Director of Public Prosecutions v Nguyen
[2015] VCC 745
•3 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00251
Indictment No E13255520
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NHAT HUU NGUYEN |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 June 2015 | |
DATE OF SENTENCE: | 3 June2015 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 745 | |
REASONS FOR SENTENCE
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Subject: SENTENCING
Catchwords: Cultivation of narcotic plant; theft; escape from custody
Legislation Cited: Sentencing Act
Cases Cited:
Sentence: Aggregate sentence – 8 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Goodfellow | Solicitor for Office Public Prosecutions |
| For the Accused | Mr A Sim | Michael J Gleeson & Associates |
HIS HONOUR:
1 Nhat Huu Nguyen, you have pleaded guilty to one count of cultivation of a narcotic plant, namely cannabis; one count of theft, namely theft of electricity; and one count of escape from custody; together with a count of resisting police in the performance of their duty. The first and second of those offences occurred between 24 September and 30 September 2014. The third and fourth of those offences of occurred on 30 September 2014.
2 Your offences occurred in the course of you performing the role of a crop sitter at premises in William Street, St Albans. It is not alleged that you were involved in the set-up of the house for the cultivation of cannabis. Although you have pleaded guilty to the theft of electricity, it is not alleged that you were involved in the set-up of the electrical bypass at those premises. Further it is not alleged that you were involved in the harvest of any of the plants.
3 You had been at the house for some seven days. Inside the house there were some 127 immature plants weighing a total of 3.795 kilograms.
4 When police attended at the premises, you attempted to escape from a back door but were confronted by police there. You resisted police, you struggled to free yourself from them. Capsicum spray was used in an effort to secure your arrest and to handcuff you. This conduct constitutes the matters alleged in the fourth charge, resisting police officers in the execution of their duty.
5 In the process of attempting to avoid arrest you sustained a broken nose and as a result, you were taken by ambulance to Sunshine Hospital for treatment. At the hospital you jumped from a wheelchair and ran from the hospital, pursued by police for some 700 metres. You were recaptured and returned to the hospital. That conduct relates to the charge of escaping from custody.
Background
6 You are aged 24. You were born and brought up in Vietnam. You completed secondary school there and also completed some three and a half years of studies in nautical navigation at a technical college there.
7 You arrived in this country on a student visa in November 2013. You commenced an English language course at Victoria University and completed that course in June 2014. It had been your intention to then enrol in a Bachelor of Business course at that university. Your intention was to study and ultimately work here in Australia. I was told by your counsel that you were in difficult financial circumstances at this time. You were limited in the number of hours that you were permitted to work whilst here on a student visa.
8 You have been in custody since the date of your arrest on 30 September 2014, approximately eight months.
9 You have no family in this country and I was told that during your period of detention, you have received no visitors in gaol. I accept that in those circumstances, your time in custody has been done in harder fashion than many members of the prison population.
Sentencing principles
10 Section 5 of the Sentencing Act provides purposes for which sentences may be imposed by courts. Briefly these include the need to punish the offender for offences in a manner that is just in all of the circumstances, to deter the offender and others in the community from committing similar offences in the future and to manifest the court’s denunciation of the offending and to protect the community from the offender.
11 In addition I have taken into account each of the matters set out in sub-s.2 of s.5 of the Sentencing Act.
12 In particular I have noted the maximum penalty for cultivation of a narcotic plant is 15 years' imprisonment, the maximum penalty for theft is ten years' imprisonment, and the maximum penalty relating to an attempt to escape a member of the police force is five years' imprisonment. The maximum penalty for resisting police is a fine of 25 penalty units or imprisonment for six months.
Mitigating factors
13 Your counsel submitted and I accept that there are a number of matters going to mitigation of your sentence.
14 You have been on remand for some eight months. During that period you have attempted to use your time in custody constructively. Your counsel tendered certificates from the Kangan Institute in relation to various courses completed by you, including development of verbal communication skills, cleaning operations, and kitchen operations.
15 You are still relatively young and you fall to be sentenced as a youthful offender. In such circumstances a decreased weight should be given to the principle of general deterrence in the sentencing exercise.
16 You have no criminal history either in here or in Vietnam. You have never previously been in trouble with the police.
17 You entered a plea of guilty to these offences at the earliest available opportunity. Although there was a contested committal proceeding earlier in 2015, the charges that were in dispute at that time were later withdrawn by police. You had, prior to that committal, indicated a preparedness to plead guilty to each the charges for which I am to sentence you today.
18 I consider that your early plea is indicative of remorse on your part for your offending.
19
Your counsel submitted, and I accept, that you pose a relatively low risk of
re-offending. As such the principle of specific deterrence should not play a significant role in sentencing you.
20 Although you attempted to escape from police, once prior to your arrest and again after, it was submitted on your behalf that such conduct arose from panic on you part. It seems to me that both those attempts were both doomed to failure in the circumstances. Nevertheless I take into account that your resisting of police at and in the vicinity of the premises in question, required the use of capsicum spray to control you.
21 I was told by your counsel that it had been your dream to study, work and eventually settle in this country. Instead, your student visa has already been cancelled and it appears certain that you will be deported from this country upon being released from custody.
22 You are not eligible to be placed on a community correction order, as your student visa has been cancelled.
Sentence
23 In relation to the charge of cultivating narcotic plants, theft, and escape from custody, I sentence you on an aggregate basis to eight months' imprisonment. In respect of the charge of resisting police officers in the execution of their duty, you are sentenced to imprisonment for a period of one month, such term to be served concurrently with the term of imprisonment imposed on the first three of the offences.
24 I consider that such a term is adequate to reflect the court’s denunciation of your offending behaviour, whilst acknowledging your clean past record and your relatively good prospects for rehabilitation. I have also taken into account the significant penalty constituted by your likely deportation from this country.
25 I do not consider it necessary to impose any non-parole period in these circumstances.
26 Now, Mr Goodfellow, 246 days?
27 MR GOODFELLOW: That is correct, Your Honour, yes.
28 HIS HONOUR: I declare that 246 days of pre-sentence detention, not including today, be reckoned as having been served under that sentence and I direct that a declaration to that effect be recorded on the records of this court.
29 Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these charges, I would have sentenced you to a term of imprisonment of 12 months. That if for the first three charges on an aggregate basis. Again, I would not have specified any period before which you would have been eligible for parole. In relation to the fourth charge of resisting police, I would have imposed a sentence of two months' imprisonment.
30 I shall make an order pursuant to s.86 of the Sentencing Act, that you pay Simply Energy - that is the name is it? It has not got a Proprietary Limited or a Limited, it is simply - - -
31 MR GOODFELLOW: That is the name, I think, Your Honour, yes.
32 HIS HONOUR: All right. That you pay Simply Energy compensation in the sum of $1,115.82.
33 Pursuant to s.464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample, in accordance with Part 3 of the Crimes Act 1958, until a sample of sufficient standard is obtained for placement on the database. I am satisfied that, in all the circumstances, the making of an order is justified because of the seriousness of the circumstances of the offending warrants the order and further, because it is by consent.
34 Pursuant to s.78(1) of the Confiscation Act 1997, I shall make disposal orders in respect of a pink Nokia mobile phone seized from you and four light shrouds located at the premises.
35 COUNSEL: As Your Honour pleases.
36 HIS HONOUR: Now, I should warn you, Mr Nguyen, that in relation to the taking of the sample from your mouth, notwithstanding your consent to such an order, if you do not permit such a sample to be taken, police are entitled to use reasonable force to obtain such sample or blood sample from you. Do you understand that?
37 OFFENDER: Yes I do.
38 HIS HONOUR: Is there anything else that I need address?
39 COUNSEL: No, Your Honour.
40 HIS HONOUR: Yes, thank you.
41 MR SIM: As Your Honour pleases.
42 HIS HONOUR: Just let me hand those orders down to you.
43 MR GOODFELLOW: Thank you, Your Honour.
44 HIS HONOUR: Yes, you are excused from the Bar table gentlemen.
45 COUNSEL: Thank you, Your Honour.
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