Director of Public Prosecutions v Nguyen

[2015] VCC 1378

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

AT MELBOURNE
CRIMINAL JURISDICTION
  CR-15-01547

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAM SON NGUYEN

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2015
DATE OF SENTENCE:	23 September 2015
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2015] VCC 1378

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 H. Shaw
For Offender Chu	Mr A. Malik
For Offender Nguyen	Ms Z. Garde-Wilson

VICTORIAN GOVERNMENT REPORTING SERVICE

7/436 Lonsdale Street, Melbourne - Telephone [phone]

HIS HONOUR: 

1Nam Son Nguyen, you have pleaded guilty to four charges before the court.

2Charge 1, cultivating a narcotic plant of Cannabis L in a quantity not less than the commercial quantity.  This charge has a maximum penalty of 25 years' imprisonment.

3Charge 2, theft.  This charge has a maximum penalty of 10 years' imprisonment.

4Charge 3, theft.  This has a maximum penalty of 10 years' imprisonment.

5Charge 4, trafficking in a drug of dependence namely Cannabis L.  This charge has a maximum penalty of 15 years' imprisonment.

CIRCUMSTANCES OF OFFENDING

6At the time of this offending, you were 28 years old.  You had been living at 29 Churchill Avenue, Maidstone for approximately two years.  You had been an illegal immigrant in Australia since 14 May 2011.

7I now turn to the summary prepared by the prosecution in respect of this offending.  Between 20 October 2014 and 12 March 2015, the Australian Crime Commission investigators monitored over 11,550 phone conversations between yourself and your associates.  At the relevant time, you had three separate mobile phone numbers that you were using for this purpose.  You had eight close associates with whom you had regular contact.  They used various names and phone numbers.  The two relevant ones in respect of this offending is Kiet and your co-accused Chu.  Only Mr Chu has been charged with related offences.

8You talked to these associates on the phone about the cultivation of cannabis and in particular the growing techniques, when to water the plants, when to provide nutrients and chemicals to the plants, the methods on how to identify when there was infestation or bugs on the plants, and how to dry the cannabis leaves when they were to be harvested.

9Between 12.39 pm and 4.05 pm on 7 December 2014, there was a series of phone conversations between yourself and Kiet during which you discussed a new house in which to cultivate cannabis.  You told Kiet to send you the address so that you could enter it into your GPS.  At 4.09 pm on 7 December 2014, Kiet sent an SMS to you that read 9 Cerrata Crescent, Tarneit.

10On 8 January 2015, police surveillance members saw you driving a grey 2005 BMW 325i sedan, registered number TSB 104.  You were seen to be driving to the house at 9 Cerrata Crescent, Tarneit, referred to as the Tarneit house.  You opened the garage roller door, drove in to the garage and closed the door behind you.  A short time later, you were seen leaving the Tarneit house in the BMW vehicle.

11At about 7.20 am on 12 March 2015, police executed a search warrant at the Maidstone home.  This was your home.  During the search, police found a large amount of hydroponic equipment in the garage, namely 213 light shrouds, 8 electrical transformers, 143 light globes, 5 power boards, 5 tubs of assorted light fittings.  During the search, the police also found a plastic bag containing cannabis.  The cannabis weighed 320.7 grams.  The cannabis was in your possession for sale.  That is the subject of Charge 4.

12At about 7.30 am on 12 March 2015, police executed a search warrant at 665 Ballarat Road in Ardeer - that is, the Ardeer house.  At all relevant times, your mother Dong Thi Nguyen was the registered proprietor of the Ardeer house.  Police forced open the front door which was fortified with metal bars.  They searched the house and found three rooms set up for the purpose of cultivation of cannabis.  One other room was being used as a bedroom by your co-accused Chu.

13Police searched the bedroom and found a trap door concealed underneath the piece of carpet in the built-in wardrobe.  Police opened the trap door, revealing a ladder that led under the house.  Your co-accused Chu was hiding in the subfloor area.  Chu fled the house through a door that gave access to the outside of the house from the subfloor, jumped over a side fence and they chased him.  They apprehended Chu and took him back to the house.

14The Ardeer house had been modified for the purpose of cannabis cultivation.  Plasterboard had been set up as false walls in order to conceal a functioning hydroponics set up in each room.  Plasterboard and black plastic were used to cover the windows in these rooms.  Inside each room, a reticulated watering system was used to water and feed the cannabis plants.  There was high-powered lighting suspended from the ceiling to help with the growth of these plants.  Chemicals were used to sustain the growth of the plants.

15On 16 February 2015, 3 March 2015, 12 March 2015, police saw in the driveway of the Ardeer house a white Mercedes Benz van registered number WYC 170. This vehicle was registered to you.  A botanist attended at the Ardeer house.  The botanist confirmed that at the time of the search, there were 111 plants at various stages of growth.

16The house contained an electrical bypass which was concealed within the wall cavity at the house.  The bypass was supplying electricity to the Ardeer house without registering on the electricity meter.  Energy Australia Proprietary Limited was the electricity provider for the Ardeer house.  Between 1 October 2014 and 12 March 2015, a period of 163 days, the total amount of unmetered electricity stolen from the Ardeer house using the illegal bypass was 39,783 kilowatt hours.  The total value of electricity stolen at the Ardeer house was $11,395.45.  That is the subject of Charge 2 on the indictment.

17At the Ardeer house, the police seized the following items:  1 electrical bypass, 34 globes, 35 light shrouds, 36 electrical transformers, 2 power boards, and 111 cannabis plants weighing a total of 17.51 kilograms.

18I will now turn to the Tarneit house.  At about 8.40 am on 12 March 2015, police executed a search warrant at the Tarneit house.  During the search, police found a hydroponics set up for the cultivation of cannabis in five rooms.  The hydroponics set up consisted of high-powered lighting suspended from the ceiling, a reticulated watering system and modifications to the internal walls.  A botanist attended at the Tarneit house on 12 March 2015 and analysed the cannabis.  The botanist confirmed that at the time of the search, there were 130 plants at various stages of growth there.

19The house contained an electrical bypass which was concealed within the wall cavity at the house.  The bypass was supplying electricity to the Tarneit house without registering on the electricity meter.  AGL Australia Proprietary Limited was the electricity provider for the Tarneit house.  Between 13 February 2015 and 12 March 2015, a period of 28 days, the total amount of unmetered electricity stolen at the Tarneit house using an illegal bypass was 12,263 kilowatt hours.  The total value of the electricity stolen at the Tarneit house was $5,419.10.

20Police seized the following items from the Tarneit house:  1 electrical bypass, 67 light globes, 2 power boards, 81 transformers, 25 light shrouds, and 130 cannabis plants weighing a total of 21.42 kilograms.

21A total of 241 cannabis plants were found at the Ardeer and Tarneit houses, and the combined weight of these plants was 38.93 kilograms.  Charge 1 is a combination charge encompassing your offending in respect to the Ardeer and Tarneit house.  The commercial quantity applicable to cannabis is 100 plants or 25 kilograms and that is the subject of Charge 1 on the indictment.

22You were taken to crime command in St Kilda Road police complex where you were interviewed.  You made a selective no comment record of interview.  You made no admissions and denied all allegations in respect of trafficking drugs, cultivation of cannabis and the theft of electricity.

PERSONAL CIRCUMSTANCES

23You are now 28 years old.  You turn 29 next month.  You were born in Vietnam.  Your parents separated when you were 15 years old after considerable family violence between your parents.  In 2002, your mother moved to Australia.  You have two sisters in Australia.  You married Le Le in 2014.  You are supported in court by all of them today.  In Vietnam, you have a 31-year-old brother who conducts a hospitality business.  You were educated to Year 12 in Vietnam.  You came to Australia in May 2011 under a family-sponsored visitor visa.

24You have overstayed that visa and since May 2011, you have been an illegal immigrant.  In the course of your plea, Ms Garde-Wilson on your behalf tendered a letter from JD Lawyers to yourself dated 4 September 2015.  That was Exhibit N-1.  The letter sets out your immigration status and the potential impact of court decisions on your right to stay in Australia.  I have noted its contents.

25Since you have been in Australia, you have assisted your sisters to conduct their businesses.  One is a grocer and the other is a service station proprietor.  Because of your immigration status, you have not been able to pursue paid employment in Australia.  I have read the references from your wife Le Le (Exhibit N-3) and noted the contents setting out your contribution to your family and to her in her management of her psychiatric condition.  I have also read the reference from your sister, Thi Phuong Nguyen (Exhibit N-4) and noted her statements about your remorse and how much of a help you have been to her family and the high regard her children hold you.

26You have been assessed by Tim Watson-Munroe who is a psychologist.  His report dated 21 September 2015 is Exhibit N-2.  Mr Watson-Munroe sets out your personal history in detail and diagnoses you as suffering from major depression with features of anxiety disorder.  He notes that your symptoms are compounded by you being held in custody and facing the risk of deportation to Vietnam.

SENTENCING CONSIDERATION

27In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, and your culpability for it, and your personal circumstances.  I am required to balance those interests with the interest of the community in denouncing your criminal conduct and the interest in the community in seeking to ensure as far as reasonably possible that you as an offender are rehabilitated.

28I am mindful of the provisions of the Sentencing Act and in particular s.5(4C) which directs a sentencing court to consider whether community corrections order can achieve the purpose for which this sentence is imposed.  I reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case.  The objective seriousness of your offending disqualifies a community corrections order as an appropriate penalty, either on its own or in combination with a term of imprisonment.

29As part of the governing principles to be considered in sentencing, I must take into account the current sentencing practices.  That enquiry is directed particularly but not exclusively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time.

30I have considered these statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.

31You have pleaded guilty to the charges.  Your plea of guilty has utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of court and police resources to deal with other cases.  Your plea vindicates the public confidence in the legal process set up to protect the community.  Your plea of guilty also indicates and demonstrates your remorse.  Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour in this case.  Your plea also recognises that you are willing to facilitate the course of justice in this community.

32On current sentencing practices, particularly since the handing down of the decision of Boulton by the Court of Appeal, Ms Garde-Wilson submitted that a community corrections order was in the range for sentencing your case.  The Court of Appeal has made a number of pronouncements on the seriousness of this offence, that is, Charge 1.

33The President of the Court of Appeal, Maxwell in Nguyen v R [2010] VSCA 12 said this about the seriousness of the offence:

"As has been readily pointed out in sentencing decisions, this is an offence for which Parliament has set the highest fixed maximum in the criminal calendar, 25 years' imprisonment."

34As Buchanan JA noted in Director of Public Prosecutions (Vic) v Duong [2010] VSCA 250:

"The maximum penalty of 25 years shows unambiguously how seriously the community through Parliament views this conduct."

35That case was followed by the case of Tuan Doan v R where Mr Justice Terry Forrest AJA at the time, stated:

"I consider that the appellant has failed to make good this ground.  The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum of 25 years' imprisonment.  Whilst there is no doubt that the role played by the appellant was of a menial nature, it was nonetheless necessary for the crop to flourish.  The maximum penalty fixed by Parliament unambiguously demonstrates how seriously the community views this conduct."

36And he refers to DPP v Duong.  He goes on to say: 

"Recently in this court emphasis has been placed upon the importance attached to sentencing, judges having regard to the maximum sentence fixed by Parliament."

37He refers to Nguyen v The Queen and DPP v CPD.

"This court has also emphasised recently that general deterrence is an important consideration in sentencing for this type of offence (The Queen v Mason) and that the link between general deterrence and the increasing prevalence of this offence is readily apparent."

38In the same case, Nettle JA, as he then was, says: 

"I agree and I wish only to add a brief observation concerning the submission advanced on behalf of the appellant that the judge had erred in the emphasis which his Honour placed on the importance of general deterrence.  In my view lest there be any doubt about it, there should be no doubt that in cases involving cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of sentencing considerations.  Consequently, as the judge rightly observed, in cases of this kind there is less room to give weight to considerations of such as youth and antecedents that would otherwise be the case.  In the result the judge also correctly found in a case of this kind an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable."

39The seriousness of your offending or in this particular offending is

(a) the planning involved,

(b) the period of time engaged with is approximately six months,

(c) the fact that there are two separate grow houses involved in your offending,

(d) the leftover equipment, if I can use that term, the equipment for this type of activity which was found at your own home in the garage,

(e) the commercial quantity is either two and half times by the number of plants, or 1.5 times by the weight of the plants, and

(f) the diversion of power and the set-up generally of the houses indicates a level of sophistication.

40This is a sophisticated and properly planned operation.  The charges of theft of electricity requires some cumulation of the sentence even though it is part of the overall activity involved in Charge 1.  The charge of trafficking Cannabis L arises from the cannabis found at your home and is separate from the first three charges and it calls for some cumulation of sentence as well.

41The factors in your favour are your previous good character, your relative youth, 28 years, your family support and the circumstances of your family.  Ms Garde-Wilson submitted that any sentence higher than 12 months' imprisonment would result in your deportation to Vietnam.  That matter is an administratively factor outside my control, and whilst noting the potential impact deportation will have on you and your family, it is not a factor in your favour.  You have offended whilst being an illegal immigrant.  The principles of general and specific deterrence combined with denunciation of your conduct must result in a term of imprisonment for you.

42Would you stand please.

43On Charge 1, you are convicted and sentenced to two and a half years' imprisonment.

44On Charge 2, you are convicted and sentenced to six months' imprisonment.

45On Charge 3, you are convicted and sentenced to six months' imprisonment.

46On Charge 4, you are convicted and sentenced to one year's imprisonment.

47I order that three months of the sentence in Charge 2 and three months of the sentence in Charge 3, and six months of the sentence in Charge 4 be served cumulatively upon the sentence in Charge 1 and on each other.  That is a total effective sentence of three and a half years.

48I set a non-parole period of two and a half years before you are able to be released.

49I declare that you have served 195 days pre-sentence detention which will be deducted administratively from your sentence.

50Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to five years' imprisonment with a minimum parole period of four.

51I have made the disposal order sought by the Crown.  I have made the two compensation orders sought by the Crown.

52On the forensic sample, did you want to say anything about that, Ms Garde-Wilson?

53MS GARDE-WILSON:  Not opposed, Your Honour.

54HIS HONOUR:  Yes.  I will make the forensic sample order in the basis that it is not opposed, the seriousness of the offending and that it is in the public interest.

55MS GARDE-WILSON:  As the court pleases.

56HIS HONOUR:  Thank you.

57MR MALIK:  As Your Honour pleases.

58HIS HONOUR:  Does that cover everything?

59MR SHAW:  Your Honour, the PSD is actually 195 days, I think Your Honour said 196.

60HIS HONOUR:  Did I?

61MR SHAW:  Yes, you said 195 for Mr Chu, I think you said 196 ‑ ‑ ‑

62HIS HONOUR:  I've written 195 here so ‑ ‑ ‑

63MR SHAW:  Oh well, maybe I heard wrong.

64HIS HONOUR:  Whatever it is, it is 195.

65MR SHAW:  195.

66HIS HONOUR:  Yes, thank you.

67MR SHAW:  Your Honour pleases.

68Mr Nguyen, I have to tell you that - just so you understand about the forensic sample order, I've made a forensic sample order on the basis that is that the authorities can take from you a forensic sample which is a swab from the inside of your mouth or a blood sample.  If you don't agree, then they can use reasonable force to obtain that sample.  Do you understand that?

69OFFENDER NGUYEN:  (Through Interpreter) Yes, Your Honour.

70HIS HONOUR:  Thank you.  I'll sign those orders.  Does that cover everything for counsel?

71MR SHAW:  Yes, Your Honour.

72HIS HONOUR:  Yes.  Thank you, members of counsel, thank you very much for your assistance in this case.

73MR SHAW:  If Your Honour pleases.

74MR MALIK:  Your Honour please.

75HIS HONOUR:  It all helps.  Thank you.  I think there's some other matter, some other people have come into the court.  Sorry, you can remove the prisoners - Madam Interpreter, I always forget, thank you very much for your assistance.

76MR MALIK:  If I might be excused from the Bar Table, Your Honour?

77HIS HONOUR:  Yes, certainly, thanks.

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