DPP v Trieu Hai Nguyen

[2020] VCC 977

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-20-00566
Indictment No. L10068624

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRIEU HAI NGUYEN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2020
DATE OF SENTENCE:	2 July 2020
CASE MAY BE CITED AS:	Director of Public Prosecutions v Trieu Hai Nguyen
MEDIUM NEUTRAL CITATION:	[2020] VCC 977

REASONS FOR SENTENCE
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Subject:             CRIMINAL LAW

Catchwords:     Sentence – Plea of guilty – Cultivation of narcotic plant – Charge based on one day’s cultivation – Commercial quantity

Sentence:Convicted and sentenced to 18 months’ imprisonment with non-parole period of 10 months’ imprisonment – Pre-sentence detention declaration 175 days ‘ imprisonment – s.6AAA Sentencing Act 1991 declaration – Ancillary order - disposal

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Botros	Solicitor for the Office of Public Prosecutions
For the Offender	Mr C. Nikakis	Haines & Polities

HER HONOUR:

1Trieu Hai Nguyen, you have pleaded guilty to one charge of cultivation of a narcotic plant.

2This offence has a maximum penalty of 15 years' imprisonment, which is a matter I must have regard to, as it reflects the seriousness with which Parliament regards the offence.

3I sentence you on the basis of the Summary of Prosecution Opening, which was tendered at the plea hearing, but briefly, on 9 January this year, police attended an address in Wyndham Vale and executed a search warrant.  You were there when police arrived.  When they announced their presence you fled the property and police chased you.  Shortly after this you were arrested.

4A search of the property that you occupied revealed that three rooms were being used to grow cannabis hydroponically, as well as a tent which had been set up in the living room.  Each of these spaces had lights, shrouds and a watering system.

5The cannabis seized was as follows:

·Location 1 – 12 plants weighing 25.02 kilograms;

·Location 2 – nine plants weighing 13.3 kilograms;

·Location 3 – nine plants weighing 12.6 kilograms; and

·Location 4 – 60 plants comprising 30 small and 30 medium plants weighing 3.96 kilograms.

6In total, 90 plants weighing 54.88 kilograms were seized.

7The prosecution accepts, and I sentence you on the basis that you were not aware that the total weight of the cannabis exceeded the commercial quantity threshold, which is 25 kilograms. However the total weight of the plants and the number of these is relevant to my assessment of the seriousness of your offending, albeit that you were not aware as to the matters to which I have just referred.

8Police also found chemicals, plant nutrients, irrigation hosing and power transformers, as well as your mobile phone, which was on a bed in the front room.  They also found takeaway food on a table.

9An illegal electrical bypass had been installed and it was calculated that over a period of 68 days the bypass would have resulted in unmetered use of 29,801 kilowatts.

10You were taken to the nearby police station and you were cautioned.  You were assisted by a Vietnamese interpreter.

11You asked to speak with your parents in Vietnam but the request could not be accommodated.  You asked to speak to a legal practitioner and these arrangements were made.

12During the interview you said that you were not a citizen or a permanent resident of Australia, that you came to Australia in 2014 and had since returned to Vietnam for a visit for a few weeks, returning to Australia in 2016 or 2017.

13You said you were on a refugee visa and that you did not work, study or receive Centrelink.  You relied on financial support from your parents.

14Otherwise, you gave "no comment" answers or answered "I don't know" to police questions.

15You refused to provide a DNA sample, which is your right, but you consented to providing your fingerprints.  When police obtained authorisation to take your DNA you consented to providing the sample.

16You have been in custody since the date of your arrest, being 9 January this year.

17Mr Nguyen, your offending is serious and deserving of a punishment which is just in all of the circumstances and your conduct must be denounced.  While I accept that your role in the offending was a fairly menial or lowly one, nevertheless it was an important one in the cultivation of an extensive crop of cannabis.  I make it clear that I sentence you on the basis of the charge, being one day of cultivating the crop, but it is clear that you were prepared, on this one day, to be party to the cultivation of an extensive cannabis crop, which goes to the seriousness of your offending and your moral culpability.  Also relevant to your moral culpability is the fact that you were prepared to be involved in this enterprise for monetary gain, but it was not put that you were funding an extravagant lifestyle.

18As the courts have often said, illicit drugs are a scourge on our community and often lead to misery and the proliferation of criminal offending.  Sadly, the situation in your case is all too common; where someone who has no criminal history has been engaged by people higher in the drug hierarchy to do their dirty work.  They are prepared to put you at risk, in terms of your future, and you were foolish enough to agree to this, which has now placed you in this difficult position.  Strong weight must be given to general deterrence in a bid to deter others from behaving as you have.

19Mr Nikakis told me that you had been a student in Australia and had been on a bridging visa at the time of your offending, hoping to achieve refugee status here.  You have since been told that you are to be deported, but it was not put on your behalf that you had any real expectation of being able to remain in Australia in any event.  Therefore, I do not factor in any anxiety that you have in relation to what may well occur in the future, especially in circumstances where you can return to family in Vietnam.

20I was told that you agreed to undertake this criminal work for another in circumstances where you were being paid a pittance as a waiter and the temptation of being paid a greater sum for minding the crop house was too great for you to resist.  It is unfortunate that you were in such a financially difficult situation but this does not excuse what you did – rather, it is something of an explanation for you engaging in this criminal conduct.

21You are only 24 years old and have no prior convictions.  You have spent your time on remand well, engaging in various programs that have been available to you - have we lost Mr Nikakis?  Excuse me.

22In sentencing you I have factored in that time in gaol has been, and will be harder for you because of your lack of contact with members of your family.  I have also taken into account, to a limited extent, the COVID-19 restrictions insofar as they might impact on you, although it was not put that you had anyone who might otherwise visit you in any event.  However, you are a young man who is in gaol for the first time and your isolation will be emphasised by the fact that you have a language barrier and you are effectively without any family or community support.

23Although you tried to evade – it's just been pointed out to me, and I thought that this might have been the case, Mr Nikakis seems no longer to be there.  I don't know if it's a connection at his end or what's happening.  I would be minded to continue on with my sentencing remarks because Mr Nguyen has the interpreter there, however he no longer has representation there.  Just one moment, we're just trying to contact him.  I'm sorry, we're just trying to work out how to include Mr Nikakis.  We're just going to ring Mr Nikakis and he can listen in.  No, he's back.  Mr Nikakis, can you hear me?

24MR NIKAKIS:  Yes, I can.

25HER HONOUR:  All right, thank you.  I'm up to paragraph 23.

26Although you tried to evade police initially, and you did not make admissions in your record of interview, you entered a plea of guilty at an early stage which entitles you to a significant discount in the sentence that you would otherwise receive, as you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings.  I am not satisfied that you have much in the way of insightful remorse for what you have done insofar as it had the potential to impact on other members of our community, however I accept that you are sorry that you have put yourself in this dreadful situation.

27As I have said, you have no prior convictions and I find that you are of otherwise good character in all of the circumstances.  Your prospects of rehabilitation are very good in my view, but it is accepted that an immediate custodial sentence is warranted in your case.

28Your counsel – that is, Mr Nikakis – submitted that you ought receive a sentence of time served, however the learned prosecutor submitted that this was not sufficient.

29In arriving at an appropriate sentence in your case I have also had regard to current sentencing practice, but bearing in mind that this is but one consideration and not a controlling matter or factor.

30In the end I have arrived at a sentence that, in my view, does justice to all sentencing considerations.  I am afraid that the quantity of the cannabis which you chose to involve yourself with, albeit for one day, is most significant, and it would have been readily apparent to you that this was the case when you first attended the premises, therefore in my view the offending is too serious to enable you to receive the benefit of time served.

31You are convicted of the offence.  I make an order for disposal of the items listed in the schedule of the draft Disposal Order, which is not opposed by you.

32You are sentenced to 18 months' imprisonment and I direct that you serve 10 months' imprisonment before becoming eligible for parole.

33If not for your plea of guilty I would have sentenced you to three years' imprisonment with a non-parole period of two years.

34You have already served 175 days’ imprisonment which will be deducted from the sentence that I have just imposed.

35Mr Botros or Mr Nikakis, anything arising from those sentencing remarks?

36COUNSEL:  No, Your Honour.

37HER HONOUR:  All right, thank you.  There were some typos that I picked up as I went through.  I changed words without changing the meaning from time to time, as I was reading it aloud, but there was no significant departure from the draft that I provided counsel with.  Very well.

38MR NIKAKIS:  As Your Honour pleases.

39HER HONOUR:  Mr Nikakis, did you want everyone else to leave or turn off their transmission so you can have a word with your client with the assistance of Mr Tran before he's let go for the day?

40MR NIKAKIS:  That would be helpful, Your Honour.

41HER HONOUR:  All right then.  We'll adjourn the court and, Mr Tran, if you wouldn't mind just staying put for the moment, please, so that Mr Nikakis can speak with Mr Nguyen with your help, please?

42INTERPRETER:  Yes, Your Honour.

43HER HONOUR:  Thank you very much for your assistance, Mr Tran.

44INTERPRETER:  My pleasure, Your Honour.

45HER HONOUR:  All right.  Yes, thank you, we'll adjourn.

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