Director of Public Prosecutions v Van

[2017] VCC 850

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 17-00528

DIRECTOR OF PUBLIC PROSECUTIONS

v

THANG NGUYEN VAN

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	22 June 2017
CASE MAY BE CITED AS:	DPP v Van
MEDIUM NEUTRAL CITATION:	[2017] VCC 850

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke
For the Accused	Mr C. Nikakis

HIS HONOUR:

1Thang Nguyen Van, you have pleaded guilty to one charge of cultivation of a narcotic plant in not less than a commercial quantity. the plant being cannabis.

2You are to be sentenced as the crop sitter of the plants being grown at 9 Howard Street, St Arnaud.  The period of time during which you were the crop sitter was 10 December 2015 to 14 October 2016.  There were seven rooms of the house being used and three rooms of a shed at the rear.  There was an electrical bypass system being used and the normal hydroponic paraphernalia was present.  There were 376 plants at various stages of development to a weight of 76.3 kilograms.

3You have no criminal history.  You have entered an early plea of guilty to which you are entitled to a discount because it shows remorse on your part and saves the community the cost of a jury trial.

4Your counsel has outlined to me your background.  You are in Australia on a student visa.  Your wife came over and she obtained a visa as you were on a student visa. You have a premature child, born on 21 March 2017.  I am told that today is in fact the first time you have seen that child.

5You, in 2001 to 2008, worked and studied in the Netherlands.  You then worked in Hanoi in the banking industry for some five years.  You were married in 2011.  You came to Australia to obtain a banking and business qualifications and you studied at the Central Queensland University Campus in Melbourne, and you had almost finished a course of banking to obtain a Masters qualification.  I am told that you paid for your private school fees.  Your wife, during this period, obtained work on a farm, although she has some medical problems as outlined by your counsel.

6Whilst you have been in custody, you have involved yourself in various study activities and work activities to rehabilitate yourself.  Your wife is experiencing some difficulties with a child and I am told that health care nurses have been arranged to assist you and your solicitor, Mr Nikakis, has very helpfully suggested to your wife other assistance.

7The issue arises as to whether you will be deported.  Certainly I take into account that that will weigh on your mind whilst you are in custody and although I have no actual evidence before me, my experience suggests to me having heard all too many of these cases, that I conclude with both counsel that your deportation is almost inevitable and that will mean yourself and your family will be going back to Vietnam, which deprives you of the opportunity of advancing your life in Australia and I take that into account. However, of course, it is all your own fault. 

8In sentencing you, I am required to balance the interests of the community in denouncing criminal conduct, with the interest of the community, seeking to ensure as far as possible that you are rehabilitated.  I express my denunciation of behaviour.  Cannabis crop growing is almost a disease at the moment, given the number of cases I seem to hear about it.  People must be deterred from doing it as it is illegal.

9I must impose a sentence that combines the principles of punishment, general deterrence, both specific and general rehabilitation, denunciation and protection of the community.  In sentencing you, I must have a regard to a range of matters, such as the seriousness of the offending, culpability, your personal circumstances.  Specific deterrence because of your otherwise good history and character plays a lesser role here.  What is concerning is that the length of your involvements in this operation stretch for around ten to 11 months.

10You said you were involved because you need money for the cost of living and the cost of study.  In my view, because of the sophistication of the setup, the number of rooms involved and number of plants, this cultivation is in the mid-range of sentencing.  Thus comes within the principles as set out as discussed in the case of Nguyen.

11I discussed with counsel a comparison with a case I did yesterday.  However, there is a distinction between that case and which I imposed a sentence of two and a half years with a non-parole period of one and a half years, in that you have a young child that will weigh on your mind.  The concern about what is happening with your child whilst you are in custody and the fact that you will probably lose your opportunity to remain in Australia.

12Bearing all those things in mind, I sentence you as follows.

13I sentence you to a term of imprisonment of two years with a non-parole period of one year

14It is clear that the time of 249 days that you have served be reckoned as part of the term of imprisonment that I have just imposed.

15Pursuant to s.6AAA of the Sentencing Act, I declare that if you had proceeded to trial and you were convicted, you would have received a sentence in the order of five years with a non-parole period of three years.

16I make an order for disposal and also a 464 order because of the seriousness of the offending.  Can I have those documents please.  Thank you.

17I make an order for disposal pursuant to s.77(1) of the Confiscation Act in terms of the order that I sign.

18I make an order pursuant to s.464ZF(2) of the Crimes Act for the taking of a forensic sample.

19Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied that in all the circumstances, the making of the order is justified for the following reasons:  The seriousness of the circumstances of the offending warrant the order.

20I tell you, I have just made an order for a forensic sample.  If when the police come around to take it, you decide to not comply with that order, police can use reasonable force to enable that forensic procedure to be conducted.

21Any other orders I need to make or consider?

22MR BOURKE:  No, thank you, Your Honour.

23HIS HONOUR:  All right.  Thank you, you may take out Mr Nguyen Van.  Thank you, Mr Nikakis, you are excused.

24MR NIKAKIS:  Thank you, Your Honour.

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