Director of Public Prosecutions v Nguyen
[2012] VCC 2201
•20 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02227
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HA NGOC NGUYEN |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 September 2012 | |
DATE OF SENTENCE: | 20 September 2012 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2201 | |
REASONS FOR SENTENCE
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Catchwords: Cultivation of commercial quantity of cannabis and theft of electricity – “crop sitter” – no prior convictions – plea to most serious charge at earliest possibility – sentence of two years and two months imprisonment with a period of one year and one month to be served immediately and the balance of the sentence to be suspended for a period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E Piper | Office of Public Prosecutions |
| For the Accused | Ms E Anthony | Victorian Legal Aid |
HER HONOUR:
1 Ha Ngoc Nguyen, you have pleaded guilty to one Charge of cultivating a commercial quantity of Cannabis L., which carries a maximum penalty of 25 years’ imprisonment. You have also pleaded guilty to theft of electricity, which carries a maximum penalty of 10 years’ imprisonment.
2 The circumstances of your offending are contained in the Summary of Prosecution Opening (Exhibit A). You came to Australia from Vietnam on a student visa in July 2009. You studied English for six months and, were planning to commence a chef’s course, but your father, who was funding your study, became ill, and was no longer able to provide financial support. You found jobs fruit picking in a number of rural areas in Victoria in order to try to fund your further studies. Whilst fruit picking at Robinvale, you met an older Vietnamese man called “Hang”. He offered you $2,000.00 a week to tend cannabis crops which he had growing in a house in Melton. The money was to be paid to you upon harvesting of the plants. You provided him with your identification and he procured a lease in your name on a house located at 1 Weeks Avenue, Melton West, and also supplied you with a vehicle registered in your name. Electricity was connected to the property in your name. You commenced residing at the property on 8 July 2011. You were given a one-off $400.00 payment by Hang and were permitted to live in the premises rent-free and to have the use of the vehicle, as well as being supplied with groceries by Hang.
3 When you moved into the property, a sophisticated hydroponic cultivation system was already installed, the interior of the house having been substantially modified to make way for hoses, electrical transformers, extractor fans and light shades. An electrical bypass system was also in place. During the period of two months from 8 July to 8 September 2011, you followed written instructions which had been given to you by Hang in the Vietnamese language as to how to take care of the cannabis plants by watering and fertilising them.
4 On 8 September 2011, police entered the property and found a total of 188 plants weighing 58.66 kilograms. They were in various stages of maturity. The plants were located in four rooms of the house, along with hydroponic equipment. You were hiding in the roof, and ultimately emerged and were arrested by police. In a Record of Interview, you made admissions to the matters which I have set out, as well as telling police that small plants located in the garage had been planted three weeks ago. You said you had been “lured into (Hang’s) attractive offer” because you did not have any money.
5 It is accepted by the Prosecution that there is no evidence to contradict what you told police in your Record of Interview, and that your role was that of a “crop sitter”, with the system of cultivation and sophisticated equipment and bypass of electricity already in place prior to you moving into the house. Your role in the theft of electricity was that of aider and abettor. Apparently, you were aware that an electricity bypass had been installed, albeit that the lighting to assist growth of the cannabis plants, was switched on and off automatically, without any need for action on your part. However, by being present, and living at the premises and tending the crop, which was the sole purpose for you being in the house, and by having knowledge of the electricity bypass, you were assenting to, and concurring in, the commission of the crime of theft of electricity.
6 You are presently aged 28 years, having been born on 15 December 1983. There are no prior or subsequent criminal offences alleged against you. You were born in a small village in North Vietnam, the youngest of four children. Your father was a merchant trader in Vietnam. He owned a boat, which he would use to sell various goods, as he navigated it along the river to nearby villages. Your family were not very well off, but you were educated to the equivalent of Year 12 in Vietnam. Your counsel, Mr Gwynn, described you as being literate and of sound intelligence, albeit that you have very little English. After leaving Year 12, you worked for a number of years as a fisherman, and then enrolled in a management course in Ho Chi Minh city. Your father paid $21,000.00 in advance for you to undertake a course at Holmesglen College in Melbourne in order to study English, with the hope that you would then go on to undertake a management course. Apparently, you are a skilled cook and hoped to go into the hospitality industry, where you would be assisted by training in management.
7 Mr Gwynn told the Court that, after you had been studying for six months, your father, who was still in Vietnam, had a stroke and was unable to work. Accordingly, he was unable to continue to support you financially. It was in this context that you obtained jobs fruit picking in order to raise funds to support your continued study. Mr Gwynn stated that your motivation in the cultivation of cannabis was that it was “an offer too good to refuse”. In fact, you never received the agreed sum of $2,000.00 per week because the crop was never harvested, and the consequences have been catastrophic for you. You have been in custody since the date of your arrest on 8 September 2011, and know that you probably have destroyed your chance of studying in Australia and improving your future prospects. Mr Gwynn stated you are acutely aware of having wasted the $21,000.00 which your family scraped together to pay your fees at Holmesglen College. He said that you are conscious of the shame that you have caused your family and have not managed to speak to any family member since you were placed in custody. You have had no money to spend on international phone calls, and have only managed to try to send a message via another Vietnamese prisoner to let your family know where you are. You have not received any news from your family and are unaware of the current state of your father’s health after he suffered the stroke.
8 Mr Gwynn said that your time in custody had been a period of great isolation for you, particularly given your poor English and the fact that you have never been in custody before. You have felt keenly the separation from your family in Vietnam, and have had no visits from anyone at all in the period of 12 months that you have been on remand. A report from Carla Lechner, forensic psychologist, dated 7 February 2012, notes that you suffer moderate depression, consistent with a diagnosis of Adjustment Disorder and disturbance of mood, with your symptoms being reactive to your current legal situation. Apparently, you have been on a waiting list for counselling, but none has been forthcoming. In addition, you have been diagnosed with Irritable Bowel Syndrome whilst in custody, which has not responded positively to medication prescribed for it. Whilst in custody you have worked as a gardener.
9 Mr Nguyen, the maximum penalty of 25 years’ imprisonment shows you how seriously the offence of cultivating a commercial quantity of cannabis is regarded in this country. Cannabis is an illegal drug because, like so many other illegal drugs, it has a detrimental effect on the health of those who use it. Apart from anything else, they often become addicted and commit crimes to support their habit. Mr Gwynn said that you had been assured by the mysterious Hang that, if you got caught for tending the plants, the consequences would not be serious. That you would have believed this to be true, I find incredible. For a person who was in financially stressed circumstances, you were to be handsomely remunerated by receiving $2,000.00 a week, as well as free accommodation, groceries and the use of a car. You knew before you moved into the Melton West property that an electricity bypass had been installed, so you must have had no doubt about the criminality of what you were doing.
10 In sentencing you on the charge of cultivation, emphasis must be placed on general deterrence, so that others who are minded to try to improve their financial situation by tending these illegal crops, will know that they will be appropriately punished. The Court must denounce your conduct and impose just punishment.
11 In sentencing you on Charge 2, theft of electricity, I take into account that the electricity was programmed by others to come on and off automatically, without requiring you to do anything. Thus, there is substantial overlap in the conduct by which you were guilty of Charge 1 and Charge 2. The Prosecution has conceded that, in these circumstances, the sentence to be imposed on Charge 2 should be totally concurrent with the sentence imposed on Charge 1.
12 In sentencing you I take into account that, after your arrest, you fully cooperated with police and gave a full and frank Record of Interview. At the committal mention, held two months after you were arrested on 8 September 2011, you indicated an intention to plead guilty to both charges. You persisted with your plea of guilty on Charge 1 but, on 14 February 2012, when the matter was listed for a plea hearing in the County Court, you indicated that you wanted to change your plea to that of not guilty on Charge 2, theft of electricity. This was apparently on the basis that you had never done anything to turn the electricity on or off, because this occurred automatically, after having been set up to do so by others. Accordingly, the matter was listed for trial on 17 September 2012. However, after receiving advice from your counsel, you again altered your plea to that of guilty on Charge 2.
13 I consider that you should be given a high discount on the sentence for cultivation for your plea of guilty at the earliest possible time. Your counsel invited me to find that you were remorseful for your conduct but, strictly speaking, I am unable to find evidence of this, and your change of heart relating to your plea on the theft of electricity is not indicative of remorse. Nevertheless, I consider the discount should be a substantial one because you facilitated the course of justice on the major charge as soon as possible.
14 In sentencing you, I also take into account that you have no history at all of criminality, and that the period in excess of one year which you have spent in custody has been particularly burdensome for you. This is because you have never before been in custody, have very poor English, so that you have not been able to communicate readily with others during this time, and also have had no visitors whatsoever and no communication with your family in Vietnam. Moreover, that you have been suffering from depression, albeit reactive to your legal situation, and also the pain of Irritable Bowel Syndrome, has not made your time in custody any easier.
15 Your counsel asked the Court to take into account that you are likely to be deported. The only evidence of this possibility has been put before me this morning by the Prosecution. It consists of an email sent on 18 September 2012 to the Informant from Mr George Hatzikosmidis of the Department of Immigration (Criminal Cases Victoria, Status Resolution Branch). It has been marked as Exhibit B. The relevant portion of the email states as follows:
“As Mr Nguyen is an Unlawful Non-Citizen, he will be subject to the detention and removal regime of the Migration Act on release. As such, our intention will be to detain him in the first instance with a view to conducting further interviews with him. Please note that although removal is one likely outcome it is not guaranteed; our subsequent interaction with Mr Nguyen may well result in his release on a bridging visa.”
16 This evidence does not permit me to quantify the risk of deportation occurring. Nor is there evidence that, in your case, deportation would be a hardship. In fact, it would enable you to be re-united with your family, whom you have been missing. Hence, on the authority of DPP v Yildirim[1], I do not think it would be appropriate for me to factor the possibility of deportation into my sentencing considerations. However, I do accept that you have probably ruined your chances of being able to study and work in Australia because probably you would fail the good character test for a visa. I also accept that you suffer shame, particularly in the eyes of your family, because of your offending. I consider that, in the light of your prior good character, your full realisation now of the seriousness of your criminal behaviour and your experience of imprisonment, your prospects of rehabilitation are likely to be good.
[1][2011] VSCA 219, 28 July 2011.
17 Having carefully considered the competing sentencing considerations in this matter, although the seriousness of your offending warrants a term of imprisonment, I consider that it is appropriate to suspend a substantial part of the sentence.
18 Stand up please, Mr Nguyen.
19 On Charge 1, cultivation of a commercial quantity of cannabis, you are convicted and sentenced to be imprisoned for a period of two years and two months.
20 On Charge 2, theft of electricity, you are convicted and sentenced to be imprisoned for a period of three months.
21 The sentence on Charge 2 is to be served concurrently with the sentence on Charge 1. The total effective term of imprisonment is thus two and two months’ imprisonment. I direct that you serve a period of one year and one month imprisonment and that the balance of the sentence be suspended for a period of two years.
22 I declare a period of 378 days’ pre-sentence detention, exclusive of today, to be time reckoned as already served under the sentence imposed this day.
23 Pursuant to s6AAA of the Sentencing Act 1991 I declare that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 4 years with a non-parole period of 3 years.
24 Pursuant to s464ZF(2) of the Crimes Act 1958 I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with Subdivision 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider that this order is justified by reason of the seriousness of the circumstances of the offending and the fact that it is not opposed by you.
25 Mr Nguyen, you need to be aware that, if you do not co-operate with the taking of a swab of saliva, then the police are entitled to use reasonable force to ensure that a sample is obtained.
26 Pursuant to s78(1) of the Confiscation Act 1997 I order forfeiture to the State of the property referred to in the Schedule, namely 188 cannabis plants, five charcoal filters, 48 light-globes, 48 transformers, one electrical bypass, one mobile phone, one Virgin mobile SIM card, one hairbrush and comb, one blanket and one pair of thongs. I further direct that the property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. I note that you do not oppose the making of that order.
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