Director of Public Prosecutions v Nguyen

[2020] VCC 250

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-02397

DIRECTOR OF PUBLIC PROSECUTIONS

v

HIEN TARN NGUYEN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	11 March 2020
DATE OF SENTENCE:	11 March 2020
CASE MAY BE CITED AS:	DPP v NGUYEN
MEDIUM NEUTRAL CITATION:	[2020] VCC 250

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. MacDougall	Office of Public Prosecutions
For the Accused	Mr H. Rattray	Milides Lawyers Pty Ltd

HIS HONOUR:

1Hien Thanh Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant in not less than a commercial quantity.  That carries a maximum penalty of 25 years imprisonment.  You have pleaded guilty at an early opportunity and made admissions to police, which provide the basis really of your conviction.  You have apparently expressed remorse and you must get the utilitarian benefit of that plea.

2You have no prior convictions and as I understand it, you have no matters outstanding.  Significantly, because of the sentence that I impose and because of your status in this country, you will undoubtedly be deported.  It has been put to me, by your partner, that you intended to have a life in Australia.  I have got doubts that that was ever really going to occur, but the fact of the matter is, you will be deported.  The consequence of that deportation for you will be that I accept you have a partner now of some five years standing.  She is a Vietnamese citizen, but that deportation, because of this sentence, may well end that relationship.  There are however, no children.

3The Crown case can be summarised quite simply.  In July of 2019, you were identified entering a house in Cypress Court in Drouin.  On 4 September 2019, a co-accused, a Mr Nguyen was identified as entering that house.  Police raided it a short time after that and you were found in an upstairs room where cannabis was being grown.  Your co-accused, a Mr Nguyen, was found when police raided the premises, hiding under a bed.  He apparently is going to run a trial in relation to all this.  We will see how that ends up.  I do not know whether hiding under a bed is a consciousness of guilt or not, but I suspect so.  But in any event, when police entered, they found a cannabis crop that had been set up. 

4It is obviously a significant one and it is not suggested here that you were involved in the setting up of that crop.  The evidence against you is that you went down every couple of days to water plants and to basically look after things.  So I sentence you on the basis of being a crop sitter and I think there can be too much in the exercise of semantics going into all of that.  Certainly you are at the lower end of roles.  However, with that crop, police found a total of 176 cannabis plants, I am not aware of the size of each of them, with a total weight of 176 kilograms.  That total weight is a significant one in these sorts of circumstances and whilst - obviously not at the top end, it certainly seems to me to put it in the low to mid-range of such cultivations in terms of the objective seriousness.

5There was a power bypass.  You are not charged with that, as your counsel correctly suggests, meaning that the Crown are accepting of the fact that you a crop sitter.  Crop sitters must still receive significant penalties for this.  People who do come and act in this capacity, such as you, almost always were on an expired student visa with no prior convictions, subject to deportation, must understand that there will be a significant gaol term involved.

6I understand the basic prospects of all this, that no organisers are ever named, no one is ever tipped in.  It is a very effective way of running such an illicit business.  If some general deterrence can get across to crop sitters, then that would be a good thing.  In your situation, specific deterrence is meaningless where you are going to be deported.  Denunciation must play a part and as I have indicated, there must be an appropriate punishment.

7In terms of the overall circumstances, I then look to matters personal to you and your counsel put a number of matters on your behalf.  Firstly, you have already been in custody now for 188 days.  Your partner of some five years, may or may not go to Vietnam when you are deported and that I think is of some significance.  I have read the psychologist report of Mr Mathew Staios and I take those matters into account.

8More importantly, your circumstances are that you are 25 years of age, still a young man.  You are from Vietnam and I was told initially from the Bar table in the submissions that your father is very ill and that your mother is not well either.  I was told that your father has lung cancer and has had a stroke.  Upon my expressing surprise at that scenario, has been put to me as unusual, your counsel was able to take the very unusual step of providing medical confirmation of those very things.  It is put to me that the reason you were doing this, and you were I think being fairly honest in terms of owning up to how much you were receiving for it, was to try and pay medical bills for your father.  The family in Vietnam has taken out a loan through nefarious people and has been unable to pay it back.  Threats have been made and I have no doubt that in that scenario, they will be threats that there will be a genuine fear would be carried out.  You were trying to alleviate those threats from your family. 

9As your counsel correctly pointed out, motive can mitigate and in your particular situation, because I have been given the actual material support will otherwise regard it as a fairly typical submission.  I do so mitigate this offending.  So what it really comes down to is that you are going to be deported.  It is a situation where your family was and probably still is in trouble.  You had an impoverished personal history.  You now appear to have insight into all this and I have had the unusual situation of being provided proof of why it all came about.  In the end, general deterrence still has to play a part.

10I have been of recent times, as have a number of other Judges, been giving straight sentences for these matters because of the difficulties involved with parole and the total uncertainty of what we are actually sentencing a person to.  If a prisoner in your situation is given a straight sentence, then they know where they stand, the community knows where they stand and things can be prepared for.  In these circumstances, with that material, I am proposing to give you a straight sentence.  The prospects of your rehabilitation are up to you.  The risk of you reoffending in this country is nil and these matters when - that is the situation could be done fairly succinctly.  Cultivating cannabis is a serious crime and accordingly, the sentence must reflect that.

11Accordingly on the charge of cultivate, you are sentenced to be imprisoned for a period of 18 months. I direct that 188 days be reckoned as having been served under this sentence. Pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty, I would have sentenced you to be imprisoned for a period of three years, with a minimum term of two.  That indicates the benefit of which you got from that plea of guilty.  Nothing else I need to do?  No, you got the trial coming up, so we don't have any forfeitures.

12MISS MacDOUGALL:  No, no there was the disposal order, Your Honour. 

13HIS HONOUR:  Signed that didn't I?

14MISS MacDOUGALL:  Thank you.

15MR RATTRAY:  I think Your Honour made - yes, that's by consent. 

16HIS HONOUR:  Yes I signed that, that's already been done. 

17MR RATTRAY:  And the forensic sample stays because he gave it.

18HIS HONOUR:  Yes he has already given one.  The only other thing that I was thinking this was, writing this down, I would impose that sentence, that sentence will still being undergone obviously when the committal takes place.  I am just a little bit concerned as to what his position might be subject after a committal.  I suppose if something did happen where he was coerced by - I do not mean that the way it quite sounds, but where there was - he was called on a trial, then there could be appeal out of time I suppose, but I cannot guess and I cannot speculate, but ‑ ‑ ‑

19MR RATTRAY:  Having read the co-accused record of interview, I can't pull off unless I see what his defence is, but we'll ‑ ‑ ‑

20HIS HONOUR:  No, well I don't know and as I say, I'm trying to be careful ‑ ‑ ‑

21MR RATTRAY:  Yes.

22HIS HONOUR:  ‑ ‑ ‑ because I may have to deal with the trial.

23MISS MacDOUGALL:  Yes.

24MR RATTRAY:  Yes.

25HIS HONOUR:  There just seems to me that if a situation arose, bearing in mind that your client is here, ‑ ‑ ‑

26MR RATTRAY:  Yes.

27HIS HONOUR:  ‑ ‑ ‑ and still will be here, certainly at the time of committal and probably, probably at the time of a trial if there is one, if he were to be, well subpoenaed basically, there is a record of interview, I would have thought - and I put this - I will say this now, I would have thought that that will be fresh material for an appeal.

28MR RATTRAY:  Thank you, Your Honour.

29MISS MacDOUGALL:  It would on the face of it be fresh material.

30HIS HONOUR:  On the face of it.  That's all I'm saying.

31MISS MacDOUGALL:  Yes.

32HIS HONOUR:  It just concerned me that ‑ ‑ ‑

33MISS MacDOUGALL:  Because the committal is in May.

34HIS HONOUR:  Yes and I know - and it will also have dramatic - I know they will not talk, so it could have fairly dramatic effects, so anyway, that is just on transcript so that I know.  I am conscious of it and - but cannot speculate.

35MISS MacDOUGALL:  Thank you, Your Honour.

36HIS HONOUR:  All right, do you want to speak to him at the dock or ‑ ‑ ‑

37MR RATTRAY:  No, Your Honour, I'll go and see him at the police station.  Thank you, sir.

38HIS HONOUR:  Very well.  All right, well you can take him now, thank you.  Thank you, Madam Interpreter.

39INTERPRETER:  Thank you, Your Honour.

40(At this stage the court proceeded with another matter.)

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