Director of Public Prosecutions v Nguyen and Lam

[2014] VCC 1971

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-14-00254
CR-14-00253

DIRECTOR OF PUBLIC PROSECUTIONS

v

Ha Son NGUYEN

and

Trung Viet LAM

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JUDGE:	HIS HONOUR CHIEF JUDGE ROZENES
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2014
DATE OF SENTENCE:	21 November 2014
CASE MAY BE CITED AS:	DPP v NGUYEN and LAM
MEDIUM NEUTRAL CITATION:	[2014] VCC 1971

REASONS FOR SENTENCE
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Catchwords:             CRIMINAL LAW – Cultivation of cannabis simpliciter – sophisticated hydroponic operation – limited role – no criminal history – imminent deportation

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Regan	OPP
For the Accused Nguyen For Accused Lam	Mr Dickenson Mr Bourke	Valos Black Valos Black

HIS HONOUR:

1       Ha Son Nguyen and Trung Viet Lam, you have each pleaded guilty to one charge of cultivating a narcotic plant, namely Cannabis L, which carries a maximum penalty of 15 years’ imprisonment.  You, Nguyen, have also pleaded guilty to one uplifted summary charge of deal with property suspected of being the proceeds of crime. Neither of you have prior convictions.

2       The facts of the case were opened by Mr Regan and are contained in the Summaries of Prosecution Opening, Exhibits A and B.

3       In brief summary, on 2 September 2013, after conducting surveillance on a factory in Sunshine North, police entered and located a sophisticated hydroponic set up within seven rooms of the premises.  The electricity had been bypassed, preventing the electricity supplier from assessing accurately the amount of electricity used.  A total of 523 cannabis plants were found with a total weight of 258.92 kilograms.  The undertaking was most sophisticated. You were both arrested and when interviewed by police made admissions to attending the factory on various occasions to tend the plants with the promise of receiving payment for doing so. You were both remanded into custody and have remained there since.

4       On 12 June 2014 I sentenced one of your co-offenders, Ngoc Trung Nguyen, to be imprisoned for 212 days. I declared 212 days of pre-sentence detention as having been served under that sentence.  In other words, I effectively sentenced him to time served. His involvement with the enterprise was somewhat shorter than yours, only one day, a fact which was recognised in his indictment which covered only the one day. Your indictment, Nguyen, covers cultivation over a period of some 3 weeks and yours, Lam, one month.  The dates are fixed as a result of the admissions you made to police.

5       I have received sentencing submission in writing from both of your counsel. In your case, Nguyen, Exhibit 1. You are 23 years old, born in Vietnam. You did well at school and completed year 12. You came to Australia on a student visa. The rest of your family is presently in Vietnam. You studied here and completed a diploma in Small Business Management.  In 2013 your family in Vietnam were unable to continue to support you financially and you accepted the offer to assist in the cultivation of this crop.  Your student visa has been cancelled and you have been advised that immediately upon your release from custody you will be taken into administrative detention and deported. A number of certificates attesting to your studies were tendered on your behalf, Exhibit 2.

6       In your case, Lam, your counsel also filed an outline of submissions, Exhibit 3. He submitted that you only visited the factory on three occasions and that you also had no interest in the crop other than to be paid for your labour.  You too have had your student visa cancelled and will upon being released from custody be detained by the immigration authorities pending your deportation.

7       Each counsel submitted that there was not much to distinguish you from the case of Ngoc Trung Nguyen and that principles of parity in sentencing co-offenders require sentences which are not disparate.  The only difference of any significance between each of you and Ngoc Trung Nguyen is that he only attended the factory on the one occasion.  It is of course also apparent that the timing of his plea resulted in a shorter period of pre-sentence detention than yours, a fact which will, if considered superficially, result in what would appear to be an disparate sentence.  The timing of the plea and the length of time during which the offending occurred are appropriate matters which would explain the differential treatment. I note I said at the time of Ngoc Trung Nguyen’s sentencing that the fact he was only present on the one occasion was a fact that was persuasive in him pleading to cultivation simpliciter.  Your involvement was somewhat more extensive and in my view you are indeed fortunate to have also been permitted to resolve your matter by a plea to the lesser charge.  As far as hydroponic cannabis operations go, this is one of the more significant ones seen in recent times.

8       The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community.  In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society. 

9       The cultivation of cannabis is a serious offence carrying a maximum penalty of 15 years.  It is clear that, save in exceptional circumstances, cultivation of cannabis in a commercial quantity requires the imposition of a custodial sentence.  Yours was not a plea of guilty to a cultivation of a commercial quantity, but the quantity of cannabis involved in the undertaking was very substantial.  Once it is established, as it has been here, that the cultivation of  cannabis was driven by commercial motives, it is almost inevitable that a prison sentence to be served immediately will result.  Production of cannabis hydroponically in domestic or commercial premises has become prevalent and once the electricity supply has been bypassed it is difficult to detect.  The grave harm which cannabis grown by modern methods can inflict has been noted by many judges.  For these reasons, general deterrence must therefore play a significant role in the sentencing process.  As I said, the undertaking in the present case was most extensive and the quantity of cannabis likely to be produced was very significant.

10      I accept that you were not involved in the setting up of the enterprise, had no connection to the premises and it was not intended that you benefitted directly from the harvesting of the crop.  Your actual involvement with the crop, whilst not as short as that of Ngoc Trung Nguyen, was nevertheless relatively short in point of time.

11      It follows that you are both at the lower end of the scale of seriousness.  Irrespective of this, people involved, even at the lower end in the process of commercial cultivation, must be discouraged. 

12      Your sentence is less severe than I would have imposed had you pleaded not guilty.  Your pleas were offered after a contested committal hearing and you are entitled to a sentencing discount. Your plea saves time, expense and the need for witnesses to give evidence against you, and is reflective of remorse.

13      On the charge of cultivating a narcotic plant, being cannabis, you are each convicted and sentenced to be imprisoned for 445 days.  I declare in each case that 445 days of pre-sentence detention be reckoned as having been served under the sentence and I direct that a declaration to that effect be recorded in the records of the court.

14      You, Nguyen, are convicted and discharged in relation to the uplifted summary charge.

15 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted.  Had you been convicted after a trial, I would have sentenced you each to 18 months’ imprisonment.

16 In each case I make an order pursuant to s 464ZF(2) of the Crimes Act 1958. I do so because of the seriousness of the circumstances of the offending, and because the application is by consent. I am obliged to inform both of you though, that notwithstanding that you have consented to the procedure, if you resist the taking of the sample, reasonable force may be used by the police.

17      I make the forfeiture order in respect of the summary charge in the terms sought, noting it is consented to.