Director of Public Prosecutions v Nguyen, Duc Quang
[2013] VCC 673
•17 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00296
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUC QUANG NGUYEN |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2013 | |
DATE OF SENTENCE: | 17 May 2013 | |
CASE MAY BE CITED AS: | DPP v Nguyen, Duc Quang | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 673 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E Ramsay | OPP |
| For the Accused | Ms E Turnbull | Turnbull Lawyers |
HIS HONOUR:
1 Duc Nguyen, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely cannabis, between 7 December 2011 and 7 December 2012, an offence punishable by 15 years imprisonment.
2 In addition, you have pleaded guilty to three charges of the summary offence of dealing with property, suspected of being the proceeds of crime, that relate to $20,000 cash, a BMW 320i Sedan and a Honda Integra Coupe. Each offence is punishable by two years imprisonment.
3 The facts that support the charges are set out in the Summary of Prosecution Opening that was read aloud in Court and exhibited on the plea as Exhibit A.
4 In short compass, police executed a search warrant at premises occupied by you at 18 Skeeter Drive, Mernda. The search revealed:
· 81 cannabis plants,
· 44 light globes,
· 44 light shades and mounting hardware,
· six containers of plant chemicals,
· a BMW Sedan,
· a Honda Coupe, and
· $20,000 in cash located in a shoe box on the desk in the master bedroom.
All of these items are depicted in Exhibit B on the plea, a booklet of 121 photographs.
5 The cannabis found at your address consisted of 33 juvenile plants (seedlings/cuttings) found in a grow box in the kitchen pantry. The remaining 48 plants were distributed throughout the house in bedrooms, described on the police search log as Rooms 7, 8, 9 and 10. The plants were being grown hydroponically and the house was replete with lights, shrouds, transformers, piping and plant nutrients. The electricity supply had been bypassed. It is clear that the police found a crop under cultivation with another in embryonic form waiting in the wings.
6 You were arrested and conveyed to the Fawkner Police Station where you participated in a video recorded interview. During the interview, you made full admissions to trafficking in cannabis for approximately 14 months. You admitted buying both the BMW and Honda motor vehicles with cash received from selling cannabis. You admitted that the $20,000 cash was the proceeds of sale of cannabis you had grown.
7 It is clear that but for your full and frank admissions to the police, they would not have uncovered the full extent of your offending and your sentence must be, and is, substantially reduced from what it might otherwise have been because of your admissions (See R v Ellis [1986] 6 NSWLR 603 at 604.)
8 The combination of your admissions and what was revealed by the police search show you grew and sold three cannabis crops for $25,000 per crop. You had a fourth crop under cultivation and a fifth, in the form of juvenile plants, ready to be planted out some time in the future. You were clearly in the business of trafficking cannabis, which business was only interrupted by the intervention of the police.
9 Trafficking in proscribed drugs has been described by the Court of Appeal as destructive of community health and standards and deserving of stern punishment. As was conceded by Ms Turnbull on your plea, your offending was serious and your “setup” was good, the necessary knowledge for such a “setup” coming from the internet.
10 You were but around the age of 21 years at the time of the commission of these offences. You had never been in trouble with the police. You were in employment and had been in constant employment since discontinuing a Bachelor of Business at Victoria University. Yet you made a deliberate decision to grow and traffick cannabis. It is clear that you sought to take advantage of the large rewards available from this activity.
11 As to your background, your parents separated when you were about three years of age. You lived with your father until your early teens when you moved to live with your mother. Your mother lives in Werribee and works as a picture framer, whilst your father lives in Collingwood and works as a clothes presser.
12 You have two siblings, one brother and one sister, each younger than you. You come from a supportive family. Your parents educated you within the Catholic education system, with you completing your secondary education at Samaritan College, Preston.
13 After completing year 12 you commenced a Bachelor of Business at Victoria University but remained there for only 6 months leaving to take up an apprenticeship as a motor mechanic with City Ford. You completed three years of your indenture before you left your trade to become a service adviser. You perceived this to be an upward move, being one that took you away from the workshop. It was put on your behalf that you felt pressured by your community to pursue academic achievement and business opportunities. Your income as a service adviser was modest, being $700 per week.
14 Your conduct has brought shame on your family and has caused you to become estranged from your mother and father, although of recent times you have taken steps to repair this rift. You were supported in Court by your brother and your partner, Ms Nguyen.
15 A consequence of your arrest was that you were remanded in custody and remained so for 43 days. This was, I am told, a terrifying experience for you and it was put on your behalf that you have learnt your lesson. A further consequence of your arrest and incarceration was that you were unable to complete subjects that you had enrolled in as part of a Bachelor of Business, a course that you had recommenced prior to your arrest, this time at the Open University
16 Upon your release on bail, you immediately found work as a service adviser at KIA Motors in Werribee and have continued your studies at the Open University. You are endeavouring to place your life on a proper footing. You pleaded guilty at the earliest opportunity.
17 Tendered on your behalf as Exhibit 1 were two references, one from The Venerable Minh and another from Ngoc Thi Bich Nguyen. Each speak as to your good qualities and your remorse. As to your remorse I have a lurking doubt; it is possible that you simply regret being caught. Despite my reservation, those who know you speak of your remorse and your plea of guilty is evidence of it as was your attitude when you were questioned by the police. Accordingly, I find that you are remorseful and that you are entitled to the benefit of your plea which was entered at the earliest opportunity. Additionally, by your plea you have accepted responsibility for your offending and shown a willingness to facilitate the course of justice.
18 A concerning aspect of your offending is that during its currency, a period of one year, you lived, it seems, two lives. One was that of a normal young man working and studying in order to advance himself, a young man who attended at the Thien Duc Buddhist Monastery and did charitable works. The other life was that of a committed cannabis trafficker, a life which earned you many thousands of dollars, much more than was generated by your legitimate employment. A life that contributed directly to the continuing scourge of drug abuse in our community.
19 Submitted on your behalf by Ms Turnbull, both in oral and written submissions, was that I should take into account the following matters in arriving at sentence:
(i)your youth,
(ii)your lack of prior convictions,
(iii)your plea of guilty and the time at which it was entered,
(iv)your full and frank admissions that disclosed to police the true extent of your criminality which otherwise would not have been known,
(v)your prospects for rehabilitation,
(vi)the time that you have spent in custody and the salutary lesson that it taught you, and
(vii)your personal circumstances and work history.
20 I must, and do, take each of these matters into account.
21 I was referred to R v Mills [1998] 4 VR 224 and the general propositions set out at p.241. However, there are cases, and I regard this as one, where “punishment, general deterrence and other sentencing objectives are at least equally important”. (See R v Tran [2002] 4 VR 457 at [14].)
22 The sentence which I am about to impose on you is a much lesser sentence than I would have imposed on you but for each of the matters that have been relied upon by Ms Turnbull on your behalf, both in her oral and written submissions.
23 In respect of the charge of trafficking in a drug of dependence, I sentence you to 18 months’ imprisonment. In respect of each of the offences of dealing with property being suspected of being the proceeds of crime, I sentence you to three months’ imprisonment. Those sentences are to be served concurrently with the sentence imposed on Charge 1 on the indictment. Accordingly, I impose a total effective sentence of 18 months and I set a non-parole period of 9 months.
24 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have imposed a sentence of 2 years’ imprisonment with a non-parole period of 12 months. (see R v Jobson [2013] VSC 214 at [25].)
25 I declare that you have spent 57 days by way of pre-sentence detention.
26 In respect of the ancillary orders; pursuant to s.464ZF(2) of the Crimes Act I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for the placement on the database. I do so because of the seriousness of the circumstances of the offending warrant the order, the order is not opposed and the granting of the order is in the public interest.
27 Next I make a disposal order in respect of the materials seized pursuant to warrant as set out in the schedule attached to the disposal order.
28 Finally, I make a forfeiture order in respect of the $20,000 cash and the Honda Integra registration ZBJ-287 as appears within the schedule attached to the order.
29 Are there any other matters? Yes.
30 MS TURNBULL: Just in relation to Your Honour's sentencing remarks in terms of the pre-sentence detention Your Honour referred to him having been remanded for 43 days.
31 HIS HONOUR: That was initially.
32 MR TURNBULL: Initially.
33 HIS HONOUR: Yes.
34 MS TURNBULL: Our calculation of it was that it was 48 days initially and Your Honour may recall that that was my mistake in the opening; I had the wrong date initially and that was not amended. So I just wanted to alert Your Honour to that; it was 48 days he was initially remanded for and then another 14 that he's been remanded for now makes the 62.
35 HIS HONOUR: So that is 48 days?
36 MS TURNBULL: Yes.
37 HIS HONOUR: And 62 days is what I declared, did I not?
38 MS TURNBULL: Yes, you declared the right amount, Your Honour, I just - - -
39 HIS HONOUR: That is all right, thank you very much for drawing that to my attention. Are there any other matters?
40 MS TURNBULL: No, Your Honour, as the Court pleases.
41 HIS HONOUR: Remove the prisoner.
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