Director of Public Prosecutions v Nguyen, Tuyen

[2012] VCC 1312

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-01303

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUYEN NGUYEN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2012
DATE OF SENTENCE:	6 September 2012
CASE MAY BE CITED AS:	DPP v Nguyen, Tuyen
MEDIUM NEUTRAL CITATION:	[2019] VCC 1312

REASONS FOR SENTENCE

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Catchwords:  Cultivate commercial crop of narcotic drug; early PG; unlawful immigrant from Vietnam; escaped from community detention; homeless and vulnerable; accepted offer to mind crop in return for free accommodation and payment;

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S MacDougall	Office of Public Prosecutions
For the Accused	Ms O. Thompson

HER HONOUR:

1       Tuyen Ngoc Nguyen, you have pleaded guilty to one charge of cultivating a narcotic plant of a commercial quantity. 

2       You were arrested on 24 April 2012 when found by the police in a house in Lalor where a large crop of cannabis was being grown.  This is a serious charge for which the maximum penalty is 25 years imprisonment.

3       The prosecution has submitted that the appropriate sentencing range is a prison term of between two years and three months and three years and six months, with a non-parole period of between one year and three months and two years and three months.  The defence response is that a sentence at the lower end of that range would be appropriate. 

4       The circumstances were that the house contained a large scale hydroponic system with 267 plants under cultivation.  Sophisticated equipment had been set up in six rooms of the house and the electricity meter had been by-passed.  The sum of $110 in cash was also located. 

5       The police entered the house subject to a warrant after suspicions about the house led to surveillance.  They effected a forced entry and you were found hiding in a wardrobe. 

6       When interviewed by the police you gave an account which sought to minimise your involvement and knowledge about the crop.  You said you had nowhere to live and had been offered accommodation in the house and had only arrived there hours before the arrest.  You said the man who took you there was going to return to discuss the details of your accommodation and when you heard the front door being smashed you were frightened and hid.  You denied knowing anything about the marijuana.

7       However, you pleaded guilty at the earliest possible time at the committal mention and you are entitled to a discount on your sentence for having avoided the need for a trial.  The utilitarian value of the plea is accepted as important assistance to the processes of the criminal justice system and it is also accepted as an indication of remorse.

8       Turning to your personal details, you are a Vietnamese national and you came to Australia as an unlawful immigrant having arrived on Christmas Island by boat in May 2011. You are aged about 30 and you were born and grew up in a small village in North Vietnam.  You understand that your parents died when you were six years old and you have no family, having been raised by neighbours.

9       You were educated to Year 5 level, going to classes at night and working by day.  You worked in labouring jobs and you were very poor and you raised the money for your fare to Australia, the equivalent of AUS$7500, by borrowing it from a  friend you travelled with.  You told your lawyers that the trip was very dangerous and the boat nearly capsized. 

10      After your arrival in Melbourne and release into community detention, you were fearful of being sent back to Vietnam because you believed you would be charged with the crime of leaving the country.  You were also concerned at the possibility of retribution for having disclosed to Immigration officials, the name of the person who had organised the boat to come to Australia.  For these reasons you decided to escape and so you left community detention and went to work on a farm.

11      You were poorly paid there, so you left and came to the city where you became homeless, sleeping in places such as bus shelters where you suffered greatly from the cold.  In this situation you came across people who offered you free accommodation and payment for looking after a cannabis crop. 

12      You had lived in the house for a few weeks before your arrest but you never received any money, and you were confined to the house and isolated because you had no money. 

13      You are a person with no prior convictions and with no history of drug use and you do not drink alcohol.  It is almost certain that you will be deported to Vietnam when you have completed the sentence I will impose. 

14      You have been in custody since your arrest, a period of 135 days, or four and a half months.  You have used your time in prison well by learning English and taking courses, and working each day making furniture. 

15      The sentence I impose must be such as to warn others of the dangers of committing this crime.  Looking after a cannabis crop is a serious crime because it assists in the production of an illegal drug, known to be harmful to the community for a range of reasons. 

16      Your particular circumstances must of course be taken into account,  that you had nowhere to live and were vulnerable to the temptation offered to you.  There are other mitigating factors as well, such as the way you have spent your time in prison, the fact that you will almost certainly be deported to Vietnam and that your prospects for rehabilitation are good.  Those matters persuade me that a prison term at the lower end of the range that was submitted by the prosecution, is appropriate.

17      I sentence you to two years and six months imprisonment and order that you serve 15 months before eligible for parole.  I declare that the 135 days of pre-sentence detention is time already served and I shall cause that to be noted on the court record.  If you had pleaded not guilty I would have sentenced you to three years imprisonment with a non-parole period of two years. 

18      The prosecution seeks an order that you provide a forensic sample of saliva and I need to speak to your counsel about that for a moment.  Ms Thompson, I have not received what your instructions are about that.

19      MS THOMPSON:  Your Honour, if I might briefly approach my client.

20      HER HONOUR:  Yes certainly, and in relation also to the forfeiture and disposal orders.

21      MS THOMPSON:  That is not opposed, Your Honour.

22      HER HONOUR:  Thank you.

23      MS THOMPSON:  Your Honour, my instructions are to oppose the taking of the forensic sample on the basis that my client, whilst he was charged, has no prior convictions and he is likely to be deported.

24      HER HONOUR:  I see.  I will be making the order in the face of that opposition but there is one matter I want to raise with you, Ms MacDougall.  That is, the form that I have here which is the order, under the heading, "Other Matters" at the bottom of the form, refers to the taking of a blood sample if the person concerned does not consent to the saliva sample being taken.  That is not always included on this order and I do not generally make that order.  So I wanted to let you know that I will be striking that out.

25      MS MacDOUGALL:  Certainly, Your Honour.  Your Honour, it is very clear that should Mr Nguyen refuse to cooperate, reasonable force can be used to take the saliva sample.  There is no issue.

26      HER HONOUR:  Thank you very much.  Madam Interpreter, could you please tell Mr Nguyen that I am making the order that he provide a saliva sample to the police.  The police do have the power to use reasonable force to obtain the sample if necessary.  Thank you. 

27      There was also an application by the prosecution for an order for the forfeiture of the cash, the $110 found in the house, and an application for an order for the disposal of the plants and the equipment found in the house.  Those orders are not opposed and I make those orders. 

28      Ms MacDougall, are there any other matters that I have omitted?

29      MS MacDOUGALL:  No, Your Honour.

30      HER HONOUR:  Thank you.  Ms Thompson?

31      MS THOMPSON:  No, Your Honour.

32      HER HONOUR:  Thank you.  We will adjourn the court now please.

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