Director of Public Prosecutions v Nguyen
[2013] VCC 377
•27 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00096
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER NGUYEN |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 March 2013 | |
DATE OF SENTENCE: | 27 March 2013 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 377 First revision | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence-Cultivation of commercial crop of cannabis-Theft of electricity-Possession of equipment related to cultivation of cannabis
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Marques | Office of Public Prosecutions |
| For the Accused | Ms B. Coath | PICA Criminal Law |
HIS HONOUR:
1 Peter Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant in a commercial quantity, one charge of theft and one charge of possession of substances, materials and equipment related to cultivation of cannabis with the intention of using these for the purposes of trafficking in a drug of dependence.
2 The maximum penalty in relation to Charge 1 is 25 years, whilst the maximum penalty in relation to Charges 2 and 3 is 10 years.
3 In relation to Counts 1 and 2, the learned prosecutor opened your offending as follows:
4 At approximately 7.05 pm on 3 August 2012, members from the Brimbank Divisional Crime Tasking Unit attended at 6 Melton Avenue, Sunshine North, in possession of a search warrant issued pursuant to the Drugs Poisons and Controlled Substances Act 1981.
5 Police observed you and your co-offender, Ho, drive into the driveway of the premises, check the metre box of the house and enter the house using a set of keys that were in your possession. Almost immediately, you exited the front door and entered through the side gate where you ran when approached by police. You were subsequently arrested in the front driveway of the premises. Ho was arrested a short time later leaving the front door of the house.
6 Inside the premises police located a sophisticated hydroponic setup growing a commercial quantity of Cannabis L in multiple rooms. The house was fitted with a sophisticated watering system, power transformers, filters, lights, fans and an electrical bypass. The entire premises were used for growth of Cannabis L and there was no free living space.
7 Grow room one was set up in a bedroom with an electrical system, lighting and 20 mature Cannabis L plants that were full of head and bud. The plants were connected to a watering system, and a pump within a large water bucket was set up in the room. The room was also boarded up and had black plastic on the walls to ensure the plants remained in the dark. The total weight of the plants in this room was approximately 28.2 kilograms.
8 Grow room two was set up in another bedroom, which had also been boarded up to keep it dark. This room was set up with an electrical system and 44 medium sized Cannabis L plants. The plants were connected up to a watering system that ran to a pump and a large bucket of water set up in the room. The total weight of the plants in this room was approximately 3.03 kilograms.
9 Grow room three was set up in another room of the house. Again, boarded up with black plastic to keep the room dark. The room was set up with buckets, a watering system, lights and shrouds. There was a quantity of loose cannabis leaf and debris on the floor and some stripped cannabis stems were found in the room. The room appeared as if it had recently been harvested.
10 Grow room four was set up in the living area of the house. Again, there was set up an electrical system, lighting and 26 small Cannabis L plants connected to a watering system. Also found in room four were two large bags containing six and seven smaller zip-lock bags full of dried cannabis head. The total weight of the plants in this room was 578.4 grams. The total weight of the dried cannabis head was 5.85 kilograms.
11 In the kitchen of the house, a number of shrouds, power transformers, light globes and a charcoal filter were found, along with another small zip-lock bag containing cannabis head and three seedlings. The total weight of the bag was 59.1 grams. The total weight of the seedlings was 3.7 grams.
12 The premises were fitted with an electrical bypass. Powercor employees attended and removed the bypass. A total of 15,074 kilowatts of electricity was stolen in order to run the hydroponic growing system. This translates to approximately $4200 worth of electricity.
13 The total weight of cannabis found was approximately 38.59 kilograms.
14 You and Ho were both taken to the Sunshine Police Station where a record of interview was conducted. You made a "no comment" interview and you were remanded in custody.
15 In relation to Charge 3, I was told that at approximately 1.55 pm on 28 August 2012, members from the Brimbank Divisional Crime Tasking Unit attended at 2 Union Street, Sunshine in possession of a search warrant, again issued pursuant to the Drugs, Poisons and Controlled Substances Act 1981.
16 No one was present when police entered the premises. Located inside was a sophisticated hydroponic set-up to grow cannabis in multiple rooms. The house was fitted with a sophisticated watering system, power transformers, filters, lights, fans and an electrical bypass. Most of the living space in the premises was set up to grow cannabis. No plants were located growing in the house.
17 Grow room one was set up in a bedroom, with an electrical system, lighting and a number of pots that were connected to a watering system and pump within a large water bucket set-up. The room was also boarded up and had black plastic on walls to ensure the room remained in the dark.
18 Grow room two was set up in a large living room area, which had also been boarded up to keep it dark. The room was set up with a charcoal filter, an electrical system, lights, shrouds and several pots that were connected to a watering system that ran to a pump and large bucket of water.
19 Grow room three was set up in another bedroom of the house. Again, this had been boarded up with black plastic to keep the room dark. The room was set up with buckets, a watering system, lights and shrouds.
20 Grow room four was set up in the master bedroom of the house. This room was set up with a charcoal filter, an electrical system, lighting, shrouds and pots that were connected to a watering system. Also found in this room was an amount of cannabis leaf on the floor, which was seized.
21 Grow room five was set up in a smaller bedroom of the house. This also had an electrical system, lighting, shrouds and pots that were connected to a watering system.
22 In the linen closet a number of transformers were found, as well as two charcoal filters in the laundry. It appeared that the entire house had recently been harvested and the majority of cannabis removed prior to the warrant being executed.
23 The premises were fitted with an electrical bypass. Powercor employees attended and removed the bypass.
24 You waived your right to be interviewed in relation to this matter.
25 Mr Trapnell, of senior counsel who appeared on behalf of the Crown, told me that there were 90 plants in total found at the premises in Sunshine North and the total weight of cannabis (38.59 kilograms) was well over the threshold for a commercial quantity, which is 25 kilograms.
26 Objectively, Mr Nguyen, your offending is serious, even though it may be said that there are more serious examples of commercial cultivations insofar as Charge 1 is concerned. Moreover, there are the following aggravating features:
First, you were undergoing an intensive corrections order at the time that you committed the offences, for which I now sentence you. As the learned prosecutor pointed out, the intensive corrections order which you had been ordered to undergo had been imposed by a learned magistrate in circumstances where he was re-sentencing you for a breach of an intensive corrections order. Therefore, you had recently been before the courts and granted a further indulgence in relation to serving an intensive corrections order, but notwithstanding this, you committed the offences for which I now sentence you.
Second, you committed the offences before me whilst you were on bail for other offences. Whilst these other alleged offences will be the subject of contest by you, you breached your conditions of bail by committing the offences before me.
27 The cannabis crops which were found by police at the Sunshine property were significant and although I accept that your role was that of crop sitter, it was nevertheless an important role without which the cultivation could not occur. I also take into account the period of this offending, which was two months.
28 In relation to the possession of equipment charge, I sentence you on the basis of the period alleged, which is one day, although by your plea you have accepted that your possession of the equipment related to cultivation of cannabis with the intention of using the equipment for trafficking.
29 I take into account your explanation for being involved in the offending, which is that you had been subjected to harm by loan sharks and then offered the chance to work off gambling debts by becoming involved in the offending. Of course, this in no way excuses your conduct, but I take into account that although you were performing these tasks for money, this was in a bid to pay off gambling debts and fend off the prospect of harm to you, rather than out of pure greed in pursuit of a lavish lifestyle, for instance.
30 You have a significant criminal history; as Mr Trapnell of senior counsel pointed out, you have been given many opportunities to change your ways. You have been given the benefit of community based orders which you have breached, you have breached an alcohol interlock condition and as I have previously said, you have breached an intensive corrections order. Your offending before me is in breach of the intensive corrections order imposed on 4 July 2012. I was told that this will be dealt with on 9 April 2013 in the Magistrates' Court where the original order was made.
31 A good deal of your criminal history is in respect of driving offences, including exceeding the prescribed concentration of alcohol. On 19 May 2010 at the Melbourne Magistrates’ Court, you were convicted of affray and recklessly causing injury. Mr Walsh, who appeared on your behalf, told me that you committed these offences in respect of a person who had assaulted a female friend of yours.
32
The only prior matter relating to drugs is possession of ecstasy, which was dealt with on 4 July 2011. Mr Walsh told me, on instructions from you, that this involved being in possession of two tablets. Mr Trapnell queried this in light of the intensive corrections order which was imposed; however, this may be explicable because of matters leading to this prior conviction. In any event, there is nothing which expressly contradicts what you have instructed
Mr Walsh as the basis of this prior matter.
33 Your criminal history shows that on a number of occasions you have been prepared to flout the law and court orders. This gives me cause for concern in terms of your prospects of rehabilitation and is relevant to the weight which I place on specific deterrence and protection of the community.
34 Mr Walsh most properly told me that there is an outstanding matter which you are contesting on 4 April 2013, being possession of cannabis. I do not take this matter into account as you are pleading not guilty to it and the case is yet to be decided.
35
Another matter, to which you are pleading guilty, is trafficking cannabis, which is based on 6.67 kilograms of the drug, and some cash being found at your home, as I understand it; the cannabis being found under your bed on
16 June 2012. These events occurred within the date range for Charges 1 and 2, and so is consistent with your explanation that these matters also arose out of paying off the gambling debt to loan sharks. That is, I was told that you were holding the cannabis for the same people you were working for in respect of the offences before me. The charges relating to this matter are to be dealt with on the same day as the breach of intensive corrections order proceedings.
36 I take into account the matters to which I was referred by Mr Walsh in terms of your upbringing, which was not without its difficulties.
37 I also take into account your background and the context in which you committed the offences before me.
38 You completed your education to Year 12 level, achieving an enter score of 54. By the time you left school at age 17, you were already gambling regularly. I was told that by the age of 18 years, you were a VIP member at Crown Casino, playing roulette and black jack. Your gambling became heavier and more frequent, which resulted in a $100,000 loan from loan sharks.
39 When you were 19 years old, you worked for the Australian Taxation Office for eight months, leaving because the work was too stressful. For the following fourteen months you worked for an uncle at a business called "C-Tech Laser". As you were being paid too little, you left there and worked for AGL in a call centre for about eight months, but thereafter, you were unemployed.
40 You had incurred gambling debts, having borrowed money from loan sharks, as I have previously said. You had reduced a gambling debt of $100,000 to $50,000. As you were unable to pay the entire debt, I was told that you were beaten up by the people who had lent you the money on more than one occasion. You repaid them approximately $20,000 or $30,000 more. You were told that if you were caught by the police for this offending, they would wipe the balance of the debt. That is, if you were caught in relation to crop sitting for houses, which is the subject of Charge 1.
41 It appears from Mr Cummins’ report dated 20 March 2013, you are not so sure about whether these loan sharks are content to wipe the debt. What you must be sure of, is that any repayment of any debt in the future, Mr Nguyen, must be through legitimate work. Otherwise, you face the very real prospect of spending ever increasing periods in gaol.
42 You have shown from past endeavours that you are capable of working hard for fairly sustained periods, which is something which should stand you in good stead in the future. In this regard, I note that you intend to try to find some factory work upon your release from gaol.
43 In terms of your drug use, you had been a casual user of cannabis from the age of 16 years. At first you used the drug socially on weekends but then your usage increased, stopping when you were 21 or 22.
44 You then befriended a person who traded in cocaine and gave you small amounts of that drug. You became a daily user of this and you also used ecstasy when you became involved in the nightclub scene. You have also used ice on a number of occasions, although not frequently.
45 You had been in a relationship with a girl from the age of 14 until you turned 18. However, the relationship ended because of your gambling and drug use. It appears that you plan to marry and settle down with another person, who is presently in Vietnam, upon your release from gaol.
46 Before being remanded, you were living with your parents and sister, all of whom are engaged in respectable occupations.
47 You have now been in custody for approximately seven and a half months, and you were 22 years old when you went into custody. I was told that incarceration has been a sobering experience for you and that you had not used drugs since being in gaol. You have availed yourself of a number of courses which I take into account in your favour. These show that you are attempting to use your time in custody in a productive way. You are on a waiting list for drug-related programs which are harder to take part in whilst on remand. I understand that the situation will change in this regard when you are sentenced.
48 You receive frequent visits from your family and you work in the remand centre canteen. This is a most responsible position in the prison system as you are entrusted with personal information relating to the prisoners such as bank account balances, their CRN and the like.
49 I take into account in your favour that you pleaded guilty to these charges without the need for a contested committal hearing. The stage at which you pleaded guilty is not the earliest stage possible but in circumstances where no witnesses were cross-examined at all, I will allow for a substantial discount in your facilitation of justice. In pleading guilty at the stage that you did, you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contesting proceedings.
50 You are still a young man, being 23 years old. You have strong family support. Eighteen members of your family were in court to support you at the plea hearing and are people you can look to upon your release from gaol in assisting you to lead an offence-free life. On the other hand, you had the support of your family in the past but have committed offences. I was told that the difference for you now is that, with the help of the custodial setting you are now in, you have come to realise what you have put your family through and what you want in life, and have resolved to change your ways in the future.
51 I take into account your most articulate letter, which was tendered at the plea hearing, which signifies some remorse on your part and shows that you have some insight into your offending. These are positive indicators for your prospects of rehabilitation. It is to be hoped that you are becoming older and wiser, but in all of the circumstances I am afraid that I find that your prospects of rehabilitation are fairly poor. This is because of your criminal history and in particular your history of breaking court orders where opportunities have been given to you. However, as you are still a young man and have shown some signs of a change of heart, I have done what I can to maximise your chances of rehabilitation, whilst placing appropriate weight on all other relevant sentencing factors.
52 In sentencing you, I must impose a sentence which serves to punish you and denounce your conduct in all of the circumstances. Although you were under some pressure from loan sharks to engage in the illegal activity for which I now sentence you, as Mr Trapnell submitted, it was open to you to find legitimate work in order to repay your debts. There is nothing which has been submitted on your behalf which takes away from your moral culpability, which I regard as quite high.
53 On the other hand, I must also give significant weight to general deterrence in a bid to deter others from being tempted to offend as you have. Also, I must give fairly significant weight to specific deterrence in light of your criminal history and the aggravating features of the offences for which I now sentence you. I must also give a good deal of weight to protection of the community.
54 The prosecution submitted that an appropriate sentencing range in your case was a head sentence of between three years and four and a half years with a non-parole period of between two years and three years. Mr Trapnell took me to the Sentencing Snapshot, in relation to the cultivation offence, which is the most serious offence you have committed on the occasion before me. He also provided me with the sentencing overview in relation to this offence from the Sentencing Manual.
55 Mr Walsh submitted that because of your youth, and your resolve to lead a productive life in the future with the support of your family, a longer than usual period on parole was warranted to assist you with your rehabilitation. In response to the prosecution range he submitted that the lower end of this was too high insofar as the non-parole period was concerned. He submitted that I ought impose a sentence a little less than this, referring me to certain aspects of material provided by the Crown. In this regard, I note that the overview lists the weight of cannabis or number of plants but there is no reference to whether the person concerned had prior convictions or whether there were other features in common with your situation. However, that table, together with the Sentencing Snapshot, gives me some assistance in determining current sentencing practice, which is one of the matters which I must be guided by in sentencing you. I have decided to accede to your counsel’s submissions in relation to the minimum term because of your youth and facilitation of justice in the way that I have indicated previously and in view of all matters put before me which are relevant to your case.
56 I make the following ancillary orders:
First, the Forfeiture Order of $500 cash, which is said to be tainted property by virtue of your offending. That Order is not opposed.
Second, I make a Disposal Order which is not opposed.
Third, I order that the forensic sample, previously taken by the authorities, be retained because of: the seriousness of your offending; the order is not opposed; your prior convictions; and it is in the public interest to make the order.
57 In relation to all of the offences on the Indictment, you are convicted and I sentence you as follows: Charge 1 – 2 years and 8 months' imprisonment; Charge 2 – 3 months' imprisonment; and Charge 3 – 10 months' imprisonment.
58 I direct that one month of the sentence imposed on Charge 2 and three months of the sentence imposed on Charge 3 be served cumulatively with the sentence on Charge 1. This produces a total effective sentence of 3 years' imprisonment.
59 I direct that you serve 18 months before becoming eligible for parole.
60 If not for your pleas of guilty, I would have imposed a sentence of 4 years' imprisonment with a non-parole period of 32 months.
61 I declare that you have already served 236 days in custody which will be reckoned as already served by virtue of this sentence.
62 Is there anything arising out of this sentence, counsel?
63 MS COATH: No, Your Honour.
64 MS MARQUES: No, Your Honour.
65 HER HONOUR: All right. You may remove the prisoner, thank you.
66 (PRISONER REMOVED).
67 HER HONOUR: Thank you, we will now adjourn.
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