Director of Public Prosecutions v Nguyen, Ngoc Trung
[2014] VCC 852
•12 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00255
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Ngoc Trung NGUYEN |
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JUDGE: | HIS HONOUR CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 June 2014 | |
DATE OF SENTENCE: | 12 June 2014 | |
CASE MAY BE CITED AS: | DPP v NGUYEN, Ngoc Trung | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 852 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Cultivation of cannabis simpliciter – sophisticated hydroponic operation – limited role – no criminal history
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms T Saville | OPP |
| For the Accused | Mr M Gleeson | Michael J Gleeson & Associates |
HIS HONOUR:
1 Ngoc Trung Nguyen, you have pleaded guilty to one charge of cultivating a narcotic plant, namely Cannabis L, which carries a maximum penalty of 15 years’ imprisonment. The offending occurred on 2 September 2013. You have no prior convictions.
2 The facts of the case were opened by Ms Saville and are contained in the Summary of Prosecution Opening, Exhibit A in these proceedings.
3 In brief summary, on 2 September 2013, while conducting surveillance on a factory in Sunshine North, police noticed you driving past with your co-accused, Ha Son Nguyen. You went inside the factory and were followed by two other co-accused, Trung Lam and Quoc Pham. Police followed you inside, arrested you, 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 as evidenced in the photographs, Exhibit B. You were interviewed by police and made admissions to attending the factory with the promise of receiving payment for doing so, although you had not yet been paid. You were remanded into custody on 2 September and remained there until granted bail on 2 April 2014. Your co-accused, Lam, Nguyen and Pham, have a trial listed in this court commencing 16 February 2015.
4 Mr Gleeson appeared for you. He tendered a written outline of submissions and chronology, Exhibits 1 and 2. By way of background, you are currently aged 26 and were 25 at the time of the offending. You are the eldest son of a respectable Vietnamese family. Your parents are hoteliers and you assisted in the family business from a young age, completing high school in Vietnam while working for your parents part-time. You arrived in January 2011 on a student visa, commencing an English course before starting a Diploma of Hospitality that you have not yet completed. Because of the time you spent in custody for this matter, your student visa was cancelled. You have appealed this decision to the Migration Review Tribunal and are currently subject to a bridging visa. You remain isolated from your family who are still in Vietnam and who still provide some financial support for you. You otherwise work up to 20 hours a week fruit picking. You have no issues with drugs or alcohol.
5 On your behalf, Mr Gleeson submitted that I also take into account the following matters by way of mitigation:
(a) You were not an organiser of the crop but had a limited role, being asked to assist in its upkeep;
(b) Whilst your motivation was to make money from this venture, none has been forthcoming;
(c) The offending relates to one day only;
(d) You made extensive admissions;
(e) You have been on remand for this offending for 212 days before being granted bail, and I should be satisfied that your rehabilitation, if not complete, is almost complete;
(f) You are extremely embarrassed by the offending which has shamed and disrespected your family;
(g) You pleaded guilty at a relatively early stage in the proceedings, which was indicative of remorse;
(h) You have no prior convictions and nothing pending; and
(i) I should be satisfied that you are unlikely to re-offend.
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. 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.
8 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 was short in point of time, one day only. It appears to me that in recognition of these factors, the prosecution has accepted a plea to cultivation simpliciter.
9 It follows that you are at the lower end of the scale of seriousness. Nevertheless, people involved, even at the lower end in the process of commercial cultivation, must be discouraged. It goes without saying that without the cooperation of people such as you, enterprises such as the present would not succeed.
10 Your sentence is less severe than I would have imposed had you pleaded not guilty. I accept the submission of your counsel that I should regard your plea as reflecting your indication to plead guilty. Your counsel was in negotiations with the prosecution as to an appropriate resolution of this matter and, although not at the earliest opportunity, your plea nevertheless saves time, expense and the need for witnesses to give evidence against you, and is reflective of remorse.
11 On the charge of cultivating a narcotic plant, being cannabis, you are convicted and sentenced to be imprisoned for 212 days. I declare that 212 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. It follows, Mr Nguyen, that you will be able to leave the dock as soon as I finish my sentence.
12 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 nine months’ imprisonment.
13 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 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.
14 What do you want me to do about the forfeiture order?
15 MS SAVILLE: Your Honour, given that the forfeiture is not by consent, I ask the matter to be remitted to be determined by the Magistrates’ Court.
16 HIS HONOUR: Can that be done?
17 MR GLEESON: I think that what happens is a police issue, what is called a notice of intention to proceed on that charge if they want to.
18 HIS HONOUR: So that is the question of what happens to the - - -
19 MR GLEESON: The charge. There was a charge in the Magistrates’ Court which - - -
20 HIS HONOUR: So where is that at the moment, not before me, I do not think.
21 MR GLEESON: He cannot be discharged because it is a summary offence.
22 HIS HONOUR: So you could proceed with that in the Magistrates' Court if it is going to be - - -
23 MR GLEESON: If they want to, they can, yes.
24 HIS HONOUR: Well, I can do one of two things. You could either agree that it is somehow connected to the offending and therefore it can be forfeited, in which case I am happy to make a forfeiture order, or you can have that tested in the Magistrates' Court.
25 MR GLEESON I would ask Your Honour to do nothing, he can then sign an abandonment if he decides to, he can always abandon the claim if he wants to do that.
26 HIS HONOUR: So what do you want me to do, nothing.
27 MR GLEESON: Nothing, yes.
28 HIS HONOUR: And you can proceed with proceedings in the Magistrates’ Court.
29 MS SAVILLE: I understand that to be the case, Your Honour.
30 HIS HONOUR: All right, well, that is what I will do. I make no order in this to forfeiture.
31 MR GLEESON: Thank you.
32 HIS HONOUR: You may step out of the dock, thank you, Mr Nguyen. Anything else?
33 MR GLEESON: No, Your Honour, thank you.
34 MS SAVILLE: No, Your Honour.
35 HIS HONOUR: Very well. The court can be adjourned until 10.30 tomorrow morning.
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