Director of Public Prosecutions v Nguyen

[2013] VCC 1835

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-01797

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN HAN NGUYEN

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JUDGE:	HIS HONOUR CHIEF JUDGE ROZENES
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November
DATE OF SENTENCE:	28 November 2013
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2013] VCC 1835

REASONS FOR SENTENCE

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Catchwords:             Cultivate commercial quantity narcotic plant – Cannabis – Operation Polychord – crop sitting – no commercial interest – deportation

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. C. Duckett	Office of Public Prosecutions
For the Accused	Ms C. Woodward	Victoria Legal Aid

HIS HONOUR:

1       Van Han Nguyen, you have pleaded guilty to one charge of cultivating not less than a commercial quantity of cannabis.  The offending occurred between 1 January and 5 March 2013. You have no prior convictions or subsequent matters.

2       The facts were opened in detail by Ms Duckett, who appeared to prosecute, and are contained in the summary of prosecution opening, Exhibit A. 

3       Briefly, you are one of a number of accused charged following an investigation into large scale cultivation and trafficking of cannabis, named Operation Polychord.  As part of the investigation 21 residential properties in Melbourne’s north-western suburbs were uncovered as being used to grow cannabis.  On 5 March 2013, a warrant was executed at a property in Epping, where you had been living for two months, where Police found an elaborate hydroponic set up using a reticulated water system, high powered lighting and other cultivation tools to grow cannabis plants.  Police seized 125 cannabis plants weighing 49.24 kg. The house was rented in the name of a person other than yourself, and the owner of the property was unaware it was being used to grow cannabis.  Those arrested and charged as part of Operation Polychord were both real estate agents involved in trafficking cannabis and renting the properties for the purposes of using them as grow houses, and ‘crop sitters’ such as yourself.

4       When interviewed by police you admitted that you had looked after the plants but denied knowing that they were cannabis.  You told police you were paid $500-600 per week by a person whom you had met at the casino.  You said that you were given written instructions on what to do by the man you met at the casino and when you moved into the property the set up was already in place.

5       By way of personal background you are now aged 33 years.  You were born in Vietnam and your parents are impoverished farm labourers.  You are married and have one daughter, aged six years, from that relationship.  After completing a year 12 equivalent you first worked in a sewing factory then later as a labourer in construction and farming.  You also experienced periods of unemployment and struggled to support your family.  You travelled to Australia on a three month tourist visa in 2010 and subsequently applied for a bridging visa pending application to remain in Australia.  After your bridging visa lapsed, you remained in Australia and worked as a farm labourer in Queensland and Victoria before moving into the Epping property in January 2013.

6       On your behalf, Ms Woodward submitted both in her written submissions, Exhibit 1, and from the bar table that I take into account the following matters by way of mitigation:

(1)      You face deportation upon release from custody and any ambition you had of coming back to Australia has been dashed;

(2)      Your detention in custody has been difficult and traumatic, particularly due to your isolation and the fact that you don’t speak English;

(3)      You pleaded guilty at the earliest opportunity;

(5)      You were cooperative with police and made full admissions when interviewed.

7       The 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, your personal circumstances and those of the victim, if any.  I am required to balance the interests 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.

8       The grave harm which cannabis grown by modern methods can inflict has been noted by many judges.  Generally the offence requires substantial punishment.  I accept that you were only involved at a menial level in what has often been described as "crop sitting".  I also accept that you did not have any involvement in the setting up of the crop and did not expect any substantial reward from its cultivation.  It is accepted that you will be deported as soon as you are eligible for release.  In the circumstances I consider that  a partially suspended sentence is appropriate.

9       Would you please stand Mr Nguyen.

10      On the charge of cultivating a commercial quantity of a narcotic plant, you are convicted and sentenced to 20 months imprisonment, and I propose to suspend 10 months of that sentence for a period of two years.

11      Before I do that I am obliged to explain to you that you have been sentenced to a 20 month term of imprisonment but that you will only have to serve 10 months of that sentence immediately.  If you commit an offence punishable by imprisonment in Victoria or elsewhere then you might be brought back before me and absent exceptional circumstances might be ordered to serve the balance of that sentence.  Do you understand that?

12      OFFENDER: Yes, I do.

13      HIS HONOUR: Very well I will suspend 10 months of the sentence.

14      I declare that 268 days of pre-sentence detention be reckoned as having been served under the sentence and I direct that a declaration to that effect be recorded in the records of the court. 

15 Section 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 been convicted after a trial I would have sentenced you to 24 months imprisonment with a non-parole period of 13 months. 

16      No other orders are sought.

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