Director of Public Prosecutions v Nguyen

[2021] VCC 378

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-01635

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUNG VAN NGUYEN

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	24 March 2021
DATE OF SENTENCE:	31 March 2021
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2021] VCC 378

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:            Cultivation of narcotic plant commercial quantity - deal property suspected of being proceeds of crime

Legislation Cited:     Sentencing Act 1991

Cases Cited:            

Sentence:                 42 months’ imprisonment with 24-month non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions at hearing For the Director of Public Prosecutions at sentence	Mr D. Porceddu Ms V. Worrell	Office of Public Prosecutions
For the Accused	Mr A. Brand	Slades & Parsons Solicitors

HIS HONOUR:

1Hung Van Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant being a commercial quantity.  The maximum penalty for this offence is 25 years' imprisonment. 

2A commercial quantity is prescribed as being 100 plants or 25 kilograms.

3I note that this offence is what is known as a Category 2 offence, which means that I must impose a custodial sentence alone for this offence unless certain criteria apply, which do not in your case.

4You have also pleaded guilty to a transferred related summary charge of dealing with property suspected of being the proceeds of crime, being cash totalling $17,620.  The maximum penalty for this offence is 2 years' imprisonment.

5You are now aged 43, having been born on 28 August 1977, and you turned that age at the commencement of the offending in early August 2020. 

6You have an extensive criminal record, about which I will go into more detail shortly.

7You are a permanent resident and citizen of Australia, and at the time of the offending you resided in Keysborough and were also working as a delivery driver. 

8The detail of your offending is particularised in the tendered prosecution summary, Exhibit A.

9In essence, you have been charged in connection with Operation Sapphire, an investigation into the cultivation and trafficking of cannabis in suburban Melbourne.  Four properties were targeted for investigation in this cluster of offending, located in Springvale, Springvale South, Noble Park and Pakenham.

10There are two co-accused charged in connection with the offending: Duy Khan Phuong and Thanh Quang Nguyen. 

11Mr Phuong has a further committal mention listed on 1 April 2021 to allow for the production of DNA reports.  The prosecution case is that Mr Phuong is higher in the criminal hierarchy and is linked to several properties within the syndicate.

12Mr Thanh Nguyen has a plea pending on 27 May 2021 concerning one charge of cultivate a commercial quantity and possess proceeds of a crime. 

13The prosecution case against you, Mr Nguyen, is that you were responsible for cultivating cannabis located at a property in Greenway Drive, Pakenham.

14The circumstances of your offending are as follows. 

15At 5.08 am on 3 September 2020 search warrants were executed at the Pakenham address.  Upon gaining entry to the property, police observed that the house contained a sophisticated hydroponic set-up being utilised to cultivate cannabis.

16You were located in the front room which contained an inflatable mattress, hydroponic light shields, a light on a timer known by investigators to be used to give the impression to neighbours that the home is occupied, and a large hole in the wall where the electrical bypass was wired into the mains power supply.  You were arrested. 

17The set-up indicated that the home was virtually uninhabitable and only used for the purpose of cultivating cannabis, including numerous purpose-built temporary walls that had been constructed in order to create and to block off additional rooms for the cultivation of cannabis.  A hole had also been cut in the hallway of the home to allow access to the garage.  In total, five separate rooms were set up with a sophisticated hydroponic system which included:

a.    high powered transformers and lighting with shades set up above and below the plants to promote growth;

b.    electricity junction / timer control boxes;

c.    carbon filtration systems to dissipate the smell of cannabis;

d.    reticulated watering systems;

e.    windows and doors sealed up with block-out plastic for the retention of light.

18The police seized the following items found at the home:

a)    $1,120 in cash located in pants being worn by you;

b)    $16,500 in cash located in the glovebox of your car which was parked in the garage;

c)    135 Cannabis L plants weighing 44.04 kilograms located in Room 3;

d)    9 Cannabis L plants weighing 35.24 kilograms located in Room 5;

e)    8 Cannabis L plants weighing 21.14 kilograms located in Room 6;

f)     8 Cannabis L plants weighing 21.72 kilograms located in Room 8;

g)    12 Cannabis L plants weighing 41.38 kilograms located in Room 11;

h)    an electrical bypass removed from wall in Room 1;

i)     2 Coco Peat bags containing 2.48 kilograms of Cannabis L mixed with unidentifiable plant material which was located on the floor of the hallway which investigators allege is indicative of previous crops; and

j)     a black-coloured garbage bag containing 8.54 kilograms of Cannabis L located on the floor in Room 7.

19An electrical bypass was also discovered during the search of the property. 

20The total amount of Cannabis L seized from the home is as follows:

(a)172 Cannabis L plants weighing 163.52 kilograms;

(b)8.54 kilograms of Cannabis L;

(c)2.48 kilograms of Cannabis L mixed with other plant material which could not be identified.

21You were taken to the Pakenham Police Station for interview.  In your record of interview, you said that you remained at the property overnight from 6 pm and were required to trim the trees, and have done so for at least a month.

22I now turn to your personal circumstances. 

23You have a substantial criminal record which includes drug-related offences such as multiple offences for trafficking in heroin for which you have received several custodial dispositions dating back to 1997.  You also have priors for drug possession and dealing in proceeds of crime. 

24You are currently 43 years old.  You were born in South Vietnam, the third youngest of eight children in a stable family living in the countryside, working in agriculture.

25At age 14 your family emigrated to Australia.  You spoke no English, struggled at school and developed poor reading and writing ability.  You felt isolated and left school by age 15. 

26At age 15 you were introduced to heroin and rapidly developed an addiction.  At age 18 you were before the court charged with trafficking heroin and received a corrections order, and have subsequently appeared on numerous occasions with offending mostly connected to your drug addiction.  This was a pattern that was repeated for many years.

27You have made many attempts to stop using heroin and sought rehabilitation services over the period from 1995 to 2007 attending various rehabilitation services including Windana detox, outpatient support programs and community-based order counselling.

28You have received terms of imprisonment on occasions and in 2007 were placed on a drug treatment order to address the issues facing long-term drug addiction and recidivist behaviour.  Whilst there were some breaches, you ultimately completed the program, ceased drug use and have not reoffended since 2008.

29Since 2006 you have maintained a stable personal relationship with your current partner.  You have four children: a daughter aged 13, twin daughters aged 12 and a son aged 8.  Your partner has described your children as happy, stable, well-behaved and intelligent.  The three girls are now at secondary school on academic scholarships. 

30Your partner has described you as a very kind, caring and loving father for whom no task is ever too much.  She also says that you have never disrespected her, consistently set a good example to the children and in how you treat her.

31She also describes how you broke the cycle of drug use after 2008, worked very hard to remain drug-free and demonstrated great perseverance in developing a consistent employment history.

32Your partner's parents have also provided evidence of your successful efforts to address your addiction issues as well as your determination to work very hard and endure long hours in the support of your family.  They also refer to your calm, supportive and respectful personality and commitment to the care of your four children.

33Such is the shock of your current circumstances in the context of your normal family life that your partner cannot bring herself to explain to the children where you now are.

34Since 2008 you have done what you can to be employable, obtaining certificates to enhance your prospects.  You were first able to obtain various short-term unskilled jobs and since 2015 have been employed with a national Australian supply company.

35The human resources manager for that company is aware of the fact that you have been held in custody in relation to drug charges and has described that as out of character and that your reputation with the company is as a decent, hardworking and trustworthy person.

36Your offending in the current circumstances followed the unexpected and sudden death of your brother-in-law in December 2019 and the impact of the COVID pandemic on your employment.  Overtime hours ceased and your employment was constantly under threat, leading to financial pressure and the deterioration of your health.

37Your offending is objectively very serious.  The cannabis operation at the house was sophisticated and capable of producing significant quantities of the drug.  Whilst there is no evidence that you established the operation, you played an important role by your presence together with some crop maintenance.

38General deterrence is an important consideration for the offence of cultivating a commercial quantity of cannabis as an example for those similarly inclined to operate at this level.  Whilst moderated by your commendable success in drug rehabilitation in the past, specific deterrence also remains important considering your previous drug history and unfortunate relapse.

39In mitigation I accept the following: 

·     your plea of guilty and the early time that it was made for its utilitarian effect and as some evidence of remorse;

·     the more onerous conditions in custody you have already experienced and will likely continue to experience at least for the immediate future due to the COVID-19 pandemic;

·     your history of drug addiction, insight into the destructive nature of that addiction and the commendable efforts that you have previously made in an attempt to rehabilitate yourself - this is reflected in the absence of further offending over the past 12 years;

·     your initiative and perseverance in developing structure to enhance your prospects of employment and the reliability you have shown in maintaining a very good work history over the past 12 years;  

·     the positive aspects of your character and commitment to your family as evidenced by the references provided; and

·     the support and love that you have from your family which will enhance your prospects of rehabilitation which, despite the current relapse, remain reasonable.

40Mr Nguyen, I will now deliver your sentence. 

41On Charge 1, cultivation of a narcotic plant in a commercial quantity, you are convicted and sentenced to three years and six months' imprisonment.

42On summary Charge 5, dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to three months' imprisonment. 

43The total effective sentence is three years and six months' imprisonment. 

44I direct that you serve a minimum period of two years' imprisonment before being eligible for parole.

45Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 209 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

46For the purposes of s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is a term of imprisonment of five years with a non-parole period of four years.

47At the plea hearing the Crown sought an order for the forfeiture of the cash located at the property which you did not oppose, and I have made that order today. 

48That concludes my sentencing remarks.  Are there any other matters from either counsel?

49MS WORRELL:  No, Your Honour.

50MR BRAND:  No, Your Honour.

51HIS HONOUR:  Thank you, the court will adjourn.

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