Director of Public Prosecutions v Nguyen

[2016] VCC 615

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00125

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANH TUAN NGUYEN
BA THU NGUYEN

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2016
DATE OF SENTENCE:	10 May 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 615

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	Ms F. Pace
For Accused Nguyen	Mr L. Tran
For Accused Nguyen	Mr K. Tran

Pages 1 - 6

 

 

HIS HONOUR: 

1Ba Thu Nguyen and Anh Tuan Nguyen, you are both to be sentenced for one charge of cultivating the narcotic plant cannabis in a commercial quantity.  The maximum sentence is 25 years' imprisonment. 

2Perhaps I will stop to do this.  Mr Casey, during the plea hearing on 6 May you filed, and I think intended to tender some documents.  They are three documents, the decision for dissolution of marriage document and also two medical documents, a certificate of discharge and a certificate of surgery related to Mr Anh Nguyen's mother.  They are Vietnamese documents.  I think they should be tendered as exhibit.  It can be Exhibit AN1.  So I will return now to my reasons.  I will go back one sentence.

3You pleaded guilty before me on 6 May.  When interviewed by police on 6 November 2015, you, Ba Nguyen made admissions about the offending.  You, Anh Nguyen, exercised your right to silence.   In February 2016, committal went by hand up brief, after which you entered pleas of guilty.  The matter was then listed for plea hearing in this court. 

4You both receive the benefit of your pleas of guilty  and the level of cooperation that short history of the proceedings respectively shows.

5At the plea hearing, also on 6 May, Ms Kapataniak for the Crown tendered a written Crown opening.  Mr Leslie for you, Ba Nguyen, provided a written summary of submissions.  Mr Casey for you, Anh Nguyen, tendered Vietnamese government and medical documents related to your parents' dissolution of marriage and your mother's terminal illness, which is cancer of the stomach.  He also provided a written outline of submissions.

6The circumstances of your offending are comprehensively set out in the tendered Crown opening, which is Exhibit A.  My own summary may be quite short.

7You are both Vietnamese nationals.  You, Ba Nguyen, now aged 22, came here on a student visa in May 2013.  You, Anh Nguyen, are 33.  You came here on a three month travel visa in October of 2014.  You had overstayed that at time of offending.  Ba Nguyen, your visa has been cancelled because of this offending.

8A police raid on 6 November 2015 found you to be at premises, 18 Salvia Avenue, Pakenham.  Search revealed what might be termed a typical hydroponically grown cannabis crop within several rooms of the house.  Other usual electrical and cultivation equipment, including nutrients, were also there.  In total, there were 152 plants of different maturity, weighing 40 kilograms.  The legislative commercial quantity thresholds are 100 plants  or 25 kilograms.

9I accept that you were both minding the crop, and did so in the expectation of being paid $6,000 over two months.  It is also accepted that you were low in the hierarchy of the enterprise.  Also not atypical of this offence, you were recruited in respective circumstances of financial difficulty.  You accepted in expectation of reward, albeit relatively modest reward.

10Despite claims about recruitment  in your record of interview, Ba Nguyen, and put through Mr Casey on your behalf, Anh Nguyen, it seemed to me that I was ultimately not pressed to make any such distinction between you by either defence or Crown.

11Both of you have no criminal record.  You, Ba Nguyen, were a good student in Vietnam and came here to study English at RMIT.  The terms of your visa permitted only 20 hours of paid work.  You worked here as a farmhand in Mildura and Ringwood.  I was told that you had sent money to your family in Vietnam.  Your family knows of this matter.  Upon deportation, you will return to them in Vietnam.  You have the support of your partner in Australia.

12Anh Nguyen, you also did well at school in Vietnam.  After that, you began a travel agent's course.  You left to join a friend's business importing wine.  When that ended in 2012, you started your own business as a travel advisor or consultant.  That was not successful.  You came to Australia in 2014 to study the wine industry, hoping to develop business opportunities in that.  You developed a wish to remain here and,  as stated, overstayed your visa.  I was told that your mother is terminally ill and that you hope to see each other before she dies.  Mr Casey has tendered some medical material and her illness and situation is not challenged.  He tendered a certificate of discharge document that states February 2016 surgery, described as "Total gastrectomy, oesophageal duodenal and astomosis".  Gastrectomy is excision of the whole or part of the stomach.  The diagnosis is cancer of the stomach.  Your mother is not expected to live beyond some months.  You have no family and no little other support in prison here.

13It is expected that both of you will be deported upon parole release.  No circumstances exist here that should make that relevant, either favourably or unfavourably to you.  I should impose the appropriate head and minimum terms, given the otherwise relevant factors.

14Imprisonment is more difficult for you, bearing in mind your language difficulties, isolation and limited support.  You, Anh Nguyen, have the added burden of your mother's illness and your separation from her.

15It is not suggested that either of you came to Australia for any purpose related to this offending.

16This is a serious offence, attracting a high maximum sentence.  The sentencing considerations of deterrence, expression of denunciation, your moral culpability and the need for proportionate punishment apply.  General deterrence is the primary sentencing purpose in cases of such offending.  There must be a sentence of imprisonment with a minimum term.

17Moderating factors are also relevant.  They include your pleas of guilty and cooperation; the circumstances of your involvement; your lack of criminal history; and prospects for rehabilitation.  Ba Nguyen, Mr Leslie pointed particularly to your youth and admissions in record of interview.  As stated, both of you suffer particular difficulty in prison.

18An important and difficult consideration raised in your plea, Anh Nguyen, is the impending death of your mother.  It is of course impossible to judge such things to a nicety.  However, I accept that she does not have long to live, and that you greatly fear that you will not see her again, nor support her at the end.  She is your sole parent.  Your father has had little to do with your life since a young age.

19If the distinction can be clear in a situation such as this, the hardship to your mother must be measured at law by a stringent test of exceptional circumstances.  In my view, the circumstances here must be very close to that.

20In any event, directing myself to your situation and the additional burden of this to your imprisonment, I am ultimately satisfied that I should accede to Mr Casey's submission to sentence imposing a minimum term which enables parole or at least consideration of it now or very soon.  It is a shorter minimum term than otherwise appropriate.

21The proper range of sentence was raised by me, not counsel, in the plea hearing.  I find that the discretion I have to impose a more merciful sentence in circumstances where sympathy is particularly and legitimately felt  is applicable here.

22My decision on this requires some consideration of parity on your sentence, Ba Nguyen.  The respective circumstance of your offending and situation are very similar.  The matter just dealt with, justifying Anh Nguyen's lesser minimum term, is individual to him.  However, I have found it difficult to see it as simply as that.  This particularly may relate to any sense of justifiable grievance on your part.

23Bearing this in mind, and your youth, I have also moderated your minimum term to some extent.  However, not to the same extent.  You will not receive the same minimum terms.  I have found this aspect difficult and have attempted to come to a broadly just result.  Stand up, please.

24Ba Nguyen, I sentence you as follows, to imprisonment of two years with a minimum term of eight months.  Under s.18 I declare pre-sentence detention of 186 days.  Sit down, please.

25Anh Nguyen, I sentence you to two years' imprisonment with a minimum term before eligibility for parole of six months.  I declare under s.18 186 days of pre-sentence detention.  Take a seat.

26Under s.6AAA of the Sentencing Act, I indicate to both of you that you would have received a sentence of three years with a minimum term of 18 months.  That would have been the same sentence, on presumption that the circumstance of Anh Nguyen's mother would not then have the relevance I have earlier described.

27What are the other orders I need to make?

28MS PACE:  Your Honour, I understand there's an updated disposal order I seek to file.

29HIS HONOUR:  All right, well I will sign that now.  This is,  unsurprisingly, all of the equipment and like found at the crop.  So I will sign that.  There is no application for forfeiture or destruction of the drugs?  That has happened already, has it?

30MS PACE:  I understand that's happened, Your Honour.

31HIS HONOUR:  Is there anything else I need to do?

32MS PACE:  No, Your Honour.

33HIS HONOUR:  All right.  Both men can be taken into custody.  Thank you, Ms Huang.  Don't you go into custody.  You come out this way.  All right, thank you for your assistance.

34MS PACE:  As Your Honour pleases.

35HIS HONOUR:  I will adjourn sine die.

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