Director of Public Prosecutions v Nguyen

[2019] VCC 669

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR 18-02568

DIRECTOR OF PUBLIC PROSECUTIONS

v

NGAN NGUYEN

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Bairnsdale
DATE OF HEARING:	14 May 2019
DATE OF SENTENCE:	14 May 2019
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2019] VCC 669

REASONS FOR SENTENCE
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Subject:

Catchwords:  Cultivation of a commercial quantity of a narcotic plant; Cannabis; Crop-sitter; General deterrence; Protection of the community; Hardship of imprisonment

Legislation Cited:
Cases Cited:  Nguyen v The Queen [2017] VSCA 286
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward	Office of Public Prosecutions
For the Accused	Ms C. Salter	Vale Criminal Law

HIS HONOUR: 

1Ngan Nguyen, you have pleaded guilty to one count of cultivation of a commercial quantity of a narcotic plant contrary to s.72A of the Drugs, Poisons And Controlled Substances Act 1981. The maximum penalty for that offence is 25 years imprisonment.

2You pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence. 

3You have no prior convictions, subsequent convictions or outstanding charges. 

4The prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –

5In May 2018, the East Gippsland Crime Investigation Unit commenced an investigation into illegal drug activity at premises located at 168 Macleod Street, Bairnsdale.  Covert optical surveillance was in place in relation to the premises and you were observed coming and going from that address on a regular basis.  Surveillance also showed two other offenders, Houn Bui and Van Lam, coming and going from those premises.  It is the prosecution case that you were engaged in crop sitting duties at the premises and Bui and Lam were involved in the offending at a higher supervisory level.

6On 8 August 2018, a search warrant was executed at the premises and investigators there located a cannabis crop spread across five rooms.  A sophisticated cultivation system was in place and operating, and the investigators located 133 cannabis plants of varying maturity with a combined weight of 68.42 kg.  An electrical bypass was also located at the premises but it is not alleged that you were involved in its installation or use. 

7Search warrants were simultaneously executed at premises that you and your co-accused resided at and you were there arrested by investigating police.  A record of interview was conducted at the Bairnsdale police station with you during which time you denied your offending. 

8I have been informed by the prosecution that your co-offender Lam pleaded not guilty at contested committal proceedings yesterday in Bairnsdale and the case of Bui was recently adjourned.

9The sentencing principles in relation to offending of this type are well-established.  General deterrence is a significant sentencing consideration and the sentence must be calculated to deter you and others from offending in this way although, I accept, as was submitted by the prosecutor that specific deterrence is not a significant consideration in your particular case.

10The protection of the community also looms large and like-minded persons must be deterred from offending in this manner for profit.  Illegal drugs of dependence including cannabis cause immeasurable harm to our community.

11Your offending falls at the lower end of seriousness for offences of this type and it is accepted by the prosecution that you were a crop sitter.  Nevertheless, persons performing that role do perform an important part of offending of this type.

12I now turn to your personal circumstances –

13You were born on 3 December 1970 in then North Vietnam.  You are a well-educated person and interestingly enough, obtained a Diploma of Irrigation in Vietnam.  After your education there, you migrated to Japan where you were employed in a factory.  You are married in Vietnam and have three children. 

14You travelled to Australia for business purposes most recently in 2016, but the business that you were engaged in was unsuccessful and you found yourself working as a labourer on a farm here in East Gippsland in order to obtain funds to return to Vietnam.  It was there that you were approached by your co-offenders who enlisted you as a crop sitter.  It is in that context that your offending was committed.

15You were remanded in custody following your arrest and have been in custody now since that time.  You are relatively isolated within prison as you have limited English although your counsel informed me that there are also Vietnamese persons in custody with you in Fulham Prison and you are therefore not completely isolated.  Nevertheless, you have only had very limited contact with your family and have had no prison visits.  You will be deported when you are eligible for release from custody. 

16I accept that your relative isolation in prison has increased the hardship that would otherwise be the case. 

17There are no psychological or physical issues in your case and it would appear that you have engaged well in prison and have undertaken an anger management course there.

18I am satisfied that your prospects of rehabilitation may properly be described as very good. 

19I have had regard to similar sentences imposed in cases of this nature, both by this court and as summarised by the Court of Appeal in the decision of Nguyen v The Queen [2017] VSCA 286.

20In the result, the sentence of the court is as follows –

21In relation to the charge of cultivation of the commercial quantity of a narcotic plant, you are convicted and sentenced to be in prison for 18 months. I direct that you serve nine months before becoming eligible for release on parole. 

22I declare that you have served 279 days by way of pre-sentence detention, not including today. 

23But for your plea of guilty, I would have imposed a total effective term of imprisonment of two years and fixed a non-parole period of 15 months. 

24I will make the forensic sample order sought on behalf of the prosecution.

25HIS HONOUR:  Mr Nguyen, I have made a forensic sample order in your case meaning that the police are empowered to take a sample from you, it will simply be some saliva taken from your mouth, I would imagine.  And they are permitted to use reasonable force in order to obtain that sample.  It is a simple straightforward process. 

26HIS HONOUR:  We will now adjourn until 10 am tomorrow.

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