Director of Public Prosecutions v Nguyen
[2013] VCC 1025
•26 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-12-02326
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VI NGUYEN |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2013 | |
DATE OF SENTENCE: | 26 June 2013 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1025 | |
REASONS FOR SENTENCE
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Subject: Criminal – plea – sentence
Catchwords: cultivation of narcotic plants – cannabis – trafficable quantity – theft of power – possession – anonymous tip – considerable period of pre-sentence detention – compensation order – disposal order – significant prior history – longstanding drug use and depression – dependent children
Legislation Cited: s.72B of the Drugs Poisons and Controlled Substances Act – s.74 of the Crimes Act - s.73(1) of the Drugs Poisons and Controlled Substances Act
Cases Cited:R v Pidoto & O'Dea [2006] VSCA 185 – H.T. Nguyen v. R [2010] VSCA 127 – Doan [2010] VSCA 25
Sentence: three year and two months with a minimum of 22 months, less the 411 days already served.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Taylor | |
| For the Accused | Ms A. Stephanides |
HIS HONOUR:
1 Ms Nguyen, what I will do is go through the details of the sentence insofar as you are concerned. The purpose of doing that is so that you understand why I have passed the sentence that I have and importantly for anyone else who is interested to understand those reasons and if for any reason another Court needs to look at those reasons, they are recorded. I will ask you, Ms Nguyen, at the end of me reciting these reasons to stand and I will pronounce the sentence.
2 In this matter on 14 June 2013, Ms Nguyen pleaded guilty to six charges in Indictment No. CR-12-02326. Ms Harper appeared on behalf of the DPP on that day and Ms Taylor now appears. Ms Stephanides appeared as she does today for Ms Nguyen.
3 The six charges involved three charges (1, 2 and 5) of cultivation of narcotic plants which are a breach of s.72B of the Drugs Poisons and Controlled Substances Act. Each crime involved cannabis. The background to the detection of these crimes essentially involved an anonymous tip and thereafter good police work. It seems to me, Madam Prosecutor, that the police deserve praise from the Court on behalf of the community for the work that they undertook in this matter and the steps they took to not only ascertain the one drug cultivation house, but the three and the particular circumstances surrounding it and the circumstances involving Ms Nguyen and her partner.
4 I simply cannot recall from last time, you might tell me, what was the position with Mr Huen. Is he awaiting trial or - - -
5 MS STEPHANIDES: He is awaiting trial, Your Honour, yes.
6
HIS HONOUR: The first Charge involves a cultivation of cannabis at
131 Burwood Road, Burwood. Those premises were indeed rented by
Ms Nguyen. The period of cultivation is from 22/12/11 through to 29/03/12. The amount found was 13 plants making up 5.2 kilograms. The quantities relevant to all of these matters insofar as a trafficable quantity under the Drugs Poisons and Controlled Substances Act is ten plants and 250 kilograms. A commercial quantity is 250 kilograms and 100 plants.
7 The second Charge was related to the first in the sense that it involves a theft of power. The amount was a figure $1,625. That amounts to an offence under s.74 of the Crimes Act. The maximum penalty prescribed for that offence is one of ten years.
8 Charges 3 and 4 arose directly out of surveillance by the police of Ms Nguyen and her partner, Mr Huen. Through observation of them and following of their cars and where their cars were located, a further production house was found at 6 McBean Street, Clayton. Here 122 plants of cannabis making up 16.29 kilograms were found and the period of operation of that house was from 22 March 2012 to 11 May 2012 and again Charge 4 is a charge of theft in regard to the power to utilise for that production and the amount involved in that matter is a figure of $1131.41.
9 The fifth Charge relates to the home premises where Ms Nguyen and her partner lived at 249 Mitcham Road, Mitcham. That was also searched by warrant and one plant was found making up 4.6 kilograms. The period prescribed in regard to Charge 5 for production by way of cultivation is a period from 20 April to 11 May 2012.
10 Also at those premises was found harvested marijuana. The possession of such a product is also an offence against the Drugs Poisons and Controlled Substances Act, in particular s.73(1) in this instance. The relevant sentence to be imposed is a fine and/or a maximum penalty of five years, especially in this instance where it is for the purpose of trafficking.
11 As I say, detection of this criminality came about from an anonymous tip and thereafter good police work. There was a random interception of both Ms Nguyen and Mr Huen on 10 May. It was clear that their car had been used for the conveyance of processed marijuana, or cannabis. Thereafter the three warrants were issued and the three homes were raided, as I have indicated, and drugs found. Essentially the two grow houses and the products therein were produced and also it was ascertained as to the failure of the prisoner to pay for the relevant power, indeed steps had been taken to bypass the relevant payment.
12
The prisoner has been in gaol for a considerable period by way of
pre-sentence detention. Such is agreed at 411 days.
13 I have signed a disposal order and, as I understand, Madam Prosecutor, they are the only matters that I have to sign?
14 MS TAYLOR: There is a compensation order, I believe, too.
15 HIS HONOUR: And a compensation - I think I signed that too.
16 MS TAYLOR: Correct, Your Honour.
17 (Disposal order signed and acknowledged.)
18 (Compensation order signed and acknowledged.)
19
HIS HONOUR: This matter of course is complicated by the fact that
Ms Nguyen has significant priors for these offences. In July of 2010, she was convicted of trafficking in heroin and sentenced to two months' imprisonment which was suspended.
20 In March of 2010, she was convicted of possession of heroin, for which she was given a one month suspended sentence.
21 In October of 2007, she was convicted of possession of heroin and use of heroin, for which she got a one month suspended sentence.
22 In December of 2004, she was convicted of trafficking in heroin and use of heroin, for which she was convicted and fined.
23 In July of 2002, she was again convicted of trafficking in heroin and use of heroin, for which she was placed on a Community Corrections Order.
24 Insofar as the plea conducted by Ms Stephanides, I was given a written submission by her, for which I thank her.
25 The first document tendered was a report of the general practitioner, insofar as Ms Nguyen was concerned. That report essentially confirmed the longstanding drug issues and depression that her client has suffered.
26
In addition, she tendered a report of Mr Cummins. Such report was dated
4 June 2013. Mr Jeffrey Cummins being a consulting clinical and forensic psychologist. Insofar as such report was concerned, as to the particular circumstances, it noted her history of drug dealing and being involved generally in the drug milieu. It noted her background. It notes the circumstances in which she had met her partner. It noted her comments that she stated she became involved in this offending at the request essentially of her heroin dealer, allegedly to whom she owed considerable money. One questions that when one looks at the long history in this case.
27 She suggested that now, for the first time, she had, while being on remand - I make the point that is obvious from reading out her priors that at no time had she actually been sentenced to gaol, of course given the seriousness of these matters there is no option now - she indicated to Mr Cummins that insofar as her rehabilitation is concerned that is totally dependent upon her being able to rid herself from her drug dependency and she noted that her capacity to have custody and care for her children also is so dependent.
28 It was suggested that her sole motivation for setting up these production houses was the fact that she owed money to her heroin dealer. I doubt that very much.
29 It was noted that with her partner, Mr Huen, they have three sons, who are aged respectively 13, ten and six. Apparently, according to the instructions she has given and what I have been told, she now intends not to reconcile with Mr Huen. Whether that is true or not, or has been done purely for the purposes of this plea, one wonders, they have had a long relationship. They met when she was 16, he was six years older than her and we are now 15 years down the track. Throughout that time, Ms Nguyen has been addicted to drugs and has been trafficking, as I have demonstrated.
30 There is no doubt, as was put by counsel, that the addiction contextualises this particular offending. It was put that her role was tending and cultivating. I would disagree with that. It seems to me, given her background, that her role was very much at the organisational level in this case. There is no evidence otherwise. She is clearly heavily involved with her husband in setting up these drug production houses. However, as I pointed out, as has been described and detailed often by the Court of Appeal, when you are dealing with offences of this seriousness any role in this obscene trade brings condign punishment.
31 Insofar as the documents tendered and the programs undertaken, as set out in Exhibit 3, it was put that for the first time Ms Nguyen has undergone programs to relieve her addiction. One would hope that that is so and that she continues with that program. As I say, one must be guarded, given her background, as to any effective rehabilitation. Thankfully, for many years she has had the support of her mother, who looks after the children, and after she is released from prison, hopefully, with a determination not to be involved again, perhaps she can change her life. Her counsel said to me that as a result of being in prison she has been able to reflect upon her lifestyle and has now attained some insight. One would hope so.
32 It was put that essentially what we are dealing here with was only two actual cultivation sites. At the third site was one plant and the harvested product and it was put that in those circumstances there should be a concurrent sentence, at least insofar as to the home house.
33 It was put that Ms Nguyen has, in these circumstances, now served a little over a year and a month by way of pre-sentence detention. It was submitted to the Court that that should be, or indeed not much more, effectively the term of the non-parole period. As will be obvious from my sentence, I do not agree with that.
34 The propositions put by the Crown were that the criminality in this case is clearly of such import that it warrants immediate imprisonment. There was no issue with that. It was put that I should sentence Ms Nguyen as a principal who has been offending over five months and it seems to me there is nothing, especially given her history, which would suggest that I should do otherwise.
35 Of course, while general deterrence, denunciation and punishment raise their heads strongly, one of course has sympathy for a person addicted. It may well be, as is often these cases, that she is prevailed upon by her husband in these circumstances.
36 I will, of course, be as merciful as I can in the circumstances. I am cognisant from a humane point of view of the impact of a sentence upon Ms Nguyen on her children and of course importantly upon her mother who is left again to look after them. However, the point has to be made that people who continue to be involved in serious criminality such as this can hardly come to the Court and suggest that one should take into account the effect upon their children when they have been so negligent insofar as their own liberty is concerned and the interests of their own children.
37 These cases of course are set out by the Court of Appeal, essentially in the case of Pidoto, essentially assessed by way of a quantity based regime. While of course noting that the cases of H.T. Nguyen v. R [2010] VSCA 127 and the case of Doan [2010] VSCA 25, concerned a cultivation of commercial quantities, the general principles expressed therein are applicable to this case. This offence of cultivation is an offence which has been determined by Parliament as one warranting a term of imprisonment by way of maximum penalty of 15 years, as was said in Doan by Forrest AJA:
"The maximum penalty fixed by parliament unambiguously demonstrates how seriously the community views this conduct. Recently in this court, emphasis has been placed upon the importance attached to sentencing judges having regard to the maximum sentence fixed by parliament. This court is also" that is the Court of Appeal, "has also emphasised recently that general deterrence is an important consideration in sentencing for this type of offence and that the link between general deterrence and the increasing prevalence of this offence is readily apparent."
38 Insofar as determining an appropriate sentence for Ms Nguyen, I have taken into account all of the matters put to me most by her counsel, Ms Stephanides. As I say, I was assisted by the written summation.
39 One of the matters of course, as I have remarked upon, is the significant prior history that she has. It is important, of course, to make the point that no-one, having been sentenced on a prior matter, comes before this Court to be sentenced again. However, where there are such significant priors there is a limitation on a court as to what it may do, albeit showing as much mercy as it can.
40 Taking account of all of those matters and the submissions put to me by counsel, I have therefore determined, Ms Nguyen, to sentence you as follows:
41 Charge 1, you will be sentenced to a period of imprisonment of two years.
42 Charge 2, a period of imprisonment of nine months.
43 Charge 3, a period of imprisonment of two and a half years.
44 Charge 4, a period of imprisonment of nine months.
45 Charge 5, a period of imprisonment of six months.
46 Charge 6, a period of imprisonment of nine months.
47 Using the sentence of two and a half years on Charge 3 as the base sentence, I order that six months of the sentence imposed on Charge 1, and one month each of the sentences imposed on Charges 2 and 4 be cumulated upon that sentence to make a total effective sentence for these crimes of three years and two months.
48 I order that the minimum sentence that you must serve before being eligible for parole is a period of 22 months.
49 I also declare, pursuant to s.18, that the 411 days that you have served to date be deemed as service of this sentence and a declaration to that effect be recorded in this court.
50 Pursuant to the provisions of s.6AAA of the Sentencing Act, as best as I can in trying to accord with the wish of parliament, insofar as one is required to state the effect of one aspect in a matter, being a plea of guilty as against many others, taking account of those limitations I say that had you not pleaded guilty, the sentence I would have imposed upon you would have been a period of four years and six months with a minimum of 30 months.
51 As I say I have signed a disposal order and a compensation order. I think they are the only matters, Madam Prosecutor, are they?
52 MS TAYLOR: That is correct, Your Honour. As the court pleases.
53 HIS HONOUR: Any matters of concern?
54 MS TAYLOR: No, Your Honour.
55 HIS HONOUR: Ms Stephanides?
56 MS STEPHANIDES: Not at this stage, Your Honour.
57 HIS HONOUR: Perhaps given the problem with interpretation, before I order the prisoner to be taken away, you might explain that insofar as her sentence is concerned, the aggregate sentence is three year and two months with a minimum of 22 months, less the 411 days she has served. Just so she understands that matter, I am happy for you to do that now.
58 MS STEPHANIDES: Thank you, Your Honour, if I might be permitted.
59 HIS HONOUR: Your client fully understands the sentence?
60 MS STEPHANIDES: She does, Your Honour.
61 HIS HONOUR: Yes, all right. The prisoner can be taken away. There are no - well she has been in prison long enough, there is really no need for me to make any remarks, is there, they would well know whatever her treatment regime is for depression?
62 MS STEPHANIDES: Yes, Your Honour. Those custody management issues have been logged on her.
63 HIS HONOUR: Yes. I thank both counsel for their assistance in the matter.
64 MS TAYLOR: Thank you, Your Honour. May I be excused?
65 HIS HONOUR: We will have to stand down prior to the next sentence.
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