Director of Public Prosecutions v Nguyen

[2021] VCC 311

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01101

DIRECTOR OF PUBLIC PROSECUTIONS

v

BOSS NGUYEN

---

JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 March 2021
CASE MAY BE CITED AS:	DPP v NGUYEN
MEDIUM NEUTRAL CITATION:	[2021] VCC 311

REASONS FOR SENTENCE

---

Subject:

Catchwords:         Cultivation of a narcotic plant in a commercial quantity – theft – remorse                

- General deterrence

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Teo
For the Accused	Mr M. Reardon

HIS HONOUR:

1Boss Tan Nguyen, you have pleaded guilty to an indictment which contained one charge of cultivation of a narcotic plant in a commercial quantity and one charge of theft.

2The circumstances of your offending were outlined in a prosecution opening tendered upon your plea and exhibited.  This contained agreed facts and confirmed your acceptance of the elements of the offence and the factual basis on which you will be sentenced.  I will summarise your offending on the basis of this document.

3At the time of the offences, you were 50 years of age and lived in Wollert.  On 23 April 2020, at about 7.40 am, police attended at your address and executed a search warrant.  You opened the door only after a police ram was used unsuccessfully in an attempt to force entry into the premises via the front door.  The police immediately smelled the strong smell of what they believed to be a narcotic plant and observed hanging sheets in the hallway and the installation of a large electrical cable.

4During the internal search of the address, police found three rooms which contained a hydroponic cannabis crop, with large cannabis plants in black pots, with lamps attached to the ceiling.  You were placed under arrest.  Police videoed you with your permission, as well as your premises and you were compliant with answering questions.  You stated that there were 36 plants inside the premises and made full admission to cultivating cannabis for the purpose of selling it to make money.

5The police found 11 plants weighing 43 kilograms in the first room, 12 plants weighing 44.6 kilograms in the second room and 13 plants weighing 28.8 kilograms in the third room.  In total, as you initially had admitted, there were 36 plants, with a total weight of 116.4 kilograms and the age of these plants was approximately between seven and 16 weeks.

6Photographs of the scene were taken, items were seized and subsequently analysed by the Victoria police forensic service department and determined to be Cannabis L.  At that stage, an electrical inspector attended at the premises, following a request from police.  An illegal bypass was located and removed from the wall of the front bedroom.  The prosecution conceded you did not install this.

7The equipment used to grow the cannabis plants, such as lamps, ballasts, exhaust fans and water pumps were unlawfully connected to timing devices on a switchboard set for 12 hours of operation per day, making a total electricity usage of approximately 300 kilowatt hours per day.  The losses in relation to the theft of electricity were estimated to be some $7,589.84, but it was conceded by the prosecution the exact amount of value of the electricity stolen is unknown.  As a result of your criminal conduct, the property was significantly damaged.  The owner incurred a total of $14,674.79 in losses to repair the house.

8The first committal mention in this matter was adjourned for further discussions related to the charge of criminal damage.  However, the matter was resolved on 22 October 2020 and you pleaded guilty to the current charges on 17 November 2020 at a directions hearing.  I consider that this was a plea at your earliest opportunity.

9That plea of guilty will reduce your sentence.  I accept that it has utilitarian value of having avoided a criminal trial with its attendant costs and difficulties.  I accept that you were cooperative with the authorities and have accepted responsibility for your criminal conduct, in order to facilitate the course of justice.

10Remorse is often difficult to assess, but I accept that both your plea and your cooperation are some evidence that there is a recognition of your wrongdoing, which you accept and that there should be an appropriate measure of punishment.  You have also expressed remorse to your daughter, which I accept is further indication that your plea is reflective of remorse.

11The cultivation of cannabis in a commercial quantity is a serious criminal offence.  Cannabis is a narcotic plant with mind altering qualities which are undeniable and damaging, particularly to young users.  It carries a maximum penalty of 25 years' imprisonment, primarily by way of its quantitative measure.  That is, its commercial nature, derived from its weight, 25 kilograms or over, or 100 plants or more.  Here the plants were 36 in number, but they bore a weight of 116.4 kilograms.

12The theft was related to the electricity stolen to power this enterprise.  That carries a maximum penalty of 10 years.  By these maxima, the Parliament has indicated the seriousness and the gravity of this offending.  They are a yardstick from which to begin a consideration of the appropriate proportional sentence to be imposed.

13I note that the provisions of s.5(2)(H) of the Sentencing Act apply to this sentencing process. Under this provision, a court must make a custodial order under division 2 of part 3, unless satisfied as to the circumstances contained in s.5(2)(H)(a) to (e). It was not argued that these arose here.

14I note also that there was no victim impact statement provided in respect to the owner of the property at Wollert, due to ill health of that person.  However, I can readily and reasonably infer your activities at her property caused not only the expense of repair to the property outlined, but also inconvenience and upset.  I take this into account.

15Your Honour role in this enterprise was the subject of some discussion.  As I said earlier, it was not disputed that you did not personally install the electric bypass.  However, the hydroponic setup, as described, was a sophisticated operation.  Whether you installed these systems yourself, what I do find is that you had a greater role than a mere crop sitter.  The rental of the property involved you.  You provided a false name.

16There was no evidence that you were doing this for someone, or on behalf of someone else.  You set it up for yourself and were to be a beneficiary, as you described it to the police, of your intention to harvest and sell the crop in order to benefit financially.  Your actions are consistent with that of an owner and the works may well have been done at your behest.  Although your interview contains the difficulties attendant upon it, having been conducted without a translator, nevertheless your intent appears to be expressed clearly enough.

17It is also clear, because of the growth period involved in the age of the plants when found, that your involvement is properly contained in the in-between dates on the indictment.  This suggests the involvement of others prior to your involvement and so in my view, I should view you properly as one of multiple hands who had an involvement in this enterprise as an equal partner with expectations at least of sharing in financial returns to be obtained.

18I take your personal circumstances into account.  You are 50 years of age and you have worked mainly as a truck driver.  You were born in Vietnam and you arrived in Australia in 1985.  The history of your arrival here is dramatic.  You were only 14 when people smugglers effectively kidnapped you and a sibling to avoid exposure and detection.  You were taken to Malaysia and put in a refugee camp until you were granted asylum in Australia.  When you arrived in Melbourne, you were placed in a Vietnamese family in public housing in Collingwood until the age of 18.  You became an Australian citizen in 1989.

19You were the youngest of seven children.  Your father owned an ice-cream company in Vietnam and he was sent to a so-called re-education camp for some years.  You did not see him from age five until age 21 in 1991, when you assisted your parents and siblings to move to Australia, where they still live.  Your mother was a home maker, who passed away in 2017.

20You married in 1999 and in 2005 you moved to Sydney with your wife.  You have had two daughters, aged 21 and 11, from that relationship.  Then in 2016, you returned to Melbourne, due to your mother's illness.  By this time, your marriage had effectively broken up earlier in 2013 and you were in receipt of Centrelink benefits for a while, from 2013 to 2015.  However, having studied until Year 11 at school, you then proceeded to have a good work history, firstly working at the Ford factory, then in the clothing business which the family ran, as a delivery driver, until you moved to Sydney.  Your wife had bought a grocery store in Fairfield, but eventually that was sold in 2015.

21Once you arrived back in Melbourne, you got a bank loan and bought a prime mover and obtained work with a logistics company.  For two years you owned the truck, paid down debt and supported your family in Sydney.  At this stage, gambling became a problem for you and by 2018, you were unable to repay the loan for the truck and the financing bank sold it at auction.  Therefore, you lost your asset and your work.  It was not until 2019 that you found the motivation to return to work at the food market in Thomastown.

22Upon your plea, it was put that others asked you to be involved in the cultivation on the initial offer of a trip overseas.  You told police you had debts of some $20,000, which you needed to fund.  The trip to Vietnam was in February 2020 and your involvement spans the period when you returned between 28 February to 23 April 2020.

23From 1989 to 1999 for that 10 year period you had an addiction to heroin, which you did overcome with your then wife's support.  You have not used the drug since that time.  I note that very recently a number of drug tests results were provided to the court, dated May 2020, as well as June, August, November 2020 and February 2021, showing negative results for a large number of drugs.

24You have prior criminal history, which I take into consideration when assessing your prospects of rehabilitation and need for specific deterrence.  You have relevant priors in Victoria of 1992, when you were fined for possession of heroin and 2016, when you were fined for criminal damage.  You also have priors in New South Wales.  You were fined for assault in 2005.  In 2010 at the Yass local court you were fined and placed on a bond for possession of a prohibited drug, driving under the influence of drugs, possession of equipment for administering a prohibited drug and negligent driving.

25In 2013 you were fined for destroying property, having an offence weapon in public, in contravention of an AVO.  You breached the bond imposed.  The Paramatta district court convicted you on a contravention of an AVO and assault and this was dealt with by way of a short sentence.  In September of 2013 for assault, you received six months' imprisonment.

26Most of these priors are dated after your heroin addiction, but clearly during a time when your life spun out of control.  It was submitted that these priors are of limited relevance.  It was argued that although this will not be your first custodial sentence, your priors do not contain conviction for trafficking or cultivation.

27This is correct.  However, it is clear that you have had a history of engagement in behaviour which brought you into the criminal justice system.  Your prior in 2010 occurred as a result of a year of methylamphetamine use and this involvement with offending does raise, in my view, the relevance of specific deterrence to some extent, although not primary.

28At age 50, the process of denunciation and punishment has relevant work to do in order to specifically deter you from similar future criminal endeavours.  However, I accept that this relevant sentencing consideration, just like community protection, is minimal.

29General deterrence, however, is very relevant and a primary focus for the sentence.  In my view, your prospects of rehabilitation are reasonable and the sentence should reflect a proportionate response to the criminality involved and I take these circumstances and background and antecedents into account.

30There are other aspects of your circumstances which require special attention.  You suffer from psoriasis, Type 2 diabetes and hepatitis.  The psoriasis had been treated by phototherapy, which had been effective in managing the symptoms.  This treatment has been unavailable to you in prison during your remand.  The psoriasis has had a number of episodes of exacerbation, increased spread, infected wound sites and discontinued treatment due to the hepatitis.  Psoriasis can be a troubling and difficult condition, in an environment like prison and can render life difficult.  I accept this will increase your burden during your reclusion.

31I was shown a report from the dermatology clinic at St Vincent's Hospital, written to the medical officer at Ravenhall dated February 2021.  It reflects on your chronic plaque psoriasis.  It describes treatment options and attempts at therapies.  The immunosuppression screen shows you are still hepatitis B and C positive, for which you are medicated.  The psoriasis is described as in severe flare on trunks and legs.  Dr Barter who wrote the report then outlines a possible treatment pathway.  I have also seen the referral letter from Ravenhall in relation to these conditions and I take your health situation into account.

32During your remand, you have attended vocational programs as and when they have been available.  You have completed a construction induction card and courses in first aid and traffic management.  Such efforts are to your credit.  This, of course, took place during a period of significant changes during which COVID-19 pandemic imposed on correctional authorities.  Not only does your plea of guilty during this period have the added value, due to the impact of the pandemic, but your remand was also significantly affected by it.

33You served that initial quarantine isolation measures for 14 days and programs and contact were significantly impacted and I take this impact into account.  I take into account also the support which your family has committed and communicated to the court by way of a letter from your daughter Vivienne dated 14 February 2021.  She is your oldest daughter and she writes of being a third year nursing student at Western Sydney University.  She refers to the video conference which, together with her younger sister Vienna, they have been able to hold with you once a week, apart from other phone calls that you regularly make.  She writes of your regret and that you are sorry for your offences.  You aspire to return to normal life in the community and work and to return to family life and I take this into account.

34I intend to impose a sentence of substantial concurrency.  However, some measure of cumulation is appropriate in recognition of the discrete offence committed to steal the electricity required.

35In relation to Count 1 of cultivation of a narcotic plant in a commercial quantity, you are convicted and sentenced to three years and three months' imprisonment.

36In relation to Count 2 of theft, you are convicted and sentenced to nine months' imprisonment.  I order that three months on Count 2 be cumulative on Count 1, making a total effective sentence of three years and six months.

37I order that you not be eligible for parole for two years and three months.  I declare that you have spent 333 days by way of presentence detention, excluding today and will note that number in the records of the court.  But for your plea, your sentence would have been four years and six months, with a non-parole period of three years.  Mr Teo, I don't recollect whether there are ancillary orders, but I don't think that there are, am I right?

38MR TEO:  Your Honour, I'll just double check that.  A compensation order was originally sought, but not pursued and my understanding was that the materials had already been destroyed, so a disposal order or forfeiture order were not required.

39HIS HONOUR:  Right.  Yes, my associate confirms that.

40MR TEO:  I will ‑ ‑ ‑

41HIS HONOUR:  My associate confirms that we haven't received any ancillary orders.  So I doubt whether they actually need to be made.  All right.  Now, I don't know, Mr Reardon, whether you wish to consult with your client while you have him online, as well as the interpreter, but unless there's anything else, I can leave you in the lobby, as it were, with them, if you do wish that opportunity.  If not, then I'll simply adjourn.

42MR REARDON:  Yes Your Honour, perhaps if I may speak briefly with Mr Nguyen, but I don't have any matters to raise in the court.

43HIS HONOUR:  Yes.  Yes, thank you.  All right, thank you Ms Tran and thank you gentlemen.

44MR TEO:  Thank you Your Honour.

45HIS HONOUR:  I have another matter to proceed with at 10.30.  I'll stand down.

‑ ‑ ‑