Director of Public Prosecutions v Nguyen

[2014] VCC 1902

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

XUAN SON NGUYEN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	23 October 2014
DATE OF SENTENCE:	23 October 2014
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2014] VCC 1902

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson	Office of Public Prosecutions
For the Offender	Mr P.L. Bourke	Valos Black

HIS HONOUR: 

1Xuan Nguyen, in mid-2013, a unit in Grovedale was sold on the basis that the purchaser would take up occupation and pay rent for a period before final payment.

2In February 2014, as a consequence of information, the police raided the unit and discovered the unit had been converted into a cannabis production house.

3You, Xuan Nguyen, and your girlfriend, Ms Phan, were arrested in a car nearby.  In your record of interview you frankly confess to the cultivation of the cannabis crop.

4I was told by your counsel, Mr Bourke, that you had been in Australia for four years or so prior to your arrest, outstaying your Tourist Visa.  It seems you survived on the generosity of friends, including in the last 12 months, on the generous support of your girlfriend, Ms Phan.

5You smoked cannabis and drank too much alcohol.  These have been a problem for you since your teenage years.  In Australia you incurred debts.  You were referred by friends to a man known as Uncle Minh, who was said to be able to provide work. 

6Once you met Uncle Minh, you became involved in the establishment and cultivation of the crop of cannabis in Grovedale.  You went with him to a shop where significant amounts of equipment were purchased.  You assisted in the set-up of the system and then kept it going, including, at times, as you said to the police, "planting seeds".

7It is not said that you paid for the equipment.  The cultivation occurred in five separate rooms and significant damage was caused to the house in the setting up of the hydroponic system.

8The police, when they attended in February of 2014, found 342 plants under a hydroponic cultivation in the five rooms.  The weight was just in excess of 87 kilograms.

9The cultivation methods were sophisticated.  The lighting was such as to allow the plants to grow indoors.  The power had been bypassed to allow high volumes of electricity to be consumed without detection or cost.  There were filters and timers and transformers and reflectors.  These are all expensive and indicate the resources and determination there was to grow large quantities of cannabis for profit.

10Given the considerable efforts and expense in setting up this indoor horticultural enterprise, the plants were strong and healthy.  The yield of usable drugs was likely to be very high.  The methods reveal what was involved, it seems to me, was a crop rotation system with plants at various stages of growth in different rooms indicating the harvests were planned to be regular and thus likewise the cash flow would be regular.

11As I said, the weight of the plants was 87.62 kilograms.  The amount of stolen electricity was estimated as $18,814.94.

12All the features found in this unit are common with suburban houses that are converted into cannabis production houses.  This crime is hard to detect and even harder to establish who are the main players in the cannabis production and distribution chains.  It was conceded by your counsel that the crime is prevalent.

13The product grown by the cultivators has serious adverse effects on many users.  The community bears at great cost, as entrepreneurial cannabis cultivators profit significantly.

14The entrepreneurial cultivators have, for some time, sought to avoid their own detection by having often vulnerable individuals involved in the house as the active cultivators.

15It is not said in your case that you were, what has become known as a "crop sitter".  In fact, you admitted to receiving, together with your girlfriend, a sum of $60,000 for the period between November to February.  On any estimate, this is a significant amount of money.

16You are not the main organiser or the one likely to have reaped the rich profits.  You were doing what you were told by others, so you are to be sentenced as an active, important cultivator, and more than a mere "crop sitter", but well less than the main organisers.

17You are now 25.  You were raised in difficult circumstances in Northern Vietnam.  You were raised, in essence, by your mother, who, unfortunately, is now said to be ill, and you are anxious about that.  Your father and she separated when you were about 13.  Her next husband had six children of his own and those new step-siblings caused you difficulties.

18You did reach the equivalent of Year 12 and this gives some indication of better prospects for you once you are returned to Vietnam, as is inevitable.

19As noted, you came to Australia when you were 20 and decided to stay here beyond your Visa.  You have not worked in any employment here in Australia or, as I understand it, in Vietnam, to any extent, thus far; but you have an education and it is hoped that you will be able to set a better course once you return back to Vietnam.

20You knew your co-accused from school days, so you said in your interview.  You met up with her again in Australia in 2012 or 13 and formed a relationship.

21You pleaded guilty at the earliest possible time and thus your sentence will be significantly less than it otherwise would be.

22Your plea is an indication of remorse, but, more explicitly, your frank admissions are powerful expressions of remorse.  You told the police of your role, the amount of money you received.  You also told them that you had Uncle Minh's phone number in your phone, but, oddly, it seems, nothing was done to take that further.

23You are without any prior convictions and that is to your credit.

24As I have said, the public is concerned about the effects of cannabis.  This type of cultivation is prevalent and hard to detect.  Once detected, punishment for all must reflect the need for denunciation and deterrence; that is, deterrence to others who might be minded to cultivate cannabis.  The message must be made clear to all involved in this crime that punishment will be of a kind, so as to make the lure of profits nonetheless too unattractive to take the risks.

25With all that said, I must recognise your role was not as an organiser or the profit maker, it was at a lower level.

26But taking into account and giving effect to the primary sentencing consideration of denunciation and deterrence to others, while not ignoring your rehabilitation, which I have spoken about in terms of your return to Vietnam, and having regard also to all other relevant matters, including current sentencing practices, there is no other appropriate disposition, other than a term of imprisonment.  Your counsel, sensibly, conceded as much.

27I take into account that your time in prison will be more burdensome because you do not speak English.

28Your counsel argued against the setting of a parole period.  In the end I am not persuaded that such an unusual sentence is appropriate or just, though I do, in the setting of the sentence, both the head sentence and the period for potential parole, I take into account you may have to serve each and every day of the head sentence.

29I will fix a non-parole period, but, whether and when, and on what conditions you are granted parole, is for others.  I take into account what the High Court said about sentencing foreign nationals and fixing non-parole periods similar terms to others.

30But, as I say, in all likelihood, you will be deported upon the end of your sentence.

31Doing the best I can, in respect of this charge of cultivation of a narcotic plant in not less than the commercial quantity which, in essence, was three times the commercial quantity:

32On Charge 1, I sentence you to a period of three years' and three months' imprisonment.

33Charge 2, the theft of the electricity, I sentence you to three months, and order that one month of the sentence on Charge 2 be cumulative upon the sentence that I have imposed on Charge 1. 

34The total sentence is thus three years' and four months' and I fix a minimum non-parole period of two years.

35You have already done 260 days on remand.  I declare that the 260 days be reckoned as part of the sentence that I have just imposed and cause this declaration to be entered into the records of the court.  The reason for that is so that the prison authorities are left in no doubt that you have already served 260 days of the sentence that I have imposed.

36Had you pleaded not guilty to these crimes and been found guilty of them, I would have imposed a sentence of four years' nine months' with a minimum term of three years' and nine months'.

37There are applications for compensation and disposal.  I intend to defer those applications until further details are provided.

38In respect to the disposal order I intend to await the outcome of any related trial of a co-accused.

39Is there any other order sought?

40MR GIBSON:  No, Your Honour.

41HIS HONOUR:  There is no 464 application?

42MR GIBSON:  No, Your Honour.

43HIS HONOUR:  Is there anything further required?

44MR BOURKE:  No, thank you, Your Honour.

45HIS HONOUR:  I thank counsel for their considerable assistance.

46(Offender removed.)

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