Director of Public Prosecutions v Nguyen
[2019] VCC 1676
•9 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIEN NGUYEN |
VAN NGUYEN
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| JUDGE: | HER HONOUR JUDGE GWYNN |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 9 October 2019 |
| CASE MAY BE CITED AS: | DPP v Nguyen & Anor |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1676 |
REASONS FOR SENTENCE
---Subject: Cultivate a narcotic plant, theft
Catchwords: Cannabis, commercial quantity, theft of electricity
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981, Sentencing Act 1991
Cases Cited:
Sentence:Kien Nguyen – Total effective sentence of 34 months imprisonment with a nonparole period of 22 months imprisonment
Van Nguyen – Total effective sentence of 16 months imprisonment with a nonparole period of 20 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused K. Nguyen For the Accused V. Nguyen | Mr C. Nikakis (Plea) Mr S. Andrianakis (Plea) | Haines & Polites Victoria Legal Aid |
HER HONOUR:
1Kien Trung Nguyen, you have pleaded guilty on indictment to a charge of cultivate a narcotic plant cannabis in not less than a commercial quantity between 1 October 2018 and 17 January 2019, and to three charges of theft of electricity from three separate premises at which cannabis crops were located.
2Van Bao Nguyen you have pleaded guilty on a separate indictment to a charge of cultivate a narcotic plant cannabis in not less than a commercial quantity on 19 January 2019.
3The charge of cultivate cannabis in not less than a commercial quantity carries a maximum penalty of 25 years imprisonment. Theft carries a maximum penalty of 10 years imprisonment. These maximum penalties reflect the seriousness with which parliament regards these offences.
4The circumstances of your offending were set out in a document entitled 'Summary of Prosecution Opening’ dated 1 October 2019. That one document dealt with the offending of each of you.
5It is an agreed document and represents an acceptance by each of you of all the elements of the offences, and the factual basis on which I am to sentence.
6In terms of the circumstances of the offending, in October of 2018 an operation was initiated to investigate a possible cannabis crop house in Kialla. The address being 13 Gordon Drive, Kialla. On 1 October 2018 a green Toyota sedan was observed at the Kialla property. This vehicle was registered to you, Kien Trung Tran.
7You are a Vietnamese national and are in Australia on a permanent partner visa. On 9 October 2018 you, Kien Trung Tran, hired a white Holden wagon for a period of eight weeks. On 23 October 2018 that vehicle was also observed at 13 Gordon Drive, Kialla. Indeed three vehicles associated with you were observed at that address on six different occasions in total during the charged period. On 18 December 2018 at 1.22 pm you, Kien Trung Tran, were observed driving a white Toyota sedan from your home in Sunshine.
8You were observed attending Western Hydroponics in Sunshine North before you then attended at 13 Gordon Drive, Kialla. On 19 December 2018 you were observed weeding the front nature strip of that address before driving to 21 Kalimna Drive, Mooroopna. Upon arrival at the Mooroopna property you checked the mail and walked to the front door. On 11 January of 2019, as a result of the information received, police were granted search warrants pursuant to the Drugs, Poisons and Controlled Substances Act 1981 for addresses at 13 Gordon Drive, Kialla, 21 Kalimna Drive, Mooroopna and 7 Rubery Street, Moe.
9Police enquiries revealed that there were electrical bypasses operating at all three properties, which are the subject of the three theft of electricity charges faced by you, Kien Trung Nguyen.
10I turn to the Kialla property.
11On 17 January 2019 at approximately 2.25 pm a search warrant was executed at 13 Gordon Drive, Kialla. Four rooms had hydroponic setups and plants at various stages of growth. Room 1 had 20 cannabis plants. Room 2, nine cannabis plants. Room 3, nine cannabis plants, and room 4 had 83 cannabis plants. Forensic scientist Kylie Slattery attended at the Kialla property.
12She determined that there were 121 cannabis plants in total with a combined weight of 52.99 kilograms. The four grow rooms included a large number of lights, an elaborate hydroponic system and a sophisticated electrical bypass. That bypass is the subject of Charge 2, theft. You, Kien Trung Nguyen, were located and arrested in one of the rooms. You were unable to be interviewed by police as there was no Vietnamese interpreter available.
13In terms of the Mooroopna property, on 18 January 2019 at approximately 7.38 am a search warrant was executed at 21 Kalimna Drive, Mooroopna. Entrance was gained into the property by a key attached to your car keys, Kien Trung Nguyen, which had been seized under the search warrant the day prior at the Kialla property. Inside the Mooroopna residential property police located three rooms that had a hydroponic setup and plants at various stages of growth. Room 1 had 12 cannabis plants. Room 2 had 12 cannabis plants, and room 3 had 49 cannabis plants.
14These grow rooms also included a large number of lights, an elaborate hydroponic system and a sophisticated electrical bypass which forms Charge 3, theft. Forensic scientist Kylie Slattery also attended at that property. She determined that there were 73 cannabis plants in total, with a combined weight of 13.05 kilograms.
15I now turn to the Moe property. On 17 December 2018 at 11.26 am, you, Kien Trung Nguyen, were observed driving a Toyota sedan from your home in Sunshine.
16At approximately 1.52 pm you were observed driving into the garage at the residence of 7 Rubery Street, Moe. On 18 January 2019 at approximately 8 am, a search warrant was executed at that address. At the execution of that search warrant, a member of police who was stationed outside the rear of the property spotted you, Van Bao Nguyen, trying to escape through a window. You were then placed under arrest by a member of police. When interviewed by police with the assistance of a Vietnamese interpreter you gave a ‘no comment interview’, which is your right.
17Inside the Moe residential property police located five rooms which contained a large number of lights, an elaborate hydroponic system and a sophisticated electrical bypass with plants at various stages of growth. In room 1 there were 30 cannabis plants. Room 2 contained 29 cannabis plants. Room 3 contained 36 cannabis plants. Room 4, 24 cannabis plants and room 5, 9 cannabis plants. Forensic scientist Sue Fiddian attended at the Moe property. She determined that there were 128 cannabis plants in total, with a combined weight of 97 kilos.
18This forms Charge 1 against you, Van Bao Nguyen, and is included as part of your Charge 1, Kien Trung Nguyen.
19A commercial quantity of cannabis is 100 plants or 25 kilos of cannabis. In terms of your respective cultivation charges, you Kien Trung Nguyen bear responsibility for the cultivation of 322 cannabis plants in total, with a combined weight of 163.04 kilograms cultivated between 1 October 2018 and 17 January 2019. Self-evidently this far exceeds a commercial quantity in terms of both plant number and weight.
20You, Van Bao Nguyen, bear responsibility for the cultivation of 128 cannabis plants weighing 97 kilograms cultivated on the single date, 18 January 2019. Your roles and responsibilities are clearly very different.
Kien Trung Nguyen
21I turn firstly to you Kien Trung Nguyen. The evidence on which I am to sentence you has you regularly attending the premises in Kialla, and to you being observed on single occasions in attendance at the Mooroopna and Moe properties.
22You had a key to the Mooroopna property and regularly changed vehicles during the charge period. You were also observed at a hydroponic shop, albeit there are no details of what if anything transpired with that attendance.
23You have taken responsibility for the theft of electricity between dates at each of the three properties reflecting an acceptance by you of an important aspect of the overall operation between those dates. The theft of electricity is designed to facilitate an environment to promote the cultivation and production of cannabis, whilst at the same time obscuring detection. Principles of denunciation and general deterrence loom large to these charges, as well as to the commercial cultivation.
24Given the three and a half month time period of cultivation, the quantity and weight of plants identified as being part of three separate cultivations, the sophisticated hydroponic setup, the use of electrical bypasses to supply electricity for lighting and heating, the number of crops contained inside each of the premises and the staggered age and stage of the plants located by police this is a serious example of a serious offence.
25Whilst there was some debate during your plea hearing as to how you could be best described, you could not be described as a mere ‘crop sitter.’ Nor could I take the view that you were a principal or that you were responsible for establishing any one of these grow houses or the equipment contained therein or for setting up the electrical bypasses, but you clearly had an important and trusted role. I see you as a form of supervisor. Your counsel used the word 'caretaker'.
26Your role was an essential one to this highly planned and sophisticated business of cannabis growth and cannabis production with the view that the drug would ultimately then enter our community. It is a lucrative business with enormous negative impact in terms of both health ramifications and criminal behaviour. Your role was to assist in that process and to shield principals in such enterprises from detection, and you did so for financial reward in terms of being paid for your service. Your role and your offending itself is at least at mid-level in terms of objective seriousness.
27Your moral culpability would appear to be high in the sense that you knew you were involved illegal activity. You were motivated by earning money, even if to pay off your own debts. You are not a drug or alcohol user and you must have been instructed in your tasks, which you performed accordingly.
28I do take into account your personal circumstances as I am obliged to do. You are now 41 years of age having been born in Saigon, Vietnam on 9 May of 1978. You are educated to a Year 10 equivalent and were always gainfully employed within the advertising and IT industry. You cannot be unintelligent. You came to Australia in 2010 and married your de facto partner with whom you had been living in Vietnam. She was an Australian citizen and sponsored you to obtain a permanent partner visa. You are no longer together.
29In the lead up to your offending you worked as a labourer with a company known and Roo and Oz Sheetmetal Pty Ltd, located in Sunshine West, for a period of at least 12 months until an injury to your shoulder placed you on WorkCover compensation claims for 13 weeks.
30You were unable to work and found that the WorkCover payments made to you of around $823 per week gross were insufficient when you found yourself in debt as a result of unsuccessful gambling. In order to pay off those debts you became involved in this offending. You instruct that you were paid between $500 to $800 per week for your service.
31I do take into account that you have pleaded guilty at an early opportunity. Your plea has utilitarian value, and has saved the court the time and expense of contested proceedings.
32Your plea can be seen as a demonstration of your remorse, and all of these factors will be taken into account in your favour. In addition I accept the submission made on your behalf that you could have run a trial or trials in relation to the Mooroopna and Moe properties given the strength of the evidence which I have been referred to. So your plea of guilty encompassing each of these properties must reflect that you filled the gaps in the prosecution case and is a further reflection of your remorse. An additional discount must attach.
33You have no prior criminal history. That fact combined with your experience of remand thus far would indicate that the need to give weight to specific deterrence is limited. In my view it still has a role to play given the number of crops, your caretaker role and the duration of your offending. Overall I accept that your prospects of rehabilitation remain good.
Van Bao Nguyen
34You, Van Bao Nguyen, were born on 20 August 1995 and are now 24 years old. You arrived in Australia on 21 June 2018 on a tourist visa. You never intended to be a tourist. This visa expired on 21 September 2018. Accordingly you are an unlawful citizen at the time of your offending. I am told that you will be deported after serving your sentence in this matter. It is not suggested that this is a factor to be taken into account in any sentence imposed. As I have said you bear responsibility as a crop sitter for a single day at the one property.
35Whilst there is a considerable distinction between the role you played and that of your co-offender, Kien Trung Nguyen, you have also still played a crucial role in what I have already described as a highly planned and sophisticated business of cannabis production. Your decision to become involved occurred in circumstances where your parents had paid for you to come to Australia, where you all had the belief that you would have work and accommodation. You were to send money home as the only unmarried son in the expectation that you would provide for your parents.
36You were unable to meet those expectations and were vulnerable to the approaches of others with the promise of payment for crop sitting the plants located at 7 Rubery Street, Moe. I accept that your decision making has left you ashamed and embarrassed, which has in effect left both you and your parents in a far worse situation. This will add to the deterrent effect upon you over and above the sanction of your time on remand.
37In terms of your personal circumstances, you were born in the Ha Tinh province in central Vietnam, the fourth of six children born from your parents, whom you instruct are in poor health. You were raised in a supportive environment, albeit one characterised by extreme poverty where you recall often being subjected to physical abuse by your parents. Despite your family's poverty, you attended school up until the age of 14 years when you left so that you could contribute financially to your family. You worked as a fisherman initially then relocated to Thailand for approximately three years where you worked as a waiter and a bartender, sending money back home to Vietnam to support your parents.
38Each of your elder siblings had also emigrated to find greater work opportunities. You ultimately returned to Vietnam where you recommenced working as a fisherman in your home province until a pollution event in 2016 decimated the local marine population and destroyed the local industry in which you and members of your family worked. You found it difficult to find further employment, hence the decision by your parents to fund a trip to Australia.
39I accept that your plea has also been made at an early opportunity, and has value on the same terms that I have attributed to your co-accused. I have taken this into account in your favour.
40You also have no prior criminal history and given your limited role in this offending, combined with your time on remand thus far, I accept that there is less need to give weight to specific deterrence or to protecting the community from you. These factors combined with your relative youth would indicate that you have good prospects for rehabilitation.
41I also accept that for each of you the custodial setting would be somewhat isolating in the sense that you have limited English and are disconnected from family. You can only communicate with other Vietnamese prisoners. These are also matters which I take into account.
42The basis purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing each of you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.
43I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society. I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case. I have also taken into account current sentencing practices for the offences to which each of you have pleaded guilty.
Ancillary orders
44I have made the ancillary orders as sought for forfeiture, disposal and, applying to Kien Trung Nguyen only, for compensation.
45In addition application has been made to take a forensic sample from each of you. This involves using a cotton bud to take a sample from inside your cheek cells. That application was not opposed and given the seriousness of the offending, your lack of opposition and my view, that it offers the community a greater protection, I will make orders that samples be taken.
46I am obliged to warn you that you must participate in that process otherwise application can be made for a blood sample to be taken, and reasonable force can be used to take that sample.
Sentence
47Kien Trung Nguyen, on the charge of cultivate a commercial quantity of cannabis, you are convicted and sentenced to 32 months imprisonment. In relation to the three charges of theft of electricity, you are convicted and sentenced to an aggregate of 12 months imprisonment. For those charges I impose an aggregate as I am satisfied that those offences are founded on the same facts or form or a part of a series of offences of a same or similar character. In so doing I also bear in mind the principles of totality and proportionality between those charges and the charge of cultivation. Two months on the aggregate sentence for theft of electricity is made cumulative on the sentence imposed on the charge of cultivate a commercial quantity of cannabis.
48You have, therefore, received a total effective sentence of 34 months' imprisonment, and I fix a period of 22 months before you are eligible for parole. Two hundred and sixty five days are reckoned as having already been served.
49Van Bao Nguyen, on the single charge of cultivate cannabis in not less than a commercial quantity, you are convicted and sentenced to 16 months imprisonment. You are to serve 10 months before being eligible for parole. Two hundred and sixty four days are reckoned as having already been served in relation to that sentence.
50Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges.
51If not for your pleas of guilty I would have sentenced you, Kien Trung Nguyen to a total effective sentence of four years and three months imprisonment, with a minimum of three years and two months before being eligible for parole. But for your plea of guilty, Van Bao Nguyen, I would have sentenced you to a total effective sentence of 26 months, with a minimum of 18 months before being eligible for parole.
52Anything arising?
53MR O'DOHERTY: No, Your Honour.
54MS YOZEFOVICH: No.
55HER HONOUR: Remove the prisoners. Thank you. I'll stand down temporarily before returning to the next matter. I do apologise for the delay.
56MR O'DOHERTY: Thank you.
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