R v Tien Nguyen

[2015] VCC 51

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

AT MELBOURNE

CRIMINAL DIVISION

CR-14-02037

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIEN HUYN NGUYEN

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 January 2015
DATE OF SENTENCE:	30 January 2015
CASE MAY BE CITED AS:	R v Tien Nguyen
MEDIUM NEUTRAL CITATION:	[2015] VCC 51

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Hannan	OPP Victoria
For the Accused	Mr B. Newton	Dribbin and Brown

HIS HONOUR:

1       Tien Huyn Nguyen, you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis.

2       The prosecutor, Mr Hannan, opened the circumstances of the offending by reading from a written ‘Summary of Prosecution Opening’ which was tendered.

3       The subject of the cultivation was a hydroponic cannabis crop, consisting of 225 plants, in a house in Springvale. The total weight of usable cannabis was 54.2 kilograms.

4       The period of the cultivation was between 1 July and 19 July 2014. During this period you regularly delivered soil to the premises, watered and attended to the plants and equipment so as to assist the cultivation. You did not set up the operation. You used a car which was registered in your name. You said you provided your personal details to others to enable the car to be purchased. You received $1000 for doing this and were impressed by the receipt of such a large sum. You later agreed to assist in the cultivation and were paid $100 per day.  

5       Police were notified of the crop after a fire at the premises. Despite being warned not to go near the house because of the presence of police you nevertheless drove past and police, acting on intelligence, intercepted you nearby.

6       You made some admissions prior to the formal interview but essentially answered “no comment” to questions in the formal interview.

7       Mr Newton appeared for you. He outlined your background and I will not repeat the details. In short however, you come from a supportive and loving family of modest means in Vietnam. You came to Australia in 2012 to further your studies. In earlier years you had been a good student but your grades fell and you had to repeat year 12 after a serious motorcycle accident when you were 18. Coming to Australia was intended to be a new start, however, you found it difficult to cope with studies in Australia and were under financial strain despite your family committing their life savings to the venture.

8       You undertook an English course during your first year but failed. During the second year you undertook a marketing course but unfortunately you also failed this course. Work demands and limited finances added to the stress of study.

9       It was in this setting of impecuniosity and failed studies that you were recruited, first to assist in the purchase of a car in your name and then in the cultivation that is the subject of the charge. As your counsel put it you were “torn about taking more money from your parents” and although you knew what you were doing was wrong you naively agreed to assist in the cultivation.

10      Although initially you intended to return to Vietnam after your studies by the time of your recruitment, you intended to seek permanent residency here in Australia.   

11      You have been in prison since your arrest. You are making the best of your current situation, studying English and keeping busy. Your parents are aware of your situation. You speak to your mother weekly, the highlight of your week. There is no one to visit you. Your primary concern now is to make amends and make your parents proud of you.

12      Mr Newton submitted that it was likely you would be deported and would lose the opportunity for completing studies here in Australia as well as achieving permanent residency. The prosecution did not dispute this.

13      The primary matters emphasised by Mr Newton to support his submission that the sentence should be towards the “lower end” of sentences for similar offending were your youth, the limited period of the offending, the likelihood of deportation, the absence of any prior criminal history and the plea of guilty at the earliest opportunity.

14      The offending is serious. The size of the crop was substantial and the operation was sophisticated. The harm which cannabis grown by modern methods can cause has been often noted by judges. Although you had no stake in the crop your role was nevertheless important to the venture.

15      It is well established that in cases involving cultivation of cannabis in a commercial quantity, general deterrence is at the forefront of sentencing considerations and consequently in cases of this kind there is less room to give weight to considerations of youth and antecedents as might otherwise be the case.

16      However, your youth is still relevant and imprisonment here in Victoria without the benefit of direct family contact or support must be difficult for you.

17      I will make the Disposal and Forfeiture Orders sought.  I think the law now provides that the forensic sample that has been taken will be automatically retained.  I do not think I need to make that.

18      MR HANNAN:  I discovered that this morning, Your Honour, yes.  I discovered the same this morning courtesy of Your Honour's associate.

19      HIS HONOUR:  I think that is right.  If we are wrong about it just come back to me and we will sign the order. 

20      You consented to these orders.

21      The prosecution submitted that only immediate imprisonment was appropriate given your particular circumstances.  Mr Newton also accepted this.

22      The central issue is the length of the term and the appropriate non-parole period.

23      You will be sentenced to 2 years' imprisonment. I fix 12 months as the period you must serve before being eligible for release on parole.

24      Had you not pleaded guilty I would have sentenced you to about 32 months imprisonment and required you to serve about 20 months in prison before being eligible for release on parole.

25      You have now served 195 days in presentence detention.  This period is to be reckoned as time already served on the sentence I have imposed.

26      Anything that needs correcting or needs to be drawn to my attention, Mr Newton or Mr Hannan?

27      MR HANNAN:  No, Your Honour.

28      MR NEWTON:  No, Your Honour.  I just ask that before the prisoner is removed may I have the benefit of the interpreter to just approach my client?

29      HIS HONOUR:  Do you want to do that in my presence or would you prefer me to leave?

30      MR NEWTON:  I'm not concerned either way.

31      HIS HONOUR:  Very well, you can speak to her now.

32      MR NEWTON:  Most grateful for the time, Your Honour. 

33      HIS HONOUR:  Very well, I will adjourn.  Thank you both, Mr Hannan and Mr Newton.  I have signed those orders, I will hand them down.  Thank you. 

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