Director of Public Prosecutions v Nguyen

[2019] VCC 741

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00067

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL NGUYEN

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2019
DATE OF SENTENCE:	22 May 2019
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2019] VCC 741

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW - SENTENCING

Catchwords:   Cultivate narcotic plant not less than a commercial quantity of cannabis L – theft of electricity and possession of drug of dependence – early plea of guilty – relevant prior conviction for cultivation of not less than a commercial quantity of cannabis L – immediate term of imprisonment imposed

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991            

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. McCarthy	John Cain, Solicitor for the Director of Public Prosecutions
For the Accused	Mr S Norton (Plea) Ms T. Di Paolo (Sentence)	Stary Norton Halphen

HER HONOUR:

1Paul Nguyen, you have pleaded guilty before me to one charge of cultivation, narcotic plant, not less than a commercial quantity of cannabis L, possession of a drug of dependence, namely methylamphetamine and theft of a quantity of electricity. 

2Each of those offences are serious and that is reflected in the maximum penalty that is prescribed by law and they are 25 years' imprisonment in respect to the cultivation charge, Charge 1; one year imprisonment or 30 penalty units in respect to the possession of drug of dependence, Charge 2; and ten years' imprisonment in respect to the charge of theft, which relates to Charge 3, theft of electricity. 

3I shall now proceed to sentence you on the basis of the amended Crown opening that was read at the plea hearing that sets out circumstances of the offending. 

4In short compass, you are to be sentenced in respect to the cultivation of not less than a commercial quantity of cannabis L, an illegal bypass of electricity, as well as possession of a small amount of methylamphetamine. 

5On Tuesday 23 October 2018 at 10.30 am, police executed a search warrant, pursuant to s.81 of the Drugs, Poisons and Controlled Substances Act 1981, at 16 Spring Street, Springvale South. There they located a hydroponic cannabis L crop in two rooms and in total they found 122 plants that were later analysed and a total weight of 33.85 kilograms was recorded.

6A commercial quantity of the drug cannabis L is either 25 kilograms or 100 plants. 

7The cannabis L was being grown utilising a sophisticated hydroponic setup and various paraphernalia associated with the setup was located.  In addition, an electrical bypass was found in the roof cavity of the premises.  A small zip-lock bag containing 1.09 grams of methylamphetamines was located on a table in the kitchen. 

8I am satisfied, having regard to the amount of methylamphetamine that was found, that it was being for personal use and you will be sentenced on the basis that is personal use. 

9Following your arrest, a formal interview was conducted by police, during which you made fulsome and frank admissions in relation to the establishment of the hydroponic cannabis crop.  You admitted that you had rented the premises with the intention of growing cannabis.  You acknowledged that the plants that were found were grown by you and you said that you intended to sell the cannabis and that you had personally installed the electrical bypass.  You told police that the methylamphetamine was being used by you so that you could stay awake to look after the plants.

10At the time you were arraigned, you also admitted your prior criminal history.  Of significance and relevance in my sentencing you today, is the prior conviction recorded at the County Court Victoria on 22 May 2008 in relation to cultivation of a narcotic plant, namely cannabis L.  On that occasion you were charged on the basis that you were a crop sitter engaged by persons unknown to care for a cannabis crop that was being grown hydroponically at a St Albans house. 

11The sentencing judge accepted that you were connected to the crop in the role as a crop sitter only and that you were to receive payment, or were promised payment for that role.  You were treated as being at the bottom end of the ladder of those responsible for the cultivation of that particular crop. 

12On that occasion you entered a plea of guilty and made full admissions.  You had no prior convictions, nothing outstanding or subsequent offending to be dealt with by the court and His Honour sentenced you to a period of 18 months' imprisonment, however that sentence was wholly suspended for a period of
18 months, pursuant to s.27 of the Sentencing Act 1991, as it then was.

13On 11 March 2015, you were convicted and fined an aggregate sum of $800 in respect to possession of methylamphetamine, possession of dangerous article in a public place and use methylamphetamine. 

14I shall proceed to sentence you, having regard to the gravity of your offending.  I consider it is serious offending and it represents offending that is towards the lower end of scale of seriousness for cultivation of not less than a commercial quantity of cannabis L. 

15General deterrence and specific deterrence are significant features of your sentence, as well as denunciation.  On behalf of the community, I formally denounce your behaviour.

16Mr Norton outlined your history and background for the court.  You are now 36.  You were 35 at the time of the offending.  You were born in Vietnam in abject poverty.  Your father died when you were very young.  Following his death, your mother remarried and left the family home and you have had no further contact with her since then.  From the age of about three, you have been raised by your grandmother and an aunt, Thao Nguyen. 

17The stated reason for this offending was that you were motivated by your desire to remit moneys back to Vietnam to pay for your grandmother's medical treatment.  She has been diagnosed with a brain tumour. 

18Since the offending, you have been on remand and have received no visits and you are uncertain as to your grandmother's current status.  You have been too embarrassed and ashamed to tell your aunt, Thao, the true reason why you are in gaol.  She believes that you are in gaol for driving offences. 

19You are an Australian citizen and have lived in Australia since 1995.  You travelled here as a 12 year old with your aunt, Thao. 

20You were able to complete Year 12 and initially had an ambition to be a police officer.  However, after completing a two year training course, you elected not to pursue that career because you doubted your ability to be able to cope with the challenges associated with such a life.  You have, however, in the past, demonstrated a strong work ethic and you have a good work history, working as a factory hand, machine operator, laser cutter and handyman. 

21Your aunt, Thao, continues to live in Springvale. 

22The circumstances of the earlier offending relating to cultivation of a cannabis crop, are that you were involved in a family business venture that was unsuccessful.  You were gambling at that time in an endeavour to try to become more financially secure.  You were unsuccessful in that regard and became indebted to others, who then offered you a way out by you sitting as a crop sitter. 

23In respect to this current matter, you accept that you were the person solely responsible for the establishment of the crop and the installation of the illegal bypass that avoided the electricity being recorded. 

24Your role, it is accepted, can be distinguished from a player who is involved in a larger criminal syndicate.  Somewhat naively, you considered that you would be able to profit from this venture and that would enable you to be able to remit moneys to your family in Vietnam for your grandmother's medical expenses. 

25Prior to your arrest on these charges, the home was invaded, you were tied up, your car smashed and the crop that had been grown by you was stolen.  You then embarked on a further crop.  That crop was seized at the time of the execution of the search warrant.

26As a consequence of the home invasion, you were staying at the property, using methylamphetamines so that you could stay awake to tend to the crop and in addition, to ensure that no one else would attend the property and steal the second crop and thus relieve you of your potential profits.

27You will be sentenced on the basis that you are the person who is solely responsible for the establishment of the crop and the illegal bypass. 

28I have had regard to all the matters put in mitigation on your behalf by Mr Norton.  I accept the plea of guilty was entered at the earliest stage, at the first committal mention on 16 January 2019.  By your plea, you avoided the necessity of a committal hearing and also a trial being conducted.  You saved the court the time and expense of such and therefore have facilitated justice and your sentence will be discounted accordingly.  I accept the plea is further evidence of remorse on your behalf.  You now accept that what you did was wrong.

29I have also had regard to your level of cooperation and the fact you made full and frank admissions to police.  I accept that that is further evidence of remorse on your behalf. 

30This is the first time you have spent in an adult custodial setting and you have utilised your time productively.  You are working as an induction billet and as the Vietnamese/English translator at the sick bay medical facility.  You have participated in numerous courses that are occupational in nature. 

31At the time of the offending, you were regularly using methylamphetamines.  Your use escalated following the home invasion that I have earlier referred to.  You were using methylamphetamine for approximately two to three years prior to the offending. 

32It is conceded on your behalf that a term of imprisonment to be served is the most appropriate punishment and that a head sentence and non-parole period must be fixed. 

33Both general and specific deterrence have a role to play in the sentence, as
I have earlier indicated.  It is important that the court sends out a message to others who are tempted like you to grow cannabis as a means of quick profit to tell them that if they are apprehended for this sort of criminal conduct, then they should be aware that they face stern punishment and that a term of imprisonment is likely.

34I consider overall that your rehabilitation prospects are good and that you do have appropriate insight into the wrongfulness of your conduct and regret sincerely your involvement in this offending.  For the future you will have to address your drug problem, which was in part a factor that played a part in your role in this offending. 

35I had regard to the various sentencing remarks that were provided to the court by the parties and also the sentencing statistics as complied by the Sentencing Advisory Council and the relevant sentencing snapshot.  Ultimately I must sentence you on the basis of the particular circumstances of your offending and your antecedents and the other matters put in mitigation on your behalf, all of which were accepted.  I must impose just punishment.

36I will ask that you now stand and I will announce the formal orders.

37Charge 1, that is the cultivation of a narcotic plant not less than a commercial quantity.  You will be convicted and sentenced to three years' imprisonment.

38Charge 2, possess drug of dependence, you will be convicted and discharged.

39Charge 3, theft, you will be convicted and sentenced to six months' imprisonment.

40I direct that three months of the theft charge be cumulative upon the sentence imposed on Charge 1.

41That makes a total effective sentence of three years and three months.  And I fix a non-parole period of two years.  The non-parole period is shorter than it would otherwise have been because of your efforts towards your rehabilitation and your prospects of rehabilitation  generally.

42Pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have imposed a term of imprisonment of five years, to serve three years.

43I make a declaration that you have spent 211 days in pre-sentence detention and I direct that the be reckoned as time already served on the sentence I have just announced and I direct that that declaration be entered into the records of the court. 

44I make the disposal order sought and the forfeiture order sought. 

45Finally, I make the order for the taking of a forensic sample.  Having regard to the circumstances of the offending, I consider that such an order is warranted and it is also in the public interest to grant such an order.  I note that the order was not opposed.

46Mr Nguyen, what that means is, that at some stage you will be asked to provide a forensic sample to police and that will be by way of a sample of taking a scraping from your mouth using a little cotton bud.  If you do not consent to the procedure, then under the supervision of an authorised member of the police force, a sample can be taken by way of blood sample and police may use reasonable force to ensure the procedure is conducted. 

47So that completes my sentencing remarks. 

48MS DI PAOLO:  May it please the court.

49MR McCARTHY:  As Your Honour pleases.

50HIS HONOUR:  All right.  Thank you.  All right, we can adjourn.

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