Director of Public Prosecutions v Nguyen
[2014] VCC 356
•18 March 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02276
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THU MINH NGUYEN |
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JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2014 | |
DATE OF SENTENCE: | 18 March 2014 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 356 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Holmes | OPP |
| For the Accused | Mr S. Norton | Robert Stary Lawyers |
HIS HONOUR:
1 Ms Nguyen, you have pleaded guilty to one charge of cultivate a drug of dependence - Cannabis L. The maximum penalty for this offence is 15 years imprisonment.
2 I have heard a summary of the offending. I do not intend to repeat the summary. It will be attached to these remarks as Exhibit A.
3 Briefly, in or around June 2012, police received information concerning a house that you owned at 27 Blossom Lane, Werribee. You did not live at that address. The house was put under surveillance. The shutters on every window were closed, and there was a strong smell of cannabis emanating from the house. The usage of electricity was extremely low. On 27 June 2012, the Police executed a search warrant at the address and found a sophisticated hydroponic set up for growing cannabis. There were a total of 84 cannabis plants, weighing 44.46 kilograms combined. You were arrested when you arrived at the house later that night. You attended the house in response to a telephone call from the informant.
4 You were interviewed at the Werribee Police station. You admitted renting out the house and that you knew cannabis was being grown there. You denied any involvement in the actual cultivation.
5 The prosecution accept that you first became aware of the cultivation after the tenancy had commenced. The prosecution also accept that you were unaware of the extent of the cultivation and you had no propriety interest in the crop itself, or the associated equipment. These matters reduce the gravity of the offending.
6 There are a number of matters in mitigation.
7 Prior to the committal mention on 21 September 2012, you offered a plea of guilty to the charge now on the indictment. The offer was rejected. You maintained the offer and it was finally accepted by the prosecution following the setting of a trial date. You are entitled to an appropriate discount on sentence because of the very early offer of a plea of guilty. I am satisfied the plea is an expression of remorse and has utilitarian value.
8 In addition to offering an early plea of guilty, you offered to assist police in identifying and prosecuting the principal offender. Surprisingly, the offer was rejected by the prosecution. You should be given credit for your offer to assist the investigation.
9 You were arrested on 29 June 2012. Nearly 21 months have elapsed. There has been no further offending. The delay in this matter coming before this court is not your fault. You have had the prospect of a custodial sentence hanging over your head for this time, and the report from Mr Newton, Forensic and Clinical Psychologist, details the psychological and emotional impact upon you of the delay. The fact of delay is a relevant mitigating matter.
10 You come from a background of hardship. You were a child in Hanoi when that place was engulfed in war. Your difficult family circumstances are fully disclosed in paragraph 7 of Mr Newton’s report.
11 At the age of 22 you left Hanoi and travelled to Ho Chi Minh City. You then travelled to Malaysia and spent five months in a refugee camp. You migrated to Australia at the end of 1987 and settled in the western suburbs of Melbourne.
12 You have worked as a seamstress, in various supermarkets and, more recently, as a nail technician. You are currently working as a grocery attendant. You have a strong work ethic. You have raised two children as a single mother. Both children are successful. Your son is a recent graduate from The University of Melbourne in Chemical Engineering and Arts. Your daughter is in her final year of a Bachelor of Business degree. They have provided strong references on your behalf.
13 Although you have a relevant prior conviction in 2008, I am satisfied that you are a good prospect for rehabilitation. Your work ethic, your support for your children, your behaviour prior to 2008, and your behaviour since July 2012 confirm this.
14 I am satisfied that your mental health status, as identified by Mr Newton, means that an immediate gaol term would be more onerous for you than it would be for someone without your condition. Your anxiety and depression are not just linked to your current legal predicament. There are unresolved issues from your traumatic childhood experiences. Mr Newton expresses an opinion that your symptoms are more severe than usual in a person facing this type of charge. His diagnosis is an “Adjustment Disorder with Mixed Anxiety and Depressed Mood.”.
15 Ms Nguyen, when you discovered your tenant was using the property to grow cannabis, you should have stopped that behaviour or reported it to the police. Although you didn’t know the extent of the cultivation, or have any interest in the crop, in failing to act you put yourself at great risk. It is a serious matter to allow a property you own to be used for the growing of cannabis. The penalty for the cultivation of cannabis indicates the seriousness with which the offence is regarded. Those who engage in this behaviour, or allow it to occur on their property, are at risk of being imprisoned.
16 In this case I intend to impose a sentence of imprisonment but suspend it.
17 The circumstances of the offending, together with the matters in mitigation, make such an order an appropriate order.
18 Ms Nguyen you will be convicted, and sentenced to a term of 18 months imprisonment, which will be wholly suspended for the next 24 months. If you commit an offence punishable by a term of imprisonment within the next two years, you will be required, in the absence of exceptional circumstances, to serve a term of 18 months imprisonment.
19
The law says that I must indicate to you what would have happened if had you pleaded not guilty and been found guilty after trial. In such a situation it is most likely that I would have sentenced you to a term of 18 months imprisonment with six months to serve and the balance suspended for
24 months.
20 I make the disposal order sought by the prosecution.
21 I also order that you undergo a forensic procedure for the taking of a scraping from your mouth. For the purpose of undergoing that procedure, you must report to the Officer in Charge of the Sunshine Police Station during the four week period that commences 28 days after today’s date. I am obliged to explain to you that If you fail to co-operate in the taking of the sample, the police may use reasonable force to obtain it. This order is made pursuant to ss. 464ZF(2) and 464ZF(2)(A) of the Crimes Act 1958.
22 I make the order for the following reasons: the seriousness of the offending, the order is in the public interest, and the order is consented to.
23 HIS HONOUR: Ms Nguyen do you understand what has happened?
24 MS NGUYEN: Yes.
25 HIS HONOUR: You can be seated now.
26 MR NORTON: As Your Honour pleases.
27 HIS HONOUR: I will just sign those orders now. Thank you Ms Holmes. Thank you Mr Norton. Are there any other matters?
28 COUNSEL: No Your Honour.
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Exhibit A:
IN THE COUNTY COURT OF VICTORIA Indictment No: C11793684
CRIMINAL JURISDICTION
AT MELBOURNE
IN THE MATTER OF the Criminal Procedure Act 2009
| THE DIRECTOR OF PUBLIC PROSECUTIONS v. THU MINH NGUYEN |
PLEA OPENING
| Date of document: | 24 January 2014 |
| Filed on behalf of: | The Director of Public Prosecutions |
| Prepared by: CRAIG HYLAND Solicitor for Public Prosecutions | Mr. M. Roper Reference: Mr. J. Baker |
Background
- The offender Thu Minh NGUYEN (14/06/1965) herein referred to as NGUYEN was aged 47 year at the time of the offending. She is an Australian citizen having resided in Australia since 1987. She is currently living at 25 Mailey Street Sunshine West with her two adult children.
- Around June of 2012 Police received information concerning a house owned by the offender at 27 Blossom Lane Werribee and conducted surveillance observing closed shutters on every window and a strong smell of cannabis emanating from the house. Powercor confirmed that billing details had been in the name of one Phu NGUYEN since the 13th of July 2012 and the property was using an extremely low amount of electricity for a residential address.
Charge 1 – Cultivating a narcotic plant (cannabis)
- On Wednesday the 27th of June 2012 at about 4.00pm Police attended at 27 Blossom Lane Werribee to execute a search warrant issued under Section 81 of the Drugs, Poisons and Controlled Substances Act.
- Police found Tuyet PHAM (20/04/1943) in the backyard tending to the garden and arrested her. They then entered the house through the rear door to the garage but found no-one else there. Charges against Ms PHAM were later discontinued.
- Inside they found a sophisticated hydroponic set up for growing cannabis with lighting, watering and ventilation systems and associated equipment. They found a total of 84 Cannabis plants at various stages of development growing in 4 rooms of the house with a combined weight of 44.46 kilograms. (See exhibit photos) Police also found an electrical meter bypass set up to divert electricity illegally from the main power supply however there is no evidence that the offender was involved in setting up the bypass. Pham
- At about 9.00pm Police returned to dismantle the hydroponic setup when they saw a vehicle pull up in the front of the house. The offender got out of the car and knocked on the front door. She was seen by police who approached and arrested her as she was attempting to climb over the side fence into the rear yard.
- The offender was conveyed to the Werribee Police station where a video recorded interview was conducted with the assistance of a Vietnamese interpreter. During the interview she admitted renting out the house and knew cannabis was being grown there (Q 362) but denied any involvement in the actual cultivation.
- The Crown accepts that the offender’s role was that of the owner of the house who had leased the property to another person knowing that that person would use the house to grow cannabis although she was unaware of the extent of the cannabis crop and had no proprietary interest in the crop itself or the associated equipment.
Maximum Penalty
Cultivating a narcotic plant (cannabis L) – 15 years imprisonment.
Timing of Plea & Hearing date chronology
Charged: 23/5/2013
Filing hearing: 29/6/2012
Committal mention: 29/1/2012 – Offer to PG to thuis charge rejected.
Further committal mention:18/10/2012
Committal – 6/12/2012
Initial Directions Hearing – 18/2/2013
Further Directions Hearing – 26/3/2013
Arraigned and pleaded guilty – 4/10/2013
Pre-Sentence Detention
Nil – released on bail following arrest and charge.
Applications for Forfeiture & Disposal
Cannabis and equipment associated with cultivation.
Forensic Sample Retention Order Section 464ZFB Crimes Act
Sample provided at interview with informed consent. Cultivation a Forensic sample offence – Basis - seriousness of offending – public interest.
Miscellaneous
Section 6AAA Sentencing Act 1991 applicable.
…………………
Michael Roper
Counsel for the Crown.
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