Director of Public Prosecutions v Nguyen
[2019] VCC 363
•22 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02447
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HONG NGUYEN |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 March 2019 | |
DATE OF SENTENCE: | 22 March 2019 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 363 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Two charges of cultivating a narcotic plant, Cannabis L., in a commercial quantity, one charge of possessing a controlled weapon and two charges of failing to stop after a motor vehicle accident in which property was damaged.
Legislation Cited: Criminal Procedure Act 2009; Sentencing Act 1991; Crimes Act 1958; Confiscation Act 1997
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Peek | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr C Nikakis | Haines & Polites |
HER HONOUR:
1 Hong Nguyen, you have pleaded guilty to two charges of cultivation of a narcotic plant in a commercial quantity, each of which carries a maximum penalty of 25 years’ imprisonment. In addition, you have consented to three summary charges being transferred to this Court pursuant to s145 of the Criminal Procedure Act 2009. You have pleaded guilty to those three charges. They comprise one charge of possessing a controlled weapon, which carries a maximum penalty of 12 months’ imprisonment and two charges of failing to stop after a motor vehicle accident in which property was damaged. The maximum penalty for the first of the latter offences is 14 days’ imprisonment or 5 penalty units and for the second is between 14 days and 1 month imprisonment or 10 penalty units.
2 The circumstances of your offending are summarised in the prosecution opening, Exhibit “A”.
3 Each of the charges of cultivation were detected on 16 August 2018. Charge 1 relates to a sophisticated hydroponic cultivation system occupying four rooms of a house at 79 Barkly Street, Mordialloc. Upon executing a search warrant police found 252 cannabis plants which weighed 105.26 kilograms. Charge 2 relates to another sophisticated hydroponic cultivation enterprise being conducted in four rooms of a house at 20 Mora Avenue, Oakleigh. Upon executing a search warrant police located a total of 109 cannabis plants which together weighed 78.39 kilograms.
4 At approximately 2.50pm on 16 August 2018 in the course of executing the search warrant at 20 Mora Avenue, Oakleigh, police noticed a vehicle drive slowly past. It was registered in your name and you were driving. You noticed police in the driveway and accelerated along Mora Avenue and turned right into Johnson Street. In the course of driving north along that street, you collided with the passenger side of a vehicle which was turning into a driveway, but you did not stop. This comprises summary Charge 9, failing to stop a vehicle after an accident. You continued along Johnson Street and collided with another vehicle which was legally parked and also had a person in it. Again, you did not stop. This comprises summary Charge 10, failing to stop a vehicle after an accident.
5 Police ultimately intercepted you and arrested you in Kangaroo Road, Oakleigh. A search of your vehicle located a meat cleaver underneath the driver’s seat. This comprises Charge 11, possessing a controlled weapon without an excuse.
6 Shortly after being apprehended by police on 16 August 2018, you participated in a record of interview in which you made full and frank admissions. You stated that you were without work and, after meeting a person at the Springvale Market who told you that he would pay you $3,500 in order to fertilise and water the cannabis plants for a period of five to six weeks, you agreed to do so. This arrangement was on the basis that you lived at the house at 20 Mora Avenue, Oakleigh and tended the plants there, as well as going daily to the other address at 79 Barkly Street, Mordialloc to tend the plants there. You stated that, before you became involved, the sophisticated hydroponic setup was already in place and someone else had been doing the watering and fertilisation, but had apparently returned to Vietnam.
7 You told police that the boss “had told you that, if you saw strangers at the house, you should not go inside.” You stated that you drove past the Oakleigh property and saw many people there, so you fled in the car and, when the police sirens started, you got frightened. You admitted that you saw a car turning and, as you went around it, you heard a sound which may have related to its rear mirror, but were unable to say how many cars were damaged. You stated, also, that you were worried because you had overstayed your visa and knew that your presence in the country was illegal.
8 You are presently aged 48 years, having been born in Vietnam on 6 June 1970. You come before the Court with no prior or subsequent criminal history.
9 In a plea on your behalf by Mr Nikakis, the Court was told that you come from a small town of approximately 10,000 people in central Vietnam. You have been married for 25 years and have three children. You have a limited education and no particular qualifications or skills. You eked out a humble existence there by taking a mobile cart to markets to sell food, which had been cooked at your home.
10 Mr Nikakis stated that you had heard that it was possible to improve your situation by coming to Australia to undertake handyman work. However, you knew only one person here, a nephew. You took out a loan in order to fund your fare here and arrived in 2016 on a three month tourist visa. Obviously, this visa had long expired by the time you were arrested by police. Mr Nikakis stated that you had been employed within the Vietnamese community doing a variety of unskilled labouring jobs and would send money home to your family. However, as it was known that you were here as an illegal immigrant, you were paid relatively modest amounts in cash and had no fixed address and would move from one room in a house to another in order to be close to wherever you could obtain work. Mr Nikakis painted a picture of a lonely and fairly miserable existence here in Australia. He stated that, when your labouring work dried up and you were offered the opportunity to earn $3,500 by tending these crops, you took it because you were in fairly desperate circumstances.
11 Mr Nguyen, the offence of cultivation of cannabis in a commercial quantity is a serious crime as indicated by the maximum penalty of 25 years’ imprisonment. Although the prosecution concedes that you had a lowly role as a crop sitter and the charges on the indictment relate to offending conduct on one day only, it is important to bear in mind that the illicit drug trade does much harm in our community and it could not prosper if it were not for people like you who were prepared to tend the crops. Although your role was at the lower end of the hierarchy of offending, it was a role which was essential in order for the illegal cultivation of the two crops to flourish.
12 The crime of cultivating cannabis is a prevalent one and difficult to detect. It is clear that, in sentencing you, the Court must denounce your conduct and apply the principle of general deterrence, so that others who are minded to take the risk of assisting in the illegal drug trade will know that they will meet with appropriate punishment. In this case, your criminal activity involved attending two crops. Charge 1 involved approximately 4 times the commercial quantity and Charge 2 involved approximately three times the commercial quantity. Having said that, I do note that there is no evidence that you were to be paid other than the sum of $3,500 in total for your work on both crops, whilst apparently also having the benefit of residing at the Oakleigh house. This type of remuneration and benefit is of a relatively insignificant nature compared to the potential commercial profit which the organiser or organisers of this enterprise stood to make. Nevertheless, as your counsel acknowledges, in all the circumstances, the only appropriate sentence for the charges of cultivation is one of imprisonment.
13 The manner in which you fled from police at speed and manoeuvring your vehicle so as to make contact with two other vehicles, each of which had a person inside, must be condemned. You are fortunate that no injury was caused to those persons and the property damage was apparently minimal.
14 As far as the meat cleaver is concerned, although it would appear to be an unlikely object to utilise in the eating of an apple (as you told police), I note from your record of interview that you made reference to intending to work at a butcher shop.[1] Also, I note from the photographs of the room in which you were sleeping at the Oakleigh house, you appear to have had very few household possessions. In the circumstances, I find that there is no evidence that you possessed this item for a sinister purpose.
[1] Answer to Q 103 in record of interview
15 In your favour, I take into account that you were cooperative with police and made admissions to your involvement in the offending. You indicated an intention to plead guilty at the earliest opportunity. In my view, your honesty when interviewed, coupled with your early plea of guilty, are capable of being indicative of remorse for your involvement in these offences. Thus, you are entitled to a high discount on the sentence which otherwise would have been imposed.
16 Although it is plain that a sentence of imprisonment must be imposed in order to condemn your conduct, let others know that it is not worth the risk of being involved in these illegal cultivation offences and to serve the end of just punishment, I consider that your involvement in this offending was not motivated by greed but by necessity because of your reduced financial circumstances and limited capacity to improve your lot. I say this to distinguish you from those who deliberately engage in the insidious illicit drug trade for profit, but I want to make it plain that the sentence which I impose must also make it clear that people who stay in Australia illegally and then try to support themselves by committing such crimes will not be excused and will be appropriately punished. You had no business being in Australia beyond the period of your three month tourist visa and it was never an appropriate visa to fulfil your intention of performing work here. However, I do accept that you did not come to Australia with the intention of committing the offences for which I must sentence you.
17 You are 48 years old and have spent 218 days in custody. I understand that your inability to speak English made the first few weeks in custody very difficult and ultimately you were moved to Fulham Prison to serve out your period on remand because there are other Vietnamese prisoners there with whom you could communicate. You are removed from family in Vietnam and other social supports, but, unhappily, this is a consequence of the action which you took in illegally staying in this country and then committing these offences. However, I consider it likely that you have learned your lesson about how extremely unwise your illegal conduct was and that, at your age, it is unlikely that you will reoffend. Accordingly, I assess your prospects of rehabilitation as good, particularly in circumstances where there is no history of illicit drug use, dishonesty or any other antisocial behaviour.
18 Given that I must impose a sentence of imprisonment on Charge 1, you stand to be sentenced on Charge 2 as a serious drug offender. Section 6E of the Sentencing Act requires the sentence on Charge 2 to be served cumulatively unless the Court otherwise orders. Ms Peek for the prosecution has conceded, appropriately in my view, that given that Charge 1 and Charge 2 were committed on the same day, relate to the same cannabis cultivation enterprise (albeit at two separate houses) and that you were to be paid one set fee in relation to both crops, that total cumulation is not warranted. I am mindful of the principle of totality and consider that, although some cumulation is warranted, to provide total cumulation in the circumstances of your offending would be unjust. It has not been submitted by the prosecution that the sentence imposed on Charge 2 should be disproportionate to the gravity of offending in order to achieve the principal purpose for which the sentence is imposed, namely, the protection of the community.[2] I find no need for a disproportionate sentence in the circumstances.
[2]Sentencing Act 1991 (Vic) s 6D
19 Although it is plain that you will be deported at some stage when you are released from custody, Mr Nikakis sensibly did not attempt to argue that this occasioned any hardship. Plainly you had no entitlement to be in Australia for a substantial period after the expiry of your three month tourist visa up until the time of your arrest, and to be sent back to Vietnam where your wife and family reside, could not meet the test of hardship. Whilst you may spend some time in Immigration detention prior to being deported, this was always going to be a risk you faced regardless of any criminal offending.
20 Would you stand up please, Mr Nguyen.
21 On Charge 1, cultivating cannabis in a commercial quantity, you are convicted and sentenced to be imprisoned for a period of 15 months.
22 On Charge 2, cultivating cannabis in a commercial quantity, you are convicted and sentenced to be imprisoned for a period of 10 months.
23 On summary Charge 9, failing to stop a vehicle after an accident, you are convicted and sentenced to be imprisoned for a period of 7 days.
24 On summary Charge 10, failing to stop a vehicle after an accident, you are convicted and sentenced to be imprisoned for a period of 14 days.
25 On Charge 11, possession of a controlled weapon, you are convicted and discharged.
26 The base sentence is that imposed on Charge 1. I order that 5 months of the sentence imposed on Charge 2, 3 days of the sentence imposed on summary Charge 9 and 4 days of the sentence imposed on summary Charge 10, be served cumulatively upon the sentence imposed on Charge 1 and upon each other. The total effective sentence is thus 20 months and 7 days’ imprisonment.
27 I direct that a period of 14 months’ imprisonment be served before you become eligible for parole.
28 I declare a period of 218 days pre‑sentence detention to be time reckoned as already served under the sentence imposed this day.
29 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 3 years’ imprisonment with a non-parole period of 2 years and 2 months.
30 I cause to be noted in the records of the Court in respect of Charge 2 that you have been sentenced as a serious drug offender.
31 On Charges 1 and 2, I order pursuant to s464ZF(2) of the Crimes Act 1958, that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with subdivision 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for the placement on the database. I consider that this order is justified by reason of the seriousness of the circumstances of the offending on Charges 1 and 2 and the fact that the order is not opposed.
32 Mr Nguyen, this involves you being provided with a cotton bud and being required to take a sample of saliva from inside your mouth. You need to be aware that, if you do not consent to the taking of this sample, then police may use reasonable force to enable that procedure to be conducted.
33 Pursuant to s33(1) of the Confiscation Act 1997, I order that one black Apple iPhone 8 be forfeited to the Minister.
34 Pursuant to s78(1) of the Confiscation Act 1997, I order that some eight items of property referred to in the schedule to this order be forfeited to the State and I further direct that they be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date, or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
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