Director of Public Prosecutions v Nguyen
[2020] VCC 619
•15 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-19-02164
and CR-20-00012
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIEN THI NGUYEN and HUY HOANG NGUYEN |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 May 2020 | |
DATE OF SENTENCE: | 15 May 2020 | |
CASE MAY BE CITED AS: | DPP v Nguyen & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 619 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Cultivating a narcotic plant not less than commercial quantity – youthful offenders – admission
Legislation Cited: Sentencing Act 1991
Sentence: Ms Lien Thi Nguyen, I sentence you to 24 months’ imprisonment and fix the period of 15 months as a period which you must serve before you will be eligible for parole.
Mr Huy Hoang Nguyen, I sentence you to 12 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Teo | Solicitor for the Director of Public Prosecutions |
| For Accused Lien Nguyen For Accused Huy Nguyen | Ms A Liang Ms A. Frossynos Mr L. Hartnett Ms C. Lynch | Giorgianni & Liang Lawyers Papa Hughes Lawyers |
HIS HONOUR:
1 Lien Nguyen and Huy Nguyen, on 7 May 2020 you each pleaded guilty to one charge of cultivating a narcotic plant in not less than a commercial quantity.
2 In your case, Lien Nguyen, your charge was a between dates charge from 1 May 2019 to 8 July 2019, the dates being based on your admissions.
3 Huy Nguyen, your charge was limited to 8 July 2019, being the day the police executed a warrant at the house in Mountain Highway containing a cannabis crop and found you present with Ms Nguyen. You made no admissions in your record of interview.
4 The maximum penalty for cultivating a narcotic plant in not less than a commercial quantity is 25 years’ imprisonment.
5 Tendered as Exhibit A on the plea and read aloud in Court was the summary of prosecution opening. In the evening of 8 July 2019, police had the house at 996 Mountain Highway, Boronia under surveillance. At about 10.20pm, a red sedan was observed to enter the driveway of the property. Shortly thereafter police executed a warrant at the address. Police found you, Ms Nguyen, located in the laundry and during a search of the house located you, Mr Nguyen, in the roof space. You were both arrested. Police located five rooms in the house dedicated to growing cannabis as well as some dried cannabis located in the dining area and on the kitchen bench. A set of house keys and car keys belonging to the red sedan parked in the carport were located on the kitchen bench and a search of the vehicle located a black purse belonging to you, Ms Nguyen.
6 A respirator mask was located on the kitchen bench and it was submitted to DNA analysis and it was found that it was 100 billion times more likely that your DNA was on the mask, Mr Nguyen, than the DNA of someone randomly selected from the community. Ultimately 271 cannabis plants weighing a total of 91.16 kilograms was seized from the premises as well as some 62.7 grams of dried material.
7 Each of you were arrested and conveyed to the Croydon Police Station where you were interviewed under caution. You, Ms Nguyen, were interviewed first and made full admissions. You told the police:
·that the house had cannabis in it;
·you had worked in the house for a few months feeding the plants with fertiliser;
·you did not water the plants as the plants had an automatic watering system which was set up before you came into the house and you did not know how it worked;
·you were hired by your co-offender, Mr Nguyen;
·you attended the address every three days;
·you were paid $5,000 for every crop that was harvested and a crop would be harvested every seven to eight weeks; and
·your co-offender paid you on one occasion, but you did not know who gave him the money, a further payment was made to you by a man you met at the St Albans Market.
8 In respect to you, Mr Nguyen, you were interviewed under caution after Ms Nguyen. You told police:
·that you were located by the police in the roof space of the house;
·you did not know the address or suburb of the house;
·you had been sitting in the roof for some time;
·you were not doing anything at the house;
·you had come to check on a machine on the roof as the roof was leaking and that the day of your arrest was the first time that you had been to the house;
·you were paid $100 by a man in the St Albans Market by the name of Duong to fix the roof; and
·you knew your co‑offender, Lien Nguyen, but did not know about the cannabis plants in the house.
9 Ms Nguyen, you indicated an intention to plead guilty on 30 October 2019 at a committal mention. Accordingly, you must be taken to have entered your plea at the earliest opportunity and are entitled to the benefits that flow to you from that plea, being that it has utilitarian value and is some evidence of your remorse.
10 Mr Nguyen, you pleaded guilty at a contested committal hearing prior to any witnesses being called. Whilst your plea cannot be described as one made at the earliest opportunity, it was an early plea, and you too are entitled to the benefits that flow to you from that plea.
11 As at the date of your pleas, you had both spent 304 days by way of pre‑sentence detention.
12 Ms Nguyen, you are 24 years of age and were born in Vietnam. Your parents are retired, and you have two siblings, an older brother and an older sister. Your brother lives in Melbourne, whilst the rest of your family still reside in Vietnam. You were educated to Year 12 level and after leaving school, worked as a dishwasher in a restaurant in your hometown.
13 You came to Australia in February 2017 on a tourist visa. Your intention was to work to support your family financially. You have overstayed your visa and will be liable to deportation upon completion of your sentence.
14 Prior to your arrest, you were residing in shared accommodation in Cairnlea and worked in a nail salon in Keysborough.
15 Whilst you told police that you received $5,000 per crop, you instructed your counsel, Ms Liang, that you had only been paid once and that was in the amount of $3,000. At the time of payment, you were told that the balance would be paid at the next harvest. However, the contents of your record of interview would indicate that you received payment from both your co‑offender and another man who you met at the St Albans Market.
16 Your counsel relied upon the absence of aggravating circumstances that sometimes apply to persons found in your position. Firstly, there was no evidence that you had set up the crop or that you had any close relationship with the principals in this criminal enterprise. You were not involved in the sale of the cannabis, however, by your admission in your record of interview you were plainly well paid for your services.
17 You have no prior criminal record, nor do you have any pending matters. You are only 24 years of age and accordingly are a youthful offender. You made full admissions in your record of interview. Indeed, if it were not for your admissions, like Mr Nguyen, you would be facing a one-day cultivation charge. Accordingly, you must be given a substantial discount for the admissions that you did make to the police.
18 Whilst in custody you have been subject to the restrictive conditions imposed on prisoners because of the COVID‑19 virus and I must take this into account.
19 You have used your time in custody fruitfully, you have engaged in English classes twice a week and you work in the kitchen. In addition, you have undertaken other courses whilst in custody and certificates in respect of those courses form Exhibit 2 on the plea.
20 Mr Nguyen, you are 24 years of age and have no criminal history. Like your co‑offender, you were born in Vietnam and completed high school there. At the age of 18 you came to Melbourne on a student visa and studied English. Your visa restrictions limited you to two days’ work per week and you relied heavily on your parents for financial support. Your parents were hardworking and relatively well off. However, their seafood business was decimated by a serious pollution incident in 2016 that ruined your family financially. Thereafter your family were unable to provide any further support to you subsequent to 2016. In 2017 you met your current partner and there is a child of that relationship, a daughter born on 20 September 2019, whilst you were on remand for this offending. Apart from your partner and child, you have no other family in Australia.
21 Mr Harnett of Counsel who appeared on your behalf, submitted that you are to be sentenced for your role as a “crop sitter”. He further submitted that the gravity of your offending should be assessed at the lower end and he put, presumably on instructions and or based on your record of interview, that you were to be paid a modest amount to perform any maintenance required at the property and that you did not derive any benefit from the harvest or sale of the cannabis.
22 Ultimately your position is quite different to your co‑offender in that you were simply found in the roof cavity of the house at the time that the police executed a warrant on 8 July 2019. Apart from your DNA on a respirator or mask, there is no other evidentiary material in respect of you. There is a void or absence of evidence in respect of your role in connection with the cannabis crop found in the Mountain Highway house. Accordingly, you must be sentenced at the lower end of the range for a crop sitter.
23 Like your co‑offender, you time in custody has been made difficult by the restrictions placed on you as a result of the COVID‑19 pandemic.
24 You are a young person and accordingly your rehabilitation must be fostered. Whilst in prison you have been working in the laundry and studying English and certificates in respect to clean urine analyses and courses which you have completed were to be provided at the end of the plea and have become Exhibit 5. Exhibit 4 was a reference from your partner, a letter from you and a letter from your parents. Your partner speaks of the difficulty of raising a child without you and that she has had to rely on support from her parents to survive whilst you have been in custody. Your letter is one of apology and an undertaking to reform your life. Your parents’ reference sets out the financial difficulties that they have suffered as a result of pollution in the marine environment from which they gained their living and they speak of you as a good child at school and a hard worker prior to you leaving Vietnam.
25 Your counsel submitted that the time which you have spent in prison by way of pre‑sentence detention is a sentence well within the range of sentences available in your case.
26 It must be remembered that the maximum penalty for offending of this kind is 25 years’ imprisonment. The amount of cannabis under cultivation was 271 plants or nearly three times the commercial quantity and by weight some 91 kilograms, nearly four times the commercial quantity by weight. Accordingly, the crop under cultivation was a substantial one.
27 The cultivation of cannabis in Melbourne is a prevalent offence. Without the ready supply of persons prepared to cultivate these crops, the principal offenders in respect to such crops would be incapable of continuing their criminal activity. Cultivators like you are an essential link in the chain of the cultivation and ultimate trafficking of the drug cannabis.
28 There is no suggestion that either of you were involved in the trafficking of cannabis. You are charged as crop sitters and cultivators of the crop found at the house in the Mountain Highway. Despite the discount which must be allowed to you, Ms Nguyen, because of your admissions which gave rise to the between dates charge to which you have pleaded guilty, by your admission you were involved in the cultivating of cannabis for a number of weeks and were to receive $5,000 per cultivated crop. You were paid for your efforts. In respect to you, Mr Nguyen, because of your lack of admissions, indeed the tissue of lies that you told the police during the course of your record of interview, all that can be said in respect of you was that you were present in the house at the time that the police executed the warrant and that by your solemn plea you admit that on 8 July 2019 you were involved in the cultivation of the crop found at the house in the Mountain Highway.
29 Accordingly, there will be disparate sentences imposed in respect of each of you.
30 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce sentences which reflect and promote the purposes of sentencing in a manner appropriate to each of you and your offending, I sentence you as follows.
31 Ms Lien Thi Nguyen, I sentence you to 24 months’ imprisonment and fix the period of 15 months as a period which you must serve before you will be eligible for parole.
32 I declare that you have spent 312 days by way of pre‑sentence detention not including today.
33
Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to 3 years’ imprisonment with a
non-parole period of 2 years’ imprisonment.
34 Mr Huy Hoang Nguyen, I sentence you to 12 months’ imprisonment.
35 I declare that you have spent 312 days by way of pre‑sentence detention not including today.
36 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to 2 years’ imprisonment with a
non-parole period of 18 months.
37 The Crown have made application for a forfeiture order in respect to a key to a Honda car, a house key and $425 in Australian currency and I have made that order.
38 The Crown have also made an application for a disposal order in respect to the cannabis and paraphernalia connected with your offending and I have granted that application.
39 I hand down a copy of each of the orders.
40 Are there any matters arising from sentence?
41 COUNSEL: No, Your Honour..
42 HIS HONOUR: Madam Interpreter, if you would return that document please and thank you very much for your assistance.
43 INTERPRETER: Thank you, Your Honour.
44 HIS HONOUR: Yes. We will break the connection with the prisons now please.
45 I would like to thank counsel for their assistance, particularly you, Mr Teo.
46 MR TEO: Thank you, Your Honour.
47 HIS HONOUR: And I will stand down now till 10 o'clock.
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