Director of Public Prosecutions v Nguyen

[2015] VCC 75

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01959

DIRECTOR OF PUBLIC PROSECUTIONS

v

THUY XUAN NGUYEN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2015
DATE OF SENTENCE:	4 February 2015
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2015] VCC 75

REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence         

Catchwords:   Plea of guilty to one charge of cultivating    a commercial crop of cannabis – crop-sitting – admissions – deportation order in existence – mitigating factors include isolation in prison – no family in Australia and little English.

Sentence:      Nine months imprisonment.   

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	OPP
For the Offender	Mr C. Nikakis	Haines & Polites

HER HONOUR:

1Thuy Xuan Nguyen, you have pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity.  The maximum penalty for this charge is 25 years' imprisonment. 

2In the early evening of 17 July 2014, police went to a factory building in Oakleigh South after reports of suspicious activity were received.  The building was leased to Phuong Nguyen for use as a clothing factory.  On the south side of the building police saw a large roller door slightly open at the base, with a strong light emanating from it and the shadows of passing figures inside.  They smelt a strong odour of cannabis coming from inside and could hear voices.  The police knocked on the door and identified themselves and then heard the sound of people running upstairs.  Their second knock was unanswered and when they forced entry they could hear footsteps of people running across the roof.  Shortly afterwards you and the co-offender, Ngi Thanh Chau, were apprehended nearby.

3Inside the factory police found an elaborate cannabis cultivation set-up covering several rooms which had been constructed to conceal hydroponic cannabis growing systems with elaborate watering and lighting equipment.  A total of 526 plants weighing 223.385 kilograms was seized, as well as 3.24 kilograms of loose cannabis material.

4You were arrested and interviewed and made admissions to the police.  You said you had been watering the crop of cannabis every couple of days for about a month, driven there by a friend and expecting to share a payment of $10,000 with your friend.  It has been accepted that you had no proprietary interest in the crop and that you agreed to do the work in order to repay debts from gambling. 

5You are a 30 year old man who came here from Vietnam in 2010.  You completed secondary school there and, after studying marketing, you found employment sourcing food for livestock.  Apparently this paid very little in the form of wages and when an opportunity arose for you to go to Australia your parents mortgaged their farm and raised $25,000 to finance your trip.  You came here on a three month business visa and, after overstaying it, you supported yourself with farm work and jobs for cash including most recently working in a chicken deboning factory.  You married in April 2014 but have not seen your wife since your bail application. 

6After being remanded initially, you were granted bail but were then taken to an immigration detention centre as your visa had expired and a deportation order had been made.  You were charged with other cultivation offences and remanded in custody for those matters until 6 November, when you entered a plea of guilty to this matter at the committal mention hearing.  This has resulted in a total of 143 days of pre-sentence detention, and I declare that time to be reckoned as already served and I shall cause that to be noted on the court record.

7This is a sad case.  You speak little English and your time in Australia has been lonely.  Having overstayed your visa, your opportunities to work have been very limited, but you have sent money to your parents to try to repay the debt you owe them, and unfortunately you spent money gambling at the casino and other places, hence the temptation to agree to look after the cannabis crop, which was a large and well-organised one.

8Your immediate future is bleak in that you will be imprisoned for a time and then will be deported to return to Vietnam to address the large debt to your parents.  You are the youngest of their five children and, I am told, the best qualified, but that has not assisted in your efforts to earn an income. 

9Crop-sitting, as it is called, is a serious crime, the more so when the crop is of a commercial size as this was.  It calls for punishment which reflects the need for general deterrence, that is, to deter others from doing likewise.  As for punishment which will deter you, your deportation will make that a less relevant matter.

10During your time in prison you will be more isolated than many, as although you have some friends who visit, you have no family here and your wife has not visited since you were incarcerated.  Your lack of English will no doubt be a further isolating factor, and I give some due weight to those considerations.

11Mitigating factors are that your role in the cultivation was limited despite its size and that you have pleaded guilty at an early stage and made admissions to the police.  Your plea of guilty deserves a discount on your sentence, as it has assisted in the processes of the criminal justice system by avoiding the need for a trial.  I also accept it as an indication of remorse. 

12The learned prosecutor tendered an extract from the Judicial College Sentencing Manual indicating prison sentences of varying lengths for this offence and offering an overview but little in the way of guidance.  Certainly a sentence of imprisonment to be served immediately is the only appropriate sentence and the submissions by your counsel, Mr Nikakis, were based realistically on that inevitable outcome. 

13In determining the appropriate sentence, the question of parity does not arise, as the co-accused elected to go to trial and a no case submission succeeded in circumstances where his record of interview was ruled inadmissible owing to the malfunctioning of the tape-recording machine. 

14Mr Nguyen, will you stand now, please?

15I sentence you to prison for nine months.  If you had pleaded not guilty to this charge, I would have sentenced you to prison for 12 months. 

16The prosecution seeks an order for the disposal of items and you have consented to that through your counsel and I make that order.

17Are there any other matters, Mr Roper, first of all?

18MR ROPER:  No, Your Honour.

19HER HONOUR:  Mr Nikakis?

20MR NIKAKIS:  No, Your Honour.

21HER HONOUR:  Thank you, Madam Interpreter.  Perhaps the sentences in unrevised form could be returned to my associate in a moment. 

22Mr Nguyen can be taken now, thank you, officer.

23MR NIKAKIS:  I just wanted to have a quick word to him with the interpreter here, Your Honour, that's all.

24HER HONOUR:  Certainly.  Very well, I will leave the Bench and that can take place.

25MR NIKAKIS:  Thank you, Your Honour.

26HER HONOUR:  Officer, just let Mr Nikakis have a few words.  Thank you.

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