIS HONOUR: 

1Trung Tuan Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant, in not less than a commercial quantity being cannabis, and two charges of theft.  Those crimes carry maximum penalties of 25 years and ten years respectively. 

2As I calculate it, you are now 35 years of age. 

3Importantly you have no prior convictions and, as I understand it, no other matters pending. 

4You pleaded guilty at a reasonably early opportunity and I must give you the benefit of the doubt insofar as remorse is concerned.  You have co-operated with police and I have heard sworn evidence to that effect.  You must also get the utilitarian benefit of that plea of guilty.  The co-operation that you have given is certainly not of the highest order, but nevertheless requires a discount which is demonstrable.

5Your student visa to Australia expired some time ago and there is almost a certainty that you will be deported.  I take that into account, in the sense that you will undergo the sentence in that expectation and belief and in accordance with the authority that has of more recent times been handed down by the Court of Appeal.

6You have now been in custody for some 541 days following your arrest for these matters. 

7I take all those matters into account on your behalf.

8The nature of the offending is contained in a Crown opening, which I annex to these my sentencing remarks.  I can summarise it in very brief form.

9In the middle of 2014, the Australian Crime Commission was commencing an investigation into activities of you and others.  Those associates of yours who were being investigated included a Mr Bik Nguyen, who I have sentenced; a Ms Mei Hahn Tong, who has previously been sentenced; and a Mr Hieu Xuan Do, who currently awaits trial.  At the time of the offending you were 34 years of age and had come here from Vietnam.  I do not need to go into the details of your co-accused as I will be doing that in a few minutes' time.

10As a result of information gleaned principally from telephone interceptions, as I understand it, the police were able to investigate and raid two large crop houses in the middle of 2014.  One was in South Dudley, near Wonthaggi, and the other was in Yarram.  Four co-accused were arrested and something in the order of 500 cannabis plants in all was found.  Each of the two separate crops amounts to a commercial quantity, but for very obvious reasons you are charged with one count being, in reality, a Giretti, but a commercial crop of significant proportions.

11The property at Yarram was found to contain 297 plants growing in seven rooms and weighed approximately 80 kilos, in other words the South Dudley property must have contained around about 200 plants though I have no precise details on that.  It was certainly in each of the situations, a sophisticated, though I do not like that word, operation and had been set up for the purpose of avoiding detection and, it would seem clear in this situation, to maximise yield.  Contained within the Crown opening are details of a number of phone intercepts involving you and they are there for anybody to read.

12When police raided an address where you were, $20,000 in cash was found and that has been forfeited.  I do not think I need to go into any other detail, other than to then look at this situation so far as parity is concerned. 

13The offending has to be regarded as serious.  Application of general deterrence is very important.  In your situation where deportation is obviously going to occur, specific deterrence may not be of such significance, but there must be denunciation and an appropriate punishment.

14Your personal circumstances are that, as I have said, you are 35 with no prior convictions and you will be deported.  You came to this country from North Vietnam.  Your parents are both still alive but struggle.  Your mother is unwell.  You have a sister who is married and living in China.  You have a good relationship with your family and have described to your counsel a happy childhood.  You finished school with a degree apparently from university and worked for a period of time.  You worked both as a physical instructor and with your mother in a grocery business. 

15In 2008 you came to Australia as a student.  You were here for two years apparently doing a hospitality course but struggled with the language.  You paid $16,000 for that course.  You concluded that and commenced studies again in Melbourne.  In 2011 you dropped out.  You worked as a handyman for a period of time and lived with a large number of people in a shared house.  You then met in 2012 a woman who was to become your wife in 2013.  You obviously have been now in custody for a significant period of time, virtually in isolation with very few visitors, as I understand it, but she has had limited contact with you.  You have told your counsel that you were instructed on how to cultivate crops by a housemate.

16Insofar as this offending is concerned, you claim to have been recruited by a woman referred to as, "The Boss" and you were encouraged to assist in the cultivation at South Dudley.  As I understand the evidence, it does not matter which, you would appear to have been an assister at the property at South Dudley, but had a more significant role in the property at Yarram.  You assisted with the electricity diversion and you assisted with the sourcing of seedlings but in a situation such as this it is almost impossible to clearly delineate your role. 

17It is clear to me that your role was higher than that of Mr Bik Nguyen who I have already sentenced.  You were involved in two individual crops, albeit as one charge.  The amount involved is more significant and it is clear that you were not simply a sitter, which was the role that he was found to have.  Certainly your culpability has to be regarded as higher.  Of course I take into account the question of parity.

18Firstly I will deal with the female co-accused who received 90 days and I think has got no significance in this parity discussion.  The one who is of significance is Mr Bik Nguyen and I took account similar matters in regard to him, again having no prior convictions, again the likelihood of deportation.  He was sentenced to be imprisoned for a period of 27 months, with 17 months before becoming eligible for parole.  His plea of guilty was at an earlier stage than yours, but of course he does not get the benefit of having assisted authorities in respect to, potentially at least, other matters.

19You are not in protection, but that may well occur, I suspect.  In recent times, certainly over the last four or five months, you have been in lockdown and I take that into account.  You have endeavoured to do certificates in prison and I know when someone is on remand that is not easy.  You have been working in the metal shop.  You are concerned about the welfare of your parents and, as I have indicated, you have an isolated existence in the prison system.  I take all those matters into account.

20Commercial cultivation, in what is here was clearly being done as a business, is a significant crime indeed.  I think that your role, as I have said, is significantly greater than that of the co-accused, but of course I have to do the best I can insofar as parity is concerned.  Accordingly, taking into account that your rehabilitation is up to you, the risk of you re-offending certainly in this country is, I would have thought, zero:

21On the charge of cultivation, you are sentenced to be imprisoned for a period of three years and three months. 

22On each charge of theft, three months.  One month of each of those cumulatively upon each other and cumulative upon the three years and three months.

23That gives an effective sentence of three years and five months.  I direct that you serve a minimum term of 25 months before becoming eligible for parole.  I direct that 541 days be reckoned as having been served under this sentence.

24I am reluctant in a situation such as this to give a 6AAA discount because it incorporates an unexpressed percentage before having co-operated, but when I add together your plea of guilty, albeit at a somewhat later stage, together with your discount, I point this out to you so that you are fully aware of the benefits that you have received.  But for your plea of guilty in this matter, I would have sentenced you to be imprisoned for a period of six years with a minimum of four, if that makes sense, gentlemen.  I do not want to be any more specific than that, it is unwise.

25MR HANNAN:  Forfeiture.

26HIS HONOUR:  I have already made all those.  They will just come out in the - there is no other ancillary orders I have to make, so those orders will all be - I have finished with that, so they will come when the actual report is sent out.  There is nothing else I have to deal with?

27MR HANNAN:  No, that is it.

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