Director of Public Prosecutions v Nguyen, Quyet
[2012] VCC 2018
•6 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02028
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| QUYET NGUYEN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 December 2012 | |
DATE OF SENTENCE: | 6 December 2012 | |
CASE MAY BE CITED AS: | DPP v Nguyen, Quyet | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2018 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Sentencing – Cultivation of a narcotic plant in not less than a commercial quantity, namely Cannabis L – Term of Imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M Zammit | Craig Hyland solicitor for Public Prosecutions |
| For the Accused | Mr S Devlin | Pica Criminal Law |
HER HONOUR:
1 Quyet Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant not less than a commercial quantity, the drug being Cannabis-L.
2 That charge is serious and it is reflected in the maximum penalty prescribed by Parliament, namely 25 years imprisonment.
3 I shall now sentence you on the basis of the Crown opening, there being no exception taken to that opening at the plea hearing.
4 Briefly, following the execution of a search warrant on 18 April 2012 at 13 Oarsome Drive, Delahey. Police located a sophisticated hydroponic cannabis crop growing in the rooms of a domestic dwelling. You were found in the ensuite of the master bedroom of the home when police executed the warrant.
5 In total there were 179 plants in various stages of growth located and the total weight of that was 61.99 kilograms. The material is in excess of a commercial quantity defined in the legislation relating to cannabis plants namely 100 plants.
6 It was obvious that the house was a grow house, the only rooms that did not contain Cannabis-L and that were habitable was the master bedroom, front lounge room, and the kitchen. All the usual equipment and paraphernalia for growing Cannabis-L hydroponically were located at the house.
7 I note you pleaded guilty to the charge at the commencement of the committal hearing on 7 November 2012. I consider your plea of guilty was entered at the earliest time and that there is real utility in your plea. You spared the witness and the state the expense and inconvenience of a trial, you shall therefore receive the full benefit of such early plea and your sentence will be discounted accordingly.
8 When arrested by police, you were fully cooperative and made full and frank admissions in your record of interview. You told police that you knew what you were doing was illegal and that you had been recruited by a friend you met at the Crown casino. You were desperate for money as you lost your factory job some two weeks earlier, you had overstayed a valid visa and therefore were in Australian illegally. You had been hired by another to work at the house to water the plants every morning and you had been there for about two weeks. You were promised $4000 every six weeks.
9 From your admissions you accept that you played an integral role in ensuring that this Cannabis-L crop would come to its fruition. There is no suggestion by the Crown that you were the principal person responsible for the establishment of the hydroponic set up. You were merely sitting the crop, caring and nurturing the crop.
10 I had been told about your personal history and background, you are now 36, you were born in Hanoi, Vietnam. You came to Australia on a valid visa in 2008 which visa is now expired. You have rudimentary schooling, you completed Year 8 in Vietnam and you are trained as a baker and have worked in the predominantly as a baker since leaving school. You have completed the equivalent of a Certificate III in Bakery.
11 When you came to Australia, your English skills were virtually non-existent. The reason for coming to Australia was that you saw it as an opportunity and initially you wanted to establish yourself in Australia to be able to sponsor your wife and two sons from Vietnam to live in Australia permanently. You had a four year contract with a Campbellfield bakery and you are living in a share house with a co-worker in the Reservoir-Thomastown area. Sadly, three months into the contract, the owners of the bakery divorced and that led to the sale of the business and consequently you lost your job and that had a dramatic effect on you. You borrowed heavily in Vietnam to cover your course and costs incurred in coming to Australia to take up this employment opportunity. You obtained another job but that was at a lower rate of pay and you did that for a period of time.
12 Subsequently your friend was injured at the bakery and started litigation against his employer and that meant that you were forced out of another business and back looking for work. You returned to the Campbellfield bakery and worked there. You paid them a sum of money, some $2500 on the promise that they would facilitate your sponsorship and visa extension but that did not come to fruition. You then left and went and commenced working at a traffic light factory for about a year but when you were asked to provide details of your passport and visa, you were forced to end that job as your visa had expired.
13 It was in that context that you were looking for work and one day at the casino you were offered the role to sit the crop by a person to whom you were introduced. You were working at the grow house anticipating that you would be paid $4000 over six weeks which is more or less equivalent to what you were earning working a 38 hour week in the factory.
14 Taking into account the context of your offending, I accept that you were not the primary person responsible for the establishment of the crop but nonetheless you did play an integral role in the crop.
15 The mitigating factors that have been pointed out by your counsel Mr Devlin are all taken into account by the court and I will note them. Firstly, is your plea of guilty on the first day of the committal, your cooperation with the police, your full admissions in your record of interview, the context of the offending occurring over only a brief period from 28 March to 18 April 2012, some 21 days, the fact that you had no prior criminal history, the fact that initially your intentions in Australia were to pursue a legitimate interest in remaining in Australia and re-settling your family here in Australia, you only became involved in illegal activity because of the issues surrounding your expiration of the visa and loss of job, the role you played, you are not the instigator rather you are sitting for the crop.
16 I have taken into account the fact that you have been in custody serving pre-sentence detention for some 233 days since your arrest. That time in custody has been more difficult than it would otherwise for somebody serving a sentence in Australia with good social networks and English skills. I accept that because of your lack of English and your social isolation within the prison it would be more difficult for you than otherwise.
17 Finally you face the real prospect of deportation upon completion of your gaol term and that would make your time in gaol more anxious than otherwise as well.
18 I have taken into account all those mitigating factors on your behalf.
19 Mr Devlin submitted that a gaol term is appropriate having regard to the seriousness of the offending and urged the court to set a non-parole period at the bottom end of the Crown range. The Crown submitted a sentencing range of two to two and a half years head sentence with a non-parole period of ten to 13 months.
20 I have considered the nature of your offending, the hydroponic cultivation was quite sophisticated. I consider that there is no other sentencing disposition that is appropriate and that in all the circumstances I will be imposing a gaol term. Overall I consider that this has been a salutary experience for you and you are now genuinely remorseful and you did say to the police immediately upon your arrest that you are aware what you did was wrong. Hopefully you can learn from this experience.
21 In sentencing you, I must emphasise the need for both general and specific deterrence and I must on behalf of the community denounce this behaviour, that is I need to - on behalf of the community publicly say to you that it was wrong for you to engage in this sort of behaviour
22 I must also impose just punishment.
23 Overall I consider that you have good rehabilitation prospects.
24 I have had regard to current sentencing practices and also the relevant sentencing snapshots for cultivation of a commercial quantity of a narcotic plant.
25 I shall now proceed to impose sentence.
26 On the charge of cultivation of not less than a commercial quantity of Cannabis-L, you will be convicted and sentenced to a period of 24 months imprisonment and I order that you serve ten months imprisonment prior to being released on parole.
27 Pursuant to s.6AAA of the Sentencing Act 1991 but for your plea of guilty I would have imposed a sentence of three years imprisonment, to serve two years.
28 I make the order sought pursuant to s.464ZFB of the Crimes Act 1958 for retention of a forensic sample. I note that it is in the public interest that this be granted. Mr Devlin I have not really sought from you your indication about that.
29 MR DEVLIN: Both orders are not opposed, Your Honour.
30 HER HONOUR: It was not opposed? I note that order was not opposed.
31 I also make the disposal order sought. Finally I make the declaration about pre-sentence detention, I note that you have already served 233 days pre-sentence detention and I declare that and I note that that is to be reckoned as served and that I will make a direction that that be recorded in the records of the court.
32 I think that covers everything.
33 MS ZAMMIT: Thank you, Your Honour. Just have the orders - - -
34 HER HONOUR: If you could pass those up and I will sign them now. Ms Bui, thank you very much for your assistance today, it has been two days in a row and you have been inconvenienced on both days but I do appreciate your attendance because it is very important that people in situations such as Mr Nguyen get appropriate support and understanding of the process so I thank you for your attendance and your assistance today and yesterday too.
35 INTERPRETER: Thank you, it's my honour to serve Your Honour. Thank you very much.
36 HER HONOUR: Thank you. We can adjourn.
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