Director of Public Prosecutions v Nguyen

[2019] VCC 1858

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-01572
CR-19-01569

DIRECTOR OF PUBLIC PROSECUTIONS

v

SINH NGUYEN
CHUNG THAN PHAM

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	11 November 2019
DATE OF SENTENCE:	11 November 2019
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2019] VCC 1858

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For Accused Nguyen	Mr J. Westmore	ADN Lawyers
For Accused Pham	Ms A. Cannon	Victoria Legal Aid

HIS HONOUR:

1Chung Than Pham and Sinh Nguyen, you have each pleaded guilty to one charge of cultivation of a narcotic plant, being cannabis, in not less than a commercial quantity.  That crime carries a maximum penalty of 25 years' imprisonment.

2You, Mr Pham, are 39 years of age.  You, Mr Nguyen, are 29 years of age.  The plea of guilty came at the earliest reasonable opportunity and you must get the utilitarian benefit of that plea of guilty and this applies to each of you.

3Remorse in these circumstances is always somewhat problematic in the real sense but because of the pleas of guilty I give you the benefit of the doubt and will treat them as having appropriate remorse.  Neither of you have any prior convictions of any description so far as I know and neither of you have any matters pending.

4Firstly, pursuant to s.464ZF of the Crimes Act I make an order that you provide, that is each of you, provide a saliva sample for DNA purposes. That order having been made I must advise you that should you refuse to provide such a sample police may use reasonable force to take it from you.

5The circumstances of the offending are that each of you came to Australia in around about 2012 on what would originally have been student visas.  As I understand it each of you is now on a bridging visa.

6On 14 March 2019 in the morning police observed a vehicle outside a house at Walker Parade in Churchill.  They observed two Asian males taking items out of that car, which was a sedan, and into the house.  At approximately 2 pm police attended at the address and executed a search warrant.  When that warrant was executed the pair of you were there and endeavoured to flee the address via the rear door.

7You were arrested in the backyard.  Police located cannabis in the shed at the rear of the address.  That shed had been divided into three separate rooms which had been converted in hydroponic grow rooms.  Those rooms contained a total of 99 cannabis plants that in the ultimate weighed a total of 61.88 kilograms and that gives rise to the charge of cultivation of the narcotic plant.

8A commercial quantity obviously is 25 kilograms.  There was an electrical bypass in place in the roof space that neither of you have in fact been charged with that.  At the address police also located paperwork in your name,
Mr Pham, and various other items that I do not need to go into.

9There was also a van parked outside that had previously been seen parked in the driveway in late 2018.  That van was registered to Mr Nguyen's wife.  Bank documents relating to Mr Pham were located in the sedan.  The two of you were not interviewed by police due to the unavailability of an interpreter and I understand the situation with that and that is basically nobody's fault.

10Each of you has now been in custody since arrest and has 242 days of pre-sentence detention.  I have already made the forfeiture and disposal orders.  The situation is that I indicated during the course of the plea that it is difficult to differentiate between the roles of each of you.  However, that was at a time when I had not read the psychologist's report that has been tendered on behalf of you, Mr Nguyen.

11It is conceded in that report by you that you had been involved in this since September of 2018 and as I understand it in fact a vehicle traceable to you was seen at the premises back in November.  Clearly the charge itself is a one day cultivation but has to be looked at in realistic terms.

12On the material before me I have no indication as to how long you had been involved, Mr Pham, or what your real involvement was, but with you,
Mr Nguyen, there is pretty clear evidence before me that you had been involved since around about give or take September of the previous year when speaking to the psychologist you in fact said that rather than apple picking this occupation gave you a regular income.

13That does not aggravate the offending but I am not going to sentence on some totally artificial basis that either of you just happened to turn up on the day and that is just in your case, Mr Nguyen, through your own admissions to the psychologist yours is more easy to pinpoint.

14The offending has to be regarded as serious and calls for the application of general and specific deterrence, denunciation and appropriate punishment.  I am well aware having been involved in many of these matters and sentencing statistics on many occasions that a term of active imprisonment is virtually inevitable.

15It must be a term of imprisonment which gives rise to the application of general deterrence in such matters as the practice is so common of putting people in these circumstances who have no priors, who upon conviction and sentence will simply be ultimately deported.  People who accept that role must understand that it will carry significant gaol if they are indeed apprehended.

16Insofar as you are concerned, Mr Pham, your position is that deportation for you is I would have thought certain.  You will be going back to Vietnam from whence each of you comes with no chance of a life in Australia but at least you will there have a family to support you.

17You will go back into relative poverty as has been explained to me from the Bar table but I sentence you on the basis that your deportation is inevitable but there is little to be said for what will have occurred if you had remained in the country and you do not leave behind you a wife and a family.

18You, Mr Nguyen, are in a different situation in my view.  You are in fact I accept from the Bar table married.  You have a wife who is an Australian citizen and she has three stepchildren.  You now have with that wife a
19 month old son who, as I understand it, is clearly also an Australian citizen.

19Despite the length of sentence that I am to impose you may have an opportunity of avoiding deportation on the basis of a spousal visa or any such matters.  Accordingly that does not have the certainty that applies to
Mr Pham.  That therefore puts you in a situation you will undergo the balance of the sentence with the uncertainty as to whether you are to be deported and I will be going into that again in a moment.

20In terms of basic history you, Mr Pham, had your background described in laudably succinct terms by your counsel.  You are now 39 years of age.  You came out here because of a disaster which occurred at the fishing village that you previously lived on.  Your family were able to get you out here.

21You left Vietnam with a wife and you now have a daughter aged around about five years of age.  You in fact upon deportation will be going back to reside with them.  Since you have been in the country you have worked sporadically at various jobs.  Clearly not only your visa has expired, you did come here to try and create a better life and that has been taken from you.

22In your situation the prospects of your rehabilitation are really up to you.  The risk of you reoffending in this country is obviously zero.  It seems to me that there is just a pattern that follows all these matters and sentencing remarks going into personal backgrounds and details of the accused very rarely assist anybody.

23In your case, Mr Nguyen, it is somewhat different.  You are younger, you have upon coming to Australia been able to continue to work, whether lawfully or not, I have got no idea, but more importantly you have become married to a woman who is some years your senior.

24I accept from the Bar table that she has three children who now regard you as a step-parent and she is dependent upon you.  Some 19 or 20 months ago the pair of you had a child which has its own health problems and because your partner is now an Australian citizen it could well be that you are deported and she is not.  It may then be impossible to get her back into Vietnam.  I do not know.

25In those circumstances however the time that you undergo during the course of this sentence will be done in very difficult circumstances for you.  I do not find that there are exceptional circumstances so far as the decision in Markovich referred when confirming the common law, but I certainly take into account that you will have to undergo this sentence knowing that you have placed your partner, your own child and three stepchildren at risk of your not being able to support them by the conduct that you have engaged in.

26In these circumstances I cannot take it much further than that.  There was a report that has been tendered on your behalf and goes for each of you that each of you has done courses in gaol and I know that during the course of the plea that each of you has done the gambling course but I am instructed from the Bar table and totally accept that that is simply because it is given in Vietnamese and I will make no further investigation into that.

27You, Mr Nguyen, say that you became involved in all this because of debts that were owed of sending money back to Vietnam and I accept that each of you would have sent money back to Vietnam.  Again I have very rarely got confidence in what I am told from the Bar table in these matters about a lot of the motivations and how it all occurs but I will have to basically take it at face value.

28I have already referred to the fact that you have a wife which is the strongest matter going ahead on your behalf.  I accept that the probabilities are that there is debt which has to be repaid and that would appear to have been the motivation for you going into what in effect is employment in this business.

29The report that has been tendered says you are at low risk of reoffending but again you are essentially in the same position as Mr Pham.  The risk of you reoffending here would have to be low.  If you reoffended in this way deportation would become a certainty and in any event you may never get the chance to reoffend in any way in this country.

30You have family in Vietnam and if you are deported you will be returning to them.  That psychological report from Ms Bennett goes on to describe your background, how the family again were affected by the same disaster that apparently affected your co-accused and his family and as I have indicated and it goes on to say how you became involved in all this and has already made some comments about that.

31I do not know what the future holds for you but as I say I can simply impose a sentence that I think is appropriate and leave it at that.  In these circumstances what I have started to do of recent times when I have discovered that other judges were doing it is to give a straight sentence in the manner in which I have previously described.

32The State Parole Board has publicly announced that it will rarely give parole in these circumstances and I think in fairness to all of you you should have a knowledge of the certainty of the date of your parole as long as the practice of giving a straight sentence does not result in giving inappropriately low sentences.

33Insofar as you are concerned, Mr Nguyen, there is another matter which I take into account.  You have made an offer of assistance not in relation to the co-accused obviously but an offer of assistance in relation to other people involved.

34I take that into account even though it has been rejected.  Clearly that offer has been made and the making of it would put you at risk and I take that into account.  I make it clear in this my sentencing reasons, not that it detracts from your offer as such, that that offer has been rejected and will not be acted upon and that accordingly I make it very clear to anyone who becomes aware of this that no other person is being put at risk by the process that has been taken today.

35I think those who understand the way all this works will know why I have put those comments into my sentencing remarks.  I will not investigate that further with you going into protection and that is another matter that I am not too sure how that is all going to operate.  However, that is a matter that I do take into account on your behalf, not in a specified way but in an overall way.

36However, as I have indicated, the sentence that I impose that was indicated to you during the course of the plea will be different and I think I have outlined the reasons why that is.  You, Mr Pham, are older and you, Mr Nguyen, are younger and have the much greater effect upon you of the risk of deportation and have at least offered though refused as I point out yet again to give assistance.

37Neither of you have priors, neither of you are likely to do it again, but somehow or other people who take up these offers in various places in this state such as the casino should realise that this is not going to be a slap on the wrist and, to use the vernacular, “see you later”.

38Accordingly on the charges you, Mr Pham, are sentenced to be imprisoned for a period of 20 months.  I direct that 242 days be reckoned as having been served under that sentence.  In all the circumstances you, Mr Nguyen, are sentenced to be imprisoned for a period of 15 months and that is again with 242 days pre-sentence detention.

39Insofar as you are concerned, Mr Pham, so you understand the benefit of having pleaded guilty had you pleaded not guilty and been convicted of these matters I would have sentenced you to be imprisoned for a period of three years with a minimum term of two.

40You, Mr Nguyen, s.6AAA is an illusion because of your offer, but in any event had you pleaded not guilty to this and been convicted by a jury I would have sentenced you to be imprisoned for a period of two years and nine months with a minimum term of 18 months.

41As I have indicated the granting of a straight sentence is not just simply a matter of what would have been a minimum term otherwise.  It is an increase on that but I am not going to quantify it.  Are there any other orders I need to make?

42MR WESTMORE:  No, Your Honour.

43MR HAMMILL:  No, Your Honour.

44HIS HONOUR:  It is probably best if you talk to them over in the cells I think rather than trying to do it here.  I will send them back now and we will go from there.  They can go now, thank you.  Will counsel need the interpreters at the gaol?

45MR HAMMILL:  Yes, Your Honour.

46HIS HONOUR:  If the interpreters could go over to the gaol for me just for a short period of time?

47INTERPRETER:  Yes, certainly, Your Honour.

48HIS HONOUR:  Thank you.

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