Director of Public Prosecutions v Nguyen

[2015] VCC 1549

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01302

DIRECTOR OF PUBLIC PROSECUTIONS

v

VIET TANG NGUYEN

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 October 2015
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2015] VCC 1549

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

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Manning
For the Accused	Mr C. Nikakis with Mr P. Tomlinson

HER HONOUR: 

1Viet Tang Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant in not less than a commercial quantity, Charge 1, and one charge of theft, Charge 2.  The maximum penalty in respect of Charge 1 is 25 years' imprisonment.  The maximum penalty in respect of Charge 2 is ten years' imprisonment.

2The prosecutor made application for the disposal of various items seized by the police.  The making of that order is not opposed.

3The circumstances of your offending are set out in the Summary Of Prosecution Opening which was tendered as Exhibit A.

4In brief, on Thursday 7 May 2015, police executed a search warrant at a house property in South Morang.  You were present at the property and were arrested and cautioned.  In the search eight rooms were identified that had been set up to grow cannabis in hydroponic systems.  A number of plants at different stages of growth were found.  A total of 290 Cannabis L plants were located.  The total weight of the plants was 135.41 kilograms.  A commercial quantity of Cannabis L is 100 plants or 25 kilograms.

5The police also located an electrical bypass in the master bedroom of the house.  This was concealed and wiring was connected to a number of switchboards in the kitchen area.  A number of the items of hydroponic equipment were connected to timing devices on the switchboards.  The amount of electricity consumed by virtue of the bypass is unknown.  Accordingly, the value of the electricity stolen is unknown.

6You were interviewed by police with the assistance of an interpreter and made admissions.  You said that someone else set up the systems and the electrical bypass.  You had "Started up" two months earlier.  You were taught what to do in terms of looking after the plants.  You were given access to a car and to the house.  You were paid approximately $400 to $500 each week to buy food and petrol and to pay for other expenses.

7The man who provided the money and the information came to the property regularly.  You stayed at the property every night.  You said you followed the man's instructions.  You said you were told that you would be given additional money after the crop was harvested and sold.  You said that you agreed to do the work because you needed money for your debts.  It is accepted by prosecution and by your counsel that your role was that of a crop sitter. 

8You pleaded guilty at the first committal mention at the Magistrates' Court.

9In sentencing you I have taken into account your personal circumstances.  You are a 38 year old Vietnamese citizen.  You came to Australia in 2008 on a student visa.  In 2009 you married your wife who was also a Vietnamese citizen on a student visa at that time.  You subsequently returned to Australia in 2014 on a skilled visa which is due to expire on 14 March 2018.  Your wife is also living in Australia on a skilled visa.  Two of your sisters are also living in Australia.  You, your wife and your sisters have been living in the same house in suburban Melbourne.

10In 2014 you started up a spray painting business.  You borrowed money to start the business.  Unfortunately, the business was forced to close down in 2015 due to poor cash flow.  It appears that you had plenty of work but were unable to organise the business properly in order to keep up the collection of payments for work completed.  You say that at that point you owed about $45,000.  You kept working but your debts kept increasing.  It was in that context that you were approached by someone with the offer of a crop sitting job and you accepted that offer.

11Your counsel, in sentencing submissions, submitted that the appropriate sentence would be a term of imprisonment to be followed by a community correction order.  Your counsel relied, in mitigation, on a number of matters, including a) your plea of guilty,  b) your admissions and cooperation,  c) your lack of prior criminal record,  d) the conditions you have experienced in custody whilst on remand,  e) your strong family support and f) your good prospects of rehabilitation.

12The prosecutor, in sentencing submissions, submitted that the need for general deterrence was high.  He addressed a number of matters which he submitted ought be taken into account.  He conceded a number of matters such as your early plea of guilty, your prospects of rehabilitation and that you were a first offender.  The prosecutor submitted that that last aspect should have less weight in this type of offending.

13The prosecutor submitted that in respect of the cultivation charge, the need for general deterrence, just punishment and denunciation would result in a sentence of imprisonment.  The prosecutor said it was not submitted that a sentence of imprisonment to be followed by a Community Correction Order would be outside the range.  The prosecutor submitted that there should be some degree of cumulation in respect of the theft charge.

14Viet Tang Nguyen, the cultivation of narcotic plants in not less than a commercial quantity is a very serious offence.  The maximum penalty of 25 years' imprisonment reflects the seriousness with which parliament on behalf of the community takes this offending.  The enterprise in which you were involved was a business enterprise.  The set up was a sophisticated one.  Eight rooms were set up. 290 plants were found with a weight about five times the commercial quantity.  You were involved in the business as a crop sitter.  You did that because you wanted money.  You were being paid and would be paid more after the harvest.

15Your role was a menial one but was crucial to the growing of the crops.  The business of the production of illegal drugs is an evil one.  Producing and selling illegal drugs makes money out of the weaknesses of others.  The distribution of illegal drugs causes harm to individuals, families and the community.  Your moral culpability is high.  General deterrence needs to be given great weight in sentencing you.  Other people who might become involved in this business need to factor in the risk of going to gaol if they are caught.  Perhaps at least some people will decide that it is not worth it.

16A sentence of imprisonment is warranted for the purposes of denunciation, punishment and general deterrence.  Specific deterrence ought to also be given weight in your sentence.  You must understand that you must not get involved in any offending like this in the future.  If you do, you will receive harsher penalties.

17I have taken a number of matters into account in mitigation of sentence.  You are entitled to a significant discount for your early plea of guilty.  That plea of guilty has saved the cost and inconvenience of a trial.  It is also an expression of your remorse.  You provided immediate and significant admissions and co-operation.  I consider that you have good prospects for rehabilitation given your lack of prior history and your remorse.  I note you have work skills and have worked on these whilst in custody.  That is demonstrated by your completion of a course in custody and the certificate for that was tendered as Exhibit 1.  You are relatively young and have family support. 

18I have taken into account the difficulties that you have experienced in custody following the riots at the Metropolitan Remand Centre in June 2015.  I have also taken into account that this is your first sentence of imprisonment.  At this stage the situation in respect of your possible deportation is very unclear.  I have taken that prospect only into account as causing you some anxiety about your future given that you and your wife wish to settle in Australia.

19I consider that a sentence of imprisonment is required for the purposes of general deterrence, denunciation and just punishment.  A Community Correction Order alone would not be sufficiently stern to meet these sentencing purposes in this case.  You are relatively young and I consider that your potential rehabilitation is of some importance in sentencing you.   A sentence of imprisonment to be followed by a Community Correction Order would meet the sentencing purposes of general deterrence, denunciation, just punishment and specific deterrence and provide for your rehabilitation in the community.  Such a sentence would also give the opportunity to put something back into the community by way of community work.

20You were complicit in the theft of electricity.  Your role was a limited one in that someone else set up the system, you did not control the amount of electricity used and you were involved for a limited period of time.  Theft is a different type of offence from cultivation but in this case, I consider that the charge of theft is linked with the charge of cultivation and the offending covered by that charge that a concurrent term of imprisonment would be appropriate.

21On Charge 1, you are convicted and sentenced to nine months' imprisonment to be followed by a Community Correction Order.  Provided you consent, I intend to impose a Community Correction Order for a period of two years with the special conditions that you be under the supervision of Community Correctional Services and that you perform 300 hours of community work.

22Do you consent to the making of that order?

23OFFENDER:  (Through interpreter)  Yes, Your Honour.

24HER HONOUR:  On Charge 2, you are convicted and sentenced to three months' imprisonment. 

25The total effective sentence is nine months' imprisonment to be followed by a Community Correction Order of two years.

26I declare that you have served 175 days of this sentence by way of pre-sentence detention. 

27But for your plea of guilty, I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years. 

28I have made the order for disposal that was sought.

29Thank you, Mr Nguyen.  I hope we never see you back again in these courts, thank you.  That is one thing I should have said that I did not say.  Sorry, Mr Nguyen, this is something I should have said.

30If you breach the Community Correction Order by reoffending or by not doing what they tell you, then you will be brought back before me for resentencing.  So you must be very careful because if you ever committed any offence like this, or any serious offence, then I think you would most likely be sentenced to imprisonment.  So it is very important that you absolutely adhere to the law.  Do you still consent to the order being made?

31OFFENDER:  (Through interpreter)  Yes, Your Honour.

32HER HONOUR:  Yes, all right, thank you.  I trust we will not see you back here on a breach or for any other reason.  Thank you.

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