Director of Public Prosecutions v Nguyen

[2019] VCC 1732

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-01916

DIRECTOR OF PUBLIC PROSECUTIONS

v

HIEU NGUYEN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	24 October 2019
DATE OF SENTENCE:	24 October 2019
CASE MAY BE CITED AS:	DPP v NGUYEN
MEDIUM NEUTRAL CITATION:	[2019] VCC 1732

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr S. Peterson	Stephen Peterson Lawyers

HIS HONOUR:

1Hieu Van Nguyen, you have pleaded guilty to one charge of cultivation of cannabis in not less than a commercial quantity.  That crime carries a maximum penalty of 25 years' imprisonment.  You have also pleaded guilty to an uplifted summary charge of possessing the proceeds of crime, which carries a maximum penalty of two years.  Without going into detail on that charge, I simply sentence you to be imprisoned for three months, to be served concurrently with the sentence I am going to impose on the cultivation charge.

2You pleaded guilty at the earliest reasonable opportunity and you are now 31 years of age.  You are a Vietnamese national.  You have no prior convictions in this country and no matters pending.  As always, in these situations, remorse is problematic, but I will give you the benefit of the doubt in relation to that and you must also, of course, get the utilitarian benefit of that plea of guilty.

3In your particular situation, you will definitely be deported after the sentence that I impose upon you.  However, you have married a Vietnamese lady whilst in Australia and you have a child together.  I am told from the Bar table that that lady has now gone back to Vietnam, so upon your deportation, you will be going back into a family environment, which hopefully will lead to your rehabilitation and that is the only way I take the deportation into account.

4A summary of the matter is that you were employed to assist in the cultivation of two crops, one in Warragul and one in Drouin.  You were actually charged on a one day count on 18 March, but it is clear you have been involved for a bit longer than that.

5What had occurred was that there were two addresses: one at 103 Burke Street in Warragul and one at 28 Buln Buln Road, Drouin.  Various aspects of surveillance took place.  You were seen on those premises, as was your co-accused Mr Lee.  I note that Mr Lee is yet to be committed to trial and has a committal outstanding.  It may well be that he pleads guilty to something, but I simply note that each of the houses was owned by him and you are not to be sentenced as the principal offender.

6In any event, after surveillance and a house fire, where citizens had seen you, police executed two search warrants on 18 March 2019, one at the Drouin address and one at the Warragul address.  At each of those premises, cannabis crops were found and obviously an elaborate set-up for the growing thereof.  You, when arrested, gave a version of events which, as the prosecutor says, is not inconsistent with what the Crown have put.

7You were assisting.  I do not need to go into the detail of each crop and what was found.  Obviously, as I understand it, your DNA was found on a number of items taken from each of the premises.  As I have indicated, you have pleaded guilty.

8The two blocks were set up in similar ways and in total, the cannabis amounted to 128 plants, with a combined weight of 60.51 kilograms.  Also, upon your arrest, there was a search done of a vehicle belonging to you and $15,000 was located in that vehicle.  There was a further sum of money of slightly over $3,000, which was also found in your possession.  So, that is the basis of the proceeds of crime charge and you are not to be punished twice.  The amount of money found on you would tend to make one suspicious about what your actual role was in all this, but I need to sentence on the basis on which it is put.  That is, that you are more than a mere crop sitter, but you are certainly not the instigator.

9I do not think there is any need for me to go much further into anything else.  There is going to be a trial, it would seem, or at least a plea by Mr Lee and I do not make any findings in respect of him.  Obviously a custodial sentence is the appropriate disposition.  After discussion with counsel, I take the view that a straight sentence is the appropriate way to go about it.  It will be a straight sentence which, in the normal course of events, would involve a non-parole period.  I want to make it clear, this is being done because of all the uncertainty that surrounds deportation and whether minimum terms are ever going to be served and that type of thing.  This way, you get a sentence that is certain and the sentence I give would probably be a little bit higher than would have been a minimum term, had I, in fact, set one, but you would obviously get the benefit of that.

10I then look to matters personal to you and submissions were tendered on your behalf.  Your particular circumstances are that you came to Australia in 2013 and lived with a sister.  You came on a student visa.  That expired quite some time ago.  You apparently have been working in Australia as a carpenter.  You married a Vietnamese lady who, as I said, is now back in Vietnam, with your three year old child and that is certainly where you will be heading when these sentence expires.  Each of the crops had an electrical bypass.  It is not suggested that you are responsible for that and indeed, you have not been charged with it.

11There is not much else I can really say.  It is the usual situation in these.  You came from Vietnam, you have got a visa that is expired, you have got no prior convictions.  Basically, authorities have no idea where you are and you are trying to earn money by sitting a drug crop.  In all these situations, we just simply give the sentence and you go back to Vietnam, it all seems to get forgotten about, but it has got to be a circumstance where general deterrence is the principal part of this sentencing process.  Because you are going back to Vietnam, the risk of you reoffending in this country, I would say, is zero.  The prospects of your rehabilitation are up to you and specific deterrence for you in these circumstances, is a bit of a waste of time already.

12So, in those circumstances, taking into account that the level of the offending, which is not at the bottom, but certainly, not at the highest end, you are sentenced to be imprisoned for a total period of 18 months on that charge and I have already indicated, three months concurrent on the other.  So the sentence will be 18 months and the PSD will be 220 days, 6AAA through to the two.

13MR HAMMILL:  Yes Your Honour.  It please the court.

14HIS HONOUR:  Now I'm assuming, gentlemen, that there is, before this concludes, that it is not a situation where the Crown are going to call him?

15MR HAMMILL:  No, I raised that matter.  No, is ‑ ‑ ‑

16HIS HONOUR:  That's all I need to know ‑ ‑ ‑

17MR HAMMILL:  Yes, yes.

18HIS HONOUR:  ‑ ‑ ‑ because ‑ ‑ ‑

19MR HAMMILL:  No.

20HIS HONOUR:  No, yes, thanks.  All right, thanks gents.

21MR HAMMILL:  Thank you, Your Honour.

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