Director of Public Prosecutions v Nguyen

[2016] VCC 280

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01756

DIRECTOR OF PUBLIC PROSECUTIONS

v

BICH NGUYEN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 March 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 280

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hughan
For the Accused	Mr D. Sala

1HIS HONOUR:  Bich Huan Nguyen, you have pleaded guilty to one charge of cultivating cannabis in a commercial quantity.  That crime carries a maximum penalty of 25 years’ imprisonment. 

2You are 32 years of age and have no prior convictions.  That is important.  You are currently on a bridging visa having come from Vietnam some seven years ago.  Your plea is to a settled indictment and you must get the benefit of that.  In these situations, remorse is always problematic but there must be a significant recognition of the utilitarian benefit of that plea of guilty.

3The situation is that the odds are very high, if not a certainty, that upon the sentence I intend to impose being imposed you will become subject to deportation.  I am well aware of the authority in relation to that and sentence on the basis that you will undergo and have undergone this sentence under that expectation.

4In your situation, as your counsel has very properly pointed out, you will be going home to a family albeit with your father ill but you will not have the normal situation of your hopes of staying and starting a new life in this country crushed.  However, I do take it into account in the way that I have described.

5The circumstances of the offending are that in the middle of 2014 the crime commissions started investigation into the activities of a Mr Trung Tinh Nguyen I do not think I need to go through who all the co-accused are other than that when a house in Yarram was raided a drug crop was found.  You are obviously further down the scale then Mr Trung Tinh Nguyen.  Found in that property were you and a Mai Ha Tong.  She was somewhat younger than you and indeed was able to plead to a charge of cultivation simpliciter.  She had served 90 days by way of pre-sentence detention and was sentenced to that.  You are charged with “commercial quantity” and whilst there has to be some limited aspect of parity, it seems to me that you are in a different situation.  This plea is based upon you having effectively being one step up the ladder from her.

6In any event, the warrant was executed at 39 Doherty Street, Yarram on 7 November 2014.  You have been in custody ever since.  You were both in the premises.  297 plants were found growing in seven rooms of that house.  The age of the plants varied from 6 to 16 weeks.  You told the police you had only been involved for about a month but telephone intercepts would seem to suggest that is a minimisation of your actual role. 

7At the time of the raid, the total weight of the plants was approximately 79 kilograms.  That, whilst not being at the high end of commercial quantities, is certainly not insignificant.  The house was set up with plastic sheets covering the floors, walls and windows.  How you thought you were going to get away with that in Yarram is somewhat beyond me but apparently you did for a while before people became concerned.

8A complicated and expensive hydroponic set up was in that house.  I accept that you clearly were not involved from the outset.  You were paid a certain amount of money which I accept on the material put before me was to try and assist your family back in Vietnam, particularly your father who had had a stroke and was and may well be, for all I know, still very ill.  The amount of electricity used – though you are not charged with this – is estimated at approximately $15,000 which is very significant.

9Personal property relating to you and your female co-accused was found in the house.  You were occupying separate bedrooms and as I indicated she received a sentence of 90 days.  I do not think I need go through the short index of phone calls other than to say that you clearly have been talking to Mr Nguyen since early August in relation to the growing of cannabis but, as I have said, you are certainly not to be sentenced as the mastermind in any way, shape or form.

10You were committed for trial in April of 2015 and, as I have indicated, it ultimately resolved in a settled indictment to which you have pleaded today.

11Bearing in mind that you have no prior convictions and you are still young and that your prospects of remaining in Australia are very limited indeed if it all existent the prospects of you rehabilitating are hard for me to assess and the risk of you re-offending in this situation in Australia would be none because of what will ultimately occur.

12I take all of those matters into account on your behalf.  It is serious crime and almost invariably results in a period of active custodial imprisonment.  Those periods can range dramatically but in your particular situation I see it as immediate to lower range and accordingly sentence as follows:

13On the charge of cultivating a commercial quantity 27 months, I direct that you serve 17 months before becoming eligible for parole.  I direct that 494 days be reckoned as having been served under this sentence.  So you realise the benefits of your having ultimately resolved this matter and pleaded guilty.  I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of 42 months with a minimum term of 30 months.

14MR HUGHAN:  Sorry, Your Honour, 42 months with a minimum term of?

15HIS HONOUR:  Thirty.

16MR SALA:  Thirty.  As Your Honour pleases. 

17HIS HONOUR:  Three and a half with two and a half.  Yes.

18MR HUGHAN:  Your Honour, just to one error that I made in terms of the committal date.  Remember I said to you that date is certainly going to be wrong.  It was October 2015 rather than April 2015.

19HIS HONOUR:  All right.

20MR HUGHAN:  But ‑ ‑ ‑

21HIS HONOUR:  When I am revising, if I remember I will change it.

22MR HUGHAN:  As Your Honour pleases.

23HIS HONOUR:  Thank you for that. 

24MR SALA:  As Your Honour pleases.

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