Director of Public Prosecutions v Nguyen, Ngoc Anh

[2013] VCC 818

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-00391

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

NGOC ANY NGUYEN

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JUDGE:	Chief Judge Rozenes
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2013
DATE OF SENTENCE:	18 June 2013
CASE MAY BE CITED AS:	DPP v Nguyen, Ngoc Anh
MEDIUM NEUTRAL CITATION:	[2013] VCC 818

REASONS FOR SENTENCE
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Subject:  

Catchwords:             Cultivate Cannabis – crop sitter – concessions as to role and sentencing range

Legislation Cited:    
Cases Cited:            

Sentence:                 Total Effective Sentence: 12 months imprisonment, 4 months imprisonment partially suspended for 2 years

Pre-Sentence Detention: 249 days

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Patton	Office of Public Prosecutions
For the Accused	Mr C Nikakis	Haines & Polites

HIS HONOUR:

1       Ngoc Anh Nguyen you have pleaded guilty to one charge of cultivating cannabis (charge 1) the maximum penalty for which is 15 years imprisonment  The offending occurred between 5 and 12 October 2012. You have no prior convictions.

2       The facts of the case were opened by Mr Patton and are contained in the Prosecution Opening, Exhibit A in these proceedings. In brief summary, on 12 October 2012 police executed a search warrant on premises in Derrimut where you and your two co-accused Thi Thu Huong Tran and Any Tuan Ha were arrested. Police located a total of 41 cannabis plants weighing 57.7 kilograms in a number of rooms in the house growing under lights and hydroponic watering systems. Police also located and seized numerous items associated with cannabis cultivation and an instruction sheet written in Vietnamese relating to tending for the plants. The electricity supply had been illegally bypassed. 

3       At the time of the offending you were a Vietnamese national who had resided in Australia since 2010.

4       Both your co-accused pleaded guilty to one charge each of cultivating a commercial quantity of cannabis and theft of electricity on 21 May 2013. Each of your co-accused was sentenced by Judge Cotterell to 22 months imprisonment with a non-parole period of 11 months.  The prosecution conceded that you did not have the intent to cultivate a commercial quantity.

5       In regards to your personal circumstance,  you were a permanent resident at the time of offending, and were living with your wife and aunty. You came to Australia in March 2010 to complete a course in international business after completing high school in Vietnam. You grew up in Hanoi. You are the eldest of 3 children. Since being incarcerated, your  English has improved markedly. You only attended at the property in the week prior to your arrest and were asked by your co-accused to assist with watering the crop.

6       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.

7       The cultivation of cannabis is a serious offence carrying a maximum penalty of 15 years imprisonment. Production of cannabis hydroponically in domestic premises has become prevalent and once the electricity supply has been by-passed it is difficult to detect. General deterrence and community protection must therefore play a significant role in the sentencing process. 

8       That is so notwithstanding as is the case here that you are only involved at a menial level in what has often been described as “crop sitting”.  I accept that you did not have any involvement in the initial setting up of the crop and did not expect any substantial reward from its cultivation. I of course only sentence you for your involvement and not that of others but it is clear that crop sitters such as yourself constitute a necessary element to a successful undertaking.  Without people such as yourself these enterprises would fail.

9       On the question of penalty Mr Nikakis submitted that whilst conceding an immediate custodial sentence was warranted, time served would be sufficient.

10      You have remained in custody since apprehension, some 249 days. You offered to plead guilty to the present Indictment at the committal hearing but that offer was not accepted by the prosecution until after your case had been listed for trial. In these circumstances I accept that your plea was offered at an early stage. You have no prior convictions and nothing pending. Your wife is an Australian citizen.  I take into account, as I must the sentences imposed upon your co-offenders noting that they pleaded guilty to more serious charges and your somewhat limited role.

11      Please stand Mr Nguyen

12      On charge 1 of cultivate cannabis you are you are convicted and sentenced to 12 months imprisonment, and I propose to suspend all but 8 months of that sentence for a period of 2 years.

13      Before I do that I am obliged to explain to you that you have been sentenced to a term of 12 months imprisonment but that you will only have to serve 8 months of that sentence immediately.  If you commit an offence punishable by imprisonment in Victoria or elsewhere then you might be brought back before me and absent exceptional circumstances might be ordered to serve the balance of that sentence.  Do you understand that?

14      PRISONER: Yes.

15      HIS HONOUR: Very well I will suspend all but 8 months of the sentence.

16      I declare that 249 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.

17 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 to 16 months imprisonment with a non parole period of 12 months.

18      HIS HONOUR: Whilst the effect of this sentence is that you will be released immediately today, I direct that you return with the custody officers downstairs and be released from the custody centre.

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