Director of Public Prosecutions v Truong Nguyen

[2017] VCC 2018

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

AT BALLARAT
CRIMINAL JURISDICTION

CR-17-00195

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRUONG NGUYEN

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Ballarat
DATE OF HEARING:	15 & 22 November 2017
DATE OF SENTENCE:	22 November 2017
CASE MAY BE CITED AS:	DPP v Truong Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 2018

REASONS FOR SENTENCE
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Subject:Trial - sentencing

Catchwords:            Cultivation of narcotic plant in not less than commercial quantity

Legislation Cited:     Sentencing Act 1991

Cases Cited:            

Sentence:30 months’ imprisonment, 18 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Offender	Mr M. Page	Leanne Warren & Associates

189

 

 

HIS HONOUR:  I shall now proceed with the sentence.  Mr Nguyen, if you could just remain seated there until I ask you to stand.

1Truong Nguyen, you have been found guilty by jury verdict of one charge of cultivation of a narcotic plant in not less than a commercial quantity.  This offence carries a maximum penalty of 25 years' imprisonment.

2You were acquitted on a second charge, being negligently deal with proceeds of crime, namely cash.

3You are presently 24 years of age, having been born on 27 June 1993, and you were 23 when this offending occurred in July last year.

4You do not have any prior criminal history.

5By way of background to this matter, you are a Vietnamese citizen and you entered Australia on a spousal visa in 2012.

6Your co‑offender, Thai Son Nguyen, is also a Vietnamese citizen and entered Australia on a student visa in 2014.

7On 28 July 2017, for the same offending, Thai Son Nguyen was sentenced to two years' imprisonment with a period of 13 months to be served before becoming eligible for parole.

8Pursuant to s.6AAA of the Sentencing Act 1991 but for his plea of guilty a sentence of three years and six months imprisonment with a non‑parole period of two years and six months would have been imposed.

9The circumstances of your offending are as follows: 

10At 9.30 am on 18 July 2016 police conducted surveillance at an address in Sidbury Avenue Wendouree.  They observed a 2005 Honda Accord parked in the carport of the house behind closed gates.  The vehicle was registered in your name. 

11Police walked up to the front door and called out, "Police, open the door".  There was no reply and so entry to the house was forced.

12Upon entry, you and the co‑offender were seen to run, your co‑offender towards the back of the house and you to a laundry where you hid.  Police arrested both of you.

13Police conducted a search of the house and located a hydroponic cannabis setup operating through five rooms.  265 cannabis plants were located in various stages of growth.  The total weight of the cannabis was 153.17 kilograms.  The setup was a sophisticated hydroponic arrangement, including multiple light shrouds, globes, electrical power transformers, filters and other paraphernalia.

14Cannabis plants in various stages of growth were found throughout five rooms of the house and in a garage.  Practically every available space in the house was utilised for the crop and its growing paraphernalia.  The weight of the crop approximates to six times the commercial quantity.

15On the kitchen bench were an iPhone mobile phone belonging to you, a Samsung mobile phone belonging to the co‑offender and a set of eight keys with a key tag with the word "house" written on it.  These keys contained a key for the Honda Accord and house keys for the Sidbury Avenue address which opened the entrance door and rear garage doors of the house.  The prosecution case maintained that these keys belonged to you.

16Located in the bathroom were two toothbrushes.  DNA analysis carried out on the toothbrushes revealed that one of them contained DNA belonging to you.

17Following your arrest you were taken to the Ballarat Police Station where you were interviewed.  When interviewed you maintained that:‑

(a)   when police arrived you were cooking;

(b)   denied that you were trying to flee the house; 

(c)   admitted that you ran down the hallway and stated that, "I was cooking, I hear the noise, I was worried and frightened so I went"; 

(d)   you stated that the co-offender's first name was “So” and when asked whether you knew his full name stated "Not really"; 

(e)   stated that you had known the co-offender for two to three months; 

(f)     admitted that the car at the house was your car; 

(g)   stated that you got to the house at 9 am; 

(h)   stated that when you got to the house you had a sleep and started to cook; 

(i)     stated that you did not know there were cannabis plants at the house until you got there and the co-offender told you; 

(j)     when asked why the keys to the house were on your keyring, stated, "When I arrived there my friend worry that we would lose the keys so he put it in the bunch of keys".  You also stated that the keys belonged to the co-offender;  and

(k)   you stated that the previous evening you had been in Box Hill with the co-offender and that the co-offender had asked you to drive him to Ballarat to help him with something.

18The evidence in the trial was completed in a little over one day and the facts were essentially not challenged.  The central issue in the trial was whether the evidence relied upon by the prosecution could exclude the reasonable hypothesis that you were simply asked to be driven to the house at Ballarat from Ascot Vale without knowing the purpose, were at the house for an innocent purpose, having not been told about the plantation until you arrived there and had simply stayed, had a sleep and were doing some cooking.

19The jury, by its verdict, rejected that hypothesis.

20I now turn to your personal circumstances.

21You were born and brought up in Vietnam.  Your parents worked together in a machinery business.  You have one older sister who has supported you in court. 

22You finished high school, then one year of a business degree.  You then moved to Australia to study Business Management at Holmesglen TAFE, which you finished in 2016.

23The decision to leave Vietnam was partly driven by the separation of your parents when you were 16.  That relationship had broken down and became volatile and bitter.

24Since coming to Australia you have worked two jobs, delivering flowers casually and also working in a restaurant in Footscray.

25After originally coming to Australia on a student visa you met your current partner.  In 2016 you were granted a spousal visa.  You are currently on a carer's allowance for your partner who is an Australian citizen and suffers from post-traumatic stress disorder.

26You were recently diagnosed with an infection whilst in custody.  I note the report from Dr Catherine Cherry dated 20 November 2017, and that you can be appropriately medicated whilst in custody.  Otherwise you appear to be in good health.

27You are a relatively young offender.  You have no prior convictions and this period of incarceration has been your first time in custody.

28I take into account current sentencing practices for this offence and I have had regard to the sentencing statistics in comparable cases but I accept that your case is different from other cases as they are from each other.

29Parity with your co‑offender is a consideration.  The obvious distinction between the two of you is that your co‑offender pleaded guilty to the offence at an early stage whereas you chose to run a trial.  Your co‑ offender is in more isolation in custody as his family, with whom he remains close, are in Vietnam.  He proposes to return to Vietnam.

30Your co‑offender was sentenced on 28 July this year, as I have said to two years' imprisonment with a non‑parole period of 13 months.

31The seriousness of this offence is reflected by the maximum penalty of 25 years' imprisonment.  I accept that your role was that of assisting in the management of the crop and, on the evidence, that your participation is restricted to the date on the indictment.  That attendance is, however, a necessary role in order for the cannabis crop to flourish.

32By the jury's verdict it has accepted that you were linked to the operation.  Whilst your co‑offender made admissions as to a particular function, those admissions were general and usual to the nature of crop maintenance and I do not consider any lack of evidence of specificity in a particular function to be significant.  The role is assisting in the crop maintenance on the day of the indictment.

33In mitigation I take into account the matters urged on your behalf by your counsel, including:

·     your youthfulness;

·     the absence of any prior or subsequent offending;,

·     with your education and good character I accept that you have good prospects of rehabilitation;

·     your community service through the assistance you have provided to the Australian Vietnamese Women's Association;

·     that your time in custody will be more onerous as you face the anxiety from the prospect of deportation - you had been engaged in a settled life in Australia with a spousal partner who is an Australian citizen, and your only sibling, a sister, also lives in Australia; and

·     the support that you have from your sister and the friends that you have developed whilst in Australia and who I have noted have been present during court hearings.

34Consideration of general deterrence is to be given the most weight in cases of cultivation of cannabis.  It is well recognised that cannabis can do great harm to those who use it and it may also be a gateway drug which can lead vulnerable people down a path to more destructive illicit drug use and addiction.  Their families and the community are also impacted by this.

35In this particular case the cannabis crop was significant and was flourishing.  The weight of the crop at the time of the offending was 153.17 kilograms and entails a total of some 265 plants.

36Because of the very serious nature of the offending I do not accept that a sentencing disposition which embraces a mix of confined custody together with a community correction order is sufficient to achieve the purpose or purposes for which the sentence is imposed.

37Mr Nguyen, would you please now stand.

38On Charge 1 of cultivation of a narcotic plant in a commercial quantity you are convicted and sentenced to 30 months' imprisonment.

39I direct that you serve a minimum period of 18 months' imprisonment before being eligible for parole.

40Pursuant to s.18(4) of the Sentencing Act 1991 (Victoria) I declare that the period of 248 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

41Is there anything else from either counsel? 

42COUNSEL:  No, Your Honour.

43HIS HONOUR:  Thank you.  Mr Nguyen may be now taken into custody.

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