Ngoc Nguyen, you can remain seated. Ngoc Nguyen, in early 2016 a substantial police drug investigation uncovered that you were involved in cultivation of significant quantities of cannabis in rural Victoria. Precisely how your role is described has been the subject of submissions. The prosecution say that you were a hands-on principal cultivator of cannabis in a large shop at 4-6 Sunraysia Highway in Tempy. Tempy is a small rural township 32 kilometres from Ouyen, 132 kilometres from Mildura in the Mallee.
I will return back to the issue of your role and what was put forward on your behalf. The shop had been vacated it seems for about three years before it was bought by Than Yen Nguyen of Cabramatta, New South Wales in July 2015. You were regularly at the premises in late 2015 and 2016, early 2016, and were at the time living or staying in nearby Ouyen.
Police searched the premises attending on 22 March 2016 where they found five rooms within the shop area contained a large number of cannabis plants which were fed by water pipes leading to adjacent rooms where wheelie bins had been used to store liquid to feed the plants. There was documentation which indicated that you were part of the process of ensuring that the plants were properly fertilised.
There were a large amount of electric cables connecting high powered lighting systems throughout the area. The photographs reveal a very complicated set of electrical wires and the like. Heavy duty plastic sheeting had been placed on the walls of the rooms to prevent light escaping. There were large carbon filters which were suspended from the ceiling used to absorb the emitting odour from the cannabis.
Other rooms in the shop area were work areas and consisted of a large number of power boards, electrical transformers and various assorted plant foods for the cannabis production. In summary the whole premises had been converted into a cannabis production factory or farm on an industrial scale.
Each of the rooms numbered 2, 3 and 4 revealed mature cannabis plants occupying the entire space of the room. In other words, like any commercial indoor horticultural enterprise, you grew as much cannabis as could be fitted into the room. Room 2 had 31 large plants at 12 to 14 weeks maturity weighing 42.26 kilograms. Room 3 had 38 large plants of similar maturity weighing 51 kilos. Room 4 had 48 large plants less mature at 5 to 7 weeks maturity weighing 16.43 kilograms. Room 6 had 50 small plants and seedlings which together weighed just over 5.68 kilograms. Another room, Room 1, had 479 grams of dried cannabis in two plastic bags.
The police had intercepted telephone calls and SMS messages from between members of the drug syndicate. You dealt with a major player, a Trung Luong. There were numerous calls between his phone and yours from 1 September 2015 until 1 April 2015, that is after the police had raided the premises and you were interviewed by them on 22 and 23 March of 2016.
You were arrested on 6 April 2016 when the police executed a warrant at Trung Luong's address. You were there. So too was another man, Tan Nguyen. Tan Nguyen had been staying at Ouyen as well and had been spoken to by police in September of 2015 at the Tempy shop where he indicated that renovations would be done to re-open the shop as a supermarket.
Tan Nguyen was not arrested, has a number of aliases and perhaps through that means has been able to escape apprehension. It was said by your counsel that this man Tan Nguyen was more the senior player in the cultivation of cannabis in the Tempy premises and that you were under his directions and received payments from him.
Since your arrest on 6 April 2016, you have been in custody. The information that police obtained from the intercepted telephone calls and SMS messages makes it clear that you were significant cultivator producing cannabis for harvest and ultimately for sale.
On 4 February 2016, you and Luong spoke of a harvest of 24 pounds of cannabis or 10.88 kilograms made ready for sale at a price of $1750 a pound or a total of $42,000. There were calls and text messages concerning amounts of cannabis in pound lots and prices. While Luong was financing the operation, you were an important - or in my view principal - a principal cultivator growing plants to yield significant amounts of cannabis for entrepreneurial purposes.
Whether Mr Tan was doing the same or at a higher level to you is difficult to discern but I will in this instance consider that you were an important principal cultivator, whether just under Mr Tan Nguyen or at his same level is unclear to me. I will give you the benefit of the doubt that you were less important as an organiser than he.
In total, there was cultivated 11.36 kilograms of dried cannabis, being 24 pounds or 10.88 kilograms which was moved on to Luong in February 2016 and 479.9 grams of dried cannabis found on the premises. Also there were 116.28 kilograms of fresh grown cannabis being 167 plants found at the premises. The total amount was 127.16 kilograms.
The cultivation methods were sophisticated. There was lighting installed such as to allow the cannabis plants to grow successfully indoors. The power had been bypassed to allow for higher volumes of electricity to be consumed without detection or cost. There were filters and reflectors and other expensive items indicating there were significant resources dedicated to growing large quantities of cannabis for profit.
Given the considerable efforts and expenses setting up this indoor horticultural enterprise, the plants not surprisingly that were grown were strong and healthy. The photographs tendered on this plea reveal just that. The yield of usable drug was likely to be high. The plants were growing at various stages of growth, indicating the harvest would be planned to be regular in the form of a crop rotation system providing ongoing cash flow.
Recently the Court of Appeal in the case of Nguyen in 2016 has provided guidance to sentencing judges indicating that the penalties for principals cultivating not less than a commercial quantity of cannabis are currently inadequate and must be increased. The need for denunciation and deterrence requires that this crime, with a maximum term of 25 years, leave penalties more severe than has been the case in recent or recent past times.
In my view, you fit squarely into the category of a principal cultivator well-embedded in entrepreneurial drug trade. Yours is a serious example of cultivation in not less than a commercial quantity. The volume is five times in weight what qualifies as a commercial quantity and 1.67 times the commercial quantity for the number of plants.
As noted the crop rotation system meant when the police raided there were 50 or so plants that were small and weighed little. Your intent of course was to cultivate these so that many of the plants progressed onto being fully productive cannabis plants by those in other places in the production house.
The period of time of your cultivation was 1 January 2016 until 22 March 2016. In my view it only came to an end by reason of your detection by the police. Your explanation in your record of interview diminished or indeed denied your involvement. You asserted that you were engaged as a handyman to work on the house and that was the extent of it.
As I have pointed out in this case, another man Tan Nguyen was also involved in the property. It is not said that he is on any of the telephone intercepts that are put into evidence. As I say he was interviewed but has disappeared before arrest. I again indicate that in the end your role was that of an important cultivator.
Often the courts do deal with the young and vulnerable crop sitters who tend to crops so as to keep the principals at arms length. On the arrest of the crop sitters, it is clear they have a limited role and thus their culpability is seen as lower. You are not in that category.
You are 63 years old, born in North Vietnam as the sole child of parents engaged in fishing. Your mother is in Australia and is aware of your circumstances but there is no contact, in particular since you went into custody. Your education was brief. You were then taken into the North Vietnamese Army for the years 1972 to 1975. You married later and had three children. You came to Australia as a refugee in 1991.
You worked first in Sydney in the sewing industry and as a handyman. Of importance is that you have a serious relevant prior conviction. You were sentenced to four years with a minimum of two and half years in New South Wales for supply of - I was told it was heroin. This sentence imposed on you as a man without any prior convictions is a significant one. Your wife and children have not been part of your life since you were released from prison in 2007.
After then you moved between Victoria and New South Wales engaging in handyman work and other self-employment in labouring type jobs. You do not speak English and gaol is thus harder for you and I take that into account. There are other Vietnamese speakers in parts of the prison that you have been of late. You are taking up English classes in the prison. That is to your credit.
You are isolated, having no visitors and one person to speak to on the phone who is now in Vietnam having been deported after being with you in the Ouyen premises. You say that you will put drug offending behind you after this gaol term and start again as a handyman. It is hoped that you have learnt a lesson. However the need for denunciation and deterrence is central in matters of this kind.
Here however there is a need for weight to be attached to specific deterrence, that is deterrence to you. Your prior matter should have seen you learn a lesson. Your return to entrepreneurial drug offending reveals a concerning attitude.
Your early plea of guilty is important and reveals that you took responsibility for this crime and you have saved by your plea the community a great deal by taking the course that you have. In the end what must be acknowledged is the gravity of your offending, the importance of deterrence to others and to you. Your rehabilitation is not overlooked but it must give way to other matters.
For committing the crime of cultivating cannabis in not less than a commercial quantity, you are sentenced to be imprisoned for six and a half years and I fix a minimum non-parole period of four and a half years. You have been in custody for 354 days and that period of time having been reckoned, I declare that those days are part of the sentence that I have just imposed.
I will ensure that this declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already served 354 days of the sentence that I have just imposed. Had you pleaded not guilty to this matter and then found guilty of it, I would have imposed a sentence of eight years with a minimum of six.
At the Ouyen house, the police when searching it found a sword which is a controlled weapon or a weapon you should not have had. It is not a matter of great moment, however you have pleaded guilty to it and as a consequence of that matter you are convicted and fined $200.
There will be an order made as to the provision of a forensic sample pursuant to 464ZF. Is there retention or is the
MR REGAN: Retention, Your Honour.
HIS HONOUR: Right, there will be an order relating to retention. Thus I do not need to explain things.
MR REGAN: The issue of forfeiture and disposal is still under negotiation if I can announce that.
HIS HONOUR: Thank you. Any orders relating to the forfeiture and disposal of items connected to this cultivation need to be considered by the Crown. As I understand it there are others that may face trial in respect of this particular part of the drug operation. Is there anything further?
MS CASEY: Just on that front, Your Honour, I think there are some personal items. There's no objection, if the Crown and defence can reach agreement, that those orders can be made on the papers in due course.
HIS HONOUR: Yes. Thank you very much. I thank counsel for their assistance under trying circumstances given where Mr Nguyen was and the difficulty in being able to speak to him with an interpreter. I thank the interpreter for her assistance. Is there anything further? No. Thank you.
Parties
Applicant/Plaintiff:
# DPP
Respondent/Defendant:
Nguyen \[2017\] VCC 323
DPP v Nguyen [2017] VCC 323 - VCC 2017 case summary — Zoe