Director of Public Prosecutions v Nguyen

[2019] VCC 899

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-00118

DIRECTOR OF PUBLIC PROSECUTIONS

v

NGOC NGUYEN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	13 June 2019
DATE OF SENTENCE:	13 June 2019
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2019] VCC 899

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	Mr D. Gray	Office of Public Prosecutions
For the Accused	Mr R. Melasecca	Melasecca Kelly & Zalyer

HIS HONOUR:

1Ngoc Nguyen, you have pleaded guilty to one charge of cultivate not less than a commercial quantity of a narcotic plant, being cannabis, and one charge of theft, that being of electricity.  Those crimes carry maximum penalties of 25 years and 10 years, respectively.

2You are now 58 years of age.  You pleaded guilty at the earliest reasonable opportunity.  I am bound to take a plea of guilty as indicating some remorse, thought I regard genuine remorse as somewhat problematic.  In any event, you clearly must get the utilitarian benefit of that plea of guilty.  Trials involving crop houses can be difficult to run and use up police resources when it is not necessary.  Accordingly, as I say, you do get the benefit for that.

3You do have significant prior convictions, albeit they be in New South Wales.  The situation is that you have been incarcerated back as far as 1997 in relation to drugs, which your counsel tells me was heroin.  You then had other matters which would support his assertions of your alcoholism.  But most importantly in November 2009 you were sentenced to be imprisoned for a period of two years with a non-parole period of 12 months.  That sentence was for cultivate a commercial quantity of cannabis and use electricity without authority.  So the circumstances of it would appear to be somewhat identical, certainly, in the nature of the charge.  Whilst you do not get sentenced twice for one matter, the fact that you have done this before, been to gaol for it and decided to do it again obviously does not assist in your particular circumstances.

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

5You have now been in custody some 296 days.

6The Crown summary has been tendered.  In simple terms you had been living in New South Wales some time about five or six years ago, you returned to Victoria or came to Victoria.  You became the sole owner of a property in Morwell on 6 October 2016 and remained as I understand it, subject to forfeiture, the owner of that property.  I take into account that that property will be forfeit because of this offending and also a valuable motor vehicle which was on the premises will also be forfeit because of these proceedings.  I take that into account in accordance with the decision in I think McCloud was the decision and the appropriate provisions in the Sentencing Act.

7But in any event, on 21 August 2018, at approximately 8 o'clock in the morning police executed a search warrant at your house in Airlie Bank, Morwell.  They opened the front screen door and there was no response.  They then entered the property and saw you exiting a bedroom at the rear of the house.  You tried to run away but were arrested, there were no other people present.

8During the search police located 78 cannabis plants being grown hydroponically within five rooms.  They were at various stages of maturity.  They were analysed as cannabis and confirmed as having a combined weight of 82.25 kilograms.  Obviously that is the wet weight.  The systems in the premises included items such as carbon filters, heavy duty lights and lamp shades to enhance the cultivation.

9Police noted that the bedroom you had exited had an access point through a wardrobe to an en suite where a number of electrical transformers were setup to assist in powering the hydroponic setup.  There was an illegal electrical metre bypass and the theft of electricity involved something in the order of $18,000.  You do not speak English and accordingly upon arrest were not interviewed by police.

10The situation is that it is obviously a sophisticated - as much as I dislike using that word - setup of hydroponic cultivation.  It would not have been set up in a short time and whoever did it really knew what they were doing.  Your counsel conceded from the Bar table that the cost of such a set up would probably be in the order of around $50,000 or so, and you owned the house, there is electrical bypass; all those matters.  It is clearly a professional hydroponic setup.

11In this situation you have not given up any other person.  You have not made a statement involving others and it is hard for me to believe that this is solely your work.  The fact of that matter is that in this situation, whilst I do not criticise you for that aspect of it, you fall to be sentenced as this being your crop.  You are not to be sentenced as a crop sitter, you are to be sentenced as the proprietor of a commercial quantity over three times the limit that is set.  I have no doubt, as in most of these cases, I will never know what the truth of the situation is.

12The house was yours, I am not particularly satisfied with the answers I was given from the Bar table about how you came to acquire that house.  The motor vehicle in the yard was worth something like $40,000.  Again, I am not satisfied as to how you came to own that.

13The fact of the matter is though that you are charged on a one day cultivation and a one day theft.  You are to be sentenced on that one day and it is not a matter for me to be surmising of how long this operation might have been going on or what sort of profits you may have derived from it.  However, I do not sentence it as some abstract one off accidental occurrence.  You clearly have to be sentenced as responsible for it.

14The situation in my view is that clearly even without your prior convictions it calls for immediate custodial sentence of significant proportions.  It has to be regarded as serious.  It calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.

15When one looks at for example the comparative cases that were handed up by the Crown, which were of some assistance, it is clear that in your community a large number of the people who are sentenced for commercial quantity would appear to have backgrounds of Vietnamese origin.  I understand that is often because of the casino and fruit picking and all sorts of things.  But there has to be general deterrence so that people know that if you engage in this and you get caught you are going to get a punishment that is condign and in accordance with the level of the offending.

16Your counsel put forward materials on your behalf and I have taken those into account.  There is a report from psychologist, Mr Armstrong. He gave sworn evidence and I take that into account.  There is also sworn evidence given by your daughter and again I take that into account.

17Whilst I may have engaged in a certain degree of banter with your counsel about your background and the reliability of you as an historian, I do sentence on the basis that you were brought up during the course of Vietnamese war.  I will sentence on the basis that you were in north Vietnam during that period of time in your early childhood, through around about the age of 12.  I would accept that you were exposed to the dreadful consequences and violence that occurred during that period of time and that it has had a most deleterious affect upon you.  The suggestion is that you have a post-traumatic stress disorder and not just from the evidence given here but from my own experience for acting for people back in the 80s who suffered what you suffered, I would have no doubt that that would be the case.  You also have circumstances where you have dysphoria and that is noted to be genuine.  You are not a happy person, to say the least.

18I do not in these circumstances see how when you have done this before and been gaoled for it and then again years later be responsible, as I have to sentence you, for such a sophisticated setup that a post-traumatic stress disorder reduces the moral culpability involved in all this.  Post-traumatic stress disorders in my view tend to have a massive part to play in spontaneous criminal activity, where people simply are unable to contain themselves.  This is a calculated program.  There would have had to be the purchase of all the equipment, you would have had to know where you were going to sell it and accordingly I do not think it affects moral culpability.

19You have been in prison and I accept that it is difficult for you in circumstances where you do not speak English.  I accept that prison will be harder for you with a post-traumatic stress disorder, I have no doubt about that.  You are also in circumstances where being a person who desires to be isolated and I accept that from both your counsel and from the psychologist that would cause your difficulties as well.

20You are a person who is in continual pain to a level that is described in the medical reports that were tendered on your behalf and again I take that into account and sentence you as a person who has mental health issues and who has physical issues that will make gaol more difficult for you.

21The principles of Verdins, are enlivened to a certain extent, but as I have indicated it is serious offending and post-traumatic stress does not give rise to commercial quantities of cannabis and the accoutrements that go with it.

22The situation is as Mr Melasecca assertively put on your behalf, that you have had a sad existence.  You came to Australia without your family.  You left a wife and daughter behind.  You were able in the 1990s to bring that daughter to Melbourne and she is the lady who gave evidence in front of me today.  You have been - I do not know how she survived it, but you have done on my calculation a year and a half to two and a half years of gaol while she was out here as essentially, initially at least, a teenager and then later in her early 20s. It is conceded from the Bar table that you in your own mind, and I accept that as well, have a great sense of shame about having failed your family and your failed your daughter.

23In your circumstances there is no suggestion that you will be deported.  It is a situation often exists in such matters.

24As I have indicated I have had a look at the comparative cases and whilst they do not dictate the sentence they certainly put it within a range, which is effectively what I would have thought in the first place.  The other material that is contained within the depositions I obviously take that all into account on your behalf and I am prepared in this situation, certainly so far as a minimum term is concerned, to exercise a degree of mercy.

25You will be a significant period of time in custody.  You are approaching 60 and you have really got no future in front of you, in terms of working or possessions or anything along those lines.  Your daughter has indicated, and indicated under oath, that she is prepared to take you in upon your ultimate release.  She has a successful marriage and she has three young children and she is hopeful that your rehabilitation can involve simply being a grandparent and living in circumstances with her.  How realistic that is I have got no idea, but I sentence on the basis that I should give you an earlier opportunity for parole so that that can be realised, if at all possible.

26Obviously if you can be rehabilitated it is not only for your benefit and your grandchildren's benefit, as well as your daughter, but it is for the benefit of the community.  If you are not rehabilitated and you offend in this way again and are brought before a court for a crime such as this, I suspect deeply that you will probably never get released.

27But in any event, taking all of those matters into account and working on the basis that there is a change of you rehabilitating and not reoffending I sentence you as follows.

28On the charge of cultivate not less than a commercial quantity, three years and nine months.  On the charge of theft of electricity, four months.  I direct that one month of the sentence imposed on the theft be served cumulatively on the sentence imposed on Charge 1, which gives a head sentence of three years and ten months.  In all the circumstances I have described, I am prepared to give a minimum term of two years before you become eligible for parole.  I note that you have served 296 days of pre-sentence detention.

29In a situation such as this where pleas of guilty are to be encouraged, it is important for you to understand that your plea of guilty and your, well not cooperation essentially, you have not named anybody else but your not messing the court system around has been of benefit to you. So, that pursuant to s.6AAA of the Sentencing Act but for your plea of guilty, I would have sentenced you to be imprisoned for a period of five and a half years, with a minimum term of three and a half.

30Any other orders I need to make gents?

31MR GRAY:  No, only the orders in relation to disposal.

32HIS HONOUR:  I have signed those.  They are all done.  Yes.

33MR GRAY:  They are all done.  And also Your Honour needs to declare him a serious drug offender.

34HIS HONOUR:  Yes.  No, in fact I have got a note to that effect.  I read straight past it.  Yes.  Also, I declare that you are a serious drug offender.  I was aware of this and did not say it during it my sentencing remarks.  I am aware that on both of these - sorry, on the charge of cultivate, you are to be sentenced as a serious drug offender.  That is the situation where cumulation is automatic unless otherwise ordered.  For reasons of totality, clearly I am not going to give total accumulation in this situation.  I am aware that community protection becomes the principle sentencing purpose and in your particular situation hopefully this sentence achieves that and the Crown do not seek a disproportionate sentence and I would not have given you one in any event.  Yes, thanks Mr Gray for pointing that out.

35MR GRAY:  May it please Your Honour.

36HIS HONOUR:  Thanks, Mr Melasecca.  All right.

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