Director of Public Prosecutions v Nguyen

[2020] VCC 505

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00270

DIRECTOR OF PUBLIC PROSECUTIONS

v

HIEN DANH NGUYEN

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2020
DATE OF SENTENCE:	28 April 2020
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2020] VCC 505

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  CRIMINAL LAW – Plea of guilty – Cultivation of narcotic plant - Cannabis L.- No prior convictions – Limited role – Crop sitter

Legislation Cited:                  s72B Drugs Poisons and Controlled Substances Act 1981
Cases Cited:  Nguyen v The Queen [2019] VSCA 134

Sentence:Sentenced to 603 days imprisonment with 603 days be

reckoned as a period of imprisonment already served under this sentence.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr C. Terry	Valos Black & Associates

HIS HONOUR: 

1In indictment no. J12317025, Mr Hien Danh Nguyen has pleaded guilty to the one charge in the indictment, being cultivation of a narcotic plant.

2As has been set out by the learned prosecutor, subsequent to his arrest on
3 September, Mr Nguyen made an offer which was rejected by the prosecution. The prosecution at that stage was pursuing an indictment involving the cultivation of narcotic plant of a commercial quantity. 

3Ultimately, given discussions, a plea to the current indictment was accepted by the prosecution in October last year. 

4The prosecution tendered today Exhibit A, which is the prosecution opening as to the circumstances of this crime.  Mr Terry indicated that, on behalf of
Mr Nguyen, he accepted those facts as the facts upon which I am to sentence Mr Nguyen. 

5What Exhibit A discloses, is that due to observations, which we do not need to go into here, the police were alerted to a suspicious activity at
84 Tiverton Drive, Mulgrave, and as a result thereof, began a surveillance. 
The only precise terms of the surveillance that relate to Mr Nguyen are an observation of a car driven by him, apparently, on 30 August, and ultimately, his arrest on 3 September.

6He comes before this Court on the basis that the prosecution accepts that he is a crop sitter for five days.  There is no evidence that he is a principal, involved in any way in the leasing of the premises, or in any ultimate profits to be obtained by this operation.

7As I said, having read the recent decision of Nguyen v The Queen [2019] VSCA 134, which upheld a decision of Judge Tinney, I was particularly interested to read in that decision His Honour's refusal to accept the proposition put by the Crown as to the role of both Mr Ho and Mr Nguyen, and his comments in particular which are reported at paragraph 46 of the appeal, that His Honour stated at the plea hearing that he thought the propositions being put to him by the Crown were totally unreal.

8In those circumstances, he gave an opportunity for defence counsel to call evidence which in some way would go to prove the proposed role as being proffered by the Crown.  Such was not led, and His Honour ultimately took a view which was adverse to the proposition put by both the prosecution and defence counsel.

9I do not intend to do that in this case.  The facts are sparse, to say the least.  However, I say again that we had here a crime, which potentially carried with it a sentence of 25 years as prescribed by Parliament. We then had an agreement between the prosecution and Mr Nguyen's legal advisors that he would plead to this crime which has also a maximum penalty of 15 years. Then we have presented by way of investigation of the police to the prosecution and to this Court what seems to me to be a total lack of endeavour to obtain evidence insofar as the suggested crimes.

10However, the fact is that Mr Nguyen is in the fortunate position of being able to reach an agreement with the Crown in these circumstances.

11Since the time of his arrest, he has been on remand for 603 days.

12The only document filed on his behalf was Exhibit 1, which is the plea submissions of Mr Terry.  The matters referred to, in essence, are summarised in paragraph 3, and were accepted by the prosecution; that is, that this was an early plea, that the plea ultimately made was the plea earlier offered which was rejected by the prosecution, that the prosecution accepted that Mr Nguyen, in this case, was a crop sitter for a period of five days, that there was no indication of any higher role than that particular role.

13Further to that, Mr Terry in his written submissions relied on the plea of guilty, the fact that his client had no prior convictions, the issue of limited role, the short duration of the offending, and the circumstances of the current pandemic and its effect on someone while in gaol, although I suppose in the particular circumstances of Mr Nguyen, he would not be subject to the restrictions as to family visiting, but he may well be subject to the alternate lockdowns that I understand are going on in prison.

14As to his rehabilitation, I really cannot comment.  It seems to me the material insofar as Mr Nguyen is too sparse. He comes to Australia on 27 July 2017.  He comes on a visitor's visa.  He overstays that three-month visa.  He works, apparently, in circumstances where there is need for assistance in this country by way of labouring for agriculture.  There is no evidence before the Court of him doing anything else apart from what he instructs.

15He then pops up, as indicated, when he is seen at the scene of this crime on 30 August 2018.  Apparently insofar as his crime, despite the fact that I understand there was no answer provided to the record of interview, it is put at paragraph 23 of Mr Terry's submissions that he was receiving a modest cash reward of some $200 a day to attend the premises and turn on the watering system.

16In those circumstances, it is very difficult to resist the proposition put by both counsel to this Court that the period served is sufficient in all the circumstances. 

17The fact is that once that period is served, Mr Nguyen will be deported.  I think he goes from remand into detention, and one would imagine would be deported fairly quickly.

18I do not think there is much point in going over the cases which talk about the seriousness of these matters because I just do not have the material from which to sentence in any more serious way than has come before the Court.

19Yes, Mr Nguyen, if you would stand, please?

20Mr Nguyen, you will be convicted of this offence, being a breach of s.72(B) of the Drugs, Poisons and Controlled Substances Act, being a cultivation of a narcotic plant.

21You will be sentenced to a period of imprisonment, a straight sentence, of one year and eight months.

22I, in those circumstances, declare pursuant to s.18 that the period of 603 days served to date is a period of service of this sentence.  The effect of that is that you are entitled to be released.  The reality unfortunately for you is that you will not be released.  You will be taken into detention, but you are entitled to be released now from gaol.

23Had you not pleaded guilty, I am required under s.6AAA to indicate, at Parliament's request, what sentence I would have given.  I am afraid in the circumstances of this case it is almost impossible to do because I simply know nothing about it, but certainly, can I put that you would not have got a straight sentence of that degree, and I think that is about all I can say.

24Mr Brown or Mr Terry, do I need to do anything else?

25MR TERRY:  No, Your Honour. 

26HIS HONOUR:  Mr Brown?

27MR BROWN:  No, Your Honour. 

28HIS HONOUR:  All right.  You do not seek any other orders?

29MR BROWN:  No, Your Honour.  There's no need for any ancillary orders.

30HIS HONOUR:  All right, thank you.  I thank you both.

31MR BROWN:  If Your Honour pleases.

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