Director of Public Prosecutions v Nguyen

[2015] VCC 967

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00911

DIRECTOR OF PUBLIC PROSECUTIONS

v

LAN THI NGUYEN

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2015
DATE OF SENTENCE:	16 July 2015
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2015] VCC 967

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hamill	Office of Public Prosecutions
For the Accused	Mr M. Gleeson	Gleesons Lawyers

HIS HONOUR: 

1Lan Thi Nguyen, you have pleaded guilty to an indictment charging you with cultivating a narcotic plant, namely cannabis, in a quantity not less than the commercial quantity applicable to that narcotic plant.  The maximum term of imprisonment for that offence is 25 years.  You have no prior convictions.

2The prosecution has tendered and read to the court a summary of prosecution opening and that shows that you were on premises on the day that the premises were the subject of police attention, 7 January of this year, clearly there as a crop-sitter for a sophisticated cultivation operation at factory premises which had been adapted for the purposes of cultivating a large number of cannabis plants.

3Police seized from the premises as a result of executing a search warrant on that day a total of 691 plants with a total weight of 120.3 kg, plus the usual equipment involved in the cultivation of cannabis.  There was also an electricity bypass set up with a view to allowing the factory to use unmetered power.  Unfortunately, it is all too common an activity, and also unfortunately it is all too common that the persons that are arrested at the premises are mere crop-sitters like yourself.

4The offence involves your participation in this operation on one day, namely 7 January of 2015, and as your counsel points out, it could not have been over a shorter period that you would have been charged for your involvement in this criminal activity.  Your counsel has pointed out that you are still a young person, you are only 20 of years, and you have never been to prison before, you pleaded guilty at the earliest reasonable opportunity, and I accept that that is an indication of remorse on your part and that it has significant utilitarian benefit in that it has saved the state the cost of a trial and the witnesses the inconvenience of attending.

5You have a good character up to now.  Your offending resulted from financial difficulties, in part occasioned by the unfortunate death of your father in April of 2014, not long after you arrived in Australia to further your studies.  Clearly, your role was a limited one, but as has been pointed out in cases such as this, it was a vital one and it is necessary for the courts to look to the principle of deterring others from participating in similar conduct as being of great significance in cases such as this.

6You were fortunate to have a good background, a middle class family background in Vietnam, and fortunate that you were able to come to Australia to study and that that was funded initially by your parents.  It is, I think, quite typical also that a person in your position finds themselves isolated in the prison environment.  You are separated from your family, you will not have the benefit of family visits, and the language barriers that you will face within the prison system undoubtedly have made and will make your time in custody more burdensome.  I think your prospects of rehabilitation are good.  I think it is highly undesirable that you will involve yourself in criminal activity in the future.  I accept that you were motivated to participate in this offending conduct by financial difficulties and I accept that your offending has brought shame and disrespect to your family, which will be an added burden to you.

7During the attempt that you made to escape the attentions of the police, you occasioned serious injury and I have been provided with a report from a Dr Satari of the Dame Phyllis Frost Centre, dated 9 January of 2015 which sets out the summary of the injuries that you received as a result it seems of either jumping or falling from the roof or from an upper level of either that factory premises or adjoining factory premises.  That too, the fact that you have not fully recovered from those injuries and continue with rehabilitation, will add to the discomfort and hardship of you serving a sentence of imprisonment.

8You also face an uncertain future in that you have a desire to stay in Australia and complete your studies.  You face the possibility of deportation and that uncertainty will weigh on your mind, I have no doubt, during the period of your incarceration.  You are a young person still in an adult facility and that will not be easy for you and I take that into account also.

9It is necessary for me to impose adequate punishment and to denounce your criminal conduct, and I think deterring you is of relative insignificance in the sentencing process, but sending a message to others who might be tempted to participate in conduct of this kind, that is general deterrence, has a very significant part to play.  Overall, this was a substantial criminal enterprise to which you attached yourself and I need to take that into account in determining an appropriate sentence.  That said, I think the comparable cases to which I have been referred can be distinguished and that your role over a period of as little as one day needs to be taken into account, and a significantly lower sentence imposed upon you as a result.  However, it seems to me that in order to fulfill the need to impose a sentence which properly reflects general deterrence and the other sentencing considerations to which I have referred, no other sentence other than a term of immediate imprisonment is appropriate. I am conscious of the need to promote your rehabilitation as far as I can and I intend to reflect that principle in the sentence that I impose.

10Lan Thi Nguyen, for the offence of cultivating a narcotic plant in a commercial quantity I convict you and sentence you to imprisonment for a period of 14 months and I order that you serve a period of eight months before you become eligible for parole.  But for your plea of guilty I would have sentenced you to a period of imprisonment of 18 months and ordered you to serve a period of 12 months before becoming eligible for parole.  I make the order for disposal of property in relation to the cannabis and cultivation equipment in accordance with a draft that I will no doubt be provided with in a moment or two.

11MR GLEESON:  May I approach her briefly about that?

12HIS HONOUR:  Yes.

13MS HAMILL:  It's making its way up, Your Honour.

14MR GLEESON:  Thank you, Your Honour.  That order is not opposed for the 464.

15HIS HONOUR:  Yes.  I make an order that you provide a DNA sample by providing a scraping from the inside of your mouth initially.  When you are called upon by an authorised officer to provide a sample of your DNA, if you do so by complying with the request to provide the scraping from the inside of your mouth that will be the end of the matter.  If, however, you fail or refuse when asked by the authorised officer to provide such a sample, the officer will be authorised to take blood from you and use reasonable force to obtain that sample.  I am quite sure that you will not put the officer to that trouble.

16I declare 190 days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively from the period of time that you will actually have to serve in custody.

17Are there any other orders I need to make?

18MR GLEESON:  Thank you, Your Honour, no.

19HIS HONOUR:  Take a seat while I fill in these orders and sign them. 

20I have signed those orders.  Thank you, Madam Interpreter.

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