Director of Public Prosecutions v Nguyen, Thuy Van
[2013] VCC 638
•27 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00342
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THUY VAN NGUYEN |
---
JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May 2013 | |
DATE OF SENTENCE: | 27 May 2013 | |
CASE MAY BE CITED AS: | DPP v Nguyen, Thuy Van | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 638 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Hogan | OPP |
| For the Accused | Ms L Chipp | Victoria Legal Aid |
HIS HONOUR:
1 Thuy Van Nguyen, you have pleaded guilty to one charge on indictment, being cultivating a narcotic plant – commercial quantity, contrary to s72A of the Drugs, Poisons & Controlled Substances Act 1981. The maximum penalty for this offence is 25 years’ imprisonment.
2 You have also pleaded guilty to a related summary offence of dealing with property suspected of being the proceeds of crime contrary to s.195 of the Crimes Act 1958. The maximum penalty for this offence is two years’ imprisonment.
3 The facts relied upon to support the charges are set out in the summary of prosecution opening that was read aloud in court and tendered on the plea as Exhibit B. Also tendered on the plea, as Exhibit A, was a copy of the photographs taken by police on 30 November 2012, when they executed a warrant at 4 Kruger Street, Mernda, a house occupied by you.
4 In summary, upon execution of the warrant, police arrested you and conducted a search of the premises. The search revealed cannabis being grown hydroponically. The electricity supplied to the house had been bypassed, and the house was replete with lights, shrouds, transformers, air and water pumps, as well as plant nutrients. The cannabis plants were at various stages of maturity, ranging from immature seedlings or clones found in room 4, to plants between 15-20 centimetres in height in room 2, to plants in rooms 3 and 5, which ranged in height from 80-105 centimetres and which weighed, on average, about one kilogram each and that were described by the botanist as bushy and immature. Plainly, there was a production line like activity taking place in respect of the growing cannabis at the Mernda address. In total, 79 plants were seized weighing a total of 37.6 kilograms, excluding roots. Additionally, 905 grams of dried cannabis was also seized by police.
5 You were taken to the Fawkner Police Station. You were interviewed under caution and answered “no comment” to questions put to you. You were remanded in custody and have spent 178 days (not including today) by way of pre-sentence detention.
6 You are a Canadian citizen, having gained citizenship as a result of you and your family fleeing Vietnam as refugees. As a small child, you spent time in refugee camps in Malaysia and the Philippines. You still have recollections of the violence and deprivation of those places. You have three surviving siblings, one older and two younger, all of whom live in Canada, as do your parents.
7 In 1991 your family, having been granted refugee status, settled in Vancouver and you lived and were educated in Vancouver until you completed the second last year of your secondary education in 2005, aged 19. You had two siblings who predeceased you, one before you were born, and one who was shot dead outside your family home in Vancouver in 1998 when you were about 12 years of age. I was informed that the death of your older sibling as an infant had a profound effect on your parents, whilst the violent death of your older brother has had a profound effect on you. An aspect of this adverse effect was your inability to attend his funeral because according to Buddhist tradition, to which your family adheres, you were too young to do so. You have suffered head injury from an act of violence as well as from a childhood accident . You have also been hurt in a motor vehicle collision. No issue was made of these matters save that they formed part of your history.
8 When you were about 19 years of age your mother and father separated, with your mother moving to Montreal. You followed your mother to Montreal and lived there with her for four to five years. From there, you moved to Toronto where you lived and worked for about 18 months. You then moved to the city of New Brunswick. Whilst living in New Brunswick, you worked as a door-to-door salesman, being paid only on commission. The work was long and hard; you worked 10-12 hours per day, six days per week.
9 In February 2012 you decided you needed a break, and with a colleague you travelled to Australia for a holiday. You landed in Sydney and after a month there travelled to Melbourne. In Melbourne you parted company with your friend, who returned to Canada. An example that you should have emulated.
10 You instructed your counsel that you remained in Melbourne and decided not to return to Canada. You fell into bad company and commenced drinking to excess. Through this bad company you found yourself cultivating a commercial crop of cannabis, for which you were paid a small amount of money by way of an allowance and were to be paid “a few thousand dollars” after the sale of the crop.
11 You involved yourself in the pernicious drug trade for money.
12 Relied upon during your plea was Exhibit 1, being a letter from your older brother, Dong, and Exhibit 3, a letter from yourself. Your brother says that you are a bright young man who has made a mistake and that you are needed at home to help your father who runs a landscaping business.
13 In your letter you express your remorse for what you have done. You say you are sorry for wasting Australia’s time and money in having to deal with you as a result of your offending. You miss your family and are ashamed of your conduct, and express a desire for a better life in the future. You attribute your fall from grace to alcohol and bad company.
14 Whilst on remand you have undertaken some training courses (see Exhibit 2) and have worked constantly in the prison where you presently work, managing a section that manufactures bed componentry.
15 You are isolated from your family, which isolation you feel acutely. You have limited telephone contact with your family in Canada. The contact is limited by the amount of money that you are able to earn in prison and the cost of overseas telephone calls.
16 Upon your release from prison you will be taken into detention and thereafter deported to Canada.
17 On your behalf, it was submitted that I should taken into account:
(i) your relative youth;
(ii) your lack of prior convictions;
(iii) your plea of guilty and the time at which it was entered;
(iv) your good prospects for rehabilitation, based in part on your family’s support upon your return to Canada.
18 The drug trade is a blight on any community, whether it be Australia or Canada. You voluntarily involved yourself in that trade by the cultivation of a cannabis crop, and you did so for your keep and “a few thousand dollars”. Your conduct must be denounced and you must be punished for it. General deterrence must loom large in the exercise of my sentencing discretion.
19 As against that, you are a relatively young man without prior conviction. You have pleaded guilty at the earliest opportunity. You are entitled to the full benefit of your plea, both for its utilitarian value and because it evidences your remorse which you have further expressed in your letter, Exhibit 3. You will be isolated from your family whilst in prison. Upon your eventual return to Canada you will have the support of your family and you hope to join your brother, Dong, working as a mechanic.
20 I must balance the many competing factors that arise out of an analysis of the objective circumstances of your offending and its effects with your antecedents and personal circumstances. By this Sentence, I must denounce your conduct, punish you for it, and deter you and others from committing like offences. I must look to your rehabilitation.
21 On Charge 1 on the indictment, cultivating a narcotic plant – commercial quantity, I sentence you to three years’ imprisonment.
22 In respect of the related summary offence of dealing with property suspected of being the proceeds of crime, I sentence you to one months' imprisonment.
23 I order that the sentence imposed on the summary offence be served concurrently with the sentence imposed on Charge 1 on the indictment.
24 Accordingly, I sentence you to a total effective sentence of three years’ imprisonment and I fix a non-parole period of 20 months before you are eligible for parole.
25 I declare that you have served 178 days by way of pre-sentence detention, not including today.
26 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to three years and six months’ imprisonment with a non-parole period of two years and three months.
27 I understand there are a number of ancillary orders to be made.
28 MS HOGAN: Yes, Your Honour.
29 HIS HONOUR: Mr Nguyen, the Crown made application for a forfeiture order in respect of the currency that was found at the premises at Kruger Street and accordingly I make that forfeiture order.
30 Additionally the Crown made an application for a disposal order in respect of the equipment related to the hydroponic growing of cannabis found at the Kruger Street address and I make that order.
31 Finally, the Crown made application for a forensic procedure. What that means, Mr Nguyen, is that the prison authorities will take from you a scraping from the inside of your mouth in accordance with provisions of the Crimes Act. So the court orders pursuant to s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a sample by scraping the inside of 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 make this order having considered the seriousness of the circumstances of the forensic sample offence and I am satisfied that in all the circumstances the making of the order is justified for the following reasons:
(i) the seriousness of the circumstances of the offending warrants the order;
(ii) the order was not opposed;
(iii) that the order or the granting of the order is in the public interest.
I must inform you, Mr Nguyen, that if at the time of the request you do not consent to the taking of the mouth scraping sample under the supervision of an authorised person then the authorised person may use reasonable force to enable the taking of that sample.
32 Are there any other ancillary matters?
33 MS HOGAN: No, Your Honour.
34 HIS HONOUR: You may remove the prisoner. Thank you very much for your assistance the both of you.
35 MS CHIPP: As Your Honour pleases.
36 HIS HONOUR: You are both excused.
- - -
0
0
0