Director of Public Prosecutions v Nguyen

[2014] VCC 1784

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01554

DIRECTOR OF PUBLIC PROSECUTIONS

v

HIEP NGUYEN

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2014
DATE OF SENTENCE:	30 October 2014
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2014] VCC 1784

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:              Sentence – cultivate commercial quantity cannabis

Cases Cited:Doan v The Queen [2010] VSCA 250; Hung Truong Nguyen v The Queen [2010] VSCA 127; Guden v The Queen [2010] VSCA 196; DPP V Duc Nguyen [2013] VCC; DPP v Van Phuc Nguyen [2013] VCC.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Exell	The Office of Public Prosecutions
For the Offender	Ms E. Maguire	Victoria Legal Aid

HIS HONOUR: 

1Hiep Nguyen, you have pleaded guilty to one count of cultivating a narcotic plant in a commercial quantity contrary to s.72A of the Drugs, Poisons and Controlled Substances Act 1981. The circumstances of your offending were set out in the prosecutor's opening which was tendered.

2Briefly, the offending occurred between 6 and 8 June 2014 at a house in Kingsville in Victoria.  On the evening of 8 June, there was a fire at the premises. As a consequence, police attended and in due course located a cannabis crop consisting of 110 plants weighing 22.67 kilograms in total spread between four rooms of the house.  A relatively sophisticated hydroponic watering system was in operation.  There were various containers of chemicals and various items of electrical equipment found.  In addition, there was an electrical bypass that had been installed in the roof of the premises. 

3You admitted to police that on 6 June you had agreed with another person to stay at the house to give the impression that the house was occupied.  You became aware of the cannabis crop soon after you moved in on that date.  You told police you were not required to perform any duties in relation to the crop.  Others came into the house from time to time to care for it.  You were to be paid $100 per day, although as at the date of your arrest on 8 June you were yet to be paid any money.

4This charge carries a maximum penalty of 25 years' imprisonment. 

5The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation, and protection of the community.  In sentencing I must have regard to a range of matters, such as the seriousness of the offence, your culpability for it, and your personal circumstances. 

6I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society. 

7On your behalf, your counsel submitted that I should take into account a number of matter by way of mitigation. 

8Firstly, you are 59 years of age.

9Secondly, you were born in Vietnam and came to this country in 2007; you do not speak English, your family and extended family live in Vietnam; you have few, if any, contacts here; and you are relatively isolated culturally and by reason of your lack of English.  As a consequence, a period of incarceration, it was submitted, would be likely to be harsher for you than many others. 

10Thirdly, your involvement in this crop house was a consequence of your financial difficulties and inability to find accommodation in Melbourne at the time. 

11Fourthly, although you were to be paid for occupying the house, it was put on your behalf that you did not know of the crop until you moved in, although it must be conceded that once you did find out, you chose to stay there. 

12Fifthly, you have no prior convictions of any type.

13Sixthly, you pleaded guilty to this offence at the earliest opportunity.  I accept those submissions that were made on your behalf.

14Counsel told me that you had come to this country in 2007 on a three-month tourist visa arranged by an acquaintance to assist you to obtain labouring work here.  You have stayed here since and performed mainly labouring work in rural Victoria.  I was told that the acquaintance paid for your visa and airfare, but that you lost contact with that person soon after your arrival here.  Frankly, I consider that scenario to be an unlikely one and I am not convinced that I have the full details of your journey here and the full purpose of it.  Nevertheless, I do not take into account such doubts and consider that they would not be relevant to the matters that I can take into account in sentencing you. 

15I have noted the matters set out in s.5 of the Sentencing Act 1991, which I am required to take into account in determining your sentence. Amongst other matters, I must have regard to current sentencing practices. Counsel have referred me to a Sentencing Advisory Council publication entitled, "Sentencing Snapshot," with regard to this offence and a table of cases dealing with what might loosely be described as comparable offending.

16I have also read and taken into account the Court of Appeal decisions[1] and two decisions respectively of Judge Davis and Judge Coish of this Court[2] that have been provided to me by counsel.  Those documents make it clear that generally the offence for which you have pleaded guilty calls for an immediate custodial sentence.  Your counsel conceded here that such a sentence was appropriate. 

[1] Doan v The Queen [2010] VSCA 250; Hung Truong Nguyen v The Queen [2010] VSCA 127; Guden v The Queen [2010] VSCA 196.

[2]DPP V Duc Nguyen [2013] VCC; DPP v Van Phuc Nguyen [2013] VCC.

17Taking all of the circumstances into account, I have formed the view that your offending falls into the lower end of the spectrum of offences under s.72A. Unlike many such offences, you do not appear to have been involved in any of the planning or architecture of the scheme. Your involvement was only for a matter of days and you played no role at all in the caring or management of the crop.

18I acknowledge that you nevertheless played a role in the operation and that, by residing at the house, you knew you were assisting and creating an impression that it was a normal residential home and therefore, helping to divert suspicion of illicit activity and intending to reduce the prospect of detection of the crop. 

19Noting that you have no other convictions, I consider that your prospects for rehabilitation are relatively good. 

20I have reached the conclusion that only a custodial sentence would adequately manifest the denunciation of the court for your conduct and deter others in the community from committing the same or similar offences. 

21Hiep Dang Nguyen, on the charge of cultivating a narcotic plant in the commercial quantity, you are convicted and sentenced to be imprisoned for a period of 18 months.  I direct that you serve a minimum of nine months before being eligible for parole. 

22Mr Exell, I have 144 days including today, is that the day or is it traditional to do it not including today?

23MR EXELL:  It would be my submission, Your Honour, that in fact it would be 143 days up to, but not including today because today is the day he starts his sentence. 

24HIS HONOUR: Thank you. Pursuant to s.18 of the Sentencing Act I declare that 143 days of pre‑sentence detention be reckoned as having been served under the sentence up to, but not including this day.  I direct that a declaration to that effect be recorded in the records of the court. 

25Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non‑parole period that I would have imposed had you pleaded not guilty and been convicted.  Had you pleaded not guilty and been convicted after a trial, I would have sentenced you to two years' imprisonment with a minimum non-parole period of 12 months. 

26I intend to make an order pursuant to s.464ZF of the Crimes Act 1958 requiring you to provide a sample of your saliva to police and I do so because of the seriousness of the circumstances of your offending and because you have consented to the application made.

27I am obliged to tell you that notwithstanding your consent to provide such a sample, if you do not ultimately cooperate in the taking of a sample, reasonable force may be obtained or may be used to obtain a sample from you.  Do you understand that?

28OFFENDER:  Yes, Your Honour.

29HIS HONOUR: Thank you. Just be seated again please, Mr Nguyen. Ms Maguire, have you seen the s.464ZF draft that was provided to me earlier?

30MS MAGUIRE:  I have, Your Honour.

31HIS HONOUR:  You are happy with it to be made in those terms?

32MS MAGUIRE:  I am, Your Honour.

33HIS HONOUR:  Yes, thank you.  Are there any other ancillary matters that I need to deal with at this stage?

34MR EXELL:  No, sir.

35HIS HONOUR:  Anything else counsel want to raise with me at this stage?

36MS MAGUIRE:  No, Your Honour.

37HIS HONOUR:  Thank you.  Yes, Mr Nguyen can be taken downstairs when you are ready. 

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