Director of Public Prosecutions v Nguyen
[2012] VCC 1425
•12 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 10-00454
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THI NGUYEN |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 - 4 Feb 2012, 16 Sep 2012, 10 – 12 Sep 2012 | |
DATE OF SENTENCE: | 12 September 2012 | |
CASE MAY BE CITED AS: | DPP v. Nguyen | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1425 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. Singh | Office of Public Prosecutions |
| For the Accused | Mr L. Barker |
HIS HONOUR:
1 Thi Xa Nguyen, you have pleaded guilty to an indictment charging you with one offence of cultivating a commercial quantity of narcotic plants, namely Cannabis L between 20 July 2009 and 31 August 2009.
2 The indictment charging you with one offence has been filed over an earlier indictment and I have to acknowledge the history of the matter includes your having pleaded not guilty to an indictment charging you with four offences of cultivating a commercial quantity of Cannabis L and of trafficking in Cannabis L at or about the same time. The circumstances of the offending arose from observations by police which saw you attending on 27 August 2009 the premises at 38 Imperial Avenue, which is relevant to the single count indictment, in company with your co-offender Dung Vo and then again attending those premises along with your co-offender, Hoang Nguyen.
3 It is clear from the observations of police after they executed search warrants not just on the premises at 38 Imperial Avenue but on the two other factory premises and on the home of Dung Vo, that each of those premises contained sophisticated equipment designed to enable the commercial production of cannabis plants. It is clear that a sophisticated operation was in progress and the sentences that I passed upon your co-offenders, Dung Vo, of five years with a minimum of three (I think), and of Hoang Nguyen, after his trial and him being found guilty of the offences, plus offences of stealing electricity from the four premises, a sentence of six years nine months (I think) with a non-parole period of four years and nine months.
4 So it is clear from the facts and from my findings and consistent with the verdict of the jury in the trial of Hoang Nguyen, that this was a sophisticated operation designed to sell Cannabis L on a commercial scale. On the other hand, it is clear from the fact that the prosecution have filed over this indictment, that they no longer allege that you were party to that wider scheme. The indictment concerns only the premises at 38 Imperial Avenue and only the period between 20 July 2009 and 31 August 2009. It has been put on your behalf that your role was that of an aider and abettor and, indeed, your role was aiding and abetting by your presence encouraging the offending to take place.
5 The prosecution has not sought to challenge that and nor have they sought to challenge the proposition that a sentence which does not involve your immediate imprisonment is an appropriate disposition in this case.
6 It is clear from your background, you are now 53 years of age, that you had an impoverished background in Vietnam. You got married young and had three children, now aged 31, 29 and 26 respectively. You had an abusive marriage from which you sought to escape by going into hiding and then leaving Vietnam. That cost you $US7000 and resulted in you coming to Australia in circumstances where you remained here as an illegal immigrant and were exploited, as I am sure many other of your country folk have been exploited, in the agricultural industry in and around Melbourne.
7 It seems that much of your wage was going on repaying the debt that you had incurred. You lived in very much deprived circumstances for a period of seven years. You were rescued, it seems, by the fact that your daughter, Anh, who was then married, came to Australia in 2004/2005 and had a child in March 2005. By that time she had discovered that you were in and around the Melbourne area and was able by considerable effort on her part, to track you down. The two of you began to live together shortly before your granddaughter was born.
8 Thereafter you became house mother, effectively, to your granddaughter and you continued to live in Australia without a visa and in circumstances where you were always liable to deportation if your presence here had been discovered. Throughout your period in Australia up until that time you could not live any kind of open life, enjoying many of the benefits that Australian citizens enjoy because you were aware that you were subject to deportation.
9 It seems you are still subject to deportation but that is not a matter that I am required to consider today in passing sentence upon you. It is simply one of the facts that form the context in which these offences occurred.
10 Another fact which forms part of that context is the arrival in Australia of your youngest child, Hung, in 2007 to study here. After he arrived, he met the daughter of your co-offenders, Hoang Nguyen and Dung Vo, and they formed a relationship and apparently are in a married relationship now.
11 It was through that relationship that you met your in-laws and co-offenders. By July 2009, the two of them were heavily involved in a joint venture of the unlawful cultivation of Cannabis L on a substantial commercial scale. Whilst it was suggested that your particular presence in the factories was brought about because your brother in Vietnam had a business relationship with Hoang Nguyen in connection with plastics, I am unable to find that fact positively in your favour. However I do accept that your involvement in the offending was limited to aiding and abetting the offending by your encouragement of the offending conduct.
12 It is still to be regarded as a serious offence because it is a criminal act and it does involve the commission of an offence which carries a maximum term of imprisonment of 25 years. It is necessary for this court to express denunciation of conduct of that kind and to impose appropriate punishment. Also, perhaps most significantly, to deter others from committing offences of that kind. I think it is unlikely that you will offend again. Your future in Australia, of course, is uncertain at this stage but I see no reason to think that you have any criminal disposition beyond that which I have outlined. You have no prior convictions and your prospects of rehabilitation seem to me to be good. I am bound to impose a sentence which gives proper effect to your rehabilitation. Therefore I do not regard individual deterrence as a significant factor in this case.
13 I think it is necessary, in balancing the competing sentencing considerations though, to mark the seriousness of this kind of conduct and to ensure that the sentence is one that, hopefully, has some effect in deterring others from committing offences of this kind. It was for that reason that I asked Mr Singh, on behalf of the prosecution, to outline to me what the prosecution put forward as being an appropriate range of sentences for offending of this kind. He submitted that, although the sentence could be wholly suspended or partially suspended, a sentence of between two and three years' imprisonment was an appropriate sentence.
14 I think that range is a reasonable one, in all the circumstances. It could have been significantly higher if your part was different in the offending conduct. But I think having regard to the nature of your offending conduct, that is an appropriate range. Indeed, I think the lower end of that range is the appropriate mark of the seriousness of the conduct in all the circumstances.
15 Thi Nguyen, in respect of the offence of cultivating a commercial quantity of Cannabis L to which you have pleaded guilty, I convict you and I order that you be sentenced to a term of imprisonment of two years which will be wholly suspended save for the period of 206 days which you have already spend in pre-sentence detention. Therefore, the whole of that part of the sentence that is not suspended has already been served. You will not be required to serve any further term of imprisonment provided you do not commit an offence during the period during which I suspend the sentence, which will be two years.
16 If you do not commit another offence punishable by imprisonment in the next two years, you will not be required to serve the balance of the sentence that I pass upon you. If, however, you do commit an offence that is punishable by imprisonment within the two year period from today, you will be brought back to this court and you will almost certainly be required to serve the balance of the sentence of two years that I have imposed in addition to any other sentence that may be imposed for the offence that puts you in breach of the terms of this suspended sentence order.
17 But for your plea of guilty to these offences, I would have sentenced you to a term of three years' imprisonment with a non-parole period of two years.
18 MR SINGH: As Your Honour pleases.
19 HIS HONOUR: Also the order for retention.
20 MR SINGH: Yes, an order for retention.
21 HIS HONOUR: Have you go those drafted yet?
22 MR SINGH: Unfortunately not, we will send those through to Your Honour at some stage.
23 HIS HONOUR: I will make the order for retention of the forensic sample that was provided by you, Ms Nguyen, which means that it will go on to the database that is kept of forensic samples and I make that on the basis that it is in the interests of justice to do so, having regard to the seriousness of the offence and also for the fact that you have not opposed the making of the order.
24 MR SINGH: Thank you, sir. Your Honour, just to make it abundantly clear, if I may, in the matter of Ms Vo, the total effective sentence was five years with a non-parole period of three years and three months. The 6AAA you imposed in that matter was seven years and a non-parole period of five. And in relation to Mr Hoang, the total effective sentence was six years and nine months with a non-parole period of four years and nine months. Just so that there is no confusion about any of that.
25 HIS HONOUR: Yes. I think what you have said also reminds me of another matter which is relevant to sentencing. This is a matter which has been hanging over your client's head, Mr Barker, for a considerable period of time now, three years. Delay is clearly a very relevant factor in sentencing generally but I think in your client's case, with the prospect of a term of imprisonment hanging over her head for that period of time, it has been a very significant burden. The fact she has actually had to serve the 206 days because she was in custody during that period will have, no doubt, made her feel even more anxious about the prospects of having to go back to prison.
26 MR BARKER: Indeed, Your Honour, and it is certainly not lost on her and may I ask if she can leave the dock now?
27 HIS HONOUR: She may indeed. I am going to leave the Bench to allow counsel to leave and if the school party wish to remain I am happy to come back and talk to you for a little while afterwards and I thank both counsel for the diligence and the care with they have prepared and presented this case.
28 MR SINGH: Thank you, Your Honour.
29 MR BARKER: Thank you, Your Honour. Are we excused, Your Honour?
30 HER HONOUR: Yes, certainly.
31 MR BARKER: Thank you.
32 HIS HONOUR: I think, counsel, the way that the order will actually be framed is that it will be a partially suspended sentence with 500 and however many days suspended, rather than the way in which I have actually expressed it.
33 MR BARKER: Thank you, the computer has mysterious ways, I understand.
34 HIS HONOUR: Fortunately, Mr Travers has an acquaintanceship with the computer that I do not have and is able to sort through these issues and I leave it to him. I will be back on the Bench in three or four minutes. Thank you very much, Madam Interpreter, for your help, in particular with your help in assisting counsel and dealing with matters.
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