Director of Public Prosecutions v Nguyen

[2015] VCC 905

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01896

DIRECTOR OF PUBLIC PROSECUTIONS

v

NHU VAN NGUYEN

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2015
DATE OF SENTENCE:	26 June 2015
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2015] VCC 905

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 P. Stefanovic
For the Offender	Mr C. Terry

HIS HONOUR: 

1Nhu Van Nguyen, today you have pleaded guilty to one charge of cultivate a narcotic plant that was not less than a commercial quantity.  This charge has a maximum sentence of 25 years' imprisonment.

2I will deal with the circumstances of your offending.  First of all, during 2013 police at the Morwell Divisional Taskforce had an ongoing investigation into a Vietnamese drug syndicate purchasing houses in the Gippsland area and growing cannabis in them using a sophisticated hydroponic system.  This case involves one such property at 7 Watt Street, Morwell.

3In early January 2014, police identified 7 Watt Street, Morwell, as a house of interest that was potentially being used to cultivate cannabis.  Police then commenced an investigation focusing on this property.

4On Thursday 13 March 2014, at approximately 5.15 pm, police observed Thao Van Vo walk to the front door at 7 Watt Street, Morwell.  He was carrying an orange backpack.  A short time later the front door of 7 Watt Street opened and police observed you, Nguyen, standing inside the house at the front door.  Vo entered the premises. 

5At 5.58 on the same day, police executed a Drugs, Poisons and Controlled Substances Act search warrant on the address at 7 Watt Street, Morwell.  Police located your co-accused, Vo, in between the entrance and the hallway to the west wing where he was arrested.  At that time Vo was not wearing a shirt and his backpack was located containing personal items.  Police located 14 $50 notes, a total of $700 in a wallet in Vo's jeans.  Vo was then conveyed to the Morwell Police Station.  Police also found you, Mr Nguyen, in the east wing of the house in a rear room.  The room was in darkness and you were crouched down, hiding behind cannabis plants.  You were then arrested and conveyed to the Morwell Police Station.  You informed police at the Morwell Police Station that your name was Nhu Vungh Nguyen with the same birth date.  The police later confirmed your details as Nhu Van Nguyen with the assistance of a telephone interpreter.

6At 7 Watt Street, Morwell, police observed nine rooms were set up for growing cannabis hydroponically.  The house contained a total of 493 cannabis plants of various sizes and an electrical bypass in the lounge room.  Police also seized a quantity of loose cannabis weighing 829 grams.

7The house was inspected by SP Ausnet employees who confirmed the power meter had been bypassed for the purposes of growing cannabis.  The police estimate that the house had been operating for some 52 days and the calculation of their electricity supplier, Energy Australia, placed the value of the stolen electricity at about $32,512.

8On 14 March 2014 a record of interview was conducted at the Morwell Police Station between the police and yourself.  You were assisted by a Vietnamese interpreter.  You stated that this was the first time that you had been inside
7 Watt Street and that you had gone past that place on one other occasion.  You admitted that you went there for a job to water plants, however you stated to the police you did not know what type of plant it was.  You stated that you had filled a bucket of water whilst you were there.  At the time of your record of interview you denied any involvement or knowledge in the cultivation of cannabis at 7 Watt Street, Morwell.

9On 2 April 2014 members of the Victorian Police Forensic Services Fingerprint Branch examined the light shades removed from 7 Watt Street, Morwell.  The light shades removed from the rooms numbered 8 and 9 at 7 Watt Street, Morwell, had prints located on them matching those of yourself.  Your DNA was also located on items at 7 Watt Street, Morwell, in particular a can of coke and a can of what is referred to as grass jelly drink.

10I am told that you have no criminal history.

11After your arrest you were remanded in custody from 13 March 2014 until you were granted bail on 16 December 2014.  That is a period of 278 days.  Once you were granted bail on 16 December 2014 you were then taken to an immigration detention centre in Maribyrnong.  By today you have spent
192 days in the immigration detention centre not including this day.

12You have maintained a denial of offending until your matter was brought on for trial in Morwell on 15 June this year.  On that day there were some preliminary discussions and the original indictment of five charges was filed over with the one charge of the indictment to which you have now pleaded guilty.

13I now turn to your personal circumstances.  You were born on 20 January 1982.  You are now 33 years old.  You are a Vietnamese citizen.  You came to Australia on 10 March 2008 on a tourist visa.  Your tourist visa expired on 10 June 2008.  From that date you have been unlawfully in Australia until the day of your arrest on 13 March 2014.  This was some six years after your entry to Australia as a tourist.  You were born in Hai Phong district in Northern Vietnam.  You are the third child of four siblings.  Your family of three siblings and your mother still live in Vietnam in the Hai Phong district.  Your father passed away in the year 2000.  Your family was described to me as being a working class family.  You were educated to the age of 13 years.  You have limited English and required the assistance of an interpreter for the record of interview and of course here in court.

14Whilst in Australia since 2008 you worked in seasonal fruit picking and vegetable type jobs for cash.  You worked at market gardens near Melbourne.  In 2012 you commenced a relationship with your co-accused, Ms Vu.  Ms Vu already had a daughter who was now four and a half years old.The two of you have a son, Nathan, who is now 23 months old.  Ms Vu now lives in Australia as a permanent resident with her two children.  Your plan is to live with them upon your release from custody pending the result of your application for spousal or dependent visa under the migration law.  I was told you currently have an application before the Migration Review Tribunal.

15As I have previously said, you have no prior convictions in Australia. 

16I have not been able to fully assess your prospects of rehabilitation.  Your future life will properly be determined by your immigration status here in Australia.  If you remain here legally you can care for your de facto wife and the family.  If you cannot remain in Australia you will go home to your family in Vietnam.

17I now turn to sentencing considerations.  The first consideration I have to take into account is that you have pleaded guilty to the charge on the indictment.  The plea of guilty was made after negotiations with the prosecution in respect of the indictment on 15 June 2015, immediately before the trial.  The plea of guilty has the utilitarian value of allowing the orderly and effective administration of justice.  It gives certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.

18Your plea of guilty to this charge indicates and demonstrates some remorse on your behalf for this offending.  I accept that your remorse is genuine.  Your plea is clear acknowledgment by you that you actually accept the responsibility for your criminal behavior in this case.  Your plea also recognises that you are willing to facilitate the course of justice in this community.

19The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offence, your culpability for it and your personal circumstances.  I am required to balance the interests of the community in denouncing your criminal conduct against ensuring that your punishment is fair.  I also take into account current sentencing practices in fixing a penalty.

20In this case you have two co-accused.  I have sentenced your de facto partner, Phan Thi Vu, last December for cultivation of a narcotic plant.  I note that she is in court here today to support you.  I sentenced her to a 12 month CCO with 100 hours of unpaid community work.  The charge that she faced had a maximum penalty, or maximum sentence penalty of 15 years' imprisonment.  The circumstances of her involvement in the offending was a lesser role than your role in this offence.

21The other co-accused was Thao Van Vo.  Vo pleaded guilty on 5 September 2014 to one charge of cultivating a narcotic plant and dealing with the proceeds of crime at the Melbourne Magistrates' Court in Melbourne.  He was sentenced to an adjourned undertaking of 12 months with convictions.  At the time of his sentence he had served 162 days pre-sentence detention.  Vo was deported back to Vietnam following the sentence.  Unlike yourself, Vo had arrived here from Vietnam on 6 June 2013 on a student visa.

22The principle of parity of sentencing is a matter to consider in your case.  The parity principle is based on the notion of equal justice and the need for consistency in sentencing.  The principle applies to offenders who are true
co-offenders.  Both Vu and Vo are co-offenders in respect of yourself.  The difference between yourself and the two of them is that you have pleaded guilty to the more serious charge of cultivating a narcotic plant in not less than a commercial quantity.

23In the case of Nguyen v The Crown [2010] VSCA 12, Maxwell P stated as follows about the seriousness of this offence:

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

As Buchanan JA noted in Director of Public Prosecutions v Duong:

"The maximum of 25 years shows unambiguously how seriously the community through parliament view this conduct."

T. Forrest AJA in the case of Tuan Doan v R [2010] VSCA 250 said as follows:

"The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum penalty 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."

He referred to the case of Duong there and continued:

“Recently in this court emphasis has been placed upon the importance attached to sentencing, judges having regard to the maximum sentence fixed by parliament.  This court has also emphasised recently that general deterrence is an important consideration in sentencing for this type of offence and that the link between general deterrence and the increasing prevalence of this offence is readily apparent”.

24In the same case Tuan Doan v R Nettle JA, as he then was, said as follows:

"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, less 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 consideration such as youth and antecedents than would otherwise be the case.  In the result the judge also correctly found in the case of this kind an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable."

It was submitted on your behalf that it was conceded that a more serious penalty was appropriate in your sentence because you are charged on the basis of a commercial quantity where your co-accused were sentenced on a cultivate simpliciter basis.  That was a proper concession to make.

25Mr Terry submitted on your behalf that the sentences for Vo and Vu act as an anchor in respect to your sentence.  Vo and you were at the house at the same time effectively doing the same thing.  The difference between you is that you accept you knew about the commercial quantity.  That difference is an appropriate factor to differentiate between your sentence and the sentences of your co-accused.  Your offending calls for an immediate term of imprisonment as an appropriate sentence.

26It was submitted on your behalf that a sentence greater than 12 months' imprisonment would activate your immediate deportation from Australia at the completion of your sentence.  The principles set out in Guden v The Queen (2010) 28 VR 288 clearly states that deportation cannot be treated as a mitigatory factor when it cannot feasibly be properly quantified as to the level of risk of that deportation happening for you.

27Mr Terry relied on the case of DPP v Huang [2015] VSCA 96 to submit that if I sentence you to a sentence greater than 12 months' imprisonment your deportation would be certain and hence it became a mitigatory factor for my sentencing consideration. I do not accept the Court of Appeal in Huang overruled or modified its pronouncements on the law in Guden or Peng's case.  For the purposes of sentencing you for this offence, I do not take into account the risk of you being deported to Vietnam as a mitigatory factor.

28It was also submitted on your behalf that whilst your time in detention at Maribyrnong of 192 days cannot be treated as pre-sentence detention under the Sentencing Act nevertheless it is a factor to take into account when considering your sentence.

29In the course of submissions it became clear that you had been here in Australia illegally since June 2008 on the basis that you had overstayed your visa.  You were initially remanded in custody for this charge on 14 March 2014.  After 278 days of pre-sentence detention you were granted bail on
16 December 2014.  Since 16 December 2014 you have been in immigration detention for a total of 192 days.

30I accept that your criminal activity has been the trigger for your immigration detention because that is how you came to the attention of the immigration authorities.  However you had overstayed your visa and could have been detained by immigration authorities for any of the time between June 2008 and March 2014.

31I accept that I should take some account of your immigration detention period when fixing a total sentence for this offence.  I do so because your offending has indirectly caused that loss of liberty to be activated in your case.

32The alternative scenario would have been if you did not apply for bail, or your application for bail was refused, then all of your time in custody would have been spent on remand in custody until a finalisation of this matter.  In effect I take some account of your immigration detention as a totality of the punishment basis when fixing your sentence of imprisonment.

33I also take into account the unusual circumstances of the different charging of your co-accused, Vo, for what appears to be the same offending on its face, combined with the sentences that your co-accused received in fixing your sentence.

34As I said previously, I take into account part of your time in immigration detention, not in a mathematical sense of days in detention, but the fact that your crime had activated that loss of liberty.

35The seriousness of the offence of cultivating cannabis in not less than a commercial quantity as a crime is a serious offence.  Gaol is the only appropriate sentence. 

36The prosecutor drew my attention to the sentencing snapshots and in particular that the median sentence for this offence is two years and five months.  Statistics are a general guide to sentencing process.  Each case is peculiar to its own facts.  This case has more peculiarities to be applied to the sentencing process than most of them.

37On Charge 1, you are convicted and sentenced to a term of imprisonment of ten months. 

38I declare that you have served 278 days of pre-sentence detention. 

39But for your plea of guilty pursuant to s.6AAA of the Sentencing Act I would have sentenced you to 14 months' imprisonment.  What that means is that because you pleaded guilty you have got a discount for your sentence.  Your barrister will explain that.

40I make the disposal order sought before and agreed to by yourself.  I will hand down those orders of the disposal order.

41(Disposal order signed and acknowledged.)

42Was there anything else?

43MR STEFANOVIC:  No, Your Honour..

44MR TERRY:  No, Your Honour.

45HIS HONOUR:  Thank you.  Madam Interpreter, thank you very much for your assistance.  If you see Ms Boyse could you tell her that I would thank her also for her assistance this morning.

46INTERPRETER:  Thank you, Your Honour, and I would like to wish Your Honour a very happy weekend.

47HIS HONOUR:  Good, thank you.  Members of counsel, thanks very much for your assistance in this case and the straight forward and blunt way in which it has been approached.  Thanks.

48MR STEFANOVIC:  If the court pleases.

49HIS HONOUR:  I will adjourn sine die.

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