Director of Public Prosecutions (Cth) v Nguyen & Anor

[2024] VCC 114

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01226
CR-23-01992

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

BEAUPRES NGUYEN

and

THI MY PHUONG HOANG

---

JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2024
DATE OF SENTENCE:	27 March 2024
CASE MAY BE CITED AS:	DPP (Cth) v Nguyen & Anor
MEDIUM NEUTRAL CITATION:	[2024] VCC 114

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Commonwealth offending – possess tobacco products reckless as to whether the goods were imported with intent to defraud the revenue – deal with proceeds of crime more than $100,000 – covert operation – $637,858.50 of payable duty evaded – offenders arranged for payment of delivered goods – not principals – no expected financial gain – guilty plea 

Legislation Cited:      Customs Act 1901 (Cth); Crimes Act1914 (Cth); Criminal Code Act 1995 (Cth);

Cases Cited:R v Barakat [2020] VSCA 185; R v Choi & Pereira [2017] SASCFC 54; Nguyen v R [2019] NSWCCA 44; CDPP v Folino [2023] VCC 2059; R v Hoang [2022] NSWDC 193; R v Pham [2015] HCA 39; Jabal v CDPP [2021] VSCA 33; Barbaro v The Queen (2014) 253 CLR 58; El Masri v The King [2023] VSCA 93; Commissioner of Taxation v Cocaj [2004] QCA 69; Aitchison v the Queen [2015] VSCA 348; R v Saleh [2015] NSWCCA 299; Akot v The Queen [2020] VSCA 55.

Sentence:                  Ms Nguyen: 6 months’ imprisonment; released on a Recognizance Release Order in the sum of $2,500.00 and the term of that recognizance will be for a period of 2 years; Ms Hoang: 6 months’ imprisonment; released on a Recognizance Release Order in the sum of $2,500.00 and the term of that recognizance will be for a period of 2 years.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ned Zvekić	CDPP
For the Accused Nguyen	Phillip Bloeman	Luat Lawyers
For the Accused Hoang	Nadia Giorgianni	Giorgianni & Liang Lawyers

HER HONOUR:

1Beaupres Nguyen, you have pleaded guilty to one charge of possess tobacco products, reckless as to whether the goods were imported with intent to defraud the revenue contrary to s 233BABAD(2B) of the Customs Act 1901 (Cth) (‘the Act’). This is charge 1 on the indictment concerning you. This offence carries a maximum penalty of 5 years’ imprisonment; or a fine not exceeding five times the amount of the duty that would have been payable on the goods on the day on which the offence was committed if the goods had been entered for home consumption; or a fine not exceeding 1,000 penalty units; or both imprisonment and one of the above fines.

2A Schedule under s16BA of the Crimes Act1914 (Cth) is attached to your indictment. It alleges that you are believed to have committed a further federal offence, namely the offence of deal with money reasonably suspected of being proceeds of crime, the value of the money being $100,000 or more contrary to s 400.9(1) of the Criminal Code (Cth)[1] (‘the Code’). The maximum penalty for this offence is: imprisonment for 5 years; or a fine of 300 penalty units; or both imprisonment and a fine.

[1]Criminal Code Act 1995 (Cth) Sch 1.

3Thi My Phuong Hoang, you have pleaded guilty to one charge of deal with money reasonably suspected of being proceeds of crime, the value of money being $100,000 or more contrary to s 400.9(1) of the Code. The maximum penalty for this offence is that stated in the previous paragraph above.

4In sentencing each of you, I have taken into account all of the written material tendered as well as the oral submissions of counsel.[2]

[2] The material relied upon by counsel includes: the Summary of Prosecution Opening for the Plea; written submissions of counsel; and documents tendered on behalf of each accused (comprising health summaries and character references for Ms Nguyen; and a number of payslips for Ms Hoang).

5The circumstances of your offending are set out in the Summary of Prosecution Opening dated 31 January 2024, which was accepted by each of your counsel, and I sentence you on the basis of the facts set out in that document. I summarise the offending briefly.

Details of offending

6In late 2021, police were investigating a man by the name of Felix Pham who is your brother, Ms Nguyen. He is also your former partner, Ms Hoang. Police deployed covert operatives who engaged with Pham and sold him a large quantity of illegally imported cigarettes. After that transaction, which took place at Mr Pham’s Footscray address (where he resides and operates an optometry business), one of the covert operatives attended at the address to collect payment and was told that Mr Pham would be overseas in January 2022 and that his sister and girlfriend would be ‘looking after his business’ whilst he was away.

7Between 3 February 2022 and 8 February 2022, while Mr Pham was overseas, covert operatives communicated with Mr Pham and both of you. Mr Pham arranged to purchase 57 shippers of cigarettes (570,000 individual cigarettes) for $310,650.00 on 8 February 2022.[3] It was agreed that you both would receive the cigarettes from the covert operatives and hand over payment.

[3] These Double Happiness branded cigarettes had been imported illegally and had previously been seized by the Australian Border Force and handed to the AFP. The packaging did not display Australian health warnings and the shippers were labelled as follows: ‘DOUBLE HAPPINESS’, ‘FOR EXPORT’ and ‘NANYANG BROTHERS TOBACCO CO LTD HONG KONG’. The shippers were handed into the custody of the AFP and subsequently the covert operatives for the purposes of their investigation.

8When covert operatives attended Mr Pham’s Footscray address on 8 February 2022 in a truck containing the cigarettes, you were both present to greet them. You both helped them unload the contents of the truck into the house. In total, Ms Nguyen you possessed 57 shippers which contained the 570,000 cigarettes. This represents $637,858.50 of payable duty evaded and is the subject of charge 1 on the indictment concerning you, Ms Nguyen.

9You Ms Nguyen and one of the covert operatives went inside the house, and  you retrieved a Chanel shoebox containing $100,000.00 in Australian currency and you gave it to the covert operative as part-payment of the $310,650.00 amount agreed. This conduct is the subject of the 16BA schedule charge against you Ms Nguyen.

10Via text messages between you, Ms Nguyen, the covert operatives and Mr Pham, arrangements were made for the covert operatives to return later that day and collect the remainder of the payment, that is, $210,650.00.

11You Ms Nguyen and you Ms Hoang were both at the Footscray address when the covert operatives returned around 5.00pm. You Ms Nguyen went into another room to fetch Ms Hoang. You Ms Hoang came out of the room with a green canvas shopping bag which contained $210,650.00 in Australian currency. You handed this bag and that sum to the covert operatives. This conduct is the subject of charge 1 on the indictment concerning you Ms Hoang. Ms Nguyen, you discussed the amount of cash with the covert operatives and counted it.

12The covert operatives left the Footscray property with the canvas shopping bag and handed it over to AFP investigators. Inside the bag, a piece of paper with calculations written on it was located. The calculations were:

5,450 x 57 =

310.650

-100____

210.650

13AFP forensics analysed the piece of paper and located three latent fingerprints, all belonging to you Ms Hoang. AFP forensics also analysed the canvas bag itself and collected DNA samples from the handles of the bag. The results of the analysis excluded you Ms Nguyen as a contributor, but did not exclude you Ms Hoang as a contributor.

14As part of the investigation, surveillance operatives had also been deployed to follow each of you to your registered addresses. Police obtained search warrants for these addresses.

15On 9 April 2022, police executed a search warrant at your property, Ms Nguyen, while you were present. Police located and seized a number of items including multiple quantities of cigarettes in branded packaging (30 cartons of Manchester branded cigarettes; 15 cartons of Double Happiness branded cigarettes; and 75 cartons of Marlboro cigarettes) which did not display Australian health warnings, and an iPhone which used the service XXXX XXX 181. Although you Ms Nguyen have not been charged with any offences relating to the cigarettes located at your address, the prosecution relies on these cigarettes to establish the mental element of the tobacco offence with which you were charged.

16AFP analysed your iPhone Ms Nguyen and found a message sent from a contact named ‘Felix’ on Viber, an encrypted messaging platform. The contact was for the same Vietnamese telephone service which the covert operatives had used to speak with Mr Pham to organise the transaction on 8 February 2022. The message, dated 24 February 2022, stated:

‘I will lose my cigaret business if I dun pay him This business brings me. A lot of profit’.

17On the iPhone, Australian Federal Police discovered a photograph of the box of seized Manchester cigarettes. They also found an undated screenshot of a Facebook Messenger conversation between an unknown author and a contact named ‘Param’. Param had sent an image of the inside of a box of Manchester cigarettes. It contained 21 cartons and an empty space which would fit a further four cartons. The messenger conversation reads:

Unknown Author: ‘Can I call you later?’
Param:                  4 carton
   Short In box’
Unknown Author: ‘I am on metting’

18Nothing of relevance was located during the execution of the warrant at your address, Ms Hoang, on 28 June 2022.

Record of Interview

19Each of you participated in a record of interview.

20You Ms Nguyen said that Pham was your brother and Ms Hoang was his friend. You admitted attending the Footscray address every day for a few hours to clean and cook for your mother. You said you were not involved in Pham’s optometry business and had once seen some tobacco delivered but were not involved in handing over cash for it. You denied knowing that Pham was involved in any other money-making business. You denied receiving or storing any large amounts of cigarettes or knowing that duty is payable on them; and you denied dealing with large amounts of cash for any person in the previous 12 months. You said you did not recall handling the Chanel shoebox of cash. You denied knowing anything about the green canvas shopping bag. You said you never read the Viber message sent by Pham, and said he may have intended the message for a different recipient.

21You Ms Nguyen were charged and bailed on 12 July 2022.

22You Ms Hoang admitted knowing Pham and going to the Footscray address to take his daughter to school and care for her on Sundays for about an hour. You denied knowing that Pham was involved in a business other than his optometry business. You admitted that the calculations found in the shopping bag were yours but later denied writing them down. You said that Pham asked you to help with the delivery of shippers containing glasses. You denied helping Ms Nguyen hand over money to anyone.

23You Ms Hoang were charged and bailed on 28 June 2022.

Guilty Pleas

24You Ms Nguyen indicated an intention to plead guilty on 18 July 2023 and formally pleaded guilty to the offences on 20 February 2024.

25You Ms Hoang indicated an intention to plead guilty on 7 July 2023 and formally pleaded guilty to the charge against you on 1 November 2023.

26You are both on bail and have not served any pre-sentence detention.

Personal Circumstances

Nguyen

27You Ms Nguyen were born, raised and educated in Vietnam and are now 54 years old. You are an Australian citizen. You are one of eight children. Your father worked as a teacher but you were not well-off.  You finished school in Vietnam at the equivalent of Year 12. You left Vietnam in 1991 when you were 21 years old, when your older brother, Tony, sponsored you and your parents to come to Australia. You completed VCE here but received very poor results due to problems with English.

28You worked casually in a Vietnamese food store for about 5 years in the mid-1990s. You also worked for Mr Pham as a receptionist in his optometry business for 5 years until your mother got sick. You cared for both of your parents. Your father died in 2019, and you receive the carer’s pension for caring for your mother.

29You married your ex-husband and had three children with him, but separated in 2014. You have no contact with your ex-husband and he has never paid child support. Your three adult children live with you.

Hoang

30You Ms Hoang were born in Vietnam in 1983 and are currently 40 years old. You were raised by your paternal and maternal grandparents as your parents had separated when you were young. You have three siblings.  

31You were only educated up to grade 4. After leaving school you worked at your aunt’s pho restaurant. You continued working there until 2007 when you moved to Singapore.  You married there and became a citizen in 2016. You have no children.  You worked in various hawker stores at markets. The marriage broke down and you were divorced in 2019.

32In July 2016, you met Mr Pham on a flight from Vietnam to Singapore. You became friends and by 2017 you were in a relationship and you came to Australia for three months. During that time you helped care for his daughter. You came back to Australia two more times before ending your relationship with Mr Pham in March 2020. However, you have remained friends and prior to the current offending, you were regularly assisting him with the care of his daughter.

33You have been in Australia since early 2020, initially here on a tourist visa but you are now on a Criminal Justice visa. You live with your new partner, Mr Linh Tran, and work as a nail technician.

Prosecution submissions

34The prosecution submitted that the offending of each of you is serious and that the only appropriate sentence for each of you is one of a term of immediate imprisonment.

35As the amount of duty evaded by you, Ms Nguyen, namely $637,858.50, is a considerable amount, the prosecution submitted that your offending is a serious example of this offence. It was submitted that denunciation and general deterrence are key sentencing considerations, given the impact of revenue loss on the whole community, the profits involved, and the difficulties of detecting such conduct.

36It was submitted that in relation to dealing with money reasonably suspected of being proceeds of crime, each of you played an important role in the activities of organised crime. Again, general deterrence remains an important sentencing consideration for this offence.

37The prosecution conceded that you each have no prior convictions and are each entitled to a discount for your early pleas of guilty (at the committal mention) as well as to an additional amelioration of sentence for having made your plea during the period when the Court faced a backlog of cases due to the COVID-19 pandemic. There has been delay in finalising these matters which has not been caused by either of you.

38Apart from the acceptance of responsibility which inheres in your pleas of guilty to the offending, the prosecution noted that when interviewed you each denied the offending and you have each shown no remorse for your offending.  

39As you, Ms Nguyen, have no subsequent convictions, the prosecution conceded that you have good prospects of rehabilitation.

40However, as you, Ms Hoang, have a subsequent conviction for similar offending in 2020, involving the sum of $261,455.00, the prosecution submitted that specific deterrence remains a relevant sentencing consideration and that your prospects of rehabilitation are more guarded.  

41In terms of hardship to family resulting from a sentence of imprisonment, the prosecution conceded that you Ms Nguyen play an important role in caring for your mother and dependents. However, the prosecution submitted that the inconvenience or hardship your mother may suffer as a result of your imprisonment should not be given significant weight because there is no evidence that your mother does not have any other reasonable means of obtaining the care she needs.

Defence submissions

Nguyen

42Ms Nguyen, your counsel submitted that your offending sits towards the lower end of seriousness of this type of offending. This is because Mr Pham, and not you, was the principal of the enterprise who was being targeted by the covert operatives. Your only involvement was on one date, 8 February 2022, when you followed the instructions of your brother to facilitate payment once the cigarettes were delivered. Your role was not sophisticated, apart from the text messages concerning timing of delivery, and you had no expectation of financial gain.

43In mitigation, your counsel relied on the absence of prior convictions, your early plea of guilty, its utilitarian value in avoiding the need for trial, and submitted that an additional amelioration of sentence is warranted due to the timing of the plea indication.

44Your counsel submitted that you have been a devoted single mother to your three adult children. Each of them was in Court to support you and each of them submitted a character reference for you. You have also been caring for your aging mother who lives at the Footscray address. She has a number of medical conditions as well as some cognitive problems and requires daily assistance with medication and her activities of daily living. 

45I note that after the plea hearing you submitted to the Court a letter giving further details of family hardship that would flow from your being imprisoned. There was no objection to my taking account of that letter, and I have done so. In the letter, you note that your son is graduating from university and you would like to attend his graduation. You also provide emotional support to your youngest daughter who works two jobs on top of studying nursing. You would like to be present to support your oldest child and you feel a strong obligation to continue caring for your mother. You expressed remorse for your offending.

46Your counsel submitted that since being charged in July 2022, you have suffered depression, anxiety and sleeplessness and have lost weight. You have been taking an anti-depressant since 2023.

47It was submitted that your lack of prior convictions or subsequent offending enhance your prospects of rehabilitation and reduces the need for specific deterrence.

48Your counsel submitted that the ultimate sentence imposed on you should not exceed a penalty that is appropriate for the objective gravity of the offending, and should be the least severe sentencing option open to the court which addresses all the relevant sentencing considerations.

49Although the Court has the discretion to consider the Scheduled offence, it was submitted that as the provision of the monies was part of the factual matrix of the plea to the offence on the indictment, no specific additional penalty should be imposed in relation to it.

50Your counsel noted that the available appellate authorities are limited to consideration of the offence of importation of tobacco products, where the maximum penalty is 10 years’ imprisonment. Nevertheless, your counsel relied on the case of R v Barakat,[4] where the lesser offender was sentenced at first instance to 20 months’ imprisonment with release on a Recognizance Release Order after 10 months, as demonstrating the proposition that a combination sentence is open in this case.[5]

[4] [2020] VSCA 185 (‘Barakat’).

[5] For the sake of completeness I note that, on appeal, this sentence was reduced to one of 8 months’ imprisonment.

51Finally, it was submitted that in all the circumstances, your offending does not call for the imposition of an immediate term of imprisonment, but rather the appropriate disposition is the making of a Recognizance Release Order.

Hoang

52Ms Hoang, your counsel submitted that your offending is at the lower end of seriousness for this type of offence for a number of reasons. You were not the main perpetrator but acted under the instructions of Mr Pham. You had very limited involvement with the covert operatives. Your offending lasted six hours, and was limited to being present at the Footscray address when the consignment was delivered, helping to unload the consignment, and handing the green canvas shopping bag containing $210,650.00 to the covert operatives.  In addition, the total sum of money involved,  $310,650.00, was much less than that in appellate cases cited by the prosecution.[6] Your counsel noted that in one recent decision of this Court involving a single date of offending and approximately $300,000,[7] the accused was released forthwith, upon giving a security by way of recognizance of $5,000 payable upon any breach of the condition that they be of good behaviour for two years.

[6]R v Choi & Pereira [2017] SASCFC 54; Nguyen v R [2019] NSWCCA 44.

[7]CDPP v Folino [2023] VCC 2059.

53In mitigation, your counsel relied on the absence of prior convictions, your early plea of guilty which indicates your acceptance of responsibility for your offending as well as your consenting to the forfeiture order. Your counsel relied on the utilitarian value of that plea in avoiding the need for trial, and submitted that this warranted a sentencing discount. In addition, it was submitted that you are entitled to an additional amelioration of sentence for making your plea at the time that the Court was affected by a backlog due to the COVID-19 pandemic.

54It was conceded that your offending occurred while you were on bail for similar offending in New South Wales. You were sentenced by the New South Wales District Court on 20 March 2022 to a Recognizance Release Order with no immediate term of imprisonment to be served.[8]

[8] See R v Hoang [2022] NSWDC 193.

55It was submitted that at the time of that offending, you were new to Australia, did not speak English and did not understand the gravity of your actions. However,  you are now fully aware of the consequences of making bad decisions. You have recognised that your relationship with Mr Pham was not a healthy one and that your offending has put your liberty at risk and may impact on your ability to remain in Australia. You have complied with the New South Wales Recognizance Release Order and with strict bail conditions imposed by this Court. Your partner, Mr Tran, is supportive of you, and you have stable accommodation with him. You also have employment in a nail salon. You do not have any mental health or substance abuse issues. For these reasons, your counsel submitted, your prospects of rehabilitation are good.

56It was submitted that an immediate term of imprisonment would be especially onerous as it would be your first time in custody, you have poor English skills, and you will face a real risk of deportation upon your release.

57For these reasons, it was submitted that a Recognizance Release Order is within range and an appropriate outcome for you Ms Hoang.

Sentencing considerations

58On the authorities,[9] it is desirable that there be consistency in the application of relevant legal principles in sentencing for federal offences, and to that end, sentencing judges are to be guided by the relevant decisions of appellate courts across the country.[10]  

[9] Jabal v CDPP [2021] VSCA 33, 9 [32] (Niall JA) quoting Barbaro v The Queen (2014) 253 CLR 58, 74 [40]–[41] (French CJ, Hayne, Kiefel and Bell JJ).

[10]R v Pham [2015] HCA 39, [18] (French CJ, Keane and Nettle JJ).

59I note, however, that the appellate decisions referred to me all concerned importation or possession of tobacco products where the offender had knowledge of the goods being imported with intent to defraud the revenue (that is where the maximum penalty is one of 10 years’ imprisonment), rather being reckless as to whether that was the case (where the maximum penalty is one of five years’ imprisonment). Notwithstanding this difference, those authorities make it clear that evasion of duties on tobacco products is not a victimless crime, but rather disadvantages Australian taxpayers generally, and therefore that denunciation and general deterrence are the key sentencing principles for such offending, which will often warrant custodial sentences,[11] even where the offender is of good character and unlikely to reoffend. 

[11] El Masri v The King [2023] VSCA 93, 13 [67]; Barakat above n 4, 15 [53]; Commissioner of Taxation v Cocaj [2004] QCA 69; Aitchison v the Queen [2015] VSCA 348 [78]–[79].

60On the authorities, the quantum of the duty evaded is an objective indicator of the seriousness of particular offending.[12] Another indicator is the scale of the enterprise in which the offender was involved. The role played by an offender is a critical factor. 

[12]R v Saleh [2015] NSWCCA 299, [3] (Beech-Jones J).

61The maximum penalty for each of the offences charged on your respective indictments reflects the seriousness with which Parliament views the offences with which you are charged. On the other hand, s 17A of the Crimes Act (Cth) provides that a sentence of imprisonment is not to be imposed upon a person for a federal offence unless the Court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all of the circumstances.

62In sentencing each of you, I have also had regard to the factors set out in s16A of the Crimes Act 1914 (Cth), including the sentencing principles of denunciation, just punishment, general and specific deterrence, and totality; as well as the nature and circumstances of the offending; your early pleas of guilty and the utilitarian value of those pleas; the degree to which you have shown remorse; the financial loss (to revenue, in the case of the possession charge concerning you Ms Nguyen); your personal circumstances; your prospects of rehabilitation; and the impact of the proposed sentence on your dependants or family members. I have also considered that you are each entitled to receive an additional amelioration of sentence for making your plea during the period when this court was dealing with a backlog of cases due to the Covid-19 pandemic.

Nguyen

63Ms Nguyen, in possessing the tobacco as you did, the amount of duty evaded is $637,858.50. This is a substantial amount but far less than the sums involved in other cases referred to by counsel which involved offending carrying a maximum sentence of 10 years’ imprisonment. I consider that your offending is at the lower end of the range in terms of the quantity of duty evaded. I accept that your role was a limited one, involving one delivery and there is no evidence of expectation of financial reward by you. However, you were trusted by your brother, the principal in the importation business, to liaise with his customer (in this case the covert operatives), and on one occasion to take possession of and unload the goods. In addition, as alleged in the attached Schedule, in making make part-payment of $100,000 in cash for the goods, you committed an additional federal offence, that of dealing with money reasonably suspected of being proceeds of crime. The prosecution did not contend that an additional penalty should be imposed upon you in respect of this additional offence, and I do not propose to impose one.

64I accept the matters put in mitigation on your behalf. You have no prior convictions, no subsequent matters, are a devoted, middle-aged mother of 3 adult children and you provide an important role in caring for your own elderly mother. There has been a significant delay in this case which has hung over you and caused you to become depressed and require medication. You have very good prospects of rehabilitation. I have taken into account the family hardship, particularly to your elderly mother, from the imposition of a sentence involving an immediate term of imprisonment. You are entitled to a substantial discount in sentence for your plea, which is evidence of remorse, along with the additional remorse expressed in your letter to the Court. You are entitled to an additional, perceptible amelioration of sentence for the timing of your plea.

65Taking into account all of the relevant sentencing considerations, I consider that only a sentence of imprisonment properly reflects the gravity of your offending in all the circumstances. However, in the circumstances of this case, I propose to release you immediately on a Recognizance Release Order.

66The prosecution have prepared a Recognizance Release Order. You have indicated to the Court that you consent to enter into the Recognizance Release Order with the proposed conditions that you have been shown by your counsel.

67Please stand, Ms Nguyen. On the sole charge on the indictment, you are convicted and sentenced to 6 months imprisonment. Your sentence commences today. However, under s 20(1)(b) of the Crimes Act 1914 (Cth), I propose to release you immediately given your agreement to enter into a Recognizance Release Order, providing security in the sum of $2,500, on condition that you be of good behaviour for 2 years.

68If you fail without reasonable excuse to comply with this order, it may be discharged or varied and you would be brought back to Court to be re-sentenced. There is a strong likelihood that if that occurs you will be sentenced to an immediate term of imprisonment. You would also be required to pay the sum of $2,500 in the event of your returning to the court in those circumstances.

69You or an authorised person may apply to this court to vary or discharge this Recognizance Release Order in accordance with s 20AA of the Crimes Act 1914 (Cth).

70I indicate that but for your plea of guilty, I would have imposed a sentence of 10 months’ imprisonment to be served immediately.

Hoang

71On the authorities, the quantum involved in this offence is a paramount consideration in assessing the objective seriousness of the offence. The quantum involved in your offending is $310,650.00. On the other hand, as outlined above by your counsel, you had a very limited role, your offending lasted six hours and was limited to helping unload the consignment and handing the canvas bag containing the money to the covert operatives. You were acting on the instructions of your then boyfriend, Mr Pham, who is the principal in the tobacco operation. You denied the offending in your record of interview and, apart from the acceptance of responsibility inhering in your plea, have expressed no remorse. Although you have no prior convictions, you have one subsequent conviction for money laundering, in respect of an offence committed in 2020 (about 2 years before the offending the subject of this plea), for a slightly higher amount. Your current offending occurred while you were on bail for similar offending in New South Wales. This subsequent conviction bears on the relevance of specific deterrence in your case and on your prospects of rehabilitation, which would be viewed as somewhat guarded but for the fact that since your offending you have developed insight into the seriousness of your conduct, complied with your bail conditions, formed a new, pro-social relationship, have stable accommodation and work in a nail salon. In the light of these matters, I consider that your prospects of rehabilitation are good and that specific deterrence need not weigh heavily in the sentencing exercise.

72In addition, I acknowledge that your status in Australia is uncertain and that there is a possibility that you will be deported at the conclusion of your sentence.[13] I take into account that this possibility weighs heavily upon you.

[13]Akot v The Queen [2020] VSCA 55.

73I take into account the matters relied upon in mitigation – your early plea of guilty has utilitarian benefit and warrants a discount in your sentence. In addition, the timing of the plea warrants a further perceptible amelioration of sentence.

74Taking into account all of the relevant sentencing considerations, I consider only a sentence of imprisonment properly reflects the gravity of your offending in all the circumstances. However, again in the circumstances of this case, I propose to release you immediately on a Recognizance Release Order.

75The prosecution have prepared a Recognizance Release Order. You have indicated to the Court that you consent to enter into the Recognizance Release Order with the proposed conditions that you have been shown by your counsel.

76Please stand, Ms Hoang. On the sole charge on the indictment, you are convicted and sentenced to 6 months imprisonment. Your sentence commences today. However, under s 20(1)(b) of the Crimes Act 1914 (Cth), I propose to release you immediately as you have agreed to enter into a Recognizance Release Order, providing security in the sum of $2,500, on condition that you be of good behaviour for 2 years.

77If you fail without reasonable excuse to comply with this order, it may be discharged or varied and you would be brought back to Court to be re-sentenced. There is a strong likelihood that if that occurs you will be sentenced to an immediate term of imprisonment. You would also be required to pay the sum of $2,500 in the event of your returning to the Court in those circumstances.

78You or an authorised person may apply to this court to vary or discharge this Recognizance Release Order in accordance with s 20AA of the Crimes Act 1914 (Cth).

79I indicate that, but for your plea of guilty, I would have imposed a sentence of 10 months’ imprisonment to be served immediately.