Director of Public Prosecutions v Nguyen and Hoang

[2014] VCC 1618

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHUOC NGUYEN
THI HOANG

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Bairnsdale
DATE OF HEARING:	25 September 2014
DATE OF SENTENCE:	25 September 2014
CASE MAY BE CITED AS:	DPP v Nguyen & Hoang
MEDIUM NEUTRAL CITATION:	[2014] VCC 1618

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW - SENTENCE

Catchwords:  Cultivation of a narcotic plant – Assault police – Guilty plea – No prior convictions – low level involvement – very small crop – strong chance of rehabilitation.

Legislation Cited:                 Sentencing Act 1991 (Vic)

Sentence:Mr Nguyen- 188 days of imprisonment. Ms Hoang - 49 days of imprisonment and convicted and released on an undertaking to be of good behaviour for a period of 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Slim	OPP
For Offender NGUYEN	Mr J. Mortley	Revill & Papa
For Offender HOANG	Mr N. Leslie	Revill & Papa

HER HONOUR:

1Phuoc Pham Nguyen, you have pleaded guilty to a charge of cultivation of a narcotic plant, namely cannabis and Thi Huang Trang Hoang, you have pleaded guilty to the same charge.  That is an offence which has a maximum penalty of 15 years' imprisonment.  Ms Hoang, you have also consented to this court dealing with a charge of assaulting a police officer in the execution of his duty and pleaded guilty to that offence.  That is an offence which has a maximum penalty of six months' imprisonment, or 25 penalty units.

2I proceed to sentence you both on the summary which was read out by the prosecutor today here in court and which is Exhibit A. 

3Cultivation of any amount of cannabis is a serious offence.  In this case it was a very small crop, but as I said, cultivation is still a serious offence.  You both realise that now, with what has happened.  However, your role has been conceded by the prosecution to be a very limited one, which I will go into in respect of each of you in a moment.

4I want to deal with a number of factors that I need to take into account for each of you and then I will deal with each of you separately. 

5You have both pleaded guilty to the charge and Ms Hoang also to the other summary offence.  You are both entitled to have the fact that you have pleaded guilty taken into account and I do so.  Because of your pleas of guilty, the community has been saved the time and cost of a trial and I can tell you that as a result, the sentence that I impose will be less than would have been imposed if you had been found guilty after a trial.

6Next, I take it into account that both of you indicated early your intention to plead guilty to the charge or charges and I accept that for each of you, your pleas of guilty show remorse for being involved in criminal acts. 

7Next you are both people who have no prior convictions and as a result you will be each sentenced as a person of previous good character before you committed this offence.

8Turning now to you Mr Nguyen, you are now aged 25 years and you were aged 24 at the time of the offence.  I have been told something of your personal history and your circumstances.  You were born and grew up in a city in North Vietnam and you obtained a degree at a University there in Information Technology.  You recognised that it would be hard to get a job in that area and so you made plans to study motor mechanics in Australia and return to Vietnam and set up a business, including selling spare parts for motor vehicles.  As part of your plan, you came here in 2012 and began studying basic English.  You enrolled in a number of courses and paid your fees through until 2017.  I do not know whether you will get your fees back.

9It was through your introductory English course that you met Ms Hoang and in September 2012 you became engaged.

10In March of this year, 2014, you were here in the East Gippsland area with Vietnamese friends and you were approached by a Vietnamese man offering employment.  Quite correctly, Mr Nguyen, you knew something was not right about it.  As you know, things that sound too good to be true always are.  However, you agreed to go along with this opportunity to make some money, because you had very little left after paying your fees in advance.

11Once you arrived at the property you well and truly knew that it was an illegal enterprise, but you went along with being what we call a “crop sitter”.  In the almost two weeks you were there, you were not able to contact the “boss” again and although you had been given some money for food and expenses, you were given no further funds.  I will come back to sentence you at the end.

12Turning to you now Ms Hoang.  You were born and grew up in a province in central North Vietnam, which I am told is a poor province.  You have had tragedy in your life by losing your mother to suicide when you were aged five and apparently you do not have a close relationship with your father.  You came to Australia in 2012, also to study and that was to do a business course at Ballarat University.  As I said before, you met Mr Nguyen during your introductory English course.  I do not know if you are still engaged.

13Around the middle of 2013, you stopped studying because you did not have enough money for the fees.

14You did not know that Mr Nguyen had gone down to East Gippsland, or at least you did not know that he had gone to the house where the crop was.  About a week and a half after he had been there he telephoned you and invited you to join him.  You did.  When you got to the house it was clear to you that what was there was illegal, but for three to four days you stayed there with him and you helped him by watering the cannabis plants.

15On 21 March 2014, police and RSPCA officers arrived at the property for a completely different purpose.  Neither of you spoke very good English and you, Ms Hoang drove off in a car because you were scared.  You later were contacted by telephone by Mr Nguyen, who told you he had been arrested and was in gaol.

16For the next little while, Ms Hoang, you did some work on a farm, but did not earn enough to return to study and then in August you were arrested by the police in Springvale when you were visiting a friend.  You were scared and angry and when you were handcuffed you lashed out at the police officer, which was, of course, an assault on him in the execution of his duty.  That is not as serious an offence as the cultivation of the cannabis, but you should be well aware that police officers are entitled to go about their business without being assaulted as they do so.

17You are aged 21 today.  Neither you nor Mr Nguyen have any prior convictions as I mentioned earlier and you, Ms Hoang, are well within the age group for which rehabilitation is seen as the primary purpose of a sentence given by a court.  Mr Nguyen, at the age of 25, you are still within that category in my view.  In other words, the young age of both of you is something that is taken into account in your favour.

18It has been conceded by the prosecution that the role that each of you played was at a very low level and it was for a very limited period of time, 13 days for Mr Nguyen and three to four days for Ms Hoang, and of course Ms Hoang you were only incidentally involved through Mr Nguyen.

19One of the purposes for which sentence is passed in this court is to seek to deter other people from committing the same sort of offence.  That is a very important purpose for charges involving cultivation of cannabis.  One of the other purposes is to try to prevent either of you from committing offences in the future.  I agree with your counsel that neither of you are likely to reoffend again and the purpose of deterring you from reoffending has probably been achieved by the time you have both spent in custody already. That has been difficult for both of you, as your English is limited.  While your families are aware of your situation in custody, they are not in this country to support you and being in prison has been very much a learning experience for both of you, such that you would not want to go back to gaol again in the future.

20Ms Hoang, an application has been made by the prosecution to take what is called an intimate forensic sample from you and you have consented to this.  I am satisfied that it is in the interests of justice, having regard to the seriousness of the offence, that I do order that an intimate forensic sample be taken from you.  That will be a saliva sample which is taken by wiping a swab inside your mouth.  Although you have consented, I must tell you that if you change your mind the police may use reasonable force to enable that procedure to take place.

21On behalf of both of you, your counsel submitted to me that a term of imprisonment must be imposed, but it was submitted for each of you that because of all of the matters in your favour and the circumstances of your particular offending, that I should sentence you to the time that you have already spent in custody.  I have decided that that is what I will do.

22So because of the low level of your involvement with a very small crop, your early pleas of guilty and remorse, your age, that you have never been in trouble with the law before, and that you are unlikely to commit another offence, I have decided that despite the seriousness of the offence, you should each be sentenced to the time you have already served, so that you may be released today. 

23Yes, stand up please, Mr Nguyen.  Mr Nguyen, on Charge 1 of cultivation of a narcotic plant, you are convicted and sentenced to 188 days' imprisonment.  I declare that you have served 188 days in presentence detention, and those days are to be administratively deducted from your sentence. 

24Ms Hoang, on Charge 1 of cultivation of a narcotic plant, you are convicted and sentenced to 49 days' imprisonment.  I declare that you have served 49 days in presentence detention, and those days will be deducted administratively from your sentence.  On the charge of assaulting a police officer, you are convicted and released on an undertaking to be of good behaviour for a period of six months.  There will be a document for you to sign for this undertaking.  If you are not in trouble with the police again in the next six months, then you do not need to come back to court.  If you are in trouble again, then you will be brought back on this undertaking. 

25I also have made the order for the forensic sample, as I previously described, for Ms Hoang, and for both Mr Nguyen and Ms Hoang, I have made the disposal orders and signed those. 

26Mr Nguyen, if you had not pleaded guilty but had been found guilty after a trial, the sentence I would have imposed on you is 12 months' imprisonment with six months suspended. 

27Ms Hoang, if you had been found guilty after a trial and had not pleaded guilty, on Charge 1 only, I would have sentenced you to six months' imprisonment. 

28Yes, just take a seat while we do the documentation. 

29Ms Hoang, this is the document for your agreement to be of good behaviour for the next six months. 

30Yes, I have signed the forensic sample orders.  Are there any other orders required?

31MR SLIM:  No, Your Honour.

32HER HONOUR:  All right, well I thank counsel for their assistance in this matter.  I perhaps should just explain that I did not include today's date in the presentence detention because they would not have been able to be released then until tomorrow. 

33Ms Hoang, Mr Nguyen, you will need to go back to the police cells before you can be released, and you will be released from there. 

34Yes.  Well I hope we do not see you in court again.  Thank you, we will adjourn then until 10 am tomorrow.

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