Director of Public Prosecutions v Quy Van Nguyen

[2014] VCC 708

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00134

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUY VAN NGUYEN

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2014
DATE OF SENTENCE:	19 May 2014
CASE MAY BE CITED AS:	DPP v Quy Van Nguyen
MEDIUM NEUTRAL CITATION:	[2014] VCC 708

REASONS FOR SENTENCE
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Catchwords:             CRIMINAL LAW – Cultivation commercial quantity of Cannabis L – dealing with property suspected of being proceeds of crime – accused overstayed visa – deportation to Vietnam

Sentence:Total Effective Sentence of 24 months imprisonment with non-parole period of 207 days

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. French	OPP
For the Accused	Mr A. Jackson	Haines and Polites

HER HONOUR:

1Quy Van Nguyen, you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis L in contravention of section 72A of the Drugs Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 25 years’ imprisonment. You have also pleaded guilty to a related summary charge of dealing with property suspected of being proceeds of crime in contravention of s. 195 of the Crimes Act 1958 which carries a maximum penalty of two years' imprisonment.

2You were born on 1 February 1953 in Vietnam, completed high school there, married, had a family and worked there until you came to Australia in September 2008 on is tourist visa to see your son who was studying here.  You overstayed your visa and remained in Australia ever since.  You speak virtually no English. 

3Ms French, on behalf of the prosecution, tendered and read out in open court a summary of the evidence against you which is Exhibit 1.  You take no issues with the matters set out in that summary and I sentence you on the facts as set out in the document as well as the additional matter referred to in oral submission, which was that you had provided the phone numbers referred to in the summary to police, but that these numbers did not advance the police investigation in relation to the matter. 

4The offences relate to a two month period between late August and late October 2013, when you agree you were crop sitting at premises at 234 Merton Street, Altona Meadows.  When police executed a search warrant at those premises they found a hydroponic set‑up for growing cannabis and located 183 plants weighing a total of 28.72 kilograms, as well as lighting shrouds, equipment, chemicals and an electrical bypass in the roof. $640 in cash was found on the premises. 

5You were arrested as you ran from the back door of the premises. You were interviewed with the assistance of a Vietnamese interpreter. You made full admissions.  You told police that you had been working in a fish factory and were approached by a girl called Gai, who offered to give you free food and board and to pay you $100 per day to stay in her house and look after it a few hours per day while she was away.  She told you what chemicals to put on the plants and to water them.  She told you not to ask about the plants.  The fans and lights operated automatically and you replaced lights if they broke.  She told you to hide in the house if anyone came by. 

6She and another male had keys to the house.  She gave you their telephone numbers and you gave these to police. You applied fertiliser as instructed and watered the plants daily. The $640 found on the premises was your wage and you told police that you would use some of the money to buy medication. You told police you knew nothing about the set‑up. 

7The cultivation charge was put on the basis that you were tending the plants by watering them, fertilising them and attending to any broken lights. 

8Counsel for the prosecution sought a term of imprisonment submitting that the principles of general deterrence and denunciation were important, even in the case of bare crop sitters. The prosecution also sought ancillary orders, a forensic sample order, a disposal order in relation to the cannabis and equipment and a forfeiture order in relation to the $640 cash. 

9Through your counsel you consented to these ancillary orders being made. 

10Your counsel briefly addressed your personal circumstances. You have an older sister in Haiphong and another son there.  Your 87 year old mother is in hospital in Vietnam and you would like to see her before she dies.  Your wife, aged 62, also lives there.  When you came to Australia you did not intend to stay but ended up doing so working in Vietnam language businesses, living in rented rooms and remitting as much money as possible to your family in Vietnam.  When you were approached by the female called Gai, you were doing hard work and took up her offer because you could work fewer hours and save more money.

11You have completed 3 very basic TAFE courses while in custody and certificates in relation to these courses which were tendered as Exhibit B on the plea.  Due to your extremely poor English you have been isolated while in custody, although from time to time you have been assisted by other Vietnamese speaking prisoners. 

12You have not been visited by your son whilst on remand and have had only one phone call to Vietnam due to the costs involved. That call was largely devoted to obtaining confirmation of your mother's current hospitalisation as per Exhibit A. 

13You have no prior convictions in either Vietnam or Australia. 

14Once you have completed any sentence or any non‑parole period of your sentence you will immediately be handed over to immigration authorities and will be deported to Vietnam. 

15Your counsel conceded that while general deterrence has a role to play, he submitted that specific deterrence and rehabilitation are of less importance in the circumstances of your case because you face deportation once you complete your sentence.  He submitted that you pleaded guilty at the earliest possible time, that the prosecution has accepted that your role was one of a bare crop sitter, that you were not involved in any set‑up of the premises, or of bypassing the electricity, or of having any financial interest in the operation and that you cooperated with police by giving them the telephone numbers of Gai and the male. 

16In these circumstances it was submitted the principles of just punishment and general deterrence could be adequately reflected in the head sentence.  He noted that the median sentences in the recent Sentencing Snapshots for the offence include people who played a far greater role than you.  He submitted that a head sentence for bare crop sitters was usually in the order of two years with around a nine month non‑parole period. 

17In this case, as you have already served 207 days of pre‑sentence detention, your counsel submitted that this would be an appropriate non‑parole period.  The prosecution did not disagree, noting that in the past partly suspended sentences were available and imposed for this kind of offence. 

18In these cases, principles of general deterrence, protection of the community and just punishment are significant sentencing considerations. However I accept that you had no role in establishing the crop house and were a bare crop sitter for a relatively short period of time and that the quantity of crop involved was relatively small for a commercial venture. You were naive and accepted the work because of your desire to do less hard work, receive free food and board so that you could remit more funds to your family in Vietnam.  You played no role in establishing the crop or in bypassing the electricity. You were paid very modestly for your very limited role in watering and fertilising the plants and repairing any broken lights. 

19You made full admissions to police and provided them with the only relevant telephone numbers you had. 

20You have been quite socially isolated while in custody due to your poor English and this isolation would continue for the balance of your time in prison. 

21I consider that just punishment and the principles of deterrence can be adequately reflected in the head sentence, but in the circumstances of this case it would be in the best interests of the community and in your interests for you to return to Vietnam as soon as possible. 

22I note that the prosecution made no submission that there should be any departure from the presumption in favour of concurrency in relation to the related summary charge. 

23Doing the best I can to balance all of the relevant factors, I will now proceed to sentence you for the offences. 

24Quy Van Nguyen, for the offence of cultivating a commercial quantity of cannabis, Charge 1, you are convicted and sentenced to term of imprisonment of 24 months. 

25On the related summary charge of dealing with property, namely $640 cash, suspected of being the proceeds of crime, you are convicted and sentenced to one months imprisonment, to be served concurrently with the sentence imposed on Charge 1 on the indictment. 

26The total effective sentence is 24 months. 

27I order that you serve a period of 207 days before becoming eligible for parole. 

28I declare that a period of 207 days of pre‑sentence detention is to be reckoned as time served on the sentence that I have imposed upon you and deducted from the sentence you will serve. 

29Pursuant to s.6AAA of the Sentencing Act, and taking into account the matters I have previously referred to in relation to your plea of guilty, I indicate that but for your plea of guilty the sentence I would have imposed on the charge of cultivating a commercial quantity of cannabis would have been one of three years' imprisonment with a non‑parole period of two years.

30I also direct that the sentence that would have been imposed but for the plea of guilty be noted in the court records. 

31I have signed the disposal order ordering that the items in the schedule, being the 86 light shrouds and the electrical bypass be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested.  That is what is in the order, I am afraid.  The terms of the order are the way they are, where it may be tested, analysed and then destroyed, but I will just reflect the terms of the order, that is the way it is framed. 

32I also propose to make the forensic order pursuant to s 464ZF(2) of the Crimes Act 1958 that you undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample. I make this order for the following reasons: the seriousness of the circumstances of the offending, that the making of the order is in the public interest and because you consented to it. I must warn you that if you do not consent to the taking of this sample then the sample taken will be a blood sample and the police may use reasonable force to enable the procedure to be conducted.

33Finally I make the forfeiture order in relation to the $640 cash which was located at the premises. 

34(Disposal order signed and acknowledged.)

35(Section 464ZF(2) order signed and acknowledged.)

36(Forfeiture order signed and acknowledged.)

37Are there any other matters?

38MR JACKSON:  I do not believe so.

39HER HONOUR:  No.

40MS FRENCH:  Your Honour?

41HER HONOUR:  Yes.

42MS FRENCH:  Just in relation to the forensic sample order, the form of order that has been handed up is on the basis that the sample would be taken while Mr Nguyen is in custody.

43HER HONOUR:  Right.

44MS FRENCH:  Given Your Honour's sentence, he has completed his non-parole period today, my learned friend said that from basically now onwards he is going to be in the hands of Immigration. I am just wanting to check whether that form of order is suitable. The other form of order that can be handed up is where the prisoner is no longer in custody and needs to attend a police station, but that is obviously not appropriate in these circumstances given he is effectively going to be in another form of detention, albeit not prison.

45HER HONOUR:  What do you suggest?  Yes.

46MR JACKSON:  Just leave it as it is, Your Honour.

47HER HONOUR:  Yes.

48MR JACKSON:  Because although he has done the non-parole period he has yet to go before the Parole Board.  He does not get released into Immigration Detention instanter and they will take ‑ ‑ ‑

49HER HONOUR:  Excellent.  There you are, so there will be time?

50MR JACKSON:  Yes.

51MRS FRENCH:  Thank you, Your Honour, that was my only ‑ ‑ ‑

52HER HONOUR:  In that case, apart from that?

53MRS FRENCH:  It might have been.

54HER HONOUR:  Yes, yes.

55MRS FRENCH:  I might not have heard, Your Honour.

56HER HONOUR:  Yes.

57MRS FRENCH:  It is very trivial.  It is 28.72 kilograms, not 28 ‑ ‑ ‑

58HER HONOUR:  It is 28.72, not 27.

59MRS FRENCH:  Yes and that is the only ‑ ‑ ‑

60HER HONOUR:  That is all right, that will find its way corrected into the revised version.

61MRS FRENCH:  Thank you, Your Honour.

62HER HONOUR:  Were there any other matters?  No?  All right, thank you very much.  We will adjourn, thank you.

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