CDirector of Public Prosecutions v Nguyen-Huynh

[2023] VCC 190

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01706

DIRECTOR OF PUBLIC PROSECUTIONS

(CTH)

v

MINH NGUYEN-HUYNH

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 January 2023
DATE OF SENTENCE:	17 February 2023
CASE MAY BE CITED AS:	CDPP v Nguyen-Huynh
MEDIUM NEUTRAL CITATION:	[2023] VCC 190

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. McMaster with Ms J. Mackay	Office of Public Prosecutions
For the Accused	Mr T. Sawyer	SLKQ Lawyers

HIS HONOUR:

1Minh Nguyen-Huynh on 24 October 2022 you were found guilty of one charge of attempting to possess a commercial quality of an unlawfully imported border controlled drug being methyl amphetamine, contrary to s11.1(1) of the Criminal Code 1995 (Cth). The maximum penalty is life imprisonment.

2You stood trial with a co-accused Duc Quang Nguyen but the jury was unable to reach a verdict in relation to your co-accused. The verdict followed a trial that commenced with three days of pre-trial argument, conducted mainly on behalf of your co-accused, an aborted trial of two days duration, and then a trial before a jury of 15 days, followed by four days of jury deliberations.

3I am required to sentence you consistently with the jury verdict.

4You were convicted upon an indictment which alleged that between 5 January 2021 and 15 January 2021 you, together with your co-accused and unknown others attempted to possess an unlawfully imported border controlled drug in a commercial quantity. The drug was methyl amphetamine.

5The indictment alleges that you attempted to possess the illegal drug on the basis that the drug had been intercepted and was the subject of a controlled delivery.

6The prosecution case followed a referral to the Australian Border Force from a customs broker and led to the interception at the Tullamarine gateway facility of three large boxes labelled multi-head packing machines air freighted from South Africa via Hong Kong. The shipment was examined and found to contain eighty-one 1 kilogram individual vacuum sealed packages of methyl amphetamine secreted within the lining of boxes that contained meat smokers. The pure weight of the methyl amphetamine was 63.3 kilograms.

7An AFP led joint organised crime police task force titled Operation Jumbuck substituted packages of pool salt for a controlled delivery. On 13 January 2021 the boxes were delivered to the consignee address by a police officer posing as a delivery driver. The mobile phone number and address of your co-accused was on the airway bill. The delivery address was a lockup shed behind a residential property at 33 Oberon Avenue, St Albans used by your co- accused to store building materials. It was kept under surveillance.

8You attended soon after. Later other persons attended and ultimately, two days later on 15 January, the police arrested the consignee, and two other persons present, and a short time later arrested you at your home address.

9You and the co- accused were charged with attempting to possess jointly with unknown others an unlawfully imported border controlled drug in a commercial quantity.

10The elements of the offence required that you entered into an agreement with your co- accused and others to possess a quantity of an unlawfully imported border controlled drug, and that the agreement was still in place when the offence was committed, and that you intended that an offence would be committed in accordance with the agreement, and in accordance with the agreement one or more of the parties to the agreement performed all the acts necessary to attempt to possess a quantity of methylamphetamine, and the quantity was a commercial quantity.

11At trial, the prosecution relied on two limbs of the definition of possession to prove the commission of the offence, namely that your co-accused, a party to the agreement, possessed the substituted consignment by accepting delivery and storing it, and/or you possessed the consignment by exercising control over its disposition.

12The jury must have been satisfied that you committed the physical elements of the offence by exercising control over disposition of the consignment.

13Upon your arrest you gave a 'no comment' record of interview. You did not give evidence at the trial. Your defence at the trial was that the prosecution could not prove that you were a party to an agreement to take possession of the shipment, nor could the prosecution prove that you are aware that the boxes contained illegal drugs.

Circumstances of the offending

14In sentencing for offences of this type is often difficult to reach conclusions as to the precise nature and extent of an offender's involvement. This is not surprising given the logistics involved in successfully effecting an importation of a substantial quantity of a very valuable illegal drug that is readily saleable on the illegal market.

15In the present case the prosecution accepted that it could not point to when, how, or where you entered the agreement with others to attempt to possess the illegal shipment. Nor can the prosecution point to evidence as to what you intended to do with the illegal drug when you obtained possession of it.

16It was common ground that what is required under the authority of Wong v R (1999) 207 CLR 584 at [64] is for the Court to assess the objective gravity of the matter having regard to the quantity of the illegal drug, your role, your knowledge of the illegal consignment, and the financial rewards that might be expected.

17Before turning to consider what you actually did, it is important to note the evidence that this was an illegal shipment of moderate sophistication, involving concealing the illegal drug in 1 kilogram vacuum sealed packages, secreted in the lining in three large boxes that contained meat smokers but were labelled as containing machinery. The syndicate was using a technique known as a 'ghost shipment' where the illegal drug was hidden within a shipment that purported to be a regular shipment to Australia of products from a manufacturing company in South Africa.

18The amount of the illegal drug is substantial, being a pure net weight of 63.3 kilos of methylamphetamine, that was 84.4 times the minimum 'commercial quantity'.

19Further, in considering the overall shipment of an illegal drug with a value of between $9.5m – $12.6m, it is unsurprising that such an enterprise would involve a number of different players, not necessarily fully in touch with each other, all playing different roles, both major and minor, along the chain from source to ultimate distribution to retail drug users.

20Turning to your role in the illegal enterprise, much of it is revealed from lawful telephone interceptions on the mobile phones of your co-accused and yourself, and optical and human surveillance. On the evidence before the Court you were using a telephone registered in a false name and your involvement commenced with contact between you and your co-accused in the period prior to your co-accused being advised that the boxes were to be delivered to the delivery address at 33 Oberon Avenue, St Albans between 9 am and 12 noon on 13 January 2021.

21You were working for your co-accused at the time who was conducting a building renovation business. He had a room at your house in which he stayed from time to time.

22From the telephone intercepts, you became aware that the shipment had arrived in Australia and you were in a position to advise your co-accused that the boxes were to be delivered. The clear inference that is available is that you were in contact with the person who had made two calls to DHL, the delivery company, enquiring as to when the shipment would be delivered.

23There was an exchange between you and your co-accused in the early hours of Wednesday 13 January 2021 when your co-accused confirmed with the delivery company DHL that the boxes could be delivered.

24On the morning of the delivery you were on four occasions observed to be driving a vehicle past the delivery address. The inference which the prosecution asked the jury to draw, and which I draw, is that you were engaged in counter surveillance at the time.

25After the boxes were delivered, a short time later you attended at Oberon Avenue and were present for about an hour. You were also seen disposing of an item in a rubbish bin and your fingerprints were subsequently found on part of the consignment note. I draw the inference that your attendance at Oberon Avenue was to ensure and confirm the safe arrival of the illegal shipment. Part of the wrapping of the substituted material was later found at your address at 4 Eastcote Street, Sunshine North.

26Subsequently that evening you were present when a number of other people arrived at Oberon Avenue. One of those persons appeared to be acting as a lookout. The inference is available, and I do draw the inference, that those persons were there to inspect the shipment. While not completely clear, it appears that at that stage, unbeknownst to the watching police, the substituted sealed packages of pool salt were removed from the boxes at that time.

27On Thursday 14 January, you met your co-accused twice and then spent a considerable period of time in the Springvale area with another male, Mr Le, who was later arrested at the Oberon Avenue address the following day, although he was not subsequently charged. On that day you were also involved in liaison with Mr Le, who you were using as an intermediary, as arrangements were made for the 'Caucasians' to inspect the boxes.

28Later that evening you were again at Oberon Avenue along with Mr Le, another gentleman Mr Danny Lai and other unidentified persons as well as your co-accused. The telephone intercepts indicate that you were effectively involved in arranging for others to contact the 'Caucasians'. The surveillance indicates that Mr Le and your co-accused were also at your address of 4 Eastcote Street, Sunshine North on the evening of 14 January.

29On the following morning you were also involved in telephone conversations with your co-accused and Mr Le as they attempted to have the Caucasians to attend at Oberon Avenue.

30Eventually at around 2:14 pm Mr Montana, a person of Caucasian appearance, attended at Oberon Avenue and entered the back shed. Later Mr Le also arrived. Your co-accused was present.

31The police swooped and found the boxes were open and the substituted material missing. The police then arrested those present at Oberon Avenue. You were arrested about an hour later at your home in Sunshine North.

32Overall, for the entire period from when the shipment arrived at the gateway facility until the police pounced on 15 January you had an active engagement with other individuals associated with the shipment, including your co-accused.

33Your Counsel argued that there was no evidence that you were aware of the amount or value of the shipment. While this is correct, the size of the boxes, the value of the shipment, the interest of others in the shipment as evidenced by their attendance at the shed, and also at your own home, and your involvement that I have discussed, provides a strong basis to infer that you were aware that the shipment contained a substantial quantity of illegal drugs.

34Your Counsel also argued that there was no evidence as to the amount that you were to make from the illegal enterprise. While there is no evidence of any betterment, I accept that given the value of the illegal drugs, there is a clear inference available that you would receive some reward for your endeavours, particularly given that you have a prior conviction for methyl amphetamine trafficking.

Overall assessment of seriousness and moral culpability

35Objectively this was a relatively sophisticated importation of a substantial quantity of a very valuable illegal drug that you were found guilty of attempting to possess. Your moral culpability must be considered in the context that you had previously served a substantial term of imprisonment for trafficking in an illegal drug. On that basis alone in considering your involvement in this offending you bear high moral culpability.

36Further, as considered earlier, you were significantly involved in this attempt to possess the illegal drug once the shipment arrived in Australia. You were in constant communication with your named co-accused and others, particularly Mr Le. You were using a phone registered in a false name, and once you became actively involved you were organising others in terms of having them contact others who were in unknown ways connected to the shipment, in that they attended at the Oberon Avenue premises once the boxes arrived. You inspected the shipment soon after it arrived, and then inspected it in the company of others on the evening of 13 January. You were then involved in communication with other persons including attempting to contact the Caucasians in the period after the shipment arrived and ultimately until the operation was 'resolved' by the joint police task force at around 2.30 pm on 15 January 2021. You were not present when that occurred. However, the person you had had been using an intermediary to liaise with Mr Montana, Mr Le, and Mr Montana himself, were both present when the police swooped.

37As submitted by the learned prosecutor it is often unhelpful to use particular labels of those involved in drug syndicate cases. In this case however your conduct is best described as you having an executive or coordinating role in the agreement to possess the unlawfully imported drug once the shipment arrived. You were clearly trusted by unknown persons in the operation. You were involved as soon as the boxes were to be delivered and then in the period before the police swooped you were actively involved, had inspected the goods and had been liaising with your co-accused and with others to have the drugs inspected. Later you were involved with others in having the Caucasians inspect the shipment inferentially after the substitution had been discovered.

38Your Counsel accepted that your role could be seen as above that of a courier, submitting that you were more like a hired hand. I do not accept that characterisation. Your role was far more extensive than that of a courier or hired hand and amounted, on the basis of the matters that I have referred to earlier, to an executive role on behalf of unknown principals in dealing with the shipment upon its arrival in this country.

Prior convictions

39You are now aged 52 and have admitted a criminal record that is relevant in sentencing, and I leave aside some minor matters.

40On 14 December 2004 on charges of making a threat to kill and assault with a weapon you were sentenced to an aggregate term of three months' imprisonment.

41On 27 July 2011 in the South Australian District Court you were sentenced to 16 months' imprisonment, with a non-parole period of nine months, with the sentence suspended for a period of two years, on a charge of conspiracy.

42Most significantly, in this Court on 16 December 2012 you were sentenced to 8 years' imprisonment with a non-parole period of five years on a charge of trafficking commercial quantities of controlled drugs. The offending breached the suspended sentence imposed in South Australia.  The sentencing reasons of the Court indicate that you were found in possession of 4,567 grams of methylamphetamine worth approximately $6,118,000. You were in a vehicle that was intercepted and found in possession of a backpack containing six silver packages secreted in children's clothing, along with $800 in cash. You were granted parole in July 2017 and the sentence expired in April 2020.

43Your prior criminal record, particularly the sentence for drug trafficking in 2012, shows that you have not responded to previous sentences and thus considerations of specific deterrence and protection of the community are salient sentencing considerations here.

Subjective considerations

44I turn now to subjective matters. Your personal circumstances were set out in your plea submission and in the report of Carla Lechner, clinical psychologist, which I incorporate by reference.

45You are now aged 52. You were born in Vietnam and you came to Australia as a refugee in 1997. You are the oldest of four children. Your parents and siblings remain in Vietnam.

46You grew up in a province that was significantly affected by the war and your father was in the army.  You were the subject of bullying at school. Your mother was working all the time in order to support the family and you had a difficult childhood.

47You eventually escaped with some cousins by boat to Malaysia. You spent some time in a refugee camp there. You then returned to Vietnam and worked in the electrical trade and tailoring.

48Eventually you came to Australia in 1997, at first going to Sydney and later moving to Melbourne. You have been in a long-term relationship since 2006 and have three children now aged 15, 13 and 10. Your wife is self-employed in the beauty therapy business that was significantly impacted by the pandemic.

49You have worked in a number of jobs since arriving in Australia but have no formal qualifications. At the time of your arrest you were working as a handyman with your co-accused. You suffer from asthma and are on medication for high blood pressure.

Report of Carla Lechner

50Your Counsel relied on a report from Ms Lechner. She noted that you continue to deny any involvement in the shipment. She opines that you are suffering from residual symptoms of complex PTSD. She assesses you as being of average intelligence. She found you are severely psychologically distressed arising out of your childhood. She is of the view that you would benefit from supportive psychotherapy and counselling.

51Your counsel submitted that principles 5 and 6 of R v Verdins [2007] VSCA 62 applied in relation to any sentence of imprisonment. The prosecution disputed this. Given that you have served a significant term of imprisonment previously, and do not appear to have sought treatment during your period of remand, I do not accept that any psychological condition you suffer calls for any significant amelioration of sentence.

52Your counsel also submitted that imprisonment will be more burdensome on the basis that you have a spouse and three children that you will be unable to support. Again, given that you have served a substantial prior period of imprisonment I give this matter only minor weight.

53Your counsel emphasised that you had been on remand since your arrest on 15 January 2021. The entire period has been during the Covid pandemic. Conditions in prison have been more burdensome than previously with visits and movements restricted, a risk of infection and programs curtailed.

54There has also been some delay in this matter coming to trial in that the original trial was scheduled in July 2022 but could not go ahead due to Covid. You have had the uncertainty of this matter hanging over your head for over two years while on remand in the Covid conditions. I regard these matters as calling for some amelioration of sentence notwithstanding that you have chosen to plead not guilty, and do not show any evidence of remorse.

Sentencing submissions

55In a comprehensive sentencing submission, the learned prosecutor emphasised the seriousness of the offending here, involving as it did the attempted possession of a quantity of drugs that was 83 times the commercial quality. Further, Parliament had signalled the seriousness of the offence by providing for a maximum penalty of life imprisonment.

56I am required to sentence you in accordance with the principles of the Crimes Act (Cth). Your counsel did not dispute that a sentence of imprisonment was required. Any sentence is required to be proportionate to the gravity of your offending. In sentencing you I have considered the various matters set out in s16 of the Crimes Act.

57You do not receive any benefit of remorse. Given that you reoffended a short time after completing the earlier sentence for drug trafficking, I regard your prospects of rehabilitation as poor.

58The learned prosecutor provided a helpful table of comparable cases, including from interstate appellate courts (Chan v R [202] NSWCCA 335, R v Yeo [2012] SASCFC 60, Luong v Director of Public Prosecutions (Cth) (2013) 46 VR 780, Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673, Blango v The Queen [2018] VSCA 210, Li v R (Cth) [2021] NSWCCA 100, DPP (Cth) v Brown [2017] VSCA 162, The Queen (Cth) v Yuan [2015] NSWCCA 198, McCraw v R [2011] NSWCCA 162, R v Le [2019] QCA 200). Your Counsel referred to the cases of Franze v The Queen [2014] VSCA 352 and Beqiri v The Queen [2017] VSCA 112. All the cases referred to provide an indication of current sentencing practices although the circumstances of the offending, the particular role of the offender, the quantum of the drugs involved, whether or not there is a plea of guilty, and the antecedents of the offender make it difficult to discern any particular sentencing pattern.

59I have considered all those cases. They provide some assistance particularly in relation to sentences imposed or confirmed on appeal in cases involving large-scale attempted drug importations. The amount of drugs involved, and the difficulty of detection of offences of this type point to an emphasis in the decisions that general deterrence and denunciation are very important sentencing considerations, and less weight is given to subjective considerations. The sentence must signal to would be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.

60A distinguishing factor in this case is that you have a direct recent prior conviction for trafficking a commercial quality of methylamphetamine where you served a significant sentence of imprisonment.

61The sentences imposed can be used as a yardstick against which to consider any particular sentence, bearing in mind also the maximum penalty is life imprisonment.

62Your counsel submitted that a merciful non-parole period should be imposed in the circumstances where you will be separated from your wife and children. I have considered the submission bearing in mind that the non-parole period is the minimum period that must be served to achieve all sentencing ends. Here considerations of specific deterrence and denunciation must be accorded some additional weight, and thus I do not accede to this submission.

63I have considered all the submissions made on your behalf. The sentence of the Court must seek to denounce you and also to deter you from further offending. Your conduct in coordinating others in seeking to possess the illegal shipment must be utterly condemned. The sentence must also send a signal to all those involved in the pernicious trade in a drug that is wreaking havoc in the community that they must expect heavy punishment to deter others.

64You must bear a high moral culpability given your prior sentence and you are not entitled to any benefit for evidence of remorse.

Sentence

65On the charge of attempting to possess an unlawfully imported border control drug you are sentenced to 16 years' imprisonment.

66I order that you must serve a minimum of 11 years' imprisonment before being eligible for parole.

67I declare that you have served 763 days pre-sentence detention and order that it be deducted administratively.

68I want to thank counsel for their assistance in the trial and the plea. I want to thank the interpreter too for her role, as well as all the interpreters in that trial.

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