Director of Public Prosecutions v Nguyen

[2020] VCC 972

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00567

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUONG NGUYEN

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2020
DATE OF SENTENCE:	1 July 2020
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2020] VCC 972

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Sargent	Office of Public Prosecutions
For the Accused	Mr C. Nikakis	Haines & Polites

HIS HONOUR:

1Duong Nguyen, you are to be sentenced for one charge of cultivating cannabis in a commercial quantity. The maximum sentence is 25 years' imprisonment. In addition, s.5(2H) of the Sentencing Act requires, in the circumstances of your case, that I impose an immediately served sentence of imprisonment. 

2You have pleaded guilty before me on 26 June.  When interviewed by police on 15 January 2013, you fully admitted the offence and your role.  The committal went by hand up brief in April of this year, after which you entered a plea of guilty.  The matter was then listed for plea hearing in this court, less than six months after your offence. 

3You receive the benefit of your plea of guilty and that high level of cooperation, both from an early stage.  You have facilitated the interest of justice and accepted responsibility.  Your plea and cooperation is consistent with remorse.

4At your plea hearing, also on 26 June, Ms Sargent, for the Crown, tendered a written Crown opening.  Mr Nikakis, for you, tendered certificates related to rehabilitation programs you have undertaken in remand custody.  Both counsel provided a written outline of plea submissions.

5The circumstances of the offence are set out in the tendered Crown summary, which is Exhibit A. My own description may be short.  On 15 January 2020, police raided a house at 226 Bayswater Road in Bayswater.  You were arrested there, connected to what can be called a typical hydroponic cannabis house crop.  In six rooms, the crop ranged from seedlings to mature flowering plants.  In total, there were 165 plants weighing almost 70 kilograms.  The legislative commercial quantity threshold are 100 plants or 25 kilograms.  Police located fertiliser, potting mix, pots and false partition walls throughout the property.  In police interview, you admitted the role of going to the house or three times per week over three weeks prior to water the plants.  You were paid, you said, $100 cash each day.  You can be described as a crop sitter with low end involvement. 

6You are a 51-year-old man with no criminal history.  You came here from Vietnam on a student visa in December 2018.  You sought work to provide better for your family in Vietnam.  You are married with three children, now aged from 15 to 26.  You applied for a further visa and were placed on a bridging visa.  You worked here as a handyman and in a butcher's shop.  You were poorly paid.  I accept that you were not atypically vulnerable to recruitment to this offending. 

7The visa has lapsed, and you are likely to be deported.   Mr Nikakis explained the likely alternatives upon reaching the end of this sentence,  or its minimum term.  You will be paroled into immigration custody if that assessment and decision to deport has been made;  or will await such assessment in Victorian Corrections custody.  Upon completion of the prison sentence, if that comes to be, you will be taken into immigration custody.  The present COVID-19 epidemic and its consequences bring about these uncertain alternatives and presently likely delay. 

8Deportation would or will not be the hardship for you as if you had, over time, established stability and dependence on that in Australia.  You no doubt wish to return to Vietnam and your family.  However, the uncertainty and possible delay Mr Nikakis describes has added and will continue to add to your burden of imprisonment. 

9Other now well-known consequences of the COVID-19 epidemic for those in custody are also relevant in this regard. 

10Your offence is serious, as reflected in the high maximum sentence and the provisions of s.5(2H) of the Sentencing Act.  Cultivation of cannabis provides high illegal profit.  Although at a low end, your role was important to the overall enterprise.  The illicit drug trade and use is seen to be a serious community problem. 

11The sentencing considerations and purposes of moral culpability, deterrence, particular general deterrence, the need to condemn and proportionately punish the offending are relevant.  As stated, there must be a sentence of imprisonment.  I should impose that and an appropriate minimum term; a sentence appropriate to all of the relevant sentencing considerations. 

12I take into account moderating factors which should affect the length of that sentence and minimum term.  They include the following.

(1).  Your plea of guilty and cooperation.

(2).   That you have no criminal history.   Although common to those recruited as you were, you are still entitled to the appropriate and balanced consideration of good character and your prospects for rehabilitation.

(3).   The circumstances of your offending and its role.

(4).  Your personal circumstances, which includes the added hardship of imprisonment earlier explained.  I also see you as more isolated in prison than many others. 

13These factors and some sympathy for your situation can be reflected in both head and your minimum term. 

14The question of uniformity of sentencing in respect of this offence was raised in exchange with counsel.  That was my term, not that of counsel.  It was my attempt, perhaps clumsy, to state the similarity of circumstances, both in terms of the offence and the offender, which very often exists in examples of this offence. You must still be sentenced individually to the circumstances of your case. 

15Having considered and weighed what I see to be the relevant matters, I sentence you as follows. You are sentenced to imprisonment for 20 months, I set a minimum term before eligibility for parole of 10 months. Under s.18 of the Sentencing Act, I declare 169 days of pre-sentence detention already served. 

16Under s.6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have imposed a sentence of three years' imprisonment, with a minimum term of 20 months.  There is a disposal order, is there not, Ms Sargent?

17MS SARGENT:  Yes, Your Honour, there is a disposal order sought.

18HIS HONOUR:  Yes, I will sign that now.  It relates to the plants and other matters, other items connected to the cultivation.  I am signing that now.

19MS SARGENT:  Yes, Your Honour.

20HIS HONOUR:  Is there anything else I need to do?

21MR NIKAKIS:  No, Your Honour.

22HIS HONOUR:  All right, good.

23MS SARGENT:  No, Your Honour.

24HIS HONOUR:  Thank you both for your assistance the other day and today.  I am now going to stand the matter down, which means I will turn you off.

25MR NIKAKIS:  Thank you, Your Honour. 

26HIS HONOUR:  All right, good. 

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