Director of Public Prosecutions v Nguyen

[2020] VCC 1914

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00757

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINH NGUYEN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2020
DATE OF SENTENCE:	2 December 2020
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2020] VCC 1914

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Fraser	Office of Public Prosecutions
For the Accused	Mr P. Casey	Willocks Lawyers

HIS HONOUR:

1Vinh Van Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant in not less than a commercial quantity. That crime carries a maximum penalty of 25 years' imprisonment.

2You are 26 years of age.  You have no prior convictions and, as I understand it, not matters pending.  You pleaded guilty at an early time and your plea of guilty is given in circumstances where your record of interview contained admissions which have certainly assisted the Crown case to a significant degree.  I accept in your situation there is at least now appropriate remorse, perhaps because of what you have done to your family. In any event, you must also get the utilitarian benefit of that plea of guilty.

3A co-accused, a Mr Hien Tanh Nguyen, was sentenced by me back in March 2020 for the same offending and was given a straight sentence of 18 months.  In these circumstances of potential deportation it is a far simpler solution than trying to give head sentences and minimum terms. He was sentenced pre-COVID.  You are obviously being sentenced post-COVID, and I have raised that in open court.  A matter which does not make a great deal of difference but is a difference between you.  The other differences I will come to in a moment.

4A summary of the offending was that the co-accused had been seen at premises in Cyprus Court in Drouin.  Registration checks were carried out and on 4 September 2019 at approximately 1.10 in the afternoon, a motor vehicle was seen at those premises where rubbish bins were being wheeled in and out and that male has been identified as you.

5At 1.34 pm on that day police raided the premises.  A sophisticated and elaborate hydroponics set-up was found throughout the house and was being used to cultivate cannabis.  Your co-accused was found walking out of a room upstairs and you also were found upstairs, standing on the toilet with your arms in the air.  As I understand, and I have now been told just actually within the Crown opening, your DNA was found on a toothbrush both downstairs and upstairs.

6In any event, various items were found on the co-accused and the search of the premises revealed the following:  that there were on both floors a total of 176 cannabis plants with a total weight of 170 kilograms.  You have pleaded guilty to commercial quantity.  In your situation I will work, I think, off the numbers rather than the weight because I suspect that you have no idea of the weight of those plants.  A commercial quantity, of course, is 100 plants.

7You, in an interview, endeavoured to minimalize your involvement but as I have already indicated, you did admit that you had been at the property a total of
11 times over a period of about a month, that you had in fact stayed there.  You said that you were only watering the baby plants and putting the bins in and out, and that may well be true.  I do not know.  I sentenced your co-accused as a sitter and I sentence you as a sitter as well.  It was put to me that the co-accused had the expertise, and again, that may well be so.

8In any event, you were then remanded in custody and stayed there for 260 days, which you now have as pre-sentence detention.

9In simple terms, that is what the case is all about and the Crown's submission is that a combination sentence would be outside the range, and I think that is correct, and in this situation it is common ground that a straight sentence is the easiest way of dealing with it.  For the reasons I have already indicated, I think you are in a better position than your co-accused and I will now simply outline why.

10The offending itself has to be regarded as serious.  It carries a very significant maximum penalty.  Of course the application of general deterrence in these circumstances is quite common to find in country towns that these set-ups are used or almost always with crop sitters with no prior convictions and going effectively under the radar.  I have yet to see one, in Gippsland at least, where the sitters have tipped in the real operative and sitters have to understand that if you do it you are going to get a significant sentence of imprisonment.  Obviously there has to be an element of denunciation and there must be an appropriate punishment.  There is no other option than gaol and I simply proceed on that basis.

11Tendered on your behalf was a reference from your wife, which in quite moving terms, describes your value to her, value to your family unit, and I will come back to that again in a moment.

12Your history is that you came to Australia from Vietnam in January 2014, on a student visa.  You did not complete the course but after that did farm work and as your counsel has pointed out, you have a very good work record, albeit probably in breach of your visa. In any event, you worked on chicken farms and you worked as a boner and in 2017 you were working in Bendigo after you had ceased working in Springvale.  Around that time you were working full time on 12 hour shifts and were spending three hours a day travelling to and from St Albans to Bendigo.

13Your student visa had expired in 2016 and I do not need to go into a history of all that but, in any event, whilst you were appealing a revocation of that visa you met your current partner, Van Dinh, and the two of you were married.  She is also Vietnamese but is an Australian citizen.  She has been here for 10 years and had previously been married and had a six year old son from that marriage.  That child subsequent to her partner leaving her, has been diagnosed with autism and you were fully aware of that and it is quite clear from her reference on your behalf that you were very, very supportive in that regard.

14The family receives a National Disability Insurance Scheme funding for that boy to go to a special school.  I have got no doubt in these circumstances where you had formed a family unit, that your being in custody will weigh more heavily upon you because of what you have effectively done to that family unit.  Whilst you were in custody a child was born of the relationship and again that child will have to spend the next period of time without its father.  They are matters which will weigh heavily upon you.  It was suggested that that might give rise to exceptional circumstances but as I indicated to your counsel, I think the real problem for you will be the effect of deportation, and I am not able to take that into account in terms of determining whether mercy should be extended to you because of the hardship to your family.  As I indicated, I do not think it reaches that threshold.

15In any event, after you were ultimately bailed back in May of this year, you were able to obtain work.  You kept working and I take into account that you now know that your partner will no longer have the wages that you were able to earn.  You have claimed that the visits you were making to those premises and insofar as the cultivation was concerned, that you would be paid between 150 and $200 a visit.  you claim that you had been paid nothing.  Whether that is true or not I do not know.

16But in any event, you go back into custody, as is inevitable, leaving your partner, her six year old child and your own child to basically fend for themselves.

17Since your release on bail you have tested positive to COVID-19 and went through that experience, as I understand it from the material, though there is no actual medical material before me.  I accept it from the Bar table that you have passed that on to your partner and son and significant symptoms have been suffered by all.  You have been in isolation for periods of time during that.  After ultimately testing negative for COVID again you went back to work in
mid-September and continued to show that you do have a strong work ethic and a willingness to contribute.

18You will undergo the next period of time with the knowledge that there is a real chance you will be deported.  As I understand it, you need to show exceptional circumstances why you should not be, but that is a matter between you and the Department of Immigration, not a matter for myself.  Insofar as the co-accused is concerned it seems to me I could not realistically distinguish between your roles, because I will really never know.  I do understand or recall from the record of interview of the co-accused that he gave you a lesser role and be that as it may, the distinction between you is that he was going back to Vietnam leaving no dependents in this country.  So far as the deportation is concerned, you will have the fear of that deportation with dependents within the country.  I also take into account that he underwent his period of imprisonment with no dependents.  You are in a different set of circumstances.

19It is because of your family that I see that there is a difference between the two of you and I am going to give a moderate, if I can put it that way, effect to that.  It is clear that you have been doing your best while you were in gaol previously.  What can be done now I am not too sure but it is really going to be in the hands of yourself, your representatives and the Department of Immigration as to how all this ultimately ends up.  All I can do at this point in time is give you an appropriate sentence for what you did and in doing that I take into account that your prospects of rehabilitation should be good and the risk of you reoffending, on the material before me, should not be high.  Concepts of specific deterrence I do not think play such a large part in your particular set of circumstances. 

20In any event, taking all those matters into account, on the charge of cultivation of a commercial quantity, 14 months.

21I direct that 260 days be reckoned as having been served under this sentence, and in your particular situation, had you contested the matter and put the Crown to their test and caused the cost and inconvenience of a trial in all these circumstances, but for your plea of guilty I would have given you three with a two.

22COUNSEL:  As Your Honour pleases.

23HIS HONOUR:  Pursuant to s.6AAA.  I think I have got to actually say that.  Yes, I make the wife's - yes, because of what I said I will make the wife's reference Exhibit 2.

24All right, so there are no other orders I need to make?

25COUNSEL:  No, Your Honour.

26HIS HONOUR:  No, no, all right.  Thanks, gentlemen.

27COUNSEL:  Thank you, Your Honour.

28HIS HONOUR:  If you do not mind just keeping him here for a little bit so his lawyer can explain it to him in Vietnamese.  Thank you.

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