CDirector of Public Prosecutions v Nguyen
[2021] VCC 852
•24 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-00373
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANH KIM NGUYEN |
---
JUDGE: | HIS HONOUR JUDGE DEAN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 June 2021 |
DATE OF SENTENCE: | 24 June 2021 |
CASE MAY BE CITED AS: | CDPP v Nguyen |
MEDIUM NEUTRAL CITATION: | [2021] VCC 852 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Recklessly dealing with the proceeds of crime – s194(3) - Tobacco products - Limited remorse – Good prospects for rehabilitation
Legislation Cited: Crimes Act 1958 (Vic)
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence – Imprisonment of 18 months with a non-parole period of 9 months – s.6AAA declaration – Imprisonment of 3 years with a non-parole period of 2 years
---
APPEARANCES: | Counsel | Solicitors |
For the Commonwealth | Mr D. Brown | Commonwealth Director of Public Prosecutions |
For the Accused | Mr D. Sala | Valos Black & Associates |
HIS HONOUR:
1Anh Kim Nguyen, you have pleaded guilty to recklessly dealing with the proceeds of crime, contrary to s194(3) of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment. You have also pleaded guilty to the two related summary offences of dealing with property suspected of being the proceeds of crime, contrary to s195 of the Crimes Act 1958. The maximum penalty for that offence is 2 years imprisonment.
2You pleaded guilty following committal proceedings and the matter being listed in this court for trial. Directions hearings were also conducted. Accordingly, your plea was not at an early stage in the proceedings but it is nevertheless in my opinion a high value plea of guilty at a time when the COVID-19 pandemic has placed the administration of criminal justice under great pressure.
3I also accept that your plea is evidence of some limited remorse for your offending although for reasons I will refer to, I do not accept that you are truly remorseful for what you did.
4You have admitted one prior court appearance in this court in 2005 for charges of cultivating a commercial quantity of cannabis and theft of electricity for which you received a 12-month sentence of imprisonment which was suspended for 18 months. The offending concerns a cannabis crop grown in the family home that you still occupy. This prior conviction whilst now 16 years ago is nevertheless of some limited relevance in this case in that you have previously offended for commercial gain.
5A summary of prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows.
6At all material times, you owned and operated a Cignall tobacco franchise in the Broadmeadows Shopping Centre. In 2015, you received notice from British American Tobacco to cease and desist from selling illegal tobacco products from your shop. On 11 December 2017, search warrants were issued by the Broadmeadows Magistrates' Court in relation to the shop and your home in Sunshine North.
7On 3 January 2018, the warrants were executed by investigating Victoria Police officers. You were present at your home with a number of relatives when the warrant was executed. In your home, the following items were located -
8In a spare room off the hallway, police located a total of 593,800 illegal cigarettes of various tobacco brands. Located in your black BMW were 39,200 cigarettes of various brands packaged in cardboard boxes.
9Police also located the following items from the garage in the house -
(i) 140,500 empty cigarette tubes in 14 boxes;
(ii) 6 machines used to inject tobacco into cigarette tubes;
(iii) 70 boxes of Memphis king-sized tubes filled with tobacco containing 7000 cigarettes in total;
(iv) 30 boxes of Memphis Menthol tubes filled with tobacco containing 3000 cigarettes; and
(v) 80 kilograms of loose tobacco packaged in four large cardboard boxes.
10In a store room located at the rear of the garage, police also seized the following -
(i) a box containing 6 vacuum sealed bags of loose tobacco weighing 18 kilograms in total;
(ii) 10,000 empty cigarette tubes packaged in a cardboard box; and
(iii) assorted accounting documents.
11Police also seized a large quantity of cash which they located in the master bedroom and storeroom underneath the staircase in the house. In the walk-in robe in the master bedroom, police located a safe which you opened for them. Inside the safe was located $144,000 in cash. Police also located the following amounts of cash in the master bedroom -
(i) $85,000 in a plastic bag on the floor of the walk-in robe;
(ii) $12,000 in a blue Furla handbag in the walk-in robe;
(iii) $1000 in a purse in that blue handbag; and
(iii) $13,540 in three money tins in the walk-in robe.
12In the storeroom under the staircase, police located the following other quantities of cash -
(i) $100,000 in a blue shopping bag;
(ii) $299,900 in a grey shopping back hidden under pieces of carpet; and
(iii) $350,000 in a green backpack, also hidden under pieces of carpet.
13In total, the police located 643,000 smuggled cigarettes, 98 kilograms of loose tobacco, and $1,005,440 in cash.
14Later that day, the warrant was executed at your shop in Broadmeadows and a further 24,240 illegal cigarettes were located.
15You made no comment to all questions put to you in a record of interview by in the investigators. You were charged and released on bail which has continued.
16$554,486,74 in excise duty was avoided by you in relation to the illegal tobacco products and the counterfeit cigarettes located were valued in the sum of $454,847.40.
17At the conclusion of these reasons, I will make orders which are not opposed in relation to the disposal of the cigarettes and tobacco products and the forfeiture of the cash.
18The regulated distribution, importation and sale of tobacco products is intended by the Commonwealth to raise revenue and to deter the use of a legal but dangerous product and regulate its distribution. In my opinion, offences which are related to the avoidance of that scheme committed for profit may properly be described as serious and general deterrence is plainly an important sentencing consideration in your case.
19It was submitted on your behalf and without the support of any evidentiary material that you were a mere sitter of the illegal tobacco and cash on behalf of a Middle Eastern man who had approached you at your shop to carry out this role in exchange for the supply of illegal cigarettes for you to sell.
20I do not accept this submission and I am satisfied beyond reasonable doubt that you were engaged yourself in the preparation and sale of illegal tobacco products for personal commercial gain and it is in this context that your offending occurred.
21Whilst another person or other person may have been involved in this trade, you played, in my opinion, a significant role in it. I have reached this conclusion based upon the following undisputed items of evidence -
(i) the very large sum of money located at your home and the inherent unlikelihood of you simply holding so much cash for somebody else;
(ii) the various locations of your cash including in a handbag, purse and in your own walk-in robe;
(iii) the very large quantity of tobacco products and their value which were located in your possession;
(iv) your possession of devices to produce cigarettes from loose tobacco; and
(v) the illegal tobacco products were stored in conjunction with legal products.
22In advancing what was, in my opinion, an untrue account of your offending, you have demonstrated that your remorse is, as I have already observed, limited. And whilst this untrue account does not aggravate your offending or moral culpability for it, it is relevant to your prospects for rehabilitation. And further, in my opinion, specific deterrence is a relevant sentencing consideration in your case.
23I now turn to your personal circumstances.
24You were born in Vietnam on 28 March 1978 and are now aged 43. You completed your secondary schooling in Vietnam and migrated to Australia in 1977 to study. You first resided in Sydney where you studied accounting and met your first husband who sponsored you to remain in Australia with a spousal visa. He was abusive towards you and the marriage ended in 2002.
25You married your current husband shortly afterwards and you have three children, aged 19, 12, and 6. It would appear that you have been the main source of income for the family and your husband has a gambling addiction. You have the support of your wider family and your children will be cared for and supported while you are in prison.
26Your eldest son Aaron gave evidence on your behalf and is clearly an intelligent and responsible young man.
27I have also received in evidence a reference from your current employer and I accept that you are a hardworking and dependable employee.
28Your counsel also tendered a psychological report of Ms Carla Ferrari, a consulting forensic psychologist, setting out your background and psychological profile. You have developed an alcohol abuse disorder and depression and although these conditions do not appear to have a significantly adverse effect on your wellbeing, I accept that your offending took place in this context. Your counsel expressly stated that the principles set out by the Court of Appeal in R v Verdins (2007) 16 VR 269 were not engaged in your case.
29In my opinion, your prospects of rehabilitation whilst good must also be approached with a degree of caution. Your offending was motivated by profit and it took place over an extended period of time. You are an intelligent and mature person and were well aware of the illegality of your organised criminal conduct.
30I accept that the hardship of imprisonment will be greater in your case by reason of the COVID-19 restrictions now in place and you will also suffer by reason of your separation from your children.
31It was accepted by the parties that it would be appropriate for me to impose an aggregate sentence in your case as the charges are part of a series of offences of the same or a similar character. That also means that I will not be required to identify individual sentences for each of the three charges to which you have pleaded guilty.
32In the result, the sentence of the court is as follows.
33On the three charges before the court, you are convicted and sentenced to be imprisoned for 18 months.
34I direct that you serve 9 months by way of imprisonment before becoming eligible for parole.
35I declare that you have served 6 days by way of pre-sentence detention, not including today.
36But for your plea of guilty, I would have imposed a total effective term of imprisonment of three years and fixed a non-parole period of two years.
37I have made the forfeiture and disposal orders sought by the prosecution.
‑ ‑ ‑
0