Director of Public Prosecutions v Nguyen
[2022] VCC 194
•22 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTION
CR 21-01405
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SY VAN NGUYEN |
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JUDGE: | HER HONOUR JUDGE QUIN |
WHERE HELD: | Bendigo |
DATE OF HEARING: | 15 May 2022 |
DATE OF SENTENCE: | 22 February 2022 |
CASE MAY BE CITED AS: | DPP v Nguyen |
MEDIUM NEUTRAL CITATION: | [2022] VCC 194 |
REASONS FOR SENTENCE
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Subject: Cultivate a commercial quantity of cannabis
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | OPP |
For the Accused | Mr C. Nikakis | Haines & Polites |
HER HONOUR:
1Sy Van NGUYEN you have pleaded guilty to one count of cultivating a commercial quantity of cannabis. The maximum penalty for this offence is 25 years' imprisonment.
2The circumstances of your offending are set out in the prosecution opening for plea dated 28 January 2022 (Exhibit A) and can be summarised as follows:
3In September 2018, a property in Greenhill (the property) was leased to Ngoc Mai (Mr Mai), with rent of approximately $2290/month. When a landlord inspection was conducted of the property in mid-August, it was apparent that Mai and another male were residing at the property.
4In April 2020, the landlord went to the property to enquire about rent payments that had fallen behind. She observed that a large tin shed had been erected on the side of the house, behind an existing shed. After she had jumped over the locked gate and had knocked on the front door, it was opened by an Asian male whom she did not recognise. The landlord smelt cannabis and asked where the tenants were. She tried to open the screen door, but the handle was locked - you refused her entry and told her that you would set the dogs on her if she wanted to enter, and that you had weapons in the house.
5The landlord left the property and went to police, though at that time police viewed the incident as a civil dispute and did not take any action. The landlord then returned to the property and observed you approaching them from the house. You were told the police were on their way and you offered them money not to call the police. She was invited into the property, which she refused. You then told the landlord to leave and threatened you would bring weapons out.
6The landlord drove away from the property again and called Triple 000 - when she returned she observed people to the left of the house near the existing shed carrying cannabis plants and putting them in a van.
7When police attended, they noticed three vehicles, namely a van, a small SUV, and a sedan at the property - the registration details of each of them were recorded. Police were able to see several pots, bags of potting mix, and high bay light shields in one of the sheds. Police also observed you coming from a doorway of the new shed in the backyard and walking out of sight behind the rear of the house. Police were unable to enter the yard given there were several dogs barking aggressively.
8During a search of the house, police located cannabis seedlings in the kitchen area and an electrical mains bypass in a recreation area.
9Inquiries revealed each of the vehicles were registered to Nam Hoang Nguyen, born in May 1986, with an address in Sunshine North. Later investigations revealed you were using this name as an alias when you registered these vehicles with VicRoads.
10During a search of the shed at the rear of the property a professional cannabis cultivation grow house was located. Police seized 257 cannabis plants in various stages of maturity from within the shed, as well as in the house. The total weight of cannabis seized by police was 127.98 kilograms. The weight of the cannabis crop located at the address was in excess of the threshold for a commercial quantity - 100 plants or 25 kilograms.
11You used the alias Nam Nguyen in dealing with several authorities and organisations. The records of VicRoads contain your photo in application for your licence in your name in January 2017 and in another application for a licence in the alias name in April and August 2019. You have then fraudulently utilised that identity in relation to the registrations and associated documentation located within the house and in the vehicles found on the property. These included:
i.An OPTUS SIM Card Package found in the SUV registered to a phone number ending '877'. That phone number was written on a tax invoice found in the SUV for a remittance service forwarding money to Vietnam in your name;
ii.A driver's licence letter addressed to the alias located in the SUV;
iii.Several Telstra invoices addressed to that alias for internet services at the property both inside the SUV and at the house;
iv.A VicRoads Registration and Roadworthy Certificate for the sedan addressed to that alias was located in the sedan;
v.Relevant papers and registration for a Jack Russell Terrier dog were addressed to that alias and located at the property, as was the corresponding microchip and dog tags detailed in that documentation relating to the dog;
12You later voluntarily provided police with a sample of your DNA and fingerprints - a fingerprint lifted from the whiskey bottle located in the house matched your left ring finger. Additionally, your DNA was located on items found in or around the property, including on a coke can, a latex glove located next to cannabis, and the red cap found by police in the paddock at the rear of the property.
13Each of these items suggested that you resided or operated at the address and would have had knowledge of the cannabis cultivation.
14You are currently aged 47 years and are a Vietnamese national. You arrived in Australia in 2016 on a Tourist Visa which had a limited valid existence. Once the visa had expired, you chose to remain in Australia and worked in any form of unqualified work available. With COVID and the change in circumstances, you were both unemployed and unemployable. The opportunity in respect of this property and cannabis arose, and I was informed that you viewed that this was the only method available to you to raise sufficient funds to maintain funds to support your family in Vietnam. You have a wife and three children.
15You have pleaded guilty to these matters and, although it was not at the earliest opportunity, you receive some benefit for doing so. There is a utilitarian benefit in the plea, particularly given the COVID situation, and the impact that has had on the court and the administration of justice in this State. Your plea has facilitated the course of justice and is illustrative of your acceptance of responsibility for this offending. The Crown case was circumstantial and would have required a number of witnesses, including various experts to give evidence in proof of its case - and no witnesses were required to give evidence. Your plea is consistent with remorse.
16I was informed by your counsel these allegations were not ever to put to you by police. You were arrested for unrelated matters to which you pleaded guilty at the Sunshine Magistrates Court on 15 July 2021, namely fail to answer bail, three charges of possession of drug of dependence, and dealing in property suspected of being proceeds of crime. You were convicted and fined in respect of those matters. You have no prior convictions. You have been in custody since 17 November 2020 and that period on remand is attributable to the matter before me. You are likely to be deported on your release from custody.
17Your offending involved amounts well over the threshold either by plant or weight. There was a level of security at the property with dogs and the threatened use of weapons. As is not unusual in operations of this nature, an electrical bypass had been set up. The prosecution accepted that your role in respect of the crop was that of a sitter and that the period of time that you were involved was relatively limited. Despite the use of an alias in respect of some dealings related to the property, the prosecution were not in any position to dispute the role played by you as being greater than what is commonly called a sitter.
18I take into account the situation concerning COVID-19, insofar as it has and still continues to impact on conditions in custody. Further, you have had little contact with your family who remain in Vietnam, making custody more onerous for you.
19General deterrence is a sentencing consideration for serious drug offences. The message must be that whoever is involved in drugs or cultivation of a substantial amount of cannabis in whatever role must be punished for that involvement. Denunciation and just punishment are also important. Specific deterrence has a lesser role to play, given your lack of prior history. Your counsel relied on the period of pre-sentence detention, your plea of guilty, co-operation, and the Covid situation in custody in mitigation.
20Your counsel submitted that the sentence I impose should recognise time served by you as pre-sentence detention and that your release should be imminent. The prosecution submitted that a head sentence of greater duration should be imposed.
21In respect of cultivation of a narcotic plant in a commercial quantity, you are convicted and sentenced to a term of imprisonment of three years with a non-parole period of 15 months.
22The other ancillary orders, Mr Cordy, what were they?
23MR CORDY: It was a disposal order, Your Honour, for the items found.
24HER HONOUR: Yes, I will have that - I will find that order today as well. I have just noticed something though, where is Mr Nikakis?
25MR CORDY: Yes, he is not there, Your Honour, and I apologise, I confess I had not noticed he was not there either.
26HER HONOUR: Well, he did not ask me to be excused. I did realise that halfway through reading these remarks that I decided not to stop.
27MR CORDY: Yes. Perhaps if Your Honour just stands down for a moment, I will see if I can establish contact with him, see what he wants to do.
28HER HONOUR: Yes. Look, Mr Cordy, I am not at the court at the moment, I am about 10 minutes away. I will be back in 10 minutes.
29MR CORDY: Thank you, Your Honour.
30HER HONOUR: And we will start the (indistinct), then we can work out what we are going to do.
31MR CORDY: As Your Honour please.
32HER HONOUR: If we can keep the link to the prison though, that would be wise, I think. Thank you.
33(Short adjournment.)
34HER HONOUR: Mr Nikakis?
35MR NIKAKIS: Thank you, Your Honour. I apologise for not being present before, but I have a link for this sentence to take place on 22 March.
36HER HONOUR: Well, that must have been made by my staff. I apologise for that. I thought I said 22 February.
37MR NIKAKIS: I appreciate Your Honour did make date in February. Very shortly thereafter, from my recollection, it got adjourned administratively to another date in March, and then supposedly onto 22 March, and that is where I ‑ ‑ ‑
38HER HONOUR: Well, it does not matter. I can get a copy of the sentencing remarks to you. I can get them emailed to you immediately.
39MR NIKAKIS: I wanted to make apropos of the Crown submission in relation to the sentence aspect and how they saw it, that is a maximum and a minimum. The practicalities of a maximum and a minimum in ‑ ‑ ‑
40HER HONOUR: Mr Nikakis, that submission was made before me the other day. I specifically asked Mr Cordy ‑ ‑ ‑
41MR NIKAKIS: Yes, that is right.
42HER HONOUR: ‑ ‑ ‑ and back to me and indicated to me that the Crown position was I would not be falling into error if I imposed a non-parole period as you had submitted. You had an opportunity then, Mr Nikakis, to make the submissions that you want to make now.
43MR NIKAKIS: Well, the only point that I am making, Your Honour, is that a maximum and minimum means until the immigration department get to see my client - he remains where he is.
44HER HONOUR: Yes.
45MR NIKAKIS: He will be deported, there is no arguments about that. And that might take, from experience, we think two or three months. If, however, he had a straight sentence and finished, they would do it within 24 hours, but anyway.
46HER HONOUR: Well, Mr Nikakis, you were in the position to tell me that when I sentenced your client when we heard the plea the other day. So, are you able to receive the email now with the sentence?
47MR NIKAKIS: I can receive the email now. I understand that the PSD has not been declared but ‑ ‑ ‑
48HER HONOUR: No. Well, that was one of the reasons why I asked where you were.
49MR NIKAKIS: Yes.
50HER HONOUR: Because I wanted to ensure that the parties agreed on the pre-sentence detention. Mr Cordy?
51MR CORDY: Your Honour, I calculate the pre-sentence detention as 462.
52HER HONOUR: Do you agree with that, Mr Nikakis?
53MR NIKAKIS: Yes, Your Honour.
54HER HONOUR: All right. Pre-sentence detention is declared at 462 days.
55MR CORDY: Six AAA is the other matter.
56HER HONOUR: Yes. Pursuant to s6AAA, if you had not pleaded guilty to this matter, I would have imposed a sentence of four years with a non-parole period of two.
57MR CORDY: As Your Honour pleases.
58HER HONOUR: Anything else, Mr Cordy? Or Mr Nikakis?
59MR CORDY: Not from the Crown's perspective, Your Honour.
60HER HONOUR: All right, thank you.
61MR NIKAKIS: No, Your Honour.
62HER HONOUR: Thank you.
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